By Howard Levitt and Gregory Sills

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Howard Levitt: It’s an employee’s world. Employers are just living in it Back to video

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It’s not often that we find statutory amendments of interest, let alone as the subject for a newspaper column. Generally, such legislation is dry, technical, and lacks enough punch to interest the reader.

However, the Ford government’s proposed changes to Ontario’s Employment Standards Act are not typical. The legislation would raise the fines for any number of violations by an employer — the incorrect payment of wages, say, or the improper handling of employee leaves of absences, or unequal pay for equal work. The maximum fine for violators is proposed to double from $50,000 to a national high of $100,000, while the minimum penalty for repeat offenders would jump from $1,000 to $5,000 per violation (similarly on the high end of the Canadian spectrum).

While many employment matters contain a human rights element, it is noteworthy that discriminatory practices are increasingly being codified outside of human rights legislation, further blurring the distinction between the two areas of law. Whether the dualing legislation will give rise to two separate remedies remains to be seen, but chances are it will.

It also appears that the Ontario Government has heard the cry of job applicants left hanging by would-be employers during the hiring process. As it currently stands, an employer is under no obligation to let applicants know if they have chosen to go another direction, resulting in the all-too-common experience of professional “ghosting.” Under the proposed framework, larger employers (exact size TBD) will be obligated to respond to candidates they have interviewed for posted positions, and face potential fines if applicants are treated to the usual radio silence once eliminated. Though I understand the sentiment behind this proposed change, it likely sounds better on paper than it will be in practice. It may allow candidates juggling multiple opportunities to better understand their actual position during the courting process but will otherwise merely provide peace of mind.

The proposed legislation places other obligations on the employer once the hiring process is complete. Advertised job postings and applications must be saved for no less than three years — yet another change that, to our eyes, is likely more trouble than its worth, particularly for medium-sized employers who handle HR processes in-house. We are not convinced there is enough to be gained from a three-year-old job posting and its accompanying applications to justify the detailed logging and archiving of each of them.

The foregoing changes are the result of a targeted approach by David Piccini, the Minister of Labour, Immigration, Training and Skills Development, who indicated that the provincial government is “sending a clear message to those bad actor employers out there that there are real consequences for bad behaviour.”

Assuming the Minister’s message possesses as much bite as it does bark (which is far from guaranteed), the cost of business appears to be going up. Indeed, given the regularity with which I see employers shirk their statutory obligations, many businesses will require a massive overhaul to their human resources department to avoid sanction. From bottom to top, compliance is no longer pseudo-optional, and employers will need to update their practices to avoid fines and penalties.

The ESA is an employee-centric piece of legislation, and the message of these proposed amendments is clear: employee protections are increasing, and the Ontario government is placing the burden on employers.

This is consistent with the trend of our courts, which have been increasingly employee friendly. Where we used to see unofficial severance caps at 24 months, that cap is softening, and the ceiling is rising — it’s no longer surprising to see courts award 26, 28, and even 30-month notice periods to plaintiff’s who used to struggle to reach 24.

While the job application process remains cumbersome for all parties, there can be little doubt as to who ultimately holds the hammer in Ontario workplaces. Will other provincial governments follow suit? We’re inclined to believe they will, for better or for worse.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Gregory Sills is a partner at Levitt Sheikh.

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