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The Ontario Human Rights Tribunal recently examined an application before it and an earlier statement of claim made in civil court by the same person, and concluded that the claims were virtually identical. They were based on the same facts, made the same allegations and sought similar remedies. Subsection 34(11) of the Ontario Human Rights Codeprevented the tribunal from hearing the application.

Essentially, the tribunal prevented the duplication of claims in different forums and dismissed the human rights application.

The applicant filed an application with the Human Rights Tribunal, alleging discrimination and reprisal against her employer on the ground of disability and sex. She claimed that her employer treated her unfairly and ultimately dismissed her when she tried to return to work following a short-term disability leave.

Then it became known that the applicant had already made a wrongful dismissal claim in civil court against the employer. Therefore, the employer filed a request with the tribunal that the application be dismissed because there was an ongoing civil court action concerning the exact same matter.

Subsection 34(11) of the Human Rights Code states that a person cannot make an application under the Code if a civil proceeding has been commenced in court, a court has already determined the issue of whether the right was infringed, or the matter has been settled.

The tribunal carefully examined the claims at the tribunal and at court, and concluded that the applicant relied on the identical facts, alleged that the same types of employment-related disability and gender rights were violated, and sought similar remedies.

The tribunal noted that the provision in the Code is there to prevent this kind of duplication from occurring, and the applicant was barred from bringing her application to the tribunal. As a result, the tribunal application was dismissed.

Employers should be aware of this decision. When a claim is brought against them in multiple forums, employers are recommended to be proactive in limiting the duplication of proceedings. As can be seen in this case, a request to dismiss an application at the tribunal is appropriate in situations where the same matter is in progress or has already been dealt with in court. It is important to prevent an employee’s forum-shopping before it gets out of hand and various decisions are made on the same matter. This requires the employer to be aggressive by bringing the request to dismiss before the tribunal as soon as possible.

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2012 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

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On January 24, 2008, the Supreme Court of Canada refused to hear the case of a British Columbia mother seeking to change the Employment Insurance Act and employment standards legislation to allow maternity leave for adoptive parents. In refusing to hear the case, the Court upheld the 2007 federal Court of Appeal ruling Tomasson v. Canada (Attorney General) that adoptive mothers do not qualify for maternity benefits because they do not undergo the “physiological and psychological experience” of pregnancy and childbirth.

Under employment standards legislation, birth mothers can take a total of 52 weeks of leave when they combine maternity (17 weeks) and parental leave (35 weeks), and are entitled to receive a total of 50 weeks of EI benefits (combination of 15 weeks of maternity and 35 weeks of parental EI benefits) for that period. However, the same benefits are not available to adoptive mothers. Adoptive mothers only receive 37 weeks of parental leave and 35 weeks of EI benefits.

Recently, the media reported that a movement to challenge the law to provide equal EI benefits to adoptive parents is gaining momentum. The discrepancy in the law is something advocates like the Adoption Council of Canada are hoping will be addressed when the House of Commons standing committee on human resources tables a long-awaited report on adoption in the next few weeks.

To understand why the federal government continues to differentiate between birth mothers and adoptive mothers when allocating EI benefits, you need to take a closer look at the Tomasson case.

Federal Court of Appeal ruling: Tomasson v. Canada (Attorney General)

The main issue in this case was whether the provisions of the Employment Insurance Act, which grants maternity benefits only to biological mothers, discriminates against adoptive mothers and violates their rights under section 15(1) of the Canadian Charter of Rights and Freedoms.

The Charter states that:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

Tomasson argued that the purpose of maternity benefits is to recover from the birth and to bond with the child. She asserted that although she did not need to recover from the birth, she required the time to bond with and attach to the child. She provided evidence regarding the typical attachment process between mother and child, including a child who is adopted early in infancy. Tomasson showed that the process of attachment for children who are adopted early in infancy is similar to that of typical attachment.

