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Posts tagged: employment lawyer Toronto

Significant Changes Coming to the Human Rights Code

By , November 17, 2017 1:09 pm

Bill 164, Human Rights Code Amendment Act, 2017 passed second reading by the Ontario government on October 26, 2017 and has been referred to Standing Committee.

The Bill proposes to make significant changes to the Ontario Human Rights Code (Code). It proposes to add immigration status, genetic characteristics, police records, and social conditions as human rights grounds. The Bill is supposed to provide better protections to the most vulnerable in society.

Social conditions will be defined as social or economic disadvantage arising from (a) employment status; (b) source or level of income; (c) housing status, including homelessness; (d) level of education, or “any other circumstance similar to those mentioned in clauses (a), (b), (c) and (d).  

While a significant change, Ontario will not be alone in recognizing social condition as a protected human rights ground. Human rights in Alberta, Manitoba, New Brunswick, Quebec, Newfoundland and Labrador, and Northwest Territories all recognize social condition, social origin, or source of income.

Ontario will also be joining other provinces like British Columbia in having a more fulsome protection against discrimination on the basis of “police records.” The Bill proposes to include charges and convictions and police records such as those that involve a person’s contact with police. This would replace the current human rights ground of “record of offences,” which is defined as an offence for which someone has been pardoned.

Genetic characteristics will be defined as refusing to undergo a genetic test or refusing to disclose, or authorize the disclosure of, the results of a genetic test. Ontario will join the Federal government in this regard.  Of note, there is no proposed change to section 22 of the Code, which would mean the current exemption given to insurance companies to discriminate on the basis of age, sex and marital status would not apply to genetic characteristics. Previous bills attempting to include genetic characteristics in the Code allowed insurers to discriminate on this basis if the policy payout was over a certain amount.

If all of these changes become law, employers, service providers, and landlords will need to carefully examine their policies and practices to ensure they are compliant with the new law.  

It is possible that the Bill’s current form could change before becoming law.  Many bills are altered at the Committee stage – often significantly.

We will update this blog as soon as further legislative steps are taken.

In the meantime, if you have concerns that your human rights policies need updating, a lawyer at MacLeod Law Firm can assist you. You can reach us at [email protected] or 647-204-8107.

#Metoo #Himtoo #Youtoo – Sexual Harassment and Violence at Work

By , October 31, 2017 5:15 pm

In the wake of sexual harassment allegations against movie mogul Harvey Weinstein, the viral social media campaign #metoo has emerged as a way for millions of people to denounce sexual assault and harassment. Although it is an important campaign, I have been late to add my voice to the #metoo discussion because of the disproportionate focus on the stories women have shared. Many seem to suggest that there is an obligation on women to share their experiences in order to make change. But recounting these events over and over again can re-traumatize someone who has been through harassment and assault. What’s more, the majority of women are not surprised by the #metoo stories – as upsetting as they are. Women have been sharing experiences and naming men for years privately, and even publicly. But, what needs to happen for there to be a positive culture shift?

Here are my suggestions for how to reduce sexual harassment and violence in the workplace – a place where much sexual harassment still occurs:

  1. Employers can create a culture of no tolerance for harassment and violence. But this ethos must start at the top. Employers should have policies against harassment, including sexual harassment and violence in the workplace. This is a very basic first step to setting the culture. It is also required under the Occupational Health and Safety Act (“OHSA”) for employers with more than five employees.
  1. Promptly respond to every sexual harassment complaint. Do not let anyone brush it off, excuse the behaviour, or consider it a “harmless joke”. Adequately investigating such a complaint is required under OHSA and the Human Rights Code (“Code”). Treat the complaint as truthful and made in good faith. Take complaints seriously – whether the complaint is about crude jokes or sexual assault. “Locker room talk” is not permissible in Ontario workplaces. These factors will be considered by judges and tribunal members whether assessing whether a complaint was investigated properly. It also creates a workplace climate where employees feel they can share their stories.
  1. Investigate all incidents as well as complaints. Do not wait for an employee to come forward to investigate sexual harassment. It is mandatory under OHSA to investigate any incident that comes to the employer’s attention. Remember: A formal complaint is not needed. Learning of incidents of sexual harassment or violence but not investigating them is a violation of OHSA. Allowing the behaviour to continue unchecked also creates a culture of tolerance for this behaviour. Waiting for a woman to share her story before intervening puts the pressure on the woman to create change.
  1. Men need to call out other men when they are engaging in belittling, harassing, or abusive acts against women. An employer can be liable for a poisoned work environment if there is a culture of sexualized joking even if it is not targeted at a particular individual.
  1. Do not punish someone for coming forward. Even if you investigate and cannot substantiate the allegations, this does not mean it did not occur. Punishing someone for making a harassment complaint is generally considered a reprisal and can result in reinstatement and back pay under both the Code and OHSA.
  1. Show respect to women. This includes equal pay for equal work, and fair merit- based promotions. In some contexts, this is required by law through the Code, the Employment Standards Act, and the Pay Equity Act. It also creates a workplace that values women and will diminish sex-based discrimination or harassment.
  1. Stop language that diminishes women such as names like “honey”, “babe”, “dear”, or “girl”. This is subtle sex-based discrimination and elevates lowers their status.
  1. As individuals, rethink flirting, compliments, or seeking romantic relationships at work. Legally, before acting, you need to be certain that advances, comments and conduct is consented to and wanted by a co-worker; otherwise, it can be sexual harassment. Definitely, do not make sexual advances to a subordinate. If you have power over a person’s job, pay, duties etc. it is difficult to decipher whether consent is truly given. Repeated advances made to a peer (as opposed to a subordinate), even where there are not sexual or gender-based, can affect a person’s dignity and sense of value as an employee. As an individual, you could be found personally liable under the Code for sex- based discrimination, sexual harassment, or sexual solicitation. As an employer, you can be vicariously liable for your employee’s conduct if you knew about it and did nothing.

