Law Times - Newsmakers

IN EARLY fall, the Ontario government announced plans to review and possibly reverse the former Liberal government's labour and employment re- forms, causing uncertainty with employers who had gone to great lengths to implement reforms that were wide-sweeping. Ontario Premier Doug Ford's Progressive Con- servative government moved quickly to have Bill 47 pass committee and third reading, and receive royal assent by Nov. 21. Bill 47, Making Ontario Open for Business Act, 2018, rolled back many changes introduced by the previous government of Kathleen Wynne in its Fair Workplaces, Better Jobs Act, 2017 (Bill 148). "It will be interesting to see if the federal gov- ernment's move to amend the Canada Labour Code to include elements similar to Bill 148 will have an impact on the public hearings or on the bill presented for third reading," said Samantha Seabrook of Seabrook Workplace Law when Bill 47 was introduced. "My sense is that we will not see much change to what we see now in Bill 47." The new legislation comes into force on Jan. 1, 2019 and freezes the minimum wage at $14 an hour until 2020 and cuts two paid personal leave days for workers, among other changes. Employment law lawyers say employers should approach changes to Bill 148 entitle- ments with caution. For non-union employees, the employer will be at risk of a con- structive dismissal claim if it did not preserve the right to change the entitlement to correspond with its legal obligations. On Sept. 26, Ford's government said that the minimum wage, which was supposed to be raised to $15 an hour on Jan. 1, 2019, will be frozen at the current $14 an hour. On Oct. 2, Ford told the Ontario legislature that his government would eliminate the Fair Workplaces, Better Jobs Act. Later that day, the government said the act was still under review. Bill 148 had increased the minimum wage to $14 from $11.60 an hour at the begin- ning of this year. Bill 148 was enacted in 2017 and amended the Ontario Employment 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 certain medical and family emergencies, required that workers on call be paid for three hours whether they are called or not and granted an extra week of vacation for employees in the position for more than five years. Some of the obligations in Bill 148 placed a financial burden on employers and re- quired 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 employers didn't have enough time to prepare for implementing these changes," she says. Jodi Gallagher Healy, a partner with Hicks Morley Hamilton Stewart Storie LLP in London, Ont., said her clients, who are exclusively employers, considered Bill 148 an overreach by the previous Liberal government. "Labour law is often like a pendulum. It swings one way and then it swings the other depending on what kind of government's in power," she says. "Some of the employers I work with were of the view that, under the Liberals, the pendulum swung too far." The aspects of the reforms that Healy said were problematic to employers included requiring a minimum of three hours of pay if an employee's shift was cancelled or hours cut and they are not informed within 48 hours and a right to refuse a shift if not sched- uled and not informed within 96 hours. The Ford government changed it to a three-hour rule for shortened shifts only, elim- inating the rule for cancelled shifts, as well as cancelling an on-call rule, the right to refuse work or on-call requests made less than 96 hours of notice. Christine Bujold, senior communications advisor and press secretary for Minister of Labour Laurie Scott, told Law Times via email, "Throughout and since the recent elec- tion campaign, we have heard from stakeholders on all sides of the labour market that changes made through Bill 148 by the previous Liberal government have had negative unintended consequences on workers and businesses." — with files from Aidan Macnab Good character motion prompts review at LSO Assessment process came under fire BY TIM WILBUR, FOR LAW TIMES THE GOOD CHARACTER assessment for new lawyers came under fire in the spring and prompted the Law Society of Ontario's Professional Regulation Committee to conduct a review of the process. A group of lawyers and legal scholars indicated in March that they would submit a motion to the LSO's annual general meeting in May, asking the regulator to review its process for assessing li- censing candidates' good character and whether it imposes a discriminatory barrier to admission for Indigenous applicants. The motion was with- drawn just before the AGM after the LSO indi- cated its willingness to take on the project of its own accord. The LSO's Professional Regulation Commit- tee indicated at that time that it would conduct a review of the process for assessing a candidate's good character and ask the Indigenous Advisory Group to the Law Society to provide guidance and input to the committee throughout the review. After the May AGM, Naomi Sayers, an Indige- nous woman who was recently called to the bar in Ontario, wrote a widely cited personal account in Canadian Lawyer magazine about how she was affected by the lack of trans- parency in the good character assessment process. Sayers' case highlighted the lack of transparency about what kinds of supporting documentation are required when applicants indicate they have had issues related to their good character including past convictions or findings of guilt. "The purpose of the good character requirement is to protect the public, maintain high ethical standards and to maintain public confidence, among other things. One must be honest and forthright, regardless of the required disclosures," wrote Sayers. "These disclosures required me to highlight two exploitative situations, one when I was 18 years old and another when I was in my early twenties. Both situations also in- volved police. During one instance, I tried to kill myself while in police custody. When the police brought me to the hospital, the doctor recommended I stay at the hospital for further care but agreed to my release back to the police if I was placed on suicide watch and followed up with a psychiatrist. For the first set of charges, I received an absolute discharge. In the second, the charges were withdrawn." Sayers, who was called to the bar after the LSO's AGM in May, called on the LSO to "do better." Since the debate in the spring, the LSO's Professional Regulation Com- mittee provided an update in a preliminary report that the committee submitted to Convocation on Nov. 30, which outlined the actions taken by the LSO after the AGM in May. The preliminary report stated that the Indigenous Advisory Group was sent a consultation memorandum on the good character process in October. The memorandum, according to the preliminary report, proposed increasing trans- parency and certainty for applicants by providing more detailed information about the criteria that is used to assess character, the questions that applicants are required to answer, the supporting documents or information that may assist in the resolution or investigation of good character issues and high-level statistical information about past good character review outcomes. The memorandum also proposed the creation of standardized documentation about the good character investigation process and its outcomes for applicants and documentation and training for LSO staff who receive inquiries about the good char- acter process. The memorandum also examined the good character questions and whether these questions were in fact indicative of issues with good character. The memorandum sug- gested the good character questions could be amended to exclude the reporting of ab- solute and conditional discharges using the same temporal limitations as set out in the Criminal Records Act and the Police Records Checks Reform Act. According to the report, the IAG discussed the proposed improvements after receiving the consultation memorandum in October and discussed other possible improvements. "IAG plans to meet later this month to continue discussing proposed reforms to the good character review process," said the preliminary report. "It is expected that a pack- age of suggested reforms will be ready for review by this Committee early in 2019." Susan Tonkin, senior communications advisor with the LSO, said that because the LSO report is preliminary, a representative from the IAG was not available to speak at press time. "It's important to keep in mind that this report is just the first step in the pro- cess and serves only to update Convocation regarding the work done to date," Tonkin wrote in an email. Labour law legislation reversed by Ford government Changing law put employers in position of having to change course BY JENNIFER BROWN, LAW TIMES Samantha Seabrook says some of the obligations in provincial Bill 148 placed a financial burden on employers and required them to work hard to get their businesses in line on time. Naomi Sayers, an Indigenous woman who was recently called to the bar in Ontario, says she was affected by the lack of trans- parency in the good character assessment process. top stories 16 December 2018

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