On October 20-21, 2020, Sean McGee presented as part of Lancaster House’s annual Ottawa Human Rights and Labour Law Conference. Sean presented as part of the panel “2020 Vision – Key Precedents from an Unprecedented Year,” which reviewed recent, important labour and human rights decisions.
On October 20, 2020, Morgan Rowe presented as part of a professional learning program presented jointly by Lancaster House and the University of Toronto. The multi-day program addressed managing and promoting mental health in the workplace. Morgan spoke as part of a panel on employers’ legal obligations to address workplace stress and other workplace mental health issues.
Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish.
As the Centre for Addiction and Mental Health (CAMH) has noted, the “COVID-19 pandemic has sparked a rise in stigma and discrimination against people who have the virus; people from countries where the virus originated or are considered hot zones; people who have travelled recently; or even those who it is believed have come in contact with someone who has the virus.”
When people face discrimination because of this stigma, what recourse can they hope for in Ontario’s human rights law? The Ontario Human Rights Commission has taken the position that the “Code ground of disability is engaged in relation to COVID-19, as it covers medical conditions or perceived medical conditions that carry significant social stigma.” This means that an employer who fires an employee because the employee is diagnosed with COVID-19 may be held responsible for human rights violations. Further, under the Code, discrimination based on perception of disability is prohibited. So, if an employer believes the employee may have COVID-19, they may also be held responsible for human rights violations.
These grounds for discrimination will hold true for all areas covered by the Code. For example, a landlord that evicts a tenant because the tenant has, or is perceived to have, COVID-19 could be found liable for the discrimination.
In a case working its way through the British Columbia Human Rights Tribunal, a harm reduction worker in the Vancouver Downtown Eastside and Surrey was evicted due to her landlord’s concern that she had been exposed to COVID-19 because of her work. The landlord argued that her claim should be dismissed because COVID-19 is not a physical disability under the Code and the claim therefore had no prospect of success.
The Tribunal refused to dismiss the complaint because the stigma of COVID-19 is such that even being perceived to have it should be protected under the ground of physical disability. The Tribunal reasoned that “this aspect of the complaint is about the alleged stigma that attaches to Covid-19, quite apart from the virus’ effects on a person who has it. In my view, the issue raised by this aspect of the complaint falls squarely within the ambit of perceived physical disability.”
Once a complainant establishes that they have been the subject of discrimination due to having, or being perceived to have, COVID-19, the burden will shift to respondents to justify the conduct for legitimate health and safety reasons and to show why they could not accommodate the complainant. General concerns about the virus will not be enough to justify discrimination. In the BC case, the Tribunal found the landlord’s arguments regarding his “genuine worries” about health to be insufficient without detailed information about his specific vulnerabilities, his understanding about COVID-19 at the time, his genuine concerns, what information he sought from the tenant, and what options he considered before eviction.
It remains to be seen how much latitude human rights tribunals will grant those who discriminate based on “genuine worries” about the virus. But, if the case from BC is any indication, those who have faced discrimination based on COVID-19 stigma need not assume that concerns related to the virus will always prevail over the right to be free from discrimination.
If you have questions or concerns about the implications of COVID-19 on your employment, please call 613-567-2901 or email info@ravenlaw.com. If you are a member of a union, please contact them directly for assistance in dealing with your workplace issue.
In a recent grievance decision between the Limestone District School Board and CUPE Local 1480, Arbitrator Jesse Nyman found that changing a bargaining unit member’s work location may eliminate a position and create a vacancy, triggering the mandatory posting provisions of a collective agreement.
In 2013, the Employer decided to close two of its secondary schools in Kingston, Ontario and to construct a new secondary school. The grievance began when the Employer announced its intention to unilaterally transfer staff from one of the old schools to the new school when it opened.
At arbitration, the Union argued that, when an old school closes, the positions at that school cease to exist and when the new school opens, vacancies will be created that must be posted and filled in accordance with the posting and seniority provisions of the parties’ collective agreements. The Employer defended its intention to simply transfer staff from one school to another by arguing that there were no vacancies created, only a change in work location, and therefore no provisions of the collective agreements applied.
In his decision, the Arbitrator agreed with the Union’s position that the shutting down of the old schools and opening of the new school was a “school closure” within the meaning of the collective agreement. The Arbitrator also accepted the Union’s argument that the collective agreements prohibited the Employer from unilaterally transferring employees from one work location to another when a school closes. Rather, the posting provisions must be applied. The Arbitrator found that this interpretation was supported by the plain language of the agreements and the parties’ past practice regarding school-to-school transfers. The grievance was therefore allowed and the Board was ordered to post the new positions in accordance with the terms of the collective agreements.
