OMHRA Spring Conference 2010 Michael Kennedy and Margaret Szilassy

OMHRA Spring Conference 2010


Michael Kennedy and Margaret Szilassy


Human Rights: Disability Accommodation and the New Tribunal


Defining Disability

• City of Montreal: result of physical limitation, ailment, social construct or perception thereof

• But not temporary illnesses experienced by everyone• Anderson: bronchitis not a disability

• Moulton: respiratory infection not a disability

3


Information Required to Trigger Duty to Accommodate

• Low threshold: whether the respondents knew or ought to have known that the employee has disability-related needs that require accommodation

• No absolute rule requiring specific diagnosis or nature of disability

4


Role of the Third Party Benefits Administrator

• Employers will be held responsible for actions of third party benefits administrators

• Third party sending mixed signals: Williams• Legitimate dispute over quality of medical

evidence v. harassment: Scarlett

5


Accommodation Process

• High standard placed on employers • Proactive duty to inquire: e.g., Wall, Simpson• Oak Bay test: all relevant information about

current medical condition, prognosis, ability to perform job duties, capabilities for alternate work

• Employer’s onus to prove options considered, steps taken

6


Reasonable v. Perfect or Preferred Accommodation

• Not perfect but reasonable: Alexander• Considered the fact employer accommodating

others: Saxon• Allegations of menial work or work beyond

restrictions critically analyzed: Leckie, Alexander, Akram

7


Undue Hardship

• Applying Hydro-Québec: the test is not impossibility

• Grzesiak: Is the proper operation of the business hampered excessively?

• More than impressionistic evidence required

8


ESA UPDATE


Case Law Update

• Service Calculation• Frustration of Contract

• William Osler and ONA (Shime)• Tembec v. USW IWA (Div. Ct.)

10


Case Law Update

• Remedies and Limitations• ESA Limitation Period Applied by Arbitrator

• Compass Group Canada (Beaver) Ltd. and UFCW (Brent)

• ESA Limitation Not Applied by Courts• Evangelista v. Number 7 Sales Ltd. (Ont. C.A.)• Matiowski v. Lake of the Woods Business Incentive

Corp. (Ont. S.C.)

11


Bill 168 Preventing Workplace Violence:


Domestic Violence

• 32.0.4 If an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.

13

http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90o01_f.htm#ys32p0p4


Employer Options (absent disclosure)

• Ensure domestic violence is addressed in Workplace Violence policy (or separate policy)

• Ensure it is clear to all employees through policy/procedures who the appropriate contact person is for domestic violence concerns (Dupont Inquest)

14



• Training for employees: e.g., how to recognize the signs of domestic violence; how to respond to an incident

15



• Provide information on community resources available in public locations (see links on TF)

• Ensure employees are aware that EAP is available for situations involving domestic violence

• Inform employees they must report any violent behaviour

• Domestic violence key contact or union/mgt team

16


Employer Options (with disclosure)

• Gather facts, investigate, assess threat, seek police assistance

• Provide victim with information re EAP, community resources and suggest they consider seeking medical attention

• Leave of absence for victim



• Develop workplace safety plan with victim, which could include one or more:• Panic button

• Cell phone with direct dial 911

• Allow flexible hours to make workday less

predictable

• Notifying security and reception re. how to proceed if

abuser attends at workplace (code words?)

18



• Workplace safety plan continued:• Temporarily relocate victim within workplace

• Notify co-workers to advise management if they are

contacted by abuser

• Provide escort to car or public transportation

• Provide parking spot close to entrance

• Advise save threatening voicemail or emails

received at work

19


Investigation Reports

• Does an employer have to share a harassment investigation report or workplace violence investigation report with the joint health and safety?

20



• s. 25(2)(l) …an employer shall…provide to the committee or to a health and safety representative the results of a report respecting occupational health and safety that is in the employer’s possession and, if that report is in writing, a copy of the portions of the report that concern occupational health and safety;

21



• s. 25(2)(m) …an employer shall…advise workers of the results of a report referred to in clause (l) and, if the report is in writing, make available to them on request copies of the portions of the report that concern occupational health and safety.

22


Bill 168 Disclosing People with a Violent History

• Provide information to workers about a person with a history of violent behaviour if:

(a) The worker can be expected to encounter that

person in the course of his or her work; and

(b) The risk of workplace violence is likely to expose

the worker to physical injury.

23



• Only the amount of information reasonably necessary to protect the worker

• “person” – other workers, customers, patients, etc.

24



• Proactive or Reactive Assessment of Persons?• Information that can or cannot be used?

