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Posts tagged: discrimination

Do you only hire workers who can work in Canada on a permanent basis?

By , September 25, 2018 9:56 am

Imperial Oil Limited recently found out the hard way that imposing a Canadian citizen requirement as a job qualification can be a costly mistake.

This case shows that the cost to respond to a human rights application filed by an unsuccessful job applicant can be significant even if a job applicant lies on his application form. The hearing in this case took 13 days.

The Facts

After graduating from McGill University Muhammad Haseeb applied for and obtained a “postgraduate work permit” (PGWP) for a three year term. The PGWP allowed him to work full time, anywhere and with any employer in Canada.

Mr. Haseeb then applied for an entry level position as Project Engineer at Imperial Oil. A condition of employment was that an applicant provide proof of his eligibility “to work in Canada on a permanent basis” by way of (1) Canadian birth certificate (2) Canadian citizenship certificate or (3) Canadian certificate of permanent residence (permanent resident card) or the “permanence requirement”. His permit did not satisfy the permanence requirement so he lied and said he could meet Imperial Oil’s permanence requirement. He went through the application process and was offered a job conditional on proving proof he could “work in Canada on a permanent basis”. He couldn’t so the offer was revoked.

The Issue

Mr. Haseeb claimed that Imperial Oil’s permanence requirement violated his right not to be discriminated against on the basis of citizenship and that the permissible ways to discriminate on the basis of citizenship did not apply.

The Law

Section 5. (1) of the Ontario Human Rights Code states: “ Every person has a right to equal treatment with respect to employment without discrimination because of …citizenship, …”

Discrimination of the basis of citizenship is permitted in the situations set out in section 16 of the Code: namely:

  1.  (1) Canadian Citizenship – A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law.(2) – A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or lawful admission to Canada for permanent residence is a requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence.

    (3)  A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or domicile in Canada with the intention to obtain Canadian citizenship is a requirement, qualification or consideration adopted by an organization or enterprise for the holder of chief or senior executive positions.

Decision

The adjudicator concluded that Imperial Oil’s eligibility requirement directly discriminated against job applicants on the basis of citizenship and that none of the defences set out in section 16 applied.

In coming to this conclusion the adjudicator stated:

To obtain protection from discrimination under the Code on the basis of “citizenship”, the applicant need only establish that the alleged discriminatory treatment is linked to his personal characteristic of being a non-citizen of Canada (or non-Canadian citizen).

It is thus the Tribunal’s view that in direct discrimination cases … no general BFOR defence is available to a respondent. A respondent in a direct discrimination case has only statutory defence(s) available to excuse a conduct or policy that is found to discriminate in a direct (or express, targeted) manner “where the requirement expressly included a prohibited ground of discrimination” …

In the alternative, assuming the bona fide occupational qualification (or BFOQ) defence was available, the adjudicator concluded this defence was not proved. In particular, “Given the …(conclusion) that I(mperial) O(il)’s permanence requirement is not an “occupational requirement’, there is no need for this Tribunal to examine at length the bona fides or honesty of IO’s belief that the requirement achieved its purported purpose of succession planning and retention of trained employees, or, to examine IO’s assertion of undue hardship.”

Lessons to be Learned

  1. Employers should not establish overly restrictive citizen requirements for jobs –  especially for entry level positions.
  2. An unsuccessful job applicant can file an on-line no-cost human rights application and the applicant is not required to hire a lawyer to do so. The Human Rights Legal Support Centre provides free legal advice to job applicants who want to commence these legal proceedings.
  3. The cost to defend a human rights application can be staggering. An employer should carefully prepare for the three-hour mediation that takes place near the beginning of the application process and try to negotiate a settlement at the mediation (or before) if a reasonable settlement can be reached at that time.

For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416-317-9894 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.

Supreme Court: Increased Potential Liability for Harassment

By , February 9, 2018 12:35 pm

Recently, the Supreme Court issued a significant decision expanding the nature of possible harassment and discrimination claims.  

The Case

In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, Mohammadreza Sheikhzadeh-Mashgoul worked as a civil engineer consultant 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.

Schrenk and his employer argued that they had no relationship to Mr. Sheikhzadeh-Mashgoul and that since they were not his employer or colleague 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 an employer in Ontario, you could now be required to defend against employment-based human rights claims from individuals who are not even your employees.

If you are facing a discrimination or harassment claim 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.”

