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.

In addition to compensation for long-term disability benefits, it is possible to also claim damages for mental distress from the insurance company, as well as punitive damages to punish the company for its conduct. However, to successfully claim these amounts, the relevant legal tests must be satisfied. The Ontario Court of Appeal recently rendered a decision which clarifies the test to be applied in determining punitive and mental distress damages.

Background

In Fernandes v Penncorp Life Insurance Company, 2014 ONCA 615, the plaintiff ran a successful brick laying business in Kitchener, Ontario, when he injured his back after two separate falls. After the second fall, he never worked as a brick layer again. Mr. Fernandes was, at the time of his injury, 40 years old with an equivalent of a grade 8 education.

The trial judge awarded the plaintiff approximately $236,000 in compensation, and also awarded significant punitive and mental distress damages. Mr. Fernandes was awarded $200,000 in punitive damages because the insurance company had not “dealt with the claim fairly and in a balanced way”. He was also awarded $100,000 for mental distress damages for the failure of the insurance company to pay him what they had contracted to pay him. Notably, Mr. Fernandes had originally only sought $25,000 for these mental distress damages. Finally, Mr. Fernandes was awarded full legal costs amounting to about $212,000.

The insurance company appealed the trial judge’s decision regarding the awards for punitive and mental distress damages, as well as full indemnity costs.

Decision of the Ontario Court of Appeal

The Ontario Court of Appeal allowed the appeal in part, reducing the legal costs awarded by $30,000 and reducing the mental distress damages awarded. However, the Court upheld the finding that punitive and mental distress damages were payable in respect of Mr. Fernandes’ treatment by the insurance company.

Punitive Damages

The Court summarized the key applicable principles for a finding of punitive damages as follows:

• Punitive damages are designed to address the objectives of retribution, deterrence and denunciation, not to compensate the plaintiff.
• They are awarded only where compensatory damages are insufficient to accomplish these objectives.
• They are the exception rather than the rule.
• The impugned conduct must depart markedly from ordinary standards of decency; it is conduct that is malicious, oppressive or high-handed and that offends the court’s sense of decency.
• In addition to the breach of contract, there must be an independent actionable wrong.
• In a case of breach of an insurance contract for failure to pay insurance benefits, a breach by the insurer of its contractual duty to act in good faith constitute an independent actionable wrong.

Applying those principles, the Court of Appeal found that there was sufficient evidence to support the conclusion that punitive damages were appropriate in Mr. Fernandes’ case.

Mental Distress Damages

The Court noted that the Supreme Court of Canada in Fidler has held damages for mental distress for breach of contract may be awarded “where they are established on the evidence and shown to have been within the reasonable contemplation of the parties at the time the contract was made”. This however, does not obviate the need to prove the actual loss.

Here, both parties agreed that an objective of the insurance policy was to secure a psychological benefit and that at the time, the parties reasonably contemplated that the failure to pay benefits could cause the respondent mental distress. However, the insurance company contested the amount awarded.

The Court noted that there was no good explanation how the trial judge had arrived at the figure of $100,000, or what facts justified such an amount. It noted further that the award appeared inordinately high and entirely disproportionate, as compared to other awards and noted that the award was four (4) times greater than that requested by Mr. Fernandes. It finally noted that mental distress damages are to be compensatory and not punitive and reduced the award from $100,000 to $25,000.

Commentary

In order to successfully bring a claim for punitive damages or mental distress damages in the context of an LTD claim, it is important to advance the facts upon which those claims can be supported. The trial judge must have a factual basis to grant the amounts sought, and which will satisfy the tests as articulated in the Ontario Court of Appeal’s judgment.

When initiating a proceeding regarding a denial of long-term disability benefits, you should discuss the possibility of seeking punitive or mental distress damages with a disability benefits lawyer.

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 the 4^th annual Ottawa Rape Crisis Centre Spin-A-Thon on Saturday, April 25^th. The firm provided a financial donation to support the participation of a Ravenlaw team. The ORCC is dedicated to eradication violence against women and providing support to survivors and the people who love them. All proceeds from the event will go towards ongoing short- and long-term counseling for survivors, the 24-hour Crisis Line and raising awareness in the Ottawa community.

