Maureen and Steve

Maureen and Steve work together in a downtown office setting. Maureen is new to the office and she and Steve hit it off from her very first day. One day, however, Steve made comments to her that crossed the line of respectful office banter. Maureen was visibly upset and did not attempt to hide her reaction from anybody.

Shortly after becoming co-workers, Maureen and Steve had quickly developed a rapport with each other that allowed for playful teasing back and forth. Their conversations were often of a sexual nature or included subtle sexual innuendo. One fateful day, Steve said to Maureen something to the effect of, “Your voluptuous breasts . . .” and Maureen became visibly upset.

Steve was instantly aware that his new office companion was deeply affected by what he said and approached her about it. Maureen explained to Steve that his comment was very personal and he should avoid future comments of a similar nature. Steve apologized and said although he was confused by what happened he would avoid such comment in the future. Steve may have been left to wonder if he had committed sexual harassment.

Morris and Everett

Morris has been Everett’s supervisor for over six years. Recently Morris had hired several administrative assistants and was giving the new recruits a workplace tour. The entourage stopped near the area where Everett was working and Morris introduced
everyone. “Everett is your go-to person, ladies, for advice on fashion, hair, make-up or anything else a girl needs to know these days.”

Everett smiled and said hello and didn’t let on that he was mortified by this introduction. He later shared his concerns with a co-worker who suggested Everett go and speak to Morris about how this incident made him feel.

Do you think Morris has discriminated against Everett on a prohibited ground under human rights legislation? Sexual harassment? Sexual orientation?

Feedback

In my next blog post, in two weeks, I will follow up with a summary of your comments on these scenarios along with how I responded to each of these participants from a workplace human rights perspective.

I would love to get some feedback and your honest reactions to the scenarios found in this post.

Andrew Lawson
Learn Don’t Litigate

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

It was only a matter of time before Canadian advocates on behalf of people with disabilities would ask for a federal program or plan to meet Canada’s obligations to the United Nations. Canada signed and ratified the UN Convention on the Rights of Persons with Disabilities (CRPD), which came into force on May 3, 2008. We joined 147 other countries that that have signed the convention, 95 of which have ratified it. On a global scale, each country that signed or ratified the convention is moving forward to achieve accessibility for people with disabilities. The convention clarifies how all categories of rights apply to persons with disabilities.

You may ask why there is not already a federal initiative that enforces a uniform method to achieve accessibility throughout Canada. Provinces are approaching the subject separately and a federal framework or plan seems to be common sense. To date, there is no indication that a federal program is forthcoming. Nonetheless, various disability advocacy groups are encouraging the federal government to take a leadership position. This month, the Council of Canadians with Disabilities (CCD) and Canadian Association for Community Living (CACL) released a Working Paper on the UN Convention on the Rights of Persons with Disabilities to start a dialogue on this topic and propose actions for implementation.

The working paper calls for “national mechanisms for implementation, monitoring and reporting” to achieve the obligations of the convention. These advocacy groups are asking for the federal government to enact Article 4 of the convention. Article 4 states people with disabilities or their representatives will be consulted and involved in implementing the convention. A core call for action includes “a national framework for implementation”:

Design a National Framework for Implementation, or a National Action Plan, to ensure Canada meets its obligations in Article 33(2) and to provide the vision and overarching framework for successful implementation of the CRPD. A detailed implementation action plan would identify necessary mechanisms for collaboration, benchmarks for monitoring and reporting, and strategies for priority areas for action the disability community has identified, including:

Access to disability supports

Poverty alleviation

Labour force participation

Accessibility and inclusion

Canada’s international leadership

The authors have crafted an intelligent and reasonable plan to achieve the obligations in the convention—including actions that the federal government has already promised. They don’t demand the government fix the world this minute, but instead call for an advisory panel including people with disabilities as participants. It is important to note that these two advocacy groups stayed within the legal confines of the convention and the presently unsigned or ratified Optional Protocol. The Optional Protocol allows for a UN committee to be assembled that will review the progress of participating nations.

All Canadians will benefit from a national program of action that is transparent, accountable and measurable. Achieving accessibility for people with disabilities requires national leadership that does not leave individual communities with the task of identifying the work to be done.

