On December 11, 2015, David Yazbeck will be speaking at the Canadian Association of University Teachers (“CAUT”) Defending a Diverse Membership Forum for Senior Grievance Officers on “How to Identify and Win Systemic Discrimination Cases”. David’s session will examine how to confront the difficult problem of subtle forms of structural discrimination in the workplace. More information on the Forum is available here.

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.]

In its decision in Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10, released earlier this year, the Supreme Court of Canada examined the test applicable for cases of constructive dismissal, as well as the defences available to such a claim. The Court’s decision provides new clarity in some areas, while leaving certain questions unanswered.

Background

The Appellant, Mr. Potter, was suspended with pay from his functions as Executive Director of the New Brunswick Legal Aid Services Commission without reasons. The Commission, at the time of the suspension, was seeking the government’s permission to terminate his employment with cause. Mr. Potter filed a suit for constructive dismissal against the Commission. He lost at both the trial and appellate levels, with the lower courts rejecting his claim that the indefinite suspension without pay amounted to constructive dismissal. The Supreme Court allowed the appeal and found in Mr. Potter’s favour, although the majority and minority disagreed on the basis of this result.

Majority’s Decision

The majority held that there are two tests by which a finding of constructive dismissal can be made. In both cases, the burden of proof will be on the employee to establish on an objective basis that the test has been met.

The first test is composed of two parts:

a) Identifying an expressed or implied contractual term that has been unilaterally breached. This is an objective test; if the authority to make the change exists or consent is given, then there will be no breach; and

b) Determining whether the breach was sufficiently serious to constitute constructive dismissal. Typically, issues of compensation, work assignments or place of work are raised. All are questions of degree.

The second test is: Looking at the conduct of the employer, in light of all of the circumstances, and determining whether a reasonable person would conclude that the employer no longer intended to be bound by the terms of the contract. The employee is not required to point to a specific breach of the contract, but rather whether the course of conduct cumulatively amounts to an actual breach.

The majority applied the first test for constructive dismissal to the facts of an administrative suspension. It held that if the employer is unable to establish that the suspension is justified, then the first branch of the first test is met. The question of whether the suspension is justified includes consideration of: the duration of the suspension, whether pay is continued, whether the decision is made in good faith, and whether there is a legitimate business reason. The Court found that in most cases where the suspension is unauthorized, such a suspension will also amount to a “substantial change” such that the second branch of the first test is also met. Any exceptions would likely be for suspensions that are particularly short in duration.

In Mr. Potter’s case, the majority found that there was an indefinite suspension with no valid business reason to suspend and that it had not been made in good faith. The suspension was therefore not justified and both branches of the first test had been met.

Minority’s Decision

The minority adopted a somewhat different analysis. It noted that the whole of wrongful dismissal law is grounded in broader contract law principles relating to repudiation and anticipatory breach. It stated that constructive dismissal can be shown either by showing a significant breach going to the root of the contract or by conduct which demonstrates the employer no longer intended to be bound by the contract.

The minority found that the trial judge erred by failing to recognize that the employer can repudiate the contract of employment other than by breaching an important term of the contract. Even if the suspension on its own is not sufficiently serious to constitute repudiation, in light of all of the circumstances, the employer’s conduct had manifested an intention not to be bound by the terms of the contract in the future. The surrounding circumstances, taken as a whole, clearly demonstrated intent by the employer to repudiate the contract.

New answers and remaining questions in constructive dismissal

The Supreme Court used this opportunity to reiterate some key concepts, set out some new directions and signal areas that remain in dispute:

• Emphasis on the importance of work: The Court made several comments on the importance of an employee’s work: “The employer does not have an unfettered discretion to withhold work” (para 82). Work is considered to be “one of the most fundamental aspects in a person’s life, providing the individual with the means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his/her sense of identity, self-worth and emotional well-being” (para 83). “No employer is a liberty to withhold work from an employee either in bad faith or without justification” (para 85). As a result, a suspension, even if it is with pay, can constitute constructive dismissal.
• Deduction of pension payments: The Court clarified that an employer is not entitled to deduct pension payments from constructive dismissal damages.
• Disagreement re: evidence not known to employee: The majority and minority differed as to whether an employee can rely on evidence which exists, but is unknown to the employee at the time, to show that the employer intended to repudiate the contract. The majority found that a court must not consider evidence that was neither known to the employee nor reasonably foreseeable. The minority disagreed and found that the trial judge erred by excluding the employer letter seeking the dismissal for cause of Mr. Potter, even though he was unaware of the existence of the letter at the time: “to exclude this evidence from consideration, as I see it, would be to make the employee’s right to claim constructive dismissal depend on whether the employer succeeded in concealing his/her true state of mind. Happily, the authorities do not support that unattractive position” (para 173).
• No answer on resignation issue: The Court declined to deal with the issue of whether an unsuccessful constructive dismissal suit by the employee automatically constitutes a resignation of employment. This question is thus left unanswered for future cases.

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

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.

How do I know if my employer is discriminating against me based on a prohibited ground?

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.

What if my employer claims its actions were based on something other than a 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.

Does it matter if my employer did not intend to discriminate against me?

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:

• A workplace rule that requires all employees to rotate through Saturday shifts may discriminate against certain religious groups.
• A seemingly objective fitness standard may discriminate if it disproportionately excludes women.
• A requirement that all employees perform a particular task may discriminate against an individual whose disability prevents them from doing so.

This is because the purpose of human rights legislation is not to lay blame but to eradicate discrimination.

My manager and co-workers are making offensive comments. Does it matter if they say they are joking?

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.

Does my employer have to make changes in the workplace to accommodate my needs?

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.)

Can an employer ever justify discriminatory conduct?

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.