What the Coronavirus Means for Canadian Employers Over the past several weeks, news of the Novel Coronavirus (2019-nCoV or Coronavirus) has dominated our newsfeeds with 208 cases in Ontario at the time of writing, 102 of which are in Toronto. COVID-19 has been declared a global health emergency by the World Health Organization. Wuhan, China is ground zero for COVID-19. China responded with an aggressive strategy and taken the extraordinary step of confining residents of Wuhan to their homes. Although the consequences for Canadians are still uncertain, many employers are wondering how COVID-19 may affect the workplace. It is never too soon to begin preparedness measures to manage in this ever-changing climate. The lawyers at Devry Smith Frank LLP can assist. Symptoms and Transmission – fever – cough – difficulty breathing – Pneumonia In severe cases, the infection can lead to death. There does not yet exist a vaccine to prevent COVID-19. Health officials have advised Canadians to take everyday preventative actions such as avoiding close contact with people who are sick, washing hands often with soap and water, social distancing, avoiding unnecessary travel, and self-isolation when feeling ill. Workplace Safety and Legal Concerns At the time of this writing, an employee who has COVID-19 or is in self-isolation as a result of possible exposure to the virus, is afforded the same discretion and is subject to the same procedures as an employee who is unable to work due to illness. In Ontario, the Employment Standards Act, 2000 provides that an eligible employee is entitled to take three days of unpaid sick leave for personal illness, injury, or medical emergency per calendar year. If however, an employee is refusing to work due to a fear of contracting COVID-19 in the workplace, the employer must respond in compliance with its legal duties under occupational health and safety legislation. In addition, under provincial workplace health and safety laws, employers have an obligation to take every reasonable measure to ensure a safe workplace. In the face of this pandemic, employers should consider the degree by which their business could be disrupted, review and update workplace policies pertaining to transmittable illnesses, and assess the relevant legislation to ensure that they are aware of any probable legal consequences of any steps they may take. How Employers Should Prepare • encouraging good hygiene, including handwashing • maintain good ventilation in the workplace • have up-to-date sick or leave policies that are clearly communicated to staff • encourage employees to stay home when they are sick • allow for employees to work at home or in staggered shifts should they develop symptoms • have a policy which requires individuals with flu symptoms to stay at home and not to report to work — this includes workers, contractors and visitors. If you require further information or have any concerns relating to COVID-19, contact human rights and employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Employment LawFebruary 6, 2020September 30, 2020
Resignation & Notice Periods: What is Required? THE BASICS Many readers will be surprised to learn that the obligation to give notice of termination of employment is two-sided. The requirement that an employer give advance notice to an employee is well known. Just as the company is obliged by law to do so, the employee has the same legal obligation when resigning from a job. This is not as well known or understood. The damage claim an employer may make against an employee who fails to give proper notice is considerable. Take, for example, an extreme situation to illustrate the principle. A senior marketing vice-president of a large company is in the middle of presenting a bid for a major contract in a competitive market. The contest is down to two finalists. His presence is critical to the success of the bid. He resigns abruptly prior to the final presentation, and his company loses the bid. The employer may well successfully argue that the sudden departure of its key executive led to the loss of this opportunity. Its damage claim may well be the potential increase in profits associated with this contract. The amount of notice required will vary with the situation. In a case such as the one described above, the employee’s notice obligation may be as much as six months. In real life, this type of claim is rare. When it is made, it is usually accompanied by allegations of stealing trade secrets or similar breaches of confidence. Nonetheless, such a claim is indeed possible and both sides must be aware of this issue. CONTRACTUAL TERM Just as an employment contract may set out the terms with respect to termination in advance, a contract can also include a term dictating the notice required upon resignation. Such a term could even stipulate the expected damage claim the employer may suffer where there has been a violation, as long as it is reasonable. This may be appropriate where the employer commits to an expensive period of intensive training for the new hire and wants an assurance, in turn, from the employee that they will remain employed for a certain time period to rationalize this expense. The term may even include some form of