This win for the Union highlights that a change of work location, depending on the language of the collective agreement, may trigger a vacancy that requires a position to be posted. This reinforces the importance of seniority rights for workers, which are almost always a key determinant in filling vacant positions.
The Union was represented by Julia Williams of RavenLaw.
On December 8, 2020, Alison McEwen will be speaking as part of Lancaster House’s annual “Bargaining in the Broader Public Sector” conference. Alison will present as part of a panel on bargaining and negotiation priorities in the post-COVID-19 world. The panel will discuss how the pandemic has caused broader policy shifts and how these shifts are likely to affect bargaining in the public sector.
RavenLaw is pleased to announce that one of its partners, Wassim Garzouzi, has been unanimously appointed as the President of the Canadian Association of Labour Lawyers (CALL) as of July 30, 2020. CALL is a voluntary organization comprised of approximately 600 lawyers who represent the labour movement across Canada. The Association endeavours to protect and advance the interests of workers in the forums where labour law is made and administered. Wassim’s presidency marks the first time that a Black, Indigenous, or Person of Colour has been named to the CALL executive since its founding in the late 1980s.
Wassim, who was previously elected to the role Regional Vice-President (Ontario), has been a member of CALL Council since 2016.
Congratulations to Wassim on his historic appointment!
On November 14, 2020, Sean McGee was inducted as a Fellow of the College of Labour and Employment Lawyers.
The College was founded in the United States. It is an organization that promotes achievement, advancement and excellence in the practice of labour and employment law, as well as working to establish leadership, high standards of professionalism, and civility among labour and employment lawyers. The College has fellows in the United States and Canada.
On September 24, 2020, RavenLaw hosted its fall LTD conference via video conference. The conference focused on long-term disability claims in the context of post-concussion syndrome and brain injuries.
The conference was attended by many union representatives of several federal public sector unions and by non-unionized employees. A neurological physiotherapist, Amaal Mirani of Lifemark Physiotherapy, provided a medical view on the fundamentals of concussions and post-concussion syndrome, their effects on the brain, and available treatments. Two guest speakers also shared their personal stories about dealing with post-concussion syndrome in both private and public sector employment, as well as their experiences pursuing claims against their insurance companies for long-term disability benefits.
Finally, James Cameron, Kim Patenaude, and Anna Lichty of RavenLaw provided a legal perspective on litigating long-term disability claims for clients with post-concussion syndrome and other brain injuries.
Ravenlaw gratefully acknowledges the contribution of this post by articling student Claire Michela.
Regulated in Ontario since 1993, midwives are an overwhelmingly female-dominated profession represented by their Association of Midwives (AOM). Regulation was a proud moment for midwives, as it was a public recognition of their contributions to Ontario’s health care system. Recently, the Divisional Court found that the Ministry of Health (MOH)’s decision to raise the wages of midwives slowly, compared to other health care workers, amounts to systemic pay discrimination.
In 1993, the MOH and AOM worked together to develop funding principles to guide midwives’ future pay increases. Based on a third-party assessment, the AOM and MOH decided that doctors working in Community Health Centres (CHCs) had comparable levels of skill, effort, responsibility, and working conditions to Midwives, and the two groups should be paid on par.
But, starting in 2004, midwives’ wages were frozen and negotiations became strained. As similarly situated CHC doctors’ wages continued to increase, midwives’ pay was minimally increased for a number of years. As the pay gap broadened, the AOM filed a human rights complaint for gender discrimination in 2013.
In 2018, the Human Rights Tribunal of Ontario concluded that the MOH’s refusal to negotiate fair pay increases was discriminatory. This finding of discrimination meant that gender was a factor in midwives’ lower pay compared to similarly situated health care workers.
Despite the Tribunal’s decision, the MOH still could not agree on an appropriate amount to compensate midwives for years of discriminatory under-payment. The case returned to the Tribunal, which decided that the MOH must provide a 20% pay increase retroactive to 2011, human rights damages for those who signed on to the complaint, and interest to compensate midwives for lost time.