Can my organization implement a drug testing policy at the workplace?

By , July 24, 2017 10:24 am

If you’ve been following the news over the last few months, you know that the Ontario Superior Court of Justice refused to allow the union’s injunction against the TTC’s random drug and alcohol testing policy. More recently, the Supreme Court of Canada upheld the termination of an employee who was terminated for violating his employer’s drug testing policy. These developments have led to us answering many questions from employers (and news publications) about whether they can also test their employees for drugs and alcohol.

Despite the TTC’s success at court, employers should proceed with caution when instituting drug and alcohol testing at the workplace. Firstly, the issue before the court was not whether such a policy was discriminatory. Secondly, the court refused the union’s injunction because of both the safety-sensitive industry and the wide area in which the TTC operates. Furthermore, the caselaw preceding the TTC decision shows that there is a high evidentiary burden an employer must satisfy to justify random drug testing its employees.

Because addictions to drugs or alcohol are considered “disabilities” under the Ontario Human Rights Code, drug and alcohol testing has human rights implications for people with addictions. For example, a human rights issue may arise where a positive test leads to automatic negative consequences for a person based on an addiction.

However, courts and tribunals recognise that it is a legitimate goal for employers to have a safe workplace, particularly in safety-sensitive industries. Therefore, there is caselaw that has recognised that a drug testing policy is justifiable if an employer can show that the policy is a bona fide (i.e. legitimate) requirement of the job. However, even if the policy is a legitimate requirement, employers should strive to minimise any potential discriminatory impact, and be prepared to accommodate employees with addictions who are negatively impacted by the policy.

Another requirement for a drug and alcohol testing policy to be found justifiable is that it must measure impairment, as opposed to drug or alcohol use. For example, while alcohol testing is able to measure a person’s impairment quite accurately, because drugs can remain in a person’s system for quite some time after their use, drug testing is less accurate at measuring impairment rather than drug use. For this reason, alcohol testing tends to be more permissible than drug testing. Similarly, testing after an accident or a “near-miss” is more justifiable than random testing.

Lessons to be Learned

As we get closer to marijuana being legal in Canada, questions around workplace safety and the permissibility of drug testing are bound to increase. We will continue to publish additional information as more relevant cases are released. In the meantime, if you are considering implementing a drug and alcohol testing policy at the workplace, you should consult an employment lawyer to find out whether such a policy would survive the scrutiny of a court or tribunal.

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.

Ontario Court of Appeal Upholds Decision to Reinstate Disabled Employee with 10 Years Back Pay: Will Human Rights Litigation Ever Be the Same Again?

By , June 15, 2016 10:01 am

I predict a recent Ontario Court of Appeal (the “OCA”) decision will have a significant impact on human rights litigation. In particular, I suspect disabled employees will start asking employers to find or create alternative positions for them if they cannot perform their job duties because of a disability, and terminated employees will start asking adjudicators to reinstate them with full back pay.

Is an Employer Required to Find or Create an Alternative Position for a Disabled Employee?

In Hamilton-Wentworth District School Board and Sharon Fair the OCA stated that an adjudicator’s decision to reinstate an employee and order the employer to pay 10 years back pay was in keeping with an earlier Supreme Court of Canada decision. In the earlier case, the court articulated an employer’s duty, short of undue hardship, to arrange the employee’s workplace or duties to enable the employee to work, as follows:

Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties – or even authorize staff transfers – to ensure that the employee can do his or her work, it must do so to accommodate the employee. [Emphasis added.]

In the Hamilton-Wentworth case the disabled employee could not perform the duties of her position but she could perform the duties of another position. An adjudicator with the Ontario Human Rights Tribunal (the “Tribunal”) found that there would have been no need for the School Board to create a surplus position, as the financial resources existed for one position, or to displace an incumbent employee, as another position was vacant.

The OCA also stated: “…to fulfil its duty to accommodate an employee’s disability, an employer may be required in an appropriate case to place a disabled employee into a position for which he or she is qualified but not necessarily the most qualified.”

Should a Disabled Employee Be Reinstated with Full Back Pay?

One the one hand, the OCA stated that while rarely used in the human rights context, the remedy of reinstatement fell within the Tribunal’s remedial jurisdiction.

When refusing to overturn the adjudicator’s decision to order reinstatement, the OCA noted that Ms. Fair’s employment relationship with the School Board was not fractured and the passage of time had not materially affected her capabilities.

