Employment litigation trends to watch in 2022

1. Judicial consideration of mandatory vaccination policies

The continuation of the COVID-19 pandemic and the proliferation of safe and effective vaccines had significant implications for the workplace in 2021—and we expect that the impact of the pandemic will continue to be felt across workplace issues in 2022.

In an effort to mitigate the risks presented by COVID-19, many employers instituted policies requiring workers to be fully vaccinated before entering the workplace. These programs received some arbitral and judicial consideration in 2021. For example, the Ontario Superior Court in Blake v. University Health Network held that arbitration is the appropriate forum for disputes about vaccination policies among parties to a collective bargaining agreement¹. While a Canadian court has not yet ruled on the merits of a mandatory vaccination policy, arbitral tribunals themselves have generally found mandatory vaccination regimes to be enforceable.

We anticipate there will be ongoing and potentially increased consideration of these issues in 2022, especially if further federal and provincial measures are taken with respect to vaccine related-government mandates (including changes to reflect booster doses of the COVID-19 vaccine).

2. Ontario’s Working for Workers Act, 2021

On November 30, the Ontario government passed the Working for Workers Act, 2021, ushering in meaningful change to two dimensions of the employer-employee relationship:

• First, the Act expressly prohibits employers from placing non-compete obligations in contracts of employment, with a carveout for senior executives of the company and in the context of a business’s sale. The Act permits the use of non-solicitation and confidentiality agreements. Further legislative guidance and judicial interpretation of the scope of these legislative changes will be something for employers to monitor in 2022.
• Second, the Act imposes an obligation on employers of 25 or more to institute a policy on “disconnecting from work”. Disconnection is defined as freedom from the performance of work, which includes “engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages”. The Act does not include any substantive requirements for the policy itself; the contents of the policy are left up to the employer. In 2022, employers will want to keep an eye out for best practices and guidance as they develop their disconnection policies.

3. Equity, diversity, and inclusion in the workplace

Judicial interpretation of employers’ obligations to create a sufficiently equitable, diverse, and inclusive workplace—an important issue in previous years—will gain increased prominence in 2022. Equity, diversity and inclusion issues have been squarely raised in several recent cases:

• In Thompson v. Canada, a group of self-identifying Black employees of the Public Service of Canada sought to bring a class proceeding in Federal Court about systemic discrimination in the workplace. The claim, commenced in 2021, alleges that Canada is liable to current and former Black employees for failing to abate this discrimination and thereby compounding the disadvantage of Black workers².
• In Lewis v. WestJet Airlines Ltd³, the British Columbia Supreme Court considered whether claims based on gender or racial discrimination are well-suited to private law and the Class Proceedings Act, or if they should instead be heard by human rights administrative bodies. In that case, flight attendants tried to bring a class proceeding against their employer alleging that exposure to systemic sexual harassment was a breach of their employment contract. The claim was dismissed because the court found the core of the allegation to be about gender-based harassment, and thus came within the ambit of the Canadian Human Rights Tribunal.
• In Fraser v. Canada (AG), the Supreme Court considered a similar issue in the context of an RCMP pension plan that prohibited employees from purchasing credits in the plan for periods where they had participated in the RCMP’s job-sharing program⁴. The Court concluded that the facially neutral provision discriminated against women, who were the primary participants in the job-sharing program, thereby infringing the equality guarantee contained in section 15 of the Charter of Rights and Freedoms. Employers and plan sponsors will want to watch how expansively Fraser is interpreted by lower courts.

It is clear that courts are taking notice of the ways in which workplace policies and actions can amplify pre-existing issues of equity, diversity, and inclusion. It remains to be seen what steps the law, both public and private, will dictate an employer take to abate these issues. We expect that Canadian courts will continue to weigh in on the nature of these obligations in 2022.