Bill 47 – Making Ontario Open for Business Act, 2018

Bill 47 – Making Ontario Open for Business Act, 2018

On November 21, 2018, Bill 47, the Making Ontario Open for Business Act, 2018 (the “Act”), passed third reading in the Ontario Legislature and received Royal Assent.

One of Doug Ford’s signature laws, the Act seeks to implement several promises the Ontario Progressive Conservative Party campaigned on last spring. Todd Smith, Minister of Economic Development, Job Creation and Trade called Bill 47, “one of our government’s first steps in cutting job-killing red tape, removing regulatory burdens on job creators, and growing Ontario’s economy.”

The Act consists of three Schedules. Schedule 1 amended the Employment Standards Act, 2000 (the “ESA”), and repealed many of the changes introduced by the Wynne Liberals in 2017 in the Fair Workplaces, Better Jobs Act, 2017.

The other two Schedules have amended the Labour Relations Act, 1995, and the Ontario College of Trades and Apprenticeship Act, 2009. Those amendments, while significant, are beyond the scope of this blog post.

The Act has implemented several major changes to the ESA:

Cancellation of Any Further Minimum Wage Increase

Section 23.1 of the Act has been amended to repeal the scheduled minimum wage increase that was set to come into effect on January 1, 2019. The minimum wage will remain at $14 per hour for most workers. The Act sets different minimum wage rate for employees who are students working on a part time basis, employees working in certain industries, and employees who are homeworkers.

Section 23.1 was further amended so that the annual inflation adjustments that were supposed to come into effect on October 1, 2019 will not become effective until October 1, 2020.

The Three-Hour Rule

A new Part VII.I sets out rules requiring employers to pay employees who regularly work for more than three hours a day, a minimum of three hours’ pay for shifts that are under three hours.

This provision, along with the entitlement to three weeks vacation for employees with five years service, is one of the few changes implemented by the Fair Workplaces, Better Jobs Act, 2017, that has been maintained by the new Act.

Entitlement to Sick Leave, Family Responsibility Leave, Bereavement Leave

Under the old section 50 of the ESA, employees were entitled to a total of two days of paid leave and eight days of unpaid leave for illness, family emergencies, and bereavement.

The Act has totally repealed the old section 50 and has amended the ESA to include a new section 50, 50.1 and 50.2 which establish separate employee entitlements to sick leave, family responsibility leave, and bereavement leave.

Under the new rules, employees who have worked for at least two consecutive weeks are entitled to:

• A leave of absence without pay for a maximum of three days per calendar year because of personal illness, injury or medical emergency;
• A leave of absence without pay for a maximum of three days per calendar year because of illness, injury, medical emergency or other urgent matter affecting an immediate family member; and,
• A leave of absence without pay for a maximum of two days per calendar year because of the death of an immediate family member.

No Prohibition on Requesting Doctor’s Notes

Another significant change brought upon by the rewritten section 50 is the elimination of any rules prohibiting employers from requesting a doctor’s note from an employee requesting a leave of absence.  

Onus to Prove Misclassification is on the Employee

It is still prohibited for employers to misclassify an employee as a contractor.

However, under the previous language, in the case of a complaint, the onus was on the employer to establish that a complainant was not an employee. The new amendments have changed the onus, putting the burden of proof on a complainant to establish that they are an employee.

Differential Treatment for Employees of Different Status

The amendments have repealed to provisions of the ESA that prohibit employers from paying different rates of pay based on difference in employment status (for example, different rates for part-time vs. full time employees or temporary vs. permanent employees) for employees doing substantially the same work.

Other Changes

Other amendments to the ESA implemented by the Act have changed the formula for calculating holiday pay for employees and have decreased the maximum fine amounts for contraventions of the ESA.

More Changes Coming: Bill 66 – Restoring Ontario’s Competitiveness Act, 2019

The OPC’s next legislative effort to reduce regulations and cut red tape is Bill 66, the Restoring Ontario’s Competitiveness Act, currently going through its second reading at Queen’s Park.

While critics of the proposed law have focused mostly on the sweeping changes Bill 66 will have for environmental and planning legislation, the Bill will also implement several further changes to the ESA.

Amongst other changes, if Bill 66 is passed into law, it would eliminate the need for employers to obtain government approval to have employees work more than 48 hours weekly and to engage in overtime averaging agreements. The proposed changes would only require an employer to have written agreements with employees.  

Contact Us

Employers should be careful if they are thinking about changing employment contracts or company policies to reflect these legislative changes. Please feel free to contact us to speak with one of our employment lawyers. We would be happy to help you navigate the changes to the ESA.