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Posts tagged: Harassment

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.

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.”

WSIB Benefit Changes Effective January 1, 2018

By , January 11, 2018 11:29 am

Claiming benefits through WSIB because of harassment or bullying at work just got much easier. Until very recently, the Workplace Safety and Insurance Act only allowed employees to claim workers compensation benefits if they experienced traumatic mental stress at work. This was very difficult for employees to prove.  The law said that the stress had to be brought on by an event that was sudden and unexpected, such as seeing a fatal accident at work.

As I wrote previously, in this blog, the law was found to be unconstitutional. Employees who experienced chronic physical illness could receive benefits.  However, those who developed chronic mental illness could not.  This treated employees differently on the basis of disability, which is not allowed.

The Ontario government has now changed the law.  Employees can seek benefits for both chronic and traumatic mental stress that arises because of work.  

 

What does this really mean?

This change is very significant. Employees who became sick from harassment at work, now have another avenue to seek redress and compensation.  The change in the law recognizes that issues at work can affect employees’ mental as well as physical health.

Employees will need to show that a regulated health professional, such as a family physician, has given them a diagnosis based on the Diagnostic and Statistical Manual of Mental Disorders. They will also need to show that they experienced substantial work-related stressors like bullying/harassment which caused or significantly contributed to the chronic mental stress.

If an employe experienced chronic mental stress from work at any time since April 29, 2014, and has not filed a WSIB claim, she still can.

The changes to the legislation are also clear that managerial decisions which cause mental stress are not covered.  If the employee experienced chronic mental stress as a result of a demotion, transfer, discipline or termination, he will not likely qualify for WSIB benefits.

If you have experienced mental stress because of work 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.”

How to Prove Mental Distress: An Update

By , June 23, 2017 10:15 am

Did you know that if an employer mistreats an employee either during their employment or at the time of their termination, that employee may be entitled to damages for mental distress? For example, an employee may be entitled to these damages, in addition to wrongful dismissal damages, if they can prove that they suffered mental distress as a result of a particularly insensitive termination.

As is often the case with non-visible injuries, the difficulty arises in proving a mental injury. A recent decision from the highest court in Canada could make things easier for plaintiffs attempting to prove mental injuries in the employment context.

Saadati v Moorhead

In this case, which arose in the context of personal injury, Mr. Saadati was involved in five separate motor vehicle accidents. In the second of these accidents, Mr. Saadati claimed that he had suffered both physical and mental injuries.

Despite the fact that various medical professionals provided evidence at trial, the trial judge ruled that much of this evidence was of no weight, and the medical evidence that was admissible was not sufficient to establish that Mr. Saadati had suffered from a mental injury as a result of the second accident. However, based on the evidence from Mr. Saadati’s family and friends, the trial judge was able to conclude that he had suffered a psychological injury. His family and friends testified on significant changes to Mr. Saadati’s personality after the second accident. On this basis, he awarded $100,000 in damages for mental injury.

The British Columbia Court of Appeal reversed this decision, ruling that the trial judge had erred in awarding these kinds of damages without medical evidence of a recognisable psychiatric illness.

The Supreme Court of Canada, in a unanimous decision, overturned the appellate court’s decision. The Supreme Court clarified that although expert evidence will often be helpful in determining whether the plaintiff has proven a mental injury, it is not a requirement. A plaintiff may bring other evidence to prove that a mental injury has occurred. According to the Supreme Court, what matters is substance (or symptoms), not the label.

Implications for Employment Law

As mentioned above, in certain circumstances, an employee may be entitled to additional damages if they can prove the existence of mental distress. So far, the cases have been split on whether there is a requirement for medical evidence before a finding of mental distress can be made. Although Saadati arose in a different context, it is highly likely that employment lawyers will attempt to rely on Saadati when arguing a claim for aggravated damages.

If you are suffering from mental distress from your employment, or from having been recently terminated, you should consult an employment lawyer to find out about your rights.

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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