Canada: Courts will have to be cognizant of the “Jordan Clock” in all future matters

Update: see previous post – July 7, 2017 Sections 11(b)a> & 24(1) of the Charter and the SCC Jordan decision = 204 Court Cases Thrown Out

The Supreme Court of Canada, located in Ottawa, Ontario. photo by

Canadian Charter of Rights and Freedoms

Section 11(b): Any person charged with an offence has the right “to be tried within a reasonable time”

In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, this Court identified a culture of complacency towards delay in the criminal justice system. This culture was fostered by doctrinal and practical difficulties plaguing the analytical framework then applicable to the right of accused persons, guaranteed under s. 11 (b) of the Canadian Charter of Rights and Freedoms , to be tried within a reasonable time.

The Jordan decision handed down by the Supreme Court of Canada on July 8, 2016,  served as a wake-up call for all criminal courts in Canada and those who participate in it, in one way or another. It was not a unanimous decision by the Supreme Court justices, but 5 in favour and 4 against was sufficient enough to create new standards, consistent with an accused person’s right to a trial within a reasonable time within our criminal courts.

The Jordan decision, as it has come to be known, was issued on July 8, 2016, when the high court ruled the drug convictions in British Columbia of Barrett Richard Jordan must be set aside due to unreasonable delay.

In a 5-4 ruling, the court said the old means of determining whether proceedings had taken too long were inadequate. Under the new framework, unreasonable delay was to be presumed if proceedings topped 18 months in provincial court or 30 months in superior court.

Inside the Supreme Court of Canada’s courtroom. In July 2016 the Court handed down the Jordan decision which sets out the Jordan framework and sets a presumptive ceiling for hearings case in compliance with section 11(b) of the Charter to be:18 months Provincially and 30 months at Superior Court. photo by

This evolution should not have come as a surprise to any level of government.

The Charter of Rights and Freedoms came into being on April 17, 1982. It forms the first part of the Constitution Act, 1982. Canadians needed this Charter, given the limitations and weaknesses of the Canadian Bill of Rights enacted by Parliament on August 10, 1960. The Bill of Rights provided Canadians with quasi-constitutional rights, but the courts were reluctant to declare laws inoperative.

Canadians needed the Charter and that is what we received over thirty-five (35) years ago.

The Supreme Court of Canada grappled with sections 11(b); and 24(1) of the Charter with the question of unreasonable delay in 1990 (27 years ago) in Askov et al. This was the first time that governments and courts were put on notice about unreasonable delays and the consequences associated with ignoring the Charter and their decisions related to it. Two years later in 1992 (some 25 years ago), Askov was followed by the Morin decision. The Morin decision has stood as the seminal decision related to the courts responsibility to move matters to trial quickly, without unreasonable delay in compliance with the accused rights under section 11(b); of the Charter.

This issue was first dealt with by the Supreme Court in 1990 in Askov et al and again in 1992 in Morin.

Canada has had 150 years to mature and the Jordan decision demands that we demonstrate our level of maturity, thirty-four (34) years after the Charter was signed into law by Queen Elizabeth II of Canada.

The doorway into the interior of the Supreme Court courtroom. photo by

Canadians will have to adjust and adapt to the new Jordan framework.

The applicable presumptive ceiling set out in Jordan:

  • unreasonable delay was to be presumed if proceedings exceeded 18 months in provincial court, or
  • exceeded 30 months in superior court

This is what the Supreme Court said in a decision (R. v. Cody, 2017 SCC 31) released on June 16, 2017, some eleven (11) months after delivering the Jordan decision:

“After the total delay from the charge to the actual or anticipated end of trial is calculated under the Jordan framework, delay attributable to the defence must be subtracted. Defence delay is divided into two components: delay waived by the defence and delay caused by defence conduct. The only deductible defence delay under the latter component is that which is solely or directly caused by the accused person and flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. Illegitimacy in this context does not necessarily amount to professional or ethical misconduct, but instead takes its meaning from the culture change demanded in Jordan. The determination of whether defence conduct is legitimate is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

Beyond a retrospective accounting of delay, a proactive approach is required from all participants in the justice system to prevent and minimize delay. Trial judges should suggest ways to improve efficiency, use their case management powers and not hesitate to summarily dismiss applications and requests the moment it becomes apparent they are frivolous.

After defence delay has been deducted, the net delay must be compared to the applicable presumptive ceiling set out in Jordan. If the net delay exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances, which fall into two categories: discrete events and particularly complex cases. Discrete events, like defence delay, result in quantitative deductions of particular periods of time. However, case complexity requires a qualitative assessment and cannot be used to deduct specific periods of delay. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. The delay caused by a single isolated step that has features of complexity should not be deducted under this category.”

The Supreme Court of Canada. The long term effects of the Jordan decision will depend on the actions or lack thereof, of the different levels of government. photo by

Canada: Supreme Court upholds procedures for breathalyzer evidence


On July 6, 2017 in a case cited as R. v. Alex, the Supreme Court upheld (in a 5-4 ruling) a 1976 decision which stated that the Crown did not need to prove the demand for a breath test was lawful in order to rely on evidentiary shortcuts about the accuracy of test readings. photo by

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The Supreme Court of Canada is upholding procedures that permit shortcuts for allowing a motorist’s breathalyzer test results into evidence — even in cases where demanding the breath sample may have been unlawful.

In a 5-4 ruling Thursday dismissing the appeal of a British Columbia driver, the court affirmed the existing charter process for challenging a police officer’s decision to order a breath sample.

It means technicians and toxicologists can’t be forced to testify in court about the accuracy and relevance of breath tests when the argument is really about whether police had reasonable grounds to demand testing in the first place.

Instead, the Crown can rely on a simple certificate recording the breath readings of the accused.

Ruling otherwise would require additional witnesses to attend court to give evidence on matters that have no connection to the lawfulness of the breath demand — and only add to the costs and delays in an already overburdened criminal justice system, Michael J. Moldaver, a Supreme Court Puisne Justice wrote on behalf of the majority.

No one gains under this approach — but society as a whole loses out as precious court time and resources are squandered,” he said in the court’s reasons. “The evidentiary shortcuts were designed by Parliament to simplify and streamline drinking and driving proceedings.”

The Supreme Court of Canada, located in Ottawa, Ontario. In 1969 Parliament introduced evidentiary “shortcuts” into the Criminal Code, now found in ss. 258(1)(c) and 258(1)(g). These shortcuts permit the Crown to establish an accused’s blood-alcohol concentration at the time of the alleged offence by filing a certificate recording the accused’s breath readings. photo by

The Supreme Court upheld the impaired-driving conviction of Dion Henry Alex, who was stopped by police in Penticton, B.C., in April 2012.

An RCMP officer detected the scent of liquor and saw an open can of beer on the floor beside a passenger in Alex’s van. Alex failed a roadside test and was taken to the police detachment, where he blew above the legal blood alcohol limit in two subsequent tests.

At issue was the continuing relevance of a 1976 Supreme Court decision that said the Crown did not need to prove the demand for a breath test was lawful in order to rely on evidentiary shortcuts about the accuracy of test readings.

The introduction of the Charter of Rights and Freedoms in the 1980s added a new wrinkle, meaning that an accused person who argues a breath sample was obtained unlawfully could now initiate a charter challenge alleging unreasonable search and seizure.

In the decision Thursday, Michael J. Moldaver, a Supreme Court Puisne Justice said the charter “provides an effective recourse for challenging the lawfulness of breath demands” as well as a meaningful remedy — possible exclusion of the test results from evidence.

The interior of the Supreme Court of Canada. In a 5-4 ruling, the Supreme Court of Canada has found that the Crown need not prove the lawfulness of a demand to provide a breath sample from a person suspected of driving while impaired in order to use procedural “shortcuts” to prove the case in court. The Court did not see any reason to overturn an earlier decision of the same court in Rilling v. R., [1976]. photo by

Rather than make a charter challenge, Alex argued during his trial that the absence of grounds for requiring a sample meant the Crown could not use the evidentiary shortcut of a certificate.

The trial judge agreed that police lacked reasonable grounds to demand a breath sample, but cited the 1976 decision in ruling the Crown could file a certificate as evidence of Alex’s blood-alcohol concentration.

Alex unsuccessfully appealed in the British Columbia courts, then took his case to the Supreme Court.

In dissenting reasons, a minority of the high court said the 1976 decision was based on an incorrect view that relevant evidence is admissible even if it is unlawfully obtained.

Reversing that decision would not disrupt the administration of justice, the minority said, adding the Crown would still be able to prove its case where it has the evidence — even if it takes longer to do so.

Under proposed government legislation, it would be easier for police to make drivers blow into a breathalyzer to detect alcohol. Mandatory screening measures would allow police to demand a breath sample from any driver they lawfully stop.

The Supreme Court of Canada refused, in R. v. Alex, to overturn its’ earlier 1976 decision in Rilling v. R. photo by


Sections 11(b) & 24(1) of the Charter and the SCC Jordan decision = 204 Court Cases Thrown Out


The Supreme Court of Canada. photo by

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Legal observers call on governments to make drastic and urgent changes to fix sluggish court system

Interior of the Supreme Court of Canada. photo by

More than 200 criminal cases across the country have been tossed due to unreasonable delays since the Supreme Court of Canada’s landmark Jordan decision one year ago, court data shows.

The cases include murders, sexual assaults, drug trafficking and child luring, all stayed by judges because the defendant’s constitutional right to a timely trial was infringed.

While provinces and the federal government have taken steps over the past year to speed up Canada’s sluggish courts, legal observers say more drastic and urgent changes are needed.

“Not nearly enough has been done by the government in order to repair this crumbling system,” said Rick Woodburn, president of the Canadian Association of Crown Counsel.

“Until the government views the justice system as a priority, we’ll continue to see murderers set free.”

Advocates say governments must provide more funding for every facet of the system, including judges, Crown attorneys, legal aid and infrastructure. Ottawa is also being urged to reverse decisions made under the previous Conservative government to expand mandatory minimum sentences and to close three of six RCMP forensic labs in the country.

The exterior of the Supreme Court of Canada. photo by

The Jordan decision, as it has come to be known, was issued on July 8, 2016, when the high court ruled the drug convictions in British Columbia of Barrett Richard Jordan must be set aside due to unreasonable delay.

In a 5-4 ruling, the court said the old means of determining whether proceedings had taken too long were inadequate. Under the new framework, unreasonable delay was to be presumed if proceedings topped 18 months in provincial court or 30 months in superior court.

1,766 applications for stays

In a dissenting opinion, a minority called the new framework unwarranted and unwise, warning it could lead to thousands of prosecutions being thrown out.

The Canadian Press requested data from all 10 provinces, three territories and the Public Prosecution Service of Canada to examine the impacts to the country’s justice system from the groundbreaking decision. The latest figures made available by various governments date from April 30 to June 30.

Since the ruling, approximately 1,766 applications have been filed for charges to be stayed because of unreasonable delays.

Of those, 204 have been granted and 333 have been dismissed. The remainder are either still before the courts, have been abandoned by the defence or were resolved on other grounds.

Still more charges have been proactively stayed by the Crown due to the expectation they would not survive a Jordan application, including 67 by the Public Prosecution Service of Canada.

Heidi Illingworth, executive director of the Canadian Resource Centre for Victims of Crime, said 200 cases tossed over delays was “shocking” and very painful for victims and their loved ones.

System ‘failing everyone’

“The system is failing everyone. It’s failing victims, it’s failing accused, it’s failing everyone who is working in it,” she said.

“We can’t have this situation where the public lacks faith in the justice system, and that’s what we’re starting to see happen.”

Determining whether stays have increased since Jordan is challenging because most provinces did not track applications based on the previous framework for determining unreasonable delay.

Ontario reported that 65 stays were granted due to delays in the fiscal year 2015-16, meaning the number increased slightly after Jordan to 76.

Manitoba said no unreasonable-delay applications were successful between January 2015 and June 2016, but two had been granted since the Jordan ruling.

A study conducted at Dalhousie University in Halifax shows both applications and stays went up after the decision. In the six months before Jordan, 26 stays were granted out of 69 applications, while in the six months afterward, 51 stays were granted out of 101 applications.

Eric Gottardi, the Vancouver lawyer who brought Jordan’s case to the Supreme Court, said the impact of the decision will not be fully known for three to five years.

The court provided transitional exceptions for cases that were already in the system before Jordan. The Crown can argue the time the case has taken is justified based on the parties’ reliance on the previous law.

The front door leading into the Supreme Court of Canada. This Court considers an average of between 500 and 600 applications for leave to appeal each year. The Supreme Court holds three sessions a year and hears on average between 65 and 80 appeals a year. Each session lasts three months. The first session begins in January, the second begins in April and the third begins in October. In recent years, it has been the Court’s practice to start each session on a Monday. The Standard for Granting Leave
The standard – even though it’s circular – is set out in s. 40 (1) of the Supreme Court Act:
“by reason of its public importance or the importance of any law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it ” (emphasis added). photo by

Public outrage ‘understandable’

Gottardi said it’s unacceptable for a serious case to get to the point where a judge thinks it must be tossed, and the outrage felt by victims, families and the public is completely understandable.

“The focus of the anger should be towards the government, in my view, not towards the courts,” he said. “There’s myriad reasons why it got to that point, and most of them have to do with infrastructure and funding.”

Justice Minister Jody Wilson-Raybould said there are a number of solutions to delays and she expects to introduce reforms in the fall. She also said her government remains committed to reviewing mandatory minimum sentences.

Despite a raft of new appointments, there are still 49 vacancies of federally appointed judges across the country, and more than a dozen vacancies of provincially appointed judges.

Bill Trudell, chairman of the Canadian Council of Criminal Defence Lawyers, said the Jordan decision has sent an “electric shock” through the justice system.

He said he thought the decision went too far, but it has been a catalyst for positive change.

“It’s like a protest. Good things may come from protests, even though you might not like the protest at the time.”

Under the Charter, section 11(b) provides that: 11. Any person charged with an offence has the right…
(b) to be tried within a reasonable time. This issue was first dealt with by the Supreme Court in 1990 in Askov et al and again in 1992 in Morin. This isn’t a new issue and the government shouldn’t be surprised by the Jordan decision, released in July 2016. photo by

Provinces have brought in new procedures to speed up the justice system. Here’s a look at some of the initiatives provinces have undertaken:


Quebec is investing $175-million over four years to recruit new judges, prosecutors, legal aid lawyers and support staff and create new courtrooms. So far, 449 positions have been filled and several new hearing rooms are operational. Justice Minister Stephanie Vallee recently announced an additional $9 million to hire 47 legal aid workers. The province has also launched a pilot program to allow for alternatives to incarceration, such as community service, in some minor offences.

Justice Ministers 20170428

Quebec Minister of Justice and Attorney General Stéphanie Vallée wants the government to create eight new Superior Court justice positions and two additional Appeal Court judge positions. (Justin Tan/Canadian Press)

Vallee is also calling on the federal government to create eight new Superior Court justice positions and two additional Appeal Court judge positions, but Ottawa has not done so yet.

Queen’s Park. Ontario Attorney General Yasir Naqvi said in an interview the Jordan decision is a “game-changer” and a call to action for all levels of government. photo by


Ontario Attorney General Yasir Naqvi said in an interview the Jordan decision is a “game-changer” and a call to action for all levels of government. He said the province has added 13 judges, 32 assistant Crown attorneys and a number of other staff.

Ontario has also focused on streamlining the front-end of the system with a number of initiatives aimed at better serving individuals with mental health issues, addictions and unstable housing. It has expanded province-wide a program that facilitates the release of low-risk accused into the community pending trial, as well as launched a new “bail beds” program that provides supervised housing for vulnerable accused. It has also developed a program to provide supports to Indigenous people who are accused of a crime.

British Columbia

B.C.’s Supreme Court recently issued new directions for so-called “mega-trials,” or large or complex criminal cases that have the potential to occupy a significant amount of court time or risk delays. The directions call for a case management judge to be appointed early in the process and for tight time limits for disclosure, pre-trial applications and the trial itself.

Associate Chief Justice Austin Cullen said in an interview the court began reviewing complex trial procedures about 18 months before the Jordan decision. But he said the ruling helped “spur us on and made us realize that we’re doing something useful.”

B.C.’s government tasked lawyer Geoffrey Cowper in 2012 with writing a report on its justice system, in which he identified a “culture of delay.” In November 2016, Cowper said B.C. was on the road to recovery. A major initiative he cited was B.C.’s use of administrative law to move tens of thousands of drunk-driving charges out of provincial court.

Nova Scotia

Chris Hansen, with Nova Scotia’s Public Prosecution Service, said the province is being “fairly aggressive” in dealing with Jordan. It has established a criminal justice transformation group with the sole purpose of addressing delays. Every criminal case has a “Jordan ticker,” so that when participants access material online, they can clearly see the number of months since the information was laid. Hansen also said the courts have increased their use of technology with video conferencing and electronic disclosure.


Saskatchewan’s Public Prosecutions said most cases in the province finish within the time limit and exceptional events are often the cause in the small number of cases that don’t. Nonetheless, it said it’s implementing further strategies to move every case along as quickly as possible. These include focusing on expediting disclosure, assessing cases as early as is workable, removing cases that do not meet the prosecution standard, and working to resolve cases as soon as possible.

With files from Brett Bundale, Sidhartha Banerjee, Joanna Smith, Allison Jones, Lauren Krugel and Geordon Omand 

Trudeau government to introduce strongest impaired-driving legislation in the world


The Parliment Building’s Centre Block. The Trudeau government is introducing legislation which will fundamentally change the legal rights of driver’s of motor vehicles in Canada. photo by

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Police officers will now be able to demand a breathalyzer sample from any driver they lawfully stop. A drug-impaired driver could face up to 10 years if convicted. New laws will also eliminate, or restrict, common defences used by drivers facing impaired-driving charges in court.

Justice Minister Jody Wilson-Raybould introduced major changes to the country’s impaired driving laws Thursday, including provisions that will allow for mandatory roadside alcohol screening and new criminal offences for driving while high.
The legislation, introduced concurrently with the government’s cannabis legalization bill, will allow police to demand a driver provide an “oral fluid sample” — saliva — if they suspect a driver is drug impaired. A positive reading could lead to further testing, including a blood test, to determine whether a criminal offence has been committed.

Three new drug-related offences will be also be created for drivers who have consumed drugs within two hours of driving. A driver who is found to have two nanograms but less than five nanograms of THC per millilitre of blood could face a maximum fine of up to $1,000 (THC is the primary psychoactive found in cannabis).

A driver who has a blood level of more than five nanograms of THC, or has been drinking alcohol and smoking pot at the same time, will face a fine and the possibility of jail time. In more serious cases, a drug-impaired driver could face up to 10 years if convicted.

The government did not specify which drug testing device it would recommend police use for enforcement, but other jurisdictions use the DrugWipe system, which can detect traces of cannabis, opiates, cocaine, amphetamine, methamphetamines (MDMA, ecstasy), benzodiazepines and ketamine.

‘New and stronger laws’

“Impaired driving is the leading cause of criminal death and injury in Canada,” Liberal MP Bill Blair, the government’s pot legalization czar, said Thursday in announcing the legislation. “In order to further protect Canadians, our government has committed to creating new and stronger laws to punish more severely those who drive while impaired by cannabis, alcohol and other drugs.”

Under the new legislation, any driver lawfully pulled over can be subjected to a breathlyzer test. photo by

“This bill, if its passes, will be one of strongest impaired-driving pieces of legislation in the world and I’m very proud of that,” Wilson-Raybould added.

However, by comparison, the European Union has a limit of just one nanogram of THC, and the United Kingdom has a limit of two nanograms. Australia and many U.S. states have zero tolerance, which effectively criminalizes driving with any detectable level of prohibited drugs in one’s body.

Some researchers, including those at the U.S.-based National Institute on Drug Abuse, have suggested there is simply no adequate way to measure THC levels, or to determine just how drugged a person is in a roadside test.

Those concerns were shared by Conservative leadership contender Erin O’Toole.

“Public safety officials at all levels of government have outstanding concerns about how to implement marijuana legislation and how to manage the costs associated with it. Of great concern, [Prime Minister Justin] Trudeau has not addressed the fact that there are no proven, reliable tests yet available for determining impairment from marijuana use,” he said in a statement.

Mandatory alcohol breathalyzer testing

Police officers will also now be able to demand a breathalyzer sample from any driver they lawfully stop. Previously, a test could only be administered if an officer had “reasonable suspicion” that a driver was impaired by alcohol.

The government is making this change because its research shows many impaired drivers are able to escape detection at check stops. It is also aimed at reducing legal action over whether an officer actually had “reasonable suspicion” to ask a driver to blow on a device for a blood alcohol content reading.

The changes are part of the government’s efforts to “repeal and replace” all transportation-related offences in the Criminal Code, with “a modern, simplified and coherent structure,” according to literature provided by Health Canada.

“I will, as I do with all justice pieces of legislation, be tabling a charter statement. I am confident of constitutionality of mandatory roadside testing,” Wilson-Raybould said. “This is not a device or a tool that doesn’t exist in other places in the world. In fact, mandatory roadside testing in many countries has significantly reduced the number of deaths on highways. I think that is of paramount concern,” she said.

Loopholes to be closed

Under the new law, many more driver’s will be incarcerated for longer periods of time.

New laws will also eliminate, or restrict, common defences used by drivers facing impaired-driving charges in court.

Currently, drivers can avoid fines or a criminal conviction by claiming they consumed alcohol just before or during driving, and thus were not over the legal limit at the time they were driving because the alcohol was not yet fully absorbed. They can claim it was only later, at the time of testing, that they reached an illegal blood alcohol concentration.

The government said, in a background document distributed to reporters, that it would close that loophole by changing the timeframe for blowing “over 80” from “at the time of driving” to within two hours of driving.

Over 80 refers to a blood alcohol limit of 80 milligrams of alcohol per 100 millilitre of blood, or as it is commonly known, .08 blood alcohol concentration.

The justice minister also announced changes to the provincial interlock programs, a system of in-car alcohol breath screening devices that prevent a vehicle from starting if alcohol is detected.

Currently, a first-time offender has to wait a year before being admitted to an ignition interlock program in order to be able to drive again.

The proposed legislation would reduce the time offenders must wait before they can return to driving; there would be no wait for a first offence, three months for a second offence and six months for a subsequent offence.

Ontario set to amend Employment Standards Act and Labour Relations Act


Ontario Labour Minister Kevin Flynn has been mandated by Premier Kathleen Wynn to consider reforms to workplace laws to reflect “the realities of the modern economy,” including the rise of insecure jobs.
Over two (2) years ago, Ontario Labour Minister Kevin Flynn was tasked by Ontario Premier Kathleen Wynn to consider reforms to workplace laws to reflect “the realities of the modern economy,” including the rise of insecure jobs. In July, 2016 two hundred recommendations were put forward; however, there have been no changes to date.

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Report could trigger the most sweeping reforms to employment and labour laws since the 1990s

Premier Kathleen Wynne’s government is about to get advice that could lead to a significant shakeup of the laws governing work in Ontario.

The Changing Workplaces Review is examining just about everything related to labour law in this province, including sick pay, overtime, how workers can join unions and employers’ responsibilities to contract workers.

It could trigger the most significant reforms to the Employment Standards Act and the Labour Relations Act since Mike Harris was premier.

“The world of work that I went into as a young man is not the world of work that young people are going into today,” Labour Minister Kevin Flynn said in an interview with CBC News. “We need to make sure that the regulations are protecting the most vulnerable.”

The review is focusing on the new realities of the millennial workforce, including the spread of part-time and contract work. Noting that the province’s current employment laws were drawn up in the 1990s, Flynn said they “need to be updated for the world of 2017.”

Pearson protest

Kathleen Wynne government ordered a review of workplace law ‘to improve security and opportunity for those made vulnerable by the structural economic pressures and changes being experienced by Ontarians.’ (Toronto Airport Workers Council)

‘Once-in-a-generation opportunity’

The review has been in the works for nearly two years, since the government appointed a pair of special advisers to recommend changes to Ontario’s workplace laws.

Last July, the advisers laid out more than 200 options for reforms to protect vulnerable workers in precarious jobs. They include such ideas as requiring employers to give workers a minimum number of paid sick days, and to give workers advance notice of their shift schedules.

Their final recommendations are due to be handed to Flynn in the coming days.

The scope of the possible changes has the business community worried and the labour movement excited.

Ont Teachers Strikes 20150525

It will be up to Labour Minister Kevin Flynn to decide whether to adopt any of the recommendations on changing Ontario’s employment laws. ((The Canadian Press/Frank Gunn))

“It’s a once-in-a-generation opportunity,” said Ontario Federation of Labour president Chris Buckley.

“When you look at the change in the employment landscape across the province, it’s well overdue,” Buckley said in an interview with CBC News. “Doing nothing is not an option.”

The recommendations “could fundamentally change the relationship between every employer and employee in the province,” said Karl Baldauf, vice-president of the Ontario Chamber of Commerce. “We’re challenging whether such sweeping reforms are necessary.”

Flynn promises that any changes will strike a balance.

“What we need to achieve in this is to make sure that precarious and vulnerable workers have the protections they should have, at the same time ensure that Ontario still has a very competitive economy,” Flynn said.

Here are some of the options that the government’s special advisers are considering: 

Sick pay, overtime, vacation pay, minimum wage

  • Making paid sick days mandatory.
  • Boosting the minimum required paid vacation to three weeks per year from the current two weeks.
  • Lowering the threshold at which overtime pay must kick in to 40 hours, down from the current 44 hours.
  • Abolishing the lower minimum wage for students under 18 and people who serve alcohol.
  • Requiring employers to pay their part-time workers the same as full-time workers doing similar jobs.

retail cashier cash register

The Wynne government’s advisers are considering whether employers should be forced to give workers advance notice of their schedules. (Simon Dawson/Bloomberg)

Casual and contract workers 

  • Forcing employers to post employees’ schedules in advance.
  • Compensating workers for last-minute schedule changes.
  • Limiting the proportion of an employer’s workforce that can be from temp agencies.


  • Banning or limiting the use of replacement workers during a strike.
  • Making it easier for the employees of franchises to form unions.
  • Allowing domestic workers employed in private homes to form unions.

Employment Standards Act exemptions

Under Ontario’s employment laws, some rules, including those governing overtime, don’t apply to certain types of jobs. The advisers are considering whether to lift any of these exemptions that currently apply to managers, janitors, IT professionals and residential care workers. They’re also considering whether interns and trainees should be covered by the Employment Standards Act.