CANADA Trends and Developments Contributed by: Andrew Shaw, Ryan Carroll and David McIsaac, Baker McKenzie
employment which may include job searching, inter - viewing and training. Digital Platform Workers’ Rights Act With the introduction of the Digital Platform Workers’ Rights Act, Ontario joins British Columbia as another Canadian province that has developed legislation regulating the gig economy. Canadian jurisdictions will likely continue to regulate this sector as the gig economy maintains a presence in Canada. Employers should continue to monitor legislative developments to ensure they remain compliant with evolving obliga - tions in this sector. As previously mentioned, the Act provides several entitlements to employees in the gig economy includ - ing a right to minimum wage, amounts earned, and a recurring pay period and pay day. Beyond those entitlements, the Act also provides a right to infor - mation. Digital platform workers are now entitled to certain information during the worker–operator rela - tionship. For example, within 24 hours of a worker receiving access to the digital platform, the operator must provide the worker with the following informa - tion in writing. • Description of how pay is calculated. • Whether tip or other gratuities are collected and if they are, when and how. • The applicable recurring pay period and pay day. • Details on any factors that may be used to deter - mine how work assignments are offered and how such factors are applied. • Whether the platform uses a performance rating system and any potential consequences based on the worker’s rating and work performance. • Details regarding factors used to evaluate the worker’s performance and related consequences. The parties cannot contract out of the Act’s minimum requirements. They must also resolve all digital plat - form work-related disputes in Ontario. It does not specify what forum the parties must use to resolve a dispute like binding arbitration or mediation. Workers are protected from forms of reprisal including intimidation for exercising their rights under the Act. There are also regulations about how an operator can
remove a worker’s access to the platform. Operators are prohibited from removing a worker’s access to the platform unless the operator has provided the worker with a written explanation as to why they are losing access. If access is removed for more than 24 hours, the operator must give the worker two weeks’ written notice. Two weeks’ written notice is not required if the worker: • is guilty of wilful misconduct; • is removed due to public safety concerns; • is unable to legally perform digital platform work under applicable federal or provincial legislation or a municipal by-law; and/or • must otherwise be removed as required by law. Termination provisions in contracts Termination provisions remain difficult for employers to enforce. Ontario courts continue to follow the land - mark decision of Waksdale v Swegon North America Inc, 2020 ONCA 391 . The Ontario Court of Appeal found that a non-compliant “for cause” termination provision can render the entire termination provision in an employment agreement unenforceable, even if an employer does not rely on that provision. The Ontario Court of Appeal followed this principle when affirming the Superior Court of Ontario’s deci - sion in Dufault v The Corporation of the Township of Ignace, 2024 ONSC 1029 . The Superior Court of Ontario held that a termination provision that stated the employer could terminate the employee in its “sole discretion” and “at any time” was unenforceable. The Court noted that the provision only referenced base salary as the entitlement owed to the employee upon termination. It neglected vacation pay, which forms part of the employee’s regular wages. It also found the “for cause” termination provision unenforceable. The Ontario Court of Appeal declined to consider if the without cause termination provision was enforceable. Rather, it relied on its previous holding in Waksdale that since the “for cause” termination provision was unenforceable, all termination provisions in the con - tract were rendered void. The Ontario Court of Appeal followed this principle again in De Castro v Arista Homes Limited, 2025
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