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Ontario passes the Fair Workplaces, Better Jobs Act, 2017 (Bill 148) on November 22, 2017

The Ontario government has just passed the Bill 148 which amends the Employment Standards Act and the Labour Relations Act with a target effective date of January 1, 2018.  The Bill still needs to receive Royal Assent.

Key changes to the Employment Standards Act will include:

  • Raising the general minimum wage to $14 per hour as of January 1, 2018 and $15 per hour as of January 1, 2019
  • As of April 1, 2018 requiring the same rate of pay as paid to full-time employees for employees doing substantially the same kind of work including temporary help agency staff, casual, part time, temporary and seasonal workers
  • Increasing the minimum vacation to three weeks per year after an employee has five years of service
  • Increasing parental leave for birth mothers who have taken maternity leave to 61 weeks (from the current 35 weeks);  increasing parental leave for adoptive parents and fathers to 63 weeks (from the current 37 weeks)
  • Extending the availability of personal emergency leave days to employers with under 50 employees
  • Requiring the first two days per year of personal emergency leave to be paid with the remaining eight days unpaid
  • Extending the leave of absence to 104 weeks for death of a child as a result of a crime to the death of a child for any reason
  • Increasing the current 52 week leave of absence in the case of child disappearance as a result of a crime to 104 weeks
  • Increasing family medical leave from 8 weeks to 28 weeks
  • Adding a new domestic violence/sexual violence leave of absence ; up to 10 days off and up to 15 weeks of leave per year will be available (first five days to be paid) where an employee or an employee’s child experiences domestic or sexual violence and needs time off for medical attention, counselling, to relocate, for legal assistance or law enforcement reasons

There are numerous changes that will come into effect on January 1, 2019 concerning scheduling including the following:

  • If a shift is cancelled within 48 hours of its start, employees will be paid 3 hours of pay
  • Employees can refuse a shift without repercussion if they receive less than 96 hours of notice
  • On-call employees who are either not called into work or work fewer than three hours must be paid three hours of their regular pay rate

The Ministry of Labour has announced that it will hire up to 175 additional Employment Standards Officers to enforce the changes.

Key changes to the Labour Relations Act will include:

  • Card-based union certification for the building services industry, the home care and community services industry and the temporary help agency industry
  • Allowing unions to access employee lists and certain contact information provided the union can demonstrate that it has the support of 20% of employees in the proposed bargaining unit.
  • OLRB can conduct votes outside the workplace, including electronically and by telephone
  • Employees in a bargaining unit may only be disciplined or discharged for just cause in the period between certification and the date on which a first contract is entered into, and during the period between the date the employees are in a legal strike or lock-out position and the date a new collective agreement is entered into (or the date on which the union no longer represents the employees)
  • Maximum fines will increase to $5,000 for individuals and $100,000 for organizations (formerly these fines were $2,000 for individuals and $25,000 for organizations).
Ontario passes the Fair Workplaces, Better Jobs Act, 2017 (Bill 148) on November 22, 2017

Canadian Human Rights Act and Criminal Code amended to include Gender Identity or Expression

On June 19, 2017, the Governor General signed Bill C-16 into law, amending the Canadian Human Rights Act and the Criminal Code. Here’s what you need to know about the changes:

Canadian Human Rights Act

The Canadian Human Rights Act applies to federally-regulated employers and service providers, such as banks, airlines, and telecommunications companies. The amendments add “gender identity or expression” as prohibited grounds of discrimination in the Canadian Human Rights Act.

“Gender identity or expression” are not defined in the Canadian Human Rights Act, but more clarity can be found in policy documents produced by the Ontario Human Rights Commission (these protected grounds were added to the Ontario legislation several years ago), and other provincial bodies.

The Ontario Human Rights Commission defines “gender identity” as “each person’s internal and individual experience of gender. It is their sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. A person’s gender identity may be the same as or different from their birth-assigned sex. Gender identity is fundamentally different from a person’s sexual orientation.”

