On May 11, in its decision in Kirby v Correctional Services Canada, 2015 PSLREB 41, the Public Service Labour Relations and Employment Board ordered Correctional Services Canada (CSC) to pay $12,500 in back-wages and damages for pain and suffering for having discriminated against an employee on the basis of disability.

The employee, Larry Kirby, had been working as an institutional driver for the CSC when he injured his back in 2005 and became unable to perform some of the duties of his position. Initially, the CSC accommodated Mr. Kirby by reorganizing his position so that he could focus solely on duties he was medically able to perform.

In 2009, after three years of accommodating Mr. Kirby, CSC received a Health Canada assessment indicating that Mr. Kirby’s disability was permanent and that he should be accommodated in his current position on a permanent basis. Despite the CSC’s admission that there was sufficient work for Mr. Kirby, and that allowing him to perform it permanently wouldn’t cause undue hardship, CSC sent Mr. Kirby home on sick leave. The CSC alleged that it simply wasn’t its practice to create a position in which to accommodate a disabled employee.

The PSLREB Adjudicator found that that CSC could have continued to accommodate Mr. Kirby on a permanent basis in his former position with modified duties, and that the failure to do so was in violation of the Canadian Human Rights Act and the collective agreement. CSC was ordered to pay $12,500 damages for pain and suffering and wilful and reckless disregard of its obligations under the Canadian Human Rights Act.

Mr. Kirby was represented by David Yazbeck of RavenLaw.

Human rights laws in Canada do not simply prohibit employers and other organizations from taking overtly discriminatory actions against individuals. These laws, such as the Ontario Human Rights Code or the Canadian Human Rights Act, also require an employer to take positive steps to eliminate or reduce barriers in the workplace. This is known as the duty to accommodate.

The duty to accommodate recognizes that it is sometimes necessary to treat a person differently from others in order to ensure they are treated fairly in light of their individual characteristics, needs, or circumstances. The duty is aimed at removing barriers and ensuring individuals’ the ability to fully participate in the workplace and society at large.

In the employment context, the duty to accommodate often arises when an employer seeks to apply a rule or standard to all employees in a way that has negative consequences for some employees due to a prohibited ground of discrimination. (See “Am I being discriminated against at work?”  for more information on the prohibited grounds of discrimination.)

In these circumstances, the employer may be required to accommodate the employee by modifying the rule as it applies to the employee, by providing additional assistance or making changes to the physical environment or workplace culture, or even by providing an exemption for the employee.

For example:

• An employer could be required to modify dress code requirements for some employees if the dress code conflicts with an employee’s religious dress requirements.
• An employer may be required to provide employees with modified duties, specialized work equipment, or changes to their physical workspace if they cannot perform their duties for reasons such as pregnancy or disability.
• An employer could be required to allow for alternative work arrangements, such as compressed hours, flexible hours or a flexible place of work to accommodate childcare or other family obligations.

Employee Responsibilities

The nature of the accommodation required will vary according to each individual’s unique needs, which must be assessed and accommodated on an individualized basis.

While employers will sometimes be under an obligation to inquire into whether an employee needs accommodation, it is generally the responsibility of the employee to communicate his or her need for accommodation to the employer.

Employees are also required to cooperate and be reasonable during the accommodation process. This may involve providing information to help the employer understand what it needs to do to provide accommodation. But employers are entitled to only the information necessary to determine what accommodation is required.

Finally, employees may be required to accept accommodations that appropriately address their needs, even if the accommodations are not ideal or exactly what the employees had asked for.

Accommodating to the Point of Undue Hardship

The duty to accommodate is not limitless. Even where it seems like the employer may have failed to provide necessary accommodation, the employer may nonetheless justify its policy, practice or expectation.

For instance, an employer may be able to establish that accommodating an employee would cause the employer such significant hardship that it should not be required to provide accommodation. Examples of undue hardship can include changes that endanger an employee’s health and safety or the health and safety of others, or changes that impose a financial cost that is so significant that it threatens the viability of the employer’s business. That being said, the standard on the employer is high and recognizes that employer may be required to suffer some hardship in order to provide accommodation.

Conclusion

Whether an employer or other organization has fulfilled its duty to accommodate an individual – and whether it will be able to establish a defence if it has not – is a very individualized and fact-based inquiry. If you believe that an employer or service-provider has failed to accommodate you on the basis of a prohibited ground, you may have been subject to discrimination, and you should seek advice from a human rights lawyer.

