In 2024, Canada saw significant legislative and case law developments in labour and employment law. This Insight provides an overview of notable developments and links to our more detailed articles and commentary.

Legislative Developments

Federal

1. CLC Amendments Strengthen Prohibition Against Misclassification of Workers and Require Federally Regulated Employers Implement Disconnecting from Work Policy 

On June 20, 2024, Bill C-69, Budget Implementation Act, 2024, No. 1, was enacted. Among other things, Bill 69 strengthened the prohibition in the Canada Labour Code (CLC) against misclassification by adding the following to Parts I and II of the CLC (and by making similar amendments to Part III of the CLC):

• A presumption that a person who is paid remuneration by an employer is their employee unless the employer proves otherwise (i.e., the burden of proof is on the employer);
• A prohibition against employers treating an employee as if they were not their employee; and
• A complaint process to be used by employees when the presumption and prohibition are contravened.

These amendments, which came into force on June 20, 2024, challenge an employer’s ability to characterize workers, including gig workers, as independent contractors, thereby making the rights, protections, and entitlements of employees under the CLC, accessible to them (unless the employer proves these workers are not their employees).

Bill C-69 also requires federally regulated employers to implement a Disconnecting from Work Policy. This requirement has not been proclaimed in force; however, when it is, employers will have one year to create their policies.

For detailed information, read this Littler publication.

2. Ban on Use of Replacement Workers in Strikes or Lockouts in Federally Regulated Workplaces to Become Effective on June 20, 2025

On June 20, 2024, Canada enacted Bill C-58, An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012, which will come into force on June 20, 2025.

Among other things, Bill 58 amends the CLC by banning an employer’s use of replacement workers during a strike or lockout in federally regulated workplaces, subject to certain narrow exceptions.

Bill C-58 also creates a complaint process and penalties for unions that believe an employer was illegally using replacement workers.

For detailed information, read this Littler publication.

Ontario

3. Bill 149 – Working for Workers Four Act, 2024 Receives Royal Assent and Amends Key Statutes

On March 21, 2024, Ontario’s Bill 149 – Working for Workers Four Act, 2024 received Royal Assent. Among other things, Bill 149 amends the Employment Standards Act, 2000 (ESA), the Workplace Safety and Insurance Act, 1997 (WSIA) and the Digital Platform Workers’ Rights Act, 2022 (DPWRA).

With respect to the ESA, Bill 149:

• amends the definition of “employee” to indicate that work performed during a trial period would be included within the meaning of “training”;
• adds Part III.1 to the ESA, which sets out requirements and prohibitions related to the content of publicly advertised job postings¹;
• amends the requirements regarding the payment of wages by direct deposit to provide that accounts for direct deposit need to be selected by the employee;
• prohibits employers from deducting an employee’s wages where a customer of a restaurant, gas station or other establishment leaves the establishment without paying for the goods or services taken from, consumed at, or received at the establishment;
• adds a new provision that provides that an employer must pay an employee’s tips or other gratuities by cash, cheque payable only to the employee, or direct deposit into an account of a financial institution;
• requires employers to retain or arrange for some other person to retain certain records; and
• provides that alternative vacation pay arrangements must be “set out in an agreement” made by the employee with the employer.

Bill 149’s amendments to the ESA came into force on March 21, 2024, with exceptions. Some of these excepted ESA amendments came into force on June 21, 2024, including those:

• regarding the payment of employee tips or other gratuities;
• made to the vacation pay provisions; and
• clarifying the direct deposit provisions.

With respect to Bill 149’s amendments to WSIA, Bill 149 adds primary-site esophageal cancer to the diseases presumed to be occupational diseases that occur due to the nature of a worker’s employment as a firefighter or fire investigator on certain conditions, and adds a new section, which enables “super indexing” increases to Workplace Safety and Insurance Board benefits.

Finally, Bill 149’s amendments to the DPWRA provide that specified matters could be prescribed by regulation.

Bill 149’s amendments to the WSIA and the DPWRA are not currently in force. They will take effect in the future on proclamation.

For detailed information, read Litter publications dated November 16, 2023, September 11, 2024, and December 10, 2024.

4. Bill 190 – Working for Workers Five Act, 2024 Receives Royal Assent and Amends the ESA, OHSA and WSIA

On October 28, 2024, Ontario’s Bill 190, Working for Workers Five Act, 2024 (Bill 190), received Royal Assent. Among other things, Bill 190 amends the ESA, Occupational Health and Safety Act (OHSA), and WSIA.

