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Posts tagged: Nicole Simes

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.

 

All We Do Is Work

By , October 31, 2017 9:23 am

This blog introduces you to all members of the firm and describes the kinds of cases we handle.

 

MacLeod Law Firm

 

OUR PEOPLE

Nicole Simes has been working with me for more than four years. She represents and advises employers and employees. She spends a lot of her time in court and at administrative tribunals: she is a real litigator! Nicole has a particularly strong background and interest in human rights issues.

Nadia Halum articled with the firm and has been working as an associate for about 1 ½ years. Nadia also represents and advises employers and employees. Nadia is an exceptional legal researcher. She also has considerable experience assisting employers with compliance issues under the Employment Standards Act, the Occupational Health and Safety Act and the Accessibility for Ontarians with Disabilities Act.

Fiona Martyn is currently articling with the firm. She supports Nicole, Nadia and me. This includes legal research, drafting pleadings & facta, and putting together court documents.

Judy Lam is our Office Manager and oversees the non-legal aspects of the firm. She is often the first point of contact with the firm.

OUR CLIENTS

Employers

We mostly advise and represent small and medium sized employers. Many of our clients are owner operators. Most of our clients employ 100 or less employees although we do advise several large employers. Many of our employers do not have a person with a formal human resources designation (i.e. CHRP, CHRL, or CHRE) and for these clients, in addition to providing legal advice we often take on the role of trusted advisor.

When we are first introduced to a new client we make sure the employer has a well drafted employment contract. Then we make sure the client has complied with its obligations under Ontario’s employment laws.  Our blog keeps our clients up to date on most employment law developments. We are a phone call away and often answer questions in real time; that is, when you call with a question we can often answer it immediately on the phone.

Employees

We advise employees in all positions and all industries.

We review 100s of severance packages each year; this usually involves a one-hour meeting where we: review the background to the termination; discuss the client’s legal rights; discuss the client’s options; and, tell the client whether we think the package is fair.

If we cannot negotiate a fair settlement for our client then we commence legal proceedings. These proceedings may be commenced in small claims court, at the Ministry of Labour, at the Ontario Human Rights Tribunal, or in the courts. It is sometimes in our client’s interest to commence two or more legal proceedings.

We also review scores of employment contracts each year. After reviewing the history of contract negotiations, we inform our clients which parts of the contract are a problem and suggest ways to change the contract so it is more employee friendly. If our client is the employer’s clear first choice then we can often help the person secure significant enhancements to the employer’s initial offer.

ALL WE DO IS WORK

The MacLeod Law Firm will continue to restrict its practice to workplace law which includes employment law, labour law (i.e. workplaces that are unionized), and human rights law.

We have three lawyers to assist you with your legal needs. We operate a collaborative law practice which means we often consult with each other to get different perspectives on a case. I also delegate work to Nicole, Nadia and Fiona as appropriate which means our client receive cost effective service.

We understand that every client has a different risk tolerance. We get to know our clients so the advice we provide is consistent with this risk tolerance and makes business sense.

For those readers who have not retained the MacLeod Law Firm in the past and want to know how we can help your organization, please call me at 416 317-9894 at your convenience.

 

Why Asking Your Employee to “Go Clubbing” Could Cost You

By , September 19, 2017 11:36 am

Most employers understand that sexual harassment at work is against the law. Despite this, sexual harassment is still pervasive in Ontario workplaces. Where managers and employers can get into trouble is the area of sexual solicitation.

The Human Rights Code states that employees have the right to be free from advances in the workplace from those able to offer or deny a benefit –  i.e. sexual propositions from a boss with the offer of a promotion are not permissible.  This is true where the person making the proposition knows or should know that it is not welcome.

Examples of this type of behaviour – and the real consequences of it – are evident in Anderson v. Law Help ltd.

The Case

Safari Anderson started working for Law Help Ltd. as a paralegal.  After some time, her boss starting asking her about her plans outside of work.  He started with inquiring about what she was doing on Saturday night.  He later asked her if she wanted to “go clubbing” with him.  He asked whether she would like to “hang out” on the weekend or “go away together” for the weekend. He told her he was thinking about her and that liked her. He told Ms. Anderson he would take care of her, implying that if she spent time with him, she would advance at work.

Mr. Giuseppe then punished Ms. Anderson for not going out with him outside of work.  He stopped paying her. He treated her in a hostile manner. He yelled at her and refused to let her attend a medical appointment. Ms. Anderson ultimately had to resign.

The Human Rights Tribunal of Ontario reviewed all of the evidence and found that Mr. Giuseppe’s advances breached the Code. It reiterated that persistent propositions can create a negative psychological and emotional work environment. While the language used by her boss, Giuseppe Alessandro, was not overtly sexualized, it was not allowed under the Code.

The Tribunal ordered Law Help Ltd. and Mr. Giuseppe to pay Ms. Anderson $22,000 for the injury to her dignity along with lost wages she incurred after quitting.

Lessons

As an employer or manager, asking out a colleague or employee can be expensive, and not because of the cost of the date.  Even where there are not sexual or gender-based comments, repeated advances of this nature are not allowed in Ontario’s workplaces.  They can affect people’s dignity and sense of value in their jobs. Manager and employers must be extremely careful when engaging co-workers or subordinates in any form of romantic or sexual relationship.

For more information about sexual harassment in the workplace, please see here and here.

If you have concerns about your employee’s behaviour and would like to speak to a lawyer at MacLeod Law Firm, you can reach us at [email protected]  or 647-204-8107.

“The material and information in this blog and this website are for general information only. They should not 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 referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

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