Having Faith

 

faith

FAITH-BASED DISCRIMINATION AND HARASSMENT ON THE RISE

A 2016 study by the Environics Institute found that one-third of Muslims in Canada have experienced discrimination or unfair treatment in the past five years due to their religion, ethnicity / culture, language or sex.  The survey elaborates that this treatment is most commonly experienced in the workplace, public spaces, retail establishments and schools or universities.

 HUMAN RIGHTS PROTECTIONS

Ontario’s Human Rights Tribunal and Canada’s Human Rights Tribunal provide protections against discrimination and harassment on the basis of creed or religion in most of the common forums listed in the Environics survey.  Indeed, these cases have been making their way through the system, including the recent decision of Kannaiti v. Allen 2015 HRTO 502 (CanLII), where an employer stated to her employee, amongst other things, “Go cry about it you Muslim terrorist.”  The employee, who lost his job in the process, was awarded $7,500 in general damages for injury to dignity, in addition to loss of income.

 EDUCATION

On a positive note, there are some incredible steps being taken to combat faith-based discrimination through education, empowerment, and awareness, through organizations such as the National Council of Canadian Muslims (www.nccm.ca) and the Ontario Human Rights Commission (www.ohrc.on.ca). The Human Rights Tribunal of Ontario and the Canadian Human Rights Tribunal have taken the approach of awarding strong public interest remedies in connection with cases of harassment and discrimination based on creed.  We consider these important resources in preventing and remedying incidents of harassment and discrimination.

FAITHISM

A new term that has emerged from the Ontario Human Rights Commission’s new Policy on Preventing Discrimination Based on Creed is that of faithism, which it defines as:  “any ideology that ascribes to people values, beliefs and behaviours, and constructs people as fundamentally different and unequal – deserving or undeserving of respect and dignity – based on their religion or belief.”  One such example that it provides of this is labelling all people of the Islamic faith as terrorists or potential terrorists.

 ADDRESSING THE CHALLENGES

If you believe you have faced discrimination or harassment based on creed or wish to approach your employer about the accommodation of a religious practice, we encourage use of the resources described above.  Similarly, employers facing accommodation requests can be well served by this information.  We also offer assistance to employers and employees in this important area of human rights and welcome inquiries from practitioners of all faiths.

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Recent decision on a casual worker’s rights surrounding her pregnancy.

The Supreme Court indicated that women are entitled to preventive withdrawal during pregnancy, even if it is as a substitute teacher for the Commission scolaire des Patriotes.

The Supreme Court indicated that women are entitled to preventive withdrawal during pregnancy, even if it is as a substitute teacher for the Commission scolaire des Patriotes.

On January 23, 2014, the Supreme Court of Canada heard the case of Dionne c. Commission Scolaire des Patriotes.  It is a case coming out of Quebec that touches on the issue of pregnancy-based discrimination and the extension of benefits to vulnerable workers. On May 1, 2014, the Supreme Court of Canada released their judgment. In a unanimous decision, the Supreme Court indicated that women are entitled to preventive withdrawal during pregnancy, even if it is as a substitute teacher for the Commission scolaire des Patriotes. The court found that substitute teachers are workers within the meaning of the Quebec Occupational Health and Safety Act  when they accept a job offer. They are therefore entitled to the same protections as other workers.

BACKGROUND

The appellant, Marilyne Dionne, is a casual substitute teacher who was on the supply teacher list maintained by the respondent school board.  During the 2005-2006 school year she worked 88 days.

Then in the fall of 2006 she discovered she was pregnant.

In Quebec, under that province’s Occupational Health and Safety Act, a pregnant employee who works in an environment that may present a danger either to the expectant mother or her baby may be eligible to go on paid leave during her pregnancy.  The paid leave is covered almost entirely by the CSST (Commission de la Santé et de la sécurité du travail).  In order to obtain this leave a doctor needs to issue a Certificate regarding the protective reassignment of a pregnant worker (“Certificate”) .

In Marilyne’s case she learned that was not immunized against Rubella or Parvovirus B-19 and her  doctor duly issued the certificate which would have, in the ordinary course, made Marilyne eligible for accommodation and if that were not possible, to go on paid leave.

The School Board, however, objected.  They said Marilyne was not an employee; there was no on-going employment contract.  Instead, she is one of hundreds of names on the supply list.  A casual substitute teacher’s contract of employment only lasts as long as the substitute teaching assignment.

Marilyne argued that once she was accepted a supply teaching position, a contract was formed.  She further argued that the School Board’s refusal to conclude the contract with her (because she was pregnant) amounted to pregnancy-based discrimination. The fact that Marilyne exercised her right to protection under the provincial Occupational Health and Safety Act after she accepted the offer of employment should not have allowed the employer to then refuse to conclude a contract with her.

