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December 4, 2019

Checking it Twice: A List of 12 Legal Considerations for Employers During the Holiday Season

Authors Brandin O'Connor and Domenica Moran


  1. Health and Safety at Company Events

    The definition of “workplace” under the Ontario Occupational Health and Safety Act (“OHSA”) is broad.  Thus, an employer’s obligations under the OHSA apply to company-sponsored social functions, such as a holiday party. 

    Employers should take reasonable steps to ensure worker safety at off-site company events such as holiday parties.  Specific examples of such steps are outlined further, below.


  2. Responsible Alcohol Use

    Courts have held employers liable for an employee’s actions if an employee is permitted to drink too much alcohol at a holiday party or work-related social event.  Employers of employees who drive while impaired following a work-related event may be liable for any injuries sustained by that employee or any injured third party. 

    The safest course of action, although likely not a popular choice, is to host an alcohol-free party. If alcohol is served at work parties, employers should make it clear that employees are not to drink and drive.  It is wise for employers to provide food, limit the number of glasses offered by the employer and/or to stop serving alcohol after a certain time.  Providing taxi-chits and/or offering to reimburse the costs incurred by employees to take alternative transportation home following the event can also help reduce the employer’s risk of liability and keep employees safe. 

    Please read our previous blog on this issue for more ways employers can ensure they host a safe and professional holiday party.


  3. Cannabis

    The same safety and liability concerns surrounding excessive alcohol consumption apply to the use of cannabis. 

    Employers should be aware of the general prohibition on smoking or vaping (tobacco or cannabis) near the workplace or event venues as stipulated by the Smoke-Free Ontario Act, 2017.  Individuals cannot smoke or vape in any enclosed workplace or any enclosed public place.  Individuals also cannot smoke or vape on a patio of any bar or restaurant, or within nine (9) metres of these patios.


  4. Harassment and Holiday Parties

    Reports of inappropriate touching, kissing or comments at a company-sponsored event will trigger an employer’s obligations to take action.  In addition to the OHSA, Ontario’s Human Rights Code (“Code”) also prohibits harassment in the workplace where the harassment is based on an enumerated ground (such as sex, race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, age, family status or disability).

    To mitigate the risk of inappropriate behaviour, it may be prudent to remind employees of the workplace harassment policy and its application to workplace functions. 


  5. Cold and Flu Season

    During the winter season, employees may miss work due to illness.

    Recent amendments to Ontario’s Employment Standards Act, 2000 (“ESA”), provide employees three (3) days of unpaid, job-protected sick leave every calendar year due to illness, injury, or medical emergency.  Employers may also provide additional sick time benefits to their employees, in which case the policy regarding such benefits should be reviewed regularly to control their proper use. 

    Employers are entitled to ask employees for sufficient medical information to support their absence if it is “reasonable in the circumstances”: this may include medical certificates or notes issued by health care professionals, such as doctors, nurse practitioners, or psychologists.

    What evidence is reasonable in the circumstances will be fact-specific. For example, it may not be reasonable to require an employee to provide a medical note if they missed one day of work for a cold.  However, it may be reasonable to ask for a medical note if an employee is consistently absent on Fridays. 

    The type of information employers can ask for is governed by the ESA.  Employers are entitled to ask for information regarding the duration of the absence, the date on which the employee was seen by a health care professional, and whether the employee was examined in person by the health care professional providing the note.  Employers cannot ask for confidential medical information regarding the diagnosis or treatment of the employee’s medical condition.


  6. Holiday Bonuses

    In the spirit of the holidays, employers may be inclined to give their employees a holiday bonus.  Depending on the circumstances, this may have an impact on the employee’s overall compensation.  As recently demonstrated by the Ontario Court of Appeal in Andros v Colliers Macaulay Nicolls Inc, if there is no clear policy or contractual provision that carefully establishes the bonus as discretionary, and if the bonus is historically paid to the employee over time, a court may find the bonus is an integral part of the employee’s overall compensation.  In those circumstances, a failure to pay that employee his or her holiday bonus may constitute constructive dismissal (if it is substantial enough).  If the employee is dismissed, the employer may also have to pay that bonus during the notice period, absent clear limiting language.


  7. Time off for Religious Holidays

    Christmas and Good Friday are public holidays recognized under the ESA.  However, a work schedule that provides observing employees with time off to celebrate Christmas and Good Friday without allowing observant employees to take time off for other religious holidays may be discriminatory in its effect. 

    The Code requires employers to accommodate an employee’s request for time off to observe religious holidays up to the point of undue hardship.  Scheduling changes that do not cause the employee to lose any pay are likely an appropriate way to accommodate a sincerely held religious observance request. 


  8. Dismissal During the Holiday Season

    Dismissing an employee without cause during the winter holiday season should be avoided where possible.  Courts, tribunals, and arbitrators may consider a dismissal in proximity to the holidays in determining an employee’s ability to mitigate and in assessing damages.  

    Generally, however, these issues do not apply when dismissing an employee for cause.  Once an employer is sure there is cause, it is better to dismiss the employee sooner rather than later and with proper due diligence in order to defend against any allegations that the employer condoned the employee’s conduct by delaying dismissal.  Ensure extra steps are taken to carry out the dismissal professionally and in a respectful manner. 

    Please see our previous blog post on this issue for more information on dismissals during the holiday season.


  9. Small Claims Court Changes

    Starting January 1, 2020, litigants will be able to bring claims of up to $35,000 to the Ontario Small Claims Court.  The current limit is $25,000.

    Allowing more valuable claims to be heard in the Small Claims Court will change the litigation dynamic for employers, who are often tasked with defending low-stakes wrongful dismissal litigation.  Settlement conferences and trial dates are set in the Small Claims Court faster than actions commenced in the Ontario Superior Court of Justice.  However, the costs that a successful party can recover in this venue are very limited, which may dissuade plaintiff counsel from taking matters through trial.

    Please see our previous blog post on this issue for more information.


  10. Simplified Procedure Changes

    Also starting January 1, 2020, significant changes to the Superior Court Simplified Procedure come into effect.   In the new year, juries will be eliminated for proceedings under the Simplified Procedure. 

    The monetary cap on claims will double from $100,000 to $200,000.    

    There will also be a cap on costs and disbursements.  Under the new Simplified Procedure, parties cannot recover costs exceeding $50,000 or disbursements exceeding $25,000 (exclusive of HST).  These changes will not apply to actions commenced prior to January 1, 2020.

    Finally, trials will also be capped at five (5) days, and all Simplified Procedure trials will follow a new path to trial and trial process.  


  11. Certification Season

    In Ontario, applications for union certification must be served on the employer and filed with the Ontario Labour Relations Board.  The employer must file a response within two (2) business days.  Some applications for certification are filed with the Board and served on the employer close to holiday periods or long weekends in order to try to limit an employer’s opportunity to respond. 

    Be prepared to respond to a potential certification application around the holidays.  It is best practice to have someone check fax machines and the company’s mail for any certification applications.  Shutting down the office for the holidays is not an excuse for failing to respond to a certification application.   


  12. Bill 124: Protecting a Sustainable Public Sector for Future Generations Act, 2019

On November 7, 2019, Bill 124: Protecting a Sustainable Public Sector for Future Generations Act, 2019 (“the Act”) received Royal Assent.  The Act introduces wage caps for non-union and unionized employees employed by universities, colleges, hospitals, crown agencies, school boards, and others.  The Act does not affect executive-level employees subject to the Broader Public Sector Executive Compensation Act, 2014.

The Act will come into force upon the date of proclamation, which has yet to be determined. 

The foregoing is for informational purposes only and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyer’s by email or telephone.



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