If you would like to discuss these suggestions, please contact me at [email protected] or 647-633-9894.

 

Investigating Workplace Harassment Complaints: Get Ready for Changes to the OHSA

By , July 26, 2016 7:20 am

“Bob is harassing me.”

Your spidey senses should be tingling. Because some kind of investigation should be taking place soon. If not, consider what happened when an employee at CBC complained about Jian Ghomeshi and was ignored or when an employee at the TO2015 Pan American games complained about David Peterson and her complaint was allegedly not taken seriously.

Immediately after you are told about Bob the alleged harasser you should determine whether the person is alleging workplace harassment.

Under the Ontario Human Rights Code (the “Code”) harassment on any of the 16 prohibited grounds (like sex and race) is defined as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

Effective September 8, 2016, workplace harassment under the Occupational Health and Safety Act (the “OHSA”) will be defined as (a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or (b) workplace sexual harassment.

An employee who has been harassed within the meaning of the Code can obtain damages from her employer from the Ontario Human Rights Tribunal or from the Ontario Courts. An employee who complains he has been harassed under the OHSA cannot claim damages.

Sexual Harassment: A Special Kind of Harassment

For reasons that I do not understand, the Ontario government has decreed that effective September 8, 2016 an employee who has been sexually harassed at work can file a complaint under the Code or under OHSA. Accordingly, an employee who has been sexually harassed will thereafter be able to commence legal proceedings in at least 3 legal fora; namely;

1. An application under the Code

The Code prohibits sexual harassment in employment and a person can file an application under the Code seeking damages. In a 2015 decision an adjudicator under the Code awarded a former employee who had been sexually harassed $ 150 000 in general damages.

2. A complaint under the OHSA

An employee can file a complaint and the employer must investigate the complaint and inform the person of the results of the investigation. The only obligation is to investigate and report back to the person.

3. An action in Ontario’s Superior Court

An employee can sue for damages for a breach of the Code and/or for damages for the tort of sexual assault. In a 2015 decision a judge awarded a former employee over $ 300 000 damages in connection with sexual harassment/assault in the workplace.

Lessons to Be learned

1. Make sure you have a written policy to investigate workplace harassment complaints in place by September 8, 2016. For information about our fixed fee service, click here.

2. Sexual harassment complaints can be more legally complicated than other kinds of harassment complaints.

3. Investigate all workplace harassment complaints quickly and tailor the investigation to the circumstances of the case. This includes: deciding whether to use an internal or external investigator; whether to permit employees to bring legal representation to meetings; whether the investigator can make recommendations; whether to write a report; whether to release a formal report (if one is prepared) to the parties, etc. Not all investigations need to be treated the same.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Ontario Court of Appeal Upholds Decision to Reinstate Disabled Employee with 10 Years Back Pay: Will Human Rights Litigation Ever Be the Same Again?

By , June 15, 2016 10:01 am

I predict a recent Ontario Court of Appeal (the “OCA”) decision will have a significant impact on human rights litigation. In particular, I suspect disabled employees will start asking employers to find or create alternative positions for them if they cannot perform their job duties because of a disability, and terminated employees will start asking adjudicators to reinstate them with full back pay.

Is an Employer Required to Find or Create an Alternative Position for a Disabled Employee?

In Hamilton-Wentworth District School Board and Sharon Fair the OCA stated that an adjudicator’s decision to reinstate an employee and order the employer to pay 10 years back pay was in keeping with an earlier Supreme Court of Canada decision. In the earlier case, the court articulated an employer’s duty, short of undue hardship, to arrange the employee’s workplace or duties to enable the employee to work, as follows:

Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties – or even authorize staff transfers – to ensure that the employee can do his or her work, it must do so to accommodate the employee. [Emphasis added.]

