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The Law of Work
Common Law of EmploymentEmployment RegulationOLRBOntario

Ontario’s Bill 27: One Good Law, One Vacuous Law, and One Missing Law

by David Doorey November 3, 2021
written by David Doorey November 3, 2021

By David Doorey, York University

The Ontario government introduced Bill 27 this week, which it cutely named Working for Workers Act, 2021.  There’s a number of changes in this Bill, but I want to highlight two notable additions to the province’s employment standards legislation: (1) the so-called “right to disconnect” and (2) the ban on “non-competition” agreements.  I also want to point out a glaring omission from Bill 27, which is the absence of a ban on mandatory arbitration clauses that purport to block an employee from filing a statutory complaint and to access the government’s enforcement machinery.

Here’s a short summary I made of the law in the two areas noted above.

The Right to Disconnect 

Bill 27 defines “disconnecting from work” as follows: “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.”  

The curious aspect of the new law is that it does not actually protect a “right to disconnect from work” at all, notwithstanding the government’s inferences otherwise.  All the new law would do is require employers with at least 25 employees who aren’t otherwise exempt (remember, the government has left the many exemptions in place) to prepare a policy about disconnecting from work and to then give it to employees.  That’s like announcing to great fanfare that employees will be entitled to weekends off and then passing a law that requires employers to write a policy about weekend work.

Bill 27 includes a provision indicating that the policies must include such information as “may be prescribed”.  My students know that “prescribed” is a magic law word that signals that special rules may appear in Regulation to the statute.  As of today, there are no regulations dealing with the fictional “right to disconnect” so the law as it reads now is pretty much useless. The policy could read “you are expected to respond to after hours emails and phone calls” and that would satisfy the law as it stands with now.  So excuse my pessimism.

Non-Compete Prohibition

Bill 27 also bans “non-competition” clauses in employment contracts.  Unlike the new law on “disconnecting”, it actually prohibits something!  This is quite useful, even though (as discussed in Chapter 8 of The Law of Work), Canadian courts hardly ever enforce non-competition clauses anyways because they are presumed to be contrary to public policy.  The new law essentially codifies what was in practice pretty much the law anyways. However, the law is still useful because it should stop most employers from including non-comp clauses in the contract in the first place. Most employees aren’t aware that a non-competition clause won’t likely be enforced and so they behave as if the non-competition clause is valid even though it isn’t.

Bill 27 declares that any non-competition agreement is void. Take a look at how the law defines a non-competition clause:

“means an agreement, or any part of an agreement, between an employer and an employee that prohibits the employee from engaging in any business, work, occupation, profession, project or other activity that is in competition with the employer’s business after the employment relationship between the employee and the employer ends.”

Pretty broad, eh? Fun question for students.  Does this language prohibit a non-solicitation clause as well as a non-competition clause?  Recall from Chapter 8 that there are 3 main types of “restrictive covenant” clause: non-disclosure, non-solicit, and non-competition.  Here are examples I provide in the text.


I think it is reasonable to assume that the government was focused on non-competition clauses when it sent the law to the legislative drafters.  However, the definition of a “non-competition” clause could arguably reach non-solicitation clauses as well.  Paraphrasing, the law states that “any agreement between an employer and an employee that prohibits the employees from engaging in any activity that is in competition with the employer’s business after the employment relationship is over” is unlawful.
What do you think?  Could that language be broad enough to include a term that bans an ex-employee who has set up a competing business from calling up clients of the former employer to persuade them to move their business over?  Watch for a case making that argument, coming to an Ontario court room near year in 2022.

A Glaring Omission: Ban Mandatory Arbitration Clauses

I will use this post to make a final point about what is clearly missing from Bill 27.  If the government is looking around for easy laws to pass that would bring an end to shady business practices that harm vulnerable employees–and good on them for at least thinking about these things–then there is at least one more area they should have addressed.

Bill 27 should have prohibited any clause in a contract that purports to block a non-union employee’s right to file a statutory complaint alleging a violation of employment-related statutes, including employment standards and human rights, in favour of mandatory private arbitration.  The Ontario Court of Appeal has already ruled, in Heller v. Uber, that mandatory arbitration clauses are unlawful insofar as they apply to complaints relating to the Employment Standards Act. That ruling was left untouched by the Supreme Court of Canada, which decided that the arbitration clause in the standard Uber contract was also unconscionable (see discussion by Michael Wright and Danielle Stampley here).  Ensuring that employers cannot block access to labour standards legislation by including mandatory arbitration clauses is crucial.  In particular, arbitration clauses could create an obstacle to class action lawsuits for systemic labour standards violations, which is an important tool for access to justice in employment law (as I explained in this post).

Since mandatory arbitration clauses that block access to statutory complaints are already unlawful in Ontario, why not just prohibit them like the government has done with non-competition clauses.  The fact that the government did not do this makes me concerned that this government believes that mandatory arbitration clauses are unproblematic.  Let’s keep an eye on this issue moving forward.  I’d think that both the Liberals and the NDP will promise to ban arbitration clauses that block employees’ rights to file statutory complaints with a tribunal.

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David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

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Elsa Boyden November 26, 2021 - 10:21 am

Doi you have any comments in regards to:
The Fair Access to Regulated Professions and Compulsory Trades Act, 2006 is amended in respect of various matters, including the following:
Regulated professions are required to ensure they comply with any regulations respecting English or French language proficiency testing requirements. Regulated professions are also prohibited from including Canadian experience requirements as qualifications for registration unless an exemption from the prohibition is granted. Compliance orders may be issued if a regulated profession imposes requirements that are prohibited under the Act.
A section is added describing some ways in which the Minister may support the access of internationally trained individuals to regulated professions and providing that the Minister may make related grants.

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thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
9h

I can’t believe that Almost Famous came out 23 years ago.

Time is flying by.

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thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
10h

I had an LLM student who had a part-time job phantom writing labor arbitration decisions based on arbitrator’s notes and instructions.

Like law clerks do for judges (except parties don’t know about the phantom arb writer).

Is using a machine different? Interesting debate.

Valerio De Stefano @valeriodeste

The crucial part starts on p. 5, where the Court reports the answers to the legal questions they posed to ChatGPT. Then, at the end of p. 6, the Court adopts the arguments given in these answers as grounds for its decision.

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thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
11h

Quebec passed anti-scab legislation in 1977, BC in 1993, & Ontario 1993-95.

Hysterical claims that these laws cause job losses & loss of investment aren't supported by evidence. Businesses just don't like them.

Short 🧵

1/

Seamus O'Regan Jr @SeamusORegan

We’re banning replacement workers, as we said on Oct. 19th.

We’re working with unions and employers to get the balance right.

As agreed, government will introduce legislation by the end of this year.

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