Articles:

1. Ontario Gets Working for Workers Seven…And B.C. Plays Catch-Up (Or Skips Ahead)
2. Truth Over Tarnish: Negative Work Reference Held Not Defamatory
3. Time to Face the Change: HRTO Introduces Mandatory Mediation and Releases Updated Practice Directions

 

Ontario Gets Working for Workers Seven…And B.C. Plays Catch-Up (Or Skips Ahead)

Anthony Kwong

On May 28, 2025, the Government of Ontario introduced the Working for Workers Seven Act, 2025, building on a number of previous changes to workplace-related legislation contained in six previous Working for Workers Acts. Meanwhile, in April 2025, the Government of British Columbia introduced legislation to prohibit employers from requiring employees to provide sick notes for “short-term” health-related leaves, echoing changes made in the recent Working for Workers Five Act in Ontario.

Ontario

If passed, the Working for Workers Seven Act will, among other things:

Amend the Employment Standards Act, 2000 (ESA) to:

• Define “job posting platform” as online platforms that display publicly advertised job postings (but not including platforms operated by an employer that only advertises positions with that employer);
• Require job posting platforms to have (and display) a mechanism or procedure in place for users to report fraudulent publicly advertise job postings to the platform;
• Require job posting platforms to have (and post) a written policy on addressing fraudulent job postings (and requiring such policies to be retained for three years after the applicable policy ceases to be effective);
• Add a new leave permitting employees who receive notice of mass termination (50 or more employees) to three days of unpaid leave to engage in activities related to obtaining employment (e.g. interviews, job searches, training); and
• Provide for lay-offs longer than 35 or more weeks in a 52-week period (provided the lay-off does not exceed 52 weeks in a 78-week period) in certain circumstances, when the employer and employee agree, and the Director of Employment Standards approves.

Amend the Occupational Health and Safety Act (OHSA) to:

• Require automated external defibrillators (AEDs) on construction projects with 20 or more workers that are expected to last three months or longer, and creating a program through the Workplace Safety and Insurance Board (WSIB) to reimburse constructors for the purchase of an AED; and
• Establish the authority to create a new general Administrative Monetary Penalty (AMP) regime under the OHSA.

Amend the Workplace Safety and Insurance Act, 1997 (WSIA) to:

• Prohibit employers from making false or misleading statements or representations to the WSIB in connection with any person’s claim for insurance benefits;
• Add administrative monetary penalties for certain contraventions of the WSIA, such as making a false or misleading statement or representation to the WSIB, failure to pay a penalty, or failure to pay premiums when they become due;
• Increase the maximum penalty under the WSIA for persons convicted of two or more counts of the same offence in the same legal proceeding to $750,000; and
• Add aggravating factors to be considered in determining penalties under the WSIA.

British Columbia

If passed, the Employment Standards Amendment Act, 2025, will amend the Employment Standards Act to prohibit employers from requiring an employee to provide a “specified health record” (i.e. a note, document, or other record produced by a health practitioner) in order to be entitled to a “health-related leave” (any leave or absence from work related to the health, illness, or injury of the employee). This prohibition only applies to “short-term absences”, which has yet to be defined and which will be established through regulations, following a consultation process.

Currently, employers are entitled to request “reasonably sufficient proof” from employees taking sick leave under the Employment Standards Act (or any sick leave provided in excess of the statutory minimum sick days), which can include a sick note or other documentation. The proposed amendments will now prohibit requesting such sick notes for “short-term absences”.

This follows a similar amendment in Ontario’s Working for Workers Five Act, which prohibited employers from requiring a “certificate” (i.e. sick note) from a “qualified health practitioner” for the purpose of establishing an employee’s entitlement to take the three (3) days of unpaid sick leave under Ontario’s ESA. Depending on how “short-term absence” is defined in BC (note that BC provides for five (5) paid sick days and three (3) unpaid sick days, by statute), the prohibition on requesting sick notes may match or potentially exceed the similar prohibition in Ontario.

Key Takeaways for Employers

In Ontario, the Government continues to implement changes aimed at greater transparency and protection for employees, which translate to increased obligations and potential liability for employers. Upcoming changes also continue the trend of increasing maximum penalties for employers in violation of various workplace-related legislation, making awareness of employer obligations and compliance an even greater priority.

In British Columbia, the upcoming amendments bring the requirements relating to sick notes and sick leave in line with (or perhaps exceeding) those of other provinces. Employers should keep in mind that they should still be permitted to request “reasonably sufficient proof” short of a “specified health record” to establish entitlement to “short-term absences” for “health-related leaves”, and further, that “specified health records” may still be requested for absences in excess of the statutory minimum sick days (or whatever “short-term absence” is defined as), and in relation to human rights (e.g. accommodation) and occupational health and safety requirements.