We are here to help: Consult one of our experienced human rights lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a complaint of discrimination against your employer.

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

All employees have the right to work in a safe and healthy workplace, free of harassment and violence.  Harassment in the workplace often lead to a toxic working environment filled with stress and anxiety. In some cases, it may even lead to physical violence. All workplace parties, including employees, have a role to play in maintaining a safe and healthy workplace.

What is Harassment?

Workplace harassment is defined in the Occupational Health and Safety Act as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome”. Harassment on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability also violates the Ontario Human Rights Code.

While harassment is usually defined as a series of incidents, one serious incident may be sufficient to meet the definition of harassment. For example, one disrespectful remark about a person’s physical appearance would be considered rude but not necessarily harassment. However, a series of repeated rude and degrading remarks would constitute harassment.

Here are some examples of harassment:

• Making rude, degrading or offensive remarks
• Yelling at an employee or co-worker
• Excluding someone from social gatherings, isolating a person
• Withholding information
• Spreading rumors, gossip
• Requesting the performance of a task inferior to a person’s competencies that is demeaning or belittling

Here are examples of conduct that, under normal circumstances, are not harassment:

• Normal exercise of supervisory responsibilities including performance reviews, performance improvement plans, feedback, direction, counselling, provided they are conducted in a respectful manner
• A friendly gesture (i.e. a pat on the back)
• Workplace conflict

The context or circumstances in which the conduct occurred will be extremely important in determining whether the conduct is considered to be harassment.

Employer Responsibilities

Employers have a legal obligation under the Occupational Health and Safety Act to protect the health and safety of employees, including an obligation to take every reasonable precaution to protect workers from workplace violence. Specifically, the employer must establish and implement policies and procedures to help supervisors and employees recognize inappropriate behaviors and to inform them about their rights and responsibilities. The employer must also establish measures and procedures to allow employees to report incidents of workplace harassment or bullying. Reported incidents must be investigated and dealt with in a timely fashion and in accordance with the workplace harassment policy.

Employee’s Responsibilities

Employees should not engage in intimidating or harassing behavior. If they are the target of such behavior, they have a responsibility to speak up either by asking the person to stop or by reporting the incident or behavior in accordance with the procedures established by the employer. Co-workers also have a duty to report incidents of harassment in the workplace as they are a potential hazard which may lead to workplace violence.

How to Foster a Respectful Workplace

A safe and healthy workplace is a respectful workplace. When workers treat each other with respect, there are fewer negative interactions.   Employers may implement a number of strategies to foster a respectful workplace including:

• Discussions about key organizational and human values
• Training
• Policy review
• Encouraging communication
• Establishing clear consequences
• Leaders must be role models

Employees and co-workers also have a role to play in fostering a respectful workplace. They should:

• Not engage in workplace harassment or bullying
• Speak up
• Tell the person the behavior is unwanted/unacceptable
• Ask the person to stop
• Co-workers should intervene if appropriate and if they feel comfortable doing so
• Identify and report incidents to supervisors in accordance with the workplace procedures
• Support co-workers by listening
• Document details of events with detailed information in the event of an investigation including dates, times, details, names of witnesses
• DO NOT RETALIATE

Conclusion

The key to preventing harassment in the workplace is early intervention. Ignoring problems will not make them go away and often will only make them worse. Employees should not hesitate to speak up and report incidents of harassment when they occur as early and informal intervention may resolve the issue. Employees who feel intimidated or are afraid to speak up may seek assistance from co-workers, from their union or from outside legal counsel. 

We are here to help. Consult one of our experienced Employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you have been terminated from your employment.

Andrew Astritis recently spoke at a conference hosted by the Canadian Foundation for Labour Rights that examined three recent decisions from the Supreme Court of Canada on the issues of labour rights and the Canadian Charter of Rights and Freedoms. Andrew’s presentation addressed the implications of the Court’s decision in Saskatchewan Federation of Labour v Saskatchewan on essential services legislation. The conference was organized in conjunction with the Canadian Labour Congress Legal Challenges Committee and the Canadian Association of Labour Lawyers.

RavenLaw was proud to support the 4^th annual Ottawa Rape Crisis Centre Spin-A-Thon on Saturday, April 25^th. The firm provided a financial donation to support the participation of a Ravenlaw team. The ORCC is dedicated to eradication violence against women and providing support to survivors and the people who love them. All proceeds from the event will go towards ongoing short- and long-term counseling for survivors, the 24-hour Crisis Line and raising awareness in the Ottawa community.