compensation for the training where there has been a breach. UNILATERAL RESIGNATION Generally, when an employee delivers a voluntary resignation that is in turn accepted by the employer, a contract is made in which both parties have agreed to the notice period provided. There can be exceptions to this general rule as occurred in one recent case, English v. Manulife Financial Corporation. In this instance, the employee retracted their resignation which was refused by the employer. The Court of Appeal found that the employer had not closed the door to the employee rescinding her resignation and was clearly sympathetic to the employee’s mistaken decision to resign. TAKEAWAYS FOR EMPLOYEES AND EMPLOYERS The issue of how much notice is required upon resignation is determined based on the context of the situation. Courts will examine how vulnerable the employer was to damages arising from a sudden resignation, and how much time would be required to locate and train a suitable replacement. It is not a mathematical formula that can be applied the same way across the board. Generally speaking, most companies will not demand a long advance period of working notice. Often, the best course of action for an employee looking to resign on good terms is to negotiate a reasonable notice period with their employer. Once the two parties agree to the period of working notice, an agreement has then been made. Should the employee break this contract, then there could be a damage claim asserted by the company for its proven consequential losses. If the employer terminates the agreement by asking the employee leave before the end of the notice period, then the employee could claim the statutory minimum sums and the balance of the resignation period, if greater. GET ADVICE BEFORE YOU ACT It is always recommended to seek advice from an experienced employment lawyer before taking action that may result in a claim for damages. Contact Elyse Mallins of Devry Smith Frank LLP for advice for both employees and employers on legal workplace issues. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawJanuary 29, 2020July 5, 2023
Can I Still Claim my Bonus even though I was Wrongfully Dismissed? This blog is co-written by our former articling student, Janet Son. In Andros v Colliers Macauley Nicolls Inc, the Ontario Court of Appeal recently addressed the issue of whether a wrongfully dismissed employee is eligible to receive a payment in lieu of bonus throughout the common law notice period. If the bonus is non-discretionary and an integral part of the employee’s compensation package, damages for wrongful dismissal include bonuses earned in the year of termination, on a pro-rata basis, plus a payment in lieu of bonus throughout the common law notice period. In this case, the respondent worked for the appellant, a large commercial real estate company. He left for other employment, however he returned and was promoted to the position of Managing Director, which included a base salary and a yearly bonus. In the last three years of his employment his base salary was $142,500 and his bonuses were $79,228.25, $127,933.80 and $49,757.51 respectively. The Court found that the bonus was non-discretionary since he received the bonus every year and his employment agreement included both the base salary and bonus entitlement in the compensation section. Further, the Court concluded that the bonuses were integral to the employee’s compensation, given the bonus amounts. The appellant argued that the employee was not entitled to any further bonus payments, because there was a term in his employment contract which stated that only employees who were in “good standing” were entitled to bonus payments. The Court applied the test from Paquette v TeraGo Networks Inc. to this case. 1. First, determine the employee’s common law right. Where the bonus is such an integral part of the respondent’s compensation, there is a common law entitlement to the bonus that the employee earned or would have earned. 2. Second, whether there is something in the bonus plan that removes the employee’s common law entitlement. In arriving at the decision to award the employee a payment in lieu of bonus throughout the common law reasonable notice period, the court addressed the inherent unfairness in a scenario where the notice period expires the day before the date on which the bonus would be payable. As a result, the employee would get no part of the bonus that they earned throughout the course of their employment during that year and the notice period – which the Court concluded would be unfair to the employee. However, an employer can contract out of the requirement to pay a portion of a yearly bonus for a partial year of service or throughout the common law notice period if this is set out clearly in the employment contract or bonus plan. If you are unclear as to whether you are entitled to your bonus in a wrongful dismissal claim, contact human rights and employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawNovember 21, 2019July 5, 2023