In the Hamilton-Wentworth case the disabled employee could not perform the duties of her position but she could perform the duties of another position. An adjudicator with the Ontario Human Rights Tribunal (the “Tribunal”) found that there would have been no need for the School Board to create a surplus position, as the financial resources existed for one position, or to displace an incumbent employee, as another position was vacant.

The OCA also stated: “…to fulfil its duty to accommodate an employee’s disability, an employer may be required in an appropriate case to place a disabled employee into a position for which he or she is qualified but not necessarily the most qualified.”

Should a Disabled Employee Be Reinstated with Full Back Pay?

One the one hand, the OCA stated that while rarely used in the human rights context, the remedy of reinstatement fell within the Tribunal’s remedial jurisdiction.

When refusing to overturn the adjudicator’s decision to order reinstatement, the OCA noted that Ms. Fair’s employment relationship with the School Board was not fractured and the passage of time had not materially affected her capabilities.

On the other hand, the OCA indicated that a comparison of an adjudicator’s jurisdiction under the Ontario Human Rights Code to an arbitrator’s jurisdiction in the labour relations context was not unreasonable or unusual and referred to an earlier Tribunal decision where an adjudicator, when examining the issue of reinstatement, noted:

While reinstatement orders are rarely requested or ordered in human rights cases, they are “normally” ordered in arbitral cases where a violation of a grievor’s rights has been found, unless there are “concerns that the employment relationship is no longer viable” A.U.P.E. v. Lethbridge Community College, [2004]….. The goal of human rights legislation, which is remedial in nature, is to put the applicant in the position that he or she would have been in had the discrimination not taken place. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998)… Where viable, reinstatement is sometimes the only remedy that can give effect to this principle.

What are the Implications of this Decision?

Will this case translate into a shift in how adjudicators exercise their remedial jurisdiction where reinstatement is no longer a rare remedy and becomes as common a remedy as in the arbitration world? If so, I think employee lawyers will start commencing more proceedings at the Tribunal as opposed to the courts all other things being equal. With the prospect of reinstatement and/or large back pay awards there will be more pressure on employers to settle at the Tribunal for larger settlements. Only time however will tell.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

How to Get Away with Drug and Alcohol Testing in the Workplace

By , May 5, 2016 9:00 am

The federal government has announced that there will be marijuana legislation in place by next spring, which should fulfill a campaign promise to legalize marijuana. Marijuana would no longer only be legal for medicinal purposes, but also recreationally. Federal Health Minister Jane Philpott has said that “[w]hile this plan challenges the status quo in many countries, we are convinced it is the best way to protect our youth while enhancing public safety.” So what does this mean for employers? Some may be concerned about employees being impaired by marijuana during working hours.

It seems to be a concern that is on the mind of the TTC as the TTC Board has approved a random alcohol and drug testing policy. This policy is opposed by the Union and we expect the Union will grieve this policy under the applicable collective agreement.

As an employer, if you are considering implementing a random alcohol and drug testing, you should know that except in exceptional circumstances such a policy is generally illegal in Canada. In order for a random testing policy to be acceptable, an employer must show:

  • It is a safety sensitive workplace;
  • There is evidence of a pervasive substance abuse problem which can be tied to the safety of the workplace;
  • Other measures to deter substance abuse have failed; and
  • Testing must assess current impairment

Accordingly, an employer has the burden of meeting a very high evidentiary threshold that is extremely difficult to do. The Courts have stated that the unless an employer can show that there is a pervasive drug problem affecting safety that random testing is generally too invasive and harmful to an employee’s privacy rights; the potential harm outweighs the potential good.

However, an employer can generally have a drug and alcohol policy that requires an employee to submit to drug and/or alcohol testing following a significant incident, accident, or near miss, where it is important to identify the root cause of what occurred. In addition, random drug and/or alcohol testing is generally permissible as part of an employee’s rehabilitation plan provided that it is for a specific duration – typically not longer than two years.

 Lessons for Employers

  1. If you have a safety sensitive work environment, you may want to have a drug and alcohol testing policy that allows for testing after a significant incident, accident, or near miss.
  2. Keep in mind that as employer, you have a duty to accommodate employees with substance abuse problems to the point of undue hardship.  If someone tests positive after an incident, accident or near miss, then you need to consider whether there is a substance abuse problem, which would be considered a disability under human rights legislation.
  3. It is unlikely that a random drug and alcohol testing policy will be permissible unless you can show a persistent drug problem in the workplace which can be tied to safety concerns in the workplace.

If you would like to speak to one of our lawyers about a current drug and alcohol policy or implementing such a policy, please contact us at [email protected] or 647-204-8107.

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

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