Latest Developments in Human
Rights in Canada
Thursday, November 10, 2011
Presenters
Moderator
Stephen J. Hirschfeld, CEO, Employment
Law Alliance; Partner, Curiale, Hirschfeld,
Kraemer LLP, San Francisco, CA
shirschfeld@employmentlawalliance.com
2
Speakers
Nancy F. Barteaux, Partner. Ritch Durnford
Lawyers, Halifax, Nova Scotia
nancy.barteaux@ritchdurnford.com
Michel Gélinas, Partner, Lavery, de Billy,
S.E.N.C.R.L./L.L.P., Montreal, Quebec
mgelinas@lavery.ca
3
Speakers
Teresa F. Haykowsky, Partner,
McLennan Ross, Edmonton, Alberta
thaykowsky@mross.com
Gregory J. Heywood, Partner, Roper
Greyell LLP, Vancouver, British Columbia
gheywood@ropergreyell.com
4
Speakers
Erin Kuzz, Partner, Sherrard Kuzz LLP,
Toronto, Ontario
ekuzz@sherrardkuzz.com
Grant Mitchell, Partner, Taylor McCaffrey
LLP,Winnipeg, Manitoba
gmitchell@tmlawyers.com
5
Application/Complaint Process
• Gatekeeper jurisdictions:
– All jurisdictions other than B.C. and
Ontario
– Body in place (frequently called
‘Commission’) to act as gatekeeper
– Performs investigative function
– Determines whether complaint
proceeds to hearing
6
Application/Complaint Process
• Gatekeeper jurisdictions (cont’d):
– Vast majority of complaints either
settled, or commission declines to
refer to hearing
– Only after complaint passes
gatekeeping, does it process to
hearing process
7
Application/Complaint Process
• Direct access jurisdictions:
– In Ontario and B.C. there is no
formal “gatekeeper” function;
Applicants have “direct access” to
Tribunal for a hearing
– Access to a “hearing” effectively
guaranteed
o Format of “hearing” defined broadly,
including hearing in writing
8
Application/Complaint Process
• Direct access jurisdictions (cont’d):
– Ability to seek dismissal without
hearing on merits
– Reasons may include outside
Tribunal jurisdiction (i.e., federal
employer), timeliness, subject matter
already appropriately dealt with,
doesn’t disclose Code violation
9
Impact of Process
• Process faster in direct access
jurisdictions
– Matters in hearing within months, not
years
– Employers required to provide more
complete Responses earlier in
process (including witness
statements in Ontario)
10
Application/Complaint Process
• More complaints proceed to hearing
– Limited ability to seek dismissal
without hearing
– Failing settlement, complaints
proceed to hearing as of right
11
Application/Complaint Process
• Employers in direct access
jurisdictions need to be more
strategic in planning terminations
– Cannot assume any complaint, if
filed, will be years in process
12
Definition of Employer - ABCA
• Lockerbie & Hole industrial Inc. v.
Alberta (Human Rights and
Citizenship Commission, Director),
2011 ABCA 3
– Facts
– Principles
– Implications
13
Knowledge of Prerequisite to
Discrimination
• Burgess v. Stephen N. Huk
Professional Corporation, 2010 AB
QB 424
– Facts
– Principles
– Implications
14
Duty to Accommodate
• The Test
– Employee establishes a prima facie case
of discrimination based on disability
↓
– Onus shifts to Employer to show that the
discriminatory practice is a bona fide
occupational requirement or qualification.
The Employer must meet a 3-part test
(Supreme Court of Canada’s Meiorin
decision in 1999):
15
Duty to Accommodate
1. Show that the standard was adopted for a
purpose which is rationally connected to the
performance of the job;
2. Establish that the standard was based upon an
honest and good faith belief that it was necessary
for a legitimate work-related purpose; and
3. Establish that the standard was necessary to
accomplish a legitimate work-related purpose.
Must demonstrate that employees with these
characteristics cannot be accommodated without
imposing undue hardship on the employer.
16
Duty to Accommodate
• The Test (cont’d)
– Employer must individually assess the
employee and the appropriate
accommodation (flexibility and creativity
help).
– Employer has to obtain all relevant
information about the employee’s disability.
17
Duty to Accommodate
• Recent Supreme Court of Canada
cases.
