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.]
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:
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.
Andrew Astritis participated as a panelist in a recent webinar by the Canadian Bar Association on family status accommodation. The webinar provided an update on cases on this issue from across Canada, including a discussion of recent cases that have been decided since the Federal Court of Appeal’s decision in Canada (Attorney General) v Johnstone. For information or to purchase a copy of the recording, please visit the CBA website.
Please note that our office will be closed on Friday, April 3, 2015 and Monday, April 6, 2015.
May 1st, 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.
In the late 19th 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”.
Today, May Day remains an important date for commemorating the gains achieved by trade unionists in the late 19th 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.
Applying for long-term disability (LTD) benefits can feel like a game of cat and mouse, in which the insurer repeatedly invites claimants to appeal the denial of benefits internally. Often these internal appeals are met with further denials. What many claimants may not realize is that, while these internal appeals and denials are occurring, the time limit to bring a court action continues to run.
In Ontario, most long-term disability (LTD) policies give you two years to sue the insurer, and a few provide even less time. This time limit is known as a “limitation period”, and you may be unable to claim lost benefits in court if you permit that period to expire.
One important question is what event actually triggers the running of the limitation period. While it is impossible to predict in the abstract, the law in Ontario since December 2014 is that the two-year timeframe (or, more rarely, the one-year timeframe) begins to run the moment you receive an “unequivocal denial” of your claim.
In other words, the clock will start to run when the insurer clearly denies your claim. The fact that the insurer invites you to pursue an internal appeal does not mean that the limitation period is not running. Once your claim has been clearly denied, the lawsuit clock starts ticking, and the time limit is likely not restarted by bringing an internal appeal.
The take-away from the law on limitation periods in long-term disability (LTD) claims is that you should take action quickly after your claim is first denied. Even if you are still pursuing internal appeals, do not assume they prolong your right to sue, because the opposite is likely true.
A disability lawyer with expertise in long-term disability benefits can provide you with specialized advice, including on the issue of whether your claim has been clearly denied and your time limit for suing the insurer has started. So once you’ve received that first denial, contact a lawyer for a consultation to decide whether you should commence an action, and to learn about what other legal options might be available to you.
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.]
RavenLaw was proud to support this year’s Ten Oaks Project Camp Bowl-a-Thon. This annual event helps bring much-needed funds to the Ten Oaks Project organization and connects children and youth from LGBTQ+identities, families and communities with their supporters. This year’s event surpassed the $40,000 fundraising goal.
The Ten Oaks Project engages and connects children and youth from LGBTQ+ communities through programs and activities rooted in play.
David Yazbeck has been named an Advisor to FOLKRUM, Ottawa’s community music venue. FOLKRUM is an independent, not-for-profit organization working toward the creation of a creativity hub and music facility to serve Ottawa, Outaouais, the valley and surrounding areas.