1. CANADIAN EMPLOYMENT LAW
101 FOR U.S. LEGAL & HR
Updated March 2013
Kristin Taylor
(416) 860-2973
ktaylor@casselsbrock.com

2. Key differences: U.S. vs. Canadian Employment Law:
1. Statutory requirements
2. The Employment Contract
3. Human rights differences generally and in three key
areas:
a) Disability
b) Age
c) Family Obligations
4. Privacy
slide | 2

3. 1. Statutory Requirements
● Under Canada's constitution, jurisdiction over
employment law is given to the provinces, except with
respect to federal government and certain industries with
national implications (inter-provincial transportation,
banks, telecommunication companies). Presumption is
that employers are regulated by the province in which
they are operating.
● Each province has its own web of statutes and
regulations that apply including minimum employment
standards; labour relations; human rights; workers'
compensation; health and safety and, in some
jurisdictions, pay equity. Certain provinces also have
privacy legislation.
slide | 3

4. 1. Statutory Requirements
● Employment Standards Minimums —similar to FLSA,
these are different in each Canadian jurisdiction.
● Any attempt or agreement to contract out of an
employment standards minimum is deemed to be void.
The provision then will default to either the minimum or
common law.
slide | 4

5. 1. Statutory Requirements
a) Minimum Wage
● $10.25 / hour
● $9.60 / hour for students under 18, if weekly hours are
more than 28 hours or if employed during a school break.
slide | 5

6. 1. Statutory Requirements
b) Leaves of Absence
● Leaves are job-protected. The employee must be
reinstated in the position most recently performed, if it
exists. If the position does not exist, a comparable position
is required. There is an exception for terminations “solely
for reasons unrelated to the leave”.
● Service is deemed to be active, seniority is protected and
benefits must continue during these leaves.
● All leaves are unpaid.
slide | 6

7. 1. Statutory Requirements
Pregnancy and Parental Leaves
● Birth mothers are entitled to 17 weeks of pregnancy and
35 weeks of parental leave that run consecutively for a
maximum of 52 weeks in duration.
● Birth fathers and adoptive parents are entitled to 37 of
parental leave to be started no later than 52 weeks after
the birth or child coming into care, custody or control.
● Six weeks of leave provided post-miscarriage or still birth.
● Two weeks' notice is required to take either leave. Four
weeks’ notice is required to change the end date of either
pregnancy or parental leave.
slide | 7

8. 1. Statutory Requirements
Pregnancy and Parental Leaves
● Employment Insurance (EI) provides for 17 weeks of
pregnancy benefits and 35 weeks of child care benefits
less a two week waiting period. Child care benefits must
be split between parents.
● The current rate of El benefits is 55% of average weekly
earnings to a maximum of $501 per week.
slide | 8

9. 1. Statutory Requirements
Personal Emergency Leave
● For Ontario employers with 50 or more employees:
10 days per calendar year per employee for
● personal injury, illness or medical emergency, or
● death, injury, illness, medical emergency or urgent matter
relating to a family member.
● Family member is broadly defined.
slide | 9

10. 1. Statutory Requirements
Family Medical Leave
● Up to eight weeks in a 26 week period to provide care or
support to a family member whom a qualified health
practitioner certifies has a serious medical condition with
a significant risk of death occurring in 26 weeks. El
benefits also provided, again less a two-week period.
slide | 10

11. 1. Statutory Requirements
Other Leaves of Absence
● Organ Donor Leave — up to 13 weeks, unless medically
extended for another 13 weeks
● Declared Emergency Leave
● Reservist Leave — for deployment with Canadian
Forces, unlike other leaves, no entitlement to benefits
● Proposed Leaves: Family Caregiver Leave – up to
eight weeks per year for serious medical conditions;
Critically Ill Childcare Leave – up to 37 weeks; and
Crime-Related Child Death or Disappearance Leave –
up to 104 weeks
slide | 11

12. 1. Statutory Requirements
c) Public Holidays
● Nine in Ontario: New Year's Day, Family Day (3rd Monday
in February), Good Friday, Victoria Day (3rd Monday in
May, Canada Day (July 1), Labour Day, Thanksgiving (2nd
Monday in October), Christmas and Boxing Day (December
25 & 26).
● The Civic Holiday (1st Monday in August) is commonly
provided by employers, but not statutorily required.
slide | 12

