The Federal Court of Appeal recently overturned a decision of the Federal Public Sector Labour Relations and Employment Board (“Board”), which had denied any damages to an employee who was sexually harassed and sexually assaulted in her workplace. The Court found the Board’s decision unreasonable, and criticized the Board Member’s reasons for reflecting improper stereotypes about sexual assault.

Background

The Applicant (pursuing her case under the pseudonym Jane Doe) was subject to months of verbal sexual harassment by a co-worker, culminating in an incident that the employer acknowledged was a sexual assault. She filed a grievance against her employer for failing to provide a harassment-free workplace. The employer acknowledged that the applicant had experienced sexual harassment and sexual assault, but argued that it was not liable for the co-worker’s conduct, or that the Board had no jurisdiction to award damages.

In its decision regarding the Applicant’s grievance, the Board accepted that the Applicant had experienced sexual harassment, contrary to the Canadian Human Rights Act. The Board rejected the employer’s argument that it did not have jurisdiction to award damages to the Applicant. However, the Board found that the Applicant was not entitled to any damages. Among the reasons given, the Board stated:

• The “incident” the Applicant experienced was “a vulgar prank”;
• There were steps that a “confident employee” such as the Applicant could have taken to deal with the harassment, if the work environment had truly been as difficult to cope with as she described;
• It was “unlikely, to say the least” that the “vulgar prank” caused the “extreme emotional impact” she described.

Judgment of the Federal Court of Appeal

In its judgment issued on October 10, 2018, the Federal Court of Appeal overturned the Board’s decision. The Court held that the Board had improperly denied damages to the Applicant because the sexual assault was not solely responsible for the Applicant’s psychological injury. The Court noted that it was not in dispute that the sexual assault had caused the Applicant to experience harm, and it was not necessary for it to be the sole cause of that harm. The Court conclusively held that, “once pain and suffering caused by a discriminatory practice are established, damages should follow”.

In view of the Court’s finding that the Board’s decision was unreasonable, the Court found it unnecessary to decide whether the Board Member’s decision also gave rise to a reasonable apprehension of bias. Nonetheless, the Court chose to comment on two problematic aspects of the Board Member’s reasons.

First, the Court noted that the Board never referred to the culminating incident as a sexual assault, instead calling it a “vulgar prank”. The Court noted that there may be a number of reasons for a decision-maker to choose to use certain language; however, “it is necessary to take care not to inappropriately downplay or diminish the seriousness of unacceptable conduct. The sexual assault at issue in this case could not be reasonably characterized as a “prank”.”

Second, the Court commented on the Board Member’s apparent reliance on stereotypes about how someone would react to sexual harassment or sexual assault. Noting the Supreme Court’s caution against presuming how people who experience sexual assault will behave, the Court stated:

In my view, characterizing an employee as a “confident employee who handled the work easily and had aspirations of joining the management team” (reasons, paragraph 142) similarly does not permit an inference to be made that such an employee would react in a particular way to an escalating number of sexually explicit and violent comments made by a co-worker. One employee might complain immediately to management while another might “go along to get along”. It was an error for the Board to conclude that the applicant exaggerated how difficult it was to cope with her work environment on the basis that the Board characterized the applicant to be a “confident” employee.

Equally, because there is no one typical response by victims to a sexual assault, there was no basis for the Board to infer mainly from the applicant’s responses that the co-worker’s conduct could not have caused the harm described by the applicant. This is particularly troublesome when the Board’s own concept of logic or common sense was substituted for its assessment of the actual evidence before it.

The Applicant was represented before the Federal Court of Appeal by Andrew Raven and Amanda Montague-Reinholdt of RavenLaw.

The firm gratefully acknowledges the contribution to this post by articling student Megan Fultz.

