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discrimination

Vexatious litigants and abuse of process at Tribunal

The Human Rights Tribunal of Ontario has the authority to govern its own proceedings. Within this authority is the power to declare any applicant a vexatious litigant and to identity any abuse of process, either of which may result in the dismissal of an Application. The recent interim decision addresses both of these issues.

 

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New Brunswick’s Human Rights Act: Amendments proposed

On March 15, 2017, Bill 51, An Act to Amend the Human Rights Act, received first reading in the New Brunswick legislature, and second reading the next day. The goal of the changes is to modernize the legislation and increase its efficiency. Indeed, this has been the first extensive review of the legislation in 25 years. These changes come on the 50th anniversary of the Human Rights Act. The ultimate goal of the review was to evolve with society and ensure that values are protected. Bill 51 aims to do just this.

 

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Family status: The employee’s obligation under “the Code”

The recent decision of Misetich v. Value Village Stores Inc. reaffirms that family status accommodation under the Human Rights Code is a joint obligation, involving both the employee and employer.

 

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Workplace partisan political arguments

workplace partisan political arguments

The U.S. 2016 presidential election and post-election are causing much debate, criticism and protest outside of America. Canadians have actively participated in public marches and protests in response to Trump’s comments and proposed policies, as well as the recent proposedU.S. ban on entry to that country from certain Muslim nations. In this context, employers are right to ask whether workplace partisan political arguments fit in the workplace.

 

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Dealing with marijuana in the workplace

I am increasingly being asked to speak about this subject at HR conferences, as employers are concerned about the practical implications of medical marijuana and how employees using it should be treated. The issue of marijuana in the workplace has generated a lot of attention, but what have our courts, arbitrators and tribunals said about it? A review of decisions addressing dismissal for workplace usage or possession of marijuana shows an inconsistent treatment which is consistent with the early stages that we are in.

 

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Protecting employees from social media harassment

It is well known that employees have certain legal obligations to their employer with respect to the content of their social media profiles. An arbitrator recently confirmed that employers also need to be careful about the content of their social media pages as it relates to their employees.

 

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Discrimination and a decision on remedies

In an application filed under the Human Rights Code of Ontario, once the matter has been heard, and the Tribunal has found the respondent to be liable, the next stage is that of remedy. Monetary and non–monetary damages may be awarded as was the case in Kohli v. International Clothiers, where the applicant, Ms. Kohli, had filed an application alleging discrimination in employment on the basis of sex.

 

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Gender identity and gender expression

Following our previous post on the British Columbia government’s bill to amend the Human Rights Code (Code) earlier this year, the bill recently received royal assent and gender identity and gender expression are now expressly included in the Code as protected grounds. Though the meaning and application of these new protected grounds will need to be fleshed out by Tribunal and court decisions, the Tribunal’s website now provides the following descriptions…

 

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Accommodation and when employees don’t engage in the process

The Human Rights Tribunal of Ontario (HRTO) released a very important development on family status discrimination, in a case that intersects with disability accommodation law. In Misetich v Value Village Stores, the tribunal reviewed the caselaw, including the Federal Court of Appeal’s Johnstone case, and clarified its test for accommodating family status requests in the workplace.

 

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Workplace investigations that are required or recommended

Until the last few years formal workplace investigations were relatively uncommon. Recent changes to the law however have totally changed the legal landscape relating to workplace investigations. To reduce legal exposure and save costs, I believe most employers should ensure that at least one employee receives workplace investigation training. This blog discusses four scenarios where workplace investigations are required or recommended.

 

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Disability as a variable – A new optic

Looking at an Ontario Human Rights Commission discussion paper released in 2001, the aspects that make what is called intersectionality so appealing to a modern view of identity is that it does not pigeon hole a person as being represented by a sole code ground, or identity that is legally protected against discrimination.

 

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OHRC’s Policy on discrimination and language: Arnold v. Stream Global Services

As per the OHRC’s Policy on Discrimination and Language, although the Human Rights Code does not explicitly identify “language” as a prohibited ground of discrimination, the Human Rights Tribunal of Ontario may consider claims under a number of related grounds, such as ancestry, ethnic origin, place of origin and in some circumstances, race. The 2010 matter of Arnold v. Stream Global Services offers an explicit interpretation of this policy.

 

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Human Rights Commission tackles racial profiling

This year, a Nova Scotia Human Rights Board of Inquiry issued a highly publicized decision on racial profiling. In the case, the Board concluded that a woman had been discriminated against on the basis of her race and/or colour when wrongfully accused of shoplifting at a grocery store. In the wake of this case and research, the Nova Scotia Human Rights Commission has recently announced plans to take preventative measures to tackle this serious issue.

 

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Court of Appeal overturns finding that respondent must admit discrimination to settle a human rights complaint

Under the Nova Scotia Human Rights framework, a Board of Inquiry must approve any settlement reached after a complaint is referred to a hearing before the Board. Recently, in Nova Scotia (Human Rights Commission) v Grant, 2016 NSCA 37, a Board of Inquiry refused to approve a settlement. The Board concluded that it could not approve a settlement unless the respondent admitted discrimination. As the respondent in this matter had not made such an admission, the Board refused to grant the necessary approval—barring a settlement that the parties were willing to accept.

 

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Loose lips sink shifts?

A recent online article reported that two seventeen-year-old employees were fired from a Kansas City pizza joint for talking about their pay rates. Both were new employees with the same experience, and the female employee discovered she was earning $0.25/hour less than her male co-worker. When she contacted her employer for an explanation, she was fired for discussing wages with a co-worker, as was the male co-worker. The employer advised that discussing pay was against employer policy, even though both employees stated that such policy was never disclosed to them.

 

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