The Ontario Human Rights Commission defines “gender expression” as “how a person publicly presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person’s chosen name and pronoun are also common ways of expressing gender.”

Though the Ontario Human Rights Commission’s interpretation does not have the force of law, one can expect this interpretation to be persuasive to the federal Tribunal/Courts when interpreting the Canadian Human Rights Act in the future.

Currently, all provinces and territories have legislation in effect which prohibits discrimination based on “gender expression” or “gender identity”, but the addition of these terms to the Canadian Human Rights Act expands this protection to individuals who claim discrimination on the grounds of gender expression or identity from federally-regulated entities.

As with provincially-regulated employers however, federally-regulated employers or service providers may deny or differentiate the provision of service, facilities, or employment on the basis of gender expression or identity when it can be shown that there is a “bona fide justification”. A justification is “bona fide” when it can be proven that accommodation of an individual would impose undue hardship on the employer or service provider, considering the factors of health, safety, or cost. If an employer can demonstrate that an occupational requirement is necessary to the job and the individual cannot be accommodated without undue hardship, the requirement is permissible.

Criminal Code

Bill C-16 also amended the hate propaganda sections of the Criminal Code, adding “gender identity or expression” as a characteristic of an identifiable group.

Specifically, the amendments clarify that it is a criminal offence to advocate or promote genocide, incite hatred, or communicate statements that promote hatred against a group identified by their gender expression or identity.  In addition, committing a crime against an individual on the basis of their gender identity or expression is an aggravating factor for a court to consider when sentencing.

 

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Canadian Human Rights Act and Criminal Code amended to include Gender Identity or Expression

Costs of Accommodation: British Columbia Supreme Court Reaffirms High Threshold for Undue Hardship

In a July 2016 decision, Providence Health Care v. Dunkley, 2016 BCSC 1383, the British Columbia Supreme Court held that Providence Health Care (PHC) and the University of British Columbia (UBC) failed to establish that the costs of providing interpreter services for a deaf medical resident constituted undue hardship.

The decision is a reminder of the demands placed on employers to accommodate, and that a successful undue hardship defence based on financial reasons will require extensive financial disclosure on the part of the employer and related entities.

Briefly, the facts of the case were as follows. The claimant secured a residency position at PHC, a local hospital. Due to a profound hearing loss, she required the use of sign language interpreters. On the residency start date, arrangements for interpreter services had not been made and a few months later, the claimant was placed on paid leave, followed by unpaid leave.  PHC subsequently informed her that accommodation could not be provided and dismissed her from PHC as an employee and from UBC as a resident.  The claimant filed a complaint with the British Columbia Human Rights Tribunal, who found that PHC and UBC had discriminated against her on the basis of her physical disability.  The Tribunal concluded that PHC discriminated against the respondent regarding employment, contrary to s. 13 of the British Columbia Human Rights Code, while UBC discriminated against her by denying her accommodation, services or facilities customarily available to the public, contrary to s. 8 of the Code.

On judicial review, the British Columbia Supreme Court upheld the Tribunal’s decision.  The Court reaffirmed that the relevant considerations were the employer’s efforts to accommodate; the options explored and/or offered to the employee; and explanations given for the absence of such offers.

The Court upheld the Tribunal’s finding that PHC had used an unreliable cost estimate, and that both PHC and UBC had failed to undertake a reasonable investigation into the true cost of accommodation. Further, the Court confirmed that PHC could not base its claim of undue hardship only on its own budgetary restrictions.  The financial resources of UBC, Vancouver Coastal Health Authority (VCHA) and the Ministry of Health were also relevant since those entities were either affiliates of PHC or had agreed to provide it with funding for the UBC residency program.  Consequently, PHC should have explored the possibility of obtaining additional financial resources from those entities or establishing a cost sharing model as part of its investigation into costs.

The Providence Health Care v. Dunkley decision highlights that employers must prove that they have engaged in a comprehensive investigation into the true cost of accommodation, including an assessment of all sources of funding available, before they successfully rely on undue hardship.