• Ontario Student Records • Medical Records• Criminal/Police Records• Youth Criminal Justice Act records

25



• Policy with criteria of when person to be designated as having a history of violence

• Don’t let just anyone make the call – create a threat assessment team

26


Bill 168 – Risk Assessment

• What is it?• Only for workplace violence, NOT workplace

harassment

27


Bill 168 – Risk Assessment

• Assess the risk of workplace violence that may arise from:• The nature of the workplace

• The type of work

• The conditions of work

28


Bill 168 Risk Assessment

• Must take into account common risks at other similar workplaces

• Share results with JHSC or health and safety representative

• Reassess as necessary for the protection of the workers

29


Bill 168 Risk Assessment

• What does this mean to the employer?• Employee surveys / focus groups

• Review past incidents from security/HR

• Physical workplace inspections

30


Case Law Update


Plourde v. Wal-Mart SCC

• Turned on technical interpretation of Quebec Labour Code

• No interpretation of Health Services

32


Hendrickson Springs

• Issue about compensation in lieu of reinstatement

33


Fullowka v. Pinkerton’s SCC

• Duty of care owed by NWT government and security firm but no liability because they met standard of care

• National and local unions separate legal entities • No vicarious liability on part of national union

34


National Automobile et al v. Johnson Controls OCA

• Temporary lay-off provisions of ESA • Divisional Court upheld arbitrator decision that not

necessary to comply with s. 56(2)(b) in order to rely on s. 56(2)(c)

• Upheld by OCA

35


Fulawka v. BNS ONSC

• Class action for overtime pay allegedly owed to certain employees of BNS certified

• Distinguishes Fresco

36


OLG v. OPSEU

• Arbitration for using “N” word• 10-month suspension

37


Innisfill v. IPFFA

• Judicial Review of Arbitrator Shime• Two hatters issue

38


Orangeville v. OPFFA

• Two matter case• Grievance denied

39


Independent Electricity Market Operator v. CUSW OLRB

• Application for declaration of non-construction employer pursuant to sections 126 and 127 of LRA

• Arbitrator: to make such a declaration would infringe freedom of association rights as collective agreements/bargaining rights would be terminated

• Declaration infringes Charter and sections inoperative in this case

40


PSAC and Canadian Union of Labour Employees (Albertyn)

• To accommodate religious leave requests, employer should ask:• Is employee sincere believer in a particular religion?

• Is there a nexus between the religious occasion the

employee requests to observe and the religion

concerned?

• If the nexus is not obvious, has the employee’s

explanation of the nexus between the occasion and

his/her sincere religious belief established the nexus?

41


Legislative Update


FEDERAL

• Employment Insurance Act Regulation amendment• New electronic ROE process, March 2009• “old school” paper ROEs only

• issued to employee within 5 days of interruption of

earnings

• still applies when using / submitting paper ROEs

• Amendments permit ROEs to be issued electronically

43


FEDERAL

• Web ROE (Service Canada)• “new rule” (applicable to Web ROEs only):

• Issue it within 5 days of the end of the pay period during

which the interruption of earnings occurred

• Whether pay period is weekly, biweekly, semi-monthly,

monthly etc.

• Can give employers more time (up to 15 days of interruption)

• May give your client more than what they bargained for /

agreed to

44


ONTARIO – BUDGET – “OPEN ONTARIO”

• 2-YEAR WAGE FREEZE FOR PUBLIC SECTOR EMPLOYEES

• Public Sector Compensation Restraint To Protect Public Services Act, 2010

• Will apply to substantially “all organizations covered by the Public Sector Salary Disclosure Act, except for municipalities”

• Will be effective from March 25, 2010 to March 31, 2012• Freeze wages at the rate they were on March 24, 2010

45



• FREEZE applies to:• Non-bargaining employees in the Ontario Public Service

• Hospitals, boards of health

• Schools, colleges, universities

• Hydro One, Ontario Power Generation

• + “many other provincial agencies, boards and

commissions”

• BUT excluding employer who receive less than $1 million funding from the province, municipalities or boards

46



• Compensation plan defined to include all aspects of an employee’s compensation• Base pay

• Merit pay

• Time off such as vacation

• Pension

• Health and other benefits

47


ONTARIO – HEALTHCARE

• Long-Term Care Homes Act, 2007 • Establishes a new system of governance for long-term care homes

• Replaces Nursing Homes Act, Charitable Institutions Act and

Homes for the Aged and Rest Homes Act

• Parts of the Act come into force on July 1, 2010—the same date as:

• Local Health Integration System Integration Act, 2006• Authorizes Local Health Integration Networks (LHINs) to plan, fund

and manage health care services in Ontario

• July 1, 2010

48


Criminal Reference Check Changes and Practical Implications on

Employers


Criminal Record Checks – pre-Dec 2009

• The Canadian Police Information Centre (“CPIC”) would provide information to employers, with consent, about an individual’s convictions under the Criminal Code

• NOT pardoned offences or convictions under provincial legislation

• This information was provided quickly and allowed Employers to make decisions about hiring an

individual with a record before they started work

50


Changes to the Process

• The RCMP issued a directive in December 2009, which forces CPIC to release the results of a criminal record check as only

a) “clear”; or

b) “not clear”

- The Employer will not receive any details of the criminal record

51


“Not Clear”

• A return of “Not Clear” can mean:• The individual has a criminal record that would

prevent an employer from hiring them

• The individual has a criminal record, but the

convictions have no relation to the job

• The individual has NO RECORD at all

• There has been an error

52


“Not Clear” but No Record?

