In 2023, an employment standards officer was investigating a complaint made by a Boston Pizza employee in Pembroke in relation to their entitlements under the Ontario Employment Standards Act, 2000 (“ESA”).

During the course of the investigation, the restaurant’s manager stated that the employee was not entitled to termination pay because they were terminated for cause/wilful misconduct. As a result, the officer requested they produce records to substantiate their position, and the restaurant manager provided records to the officer which included complaint forms from customers and a co-worker about the employee.

The officer continued to make inquiries and determined the documents were fake – the customers and the coworker had not made any complaint.

Providing false or misleading information to an employment standards officer is a violation of the ESA, which is also an offence under section 132 of the Provincial Offences Act (“Act”).

Following a guilty plea in March 2026, the restaurant manager was fined $15,000. The court also imposed a 25% victim fine surcharge required by the Act. The surcharge is credited to a special provincial government fund to assist victims of crime.

As a reminder…
An employer or other person who is believed to have committed an offence under the ESA can be prosecuted under the Act. It is an offence for an employer or other person to:

• contravene the ESA or regulations
• make or keep false records or other documents that must be kept under the ESA
• provide false or misleading information under the ESA
• fail to comply with an order, direction or other requirement under the ESA or regulations

If convicted, the employer or other person could be subject to a fine or a term of imprisonment or both. Individuals, if convicted of an offence, can be fined up to $100,000, imprisoned for up to 12 months, or both.

A corporation can be fined up to $100,000 for a first conviction. If the corporation has already been convicted of an offence under the ESA, it can be fined up to $250,000 for a second conviction. For a third or subsequent conviction, the corporation can be fined up to $500,000.

If an Officer arrives to conduct a proactive inspection or if a complaint has been filed against you – take it seriously! And as always, contact e2r® for advice and support.

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In these situations, it is important to keep in mind that employment human rights protections start the moment contact is made with a potential employee through to the cessation of employment. Simply put, the moment that a candidate applies for a job they have an inherent right not to be discriminated against based on the applicable prohibited grounds. Questions during the interview process and/or post offer that revolve around a protected ground could expose the company to a human rights complaint.

In Ontario, and in other jurisdictions, there is not much that you can do to prevent hiring an employee on a fixed term work permit. The candidate has the right not to be discriminated against based on citizenship and work permit status. An employer’s failure to hire or removal of an offer of employment based on these reasons may amount to direct discrimination.

Case Law – Imperial Oil Limited v. Haseeb (2023 ONCA 364)
In this case, Mr. Haseeb held a Post-Graduate Work permit for 3 years and applied for a position at Imperial Oil Limited (the “Company”). During the interview process Mr. Haseeb was asked about his eligibility to “work in Canada on a permanent basis” and he answered “yes” despite only holding a 3-year work permit. Mr. Haseeb was provided with a job offer, with the condition of providing proof of his eligibility to work in Canada on a permanent basis. When he was unable to provide this the Company rescinded the offer. Mr. Haseeb brought a human rights application claiming that he was discriminated against on the basis of citizenship.

The Company argued that its policy did not discriminate on the basis of citizenship given permanent residents can meet the requirements. The Company argued in the alternative that the policy was a bona fide occupational requirement because of the investment made by the Company in training new recruits and the Company’s expectation that the recruits spent their entire careers with the Company in positions of progressive responsibility. Furthermore, the Company argued that their loss of investment in Mr. Haseeb in the event he did not obtain permanent residence status would amount to undue hardship. Finally, the Company argued that it rescinded the offer not because of Mr. Haseeb’s residency status but in light of his dishonesty in the application process

The Ontario Court of Appeal restored the decision of the Human Rights Tribunal of Ontario and found that employers cannot discriminate against job candidates who do not have Canadian permanent residence status or citizenship but are legally able to work in Canada.

Employers across the country should take this decision to heart and review their hiring practices to ensure candidates are not being screened out based on their ability to permanently work in Canada. If you have any questions regarding your hiring practices or policies, please don’t hesitate to reach out to speak to an e2r® Advisor.