THE DEBATE

The case raises interesting questions about whether provincially-funded programs meant to provide protection to all workers adequately protects more vulnerable workers, such people who are on supply lists or working in other temporary or contract positions.

On the other hand, if casual or temporary workers are considered employees for the purpose of pregnancy-related benefits, it may open the door to claims for other benefits and employment-related protections which may be costly to employers.

THE DECISION AT THE COURT OF APPEAL

To date, all of the lower court decisions concluded that Marilyne was not an employee and was therefore not entitled to receive benefits through the CSST, nor was it possible for the employer to have engaged in employment-related discrimination against a person who was not an employee.

However, Justice D’Alphond from the Court of Appeal has been the lone dissenting voice. In his dissent, he concluded that Marilyne should qualify for benefits as the benefits are meant to be extended to all “workers” not just “employees” under the relevant Quebec legislation. He wrote that the lower court’s finding that a contract of employment was needed in order for the Quebec Charter to apply is wrong in law. To find otherwise would mean that a prospective employer could refuse to hire someone for discriminatory reasons and defend their act of discrimination by saying that there was no employment contract.

He further found that the School Board did discriminate against Marilyne because she was pregnant.  What should have happened, he suggests, was that when the School Board called Marilyne and offered her a position and she accepted but then advised that she was under a medical certificate (due to her pregnancy), the employer should have immediately offered her accommodation.  Instead, the moment she was unable teach in a class (because she was pregnant), the School Board did not conclude its contract with her. This, according to the judge, was discrimination based on a prohibited ground.

To see the Court of Appeal decision see Dionne c. Commission scolaires des Patriotes, 2012 QCCA 609 (CanLii)

THE DECISION AT THE SUPREME COURT OF CANADA

Marilyne appealed the decision, and the Supreme Court of Canada determined that the appeal should be allowed and agreed with Justice D’Alphond’s dissent from the appeal. Justice Abella delivered the decision at the Supreme Court of Canada in Dionne v. Commission scolaire des Patriotes, 2014 SCC 33.

The purpose of the Act respecting occupational health and safety is to ensure the health and safety of workers by protecting them from workplace dangers.  Under the statutory scheme, when a worker relies on the right to refuse unsafe work, any new assignments or temporary withdrawal from the workplace are not seen as an absence from work, they are deemed to be a substitute for the work that the employee would ordinarily be expected to perform but for the danger.  A refusal to perform unsafe work is not a refusal to fulfill the employment contract, it is the exercise of a legislated right.  Workers are thereby protected from having to choose between job security and their health or safety.

Like any other worker entitled to refuse to do unsafe work, a pregnant worker is deemed by the Act to still be “at work” while on reassignment or Preventive Withdrawal.  The Act therefore protects pregnant women in two significant ways:  it protects their health by substituting safe tasks for dangerous ones, and it protects their employment by providing financial and job security.  To confront the discriminatory assumptions which had historically attributed incapacity to work to women who were pregnant, the scheme protects not only their right to work, but to work in a safe environment by deeming them to be as available to work as a non‑pregnant worker.

A contract was formed when D accepted the School Board’s offer to supply teach and therefore became a “worker” in accordance with the definition in the Act.  The legislated right of a pregnant worker to withdraw from an unsafe workplace cannot be used to conclude that her Preventive Withdrawal negates the formation of the contract of employment.  D’s pregnancy was not an incapacity that prevented her from performing the work, it was the dangerous workplace that prevented it.  That triggered her statutory right to reassignment or Preventive Withdrawal.  What prevents the performance of work is the employer’s inability to provide a safe working alternative, not the pregnancy.  To conclude otherwise negates the objectives of the Act and penalizes pregnant women for doing precisely what the legislative scheme mandates: avoiding workplace health risks during pregnancy.

Pregnancy- Related Discrimination

BACKGROUNDhuman rights3

Natalya Golovaneva came to me for guidance two weeks before her hearing before the Human Rights Tribunal of Ontario in July 2015.  She was determined to bring to light what she strongly felt was discrimination in the workplace on account of her pregnancy, which ultimately cost her a job.

She had returned to school for a second career in interior design and was thrilled to land a position at Atkinson Schroeter Design Group Inc. (“AS”), which would help her gain practical credit toward an interior design certification.

Within a few months, she began to experience severe headaches, nausea, and sensitivity to smell, which made her daily commute on the bus quite difficult, along with her attendance at the office.  She quickly learned that she was pregnant and immediately advised her boss, requesting the ability to perform some of her work from home for the short term.  In turn, her boss indicated a willingness to explore that option.

In reality the parties didn’t work out a perfect arrangement. When Natalya arrived at work one morning she was asked to attend off-site. Feeling particularly unwell that day and unsure whether the unfinished site would have washrooms, she asked whether they could send someone else to the site and have her perform work at the office.  She was sent home immediately and told that AS would call when they needed her.