 

Truth Over Tarnish: Negative Work Reference Held Not Defamatory

Roza Milani

In a recent ruling by the Supreme Court of British Columbia, Lawetz v. Wigboldus, [2024] B.C.J. No. 1898, the Court determined that a negative job reference from a former supervisor did not constitute defamation.

Background

Mr. Lawetz and Mr. Wigboldus were colleagues at CounterPath Technologies Inc. (“CounterPath”), a company specializing in the development of communication platforms and the licensing of its products to businesses. Mr. Lawetz was one of the company’s top salespeople and reported directly to Mr. Wigboldus, the Senior Vice President.

Mr. Wigboldus found Mr. Lawetz difficult to manage. Mr. Lawetz was known for being loud and frequently made inappropriate jokes in the workplace, some of which offended coworkers and even senior executives. Mr. Lawetz also relied on high-pressure sales tactics, which CounterPath had moved away from in favor of building long-term customer relationships. Despite advice to change, Mr. Lawetz failed to improve, leading the CFO to place him on a Performance Improvement Plan (“PIP”) and reassign several of his accounts.

Unhappy with both the PIP and the redistribution of his accounts, Mr. Lawetz resigned from CounterPath on short notice in 2018, and brought a lawsuit against the company, alleging that he was constructively dismissed. Mr. Wigboldus left CounterPath in 2021 for another role at a company called Rise People.

In 2022, Mr. Lawetz applied for a position at Tipalti Inc. (“Tipalti”). During the mock sales interview, Ms. Maeir, one of three hiring managers present, recognized that Mr. Lawetz and Mr. Wigboldus had previously worked together at CounterPath. Ms. Maeir knew Mr. Wigboldus professionally from their time together at Rise People, where she had been his colleague and mentee, and they remained in contact.

Midway through the interview, Ms. Maeir texted Mr. Wigboldus to ask about Mr. Lawetz, who quickly advised against hiring him. They agreed to discuss further by phone later that day. After the interview, the panel was unimpressed with Mr. Lawetz’s performance and deemed him unsuitable. Ms. Maeir’s later call with Mr. Wigboldus confirmed their concerns. Ms. Maeir relayed the contents of her discussion with Mr. Wigboldus to the other two hiring managers, noting that Mr. Lawetz was “not open to change, learning or coaching. Bullied people into buying. Received a lot of customer complaints about pressure selling. Took short cuts, sold on price/discounting. Was not able to manage all his accounts, was put on a PIP, did not like it, walked out the office/quit, and tried to sue the company …”

After being passed over for the position, Mr. Lawetz suspected that Ms. Maeir had contacted Mr. Wigboldus. Tipalti confirmed that Ms. Maeir had indeed reached out to Mr. Wigboldus; however, the decision not to hire Mr. Lawetz was made independently of that conversation. Subsequently, Mr. Lawetz filed a defamation claim against Mr. Wigboldus, seeking general, special, and punitive damages.

Decision

The Court dismissed Mr. Lawetz’s defamation claim against Mr. Wigboldus. It found that certain comments made by Mr. Wigboldus established a prima facie case for defamation since the comments: (a) were defamatory, in the sense that they would lower Mr. Lawetz’s reputation in the eyes of a reasonable person; (b) referred to Mr. Lawetz; and (c) were published, meaning they were communicated to at least one person other than Mr. Lawetz. However, the Court ruled that Mr. Wigboldus’s statements were protected by qualified privilege and were justified, thereby defeating the claim.

Defence of Qualified Privilege

The Court held that Mr. Wigboldus’s defamatory comments were not actionable because they fell within the scope of an employment reference, and were made on an occasion of qualified privilege. In other words, Mr. Wigboldus had an interest or a legal, social, moral, or personal duty to convey the information at issue to Ms. Maeir, who in turn had a corresponding interest or duty to receive it.

Furthermore, there was no evidence of malice on Mr. Wigboldus’s part that would negate the defence of qualified privilege. Specifically, Mr. Lawetz failed to show that Mr. Wigboldus’s statements were made out of spite, ill will, for an improper purpose that conflicted with the intent of providing a job reference, or with dishonesty or reckless disregard for the truth.

Defence of Justification

The Court also found that Mr. Wigboldus was justified in making the statements to Ms. Maier. The Court explained that Mr. Wigboldus’ statements were a mix of facts and opinion which “were true, were substantially true, or were the result of Mr. Wigboldus’ honestly held opinions about Mr. Lawetz as a sales representative.”

Accordingly, Mr. Lawetz’s defamation claim was dismissed.