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Layoff vs. termination — why the distinction matters
While a temporary layoff is not a termination, the difference can be easy to overlook.

Under the ESA, a temporary layoff allows an employer to pause an employee’s work without ending the employment relationship, as long as the layoff stays within specific time limits and statutory conditions. A termination, by contrast, ends the employment relationship and triggers obligations such as notice of termination, severance pay (where applicable), and benefit continuation.

Reminder:

• If a layoff exceeds ESA time limits or fails to meet required conditions, it is deemed a termination
• Even if ESA rules are met, a layoff may still constitute constructive dismissal unless the employment contract expressly allows layoffs

Employers must assess temporary layoffs for both ESA compliance and contractual risk.

Extended temporary layoffs (beyond 35 weeks)
Employers may now implement layoffs lasting up to 52 weeks in a 78-week period, but only if strict conditions are met:

• A written agreement with the employee
• A defined recall date disclosed in advance
• Approval from the Director of Employment Standards
• Record retention for at least three years

Failure to meet any of these requirements can result in the layoff being deemed a termination, triggering notice and severance obligations.

Why this matters for employers:
While these changes provide greater flexibility, they also increase complexity and risk:

• A non‑compliant layoff may be deemed a termination under the ESA
• Even compliant layoffs may trigger constructive dismissal claims if not expressly permitted by contract
• Poor documentation can lead to unexpected severance obligations

Ontario’s expanded rules offer more flexibility—but only if applied carefully. Employers should clearly distinguish between layoffs and terminations and ensure their contracts, policies, and processes are aligned to manage risk.

If your organization is reviewing workforce strategies or updating employment agreements, please don’t hesitate to reach out to speak to an e2r® Advisor.

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Understanding Family Status Accommodation
“Family status” under the Code refers to responsibilities arising from a parent–child relationship, including both childcare and eldercare obligations. Employers are required to accommodate these needs where they result in a genuine conflict with workplace rules, unless doing so would cause undue hardship.

Accommodation requests commonly arise in relation to:

• Work schedules and shift assignments
• Requests for flexibility or alternative hours
• Time away from work to manage caregiving responsibilities

Importantly, accommodation is not a one‑sided obligation. Employees also have a duty to participate meaningfully by:

• Identifying the nature of the conflict between their work obligations and family responsibilities, and
• Making reasonable efforts to explore alternative arrangements outside the workplace where possible.

Undue Hardship & The Tribunal’s Findings in Aguele

In Aguele, the employee, a single parent, sought changes to her schedule to avoid late evening and weekend shifts due to childcare obligations. She alleged her employer failed to accommodate her family status and retaliated against her by reducing her shifts.

The employer, however, put forward evidence of the operational realities of its service model and the accommodations it had explored and offered. While the employer could not provide the employee’s preferred schedule, it proposed alternative options intended to address her needs while continuing to meet client requirements.

The Tribunal noted that Ms. Aguele’s refusal to accept reasonable accommodations and insistence on her preferred schedule did not align with the collaborative spirit required in the accommodation process:

[86] I accept that at some point the applicant made their family status needs known and requested certain scheduling changes as an accommodation. However, the duty to accommodate is not unlimited, see Stanley at para. 25. The applicant requested shifts that did not exist or would require the respondent to split shifts. I accept the respondent’s evidence that these changes were not feasible given the nature of the service they provide and the needs of their clients. Employees are not entitled to perfect accommodation, but rather to accommodation that is reasonable in the circumstances.

For these reasons, the Tribunal held that the employer’s duty to accommodate had been discharged and dismissed Ms. Aguele’s application because she failed to engage in the accommodation process.

Key Takeaways

The Tribunal’s decision in Aguele confirms that employers who engage in a genuine, collaborative process and offer reasonable accommodations within operational constraints will generally have met their legal duty to accommodate, and highlights the following:

1. The duty to accommodate is a collaborative process requiring active participation from both the employer and the employee in good faith to find reasonable solutions.
2. A clear distinction exists between an employee’s genuine need for accommodation based on a Code-protected characteristic and personal preferences.
3. Employers have the right to balance the employee’s accommodation needs with their operational requirements.