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Costs of Accommodation: British Columbia Supreme Court Reaffirms High Threshold for Undue Hardship

Trend continues in alberta for higher general damages in human rights awards

General damages awarded by human rights tribunals are intended to compensate for discrimination and to act as a deterrent.

The Alberta Human Rights Act provides no statutory limit on how much general damages can be awarded.  However, in the past general damages awarded by the Human Rights Tribunal of Alberta (the “Tribunal”) generally ranged from $3,000 to a top end “cap” of $10,000.

This has changed since the Alberta Court of Appeal decision in 2013 of Walsh v. Mobil Oil Canada.  In Walsh, the court stressed that inadequate damage awards undermined the mandate of human rights legislation to recognize and affirm that all persons are equal, and to protect against and compensate for discrimination.  The court concluded that low damage awards could actually perpetuate discriminatory conduct.

Beginning in 2015 there has been a notable trend towards higher general damages awards, and the Tribunal has issued a number of decisions awarding general damages in the range of $10,000 to $15,000.

In Amir and Nazar v. Webber Academy Foundation the Tribunal found that it was not undue hardship to allow Muslim students to pray during the school day in a secular private school, and awarded general damages of $12,000 and $14,000 to each complainant.

Similarly, in Andric v. 585105 Alberta Ltd. o/a Spasation Salon & Day Spa, the Tribunal found that the employer had unjustifiably changed the complainant’s position and work location of 10 years after she was assaulted by a co-worker. The Tribunal concluded that the shared religious beliefs between the co-worker who assaulted the complainant and the employer were a factor in the respondent’s decision to transfer the complainant.  The complainant was awarded general damages of $15,000 and lost wages for a 24 month period.

More recently, on July 5, 2016 the Tribunal issued its decision in Thu Hien Pham v. Vu’s Enterprise Ltd. o/a La Prep, which continued this trend of higher general damage awards.  The complainant, Ms. Pham was awarded $15,000 in general damages by the Tribunal, who found that Ms. Pham had been harassed by her former employer.  On awarding $15,000 in general damages, the Tribunal chair noted that “it was important to ensure that damages are not so low as to trivialize the protection of human rights”, and “[w]hile I may have been inclined to consider a greater amount…this was the amount requested by the Director and the complainant”.

Accordingly, employers can expect to see larger awards in the future for both general damages and loss of income, and should not discount the risks and exposure of a human rights complaint.

These decisions of the Human Rights Tribunal of Alberta can be found here:

  • Amir and Nazar v. Webber Academy Foundation, 2015 AHRC 8 (currently under appeal): http://www.canlii.org/en/ab/abhrc/doc/2015/2015ahrc8/2015ahrc8.html?resultIndex=1
  • Andric v. 585105 Alberta Ltd. o/a Spasation Salon & Day Spa, 2015 AHRC 14: http://www.canlii.org/en/ab/abhrc/doc/2015/2015ahrc14/2015ahrc14.html?resultIndex=1
  • Pham v. Vu’s Enterprises Ltd., 2016 AHRC 12: http://www.canlii.org/en/ab/abhrc/doc/2016/2016ahrc12/2016ahrc12.html?resultIndex=1

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Trend continues in alberta for higher general damages in human rights awards

B.C. and Canada Adopting Gender Identity and Gender Expression Human Rights Protections

Both the British Columbia and the Federal Government have recently introduced legislation to amend their respective human rights legislation to include gender identity and gender expression among the protected grounds of discrimination. These amendments will mean that individuals will have a right under the respective legislation to make a complaint if they have been discriminated against because of their gender identity or expression, including in employment settings.

Federally regulated employers and employers in British Columbia should review and update their policies on non-discrimination to ensure that these two new prohibited grounds of discrimination are covered.

British Columbia’s Human Rights Code Amendment Act, 2016, S.B.C. 2016, c.26 was passed on July 25, 2016 and came into force on July 28, 2016 whereas the Federal Bill C-16 passed first reading in the House of Commons on May 17, 2016 and has yet to become law.

