On March 10, 2016, Kim Patenaude will be presenting a bilingual advanced seminar on the Duty to Accommodate at Health Canada on behalf of REACH Canada. REACH has offered lawyer referrals and public education for individuals living with disabilities since 1981. Ravenlaw is a long-term, proud supporter of REACH and its mission to improve the quality of life for citizens with disabilities.
In a recent decision, an adjudicator of the Public Service Labour Relations and Employment Board found that the Parole Board of Canada failed to accommodate an employee’s disability, contrary to the Canadian Human Rights Act. This decision provides important confirmation that employees with mental health concerns must be accommodated by their employers up to the point of undue hardship.
Background
A grievance was filed by Line Emond, a statistics and data quality manager at the Parole Board of Canada, due to emotional stress caused by her fear of a co-worker. The medical evidence presented at the hearing revealed that the grievor’s fear was real and the emotional stress caused by the co-worker’s presence affected her ability to work. She had requested accommodation from her employer permitting her to work anywhere except in the same building as her co-worker. While the employer offered to move her to an office on a separate floor with additional security, the grievor’s treating physicians agreed that the employer’s proposal was insufficient as the grievor would continue to feel unsafe. The medical evidence demonstrated that this emotional stress affected her memory, concentration and her ability to function normally.
Board’s Decision
In a decision rendered on January 25, 2016, Adjudicator Linda Gobeil allowed Ms. Emond’s grievance. The Adjudicator found that the grievor suffered from a disability or incapacity: the emotional stress suffered by the employee amounted to a disability that triggered the employer’s duty to accommodate. The Adjudicator further found that the employer failed in its duty to provide reasonable accommodation. The Adjudicator found that the employer’s proposed solution was not a reasonable one, and it was reasonable to expect the employer to be able to locate a workspace in another location for the employee. The employer was ordered to find a workspace in another building for Ms. Emond, and Ms. Emond also received compensation for the lost wages and benefits during her time on long-term disability.
As counsel for the grievor, Kim Patenaude, of RavenLaw, told the Ottawa Citizen, the Adjudicator’s decision “has the potential to broaden an employer’s responsibility to provide accommodation” and is a win for employees with disabilities, especially those with mental health concerns.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
March 8th is International Women’s Day, a day that marks the social, economic, cultural and political achievements of women. Not just a celebration, International Women’s Day is a call to action for all the work that remains to be done. At a time when recent reports reveal that Canadian women earn only 72% of men’s wages for similar work, it is important to reflect on the labour roots of International Women’s Day and the struggles that remain for working women in Canada and around the world.
History of International Women’s Day
The origins of International Women’s Day can be traced back to the early 1900s. At that time, work was increasingly industrialized, leading to dangerous and unfair working conditions. In response, women began organizing to demand better working conditions, including shorter working hours and better pay. In 1908, 15,000 female garment workers marched through New York City to call for these improvements. This march would inspire the International Ladies Garment Workers’ Union to stage a strike to protest working conditions in the city’s sweatshops. Although this initial strike was short-lived, it led to a General Strike, which lasted for three months and brought important gains for many workers.
In 1909, the Socialist Party of America, a social-democratic political party in the United States, designated February 28 as National Women’s Day in honour of the garment workers’ strike.
At the same time, European women were struggling to achieve greater fairness and protections in the workplace. In 1910, a second International Conference of Working Women was held in Copenhagen, with over 100 women from 17 countries in attendance, including union leaders and the first 3 women elected to the Finnish Parliament. At this Conference, Clara Zetkin, leader of the Women’s Office of the German Social Democratic Party, tabled a proposal for an annual woman’s day – a day for women to collectively raise their demands for better working conditions, suffrage and political representation. The proposal was unanimously approved.
As a result of Zetkin’s efforts, the first International Women’s Day was observed on March 19, 1911 in Austria, Denmark, Germany and Switzerland. More than one million women and men attended rallies to mark the day, raising awareness of issues of women’s rights to work, to vocational training and discrimination in the workplace, as well as the right to vote and hold political office. Sadly, only a week after the first International Women’s Day, a deadly fire at the Triangle Shirtwaist Factory in New York City killed more than 140 working women. This tragedy brought greater attention to the issues of workplace conditions that the garment workers had protested in 1908.