Weeks went by and Natalya finally reached out again to AS, explaining that most of her symptoms had subsided and that she was ready to work.  She was told that there wasn’t work available, but that AS would be in touch.  After more time had passed, she reached out again and was told that they would be able to offer her contract work.  In the interim, Natalya’s professor from Algonquin College had advised her that AS was looking for new candidates for the same role that she held.

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22 days after being told to leave, Natalya was back to work, albeit without her regular workstation.  Within two weeks, she was fired for cause, though understood that her performance had been good.

These events were devastating to Natalya, who believed that she was being punished on account of her pregnancy, and who was worried about finding another role while pregnant.

She was dismissed on November 10, 2014 and expected to take pregnancy leave in early April 2015.  Though she looked for another position, she was unsuccessful.  She also had no unemployment insurance or pregnancy or parental leave benefits.

SEX-BASED DISCRIMINATION FOUND

In the decision, Natalya Golovaneva v. Atkinson Schroeter Design Group Inc, 2015 HRTO 1571 (http://canlii.ca/t/glzj7), the Tribunal wrote: “There is sufficient evidence to find, on the balance of probabilities that the applicant was not properly accommodated and that her pregnancy was a factor in her termination” ( para 91).  It further found that, “the reasons given for the applicant’s termination are not clear, cogent, or convincing” (para 101).

 REMEDY

Notably, at the conclusion of the hearing, AS voluntarily paid Natalya for the time that she would have worked, but for being sent home, and issued her a Record of Employment to assist her in obtaining pregnancy and parental leave benefits.

At the time of dismissal, Natalya had been working for AS for little more than three months.  In keeping with the Tribunal’s aim to make applicants whole, she was awarded:

  • Loss of income from the date of termination (November 10, 2014) to the date of her projected pregnancy leave (April 3, 2015) – nearly five months – in the amount of $14,268.10;
  • Loss of income for a three month period following her pregnancy leave in order to allow her to find alternative employment, in the amount of $8,442.99
  • In the event that her application for Employment Insurance is unsuccessful for her year on leave, the Tribunal will hear further submissions about whether the employer should cover those payments.

Natalya was also awarded $3,500 in general damages for breach of her human rights, as that is the amount that she sought in her application and the Tribunal did not agree to her proposed amendment at hearing to request more due to perceived prejudice to the employer.  Vice Chair Rheaume does note that the award that she sought was “below the range of similar cases which generally fall between $10,000 and $20,000” (para 110) and that her “reasons for determining that this award is appropriate are based entirely on the discrete facts of this case” (para 111).

Ultimately, this was a victory for Natalya who felt it was important to demonstrate what an impact that this has had on her life and to raise awareness for other pregnant women facing sex-based discrimination. It highlights that a short service employee who faces discrimination under the Code can be awarded substantial loss of income damages – eight months in this case, plus a year of paid EI leave.   It also highlights the value in seeking counsel early on when drafting an application; in this case, it resulted in a lower general damage award than the conduct actually attracted.

Remarkably, the Tribunal was incredibly efficient on this file – it went from application to decision in less than a year.

If you’ve faced pregnancy or sex-related discrimination or harassment, we are well placed to assist.

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The State Has No Place In The Bedroom Of The Nation… But Does Your Employer?

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In 1968, former Prime Minister Pierre Elliot Trudeau ushered in significant changes to the Criminal Code, which had until then criminalized homosexuality, with the following well-known pronouncement:

There is no place for the state in the bedroom of the nation. What is done in private between two adults does not concern the Criminal Code.

Although the state may be out of the business of regulating the conduct of its citizens in this private sphere, employers appear to be taking a heightened interest in what is going on in the bedrooms and private lives of their employees.

Consider the recent media storm that surrounded the firing of Jian Ghomeshi, the former CBC Radio Host, after allegations of non-consensual and unorthodox sexual practices came to light.  Or the media attention received by Shawn Simoes, the former Hydro One worker who was terminated  after shouting sexual obscenities at a TV reporter at a Toronto FC soccer game.  In the varied reaction to each of these stories, there was an element of surprise that an individual’s conduct in non-work related contexts was not only of immediate concern to their employers, but directly relevant to their continued employment.

These media stories appear to be reflective of wider trends.  Over the past year, individuals whose names have appeared on the Ashley Madison list, employees who have had intimate photos taken of them and people who engage in “non-mainstream” sexual practices have increasingly been seeking legal advice because their off-duty conduct has come to the attention of their employers and they are concerned that their employment could be terminated as a consequence.

In reviewing employment contracts in my own practice, I have noticed an increased focus on employees’ private lives.  On a number of occasions, clients have asked me to review new employment contacts because what could be described as a “morality clause” caught their attention.  These clauses tend to run along the following lines:

The employee recognizes and agrees that at all times his/her conduct and character, both in and out of the workplace, must be in accord with the high standard of moral and ethical character that all employees at Company X abide by.  Consequently, any acts of questionable moral or ethical character could cause the immediate termination of this agreement.

