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Posts tagged: Human Rights Code

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.

Getting terminated during a medical leave

By , August 11, 2017 9:00 am

Generally speaking, if an employee is terminated without just cause they are entitled to receive “reasonable notice” of termination unless they have agreed to accept a specific amount of notice of termination. An employer can provide working notice or termination pay in lieu of this notice.

What happens when an employer provides working notice of termination and the employee cannot work due to medical factors? A recent decision from the Ontario Superior Court of Justice confirmed the principle that for disabled employees, working notice does not generally start until after the employee is medically able to work.

McLeod v 1274458 Ontario Inc. – The Facts

Keith McLeod had been employed as a mover at 1274458 Ontario Inc. (Frontier Sales) for almost 20 years. On September 18, 2015, Mr. McLeod was involved in a non-work-related car accident. As he was unable to return to work, he was placed on an unpaid medical leave of absence. His physician provided a medical certificate supporting the fact that Mr. McLeod was experiencing both physical pain and PTSD as a result of the accident.

On January 31, 2016, shortly after Mr. McLeod had provided Frontier Sales with his doctor’s prognosis, he was sent a notice that his employment would be terminated effective July 31, 2016 as the retail business was shutting down. According to the company, the period between notification and the store’s closing date would be considered working notice.

Mr. McLeod provided a letter from his new doctor which corroborated his previous physician’s opinion. Frontier Sales believed the doctor’s letter was inadequate, and warned that they would terminate Mr. McLeod for just cause if more information was not provided by April 22, 2016. Frontier Sales took no action after April 22, 2016.

After his doctor cleared him for light duties on a part-time basis, Mr. McLeod returned to his job on July 27, 2016. On July 31, 2016, Frontier Sales shut down as planned.

The Decision

At trial, Frontier Sales argued that since Mr. McLeod was not capable of working between January and July 2016, he was not owed anything in damages for reasonable notice. The court rejected this argument. A previous decision from the Supreme Court of Canada found that the fact that an employee cannot work is irrelevant to the assessment of wrongful dismissal damages. Relying on this decision, the Ontario Superior Court of Justice awarded Mr. McLeod 9 months’ pay in lieu of notice (i.e. from January to October 2016, when he began his new job).

If you have been terminated while on a medical leave, it is important to consult an employment lawyer, whether or not you are provided some kind of notice from the employer. In addition to notice, you may be entitled to other kinds of damages, such as general damages for a violation of the Ontario Human Rights Code, or aggravated damages to compensate for the employer’s bad faith for terminating an employee during a medical leave.

 

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 Force You to Take a Drug Test?

By , January 4, 2017 3:42 pm

Some employers attempt to make alcohol and drug testing mandatory for their employees. This year, the TTC gave the go-ahead to implement random drug and alcohol testing for its employees. What are the legal implications of drug testing in the workplace?

Drug and Alcohol Addictions are Disabilities

The Human Rights Tribunal of Ontario recognizes both drug and alcohol addictions as disabilities under the Human Rights Code (“Code”). Where an employee suffers from a disability, an employer has a duty to accommodate that employee to the point of undue hardship. Employees who experience addiction may require time off for treatment or changes to their position. Employers who terminate or treat employees differently because they have a substance addiction may violate the employee’s rights under the Code.

Random alcohol or drug testing can negatively affect an employee suffering from an addiction. For example, if an employer disciplined an employee after testing positive. For this reason, the Ontario Human Rights Commission states that random drug and alcohol testing is generally discriminatory and can only be used in limited circumstances.

In 2013, the Supreme Court of Canada considered this issue. The Court concluded that “in a workplace that is dangerous, employers are generally entitled to test individual employees who occupy safety sensitive positions.” Otherwise, the Supreme Court found that a random alcohol or drug test is generally not permitted.

