Hearing Racial Slur in Song Lyrics Not Prohibited Discrimination: BCHRT
Is hearing music that contains a racial slur, playing in a retail establishment, sufficient to establish discrimination under section 8 of the British Columbia Human Rights Code.
In a 2018 decision of the BC Human Rights Tribunal, Redmond v. Hollywood Boutique, 2018 BCHRT 121, the answer was “no”.
Is it a discriminatory act to ask someone applying for employment whether he or she is legally eligible to work in Canada on a permanent basis?
If the answer to that question is “yes”, then what is the effect of an applicant repeatedly lying about the answer.
In a series of decisions spanning a number of years from the Human Rights Tribunal of Ontario, the answers to those questions were “yes” and “not much.”
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.
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.
Is it a discriminatory practice and potential breach of the Ontario Human Right Code for a nursing home to prohibit nurses from stealing narcotics?
In the case of Regional Municipality of Waterloo (Sunnyside Home) v Ontario Nurses’ Association, 2019 CanLII 433 (ON LA), a labour arbitrator ruled that it was. Moreover, the arbitrator ordered that the registered nurse, who conceded that her employment had been terminated for just cause, reinstated to her employment.
What are the consequences for terminating an employee’s employment (for just cause no less) rather than investigating a legitimate complaint of harassment? In the case of Horner v. 897469 Ontario Inc., 2018 ONSC 121, which proceeded before the Honourable Mr. Justice W.D. Newton by way of an undefended trial, the answer was $20,000 in aggravated damages, plus $10,000 in punitive damages over and above the wrongful dismissal award.
Can an employer force an employee to wear a shoe with an elevated heel – aka “high heels” – if wearing such shoes is not required for the worker to perform his or her work safely?
As of November 27, 2017, and as a result of the implementation of the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017 C.22, formerly Bill 148, the answer to that question is “no” - unless you work in the “entertainment and advertising industry”.
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Can you sue someone in Ontario civil court exclusively for discrimination under the Ontario Human Rights Code? Definitely not, according to a decision of the Ontario Superior Court of Justice sitting at Ottawa involving Gene Simmons and a KISS concert: Lee v Simmons et al., 2017 ONSC 4980.
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Can an employee be fired for violating his company’s drugs and alcohol policy, if the reason he violated such a policy was because he was addicted to an illegal drug?
For many years, most Ontario employment and human rights lawyers would have hesitantly answered that question with a “probably not”. Those who practice management-side would have sighed in frustration while they provided such advice, while those who act for employees would have adamantly pointed to human rights’ legislation prohibiting discrimination on the basis of such a recognized disability.
In June of 2017, the Supreme Court of Canada released its decision in the case of Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII). In that case, Canada’s top court upheld a termination of employment on the basis that the employee had breached the company’s anti-alcohol and drugs policy.
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“The motion for leave to appeal is dismissed with costs fixed at $1,000.” With those thirteen simple words, Ontario’s top court has confirmed that employees in Ontario may sometimes be required to submit to an invasive medical examination - by a doctor of their employer’s choosing - as part of the duty to accommodate and return to work process.
On August 25, 2017, the Court of Appeal for Ontario released its endorsement on a motion for leave [read: “permission”] to appeal the decision of the Ontario Divisional Court in Bottiglia v Ottawa Catholic School Board, 2017 ONSC 2517 (CanLII).
This is a big deal for Ontario employment and human rights law.
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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 the tort of sexual harassment a recognized cause of action in the Province of Ontario? Put another way, in Ontario, can you sue in court if you are sexually harassed?
Two days ago, on April 16, 2017, I blogged about the case of Merrifield v The Attorney General, 2017 ONSC 1333, released February 28, 2017, in which the Honourable Justice Mary E. Vallee of the Ontario Superior Court of Justice found that “harassment” was recognized as a tort upon which a civil cause of action may be based. (See Ontario Superior Court Awards $100,000 in General Damages for Tort of Harassment.)
Surely, one would think, if you can sue for “harassment” in Ontario’s courts, you can sue for sexual harassment. However, as the case of K.L. v 1163957799 Quebec Inc., 2015 ONSC 2417 (CanLII) demonstrates, few things in law make such sense.
Update: The Court of Appeal for Ontario has since said that employees cannot sue for the Tort of Harassment either. See Tort of Harassment Not Available in Ontario Employment Context.
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Is a legal ban on requiring high heeled shoes in the workplace inevitable? Probably.
On March 8, 2017, Dr. Andrew Weaver, Member of the Legislative Assembly of British Columbia for Oak Bay-Gordon Head (Green) introduced a Private Member’s Bill, Bill M237 — Workers Compensation Amendment Act, 2017. As the explanatory note to the bill explained, that bill would have amended the BC Workers Compensation Act, RSBC 1996, c. 492, by prohibiting employers from setting varying footwear requirements for their employees based on gender, gender expression or gender identity. Consequently, the law (if it had passed) would have made employers unable to require select employees to wear high heels.
The bill died on the order paper when the legislature rose on May 9th, ahead of the upcoming provincial election. It never really had a chance.
But, is such a ‘ban’ either coming to Ontario or inevitable? I think so.