There are many reasons for the general public to support this call to action. Organizations will benefit from a national plan that prescribes minimum requirements, timelines and guidelines. A comprehensive national plan of action will help Canadians to understand their commitments and identify priorities. Organizations can use a national plan as a baseline to educate staff, volunteers and third parties on expectations. With access to a broad bank of diverse information, national organizations will be able to rapidly understand their obligations and changes that require a financial remedy.

When I use the words minimum standards, I do not mean the federal government needs to have weak legislation that can be bettered by provinces, municipalities, regions or organizations. A strong federal framework will mean that everyone can relax about enacting additional legislation.

Disability advocacy groups understand that federal leadership means everyone in Canada can be on the same path. This call for action is a win-win situation for everyone. Perhaps we can all find out what is the best way to convince the federal government to act on this working paper or at least tell us if there is a plan in the works.

Suzanne Cohen Share, M.A.
Access (SCS) Consulting Services

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

Image taken from: www.cbc.ca

Elsa Torrejon was diagnosed in early 2009 with breast cancer. After telling her employer about her illness and requesting an indefinite leave to receive treatment, she found herself dismissed and fighting for her human rights.

On July 12, 2010, the Human Rights Tribunal of Ontario awarded Torrejon $22,640 for general damages and lost wages after ruling that her former employer discriminated against her on the basis of disability when it fired her days after she told them about her diagnosis.

After being dismissed, Torrejon wrote a letter to her supervisor setting out the requirements of the Human Rights Code to accommodate workers with disabilities. He testified that he did not read that letter at the time, and only looked at it two days before the hearing of this matter. He also testified that he failed to educate himself on the provisions of the Code.

In addition, the supervisor erroneously believed that under the Employment Standards Act, he had no obligation to accommodate any period of a disability-related leave. The judge set him straight:

The employer had “a duty to make an individualized assessment of whether it could accommodate the applicant, which it failed to do. The respondent did not lead evidence at the hearing that it could not accommodate the applicant’s absence.”

As we say in legal circles, Ignorantia juris non excusat.

In English: ignorance of the law is no defence! The legal principle being that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content.

Applying this principle to this case: an employer that does not educate itself about its obligations under the Human Rights Code, and any employment-related law and how they work together will not be successful in arguing it does not have to accommodate an employee to the point of undue hardship.

This is why training and education are so important for those who manage employers’ human capital. In addition, staying abreast of changes in the law or it’s application is even more important.

The Ontario Human Rights Commission ordered the employer to ensure its employees completed the commission’s online course, Human Rights 101, and to confirm in writing that they had indeed completed the training.

So what should the employer have known about dealing with an employee who is ill? Here is a brief overview:

In Ontario, even if the Employment Standards Act is silent about sick leave, and does not require an employer to provide paid sick leave, employers with 50 or more regular employees must provide eligible employees with 10 unpaid days of personal emergency leave each calendar year.

Personal emergency leave can be taken for the following reasons:

• Personal illness, injury or medical emergency
• Death, illness, injury, medical emergency or urgent matter relating to the following family members:
  • A spouse (including both married and unmarried partners, of the same or opposite sex)
  • A parent, step-parent, foster parent, child, step-child, foster child, grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse
  • The spouse of an employee’s child
  • A brother or sister of the employee
  • A relative of the employee who is dependent on the employee for care or assistance

Note that employees are not entitled to personal emergency leave for medically unnecessary cosmetic surgery unrelated to an illness or injury. An employer is allowed to ask an employee to provide evidence that he or she is eligible for a personal emergency leave. The employee is required to provide evidence that is reasonable in the circumstances.

Employees cannot carry over unused personal emergency leave days to the next calendar year. The 10 days of personal emergency leave do not have to be taken consecutively. Employees can take personal emergency leave in part days, full days or in periods of more than one day. If an employee takes only part of a day as personal emergency leave, the employer can count it as a full day of leave.

Employers with 49 or fewer employees are not required to provide personal emergency leave, but may do so if they wish. However, where an employee is absent from work because he or she is suffering from an illness or disability, the employer does not have just cause to summarily terminate the employment relationship simply by reason of the employee’s absence. The absence from work due to illness or disability does not breach the contract. However, a long absence may “frustrate” the employment contract, which can discharge the parties’ respective obligations under the contract. In cases where an employee suffers an obvious permanent illness or disability, and the condition prevents the employee from carrying out his or her job requirements, frustration of the employment contract is clear.

