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Bill 148 Update: New Regulations and Bill 47 Public Consultations Announced

Fasken
Reading Time 5 minute read
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Labour Employment and Human Rights

On October 23, 2018, the Government of Ontario introduced Bill 47, the Making Ontario Open for Business Act, 2018 in the Ontario Legislative Assembly. We provided an overview of Bill 47 in a previously issued post.

Former Minister of Economic Development, Job Creation and Trade, the Honourable Jim Wilson, and his successor, Minister Todd Smith, have stewarded Bill 47 through first and second readings. On Monday, November 12, 2018, the Ontario Legislature referred the Bill to its Standing Committee on Finance and Economic Affairs (the "Committee"). The Committee provided less than 24 hours for interested members or organizations of the public to register to make oral presentations before the Committee, as it will sit to hear public consultations on Bill 47 this Thursday, November 15, 2018. Those who apply to present will be screened by the Progressive Conservative caucus and the New Democratic Party caucus; each party will then choose an allotted number of speakers from those who have applied. Given the Committee intends to hear public consultations for only one day and on short notice, it is expected that only a few individuals and/or organizations will be chosen by each of the Progressive Conservative and New Democratic Party caucuses to present.

The Committee has invited those who wish to make written submissions to deliver those submissions by 6pm on Thursday, November 15, 2018. Details on the Committee and Bill 47 can be found online here.

The Government of Ontario has also posted a call for comment on certain regulatory changes that it plans to make, incidental to Bill 47. A summary of the proposals is posted on Ontario's Regulatory Registry. The proposed regulatory changes would:

  1. repeal the special rules for pay in lieu of paid Personal Emergency Leave for workers in the construction sector. As Bill 47 proposes to repeal Personal Emergency Leave in its entirety, including the current two paid days of Personal Emergency Leave provided to each employee per year, the special construction rules will no longer be necessary;
  2. amend provisions deeming certain professionals ineligible to take Personal Emergency Leave when doing so would constitute an act of professional misconduct or dereliction of professional duty. The Government of Ontario is proposing to keep this provision for the new leaves of absence being introduced in Bill 47 (Sick Leave, Family Responsibility Leave and Bereavement Leave), and to remove reference to Personal Emergency Leave which will no longer exist;
  3. repeal all exceptions to the equal pay for equal work provisions introduced by Bill 148, as Bill 47 proposes to remove the Bill 148 equal pay for equal work provisions from Ontario law. The current regulatory exemptions are for firefighters, students subject to the student minimum wage, and persons employed in the recorded film and television sectors;
  4. repeal all record keeping requirements related to the scheduling provisions introduced by Bill 148. Bill 47 proposes to strike all these scheduling provisions from the Employment Standards Act, 2000, meaning there would be no need for employers to keep records relating to the scheduling rules;
  5. move the "three hour rule" provisions from regulation into the Employment Standards Act, 2000. These provisions require certain minimum amounts of pay (three hours) for employees who perform work for less than three hours in qualifying circumstances. The Government is proposing to maintain all current exemptions to this rule; and
  6. to discontinue the auto sector pilot project for Personal Emergency Leave. Under the current pilot project, workers in the auto sector are entitled to seven sick days per year, and three bereavement days for each qualifying bereavement (there can be multiple bereavement leaves in a year). Those in the auto sector will be subject to the new Sick Leave (three days per year), Family Responsibility (three days per year) and Bereavement (two days per year) leaves generally applicable to employees in Ontario.

Though the Government's decisions with respect to these regulations seem set given the current trajectory of Bill 47, the public can provide commentary on these proposals by December 16, 2018. The Regulatory Registry call for commentary is online here. Though not stated, we expect that the Government will draft the final regulations to be effective on a date that is aligned with Bill 47 (i.e. January 1, 2019).

It is unclear what further regulatory changes the Government of Ontario is considering, and if any further changes will be forthcoming out of the Government of Ontario's special rules review. Under the former government, the province commenced a review of some 83 special rules and exemptions in the Employment Standards Act, 2000, along with additional exemptions in the Labour Relations Act, 1995. The regulatory changes currently proposed by the Government of Ontario will see the removal of some of those exemptions and special rules.

The auto sector pilot project formed one part of the first phase of the special rule review. Others which are underway and have not been commented on publicly by the new government include a review of the exemptions and special rules for managerial and supervisory employees, IT professionals, residential building superintendents, janitors and caretakers, domestic workers, homemakers, and residential care workers. The Government of Ontario also "outsourced" a review of special rules and exemptions for architects and pharmacists to their respective regulatory colleges; both recommended significant changes to the Government of Ontario, which has yet to implement these changes. It was also expected that the Law Society of Ontario would commence a review of the special rules and exemptions for lawyers by the end of 2018; it is unclear what the status of that review now is.

We will continue to monitor Bill 47, its incidental regulations, and further actions by the Government of Ontario to introduce, amend or remove regulatory employment rules in Ontario going forward.

 

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