Many of Bill 190’s amendments to the ESA became effective on October 28, 2024, including those that prohibit an employer from requiring an employee to provide a certificate from a “qualified health practitioner” as evidence that the employee is entitled to sick leave under the ESA, that increase fines for individuals convicted of an offence under the ESA, and that add regulation-making authority with regard to specific aspects of publicly advertised job postings.

Bill 190 amended the ESA by requiring employers to disclose in publicly advertised job postings whether the posting is for an existing vacancy or not to be included in the posting and adding requirements relating to applicant interviews.²

Many of Bill 190’s amendments to the OHSA came into force on October 28, 2024, including those that address:

• the OHSA’s application to telework performed in private residences;
• the expansion of the definitions of “workplace harassment” and “workplace sexual harassment”;
• the removal of the requirement that joint health and safety committees meet at the “workplace”; and
• an employer’s or constructor’s right to post committee information in electronic format and related requirements.

Bill 190 also amended the OHSA to require employers and constructors on construction projects to ensure that any washroom facility they provide for workers are maintained in a clean and sanitary condition, and keep, maintain, and make available records of the washroom facility’s cleaning. It was recently proclaimed that the amendments that relate to these requirements will come into force on July 1, 2025. Furthermore, on November 29, 2024, Ontario filed Regulation 480/24 – Washroom Facilities – Records of Cleaning and Regulation 482/24 – Washroom Facilities – Construction Projects, which will come into force on January 1, 2026.

Finally, Bill 190’s amendments to the WSIA apply narrowly to firefighters. The first, which relates to their entitlement to benefits under the insurance plan for post-traumatic stress disorder, became effective on October 28, 2024. The second, which relates to a presumption that primary skin cancer is an occupational disease, will become effective on proclamation on a date in the future.

For detailed information, read Littler Publications dated October 31, 2024, December 10, 2024, and December 11, 2024.

5. Bill 229 – Working for Workers Six Act, 2024 Receives Royal Assent

On December 19, 2024, Ontario’s Bill 229, Working for Workers Six Act, 2024 received Royal Assent.

Bill 229 amends the ESA to add an unpaid Child Placement Leave (to be proclaimed in force) and an unpaid Long-Term Illness Leave for eligible employees (in force on June 19, 2025).

Bill 229 also amends the OHSA, including by requiring employers to ensure that personal protective clothing and equipment that is provided, worn, or used is a proper fit and appropriate in the circumstances, setting a minimum fine of $500,000 for corporations convicted of a second or subsequent offence that results in the death or serious injury of one or more workers in a two-year period, and providing the Minister with the power to make orders regarding worker trades committees. All Bill 229 amendments to the OHSA became effective on December 19, 2024, except for the amendment providing the Minister with the power to make orders regarding worker trades committees, which became effective on January 1, 2025.

Finally, Bill 229 amends the WSIA, including by adding specific cancers to the diseases presumed to be occupational diseases that occurs due to the nature of a worker’s employment as a firefighter or fire investigator, and requiring the distribution of surplus amounts in the workplace safety and insurance board funds to a Schedule 2 employer that is a municipality, if certain prescribed requirements are met, and subject to prescribed exceptions. Both amendments to the WSIA are to be proclaimed in force.

For detailed information, read this Littler publication.

6. Ontario Announces Effective Date and New Regulations Governing Bill 149’s and Bill 190’s ESA Amendments Relating to Publicly Advertised Job Postings and Accompanying Recordkeeping Obligations

As discussed above, Ontario’s Bill 149, Working for Workers Four Act, 2024 and Bill 190, Working for Workers Five Act, 2024 both amended the ESA by, among other things, setting out requirements and prohibitions related to the content of publicly advertised job postings in a new Part III.1 of the ESA, and creating complementary amendments to the ESA’s recordkeeping requirements. These ESA amendments will become effective on January 1, 2026.

Generally, covered employers (i.e., employers with 25 or more employees) will be required to provide information about expected compensation or range of expected compensation in publicly advertised job postings, inform interviewed applicants of hiring decisions, and disclose whether artificial intelligence is used in the hiring process, among other obligations. Employers may not include in the posting or in any associated application form any requirements related to Canadian experience; however, they must include in the posting a statement disclosing whether it is for an existing vacancy.

Significantly, the job posting requirements and prohibitions set out in Part III.1 of the ESA will not apply to employers that employ fewer than 25 employees on the day the publicly advertised job posting is posted.

