Employment law chapter notes
Chapter 1:
There are three main sources of employment law in Canada: statute law (legislation passed by
the government), constitutional law (the Canadian Charter of Rights and Freedoms), and
common law (judge-made law).
A statute is a law passed by the federal or provincial government. Statutes are sometimes
referred to as “legislation” or “acts.” A statute first takes the form of a written bill. To become a
provincial statute a bill must pass three readings in the provincial legislature. To become a
federal statute, a bill must pass three readings in the House of Commons and must also be
passed by the Senate in Ottawa. The federal and provincial governments each publish their
statutes and regulations.
New legislative requirements also often relate to demographic shifts in society and changing
social values. For example, the dramatic increase in the number of women in the paid
workforce has led to significant new statutory requirements over the past 25 years, such as pay
equity and increased pregnancy and parental leave.
They have developed a number of rules—such as the mischief rule—to help them. When using
the mischief rule, they examine the problem or mischief that a statute was intended to correct
and apply the corrective rationale to the issue.
There are three types of bills:
1. Public bills are introduced in the legislature by the Cabinet minister who is responsible for
the relevant subject matter. For example, bills concerning employment law are typically put
forward by the minister of labour. A bill may contain either proposed amendments to a current
statute or an entirely new piece of legislation. First reading introduces the bill. On second
reading, members of provincial Parliament debate the principles of the bill. If the bill passes
second reading through a vote in the legislature, it goes to a committee of the legislature.
Committees may hear witnesses and consider the bill clause by clause before reporting back to
the legislature. Sometimes the bill is revised (amended) before its third and final reading to take
into account input from the public or from opposition parties. After third reading, there is a
vote in the legislature, and if a majority of MPPs vote in favour of the bill, it is passed.
2. Private bills cover non-public matters, such as changing corporate charters, and so are of
limited scope and relevance.
3. Private members’ bills may deal with matters of public importance, but they are put forward
by a private member of the legislature, not by a Cabinet minister. Therefore, typically they do
not have much chance of becoming law.
A statute may come into force in one of three ways:
• on royal assent: the statute comes into force without the need for additional steps;
• on a particular date: the statute itself names the date on which it comes into force; or
• on proclamation: the statute comes into force on a date to be announced later. Different
sections of the statute may come into force at different times. For example, when additional
Employment law chapter notes
time is required to prepare the regulations necessary to implement certain provisions of the
law, those provisions may be proclaimed at a later date or the date may be set out in the
statute.
Regulations (also known as delegated legislation) are rules made under the authority of a
statute. For example, Ontario’s Employment Standards Act, 2000 states that there is a
minimum wage for most occupations in Ontario. However, the exact dollar amount of that
minimum wage for various occupations is found in the regulations that accompany the Act.
The Employment Standards Act, 2000 sets out minimum rights and standards for employees,
including minimum wages, overtime, hours of work, termination and severance pay, pregnancy
and parental leave, vacation, and public holidays.
• The Human Rights Code is aimed at preventing and remedying discrimination and harassment
based on specified prohibited grounds.
• The Labour Relations Act, 1995 deals with the rights of employees to unionize and the
collective bargaining process.
• The Occupational Health and Safety Act (OHSA) outlines the requirements and responsibilities
of parties in creating a safe workplace and preventing workplace injuries and accidents.
• The Workplace Safety and Insurance Act, 1997 (formerly the Workers’ Compensation Act)
provides a no-fault insurance plan to compensate workers for work-related injuries and
diseases. It also allows employers to limit their financial exposure to the costs of workplace
accidents through a collective funding system.
• The Pay Equity Act addresses the issue of gender discrimination in compensation. It requires
employers with ten or more employees to provide equal pay for work of equal value.
• The Accessibility for Ontarians with Disabilities Act, 2005 provides the legal basis for the
development of accessibility standards in five key areas: customer service, information and
communications, employment, transportation, and the built environment (design of public
spaces).
Industries that are federally regulated include:
• navigation and shipping,
• interprovincial communications and telephone companies,
• interprovincial buses and railways,
• airlines,
• television and radio stations,
• the post office,
• the armed forces,
• departments and agencies of the federal government,
• Crown corporations, and
• chartered banks.
The two main federal employment statutes are:
• the Canada Labour Code, which covers employment standards, collective bargaining, and
health and safety; and
Employment law chapter notes
• the Canadian Human Rights Act, which covers human rights and pay equity.
The Employment Equity Act, which requires affirmative action initiatives for visible minorities,
women, people with disabilities, and Aboriginal people.
The Personal Information Protection and Electronic Documents Act (PIPEDA), which establishes
rules concerning how organizations may collect, use, and disclose personal information
In Ontario, and in the other provinces where there is no provincial legislation comparable to
PIPEDA, provincially regulated employers must follow PIPEDA with regard to the personal
information of their clients, customers, suppliers, and contractors (that is, commercial
relationships) but not for employees.
As a constitutional document, the Charter is part of the “supreme law of the land.” This means
that other statutes must accord with its principles. If a court finds that any law violates one of
the rights or freedoms listed in the Charter, it may strike down part or all of the law and direct
the government to change or repeal it.
15(1) Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the
amelioration of conditions of disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.
The Charter directly applies only to government actions and conduct, such as passing
legislation, or where the employer is itself part of the public sector. It does not apply to the
actions of individuals or private sector employers and employees. It is essentially a restraint on
government power. Therefore, an employee cannot use the Charter directly to challenge a
private sector employer’s employment decision or policy.
The rights and freedoms guaranteed by the Charter are not unlimited. The courts may uphold
violations of Charter rights if they fall within the provisions of s. 1 of the Charter:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society [emphasis added].
A limitation of Charter rights is justifiable if:
1. the law relates to a pressing and substantial government objective (the “ends” part of the
test); and
2. the means chosen to achieve the objective are “proportional” in that:
a. they are rationally connected to the objective;
b. they impair the Charter right or freedom as little as possible (minimal impairment); and
Employment law chapter notes
c. the benefits of the limit outweigh its harmful effects—in other words, the more severe the
harmful effects of a measure, the more important the objective must be to justify it (the
“means” part of the test).
A second potential limit on the Charter’s rights and freedoms is found in s. 33, the override
provision. Section 33 allows the federal or provincial governments to enact legislation
“notwithstanding” (in spite of) a violation of the Charter. To invoke s. 33, the government must
declare that the law in question will operate notwithstanding the Charter, and this declaration
must be renewed every five years. (Example, mandatory mask with COVID-19)
The third source of employment law is the common law, which is that part of the law that has
developed over the years through court decisions. The common law is applied where there is
no statute covering a particular area or where a governing statute is silent on a relevant point.