However, no matter the size of your business, under the Ontario Human Rights Code, all employers have a duty to accommodate an employee’s disability, illness or injury to the point of undue hardship, and the employee has a duty to co-operate and communicate with the employer during and after the accommodation process has been established.

Accommodation will often include a leave of absence to allow the employee time to deal with and recover from the illness. There is no fixed rule as to how long a disabled employee may be absent before the employer meets its duty to accommodate. Human rights commissions indicate that it depends on the employee’s ability to resume performing the essential duties of her or his job, considering the unique circumstances of every absence and the nature of the employee’s condition.

Nothing in law requires you to provide a paid leave of absence unless you have a policy or insurance benefits that says otherwise.

Factors that employers must consider when dealing with employee absences due to illness are:

• Predictability of absences both: when they will end and if they might recur
• The frequency of the absence; the employee’s prognosis and length of absences (it is more likely that the duty to accommodate will continue with a better prognosis, regardless of the length of absence)
• The nature of the business and the operational needs

When dealing with an illness that will exceed three days, you should always ask the employee’s doctor to provide you with a prognosis of impairment, to confirm:

• The existence of a disability (without getting a specific diagnosis)
• If and how long the employee will need to be absent from work
• How long the impairment will last (permanent or temporary)
• What you can do to accommodate the employee’s impairment and allow the employee to continue to work
• How long you need to accommodate the impairment

An employee with a disability should be assessed in terms of his or her ability to perform essential duties of the job, and cannot be judged incapable of performing them until efforts have been made to accommodate him or her up to the point of undue hardship. The first step to accommodation is to distinguish the essential from the non-essential duties of the job (although courts and other decision-making bodies have provided little guidance on how to do this). Where possible, non-essential duties should be re-assigned to other employees.

An employer shouldn’t determine that a disabled employee is unable to perform the essential duties of a job without actually testing the person’s abilities. It is not enough for the employer to assume that the person cannot perform an essential requirement; rather, it must determine that fact objectively. The most appropriate accommodation is the one that meets the individual’s needs, promotes the employee’s integration and encourages full participation in the workplace and ensures dignity and confidentiality.

Case law is clear that the employer has to determine whether there are different ways the employee could perform the work while still accomplishing the employer’s legitimate work-related purpose. As much as possible, the employer must respect the skills, capabilities and potential contributions of the disabled employee.

According to most human rights commissions’ policies on accommodation, integration in this context means inclusiveness: taking steps to facilitate the employee’s equal participation in the workplace, as opposed to creating a separate system to accommodate the employee’s needs.

The Supreme Court of Canada states that the employer has a legal obligation to show that it has considered all viable forms of accommodation. If an employer rejects these forms, it must be able to show why each rejection was reasonable.

There are some limits to employers’ obligation to accommodate. For example, an employer is not required to create a new position to satisfy the needs of the employee. Nor is an employer required to maintain a position indefinitely for an employee who cannot attend work due to a disability.

Employers are permitted to terminate an employee’s employment where the employment duties have become impossible to perform or the contract has been frustrated by a fortuitous or unforeseeable event or circumstance. If an employee is unable to perform her or his pre-disability job, and there is no chance in the foreseeable future for the employee to do so, the courts have stated that an employer would have the right to dismiss.

However, before terminating, you must ensure you have done everything possible to reasonably accommodate the employee to the point of undue hardship, and you must have medical evidence indicating that the employee cannot do the job he or she was hired for and will not be able to for the foreseeable future or permanently.

You should also remind the employee that he or she has an obligation under human rights to communicate with you and co-operate in the accommodation process and during the leave of absence.

Yosie Saint-Cyr
Human Resources and Compliance Managing Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | 2 comments |

Under the Human Rights Code, an employer is required to take whatever steps it can to accommodate a disability of an employee, so long as such steps do not cause “undue hardship” to the employer. In considering what is undue hardship and how far the employer’s duty to accommodate illness will go, the Supreme Court of Canada has held that “the employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future”. In that case, the medical opinion presented to the trial court indicated that the plaintiff would not be able to return to work.

The case law is also clear that where an employer relies on an inability of the employee to work as grounds for frustration of the contract, the onus is on the employer to establish that frustration. For example, in one decision, the Ontario Superior Court refused to find that the contract had been frustrated even though the plaintiff had been absent from work for approximately 14 months. In that case, the trial judge had held that the evidence demonstrated that there was a hope that the plaintiff would be able to return to work eventually.

