Once an employee has been afforded accommodation for his disability, is the specific accommodation set in stone forever, or can an employer alter the specific accommodation, so long as it does not do so in a way that would result in discrimination?
In City of Toronto v. Canadian Union of Public Employees, Local 79, 2019 ONSC 4045 (CanLII), the Ontario Divisional Court rejected the argument that an employer cannot alter an accommodation.
Is a stated “desire” to return to work, at some point, and without more information, sufficient to rebut the medical evidence that a contract of employment has become legally frustrated?
In Katz et al. v. Clarke, 2019 ONSC 2188, the Ontario Divisional Court held that was not.
Does the inability to reliably test for cannabis create an undue hardship for employers with respect to their duty to accommodate the use of medical marijuana?
In International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers' Association Inc., 2019 NLSC 48 (CanLII), a judge of the Supreme Court of Newfoundland and Labrador found to be reasonable a labour arbitrator’s earlier decision that it did.
(c) istock/utah778
Is an employee required to submit to an independent medical examination, an “IME”, by a doctor of his employer’s choosing as part of the employee’s duty to participate in the human rights accommodation process? In a decision released May 19, 2017, by the Ontario Divisional Court, Bottiglia v Ottawa Catholic School Board, 2017 ONSC 2517, the answer was “sometimes.”
Is an employee required to prove that his employer “failed to accommodate” his parental status in order to succeed in a human rights case in Ontario? Or must the employee establish only that his employer breached his rights? Does an employee have a freestanding right to be "accommodated to the point of undue hardship?"
In a case concerning an employee whose employment was terminated after he took days off work to care for his sick children, Miraka v. A.C.D. Wholesale Meats Ltd., 2016 HRTO 41, Vice-Chair Sheri D. Price confirmed that an employer’s inability to accommodate an employee’s family status operates as a defence to an allegation; it is not a requirement of the applicant to show that the employer could not do so.
Is a request to take leave without pay from mid-July to the end of August, in order to care for one’s disabled child, a reasonable request, which an employer must accommodate to the point of undue hardship?
For most employers unfamiliar with the provisions of human rights legislation, the question may seem ridiculous or incredible. Certainly no employee could demand to have the entire summer off, simply because one’s child is not in school.
However, in a decision released by the Northwest Territories Human Rights Adjudication Panel, A.B. v Yellowknife (City), 2016 CanLII 19718 (NT HRAP), the answer was that the employee was entitled to have the requested leave of absence and a finding was made that the employer had discriminated against the employee, on the basis of family status, by failing to accommodate her to the point of undue hardship.
Can an employee suffering from the disease of alcoholism be punished for her behaviour if her disease contributed to the behaviour under review? What if the employee is a police officer?
The issue of alcohol dependency among first responders is an interesting subject. Police officers are people, susceptible to any number of diseases and disabilities. Alcohol dependency has consistently been held to be a “disability” under human rights legislation. Human rights legislation prescribes that employers have a duty to accommodate disabilities, including alcohol dependency, to the point of undue hardship. So therefore, if a police officer has a problem with alcoholism her employer, the police, must accommodate that disability, correct?
In the case of Mansley v. Canada (Attorney General), 2016 FC 389 (released April 7, 2016) the Federal Court was asked to judicially review a decision of the Canadian Human Rights Commission to decline to investigate an allegation of adverse differential treatment by the RCMP on the basis of alcoholism and post-traumatic stress disorder.
In deciding to upheld the Commission’s decision the Honourable Justice B. Richard Bell held that the Commission’s decision, based on the findings of any investigation report, met the standard of reasonableness and fell within the range of possible, acceptable outcomes which are defensible in respect of the facts and law. Mr. Justice Bell was also satisfied that the investigator conducted a thorough and neutral analysis based on the various sources of information available to her and there was no bias, apprehension of bias or breach of procedural fairness.
