2023 in Review – Key Legislative Updates
Date: January 10, 2024
Last week we published “The Year in Review – 2023 Cases of Note.” This week we are back with our review of notable legislative updates from 2023 that we believe will be of interest to employers, human resources professionals and pension plan administrators.
We also identify some legislation to watch for in 2024.
Employment Standards Act, 2000 (ESA)
Bill 79, Working for Workers Act, 2023 (Bill 79) received Royal Assent on October 26, 2023. Bill 79 is omnibus legislation that amended a number of employment-related statutes. Amendments to the ESA include:
- providing that employees who work from home are eligible for the same enhanced notice provided during a mass termination
- enhancing ESA leave provisions for reservists
- changing the government’s regulation-making authority to allow it to specify what written information must be provided to “employees and prospective employees” including information about rates of pay, work location and hours of work
- strengthening protections for foreign nationals by enhancing the licensing requirements for recruiters and those who use third parties to assist with the recruitment of foreign nationals
On November 14, 2023, Bill 149, Working for Workers Four Act, 2023 (Bill 149) was introduced. Bill 149 is omnibus legislation that, if passed, would amend a number of employment-related statutes. Among other things, amendments to the ESA would include:
- requiring employers to post the range of compensation in publicly advertised job postings
- adding a new section specifying that individuals performing work during a trial period would fall under the ESA’s definition of an “employee”
- stipulating the permitted methods for paying an employee their tips or other gratuities amending the provisions relating to vacation pay and “alternate pay arrangements”
(See our FTR Now Ontario Introduces Working for Workers Four Act, 2023)
- On March 31, 2023, the paid Infectious Disease Emergency Leave (IDEL) enacted by O. Reg. 228/20 under the ESA ended. (See our FTR Now Paid Infectious Disease Emergency Leave Ending March 31, 2023)
- On July 1, 2023, Stage 1 of a new licensing regime under the ESA for temporary help agencies and recruiters (enacted by Bill 27, Working for Workers Act, 2021) was proclaimed into force. (See our FTR Now Licensing Framework for Temporary Help Agencies and Recruiters Coming into Force)
Stage 2 of the regime, originally slated to come into force on January 1, 2024, will now come into force on July 1, 2024. This extends the permitted time frame for licensing applications.
Occupational Health and Safety
- Bill 79 amended the Occupational Health and Safety Act (OHSA) by increasing the fine for a corporation’s contravention of, or non-compliance with, OHSA from a maximum of $1.5 million to $2 million.
- Bill 149, if passed, would amend the Workplace Safety and Insurance Act, 1997 to enable “super indexing” increases to workplace safety and insurance benefits. This would be achieved through the creation of a new regulation-making power to create regulations setting out indexing increases above the annual rate of inflation.
- O. Reg. 61/23, which came into force on July 1, 2023, amended O. Reg. 213/91: Construction Projects made under OHSA to set out more stringent requirements for construction employers with respect to providing well-fitting personal protective clothing as well as safe, private and clean restroom facilities, including a minimum number of designated washrooms for women and new requirements regarding privacy, lighting and sanitation.
- Your Health Act, 2023 (Act) received Royal Assent on May 18, 2023. The Act provides for three schedules that impose various changes to the delivery of healthcare in Ontario. The schedules create integrated community health services centres, allow healthcare workers registered or licensed in other provinces to immediately start practising in Ontario, and amend the Freedom of Information and Protection of Privacy Act with respect to extra-ministerial data integration units. All three schedules are now in force. (See our HR HealthCheck Ontario Tables Bill to Create Integrated Community Health Services Centres, and More)
- On December 4, 2023, changes to the Nursing Act, 1991 and the General Regulation made under it came into force. The changes allow registered nurses (RNs) to prescribe drugs to their patients to treat certain conditions, including contraception, immunizations, smoking cessation and topical wound care. RNs in the general class will have to complete supplemental education programs. (See our HR HealthCheck Ontario Government Expands Role of Registered Nurses)
On June 8, 2023, Bill 98, Better Schools and Student Outcomes Act, 2023, received Royal Assent. Bill 98 implements a series of significant changes to the Education Act, the Ontario College of Teachers Act, 1996 and the Early Childhood Educators Act, 2007.
