Canadian Lawyer

44 S E P T E M B E R 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m existing legislative framework in Ontario "as pretty much in the mainstream," compared to most other provinces in Canada. Lynn Harnden, a partner at Emond Harnden LLP in Ottawa, also urges caution in the review. "It is true that the LRA and ESA show signs of wear. Some of the terminology evokes another era and seem particularly dated in the context of the changes in demographics in the last 20 years. What is needed, however, is a considered review, which is tempered by an appreciation of the impact of amendments in workplaces in the province," says Harnden. The major unions have been the most vocal in their position, calling for signifi- cant changes to the statutes. The Ontario Federation of Labour, for example, has posted its submissions online and is calling for measures to make it easier to form a union, including card-based certifica- tion and "neutral" locations for votes. The organization also wants the province to enact anti-replacement-worker rules. The Canadian branch of the United Food and Commer- cial Workers union welcomes the review. At the same time, it says the existing Labour Relations Act is too skewed toward employers. "Balancing the playing field is essential in his review," says UFCW Canada general counsel Naveen Mehta. Amendments to permit card- based certification and first- contract arbitration are the priorities for the union, says Mehta. "There should be a one- step process [to union certifica- tion] like every other process." While the Supreme Court ruled in 2011 that farm work- ers could be excluded from the LRA, Mehta says the province should change its policy and allow them to bargain collec- tively. "These are ultra precari- ous workers. Why are they not given the same collective rights as a police officer?" he asks. Another public submission to the review was made by Dr. Penny Sutcliffe, the medical officer of health for the Sudbury & District Health Unit. She called for similar working condi- tions, such as benefits, for all classes of worker and to make it easier for non-permanent employees to receive sick pay. As well, Sutcliffe suggested an amendment to increase the minimum two weeks of annual vacation pay that is now set out in the ESA, which she said was equal to that currently in place in Haiti. While he describes it as "early days" in the overall review process, Dyer says it appears that, so far, unions have been more public in putting forth their views on the changes they are seek- ing. On the non-unionized side, lawyers who represent these employees say they hope the review leads to a less complicated process for clients to navigate, especially the growing number of non-permanent workers. "I think there is a general feeling that a review is good," says Ellen Low, a lawyer at Whitten & Lublin in Toronto. She was encouraged by some of the changes the province enacted last fall in what it called the Stronger Workplaces for a Stronger Economy Act, which included increased rights for people who obtain work through temporary employment agencies. "The Employment Standards Act is a really confusing piece of legislation, with a lot of exemptions and regulations," says Low. She hopes the review will also clarify the intent of some aspects of the statute and its regulations, which are not currently clear. Given the increase in temporary positions, the review might also more closely examine areas such as the rules around vaca- tion pay for these workers. As well, there is conflicting case law in the area of severance pay for employees who have worked for a company for more than five years, says Low. Jason Beeho, a partner at Rubin Thomlinson LLP in Toronto, notes that statutory holidays are likely to be part of the review. "Our religious holidays are all Christian holidays. That will be a point of discussion given the diversity in the workplace," says Beeho. L E G A L R E P O RT \ L A B O U R & E M P L O Y M E N T WHAT IS NEEDED ... IS A CONSIDERED REVIEW, WHICH IS TEMPERED BY AN APPRECIATION OF THE IMPACT OF AMENDMENTS IN WORKPLACES IN THE PROVINCE. LYNN HARNDEN, Emond Harnden LLP Untitled-7 1 2015-08-20 10:40 AM

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