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.

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

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

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

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

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

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

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

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

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

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

Discriminatory Dress Codes

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

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

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

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

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

Workplace Policies and Personal Appearance

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

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

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

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

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

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

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

On October 27, 2015, David Yazbeck will be speaking as part of a panel on “Tribunal Trends and an In-Depth Look at the Administrative Tribunals Support Service of Canada” at the Canadian Institute’s 15^th Annual Advanced Administrative Law & Practice conference in Ottawa. David’s panel will focus on how the ATSSC is working nearly one year after the rollout. In particular, the panel will discuss concerns over the impact of the ATSSC on institutional and judicial independence of tribunals, whether there are any proceedings challenging the ATSSC, and practice tips for the ATSSC environment. 

More information about the conference is available here.

On November 7, 2015, Michael Fisher, Amanda Montague-Reinholdt, Dayna Steinfeld and Morgan Rowe participated in the moot court for first-year law students at the University of Ottawa. Our lawyers enjoyed the opportunity to support the moot by serving as judges in the competition and by providing students with feedback and comments. They were impressed by the high level of preparation displayed by all the participants and extend congratulations to the students who advanced to the playoff rounds.

On November 25, 2015, David Yazbeck will be speaking as part of a panel on “Human Rights Violation at the Healthcare Workplace: How to Handle Harassment, Bullying and Discrimination” at the National Healthcare Labour & Employee Relations 2015 conference. The panel will discuss the legal obligations of employers to protect human rights at the workplace, how to conduct a proper investigation of harassment, bullying or discrimination at the workplace, and the union’s role in the protection of human rights at the workplace. David is also a co-chair of the conference.

Dayna Steinfeld has been appointed to the National Board of the Women’s Legal Mentorship Program (“WLMP”). The WLMP is a not-for-profit that works in partnership with Canadian universities to provide a comprehensive feminist legal mentorship program through its university level and WLMP Alumna Chapter. The goal of the WLMP is to help women develop a support system that will help them throughout their legal careers from the classroom to the courtroom and beyond. The program facilitates peer mentorship, student-lawyer mentorship and professional development and leadership events.