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Posts tagged: human rights lawyer Toronto

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.”

Restaurant who refuses to serve customer with a service dog ordered to pay $ 2500 in general damages

By , May 31, 2016 9:59 am

Obligations to Train Employees On Human Rights Issues

We often represent employers and employees who have human rights issues. It is a rather complex area of the law, especially cases involving individuals with disabilities. For more blogs on the rights of disabled employees, click here.

An employer has obligations towards disabled employees under the Ontario Human Rights Code (the “Code”) and the Accessibility for Ontarians with Disabilities Act  (“AODA”) including mandatory training. For more information on an employer’s obligations under AODA, click here.

A recent case illustrates what can happen if an employer doesn’t properly train its employees on human rights issues.

The Facts of the Case

An autistic person, his mother and a service dog were refused service at a restaurant because they wanted the service dog to accompany them. The mother called the police who advised that they could not intervene. The police suggested they call the municipality but they were advised that the municipality could also not intervene and referred them to the Human Rights Legal Support Centre which said they did not have the resources to intervene in the immediate situation, but told them how to file an Application. After calling these places and getting no assistance, they left the restaurant and filed an application under the Code four days later.

The Law

The Human Rights Tribunal of Ontario (the “Tribunal”) found that autism spectrum disorder is a “disability” within the meaning of the Code

The Tribunal concluded the restaurant did not accommodate the son’s disability and in this regard quoted a section of a regulation under AODA, which states: “If a person with a disability is accompanied by a guide dog or other service animal, the provider of goods or services shall ensure that the person is permitted to enter the premises with the animal and to keep the animal with him or her unless the animal is otherwise excluded by law from the premises.”

The responsibility for ensuring that servers are properly trained and aware of the obligations of a service provider rests with the employer and not the employee. Any liability for discrimination done by an employee in the course of the employee’s employment that results in a breach of the Code is that of the employer.

The Decision

The restaurant violated the autistic person’s right to be free from discrimination because of a disability by refusing to permit his service dog to enter the restaurant.

The restaurant was ordered to retain at its cost an expert in human rights to develop a human rights policy.

The restaurant was ordered to pay the son $2,500 as compensation for injury to dignity, feelings, and self-respect. This case can be contrasted to an earlier decision where a person with a service dog was denied access to a mall for about 5 minutes and was awarded $ 1000 in damages because a mall employee did not understand his right to bring the service dog into the mall. For more information on this case, click here.

Lessons to be Learned:

  1. Many employers have a positive obligation to train employees on human rights issues, particularly under AODA. Failure to train employees can result in an employer being ordered to pay for an employee’s unfamiliarity with the law.
  1. Employers who offer services to the public, like restaurants, are particularly susceptible to human rights claims. Many members of the disabled community are aware of their rights and will enforce them. In this case, the mother told the restaurant staff that her son had the right to bring a service dog into the restaurant before she and her son were denied service.
  1. Employers should participate in the application process under the Code. In this case, the restaurant did not send a representative to the hearing. It is possible that because the adjudicator did not hear both sides of the story the damage award was higher than it would have been otherwise.

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.”

Disability Insurance and the Uncooperative Employee

By , April 13, 2016 10:00 am

Do you have an employee who is absent because of a medical issue, but will not provide the necessary paperwork to a third-party disability insurance provider? We often get calls from frustrated employers who are unsure how to proceed when such a situation arises. A 2015 case from the Ontario Superior Court offers employers some direction.

Betts v IBM Canada Ltd., 2015 ONSC 5298

Mr. Betts began working for IBM in 1999. In 2008, he began to suffer from a major recurring depressive and anxiety disorder for which he took medication and received therapy. He had two major depressive episodes, one in 2008/ 2009 and one in 2013/ 2014. In 2008/2009, he went off on short-term disability and completed all the necessary paperwork to do so. In mid-October 2013, Mr. Betts stopped attending work. Despite receiving instructions to complete the necessary forms by November 5, 2013, Mr. Betts failed to do so.

