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Category Archives: Human Rights

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Federal Accessibility Legislation in the Works

Posted in Accessibility, Accommodation, Accommodation, Disability, Federally Regulated Employers, Human Rights

 

 

The Federal Government has recently commenced a nationwide consultation process with Canadians to inform the development of federal accessibility legislation.  Specifically, the government is seeking input on the following:

  • feedback on the overall goal and approach;
  • to whom would apply;
  • what accessibility issues and barriers it could address;
  • how it could be monitored and enforced; and
  • what else the Government of Canada could do to improve accessibility.

Thus far, there is limited opportunity for public oral consultation.  Brief in-person sessions are taking place in 18 cities across Canada.  These sessions began in September and will continue through to … Continue Reading

(Likely) Coming Soon to a Federally Regulated Workplace Near You – Flexible Work Arrangements

Posted in Accommodation, Accommodation, Family Status, Federally Regulated Employers, Flexible Work Arrangements

The Federal Government has pledged to amend the Canada Labour Code to allow federally regulated workers to formally request flexible work arrangements from their employers, noting that a statutory right to request flexible work arrangements would align with existing obligations under human rights law (e.g. family status protections around an employee’s childcare obligations).

Following this pledge, the Federal Ministry of Employment, Workforce Development and Labour recently published a discussion paper on the topic, and announced that it will be conducting public consultations about flexible work arrangements, including flexibility around work schedules, hours of work, location or work, leaves, and rest … Continue Reading

The Ongoing Pursuit of Accessibility in Ontario – Amendments to the AODA Effective July 1, 2016

Posted in Accessibility, Accommodation, Accommodation, Disability, Human Rights

Ontario’s commitment to promoting and advancing accessibility for persons with disabilities is continuing, with amendments to the Accessibility for Ontarians with Disabilities Act, 2005 (“AODA”) scheduled to become effective on July 1, 2016.

Under the current legislation, the requirements for employers and businesses operating in Ontario are split between O. Reg. 429/07 – Accessibility Standards for Customer Service and O. Reg. 191/11 – Integrated Accessibility Standards (Information and Communication, Employment, Transportation and Design of Public Spaces). Effective July 1st, these two regulations will be consolidated into a single Integrated Accessibility Standards regulation through amendments contained in O. Reg. … Continue Reading

New Paid and Unpaid Leaves Proposed for Ontario Employees

Posted in Accommodation, Accommodation, Leaves of Absence, Occupational Health and Safety, Sexual Violence, training

Last month, the Government of Ontario introduced two bills which would provide for new leaves under the Employment Standards Act, 2000 as well as new training obligations under the Occupational Health and Safety Act.

Leave proposed for grieving parents

On March 8, 2016, the Government introduced Bill 175, Jonathan’s Law (Employee Leave of Absence When Child Dies), 2016. Under Bill 175, an employee who has been employed by his or her employer for at least six consecutive months will be entitled to a leave of absence without pay of up to 52 weeks if a child of the … Continue Reading

It’s in our DNA: Bill S-201 and Genetic Discrimination

Posted in Accommodation, Accommodation, Disability, Discrimination, Federally Regulated Employers, Human Rights, Privacy, US vs. Canadian Employment Law

When dealing with requests for accommodation, employee absenteeism and other medical circumstances, employers are routinely faced with the challenge of balancing employee privacy interests against the operational interests of the business when determining how much medical information and what kind of medical information employers can request.  The analysis typically centres on the issue of what is reasonable in the circumstances, with diagnostic information being considered to be a clear delineation point as to what employers may request and not request.  At the Canadian Senate in January, the question of the protection personal health information took on a new angle, centering … Continue Reading

Festive Celebrations and the Workplace

Posted in Discrimination, Employee Obligations

With the holiday season in full swing, employers are in the midst of the annual balancing act between festive celebration and appropriate workplace conduct. As the saying goes, an ounce of prevention is worth a pound of cure.  Here are some tips for planning and hosting a successful and (hopefully) incident free workplace holiday party.

1.  Alcohol Consumption

Many holiday parties involve the provision of alcohol to employees.  In an effort to prevent over-consumption, consider (i) setting a fixed period of time where alcoholic beverages will be served; (ii) providing a controlled number of drink tickets per guest; (iii) hiring … Continue Reading

Human Rights Tribunal Sanctions Employee for Withdrawing Human Rights Complaint at Last Second

Posted in Human Rights

Human rights applications can be frustrating for employers.  As even frivolous cases must usually go to a hearing in order to be dismissed, employers are forced to incur substantial costs.  Employees, on the other hand, are often able to obtain free legal advice along the way.  Plus, the Human Rights Tribunal (“Tribunal”) does not award costs.  Accordingly, unlike the Courts, the system is designed so that there are few consequences for an employee advancing a claim and then, perhaps because the claim had no merit all along, withdrawing the claim.  Fortunately, a recent decision from the Tribunal found that an … Continue Reading

McCarthy Tétrault launches Alberta Employer Advisor blog

Posted in Employment Standards, Human Rights, Labour Relations

McCarthy Tétrault launched its 13th blog today, Alberta Employer Advisor, to help clients manage the challenges they face in today’s workplace. The blog provides employers and HR professionals with analysis of the latest legal issues that affect employment-related practices, labour and human resources policies. In addition to providing clients with insights on the implications of new case law, as well as updates on the latest legislative and regulatory developments, the blog will be regularly updated with practical tips, specifically relevant in the Alberta marketplace. We encourage you to visit the blog and subscribe for regular updates.

