Canada: The Making Ontario Open for Business Act, 2018 Repeals Significant Aspects of Bill 148

Bill 47, the Making Ontario Open for Business Act, 2018, received Royal Assent on November 21, 2018. The Bill makes several amendments to labour and employment in Ontario, many of which reverse provisions from last year’s Bill 148 (the Fair Workplaces, Better Jobs Act, 2017).

This article summarizes some of the significant changes to the Employment Standards Act, 2000 (the “ESA”), which came into effect on January 1, 2019.

Minimum Wage Rate to Remain at $14 in 2019

Bill 148 amended the ESA to include significant increases to minimum wage rates. In particular, on January 1, 2018, the general minimum wage rate was raised from $11.60 per hour to $14.00 per hour. Another increase to the general minimum wage rate was scheduled to occur on January 1, 2019, and would raise the general minimum wage rate to $15.00 per hour.

Bill 47 eliminated the planned increases to minimum wage. Consequently, the general minimum wage rate will remain at $14.00, with annual adjustments for inflation commencing on October 1, 2020. Corresponding revisions will be made to the minimum wage rates for students, liquor servers, hunting and fishing guides, and homeworkers.

Personal Emergency Leave to Be Replaced with New Statutory Leaves

The ESA entitles employees to take up to 10 days of personal emergency leave each year. As a result of Bill 148, employers are required to provide personal emergency leave pay for the first two days of personal emergency leave taken by an employee.

Bill 47 replaces personal emergency leave with three separate new entitlements:

1. Sick leave – Up to three days of unpaid leave per year for reasons of personal illness, injury, or medical emergency;
2. Family responsibility leave – Up to three days of unpaid leave per year to attend to the illness, injury, or medical emergency of a prescribed family member, or an urgent matter that concerns a prescribed family member; and
3. Bereavement leave – Up to two days of unpaid leave per year for reasons relating to the death of a prescribed family member.

Employees must have at least two consecutive weeks of service with their employer in order to be entitled to any of the above leaves.

Elimination of Equal Pay for Equal Work Entitlements Related to Employment Status

Bill 148 amended the ESA so that employers were prohibited from differentiating rates of pay on the basis of employment status (e.g. full-time, part-time, casual, or temporary status) if employees performed equal work.

Bill 47 repeals all of these provisions. However, employees will remain entitled to equal pay for equal work on the basis of sex.

Repeal of New Scheduling Provisions

Following Bill 148, several scheduling-related provisions were added to the ESA, including:

• The right for an employee to refuse to work on a day that the employee was not scheduled to work or be “on call” if their employer requests that they work or be “on call” but the request is made less than 96 hours before the time when the employee would be required to commence work;
• A minimum entitlement to three hours’ pay for an employee who is “on call” for work but is not called in or is required to work less than three hours;
• A minimum entitlement to three hours’ pay for an employee whose shift is canceled within 48 hours before the time when they were to commence work; and
• The right for an employee to request changes to their schedule or work location.

The provisions were set to come into effect on January 1, 2019. However, with the passing of Bill 47, these scheduling provisions will be repealed in their entirety.

Possible Regulatory Changes to Accompany Bill 47

The Regulatory Registry of the Ontario Government indicates that regulations under the ESA may be amended to complement the amendments proposed in Bill 47. A summary of the proposed regulatory changes is listed below.

• Section 3 of O Reg 285/01 outlines circumstances in which certain professionals are ineligible for personal emergency leave. An amendment to this rule has been proposed so that the rule will continue to apply to the new statutory sick leave, family responsibility leave, and bereavement leave.
• The revocation of section 3.01 of O Reg 285/01, which sets out a special rule pertaining to personal emergency leave for construction employees, has been proposed.
• The revocation of section 9.1 of O Reg 285/01, which exempts certain types of employees from equal pay for equal work on the basis of employment status, has been proposed.
• Sections 4.1 and 4.2 of O Reg 285/01 set out exemptions from scheduling and record-keeping requirements for certain employees. These provisions were to come into force on January 1, 2019, but their revocation has now been proposed to match Bill 47.
• Section 5(7) of O Reg 285/01 currently sets out the “three hour rule”. There is a proposal to modify the three hour rule and move related provisions into a new section of the ESA, in accordance with amendments under Bill 47.
• Section 4 of O Reg 502/06 modifies the rules pertaining to personal emergency leave for employees in industries of the auto sector. There is a proposal to revoke this rule to match Bill 47.

The regulatory amendments in respect of the auto sector came into effect on January 1, 2019; however, the other proposed regulatory changes have not yet come into effect.