International Women’s Day became increasingly prominent in Europe and became a vehicle for the peace movement during World War I. Protesting the war, Russian women observed the day for the first time in 1913. In 1914, women around Europe held solidarity rallies on March 8. In 1917, Russian women selected March 8 as a day of protest and held a strike for “Bread and Peace”. The women continued to strike for 4 days and were joined by other protests and strikes, contributing to the forced abdication of Czar Nicholas II. The Provisional Government then granted Russian women the right to vote. March 8 was later declared a national Soviet holiday by Lenin.
In 1975, International Women’s Year, the United Nations officially sanctioned International Women’s Day and began celebrating International Women’s Day on March 8 of every year. International Women’s Day is now an official holiday in many countries around the world.
International Women’s Day – Today and in the Future
Nowadays, International Women’s Day is a day for celebrating the achievements of women. The history of International Women’s Day reminds us that these achievements include the role of women in advancing the rights of workers around the world. Women have played a significant role in the labour movement, and the radical action of working women has led to important social change.
March 8th is also a day to reflect on the work yet to be done. In the workplace alone, issues of pay inequity, the disproportionate burden of childcare, gender-based job discrimination, and sexual harassment continue to impact Canadian women. Globally, women face significant inequalities in all areas of their lives. For example, harkening back to the roots of International Women’s Day in the activism of New York’s garment workers in 1908, the day was marked in Bangladesh this year by garment workers protesting for safe working conditions, equal pay and an end to violence against women.
All workers, women and men, in Canada and abroad, should use this day to reflect on the ways in which women’s rights and workers’ rights intersect, and how both movements can work in concert to advance the cause of equality.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
Please note that our office will be closed on Friday, March 25, 2016 and Monday, March 28, 2016 in recognition of the Easter holiday.
The partners of Raven, Cameron, Ballantyne & Yazbeck are pleased to announce the selection of the successful 2016 Raven, Cameron, Ballantyne & Yazbeck Human Rights/Social Justice Internship candidates, Max Halparin and Samantha Dubord. Both Max and Samantha are in the second year of their studies at the University of Ottawa, Faculty of Law. We congratulate Max and Samantha on their achievement and look forward to working with them this summer when the internship takes place.
This is the eleventh consecutive year that our firm has offered this Human Rights/Social Justice internship. Every summer, we provide paid employment to a student from the University of Ottawa Law School with placements in our firm and two social justice or human rights organizations. This year, Samantha and Max will be working with the National Educational Association of Disabled Students and a joint venture with the Canadian Council for Refugees, South Ottawa Legal Clinic and the University of Ottawa. Previous placements for our internship have included the Workers’ History Museum, International Development Research Centre, EGALE Canada, Amnesty International, the Ottawa Coalition to End Violence Against Women, the Council of Canadians, REACH Canada, and many other organizations which provide significant contributions in the areas of social justice and human rights.
On March 29, 2016, David Yazbeck will be speaking on “Blowing a Whistle at Work: Legal Rights and Obligations” at the Insight Information Workplace Rights & Accommodations Forum 2016. The Forum will provide a guideline for handling complicated workplace accommodations and rights issues through in-depth analysis into case law and best practices.
David’s presentation will examine whistleblowing, including when an employee can blow the whistle, key elements of a whistleblower policy, when an employee can “go public” and the legislation that exists to facilitate whistleblowing or provide protection in the case of reprisal for whistleblowing.
In a decision rendered on March 14, 2016, the Human Rights Tribunal of Ontario rejected an employer’s request to have a Human Rights Code complaint dismissed on the basis that the employee had failed to establish the existence of a disability.
The adjudicator found that there was no requirement that medical conditions be permanent or persistent in order to qualify as disabilities within the meaning of the Code, specifically declining to follow prior case law from the Human Rights Tribunal which had established these requirements. The adjudicator also rejected the employer’s argument that a disability had to be ongoing at the time of the adverse treatment in order to be considered discrimination. Instead, the adjudicator observed: “The protections under the Code would have little meaning if an employer could terminate an employee because of disability-related absences provided the disability no longer exists at the time of termination.”
