Category Archives: Resources

Human Rights Tribunal Accepts that Medical Conditions that are not Permanent are Protected under the Human Rights Code

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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.

RavenLaw Involved in 3 of the “Top Cases of 2015”

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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.

CHRT upholds complaint of discrimination against First Nations children

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In a landmark ruling, the Canadian Human Rights Tribunal has found that the federal government discriminates against First Nations children by chronically underfunding child and family services on reserve. The First Nations Child and Family Caring Society decision has significant implications, both for First Nations children and communities, and for broader human rights principles.

Background

The First Nations Child and Family Services Program is intended to provide culturally appropriate child welfare services to families on reserve that are reasonably comparable to the services available off reserve. This Program is managed by Aboriginal Affairs and Northern Development Canada (recently renamed Indigenous and Northern Affairs Canada). The non-profit First Nations Child and Family Caring Society and the Assembly of First Nations filed the complaint under section 5 of the Canadian Human Rights Act. Section 5 prohibits discrimination in the provision of services customarily available to the public. To succeed, the complainants had to prove: that the federal program was a service; that First Nations were adversely impacted by the program; and that race and national or ethnic origin were a factor in the adverse impacts.

Tribunal’s Decision

In its decision rendered on January 26, 2016, the Tribunal upheld the complaint. According to the Tribunal, the Program fails to ensure First Nations child welfare agencies who deliver the services receive sufficient funding to meet provincial standards, which focus on keeping families together, or specific community needs. By providing insufficient funding for preventative measures, the program has, in effect, created an incentive for the agencies to remove children from their families.

The Tribunal further found that the department had known for years that the Program denied adequate services to many First Nations, but neglected to enact reforms. Far from achieving its goals, the Program has reinforced the intergenerational trauma of the Residential School system. As the Tribunal explained, “the fate and future of many First Nations children is still being determined by the government, whether it is through the application of restrictive and inadequate funding formulas or through bilateral agreements with the provinces.”

Aboriginal Affairs argued the Tribunal had no jurisdiction to hear the complaint, because child welfare services are a provincial responsibility and, in its view, the federal involvement in program funding was simply a social policy decision and not out of obligation. Rejecting those arguments, the Tribunal found that Aboriginal Affairs provides a service under the Act by funding child and family services on reserve. In doing so, the federal government exerts significant control over the provision of these services on reserve, even if it does not deliver the services.

Furthermore, Aboriginal Affairs can hardly minimize its role in the provision of child welfare services on reserve in light of the federal government’s constitutional responsibility towards aboriginal peoples. Instead of legislating in this area, the federal government has opted for a programming and funding approach. Aboriginal Affairs “should not be allowed to evade its responsibility to First Nations children and families residing on reserve by delegating the implementation of child and family services” to First Nations agencies or provincial governments.

The Tribunal found that race and national or ethnic origin were a factor in the adverse impacts of the Program. This was unsurprising since the service targeted First Nations on reserve. In providing the service, Aboriginal Affairs was, to say the least, obliged to ensure it did not perpetuate the historical disadvantages suffered by First Nations, the legacy of colonialism and the country’s attempt to assimilate indigenous peoples.

Discussion

Filed in 2007, this complaint has had a long history. In 2011, the former chairperson of the Tribunal dismissed the complaint on the basis that there needed to be a comparator group and, as the federal government provided child welfare to no other groups, there was no chance of success. The Tribunal’s decision was set aside by the Federal Court, which found that a comparator group was not a prerequisite for a finding of discrimination. Upholding that judgment, the Federal Court of Appeal affirmed that the focus of the Tribunal’s inquiry should not have been whether there were comparators, but rather simply whether there was discrimination.

After the complaint was returned to the Tribunal, it was amended to include an allegation of retaliation by Aboriginal Affairs against the Caring Society’s Executive Director for having filed the complaint. A newly composed panel of the Tribunal substantiated the allegation in a separate decision.

The Tribunal’s decision in First Nations Child and Family Caring Society on the merits of the complaint may have implications on human rights jurisprudence more generally. Relying upon Charter equality jurisprudence and Canada’s international legal commitments, the Tribunal effectively imposed a positive obligation on the federal government to reform its First Nations child welfare program to ensure substantive equality for First Nations children and families living on reserve. In other words, the Tribunal has required the federal government to ensure its social program actually fulfills its ameliorative purpose or, at the very least, does not make things worse for the recipients of the benefit.