The Court stated that the purpose of maternity benefits is:

• To protect women who work from the economic costs of pregnancy and childbirth while they recover from the birth
• To ensure biological mothers experience no disadvantage when they return to the workforce

It is not to encourage bonding or attachment.

The Court also pointed to previous cases stating that it is not necessarily discriminatory to treat biological mothers differently from other parents, including adoptive parents. Although adoptive parents undergo challenges in adopting and caring for their children, these challenges are not as severe and distressing as the physical and psychological challenges facing biological mothers.

The Court applied the test of discrimination and found the following:

• The comparator groups were biological mothers and adoptive mothers
• There was indeed differential treatment between the two groups of mothers within the Employment Insurance scheme
• The differential treatment did not have a purpose or effect that was discriminatory within the meaning of the equality guarantee as set out in the Charter
• It was impossible to find that in enacting maternity benefits provisions in the Act, Parliament demeaned adoptive mothers or cast any doubt on their worthiness as human beings
• In addition, the needs of adoptive parents were accommodated when Parliament enacted parental benefits

Consequently, the distinction in the Employment Insurance provisions was not discriminatory against adoptive parents. In fact, the maternity leave provisions ensure the equality of women who suffer the disadvantage in the workplace due to pregnancy-related matters. The distinction created was legitimate because it sought to accommodate the needs of pregnant women in the workforce as a disadvantaged group. Thus, the distinction did not violate the Charter, and Tomasson’s appeals were dismissed.

Conclusion
Certain groups of individuals can be and are required to be treated differently in order to ensure equality. In this situation, there was a legitimate purpose to the Employment Insurance provisions in order to ensure equality. The test of discrimination was applied; Tomasson was not successful. Consequently, adoptive parents have access to parental benefits, and biological parents have access to both maternity and parental benefits within the Employment Insurance scheme.

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor

© 2012 First Reference Inc. All Rights Reserved. | Permalink | One comment |

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Reverse discrimination is not a legal term but a socially constructed idea that describes a particular phenomenon; it is a side effect of employment equity programs, as they are called in Canada; “affirmative action” programs in the United States. Reverse discrimination in employment is perceived to have occurred when the majority (or a member of it) is denied an opportunity because the law forces an employer to hire a person from a minority group.

So, reverse discrimination, by definition, occurs when one person(s) loses an employment opportunity and another person(s) gains that opportunity and the hiring decision is based on race, age, disability or other minority criteria.

Federally regulated employers in Canada (banks, airlines, the federal government, telecommunications companies etc) are required by law to have active programs that seek to provide the employment of four main groups: women, aboriginal peoples, persons with disabilities and visible minorities. These programs make it legal to discriminate against a job candidate that does not fit into one of the above categories; it is legal discrimination.

When a participant in one of these programs is hired over a qualified majority employee, fulfilling a legal mandate, “reverse discrimination” has occurred; the majority worker is the “victim.”

Many workplaces have policies that allow a worker who needs to be on “light duties” to jump the queue, so to speak. In these situations a worker who is returning to work post-injury, is pregnant or who may suffer from a variety of various medical conditions is given priority in hiring over a more senior or more qualified candidate. This action is often described as “reverse discrimination.”

These employment programs are perfectly legal in most jurisdictions because human rights legislation permits employers to favour historically disadvantaged workers in an attempt to “level the playing field.” The idea is that without these programs otherwise qualified individuals may never be given the chance to prove themselves because of widespread misperceptions of illness, disability and cultural norms.

I find it interesting that we even use the term “reverse discrimination.” It begs the question, “a reversal from what?” The examples described above are examples of discrimination—period. They are examples of “legal” discrimination but are they examples of “reverse discrimination” because the majority is being denied an opportunity? Can discrimination only happen to blacks and gays and single mothers and when “people like us” are discriminated against we have a different name for it?

Reverse discrimination!

Isn’t it interesting how people act when occasionally faced with unfair treatment that others live with every day of their lives?

This article looks at attitudes over legal facts. In order to push back against discrimination in the workplace, in fact in society at large, we need to explore attitudes in addition to educating ourselves about the letter of the law.