 … Continue Reading

Mental Illness in the Workplace – Lessons from Germanwings

Posted in Human Rights, Occupational Health and Safety, Policies

My colleagues Tim Lawson and Justine Lindner recently drafted an important article titled, “Lessons from Germanwings: Identifying and Managing Mental Illness in the Workplace.”  For those not familiar, a flight by Germanwings from Barcelona to Dusseldorf crashed in the French Alps.  Evidence was released showing that the co-pilot intentionally crashed the plane.  Then, more information came to light that suggested the co-pilot suffered from a mental illness and that he may have not been fit to fly.

As many human resources professionals already understand, identifying and accommodating mental illness is extremely difficult to manage in the workplace.  The … Continue Reading

New Sexual Harassment Laws Coming Soon to the Workplace

Posted in Human Rights, Occupational Health and Safety, Policies

On March 6, 2015, the Ontario Government published its plan aimed at addressing sexual violence and harassment in Ontario.  The document is titled, “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment” (the “Action Plan”).  The Action Plan has a lot to say about a very important subject and I encourage readers to review the entire document.  This post though is limited to the Government’s recommended changes to the Occupational Health and Safety Act (“OHSA”) to deal with workplace sexual harassment.

Employers are already obligated to create a workplace harassment policy and to investigate harassment … Continue Reading

Sorry but I can’t help you with your purchase, I’m being accommodated by my employer

Posted in Accommodation, Disability, Discrimination, Human Rights, Retail

It is part and parcel of a retail employee’s job to interact with customers and assist them in making purchases.  However, if an employee with a disability/injury has trouble in performing this essential duty, how far must the employer go in accommodating that employee?

A recent Human Rights Tribunal decision dealt with an interesting accommodation request by an employee with a wrist injury.  That employee requested that she should be allowed to tell customers (when working alone) that they had to return to the store at a later date so they could be assisted by another employee who did not … Continue Reading

Ontario Divisional Court Upholds a Worst-Case Scenario Decision from the Human Rights Tribunal

Posted in Human Rights, Termination

Last year, we reported on the notable Human Rights Tribunal decision of Fair v. Hamilton-Wentworth District School Board where the Tribunal ordered the reinstatement, along with over $400,000 in back pay and damages, to an employee despite the employee having been away from the workplace for almost a decade.

When this decision came out, it soon became the benchmark, worst-case scenario, for employers who were found to have failed to properly accommodate an employee.  Not only was the reinstatement order rare and the monetary award uncharacteristically high, but the Hamilton-Wentworth School Board was left to sort out the impending awkwardness … Continue Reading

Comply With the AODA or Pay the Piper

Posted in Accommodation, Discipline, Policies

The Accessibility for Ontarians with Disabilities Act, 2005 (the “AODA”) is an Ontario law whose purpose is to develop, implement and enforce accessibility standards in order to achieve accessibility for Ontarians with disabilities by 2021. Since January 1, 2012 Ontario employers with 20 or more employees were required to be compliant with the AODA’s Customer Service Standard.   Compliance includes filing an Accessibility Report.

Likewise, since January 1, 2014, Ontario private sector employers with 50 or more employees have been required to comply with requirements under the AODA’s Integrated Accessibility Standard.  This includes filing another Accessibility Report on or before December … Continue Reading

Employers Should Take Advantage of Human Rights Summary Hearings

Posted in Discrimination, Human Rights

Summary Hearings at the Human Rights Tribunal – A Short History

A few years back, the human rights system in Ontario was overhauled. The Human Rights Commission was to no longer investigate complaints and refer them to the Human Rights Tribunal (if they had some merit).  All cases were to now go directly to the Tribunal for adjudication. Applicants (who are primarily employees) would have “direct access” to the Tribunal.

While the goal was to speed up the process, many employers soon found themselves forced to attend a hearing to defend frivolous complaints. The Tribunal responded by adopting a summary … Continue Reading

Ontario Human Rights Commission Releases New Policy on Mental Health Disabilities and Addictions

Posted in Discrimination, Human Rights

On April 16th, we reported on a new policy published by the Ontario Human Rights Commission (the Commission) entitled Policy on Preventing Discrimination Because of Gender Identity and Gender Expression. Last week, the Commission published a new policy entitled the Policy on preventing discrimination based on mental health disabilities and addictions.

This new policy was created out of recognition that persons with mental health and disabilities “have faced considerable and longstanding discrimination, stigmatization and social exclusion in Canada and across the world”.   For Ontario employers, this is an important policy as the Ontario Human Continue Reading

“Men’s Day” Customer Appreciation Event Discriminatory

Posted in Discrimination, Human Rights, Termination

In McConaghie v. Systemgroup Consulting Inc., 2014 HRTO 295, the Ontario Human Rights Tribunal (HRTO) found that an employer discriminated against a female employee on the basis of sex by sponsoring a customer appreciation event that was for men only. The HRTO also found that the employer retaliated against the employee after she complained about the event to her supervisor.

