Aird & Berlis LLP (“Aird & Berlis”) is delighted to partner with The Academy of Ophthalmic Education (“AOE”) and the Canadian Society of Eye Health Practitioners (“CSehp”) to provide legal services on a preferred basis to AOE and CSehp members. In addition to providing high-quality legal services, Aird & Berlis is committed to working with AOE and CSehp members in other capacities to improve efficiency within your organizations.

The Ontario government recently passed the Working for the Workers Act, 2021 (the “Workers Act”) which made a couple of key amendments to the Ontario Employment Standards Act, 2000 (the “ESA”). This article highlights some of the most significant changes.

We encourage you to reach out to Aird & Berlis regarding questions about the Working for the Workers Act, 2021 and the Ontario Employment Standards Act, 2000.

New Limits on Non-Compete Agreements

The ESA now limits the use and applicability of post employment non-competition covenants in most employment contracts entered into after October 25, 2021. Ontario is the first jurisdiction in Canada to ban post-employment non-compete agreements.

Non-competes have traditionally been difficult for employers to enforce in Canada, with the courts long holding that such restrictions on trade are counter to public policy and are prima facie unenforceable at common law. However, the ESA now establishes an outright ban on such clauses, regardless of their geographic scope or limited duration. The prohibition is effective as of October 25, 2021. Subject to the exceptions set out below, any non-compete agreements entered into following October 25, 2021 are void and unenforceable.

There are two important exceptions. Non-compete agreements will still be permitted in the following two circumstances:

  • To individuals who occupy an “executive” position. “Executive” is currently defined as “any person who holds the office of chief executive officer, president, chief administrative officer, chief operating officer, chief financial officer, chief information officer, chief legal officer, chief human resources officer or chief corporate development officer, or holds any other chief executive position”.
  • The non-competition covenant is tied and/or directly connected to a sale of business (i.e. the preservation of goodwill in the acquired asset/business) Purchasers of businesses in Ontario, therefore, will still be able to including non competition covenants that bind seller employees from competing against them following the sale of a business.

Ontario employers can and should still rely upon their confidentiality, non-solicitation and assignment of intellectual property agreements. We recommend employers review those agreements to ensure they are sufficiently protected.

The Right to Disconnect

All employers who employ 25 or more employees as of January 1 of any year will be required to have a written policy in place by March 2022 for all employees with respect to “disconnecting” from work. “Disconnecting from work” is defined as:

“engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work”. “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.”

The government has not yet provided Regulations as to what must be minimally included in the required policy, only that they must be in writing. The government’s news releases have indicated that the policy could include expectations about response time for emails and encouraging employees to turn on their “Out of Office”. At this time, there is no insight with respect to what employees or professions may be made exempt by virtue of their position/profession, or in respect of emergency situations. We would anticipate that high-ranking employees would be exempt, as well as those who are routinely “on-call” and need to be available to address unforeseen issues.

Further follow-up will happen once the regulations are put in place.