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Posts tagged: Employment Lawyer Toronto

Increased Federal Protections Against Harassment and Violence

By , October 12, 2018 12:18 pm

The Federal government is consulting the public on changes to the Canada Labour Code (CLC) to increase protections against harassment and violence. Federally regulated employees, like those who work for banks, airlines, telecom or national transportation companies are covered by the  CLC.

The government proposes to set solid guidelines in order to resolve and prevent workplace harassment and violence.  

In particular, the consultation will look at how federal employers deal with family or domestic violence of their employees and how they deal with non-workers in the workplace. The proposed changes further cover supports that will be provided to the parties if harassment and violence occur in the workplace.

The government asked for input about the resolution process and timeframes involved, the content of what should go in an investigation report, and elements of workplace violence and harassment prevention policies and training.

Provincially, the Occupational Health and Safety Act has covered harassment and violence obligations on employers for several years. To learn more about your rights under OHSA, read on here.

If you have questions about your rights at works regarding harassment and violence protections 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.

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.”

Seeing Through the Smoke: Employees’ Rights and the Legalization of Cannabis

By , August 9, 2018 2:09 pm

On October 17, 2018, Bill C-45, (the “Cannabis Act”) is scheduled to take effect. In essence, this bill will make smoking or ingesting cannabis legal in Canada, and will create a legal framework for its sale and possession.

While provinces will each have the power to control how cannabis will be used and sold, individual employers will likely respond to the new bill and to the expected increase in cannabis consumption themselves. This may create problems for you as an employee.  Your employer may have newly relevant policies in place to restrict or regulate the use of alcohol or drugs in the workplace, and they may introduce new rules precisely because of the legalization of cannabis.

It is important that you make yourself aware of both the federal and provincial laws regulating the legalization of cannabis, as well as of any pre-existing or modified policies and procedures regarding drug use in your workplace.

Ontario’s Regulations

The Ontario government will be responsible for regulating the distribution of cannabis. Ontario has passed laws about where, how, and who can consume recreational cannabis. The minimum age to possess or use cannabis in Ontario will be 19. In Ontario, Bill 174 will prohibit the use of cannabis in many locations including:

  • any public places,
  • motorized vehicles, and
  • the workplace.

How Bill 174 Affects Employees

Consuming recreational cannabis in the workplace will remain illegal. This means that generally an employee cannot use cannabis at work, during lunch breaks, or at work events. However, it is not prohibited to bring cannabis into the workplace, absent an employer policy. It will remain the responsibility of employers to enforce these prohibitions.

Employers may react to Bill 174 by attempting to detect and deter cannabis impairment in the workplace. They may do so by implementing a thorough drug and alcohol policy. While these policies should clearly outline your obligations as an employee in the workplace, they may not have your best interests in mind, and may be detrimental to your health and privacy. For this reason, it is always a good idea to have an employment and labour law lawyer review any changes in your employment contract and employee handbook.

Employers may also respond to the new maze of obligations by introducing drug and alcohol testing in the workplace. This, however, could jeopardize your rights to privacy and frequently leads to litigation. Random drug testing has proven to be extremely controversial, especially when there is no evidence of drug problems or abuse in the workplace.

Overly strict drug policies may inhibit your right to accommodation. If you suffer from a disability that requires the use of cannabis, or if you are addicted to cannabis, you are protected under the law. The duty to maintain a safe work environment must be balanced with an employer’s obligation under human rights legislation to accommodate an employee with a disability.

It is important for employees to understand that:

  • employees who use medical marijuana have a right to be accommodated, to the point of undue hardship,
  • an addiction to marijuana can fall under the definition of disability, and
  • an employer’s drug and alcohol policy should distinguish between recreational and medical marijuana.

The intersecting issues surrounding cannabis at the workplace including health and safety considerations, the duty to accommodate, and ambiguously motivated drug testing can result in the need for professional advice. MacLeod Law Firm specializes in helping and defending employees against unjust or discriminatory policies, and can help you navigate the intricacies of the legalization of cannabis.

If you have questions about your rights at works regarding cannabis 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.

When Being Suspended Without Pay is Constructive Dismissal

By , July 25, 2018 12:24 pm

Sometimes your employer is allowed to suspend you without pay. Other times, this is a breach of your employment contract and can amount to a constructive dismissal. How can an employee know when a suspension without pay is justified?

The Ontario Court of Appeal looked at the appropriateness of an employer suspending an employee without pay in Filic v Complex Services Inc., 2018 ONCA 625

Facts

Mr. Filic worked as a Security Shift Supervisor for the appellant employer, who operated two Casinos (“the Casino”). All employees working in the Casino’s Security Department have to maintain a valid gaming registration issued by The Alcohol and Gaming Commission of Ontario (“AGCO”).