If you would like to discuss any of the above circumstances or need any other assistance please don’t hesitate to reach out to speak to an e2r® Advisor.

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Investigators are tasked with navigating a complex intersection of procedural compliance, people management, employee privacy, and ensuring that the conclusions reached in the investigation (and any decisions regarding discipline or remediation resulting therefrom) are reasonable in the circumstances.

However, it is important for investigators to remember that a proper workplace investigation does not require perfection. Instead, the reasonableness of an investigation and its findings are evaluated on an objective basis.

In other words, the question is not whether the investigation was perfect. Instead the question is whether, based on the information available, was the investigation conducted fairly and could a reasonable person have come to the same conclusion?

Standards for workplace investigations were helpfully reviewed by the Federal Court in its decision of Andruszkiewicz v Canada (Attorney General), 2023 FC 528. In this case, an employee challenged several alleged procedural issues with a workplace harassment investigation. The employee argued the investigator interviewed the wrong witnesses, used flawed methods, took too long, and demonstrated bias. Despite this broad attack, the Court dismissed the employee’s complaints after reviewing the investigator’s process and determining it was fair and reasonable in the circumstances.

The Court’s decision confirmed that investigators are independent professionals who are entitled to reasonably control the investigation process. This includes deciding which witnesses to interview based on the allegations and evidence presented, what questions to ask witnesses, and how to reasonably structure the investigation process in the applicable circumstances.

Practical Tips

Provided a workplace investigator follows an objectively fair and reasonable process, Courts are generally reluctant to second-guess the investigator’s choices or findings. As such, investigators should follow these general principles to ensure their investigation avoids any presumption of bias or unfairness:

• Investigators need to be reasonable, not perfect: An investigation can be adequate without being exhaustive or flawless. Courts will not second-guess reasonable methodological decisions.
• Investigators have discretion: Decisions about scope and process fall within the investigator’s expertise, provided they are made in good faith and are rational.
• Procedural timelines can be modified if doing so is necessary or reasonable: Missing an internal deadline is not fatal if you communicate the need for an extension to the parties involved. The focus is on effort and fairness, not strict compliance with timelines.
• Documentation is essential: Investigators should keep careful and detailed records to support the investigation was conducted fairly and in a timely fashion and that the evidence supports the investigation’s findings.

Conclusion
If your workplace is met with the requirement to conduct a workplace investigation, reach out to your e2r® Advisor to discuss how best to follow an objectively fair and reasonable process in the circumstances.

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George Kordolemis worked for Sobeys for 33 years when his employment was terminated for cause. In September 2024, a coworker accused Mr. Kordolemis of using a racial slur towards him, which prompted Sobeys to initiate an investigation. As part of the investigation, Sobeys interviewed several of Mr. Kordolemis’ coworkers and they uncovered that Mr. Kordolemis had used this same racial slur on many occasions in the workplace. He was also heard using a homophobic slur when cursing at malfunctioning equipment.

The investigation revealed that Mr. Kordolemis’ use of inappropriate language in the workplace extended beyond the single issue originally raised that prompted the investigation but in fact his use of racial epithets towards his coworkers was a regular occurrence. In addition, the adjudicator said that calling equipment a homophobic slur was “an attack on the LGBTQ+ community.”

Sobeys had in place a Respectful Workplace policy and Mr. Kordolemis last signed a declaration of his review of this policy in October 2023. The Respectful Workplace policy clearly set out that “Disrespectful or violent behaviour, discrimination, bullying or harassment of any sort by any employees of Sobeys, contractors or suppliers will not be tolerated.” The court found that the Respectful Workplace policy was an implied contractual term in Mr. Kordolemis’ employment contract.

Mr. Kordolemis argued that his conduct did not amount to wilful misconduct as it was not his intention to harass anyone. His argument was rejected by the court. The court also noted that in this case progressive discipline was not required given the seriousness and the offensiveness of the conduct. This is despite Mr. Kordolemis’ 33 years of service!

The court cited a previous decision that confirmed the use of racial or ethnic slurs is very serious misconduct that justifies the termination of the employment relationship.