The case is an important reminder to employers to be cautious with respect to the type of events that they sponsor and the importance of record keeping when performance managing employees.… Continue Reading

Family Status and Childcare Obligations – The Federal Court of Appeal Weighs In

Posted in Discrimination, Employee Obligations, Family Status, Human Rights, Litigation

On May 2, 2014, the Federal Court of Appeal (FCA) rendered its decision in Canada (Attorney General) v. Johnstone (Johnstone), along with its decision of an appeal in a similar case called Canadian National Railway v. Seeley (Seeley). A full e-alert with our discussion of these cases and the implications for employers can be found here.

Both Johnstone and Seeley involved mothers of young children who requested relief from a workplace schedule or assignment which would have left them without adequate childcare. In Johnstone, the employee worked a rotating shift and requested a … Continue Reading

Ontario Human Rights Commission Releases New Policy on Gender Identity and Gender Expression

Posted in Accommodation, Discrimination, Human Rights, Policies

On April 15, the Ontario Human Rights Commission (the Commission) published a new comprehensive policy entitled Policy on preventing discrimination because of Gender Identity and Gender Expression. According to the Commission, the policy

is a complete revision and update of the Ontario Human Rights Commission’s (OHRC’s) original Policy on discrimination and harassment because of gender identity first published in 2000.

Its stated purpose is to discuss and promote understanding and awareness about trans people and their rights under the Ontario Human Rights Code (the Code) and to help employers recognize and meet their legal obligations under the Code not … Continue Reading

Daughter’s Facebook Post Causes Father to Lose $80,000 Settlement From Age Discrimination Lawsuit

Posted in Age, Discrimination, Human Rights

A recent decision from the Florida Third District Court of Appeal provides some valuable guidance for Canadian employers wishing to keep settlement agreements strictly confidential. Patrick Snay (Snay) had settled an age discrimination lawsuit with his former employer Gulliver Preparatory School (the School). The School agreed to pay him $80,000, but the settlement agreement contained the following confidentiality clause:

Confidentiality…[T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement…A breach…will result in

Continue Reading

No Perfect Attendance Bonus to Employee on Workers’ Compensation Leave of Absence

Posted in Benefits, Compensation, Pensions, Discrimination, Human Rights, Policies

Managing absenteeism and dealing with the associated costs are among the most difficult things employers face. Accordingly, many employers try to incentivize employees to improve their attendance by providing bonuses based on meeting attendance thresholds. Seems simple enough. However, what if an employee is off work on a disability leave? That employee is off work through no fault of his/her own yet otherwise had perfect attendance. Should such an employee be able to claim the attendance bonus?

A recent arbitration decision says “no”.… Continue Reading

New Human Rights Decision Provides Guidance on Frustration of Contract

When is an employment agreement frustrated?

Posted in Benefits, Compensation, Pensions, Human Rights, Occupational Health and Safety, Termination

We are often asked by our clients how long one of their employees has to be off work before it can justifiably take the position that an employment relationship has been “frustrated”.  Employers often wonder this because when an employment relationship is frustrated, the employee is not entitled to common law notice or pay in lieu of such notice [1]. So, how long does it take? 1 year? 18 months? 2 years? 5 years?

A recent Human Rights Tribunal decision, Gahagan v. James Campbell Inc., 2014 HRTO 14, appears to provide some guidance on this issue.… Continue Reading

Beauty Pageant Case Provides Example of Welcomed Use of Summary Hearings by the Human Rights Tribunal

Posted in Discrimination, Human Rights

Back in April 2013, we reported on a Human Rights Tribunal (the Tribunal) decision where a summary hearing was granted and an application was dismissed as having no reasonable prospect of success. A newly released decision involving a beauty pageant demonstrates the Tribunal’s increasing and welcomed use of the summary hearing mechanism.… Continue Reading

Cost Orders Under the Ontario Human Rights Code?

Posted in Human Rights

A common complaint we hear from employers who are engaged in proceedings before the Human Rights Tribunal of Ontario (Tribunal) is that regardless of the merits of the complaint, or the end result, the employer is burdened with the legal costs of successfully defending a complaint. Currently, the Tribunal does not have the explicit power under the Human Rights Code to order costs against the unsuccessful party, and the Supreme Court of Canada has stated that a human rights tribunal cannot order costs without an express grant from Parliament.

The introduction of a recent private members bill seeks to address … Continue Reading

An Employer’s Obligations During Flu Season

Posted in Employment Standards, Human Rights, Leaves of Absence, Occupational Health and Safety

The weather is getting colder, the holidays are approaching and flu season is soon to be upon us.  That means sick employees forced to miss work. Besides ensuring that productivity does not suffer, employers also need to be cognizant of their legal obligations towards their employees during flu season.  Here are a few important points to keep in mind:… Continue Reading