On November 5, 2015, James Cameron will be speaking on “Resolving Pay Equity Issues in the Provincial and Federal Contexts” at a Canadian Bar Association Labour and Employment Conference. James is speaking as part of a panel of experts on the essentials in pay equity law, including helpful strategies for resolving pay equity disputes without resorting to litigation and legal obligations with respect to pay equity. More information about the conference is available here.
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 May 12, 2015, Wassim Garzouzi presented on Human Rights at the Workplace. The panel presentation was hosted by the North Bay Chapter of the Human Resources Professional Association and included counsel from both labour and management side firms.
In Ottawa, many workers believe themselves to be “independent contractors” either because they prefer this characterization or because their employers have described them in those terms. Unfortunately, both might be incorrect and being improperly considered an independent contractor when you are actually an employee can have weighty implications for your annual tax payments and also your legal entitlements if and when the employment relationship ends.
What’s in a name?
Like our dear (albeit impulsive) Juliet, who recognized early on “that which we call a rose by any other name would smell as sweet”, the Ontario courts have long recognized that, when it comes to a potential employer-employee relationship, it is not the title one is assigned, but rather the nature of the relationship that is determinative.
To complicate matters further, the courts have created a third category between employees and independent contractors: these individuals are named “dependent contractors”. Once again, the crucial question is the nature of relationship.
Factors for determining if you are an employee or a contractor
To determine the relationship between the parties, one must first determine whether an employment relationship exists. The leading case on the first step is 671122 Ontario Ltd. V. Sagaz Industries Canada Inc., [2001] 2 SCR 983. According to that case, the central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. The Court also identified the following (non-exhaustive) factors to consider:
[i] whether the worker provides his or her own equipment,
[ii]whether the worker hires his or her own helpers,
[iii] the degree of financial risk taken by the worker,
[iv] the degree of responsibility for investment and management held by the worker, and
[v] the worker’s opportunity for profit in the performance of his or her tasks.
If those factors signal that the worker is a contractor rather than an employee, the second step in the inquiry is to determine whether the engaged party is an Independent or a Dependent contractor: McKee v. Reid’s Heritage Homes Ltd. 2009 ONCA 916 (CanLII).
In McKee, the Ontario Court of Appeal noted, “the dependent contractor category arises as a ‘carve-out’ from the non-employment category and does not affect the range of the employment category.” The Court held that the most significant factor for identifying a dependent contractor is an exclusive relationship (i.e. the contractor provides his or her services only to one business or enterprise). The Court noted that this factor is also relevant at the first stage of the test:
[T]he proper initial step is to determine whether a worker is a contractor or an employee… Under that analysis, the exclusivity of the worker is listed as a factor weighing in favour of the employee category (Belton’s first principle). The next step, required only if the first step results in a contractor conclusion, determines whether the contractor is independent or dependent, for which a worker’s exclusivity is determinative, as it demonstrates economic dependence. Therefore, exclusivity might be a “hallmark” of the dependent contractor category vis-à-vis the broader category of contractors. However, it continues also as a factor in determining whether the worker is not a contractor at all, but rather an employee, in the first-step analysis.
Implications of being an employee vs contractor
The taxation implications if CRA deems you to be an employee are significant, as are the implications to the employer, who will be then obligated to provide you with employment benefits as per the Employment Standards Act, 2000, as well as make the necessary EI and CPP contributions. If you are not an employee under the law, there may still be important consequences, depending on whether you are characterized as independent vs dependent. The most important consequence is that a “dependent contractor” is owed some form of reasonable notice of termination of employment. Click here to read more about reasonable notice.
When entering into any employment or contractual agreement, individuals are well advised to obtain independent legal advice in order to fully understand the implications of the agreement they are entering into.
[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 speaking at the Ontario Bar Association’s Annual Update on Human Rights, which will take place on Friday, May 29, 2015. Andrew’s presentation will address the Canadian Human Rights Commission’s screening process under the Canadian Human Rights Act, including recent decisions setting out the procedural protections for complainants in this process. For more information on the conference please visit the OBA’s website.