The employee was represented by Morgan Rowe of RavenLaw.
In a landmark ruling, the Canadian Human Rights Tribunal has found that the federal government discriminates against First Nations children by chronically underfunding child and family services on reserve. The First Nations Child and Family Caring Society decision has significant implications, both for First Nations children and communities, and for broader human rights principles.
Background
The First Nations Child and Family Services Program is intended to provide culturally appropriate child welfare services to families on reserve that are reasonably comparable to the services available off reserve. This Program is managed by Aboriginal Affairs and Northern Development Canada (recently renamed Indigenous and Northern Affairs Canada). The non-profit First Nations Child and Family Caring Society and the Assembly of First Nations filed the complaint under section 5 of the Canadian Human Rights Act. Section 5 prohibits discrimination in the provision of services customarily available to the public. To succeed, the complainants had to prove: that the federal program was a service; that First Nations were adversely impacted by the program; and that race and national or ethnic origin were a factor in the adverse impacts.
Tribunal’s Decision
In its decision rendered on January 26, 2016, the Tribunal upheld the complaint. According to the Tribunal, the Program fails to ensure First Nations child welfare agencies who deliver the services receive sufficient funding to meet provincial standards, which focus on keeping families together, or specific community needs. By providing insufficient funding for preventative measures, the program has, in effect, created an incentive for the agencies to remove children from their families.
The Tribunal further found that the department had known for years that the Program denied adequate services to many First Nations, but neglected to enact reforms. Far from achieving its goals, the Program has reinforced the intergenerational trauma of the Residential School system. As the Tribunal explained, “the fate and future of many First Nations children is still being determined by the government, whether it is through the application of restrictive and inadequate funding formulas or through bilateral agreements with the provinces.”
Aboriginal Affairs argued the Tribunal had no jurisdiction to hear the complaint, because child welfare services are a provincial responsibility and, in its view, the federal involvement in program funding was simply a social policy decision and not out of obligation. Rejecting those arguments, the Tribunal found that Aboriginal Affairs provides a service under the Act by funding child and family services on reserve. In doing so, the federal government exerts significant control over the provision of these services on reserve, even if it does not deliver the services.
Furthermore, Aboriginal Affairs can hardly minimize its role in the provision of child welfare services on reserve in light of the federal government’s constitutional responsibility towards aboriginal peoples. Instead of legislating in this area, the federal government has opted for a programming and funding approach. Aboriginal Affairs “should not be allowed to evade its responsibility to First Nations children and families residing on reserve by delegating the implementation of child and family services” to First Nations agencies or provincial governments.
The Tribunal found that race and national or ethnic origin were a factor in the adverse impacts of the Program. This was unsurprising since the service targeted First Nations on reserve. In providing the service, Aboriginal Affairs was, to say the least, obliged to ensure it did not perpetuate the historical disadvantages suffered by First Nations, the legacy of colonialism and the country’s attempt to assimilate indigenous peoples.
Discussion
Filed in 2007, this complaint has had a long history. In 2011, the former chairperson of the Tribunal dismissed the complaint on the basis that there needed to be a comparator group and, as the federal government provided child welfare to no other groups, there was no chance of success. The Tribunal’s decision was set aside by the Federal Court, which found that a comparator group was not a prerequisite for a finding of discrimination. Upholding that judgment, the Federal Court of Appeal affirmed that the focus of the Tribunal’s inquiry should not have been whether there were comparators, but rather simply whether there was discrimination.
After the complaint was returned to the Tribunal, it was amended to include an allegation of retaliation by Aboriginal Affairs against the Caring Society’s Executive Director for having filed the complaint. A newly composed panel of the Tribunal substantiated the allegation in a separate decision.
The Tribunal’s decision in First Nations Child and Family Caring Society on the merits of the complaint may have implications on human rights jurisprudence more generally. Relying upon Charter equality jurisprudence and Canada’s international legal commitments, the Tribunal effectively imposed a positive obligation on the federal government to reform its First Nations child welfare program to ensure substantive equality for First Nations children and families living on reserve. In other words, the Tribunal has required the federal government to ensure its social program actually fulfills its ameliorative purpose or, at the very least, does not make things worse for the recipients of the benefit.
