Canada: Bill 148 Rollback Alert

Ontario's Conservative government has moved to repeal most of the changes to the province's employment and labour legislation made by the prior government's Bill 148.


Most of the Bill 148 amendments came into force just under a year ago on November 27, 2017. We wrote extensively about the sweeping nature of those changes. 

After significant input from business groups, the government has introduced Bill 47, Making Ontario Open for Business Act, 2018 ("Bill 47"). To view the text of the Bill after it passed First Reading, click here. The Bill is currently in its early stages at first reading and may undergo revisions before it is passed into law, just as Bill 148 did.

The below-noted changes are set to come into force on the day Bill 47 receives Royal Assent or on January 1, 2019, whichever is later. In light of this timeline, it does seem that the government intends to push the Bill through some time before the end of 2018.  This would be in time to repeal certain provisions of Bill 148 that would otherwise be due to come into effect at the start of 2019.

Notably, all other Bill 148 amendments, such as the introduction of Domestic Violence Leave and the increase in minimum vacation entitlements after five years of service, will remain unchanged.

Set out below is a summary of the most significant aspects of Bill 47.  For a fulsome discussion of the below-noted changes and how to prepare your organization, be sure to attend our 32nd Annual Employers' Conference on November 8, 2018.

Changes to the Employment Standards Act (the "ESA")

Freezing Minimum Wage

Bill 148 increased the minimum hourly wage from $11.60 to $14 an hour on January 1, 2018. Minimum wage was set to increase to $15 an hour on January 1, 2019, with annual adjustments for inflation thereafter.

Bill 47 will not roll minimum wage back to pre-Bill 148 levels, but it will halt the scheduled January 1, 2019 increase and freeze minimum wage at $14 an hour for 33 months, with annual adjustments for inflation on October 1 of every year starting in 2020.

Incoming Scheduling Changes to be Repealed

The following scheduling provisions that are currently set to come into force on January 1, 2019 are to be repealed:

  • The right for an employee to request changes to schedule or work location after being employed for at least three months;
  • Entitlement to a minimum of three hours' pay for being on-call if the employee is available to work but is not called in to work, or works less than three hours;
  • The right for employees to refuse requests or demands with fewer than 96 hours' notice to work or to be on-call on a day that an employee is not scheduled to work or to be on-call;
  • Entitlement to three hours' pay at their regular rate in the event of cancellation of a scheduled shift or an on-call shift within 48 hours before the shift was to begin; and
  • The record-keeping requirements that relate to the above-noted scheduling provisions.

Three-Hour Rule

Bill 47 will preserve a version of the "three-hour rule" by requiring employers to pay employees for three hours at their regular rate when an employee who regularly works more than three hours a day is required to report to work, but works less than three hours.   

This requirement will not apply if the employer is unable to provide work for the employee because of fire, lightning, power failure, storms or similar causes beyond the employer's control that result in the stopping of work.

Personal Emergency Leave Days Replaced

Since January 1, 2018, all employers have been required to provide employees with ten days of Personal Emergency Leave ("PEL") days, the first two of which are paid.  Previously, PEL days were only available to employers with 50 or more employees and employers did not have to pay employees when they took PEL days.

Bill 47 will eliminate the two paid leave days and substitute a package of unpaid leave days for personal illness, injury or medical emergency (3 days), family responsibility (3 days) and bereavement (2 days) for a total of 8 days per year rather than 10.

Bill 148 prohibited employers from requiring employees to produce notes from a medical practitioner to justify taking a PEL day for illness.  Bill 47 would repeal this restriction. Employers will once again be able to require employees to provide evidence "reasonable in the circumstances" to support taking a leave day, which can include a doctor's note.

In with the Old: Public Holiday Pay

Bill 47 returns the "old formula" prior to the Bill 148 amendments that required employers to calculate the public holiday pay payable to an employee by taking the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, and dividing by 20.

In an effort to increase entitlements for part-time and casual employees, Bill 148 altered the public holiday pay calculation. As of January 1, 2018, employers were required to divide the total amount of regular wages earned in the pay period immediately preceding the public holiday by the number of days the employee worked in that period.

