Welcome to 2018 With New Employment and Labour Law Rules and Obligations Across Canada

Welcome to 2018 and a load of new employment and labour law rules and obligations across Canada.

As most of you already know, a number of new or amended laws and regulations came into effect on January 1 or will come into force later in 2018 across Canada, including marijuana legalization and higher minimum wages in Ontario, Alberta and other jurisdictions. Here is a brief reminder of the new or amended rules you need to be aware of and implement to ensure compliance.

Federal/National (applicable across all jurisdictions)

1. Legalization of recreational marijuana

The federal government intends to legalize recreational marijuana (Bill C-45, Cannabis Act), effective July 2018. Most provinces and territories are in the process of implementing legislation to regulate the sale, possession and use of marijuana in their specific region.

Federal Bill C-45 passed third reading in the House of Commons and received first reading in the Senate as of November 28, 2017, and is undergoing public consultation. In regards to what the provinces and territories are doing to meet this future requirement, here is a brief overview:

• In Alberta, on December 15, 2017, Bill 26, An Act to Control and Regulate Cannabis, received royal assent and, when proclaimed in force, will make cannabis consumption legal for persons 18 years of age and older. Under the bill, private retailers may sell cannabis to the public, but online sales will only be by the provincial government.
• In December 2017, the British Columbia government announced a number of key decisions to implement the cannabis regulatory framework in the province in anticipation of the legalization of non-medical cannabis in July 2018. British Columbia will set the minimum age to possess, purchase and consume cannabis at 19 years old. BC will have a government-run wholesale distribution model. The BC Liquor Distribution Branch (LDB) will be the wholesale distributor of non-medical cannabis in BC. The province anticipates establishing a retail model that includes both public and private retail opportunities and will share details regarding the model in early 2018.
• On December 5, 2017, Manitoba introduced the Safe and Responsible Retailing of Cannabis Act, detailing the government’s intent for legal commerce of cannabis. The age for use is set at 19, and communities will be allowed to opt-out of cannabis sales by plebiscite. Home-growing of cannabis will be prohibited. Manitoba Liquor and Lotteries will source all cannabis to retailers by issuing licences, where it will be sold in private-sector stores.
• In New Brunswick, on November 9, 2017, the government tabled three pieces of legislation (Cannabis Control Act, Cannabis Management Corporation Act and Cannabis Education and Awareness Fund Act) with amendments to other laws to regulate the sale, possession and use of cannabis in that province. Crown-run New Brunswick Liquor Corporation would take charge of opening up to 20 cannabis stores in the province. Adults will be allowed to carry 30 grams of cannabis (with no limit inside the home), and will be required to store in a locked container or room the cannabis under their possession. Smoking cannabis will be banned in public places and the legal age for the purchase, consumption and cultivation of recreational cannabis is established at 19 years of age.
• In Newfoundland and Labrador, on November 23, 2017, the government provided the first details on how cannabis legalization will look in the province in July 2018. The legal age to purchase and possess cannabis in Newfoundland and Labrador will be 19 years; place of use will be restricted to private residences; and private retailers will be used to sell cannabis.
• In the Northwest Territories, on November 24, 2017, the Cannabis Legalization in the Northwest Territories: The Way Forward report was released outlining their proposed approach to allow the sale, possession and use of cannabis in their region. The government will set the legal age for cannabis use at 19. Smoking will be allowed on private property, and public smoking will be “restricted in certain areas.” The Northwest Territories Liquor Commission will manage all import and distribution of cannabis through retail outlets and by mail. Similar to alcohol regulations, communities will be able to hold plebiscites to opt out of cannabis sales in their jurisdiction.
• In Nova Scotia, on December 6, 2017, the government announced that cannabis will be sold alongside alcohol at current stores run by the Nova Scotia Liquor Commission. The age of purchase is set at 19. Nova Scotia intends to allow adults to possess up to 30 grams of cannabis. Nova Scotia also intends to allow adults to grow up to four plants per household. No legislation has been tabled yet.
• In Nunavut, the government has not yet announced its legal cannabis framework.
• In Ontario, on December 12, 2017, Bill 174, Cannabis, Smoke-Free Ontario and Road Safety Statute Law Amendment Act, 2017 received royal assent. When in force, the Liquor Control Board of Ontario would be the sole vendor of cannabis through 651 stand-alone stores separate from where they sell alcoholic beverages. It will be illegal for people under the age of 19 to buy, sell, have and share recreational cannabis. The Bill will also restrict where cannabis can be used (i.e., only in private residences but not in public places, workplaces or vehicles), including limiting exposure to second-hand smoke and vapour.
• Prince Edward Island intends to introduce legislation to regulate the sale, possession and use of cannabis in that province in the Spring of 2018. The government has made three key policy decisions related to cannabis legalization. The legal age for cannabis use will be age 19; cannabis will be sold in dedicated government-owned retail locations; and, to prevent exposure to second-hand cannabis smoke and the normalization of cannabis smoking, public consumption of cannabis will be restricted to private residences, with potential for designated spaces.
• In Quebec, under Bill 157: An Act to constitute the Société québécoise du cannabis, to enact the Cannabis Regulation Act and to amend various highway safety-related provisions introduced on November 16, 2017, the Société québécoise du cannabis will be the only legal entity to distribute or sell cannabis at the retail level. In contrast to the common age minimum of 19 in most provinces, in Quebec the age limit will be 18. Also, home-growing will not be permitted. It will be prohibited for an adult to possess, in a place other than a public place, more than 150 grams of dried cannabis. It must be smoked in the same places as tobacco, therefore it will be prohibited in the same places as tobacco. Smoking will also be prohibited on university and CEGEP grounds.
• Saskatchewan released on November 23, 2017, the results of its public consultation but has not yet released its proposed cannabis framework.
• In Yukon, the territory plans to have one physical store in the main city of Whitehorse, and online sales to reach more distant communities. The minimum age for cannabis use will be 19. In Yukon, adults 19 and older would be allowed to possess up to 30 grams of dried cannabis, or its equivalent, in public. Adults will be allowed to grow up to four plants per household for personal use. However, Yukon has not yet released its draft regulations.