Andros v. Colliers Macaulay Nicolls Inc., 2019 ONCA 679 In the case of Andros v. Colliers Macaulay Nicolls Inc., 2019 ONCA 679, the interpretation of the employment contract governing the employee-employer relationship, was at issue. The specific contentions arose from the controversial termination clause contained in the contract. The Plaintiff employee was dismissed without cause by the defendant employer. At the time of termination, the employee had worked for the employer for two periods, with the second period lasting eight-years, during which he was promoted from a senior associate to a managing director. The employment contract contained the following termination clause: “4. Term of Employment . . . The company may terminate the employment of the Managing Director by providing the Managing Director the greater of the Managing Director’s entitlement pursuant to the Ontario Employment Standards Act or, at the Company’s sole discretion, either of the following: a. Two (2) months working notice, in which case the Managing Director will continue to perform all of his duties and his compensation and benefits will remain unchanged during the working notice period. b. Payment in lieu of notice in the amount equivalent of two (2) months Base Salary.” The employee argued that the termination provision was unenforceable because it represented an attempt by the employer to contract out of enumerated employment standards provisions provided for under the Employment Standards Act, 2000 (“ESA”), which is not permitted. The trial judge found that the termination provision in the employment contract potentially reduced the employee’s entitlements upon termination to something less than his minimum entitlement pursuant to the ESA. The trial judge found that at best, the termination provision in the employment contract was unclear or ambiguous as to whether the employee would have been entitled to all statutory ESA entitlements if clause 4(a) or 4(b) applied. The trial judge found that the termination provision was unclear and ineffective in rebutting the presumption of reasonable notice of termination at common law and was therefore unenforceable. The employer appealed the trial judge’s decision. On appeal, the employer’s appeal was dismissed. The Ontario Court of Appeal held that the trial judge did not err in finding that the termination clause was unenforceable, and that the trial judge properly interpreted it by considering it in its entirety. The Court of Appeal concluded that because the termination clause contained two distinct and separate parts, the lower court judge was correct to interpret the parts individually and correctly concluded that the clause was ambiguous. Clauses 4(a) and 4(b) purported to contract out of the ESA and did not incorporate the ESA by silence. It further followed that “if a termination clause purports to contract out of an employment standard without clearly substituting a greater benefit in its place, the entire termination clause is void”. The employee was therefore entitled to a common law notice period. Takeaway The decision in Andros reminds us that termination clauses must be drafted carefully to ensure their enforceability and that there is still uncertainty in the law as to whether a termination clause will be enforceable. Employers should consult a lawyer prior to presenting an employee with an employment contract which contains a termination clause to obtain legal advice about its enforceability. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawNovember 15, 2019September 30, 2020
Employer Required to Cover Long-Term Disability for Employees Over Age 65 This blog is co-written by our former articling student, Linda Noorafkan. On November 19, 2018, an Ontario arbitrator determined that a hospital employer was required to continue paying 75% of the billed premium towards the Long Term Disability (“LTD”) coverage of employees that continued working beyond the age of 65. CUPE, Local 1999 and Markham Stouffville Hospital, Re involved a Union that filed a grievance against the Markham Stouffville Hospital (the “Hospital”). The Union took the position that the Hospital had violated the collective agreement by discontinuing LTD coverage for Hospital employees who were 65 years of age and older. With respect to LTD coverage, Article 13.01(a) of the collective agreement stated as follows: The Hospital will pay 75% of the billed premium towards coverage of eligible employees under the long-term disability portion of the Plan (HOODIP or an equivalent plan as described in the August, 1992 booklet (Part B)), the employee paying the balance of the billed premium through payroll deduction. While the insurer’s benefits plan indicated that there would be limited eligibility for LTD once employees turned the age of 65, the HOODIP Long Term Disability Benefit booklet for August 1992 stated that LTD benefits would be provided “[…] until the employee reaches age 65, or life in some cases.” The booklet also added that LTD benefits would end at the earliest of the following events: • Your 65th birthday, if you become disabled after age 64 and you have completed fewer than 10 years of Continuous Service, when you become disabled. • The day 12 months after the Date of Disability, if you become disabled after age 64 but before age 65 (minus the qualifying period) and you have completed fewer than 10 years of Continuous Service when you become disabled. • The