Lessons for Employees:

  1. Many employees are afraid to disclose substance abuse problems to their employer. However, the Code specifically protects those with alcohol or drug addiction from harassment and discrimination. Further, if an employer refuses to accommodate a disability, employees may be entitled to monetary compensation.
  2. It is extremely difficult for an employer to justify random drug testing.
  3. If an employer subjects you to drug or alcohol testing, you should consult an employment and human rights lawyer to determine what actions to take.

If you 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.”

Are Repeated Compliments Sexual Harassment?

By , January 19, 2016 10:31 am

Despite increased media attention to the issue, sexual harassment and sexual assault continue to occur in the workplace.

In a recent decision, the Human Rights Tribunal of Ontario addressed the problem of unwanted compliments and touching in a real estate brokerage.

The Case

In Panucci v. Seller’s Choice Stockdale Realty Ltd., the applicant was a self-employed commission salesperson who worked under the supervision of a broker at Stockdale Realty.

The applicant told the Tribunal that the broker, Ronald Stockdale, had persistently complimented her appearance, invited her to drink wine with him, requested hugs for assisting her with work, and caressed her shoulder on one occasion.

While Mr. Stockdale denied the allegations, the Tribunal found that the applicant’s evidence was credible and that even if he was not directly told by the applicant to cease his conduct, he ought to have known that it was unwelcome.

The Tribunal awarded the applicant $15,000 in general damages for injury to her dignity and self-respect.

Lessons from the Case

Significantly, the Tribunal reiterated the principle that human rights legislation may apply to self-employed persons or independent contractors. Even though the applicant was not an employee of Stockdale Realty, there was a breach of the Human Rights Code.

This case further highlights the importance for individuals experiencing stress or other health issues as a result of harassment to seek medical assistance. This may become evidence in a later claim. The Tribunal commented that while the applicant described her health concerns, she presented no evidence about the medical impact of the sexual harassment. Had she done so, the damage award may have been higher.

Finally, the case is important as it further reiterates that there is a power imbalance between supervisors and employees and that employees may not feel able to confront a supervisor engaging in unwanted comments or touching. The fact that the individual does not say no or complain about the behaviour is not sufficient reason to conclude the conduct did not occur or was welcome.

If you would like to speak with an experienced lawyer about sexual harassment or other human rights issues, please contact us at [email protected] or 647-204-8107.

“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.”

Ontario’s New Mental Health Disability Policy: A Big Step Forward

By , July 31, 2014 9:42 am

The Ontario Human Rights Commission (“the OHRC”) recently released a new mental health disability policy.  It addresses mental health disabilities and addictions.

This new policy recognizes that people with a mental health disability or addiction “have faced considerable and longstanding discrimination, stigmatization and social exclusion in Canada and across the world.

The new policy is a big step forward for employees suffering from mental health disabilities. At MacLeod Law Firm we see many employees who suffer from anxiety and depression which affect their work, but they are not comfortable disclosing the disability to their employers. The new OHRC policy highlights that disabilities are often invisible and reminds employers of their duty to inquire about the accommodation needs of employees.

The authoritative manual on mental disabilities used by mental health practitioners is the Diagnostic and Statistical Manual of Mental Disorders (“DSM”). The latest version of DSM – The Fifth Edition (or DSM-5) added a number of newly recognized mental disorders including sleep-wake disorder and caffeine withdrawal. The OHRC policy coupled with new mental disorders that have been recognized by the medical profession will result in more legal protections for employees. This means that more employees experiencing symptoms such as sleep deprivation affecting their work quality or attendance may have grounds for requesting accommodation from their employers.

With the increase in claims relating to mental disabilities, the OHRC’s new policy on mental health will provide employees and their lawyers with guidance and direction when it comes to interpreting employees’ rights under Ontario’s human rights legislation.

If you have a mental health disability and have experienced discrimination at work or are concerned that your human rights are being violated, please contact us at [email protected] or 1-888-640-1728 (toll free) or 647-633-9894 (within the GTA).

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