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Posts tagged: Discrimination

Amendments to Increase Human Rights Protections for Ontarians

By , December 4, 2018 10:05 am

Various members of the Ontario legislature are working to give additional human rights protections to Ontarians.

Bill 35, the Human Rights Code Amendment Act, 2018 is a private member’s bill brought by Liberal MPP, Nathalie Des Rosiers.  Whereas Progressive Conservative MPP, Christina Mita introduced Bill 40, the Human Rights Code Amendment Act (Genetic Characteristics), 2018, which has passed Second Reading and been referred to the Standing Committee on the Legislative Assembly.

Given the current makeup of the government, it seems much more likely that Bill 40, rather than Bill 35, will pass and become law.  

Bill 40

Bill 40 proposes to add genetic characteristics as a prohibited ground of discrimination under the Ontario Human Rights Code. “Genetic characteristics” would mean “genetic traits of an individual, including traits that may cause or increase the risk to develop a disorder or disease.” It will also include protections for those who refuse to undergo a genetic test or refuse to disclose, or authorize the disclosure of, the results of a genetic test.

If passed into law, Ontario will join the Federal government in its protection against genetic discrimination. Of note, however, Bill 40 has an exemption for insurance companies allowing them to make distinctions, exclusions, or preferences with reasonable grounds on the basis of genetic characteristics. Practically, the majority of discrimination on the basis of genetic characteristics currently occurs in the provision of insurance, so this bill may have little actual impact.

Bill 35

Bill 35 resurrects a previous private member’s bill, Bill 164, which attempted to significantly alter the Code.

Bill 35 proposes to add immigration status, genetic characteristics, police records, and social condition as human rights grounds.

While each of these grounds warrants a close examination, adding “social condition” would likely cause the most drastic change to the human rights landscape.  Social condition would be defined as social or economic disadvantage arising from employment status; source or level of income; housing status, including homelessness; level of education, or any other circumstance similar to those.

There has been much debate over adding social condition to the Code in the past.  The ground is meant to provide stronger  protection to the most vulnerable individuals in society. As recognized by the Ontario Human Rights Commission, the argument for its addition is that poverty frequently intersects with other protected grounds and without an explicit protection on the basis of poverty, the most marginalized members of our communities cannot truly benefit from human rights protection.  

Those against its addition often point to the illusive meaning of ‘social condition.’ They further worry about the strain on the system its addition would have by increasing the overall volume of cases. The Human Rights Tribunal of Ontario already has a sizeable backlog of cases with lengthy delays between the date of filing an application to the date of a mediation or hearing.

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

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

Of note, for genetic characteristics, Bill 40 does not include the same exemptions for insurance companies as Bill 35. This means that insurers would not be permitted to make decisions about policy and coverage on the basis of genetic characteristics. Bill 40 would provide much more significant protection to Ontarians on the basis of genetic characteristics.

If all of the changes in Bill 35 became law, employers, service providers, and landlords would need to carefully examine their policies and practices to ensure they are compliant with the new law.  

If you have any questions about  your human rights or these amendments, you can contact MacLeod Law Firm at 647-204-8107 or at [email protected]

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.

Can an Employer Refuse to Hire You Because You Are Not a Permanent Resident or Citizenship of Canada?

By , September 25, 2018 1:04 pm

Have you ever been denied a job interview or a position based on your citizenship status? Some employers have attempted to develop pre-employment requirements and policies to deal with the tension between devoting time and resources to new employees and hiring someone who may be temporary.

A recent decision from the Human Rights Tribunal of Ontario makes it clear that you cannot be discriminated against when applying for a job position based on your citizenship status. This is provided that you are eligible to work in Canada and that the position you are applying for does not require citizenship as a legal requirement.

Citizenship Status: Permanent, Temporary or Citizen?

In this precedent-setting decision, the Tribunal ruled in favour of an employee alleging discrimination in employment because of the pre-employment requirement that job applicants be able to work in Canada on a “permanent basis”, meaning either being citizen or a permanent resident of Canada.

Permanent residency is provided to individuals who are immigrating to Canada but are not Canadian citizens. Those with permanent residence status in Canada are citizens of other countries. Permanent resident status must be maintained or it can be lost.

A person who is in Canada temporarily is not a permanent resident. This includes foreign workers and international students, as was the situation in the decision below.

After meeting certain residency requirements, permanent residents can apply to become Canadian citizens.