Ravenlaw lawyers Amanda Montague-Reinholdt, Dayna Steinfeld and Morgan Rowe participated in the 7-hour Spin-a-Thon with articling students Taylor Akin and Daniel Tucker-Simmons.

Please note that our office will be closed on Friday, April 3, 2015 and Monday, April 6, 2015.

May 1^st, 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.

History of May Day

In the late 19^th 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”.

May Day Today

Today, May Day remains an important date for commemorating the gains achieved by trade unionists in the late 19^th 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.

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.

On May 12, 2015,  RavenLaw lawyers Raphaëlle Laframboise-Carignan, Morgan Rowe and Dayna Steinfeld will be participating in a panel discussion on disability insurance issues as part of an International Myalgic Encephalomyelitis/ Fibromyalgia (ME/FM) Awareness Day event hosted by MESH Ottawa. Topics of discussion will include the duty to accommodate, Canada Pension Plan Disability, and short-term and long-term disability benefits. The panel will also feature Margaret Parlor, President of the National ME/FM Action Network, who will provide facts and background on Fibromyalgia and Chronic Fatigue Syndrome.

More information about the event, including how to register, can be found here.

In a recent arbitration decision, Ontario Public Service Employees Union, Local 464 v Ottawa Hospital, Arbitrator Mary Ellen Cummings found that the Ottawa Hospital’s application of its short-term sick leave benefits discriminated against employees with chronic disabilities, contrary to the Human Rights Code. The collective agreement language at issue in the case is common throughout most of the hospital sector in Ontario, and this decision sets an important precedent for how absences due to chronic illnesses must be handled in the province.

Background

The case related to sick leave benefits under the Hospitals of Ontario Disability Income Plan (“HOODIP”). Under HOODIP, employees have up to 15 weeks of short-term sick pay benefits for each period of absence. Article 16.03 in the Collective Agreement states: “No sick pay benefit is payable under HOODIP for the first fifteen hours of absence for the sixth and subsequent period(s) of absence in the same fiscal year”. The Ottawa Hospital applied this rule such that any absences separated by three weeks or more were treated as distinct “periods of absence”, even if the absences were all due to the same chronic illness. The Ontario Public Service Employees Union filed a policy grievance against the Hospital, arguing that this interpretation of “period of absence” discriminated against employees who have chronic illnesses that periodically reoccur (e.g. migraines, Crohn’s Disease).

Arbitrator’s Decision

The Arbitrator found that the use of a three-week gap to identify distinct periods of absence had an adverse impact on employees with chronic illnesses compared to other employees receiving sick leave benefits. Employees with frequent, short absences due to a chronic illness will reach their sixth and subsequent “period of absence” more quickly than other employees, due to the nature of their disability. Treating these absences as a “new ailment”, simply because they were separated by three weeks, failed to address the circumstances of employees with chronic illnesses.

Arbitrator Cummings further found that this discrimination was not justified as reasonable and bona fide. She rejected the Hospital’s argument that it would be too onerous to determine whether absences were due to a chronic disability, holding: “looking at the individual needs of employees with disabilities and determining to what extent accommodation is required is the minimum required of all employers under the Code.”

The grievance was allowed, and the Hospital was directed to stop counting absences separated by more than three weeks as a distinct period of absence when the employee has a chronic illness. The Arbitrator further directed the employer to look at absences of employees with chronic illnesses and determine whether the employee can be accommodated, and if so how. She emphasized that accommodation may take many possible forms, and so a single remedy would be inappropriate.

This Award sets an important precedent, not only for collective agreements in the hospital sector with similar language, but also more broadly for treatment of employees’ absences when they are due to a chronic, recurring illness. Arbitrator Cummings’ decision provides strong confirmation that there is not a ‘one size fits all’ approach to managing employees’ attendance, and employers must look at each individual’s circumstances and needs.

The Union was represented by Wassim Garzouzi and Amanda Montague-Reinholdt from Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l.