Within the bottom tier, law formulated by the Supreme Court of Canada is the most significant,
followed (in Ontario) by law formulated by the Ontario Court of Appeal, then the Ontario
Superior Court of Justice and the Ontario Court of Justice.
Precedent—that is, what previous courts have decided in cases involving similar circumstances
and principles. Decisions made by higher courts are binding on lower courts in the same
jurisdiction if the circumstances of the cases are similar. This principle is called stare decisis,
which means “to stand by things decided.” A decision is considered persuasive, rather than
binding, when a court is persuaded to follow a precedent from another jurisdiction or from a
lower court, although it is not bound to do so.
Generally speaking, the principle of stare decisis promotes predictability and consistency in
decision making. This means that when a legal issue arises, a lawyer knowledgeable in the field
can usually predict the outcome (or range of outcomes) of the case based on the existing body
of case law.
Occasionally there are watershed cases where a high court decides to expand the boundaries of
previous rulings or to depart entirely from a line of cases because, for example, it believes the
cases no longer reflect social norms or economic realities. On occasion, a higher-level court may
even decide to establish an entirely new cause of action.
Two branches of the common law that affect employment are contract law and tort law.
General principles of contract law determine whether an employee – employer relationship
exists and what remedies apply to a breach of the employment agreement. Just cause (very
serious misconduct).
In a successful lawsuit based in contract, damages in the form of monetary compensation are
awarded so that the plaintiff (the party suing) is placed in the same position that she would
have been in if the defendant (the party being sued) had not breached the contract.
A tort is a wrong for which there is a legal remedy. Tort law is a branch of civil law (non-criminal
law), and covers wrongs and damages that one person or company causes to another,
independent of any contractual relationship between them. A tort can be either a deliberate or
a negligent action. To establish a negligent tort, the plaintiff must show that:
Employment law chapter notes
(1) the defendant owed the plaintiff a duty of care,
(2) the defendant breached that duty, and
(3) the plaintiff suffered foreseeable damages as a result.
Although administrative tribunals are technically subordinate to the courts, appeals to the
courts from their decisions are usually limited by statute in a provision called a privative clause.
A request to a court to review the decision of an administrative tribunal is called an application
for judicial review.
In other words, the reviewing court does not have to agree with the tribunal’s decision as long
as it is justifiable and supported with reasoning.
Below tribunals in the administrative hierarchy, there are usually administrative agencies
empowered to investigate complaints, make rulings, and sometimes issue orders. These
agencies, or commissions, usually issue policy guidelines and have an educational role in
furthering the goals of a statute.
Solicitor – client privilege refers to the right to have communications between a lawyer and her
client kept confidential. The purpose of this privilege is to promote open communication.
For it to apply, four conditions must be met:
1. The communication must be between a lawyer and her client.
2. The communication must be connected to obtaining legal advice (as opposed to business or
non-legal advice). Adjudicators will also look at the dominant purpose for which the lawyer is
retained.
3. The communication must be confidential (for example, the requirement to show an intention
to maintain confidentiality may be undermined where communications are forwarded or
copied to individuals beyond those directly involved in the decision-making process on the file).
4. There must have been no waiver of confidentiality. Waiver may be voluntary, such as where
a client decides to rely on a privileged communication as part of her claim or defence, or it may
be involuntary.
Employment law chapter notes
Common Law Court decisions are found in a number of case reporters—national, regional,
provincial, and topical. These are periodical publications containing judges’ written decisions.
Reading and interpreting case citations is an important skill for researching legal cases. A case
citation tells you how to locate a specific case. It sets out the style of cause (case title), year,
volume number of the case reporter, series number (where applicable), page number, and
court. Consider the following style of cause: McKinney v. University of Guelph, [1990] 3 SCR
229.
•McKinney v. University of Guelph. McKinney is the plaintiff, and the University of Guelph is the
defendant. In an appeal case, the first party named is the appellant (the party requesting the
appeal), and the party named after the “v.” (versus) is the respondent (the party opposing the
appeal).
• [1990]. Square brackets indicate the year that the case reporter volume was published.
Sometimes parentheses are used in case citations to indicate the year in which a case was
decided.
• 3 SCR. This refers to the case reporter volume and name. It indicates that the case can be
found in the third volume of the 1990 Supreme Court Reports.
• 229. This is the page number.
Although an employee – employer relationship is the most common one when someone is
hired to perform work, it is not the only possibility. Sometimes the organization hiring an
individual decides that an independent contractor – principal relationship is better suited to its
needs than a traditional employee – employer relationship.
In contrast to an employee, an independent contractor is a self-employed worker engaged by a
principal to perform specific work. For example, if a homeowner hires an individual to paint his
house, he is not hiring that person as an employee but rather as a self-employed contractor.
Employment law chapter notes
Consider the following obligations that employers have to employees but not to independent
contractors:
1.Providing statutory benefits
2.Paying premiums for workplace health and safety insurance
3.Providing reasonable notice of termination or pay in lieu (unless the employment contract
states otherwise)
4.Remitting appropriate health and income taxes, and contributing to and remitting Canada
Pension Plan and employment insurance premiums.
5.Assuming liability for an employee’s deliberate or negligent acts during the course of
employment.
As noted above, although several employment-related statutes contain a definition of
“employee,” the definitions are so brief that courts and tribunals fall back on the common law
tests for distinguishing between an employee – employer and an independent contractor –
principal relationship.
1.Control test. Does the organization control the individual’s work, including where, when, and
how it is performed? Is the individual free to hire others to perform the work or to have many
clients? Does the individual report to the organization during the workday?
2.Risk test. Does the individual have any expectation of profit (other than fixed commissions) or
bear any risk of financial loss? For example, does the individual face the risk of not receiving
payment for services performed?
3.Organization or integration test. Are the services rendered by the individual an integral part
of the business?
4.Durability and exclusivity of relationship test. Courts consider the permanence and
exclusivity of the parties’ relationship. Where an individual performs work over a long period of
time and has no other clients, courts are more likely to find an employment relationship.
5.Tools test. Does the individual provide his own tools? If so, this weighs in favour of
independent contractor status, especially if a significant capital investment is involved, as in the
case of a truck driver supplying his own truck.
In applying the common law tests, courts assign much greater weight to the substance of the
relationship (what happened in practice) than to its form (what the written contract says).