Canadian law protects workers from being treated differently based on certain prohibited grounds of discrimination. The prohibited grounds are set out in human rights legislation, such as the Canadian Human Rights Act and the Ontario Human Rights Code. They include race, ethnic origin, religion, sex, sexual orientation, disability, and family status, among others. The Ontario Code also provides explicit protection on the basis of gender identity and gender expression.
The following provides answers to some common questions about discrimination in the workplace. Questions about your particular circumstances should be reviewed with a lawyer experienced in employment and human rights matters.
It is sometimes easy to draw a link between an employer’s actions and a prohibited ground of discrimination. A policy refusing to hire workers of a particular nationality, for instance, is plainly discriminatory. But discrimination is rarely this blatant or obvious. More often we have to look at other evidence to determine whether discrimination is taking place, such as whether an employer applies its rules differently to individuals based on prohibited ground.
Differential treatment based on other factors can also be discriminatory if it has a disproportionate impact on individuals who share a characteristic protected by a prohibited ground. As noted below, workplace rules that appear to be neutral on their face can, nonetheless, be discriminatory. Drawing this link would require evidence that the employer’s conduct would have a disproportionate impact on an individual or group of individuals based on prohibited ground.
Employers often claim that there were other, non-discriminatory reasons that justify their actions, such as a decision to terminate an employee. The law in Canada, however, is clear: discrimination has taken place so long as a prohibited ground is one of the factors behind the employer’s decision. For example, if there is evidence that an employer fired an employee in part because they were uncomfortable with her same-sex relationship, it is no defence to say that the employee also had performance issues.
It is not necessary that an employer intend to discriminate against an individual or group for the behaviour to be discriminatory. Workplace rules and policies that appear to be neutral can have unintended or disproportionate impact on particular groups. Some examples based on previous decisions include:
This is because the purpose of human rights legislation is not to lay blame but to eradicate discrimination.
Human rights legislation protects against harassment based on a prohibited ground. This includes a course of conduct or comments that someone knows are unwelcome, or ought reasonably to know are unwelcome. Whether jokes constitute harassment will depend on the circumstances, but the fact that someone says they were just joking is not an excuse.
Human rights law also requires employers to take steps to ensure that all employees can participate fully in the workplace despite any limitations they may have that are linked to a prohibited ground. Human rights tribunals and courts have required employers to make physical changes to workplaces to accommodate an employee’s mobility issues. They have also required employers to provide employees with a shift schedule that accommodates their family obligations. Whether or not your employer must accommodate you in such a manner will depend on your particular situation. (Click here to read more about the employer’s duty to accommodate.)
In certain circumstances an employer can justify a rule or policy that has a discriminatory impact on employees. For instance, an employer can try to prove that it requires a particular rule that has a discriminatory impact, or that it has done as much as it can to accommodate an employee. The test, however, is high, and requires an employer to demonstrate that it cannot accommodate further without suffering “undue hardship”.
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.
Live-in caregivers sadly face the risk of abuse and exploitation due to their vulnerable position, an issue most commonly arising in the criminal or immigration context. A recent decision of the British Columbia Human Rights Tribunal, PN v FR and another, 2015 BCHRT 60 , addressed this issue through a human rights lens. The Tribunal allowed a complaint of discrimination and harassment from a live-in nanny who was subjected to horrific treatment by the family employing her. The decision highlights both the benefits and the limitations of using human rights law to redress exploitation of vulnerable workers.
The Complainant, PN, was a live-in caregiver from the Philippines who worked for the Respondents in Hong Kong for a year before moving with them to Canada. The Tribunal’s account of PN’s treatment during her employment with the Respondents is harrowing: she borrowed money to pay for the training and travel necessary to obtain the job with the Respondents, and she was paid roughly $600 per week while working more than 17 hours per day. She was demeaned and berated by the wife and sexually exploited by the husband. After a year working for the family in Hong Kong, she was pressured to accompany the family to Canada, and signed a contract agreeing to repay visa and travel costs in excess of $13,000 if she changed her mind about moving with them.
