Proposed Legislative Changes Affecting Manitoba Employers

Authors: Milt Christiansen, Devin Wehrle, Hillary Linden

Since October 2020, the Manitoba Legislature has introduced a number of bills that would significantly affect Manitoba employers. We have previously reviewed proposed changes to The Labour Relations Act, modifications to retail operating hours and legislation affecting collective bargaining for the public school system.

UPDATE: On May 20, 2021, the Manitoba Legislature passed the below bills. Bill 11, The Workplace Safety and Health Act, was in force immediately upon passage and royal assent. All other bills will become in force on date(s) in the future to be proclaimed by the Manitoba Government.

Set out below is a review of other proposed legislative changes that employers and human resources professionals should be aware of going forward.

Bill 11 – The Workplace Safety and Health Amendment Act

The Workplace Safety and Health Act (the “WSHA”) imposes duties on employers to provide and maintain a work environment that meets certain health and safety standards. The Workplace Safety and Health Amendment Act as proposed would significantly increase the maximum penalties for offences under the WSHA in addition to introducing certain procedural changes.

One such change that would have practical implications is a new, shorter time limit for employees to make a complaint. Employees who believe on reasonable grounds that their employer or union has taken a reprisal against them (formerly defined as a “discriminatory action”) would only have six months after the alleged reprisal occurs to make a complaint to Workplace Safety and Health.

Further to this new time limitation, Bill 11 would also entitle the Director of Workplace Safety and Health to dismiss an appeal from the decision of a safety and health officer if:

  1. the Director is of the opinion that the matter under appeal is frivolous or vexatious;
  2. in the case of a reprisal, the Director determines that the reprisal was not filed within the allotted six-month period.

This would provide additional grounds for an employer to challenge complaints brought by an employee under the WSHA.

In addition, Bill 11 would significantly increase the amount of fines that can be levied against employers for offences under the WSHA, as follows:

  • a maximum fine of $500,000 for a first offence (currently a maximum of $250,000);
  • for a continuing violation, $50,000 for each day during which the first offence continues (currently a maximum of $25,000 per day);
  • a maximum fine of $1 million for a second or subsequent offence (currently a maximum of $500,000); and
  • for a continuing violation, $100,000 for each day during which the second or subsequent offence continues (currently a maximum of $50,000 per day).

Bill 18 – The Workers Compensation Amendment Act

Proposed changes to The Workers Compensation Act (the “WCA”) are also relevant to employers. The WCA provides the rules by which Manitobans may be compensated for certain work-related injuries and imposes rules and restrictions on employers.

Proposed changes to the WCA under Bill 18 include:

  • expanding the definitions of “accident” and “occupational disease” to include more injuries and illnesses, including post-traumatic stress disorder and occupational injuries that are deemed to be work-related by future regulations;
  • explicitly disallowing employers from receiving compensation from an employee for costs arising from an employee’s claim under the WCA. Currently, the WCA provides that an employer must not deduct any amount from a worker’s wage in respect of any liability imposed on the employer under the WCA. Bill 18 would clarify that the employer must not directly or indirectly deduct any amount from an employee’s wages, or require or permit an employee to indemnify or contribute to the indemnification of an employer in respect of any liability imposed on the employer under the WCA;
  • creating a new position of “employer advisor”. The role of the employer advisor would be to a) advise employers as to the interpretation and administration of the WCA and the Regulations thereunder and b) to advise employers of the effect and meaning of various decisions made under the WCA;
  • requiring employers to take extra care with information that they receive from the Workers Compensation Board. If an employer is a party to a reconsideration or appeal of a Board decision relating to a claim for compensation, and requests and obtains copies of documents from the Board, such information may only be used for the reconsideration or appeal and must be destroyed within 60 days of receiving it. The employer would also be required to advise the Board when the documents have been destroyed; and
  • imposing a new late fee for filings of payroll information with the Board. Employers who fail to file the requisite payroll information within 30 days of becoming an employer, and on or before the last day of February in each year, will be liable to pay a late filing fee of 5% of its assessment that year if the failure continues for 61 days or less, and 10% of its assessment that year if the failure continues for more than 61 days. Further, Bill 18 provides that interest will now be due on late payments to the Board in an amount as prescribed by future regulations.

Bill 26 – The Human Rights Code Amendment Act

Proposed changes to The Human Rights Code (the “HRC”) under Bill 26 would introduce a new maximum amount of $25,000 in damages that may be awarded to complainants for injury to dignity, feelings or self-respect. Currently, there is no limit on general damage awards against employers, and decisions of Adjudicators under the HRC have awarded up to $75,000 in such damages. Bill 26, if passed, would significantly limit an employer’s potential liability for general damage awards under the HRC.

Bill 51 – The Limitations Act

The Limitation of Actions Act (the “LAA”) currently provides that a former employee may file a claim for breach of contract (such as a wrongful dismissal or constructive dismissal claim) up to six years after the termination of their employment. Bill 51 as proposed would repeal the LAA and introduce a new two-year limitation period for any action, with specific exemptions. Accordingly, employers would not be liable for civil claims from employees more than two years after the employee’s termination or when the cause of action arose. However, Bill 51 provides an exemption for sexual assault claims which may apply to employers who are vicariously liable for an employee’s alleged sexual assault.

Bill 49 – The Freedom of Information and Protection of Privacy Amendment Act

The Freedom of Information and Protection of Privacy Act (“FIPPA”) governs information held by public sector entities, including public sector employers, and allows for limited disclosure of such information upon request. Bill 49 has some bearing on public sector employers and their obligations pertaining to privacy. Bill 49, among other proposed changes, would provide that a public body/employer can refuse to disclose information that:

  1. would disclose personal information about the applicant that a third party provided in confidence to the applicant’s employer (such as a reference check) and the disclosure could reasonably be expected to identify the third party;
  2. would reveal labour relations information that was prepared or supplied on a confidential basis; and
  3. would relate to an ongoing or past investigation into the employment-related conduct of an employee.

The above Bills are at various stages of passage in the Manitoba Legislature, and may be subject to amendment or not passed at all. MLT Aikins will continue to monitor the legislative developments, and employers who are considering the implications of the proposed changes on their operations should contact a member of our Winnipeg labour and employment team.