Another type of relationship is that of agent and principal. An agent is someone who represents
another person (the principal) in dealings with a third party (Yates, 2010, p. 131). Agents can
bind an organization to a contract with customers or other parties, even without the
organization’s knowledge. Common examples are real estate agents, travel agents, and
insurance agents. An agent may be an independent contractor or an employee.
Employment law chapter notes
Chapter 2:
Initially, discrimination was limited to intentional acts, such as an employer’s refusal to hire an
individual because of his religious beliefs. Today, however, the effect of a rule or action matters
as much as the intention behind it.
Bona Fide Occupational Qualification (BFOQ):
The court held that to be a BFOQ, the discriminatory rule or requirement must be:
1. adopted for a purpose rationally connected to the performance of a job;
2. adopted in an honest belief that it was necessary to satisfy a legitimate business purpose;
and
3. reasonably necessary to accomplish that purpose. To establish this, the employer must show
that it was impossible to accommodate the individual or group without creating undue
hardship for itself.
The Ontario Human Rights Code opens with a preamble that sets out the spirit and intent of the
legislation. Inspired by the 1948 Universal Declaration of Human Rights, it recognizes the
“inherent dignity and the equal and inalienable rights of all members of the human family” and
provides for equal rights and opportunities without discrimination to create a climate of
understanding and mutual respect.
Key Features of Ontario’s Human Rights Code:
1. The Code applies to both the private and the public sector and to the conduct of individuals.
Unlike the Charter of Rights and Freedoms, its application is not limited to the actions of
government.
2. Discrimination in employment is prohibited on 16 grounds: race, ancestry, place of origin,
colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender
expression, age, record of offences, marital status, family status, and disability. The Code also
prohibits sexual harassment as well as harassment based on other prohibited grounds of
discrimination in the workplace.
3. To infringe the Code, it is not necessary to intend to discriminate. The effect of an employer’s
action or rule matters as much as the intent. The employer has a duty to accommodate the
special needs of protected individuals or groups unless doing so would create undue hardship
for the employer.
4. No one can contract out of the Code. Including unionized environments.
5. The Code provides for civil remedies, such as ordering an employer to compensate
employees for lost wages or mental suffering or ordering it to change its employment policies.
6. The Code is quasi-constitutional legislation in that if there is a conflict between its provisions
and those of another statute, its requirements prevail unless the other statute specifically
states that it applies despite the Code.
7. The Code applies to every stage of the employment relationship, from recruitment through
to termination.
Employment law chapter notes
The Code provides that everyone has the right to be free of discrimination in five areas of social
activity:
• services, goods, and facilities;
• accommodation (housing);
• contracts;
• employment; and
• membership in vocational associations and trade unions.
Exemptions are discussed more fully in the section “Exemptions: Where Discrimination Is
Allowed” below:
1.Race is not a defined ground but it can often be related to other grounds, such as colour or
ethnic origin. An exemption exists for special service organizations (non-profit social and other
organizations that serve a protected group).
2. Colour refers to skin colour. An exemption exists for special service organizations.
3. Ancestry refers to family descent and is closely related to place of origin. An exemption exists
for special service organizations.
4. Place of origin refers to a country or region of birth, including a region in Canada. An
exemption exists for special service organizations.
5. Ethnic origin has more of a cultural component than ancestry. Protection is not limited to
people who have recently arrived in Canada; it can apply to third- or fourth-generation
Canadians. An exemption exists for special service organizations.
6. Citizenship refers to discrimination on the basis of citizenship status, including status as a
permanent resident, refugee, or temporary resident. Discrimination on the basis of citizenship
is allowed in the following cases: where the law requires or authorizes citizenship as a
qualification or requirement; where the requirement for Canadian citizenship or permanent
residence in Canada has been adopted to foster participation in cultural, educational, trade
union, or athletic activities; and where an employer imposes a preference that the chief or
senior executive is, or intends to become, a Canadian citizen.
7.Creed. This ground protects people from discrimination on the basis of their religion or faith,
but historically it has not covered discrimination based on political convictions. An exemption
exists for special service organizations.
8.Sex. Discrimination on this ground extends to sex (male or female), gender identity, and
(under s. 10(2)) pregnancy. This category also protects the right to breastfeed in public areas.
9. Sexual orientation concerns a person’s sexuality and includes lesbian, gay, bisexual, and
heterosexual people.
10.Gender identity. This ground refers to a person’s intrinsic sense of self, especially with
respect to their sense of being male or female.
11.Gender expression. This ground refers to a person’s external attributes, such as behaviour,
appearance, and dress, that are socially perceived as being masculine or feminine.
12. Age is defined as 18 years or older.
13. Record of offences means provincial offences or pardoned federal offences. This ground
means that, unless one of the exceptions applies, employers cannot discriminate against
prospective or current employees because they have been convicted of a provincial offence
(typically 50 a less serious offence) or a criminal offence for which they have received a pardon.
Employment law chapter notes
Conversely, it is legal to discriminate on the basis of a criminal offence for which no pardon has
been obtained. Moreover, the Code does not prohibit discrimination in employment as a result
of being charged with a crime
14. Marital status refers to a person’s being married, single, widowed, divorced, separated, or
living in a common law relationship. The Supreme Court of Canada has held that this ground
also includes the identity of the complainant’s spouse. Exemptions exist for special service
organizations, BFOQs under s. 24(1)(b), and nepotism policies (policies that allow the employer
to discriminate either in favour of or against specified close relatives of employees).
15. The Code defines “family status” as “the status of being in a parent and child relationship.”
Given that human rights legislation is interpreted liberally, adopted children, stepchildren, and
foster children qualify although it is not yet known whether this definition would apply to
grandparents and grandchildren. An exemption exists for nepotism policies.
16. Disability is extensively defined in s. 10 to cover a spectrum of disabilities, including:
a. physical disability or disfigurement caused by injury, illness, or birth defect;
b. psychiatric disability;
c. disability for which benefits were claimed or received under the workers’ compensation
system;
d. substance abuse (addiction to drugs or alcohol); and
e. a “perceived” disability
In addition to the 16 listed prohibited grounds of discrimination, the Code protects an
individual from being discriminated against because of her relationship with people identified
by a prohibited ground. For example, an employee cannot be denied a position because she
associates with a person of a certain religious belief.
To engage the protection of the Code, the discriminatory treatment must be based on one of
the 16 prohibited grounds.
Prima facie- on the face of it
Balance of probabilities, there is a credible and acceptable explanation for its conduct.
The Code also provides that people have the right to enforce their rights under the Code
without reprisal (s. 8). An employer who retaliates against someone for asserting his rights or
for refusing to discriminate against another person on the basis of a prohibited ground infringes
the Code. For example, if a recruiter is demoted for refusing to discriminate against an
applicant on the basis of her sexual orientation, that recruiter could file a human rights
application under s. 8 of the Code.