2. Extended and new Employment Insurance (EI) benefits

Although already in force effective December 3, 2017, most of the changes to Employment Insurance (EI) benefits will be seen in 2018, and include:

• Eligible soon-to-be-mothers are able to claim maternity benefits up to 12 weeks before the baby is due.
• Extended parental benefits can be paid for a maximum of 61 weeks and must be claimed within a 78-week period (18 months) after the week the child was born or placed for the purpose of adoption.This means, new and adoptive mothers and fathers planning to begin their parental leave on or after December 3, 2017, are now able to spread 12 months’ worth of federal employment insurance parental leave benefits over 18 months at a lower benefit rate, and stay home with their child longer.
• Employment Insurance special benefits for parents of critically ill children have been replaced by the family caregiver benefit. The new family caregiver benefit includes 15 weeks of caregiver benefits to care for a critically ill or injured adult, and a 35-week benefit to care for a critically ill or injured child.

These benefits are available across Canada. However, provincial and territorial employment/labour standards legislation are responsible for providing and regulating the actual leave component. Legislative changes are required to align the leave period with the extended or created EI benefit period.

At this time, only employees in federally regulated workplaces and in workplaces in Ontario and Alberta can take advantage of the extended EI parental benefits or family caregiver benefit for adults since these jurisdictions have amended their employment/labour standards legislation to harmonize the leaves with the period allowed for benefits to be paid.

Federally regulated workplaces

1. Bill C-44 changes to the Canada Labour Code
Significant changes to the Canada Labour Code (Code) were enacted by the Budget Implementation Act, 2017, No. 1 (Bill C-44), after it received Royal Assent on June 22, 2017. These changes came into force on December 3, 2017.

Bill C-44 amends the Code to provide federally regulated workers with an unpaid parental leave of absence of up to 63 weeks to care for a newborn child of the worker or a child who is adopted by the worker. Previously, the maximum period of leave was 37 weeks. The aggregate amount of maternity and parental leave that may be taken by one or two employees with respect to the same birth or adoption must not exceed 78 weeks. This is an increase from 52 weeks.

Maternity leave remains unchanged as a period of up to 17 weeks unpaid leave. However, women will be permitted to begin their maternity leave up to 13 weeks prior to their due date.

The Code now provides for a 17-week unpaid leave of absence to care for or support a critically ill family member who is an adult (over 18 years old). Further amendments to the Code expand those eligible to take a leave of absence to care for a critically ill child beyond a parent to a family member of a critically ill child.

Other changes include expanding the authority and powers of inspectors including the power to order an employer to conduct an internal audit of its practices, books, payrolls and other records to determine whether the employer is in compliance or not with any employment standards provisions of the Code. Adding a complaint relating to reprisals process in the Code and establish a penalty system to promote compliance with Parts II (occupational health and safety) and III (employment standards) of the Code.