More specifically, the case may have broader application where the federal government is similarly involved in the provision of other services to First Nations communities. For example, Public Safety Canada provides significant funding to First Nations police services under its First Nations Policing Program. First Nations police services have reportedly struggled to provide adequate services to their communities due to insufficient funding, an issue identified in the Ontario Ipperwash Inquiry, which found that self-administered police services were drastically underfunded. This issue was also addressed in a recent award by an Ontario arbitrator. Time will tell whether the Tribunal’s analysis in the First Nations Child and Family Caring Society decision is applied to these other contexts.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
Employment lawyers are frequently asked to predict the length of reasonable notice that a court would award to an employee who has been terminated without cause. There is no set formula that applies to all cases, but lawyers have historically relied on the fact that, barring exceptional circumstances, courts generally don’t award more than 24 months’ notice. However, in Keenan v Canac Kitchens Ltd, the Ontario Court of Appeal recently cast doubt on that assumption by upholding an award of 26 months of reasonable notice, in a case without any identified exceptional circumstances.
Background
This was a claim by two very long-service employees. Mr. Keenan worked for Canac Kitchens since 1976, and his wife joined him in that work in 1983. Both plaintiffs performed supervisory roles for many years, and were the “face” of the company, acting as Canac’s representatives. From the start of their employment until 2007, they worked exclusively for Canac. As work slowed down, in 2007, they began to also perform work for a competitor. In 2009, they were both let go.
There were two key issues in the action for wrongful dismissal: whether the Keenans were dependent or independent contractors, and, if they were dependent contractors, what period of reasonable notice were they entitled to upon termination. On the first issue, the trial judge found that the Keenans met all the criteria to be considered dependent contractors, and were therefore entitled to reasonable notice. (For more information on dependent contractors, see: “Are you an employee, independent contractor or dependent contractor?”) On the second issue, the trial judge held that 26 months’ notice was reasonable in the circumstances, and therefore awarded $125,000 to the Keenans. Canac Kitchens appealed on both issues.
Ontario Court of Appeal’s Judgment
In its judgment rendered on January 26, 2016, the Ontario Court of Appeal upheld both aspects of the trial judgment. Regarding the length of reasonable notice, the Court held that there was no basis to interfere with the trial judge’s award, given the relevant factors for calculating reasonable notice:
Lawrence Keenan and Marilyn Keenan worked for Canac for approximately 32 and 25 years respectively. Together, their average length of service was 28.5 years. They were 63 and 61 years of age at the time of termination. They held supervisory, responsible positions in which they oversaw the installation of Canac’s products and met with Canac’s customers as its representatives. For over a generation, they were Canac’s public face to the outside world. Over a period of approximately thirty years – the entirety of their working lives – the Keenans’ income had come from Canac and they relied on that income to support themselves and their family. Even during the approximately two years that they provided some services to Cartier, a “substantial majority” of the Keenans’ work continued to be done for Canac. These circumstances justify an award in excess of 24 months and I see nothing wrong in the trial judge’s finding that 26 months’ notice was reasonable.
Opening the door for longer periods of reasonable notice?
Conventional wisdom in employment law has long been that employees are unlikely to receive awards of reasonable notice in excess of 24 months. By upholding a judgment of 26 months’ notice, the Court of Appeal has arguably opened the door for larger awards in wrongful dismissals involving older, long-service employees. This judgment could have significant implications for future cases, particularly in light of the aging workforce in Canada. Employees whose circumstances support it can now potentially pursue claims beyond what was previously thought to be a ‘ceiling’ of 24 months’ notice. Employment lawyers and workers’ advocates will closely watch this development in future cases, to determine whether this is part of a larger trend towards longer notice periods.
For more information about calculating reasonable notice, see: “What is reasonable notice?”
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
On February 2, 2016, James Cameron will be speaking at the Ontario Bar Association’s INSTITUTE conference on Privacy and the Workplace: The Scope and Limitations of Employee Privacy on the topic of “To what degree are employees entitled to privacy outside of business hours?”. The conference will explore where privacy fits in the employment relationship today, examining the implications of technology advancements on employee privacy and whether and how employers can take steps to mitigate employee conduct that takes away from business activities. More information about the conference is available here.