UPDATE: On April 12, 2023, SOR/2023-65- Regulations Amending Certain Regulations Made Under the Canada Labour Code received Royal Assent and came into force.

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On October 1, 2022, Canada published two proposed Regulations under the Canada Labour Code (CLC) and requested comments by October 31, 2022, via a new embedded commenting feature.  The proposed Regulations are linked below:

1. Regulations Amending Certain Regulations Made Under the Canada Labour Code [Service of Documents and Regular Rate of Wages]; and
2. Regulations Amending Certain Regulations Made Under the Canada Labour Code [Reimbursement of Reasonable Work-Related Expenses].

1. Proposed Regulations re: Service of Documents and Regular Rate of Wages

Service of Documents

The proposed Regulations seek to harmonize the service of document rules under Part III of the CLC with more modern regulations under Part IV (Administrative Monetary Penalties) that came into force on January 1, 2021, and contain provisions that permit electronic and substitutional service.

The proposed Regulations allow for electronic and substitutional service of Part III legal documents.  They provide that, in addition to existing manners of service (i.e., registered mail and personal service), service can also be achieved by sending the document by courier; electronic delivery (e.g., fax); and by leaving the document with someone who appears to be an adult member of the same household at the individual’s last known address or usual place of residence. 

The proposed Regulations also provide for substitutional service if an individual or person (i.e., a legal person, such as a business or organization) cannot be reasonably served in any of the manners listed above, by leaving a copy of the notice or order at the person’s last known address or place of business or, in the case of an individual, at their usual place of residence or workplace.

The proposed Regulations clarify how service can be proved, including by an acknowledgement of service signed by or on behalf of the person served, specifying the date and location of service; a certificate of service signed by the person who effected the service stating that service was made on the person named in the certificate and indicating the means by which and day on which service was effected; or a record of electronic transmission setting out the date and time of transmission.

In addition, the proposed Regulations clarify the dates on which service will be deemed to have been effected. 

Regular Rate of Wages 

The proposed Regulations address how employees would be compensated for time spent at a Canada Industrial Relations Board (CIRB) hearing when their method of compensation is not by an hourly rate (e.g., piece rates, haulage, commission). Two formulas for compensation are provide and one is specific to employees paid by commission. 

Administrative Monetary Penalties (AMPs)

The proposed Regulations also amend the Administrative Monetary Penalties (Canada Labour Code) Regulations for contraventions of the new requirements outlined above. 

2. Reimbursement of Reasonable Work-Related Expenses

The legislative amendments in Budget Implementation Act, 2018, No. 2 (BIA 2018, No. 2) include Division XII.1 “Reimbursement of Work-related Expenses” (not yet proclaimed into force).  It provides that, subject to certain exceptions, employers are required to reimburse employees for reasonable work-related expenses they have incurred.

The proposed Regulations prescribe the factors to consider in determining whether an expense is work-related, and whether it is reasonable.  They also establish a time limit for reimbursement when the employer and employee have not agreed on one. 

Factors to consider in determining whether an expense is work-related

The proposed Regulations prescribe the following factors to consider in determining whether an expense is work-related:

(a) whether the expense is connected with the employee’s performance of work;

(b) whether the expense was incurred to enable an employee to perform work;

(c) whether the incurred expense is a requirement of continued employment;

(d) whether the expense was incurred to satisfy a requirement for the employee’s work imposed by an occupational health or safety standard; and

(e) whether the expense was incurred for a legitimate business purpose, rather than for personal use or enjoyment.

Factors to consider in determining whether an expense is reasonable

The proposed Regulations also prescribe the following factors to consider in determining whether an expense is reasonable:

(a) whether the expense is connected to the employee’s performance of work;

(b) whether the expense was incurred to enable an employee to perform work;

(c) whether the expense was incurred at the direction of the employer;

(d) whether the amount of expense is reasonable and does not incur additional unnecessary expense;

(e) whether the expense is one that is normally reimbursed by employers in similar industries;

(f) whether the expense was authorized by the employer in advance;

(g) whether the expense was incurred by the employee in good faith; and

(h) whether the claim for the expense includes documentation, such as a receipt or invoice.

Time limit for reimbursement of work-related expenses

The proposed Regulations require employers to reimburse their employees for work-related expenses within 30 days of an employee submitting a claim for payment if there is no written agreement setting out an alternative time limit.

Statement of employment conditions

The BIA 2018, No. 2 also introduced a requirement for employers to provide a written statement of employment within the first 30 days of employment.  The proposed Regulations require the following information in the employment statement:

(a) the names of the parties to the employment relationship;

(b) the job title and brief description of their duties and responsibilities;

(c) the place of work;

(d) the date of commencement of employment;

(e) the term of employment;

(f) the probationary period, if any;

(g) the specific requirements of employment (e.g., driver’s license, criminal records check);

(h) the required training;

(i) the hours of work specific to the employee (including how they are calculated and overtime rules);

(j) the rate of wages or salary (including overtime rates);

(k) the frequency of payments;

(l) any mandatory deductions; and

(m) the reimbursement of work-related expenses (process, authorization, etc.).

We encourage employers that wish to comment on the proposed Regulations to do so by the October 31, 2022 deadline. 

We will follow these developments as they unfold and provide an update at the appropriate time.