One of the employees who recently consulted me about such a clause pointed out that it was not so long ago that her same-sex relationship could have been captured by such a clause.  Seen in this light, there is a real possibility that including such a morality clause could have the effect not only of alienating prospective employees, but potentially also of leading to claims of discrimination.

Although this flurry of “off-duty conduct” cases may be prompting some employers to think it is necessary to include a morality clause in their standard employment contracts, the case law has, in fact, long-recognized that employers are entitled to terminate an employee for off duty conduct provided they can demonstrate that at least one of the following circumstances applies:  that the employee’s conduct harmed the employer’s reputation or product; that the impugned conduct rendered the employee unable to perform his/her duties satisfactorily; that the employee’s conduct interfered with the employer’s ability to properly carry out its function or efficiently manage its operations and/or workforce; that the employee’s behaviour lead to the refusal, reluctance or inability of other employees to work with him/her; or that the employee has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees.  These circumstances are set out in the 1967 Ontario decision of Re Millhaven Fibres and Oil, Chemical and Atomic Workers I.U. Loc 9-670, which has been followed in a number of recent “off-duty” conduct cases, including the recent decision in Canadian Union of Public Employees, Local 4400 v Toronto District School Board, 2015 CanLII 24478 (ON LA, http://canlii.ca/t/ghh50).In order to determine whether any of these circumstances apply, it will always be necessary to examine the particular facts and context at issue.

Whether you are an employee or employer, the Employment, Labour and Human Rights lawyers at Mann Lawyers would be pleased to speak to you about any off-duty conduct issue that you might have.

 

 

 

 

 

Notice for Employers: Accessibility Requirements must by completed by January 1, 2014

A message from the Accessibility Directorate of Ontario:

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Notice for Large Private and Non-Profit Organizations:

If you are a business or non-profit with 50+ employees, you have  requirements coming up in 2014. By January 1, 2014, you must:

  • Create a multi-year plan to meet your accessibility requirements.
  • Establish policies to help you achieve your accessibility goals, and tell your employees and customers about them.
  • Consider accessibility when purchasing or designing electronic kiosks.
  • Make your new websites more accessible.
  • File an accessibility report.

We are pursuing enforcement action on organizations that did not submit an accessibility compliance report.

If you are a business or non-profit with 20+ employees, your 2012 accessibility report was due to government on December 31, 2012.

This report covers the first accessibility requirements about accessible customer service to come into effect. Make sure you submit your accessibility
report
 now.

You will need to file a second compliance report in 2014.

File your report early and don’t wait until the end of the year.

 

Mayor Rob Ford and Addictions in the Workplace

Mayor Rob Ford admits to smoking crack cocaine. Read more here. (Chris Young/Canadian Press)

Mayor Rob Ford admits to smoking crack cocaine. Read more here. (Chris Young/Canadian Press)

After months of denial, last night the Mayor of Toronto, Rob Ford, admitted to using crack cocaine while holding public office.  According to a CBC article, he explained this lapse of judgment as something that he probably did while he was “in one of his drunken stupors.”  Notwithstanding the admission of  wrongdoing and the implicit admission that he had been deliberately misleading the public these past few months (Mr. Ford claims that no one asked the right question), Mr. Ford insists he is not stepping down from office.  He likewise denies he has an addiction.

As I listened to the news, I tried to imagine how many of the employers in the private sector would react to the news that one of their prominent employees was drinking to the point that they were committing such remarkable lapses of judgment as to smoke crack cocaine. Most, I would expect, would be making plans to terminate the employee.

And yet, Rob Ford’s situation highlights some of the potential pitfalls for employers dealing with employees who have issues with substance abuse.

What to do if your Employee Admits to having an Addiction

Substance abuse has been recognized under the Ontario Human Rights Code as a disability.  Under section 5 of the Code, people have a right to equal treatment with respect to employment without discrimination because of their addiction to alcohol.  Typically, where an employee has acknowledged an addiction, the right to equal treatment would require the employer to take steps to accommodate the employee up to the point of undue hardship. This might involve allowing the employee time off to attend rehab, or to attend addiction counseling meetings during the day.

What to do if your Employee Denies having an Addiction

What, then, do you do with the employee who denies they have a problem?  According to the Ontario Human Rights Commission, because of the nature of the disability, a person with an addiction may be unable to ask for assistance. As such, the expectation is that where an employer thinks that someone has a mental health disability or addiction and needs help, there is still a duty to accommodate that person. You can read more about this here.

