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October 15, 2018

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Page 2 OctOber 15, 2018 • Law times dulum. It swings one way and then it swings the other depend- ing on what kind of govern- ment's in power," she says. "Some of the employers I work with were of the view that, under the Liberals, the pendu- lum swung too far." The aspects of the reforms that Healy says are problematic to employers include requiring a minimum of three hours of pay if an employee's shift is cancelled or hours are cut and they are not informed within 48 hours and a right to refuse a shift if not scheduled and not informed within 96 hours. Another issue for employ- ers was the "equal pay for equal work" provision in Bill 148, where workers must be paid the same wage if performing "substantially the same work" whether they are temporary, part time or full time, says Healy. Danny Kastner, partner at Kastner Law in Toronto, says labour and employment lawyers like himself are in a "wait-and- see position" due to the shift by the government. "Without predictability and consistency, it becomes exceed- ingly difficult to give advice, especially to institutional or em- ployer clients," he says. Donald Eady, a partner at Paliare Roland Rosenberg Roth- stein LLP, says the reforms that followed were "generally posi- tive" and modernized labour standards, while Ford's plans to cut the minimum wage, replace it with a tax credit and possibly reverse the legislation is "ridicu- lous." "What, frankly, is worrying my union clients is whether this is the first shot across the bow," says Eady. Bill 148 was enacted in 2017 and amended the Ontario Em- ployment Standards Act, the Labour Relations Act and the Occupational Health and Safety Act. The act's changes included raising the minimum wage and increasing paid sick days. It also increased leave for cer- tain medical and family emer- gencies, required that workers on call be paid for three hours whether they are called or not and granted an extra week of va- cation for employees in the posi- tion for more than five years. Some of these obligations in Bill 148 placed a financial bur- den on employers and required them to work hard to get their businesses in line on time, says Seabrook. "The issue for employers was really the speed at which these changes and these new financial obligations were placed on them and that's where we're seeing the pushback that Ontario employ- ers didn't have enough time to prepare for implementing these changes," she says. In 2015, then-Minister of Labour Kevin Flynn appoint- ed Michael Mitchell and John Murray, who were labour and employment lawyers (Mitchell is now an arbitrator and Mur- ray is now a judge in Ontario), to conduct the "Changing Work- places Review," which heard more than 200 presentations and received more than 300 written submissions and pro- duced a report with 173 recom- mendations. Dylan Augruso, an associ- ate at Dickinson Wright LLP, says the government will have to come up with new draft leg- islation quickly in order to pass it before the house closes in De- cember, if it wants to prevent the new provisions coming into ef- fect in January. Christine Bujold, senior com- munications advisor and press secretary for Minister of Labour Laurie Scott, told Law Times via email, "Throughout and since the recent election campaign, we have heard from stakeholders on all sides of the labour mar- ket that changes made through Bill 148 by the previous Liberal government have had negative unintended consequences on workers and businesses." LT and 2017. But it wasn't to be. Ac- cording to D'Arcy's judgment, the Canada Revenue Agency assessed LawPRO's taxable in- come at $24.6 million for 2013 and $26.6 million in 2014. While the insurer hoped to see both amounts slashed to zero on ap- peal, instead, all LawPRO got was a $45,000 reduction for its assessed income in 2013 and an $18,520 cut for 2014 after the CRA agreed to the deductions for charitable gifts. "All I can say at this time is that we are reviewing Justice D'Arcy's decision and consider- ing whether we will appeal it," said LawPRO CEO Dan Pin- nington in a statement to Law Times. Toronto lawyer Robert Win- ters, a partner at tax law bou- tique Morris Kepes Winters LLP, says he expects the insurer to take another kick at the can by appealing, pointing out that D'Arcy appeared to side with LawPRO on most of the disput- ed issues until the critical final determination of whether the law society performs a function of government. "Clearly, there will be an ap- peal," he says. Toronto tax lawyer David Rotf leisch, founder of Rotf leisch & Samulovitch PC, says the de- cision was a very technical one, and he's not surprised by the lack of case law in that area. "It's not that common a sce- nario," he says. Before D'Arcy, a lawyer for the federal government argued that the undefined term "public body" in the Income Tax Act should be limited to entities similar to municipal bodies. But the judge took a broader view, importing a three-part test previously developed by the Federal Court of Appeal for determining whether a body is a "public authority" under the Trade-marks Act. D'Arcy concluded that the LSO met all three elements of the test, which requires an entity to demonstrate that it has a duty to the public, is subject to a sig- nificant degree of government control and that any profits gen- erated are for public rather than private benefit. However, the judge was less persuaded by LawPRO's con- tention that the LSO performs a function of government. The insurer argued that the law society's regulatory respon- sibilities fit the bill, since they were delegated by legislation. Instead, he said it was the Government of Ontario that performed a function of govern- ment by deciding which bodies regulate specific professions. LT NEWS Appeal likely Continued from page 1 Continued from page 1 'Wait-and-see' approach © 2018 Thomson Reuters Canada Limited 00249HQ-94504-NK The federal Cannabis Act amends 16 different pieces of legislation Track, monitor, and set alerts on pending legislation with Legislative Watch so you always know what's ahead for your clients. Visit to begin your free trial. Untitled-2 1 2018-10-10 2:25 PM

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