date of death if you have completed 10 years of Continuous Service when you become disabled. In this case, at age 65 your benefit will be further reduced by any additional payments from government plans and your employer’s pension plan that begin at that age (see Amount of Long Term Disability Benefit). In contrast, there is a 1980 HOODIP booklet, which indicated that LTD benefits would only be payable until the employee turned age 65. Also in contrast, The 1984 HOODIP booklet indicated that: … LTD coverage terminated at age 65 but that benefits would continue past age 65 in certain circumstances reduced by pension and other benefits. Employees on LTD benefits are no longer required to take their pensions, Canada Pension Plan or Employment Insurance benefits at age 65. The Union argued that, despite the provisions in the 1980 and 1984 HOODIP booklets, since the collective agreement referred to the 1992 HOODIP booklet, then the Hospital must provide LTD coverage in accordance with the 1992 HOODIP booklet. This would mean that the LTD benefits of employees over age 65 would be reduced by pensions and other benefits, not terminated. In contrast, the Hospital made several arguments regarding the interpretation of the collective agreement. Overall, the Hospital claimed that, based on a review of the collective agreement, the 1992 HOODIP booklet, the plan from the year of 1992, and the history of the HOODIP from the year 1980 to 1992, the Arbitrator should conclude that LTD coverage ought to end once Hospital employees turned 65. Ultimately, the Arbitrator followed the 1992 HOODIP booklet, instead of the plan, by finding that the collective agreement did not expressly terminate LTD coverage once employees turned the age of 65. In support of the Union, the Arbitrator concluded as follows: The Employer also argues that the Union is seeking a new benefit and that clear and unambiguous language is required for such an interpretation. However, in a number of prior awards, arbitrators have found that benefits, including extended health, dental, life insurance, and accidental death and dismemberment, continue beyond age 65 even though the parties did not change the language of their collective agreement after the change to the legislation with respect to mandatory retirement. Arbitrators have rejected the argument that the parties must have intended that the age 65 limit would continue unless they negotiated otherwise, in favour of the assumption that the parties must be presumed not to have intended discriminatory provisions even if they were legal. Clear and unambiguous language has, therefore, been required to support a determination that benefits end at age 65. There is nothing about that analysis that would not apply to LTD benefits…. The Arbitrator concluded that if the employer had different intentions, those intentions ought to have been included in the collective agreement. Thus, the Hospital was required to pay LTD premiums for employees that were above age 65 and met the other LTD eligibility criteria. There appears to be a trend in the jurisprudence towards requiring employers to maintain benefits for employees over age 65. The Human Rights Tribunal of Ontario’s decision in Talos v. Grand Erie District School Board is another example. If you would like more information or legal advice on this subject, please contact Marty Rabinovitch at 416.446.5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawNovember 5, 2019September 30, 2020
Fired because of Race? Consider a Human Rights Claim This blog is co-written by our former articling student, Linda Noorafkan. In 2018, a group of eight Caucasian employees of the Spruce Hill Resort and Spa Ltd. (“the Resort”) in British Columbia made a complaint to the British Columbia Human Rights Tribunal (“the Tribunal”), in which they alleged that they had been terminated from their employment because they were not Chinese. The Tribunal found that seven of the employees had been discriminated against on the basis of race and colour, and one employee had been discriminated against on the basis of sex. The Resort was required to pay a total of $113,141.01 as compensation for lost wages and $60,000.00 as compensation for injury to dignity, feelings and self-respect, for a total of $173,141.01. The group in Eva obo others v. Spruce Hill Resort and another (“Spruce Hill”) made the claim against the Resort and Mr. Kin Wa Chan. Mr. Chan had recently purchased shares of a company that owned a resort, and as a result, took full control of the resort. The group alleged that they had been discriminated on the basis of race, colour, ancestry, and place of origin, contrary to s. 13 of the British Columbia Human Rights Code (“Code”). Some employees indicated that they were terminated by the Resort, while others chose to resign from their positions because of the discriminatory working environment. All of the employee complainants left their positions within days of each other. The group alleged that the discrimination occurred over “several months and culminated over several days in August 2016.” One of the employees also alleged that there was one instance of discrimination on the basis of sex by Mr. Chan, contrary to s. 13 of the Code. (1) DISCRIMINATION