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Posts tagged: Human Rights

Cannabis Legalization: Behind the Smoke and Mirrors

By , October 17, 2018 9:44 am

Whether you’ve been looking forward to this day – October 17, 2018 – or whether you’ve been dreading it, the legalization of recreational cannabis in Canada is officially here.

Although employers have had over a year and a half to prepare for legalization, a recent Ipsos poll found that managers and employees are not on the same page when it comes to their respective expectations concerning the use of recreational cannabis in the workplace.

Only 18% of non-management staff say that management has communicated clear expectations on the use of recreational cannabis in the workplace. This number is at odds with manager expectations: 55% of managers believe employees clearly understand management’s expectations.

Leaving employees to self-educate on the changes that follow legalization is not a good idea. Only 16% of those non-management employees polled said they are “very familiar” with the changes and with where they are allowed to consume cannabis. Most others are only somewhat familiar (52%) or not very familiar (24%). Finally, 17% of working Canadians believe it is possible to use recreational cannabis before going to work or during work hours (including lunch and coffee breaks), while another 6% definitely believe it is permissible to do so after October 17, 2018.

Given the disconnect between managers and employees’ expectations, it is important to communicate these expectations through workplace policies. If you already have a policy, here are a few other questions to consider.

  • Does your current policy simply refer to illegal drugs? With the legalization of cannabis, such language will not cover recreational cannabis. Also, impairment can come from various sources, including prescribed, legal medication.
  • Does your current policy include a distinction between recreational and medical cannabis?
  • Does your current policy define the workplace? What if an employee travels for work, or attends many after-hour functions? Does your current policy state under which circumstances cannabis consumption is not permitted as an employee?

There is no one size fits all drug policy. It should be tailored to the needs of your business. We suggest that all employers develop a policy, and then communicate it to employees and provide any necessary training. We are hosting seminars in Toronto and Barrie next week and one of the topics we will be covering is some of the components that should be included in a drug policy. Click here for more information on this seminar, or call Judy Lam at 647-204-8107

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.

“We’re Getting Rid of Bill 148”, says Premier Ford

By , October 3, 2018 10:34 am

After two years of public consultations, the Liberal government introduced many changes to the Employment Standards Act in November 2017 but delayed implementing several of these changes until 2019. The changes were contained in Bill 148.

During the election campaign, Premier Ford said he would stop the $ 1 an hour increase in the minimum wage that is currently scheduled to take place on January 1, 2019. But based on statements he made in the legislature yesterday, it looks like he may be rolling back other Bill 148 changes.

This is yet another example of a government changing the legal landscape at Ontario’s workplaces. Judges and administrative tribunals also impose new obligations on employers each year.

Every two weeks I blog about a recent employment law development but every year I pick three issues that I believe deserve special, in-depth attention.

Our Annual Employment Law Seminar

On October 23rd and October 24th, the MacLeod Law Firm will cover three important workplace issues at half-day seminars in Toronto and Barrie.

What Topics Are We Covering This Year?

(i) The Impact of Legal Recreational Cannabis in the workplace

In about two weeks, the federal government is legalizing the sale of recreational cannabis. Each province is going to decide how to sell cannabis and introduce laws that will prohibit a person from ingesting more than a prescribed amount of cannabis and driving. In the last week, Ontario has introduced such a law. We will discuss the components of a workplace policy that addresses recreational cannabis use.

(ii) Rolling Back Bill 148

Yesterday, Premier Ford signalled that legislation is coming that will roll back some parts of Bill 148. We will discuss the fate of the proposed increase in the minimum wage, recently introduced paid personal emergency leave days, and new scheduling, on call, and pay transparency laws that are scheduled to take effect on January 1, 2019.

(iii) Ontario’s Human Rights Minefield

The Human Rights Tribunal of Ontario has released a number of decisions this year which could significantly impact your employment practices. One decision may force employers to extend group extended medical benefits to employees who are over 65 years old. Another decision will force some employers to change the way they hire employees from different countries. We will discuss what these decisions mean to you.