Furthermore, on January, 1, 2026, the regulation implementing these requirements, O. Reg. 476/24: Rules and Exemptions re Job Postings (Regulation), will also come into force. The Regulation:

• defines a “publicly advertised job posting”;
• establishes what are not “publicly advertised job postings”;
• defines “compensation”;
• indicates when the requirement to include in publicly advertised job posting information about “expected compensation” or “range of expected compensation” will not apply;
• stipulates that for the purposes of the requirement to post a range of expected compensation, the range must not exceed $50,000;
• specifies the prescribed time period within which an employer must provide an applicant for a publicly advertised job posting information, what that information is, and how it must be provided;
• defines an “interview” for the purpose of the duty to inform applicants; and
• defines “artificial intelligence” for the purpose of the use disclosure statement that every employer that advertises a publicly advertised job posting and uses artificial intelligence to screen, assess or select applicants for the position must include in the posting.

For detailed information, read this Littler publication.

7. Digital Platform Workers’ Rights Act, 2022 Proclaimed to be Coming into Force on July 1, 2025

On September 5, 2024, the Ontario government proclaimed that the new DPWRA will come into force on July 1, 2025.

The DPWRA establishes rights for gig workers who perform “digital platform work” (i.e., “provision of payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform” but not including taxicab or limousine services), and obligations for “operators” (i.e., a person that facilitates, through the use of a digital platform, the performance of digital platform work by workers).

With respect to enforcement, compliance officers will have the power to inspect places and documents without a warrant to ensure compliance with the DPWRA, subject to specified limitations. They may also order operators to pay gig workers amounts owed to them, or compensation for loss in cases of reprisal or retaliation, in addition to an administrative cost. A complaint system for non-compliance will be set up.

O Reg 344/24 (Regulation), which contains further rules and obligations, will also come into force on July 1, 2025.

The DPWRA and the Regulation provide for penalties for contraventions and the government may make contraventions public. The DPWRA provides for quasi-criminal offences, punishable by a fine.

For detailed information, read this Littler publication.

8. Regulation Lists Information Certain Employers Must Provide in Writing to Employees Starting July 1, 2025

On November 29, 2024, Ontario published Regulation 477/24 – When Work Deemed to be Performed, Exemptions and Special Rules (Regulation), which comes into force on July 1, 2025. The Regulation was made possible by Bill 79, Working for Workers Act, 2023, which amended the ESA to authorize the government to make regulations prescribing information that must be provided to “employees and prospective employees” regarding rates of pay, work location and hours of work.

The Regulation lists information an employer with 25 or more employees (including the newly hired employee) on the employee’s first day of work must provide to an employee in writing before the employee’s first day of work or, if it is not practicable to do so, as soon after that day as is reasonably possible.

For detailed information, read this Littler publication.

Other Provinces

9. British Columbia’s Amendments to Employment Standards Act and Workers Compensation Act Pertaining to Online Platform Workers Came into Force

On September 3, 2024, amendments to British Columbia’s Employment Standards Act (ESA) and Workers Compensation Act (WCA) pertaining to online platform workers (i.e., app-based ride-hailing and food-delivery gig workers) came into force. They:

• add a definition of "online platform worker" to the definitions sections of the ESA and the WCA;
• provide that for the purposes of the ESA and the WCA, an online platform worker is to be considered an employee, and the operator of the online platform through which an online platform worker accepts prescribed work is to be considered the online platform worker’s employer; and
• amend the ESA and the WCA to provide that the Lieutenant Governor in Council may make regulations “respecting online platforms and work accepted through online platforms.”  

For detailed information, read this Littler publication.

10. Prince Edward Island’s New Paid Sick Leave Program Comes into Force

On October 1, 2024, Prince Edward Island’s Bill 106, An Act to Amend the Employment Standards Act, came into force. Bill 106 establishes a new paid sick leave program in Prince Edward Island, which provides that employees may earn up to three days of paid sick leave.

For detailed information, read this Littler publication.

11. Manitoba’s Amendments of its Labour Relations Act and Employment Standards Code Came into Force

On November 8, 2024, Manitoba’s Bill 37, The Budget Implementation and Tax Statutes Amendment Act, 2024 and Bill 9, The Employment Standards Code Amendment Act, came into force. Bills 37 and 9 amend Manitoba’s Labour Relations Act (LRA) and The Employment Standards Code (ESC), respectively. The amendments to the LRA address union certification, the use of replacement workers, and continuation of essential services during a lockout or strike. The amendments to the ESC extend the length of leave for serious injury or illness from 17 weeks to 27 weeks.