The MOH was unsatisfied and brought both Tribunal decisions to the Divisional Court for judicial review. At the Divisional Court, the MOH tried to argue that there was no pay discrimination because the midwives’ gender was not a factor in the MOH’s decision to pay midwives less than CHC doctors. However, the Court’s decision reminds the MOH that in human rights cases, intent to discriminate is never required.
The Divisional Court found the MOH’s arguments about why the Tribunal decisions were unreasonable to be “disingenuous” because they “fail to engage with the allegations of adverse gender impacts on midwives and ignore the systemic dimensions of the claim.”
Discrimination is systemic when the policies or practices of organizations result in an adverse impact for a protected group. In this case, the MOH’s pay policies were discriminatory toward midwives because their pay was raised remarkably slowly (an adverse impact) compared to similarly situated health care workers.
Systemic discrimination has been a topic of public debate recently, as the Black Lives Matter movement has gained traction around the world. The case of the pay of midwives in Ontario demonstrates how systemic discrimination is a subtle form of discrimination that can creep in over time and that it may be unintentional. However, as noted by the court, in human rights law, intention is not required for systemic discrimination to exist.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
The implementation of physical distancing measures in the face of the global COVID-19 pandemic has raised a number of issues for workers with family obligations. Many workers are now being asked to work from home on a regular basis. At the same time, schools and childcare institutions have been closed and are only in the process of reopening, with the future success of these efforts remaining uncertain. Other workers face the need to care for sick family members, preventing them from fully meeting their work obligations.
Human Rights law, which has been found to provide certain protections to allow workers to balance their family and work obligations, can play an important role in navigating these issues.
Human Rights law seeks to protect people from adverse consequences flowing from the fact that they exhibit one of the protected characteristics enumerated by the legislation. In this case, the protected characteristic is called “family status”.
The protection from discrimination on the basis of family status has been interpreted to protect people from adverse consequences in their employment flowing from their family care obligations. What is protected, however, may depend on whether your employer is federally or provincially regulated.
In Ontario, it is generally enough to show that the employer’s rule has a substantial negative effect on the parent/child or family care relationship and the responsibilities that attach to it. In assessing whether there a prima facie case of discrimination has been made out, the decision maker can look at the supports available to the claimant, but the claimant is not required to exhaust all options in attempting to self-accommodate.
Case law from the Human Rights Tribunal of Ontario provides a helpful foundation for parents juggling work and family obligations, including the obligation to assist their children with e-learning and other activities meant to replace school while schools are closed in response to COVID-19. Parents will be expected to make reasonable efforts to meet all of their obligations, but employers will also be expected to make reasonable concessions and allow for accommodations that will help parents to meet their obligations.
Employees who are federally regulated may have a more onerous test to meet. The Federal Court of Appeal has stated that an employer is only obligated to accommodate a family obligation when it arises from a “legal obligation”, as opposed to a “personal choice”. The implications of this requirement in the COVID-19 context remain to be seen, particularly given decisions from arbitrators and human rights tribunals, such as the arbitration award in SMS Equipment, indicating that additional requirements in the family status context are not appropriate.
Arbitrator Jesin recently dealt with a COVID-19-related family status grievance. The grievor, who works in Sault-St. Marie and lives in Michigan, had a unique situation brought on by COVID-19. While he was not required to self-isolate for fourteen days after entering Canada due to an exemption in the regulations, the employer had a rule that required it, effectively making it impossible to both work and see his young children.
Arbitrator Jesin held that it was unreasonable for the employer to apply its policy without accommodating the grievor’s family status. He suggested that the employer adapt the policy to fit better with the grievor’s circumstances and that it might consider other precautions such as increased PPE or restricting him from going to COVID-19 “hot spots” in the US.
This decision is notable for the fact that it does not consider the issue of whether it was the grievor’s choice to maintain his custody arrangement or take up residence in Canada. The duty to accommodate was taken as a given. The decision is an example of Ontario arbitrators’ willingness to go straight to the question of accommodation where an employee has experienced adverse consequences as a result of a work rule and their family realities.
If you are having difficulty keeping up with both work and childcare obligations, you can ask your employer to accommodate you. This may mean a later start time, more reduced hours, or other accommodation measures that may be necessary in the circumstances. If the employer refuses to provide any accommodation, though not necessarily the requested accommodation, it will have to show that not only does the requested accommodation would interfere with a bona fide occupational requirement and that it would experience undue hardship if forced to accommodate.
If you have any questions about these issues or your employer has refused to provide an accommodation it may be time to contact an employment lawyer or your union.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]