The Ontario government made good on its promise to repeal the labour and employment reforms enacted by the Liberals, when it introduced Bill 47, the Making Ontario Open for Business Act, on October 23, 2018. Bill 47 reverses most changes from the Liberal’s Fair Workplaces, Better Jobs Act, also known as Bill 148, enacted last year. Bill 47 will likely pass before the legislature breaks on December 13, 2018.  If Bill 47 passes, it will take effect on January 1, 2019.

Bill 148 represented a significant, if imperfect, effort to advance workers’ rights. Bill 47 unquestionably tips the scales back in the other direction, favouring the protection and rights of employers. It also reduces the amount of oversight in the enforcement of employment standards and the consequences for breaching the Ontario Labour Relations Act.

Overview of major changes in Bill 47

The changes in Bill 47 are numerous and they universally favour employers at the expense of workers. The major changes include: 

Minimum Wage Frozen – Under Bill 148, minimum wage was set to increase to $15.00 per hour in January, 2019. Bill 47 will freeze it at $14.00, with no increase until October 1, 2020, at which time it will only increase at the rate of inflation.

Reduced Fines for Employers – Bill 47 reverses the increased fines for offences under the Labour Relations Act enacted in Bill 148. Fines are going down to $2,000 for individuals, reduced from $5,000, and to $25,000 for organizations, down from $100,000.

No More Paid Emergency Leave – Under Bill 148, all Ontario workers were entitled to two paid and eight unpaid days of Personal Emergency Leave. These ten days of leave allowed workers to take time for either their own urgent needs, or to care for the urgent needs of their loved ones. Bill 47 eliminates Personal Emergency Leave and replaces it with eight days, all unpaid, under three specific categories: sick leave (three days), family responsibility leave (three days), and bereavement leave (two days).

No Equal Pay for Equal Work – Bill 148 introduced equal pay for equal work, meaning employees performing the same work must be paid the same, regardless of whether they were full-time, part-time, casual, and temporary workers. Bill 47 will repeal this protection and allow for some workers to be paid less solely on the basis of their employment status. Bill 47 also removes certain protections for workers who believe they are experiencing wage discrimination on the basis of sex. Under Bill 148, workers could request a review of their pay, requiring employers to either provide a written explanation of how the worker’s pay is compliant with wage discrimination laws, or adjust their pay. These requirements and protections will be repealed under Bill 47.

Burden on Workers to Prove Employee Status – Bill 148 shifted the burden to the employer when there is a dispute about whether a worker is an employee or an independent contractor: employers had to prove that the worker was not an employee. Bill 47 shifts the burden back to the employee to prove that they are an employee and not an independent contractor.

Remedial Certification No Longer Mandatory – Under Bill 148, if a union was prevented from obtaining enough votes to certify because of an employer’s influence and interference with its employees, the Ontario Labour Relations Board was required to certify the union as a remedy to that interference. Under Bill 47, remedial certification is no longer required; instead, the Board has to consider whether to certify the union or merely order a secret ballot vote.

This list represents just some of the regressive changes made by Bill 47 that will impact Ontario workers. Bill 47 also introduces changes that will affect workers’ scheduling and “on call” rights, public holiday pay, card check certification, and return-to-work rights, among others.

Dark days for workers’ rights

Bill 47 represents a significant step backwards from the progress made by Bill 148. The Ontario government has framed these changes as aimed at improving the economy and helping businesses, but the scope of the changes reveals the true aim to be reducing or removing protections for workers. Employers will have far fewer obligations to their employees, and will even face reduced penalties if they disregard the modest obligations they still have. Bill 47 looks less like making Ontario “open for business”, and more like “open season” on Ontario’s work force.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

Ravenlaw is proud to sponsor After the Storm a relief and recovery concert organized by CUPE 503 for those affected by the tornadoes that impacted the Ottawa/Gatineau area. The Tornado Relief Concert is free for all and will raise money for the victims of the September tornado and the long-term recovery effort required. The concert will be held on Saturday, November 10th at the TD Place arena. For more information on how to attend click here.

