Employment Update

By Barry W. Kwasniewski and Martin U. Wissmath

Mar 2023 Charity & NFP Law Update
Published on March 30, 2023



Working for Workers Act, 2023 to Increase Fines for Withholding Passports and Work Permits, OHSA Offences

The Ontario government is targeting labour trafficking and seeking heftier penalties for violations of health and safety laws in its latest effort to revise employment legislation. Introduced into the Legislative Assembly on March 20, Bill 79, Working for Workers Act, 2023 (“Bill 79”) would provide a tenfold increase in monetary fines for contraventions of the Employment Protection for Foreign Nationals Act, 2009 (the “EPFNA”). Further amendments would increase fines under the Occupational Health and Safety Act (the “OHSA”). Provisions of the Employment Standards Act, 2000 (the “ESA”) requiring minimum notice to employees in mass terminations would be amended to include remote workers. Employers, including charities and not-for-profits, should be aware of these changes and ensure they are compliant with these statutes.

Bill 79 would amend section 41 of the EPFNA to increase fines for contraventions by an individual from a current maximum of $50,000 up to a maximum of $500,000. Corporations would face fines up to $1,000,000 for a first-time offence, increasing the current maximum of $100,000 for first-time offences. In a news release published March 20, 2023, the provincial government announced that these increases would establish the “highest maximum fines in Canada for businesses and people who are convicted of withholding a foreign national’s passport or work permit.” Convicted individuals under the EPFNA may be imprisoned for up to 12 months in addition to the fine.

When an employer terminates 50 or more employees, the ESA includes minimum notice provisions under Part XV, depending on the length of time the employee has worked for that employer. Bill 79 would add a new section 53.2 to clarify that employees who work exclusively from home must also be given minimum notice if they are among the 50 or more terminations. The definition of “establishment”, which is currently defined under the ESA as a “location at which the employer carries on business”, would be modified by section 53.2 to include “a private residence of the employer’s employee if the employee performs work in the private residence and the employee does not perform work at any other location where the employer carries on business.”

If it passes the legislature as written, Bill 79 would also increase the maximum fine for a corporation for a conviction under the OHSA from $1.5 million up to $2 million.

Court of Appeal Rules Out of Date Employment Contract Unenforceable

By Barry W. Kwasniewski

The Court of Appeal for Ontario released its reasons for decision in the case of Celestini v. Shoplogix Inc. on February 28, 2023. This was an appeal from the Superior Court of Justice in regard to the common law concept of “changed substratum”.

Briefly, the changed substratum doctrine provides that where an employment position has fundamentally changed, the original written agreement between employer and employee should no longer apply as it does not reflect the actual role and duties of the employee. This is because an employment contract should accurately state what is expected of employees, and likewise, what employees can expect from their employer.

At common law, there is a positive duty on employers to provide reasonable notice before dismissing an employee without cause. The period of reasonable notice is determined by examining a number of factors, such as years of service, seniority, qualifications, etc. Employers and employees are free to contract out of these, provided that the statutory minimums under the Employment Standards Act, 2000 for an employee’s entitlements on termination are met.

For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 520.


Read the March 2023 Charity & NFP Law Update