1. Special Service Organizations Under s. 24(1)(a), the right to equal treatment in employment
is not infringed where a special service organization—a religious, philanthropic, educational,
fraternal, or social organization that primarily serves people identified by their race, ancestry,
place of origin, colour, ethnic origin, creed, sex, age, marital status, or disability—gives
employment preference to members of that group. However, this exemption is limited to
situations where the preference is a reasonable and bona fide requirement for the job in
question
Employment law chapter notes
2. Bona Fide Occupational Qualifications Under s. 24(1)(b), an employer may discriminate on
the basis of age, sex, record of offences, or marital status, if these are genuine requirements of
the job. For example, a shelter for abused women may choose to hire only women as
counsellors.
3. Nepotism Policies Under the nepotism policy exemption in s. 24(1)(d), an employer may
choose to hire or not hire, or to promote or not promote, her spouse, child, or parent or the
spouse, child, or parent of an employee. A nepotism policy whereby an employer gives
preference for student employment to the children of its employees is permitted. Conversely,
employers may discriminate against spouses, children, or parents of employees if they prefer
not to have closely related employees working in the same area.
4. The medical or personal attendant exemption in s. 24(1)(c) applies to all 16 prohibited
grounds of discrimination. A person may refuse to employ someone on the basis of any of the
prohibited grounds where the primary duty of the job is attending to the medical or personal
needs of the person or to those of an ill child or an aged, infirm, or ill spouse, same-sex partner,
or relative of the person. This exemption covers home care and does not apply to conduct by or
within an institution, such as a nursing home.
5. Special (Affirmative Action) Programs like the medical or personal attendant exemption, the
special programs exemption in s. 14 of the Code applies to all 16 prohibited grounds. Under this
exception, an employer may implement a special program to relieve or promote the status of
disadvantaged groups or persons to help them achieve equal opportunity. This exemption
allows an employer to prefer or promote people who typically suffer from employment
discrimination on the basis of one or more of the prohibited grounds.
The Code protects job applicants from discrimination by requiring that advertisements,
application forms, interviews, and pre-employment testing programs comply with human rights
law. At each step of the hiring process, an employer should document all decisions made and
include the reasons for each decision. Clear and careful documentation, prepared at the time
that a decision is made, provides an employer with a credible basis to defend against
allegations that the decision was made on discriminatory grounds.
Job duties or requirements that are both essential and relate to a prohibited ground of
discrimination should be scrutinized carefully. For example, requiring a driver’s licence for a job
that entails only a minor amount of driving would unnecessarily bar a candidate who is unable
to obtain a driver’s licence because of physical disability, and therefore would infringe the
Code. Similarly, if the job involves a lot of communication with the public, it is reasonable to
require fluency in English, but it is unacceptable to discriminate against someone who speaks
English with a non-Canadian accent.
The Code prohibits employment agencies from accepting or acting on requests to hire people
on the basis of preferences related to prohibited grounds of discrimination. It also forbids
employers from making hiring requests that contravene the legislation.
Employment law chapter notes
Many jobs are filled through advertisements. It is the intention of the Code that an employer
consider many qualified candidates in the early part of the recruitment process so that suitable
candidates are not eliminated inadvertently. This intention affects both where and how a
position is advertised, as well as the contents of the advertisement.
The onus is on employers to show that a requirement for prior work experience in Canada is a
bona fide requirement. Previous work experience may be canvassed at the application and
interview stage to the extent that it is relevant. Sometimes an essential job duty unavoidably
touches on a prohibited ground. For example, because a school bus driver needs a special
driver’s licence, this requirement may be stated in the advertisement even though it bars
applicants who are unable to obtain such a licence because of a disability.
Appropriate questions are limited to establishing the applicant’s name, address, education, and
previous employment history. The purpose of the job application form is to gather information
on job qualifications and skills and to avoid eliciting information that directly or indirectly
excludes individuals on non-job-related grounds.
The job interview process poses unique human rights challenges, and everyone who
participates in the process should be knowledgeable about human rights requirements. For
instance, when meeting a candidate, an interviewer may be tempted to chat informally to
create a relaxed atmosphere and to get to know the candidate. During such a conversation,
information may be elicited that touches on a prohibited ground. A candidate who is not hired
could file a claim of discrimination on a basis of the information shared.
1.Accommodate disabilities. If a job applicant is unable to attend an interview because of a
disability, an employer must accommodate the candidate so that he has an equal opportunity
to be interviewed.
2.Have a standard set of questions. Standardizing an interview keeps it on track and avoids the
perception that candidates were treated differently on the basis of a prohibited ground.
3.Use interview teams. Teams allow interviewers to compare impressions and can reduce the
impact of individual biases.
4.Beware of prohibited grounds. An interviewer should not ask questions that relate to a
prohibited ground unless the elicited information can legally form the basis of a hiring decision.
If a response cannot be used in making a hiring decision, the employer takes a risk in asking it.
The candidate may perceive that the information played a part in the decision not to hire and it
may be difficult to prove otherwise.
Questions prohibited in the job application are also prohibited in the interview.
As noted in this decision, an employer should not screen out candidates who are
“overqualified” simply because the employer assumes, they will be dissatisfied and leave as
soon as another position is found. It must make some inquiry into the candidate’s motives for
applying for the job, in order to obtain a more accurate prediction of the candidate’s behaviour
if hired.
Employment law chapter notes
Similarly, an employer may question a candidate regarding any of the prohibited grounds
where the primary job is attending to the medical or personal needs of the employer or of an ill
child or an aged, infirm, or ill spouse or relative of the employer. This exemption is narrowly
focused on the in-home care of the employer or a close relative.
The following are examples of information that the Commission suggests should be requested
only after an employer makes a conditional offer:
• a copy of a driver's licence, which contains information such as date of birth;
• a work authorization from immigration authorities, which contains information regarding
date of arrival in Canada;
• a social insurance card, which may contain information regarding immigration status;
• a transcript or copy of professional credentials, which often indicate place of origin; and
• requests for medical examinations or health information necessary for pension, disability, life
insurance, and benefit plans, all of which may indicate physical disabilities.
The Commission takes the position that medical tests to determine a candidate’s ability to
perform the essential duties of a job should take place only after a conditional offer of
employment is made. The examination must be directly relevant to the job as well as
objectively necessary and appropriate. (Ex. TB testing) If medical testing is required, all
candidates must be tested.