Practically speaking, employers  face a challenging situation when they suspect an employee has an addiction.  How do you accommodate a person who refuses to acknowledge they have an addiction?  Some employers have Employee Assistance Programs which can be offered and it may be worth considering encouraging the employee to take a leave of absence in order to seek assistance.  In the end, where an employee refuses to address his or her addiction, a Court may conclude that the employer is entitled to terminate that person’s employment for cause.  This was the case in Cox v. Canadian National Railway Co., 88 C.L.L.C.,  where an employee’s long-term alcohol problem caused substandard work performance which was considered prejudicial to the employer’s business.  Visentin v. Shell Canada Ltd. 1998 involved a similar situation in which an employee, who worked in a gas field where safety procedures had to followed, was fired in part because of his alcoholism and failure to persevere in a course of treatment for his addiction.

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Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Companies will be fined under Criminal Code if found liable for worker injury or death

Metron Construction plead guilty to the deaths of 4 workers in 2009. Credit: Carlos Osorio / Toronto Star File Photo

Metron Construction plead guilty to the deaths of 4 workers in 2009. Credit: Carlos Osorio / Toronto Star File Photo

Workers safety is paramount – see the below article written by  Lisa Stam on her blog “Employment and Human Rights Law in Canada” for a breakdown of a recent decision by the Ontario Court of Appeal regarding the safety of workers:

Criminal Code Convictions for Worker Safety

Yesterday, the Ontario Court of Appeal tripled the fine awarded against a construction company that failed to ensure the safety of its workers:  R v Metron Construction.

Facts

In the late afternoon of December 24, 2009, five workers who were restoring the concrete balconies of a high rise in Toronto fell from a fourteenth floor swing stage platform. Four of the five workers died, the fifth worker who survived suffered serious permanent injuries. The sixth worker – the only one who was properly attached to a safety line – did not fall and survived uninjured.

Details of the original judgment are set out in the July 2012 trial judgment of R v Metron Construction Corporation.

Criminal Conviction – Trial Judge

The company was the first in Ontario to be charged and convicted under the new Criminal Code provisions that make it a criminal offence to direct a worker to perform a task without taking reasonable steps to prevent bodily harm to that worker. See sections 217.1, 219 and 22.1(b) of the Criminal Code for the specific provisions upon which the crown relied.

The trial judge fined the company $200,000 plus the Victim Fine Surcharge of 15% or $30,000, which was over 3 times the net earnings of the business in its last profitable year. The trial judge concluded that the penalty was “the appropriate disposition in this case and should send a clear message to all businesses of the overwhelming importance of ensuring the safety of workers whom they employ.”

Court of Appeal Triples the Fine

Yesterday, the Court of Appeal tripled the penalty, fining the company $750,000. The Crown had sought a fine of $1 million, arguing that the court should not restrict itself to the range of penalties under the Occupational Health and Safety Act. The Court agreed with the merits of that argument:

[87] Section 718.1 of the Code states that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. A range of sentences established under the OHSA regulatory regime does not reflect the gravity of the offence of criminal negligence causing death. The OHSA cases that attracted fines of between $115,000 and $450,000 and that were relied upon by the sentencing judge are of limited assistance.

The Court also concluded that the penalty for such a serious offence with such a tragic consequence must be increased to ensure deterrence:

[115] A sentence consisting of a fine of $200,000 fails to convey the need to deliver a message on the importance of worker safety. Indeed, some might treat such a fine as simply a cost of doing business. Workers employed by a corporation are entitled to expect higher standards of conduct than that exhibited by the respondent. Denunciation and deterrence should have received greater emphasis. They did not. The sentence was demonstrably unfit.

The Court of Appeal has sent a very clear message to employers: worker safety is paramount, and companies will pay dearly under the Criminal Code if found liable for worker injury or death.

-Article written by Lisa Stam.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Racist Facebook comment about co-worker: Employees can be liable for actions outside the office

Facebook logo Español: Logotipo de Facebook Fr...

Can what you say on Facebook hurt your job?  (Photo credit: Wikipedia)

There was recently a case about an employee who posted racists comments about her co-worker on her Facebook profile that we thought was interesting because it raises the question: can one employee hold a co-worker accountable for the things they say or do on social media?

On August 1, 2012, Oscar Perez-Moreno, a manager at a golf resort, intervened between an argument that his co-worker, Danielle Kulczycki, was having with another colleague.  Two days later, Danielle posted on Facebook that she had been written up at work for calling Oscar “a dirty Mexican”.  Danielle had also told other employees: “now that Mexican is not going to give me anything”.

Oscar found Danielle’s Facebook post and found her derogatory comments humiliating and damaging to his character, work and personal life. He said that they created a negative emotional, social, mental and possibly financial effect on him.  The news had even reached his son’s classmate, who asked his son if Danielle’s post referred to his father.  Oscar felt that he should not have to feel ashamed of his roots. He started an action against Danielle through the Ontario Human Rights Tribunal.