Between December 2013 and June 2014, IBM sent Mr. Betts five letters which outlined his options in the face of his refusal and/or inability to comply with the short-term disability plan requirements. He was advised that he would be considered to have voluntarily resigned if he did not undertake one of the available options. He continued to provide incomplete information.  In the final letter sent on May 15, 2014, IBM advised that he had until June 9, 2014 to submit additional information for his second and final appeal. He once again failed to submit the necessary information. He emailed IBM advising that he would not be returning because “his doctor’s not still applied.” The doctor’s note, as he had been advised, did not comply with the physician requirements of the disability plan.  On June 30, 2015, IBM considered Mr. Bett to have voluntary left his position. Mr. Betts sued for wrongful dismissal, but the Courts agreed with IBM stating “[i]t is difficult to imagine what more the defendant could have done during the plaintiff’s 8 month absence…”

Lessons for Employers

  1. Maintain open and clear communication with the employee. Be sure to advise the employee in writing of his or her obligations and what the consequence will be for failing to comply.
  2. Give the employee multiple warnings and opportunities to adequately comply. Although this can extend the timeframe of an unapproved absence, it helps demonstrate that the employer did everything that it could to assist the employee to comply and a finding of abandonment is more likely.
  3. Keep in mind that as an employer, you still have a duty to accommodate to the point of undue hardship under the Human Rights Code. Just because a third-party insurance provider denies a claim, it does not necessarily mean that there is not a means by which the employee can be accommodate. The case described above did not address any Human Rights Code.

If you have any questions about an employee taking medical leaves of absences and your duties as an employer, please contact us at [email protected] or 647-204-8107 and one of our lawyers would be happy to speak to you.

“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.”

The Duty to Accommodate – How far is too far?

By , February 29, 2016 11:02 am

We get calls from employer clients who are exasperated because a disabled employee has made what the employer considers to be an unreasonable request. However, it is important as an employer that you seriously consider all requests for accommodation because if you don’t you could end up in legal hot water. This blog is about an employee who requested her employer accommodate her by moving her to another building because a co-worker caused her stress.

Duty to Accommodate

An employer has a duty to accommodate a disabled employee unless the employee is incapable of performing the essential job duties or requirements. To prove that the employee is incapable, the employer must show that the needs of the employee cannot be accommodated without undue hardship.

Emond v. Treasury Board (Parole Board of Canada)

Ms. Edmond was a long-service employee who had always performed her duties satisfactorily. In or about Fall 2009, she began to have issues with a colleague Mr. X. Her complaints included that he: was loud, swore, broke wind, made strange noises, walked barefoot around the office and washed his feet with vinegar at his desk. On one occassion, he made a threatening comment after she banged on the wall they shared because he was being noisy. His actions made her nervous. She raised her concerns with managers, but never filed a formal harassment complaint. The employer seemed to believe that this was a personality conflict between co-workers.

In August 2011, after Mr. X filed a harassment complaint against her, the employee commenced sick leave. The employee’s family doctor concluded that she was afraid of Mr. X and suffering from “emotional stress” which impaired her concentration. Eventually, her doctor stated that she could return to work if she was allowed to work at another building away from Mr. X. The Employer offered to move her to another floor, but that was not enough according to the employee and her doctor as she could still run into Mr. X.

The adjudicator concluded that employer failed to accommodate the employee. She ordered that the employer move the employee to another building located in Ottawa and compensate the employee for the difference between what she received while on long-term disability and her salary.

Lessons for Employers:

  1. Don’t be hasty in dismissing an employee’s complaint which appears on the surface as a personality conflict with another colleague or manager.
  2. Just because the requested accommodation is inconvenient doesn’t mean the company doesn’t have to do it. In her decision, the adjudicator specifically mentioned that the employer did not satisfy her that the employee needed to work out of the building to which she was assigned.
  3. Suggest, or require (if permissible), that the employee to obtain a second opinion from a third party medical professional if his/her accommodation request seems unreasonable
    In her decision, the adjudicator relied heavily on the employee’s family doctor’s recommendation that she needed to work out of a different building. The employee’s diagnosis and this recommendation was not contradicted by any second opinion, which was noted by the adjudicator.