The Commission recommends that where medical testing is appropriate, candidates should be
so notified at the time that an offer of employment is made. Arrangements must be made for
the competent handling of test materials and for keeping them properly labelled and secure at
all times. Test results should be reviewed with the employee by the physician.
Human rights legislation in Canada considers alcoholism and drug dependency, as well as
perceived dependency, to be forms of disability and therefore prohibited grounds of
discrimination. As a result, workplace alcohol and drug testing has been severely restricted in
this country. Where such testing is legitimately necessary, the employer should make job
applicants aware of the requirement when they make a job offer.
Tests that measure job-related skills, such as typing, mechanical, electrical, and computer skills,
are acceptable. Employers should administer any assessments at the same point in the
selection process for all candidates; obtain the candidate’s written permission before
conducting the testing; investigate the reliability and validity of any tests administered; and
ensure that the confidentiality of test results is protected
Employment law chapter notes
Chapter 5:
Many acts of discrimination, however, are hidden or even unintentional. For example, the
weight and height restrictions formerly attached to some jobs, such as firefighter and police
officer, often had an adverse impact on women. This type of discrimination is sometimes
referred to as adverse impact discrimination or constructive discrimination.
“Systemic,” or institutional, discrimination is one of the more complex and subtle forms of
discrimination. It refers to the web of employer policies or practices that are neutral on their
face but that have discriminatory effects.
To successfully defend a discriminatory standard or rule, the employer must: “Meiorin test”
1. demonstrate that a rational connection exists between the purpose for which the standard
was introduced and the objective requirements of the job;
2. demonstrate that the standard was adopted in an honest and good-faith belief that it was
necessary for the performance of the job; and
3. establish that the standard was reasonably necessary to accomplish that legitimate workrelated purpose. To establish this, the employer must show that it was impossible to
accommodate employees who share the characteristics of the claimant without imposing
undue hardship on itself.
In Meiorin, the court suggested some factors that should be considered when assessing
whether the duty to accommodate has been met.
1. Did the employer investigate alternative approaches that do not have a discriminatory effect,
such as individual testing?
2. Were there valid reasons why alternative approaches were not implemented? What were
they?
3. Can the workplace accommodate different standards that reflect group or individual
differences and capabilities?
4. Can legitimate workplace objectives be met in a less discriminatory manner?
5. Does the standard ensure that the desired qualification is met without placing an undue
burden on those to whom it applies?
6. Have other parties who are obliged to assist in the search for accommodation (for example,
the union representing an affected worker) fulfilled their roles?
Policy and Guidelines on Disability and the Duty to Accommodate (2000), the principle of
accommodation involves three factors:
1.Individualization. Each person’s needs are unique; a solution that meets one person’s
requirements may not meet another’s.
2.Dignity. People must be accommodated in a manner that most respects their dignity,
including their privacy, confidentiality, comfort, and autonomy.
3.Inclusion. Job requirements and workplaces must be designed with everyone in mind. An
employer cannot base systems or requirements on “normal employees” and then make
exceptions as people or groups request them.
Employment law chapter notes
The obligations of the employer are as follows:
• accept the employee’s request for accommodation in good faith, unless there are legitimate
reasons for acting otherwise;
• obtain expert opinion or advice where necessary;
• ensure that alternative approaches and accommodation solutions are investigated;
• keep a record of the accommodation request and the action taken;
• maintain confidentiality;
• limit requests for information to those reasonably related to the nature of the limitation or
restriction;
• grant accommodation requests in a timely manner unless they create undue hardship, even
when the request is not made formally;
• bear the cost of acquiring necessary medical information or documentation such as doctors’
notes; and
• explain to an employee why a request would cause undue hardship, if this is the case.
The obligations of an employee who seeks accommodation are as follows:
• request accommodation;
• explain why accommodation is required, so that all needs are known;
• answer questions or provide information regarding relevant restrictions or limitations,
including information from health-care professionals;
• participate in discussions regarding possible solutions to accommodation needs;
• cooperate with any experts whose assistance is required;
• meet agreed-upon performance and job standards once accommodation is provided;
• work with the employer on an ongoing basis to manage the accommodation process; and
• discuss accommodation requirements only with persons who need to know them (possibly
including a supervisor, a union representative, or human rights staff).
The obligations of unions are as follows:
• take an active role as a partner in the accommodation process;
• share responsibility with the employer to facilitate accommodation, including suggesting and
testing alternative approaches and cooperating when solutions are proposed;
• respect the confidentiality of the person requesting accommodation; and
• support accommodation measures irrespective of collective agreements, unless to do so
would create undue hardship.
Under the Code, three factors—costs, outside sources of funding, and health and safety
requirements—are specifically recognized as being relevant to a discussion of undue hardship.
According to these guidelines, costs constitute undue hardship only if they are quantifiable (not
merely speculative), directly related to the accommodation, and “so substantial that they
would alter the essential nature of the enterprise, or so significant that they would substantially
affect its viability.” This is an extremely high standard, and most large businesses will rarely be
able to meet it.
Moreover, costs are based on the budget of the whole organization, not the branch or unit
where the person works or has made a job application.
Employment law chapter notes
Employers must be able to produce actual evidence of undue hardship. Speculative risks and
conditions that may arise in the future are not valid considerations. Similarly, the
unpredictability and extent of future disability does not affect the current duty to
accommodate.
For health and safety to constitute undue hardship, the Commission’s guidelines state that the
employer must show that the risks, evaluated after all accommodations have been made to
reduce them, are still serious. The nature, severity, probability, and scope of risk are all relevant
considerations. If the potential harm is minor and unlikely to occur, the risk is not considered
serious.
Under s. 17, the employer may require an employee with a disability to perform only job duties
that are “essential.”
Accommodations may include making changes to the layout of the workplace to make it
barrier-free, such as building ramps and wheelchair-accessible washrooms or modifying
equipment and vehicles. It may also require changing the way that work is done. This may
involve providing stools, special software, or technical aids; modifying work hours; or
reassigning disabled employees to vacant jobs that they are able to perform. Episodic
disabilities (for example, arthritis, multiple sclerosis, and migraines) may require
accommodations such as flex-time, providing a private area in the workplace in which to rest or
take medications, project-based work (where the longer time frame allows for periods of
disability), and ergonomically designed equipment.
Manager and supervisor training are also crucial: front-line supervisors need to be aware of
how to respond to employees who disclose a disability; they need to be sensitized to the
supports required and understand the types of accommodation available; and they need to be
prepared for any co-worker issues that may arise.