13. 1. Statutory Requirements
c) Public Holidays
● Public holiday pay = wages earned in the four work prior to
the work week in which the public holiday divided by 20.
● Employees who work the public holiday are entitled to a
regular pay and a substitute holiday or, if the employee
agrees, regular wages + public holiday pay plus premium
(1.5) for hours worked on the public holiday.
slide | 13

14. 1. Statutory Requirements
d) Vacancies and Vacation Pay
● Employees accrue vacation time (2 weeks after every 12 of
months of service) and vacation pay (4% of total wages).
Wages is defined as including just salary, but bonus,
commission, incentive pay and other monetary payment
payable by an employer to an employee under a contract of
employment.
● Two problems arise with correlating to U.S. practices (1)
wages vs. base salary, and (2) accrual during leaves vs.
unpaid time.
slide | 14

15. 1. Statutory Requirements
e) Hours of Work and Overtime
● In Ontario, employees cannot work more than (a) 8 hours
per day or their regularly scheduled hours and (b) 48 per
week, without Ministry approval. Ministry approval requires
application and the employee's written agreement.
● Overtime is payable after 44 hours per week at the time
and a half.
slide | 15

16. 1. Statutory Requirements
f) Termination Obligations
● On termination without cause, employees are entitled to
notice or pay and benefits in lieu equal to:
 3 months to 1 year of service 1 week
 1 to less than 3 years' service 2 weeks
 3 to less than 4 years' service 3 weeks
 4 to less than 5 years' service 4 weeks
 5 to less than 6 years' service 5 weeks
 6 to less than 7 years' service 6 weeks
 7 to less than 8 years' service 7 weeks
 8 years' service or more 8 weeks
slide | 16

17. 1. Statutory Requirements
f) Termination Obligations
● In the event of mass terminations within four weeks or less,
additional notice is required for all employees irrespective
of years of service and a Form 1 must be filed with
Ontario’s Ministry of Labour
● If 50 to 199 employees are terminated, 8 weeks’ notice
● If 200 to 499 employees are terminated, 12 weeks’
notice
● If 500 or more employees are terminated, 16 weeks’
notice
slide | 17

18. 1. Statutory Requirements
f) Termination Obligations
● Severance pay is an additional entitlement for employees
who have 5 years of service or more and whose employers
have an annual Ontario payroll of $2.5M or more. Pay
equates to an additional week or part thereof for each
completed year of service or part thereof to a maximum of
26 weeks. Severance pay cannot be worked out.
Severance pay must be paid as a lump sum, unless the
employee agrees otherwise.
slide | 18

19. 2. The Employment Contract
● In Canadian common law jurisdictions, every employment
is a “contract” of employment as soon as an employment
offer been accepted.
● The employment contract is a compilation of:
● express terms from formal agreements, policies, plans
and handbooks; and
● implied terms from statutes, regulations and common
law that are implied by the courts.
● Employers cannot contract out of statutory requirements.
Employers can contract out of terms that would be
implied by the courts under common law and are well
advised to do so.
slide | 19

20. 2. The Employment Contract
● Key provision implied under common law is that the
employment is indefinite and may only be terminated with
“reasonable notice”. Reasonable notice invariably
exceeds the employment standards minimum. At-will
employment does not exist because of these minimums.
● Reasonable notice is a function of:
a. age
b. length of service
c. character of employment (position, comp)
d. prospects for alternate employment
e. if applicable, enticement.
slide | 20

21. 2. The Employment Contract
● Reasonable notice is based on total compensation and
benefits of what the employee is likely to have earned
and been entitled to had he/she continued to work for the
reasonable notice period. Unless incentive plans and
stock option plans have specific Canadian language, the
termination date in such plans is read to mean the end of
the reasonable notice period not the date on which the
employee is notified of termination.
slide | 21

22. 2. The Employment Contract
● Duties of confidentiality, fidelity and good faith are implied
on the part of employees. Senior executives also have
fiduciary duties, including a heightened duty to avoid
conflict of interest and a duty not to compete unfairly
post-termination.
● Non-solicitation and non-competition clauses must be in
writing as they will not be implied. Non-competition
clauses are only enforced in “exceptional” circumstances
generally involving shareholders or fiduciaries who
personify the business to the public.
● Reasonableness of geography, duration and scope of
activity prohibited are essential for both non-solicitation
and non-competition covenants.
slide | 22

23. 2. The Employment Contract
● Benefits to the Employment Contract:
● Can contract to limit liability and protect employer's
interests.
● Punitive damages awards are rarely awarded. Two part
test: (a) commission of independently actionable wrong
(e.g., defamation, conspiracy), employer's conduct warrants
the condemnation of the court.
● Disadvantages to the Employment Contract:
● Individual termination awards are more expensive.
● Plaintiff lawyers look for torts to circumvent the contract.
Actions by employer must be egregious though.
slide | 23

24. 3. Human Rights Differences
● No over-arching federal laws. No affirmative action Iaw
except for federally-regulated employers or federal
contractors. Each jurisdiction has its own human rights
statute that addresses all prohibited grounds of
discrimination and provides administrative framework
and tribunal for recourse.
● Ontario employees now can sue for discrimination or
harassment in conjunction with another cause of action.
The former cap of $10,000 on damages for mental
anguish has been removed. Complaints now proceed
directly to Human Rights Tribunal of Ontario — i.e., there
are no investigations or discovery pre-hearing.
slide | 24

25. 3. Human Rights Differences
a) Disability
Definition
● any degree of physical disability, infirmity, malformation,
disfigurement that is caused by bodily injury, birth
defect, illness and, without limiting the generality of the
foregoing, includes diabetes mellitus, epilepsy, a brain
injury, any degree of paralysis, amputation, lack of
physical co-ordination, blindness or visual impediment,
deafness, hearing impediment, muteness or speech
impediment, physical reliance on a guide dog or other
animal or wheel chair or other remedial appliance or
device,
slide | 25

26. 3. Human Rights Differences
a) Disability
Definition
● a condition of mental impairment or a developmental
disability,
● a learning disability or a dysfunction in one or more
processes involved in understanding or using symbols
or spoken language,
● a mental disorder, or
● an injury or disability for which benefits were claimed or
received under the insurance plan established by the
Workplace Safety and Insurance Act, 1997.
slide | 26

27. 3. Human Rights Differences
a) Disability
● Ever expanding definition:
 migraines
 addictions: drugs and alcohol, nicotine, pornography (!)
 stress
 obesity
slide | 27

28. 3. Human Rights Differences
a) Disability
● Alcohol and drug addictions have long been recognized as
disabilities that require accommodation. Perceived (but not
necessarily actual) addiction is also a disability.
● Pre-employment testing for drugs or alcohol is prohibited
except, in very limited circumstances as a condition of
employment for safety-sensitive positions as part of an
overall policy. No automatic withdrawals of offers are
allowed.
slide | 28

29. 3. Human Rights Differences
b) Age
● No heightened protections after age 40. Older employees
generally are entitled to more notice / severance.
● Since December 2006, mandatory retirement at age 65 has
been prohibited.
slide | 29

30. 3. Human Rights Differences
c) Family Status
● There is a duty to accommodate to the point of undue
hardship an employee’s childcare or eldercare obligations.
● There currently are three competing tests:
(1) From the B.C. Court of Appeal: if an employer has a
“substantial parenting obligation”
(2) From the Human Rights Tribunal of Ontario: if an
employee has an obligation, as opposed to a
preference
(3) From the Federal Court: all parenting obligations
require accommodation
slide | 30

31. 4. Privacy
● Federally-regulated employers and employers in British
Columbia, Alberta and Quebec have heightened
obligations in connection with their collection, use, and
disclosure of their employees’ “personal” information.
Consent must be secured to use personal information for
a purpose not originally identified, proper safeguards
must be in place, etc.
● In Ontario, employees' personal health information is
protected by statute and the tort of invasion of privacy
has been recognized and nominal damages awarded.
slide | 31

32. 4. Privacy
● Adjudicators have imposed limits on the ability of
employers to use surveillance both within and outside the
workplace.
● Privacy garners a great deal of media coverage. For
example, medical records used on a film set to mimic
9/11 and from a major bank with visa information
intended to be destroyed internally but inadvertently
forwarded to a scrap yard in Virginia have grabbed
national headlines.
● Employees believe that they have rights, even if they
technically don’t.
slide | 32

33. © 2011 CASSELS BROCK & BLACKWELL LLP.
CASSELS BROCK AND THE CB LOGO ARE REGISTERED TRADE-MARKS OF CASSELS BROCK & BLACKWELL LLP.
ALL RIGHTS RESERVED.