BASED ON RACE AND COLOUR With respect to race and colour discrimination, the Tribunal was faced with four main issues: (1) whether Mr. Chan stated that he wanted to replace Caucasian employees with Chinese employees; (2) whether Mr. Chan reduced the hours of Caucasian employees, and instead, provided those hours to Chinese employees; (3) whether some of the employees were fired because they were not Chinese; and (4) whether the employees who resigned did so because of discrimination in the workplace. All four issues were answered in the affirmative by the Tribunal. The Tribunal assessed the credibility of each employee and Mr. Chan, who testified at the hearing. Employee diary entries were also considered by the Tribunal. The Tribunal found that while each employee was credible, Mr. Chan was “less credible than the complainants.” Since Mr. Chan did not have “a detailed recollection of events” and conversations, the Tribunal accepted the evidence of the complainants over that of Mr. Chan. The Tribunal found that Mr. Chan had, in fact, stated that he wanted to replace the Caucasian employees with Chinese employees in order to lower labour costs. For example, Mr. Chan was heard: “… yelling and using words to the effect that “white people” were too slow and Chinese workers were faster and cheaper. On other occasions, [one employee] heard Mr. Chan use words to the effect that Canadians are too slow and cost too much, and that Chinese students work, do not complain, and do not need to be paid overtime.” Mr. Chan had also acted on those statements by demoting employees, terminating employees, and consistently expressing his desire to replace Caucasian employees with Chinese employees. The latter resulted in several employees resigning from their positions because of the discriminatory work environment. Despite Mr. Chan’s denials, the Tribunal found that “his stor[ies] d[id] not harmonize with what he actually did, what credible witnesses heard him say, and with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” It is important to note that, while the Tribunal concluded that “the Complainants are not members of a group that has been historically discriminated against [,]” the fact of the matter was that they were “subjected to a poisoned work environment due to racism.” The Tribunal considered the 2017 Supreme Court of Canada decision in British Columbia Human Rights Tribunal v. Schrenk in which the court concluded that “the structure of the Code supports an approach that views employment as a context requiring remedy against the exploitation of vulnerability.” As such, to determine the employees’ compensation for injury to dignity, the Tribunal considered that employees are “particularly vulnerable” in contrast to their employers, especially since many employees have few other employment alternatives. (2) DISCRIMINATION ON THE BASIS OF SEX One of the employees, Ms. Eva, indicated that she was sexually harassed by Mr. Chan during a business trip to China. While Mr. Chan did not dispute the facts of what occurred during the trip, he disputed the interpretation of those events. Instead of booking separate hotel rooms, Mr. Chan had booked one hotel room, which had a bathroom with a glass divide, for him and Ms. Eva. Once Ms. Eva realized this, conflict ensued in the hotel room. Ms. Eva felt that Mr. Chan booked one room because he wanted “sexual favours” from Ms. Eva, while Mr. Chan claimed that he wanted to save money by booking one room. The Tribunal found that Mr. Chan’s actions amounted to sexual harassment, in contravention of the Code. The Tribunal found that Mr. Chan’s evidence was not credible. Rather, it was “more probable than not than Mr. Chan wanted to share a hotel room with Ms. Eva for sexual purposes.” What does this mean for employees and employers? The Tribunal took into account the vulnerability of employees in finding that the employees were discriminated based on race and colour. This decision confirms that an employer’s expressed preference to hire employees of a particular group can constitute discrimination against Caucasians, even though this group has not been historically discriminated against. Although Spruce Hill is a British Columbia decision, the decision and reasoning are consistent with the law in Ontario. If you would like more information or legal advice on this subject, please contact Marty Rabinovitch at 416.446.5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawOctober 31, 2019July 5, 2023