According to one American study, the average cost of a reasonable accommodation is about
US$500, while 49 percent of accommodations cost nothing. Often the largest investment is in
taking the time to understand what the employee needs and being flexible in the range of
accommodation possibilities considered.
An employer must also be sensitive to the duty to accommodate in preparing and applying its
attendance policy. Requiring a specific level of attendance is discriminatory if it has a negative
effect on an employee because of his disability. The employer’s attendance policy should
establish whether an absence is the result of a medical condition and, if so, assist the employee
in meeting its requirements.
There is no legal requirement to create a job out of tasks not currently being performed. The
employee must be able to perform a useful and productive job for the employer; otherwise, the
situation would constitute undue hardship.
In Human Rights at Work (2008), the Ontario Human Rights Commission suggests that the
following questions be considered in determining whether providing alternative work is
appropriate when accommodation in the pre-disability job is not possible:
• Is alternative work available now or in the near future?
• If not, can a new position be created without causing undue hardship?
Employment law chapter notes
• Does the new position require additional training, and does the training impose undue
hardship?
• Does the alternative work policy contravene the collective agreement?
• What are the terms of the collective agreement or individual contract of employment?
• What are the past practices of the workplace?
• How interchangeable are workers? Do employees frequently change positions, either
permanently or temporarily, for reasons other than disability accommodation?
How Diligently Must an Employer Pursue Its Duty to Accommodate?
According to the Commission’s guidelines, there is no set rule. An employer’s obligation
depends on the circumstances, the nature of the disability, and the predictability and frequency
of an employee’s absences.
The prognosis is especially important: is the employee likely to return to work in the
foreseeable future? The better an employee’s prognosis, the greater the employer’s duty to
accommodate.
Once hired, an employee has an obligation to let the employer know about the need for
accommodation. There is also the duty to cooperate with the accommodation process,
including responding to reasonable requests for medical documentation in the case of ongoing
absences and keeping the employer informed of progress and recovery prospects.
Note that regardless of the type of disability, the accommodation process usually starts with a
conversation with the employee and, optimally, remains interactive throughout.
1.Once you have determined that a disability exists, gather information to determine its likely
severity and duration, how the disability will affect the essential job duties, and the type of
accommodation required.
2.Evaluate the employee’s job to determine its demands and whether they can be altered
without causing the employer undue hardship.
3.If the employee cannot be accommodated in his pre-disability job, thoroughly review any
other available jobs.
4.Determine whether the proposed accommodation would cause the employer undue
hardship.
5.Monitor the situation regularly to ensure that it continues to fit the employee’s needs.
6.Document all facets of the accommodation process. Include a record of the accommodation
options that were considered, reasons why they were or were not implemented, and notes and
records of all discussions with the employee and, in the case of a unionized workplace, the
union. Create a chronology of events that shows what you did each step of the way.
7.Maintain confidentiality throughout the process.
Given that about 20 percent of Canadians will have a diagnosable mental illness at some point
during their lifetime, it’s not surprising that the duty to accommodate employees with mental
or psychological disabilities is a growing issue in the workplace.
Proactive measures include increasing the flexibility in how duties are performed; addressing
the stigmatization and social exclusion of people who have mental health issues through
Employment law chapter notes
awareness education and training; and making sure front-line supervisors and managers are
equipped to handle requests for accommodation of mental disabilities, and are supported in
the ongoing conversations surrounding it.
An employer also needs to be able to recognize the possible need for accommodations for
mental illness even when they are not directly requested. This is because an employee with
mental illness may not be able to recognize or articulate the need for accommodation.
An employer must take the initiative where a problem is apparent: an employer “cannot turn a
blind eye to suspicious behaviour and/or other manifestations of an actual disability and then
be able to rely upon the absence of direct knowledge to argue that it is under no obligation to
accommodate”
As with physical disability, the primary focus in accommodating a mental illness is job
performance. Letting the employee know that certain behaviours have been noticed and that
these behaviours are affecting performance can be the starting point. The employer can then
ask what the employee needs in order to improve performance and offer ways to find that
help.
As part of fulfilling the procedural dimension of the duty to accommodate, an employer has the
right to obtain a medical prognosis. This refers to information from a medical health
professional about the nature of the illness, how it affects the employee’s ability to continue or
return to work, and the accommodation required to do so
In determining whether an employer has met the substantive portion of its duty to
accommodate up to the point of undue hardship, health and safety is one possible
consideration, usually depending on the employee’s specific job duties and the particular
conditions of the workplace. (Ex. Taking medication that can make you drowsy)
Canadian law defines alcohol and drug abuse as a disability and therefore considers it to be a
prohibited ground of discrimination. Employees who are dependent on these substances are
entitled to be reasonably accommodated unless it causes the employer undue hardship. This
typically obliges an employer to institute an employee assistance program (EAP) or to allow an
employee time off work to attend such a program. If an employee does not benefit from
rehabilitation efforts, an employer that is fair and consistent in applying its own policies is not
required to hold a job open indefinitely.
To meet its duty to accommodate an alcohol- or drug-dependent employee, an employer
should require the employee to undergo counselling or rehabilitation and never create the
impression that it is tolerating the abuse.
The requirement to accommodate an employee’s creed may arise in a number of areas,
including dress codes, break policies, work schedules, and religious leave. According to Meiorin,
flexibility should be built into an employer’s policies.
Human rights law requires an employer to accommodate the religious observances of
employees who are unable to work on particular days by relieving them from working on those
days unless this causes undue hardship.
Another question that arises is whether an employee who takes religious holidays off must be
paid for at least some of those days.
Employment law chapter notes
According to the Markovic decision, the duty to accommodate does not require an employer to
pay employees for not working on a religious holiday if it offers realistic options for making up
the lost time. Furthermore, requiring those seeking time off for religious observance to
negotiate from a menu of options is not discriminatory.
Pregnant employees or employees who are breast-feeding may require temporary
accommodation in the workplace. This could include temporary relocation from a work area
that might endanger the pregnancy, modification of work duties, a flexible work schedule,
increased break time, special parking spaces, accommodating medical appointments, and
appropriate workplace support for breast-feeding.
Until recently, there were few cases in this area. The duty to accommodate for family status
was generally taken to mean that employers have some obligation to assist employees who are
balancing work and family responsibilities and to avoid policies that adversely affect them.
The Federal Court of Appeal unanimously upheld this decision and laid out four elements that a
complainant must prove to establish a prima facie case of discrimination based on family status
and the duty to accommodate childcare needs:
1.The child is under the complainant’s care and supervision.