The Ontario Human Rights Code prohibits harassment in the workplace on the basis of race, origin, ancestry and citizenship. Section 10(1) defines harassment as, “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.

The Tribunal agreed with Oscar that he had been subject to discrimination with respect to employment because of race, ancestry, place of origin, citizenship and ethnic origin, and said that Danielle’s Facebook post and additional comments directly went against the Ontario Human Rights Code.

Ultimately, the Tribunal ordered that Danielle complete the Ontario Human Rights Commission’s on-line training: “Human Rights 101” within 30 days of the decision being released.

Two important employment law issues stand out in this case:

First, Oscar did not bring the complaint against their employer, the golf resort, but rather named his co-worker Danielle, an employee of the golf resort, personally.  Employees should take note that they may be held accountable for their conduct outside of the workplace, such as on Facebook and other social media sites.

Second, Oscar did not ask for monetary compensation – what he really wanted was that Danielle be fired. While the Tribunal said that it did not have the power to order that Danielle be fired (particularly because it might affect the golf resort, which was not named in the action), the Tribunal did indicate that it was not averse to the idea of awarding damages against an employee for conduct like that of Danielle’s.

To read the full decision, click here.

Colleen Hoey is an Ottawa-based lawyers practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Jason Collins “comes out”: What are employers’ obligations re sexual orientation of employees?

Jason Collins played with the Celtics and Wizards this season, his 12th in the NBA. Andrew D. Bernstein/NBAE via Getty Images

Jason Collins played with the Celtics and Wizards this season, his 12th in the NBA.
Andrew D. Bernstein/NBAE via Getty Images

Jason Collins became the first professional athlete from a major professional sports league in North America to reveal that he is gay. This provides us with a good opportunity to consider an employer’s obligations in the workplace when an employee “comes out.” Employees in Ontario are protected by the Ontario Human Rights Code and a basic protection under the Code is that no employee can be discriminated against because of his or her sexuality. An employer’s obligation also extends to preventing harassment in the workplace and ensuring a safe workplace that is free of harassment. For further information, we encourage you to review the Ontario Human Rights Tribunal’s Sexual Orientation and Human Rights Brochure.

Here’s the article from Sports Illustrated regarding the story of Jason Collins:

I’m a 34-year-old NBA center. I’m black. And I’m gay.

I didn’t set out to be the first openly gay athlete playing in a major American team sport. But since I am, I’m happy to start the conversation. I wish I wasn’t the kid in the classroom raising his hand and saying, “I’m different.” If I had my way, someone else would have already done this. Nobody has, which is why I’m raising my hand.

My journey of self-discovery and self-acknowledgement began in my hometown of Los Angeles and has taken me through two state high school championships, the NCAA Final Four and the Elite Eight, and nine playoffs in 12 NBA seasons

I’ve played for six pro teams and have appeared in two NBA Finals. Ever heard of a parlor game called Three Degrees of Jason Collins? If you’re in the league, and I haven’t been your teammate, I surely have been one of your teammates’ teammates. Or one of your teammates’ teammates’ teammates.

Now I’m a free agent, literally and figuratively. I’ve reached that enviable state in life in which I can do pretty much what I want. And what I want is to continue to play basketball. I still love the game, and I still have something to offer. My coaches and teammates recognize that. At the same time, I want to be genuine and authentic and truthful.

Why am I coming out now? Well, I started thinking about this in 2011 during the NBA player lockout. I’m a creature of routine. When the regular season ends I immediately dedicate myself to getting game ready for the opener of the next campaign in the fall. But the lockout wreaked havoc on my habits and forced me to confront who I really am and what I really want. With the season delayed, I trained and worked out. But I lacked the distraction that basketball had always provided.

The first relative I came out to was my aunt Teri, a superior court judge in San Francisco. Her reaction surprised me. “I’ve known you were gay for years,” she said. From that moment on I was comfortable in my own skin. In her presence I ignored my censor button for the first time. She gave me support. The relief I felt was a sweet release. Imagine you’re in the oven, baking. Some of us know and accept our sexuality right away and some need more time to cook. I should know — I baked for 33 years.

When I was younger I dated women. I even got engaged. I thought I had to live a certain way. I thought I needed to marry a woman and raise kids with her. I kept telling myself the sky was red, but I always knew it was blue.

I realized I needed to go public when Joe Kennedy, my old roommate at Stanford and now a Massachusetts congressman, told me he had just marched in Boston’s 2012 Gay Pride Parade. I’m seldom jealous of others, but hearing what Joe had done filled me with envy. I was proud of him for participating but angry that as a closeted gay man I couldn’t even cheer my straight friend on as a spectator. If I’d been questioned, I would have concocted half truths. What a shame to have to lie at a celebration of pride. I want to do the right thing and not hide anymore. I want to march for tolerance, acceptance and understanding. I want to take a stand and say, “Me, too.”

