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Posts tagged: Human Rights

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.

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.”

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.

Pregnancy, Parental and Maternity Leave 102 (Federal)

By , March 5, 2018 11:30 am

PREGNANCY, PARENTAL AND MATERNITY LEAVE 102

We often receive calls from expecting parents asking about their rights to benefits and time off work once their child arrives.  This article reviews the rights for employees of federally regulated companies in Canada, like banks and airlines. If you work for a provincially regulated company, see here.

An employee’s right to take unpaid time off work because of a new child is found in the Canada Labour Code.

Maternity Leave

A pregnant employee is entitled to an unpaid leave of absence if she has completed six consecutive months of continuous employment (but not necessarily active employment) with the same employer when her leave begins. The employee is entitled to take up to 17 weeks of unpaid leave—which can begin no earlier than 13 weeks prior to the estimated date of the birth, and must end no later than seventeen weeks following the actual date of birth.

Parental Leave

A new parent is entitled to an unpaid leave from work to care for a new child. This parental leave is available to natural or adoptive parents who have completed six consecutive months of continuous employment (but not necessarily active employment) with their employer at the time their leave begins.

If both parents work for a federally-regulated employer, the two parents are entitled to a combined parental leave of up to 63 weeks.  Parents have the option of taking their parental leave at the same time, or one after the other, as long as the total combined parental leave does not exceed 63 weeks. However, for birth-mothers, the total duration of the pregnancy and the parental leaves must not exceed 78 weeks.   Parental leave may be taken any time during the 78-week period starting the day the child is born or the day the child comes into the parent’s care.

Reinstatement

Upon return from pregnancy or parental leave, an employee must be reinstated in her/his former position, or be given a comparable position in the same location and with the same wages and benefits.

If, during a leave period, the wages and benefits of a group of employees are reduced as part of a reorganization plan, an employee who is reinstated in that group will receive no more than the wages and benefits she/he would have received if she/he had been at work during the reorganization. Likewise, if wages and benefits for the employee’s group are increased during leave, the employee would be entitled to the increases upon return to work.

Employment Insurance Benefits

Under the Employment Insurance Act, maternity or parental benefits are available to individuals who are pregnant, have recently given birth, are adopting a child, or are caring for a newborn.

An employee on leave may be eligible to receive employment insurance benefits if they have worked for 600 hours during the qualifying period, have paid EI premiums and their normal weekly earnings are reduced by more than 40%.

Most eligible employees on maternity or parental leave receive 55% of their average weekly earnings, with a current maximum of $547 per week.

Note the difference between EI maternity and parental benefits:

  • Maternity benefits are only offered to biological mothers, including surrogate mothers, who cannot work because they are pregnant or have recently given birth. A maximum of 15 weeks of EI maternity benefits is available. The 15 weeks can start as early as 12 weeks before the expected date of birth, and can end as late as 17 weeks after the actual date of birth.
  • Parental benefits are offered to biological, adoptive, or legally recognized parents who are caring for a newborn or newly adopted child. The eligible parent may choose between 35 weeks of parental benefits at the full rate, or 61 weeks at a reduced rate. Both parents can apply for these benefits but they have to share the benefits. There are many ways you can decide to use your parental leave.  For instance, one of the parents can take the entire 35 weeks of benefits, or both parents can share them. Note that the 2018 Federal Budget proposes changing this to extend the total weeks to 40, if both parents take off at least 5 weeks.  Look for this change in the summer of 2019.

While an employee may be entitled to EI maternity or parental benefits under the Employment Insurance Act if their normal weekly earnings are reduced by more than 40%, the rights associated with pregnancy and parental leave under the ESA are only available to an employee who ceases to work during their leave.

Benefits Received from the Employer

Pregnancy and parental leaves are unpaid.  Employers can choose to pay a portion their employees’ wages during this time, but have no legal obligation to do so.

Continuation of Employee Benefits

During a pregnancy and parental leave, the employee is considered to be continuously employed for the calculation of vacation entitlements, wage increases, termination entitlements, and pension, medical and other benefits ordinarily received.  The employer must also continue to pay benefit premiums during pregnancy leave—except in situations where the employee pays part of the benefit premium and chooses not to pay their portion during the leave.

Human Rights Protections

Under the Canadian Human Rights Act, every employee has to the right to equal treatment with respect to employment, and to be free from discrimination because of family status or sex including pregnancy. Discrimination occurs if an employee experiences adverse treatment as a result of a pregnancy or because he or she took a leave to care for the new child.

If you are pregnant or nursing and require modifications to your job function or another position, your employer may be required to accommodate your needs.  You should speak to your physician about appropriate accommodation.

 

If you are starting a family and want more information about your rights, or if you have been terminated while pregnant or on parental leave, and you want to speak with an employment lawyer, please contact us at [email protected] or 1-888-640-1728 (toll free) or 647-204-8107 (within the GTA).

Significant Changes Coming to the Human Rights Code

By , November 17, 2017 12:55 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 meant 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 have been violated, a lawyer at MacLeod Law Firm can assist you. You can reach us at [email protected] or 647-204-8107.

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