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Some decisions are just textbooks on employment law. They are ‘must read’ decisions for anyone looking to practice in this area. Boucher v Black & McDonald Ltd., 2016 ONSC 7220 is a key example of how to approach the following subjects: long-term absence; frustration of contract; human rights damages; and off-set of benefits for the receipt of long-term disability benefits.
The facts of the case are easy to understand and the statement of law is first-principles stuff. For anyone wondering what to do with an employee who has been absent from employment for a considerable period of time, here is a lesson in what not to do.
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Is it “illegal” to refuse to hire an immigrant simply because he is a “foreigner”? Of course it is. That question should be an absurd way to start a post on a blog about Ontario employment law. And yet, here I am.
Since the election of Donald Trump as the president-elect of the United States, there has at least been a perception of an increase, if not an actual increase, in the number of hateful acts being perpetuated on both sides of the border. Many point to Trump’s election as a form of license to engage in such shameful, ignorant behaviour.
Typically, racism in the employment world has been more subtle. Systemic preferences have yielded predictable but less overt results.
Sometimes, however, racist motivations are patent and obvious. The case of Bouraoui v. Ottawa Valley Cleaning and Restoration, 2014 HRTO 1303 is the quintessential archetype of overt, unabashed racism in employment. I highlight this case at this time for three reasons:
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Sometimes the most-qualified candidate for a position is not successful in her application. Where that candidate is also a member of a historically disadvantaged group, suspicions will arise that the candidate’s membership in that group was at least a factor in the decision to award the position to someone else. This suspicion can arise – and be quite legitimate – even in cases where the incumbent is also a member of a different historically franchised group. For example, where a woman is applying for a job currently held by a person of colour.
In cases of private employment, applicants who believe that their membership in a historically disadvantaged group was a factor in the decision to award the position to someone else can make an application to the Human Rights Tribunal of Ontario alleging discrimination in employment.
The case of Hussain v. Ottawa Police Services Board, 2016 HRTO 1386 demonstrates the challenges sometimes inherent in advancing such an argument.
Is a provincially regulated employer required to provide the reason that it terminated an employee’s employment if that employer does not allege that it had “just cause” to terminate the employment?
Conventional wisdom would be that the employer would not have to provide a reason. It is settled law that employers in Ontario may terminate the employment of any of its employees without cause subject only to two restraints: (1) the employer must provide the employee with reasonable notice of the termination; and (2) the reason for termination cannot be prohibited by law.
It was the second criterion, the reason for termination cannot be prohibited by law, that brought the issue of whether an employer had to provide its reason for the termination of employment into focus. According to a decision of Master Donald E. Short, Mezin v. HMQ, 2016 ONSC 5171, if an employee alleges that his employment was terminated in contravention of the provisions of the Human Rights Code, then the employer must provide particulars of its denial of such allegations.
Do employers have a legal obligation to protect their employees from the vitriol that may be hurled at them via social media? Put another way, is an employer obligated to take positive steps to attempt to protect its employees from being harassed online?
In a labour arbitration award dated July 5, 2016, Toronto Transit Commission and ATU, Local 113 (Use of Social Media), Re, 2016 CarswellOnt 10550 (ON Arb), Adjudicator Robert D. Howe said that the answer to those questions is “yes.”
What is the penalty for embarking on a “campaign of abuse”, intentionally designed to force a disabled employee to quit her job? In a June 2016 decision from the Court of Appeal for Ontario, Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520, Ontario’s highest court awarded nearly a quarter million dollars plus costs following the wrongful dismissal of a long-term employee who has harassed and belittled by her employer after losing her hearing.
There is a saying about the pace at which the wheels of justice move: they grind slowly. Perhaps no case better exemplifies that saying than that of Sharon Fair.
On December 15, 2003, Ms. Fair filed a human rights complaint, claiming that her employer, the Hamilton-Wentworth District School Board, had discriminated against her under the Ontario Human Rights Code by failing to accommodate her disability by placing her in a suitable alternate position.
The Human Rights Tribunal did not release its decision on the merits until 2012: Fair v. Hamilton-Wentworth District School Board, 2012 HRTO 350 (CanLII).
The decision on remedy, which has really driven the subsequent litigation, was not released until March 14, 2013: Hamilton-Wentworth District School Board, 2013 HRTO 440. In 2013, I proclaimed that decision the number one case of importance to Ontario employment law, see Ontario Employment Law’s Top Five Cases – 2013 Edition.
The School Board sought judicial review of the Tribunal’s decision and in 2014 the Ontario Divisional Court released its decision upholding the decision. I blogged about that decision in the post Appeals Court Upholds Employee’s Reinstatement 9 Years After Termination.
On May 31, 2016, nearly twelve and one half years after Ms. Fair filed her human rights complaint, the Court of Appeal for Ontario offered its opinion on the issue: Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421 (CanLII).
Once again Ms. Fair prevailed. With respect to the fact that many, many years had passed between the start of Ms. Fair’s case and the Tribunal’s order that she be reinstated, the express decision of the Court of Appeal was that, “The passage of years is not, by itself, determinative of whether reinstatement is an appropriate remedy.”
