Canadian Lawyer InHouse

NOVEMBER 2017 18 INHOUSE arise when companies aren't able to pro- vide that documentation. "In many cases, the concern isn't that the organization has been subject to a CRTC investigation but that they cannot prove their compliance through sufficient documentation," says Reynolds. What she's seeing as a consequence is buyers asking for specific CASL compli - ance reps (representations), which is more specific, and on the seller side more con- cerning, than the typical compliance with applicable law representation or material compliance. "It's more concerning because the company has to pay more attention that the rep is accurate and pay attention to what the indemnity or breach of representation consequence is." Especially for startups engaged in digital marketing, it's a really important part of the valuation of the business, but they may not have the internal compliance documentation. 2. LABOUR AND EMPLOYMENT: MORE RIGHTS FOR WORKERS This past spring, the Ontario gov- ernment revamped its provincial employment legislation and cre- ated the Fair Workplaces, Better Jobs Act, 2017, which includes a wide range of amendments to the Employment Standards Act and Labour Relations Act. The goal is to create greater cer - tainty for workers across Ontario, but some suggest the proposed changes in Bill 148 could create significant competitive issues. With the stated goals of creat - ing more opportunity and securi- ty for workers, key amendments, if enacted, will: • Raise the minimum wage to $15 per hour by Jan. 1, 2019; • Require employers to pay part-time, tem - porary and seasonal workers the same rate as regular full-time employees; • Allow employees to request schedule changes or even refuse shifts if asked to work with insufficient notice, effective Jan. 1, 2019; • Increase to minimum vacation entitle - ments to three weeks per year for employ- ees with five or more years of service; • Give all employees in Ontario paid per- sonal emergency leave days, not just those with 50 or more employees. A minimum number of those 10 have to be paid days. Previously, all 10 were unpaid. Employers can no longer ask for doctor's notes; • Make it easier for unions to obtain bar - gaining rights; • Increased fines and penalties for non- compliance. "There seems to be a lack of economic data to justify that increase," says Richard Charney of Norton Rose Fulbright LLP. "For those advocates who say it shouldn't have an impact on employment, that's naïve. The concern is it might discourage further or continued employment." More complicated, says Charney, is the "equal pay for equal work" provisions in Bill 148 that would come into effect April 1, which isn't about gender-based pay equity. "We're talking about a fairly radical step of prohibit - ing employ- ers from paying part–time casual and sea- sonal employees a rate lower than full-time employees. "I understand the policy behind it — to try and benefit traditionally disadvantaged workers — but what this legislation fails to take into account is the lack of experience these folks may have compared to full-time employees. It will also require employers to engage in costly and time-consuming reviews of all the roles and wages to determine whether the jobs fall under that," says Charney. The changes should prompt employers to review their employment policies to ensure they are in line with the new minimum requirements, says Daryl Cukierman, partner at Blake Cassels & Graydon LLP in Toronto. Of course, also impacting employers next year will be the introduction of cannabis le - galization in Canada. "We're starting to get more calls on it and absolutely I think it's going to be a function of being clear in set- ting expectations and reminding employees of expectations around drug and alcohol use in the workplace and that may require employers to take a look at current policies and make sure they still read how they want in light of the new legislation coming down and provide refresher training on expecta - tions," says Cukierman. "The expectation should be employees come to work fit to perform their duties." He recommends employers take a proac- tive approach given that cannabis will no longer be an "illegal" drug. "It is possible that employee attitudes about what constitutes acceptable work- place behaviour may shift, so I'm advising employers to get ahead of the curve and proactively deal with potential misunder- standings and look at code of conduct and occupational health and safety polices re- lated to smoking at work and workplace im- pairment and vehicle use policies," he says. An extension of that are client or social and entertainment policies. "Most employers will allow an employee to take a client out for dinner and drinks, but what about when marijuana becomes legal? Despite its legality, are employers go - ing to take a different line on that?" And Ontario is not the only province looking to revamp its employment laws. In British Columbia, the relatively still new NDP government is looking at changes to the labour relations code that would al - low for moving from a secret ballot to a card system for union certification. Employers are concerned that a secret ballot system prevents employees from being intimidated by co-workers into certification. "What the NDP would like to do is move to a card-only system so, if a union is ca - pable of getting more than 50 per cent of the employees from the bargaining unit to sign cards, there would be an automatic certification without a vote," says Michael Howcroft, partner with Blake Cassels & Graydon LLP in Vancouver. There seems to be a lack of economic data to justify that increase. RICHARD CHARNEY, Norton Rose Fulbright LLP

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