– McGill University Health Centre
(Montreal General Hospital) v. Syndicat
des employes de l’Hopital general de
Montreal, 2007 SCC 4: an automatic
termination provision in a collective
agreement is an indication of what the
parties think is a “reasonable” amount of
time to accommodate an employee.
18
Duty to Accommodate
– Hydro-Québec v. Syndicat des employées
de techniques professionnelles et de
bureau d’Hydro-Québec, section locale
2000 (SCFP-FTQ), 2008 SCC 43: after many
years of accommodation, termination was
appropriate where there was no indication that
the employee would ever return to work on a
consistent basis. Employer does not have a
duty to change working conditions in a
fundamental way. Its duty to accommodate
ends when the employee is no longer able to
fulfill the basic obligations of employment.
19
Duty to Accommodate
• Notable developments in the past
year
– Duty to accommodate is triggered not just
when an employee asks for accommodation,
but where the employee “appears” to require
accommodation, especially in cases of mental
disability. The test is whether an employer
“knew or ought to have known” that an
employee required accommodation. (Frederick
Semeniuk v Weston Bakeries Ltd (2010),
CHRR Doc 10-3551 (Sask HRT))
20
Duty to Accommodate
• Notable developments in the past
year (cont’d)
– Employees can’t insist on a particular form
of accommodation and no other (PO v.
Canada Revenue Agency, 2010 PSLRB 40
and JR v Saskatchewan (Environment)
(2010), CHRR Doc 10-1274 (Sask HRT)
21
Duty to Accommodate
• Notable developments in the past
year (cont’d)
– Duty to accommodate applies to hiring
processes, too. In Ontario, effective July 1,
2011, under a new regulation called the
“Integrated Accessibility Standard” under the
Accessibility for Ontarians with Disabilities Act,
employers are required to make employees
and potential employees aware of the
possibility of accommodation during the
recruitment process and thereafter.
22
Duty to Accommodate
• Does it matter that the injury
occurred at work?
– Employers have a duty to accommodate
under workers’ compensation legislation in
Ontario, Nova Scotia, PEI and
Newfoundland, and Labrador.
o Employers are required (whenever
possible) to return a worker to his/her preinjury employment.
23
Duty to Accommodate
• Does it matter that the injury
occurred at work (cont’d)?
o The employer’s re-employment obligation
exists for 2 years after an employee’s
return to work.
o When an employee is terminated within 6
months of re-employment, there is a
rebuttable presumption that the employer
terminated because of the workplace injury.
24
Duty to Accommodate
• “Workplace stress” – does an
employer have to accommodate?
– “Stress” is not a disability, unless the
employee provides medical evidence of a
specific diagnosis and that s/he is unable
to carry out daily functions.
o Vandale v Town of Golden, 2009 BCHRT
219
o Skytrain BC Rapid Transit v CUPE Local 7000
(Olsen Grievance), 2009 BCCAAA No 85
25
Duty to Accommodate
• “Workplace stress” (cont’d)
o Wall v the Lippe Group (cob Hubert Lippe
Enterprises Ltd), [2008] OHRT No 47
o Halliday v. Michelin North America
(Canada) Ltd., 2006 NSHRC 5
26
Duty to Accommodate
• “Workplace stress” (cont’d)
– Under workers’ compensation legislation,
workplace injuries related to stress are limited
to “traumatic events.”
– BUT this limitation was found to violate the “no
discrimination” provision (s. 15) of the
Canadian Charter of Rights and Freedoms and
human rights legislation in B.C.
o Plesner v. British Columbia Hydro and Power
Authority, 2009 BCCA 188
o The same issue is being considered in Ontario
(Decision No. 480/11, 2011 ONWSIAT 1032)
27
Accommodation
• Privacy of medical information –
legal backdrop for Quebec
– The Charter of Human Rights and
Freedoms
o “5. Every person has a right to the respect of his
private life.”
– The Civil Code of Quebec
o “35. Every person has a right to the respect of
his reputation and privacy. No one may invade
the privacy of a person without the consent of
the person unless authorized by law.”
