While the full breadth of Bill 146 is beyond the scope of this
blog article, the following are some of the more notable amendments
proposed in Bill 146:
Proposed Changes to the ESA:
The removal of the $10,000 cap on the wages that can be
recovered by an employee under an order issued by an employment
An extension of the time period in which an employee may claim
for unpaid wages. While an employee may currently claim up to 6
months of unpaid wages and 12 months of unpaid vacation pay, Bill
146 aims to introduce a 2 year limitation period for both wages and
Increased powers for employment standards officers and in
particular, the ability to order employers to conduct, at their own
expense, self-audits in respect of ESA compliance. If any such
audit determines that wages are owing to employees or that an
employer is otherwise non-compliant with the ESA, such employer may
be subject to wage or other compliance orders;
The imposition of joint and several liability with respect to
employees of temporary help agencies. In particular, even where a
client of a temporary help agency has paid such agency for the
services of its workers, the client may still be liable for unpaid
wages if such workers claim for the same as against their agency
employer. Bill 146 would also require temporary help agencies and
clients of such agencies to track and record hours worked by
provided workers; and
Increased communication by employers to employees with respect
to employee rights and employer obligations under the ESA. While
employers are currently required to display a Ministry of
Labour-published information poster in this regard, Bill 146 would
require employers to provide employees with their own copy of this
poster and to offer it in alternative languages.
Proposed Changes to the OHSA:
While the OHSA does not currently apply to unpaid employees,
Bill 146 would expand OHSA protection to unpaid co-op students
working as part of secondary school programs, programs authorized
by post-secondary institutions, as well as other unpaid interns and
Proposed Changes to the WSIA:
In a marked departure from the current workers' compensation
regime, workplace injury costs associated with injuries to
temporary help agency employees would be assigned to clients of
such agencies rather to the agencies themselves. In this respect,
if an agency worker is injured while performing services for a
client, such client may be subject to a surcharge or lower rebate
at the end of the year based on such accident. Accident reporting
obligations would also be imposed on clients of such agencies.
Proposed Changes to the LRA and the EPFNA:
Although less comprehensive than some of the proposals outlined
above, Bill 146 would amend the LRA to reduce the "open
period" for union displacement applications (which concern
situations where employees or other unions attempt to eject an
incumbent union) in the construction industry from 3 months to 2
Finally, and with respect to the EPFNA, Bill 146 would extend
such legislation's protection to all employees coming to
Ontario under immigration or temporary foreign employee programs.
The EPFNA currently only extends legislative protection to
individuals working or seeking work as live-in caregivers.
While Bill 146 has only passed the "first reading"
stage of the legislative process, to the extent it becomes law it
will certainly increase employer obligations, particularly as it
relates to the ESA and the WSIA.
Proactive employers wishing to get in front of Bill 146 should
consider conducting internal ESA and OHSA compliance audits and, to
the extent any such employer contracts with temporary help
agencies, assessing whether any contracts in this regard provide
appropriate indemnity language to protect against having to pay
wages earned by provided workers twice, once to the agency and then
pursuant to an order. We will keep you informed of Bill 146's
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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