If you have any questions about your obligations to accommodate employees with disabilities, one of our lawyers would be happy to speak with you. Please call 647-204-8107 or email [email protected]

The Cost Of Terminating an Employee Who Has Recently Returned to Work Following a Pregnancy Leave

By , January 27, 2015 10:09 am

Pregnant employees have special rights under the Employment Standards Act and the Human Rights Code. And most judges are sympathetic to the problems that women face when they return to work following a pregnancy leave.

A recent case is a good example of what not to do when an employee returns to work following a pregnancy leave.

 

The Facts

Lee Partridge worked in a dental practice as an office manager working 9 to 5 four days a week. Originally she had been hired as a dental hygienist. Shortly before returning to work following a pregnancy leave the dentist told her that he would be scheduling her as a dental hygienist with fewer and different hours of work. After reminding the dentist of her legal obligations to reinstate her to the office manager position the dentist informed Ms. Partridge that she planned to schedule her to work after 5 pm as a hygienist which he knew would create child care problems for the returning employee. About a week after returning to work the dentist terminated Ms. Partridge’s employment after she refused to meet with the dentist unless a witness was present.

 

The Legal issues

1. Wrongful Dismissal

The dentist claimed she had just cause to terminate Ms. Partridge’s employment. The trial judge disagreed and concluded the employee was entitled to receive reasonable notice of termination. At the time of her termination, Ms. Partridge was 39 years old and had been employed for almost 7 years.  The trial judge awarded Ms. Partridge 12 months pay in lieu of reasonable notice. This is a longer notice period than one would expect in these circumstances. It is also surprising that a dental hygienist was unable to secure alternative employment for more than one year. In most labour markets, dental hygienists are in high demand however the judge concluded the employee’s job search was adequate.

2. Violation of the Employment Standards Act

The judge concluded there was a violation of Section 53 of the Employment Standards Act however the judge did not award any damages for this misconduct. Instead of filing a court action, Ms. Partridge could have filed a complaint under the ESA without the assistance of a lawyer and sought reinstatement, lost wages and damages for mental anguish but she elected to commence an action in the court instead.

3. Violation of the Human Rights Code

The judge concluded the dentist discriminated on the basis of family status because she scheduled Ms. Partridge to work until 6 pm on some days and awarded Ms. Partridge $ 20 000 in general damages for a violation of the Human Rights Code. This finding is a little surprising because Ms. Partridge’s kids did not have special needs, her husband was self-employed and he, extended family and neighbours could care for the children between 5 pm and 6 pm. In addition she could use paid childcare available during this time. The facts of this case were much different than the recent Federal Court of Appeal case the judge relied upon.

 

Lessons to Be Learned:

1. At the end of a pregnancy leave, an employee has the right to return to the position most recently held by the employee if it still exists or to a comparable position, if it does not. If the position still exists then an employer should generally obtain the employee’s agreement before assigning her to a different position.

2. Terminating an employee shortly after returning from a pregnancy is generally a very bad idea. The employee can commence no cost legal proceedings under the Employment Standards Act and the Ontario Human Rights Code. In addition, trial judges are generally sympathetic to new mothers and will often exercise their discretion to help these employees. When determining “reasonable” notice a trial judge has broad discretion. In this case, I suspect most employment lawyers would have advised Ms. Partridge that she was entitled to up to 7 months notice of termination particularly given her age and the availability of comparable employment given her education and experience. This trial judge awarded 12 months.

3. This is the second time – to my knowledge – that a judge has awarded general damages for a violation of the Human Rights Code in a wrongful dismissal case. The judge concluded the employer discriminated on the basis of family status. In both cases the amount was $ 20 000. In neither case did the judge give detailed reasons explaining how the judge arrived at this amount. In both cases, the court did not refer to or apply the case law that the Ontario Human Rights Tribunal has developed over the years when deciding on an appropriate damage award. I do not think most adjudicators would have found that there was a violation of the Code on the basis of family status.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers and employees 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.”

 

 

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