2.The complainant’s childcare obligations reflect a legal responsibility rather than merely a
personal choice (for example, taking the child to extracurricular activities).
3.The complainant has made reasonable efforts to meet those childcare obligations and no
alternative solution is reasonably accessible.
4.The workplace in question interferes with the fulfillment of the legal obligation in a manner
that is more than trivial or insubstantial.
To date, this is the highest level of court to deal with this issue and it may point to the end of
the Campbell River approach. At the same time, it clarifies the point that the duty to
accommodate for child care extends only to parental obligations, not to merely personal
choices, and that the employee must have made reasonable efforts to self-accommodate
before the duty is triggered.
It found that Breathalyzers are minimally intrusive yet provide a highly accurate measure of
both alcohol consumption and impairment; they may therefore be acceptable in safetysensitive positions, especially where supervision is impractical. In contrast, drug tests are more
intrusive (they require a urine sample) and fail to measure current impairment; therefore,
random drug testing is less likely to be acceptable, even in those restricted circumstances when
random alcohol testing may be acceptable. Entrop also stands for several other propositions:
mandatory disclosure of previous substance abuse must be limited to abuse that took place in
the recent past; an employer’s response to a positive test result must be tailored to the
individual circumstances; and an employer must offer reasonable accommodation, such as a
rehabilitation program, and not automatically dismiss an employee who suffers from a
disability arising from alcohol or drug use.
1. Selective drug or alcohol testing may be carried out when there is a reasonable suspicion of
impairment.
Employment law chapter notes
2. Selective drug or alcohol testing may be carried out when an employee has been involved in
a workplace accident, incident, or near miss where it may be important to determine the root
cause of what happened.
3. Random (unannounced) alcohol or drug testing may be carried out as part of an agreed
rehabilitation and return to work program of an employee clearly identified as having a
problem of alcohol or drug use.
4. The majority decision did not differentiate between the different standards applied to drug
testing and alcohol testing that underlay Entrop. Instead, it suggests that a policy requiring
universal random testing for either drugs or alcohol must be supported by evidence of
reasonable cause.
5. There may be a category of workplaces that are so extremely dangerous (for example, a
nuclear power facility) that universal random testing is acceptable without further inquiry. This,
however, would be the rare exception.
Harassment: Ontario’s Human Rights Code prohibits workplace and sexual harassment in
employment. The employer not only has a duty to provide a working environment that is free
from harassment and discrimination; it must also deal effectively and efficiently with any
allegation of harassment of which it is, or should be, aware.
Harassment is defined in s. 10 of the Code as “engaging in a course of vexatious comment or
conduct that is known or ought reasonably to be known to be unwelcome.” Any demeaning or
offensive behaviour based on membership or perceived membership in a protected group can
be harassment. This includes verbal threats, intimidation, jokes, unwelcome remarks, or
offensive pictures and posters.
An employer that knew or should have known of harassment, and could have taken steps to
prevent or stop it, may be liable. An employer can also be held responsible for harassment that
occurs away from the workplace, such as at a company barbecue, conference, or Christmas
party.
Sexual harassment is similar to other forms of workplace harassment in that it refers to a
course of vexatious comment or conduct (based on sex, sexual orientation, gender identity, or
gender expression) that is known or ought reasonably to be known to be unwelcome. More
than one incident is usually required to sustain a human rights complaint; a single incident is
sufficient, however, if the conduct is serious enough that the harasser must have known that it
was offensive. It can be physical or verbal. The more obvious cases of harassment involve
unwelcome physical contact such as touching, patting, pinching, kissing, and hugging. However,
it also includes offensive remarks.
Sexual Solicitation: This provision refers to unwelcome advances or requests for sexual favours
by a person in a position of authority in the workplace, such as a supervisor. The threat of
reprisal or promise of reward may be explicit, such as where an employee is denied a
promotion because he refuses a sexual advance from his supervisor, but it need not be.
To be effective, workplace and sexual harassment policies should do the following:
1. Indicate the employer’s commitment to eliminating harassment in the workplace. Make it
clear to new hires that discrimination will not be tolerated.
Employment law chapter notes
2. Explain the types of behaviour that are considered harassment. Communicate this
information regularly to staff and managers alike.
3. Include awareness programs to underline the policy’s importance. Supervisors and managers
must be able to recognize harassment and respond quickly.
4. Describe the process by which complaints are brought to the employer’s attention and
investigated, and describe the penalties for violating the policy.
5. Advise employees either to inform harassers that their behaviour is unwelcome or to inform
their supervisor of the harassment.
6. Insist that supervisors deal promptly with allegations of harassment.
7. Treat complaints confidentially and inform employees in advance about the confidentiality
policy.
8. Require a prompt and thorough investigation by an impartial person who is knowledgeable in
human rights law. Critical elements in the investigation include informing the alleged harasser
that a complaint has been filed, providing particulars that allow him or her to respond, and
conducting separate interviews with both parties, as well as their legal counsel and material
witnesses.
9. Circulate the anti-harassment policy to all employees, including those who are newly hired,
and post it in a prominent spot in the workplace.
As noted, the Code’s harassment provisions are engaged when the harassment relates to one
or more of the 16 prohibited grounds of discrimination.
Under s. 25 of the Ontario Human Rights Code, an employee who is excluded because of a
disability from a benefit, pension, or superannuation plan or fund or from a group insurance
contract is entitled to compensation from her employer. The amount of compensation must
equal the contribution that the employer would have made for an employee without a
disability.
An employer is vicariously liable—that is, legally responsible for the actions of another—for the
discriminatory acts of its agents and employees in the workplace. It is also directly liable for the
actions of management.
Clients or customers who act in a discriminatory or harassing way toward an employee in the
employer’s workplace are not liable under the Code. However, an employer may be liable for
their behaviour if the following criteria are met: it knew of, or had control over, the situation; it
could have done something to prevent or stop the behaviour; and it failed to act.
The Commission no longer accepts or handles individual complaints of discrimination; all new
applications (formerly known as “complaints”) are now filed directly with the Tribunal. This is
referred to as the “direct access model.”
The Commission continues its mandate to develop policies on human rights issues. These
policies are considered by the Tribunal in making its decisions.
The Tribunal has extensive procedural and substantive powers under ss. 43 to 45.2 of the Code
to streamline its processes. Under its Rules of Procedure, it may:
• examine records it considers necessary;
Employment law chapter notes
• direct the order in which evidence will be presented;
• on the request of a party, direct another party to produce a witness when that person is
reasonably within that party’s control;
• question witnesses and advise when additional evidence or witnesses may assist the Tribunal;
and
• narrow issues and limit evidence and submissions to those issues.