Denial of Employee Benefits to Working Seniors: A Charter Violation This blog is co-written by our former articling student, Linda Noorafkan. On May 18, 2018, the Human Rights Tribunal of Ontario (the “Tribunal”) rendered its decision with respect to the issue of whether s. 25(2.1) of the Human Rights Code (the “Code”), when read alongside s. 44 of the Employment Standards Act, 2000 (“ESA”), permitted employers to terminate benefits for employees when they turned 65. In Talos v. Grand Erie District School Board, the Tribunal found that such a termination violated s. 15 of the Canadian Charter of Rights and Freedoms, because it was a form of age discrimination. The section could not be saved under s. 1 of the Charter, and thus, was found to be unconstitutional since it violated the right to equality in a manner that was not demonstrably justified in a free and democratic society. Wayne (Steve) Talos continued to work as a secondary school teacher beyond the age of 65. However, when he turned 65, his extended health, dental, and life insurance benefits were terminated, even though he was still employed on a full-time basis. Mr. Talos heavily relied on the benefits, since they assisted with both his and his family’s medical and other expenses, especially since his wife had become severely ill and was ineligible for other benefits to cover her expenses. The section of the Code on which the employer relied to differentiate the entitlement to employee benefits and pension plans on the basis of age was s. 25(2.1) of the Code, as seen in the following related provisions: Employee benefit and pension plans 25 (1) The right under section 5 to equal treatment with respect to employment is not infringed where employment is denied or made conditional because a term or condition of employment requires enrolment in an employee benefit, pension or superannuation plan or fund or a contract of group insurance between an insurer and an employer, that makes a distinction, preference or exclusion on a prohibited ground of discrimination. Same (2) The right under section 5 to equal treatment with respect to employment without discrimination because of sex, marital status or family status is not infringed by an employee superannuation or pension plan or fund or a contract of group insurance between an insurer and an employer that complies with the Employment Standards Act, 2000 and the regulations thereunder. Same (2.1) The right under section 5 to equal treatment with respect to employment without discrimination because of age is not infringed by an employee benefit, pension, superannuation or group insurance plan or fund that complies with the Employment Standards Act, 2000 and the regulations thereunder. Mr. Talos took the position that the distinction in age when it came to benefits discriminated against employees who were 65 years and older, in particular since mandatory retirement was prohibited in Ontario through Bill 211 in 2005. As such, Mr. Talos claimed monetary compensation of $100,000 for lost benefits, as well as injury to dignity, feelings and self-respect. The Tribunal found that Mr. Talos experienced disadvantage because of his age. The Tribunal concluded that employees who worked beyond age 65 “provide[d] the same labour as they did when they were 64 years of age,” but the former was subjected to the termination of benefits despite the similarities in labour. Despite the employer’s arguments that Mr. Talos was not disadvantaged because his pensions were “generous” enough to ensure that Mr. Talos could “lead an economically viable life during his senior years,” especially since he was a member of a union, the Tribunal found these factors to be irrelevant to whether Mr. Talos’ s. 15 Charter right to equal compensation in the workplace was infringed. Nor did the ESA support the employer’s claims that a long career, being part of a profession, and being a member of a union, were “relevant to the statutory protections afforded to all employees” under the ESA and Code. Rather, the Tribunal determined that the ESA establishes “minimum standards for conduct and conditions of employment without regard to an employee’s access to a collective bargaining process.” Thus, the denial of benefits created by the Code was not due to the standards set out in the ESA, but were solely because of Mr. Talos’ age. Although the employer argued that providing benefits to employees aged 65 and older would challenge the financial viability of workplace benefits, the Tribunal ruled that, when considering all the evidence before it, “the financial viability of workplace benefit plans can be achieved without making the age 65 and older group vulnerable to the loss of employment benefits….” Thus, the Tribunal concluded that s. 1 of the Charter did not save the infringement of Mr. Talos’ equality rights since: … the impugned provisions do not minimally impair the rights of these older workers, as an employer is not required to demonstrate that their exclusion from employment benefits is reasonable or bona fide, or justified on an actuarial basis, or because their inclusion would cause undue hardship. Rather, if the legislature was concerned about financial viability, they could have used “less intrusive means” to address those concerns. Ultimately, the Talos decision has numerous impacts on both employers and employees. As a result of Talos, if an employee claims that they were discriminated on the basis of age, s. 25(2.1) of the Code can no longer be used as a defence by employers to justify the termination of benefits for those aged 65 and older. Could this mean that employees have a greater ability to maintain their employee benefits beyond the age of 65? We will have to see what future jurisprudence and possible legislative change hold for the future. If you would like more information or legal advice on this subject, please contact Marty Rabinovitch at 416.446.5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawOctober 29, 2019September 30, 2020