For detailed information, read this Littler publication.

Case Law Developments

Enforceability of Termination Clauses

12. Ontario: Court of Appeal Affirms Invalid Termination Clause Does Not Invalidate Fixed-Term Clause

In Kopyl v. Losani Homes, 2024 ONCA 199, the Court of Appeal for Ontario (OCA) affirmed the lower court’s finding that an invalid without-cause termination clause in an employment agreement does not invalidate a fixed-term clause, and that a fixed-term clause is not a termination clause. The OCA held further that upon the termination of an employee’s employment prior to a fixed term’s expiration, the employee will be entitled to receive the compensation they would have earned to the end of the fixed term, and they will have no duty to mitigate.

For detailed information, read this Littler publication.

13. British Columbia: Court of Appeal Affirms Enforceability of Termination Clause That Incorporated by Reference Notice and Severance Provisions of CLC

In Egan v. Harbour Air Seaplanes LLP, 2024 BCCA 222, the British Columbia Court of Appeal (BCCA) upheld a lower court’s decision that a termination clause in an employment agreement was enforceable because it was neither ambiguous nor non-compliant with the CLC. The employee’s employment contract contained a termination clause, which incorporated by reference the notice and severance provisions of the CLC.

For detailed information, read this Littler publication.

14. Ontario: Court Upholds Clause Limiting Employee’s Termination Rights to Minimums Under Employment Standards Legislation

In Bertsch v. Datastealth Inc., 2024 ONSC 5593, the Ontario Superior Court of Justice (OSCJ) dismissed an employee’s claim for common law reasonable notice of termination on a Rule 21 motion. The court held this was an appropriate case for a Rule 21 motion and that the termination clause, which excluded the employee’s entitlement to common law notice and limited his entitlement to the minimums under the Ontario ESA, was clear and enforceable.

For detailed information, read this Littler publication.

15. Ontario: Court of Appeal Agrees “For Cause” Termination Provision Was Unenforceable Because it Did not Comply with ESA’s Minimum Standards

In Dufault v. Ignace (Township), 2024 ONCA 915, the OCA applied Waksdale v. Swegon North America Inc., 2020 ONCA 391 when it upheld the OSCJ’s finding that the “for cause” termination provision in an employee’s fixed-term employment contract was illegal and unenforceable because it did not comply with the ESA. The OCA also upheld the OSCJ’s finding that the employee had been wrongfully dismissed and was entitled to damages equal to the remaining term of the contract.  

The OCA denied the employer’s request to convene a five-judge panel to reconsider Waksdale. Although termination of the employee’s employment was without cause, the OCA decided the appeal solely on the basis that the “for cause” termination clause did not comply with minimum standards in the ESA. The OCA did not believe it was necessary to consider whether the “without cause” termination clause complied with minimum ESA standards because, pursuant to Waksdale, the unenforceability of the “for cause” termination clause rendered all termination clauses in the employment agreement unenforceable.

For detailed information, read this Littler publication.

Frustration of Contract Defence in Circumstances Connected to COVID-19

16. British Columbia: Court of Appeal Rejects Employer’s Frustration of Contract Defense in Circumstances Connected to COVID-19

In Aldergrove Duty Free Shop Ltd. v. MacCallum, 2024 BCCA 28, the BCCA dismissed an employer’s appeal when it agreed with the lower court that the employer could not use the frustration of contract defense against an employee’s claim that she was wrongfully dismissed in circumstances connected to COVID-19, when the employer laid her off without notice or severance.

For detailed information, read this Littler publication.

17. Ontario: Court of Appeal Confirms Employment Contract Frustrated by Employee’s Refusal to Comply With COVID-19 Vaccination Policy Imposed on Employer by Third Party

Croke v. VuPoint System Ltd., 2024 ONCA 354, the OCA upheld the lower court’s summary judgment decision that an employee’s refusal to comply with their employer’s mandatory COVID-19 vaccination requirements resulted in the frustration of the employment relationship. The employer was therefore entitled to terminate the employee’s employment without providing notice of termination under the ESA or damages in lieu of common law reasonable notice.

For detailed information, read this Littler publication.

Supreme Court of Canada

18. Supreme Court of Canada Offers Potential Insight into Privacy Rights for Private-Sector Employees

In York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, the Supreme Court of Canada (SCC) provided recommendations for how an alleged breach of an employee’s right to privacy under the Canadian Charter of Rights and Freedoms should be analyzed. Although the SCC did not explicitly reference the reasonable expectation of privacy in private-sector workplaces, the analysis undertaken in the case may be worthy of consideration in the private-sector context.

