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Posts tagged: Nicole Simes

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.

Employee Protections during Police Record Checks

By , November 14, 2018 4:14 pm

Often employers require a new hire to provide a police record checks. Starting November 1, 2018 changes made under the Ontario’s Police Record Checks Reform Act will be in force. Previously, police record checks were not regulated in Ontario. With the new Reform Act in force, the police record checks process becomes standardized across Ontario for all employers.  Employers will not have access to as much information, and employees must consent.

This Reform Act covers:

  • Criminal records check,
  • Criminal Record and Judicial matters checks; and
  • vulnerable sector checks.

The Reform Act now requires consent at two stages of police record checks. The first stage includes consent from the employee to conduct the particular type of check and the second stage requires consent to the police record check provider to provide a copy of this results to the employer.

These changes also limit the information given to employers upon conducting a police record check to what is necessary and relevant. Information such as mental health detentions and non-conviction information will not be disclosed unless deemed necessary for “exceptional disclosure.” This will occur primarily if the alleged offence involved a child or vulnerable person and there are reasonable grounds to believe the individual presents a risk of harm to a child or vulnerable person.  

Lessons for Employees

  • Make sure your current or future employer has your consent to conduct the search and see the results.
  • The record check process will likely take longer, so keep that in mind if you receive a conditional employment offer.  Don’t resign too quickly from any current job.
  • If an employer or another person willfully contravenes certain sections of the Reform Act can be liable for a fine of up to $5,000.

If you have any questions about hiring processes, employment contracts or police record checks, 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.

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.

A Change for Employees and Termination Packages: The IBM Example

By , September 7, 2018 3:48 pm

The Basics

Under the Employment Standards Act (ESA), employees who are terminated are entitled to appropriate notice of termination, which is generally a week’s worth of notice, or pay in lieu of notice, for each year worked up to a maximum of eight weeks. Not every employee is also entitled to severance.  Therefore, if you worked for a small company for twenty years, your employer might be required to give you only eight weeks of notice or pay in lieu of notice. Alternatively, the common law entitles employees to up to a month of notice, or pay in lieu of notice, for each year worked.

For this reason, many employment contracts contain a termination clause or a section that attempts to reduce the cost of terminating an employee by either introducing an alternative fixed amount or limiting what the employee can get to the bare minimums under the ESA. While termination clauses may provide you, as an employee, with security about what exactly you are entitled to should you be terminated, they are also dangerous as they can also slash the amount of money you to which you might otherwise be entitled.

Some termination clauses, however, are unenforceable: they may violate the ESA by not specifically mentioning severance pay, or be ambiguous. Because of this, many cases make their way to court.  

While the ESA outlines the minimum compensation for employees who are fired, the amount that an employee can be paid at the time of their termination can be significantly higher.  

Termination clauses have been a fiery area of employment law, and the courts have had mixed opinions on how to determine whether a termination clause is valid and lawful.  In 2017, many court decisions sided with employees because they are typically the weaker bargaining partner in an employer-employee relationship. However, in the recent case of Noah Amberber v. IBM Canada Ltd., however, the Ontario Court of Appeal ruled in favour of the employer.  This ruling sets an important precedent for judges presiding over cases where employees have taken their employer to court over potentially invalid termination clauses, and is relevant to any employee with a termination clause in their employment contract.  

Noah Amberber v. IBM Canada Ltd.

Former IBM-employee Noah Amberber argued that the termination clause in his written employment agreement, which granted him 18 weeks of salary instead of the 16 months he said he was entitled to, was unenforceable because it violated the ESA minimums, because among other things it was ambiguous.

At the first level of court, the judge agreed the termination clause was indeed ambiguously worded.  She decided it had been written unclearly, and therefore ruled in favour of Amberber.

That decision was successfully overturned in the Court of Appeal, where the judge sided with IBM that the termination clause was clear. The Appeal judge decided that, when read as a whole, the clause was decisively written. The Court of Appeal stated that the first judge “strained to find an ambiguity where none reasonably exists.”