On the other hand, the OCA indicated that a comparison of an adjudicator’s jurisdiction under the Ontario Human Rights Code to an arbitrator’s jurisdiction in the labour relations context was not unreasonable or unusual and referred to an earlier Tribunal decision where an adjudicator, when examining the issue of reinstatement, noted:

While reinstatement orders are rarely requested or ordered in human rights cases, they are “normally” ordered in arbitral cases where a violation of a grievor’s rights has been found, unless there are “concerns that the employment relationship is no longer viable” A.U.P.E. v. Lethbridge Community College, [2004]….. The goal of human rights legislation, which is remedial in nature, is to put the applicant in the position that he or she would have been in had the discrimination not taken place. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998)… Where viable, reinstatement is sometimes the only remedy that can give effect to this principle.

What are the Implications of this Decision?

Will this case translate into a shift in how adjudicators exercise their remedial jurisdiction where reinstatement is no longer a rare remedy and becomes as common a remedy as in the arbitration world? If so, I think employee lawyers will start commencing more proceedings at the Tribunal as opposed to the courts all other things being equal. With the prospect of reinstatement and/or large back pay awards there will be more pressure on employers to settle at the Tribunal for larger settlements. Only time however will tell.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

“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.”

Restaurant who refuses to serve customer with a service dog ordered to pay $ 2500 in general damages

By , May 31, 2016 9:59 am

Obligations to Train Employees On Human Rights Issues

We often represent employers and employees who have human rights issues. It is a rather complex area of the law, especially cases involving individuals with disabilities. For more blogs on the rights of disabled employees, click here.

An employer has obligations towards disabled employees under the Ontario Human Rights Code (the “Code”) and the Accessibility for Ontarians with Disabilities Act  (“AODA”) including mandatory training. For more information on an employer’s obligations under AODA, click here.

A recent case illustrates what can happen if an employer doesn’t properly train its employees on human rights issues.

The Facts of the Case

An autistic person, his mother and a service dog were refused service at a restaurant because they wanted the service dog to accompany them. The mother called the police who advised that they could not intervene. The police suggested they call the municipality but they were advised that the municipality could also not intervene and referred them to the Human Rights Legal Support Centre which said they did not have the resources to intervene in the immediate situation, but told them how to file an Application. After calling these places and getting no assistance, they left the restaurant and filed an application under the Code four days later.

The Law

The Human Rights Tribunal of Ontario (the “Tribunal”) found that autism spectrum disorder is a “disability” within the meaning of the Code

The Tribunal concluded the restaurant did not accommodate the son’s disability and in this regard quoted a section of a regulation under AODA, which states: “If a person with a disability is accompanied by a guide dog or other service animal, the provider of goods or services shall ensure that the person is permitted to enter the premises with the animal and to keep the animal with him or her unless the animal is otherwise excluded by law from the premises.”

The responsibility for ensuring that servers are properly trained and aware of the obligations of a service provider rests with the employer and not the employee. Any liability for discrimination done by an employee in the course of the employee’s employment that results in a breach of the Code is that of the employer.

The Decision

The restaurant violated the autistic person’s right to be free from discrimination because of a disability by refusing to permit his service dog to enter the restaurant.

The restaurant was ordered to retain at its cost an expert in human rights to develop a human rights policy.

The restaurant was ordered to pay the son $2,500 as compensation for injury to dignity, feelings, and self-respect. This case can be contrasted to an earlier decision where a person with a service dog was denied access to a mall for about 5 minutes and was awarded $ 1000 in damages because a mall employee did not understand his right to bring the service dog into the mall. For more information on this case, click here.

Lessons to be Learned:

  1. Many employers have a positive obligation to train employees on human rights issues, particularly under AODA. Failure to train employees can result in an employer being ordered to pay for an employee’s unfamiliarity with the law.
  1. Employers who offer services to the public, like restaurants, are particularly susceptible to human rights claims. Many members of the disabled community are aware of their rights and will enforce them. In this case, the mother told the restaurant staff that her son had the right to bring a service dog into the restaurant before she and her son were denied service.
  1. Employers should participate in the application process under the Code. In this case, the restaurant did not send a representative to the hearing. It is possible that because the adjudicator did not hear both sides of the story the damage award was higher than it would have been otherwise.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

“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.”

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