Ask most healthy working people to name their greatest financial asset, and more than likely, they will say ‘my house.’ A fair response. After all, maintaining and paying for a home is where a significant chunk of our income and time is spent. 

But for most healthy working people, it’s the wrong answer: A far greater financial asset is their ability to earn an income over the course of their career, often a long period of time. The consequences of not being able to do so can be financially devastating.

Most people have only a hazy understanding of the financial consequences of being unable to continue working due to mental or physical illness. We know that during our working lives, there is always the possibility of being laid off from one job and having to find another, but if chronic illness or a serious accident prevents us from working at all, the option of finding another job disappears. In fact, there are limited options for those employees; one of the options is Long Term Disability (LTD). 

As employment lawyers, we understand that few people think about the possibility of their working lives coming to a premature end. When it does happen, the questions are inevitably many. Here are answers to just a few basic LTD questions:  

How Do You Obtain Long Term Disability Benefits?

Most people who have Long Term Disability benefits have them through their employery, and typically, the cost of these benefits is shared between the employee and the employer. Having the employer pay for some (or all) of the benefits, while superficially attractive, also results in the benefit being taxable. Meaning if you ever receive money under the LTD policy, you will have to pay tax on the amounts you receive.

If, on the other hand, you pay for the full cost of the LTD policy, any money received would be non-taxable. Having a non-taxable benefit can make a huge difference in the event you need to rely on LTD benefits, as you are often receiving only a portion of your prior income and may be struggling to live off significantly reduced income. 

It is important to explore with your employer or your union whether your salary can be increased by the value of the employer contribution, and then you can make the full payment for the  LTD policy.

Another option is to buy full LTD insurance yourself if your employer does not offer this benefit as part of your remuneration package. 

Do You Have Sufficient Long Term Disability Benefits?

The answer to this question will depend on a variety of factors, including age, savings, cost of benefits, number of dependents, etc. It is also probable that the answer will change over time as your personal circumstances change. Given the importance of the benefit, should you be unable to work, it is important to seek advice from an LTD insurance expert.

What Happens To Your Long Term Disability Benefit If You Lose Your Job?

It is extremely common for people to lose their LTD benefits shortly after they lose their jobs. Termination letters typically contain provisions ending Long Term Disability benefits after the statutory notice period found in the Employment Standards Act. This period is often a matter of weeks rather than months.

After this period, former employees are frequently left with no LTD benefits while they look for other work. Insurers will often not sell LTD insurance to the unemployed, and that compounds an already stressful situation.

One way to avoid this scenario is to purchase LTD insurance independently. (See next question).   

How Can You Protect Yourself, such that Long Term Disability Benefits Are Not Lost?

One method of ensuring LTD protection in the face of uncertain job security is to have your own LTD benefits policy that you have arranged for outside of your employer. That way, should you lose your job, your coverage continues. This type of arrangement will be particularly important for those with precarious employment.

Own Occupation Disability Insurance – The Gold Standard, but what is it?

Most LTD policies provide for “own occupation” disability insurance coverage for a period of two years. This means that should you be unable to perform the essential functions of your own job, you would meet the definition of disability and should receive benefits.

After that initial period (usually two years), in most insurance policies, the coverage definition changes to “any occupation.” This means that even if you continue to be unable to complete the essential functions of your own job, say as a teacher, if you can do any work, you may no longer be entitled to benefits. If this other occupation is something for which the employee is suitable by reason of their background, the insurer can insist they take the job or risk having their benefits cut off.

It is possible to independently purchase “own occupation” disability insurance coverage at an increased cost. This will provide you with LTD benefits, should you be unable to perform the essential duties of your own occupation. It will typically last until age 65.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

In 2017, the Public Servants Disclosure Protection Tribunal rendered its first decision on the merits of a reprisal complaint under the Public Servants Disclosure Protection Act. As the first decision on the merits, a number of critical issues of legal principle were raised by the parties. Ultimately, the Tribunal ruled on several of these issues, a ruling which had significant implications for future Tribunal cases. In particular, the Tribunal concluded:

• Intent, in the sense of vengeance, must be proven in order to establish reprisal;

• Minor or insignificant reprisals were not protected by the Act, effectively imposing a de minimus standard; and

• An employee cannot receive reprisal protection for subsequent disclosures of the same wrongdoing.