Is a woman's miscarriage a “disability” under Ontario’s Human Rights Code? Based on the media headlines following a decision by the Human Rights Tribunal of Ontario, Mou v. MHPM Project Leaders, 2016 HRTO 327 (CanLII), most people would now likely answer “yes.” But did the Human Rights Tribunal really just say that suffering a miscarriage can qualify as a “disability” under the Code?
Employees who become injured either at work or as a result of their workplace are especially vulnerable to losing their employment. This fact is recognized in Ontario law by the express inclusion of “injuries or disabilities for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997" in the definition of “disability” set out in the Ontario Human Rights Code. (Section 5 of that law provides that, “Every person has a right to equal treatment with respect to employment without discrimination because of… disability.”)
Notwithstanding this ostensible legal protection, injured workers continue to suffer workplace discrimination, often losing their employment as a result.
The case of Nason v Thunder Bay Orthopaedic Inc., 2015 ONSC 8097 (CanLII) provides a paradigmatic example of what can go wrong after an employee gets injured.
In this post, I will look at a single issue considered by the court in this case: Must a disabled employee who wants to return to work communicate the physical ability, not just the desire, to return to work?
The Ontario Human Rights Code is a powerful law, capable of addressing serious systemic issues related to, amongst other things, employment. But, it is not a panacea.
On December 29, 2015, I authored a blog post titled Law & Order: Special Victims Unit - How the Human Rights Code is Changing Ontario Employment Law. In that post I wrote that:
Unless the employee alleges a violation of the [Human Rights] Code, which requires the employee to demonstrate that one of his or her distinguishing features was somehow a factor in the decision to subject the employee to harassment (or some other form of negative treatment), the employee has no comparable remedy. Employees subject to ‘everyday' harassment have no real ability to have someone ‘in charge’ review their employers’ actions.
A case from the Human Rights Tribunal of Ontario, Luthra v. CAPREIT Limited Partnership, 2015 HRTO 1658 (CanLII), released on December 8, 2015, with reasons for decision authored by Vice-Chair Jo-Anne Pickel very clearly demonstrates that point.
Although the Applicant successfully proved that she was a person suffering from a disability (she had epilepsy) and had her evidence accepted that she may have been discriminated against and harassed in employment, (which only served to aggravate her medical condition,) because the Applicant had not alleged that she suffered such discrimination and harassment because of her disability, the Tribunal was legally impotent to address the situation. The Application was dismissed.
As an additional point of interest, in the Luthra case, the Applicant had alleged that her employment was inappropriately terminated because she was not guilty of the “offences” her employer alleged. As Vice-Chair Pickel noted, although the Human Rights Code does speak to protection from discrimination on the basis of a “record of offences,” that term does not mean what most people think it means and cannot be used a means by which the Human Rights Tribunal can review the appropriateness of any workplace punishment.
Luthra is thus an important read for any person considering bringing a Human Rights application against his or her employer.
What will be the court’s censure for an employer’s unwillingness to accommodate its employees’ childcare arrangements, except where legitimate, justifiable grounds exist for being unable to do so? According to the Honourable Justice Susan E. Healey of the Ontario Superior Court of Justice, no less than $20,000.
In her reasons for decision reported at Partridge v. Botony Dental Corporation, 2015 ONSC 343, affirmed on appeal 2015 ONCA 836, Justice Healey threw the proverbial book at an employer who not only falsely alleged just cause for dismissal, but also engaged in acts of reprisal and violated one of its employee’s human rights after the employee had taken maternity leave.
In another good hard look at the consequences of messing with an employee’s right to return to work following maternity leave, (see also the case of Bray v Canadian College of Massage and Hydrotherapy, 2015 CanLII 3452 (ON SCSM), a decision of the Ontario Small Claims Court, summarized by this blog in the post Ontario Small Claims Court Awards Human Rights and Punitive Damages after New Mom Constructively Dismissed,) Ontario’s judges continue to demonstrate that an employee’s right to take parental leave is pretty much sacrosanct.