• CPIC only uses name and birth date for its database search

• Now, if two people in Canada have the same name and birth date, CPIC will not divulge any information out of fear of sending personal information to third parties

• So if you have a common name, say “Michael Kennedy”, you are going to get a “Not Clear”

53


How Does the Employer Get the Details?

• When a result of “Not Clear” is reported, the Employee will have to go to the local police station to be finger printed

• The fingerprints will be used to verify identity so wrong info is not sent

• The employee can provide written consent to the Police station so the results are sent directly to the Employer (or its Agent)

• This takes on average 120 days

54


Vulnerable Sector

• Vulnerable person means …• Persons who, because of their age, a disability or

other circumstances, whether temporary or permanent,

a) are in a position of dependence on others; or

b) are otherwise at a greater risk than the general population of being harmed by persons in a position of authority or trust relative to them.

55


Vulnerable Sector Cont …

• Vulnerable Sector checks reveal more information than the normal criminal record check – such as:

a) Sexual offence convictions which have been pardoned;

b) Apprehensions under the Mental Health Act;

c) Pending local charges

56


Human Rights Code

• Ontario prohibits discrimination on “record of offenses”

• Record of offences means any pardoned offense or any provincial offence conviction

• Employers can discriminate if there is a BFOR – most commonly seen in high security, driving occupations and the vulnerable sector

57


Implications when Hiring Employees

Questions from Employers:• Can the employer refuse employment based on a “not

clear” alone• Does the employer have to hold the position offered for

the individual until the details are obtained?

58


Implications of Changes on Hiring (cont..)

• Can the Employer rely on the criminal record details after the employee commences employment?

• Value of using third party agencies which conduct background checks?

• If not going to use a third party, who in the organization should receive the results?

59


Approach when “Not Clear” received after Conditional Offer• Most employers cannot afford to wait 120 days

before receiving the results of the fingerprinting

Steps:

1) Give the prospective employee the opportunity to explain, in writing, why he or she believes they have received a “not clear”

– silence = not hired

but DON’T FORCE THEM to disclose

60


Approach (cont..)

2) If the employee’s explanation is satisfactory, the employer can start the employee with the offer still conditional upon receiving a satisfactory criminal record report

3) Another option is to increase the probationary period until after the criminal record details are received

4) Compare the details with the explanation provided by the employee

61


Approach (cont…)

5) If details do not match, can release the employee from employment because:• Didn’t satisfy conditional offer

• Dishonest in hiring process

• Didn’t pass probationary period

62


Implications regarding Existing Employees

• If a result comes back as “not clear”, employers may have to place employees on a paid suspension

• Can an employer create a policy that provides for periodic criminal record checks

• Can an employer terminate an employee when the employer receives the record details? If so, what factors are considered?

63


Criminal Record Check Policy?

• Just like any other management policy• Subject to KVP principles• Key is going to be reasonableness of policy

Ottawa Fire• Without regular interactions with vulnerable

persons or security risks (legislatively mandated) – not likely going to be reasonable

64


Where’s Wallace? Evaluating Wallace Damages Post-Keays


1. Shifting the Focus of the Analysis

• Wallace v. U.G.G. • Emphasis on employer’s behaviour termination

• Determination as to whether implied duty of good

faith and fair dealing has been breached.

• Honda v. Keays• Emphasis on reasonable contemplation of both

parties at time of contract formation

66


2. The Need for an Evidentiary Connection

• Bad faith conduct alone is insufficient• Brien v. Niagara Motors – 2009 Ont. C.A.

• Fox v. Silver Sage Housing – 2008 Sask. Q.B.

• Absence of Corroborative Evidence – Easy Cases• Desforge v. E-D Roofing Ltd. – 2008 Ont. S.C.J.

• Pritchard v. Stuffed Animal House – 2010 B.C.S.C

• Shortcomings in Corroborative Evidence• Smith v. Centra Windows – 2009 B.C.S.C.

67


2. The Need for an Evidentiary Connection

• Evaluating Mitigation Efforts in Connection with Wallace Claim• Langan v. Kootenay Region Metis Assoc. – 2008 B.C.S.C.

• Smith v. Centra Windows – 2009 B.C.S.C.

• Possible Expansion under the Keays Approach• Soost v. Merrill Lynch Canada – 2009 Alta. Q.B.

• Mathieson v. Scotia Capital – 2009 Ont. S.C.J.

68



Michael Kennedy and Margaret Szilassy

Documents

OMHRA Spring Conference 2010 Michael Kennedy and Margaret Szilassy