It has also been held by the Ontario court that, in determining whether or not disability will constitute frustration, the court must consider the entirety of the relationship. The court must look at whether or not the illness or incapacity is of such a nature that it is likely to continue for a period of time, or that it would be unreasonable for the employer to wait any longer for the employee to return to work. The position held by the absent employee will also be a relevant consideration. For example, in one Ontario case the judge felt that, “when the absent employee is a senior executive whose absence cannot be long tolerated if the business is to succeed then a relative short period of incapacity may frustrate the contract”.

The most recent decision on this issue was released on June 15, 2010, by the Ontario Superior Court. The case dealt with a claim brought against Costco Wholesale by a former employee dismissed as a result of an alleged inability to return to work. In this case, the employee had been off work for almost four years, and there was no stated prospect of his imminent return. In its decision, the court rejected the employer’s position that the absence resulted in frustration of the contract. First of all, the court found that the onus was on Costco to prove that the employee “can no longer fulfill the basic obligation of his job for the foreseeable future”. Costco failed to bring any medical evidence to support such a finding. It is interesting to note that the judge considered the fact that Costco had provided a long-term and short-term disability program, which he felt was evidence of the fact that a long-term disability and possible return to work were in the contemplation of the parties when the employment commenced.

The court therefore held that the employee had been wrongfully dismissed and awarded the employee 10 months pay in lieu of notice.

It should be pointed out that this result could have been avoided if Costco had had a clearly written disability policy dealing with long-term disability of its employees.

Earl Altman
Garfinkle, Biderman

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

You can read all about the Customer Service Standard in Christina’s recent post.

Somehow, hearing about removing barriers for people with all sorts of disabilities put me in a wistful mind, and got me thinking a bit old-fashioned. I thought: it’s easy to be afraid of these changes, because naturally we’re going to imagine that they’ll all require some advanced and expensive technology infrastructure. But do our solutions have to involve technology?

In the not-too-distant past, many buildings that received visitors “removed barriers” with door persons to lend a hand and open doors, concierges to offer direction, porters to carry packages and guide the way, elevator operators to assist, and so on. This was before talking elevators and automatic doors made all these jobs obsolete of course, although certainly some buildings and organizations still employ these useful anachronisms. But I wonder how a blind person is supposed to find the button to activate the automatic door in the first place.

This is where a real live person beats a machine—imagine!

Certainly there will be technological solutions; you don’t have to doubt that for a second. GPS, for example, will be the basis for many helpful applications for blind persons and people with intellectual disabilities. But when it comes to installing technology infrastructure like automatic doors, smart talking elevators and other assistive devices, as well as making other structural modifications, such as adding ramps, might it be easier (maybe even cheaper) to have someone always on hand to assist a customer in need—someone who’s more than just a salesperson? And maybe more importantly, will such “low-tech” human solutions allow organizations to comply with the law?

What do you think? Are you going to have to make big changes to your premises to comply with the AODA? Have you even thought about it?

Read more about the Act in this post from Yosie.

Adam Gorley
First Reference Human Resources and Compliance Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | 2 comments |

Image taken from: http://www.thestar.com

In one clip, employees were bound face-to-face with duct tape on top of a large table in a workshop, while other employees threw water balloons at them. In another recording, an employee was bound with duct tape, put on the back of a truck and sent through a car wash. One clip even showed an employee, on his birthday, who was told to lean over a table, and other workers were instructed in turn to hit him, and to “hit hard and to kick or punch in the face, ribs or groin area”. If the blow didn’t appear hard enough, they were told to hit harder.

After viewing the video, the police became involved and started investigating the allegations. Peel police stated, “if you take the video alone and look at it, you would think that’s more than inappropriate. The potential there is, there’s a criminal act going on.”

Employees have claimed that the hazing had been going on for about five years. However, the employer has stated that it first learned about situations where employees in the transportation and works department were tied up with duct tape, spanked until they were bruised, and humiliated at the behest of one of their supervisors in November 2009. It was only then that the employer commenced its own investigation into the matter.

The employer’s investigation concluded the behaviour was in the nature of horseplay or locker room antics. According to the report, the employees viewed the conduct as “appreciated, good-natured, and voluntary”.

Yet the employer has been quoted in a news release as saying, “We want to stress how seriously we took the allegations and that in no way do we condone this type of behaviour”.

At this point in time, only one supervisor has been disciplined.