28
Accommodation
• Cont’d
– The Act respecting the Protection of
Personal Information in the Private Sector
o Privacy legislation - one of the first of its kind in
Canada;
o Establishes specific rules for the protection of
personal information, notably in respect of
collection, use and communication to third
persons;
o Applies to all private legal entities carrying on a
business in Quebec;
29
Accommodation
• Cont’d
o Basic rule: consent is required for collection,
use or communication of personal information
– “14. Consent to the collection, communication
or use of personal information must be
manifest, free, and enlightened, and must be
given for specific purposes. Such consent is
valid only for the length of time needed to
achieve the purposes for which it was
requested.
– Consent given otherwise than in accordance
with the first paragraph is without effect.”
30
Accommodation
• Employee privacy rights must be
balanced with employer obligations
– The Charter of Human Rights and
Freedoms
o “46. Every person who works has a right, in
accordance with the law, to fair and reasonable
conditions of employment which have proper
regard for his health, safety and physical wellbeing.”
31
Accommodation
• Cont’d
– The Civil Code of Quebec
o “2087. The employer is bound not only to allow the
performance of the work agreed upon and to pay
the remuneration fixed, but also to take any
measures consistent with the nature of the work to
protect the health, safety and dignity of the
employee.”
– The Act respecting Occupational Health and
Safety
o “51. Every employer must take the necessary
measures to protect the health and ensure the
safety and physical well-being of his worker. (…)”
32
Accommodation
• Cont’d
– The Labour Standards Act
o “81.19. Every employee has a right to a work
environment free from psychological
harassment.
o Employers must take reasonable action to
prevent psychological harassment and,
whenever they become aware of such
behaviour, to put a stop to it.”
33
Accommodation
• Cont’d
– The Act respecting the Protection of
Personal Information in the Private Sector
provides for exceptions:
o “20. In the carrying on of an enterprise,
authorized employees, mandataries or agents
or any party to a contract for work or services
may have access to personal information
without the consent of the person concerned
only if the information is needed for the
performance of their duties or the carrying out of
their mandates or contracts.”
34
Accommodation
• Employers in Quebec are entitled to request
and obtain medical information, which
employees are compelled to give in the
context of the accommodation process.
• Part of management rights; not construed as
a violation of employee privacy rights, unless
clearly abusive;
• Medical certificates should be complete and
include a diagnosis and prognosis;
35
Accommodation
• Employees may be required to instruct a
treating physician to provide the employer with
any additional information concerning the
employee’s health condition
• Employees may be required to undergo an
independent medical examination, without
consent, to provide the employer with sufficient
information to:
– validate reason for and length of absence from work
– appreciate temporary or permanent physical or
psychological limitations upon returning to work
36
Accommodation
• Refusal to collaborate in this respect is
insubordination and could lead to imposition
of discipline
• Employees may also be required to undergo
an independent medical examination, without
consent, after a work-related accident has
occurred
37
Accommodation
• Medical personnel of the employer (e.g.,
health or nursing service, human resources
managers and relevant management as the
case may be) may access this information
without the employee’s consent if it is needed
in the performance of their duties
• These duties may include accommodating
the employee further; assessing the need to
modify workspace, work tasks, etc., for which
complete medical information is required
38
Discrimination Based on Ethnic and
National Origin
• Anticipated upcoming human rights
issues in Quebec
– Complaints of discrimination based on ethnic or
national origin due to application in Canada of
foreign standards, notably U.S. national security
regulations (i.e. U.S. Department of Justice,
Department of Homeland Security, Department of
Transportation or Defense rules that workers of
specifically identified national origins not be
employed or assigned to work on specific projects
by Canadian employers).
39
Discrimination Based on Ethnic and
National Origin
• Anticipated upcoming human rights
issues in Quebec (cont’d)
– Under these types of regulations, dual and third
country national employees of a foreign person are
restricted in employment when the product being
manufactured is defence-related and destined to
export to the U.S. Failure to comply could lead to
serious business consequences to the employer.
– There is currently no case law dealing with such a
specific complaint of discrimination in the context of
employment in Quebec
40
Discrimination Based on Ethnic and
National Origin
• Anticipated upcoming human rights
issues in Quebec (cont’d)
– But...the recent decision of the Human Rights
Tribunal in the Human Rights Commission v.
Bombardier inc., [2011] R.J.Q. 225 decision, is a
strong indication of how these may be considered.