As always, navigating a termination for cause is extremely complicated and requires a detailed analysis of the individual fact scenario. We strongly encourage you to speak with an Advisor prior to proceeding. If you have any questions or would like our support, please do not hesitate to contact ClientCare.

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However, there is exposure for the Company when an employee covertly records a private conversation to further their personal agendas. Surreptitious recorded content may be used by employees in a variety of ways, such as internal workplace complaints, as leverage in negotiations and even being brought into litigation.

It is important to note that under the Canadian Criminal Code, it is legal to record a conversation you are actively part of, even if the other party is not aware (one-party consent).

Case Law: Teljeur v Aurora Hotel Group, 2023 ONSC 1324
In this case, the employee had been dismissed without cause and had secretly recorded the termination conversation. Following termination, the employee filed for wrongful dismissal and sought punitive damages, relying on the recording to support their claims. The transcript was admissible and revealed that the employer had tried to convince the employee to resign from their position prior to eventually terminating them. The Court gave considerable weight to the transcript and held that the employer’s actions in dismissing the employee were a breach of the duty of good faith and fair dealing. The decision was upheld on appeal.

As an employer, here are a few things you can do to minimize the exposure of employees surreptitiously recording conversations:

• Develop a workplace policy on recording. This should explicitly state:
  • Employees are not permitted to record, without seeking prior approval from all parties involved in the conversation; and
  • Breach of this is a serious employment offence and may result in discipline.
• Ensure that all Company approved meetings that are being recorded through internal Company programs (ex. Zoom, Teams), explicitly notify your employees that they are being recorded.
• Be prepared to have your conversations recorded and conduct yourself in a respectful and professional manner at all times.

If you have any questions about the recommendations above or any specific situations in your workplace, please do not hesitate to reach out to speak with an e2r® Advisor.

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The dispute arose after an employee (Kinzett – a salaried dispatcher) filed a complaint with the Ministry of Labour alleging unpaid overtime. An Employment Standards Officer investigated and issued an order to pay overtime wages. The employer appealed the order to the OLRB, arguing that the employee was not entitled to overtime pay because he fell within an exemption under the ESA.

Under the Ontario ESA, most employees are entitled to overtime pay at 1.5 times their regular rate for hours worked beyond 44 hours in a week. The employer claimed that the employee was only entitled to overtime pay after working beyond 50 hours in a week. The central question before the OLRB was whether the employee’s actual job duties met the requirements of an overtime exemption.

The OLRB found that the employee was entitled to the standard overtime threshold of 44 hours per week and ordered the employer to pay $55,011.

In addition, the OLRB confirmed several important principles:

1. Paying a salary alone does not remove overtime obligations.
2. Payroll records and documentation are critical in defending ESA claims.
   OLRB rejected the employer’s argument that the employee’s time entries were unreliable as the employer had no independent time records, while the employee’s timesheets had been routinely reviewed and used for billing.
3. An employer cannot penalize an employee for asserting their ESA rights.
   OLRB found that the employer dismissed the employee because of his ESA claim. Accordingly, OLRB awarded $130,003 in reprisal damages ((lost wages, loss of employment, job‑search expenses, and emotional suffering compensation).

To reduce overtime liability risk, employers should:

• Conduct regular job duty audits
• Ensure payroll systems properly track hours worked
• Train managers on ESA compliance requirements

The decision in 614128 Ontario Ltd. v. Kinzett reinforces that overtime exemptions are based on actual job functions. Ontario employers should proactively review their classifications to ensure compliance under the ESA.

If you have questions about overtime eligibility, employee classification, or Employment Standards compliance, we recommend reaching out to speak to an e2r® Advisor.

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Concerns & Considerations

Employee’s Right to Refuse Unsafe Work: Extreme weather can make commuting dangerous and an employee may refuse to go to work because they don’t feel safe driving in the winter conditions. This may trigger an obligation under occupational health and safety legislation for refusal to perform unsafe work, and this can include travel to the workplace.

What that means is that employers across affected provinces should think carefully before insisting on in-person attendance during a storm, particularly where public advisories are warning about dangerous travel and urging residents to stay put.