Furthermore, the Ontario Ministry of Labour got involved after receiving a call from one of the employees, and began investigating immediately. The inspector stated, “By the time we got there, the city had done their job and taken care of everything. They were in compliance and there were no orders issued.”

The questions I had after reading this story were:

• Was the behaviour really “appreciated, good-natured and voluntary”?
• Did the employer act quickly enough to commence an investigation?
• Has the employer done enough via discipline to make sure all individuals in the workplace understand this should not happen again?
• Has the employer done its job of creating anti-violence and anti-harassment policies and training its employees and supervisors about them?

One employee answered my first question with a plain “no”, and characterized the conduct as assault and harassment. He stated, “I can assure you it’s more than horseplay. It’s oppression. We live under fear”. He noted that employees were afraid of reporting the abuse for fear of losing their jobs.

With the new violence and harassment legislation coming into force in Ontario on June 15, 2010, employers should ensure they are ready for the changes. The conduct mentioned above could indeed be classified as workplace violence and harassment. Employers are recommended to conduct workplace assessments, create anti-violence and anti-harassment policies and procedures, and train all individuals in the workplace about workplace violence and harassment. There should also be established complaint procedures, investigation procedures and disciplinary consequences set out and consistently enforced.

I’m wondering: has your company encountered a situation that might have crossed the line, where the employer should have conducted an investigation, or put a stop to a potentially abusive situation? Ask yourself, are you really ready for the new workplace violence and harassment legislation? This case is a great example of violations of violence and harassment prevention under Occupational Health and Safety, as well as Human Rights legislation.

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

How can this be possible you say?

Employees have to work and listen to their managers’ instructions – that is why they earn employment income. Employers have the right to manage within their workplace.

A human rights issue may arise when an employee is so discontent with working and being given instructions that the employee develops a “disability” under human rights legislation in the form of “stress”, “blood pressure issues”, or a similar ailment, and gets a doctor’s note confirming that the workplace is making the employee ill.

For instance, an employee may obtain a doctor’s note and request a leave of absence due to “stress” from working. There could even be a situation where management and the employee have a dispute, the employee makes demands, management refuses to meet all the demands, the employee becomes ill and obtains a doctor’s note confirming the illness, and the employee insists on, and/ or threatens a constructive dismissal claim against the employer.

Under these circumstances, most employers would want to immediately terminate that employee.

However, I learned at the conference that it may not be in the employer’s best interests to act hastily and terminate the employee. Just because the employee is trying to use illness in order to justify his or her autonomy, a “disability” may be present, and the employer is recommended to follow a disability management process by:

• Obtaining medical evidence in order to understand the nature of the employee’s disability and the leave requested;
• Engaging in discussions with the employee in order to learn of his or her situation, accommodation needs, and options;
• Requesting any additional medical information and opinion necessary in order to understand the employee’s limitations to perform work to properly accommodate; and
• Working with the employee (and union if applicable) to facilitate an early return from a disability leave of absence to the previous job, or previous job with modifications, or a more appropriate job, or last resort – termination with a package (seek legal advice before doing this).

Whatever happens, employers are not recommended to say they refuse to accommodate the employee. The ideal situation is for an employer to offer the employee options without giving up management rights.

Communication, transparency, and effective disability management goes a long way in achieving a solution to this type of issue. For the confrontational employee who refuses to be managed – be proactive, patient, objective and apply your progressive discipline policy.

In a recent newsletter from the Canadian Centre for Occupational Health and Safety, I read about a new free resource The Workplace Mental Health Promotion: A How-To Guide - that provides both employees and employers with the tools and resources they need to create a healthy workplace. You should take a look.

I am sure it could help your company when next you encounter this type of situation where a human rights issue arose from a similar situation.

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

Image from: http://www.ccac-ont.ca

Are you ready for the Customer Service Standard under theAccessibility for Ontarians with Disabilities Act? I recently attended an informative labour and employment law conference by Davis LLP, and learned that many businesses appear to be unaware of the extent of their obligations under this first standard—and private sector organizations that provide goods or services with at least one employee in Ontario must implement the changes by January 1, 2012.