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B.C. and Canada Adopting Gender Identity and Gender Expression Human Rights Protections

Intrusive surveillance systems for security purposes: the line Big Brother must not cross

Technological developments and the need for employers to monitor employees’ activities and to minimize accidents and hazards require constant adjustments in order to respect the right to privacy. While it may be tempting for employers to replace old surveillance methods with new technologies capable of watching their personnel’s every move, the inclination to use easier and more reliable ways of supervising employees must nonetheless not violate employees’ right to privacy, which, while being more limited in a work context, nevertheless exists.

In a recent Quebec arbitration ruling, Sysco, a food delivery company, had decided to install a DriveCam® safety program inside the drivers’ cabins of its trucks in Quebec. The Union disagreed with the introduction of this new surveillance measure and filed a grievance to have said cameras removed, alleging that they were not only violating the truck drivers’ rights to privacy and dignity, but that they were also leading to unfair and unreasonable working conditions.  In addition, the Union claimed that Sysco had failed to establish serious motives which would justify its resort to the use of such invasive surveillance, especially considering the existence of a no‑fault system in Quebec.  On its end, Sysco claimed that it was justified to install the cameras as they were meant to (i) be used as a training tool for the drivers, (ii) increase and encourage safe driving and (iii) assist with liability determination or exoneration in case of accident.

In ruling that Sysco was not justified in installing those cameras and ordering that they be removed, the Arbitrator used a two-fold analysis. First, did Sysco have a specific problem that needed to be addressed with these cameras?  Second, were these cameras the only way to fix the alleged problem, or was there a less intrusive way to achieve similar results?

On the first part of the analysis, the Arbitrator found that Sysco had failed to establish that it had an existing problematic situation that needed to be fixed. The employer’s concern for prevention regarding safe driving and liability determination or exoneration did not constitute strong motives for which the surveillance would be warranted.  Considerable risks revealing an existing problem would have been enough to establish the presence of a problem, but Sysco had not established such a problem. For example, a widespread problem having to do with alcohol or drug consumption during working hours would have constituted a great risk in the matter of safe driving.

With respect to the second aspect of the analysis, Sysco’s concern could easily have been addressed by other less intrusive means, such as training, random safety spot-checks, or cameras installed outside of the trucks rather than inside the cabins. In fact, cameras constantly filming the drivers inside the trucks’ cabins had even proven to be distracting for the drivers, thus potentially creating a greater risk from a safety perspective.

Employers who may be tempted to install such surveillance systems on their fleet will need to remember that any such violation of their employees’ right to privacy will only be justified by identifying an existing specific problem that cannot be fixed by a less intrusive means than the surveillance system the employer wishes to install.

The decision can be found here: Syndicat des travailleurs et travailleuses de Sysco-Québec-CSN et Sysco Services alimentaires du Québec, 2016 QCTA 455.

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Intrusive surveillance systems for security purposes: the line Big Brother must not cross

The Final Word? The Ontario Court of Appeal upholds an astounding 10 years of back pay and employee reinstatement

Readers of this blog may recall reading in 2014 about the Ontario Divisional Court upholding the Ontario Human Rights Tribunal’s order for 10 years of back pay and employee reinstatement.  The decision was reached in the case of Hamilton-Wentworth District School Board v. Fair and can be read about in more detail here:  http://www.employmentandlabour.com/school-board-taught-a-costly-lesson-court-upholds-reinstatement-with-10-years-of-back-pay.

Not surprisingly, the Hamilton-Wentworth District School Board (“the “Board”) decided to appeal the Divisional Court’s decision and late last month, the Ontario Court of Appeal rendered its own decision on the same matter.  In doing so, it agreed with the Divisional Court on virtually every point, thereby upholding the astounding 2013 decision of the Human Rights Tribunal for 10 years of back pay, as well as employee reinstatement a decade after termination.

