bona fide occupational requirement
The law of drug and alcohol testing in Canada is in a state of evolution. While the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd., provided important guidance on the strict standard that employers must meet in order to subject employees to random testing, it raised many questions regarding how those principles would be applied to other forms of testing.
The British Columbia Human Rights Tribunal, in French v Selkin Logging, found that an employer did not discriminate based on the ground of physical disability by refusing to allow the employee from smoking marijuana at work. The company’s zero-tolerance policy for drugs constituted a bona fide occupational requirement (BFOR).
Under human rights legislation, employers have a duty to accommodate an employee’s needs related to a prohibited ground of discrimination to the point of undue hardship. It can often be difficult for employers and their legal counsel to assess when the point of undue hardship is reached.
In Liu v Everlink Services Inc, the Ontario Human Rights Tribunal decided that, when a Chinese Canadian employee, Liu, was terminated from his employment, he was discriminated against on the ground of place of origin.
Kimberly Ouwroulis filed a Human Rights complaint alleging discrimination based on her age. The complaint was filed after she was terminated from her job as an exotic dancer at a strip club, allegedly, for being too old. As a highly publicized case, experts quickly asked the question whether or not age, for an exotic dancer, is a BFOQ?
When a support worker at an evangelical Christian organization that runs homes for persons with developmental disabilities entered a same-sex relationship, the organization found the worker had breached its “Lifestyle and Morality Statement,” which prohibited homosexual relationships. The organization, Christian Horizons, eventually terminated the employee on that ground, and the worker complained of discrimination to the Ontario Human Rights Tribunal.
Federal Court clarifies that the prohibited ground of “family status” includes “childcare obligations”
Do employers have to accommodate the “childcare responsibilities” of their employees to the point of undue hardship? The Federal Court has confirmed that in the federal jurisdiction the answer is yes subject to the requirement that the childcare responsibility be a “substantial parental obligation”.
Can you require employees to speak English? As always, the answer to this question is “yes”, “no” and “it depends”.
Expect application for leave to appeal to Supreme Court of Canada in Air Canada mandatory retirement case
Since the Federal Court of Appeal upheld the mandatory retirement practice for Air Canada pilots, some developments have taken place. First, in the primary Vilven and Kelly case, there will likely be an application filed to obtain leave to appeal to the Supreme Court of Canada regarding the constitutionality of section 15(1)(c) of the Canadian Human Rights Act.
As you may recall, Air Canada pilots launched human rights complaints on the ground of age discrimination because the company forced them to retire at age 60. In a history of decisions spanning back to 2007 challenging the Air Canada policy that requires pilots to retire at the age of 60, which section 15(1)(c) of the Canadian Human Rights Act purports to allow, the Canadian Human Rights Tribunal recently made two more decisions. One involved…
When mandatory retirement was eliminated, I noted that this change might create some interesting HR issues for employers of older workers. In the past, employers were often in a position to tolerate declining performance, comfortable in the knowledge that the employment relationship had a fixed “end date.” As a result, they could allow the employee to work out their last few years and retire with dignity.
We know that there is no precise method to determine the common-law period of reasonable notice when terminating employees. What has evolved and has been the most quoted case to help with this is the infamous Bardal vs. Globe and Mail. This case tells us that reasonable notice must be decided with reference to each specific case, considering the character of employment, length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.