Key Takeaways for Employers

While this case grants employers a measure of protection when offering candid evaluations of former employees to prospective employers, it nevertheless illustrates the risks of negative repercussions to former employers and highlights the necessity of ensuring that any such references or appraisals be conducted with the utmost care. Specifically, employers must ensure their remarks are accurate, avoid any spiteful or malicious commentary, and refrain from introducing irrelevant matters unrelated to the purpose of the reference.

 

Time to Face the Change: HRTO Introduces Mandatory Mediation and Releases Updated Practice Directions

Whitney Miller

Lately, the Human Rights Tribunal of Ontario has been processing cases arguably faster than ever before. Whether hearings or mediations are being scheduled, or respondents are being contacted related to an application, there is no question that the Tribunal’s Registrar has become more active over the last several months.

The recent flurry of activity at the Tribunal comes at the same time updates to its Rules of Procedure, Practice Directions, and Processes, which were announced on May 30, 2025. Overall, the purpose of these changes appear to encourage early resolution and streamline matters regarding scheduling by introducing more stringent procedural requirements.

Mandatory Mediation as of June 1, 2025

Perhaps the most notable change is that as of June 1, 2025, the HRTO has launched a mandatory mediation process. This means that for all HRTO applications received on or after June 1, 2025, a mediation shall be scheduled as standard practice. Parties can request an exemption for exceptional circumstances. Rule 15 of the Tribunal’s Rules of Procedure have been revised to reflect this change. Prior to June 1, 2025, mediation was optional and parties could elect to participate on an individual basis.

The Tribunal has indicated that this change is meant to encourage early resolution, save time and resources for both parties and the Tribunal, and ensure the fair and expeditious resolution of disputes. These goals are reflected in the amendments to Rule 15, which now also require the parties to submit a Form 25 Confirmation of Settlement following mediation to indicate whether the dispute settled or whether it will be proceeding through the Tribunal process. If the parties do not file a Form 25 or confirm their intention to proceed with the application, the Tribunal may administratively close the file without further notice to the parties.

Notably, if an applicant fails to attend mediation, the Tribunal may – among other actions –  dismiss the application. Similarly, where a respondent or intervenor fails to attend mediation, the Tribunal may order mediation to proceed in their absence or take any other action it considers appropriate, such as determining that the respondent is not entitled to further notice or proceedings or to participate further in the proceedings. These changes heighten the importance of active participation in the mandatory mediation process.

Adjournments, Rescheduling and Extension Requests

The HRTO has also updated its processes regarding adjournments, rescheduling and extension requests. These new Practice Directions apply to previously filed applications.

Specifically, the following changes come into effect as of June 15, 2025:

• Adjournments and Rescheduling: If, upon receiving a Notice from the Tribunal, rescheduling is required, the party making the request must attempt to contact the other party to obtain five alternative dates within six weeks of the originally scheduled date(s). If the parties agree, the requesting party must advise the HRTO within fourteen days of the date the Notice was issued. If the parties cannot agree on a date, the requesting party may proceed to request an adjournment and must provide five other possible dates. The factors that the HRTO may consider when assessing an adjournment request are set out here.
• Extensions: As a presumptive rule, extension requests made less than seven days before the deadline will either be dismissed or will be subject to an expedited schedule for responding to the request. The Tribunal’s new Practice Direction also sets out twelve factors that the HRTO may consider when deciding to request to extend a deadline which are listed here. While each request will be considered on a case-by-case basis, the Tribunal has made clear that an extension request will generally not be granted for a party:
• To retain counsel or because counsel was just recently retained where counsel could have been obtained earlier;
• To obtain additional information that could have been obtained sooner; or
• Where a request to extended a deadline is needed due to medical reasons, the request is not substantiated with appropriate documentation.

Updates to Forms

Though largely form over substance, the HRTO has also made updates to the following forms:

• Form 1: Application
• Form 1G: Application
• Form 2: Response
• Form 10: Request for Order during Proceedings
• Form 11: Response to Request for an Order
• Form 25: Confirmation of Settlement
• Confidentiality Agreement

In light of these changes, parties should ensure they are using the most current forms.

Takeaways for Employers

While it remains to be seen whether the Tribunal will continue processing applications at its current pace, it is clear that these changes are intended to expedite the adjudication of disputes and encourage early resolution. There are consequences for employer who do not attend mediation, including potentially being precluded from further defending against a Human Rights Application made against it. Overall, this may increase activity at the Tribunal in favour of the Courts, the latter of which generally involve more procedural steps before settlement (if any) is reached.

 

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This newsletter is not intended as legal advice.  Any employer or organization seeking assistance should feel free to contact a Mathews Dinsdale lawyer for assistance.