Learn don’t Litigate.

Andrew Lawson
www.learndl.ca

© 2011 First Reference Inc. All Rights Reserved. | Permalink | One comment |

Scenario one

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Participants in a workplace human rights workshop are provided with an overview of human rights law for the workplace. Then they are presented with the following scenario and asked to decide how they think the law applies to the situation described:

Two men are holding hands and occasionally kissing while waiting in line at a driver licensing office. A person waiting in line approaches the men calling them “fags” and telling them their behaviour is “disgusting”. The same person attempts to engage others waiting in the line to join in the demeaning discourse.

The workshop participants decide the following:

• The behaviour violates every person’s right to be free from discrimination and harassment based on sexual orientation
• The behaviour creates a poisoned work environment for the people working in this office
• The operator of this office (in this case the government) has a legal responsibility to intervene and demand that the person stop making the comments
• The staff, especially managers, acting on behalf of the employer, have an obligation to intervene in this situation

Do you agree or disagree with the findings of these workshop participants?

Why or why not?

Scenario two

The following is a transcript of a conversation that took place between the workshop instructor and a participant following the exercise above:

Participant: You’re telling us that these two men have the right to file a complaint because they were offended by the other guy’s comments, calling them “fags” and whatever, right? Because they are gay, right?

Instructor: Right. Furthermore, I am telling you that the employer, the operator of this office (the government), has a legal duty to intervene and stop the behaviour.

Participant: Okay, well I’m not gay. What if I found the men’s behaviour to be offensive to me because I’m straight and I asked them to stop? They could file a complaint against me, right?

Instructor: Remember that anyone can file a human rights complaint. A complaint against you may be successful if you were being derogatory or demeaning.

Participant: So, the gay guys are protected if they are offended by people’s comments about them, but I am not protected if I am offended by these guys touching and kissing in public. “I’m tired of this reverse discrimination.”

Can you spot the major differences between the two scenarios presented?

What do you think reverse discrimination means?

Post your responses as comment to this blog entry. I will write further about the topic of reverse discrimination in two weeks. Stay tuned.

Andrew Lawson
www.learndl.ca

© 2011 First Reference Inc. All Rights Reserved. | Permalink | 4 comments |

As frequent visitors to this blog know, I regularly conduct human rights training in a wide variety of workplaces. As a public speaker and training consultant, I am frequently confronted by participants who believe that workplace human rights policies actually promote discrimination and create barriers to the free exchange of ideas between individuals. I use the word “confront” because the exchange I experience is often just that: confrontational.

This blog post will present a scenario depicting emotional responses to human rights issues. I will attempt to address those responses with facts. Only a court or tribunal, empowered by law, can decide the ultimate outcome of a real life complaint based on facts similar to those presented in this scenario. Meanwhile, can you distinguish between emotional responses to a human rights issue vs. factual ones?

In this scenario, a worker confronts the trainer and makes the following statement during training on the contents of the employer’s discrimination and harassment prevention policy:

How do you expect me to take any of this seriously? They make it illegal to say the Lord’s Prayer in public schools, but now a certain group is allowed to pray five times a day in school?

The worker was visibly agitated, frustrated and angry. Clearly, the worker was not buying into the rights and responsibilities created by the employer’s policy.

Well, this one really got me thinking. Exactly how is this fair? Research into this topic revealed some telling facts.

A 1988 Ontario Court of Appeal case decided that the use of the Lord’s Prayer, exclusively, in Ontario public schools was unconstitutional. Consequently, the Court decreed, the section of the Education Act requiring the mandatory use of the prayer was “of no force or effect.” So, schools can’t force students to participate in opening exercises consisting of prayers or readings that favour one religion over another.

That’s not quite the same as saying you can’t have any prayer in schools.

In 2011, the media reported a Toronto school allowed the Muslim community to hold prayer sessions in the local school cafeteria during the student’s lunch hour. The sessions would be attended by Muslim students whose parents had consented to them attending.