What can the American television programme Law and Order teach us about employment law in Ontario? Not a lot, really. But the opening line from the Special Victims Unit franchise does illustrate one point, which will be of increasing focus in the coming years:
In the criminal justice system, sexually-based offenses are considered especially heinous. In New York City, the dedicated detectives who investigate these vicious felonies are members of an elite squad known as the Special Victims Unit. These are their stories.
Why do I reference Law and Order SVU on an Ontario employment law blog? Because if the opening words of that show teach us anything, it is that different crimes are treated differently by the justice system. Nowhere in the Ontario employment law context is this disparate treatment more acute than with respect to the issues of workplace harassment and discrimination.
Let us compare and contrast two decisions, both from the Court of Appeal for Ontario: Piresferreira v. Ayotte, 2010 ONCA 384 (Cronk, Lang and Juriansz JJ.A.) and Partridge v. Botony Dental Corporation, 2015 ONCA 836, (Laskin, Pardu and Roberts JJ.A.)
Earlier this year I wrote about a decision of the Public Service Labour Relations and Employment Board (“PSLREB”), in which Member Augustus Richardson held that an employee’s work requirements that impacted on that employee’s breastfeeding schedule did not constitute discrimination on the basis of either sex or family status. See: Employers Need Not Accommodate Employees “Choice” to Breastfeed - PSLREB.
Now the Federal Court of Appeal has judicially reviewed that decision and a panel of three judges (two women and one man) upheld it.
In its decision rendered November 10, 2015, (Flatt v. Canada (Attorney General), 2015 FCA 250 (CanLII)), the Federal Court of Appeal upheld the decision that the employee’s decision to breastfeed her child was a “personal choice”, holding specifically at paragraph 35 of its reasons for decision that, “Breastfeeding during working hours is not a legal obligation towards the child under her care. It is a personal choice.”
Some people are going to disagree.
“You have the right to remain silent.” Those seven words are a fundamental principle of the Canadian criminal justice system. But what about the intersection of disability leave and employment law? Does an employee have the right to remain silent when his or her employer asks for an update on his or her health or an estimate of when the employee may be able to return to work?
While a lot of workers may believe that the answer to those questions is “yes”, in the case of Betts v IBM Canada Ltd., 2015 ONSC 5298 (CanLII) the Ontario Superior Court of Justice held otherwise.
Writing on behalf of the court, the Honourable Justice Diamond held as follows, “Even an employee suffering from medical issues is not immune from being found to have abandoned his/her employment.”
Are work requirements that impact on an employee’s breastfeeding schedules discrimination and, if so, are they discrimination on the basis of sex or family status or both? And does the distinction, if any, matter? What is necessary for a grievor to establish a prima facie case of discrimination on the basis of breastfeeding? What duty, if any, does an employer have to accommodate an employee who is breastfeeding, and how far — and for how long — does that duty extend?
Those were the questions that Public Service Labour Relations and Employment Board member Augustus Richardson was asked to answer in the case of Flatt v Treasury Board (Department of Industry), 2014 PSLREB 2 (CanLII). Not easy questions to be sure.
Is it be ‘illegal’ to ask someone in a job interview whether he or she smokes cigarettes?
While the answer remains unclear, there is a compelling argument that the answer may be yes, in some cases.
On May 2, 2014, the Federal Court of Appeal confirmed that employers have a legal obligation to accommodate their employees' “childcare obligations” as a component of their duty to accommodate an employee’s “family status.”
In its decisions in the parallel cases of Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII) and Canadian National Railway v. Denise Seeley and Canadian Human Rights Commission the Federal Court of Appeal confirmed that the definition of “family status” in the Canadian Human Rights Act includes “parental obligations.”
Can an employer in Ontario legally fire someone who gets injured at work and then, as a result, becomes unable to work? According to a case from the Human Rights Tribunal of Ontario, Gahagan v. James Campbell Inc., 2014 HRTO 14, the answer is: yes, as long as you can demonstrate an inability to accommodate that person in employment and that it is clear that the employee will unlikely be able to ever work again.