Employers complained that this method was confusing and unworkable, and generated undesirable results. For instance, casual employees who worked few shifts were often entitled to more public holiday pay than regular employees.

The Liberal government had already reverted to the "old formula" on a provisional basis, pending further consultation, with the introduction of Ontario Regulation 375/18 on May 7, 2018. Bill 47 would amend the ESA to make the "old formula" permanent.

No More Reverse Onus for "Misclassification" of Employees

Bill 148 codified the existing case law prohibiting employers from treating employees as though they are not employees for the purposes of the ESA.  But bill 148 went one step further and reversed the onus of proof so that employers were required to prove that the individual met the test for independent contractor status if challenged by the Ministry of Labour except in the case of prosecutions under the ESA.

Bill 47 leaves the substantive provision prohibiting employers from misclassifying employees intact, but removes the reverse onus on organizations to prove their innocence.

Equal Pay for Equal Work (Employment Status and Assignment Employee Status)

Bill 148 added equal pay for equal work provisions on the basis of "employee status", which includes whether the employee is part-time, casual, or temporary or "assignment employee status", which means employed through a temporary agency.

Bill 47 would repeal the prohibitions based on employment status and assignment employee status.  However, it would maintain the prohibition against discriminating on the basis of sex.

Bill 47 would remove the employee rights introduced by Bill 148 to request a review of their rate of pay by their employer if they believe they are being paid differently based on sex, as well as employers' obligation to adjust the pay accordingly, or provide a written response if the employer disagrees.

The ESA still prohibits employers for paying an employee of one sex at a rate of pay less than the rate paid to an employee of the other sex when performing substantially the same kind of work since 2000.

Penalties for Contravention

The government has announced its intention to reinstate previous administrative penalties for contraventions of the ESA. The penalties were increased by regulation in December 2017, and will decrease from $350 to $250, and accordingly from $700 to $500 for a second offence, and from $1500 to $1000 for subsequent contraventions.

Sheltered Workshops Exemption

Currently, the ESA does not apply to individuals who perform work in a simulated job or working environment if the primary purpose is the individual's rehabilitation. This exemption is set to be repealed on January 1, 2019, but Bill 47 would delay the repeal and it would come into force on a day to be named by proclamation.

Changes to the Labour Relations Act (the "LRA")

Card-based Certification Ousted for "Specified Industry Employers"

Bill 47 would repeal card-based certification in home care, building services, and temporary help agency industries, and would reinstate voting through secret ballot.  Card-based certification for these industries was brought in by Bill 148.

No More Access to Employee Lists

Bill 47 would repeal the rules which allow a union to apply to the Ontario Labour Relations Board (the "OLRB" or the "Board") for an order requiring the employer to produce a list of employees in industries other than the construction industry.

The changes brought in by Bill 148 gave the OLRB the power to order an employer to provide a list of its employees, with contact info, if 20% or more of the individuals in the group had signed union cards.  The intent of the Bill 148 changes was to make it easier for unions to organize non-union employers.

Reinstating Old Rules Regarding Remedial Certification

Bill 148 expanded the discretion of the OLRB to order that an employer be automatically unionized without an employee vote if it found that the employer had committed an unfair labour practice. The OLRB did not have to be satisfied that automatic certification was the only sufficient remedy for the employer's breach of the Act. 

Bill 47 would bring back the longstanding test that existed pre-Bill 148, being that the OLRB should only automatically certify an employer if a new vote of the employees would be an insufficient remedy. Under that test, only the most egregious of employer unfair labour practices typically resulted in automatic certification.   The OLRB will also be required to consider the results of a previous representation vote and whether the trade union appears to have membership support adequate for the purposes of collective bargaining.

On the day that the above-noted revisions come into force, the OLRB will be required to determine any applications previously made, but not yet determined, in accordance with the Bill 47 requirements.

Successor Rights

Bill 47 would repeal the regulation-making authority to expand successor rights to contract tendering for publicly-funded services such as homecare.

