Brace for change: Legal concerns for Canadian employers in 2023

“We’re going to see a lot of issues around public sector bargaining in the province, especially given the court decision finding that the restraint on wages passed by the government was unconstitutional.”

Ontario’s Bill 124 was summarily knocked down by the Superior Court of Justice late last year – with Ford’s government vowing to appeal the decision.

The legislature, introduced in 2019, would cap salary increases for public sector workers at one percent.

It’s been estimated that the Bill would save Ontario $9.7 billion in salaries – however, in his ruling Justice Markus Koehnen said that the province was “not facing a situation in 2019 that justified an infringement on Charter rights.”

On the private sector side, organizations should brace themselves for rising inflation and cost of living concerns.

“Inflation sort of snuck up on us,” says Horvat. “In 2023, I think it’s going to be a bit of more of a fixed issue. Most importantly, is it going to go down? Or are we in a new level of higher than normal, stable inflation that has to be respected within collective agreements?

“Looking at it from a private sector stance, we don’t often talk about unionized workplace in Ontario outside of the public sector….so looking at how the large private sector unions deal with inflation is going to be a challenge for both parties.

“I think that’s all going to be very interesting.”

Deadlines come and gone

Last year saw the passing of the aptly named Working for Workers Act in Ontario, bringing with it a slew of changes, policy updates and deadlines for employers.

One of the most contentious areas of the Bill was the need for an electronic monitoring policy in workplaces with over 25 employees – a policy which should delineate if, how, why, and when you intend to watch your workers’ online activity.

The deadline for the policy was January 1st 2023 – but employers are still left with questions.

“I think the concern has been that this new legislation has brought in broad conceptual requirements, but provided very little detail in the form of regulation as to what actually is necessary for employers to do right now,” says Horvat.

“The general trend is to have a policy in order and not necessarily for that policy to achieve a certain directive over the workplace in order to manage workplace concerns.”

The issue with the vagueness of the new legislation is that it could be seen to be open for abuse. Employers in certain provinces need to be cognizant of common law privacy obligations – and not use the new legalization as an excuse to “snoop” rather than “monitor”.

“In Ontario, for example, and other jurisdictions such as Alberta, Quebec, British Columbia, they have privacy legislation,” says Horvat. “So employers would have to abide by that in respect of any electronic monitoring.”

Unionized workplaces also have collective agreements and a history of grievance arbitration that have set boundaries with respect to what an arbitrator would consider a reasonable workplace policy as it relates to electronic monitoring, according to Horvat.

And any employers thinking of ramping up their technological surveillance do so at their own peril.

“It's important that employers are being transparent about software they use and it's important for employees to know what they're being subjected to,” Linda Mota, VP HR at Topanga, told HRD in October.

“I’ve seen one or two clients implement software that crossed some lines, and they've brought it to their attention.”

With the Working for Workers Act coming into its own in 2023, all eyes will be on the Ministry of Labour when it comes to non-compliance.

Just what the repercussions of not abiding by the rules will be remains unclear, but employers could run the risk of fines if policies are breached.