Ontario Enacts Bill 88, Working for Workers Act, 2022

On April 11, 2022, Bill 88, the Working for Workers Act, 2022, received Royal Assent in Ontario, thus enacting the Digital Platform Workers’ Rights Act, 2022. The act also:

• amends the Employment Standards Act, 2000 (ESA) to exempt certain business and information technology consultants;
• requires electronic monitoring policies for employers that employ twenty-five or more employees;
• amends the provisions regarding the reservist leave of absence to entitle employees to the leave after three consecutive months of employment (the act has added military skills training to the list of qualifying activities);
• amends the Fair Access to Regulated Professions and Compulsory Trades Act, 2006 to require the regulated professions to respond to applications for registration from domestic labour mobility applicants within specific time limits; and
• amends the Occupational Health and Safety Act to require employers to provide and maintain naloxone kits in their workplaces if they “become[ ] aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at a workplace where that worker performs work for the employer, or where the prescribed circumstances exist.”

The following provides a supplement to our previous article summarizing the provisions of Bill 88.

Exemption for “Certain Business and Information Technology Consultants”

The act contains an amendment that will exempt “certain business and information technology consultants” from the ESA as of January 2023. The act sets out the definitions of “business consultant” and “information technology consultant” as follows:

Business Consultant

“Business consultant” is defined as “an individual who provides advice or services to a business or organization in respect of its performance, including advice or services in respect of the operations, profitability, management, structure, processes, finances, accounting, procurements, human resources, environmental impacts, marketing, risk management, compliance or strategy of the business or organization.”

Information Technology Consultant

“information technology consultant” is defined as “an individual who provides advice or services to a business or organization in respect of its information technology systems, including advice about or services in respect of planning, designing, analyzing, documenting, configuring, developing, testing and installing the business or organization’s information technology systems.”

If the requirements below are met, certain business and information technology consultants would be exempt from the ESA:

1. “The business consultant or information technology consultant provides services through,
   1. a corporation of which the consultant is either a director or a shareholder who is a party to a unanimous shareholder agreement, or
   2. a sole proprietorship of which the consultant is the sole proprietor, if the services are provided under a business name of the sole proprietorship that is registered under the Business Names Act.
2. There is an agreement for the consultant’s services that sets out when the consultant will be paid and the amount the consultant will be paid, which must be equal to or greater than $60 per hour, excluding bonuses, commissions, expenses and travelling allowances and benefits, or such other amount as may be prescribed, and must be expressed as an hourly rate.
3. The consultant is paid the amount set out in the agreement as required by paragraph 2.
4. Such other requirements as may be prescribed.”

Amendments to the Fair Access to Regulated Professions and Compulsory Trades Act, 2006

The Fair Access to Regulated Professions and Compulsory Trades Act, 2006 now requires that regulated professions provide written acknowledgment within ten business days after receiving applications for registration from domestic labour mobility applicants. A “domestic labour mobility applicant” is defined as “an individual who has applied for registration by a regulated profession in Ontario and is currently registered with a body that regulates the same profession in a Canadian province or territory other than Ontario.”

Following an internal review or appeal decision pertaining to the applicant, the regulated professions will have ten business days to provide the applicant with written communication and written reasons of their decision. The Minister may exempt a regulated profession from these time constraints.

Notable Developments

Bill 88 was amended several times before it received Royal Assent. Of note, on March 29, 2022, the Ontario Bar Association’s (OBA) Labour and Employment Law Section, published comments on Bill 88, specifically addressing the proposed exclusion of certain business and information technology consultants from the ESA. The OBA expressed concern because Bill 88 “creates uncertainty for workers, businesses and organizations and could result in increased dispute resolution and litigation costs across sectors.”

In its letter, the OBA highlighted a number of issues, including the following:

• The exceptions under section 3 of the ESA primarily apply to workers with workplace protections aside from those provided in the ESA. The OBA perceived Bill 88’s proposed amendment as broad and exclusionary to new categories of workers from the ESA.
• The Ontario Regulation 285/01 excludes some workers from certain ESA provisions, such as those for minimum wage. In addition, workers in supervisory and managerial roles, and information technology professionals are already exempt from the overtime rules. Bill 88’s amendment would “fully exclude the same professionals from the ESA as a whole.”
• The business and technology consultants amendment “might lead to public confusion” regarding the definition of “employee” and the consultants’ entitlements, because some workers would no longer be covered by the ESA, but they would still be considered “employees” under the common law.
• The amendment could cause independent contractors or consultants who would otherwise be excluded from the ESA to be included in the legislation because of the manner in which the requirements were set out under the legislation.

At the time of Royal Assent, the issues highlighted by the OBA do not seem to have been modified in a significant way.

With respect to the Digital Platform Workers’ Rights Act, 2022, this legislation adds layers on top of the ESA in the case of workers who are both “digital platform workers” and employees under the ESA. As set out in section 2 of the Digital Platform Workers’ Rights Act, 2022, “[t]he purpose of this Act is to establish certain worker rights for workers, regardless of whether those workers are employees.” It appears that nothing prevents the simultaneous application of both pieces of legislation to a single individual, provided that an individual constitutes both a “digital platform worker” and an employee. This may create confusion with respect to which rights and requirements apply under which piece of legislation, and at this time no additional guidance has been provided for how these two pieces of legislation will interact in such a case.

Ogletree Deakins’ Toronto office will continue to monitor and report on developments with respect to guidance and/or interpretation regarding the Working for Workers Act, 2022 from the responsible agencies and will post updates on the Cross-Border blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.

Michael C. Comartin is a partner in the Toronto office of Ogletree Deakins.

Gloria Ilunga is a 2021 graduate of Osgoode Hall Law School, and she is an articling student in the Toronto office of Ogletree Deakins.