Novel Issues Raised by Transgender Human Rights Complaints A recent human rights complaint against several salons in Vancouver, British Columbia sheds new light on the relationship between human rights law and persons who identify as transgender. DISCRIMINATION AGAINST TRANSGENDER PERSONS Jessica Yaniv, a transgender woman from British Columbia, has launched human rights complaints against several salons in Vancouver who refused to wax her on the basis that she had male genitalia. While no ultimate decision has yet been released, the reasons of the British Columbia Human Rights Tribunal in Yaniv v. Various Waxing Salons, 2019 BCHRT 106 (CanLII) have raised some novel issues in human rights litigation. The Tribunal has been critical of Yaniv particularly because of the manner in which she is pursuing her complaint. She has launched dozens of separate complaints against different salons. The Tribunal noted that this “opens a valid question about her motives in filing so many complaints.” On the other hand, the Tribunal has not taken issue with the substance of the complaints. Instead, it has noted the issues raised by Yaniv are complex and require in-depth consideration. While waxing was characterized by the Tribunal as crucial “gender-affirming care for transgender women”, it was nonetheless considered to be “a very intimate service that is sometimes performed by women who are themselves vulnerable. JY’s complaints raise a novel issue around the rights and obligations of transgender women and service providers in these circumstances”. WITHDRAWAL OF HUMAN RIGHTS COMPLAINTS The Tribunal also took issue with the fact that Yaniv withdrew many of the complaints she launched against various salons. In particular, Yaniv repeatedly withdrew her complaints once opposing counsel was retained. While the Tribunal mentioned that withdrawing complaints is an acceptable practice, it also stated that it is not proper to do so where such a withdrawal would significantly prejudice other parties or the Tribunal “in a manner constituting improper conduct warranting the sanction of costs.” The Tribunal continued by noting, “I am now of the view, based on these new facts, that JY’s [Jessica Yaniv’s] pattern of filing such a high volume of complaints and then withdrawing in the face of opposition undermines the integrity of the Tribunal.” The Tribunal concluded by reminding the parties it would “deliver its service in a way that is respectful and does not expose her [Yaniv] to further discrimination. However, she must also understand that respondents are entitled to defend themselves and expect that they will.” WHAT DOES THIS HUMAN RIGHTS COMPLAINT TELL US? Transgender discrimination complaints at Human Rights Tribunals will continue to be seriously considered. However, because transgender discrimination actions have the potential to raise many novel legal issues, it is difficult to predict how Tribunals will respond to the competing interests at stake in similar human rights cases. As a result, if you are planning on launching a transgender discrimination complaint, or are required to defend against one, retaining legal advice to guide you through the process is crucial. This litigation also tells us that Tribunals and adjudicative bodies in general do not take legal actions lightly. If complaints or actions are launched repetitively and excessively, courts and certain tribunals have the power to enact punitive measures to deter such conduct, including but not limited to cost awards. If you would like legal advice on this subject, or would like more information generally on human rights or employment law, please contact experienced human rights & employment lawyer Marty Rabinovitch at marty.rabinovitch@devrylaw.ca or at 416-446-5826 “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Human Rights LawSeptember 12, 2019September 30, 2020
Can My Employer Dismiss Me Due to My Unseen Disability? Employers should investigate further before immediately dismissing employees for violating workplace drug and alcohol policies. An employee’s diagnosis of substance dependence would be considered a disability, which is a protected ground under the Canadian Human Rights Act (CHRA) for federally regulated employers. In a recent arbitral decision, Canadian Pacific Railway v Teamsters Canada Rail Conference, a Canadian Pacific (CP) Locomotive engineer was found drinking whiskey while operating a train, which caused a collision. He was criminally charged by the RCMP and was prohibited from operating a vehicle for 2 years. Shortly after the incident, he was terminated for just cause due to his violation of CP’s Alcohol and Drug Policy. After the employee’s termination, he was diagnosed with a severe alcohol use disorder and post-traumatic stress disorder. He explained that he drank alcohol to cope with his and his wife’s battles with cancer. He expressed remorse and was attending addictions treatment. The arbitrator found that there was prima facie discrimination. In particular, the employee: 1) Possessed a characteristic that was protected by the CHRA (the disability of alcohol addiction); 2) Experienced an adverse impact (his employment was terminated); and 3) Was terminated for reasons related to the