Haseeb v. Imperial Oil Limited, 2018 HRTO 957

Facts

Mr. Haseeb was an international student who graduated with an engineering degree from McGill University. He applied to work for Imperial Oil Ltd during his final semester, while he was on a student visa. Upon graduation, he would become eligible for a postgraduate work permit for a fixed term of 3 years. This permit would allow Mr. Haseeb to work with any employer anywhere in Canada.

When Mr. Haseeb applied to Imperial Oil, he was aware of their policy which required graduate engineers to have either permanent residency or citizenship to be eligible for a permanent and full-time position as a Project Engineer. Mr. Haseeb repeatedly misinformed Imperial Oil throughout the recruitment process that he was eligible to work on a permanent basis in Canada.

He expected to attain permanent residency status within 3 years, after which he could settle and work in Canada indefinitely. However, at the time of recruitment, he lied and stated he met Imperial Oil’s “permanency requirement” when he knew that he did not.

Mr. Haseeb received a conditional offer of employment, with one condition being that he provide proof of his eligibility to work in Canada on a permanent basis. Imperial Oil required proof in the form of a Canadian birth certificate, Canadian citizenship certificate, or a Canadian certificate of permanent residence. Since Mr. Haseeb could not provide such proof, the job offer was revoked.

Decision

Imperial Oil unsuccessfully argued that it was Mr. Haseeb’s misrepresentations during recruitment that led to the job offer being revoked. The Tribunal found that Mr. Haseeb’s dishonesty was not relevant in assessing whether the Code was breached. The Tribunal stated that “…“but for” IO’s permanence requirement, the applicant would have no need for a ruse to circumvent the requirement.”

The adjudicator concluded that Imperial Oil’s policy of asking job applicants about their citizenship and immigration status was discriminatory based on the ground of citizenship. The eligibility of job applicants was based on their response to the question about their eligibility to work in Canada on a permanent basis, a requirement that was not necessary and linked to the essential duties of the position. For instance, Imperial Oil had occasionally hired experienced engineers in the past who did not meet their permanency requirement policy but did possess a skill set in high demand.

Further, Imperial Oil was unable to convince the adjudicator that their policy was an employment strategy that directed at grooming the best recruits.

Importance

This decision is significant because it clarifies that employers cannot exclude a job applicant based on his or her citizenship status. An employer can ask about your legal ability to work in Canada but the inquiry should stop there. This important clarification can have a positive impact if you have temporary status in Canada because gaining work experience after graduation is an important step on the path to obtaining permanent residency. However, it remains to be seen whether Imperial Oil will appeal this decision.

If you would like more information on discrimination based on your citizenship status and/or your rights in the workplace, you can contact an employment 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.

An End to Legislated Age Discrimination?

By , August 16, 2018 12:56 pm

An End to Legislated Age Discrimination?

Employees in Ontario are retiring later than ever.  Life expectancies have consistently risen and people now work into their sixties and seventies in order to support themselves as they live into their eighties and nineties.  Gone are the days of “Freedom 55.”

Older employees are not, however, often receiving the same benefit coverage as their younger counterparts. Age discrimination is legislated in Ontario. The Human Rights Code in conjunction with the Employment Standards Act provides that employers are legally allowed to cut-off and/or modify benefits such as health and dental plans, life and disability insurance, and pension plans of employees over the age of 65.  Without private coverage, Canadians over the age of 65 can expect to spend $5,391 out-of-pocket a year on medical costs, which are on the rise, according to the 2014 BMO Wealth Institute Report.

A recent landmark ruling, however, successfully challenged this aspect of the Code. In Talos v Grand Erie District School Board, the Human Rights Tribunal ruled that this section of the Code discriminates against able, qualified, and willing older workers. It also ruled that this section in the legislation was based on faulty information. It is financially viable for most employers to continue employee benefits until the age of 79.

Lessons

While the ruling does not change the legislation, it is a complete game-changer for the many older working employees who rely on their employers for benefits.  Older workers now have an opening to claim discrimination if their employers cut off benefits at age 65.

Employees should review all benefits plans and talk to their employer to discuss continuing benefits past the age of 65. If an employer refuses, the employee can bring a human rights claim.

If you have experienced age discrimination or have questions about your human rights and would like more information, you can contact an employment 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.”

Broader Protections from Harassment While Working

By , February 9, 2018 12:31 pm

Recently, the Supreme Court recognized the changing nature of employment relationships and that harassment and discrimination can occur at work whether coming from a boss, co-worker, or fellow contractor.

