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 its annual list of the top cases from the preceding year, Law Times News named Mounted Police Association of Ontario v Canada (Attorney General), Meredith v Canada (Attorney General), Saskatchewan Federation of Labour v Saskatchewan as three of 2015’s big cases. RavenLaw appeared before the Supreme Court of Canada in all three of these cases, representing the Public Service Alliance of Canada as an intervener in the cases.

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.

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.]

In a recent decision, the Manitoba Court of Appeal overturned a decision of the Manitoba Court of Queen’s Bench and reinstated the award of Arbitrator William Hamilton in a case involving 65 grievances related to Premium Pay. Arbitrator Hamilton had ruled that employees at the Winnipeg Airport Authority were entitled to earn both the Weekend Premium and Shift Premium for evening hours worked on the weekend.

In overturning the Court below, the Manitoba Court of Appeal concluded that the payment of the two premiums, which the arbitrator found were for different purposes, did not violate the collective agreement provisions against “pyramiding”. In reaching this conclusion, the Court of Appeal found that the Applications Judge had failed to give sufficient deference to the arbitrator and erred in concluding that paying both premiums for the same hours worked was synonymous with pyramiding. In this regard, the Court of Appeal upheld the Arbitrator’s conclusion that, as at common law, the presumption against pyramiding is rebutted when the premium payments are for different purposes.

This ruling represents an important victory for Public Service Alliance of Canada members at the Winnipeg Airport Authority, who since 2012 have been improperly denied payment of both these premiums for work performed on evenings during weekend. 

The Public Service Alliance of Canada was represented by Andrew Astritis of Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l.

Raphaelle Laframboise-Carignan and Amanda Montague-Reinholdt of RavenLaw have joined other lawyers from across the Ottawa bar and beyond to participate in the recently established Refugee Sponsorship Support Program. The Program is a great new initiative of the University of Ottawa Refugee Hub, with support from the Canadian Association of Refugee Lawyers, the Canadian Bar Association, Lifeline Syria, and the Human Rights Research and Education Centre. 

The Program was established in response to the major rise in interest in private refugee sponsorship due to the ongoing crisis in Syria. The Program offers pro bono legal services from lawyers of all areas of practice, who have been trained to offer general information and guidance to groups on the private refugee sponsorship process.  

To learn more about the Program and the services provided by the volunteer lawyers, visit www.refugeessp.ca.

The recent publicity around dress code changes for female employees at Bier Markt, a chain restaurant with locations across Ontario, is a clear reminder of how workplace policies that aim to control employees’ dress or appearance can raise red flags from a human rights perspective.

Although Bier Markt has now announced that it will be providing all staff with a unisex uniform option, its original policy, which came into effect on October 5, 2015, set up two separate dress code standards for its servers. Male servers were told they could wear jeans, a button-down shirt and running shoes. Women, however, were required to wear a short, sleeveless blue dress and heels or boots. They were also prohibited from wearing jackets, sweaters or thick tights.

CBC’s Go Public Investigation reported that more than 40 female employees filed complaints regarding the new dress code and at least one individual resigned in protest.

Discriminatory Dress Codes

The battle over discriminatory dress codes, particularly in the service industry, has been a long one.

In 1987, the Ontario Divisional Court was asked to consider whether a dress code policy requiring waitresses to wear “harem outfits” was a violation of the Human Rights Code. The majority held that the dress code was not discriminatory because, while men and women were being treated differently, the female employees did not suffer adverse consequences in terms of their employment opportunities.

In a strongly worded dissent, however, Justice White departed from the majority and found that the dress code was, in fact, discriminatory:

The test propounded by the board of inquiry at p. 38 suggests that a degree of discrimination is permissible so long as the conditions of employment for employees of one sex are not “clearly more burdensome or exploitative” than those for employees of the other sex. The Ontario Human Rights Code prohibits any discrimination in employment. There is nothing in the Code that justifies the imposition of a sexually exploitative uniform based on the finding that the uniform does not exceed “commonly accepted social norms”. The board also erred when it purported to vary the test by stating that the wearing of a uniform might be justified on the basis that it be “reasonably related to the employer’s needs”….

Fast forward to the present day, and we find that Justice White’s approach to the issue of dress codes has now been widely adopted. In the 2004 decision in Mottu v MacLeod and Barfly Nightclub, for instance, the British Columbia Human Rights Tribunal found discrimination on the basis of sex where female bar staff were required where outfits which were gender-specific and sexualized, while male bartenders and door staff were not subject to the same requirements.

Workplace Policies and Personal Appearance

Even more recently, arbitrators in the context of unionized workplace have struck down a wide variety of dress code policies as unreasonable.

In 2013, the Ottawa Hospital’s policy prohibiting large tattoos and body piercings was struck down as unreasonable. While not based on a human rights argument, the Arbitrator drew a parallel to human rights and found that the policy was based on stereotypes around tattoos and piercings, rather than genuine workplace concerns.

Similarly, in July 2015, a policy prohibiting shorts and jeans was also found to be unreasonable. The arbitrator held that there was no objective evidence that wearing jeans or shorts would have a negative impact on the employer’s image. Given that the previous dress code had allowed employees to determine what dress was appropriate and professional in the workplace, the arbitrator concluded that the new prohibition was an unjustified intrusion on the ability of employees to exercise their own good judgment.

This move towards a more robust recognition of the intrusive and often discriminatory nature of workplace dress codes suggests that employers will need to be cautious when implementing policies aimed at controlling employees’ personal appearance. Where those policies do not address genuine workplace concerns, such as health and safety, they may be subject to scrutiny, particularly where they undermine dignity or enforce more difficult dress requirements on certain groups.

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

On October 14, 2015, Dayna Steinfeld was a guest lecturer in the University of Ottawa Faculty of Law Civil Law Section’s “Introduction to the Study of Law” class. This undergraduate class provides an introduction to the Canadian legal system, beginning with the fundamentals of Canada’s legal framework and the common and civil law traditions, and then surveying the basics of different areas of law. Dayna’s guest lecture focused on contracts in the labour and employment context and how legislation provides a minimum floor of protection for workers.

On November 26, 2015, David Yazbeck will be moderating the Lancaster House conference “Prescriptions for Dealing with Doctors: Getting the information you need”. The session will provide guidance on getting necessary employee medical information while still respecting employee privacy. More information about the conference is available here.