Human Rights & Family Obligations: Weather-related school and daycare closures may trigger family-status accommodation obligations. Engage in good-faith discussions and explore reasonable accommodations where possible.

Maintain Safe Worksites: Review practices and meet occupational health and safety obligations, by ensuring entrances, walkways and parking areas and cleared and safe for employees. Recognize that slips and falls related to snow and ice may be considered workplace injuries.

Employer Takeaways

Proactive planning and clear policy language about when employers can schedule vacation and how storm-related closure will be treated is crucial to reduce uncertainty for both managers and staff. We recommend the following proactive steps and policy elements:

• Identify roles that can be performed remotely during severe weather — even if remote work is not normally permitted.
• Define and clarify what happens to pay, vacation time or personal days when weather affects attendance. Generally, there is no automatic obligation to pay employees for time not worked due to weather and you may provide your employees with the choice to utilize accrued vacation time, or treat the day as unpaid.
• Communicate expectations clearly and proactively: who should work remotely, who is excused, and how to report availability.
• Consider implementing a policy that provides structure, without being overly rigid, which sets out core principles – such as prioritizing safety, complying with local employment standards and human rights law, and using remote work where possible. Be sure to apply policies consistently to avoid disputes.
• Provide support and guidance to local leaders on how to respond to specific conditions in their region.
• Where weather conditions do not trigger the statutory “unsafe work” process, such refusals to attend at work may become an issue of insubordination. However, and especially in the absence of clear policies, employers should generally avoid discipline based solely on weather-related absences.

If you have any questions about the recommendations above or any specific situations in your workplace, please do not hesitate to reach out to speak with an e2r® Advisor.

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Unfortunately, while courts across Canada have been consistent that termination provisions must be clear and unambiguous, they have been inconsistent in their interpretation of whether certain language causes the termination provision to be offside of legislative requirements, and therefore unenforceable.

For example, until recently it was common for termination provisions in Canada to state that an employee’s employment relationship could be terminated “at any time” or “for any reason” so long as the employer provided the employee with the minimum legislative entitlements applicable in their jurisdiction of work.

Recent employment-related litigation in Canada has called into question whether the inclusion of the “at any time” language is consistent with applicable employment standards legislation.

The argument from employees is that the ability for the employer to terminate employment “at any time” theoretically creates a scenario in which an employee could be illegally terminated during a job during protected leave of absence (for example a parental leave). The argument from employers is that the termination provision should be interpreted in the context of the employment agreement as a whole, which typically guarantees that under no circumstance will an employee receive less than their minimum legislative entitlements.

This issue is of practical importance to both employees and employers. If you have spoken to an e2r® Advisor about your organization’s employment agreements, you know that when a termination clause is deemed unenforceable, the employer’s obligations at termination could shift from a clearly defined legislative requirement to potential liability for months of common law notice pay.

What Have the Courts Said?
The answer to whether the inclusion of the “at any time” language in a termination provision is enforceable has been inconsistent across Canadian courts. There have been several cases where a court has struck down the termination provision and awarded the employee common law notice, and several others where the provision has been deemed enforceable.

Thankfully, this inconsistency is set to be resolved. The Ontario Court of Appeal is scheduled to hear appeals of two Ontario employment law decisions (Li v. Wayfair Canada ULC and Baker v. Van Dolder, both of which focus on the inclusion of the “at any time” language in a termination provision. The appeals were originally scheduled to be heard together on January 16, 2026, but have since been adjourned to March 26, 2026.

While a decision from an Ontario court will not necessarily result in the same conclusion being reached by courts in other provincial jurisdictions, it is common for employment law precedents from Ontario to influence contractual interpretation across Canada. As such, regardless of your jurisdiction of operation, all employers should be mindful of the result of these appeals.

Conclusion
Our team will continue to monitor the situation and keep you up to date on how the Ontario Court of Appeal (hopefully) finally provides clarity to Canadian employers and employees alike.

If you have questions regarding the current termination provision in your employment agreement templates, reach out to speak with an e2r® Advisor to discuss how best to protect your company from unnecessary risk and potential liability.

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