Ravenlaw lawyers Amanda Montague-Reinholdt, Dayna Steinfeld and Morgan Rowe participated in the 7-hour Spin-a-Thon with articling students Taylor Akin and Daniel Tucker-Simmons.

May 1^st, also known as May Day or International Workers’ Day, has long stood as the date on which workers gather to celebrate the past victories of the labour movement and to advance ongoing concerns facing workers around the world. While May Day has its roots in the historical labour struggles in Canada and the United States, it has become a touchstone for worker’s rights and labour activism that remains relevant to this day.

History of May Day

In the late 19^th century, when participating in union activity was a criminal act, workers in Canada and the United States joined in collective action to protest working conditions. This struggle centred on the fight for shorter working hours without a cut in pay. At the time, working conditions were dangerous and workers often had no choice but to work 10 hours a day or longer. Workers organized and agitated to fight for improvements in their working lives.

The Struggles of Canadian Workers

In Canada, the Toronto Typographical Union went on strike in 1872 as part of the “Nine-Hour Day” movement. Although this initial job action yielded little result, a parade held a few weeks later in support of the striking workers drew over 10,000 people. Meanwhile, George Brown, the editor of the Toronto Globe and a politician, sent the police after the striking workers, resulting in 24 arrests. This only further galvanized support for the striking workers, leading to further protest. In response, Prime Minister John A. MacDonald promised to repeal the anti-trade union laws which made participating in union activity criminal, and later the same year, the Trade Unions Act was passed.

In the years following this victory for Canadian workers, parades were organized to mark the catalyst Toronto job action. Eventually, in 1894, the federal government declared Labour Day an official holiday.

The American Origins of May Day

In the United States, the struggle for an 8-hour working day came to a head on May 1, 1886 when more than 300,000 workers across the country walked off the job in peaceful protest. In Chicago, 40,000 workers went on strike. The protest continued and the number of workers swelled each day.

On May 3, police in Chicago began to use violent measures against the striking workers. This led the Chicago workers to organize in protest of the police tactics on May 4. The events of May 4 are now referred to as the “Haymarket Affair”. Towards the end of the day of peaceful protest, when only a few hundred people remained at the protest at Haymarket Square, a delegation of approximately 160 weapons-bearing police officers marched on the Square to disperse the protest. As the police approached, a bomb was thrown, although to this day it is not known who threw it. In the panic that followed, the police began firing their rifles. In the end, seven police officers and four workers died.

The response to the Haymarket Affair was swift and severe. Martial law was declared across the country. Eight men from the labour movement were tried and convicted, with seven sentenced to hang.

In 1889, an American delegate to a labour convention in Paris asked that May 1 be declared International Labour Day to mark the deaths of the men who died in the Haymarket Affair. However, when President Grover Cleveland decided to declare an official holiday in “honour of the working man” in 1894, he chose to follow the Canadian example, recognizing the first Monday in September, instead of May 1, out of concern that celebrating May Day would encourage “rabble-rousing”.

May Day Today

Today, May Day remains an important date for commemorating the gains achieved by trade unionists in the late 19^th century.

Even more importantly, however, May Day has become an international day of labour activism and protest to recognize that struggles that remain for workers today. Workers in countries across the world use this date to hold annual demonstrations advocating for advances to workers’ rights, such as increases to minimum wage, improvements to working conditions, and greater protections for the rights of vulnerable workers.

While May Day marches are sometimes contentious issues, with some governments seeking to ban them outright, May Day’s larger legacy is one of peaceful labour activism. It is a reminder of the progress that can be made when workers join together to pursue their goals collectively.

RavenLaw was proud to sponsor the 16^th Annual County of Carleton Law Association/ Great Canadian Theatre Company Lawyer Play. The annual fundraiser supports the operations of Great Canadian Theatre Company (GCTC) and benefits a charity partner, which this year was StreetSmarts. Over the last 15 years, the Lawyer Play fundraiser has raised over $1.2 million dollars for GCTC and designated charity partners. Each year, the play’s cast is composed entirely of members of Ottawa’s legal community. This year’s play, Parfumerie, ran from April 15 – 18, 2015 and featured RavenLaw lawyer Amanda Montague-Reinholdt as Miss Ritter.