More specifically, the case may have broader application where the federal government is similarly involved in the provision of other services to First Nations communities. For example, Public Safety Canada provides significant funding to First Nations police services under its First Nations Policing Program. First Nations police services have reportedly struggled to provide adequate services to their communities due to insufficient funding, an issue identified in the Ontario Ipperwash Inquiry, which found that self-administered police services were drastically underfunded. This issue was also addressed in a recent award by an Ontario arbitrator.  Time will tell whether the Tribunal’s analysis in the First Nations Child and Family Caring Society decision is applied to these other contexts.

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

James Cameron Speaking on the Implications of Off-Duty Conduct and Employee Privacy

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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.

 

 

Ontario Court of Appeal confirms no cap on reasonable notice

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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.]

Federal Court of Appeal affirms robust approach to protection against workplace violence

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On November 30, 2015, in Attorney General of Canada v PSAC, 2015 FCA 273, the Federal Court of Appeal dismissed the Government’s appeal of the decision of the Federal Court rendered last year. The case dealt with Part XX of the Canada Occupational Health and Safety Regulations, which imposes a host of obligations on employers to prevent and respond to workplace violence. The Court’s decision affirmed the broad definition of workplace violence under the Regulations, and the mandatory obligations on employers to appoint an impartial person to investigate employee complaints.

The Court of Appeal adopted the approach of the Federal Court judge, and held that an employer does not have unfettered discretion to determine whether a workplace violence complaint warrants an independent investigation: “I agree with the Respondent that allowing the employers to conduct their own investigations into complaints of work place violence and to reach their own determination as to whether such complaints deserve to be investigated by a competent person would make a mockery of the regulatory scheme and effectively nullify the employees’ right to an impartial investigation of their complaints with a view to preventing further instances of violence.”

The Court found that employers can only decline to appoint a competent person to investigate if it is plain and obvious that the complaint does not raise allegations of workplace violence on its face. The Court emphasized that the “employer has very little discretion in this respect.” This judgment affirms the right of employees to an impartial investigation when they experience psychological harassment or other forms of violence in the workplace.

The appeal was argued by Andrew Raven of RavenLaw. You can read about the Federal Court decision about the case in our blog.

 

Kim Patenaude to Present an Advanced Seminar on the Duty to Accommodate at Health Canada

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On March 10, 2016, Kim Patenaude will be presenting a bilingual advanced seminar on the Duty to Accommodate at Health Canada on behalf of REACH Canada. REACH has offered lawyer referrals and public education for individuals living with disabilities since 1981.  Ravenlaw is a long-term, proud supporter of REACH and its mission to improve the quality of life for citizens with disabilities.

 

RavenLaw Proud to Support Event on the PSAC Struggle for Pay Equity

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RavenLaw is proud to sponsor an event on the Public Service Alliance of Canada’s struggle for pay equity, co-hosted by PSAC, the Workers’ History Museum, and the University of Ottawa Human Rights Research and Education Centre. The event will take place on December 10, 2015 at the University of Ottawa Alumni Hall, beginning at 5:30 pm for the English event and 7:30 pm for the French event. The event will tell the story of the PSAC pay equity struggle, with questions and answers, as well as entertainment provided by the Just Voices Choir.

 

 

Employees with mental health concerns need to be accommodated

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In a recent decision, an adjudicator of the Public Service Labour Relations and Employment Board found that the Parole Board of Canada failed to accommodate an employee’s disability, contrary to the Canadian Human Rights Act.  This decision provides important confirmation that employees with mental health concerns must be accommodated by their employers up to the point of undue hardship.

Background

A grievance was filed by Line Emond, a statistics and data quality manager at the Parole Board of Canada, due to emotional stress caused by her fear of a co-worker. The medical evidence presented at the hearing revealed that the grievor’s fear was real and the emotional stress caused by the co-worker’s presence affected her ability to work. She had requested accommodation from her employer permitting her to work anywhere except in the same building as her co-worker.  While the employer offered to move her to an office on a separate floor with additional security, the grievor’s treating physicians agreed that the employer’s proposal was insufficient as the grievor would continue to feel unsafe. The medical evidence demonstrated that this emotional stress affected her memory, concentration and her ability to function normally.