Click here for more information on this seminar.

Who Should Attend Our Seminar

If you are responsible for HR issues at your workplace or you have to deal with employment issues as part of your job or you are ultimately responsible for paying monies to settle employee complaints, then you will benefit from attending this seminar.

The cost of this seminar is $199 plus H.S.T. To register, please email [email protected] or call 647-204-8107.

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.

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.

The MacLeod Law Firm’s 2018 Employment Law Seminar: A ½-Day of Ford, Cannabis & Human Rights

By , August 28, 2018 9:52 am

Subscribers to this blog receive a brief description of a new employment law development every two weeks.

Some topics however deserve more than a cursory discussion. We have selected three such topics to cover in a ½ day seminar on October 23rd in Toronto and on October 24th in Barrie.

Here is a brief summary of the three topics we will be discussing at this seminar:

The legalization of the cannabis

On October 17, 2018, Canada is scheduled to become the second country on earth to legalize cannabis. The federal government could have simply decriminalized cannabis use but it went further and established a framework for the legal sale of cannabis. Each province will decide how to distribute cannabis, how to amend impaired driving laws, and set the price of cannabis.

It is important that each employer understand its rights and obligations under the new cannabis legislation and to set and enforce expectations with respect to cannabis use and impairment in the workplace including employees who have been prescribed medical marijuana.

We will discuss issues that should be addressed in a workplace drug policy.

The employment law landscape is changing under the new PC government

The Progressive Conservative government has stated that Ontario is open for business and we expect this will mean less regulation of Ontario workplaces and it may mean that certain legislation will not be implemented as expected. For example, during the provincial election campaign, leader Doug Ford stated that a $1 per hour increase in the minimum wage will not take effect on January 1, 2019 as planned. There are a number of planned amendments to the Employment Standards Act that are scheduled to take place in 2019 and we believe the PC government may delay or scrap some of these proposed changes.

We will discuss what laws the PC government has introduced as of mid-October and identify which laws will not be enacted in 2019 as originally planned.

The human rights landscape is changing

The Human Rights Tribunal of Ontario processes thousands of applications each year and issues decisions that affect all employers. These decisions can provide guidance to employers such as its decisions on what an employer must do to satisfy its duty to accommodate an employee with a disability. Did you know that an adjudicator recently concluded that a law which allows an employer to provide an employee over 65 years old with lesser health benefits than a younger worker was unconstitutional? Does your group health plan permit this kind of age discrimination?

We will discuss the most significant human rights decisions in the last year and what they mean to employers.

The cost of this seminar is $199 plus HST. To register, please email [email protected] or call 647-204-8107.

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.

Not Preventing Sexual Assault and Harassment in the Workplace is Now More Expensive

By , June 22, 2018 11:16 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. However, the HRTO 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. The allegations made by A.B. were of atrocious conduct. She stated that she was forced to perform oral sex, intercourse, and degrading sexual conduct. She accused her employer of watching pornography in his office. Her employer also criticized her skin colour, accent, and body. Although she had issues with her memory in 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. Looking to the Joe Singer decision, the HRTO awarded $75,000 in general damages (the maximum that the applicant had requested).

Lessons

Most employers would hope and believe that their staff and management would not engage in the conduct seen in Joe Singer and X Tattoo. However, the bar for the maximum damage awards has increased. We can expect that the average award level will also increase.

Employers need to ensure:

  1. that they create a workplace culture of no tolerance for harassment and violence. This includes having the appropriate policies and training in place;
  2. that they respond promptly to every sexual harassment complaint and investigate all complaints as well as incidents; and
  3. that those who come forward do not face punishment or reprisal for doing so.

For over 30 years, MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions about dealing with sexual assault or sexual harassment complaints and allegations and would like to discuss them with a lawyer, please contact me at [email protected] or 647-633-9894.

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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