A new year in Canadian workplace law

Early January is a good time to take stock of workplace law developments that arose in 2024, and how those developments may evolve in 2025. This update takes a high-level, cross-Canada view. Our Quebec team has written a similar update focusing on developments in that province. See our update A look back at 2024 in Quebec labour law.

New recruitment rules in Ontario

In 2024 Ontario adopted five new rules for publicly advertised job postings:

• Pay transparency. Job postings must include information about the expected compensation for the position or the range of expected compensation for the position.
• AI disclosure. Job postings must disclose whether the employer uses artificial intelligence (AI) to screen, assess or select applications for the position.
• Canadian experience. Job postings and application forms must not include any job requirements related to Canadian experience.
• Vacancy. Job postings must include a statement disclosing whether the posting is for an existing vacancy or not. 
• Follow up with interviewees. An employer who interviews an applicant for a publicly advertised job posting must, within 45 days of the interview (or within 45 days of the last interview, if there is more than one), inform the interviewee as to whether a hiring decision has been made for the job posting.

These Ontario rules will come into effect on January 1, 2026. See our update Ontario updates rules on job postings and more.

While these new recruitment rules are unique to Ontario at the moment, a variety of pay transparency rules for recruitment have recently been introduced in British Columbia, Newfoundland and Labrador, Nova Scotia and Prince Edward Island. As the trend toward regulating recruitment gains momentum, employers may consider consulting with counsel on practices that meet standards in all jurisdictions.

Sick notes restricted, even as sick leave increases

Throughout 2024, and looking ahead into 2025, two trends are taking place simultaneously:

• Minimum standards sick leave entitlements are increasing. Statutory sick leave entitlements are increasing in several jurisdictions, though applicable rules remain a patchwork across Canada. For example, Prince Edward Island increased paid sick leave on October 1, 2024, leaving employees in that province with a minimum of three unpaid days per year and, after three years of employment, three paid days per year as well. Nova Scotia increased unpaid sick leave as of January 1, 2025, leaving employees with five unpaid days per year overall.
• Legislatures are prohibiting use of sick notes. To minimize burden on health care systems, many jurisdictions have adopted prohibitions on employer requests for sick notes to substantiate employee medical absences from work. Ontario, Quebec, Newfoundland and Labrador, and Prince Edward Island all adopted such prohibitions in 2024, joining several other jurisdictions where such restrictions already exist. For the most part these prohibitions relate only to employee use of statutory sick days, meaning employers can return to requesting sick notes once statutory sick days are exhausted. However, that is not true in all jurisdictions. For details on new Ontario and Quebec rules, see our update Expanding prohibitions on sick notes in Canada.

Moving into 2025 employers should review existing sick leave policies and procedures to ensure compliance with revised statutory minimums and restrictions on sick notes. Counsel can assist in ensuring compliance in all jurisdictions where an employer operates.

Termination clauses remain vulnerable, but 2024 brought some good news for employers

The enforceability of termination clauses is a perennially popular subject of litigation, and 2024 was no exception. Overall, the year was a mixed bag for employers:

• Newly problematic language in Ontario. An Ontario court held that an employment agreement’s termination provisions were unenforceable for contracting out of the Employment Standards Act, 2000 by reserving the employer’s right to terminate without notice “at any time” and at the employer’s “sole discretion.”¹ The court’s reasoning was that such language might allow an employer to terminate employees while they are subject to statutory protections, such as a statutory leave or after making a protected complaint about working conditions.

This was a worrying, unusual decision given how common such language is in many employment agreements. It is also runs counter to some other termination clause decisions in Ontario. Unfortunately, the Ontario Court of Appeal declined to comment on the matter, deciding an appeal in the case on other grounds.²

• An enforceable clause is still possible in Ontario. An Ontario court held that a simple minimum standards-only termination clause was enforceable and precluded an employee’s claim for wrongful dismissal damages. The clause guaranteed all statutory minimum entitlements and excluded common law reasonable notice. It was lawful and unambiguous.³

This decision was an encouraging reminder that a properly drafted termination clause is still effective in limiting employee termination liabilities, even in Ontario.

• Good news for federally regulated employers in BC. The British Columbia Court of Appeal waded into a long-standing controversy among Canadian courts over the words “at least.” Specifically, some minimum standards statutes, including the federal Canada Labour Code, state an employee must receive “at least” a prescribed amount of notice of termination. If a termination clause merely states the employer will “comply with applicable legislation,” does it limit the employee’s termination entitlements to the statutory minimum, or can the employee claim more because the words “at least” imply more notice might be available to the employee? In a win for employers, the BC Court of Appeal took the former position. It held there was no ambiguity in a termination clause simply referring to the Canada Labour Code without stating that the employee would receive “only” the statutory minimum.⁴

Termination clauses remain challenging to properly draft and enforce. Given the ever-changing landscape of termination clauses in Canada, employers should consult with counsel in drafting or revising employment contract termination clauses and consider reviewing existing contract templates to ensure ongoing enforceability of key provisions.

Replacement worker bans gain momentum

A “replacement worker ban” is labour legislation that prohibits employers from using replacement workers to perform bargaining unit work while members of that bargaining unit are on strike or locked out. With narrow exceptions, an employer cannot mitigate the impact of the work stoppage on its operations by engaging temporary replacement workers.

For many years, only Quebec and British Columbia had such replacement worker bans in place. In 2024, two new jurisdictions adopted replacement worker bans:

• Manitoba adopted a ban that came into force on November 8, 2024. See our update Manitoba adopts pro-union legislation.
• The federal jurisdiction adopted a ban that is scheduled to come into force on June 20, 2025. See our update Federal bill on replacement workers moves forward.

In addition to these new legislative initiatives, a court in British Columbia confirmed that province’s replacement worker ban applied “extraterritorially” to work in Alberta and Ontario, where the work in those latter provinces was reallocated from striking workers in Vancouver. This is a significant expansion of the scope of replacement worker bans and a concerning development for employers with operations in multiple jurisdictions. The decision is set for an appeal hearing before the British Columbia Court of Appeal on April 1, 2025. See our update. See our update The long reach of British Columbia’s replacement worker ban.

Ministerial intervention in federally regulated labour disputes

On several occasions during 2024 the federal Minister of Labour intervened in labour disputes by ordering the Canada Industrial Relations Board to end lockouts or strikes in favour of final interest arbitration. These interventions were in response to labour disruptions affecting Canadian ports, airlines, railways and mail delivery. Section 107 of the Canada Labour Code allows the minister to order the Board to do anything the minister deems expedient to “maintain or secure industrial peace and to promote conditions favourable to the settlement of industrial disputes or differences.” 

Unions and other labour organizations strongly opposed the minister’s use of section 107, claiming it violated basic collective bargaining rights protected by Canadian Charter of Rights and Freedoms. Legal challenges to the minister’s directions are still in motion and will be a significant development to follow in 2025 and beyond. It remains to be seen if section 107 is an enduring solution to labour disruptions in the federal sphere, or a historical oddity that emerged in 2024. See our update Federal Minister of Labour intervention in labour disputes: Analysis of the CN case and CIRB limitations.

Workplace privacy expectations are shaped by context

In 2024, two appellate decisions shed light on factors that shape an employee’s “reasonable expectation of privacy” in the workplace:

• The Supreme Court of Canada confirmed that two teachers had a reasonable expectation of privacy in an online diary they shared. That privacy was breached when a vice-principal accessed the diary and relied on its contents for disciplinary purposes.⁵ See our update Supreme Court of Canada comments on reasonable expectation of privacy in the workplace.
• The Federal Court of Appeal held that safety-critical workers in nuclear power facilities do not have a reasonable expectation of privacy barring pre-placement and random drug and alcohol testing.⁶ See our update Safety-critical workers have “diminished expectation of privacy” in alcohol and drug testing.

Both of these decisions related to privacy protections under section 8 of the Canadian Charter of Rights and Freedoms. Section 8 guarantees the right to be secure against unreasonable search and seizure. While these Charter cases are not directly applicable to private-sector workplaces, they provide helpful commentary on the concept of workplace privacy overall.

These decisions confirm that employee privacy is not absolute. It is a balancing exercise – employee privacy interests must be set against the employer’s interests in securing its own operations and meeting its statutory obligations. Moreover, employee privacy expectations are malleable. They may be shaped by employee actions (e.g. taking steps to protect their information) or employer actions (e.g. notifying employees that use of employer networks is monitored).

Regulation of online/digital platform workers 

British Columbia and Ontario are moving forward as the first provinces to adopt legislation setting minimum working conditions for app-based ride-hailing and delivery drivers (called “online platform workers” in BC and “digital platform workers” in Ontario).

As of September 3, 2024, new employment standards came into effect for online platform workers in British Columbia. Through amendments to the Employment Standards Regulation, B.C. Reg. 396/95, new standards for these drivers include a minimum wage for “engaged time,” minimum expense allowances for vehicle mileage, provision of information about individual tasks (e.g. estimates of amounts payable if a task is accepted, etc.), wage statement rules, etc. Notably, these drivers are excluded from employment standards related to hours of work and overtime pay, statutory holidays, annual vacation and some aspects of statutory leaves of absence.

Ontario’s Digital Platform Workers’ Rights Act will come into force on July 1, 2025. This new legislation will not amend Ontario’s Employment Standards Act, 2000 as in British Columbia, but rather create a parallel set of rights for digital platform workers similar to employment standards. These standards include minimum information requirements related to pay and assigned tasks; a minimum wage for time completing tasks; recuring pay periods; and notice of removal from the relevant platform.