disability. CP argued that Paisley did not disclose his addiction until after the investigation. However, the arbitrator concluded there can still be a finding of discrimination in cases when the disability is not disclosed until after an incident. Furthermore, the employer did not dispute the fact that the employee had an alcohol addiction. Under the CHRA, when there is a case of discrimination based on a protected ground, the employer is required to demonstrate that they attempted to accommodate the employee to the point of undue hardship to avoid liability. In this case, the arbitrator found that CP failed to reasonably accommodate the employee. The arbitrator ordered that Paisley be reinstated subject to being physically fit for work and undergoing periodic drug and alcohol testing for 2 years. The arbitrator also required that he abstain from consuming alcohol and drugs for the duration of his employment. CP was required to make reasonable efforts to find a non-safety sensitive position for him until his driving prohibition was lifted. Key Takeaway for Employers Employers should ensure that employees with addictions and other disabilities are accommodated, in particular if workplace misconduct is due to a disability such as addiction. Though at first glance, a just cause dismissal appears warranted – investigating and making reasonable accommodations from the beginning could prevent a potential future human rights complaint. If you would like more information about human rights and employment law, contact Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawSeptember 10, 2019September 30, 2020
Can Behaviours Associated with a Sex Addiction Merit Employee Dismissal? A recent Nova Scotia labour arbitration decision suggests that employers may not have to accommodate employees who have a medically diagnosed sex addiction where behaviours associated with such an addiction clearly justify discipline or termination. In Ontario human rights law, all employers must accommodate employees with a disability to the point of undue hardship. This may include, for example, allowing employees with medical marijuana prescriptions to use medical marijuana while at work. But sex addiction may not be a “disability,” at least as was suggested in UNIFOR, Local 2215 v I.M.P. Group Limited (Aerospace Division), 2019 CanLII 42096 (NS LA) (“UNIFOR”). In Unifor, an employee was the subject of several complaints from coworkers due to regularly masturbating in a bathroom cubicle of his workplace. After warnings, the employee continued the behaviour, and was fired. The union, on behalf of the employee, commenced a wrongful termination grievance. In support of his case, he provided a report from a doctor who diagnosed him with a sex addiction. The doctor listed a number of symptoms that, in his view, amounted to a sex addiction: “Loss of Control” – increased frequency, duration, or depth of involvement in sexual acting out behaviour indicating a possible loss of control within or between sessions. “Craving” – a strong desire to participate in sexual acting out behaviours, such as pornography, sexual contact, flirtation, sexting, video chat, phone conversation, masturbation, etc. “Threat to Life Roles” – Repeated participation and commitment to sexual acting out despite recurrent social or interpersonal problems or costs – e.g. Conflict at home or at work as a result of sexual acting out or the costs in time and energy of carrying out and keeping up the deception used to hide the behaviour. “Negative Mood” – using sex or sexual acting out behaviour to alleviate negative mood states, stress, tension, or irritation. However, during cross-examination, the doctor admitted that there was no standard list of symptoms attributable to sex addiction. He described how he had taken symptoms of general addiction and then modified them for sex addiction. The arbitrator concluded that the doctor’s assessment of the employee’s sex addiction was problematic primarily because (a) sex addiction is not significantly medically or scientifically recognized; (b) the doctor’s stated symptoms were too general and vague to necessarily be indicative of a sex addiction if such a condition exists; and (c) the symptoms described by the doctor were largely subjective and/or represented his own opinions rather than being some kind of recognized test. The arbitrator, in the end, was not convinced sex addiction was a recognized condition that amounted to a disability, and thus the employer had no duty to accommodate the employee by being accepting of the behaviours which stemmed from his purported addiction. The termination was therefore found to have been justified. What does this case tell us? Although this is a Nova Scotia arbitration decision, and thus is not binding on Ontario arbitrators, this case nonetheless suggests that adjudicators may not be open to recognizing non-scientifically recognized forms of addiction, such as sex addiction, as legitimate disabilities requiring employer accommodation. If you would like more information on arbitration clauses or would like legal advice on this subject, please contact Marty Rabinovitch at 416.446.5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawAugust 27, 2019September 30, 2020