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Is review of Ontario labour legislation first 'shot across the bow' ?

|Written By Aidan Macnab
Is review of Ontario labour legislation first 'shot across the bow' ?
Danny Kastner of Kastner Law says labour and employment lawyers are in a 'wait-and-see' position over status of legislation.

Lawyers say the Ontario government’s plan to review and possibly reverse its predecessor's labour and employment reforms is a regressive move on necessary changes in the province.

“What, frankly, is worrying my union clients is whether this is the first shot across the bow,” says Donald Eady, partner at Paliare Roland Rosenberg Rothstein LLP. “Are they going to repeal all of the changes and then make things even worse later on? I don't know. You can't tell what this government's doing.”

Last week, Premier Doug Ford told the Ontario legislature that his government would eliminate the Fair Workplaces, Better Jobs Act, also known as Bill 148. The government later said the act was "under review."

Following a campaign promise, Ford’s government says that the minimum wage, which was supposed to be raised to $15 an hour on Jan. 1, 2019, will be frozen at the current $14 an hour. Bill 148 increased the minimum wage to $14 from $11.60 at the beginning of this year. To keep it at $14, the provincial Progressive Conservatives will first have to pass legislation to that effect.

Labour and employment lawyers say they are in a “wait-and-see position,” unable to advise their clients with only “vague public statements from the premier” to know what the outcome will be, says Danny Kastner, partner at Kastner Law and former chairman of the labour and employment section of the Ontario Bar Association.

“Without predictability and consistency, it becomes exceedingly difficult to give advice, especially to institutional or employer clients,” he says. “So, at the moment, lawyers like myself are left telling our clients that we don't know what the future will bring.”

For those advising businesses on compliance with labour standards, the government’s path pulls the rug out from under those who have spent time and money implementing Bill 148 into their operations, says Samantha Seabrook of Seabrook Workplace Law.

“Ontario needs stability in our labour and employment legislation. We went through major legislative changes in recent years. Employers have spent good money preparing for those changes and will now have to spend additional money to prepare for more change. Ontario employers need a well-thought-out plan that both encourages business growth and makes employment legislation accessible to all,” she told Legal Feeds via email.

Bill 148 was enacted in 2017 and amended the Ontario Employment Standards Act, the Labour Relations Act and the Occupational Health and Safety Act. The act’s changes included raising the minimum wage, increasing paid sick days and mandating “equal pay for equal work” where, regardless of whether it is part time, full time, temporary, seasonal or casual, workers of all statuses are paid the same if performing “substantially the same work.”

Bill 148 also increased leave for certain medical and family emergencies, required that workers on call be paid for three hours whether they are called or not and an extra week of vacation for employees in the position for more than five years.

The legislation was meant to reverse some restrictions on unions put in place under former Ontario premier Mike Harris and reflect the modern, more precarious work arrangements common today, says Kastner.

“Certainly, from the perspective of my union clients and my employee clients, these were very welcome reforms,” he says.

“I certainly hope that whatever Ford intends to do that the provincial government will keep in mind that change is very much needed,” he says.

Eady says Bill 148 was the product of extensive consultation with labour and employment lawyers on both the employee and employer side.

In 2015, Minister of Labour Kevin Flynn appointed then labour and employment lawyers Michael Mitchell and John Murray (Mitchell is now an arbitrator and Murray is now a judge in Ontario) to conduct the "Changing Workplaces Review," which heard more than 200 presentations and received more than 300 written submissions and produced a report with 173 recommendations.

Eady says the reforms that followed were “generally positive” and modernized labour standards, while Ford’s plans to cut the minimum wage, replace it with a tax credit and possibly reverse the legislation is “ridiculous.”

“Those are things that just, frankly, make sense,” he says, and they are “‘for the people’.”

Dylan Augruso, an associate at Dickinson Wright LLP, says the government will have to come up with new draft legislation quickly, in order to pass it before the house closes in December, if they want to prevent the new provisions coming into effect in January.

Apart from the minimum wage raise, the provisions set to take effect in the new year included three hours of pay when a shift is cancelled or hours cut within 48 hours of start time, a right to refuse a shift or to be on call if not scheduled or informed less than 96 hours in advance and allowing employees with three months of service to request to change their schedule or work location.

Legal Feeds contacted the Ontario Ministry of Labour for comment, but a response was not received before deadline.

Editor's note: Story updated to clarify proposed change to minimum wage.