What it All Means for You

This is an incredibly dynamic area of law that is continually changing based on the decisions of judges.  The best course of action is to try and change a termination clause before you sign it. That means seeing a lawyer once you have a new offer but before you start the job.  It also means getting advice if your employer gives you a new contract during your employment. When an employer does this, they have likely made changes to the contract try and make the termination clause better.  If you have already been terminated, with Noah Amberber v. IBM Canada Ltd. in mind, it is definitely in your best interest to figure out whether a termination clause is enforceable before signing off on a severance package by seeking advice.

While in the past, judges were more likely to rule in favour of employees because of their disadvantages in drafting the termination clause, it is likely that future rulings will be more critical of employees arguing against the validity of their contracts.  We at MacLeod Law Firm specialize in dealing with these types of situations. If you are an employee who has a termination clause in your employment contract, come and see us.

To read more about termination clauses, read on here:

If you have questions about your rights regarding termination clauses 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.

Fired and Your Union Won’t Help?  Options to Consider

By , August 31, 2018 7:07 am

Your Rights and the Union

If you are a unionized employee who has been fired, you may be desperately searching for legal advice on how to proceed.  Unlike non-unionized employees who can bring their employers to court, employees with union representation lose that right. Because of this, there are instances in which you may benefit from having private legal counsel.

Your first step will be to find the collective agreement that you and your employer agreed to with your union.  Like employment contracts, collective agreements typically outline your conditions of employment, such as hours, wages, and overtime.  This collective agreement will also outline the process that you, as a union member, must use if your employer does not follow the agreement.  If you have opted out of membership in the union, you are still bound by the collective agreement.

Some rights never go away, regardless of whether or not you are unionized.  You have the right to refuse unsafe work, for example, and you are entitled to act on your rights without being punished by your employer or union.  If your employer breaks the collective agreement, or if you have been fired and you believe you have a legal case against your employer, you must follow the process outlined in your collective agreement.  

Your union is bound to a duty of fair representation, which means the decisions they make about representing you cannot be arbitrary, discriminatory, or made in bad faith.  They are obligated to do three things:

  • Listen to your complaint and discuss it with you;
  • Consider what you want; and
  • Make a fair and honest decision about what action, if any, to take.

However, your union is not obligated to do what you want.  They are not obligated to pursue each case until the final step of the grievance procedure, or even grieve your case.  Technically, under the duty of fair representation, they are not even required to do a particularly good job at representing you. This leads many members to feel abandoned by their union: if they are not helping you after you’ve been fired, you are certainly not alone.

In most instances, you cannot simply hire your own lawyer and take your employer to court; your lawyer will likely not have jurisdiction and will not be recognized by the courts.  However, under certain circumstances such as the ones listed below, you may be able to pursue legal counsel outside of your union.

Human Rights Complaints

You may be able to start a legal claim without your union if your complaint rests on a human rights violation.  In that instance, you may be able to file a human rights application rather than use the process outlined in your collective agreement.

If you believe you were fired or unjustly treated by your employer because of your race, ancestry, place of origin, colour, ethnic origin, citizenship, religious beliefs, sexual orientation, gender identity or expression, age, marital status, family status or disability including addiction, or a conviction for which a pardon has been granted or a record suspended, you may have grounds to file a human rights complaint.  

Your complaint will need to be valid, it must be filed within 12 months of the incident, and you will need to follow a separate set of protocols.  

And so…

If you have been unfairly treated at work or fired and your union is not giving you enough information or has directly said it won’t represent you, seeing a lawyer will be beneficial to represent you and help navigate through the process.

Independent legal counsel can help you to most effectively work with your union so that they represent you actively, promptly, and well. Often, the best approach with unions is to be proactive. If you are aware of your rights and the obligations of the employer and union, you can use this information as a tool to advocate for yourself. If you have a human rights claim, you can bypass the union and seek a remedy without them.

MacLeod Law Firm regularly advises unionized employees on their rights and brings human rights claims on their behalf.  We are willing to help individuals struggling with unions, and are able to help when the law permits. If your union is failing you, reach out to us.  We can offer honest, open, advice about how to proceed and best benefit from your specific circumstances.

If you have any questions about your rights as a unionized employee, please 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.”

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