On Friday, March 20, 2015, Andrew Astritis participated in an upper-year human rights seminar in the University of Ottawa’s common law program. The class addressed developments in family status accommodation, including the decision in Canada (Attorney General) v Johnstone. Andrew Raven and Andrew Astritis appeared as counsel on behalf of Ms Johnstone.

In addition to compensation for long-term disability benefits, it is possible to also claim damages for mental distress from the insurance company, as well as punitive damages to punish the company for its conduct. However, to successfully claim these amounts, the relevant legal tests must be satisfied. The Ontario Court of Appeal recently rendered a decision which clarifies the test to be applied in determining punitive and mental distress damages.

Background

In Fernandes v Penncorp Life Insurance Company, 2014 ONCA 615, the plaintiff ran a successful brick laying business in Kitchener, Ontario, when he injured his back after two separate falls. After the second fall, he never worked as a brick layer again. Mr. Fernandes was, at the time of his injury, 40 years old with an equivalent of a grade 8 education.

The trial judge awarded the plaintiff approximately $236,000 in compensation, and also awarded significant punitive and mental distress damages. Mr. Fernandes was awarded $200,000 in punitive damages because the insurance company had not “dealt with the claim fairly and in a balanced way”. He was also awarded $100,000 for mental distress damages for the failure of the insurance company to pay him what they had contracted to pay him. Notably, Mr. Fernandes had originally only sought $25,000 for these mental distress damages. Finally, Mr. Fernandes was awarded full legal costs amounting to about $212,000.

The insurance company appealed the trial judge’s decision regarding the awards for punitive and mental distress damages, as well as full indemnity costs.

Decision of the Ontario Court of Appeal

The Ontario Court of Appeal allowed the appeal in part, reducing the legal costs awarded by $30,000 and reducing the mental distress damages awarded. However, the Court upheld the finding that punitive and mental distress damages were payable in respect of Mr. Fernandes’ treatment by the insurance company.

Punitive Damages

The Court summarized the key applicable principles for a finding of punitive damages as follows:

• Punitive damages are designed to address the objectives of retribution, deterrence and denunciation, not to compensate the plaintiff.
• They are awarded only where compensatory damages are insufficient to accomplish these objectives.
• They are the exception rather than the rule.
• The impugned conduct must depart markedly from ordinary standards of decency; it is conduct that is malicious, oppressive or high-handed and that offends the court’s sense of decency.
• In addition to the breach of contract, there must be an independent actionable wrong.
• In a case of breach of an insurance contract for failure to pay insurance benefits, a breach by the insurer of its contractual duty to act in good faith constitute an independent actionable wrong.

Applying those principles, the Court of Appeal found that there was sufficient evidence to support the conclusion that punitive damages were appropriate in Mr. Fernandes’ case.

Mental Distress Damages

The Court noted that the Supreme Court of Canada in Fidler has held damages for mental distress for breach of contract may be awarded “where they are established on the evidence and shown to have been within the reasonable contemplation of the parties at the time the contract was made”. This however, does not obviate the need to prove the actual loss.

Here, both parties agreed that an objective of the insurance policy was to secure a psychological benefit and that at the time, the parties reasonably contemplated that the failure to pay benefits could cause the respondent mental distress. However, the insurance company contested the amount awarded.

The Court noted that there was no good explanation how the trial judge had arrived at the figure of $100,000, or what facts justified such an amount. It noted further that the award appeared inordinately high and entirely disproportionate, as compared to other awards and noted that the award was four (4) times greater than that requested by Mr. Fernandes. It finally noted that mental distress damages are to be compensatory and not punitive and reduced the award from $100,000 to $25,000.

Commentary

In order to successfully bring a claim for punitive damages or mental distress damages in the context of an LTD claim, it is important to advance the facts upon which those claims can be supported. The trial judge must have a factual basis to grant the amounts sought, and which will satisfy the tests as articulated in the Ontario Court of Appeal’s judgment.

When initiating a proceeding regarding a denial of long-term disability benefits, you should discuss the possibility of seeking punitive or mental distress damages with a disability benefits lawyer.

We are here to help navigate the LTD application process. Consult one of our experienced Long Term Disability lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for disability benefits or if your claim for benefits has been denied.  

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

Andrew Astritis will be presenting at the 2015 Accommodation Law Conference, hosted by Labour Law Online – Centre for Labour-Management Development. The conference, which takes place on April 22 and 23, 2015 at the Chateau Laurier in Ottawa, will address recent development in human rights and accommodation law, including a summary of recent cases in the area. More information on the conference is available here.