Will an arbitration clause in independent contractor agreement always be found to be illegal, if, notwithstanding that to which the parties ostensibly agreed, the worker can later allege that he is, in fact, an “employee”?
Can a company, which ostensibly deems all of its workers to be “independent contractors”, require those workers to arbitrate their issues, including the issue of whether or not they are, in fact, “employees”? Or, is such an agreement an attempt to contract out of the protections afforded to employees by virtue of the Employment Standards Act, 2000? In addition to, or in the alternative to, such a question, is such a clause “unconscionable”?
In the fist decision issued by the Court of Appeal for Ontario in 2019, Heller v. Uber Technologies Inc., 2019 ONCA 1, Ontario’s top court found that: (a) Uber’s arbitration clause amounts to an illegal contracting out of an employment standard; and (b) such clause is also unconscionable at common law.
Can an employee sue her employer if she is sexually assaulted at work by a co-worker? In a decision by the Ontario Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”), Decision No. 3096/17, 2018 ONWSIAT 1563 (CanLII), the answer was once again, “not if the employee is entitled to WSIB benefits.”
Dear Premier Ford, Minister Smith, and Minister Scott.
I am writing to you with respect to the issue of Bill 47, the Making Ontario Open for Business Act, 2018 and, more specifically, the subject of bereavement leave.
I will proceed from the presumptions that: (a) you do not know me; and (b) you have never heard of me or this blog. Notwithstanding the same, as I write this post, it is my hope that it will nonetheless come to your attention or at least that of one of your staffers.
I am not a politician, statistician, or member of any political party. I am a lawyer in private practice, providing legal services mostly with respect to matters of employment law. Since I was called to the bar of Ontario in 2008, I have acted for both employees and employers. I have provided legal advice to some of this province’s largest and most successful businesses as well of some of its smallest. And, while I hear a lot of things from a lot of people, I wish to make it patent that the views expressed in this post are mine and mine alone.
On April 1, 2012, I launched this blog. Since that time, I have published nearly 400 blog posts. This blog has been viewed more than one million times. It has been cited more than once to the Supreme Court of Canada and has it formed the basis for legislative amendments. I say these things not to be self-aggrandizing, but rather to provide you with the context for what I am going to say next.
In the approximately 14 months since I authored that posted it has been viewed more than 25,000 times. It is, without question, the most frequently consulted post I have ever authored.
I tell you this because, as you know, Bill 47 will change Ontario employees’ entitlement to bereavement leave. Whereas currently, employees, who have not otherwise made use of their Personal Emergency Leave, may take as much as ten days of bereavement leave, the first two of which must be paid by their employer, if Bill 47 passes as proposed, the statutory entitlement will be limited to a maximum of two unpaid days per calendar year. I appreciate that employers are obviously entitled to provide more generous benefits to their employees and, from experience, I know that a lot will. Ontario’s employers are comprised of Ontario’s people and, as I trust we will all agree, most people in Ontario are gracious, sympathetic, and kind.
But the purpose of legislation generally, and the Employment Standards Act more specifically is to impose minimum standards; experience has shown that we cannot rely on goodwill alone.
While my experience with this subject is simply anecdotal, what I know is that the people of Ontario care about their right to bereavement leave. Employers want to ensure that they are following the law by providing their employees with that to which they are entitled. More importantly, employees, most of whom are experiencing some of their darkest moments, want to ensure that they can be away from work without fear of losing their jobs. Bereavement leave is incredibly important.
To that end, I would encourage you to reconsider the quantum of bereavement leave presently being considered under Bill 47. I would also encourage you to reconsider your decision to make the same unpaid.
Were I asked, I would suggest a period of five days absence, per family member lost, the first day of which must be paid by the employer.
Should you wish further insight into this, or any other matter of Ontario employment law, I would welcome the opportunity to speak with you.