Surprisingly, Bill 47 would preserve the current section 69.1 introduced by Bill 148 which deems any new provider of building services to be a successor employer.  The services include building cleaning, food, and security services. 

This departs from the usual test where the union must show that enough assets and other aspects of a business, including but not limited to employees, were transferred to constitute a "sale of business."  This has significant implications for building owners, including condo corporations, as it effectively means that once a union gets in, the union and its collective agreement will continue to apply even if the owner changes building service providers.

Structure of Bargaining Units

Bill 47 would repeal the provisions introduced by Bill 148 allowing the Board the ability to review the structure of bargaining units. In their place, where an employer or union that represents a bargaining unit of employees of an employer requests review, Bill 47 would empower the OLRB to review the structure of bargaining units only where it is satisfied that the existing bargaining units are no longer appropriate for collective bargaining. Notably, this section would not apply to construction industry employers.


Where no collective agreement is in operation and the Minister has appointed a conciliation officer or mediator under the LRA, Bill 47 would increase the amount of time before a strike or lockout is permitted from seven to nine days after the Minister releases the report of the conciliation board or mediator, or from 14 to 16 days after the Minister releases a "no board" notice.

Return-to-work Rights

Bill 47 would reintroduce the six month limitation on an employee's right to reinstatement following the start of a strike or lock-out. If an employee had made an application to return to work before Bill 47 comes into force, the six month time limitation would be imposed on that application.

The existing exceptions to this right of reinstatement would remain intact.  If there is insufficient work for all striking employees, they will be placed on layoff in accordance with the seniority provisions of the applicable collective agreement.

Bill 47 will also repeal the right for returning employees to be reinstated, and to displace any person who performed bargaining unit work during the strike or lockout if the returning employee had longer service than the other employee when the strike or lockout began.

First Collective Agreement Mediation and Mediation-Arbitration

Bill 148 expanded the ability of unions and employers to apply for binding first agreement mediation and mediation-arbitration.  Bill 47 would provide for first agreement arbitration if the OLRB is satisfied that bargaining has been unsuccessful due to the uncompromising nature of the bargaining position taken by a party without justification among other reasons.  The Board will still have broad discretion to grant first agreement arbitration if it so wishes.

Bill 47 will repeal the Bill 148 first collective agreement mediation and mediation-arbitration provisions and provisions for educational support that applied before the application made it to arbitration.

Bill 47 would also institute procedural changes regarding the order of proceedings when multiple applications for first agreement arbitration as well as displacement or decertification are made concurrently.

Collective Agreements Publicly Available

Bill 47 would require the Minister to make all collective agreements publicly available, including by being posted on the Government of Ontario website.

Reduced Fines

Bill 47 will reinstate the previous maximum fines for offences under the LRA by decreasing the fines from $5,000 to $2,000 for individuals and from $100,000 to $25,000 for organizations.

Streamlining and Improving Processes

Bill 47 would streamline proceedings at the OLRB by allowing parties to serve documents by mail, courier, fax, or email. Further, the OLRB would be given greater flexibility in managing its own processes and procedures, and would no longer require input from the Lieutenant Governor in Council to institute new rules to control its procedures.

Bill 47 would also alter the deemed timelines for delivery of documents to the Minister as follows:

  • Where any request, application, or filing is delivered to the Minister's office at a time when it is open, it will be deemed to be given or made on the day shown on a receipt or acknowledgment provided by the Minister or his or her representative
  • Where it is mailed with a method that allows delivery to be verified, it will be deemed to be given or made on the day shown in the verification.
  • If it is sent via fax or email, it is deemed to be given or made on the day on which the fax or email is sent, unless it is sent after 5pm or on a day the Minister's office is closed, in which case it is deemed received the following day.
  • Where it is electronically filed, it is deemed given or made on the day on which the electronic filing was made, unless it is sent after 5pm or on a day the Minister's office is closed, in which case it is deemed received the following day.

Decisions, orders, and other communications from the Minister or from an arbitrator or arbitration board will deemed to be released the day they are sent.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Amanda D. Boyce
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions