Ontario’s right-to-disconnect and non-compete changes symbolic for now

Headline-grabbing changes to Ontario’s workplace laws may be more symbolic than revolutionary in practice, says Toronto civil litigator Stephany Mandin. 

Premier Doug Ford’s provincial government hailed itself as a “first mover” on the path to the workplace of the future as it launched Bill 27 the Working for Workers Act, which includes a ban on non-compete agreements and requirements related to employees’ right to disconnect outside of work hours.

“COVID-19 has changed the way we work, leaving too many people behind, struggling to put food on the table and make ends meet for their families,” said MPP Monte McNaughton, the province’s minister of labour, training and skills development. “Our government is working for workers. To do so, we must act swiftly and decisively to put workers in the driver’s seat and begin rebalancing the scales. Today’s proposed legislation shows Ontario is ready to lead the way into the workplaces of tomorrow, and create the conditions that will make talented, innovative people want to work in our great province.”

However, Mandin, principal of Mandin Law, says the substance of the legislation, which received Royal Assent Dec. 2, doesn’t quite match the hype…at least for now.

“They’re stating their intentions strongly, but it’s largely a symbolic message at this stage,” she says.

For instance, while Bill 27 bans employers from using non-compete agreements that restrict employees in their future work with other businesses in the same field, Mandin says the amendments are largely in line with existing case law from the province’s courts.

In general, she explains that judges are reluctant to enforce non-compete clauses in contracts outside of cases involving senior executives or very specialized employees. While many employers still insert such provisions in their agreements by default, Mandin says few will pursue the matter via litigation because of the expense and high risk of defeat.

“The prohibition sends a good message, but I’m not sure it will have significant or reverberating effects that we haven’t already seen. It just seems to confirm via statute what we already knew to be the law in practice,” she says.

Bill 27’s “right-to-disconnect” provisions have greater potential to shake up the traditional approach to workplace relations, according to Mandin, who says the Covid-19 pandemic has accelerated existing technological trends that make it increasingly difficult for many workers to escape the demands of the office.

“Even before everyone went to remote work, people were constantly connected to their workplaces. When you’re working from home, things can be scheduled at any time, which can create an expectation that employees will be available outside normal working hours,” she says.  

But for now, Mandin says the wording of Ontario’s law leaves too much room for interpretation to have much of an immediate impact on businesses.

Bill 27 only requires employers with 25 employees or more to develop policies regarding disconnecting from work, and says nothing about what must go into the policy document itself. In its statement announcing the measures, the provincial government suggested employers could include response-time expectations for emails or encourage employees to turn on out-of-office notifications when they are not working.   

“The intentions are noble, and I can understand the impetus to set some standards as we transition back to the office or some kind of hybrid work environment,” Mandin says. “The issue with this law at the moment is that there is no real guidance as to what’s prescribed, who is exempt, how it will be implemented and how it would be enforced.”

Employers have until June 2022 to comply with the policy requirement. By then, Mandin says the provincial government may have answered some of these questions by passing regulations under the law which explain in detail how it will operate.  

“I’m curious to see how the regulations are fleshed out and what kinds of issues arise once we all have some more substantial guidance about how this legislation will work,” she says.