Law Times

Page 10 February 24, 2014 • Law Times www.lawtimesnews.com Lawyers divided on impact of bill 146 Some call law 'quite modest' while others note significant impact FOCUS hile critics have de- nounced a bill aimed at protecting vulnerable workers as toothless, some lawyers are advising clients not to dis- miss it too quickly. Bill 146, known as the stronger work- places for a stronger economy act, is working its way through Ontario's legisla- tive assembly aer passing first reading in December 2013. It seeks to amend several employ- ment laws, including the Employment Standards Act, the Workplace Safety and Insurance Act, the Occupational Health and Safety Act, the Labour Relations Act, and the Employment Protection for For- eign Nationals Act. e bill is a response to concerns about levels of protection afforded to workers deemed to be vulnerable such as unpaid staff, people employed by temporary help agencies, and foreign workers. Some lawyers believe the changes do little more than clarify existing rules. Prof. David Doorey of Osgoode Hall Law School called the bill "quite modest" on his blog, lawofwork.ca. Despite some "interesting" changes to the Employment Standards Act, bill 146 makes no attempt to dissect the defini- tion of "employee" that allows employers to treat trainees as free labour, he wrote. And it does nothing to give vulnerable workers a collective voice, he added. However, Karimjee Greene LLP law- yer Kumail Karimjee says it would be wrong to brand the proposed law as be- ing "unimportant." Take the new rules for temporary agency workers. Under the bill, tempo- rary help agencies and their clients would be jointly liable for unpaid wages. e change would not only force agen- cies to track who's working for them and the hours they're putting in but would also encourage employers to consider their staffing arrangements with those companies, according to Karimjee. And in some ways, the changes go further than expected. For example, the bill removes the $10,000 cap on claims for unpaid wages under the Employment Standards Act. A Law Commission of Ontario re- port published in December 2012 that many see as having contributed to the proposals called on the government to raise the cap to $25,000. e change would bring the law in line with the cap used by the Small Claims Court, the report said. But bill 146 would abolish the cap al- together as well as increase the limitation period for an Employment Standards Act claim for unpaid wages to two years. e law commission report suggest- ed a two-year limitation period seemed "out of step with current trends" and instead advocated a "discretionary time extension for claims for wages in special circumstances." Karimjee agrees with the decision to remove the cap given that there's a "very easy case to make" regarding access to justice. "It doesn't make sense to say you can only claim $10,000 of those wages," he says. "e quantum of the claim doesn't necessarily increase the complexity of the proceeding," he adds. e rule change would have a huge impact as claims for unpaid wages can run into the hundreds of thousands of dollars in cases, for example, where em- ployees say the company owes them for overtime stretching back many years. e change also brings the limitation periods in line with the civil courts. "It will likely result in an increase in the volume of claims," says Karimjee, who suggests the change will give people a "meaningful choice between the civil courts or a Ministry of Labour claim." Could the bill have gone further? at may not have been possible due to a political imperative to keep employers on board. Writing on her firm's web site, Cassels Brock & Blackwell LLP lawyer Anne-Ma- rie Naccarato said the bill has the poten- tial to "significantly impact Ontario em- ployers" if it becomes law. But employer pressure for concessions will also run up against calls for even stronger protections for the 22 per cent of Ontario's workers deemed by the law commission report to be in "precarious" jobs offering low wages, no pension, and little opportunity to join a union. ese are some of the "big issues" Karimjee would also like to see more of a focus on. But that doesn't mean bill 146 is a waste of paper. "I see this as legislation that seeks to approach a few narrow but important issues," he says. LT Miller ThoMson on esTaTe Planning Editor-in-ChiEf: Martin roChwErg how can you be certain that the will or non-testamentary documents you are drafting today are sturdy enough to withstand scrutiny and challenge? this looseleaf service for lawyers and other professionals who manage finances provides a comprehensive analysis of Canadian estate planning and administration to help ensure your client's goals are met and his or her intentions carried out. 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TRUSTED. seAmless, eFFicient estAte plAnning stARts heRe BY CHARLOTTE SANTRY Law Times W BILL 146 pROpOSALS • Make temporary help agencies and their clients jointly liable for unpaid wages under the Employment Standards Act. • Remove the $10,000 cap on claims for unpaid wages. • Increase the limitation period in the Employment Standards Act for a claim for unpaid wages to two years. • Extend protections for live-in caregivers in the Employment Protection for Foreign Nationals Act to other foreign workers in Ontario. • Change the Occupational Health and Safety Act's definition of "worker" to include unpaid staff. • Require employers to provide information in French and English about workers' rights under the Employment Standards Act. If requested, employ- ers must provide handouts in one of 23 other languages. • Require the Workplace Safety and Insurance Board to assign workplace injury costs to temporary help agency clients instead of agencies. • Extending coverage under the Occupational Health and Safety Act to co-op students, trainees, and other unpaid learners.

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