The point of the Act is generally to change attitudes and environments in Ontario’s workplaces, specifically by removing barriers for disabled persons at organizations that provide goods and services and employ Ontarians. A “barrier” means anything that prevents a person with a disability from fully participating in all aspects of society because of his or her disability, including:

• A physical barrier
• An architectural barrier
• An information or communications barrier
• An attitudinal barrier
• A technological barrier
• A policy or practice

The definition of “disability” under the legislation is quite broad, and includes:

• Any degree of physical disability, infirmity, malformation or disfigurement caused by bodily injury, birth defect or illness
• A condition of mental impairment or developmental disability
• A learning disability
• A mental disorder

According to the Ontario government, about 15.5 percent of Ontarians have disabilities; this is a significant amount of the population. Persons with disabilities must be able to participate in your organization without barriers.

But what can you do?

The requirements are quite complex, but there are numerous things that can be done in order to make an organization more accessible, including:

• Creating policies and procedures governing the organization’s provision of goods and services to persons with disabilities, and ensuring that the policies and procedures are consistent with equality, the dignity of persons with disabilities, and integrating service provision with persons with disabilities
• Ensuring that the created policies exist in accessible formats
• Enhancing communication methods of the organization taking into account persons with disabilities
• Having a feedback process for customers of the organization and making the process accessible to customers
• Addressing the use of assistive devices, service animals and support persons in the organization’s policies and procedures
• Addressing how the organization will prepare and provide notices of temporary disruptions of services (for example, when an elevator breaks down)
• Fulfilling reporting requirements established under the Act
• Providing training to members of the organization in order to develop the above-mentioned policies, and in order to interact with members of the public on behalf of the organization

Before commencing, it may be wise to conduct an audit of the premises and determine what is required to comply with the accessibility standard. Some goals may be accomplished with some renovations, while others may be done with some minor changes in procedure.

There are some hefty penalties for those who do not comply with the standard. Individuals could face fines up to $50,000, and corporations up to $100,000, for each day or part of a day an offence under the Act occurs or continues to occur.

Because of the complexities of the Act, it is time to start thinking about this now: 2012 is not that far away, and there are a lot of steps to implement to comply with these upcoming obligations. Has your company done a complete review of what is required in order to meet the accessibility standard under the Act?

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

As stated on the “International Day Against Homophobia” website,

“the right to fight homophobia, and all different kinds of discrimination for that matter, is in itself a human right. In other words, everybody has the right to make sure that their and other people’s rights, including those of gays and lesbians, are respected.”

The information on the website speaks for itself. The site provides information on the scope of the human rights protection offered in Canada and in Québec in general, and as it pertains to sexual orientation, homophobia and discrimination in particular. Enough said.

Happy Anti-Homophobia Day!

Andrew Lawson
Human Rights Advisor, Learn Don’t Litigate

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

• How the tribunal has handled applications under the new and transitional rules
• How best to prepare for success at the tribunal
• Damage awards after the cap: are awards really getting bigger?
• How the courts are handling their new powers to award damages for breaches of the Human Rights Code

The key premises of the new rules are:

• Immediate access to the tribunal
• Strict time frames for applicants and respondents
• Expanded disclosure obligations
• Rule-making and scheduling powers
• Mediation
• Transparency
• The creation of an independent human rights legal support centre
• The removal of caps on monetary awards
• New limitation periods

Under the new rules, individuals file human rights complaints directly with the Human Rights Tribunal of Ontario. The Ontario Human Rights Commission no longer has the legal authority to handle or refer complaints to the tribunal.

The purpose of the amended rules is that it makes it easier for individuals to access the human rights system, and to make the system more fair, efficient and effective. The tribunal also use the new rules to make sure employers are serious about their duty to accommodate. Not surprisingly, these changes are having significant effects on the way the tribunal interprets its cases, which in turn, is causing important direct and indirect effects on employers.

Stringer Brisbin Humphrey (co-sponsor of the Employment Law Conference) predicts that the changes will continue a trend in Ontario toward higher general damages, increasing restitution awards, and broader public interest remediation demands:

The tribunal is “increasingly utilizing more costly monetary remedies and more onerous and comprehensive public policy remediation elements to encourage employers to ensure compliance with equality rights guarantees. … Employers can anticipate the prospect of increasingly aggressive financial remediation (given the removal of limits on general damages) and more expansive and intrusive approaches to public policy interest remediation.

So, don’t get in trouble with employees who require accommodation! Well, it’s not as simple as that, is it? But you can learn what the new human rights system rules mean for you when you register for the 2010 Employment Law Conference—and Learn the latest!

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |