Law Times

Law Times • January 9, 2017 Page 9 www.lawtimesnews.com Growth in Ontario to keep up with other provinces? Legislating leaves a trend, says lawyer BY MICHAEL MCKIERNAN For Law Times A Toronto employment lawyer has said pro- vincial legislation that would entitle victims of domestic and sexual violence to paid leave from work is part of a long-term trend toward leg- islating leaves in this province. Bill 26, the Domestic and Sexual Violence Workplace Leave, Accommodation and Training Act, has reached the committee stage after passing second reading at Ontario's leg- islature in October. If enacted, the bill would amend the province's Employ- ment Standards Act to provide for up to 10 days of paid leave for survivors of abuse to seek support related to the violence from lawyers, doctors, coun- sellors, police or community workers. Further unpaid leave and workplace accommodations such as new hours or location of work would also be available un- der the new law. Jeremy Schwartz, a partner with employer-focused labour and employment boutique Stringer LLP, says the legislation proposes a fix for a problem that doesn't exist in his experience. "For the last few years, it seems like we've been getting a lot of these leaves to address rela- tively rare situations where most employers would give a reason- able amount of time off anyway," he says. Before 2001, when the most recent version of the ESA came into force, Ontario had just two job-protected leaves: pregnancy and parental leave. Since then, that number has ballooned to 10, including leaves for organ donors and for crime- related child death. In addition, there are two more leaves cur- rently under consideration by MPPs. As well as the domestic and sexual violence leave, politicians at Queen's Park are also study- ing bill 31, Jonathan's Law, which would extend the period of un- paid leave for bereaved parents under the ESA to 52 weeks. "I just can't imagine any employer refusing this kind of leave request before this legisla- tion came in," he says. "If an em- ployee was willing to come to their employer and ask for some time to go to court or move into a group home because they were being abused, I don't see any employers asking if it's OK for them to deny it. In 10 years, I've never had a client call with that ques- tion, and I would never expect that question to come; at least I didn't before this leave was sug- gested." The two bills currently be- fore MPPs died on the order paper when Premier Kathleen Wynne's provincial government prorogued the legislature late in the summer. Both were reintro- duced as private members' bills. Bill 26 has returned stronger than ever, with the support of Kevin Flynn, Wynne's minister of Labour. More than 50 unions have also indicated their support for the amendments, which are modelled on similar legislation in Manitoba providing for up to five days of paid domestic vio- lence leave per year. Reports have suggested the federal government is also looking at the possibility of its own version of the law for em- ployers regulated under its ju- risdiction. Megan Beal, a lawyer with Filion Wakely Thorup Angeletti LLP, puts the recent explosion of new leaves in Ontario down to an attempt to keep up with de- velopments in other Canadian jurisdictions. "I'm not sure if there's a sur- vey going on, but a lot of the leaves are similar to ones in other provinces. Once a prov- ince passes one, and it seems to be working, others pick them up, and the wording in the legisla- tion is often almost identical," she says. "They're not just falling out of the sky, although Ontario does seem to have more than most." Beal says bill 26 will break new ground in the province if passed as it currently stands. "It would be a big change, be- cause it's the only proposal I've ever seen for a paid leave. All the other leaves provided for in the ESA are unpaid," she says. "I think employers and lawyers would be surprised if it does go into the ESA as a paid leave, but I would not be surprised if it is ap- proved in a modified form that makes it unpaid." Matthew Demeo, a member of the labour and employment practice group at McCarthy Té- trault LLP's Toronto office, says he hopes to see further guidance from the legislature on the issue of proving entitlement to the leave once the bill emerges from the committee stage. "There is going to be some confusion and concern about how much employers can ask," he says. "The act does leave open the option of prescribing what in- formation will be considered reasonable in the circumstances and I think that would be very useful to employers so that they have an idea of what their obliga- tions are." LT Get convenient access to the most current insurance law – all in one practical resource. 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