The process for making and responding to an application is set out below:
1. An employee who wants to file a claim of discrimination or harassment may obtain an
application form (Form 1) from the Tribunal’s website and file it directly through that website.
2. Applications should be filed within one year of the date on which the discrimination is alleged
to have occurred. If there was more than one discriminatory event, the application should be
filed within one year of the last event.
3. The application form is extensive. Among other things, it asks the applicant to: identify who
they believe is responsible for the human rights violation claimed; provide a detailed firstperson account of the situation that led to the claim; and list important witnesses and
documents related to the application and explain why each is relevant.
4. The Tribunal will review the application for completeness and jurisdiction. Applications that
lack key information will be returned and the applicant will have 20 days to fill in the missing
information.
The Tribunal does not have jurisdiction to handle an application if:
a. the application does not relate to a ground of discrimination (for example, race or disability)
and an area of activity (for example, housing or employment) covered by the Code;
b. the events happened outside Ontario;
c. the organization that is said to have discriminated is federally regulated;
d. the human rights claim is already before the courts, or the subject of a court decision; or
e. a complaint related to the same or substantially the same matter had already been filed with
the Ontario Human Rights Commission.
5. Once satisfied as to jurisdiction and completeness, the Tribunal then sends each respondent
(for example, employer, supervisor, co-worker) a copy of the application, usually within a week
of processing it. (Information about the applicant’s witnesses will be deleted.) Respondents
must use the Tribunal’s response form (Form 2) to respond, and they have 35 days to complete
and return it to the Tribunal. Questions on the response form include:
• Did the applicant tell you about the human rights concern?
• Did you investigate?
• Do you have a human rights policy?
• What is your response to what the applicant says happened and the applicant’s proposed
remedy?
6. The respondent must also list its important witnesses and documents. If the respondent fails
to respond, the application will proceed and monetary as well as other orders may be made
against the respondent.
7. In most situations, a respondent must file a complete response. The Tribunal will not
consider requests to decide preliminary objections or issues before the complete response is
filed unless: the respondent asks the Tribunal to dismiss an application because a court is
Employment law chapter notes
already dealing with the same matter; there was already a human rights complaint about the
same matter; or the applicant and the respondent have already entered into a settlement
agreement and the applicant signed a release.
8. The Tribunal sends the applicant a copy of the response, and applicants have 14 days in
which to reply. (Information about the respondent’s witnesses will be deleted.)
9. The Tribunal offers voluntary mediation services to assist the parties in resolving the
application. Any mediation occurs within four to five months of the application. Settlements are
voluntary.
10. Where the parties refuse mediation, or mediation does not resolve the application, the
Tribunal will issue a Confirmation of Hearing notice. A hearing will be scheduled for a date or
dates within five months of the Notice of Hearing. The notice also triggers the obligation to
exchange all “arguably relevant documents” within 21 days and sets the hearing dates. Fortyfive days before the hearing, the parties must deliver all documents they intend to rely on, a list
of witnesses they intend to call, and a brief summary of the anticipated testimony.
11. Prior to the hearing, the Tribunal may issue a Case Assessment Direction, which will identify
what the parties need to do to prepare for the hearing. For example, it may identify witnesses
who will have to attend on the first day, or the legal or procedural issues that the parties will
have to address. The Case Assessment Direction is a decision of the Tribunal and the parties
must comply with it.
12. Hearings are typically in person, although procedural and preliminary matters may be heard
by conference call, in writing, or in person.
It should be noted that human rights issues that arise from a matter covered by a collective
agreement are usually heard by an arbitrator under the grievance procedure of the collective
agreement, rather than by the Tribunal.
The Tribunal may defer (delay hearing) an application where the same subject matter is being
dealt with in another proceeding, such as a labour arbitration. If it defers, the applicant has 60
days to bring the application back once the other proceeding has concluded. (Note that where
the same human rights claim is being advanced in a court proceeding, it is not a deferral issue—
the Tribunal simply has no jurisdiction.)
Moreover, where the Tribunal finds that human rights considerations have been raised and
appropriately dealt with by another body, it will not rehear it.
Under s. 45.2 of the Code, the Tribunal has broad remedial powers. It can order monetary
compensation or order a party to make non-monetary restitution or to “do anything that, in the
opinion of the Tribunal, the party ought to do to promote compliance with this Act.” Remedies
may include an order to hire or reinstate the applicant, compensate the applicant for lost
earnings or job opportunities, and pay damages.
Under ss. 45.2 and 45.3 of the Code, the Tribunal has the power to order one party to make
restitution to the other and to do anything that, in its opinion, the party ought to do to promote
compliance with the Code. For example, the Tribunal may require an employer to change its
policies, implement training programs, establish an internal complaint system, and introduce
anti-discrimination and anti-harassment policies.
Employment law chapter notes
Another significant change to the system is the granting of power to the courts to award human
rights remedies for civil claims where human rights issues are involved. For example, a plaintiff
sues her former employer in court for wrongful dismissal under the common law and claims
that the employer’s actions also violated human rights law. In that situation, she may now ask
the court to award damages (or even reinstatement, previously only available as a statutory
remedy) for a violation of the Code. It is noteworthy that there are, as of yet, no examples of a
civil court awarding reinstatement.
Penalties Under the Code: Under s. 46.2 of the Code, every person who contravenes the Code is
liable to a maximum $25,000 fine. This could include an individual supervisor or co-worker.
In 2005, Ontario passed the Accessibility for Ontarians with Disabilities Act (AODA). The goal of
this legislation is to make Ontario fully accessible to people with disabilities by 2025 by phasing
in a series of accessibility standards.
Under the AODA, there are now five accessibility standards covering five key areas: customer
service, information and communications, employment, transportation, and built environment
(design of public spaces). (The last four are combined into the Integrated Accessibility
Standards regulation, known as the IASR.) The standards covering employment (the
Employment Accessibility Standards) apply to all employers in Ontario who employ at least one
paid employee.
The eight requirements covered by the Employment Accessibility Standards are:
1. Recruitment, assessment, and selection (s. 23)
2. Accessible formats and communication supports for employees (s. 26)
3. Workplace emergency response information (s. 27)
4. Documented individual accommodation plans (s. 28)
5. Return to work process (s. 29)
6. Performance management (s. 30)
7. Career development and advancement (s. 31)
8. Redeployment (s. 32)
Under these employment standards, employers are generally required to establish and
implement employment policies, procedures, and training related to accessibility in recruiting,
hiring, retaining, and accommodating people with disabilities.