2. Canada Labour Code changes under Bill C-63 (passed but not yet in force; Expected to come into force sometime in 2018):

On October 27, 2017, the federal government introduced Bill C-63, Budget Implementation Act, 2017, No. 2. In addition to changes to the Income Tax Act and a number of other acts, Bill C-63 makes a number of changes to scheduling practices and leaves of absence under the Canada Labour Code employment standards section. To summarize:

• Providing employees with a formal right to request flexible work arrangements from their employers. Employers may only refuse the request on several listed grounds.
• With some exceptions, providing employees with at least 24 hours’ notice of a change in shift.
• Providing employees with a right to refuse overtime in order to fulfill a family responsibility.
• New three-day unpaid family responsibility leave.
• New 10-day unpaid leave for victims of family violence.
• New three-day unpaid leave for traditional Aboriginal practices.
• Extension of the current paid bereavement leave by an additional two unpaid days, and extension of the time period in which bereavement leave can be taken.
• Other modifications to provisions on work schedules, overtime, annual vacation and general holidays intended to provide greater flexibility in work arrangements.
• Repeals amendments to the Canada Labour Code that would have allowed for short-term internships, in addition to those administered through a college or university.

Code provisions in Bill C-63 are expected to come in force on proclamation sometime in 2018.

Ontario

1. Bill 148: Employment and labour relations law reforms

On November 27, 2017, the Fair Workplaces, Better Jobs Act, 2017 (Bill 148) received Royal Assent, and is now law. Bill 148 makes significant changes to the workplace laws of Ontario, including amending the Employment Standards Act, 2000 (ESA), the Labour Relations Act, 1995 (LRA) and the Occupational Health and Safety Act (OHSA). As well, it makes consequential amendments to a number of other statutes.

Most provisions of Bill 148 came into force on January 1, 2018, including all amendments to the LRA. However, there are several exceptions to the general January 1, 2018 coming into force date which relate to the ESA, for example, the equal pay for equal work comes into force April 1, 2018, and scheduling changes and reporting/on-call pay on January 1, 2019.

You can read more on these changes on First Reference Talks here.

2. Bill 177, occupational health and safety, pension and workers’ compensation changes

On December 14, 2017, the Stronger, Fairer Ontario Act (Budget Measures), 2017 (Bill 177), received Royal Assent. Bill 177 is an omnibus legislation that amends several statutes, including the Workplace Safety and Insurance Act, 1997, the Occupational Health and Safety Act, and the Pension Benefits Act.

Workplace Safety and Insurance Act, 1997 (WSIA) amendments

Effective January 1, 2018, the WSIA will allow for benefits for chronic mental stress arising out of and in the course of employment (provisions do not differentiate between chronic mental stress and traumatic mental stress). Bill 177 provides for transitional rules to determine entitlement to mental stress claims, the key aspects of which include:

• claims of mental stress occurring on or after April 29, 2014, that have not yet been filed can be filed by workers or their survivor(s) until July 1, 2018. Any claims filed during this six-month window will be adjudicated under the new mental stress WSIA provisions and the new Operational Policies.
• mental stress claims that were already filed in a timely manner and are still pending before the Workplace Safety and Insurance Board (WSIB) on January 1, 2018, will be adjudicated by the WSIB pursuant to the new provisions, regardless of the date on which the worker’s mental stress occurred.
• if a worker filed a timely mental stress claim and the worker’s timely appeal is filed with or is pending before the Workplace Safety and Insurance Appeals Tribunal (WSIAT) as of January 1, 2018, the WSIAT will refer the claim back to the WSIB to re-adjudicate the claim pursuant to the new provisions, regardless of the date on which the worker’s mental stress occurred. Workers cannot re-file mental stress claims that were already denied by the WSIB or the WSIAT.

Occupational Health and Safety Act (OHSA) amendments

Among other things, Bill 177 amends the OHSA effective the date of assent on December 14, 2017 to:

• increase the maximum fines under OHSA from $25,000 to $100,000 for individuals and from $500,000 to $1,500,000 for corporations.
• extend the limitation period for the filing of charges under the OHSA, currently within one year of the act of default upon which the prosecution is based, to the later of that limitation period or one year from the date that an inspector becomes aware of the alleged offence. This new limitation period could be well beyond the current one-year limit, creating uncertainty for employers regarding their exposure to prosecution.
• empower the Deputy Minister/Assistant Deputy Minister of Labour to establish directives for use by inspectors respecting the interpretation, administration and enforcement of the OHSA and its regulations, which would be binding on inspectors.