In summary, Ms. Fair was an employee with the Board who was on disability leave for about 3 years prior to being terminated.  At the time of termination she had sought a return to work but the employer refused to accommodate her into another position.  The standard of review on an appeal such as that before the Court of Appeal is one of “reasonableness” – namely, was the Tribunal’s decision reasonable?  Under that test, the Ontario Court of Appeal unanimously determined that the Human Rights Tribunal’s decision was reasonable with regard to the facts and law before it.

Although no new law was made by the Ontario Court of Appeal, it did reaffirm the law in areas that employers should pay particular heed to.  First, the Court confirmed that in order for an employer to fulfil its duty to accommodate an employee’s disability, the employer may be required in an appropriate case to place the disabled employee into a position for which he or she is qualified but not necessarily the most qualified.  Second, the Court confirmed that the passage of years is not determinative of whether reinstatement is an appropriate remedy; rather, context is key.  In this case, the evidence was that Ms. Fair’s relationship with the Board had not been fractured and the passage of time had not materially affected her capabilities, both of which led to the conclusion that reinstatement after a decade was not unreasonable.

Employers would do well to keep in mind the inherent uncertainties of litigation, the fact that the Human Rights Tribunal can order reinstatement, and the fact that a complaint which moves slowly through the system can ultimately increase the bottom line for an unsuccessful employer.  While not every case should necessarily be settled, Hamilton-Wentworth District School Board v. Fair is a good example of a case which became far more costly to the employer due to the passage of time.

The Ontario Court of Appeal’s decision in Hamilton-Wentworth District School Board v. Fair can be found here:  http://www.ontariocourts.ca/decisions/2016/2016ONCA0421.htm.

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The Final Word? The Ontario Court of Appeal upholds an astounding 10 years of back pay and employee reinstatement

Miscarriage is a Disability

In a recent interim decision of the Ontario Human Rights Tribunal, adjudicator Jennifer Scott found that miscarriage could constitute a “disability”.  The door was also left open for employees terminated due to miscarriage to claim discrimination due to sex.

In the case of Mou v. MHPM Project Leaders, Mou was off work for approximately 3 weeks in January 2013 due to injuries sustained from a slip and fall accident.  She subsequently suffered a miscarriage in June of the same year and was off work for 2 days.  Her employment was terminated in February 2014 and Mou alleged that the termination related to her absences from work.  In February of 2016, a hearing took place to determine the threshold issue of whether Mou had established that she suffered from a disability.

The employer argued that in order for an illness or injury to constitute a disability, there must be some aspect of permanence or persistence to the condition.  In short, the employer argued that Mou’s health issues were temporary in nature and that Mou fully recovered from them prior to her termination.  Adjudicator Scott felt otherwise.  In coming to her decision she noted that while normal ailments such as a cold or flu are transitory, a miscarriage is not a common ailment and is not transitory.  In reaching that conclusion, Adjudicator Scott made reference to the fact that Mou continued to feel “significant emotional distress from the miscarriage” to the date of the hearing.

No mention is made in the decision as to whether any expert evidence was adduced by the employer with respect to whether miscarriage is a common ailment and it is suspected that no such evidence was provided.  One wonders whether the decision might have been different if the adjudicator had heard evidence to the effect that at least 1 in every 4 pregnancies is believed to end in miscarriage, or that a majority of women have at least one miscarriage during their childbearing years.  While there is no doubt that miscarriage can lead to emotional distress and even physical problems, it is possible that had this expert evidence been provided, it might have affected the adjudicator’s conclusion that miscarriage is not a common ailment.

Separate and apart from the issue of the miscarriage, it is clear from the decision that Mou’s slip and fall injuries also constituted a disability as they took approximately 3 weeks to heal.  Just as importantly, Adjudicator Scott made note of the fact that the employer invited Mou to apply for short-term disability coverage after her slip and fall, which is presumed to have been an indication that the employer believed her to be disabled.

It is important to note that although the Tribunal concluded that a miscarriage can constitute a disability, there has not yet been a final hearing in this case and no determination has been made as to whether Mou’s disability was a factor in her employer’s decision to terminate employment.

