Ontario Legislative Updates in 2019 (plus new PIPEDA reporting obligations)

Published January 29, 2019

In this blogpost we overview five pieces of new or upcoming Ontario legislation and discuss how they may impact your sport organization. There are also important new reporting obligations under the Personal Information and Electronic Documents Act (“PIPEDA”), which is federal legislation, and those obligations are highlighted at the end of the post.

Employment Updates

In May 2018 we presented a webinar titled ‘Ontario Legislative Updates’ and discussed how the Fair Workplaces, Better Jobs Act, 2017 amended the Ontario Employment Standards Act (ESA). After the provincial election, the new Progressive Conservative government decided to pass their own legislation that made amendments to the ESA – and many of these new amendments repealed or revised the amendments that occurred in 2017.

The new law is titled Making Ontario Open For Business Act, 2018. Here’s what’s new:

• Minimum wage remains at $14/hr (no increase to $15/hr)
• On-call employees no longer get minimum three hours of pay
• Employees no longer get three hours of pay if their shift was cancelled with less than 48 hours notice
• Two paid sick days and eight unpaid emergency leave days are replaced by a package of eight unpaid leave days - three sick days, three family responsibility days, and two bereavement days
• Employers can request evidence of entitlement to leave (including doctor’s notes)
• Employees have the onus to prove they should be classified as an ‘employee’ when their classification is in question
• Employees are no longer entitled to ‘equal pay for equal work’ (for example, temporary employees can now be paid less than full-time employees for performing the same work)
• Penalties for employers for contravening the ESA are reduced

However, the new law did not replace all of the updates from the previous law. Employers are still required to pay employees for three hours of work if the employee typically works for more than three hours, reports to work, and ends up working less than three hours (this scenario is most common in industries affected by weather or unforeseen closures). Also, employees still have leave entitlements in cases of domestic or sexual violence and they still receive three weeks paid vacation after five years of employment.

Screening

We wrote about Police Record Checks Reform Act, 2015 in a comprehensive blogpost posted in December. The biggest change to the police records check process is that the individual must consent to the police record check, and then consent again after seeing the results before the results can be released to an organization.

Legal Cannabis

We wrote about the Cannabis Act (which is federal legislation) in a blogpost posted in October. Recently, Ontario cities were required to indicate whether or not they wanted to ‘opt-out’ from having cannabis storefronts in their municipalities. Cities that opted-out include Pickering, Vaughan, Oakville, Markham, and Mississauga. These cities can still reconsider their decision at a later date. Initial retail stores are scheduled to open in April 2019.

Ontario Human Rights Code

In October 2017, Bill 164 was introduced and, if passed, it would expand the Ontario Human Rights Code to include more prohibited grounds for discrimination.

The Bill would prohibit differential treatment based on the following grounds:

• Social condition (resulting from employment status, level of income, housing status (including homelessness), and level of education)
• Police records
• Genetic characteristics
• Immigration status

When subject to the Ontario Human Rights Code, sport organizations that provide services to members would need to adopt these additional prohibited grounds for discrimination. Initially, impact on sport organizations may seem minor – but unforeseen situations can still occur. For example, an organization may no longer be able to reject a coach applicant based solely on a positive result from the coach’s police record check.

Bill 164 is not law. It is currently in committee and there is no timetable for when (or if) it may receive royal assent and be proclaimed into law.

Ontario Not-for-Profit Corporations Act (“ONCA”)

We are still waiting for the ONCA to come into force. The newest information was that it was targeted to come into force in early 2020 – and the government indicated that it will give organizations 24 months’ notice before it came into force. We are currently within 12-16 months of “early 2020” so that target will not be reached.

However, the Cutting Unnecessary Red Tape Act, 2017 did provide some useful amendments to the ONCA and here are some features we can expect:

• Three years to transition to compliance after ONCA comes into force (otherwise bylaws will be ‘deemed to be amended’ – creating confusion)
• One vote per member unless bylaws state otherwise
• Notice of AGM must be delivered between 10-50 days
• 10% of members can requisition a meeting of the members
• Financial statements must be provided to members no less than 21 days before the AGM
• Proxy voting is optional

In addition, the government is working on upgrading their technology to ensure that organizations can file, access, and search for documents online.

PIPEDA Breach Reporting Obligations

The final important legislative update is to PIPEDA. Organizations are now required to report any breaches of their security safeguards and any unauthorized access or disclosure to the Office of the Privacy Commissioner (“OPC”). You can read more about these requirements on the OPC website here.

To summarize, organizations must be aware of when a breach of their security safeguards may pose a “real risk of significant harm” to an individual for whom they have stored personal information. Here is how the OPC defines “real risk of significant harm”:

• “Bodily harm, humiliation, damage to reputation or relationships, loss of employment, business or professional opportunities, financial loss, identity theft, negative effects on the credit record and damage to or loss of property”

Organizations must also assess the sensitivity of the information that was exposed to a breach (e.g., medical and financial records would be sensitive, but an address may not) as well as the probability that the information can be misused.

Organizations are also required to do three things related to a breach that may cause a “real risk of significant harm”: 1) report it, 2) keep records about it, and 3) inform affected individuals.

We recommend a review and update of your privacy policy to reflect these new reporting requirements. At minimum, your members should know that your organization is required to inform them of any serious breaches.

We are always available for a discussion. Feel free to contact us!

Steve Indig
SJI@sportlaw.ca

Kevin Lawrie
KRL@sportlaw.ca

LeeAnn Cupidio
LLC@sportlaw.ca

Adam Klevinas
AJK@sportlaw.ca