– This particular decision was not based on an
employment agreement, but on the refusal to “make
a juridical act concerning services ordinarily offered
to the public” for discriminatory reasons.
41
Discrimination Based on Ethnic and
National Origin
• Factual Background
– Canadian pilot of Pakistani origin was refused flight
training on Challenger 604 planes by the
Bombardier Aerospace Training Centre (BATC) in
Quebec
– Pilot did not clear safety check of the United States
Federal Aviation Administration to obtain U.S. flight
licence, as required by the “Alien Flight Students
Program” administered by the U.S. Department of
Homeland Security
42
Discrimination Based on Ethnic and
National Origin
• Factual Background (cont’d)
– Pilot applied for same training under a Canadian
flight licence instead
– This licensing process is not subject to the same
type of national security regulations in Canada
– BATC still denied training under Canadian flight
licence on the basis that pilot was refused a U.S.
licence because he was likely a potential terrorist,
thus also a threat to Canadian national security and
aviation security in general
43
Discrimination Based on Ethnic and
National Origin
• Factual Background (cont’d)
– BATC argued its decision to discriminate was
justified, rational, and reasonable because of
Canadian national security concerns, and because
BATC is required to comply with U.S. regulations
failing which its American training certificate could
be revoked, causing economic and social harm to
its employees
44
Discrimination Based on Ethnic and
National Origin
• Decision of Human Rights Tribunal
– BATC’s decision to deny training was a violation of
the Charter of Human Rights and Freedoms and
constituted discrimination based on national or
ethnic origin
– This decision is not rational or reasonable, as the
application of U.S. standards where Canadian
standards are inexistent cannot be justified. BATC
took national security matters into its own hands,
and it was not its place to do so
45
Discrimination Based on Ethnic and
National Origin
• Decision of Human Rights Tribunal
(cont’d)
– BATC’s position that the revocation of its U.S.
training certificate would cause economic and
social harm to its employees is also unsustainable
in this case.
– Maintaining employment and the economic viability
of a business can be considered in analyzing what
is a “rational objective” or justification for a
measure; in this case, American laws on U.S.
national security find no application in Canada, and
a Canadian flight licence was at issue
46
Discrimination Based on Ethnic and
National Origin
• Decision of Human Rights Tribunal
(cont’d)
– The Complainant was notably awarded $25, 000 in
moral damages, $50, 000 in punitive damages, and
BATC was ordered not to consider U.S. security
standards in dealing with training requests under
Canadian licences
– Undeniably, this decision can have a serious impact
on employers in Quebec in the future, and will raise
legal issues concerning pre-employment
background checks
47
Mandatory Retirement
• Until recently, most provinces in
Canada defined "age discrimination"
as limited to between the ages of 18
and 65.
• This allowed employers (and unions)
to compel employees to retire at 65.
• Manitoba was an exception and never
permitted this.
48
Mandatory Retirement
• Other provinces have now joined
Manitoba in prohibiting mandatory
retirement, other than in exceptional
circumstances.
• Even where mandatory retirement is not
generally allowed, employers can still
force an employee out of his/her position
if factors related to age give the employer
bona fide and reasonable cause to end
employment or at least that particular role
49
Mandatory Retirement
• Example: Espey, a firefighter (District
Chief) in London, ON, who did not want to
retire at age 60, lost his human rights
complaint due to the increased cardiac
risk associated with age.