Pension Benefits Act (PBA) amendments

Among other things, Bill 177 amends the PBA to include:

• a requirement for all Ontario registered pension plans to implement governance and funding policies, to be filed with the Superintendent;
• coverage enhancements to the Pension Benefits Guarantee Fund (PBGF);
• discharges for annuity purchases;
• a new registry for missing beneficiaries.

The changes are not yet in force and amendments to the pension regulations are needed to implement the changes and make them effective.

Western provinces

1. Alberta Bill 17 amendments

Alberta’s new Employment Standards Code under the Fair and Family-friendly Workplaces Act (Bill 17), came into effect January 1, 2018. To summarize, key changes include:

• Employees are eligible for all leaves after 90 days of employment (previously one year).
• Compassionate care leave has been expanded to 27 weeks and maternity leave to 16 weeks.
• Parental leave has been expanded to 62 weeks following filing of supporting Regulations to implement Bill 17 on December 6, 2017.
• Critical illness leave has been introduced following filing of supporting Regulations to implement Bill 17 on December 6, 2017. Employees are now entitled to up to 16 weeks of job protection for employees who take time off to care for an ill or injured adult family member and up to 36 weeks of job protection for parents of critically ill or injured children.
• A new personal and family responsibility leave will provide up to five days of job protection per year for personal sickness or short-term care of an immediate family member. Includes attending to personal emergencies and caregiving responsibilities related to education of a child.
• A new long-term illness and injury leave will provide up to 16 weeks of job protection per year for long-term personal sickness or injury.
• A new bereavement leave to provide up to three days of job protection per year for bereavement of an immediate family member.
• A new domestic violence leave to provide up to 10 days of job protection per year for employees addressing a situation of domestic violence.
• A new citizenship ceremony leave to provide up to a half-day of job protection for employees attending a citizenship ceremony.
• A new death or disappearance of a child leave will provide up to 52 weeks of job protection for employees whose child disappeared as a result of a crime, or up to 104 weeks if a child died as a result of a crime.
• A 30-minute break is required (paid or unpaid) for every five hours of consecutive employment (previously “in excess” of five hours of work).
• Compressed workweeks is renamed “Averaging Agreement” and will require support of the majority of affected employees. Employers and employees will be allowed to agree to average work hours over a period of one to 12 weeks for the purpose of determining overtime eligibility. The agreement may not allow for a workday that exceeds 12 hours or a workweek that exceeds an average of 44 hours.
• The code will restrict employers from deducting wages for faulty work or cash shortages (i.e., “gas and dash” / “dine and dash” scenarios, as previously permitted).
• Overtime agreements will allow time to be banked for six months (previously three months) and overtime banking will be calculated at 1.5 times for ALL hours worked (previously hour for hour).
• All employees will be eligible for general holiday pay and regular and non-regular day of work distinction will be eliminated. Holiday pay will be calculated simply as 5% of wages from previous 4 weeks worked.
• Employees must be paid 4% of their total wages as vacation pay until they have been employed for 5 years after which they must receive at least 6% of their total wages. In addition, half-day vacation increments will be permitted (previously 1 day minimum).
• Employers will be prohibited from forcing employees to use entitlements such as vacation or overtime during a termination notice period, unless agreed to by both parties.
• Employers planning group terminations will have new notice periods, depending on the number of employees in the organization.
  Layoffs will be required to be limited to 60 days within a 120 day period.
• Written notice of a temporary layoff to an employee will be required with effective date and referencing applicable provision of the Code. Recall notices are required to be written.
• Termination pay will be calculated based on the previous 13 weeks of employment when the employee actually worked, not the calendar weeks preceding termination.

Most revisions to the Labour Relations Code (LRC) will come into force upon proclamation. Certain provisions of the LRC related to certification and revocation applications, as well as review of award procedures, came into force on September 1, 2017. Certain provisions related to farm employees in the LRC came into force on January 1, 2018.

2. Alberta Bill 30, occupational health and safety changes
An Act to Protect the Health and Well-being of Working Albertans (Bill 30) amends the Occupational Health and Safety Act (OHSA) to better protect Albertans at work. Most of the changes will come into effect June 1, 2018.

Among other changes, Bill 30 does the following:

It will incorporate in the OHSA the three basic rights of workers in Alberta’s legislation:

1. The right to refuse unsafe work protects workers from any form of reprisal for exercising this right, including loss of compensation or benefits.
2. The right to know ensures workers are informed about potential hazards and have access to basic health and safety information in the workplace.
3. The right to participate ensures workers are involved in health and safety discussions, including participation in health and safety committees.

Employees will also have the right to refuse dangerous work.