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Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Privacy Protection in Workplace

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Privacy in the workplace requires a balance between employer and employee rights. A recent decision of the Ontario Court of Appeal has expanded privacy protections in the workplace by creating a new privacy tort. The decision has far reaching implications for privacy in the workplace. At paragraphs 67-68 of the decision, Justice Sharpe commented:

For over one hundred years, technological change has motivated the legal protection of the individual’s right to privacy. In modern times, the pace of technological change has accelerated exponentially….It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form.

The case involved two employees, Sandra Jones and Winnie Tsige, who both worked for the Bank of Montreal at separate branches. Jones also did her primary banking at the Bank of Montreal (BMO). Tsige became involved in a relationship with Jones’ former husband. Over a four year period, Tsige accessed Jones’ personal banking information approximately 174 times, which included banking details, her date of birth, marital status and address. Tsige did not publish, distribute or record any of the information. Jones became suspicious and complained to BMO. Jones claimed damages of $70,000 against Tsige arising from an invasion of privacy and breach of fiduciary duty. The case was dismissed by a motion judge because the law in Ontario had not explicitly recognized a free standing cause of action for “breach of privacy”.

In reversing the motion judge’s decision, the Ontario Court of Appeal acknowledged that the law had to evolve and expand because Jones was without a proper remedy against a co-worker who had invaded her privacy. At paragraph 69, Justice Sharpe said:

While Tsige is apologetic and contrite, her actions were deliberate, prolonged and shocking. Any person in Jones’ position would be profoundly disturbed by the significant intrusion into her highly personal information. The discipline administered by Tsige’s employer was governed by principles of employment law and the interests of the employer and did not respond directly to the wrong that had been done to Jones. In my view, the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy.

The Court considered legislation such as the Protection of Electronic Documents Act, 2000, (“PIPEDA”) which applies to federal organizations. This legislation offered no remedy to Jones because a complaint would need to be made against BMO, not Tsige. The legislation provided no recourse to recover damages for the harm caused by the invasion of privacy.

The Court considered legislation in other provinces, such as British Columbia and Manitoba, who have specifically created a tort of invasion of privacy through privacy statutes. Other jurisdictions, including most American states, have already recognized a right of action for invasion of privacy.

The law in Ontario failed to provide any real remedy for Jones. The Court of Appeal was convinced that the time had come for Ontario’s common law to evolve and established a new right of action called “Intrusion upon Seclusion” for deliberate and significant invasions of personal privacy. The Court defined the cause of action as follows:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the invasion would be highly offensive to a reasonable person.

In determining the amount of damages, the Court of Appeal set a maximum amount of $20,000.000 in damages for cases where no actual financial loss was suffered, as was the case here. The Court considered factors such as the nature of the wrongful acts, the effect of the wrong on the Plaintiff, including embarrassment or distress, and conduct of the Defendant, including any apology that was offered. In this case, given the deliberate and repeated actions of Tsige, along with the fact that Tsige apologized and made genuine attempts to make amends, the Court awarded Jones $10,000.00.

This case will have far reaching implications on the workplace. Employers will need to carefully control access to personal information that is collected about employees and should impose strict controls on the use and access of that personal information. Employees now have the legal right to pursue damages against each other in cases where there has been a deliberate and improper use of another’s personal information.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Human Rights Complaints in the Workplace

Seventy-seven percent (77%) of all applications received by the Ontario Human Rights Tribunal in 2010-2011 arose in the workplace.[i]

Out of those workplace related applications, disability was the most cited prohibited ground of discrimination accounting for fifty-five percent (55%) of the applications.  Disability is broadly defined by the Ontario Human Rights Commission to include physical, mental and learning disabilities, mental disorders, hearing or vision disabilities, epilepsy, drug or alcohol addiction, environmental sensitivities and other conditions.

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While disability was listed on more than half of the applications to the Human Rights Tribunal last year, that was by no means the only form of discrimination applicants experienced.  Other grounds included sex (24% of applicants) race (22%) age (15%) and family status (10%).

The number of applicants citing family status as a ground of discrimination appears to be growing.  The Ontario Human Rights Code extends some protection to specific family relationships, for example, parents may not be discriminated against because they have children.  Likewise, adults caring for parents or relatives with disabilities and families headed by lesbian, gay bisexual or transgendered persons are also protected.   What this means in the context of the workplace is that in some circumstances employers may need to accommodate individuals such as a single parent with child care responsibilities.