– Collective agreement required retirement at age 60
– Human rights trumps collective agreements
– Espey complained against both the employer and
the union
– He claimed that his cardiac condition was excellent
50
Mandatory Retirement
• The adjudicator ruled that the probabilities
should be determined by overall research,
rather than the individual condition of the
complainant
– There was still no individual testing method that
would allow a better risk assessment of on-the-job
events for firefighters more accurately than age,
given occupational-related risks
– Mandatory retirement was therefore necessary to
accomplish the employer's health and safety
purpose; to modify would cause undue hardship
51
Mandatory Retirement
• Example: case presently going to
adjudication in Manitoba regarding
firefighter mandatory retirement
– Platoon Chief forced to retire at age 65
– Commission claims he is not as involved in fire
suppression as a District Chief in London
– No provision in collective agreement
mandating retirement
– Both employer and union are respondents
52
Mandatory Retirement
• Cont’d
– Commission says forced retirement would
be wrong at any age
– Commission wants individual health
assessment to support complaint
– Employer and union have offered alternate
roles as accommodation, as long as fire
suppression is not part – complainant
rejects
53
Mandatory Retirement
• Example: Recent cases at Air
Canada for pilots regarding forced
retirement at age 60
– Safety risk, cost, and business efficiency
were the key considerations on undue
hardship in all cases
– Decisions have gone both ways, but latest
decision in July 2011 supported forced
retirement
54
Mandatory Retirement
• Cont’d
– Air Canada subject to international rule making it
mandatory for pilots age 60-65 to fly with another
pilot under age 60 – safety rationale
– Air Canada argued it could not schedule in
accordance with this international safety rule
unless it maintained mandatory retirement at 60
– Would otherwise incur significantly increased
operational costs, inefficiency in scheduling,
negative ramifications to pension plan
– Adjudicator (in 2011) agreed it would be an undue
hardship to incur these negative consequences
55
Mandatory Retirement
• Legislatures trying to address some of these
issues
• New amendments to Ontario's Fire Protection
and Prevention Act came into force June 1, 2011
• Allows mandatory retirement at age 60 for
Ontario's salaried firefighters who respond to
emergency calls
• Municipalities have two years to negotiate a
retirement provision at age 60 or collective
agreement will be deemed to include a provision
requiring retirement at age 60
56
Family Status
• The beginning
– Campbell River & North Island Transition
Society v. Health Sciences Assn. of British
Columbia (Howard Grievance) 2002
o …” I have found that the words "family
status" refers to the status of being a parent
per se, and not to the innumerable (and yet
important) circumstances that arise for all
families in regard to their daycare needs”
(emphasis added)
57
Family Status
• The beginning (cont’d)
o In other words, the Arbitrator rejected the
view that there is a prima facie
discrimination on the basis of family status
whenever there is a conflict between a
family obligation and a work requirement
58
Family Status
• The Appeal (British Columbia Court
of Appeal)
– “…a prima facie case of discrimination is made out
when a change in a term or condition of
employment imposed by an employer results in a
serious interference with a substantial parental or
other family duty or obligation of the employee. I
think that in the vast majority of situations in which
there is a conflict between a work requirement and
a family obligation it would be difficult to make out a
prima facie case”
59
Family Status
• Johnstone v. Canada (Attorney
General), 2007 FC 36, aff’d [2008] FCA
101; [2010] CHRT 20
– The Court rejects the suggestion set out in
Campbell River that prima facie discrimination will
arise only where the employer changes the
conditions of employment and states that such a
proposition is wrong in law
– Observes that, while family status can raise unique
problems in law, no obvious justification for
relegating this type of discrimination to a secondary
or less compelling status
60
Family Status
• Ontario
– Alliance Employees Union, Unit 15 v. Customs
and Immigration Union (Loranger Grievance)
(2011)
– The Arbitrator accepts that interference with
parental obligations can constitute
discrimination on the basis of family status if a
prima facie case of discrimination is made out
– There must be a “serious interference with a
substantial parental obligation.”
61
Family Status
• Ontario – Examination of the prima
facie test (Loranger continued)
– The Arbitrator rejected the Union’s position that
simply because it would cause no undue hardship to
the employer, it had a duty to grant the grievor’s
request:
o [57] “In my view, that analysis places the cart
before the horse and, as was noted in Johnstone,
conflates the BFOR test with whether there is a
prima facie case of discrimination. Absent a
substantial interference with his parental or
marital obligations, no duty arose, whether it be
easy, difficult or undue hardship”
62
Family Status
• Implications?
63
Damages
• Walsh v. Mobil Oil Canada, 2010
AHRC 9
– Facts
– Principles
– Implications
64
Damages
• Hay River & Social Services
Authority v. PSAC (Dalton
Grievance) [2010] ABAA No. 4
– Facts
– Principles
– Implications
65
Family Status – Union Environment
• Jurisdiction – HR Complaints in a
Unionized Work Place
– Halfyard v. City of Calgary, 2011 AHRC 5
– Calgary (City) v. Alberta (Human Rights
and Citizenship Commission) 2011 ABCA
65
– AUPE v. Alberta (Graham Grievance)
[2010] AGAA No. 10
• Tips and takeaways
66
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