In addition to these legal rulings, the Tribunal dismissed the complaint on the facts, concluding that the employee had not proven that she experienced negative effects as a result of the alleged reprisal measures.

The employee sought judicial review of the Tribunal decision. In a judgment rendered this month, the Federal Court of Appeal dismissed the application, concluding that the Tribunal’s findings that there was no negative effect on the employee could not be set aside.

Counsel had urged the Court to address the legal issues given their impact upon other cases. The Court declined to do so, because this would take it “too far into a law-making role”. In spite of this, the Court went on to comment upon the Tribunal’s analysis as follows:

“But we wish to add that many of the legal conclusions reached by the Tribunal in this case warrant critical scrutiny. As a matter of administrative law, other members of the Tribunal are not bound by the legal conclusions reached here… If the particular case requires it, and until this Court settles the matter, a member of the Tribunal is free to conduct her or his own analysis and reach different legal conclusions.”

By this language, it would appear that the Court has signaled that the reasoning of the Tribunal on these legal issues need not be followed in the future, a conclusion which represents significant progress for complainants who are victims of reprisal.

The employee in this matter was represented by David Yazbeck and Michael Fisher of our firm.

On December 4, 2018, Lancaster House presented its 2018 Bargaining in the Broader Public Sector Conference at the Sheraton Centre Toronto Hotel. The conference tackled current issues facing unions and their members when dealing with collective bargaining in the broader public sector, including such key issues as the role of politics and the Charter at the bargaining table, the changing face of the workforce, and the future of work.

David Yazbeck was pleased to be selected as the union-side co-chair for this conference and to assist in organizing the conference and moderating various panels during the day.

Please note our office will be closed from December 22, 2018 until January 1, 2019. We will reopen for regular business hours on Wednesday, January 2, 2019 at 8:30 am.

Warmest wishes for a happy holiday season and a wonderful new year.

On November 6 and 7, 2018, Morgan Rowe presented to University of Ottawa students as part of two panels on careers in labour law. Morgan spoke specifically about her experiences working on behalf of unions and individual employees. Morgan would like to thank Professor Ravi Malhotra and the Employment and Labour Law Student Society for inviting her to participate on these panels.

On March 8, 2018, Julia Williams participated in a panel discussion at the University of Ottawa on “Challenges and Opportunities: Racialized Women Working in the Law.” The panel provided an opportunity to examine the challenges faced by women of diverse backgrounds and share insights into overcoming these challenges. Julia would like to thank the “Law Needs Feminism Because” group for inviting her to participate in this important social justice event.

The full list of student groups that collaborated to bring the panel together include:

• Asian Law Students’ Association
• South Asian Women in the Law
• Black Law Students’ Association
• Women’s Legal Mentorship Program
• Latin American Law Students’ Association
• Law Needs Feminism Because
• Middle Eastern Law Students’ Association
• South Asian Law Students’ Association

On November 28, 2017, RavenLaw appeared before the Supreme Court of Canada to argue in support of a challenge under the Canadian Human Rights Act to discriminatory provisions of the Indian Act registration scheme.

RavenLaw appeared on behalf of the intervener, the Public Service Alliance of Canada, one of 14 organizations that intervened to argue in favour of a broad and purposive approach to interpreting human rights laws. Particularly, PSAC intervened to argue that the Canadian Human Rights Act should allow individuals to bring human rights challenges against government programs and benefits schemes, even where the discrimination in the program or benefit arises because of legislation.

Andrew Raven, Andrew Astritis, and Morgan Rowe from RavenLaw appeared on behalf of PSAC.