Board’s Decision

In a decision rendered on January 25, 2016, Adjudicator Linda Gobeil allowed Ms. Emond’s grievance. The Adjudicator found that the grievor suffered from a disability or incapacity: the emotional stress suffered by the employee amounted to a disability that triggered the employer’s duty to accommodate. The Adjudicator further found that the employer failed in its duty to provide reasonable accommodation. The Adjudicator found that the employer’s proposed solution was not a reasonable one, and it was reasonable to expect the employer to be able to locate a workspace in another location for the employee. The employer was ordered to find a workspace in another building for Ms. Emond, and Ms. Emond also received compensation for the lost wages and benefits during her time on long-term disability.

As counsel for the grievor, Kim Patenaude, of RavenLaw, told the Ottawa Citizen, the Adjudicator’s decision “has the potential to broaden an employer’s responsibility to provide accommodation” and is a win for employees with disabilities, especially those with mental health concerns.

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

Liberal Government has long list of campaign promises to keep

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With Parliament officially re-opened following the federal election, everyone is watching to see whether the many campaign promises made by the incoming Government will be kept. One area that was the subject of more than its share of pledges was labour legislation. After nearly a decade in power, the Conservatives left behind a raft of anti-union laws that the incoming Liberals have vowed to clean up. Based on open letters and other public statements issued by the Liberals before and during the campaign, labour lawyers and workers’ advocates expect to see the following key pieces of legislation either reformed or repealed by the incoming Government:

Bill C-377

  • What it does: this legislation imposed onerous financial disclosure and reporting obligations on all unions in Canada, well beyond those required of charities or non-profits.
  • Campaign promise: As an MP, Justin Trudeau opposed this Bill, going so far as to write to the Senate urging it to reject it. (Notably, the Senate did successfully defeat the legislation once, requiring the Government to ignore the rules of the Senate to finally get it passed.) The Liberals have vowed to repeal this legislation.

Bill C-525

  • What it does: this legislation changed the rules for certification of federal public and private sector unions, making it more difficult for workers to certify less difficult to decertify. Rather than allowing labour boards to determine that a union enjoyed the support of the bargaining unit based on membership cards, Bill C-525 required a secret ballot vote, while failing to provide the protections necessary to ensure employers could not apply improper pressure on their workers in the lead up to the vote.
  • Campaign promise: Trudeau has promised that the Liberals would repeal this legislation.

Bill C-4

  • What it does: Among the many laws amended by this omnibus bill, the Public Service Labour Relations Act was amended to give the Government unilateral authority over essential services: this means the government can prohibit employees from participating in a strike on the basis that they perform essential duties, a determination typically made by an independent labour board. This law closely resembled legislation that the Supreme Court of Canada had struck down earlier this year on the basis that it violated the constitutional right to strike. Bill C-4 also amended the definition of danger in the Canada Labour Code, making it more difficult for workers to refuse to perform dangerous work.
  • Campaign promise: In an open letter during the campaign, Trudeau stated that Bill C-4 “stacked the deck against workers” and promised to consult with public sector partners and “revisit” this legislation.

Bill C-59

  • What it does: Bill C-59 gave the Government the unilateral authority to extinguish employee sick leave banks from collective agreements and replace them with a short-term disability program. These powers allowed the Government to effectively ignore the collective bargaining process and ensure that it succeeded in securing its primary objective in this round of bargaining. The Conservative Government went as far as to preemptively “book” $900 million in savings in the 2015-2016 fiscal year on account of this change, demonstrating its contempt for the collective bargaining process.
  • Campaign promise: The Liberals have publicly opposed implementing a new sick leave regime through legislation, and have expressed their commitment to bargaining with the unions in good faith.

Workers and unions will be watching to see whether the Liberal Government follows through on these campaign promises, and to see what form the more abstract commitments will take. For example, will “revisiting” Bill C-4 mean simply restoring the former essential services regime, or will the Liberals develop a new regime in consultation with workers’ representatives?

Beyond formal legislation, the Government has also promised a more positive approach to labour relations generally. This raises its own host of questions, including:

  • Will the new Government depart from the Conservatives’ eagerness to interfere in labour relations through back-to-work legislation:
  • Will the Liberals take steps to establish a proactive pay equity regime in line with the 2004 recommendations of the federal Pay Equity Task Force?
  • Will the Government protect the right of public service employees to do their work free from political interference?

It will take years to fully assess the Government’s ability to restore trust and respect to federal labour relations. In the meantime, workers will look for early signs that the Government will follow through on the clear commitments it made in its efforts to get elected.

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