The case of Mou v. MHPM Project Leaders may be found here:  http://www.canlii.org/en/on/onhrt/doc/2016/2016hrto327/2016hrto327.html.

 

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Miscarriage is a Disability

Terminating for Financial Reasons? Don’t Expect the Courts to Help You Out

Employers who undertake reductions in force due to financial difficulties should not count on employee notice periods being reduced as a result of the financial troubles.  This point was recently emphasized by the Ontario Court of Appeal in the decision of Michela v. St. Thomas of Villanova Catholic School.

Michela, Gomes and Carnovale were long-term teachers at St. Thomas of Villanova Catholic School, with 11, 13 and 8 years of service respectively.  All worked under a series of one-year contracts.  In May of 2013, the employer advised each of them in writing that they would not receive a contract renewal for the coming year because enrolment was expected to be lower.  Subsequently, in June of 2013 each of them was provided with a termination letter and advised that notice was not owed because they were employed pursuant to fixed-term contracts.

The claims were dealt with by summary judgment, and the motions judge determined that due to the succession of fixed-term contracts, the employees were really indefinite term employees and entitled to common law notice of termination.  However in determining that the reasonable notice period for each employee should be 6 months rather than the 12 months which was claimed, the judge made reference to the employer’s poor financial position.
In overturning the decision, the Court of Appeal made reference to the Bardal factors used to calculate reasonable notice at common law: the employee’s character of employment, length of service, age, and availability of similar employment having regard to experience, training and qualifications.  The Court found that the motions judge had mistakenly viewed “character of employment” through the lens of the employer rather than the employees, and stated that the financial position of the employer does not factor into the calculation of reasonable notice.  The court confirmed that while an employer’s financial position may be the reason for a termination without cause, the financial position of the employer does not justify a reduction in the notice period in bad times nor an increase when times are good.

For employers considering reductions in force during difficult times, it may be best to consider other options such as a temporary layoffs, ensuring that proper termination provisions are in place which provide only statutory minimums in the event of termination, or the provision of working notice.  While legal advice should be sought in order to ensure the best plan of action, it is clear at the very least that employers should not count on a reduced notice period due to a difficult financial position.

The decision in Michela v. St. Thomas of Villanova Catholic School can be read here:  http://www.ontariocourts.ca/decisions/2015/2015ONCA0801.htm.

Terminating for Financial Reasons? Don’t Expect the Courts to Help You Out

Don’t Let a Human Rights Application Get “Lost in the Mail”

Until recently, the Human Rights Tribunal of Ontario (the “Tribunal”) would deliver a Human Rights Application to whomever the Applicant listed as the Employer’s contact person.  That person, possibly the Applicant’s supervisor or manager, was often not the appropriate person to deal with the Application on behalf of the Employer, leading to delays in the Employer’s ability to respond to the Application.

The Tribunal has taken steps to remedy this problem in its “Practice Direction on Establishing a Regular Contact Person for an Organization”. The new Practice Direction, effective as of November 2015, allows organizations to designate a regular contact person for the delivery of Human Rights Applications. Where such a person has been designated, the Tribunal will rely on that person as the contact for Human Rights Applications, regardless of which person is named as the organizational contact in the Application itself.

If an organization wants to establish a regular contact for the organization, all the organization has to do is send the following information to the Tribunal Registrar:

  • Name and position of the person making the request;
  • The name and contact information of the contact person, including email address if available; and
  • A request that the Tribunal use the named contact person as the organization’s contact in any applications filed with the Tribunal naming the organization.

Should the contact person for the organization change, the organization would be required to contact the Registrar, designate a new contact person and provide his/her contact information.

An organization’s representative is to be distinguished from a personal respondent.  Where individuals are named as personal respondents in Human Rights Applications, they will continue to be treated as parties and served separately from the organization.

The Practice Direction is available at: http://www.sjto.gov.on.ca/hrto/rules-and-practice-directions/

Don’t Let a Human Rights Application Get “Lost in the Mail”