As well, amendments will clarify the responsibilities of workplace parties, such as employers, employees, supervisors, contractors, prime contractors, etc.

Changes to the act will enshrine a worker’s right to know about workplace hazards and require all worksite parties to ensure that information on health and safety hazards is provided onsite.

Joint health and safety committees will be required for larger employers (20 or more workers) and smaller employers (5-19 workers) will be required to have a health and safety representative.

Employers with 20 or more workers must have a written health and safety program. The program must be reviewed every three years and include mandated elements. Employers with less than 20 employees must involve workers in hazard assessment and control.

The government must be notified when a serious injury, incident or fatality occurs to ensure it’s adequately investigated to prevent future occurrences.The threshold for reporting a serious injury would be changed to an injury that requires admission to hospital. Employers will be required to report “near misses” (incidents that had the potential to cause a serious injury or incident).

3. British Columbia upcoming changes
The province is re-establishing the British Columbia Human Rights Commission. It held public consultation on the matter in 2017. The results of the public engagement have been summarized and recommendations made. The government is in the process of reviewing these recommendations to bring forward proposals to Cabinet in 2018.

The Fair Wage Commission was established in October 2017 to independently advise government on how to move towards a $15-an-hour minimum wage with increases that are regular, measured and predictable. The government is awaiting recommendations.

4. Manitoba
The Manitoba government is asking provincial residents whether they would support the implementation of health care premiums ahead of the 2018 budget. It is requesting that residents complete an online survey that asks for their views on several issues, including whether the government should impose a health care premium, with all of the money raised going directly into health care. The survey does not specify whether health care premiums would be built into the personal income tax system or collected separately or whether employers would have to deduct and remit the premiums on behalf of their employees.

Manitoba private sector and non-profit sector organizations will have to comply with the customer service accessibility standard by November 1, 2018. The customer service accessibility standard addresses business practices and training requirements to provide better customer service to people with disabilities.

The Manitoba employment accessibility standard that will address practices related to employee recruitment, hiring and retention is expected to be finalized in 2018 with compliance at a later date.

5. Other western matters
Several western provinces are in the process of reviewing their employment standards, labour relations, occupational health and safety and workers’ compensation system. Also, in light of Employment Insurance changes to special EI benefits, provincial governments other than Alberta, may want to align their leave periods with the employment benefits period. As a result, significantly more changes are expected in employment and labour law in the near future.

Atlantic provinces

1. Nova Scotia changes
More than 500,000 people will see their taxes go down slightly after the provincial government increased the basic personal amount in last spring’s budget from $8,481 to $11,481. People making less than $25,000 can claim $11,481, with a sliding scale down to $8,481 for those making up to $75,000. The average annual savings is $160 per person and the maximum is $263, meaning an additional 60,000 people will pay no provincial tax.

In consultation with the disability community, the Nova Scotia government is developing a strategy and implementation plan outlining how the province will achieve an accessible Nova Scotia by 2030. It will be released by the Minister of Justice in September 2018.

2. Prince Edward Island
Prince Edward Island’s minimum wage will remain the highest in Atlantic Canada when it increases by 30 cents to $11.55 per hour on April 1, 2018.

3. New Brunswick
New Brunswick will be observing Family Day (third Monday in February) as a public holiday for the first time this year.

5. Other Atlantic matters
Several Atlantic provinces are in the process of reviewing their employment standards, labour relations, occupational health and safety and workers’ compensation system. Also, in light of Employment Insurance changes to special EI benefits, provincial governments other than Alberta, may want to align their leave periods with the employment benefits period. In addition, Newfoundland and Labrador is reviewing its income tax system and law. As a result, significantly more changes are expected in employment and labour law in the near future.

Quebec

In Quebec, the province announced plans to make four wage increases over the next four years, bringing the minimum wage up to $12.45 per hour by 2020. In addition, the government stated that it is looking at policies that improve the “work-life balance” of young families that may require changes to the Quebec Labour Standards Code.

Starting in January 2018, the Quebec government is imposing new rules for Uber drivers in the province. Uber drivers will have to undergo police background checks and 35 hours of training. Uber initially balked at those regulations and threatened to pull out of the province, but the ride-sharing company decided to stay after meetings with Quebec’s transport minister.

The Quebec government is also making significant changes to the Quebec Pension Plan in line with changes already enacted for the Canada Pension Plan effective January 1, 2019.

Last words

There is much more, but we cannot cover it all in this one blog post. However throughout 2018, regularly check in with Slaw to obtain discussions on the above and upcoming changes and much more that regular and guest contributors will be posting.