In Canada, she lived with the family in a hotel suite, sleeping on a couch with no privacy. After six weeks in which the abuse and exploitation continued, she fled, moving into a women’s shelter. At the shelter, she was able to access counselling and legal representation, and brought a complaint of discrimination under the B.C. Human Rights Code.
The Tribunal found that the Complainant had been sexually harassed and exploited by the Respondents as her employer. The Tribunal held that PN’s protected characteristics were factors in this treatment:
PN is a young mother from the Philippines without supports in Canada. This gave rise to a situation where it was possible to take unfair advantage of her. The way that MR treated her and the expectations of PN working all the time at the beck and call of the respondents have their roots in her hiring from the Philippines and the factors emphasized of youth, hard work and unlikeliness to complain, which are characteristics attributed to Filipino workers by stereotype and prejudice.
The Tribunal further found that the Respondents retaliated against PN by demanding repayment of the costs of her travel to Canada, in response to the filing of the human rights complaint.
In light of the egregious nature of the discriminatory conduct, the significant impact that it had on PN, and her vulnerable position, the Tribunal awarded $50,000 in damages.
In addition to the exceptionally high damages award, the Tribunal’s decision is significant for its analysis of the nexus between PN’s mistreatment by her employer and her protected characteristics. The Tribunal found that PN’s status (a young, Filipino mother) created an opportunity for the Respondents to take unfair advantage of her. A similar line of analysis could potentially be applied to other categories of vulnerable workers in Canada: for example, migrant agricultural workers are often foreign nationals with precarious immigration status and limited resources. Thus, this decision could point towards opportunities for other workers to seek redress under human rights legislation when they are mistreated or exploited by their employers due to their vulnerable position.
However, the case also highlights the limitations of the human rights regime as an avenue to fight against exploitation of workers. For example, the Tribunal had no authority to grant PN immigration or employment status in Canada. Moreover, a significant portion of the mistreatment suffered by PN predated her arrival in Canada, leaving the Tribunal with no jurisdiction to award a remedy regarding those events. Thus, a human rights complaint presents a promising, but imperfect, avenue to potentially seek damages against employers who have taken advantage of vulnerable workers in Canada.
Subsequent to the decision in PN, above, a similar case was decided by the Human Rights Tribunal of Ontario in OPT v Presteve Foods Ltd, 2015 HRTO 675 . In that case, two temporary foreign workers complained that they were subject to repeated, unwanted sexual advances and sexual assaults by their employer. They felt unable to refuse his sexual solicitations and advances because of threats that they would be returned to their home country. The employer was criminally charged in connection with these incidents and similar assaults on other workers, and pled guilty to some charges.
Like the PN case, this decision is remarkable for the exceptionally high damages award: the Tribunal found that the seriousness of the conduct was “unprecedented”, and that the complainants were particularly vulnerable due to their status as migrant workers. On the basis of these considerations, the Tribunal awarded compensation for injury to dignity, feelings, and self-respect in the amount of $150,000 to one of the workers, and $50,000 to the second.
Despite this significant damages award, this case further illustrates the inherent limitations of the human rights forum to address the broader issues facing foreign workers. Justicia for Migrant Workers intervened in OPT and asked the Tribunal to grant public interest remedies related to the temporary foreign worker program. The Tribunal’s response to this intervention demonstrates that many systemic remedies to the exploitation of foreign workers are beyond the scope of the human rights regime:
Finally, I was invited by the intervenor to make comment upon certain aspects of temporary foreign worker programs in Canada. As these programs fall within federal jurisdiction, it would not be appropriate for me to do so… I have commented in this Decision and in my decision in Peart v. Ontario (Attorney General), above, regarding the particular and special vulnerabilities of migrant workers in Ontario, especially in light of the closed work permit that requires them to be tied to one employer and so be under the constant threat and fear of losing their employment and being repatriated without reason and without any avenue for appeal or review. Dr. Preibisch testified that, in her opinion, it may be helpful to institute a registry for companies who employ migrant workers, such as the one that exists in Manitoba, and to take other steps identified by her to address the vulnerabilities of migrant workers. However, I do not have jurisdiction in this proceeding to make any such order. As a result, the intervenor’s request is denied.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]