That’s not the same as broadcasting the prayers over the school’s public address system and asking all students to participate without regard to individual beliefs.

The Education Act of Ontario and the Regulations today allow for opening or closing exercises in schools that include prayers, scripture readings, secular readings and periods of silence. What is not allowed anymore are programs that “indoctrinate” students into any particular religion or belief system. Singing O Canada is mandatory, God Save the Queen is discretionary and any student may be excused from these exercises. Reciting an oath of citizenship is also allowed.

School boards are permitted to allow religious groups to use school facilities before and after school providing these opportunities are open to all community groups.

When I was in high school (ancient history) I sometimes attended an after school group called Varsity Christian Fellowship or something like that. Although most of the kids who attended my high school here in Ontario would have considered themselves Christians, this group was started by kids who took their religion very seriously and wanted to support each other within the school environment.

Although some students (including the ones who identified as fellow Christians) sometimes wondered why the group needed to meet at school, nobody really cared whether the group existed or not.

I would be curious to know if current school practices include religion-centred student meetings. I would be equally curious to know if their would be a public backlash to a group of Christian, Jewish, Hindu, Muslim or other religious students meeting to celebrate and discuss their respective religions before or after the school day on school property.

Now, let’s get back to the scenario I described above and discuss its relevance to your workplace. What’s the risk of legal misinformation? The worker above was visibly angry based on a misunderstanding of the law. Anger leads to misunderstandings between and among co-workers. Misunderstandings lead to illegal behaviour and to disputes, which lead to complaints. Complaints lead to loss of productivity, low morale, wasted time and increased expense for your organization.

Training sessions in your workplace are a starting place for, what should be, an ongoing dialogue about issues that are relevant and important to the workplace. Accurate legal information on workplace human rights issues is not only cost-effective; providing such information is a legal requirement.

Effective training involves a conversation with your workforce. One way information delivery may only deliver half the necessary message. Training must engage your workers not merely inform them.

Learn don’t Litigate.

In two weeks I will discuss the topic of “reverse discrimination” in the workplace. See you then.

Andrew Lawson
www.learndl.ca

© 2011 First Reference Inc. All Rights Reserved. | Permalink | 5 comments |

Can a union member file a claim directly with the Human Rights Tribunal of Ontario (HRTO)?

Twice in the last month while conducting training sessions, I have had a workshop participant insist that their workers could NOT file a claim directly with the HRTO because the workers are members of a union. The workers must, they have insisted, file a grievance and settle their human rights claim via the labour relations process.  A review of the law reveals the above is simply NOT the case.

Section 45.1 of the Human Rights Code permits the HRTO to dismiss a case where “the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.”

So, imagine your worker (let’s call him Bob) files a grievance claiming to be the victim of racial discrimination while employed by your company. The grievance proceeds to arbitration and the case is dismissed because Bob was unable to support his allegations. Bob is not happy with this result so he files an application with the HRTO.

Will the HRTO automatically dismiss his application because “another proceeding has appropriately dealt with the substance of the application”?

No, not automatically. Your company (or some other party) will first have to ask the HRTO to dismiss the application and then successfully argue that the union grievance process has “appropriately dealt with the substance of the application.” The HRTO must be “of the [same] opinion” as your company before it dismisses Bob’s application.

In the case of Barker v. SEIU, a unionized worker was terminated after being absent from work due to illness. She filed a grievance and lost. She then filed a complaint with the HRTO and the employer asked to have it dismissed on the basis of the previous unsuccessful arbitration award.

The HRTO found that the arbitrator did not in fact deal “appropriately” with the human rights issues of the worker’s case and, therefore, agreed to hear the complaint. The HRTO has yet to publish a decision on the merits of this application.

On the other hand, a worker will not be allowed to use the HRTO to re-litigate issues simply because that worker is unhappy with the result of the grievance process. This principle is illustrated in the case of Rysinski v. Aecon Industrial. In this case, the HRTO decided that the grievance process had “appropriately” dealt with the human rights issues of the worker’s complaint and dismissed the worker’s application for a hearing before the HRTO.

A likely source of confusion on this topic is the fact that there was a significant change in the law back in 2006.  Under the old law, the Human Rights Code allowed the Human Rights Commission to dismiss a complaint that “could be heard under another Act.” The current law contains very different wording: “…has appropriately dealt with…” Furthermore, complaints today are filed directly with the HRTO and not vetted through the commission as was the case in previous years.

Learn—don’t Litigate. Make sure your knowledge of employment law is up-to-date. Training. Training. Training.

Andrew Lawson
www.learndl.ca

© 2011 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

In the infamous Keays v. Honda Canada case, I was lucky enough to represent the Human Resources Professionals Association when they intervened at the Supreme Court of Canada hearing. Our submissions were relatively simple: we asked the Court to confirm that the mere act of asking an employee with a known disability to provide doctor’s notes in order to justify workplace absences did not constitute a failure to accommodate. The submission was made in light of comments in the trial judge’s decision that seemed to equate the requirement of doctor’s notes in such circumstances to an act of bad faith. Fortunately, the Supreme Court was receptive to our submissions and confirmed that, in and of itself, requiring doctor’s notes, even for an employee with a known disability, does not constitute a failure to accommodate or an act of bad faith.

Employers are often faced with doctor’s notes that say something along the lines of “Joe was absent from work yesterday for medical reasons”. Or, perhaps even worse, “Joe advises that he missed work yesterday as he was sick”. In both cases, employers are left scratching their heads, unsure as to whether or not there was a valid reason for the individual’s absence.

At the same time, most employers recognize that individuals sometimes need time off for reasons entirely unrelated to sickness. They may have to take a child to an appointment or an activity; they may have to travel for a family function; they may simply need some time to catch up on personal errands. Many employers conclude that employees “abuse” sick days for these reasons.

I, and others, have suggested that employers simply formalize this reality by providing a certain number of personal days each year. Rather than tying the absence to illness, employers can simply provide their employees with time off in order to look after their personal responsibilities. The personal days can be lumped into vacation time, as long as it is administered properly, or simply offered as additional time off. Each employer can assess what is reasonable for its operations and workforce and establish its own policy accordingly.

I don’t mean to suggest that this is a perfect solution. Realistically, most employees will see this as a “perk” that should be used, and will make sure to take every single day off, whether they need to or not. That said, whether or not the personal days are paid or unpaid will certainly be a factor for many employees. Just as organizations assess how much vacation time to provide, they can assess whether providing personal days is realistic, and if so, how much they can provide. Doing so can eliminate the monitoring that is necessary to address abuse of sick days.

If employers do continue to provide designated sick days, I encourage them not to unnecessarily restrict themselves. I often see sick leave policies that provide that the employer can require a doctor’s note for absences of a certain number of days, usually three. However, we have all seen the employees that seem to become sick on the Fridays before long weekends. If the policy in place only allows the employer to require a doctor’s note for absences of three days or more, then they will not be able to insist that the employee justify his mysterious extra-long weekends with medical documentation. When I ask clients why they put that policy in place, they typically have no explanation. It is far more effective to give the organization the discretion to require appropriate documentation. So long as the discretion is not used in a manner that is discriminatory or for the purpose of harassing employees, employers will be able to manage absences more effectively.

There is no right or wrong answer in dealing with this issue. I would welcome comments as to what readers have tried, and whether the measures have succeeded.

Stuart Rudner
Miller Thomson LLP

© 2011 First Reference Inc. All Rights Reserved. | Permalink | 3 comments |

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“I get offended when someone refers to me as ‘dear’. I feel that it is condescending and even sexist.”

The above comment was expressed by one participant who was later mocked by some of the other participants for expressing this point of view.

“If that’s how a person was raised, particularly if they are older, you shouldn’t be offended by that. It’s a generational thing.

“Calling someone ‘dear’ is a term of affection; they don’t mean anything by it.”

“We have to stop being so over-sensitive.”

Another participant expressed surprise to have been given a quantity of alcohol as a prize in an office contest. This worker’s family doesn’t drink alcohol, and the worker wondered if this was appropriate in the workplace. The worker did not claim to have been offended and certainly did not claim to have been harassed.

Another participant responded by saying, “Just give the alcohol to someone who drinks. You don’t need to be so sensitive about it.”

I pointed out to the group that, as a recovering alcoholic, I am offended when someone assumes that everyone else enjoys alcohol and doesn’t have the courtesy to consider others before deciding to serve alcohol at a workplace function. I would be equally offended if I was allergic to peanuts or cologne and others used either of them without considering the needs of their colleagues first.

Does that mean that you are harassing a person when doing these things and that you should be sent home without pay?

Hardly.

But then the workshop conversation was not exactly about “harassing” per se. The conversation was about respect and about considering our attitudes and actions from the perspective of someone else.

I had asked people to share their experiences and feelings and to give examples of areas where they may be feeling disrespected in the workplace. I had intended to stimulate conversation; I very nearly started a war!

All of a sudden everyone was talking, some loudly, and expressing their various points of view. Mostly they were expressing frustration with the “over-sensitivity” of their co-workers.

I was shocked. Despite facilitating workshops on workplace discrimination and harassment prevention for as long as I have, I am always surprised by the pent-up frustration, and even anger, that participants display, when other participants talk about things they find offensive.

I dream of the day I hear a participant respond to colleagues’ comments by saying, “Your perspective is interesting; I never thought of it that way before.”

I would even be encouraged by something like, “I respect your point of view, but I see it differently. I guess we need to agree to disagree.”

“The starting point”, I say during the introduction of my workshops, “the starting point to workplace harassment prevention is mutual respect.”

It surprises me then to see some participants charge forward with their own agenda without regard, indeed without respect, for the perspectives of others.

This situation makes it clear that this workplace is definitely in need of this training!

How can we prevent the horrendous impact of workplace harassment when we have such a hard time listening to others without becoming so defensive?

The intent of Ontario’s Bill 168, the workplace violence and harassment provisions of the Occupational Health and Safety Act and the Human Rights Code is to prevent, on one hand, disrespect for who and what we all are.

On the other hand, the intent of these instruments of law is to prevent stress, illness, lost time, injury and even death. Is that worth talking about?

Andrew Lawson

www.learndl.ca

© 2011 First Reference Inc. All Rights Reserved. | Permalink | 2 comments |

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The case involved an individual living in Toronto, who suffered from some congenital conditions that caused him to live with a great deal of pain. Though he tried several strong prescription painkillers, he experienced serious side effects, developed tolerance, or was unable to function at all. Eventually, he discovered that marijuana helped with his pain. This led to him obtaining an ATP. He smoked about 14 grams of marijuana per day.

The problem came when the applicant tried to smoke his medical marijuana in public places such as restaurant patios with the cigarette smokers. He was expressly refused the right to consume his medicine in about 16 establishments. The owners understood that he had the ATP, but stated that though they wanted to accommodate him, they had a liquor licence they had to abide by. Section 45(2) of Regulation 719 under the Liquor Licence Act says the proprietors of licensed establishments can be fined or lose their licence if they let customers smoke marijuana. The managers would say things like, “Just smoke outside the door and I’ll advise the staff you have an exemption and to leave you alone.”

The tribunal agreed that there was a prima facie case of discrimination based on disability, but this discrimination could be justified. That is, the provision under Regulation 719 was reasonably necessary, and accommodation of individuals with ATPs would result in undue hardship. On the other hand, this was not the case for simply possessing medical marijuana, so an order was made that this part of the provision should not be enforced.

What did it come down to? The respondents pointed to the evidence about harm of “sidestream” smoke that left levels of THC (tetrahydrocannabinol, the effective medicinal ingredient in marijuana) in the bodies of people nearby the smoker who passively inhaled the smoke. How much THC left in the body is in dispute among the medical experts, however.

The tribunal stated, “I find, based on the expert evidence, that sidestream marijuana smoke poses a risk to passive inhalers in open-air environments such as uncovered patios of restaurants and bars. There is a risk of a pharmacological and/or toxicological effect. Some level of ‘impairment’ is also possible.” In other words, persons who inhale the sidestream smoke might experience some degree of marijuana “high”.

Consequently, the respondents were able to establish that there was a serious risk to passive inhalers from sidestream marijuana smoke, giving rise to undue hardship. Thus, the measure, while discriminatory, was reasonably necessary to accomplish a legitimate legislative purpose. The challenged provision was justified as it pertained to smoking the medical marijuana.

However, the court ordered that ATP holders are allowed to possess medical marijuana while attending the establishments in question. Also, the decision applies only to smoking marijuana, and leaves open the possibility of orally ingesting the drug while in these establishments.

What does this mean for employers? Employers must be aware of this rule if they are owners of liquor-licensed establishments, and they must train their staff to act in accordance with the law.

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2011 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

So who really let the guide dogs out? The problem with this story is that guide dogs have been allowed on public premises via the Blind Person’s Rights Act for some 21 years. The Act also prohibits discrimination in housing and clarifies other issues important to people who are blind.

For 21 years we have had a provincial law that many people are still not aware of. A service dog should not be such an issue when discussing new rights under the Accessibility Standards for Customer Service. What is new in the standards is that all service animals are allowed on public places unless excluded by another law, usually for health and safety reasons.

I remember in 2009, when a cab driver’s license was revoked for refusing Ms. Nolan entry with her guide dog. The driver showed no remorse. Then there was another story of a taxi company that would not commit to a policy allowing guide dogs in their taxicabs. My immediate personal reaction was: what are they thinking? The law is the law, and a driver and business owner were pondering whether they would choose to comply with this law? One might think after the driver lost his license and there was plenty of press covering the story that Ms. Nolan would not encounter the same discrimination again. Wrong; and we are likely to see more confusion on this topic in the new year when all service animals are allowed in places where the public is admitted.

Blind persons already have a legal right to pursue their complaints in court and need not wait for businesses and other organizations to comply under the Accessibility for Ontarians with Disabilities Act (AODA). The fines and penalties for non-compliance under the AODA have been explained here. Ms. Nolan can use this avenue to seek compliance, but one complaint does not trigger financial penalties. The AODA requires three complaints against an organization before specific actions are taken. In the interim, educating non-compliant organization is the primary goal. But people who are not blind and require a service animal that is not a dog are likely to meet discrimination, and can complain using the customer service standard as their avenue to seek justice.

I recall a professor in Greek and Roman history who stated a law only becomes a law when the public is irritated enough by a specific action committed by too many people. In this case, people with disabilities have been bothered for far too long and seniors have similar complaints. With 15.5 percent of the population requiring protections, and the numbers only increasing in the future, they are now a large enough group to insist their rights be enforced.

If you have learned about the rights of people with disabilities to bring their service animals onto your public premises, then please follow the regulation. If you own a pet, do not try to pass it off as a service animal, because this will just cause commotion. Before we know it there might be more laws limiting your personal pet’s right of access to certain public places. We are picking up our pooches’ poop now by a law created because owners allowed their pets to defecate everywhere.

A service animal is a necessity and it trumps how we feel. Personally, I love animals, so I am fine with this regulation. I have seen the calming effect of a guide dog in an office environment. I look forward to people with disabilities feeling more secure in the public domain, and if the animal is necessary due to a disability then I’m happy to say, get out of the house, and meet this kinder, educated public that embraces diversity and your service animals.

Suzanne Cohen Share
Access (SCS) Consulting Services

© 2011 First Reference Inc. All Rights Reserved. | Permalink | 3 comments |