The Case

In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62

Mohammadreza Sheikhzadeh-Mashgoul worked as a civil engineer consultant.  He worked on a job site where he supervised workers who were not employed by his engineering firm.  One of these workers, Edward Schrenk, repeatedly made discriminatory comments to Mr. Sheikhzadeh-Mashgoul about his religion, sexual orientation, and birthplace. Eventually, he brought a human rights complaint against Schrenk and Schrenk’s employer.

The case went all the way to the Supreme Court.  Schrenk and his employer argued that they had no relationship to Mr. Sheikhzadeh-Mashgoul and that since they were not his employer he could not bring a claim against them.

The Supreme Court disagreed. It held that the BC Human Rights Code prohibits discrimination in the employment context. The Court said that the Code “protects individuals from discriminatory conduct regarding their employment no matter the identity of the perpetrator.”  The Court continued that an individual may bring a human rights complaint if the

  1. perpetrator was integral to the complainant’s workplace;
  2. the discrimination occurred in the complainant’s workplace; and
  3. the individual’s work performance or work environment was negatively affected.

Lessons

Of importance, the Ontario Human Rights Code is worded in a similar manner to that of BC. So, if you are working as an employee or contractor in Ontario and you experience harassment or discrimination, you may be able to bring a claim against the perpetrator regardless of whether they are your manager or colleague.

If you have experienced discrimination or harassment and are considering your legal options, you should consult a lawyer or contact us at [email protected] or 647-204-8107 and one of our lawyers would be happy to assist you.

“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.”

#MeToo: Converting an online campaign into action

By , October 27, 2017 3:29 pm

Trigger Warning: This blog contains content about sexual harassment and abuse

Following the bombshell reports of allegations of sexual misconduct against Hollywood mogul Harvey Weinstein, thousands of women have taken to social media to participate in the #MeToo campaign to share stories of harassment and abuse they have faced in their own lives. Having worked in the restaurant industry, I’m no stranger to sexual harassment in the workplace. While it has been disheartening and dejecting to see the vast number of women joining the campaign, witnessing so many brave women banding together in an effort to foster positive change has been somewhat inspiring. In the hopes of helping those who find themselves affected by these types of heinous acts, the campaign has inspired me to write about the different legal avenues available to people who wish to take action against sexual harassment in the workplace.

The Human Rights Regime

Employment is a protected social area under the Ontario Human Rights Code, which means people should not be subjected to sexual harassment or discrimination by employers, by other employees or by members of the public when they are in the workplace. People that have been subjected to this harassment can file an application at the Human Rights Tribunal of Ontario. The forms are available online (click here) and there is no fee for filing an application. The time limit for filing is one year from the date of the last incident.

The Occupational Health and Safety Act (“the OHSA”)

Ontario employees are protected against harassment, whether sexual or otherwise, in the workplace. The OHSA requires employers to prepare policies to address workplace harassment (which is defined to include workplace sexual harassment) and violence and to create programs to implement those policies. If the employer becomes aware of an incident of workplace harassment or violence, the employer must investigate the incident. Similarly to a human rights application, the forms are available online (click here) and there is no fee for filing a complaint. When deciding whether to file a human rights application or a complaint to the Ministry of Labour (the ministry that oversees OHSA), it is important to note that there are no damages available under the OHSA for a violation. Rather, damages are only available for reprisal – i.e., an employee will only be awarded damages if they are punished as a result of their harassment complaint.

The Civil Route

Employees may be able to sue for such torts as assault, battery and intentional infliction of mental stress. Depending on the circumstances, a court may award aggravated and/or punitive damages. Survivors of sexual assault may be able to receive compensation through the Criminal Injuries Compensation Board.

Takeaway Points

If there’s anything we can take away from the magnitude of this online campaign it’s that sexual harassment and abuse is a pervasive problem that affects many women (and some men) of different walks of life. You are not alone. It is an unfortunate reality that, even on the heels of the #MeToo campaign – in essence, a peaceful and incredibly important protest that spans the globe, spurred on by the power of social media – we have a long way to go before we live in an era in which these issues disappear entirely. Regardless, for now, it’s important to understand that there are avenues available, however imperfect they may be at this moment in time. And hopefully, after reading this blog, you’re more aware of your legal options should you wish to take action.

“The material and information in this post are for general information only. They should not be relied on as legal advice or opinion. The author makes no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this post or its links. No person should act or refrain from acting in reliance on any information found in this post. 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 the author or the MacLeod Law Firm.”

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