In December 2017, the AGCO informed the Casino’s Director of Security, Mr. Paris, that an audit of the Casino’s lost and found records raised some red flags. Police officers told Mr. Paris that Mr. Filic was under an ongoing investigation for theft in the workplace. In response, Mr. Paris immediately placed Mr. Filic on an investigative suspension without pay, citing Casino policies.

In January 2008, five charges were laid against Mr. Filic and the AGCO suspended his gaming registration. Accordingly, Mr. Filic could not perform his duties as a Security Shift Supervisor at the Casino. Unpredictably, all five of Mr. Filic’s charges were either withdrawn or dismissed and his criminal matter ended. His gaming registration remained suspended and Mr. Filic voluntarily surrendered this licence to the AGCO. Weeks later, Mr. Paris terminated Mr. Filic from his job because he lacked a valid gaming registration.

Mr. Filic launched an action against the appellant claiming constructive dismissal (among other things). The trial judge ruled in favour of Mr. Filic and the Court of Appeal upheld the trial judge’s conclusion that Mr. Filic was constructively dismissed.

The Test for Constructive Dismissal

The Supreme Court of Canada has outlined a test for constructive dismissal. Where there is a single act by the employer that could constitute a breach of the employment contract, the test requires a review of the specific terms of the contract of employment. This involves two steps:

  1. identify an express or implied contractual term that was breached;
  2. determine if the breach is sufficiently serious to constitute constructive dismissal.

Generally, the employee is responsible for establishing a constructive dismissal. However, the burden shifts to the employer when there is an administrative suspension. There are a lot of different factors courts consider to determine if a suspension is justified.

Mr. Filic’s Employment Contract

Mr. Filic’s employment contract (viewed as including the Casino’s policies and handbook) allowed the employer to suspend Mr. Filic as long as it continued to act reasonably. However, the contract did not have express language that stated suspension would be without pay. Although Mr. Filic’s suspension was justified, the appellant could not prove that suspension without pay was reasonable, especially at the early stages of the AGCO investigation. The court found that suspending Mr. Filic without pay in December of 2007 amounted to a constructive dismissal.

The Filic case outlines what courts will consider in deciding whether an unpaid suspension is justified. It also shows the importance of understanding your employment contract and workplace policies that affect you.

If you have been suspended without pay and would like more information on your rights, contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.

Increasing Damages for Sexual Assault in the Workplace

By , June 23, 2018 10:32 am

On average, damages awarded to an employee for a breach of the Human Rights Code, remain relatively low, typically $10,000 to $15,000. The Human Rights Tribunal of Ontario recognizes that low-value awards for discrimination and harassment create a license to discriminate. Following that message, it recently released two significant decisions that reflect a willingness to award higher amounts. Both decisions involve sexual assault and sexual harassment against women in vulnerable circumstances.

In both cases, the owners of the companies were found to be personally liable along with the corporations.

The Cases

In A.B. v. Joe Singer Shoes Limited et al, 2018 HRTO 107, the employee worked for Joe Singer for 28 years.  In a unique situation, the employer was also her landlord. The allegations made by A.B. were of atrocious conduct. She testified that she was forced to perform oral sex, intercourse, and degrading sexual conduct. Her employer watched pornography in his office and also criticized her skin colour, accent, and body. When she eventually reported the assaults to the police, as her landlord the company applied to the Landlord and Tenant Board to evict her and issued parking tickets to her for parking on private property.  Although she had issues with her memory during her testimony, the HRTO still preferred her evidence, and found company and the owner both responsible for the sexual assault and sexual harassment. The HRTO ordered the respondents to pay $200,000 as compensation for injury to dignity, feelings, and self-respect.

Following Joe Singer, the HRTO released G.M. v. X Tattoo Parlour, 2018 HRTO 201. In X Tattoo, the applicant was a 15-year-old woman whose employer engaged in unwanted sexual discussion and forced the applicant to engage in sex acts. The sexual assault, harassment, and gendered discrimination had severely affected this applicant.  It increased her anxiety, caused her to engage in self-harm, sent her off track in school and caused her to give up activities that she previously loved. Looking to the Joe Singer decision, the HRTO awarded $75,000 in general damages (the maximum that the applicant had requested).

Lessons for Employees

We all hope that the conduct seen in Joe Singer and X Tattoo would never occur, at work or elsewhere. However, we know that sexual harassment remains commonplace in Ontario. As the bar for the maximum damage awards has increased, we can expect that the average award level will also increase.

These decisions give employees more confidence that the sometimes long, difficult, and emotionally trying legal process to complain about sexual assault and harassment is worthwhile. These decisions, and higher general damage awards in the future, increase the likelihood that employees report incidents and pursue their legal rights.

If you have experienced sexual assault or sexual harassment at work, and would like to speak with a lawyer about your rights, please contact us at [email protected] or 1-888-640-1728 (toll-free) or 647-204-8107 (within the GTA).

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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