At a high level, Bill 98 amends:
- the Education Act to, among other things, allow the government to make regulations prescribing provincial priorities in education in the area of student achievement and to implement codes of conduct and training obligations for school board members
- the Ontario College of Teachers Act, 1996 and Early Childhood Educators Act, 2007 to, among other things, expand the powers of the respective Investigation Committees and Discipline Committees
Bill 98 should be consulted for coming into force information. (See our School Board Updates Ontario Proposes Significant Amendments Impacting School Board Sector and Bill 98, Better Schools and Student Outcomes Act, 2023 receives Royal Assent)
Pension, Benefits and Executive Compensation
- In March 2023, the Ontario government announced consultations on proposed regulations related to the implementation of a permanent legislative framework for target benefit multi-employer pension plans in the province. The permanent framework would replace temporary funding regulations for Specified Multi-Employer Pension Plans set to expire in 2024. Following the expiry of those public consultations in June 2023, the Ontario government issued a second consultation paper outlining a set of revised proposals on September 1, 2023, with a comment period that was open until October 17, 2023. The revised proposals included the following: a revised approach to the provision for adverse deviations (PfAD) in which plan administrators would have discretion to establish their plan’s PfAD in line with the plan’s funding and benefits policy; streamlined requirements for the conversion process, permitting a reduction in the commuted value calculation based on the going concern funded status of a plan if required by plan terms; and, a new requirement for plan administrators to establish and file a communications policy. (See our FTR Nows Ontario Government Consultation on Permanent Framework for Target Benefit Plans and Ontario Pension Plan Update: Ongoing Consultations of Interest)
- On April 27, 2023, Bill C-228, Pension Protection Act (Bill C-228) came into force. It requires pension plan deficits to be paid in priority to most other creditors, including secured creditors, during bankruptcy and insolvency proceedings, effectively establishing a “super priority” for pension deficit funding. Bill C-228 imposed changes to the Bankruptcy and Insolvency Act and Companies’ Creditors Arrangement Act to address these changes in priority. There is a four-year transition period built into Bill C-228 for existing pension plans, meaning the new pension priority following Bill C-228’s implementation will not take effect until April 27, 2027. Pension plans introduced after April 26, 2023, the day before the day on which Bill C-228 came into force, are already subject to the pension priority rules. The implications of these changes for employers, and particularly the impact on credit arrangements, remains to be seen. (See our FTR Now Bill C-228 Offering Pension Protection in Bankruptcy Receives Royal Assent)
- In September 2023, the Canada Revenue Agency (CRA) published a new administrative policy that will affect the manner in which the province of employment is determined for purposes of the payroll deductions an employer must make in respect of employees who work fully remotely. The new policy came into effect on January 1, 2024 and may require changes to the payroll tables applied to fully remote workers in 2024 and beyond. (See our FTR Now New CRA Administrative Policy Will Affect Payroll Administration for Fully Remote Work Arrangements)
- As of January 1, 2024, in addition to the regular CPP contributions on pensionable earnings up to the Year’s Maximum Pensionable Earnings (YMPE), employers and employees will each be required to contribute 4% on pensionable earnings above the YMPE, if any, up to the new Year’s Additional Maximum Pensionable Earnings (YAMPE). In 2024, the YMPE will be $68,500 and the YAMPE will be $73,200. The increase comes as part of the final phase of enhancements to the CPP that was introduced in 2016 through the federal An Act to amend the Canada Pension Plan, the Canada Pension Plan Investment Board Act and the Income Tax Act. (See our FTR Now Final Phase of 2016 CPP Enhancements Takes Effect January 1, 2024)
Canada Labour Code (CLC)
- On July 9, 2023, amendments to the CLC and accompanying regulations came into force and set out new employer obligations with respect to reimbursing employees for work-related expenses, providing employees with a statement of employment conditions, and giving employees copies of certain Minister of Labour materials at specific times (including upon termination).
Effective December 15, 2023, employers subject to the CLC are required to provide menstrual products, including clean and hygienic tampons and menstrual pads, in each toilet room at the workplace regardless of marked gender.
(See our Federal Post Government of Canada Announces Changes to Federal Employment Standards Coming Into Force)
- On November 9, 2023, the federal government introduced Bill C-58, An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012 (Bill C-58), which, if passed, would ban the use of replacement workers in federally regulated workplaces to do the work of striking or locked out workers once notice of bargaining has been given. This ban would be subject to certain exceptions and would establish the illegal use of replacement workers during a strike or lockout as an unfair labour practice. (See our Federal Post Federal Government Tables Legislation to Ban Replacement Workers)
- On August 4, 2023, the federal government published Regulations Amending the Exemptions from and Modifications to Hours of Work Provisions Regulations and the Administrative Monetary Penalties (Canada Labour Code) Regulations. Additional exemptions from and modifications to the hours of work provisions for specified classes of employees come into force on January 4, 2024 for the banking, telecommunications and broadcasting industries, and will come into force on June 4, 2024 for the air transportation industry. Schedule 2 in the Administrative Monetary Penalties Regulation that set out penalties for breaches under the Exemptions Regulations was repealed on August 4, 2023. (See our Federal Post Federal Government Adds Exemptions and Modifications to Hours of Work Provisions, Repeals Penalties for Breaches)
- On February 1, 2024, the termination provisions of the CLC will be amended to provide employees with a graduated notice of termination based on their consecutive years of continuous employment, subject to exceptions. Employers will also be required to provide employees with a statement of benefits upon termination. (See our Federal Post Reminder: Significant Amendments to the Termination Provisions of the Canada Labour Code Are Coming Into Effect on February 1, 2024)
- For those federally regulated employers which became subject to the Pay Equity Act as of August 31, 2021 (the day the Act came into force), a final version of their Pay Equity Plans must be posted no later than September 3, 2024 (the deadline specified by the Pay Equity Unit of the Canadian Human Rights Commission).
- Use of French in Federally Regulated Private Businesses Act: On June 20, 2023, the Use of French in Federally Regulated Private Businesses Act received Royal Assent. Among other things, it sets out new rights for employees which will apply to federally regulated workplaces in Québec and other regions in Canada with a strong francophone presence. These rights include the right to work and be supervised in French, the right to receive communications and documentation from their employer in French (while not precluding communications in both languages, provided French is at least equivalent to English), the right to use regularly and widely used work instruments and computer systems in French, and the right to file complaints regarding the language of work. The Act has not yet been proclaimed into force, and the anticipated date of proclamation is not known at this time.
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