For detailed information, read this Littler publication.

Miscellaneous OCA Decisions

19. Ontario: After Court of Appeal Decision, Government Repeals Bill 124, the Protecting a Sustainable Public Sector for Future Generations Act, 2019 in its Entirety

Bill 124, the Protecting a Sustainable Public Sector for Future Generations Act, 2019, limited wage increases for 780,000 workers in the broader public sector to 1% per year for a three-year moderation period. In Ontario English Catholic Teachers Association v. Ontario (Attorney General), 2024 ONCA 101, the majority of the OCA found that Bill 124 substantially interfered with collective bargaining rights in violation of section 2(d) of the Canadian Charter of Rights and Freedoms and declared it invalid. On February 23, 2024, Ontario repealed Bill 124 in its entirety.

For detailed information, read this Littler publication.

20. Ontario: Court of Appeal Finds Aggravated Damages Award Can Be Made Without Medical Evidence of Diagnosable Psychological Injury

In Krmpotic v. Thunder Bay Electronics Limited, 2024 ONCA 332, the OCA held that an employee may be awarded aggravated damages for an employer’s bad-faith conduct during the employee’s dismissal even in the absence of medical evidence identifying a diagnosable psychological injury. The OCA also rejected the notion that expert medical evidence is required to show whether a terminated employee is physically incapable of mitigating their damages during a reasonable notice period.

For detailed information, read this Littler publication.

21. Ontario: Court of Appeal Provides Guidance to Employers on How to Draft Employment Settlement Documents

Preston v. Cervus Equipment Corporation, 2024 ONCA 804, the OCA found that Minutes of Settlement and a Release and Indemnity executed by an employee after he was terminated from his employment prevented him from suing for the value of his vested stock units. Cervus Equipment demonstrates how employers that settle wrongful dismissal claims can ensure that settlement documents release them from all possible claims arising from the employment relationship and its cessation.

For detailed information, read this Littler publication.

Miscellaneous OSCJ and OSCJ (Div. Ct.) Decisions

22. Ontario: OSCJ Awards Retired VP $1.8 Million in Damages for Unpaid Vacation, Deferred Bonus and Unvested Stock Options

Although the underlying claim for constructive discharge was dismissed in Boyer v. Callidus, 2024 ONSC 20, the OSCJ nevertheless found that an employee was entitled to $1.8 million in damages for unpaid vacation, bonuses, and stock options, because the terms of the relevant policies were not clearly communicated to him in his employment agreement or by any other means.

For detailed information, read this Littler publication.

23. Ontario: OSCJ (Divisional Court) Confirms Unionized Workplaces May Pursue Human Rights Claims Before Labour Arbitrator or Human Rights Tribunal

In London District Catholic School Board v. Weilgosh, 2024 ONSC 38, the OSCJ, Divisional Court rejected an employer’s argument that the Human Rights Tribunal of Ontario (Tribunal) lacked jurisdiction to hear its case because labour arbitrators appointed under Ontario’s Labour Relations Act, 1995 have exclusive jurisdiction to decide human rights complaints arising from disputes under a collective agreement. The Tribunal had found it has concurrent jurisdiction over human rights issues that arise in a unionized workplace and, accordingly, unionized employees may choose to pursue human rights claims through labour arbitration or through the Tribunal.

For detailed information, read this Littler publication.

Arbitration Decisions

24. Arbitrators Consider Interaction Between Paid Leave Days under Employer-Paid Benefits Plan or Collective Agreement & Leave Entitlements Under the CLC

In United Steelworkers Local 14193 v. Cameco Fuel Manufacturing Inc., 2023 CanLII 115899 (ON LA), an arbitrator dismissed a union’s policy grievance on the grounds that, contrary to the union’s assertion, the employer could count approved sick days paid at 100% of weekly earnings under its short-term disability benefits plan as paid medical leave days under the CLC.

In Teamsters Local Union 987 of Alberta v Purolator Inc., 2024 CanLII 21937 (CA LA), an arbitrator dealt with a clash between the amount of leave days under a unionized employer’s collective agreements (CA) and the leave entitlements under the CLC. The arbitrator sided with the union when he determined that the CLC entitlements to medical and personal leave are different from the entitlement to the personal leave under the CA.

For detailed information, read Littler publications dated March 4, 2024 and April 15, 2024.

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Littler LLP looks forward to following the evolution of labour and employment law in Canada in 2025. We will continue to report on important developments.