Seven Key Things to Know about the Ontario Human Rights Tribunal

Whether you are an applicant or respondent, the following are seven key things to know about the Ontario Human Rights Tribunal:

  1. Applicants may be eligible for assistance through the Human Rights Legal Support Centre which is an independent agency funded through the Government of Ontario whose mandate is to provide assistance to individuals who have experienced discrimination.   Web site:  www.hrlsc.ca
  2. Applications must be made within one year of the incidence of alleged discrimination or the last in a series of alleged incidents.
  3. Generally speaking, respondents have thirty five (35) days to respond.
  4. Applications and Response forms are available on the internet www.hrto.ca.  These applications are detailed and the Tribunal requires information to be complete.  A guide is available on line although both applicants and respondents may want to consider getting the assistance of legal counsel as the information in these forms are key to how the HRTO proceeds with the application.
  5. Mediation is strongly encouraged by the Tribunal and according to the Associate Chair of the Human Rights Tribunal of Ontario David Wright, last year sixty percent (60%) of cases settled at or after mediation.  Even if the matter is not settled at mediation, it can be a very useful process at it gives the parties the opportunity to hear the mediators’ feedback about possible results and can lead to a narrowing of the issues in dispute.
  6. Remedies that can be awarded by the Tribunal range from damages for injury to dignity, feelings and self respect to damages for financial losses to orders concerning future compliance (for example a workplace can be ordered to implement certain human rights policies).
  7. Legal costs will not be awarded to the successful party.  Following the Supreme Court of Canada decision in Canada (Human Rights Commission) v. Canada [2011] 3. S.C.R. 471  the Tribunal may not make cost awards.  While it is possible that the Tribunal will seek legislative amendments that will allow them to award such fees in the future, for now it is important for parties to be mindful of the fact that they will have to bear the full cost of their own legal fees, even if they are successful.

[i] Presentation by David Wright, Associate Chair of the Human Rights Tribunal of Ontario to the Human Resources Professional Association, January 2012.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Employers Must Accommodate Childcare Obligations

Human rights legislation prohibits an employer from discriminating against an employee on the basis of “family status”. Does this protection require an employer to modify a work schedule or refuse a work assignment due to child care obligations? In Canadian National Railway v. Seeley, 2013 FC 117, the Federal Court of Canada confirms that family status protection offered by human rights legislation includes childcare obligations, and that employers must meaningfully consider parents requests for accommodation based on childcare obligations, or they run the risk of violating human rights legislation.

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Ms. Seeley was employed by CN as a freight train conductor and her home terminal was in Jasper, Alberta. After a lengthy layoff, CN recalled her to a position in Vancouver. Ms. Seeley was required to report to the Vancouver terminal within 15 days. Ms. Seeley advised CN that since her layoff, she had two children, one six years old in kindergarten and the other 21 months old in daycare. She also noted that her husband was a CN employee away for long hours, so she was primarily responsible for childcare responsibilities outside of business hours. She requested a 30-day extension to consider childcare options. She also asked for relief from the obligation to report to Vancouver on compassionate grounds. CN never responded, nor did it provide her with any information about the term of the recall assignment in Vancouver, or any information about housing or possible childcare options in Vancouver. CN maintained its view that under the collective agreement, Ms. Seeley was required to report to Vancouver. Although extensions of time were given to Ms. Seeley, when Ms. Seeley continued to refuse to report for duty in Vancouver, her employment was terminated.

Ms. Seeley filed a complaint with the Canadian Human Rights Commission alleging discrimination on the basis of family status. The Canadian Human Rights Tribunal (the Tribunal) allowed her complaint. The Tribunal decided that “family status” included parental childcare obligations, that there was a prima facie case of discrimination and that CN failed to properly accommodate Ms. Seeley’s request for accommodation. The Tribunal ordered CN to review its accommodation policy, reinstate Ms. Seeley to her position, pay compensation to Ms. Seeley for lost earnings and awarded Ms. Seeley additional compensation for pain and suffering and for reckless conduct by CN.

CN applied for a judicial review of the Tribunal’s findings. CN argued that the Tribunal’s broad interpretation of “family status” which equated family status with personal parenting choices was wrong. CN suggested that a broad interpretation of “family status” which included personal parenting choices would cause “disruptions and great mischief” in the workplace. The Court rejected CN’s argument for a narrow interpretation of family status, and held that childcare obligations were properly within the scope of the term family status. The Court did note that not every instance of tension or conflict between a workplace requirement and childcare would garner the protections of human rights legislation. It is only when an employment rule or condition interferes with an employee’s ability to meet a substantial parental obligation in any realistic way that he case for prima facie discrimination based on family status is met.

The Court confirms that employees an employee must have tried to reconcile family obligations with work obligations. However, in Ms. Seeley’s case, she asked CN for accommodation related to childcare on several occasions. CN did not respond to her requests seriously and failed to engage Ms. Seeley in any meaningful discussion about possible accommodations that may have been available. As a result, CN discriminated against Ms. Seeley based on family status and violated human rights legislation. Employers should always take requests for accommodation seriously, and must be flexible in developing solutions which permit employees to meet their childcare responsibilities.

Russell MacCrimmon and Colleen Hoey are Ottawa-based lawyers practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.