Plenary Session 8: Women,
Work and Health
The Honourable Madam Justice Hennessy
Superior Court of Justice of Ontario, Canada
Linking Work and Health Through the Law
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Equal treatment – Human Rights
Safety in the work place
Minimum wage
Income replacement
Pregnancy and parental leave
Pension
Why do we work?
The Court recognizes the primary place of work in our lives.
“Work is one of the most fundamental aspects in a person’s
life, providing the individual with a means of financial support
and, as importantly, a contributory role in
society. A person’s employment is an
essential component of his or her sense
of identity, self-worth and emotional
well-being.”
Dickson C.J., Reference Re Public Service Employee Relations Act (Alta.),
[1987] 1 S.C.R. 313, at p. 368.
Canadian Context - Paid Workforce
• The work force has greatly changed in Canada in the
last 40 years. In 1976, women comprised 37.1% of
employed Canadians. In 2009, they comprised 47.9%.
• Certain groups of women in Canada are more vulnerable
than others
• The female Aboriginal unemployment rate in 2009, 12.7% was
nearly twice that of non-Aboriginal women, 6.9%
Vincent Ferrao, Women in Canada: A Gender-based Statistical Report
(Paid work) (Ottawa: Minister of Industry, 2010).
Unpaid work
The hours in a day of paid and unpaid work
completed by men and women in Canada
5
4.5
4
3.5
3
Paid work
2.5
Unpaid work
2
1.5
1
0.5
0
Men
Women
Canadians living in poverty
40
% living in poverty (2000)
35
30
25
20
15
10
5
0
All people All women Aboriginal
living in
women
Canada
Visible
miority
women
Women
Single
with
parent
disabilities mothers
www.canadianwomen.org: The facts about women and poverty
Single
senior
women
Recognition of the value of
unpaid work
• Statutes in the family law context:
• Division of property
• Spousal support
• Compensation for unpaid work
in tort law
Family Law: Division of Property
Recognition of Unpaid Work
It must be recognized that when [women work
exclusively in the home], women forgo outside
employment to provide domestic services and child
care. The granting of relief in the form of a personal
judgment or a property interest to the provider of
domestic services should adequately reflect the fact
that the income earning capacity and the ability to
acquire assets by one party has been enhanced by
the unpaid domestic services of the other.
Peter v. Beblow, [1993] 1 S.C.R. 980, at p. 1015.
Family Law: Division of Property
Recognition of Unpaid Work
For many domestic relationships, the couple’s venture
may only sensibly be viewed as a joint one, making it
highly artificial in theory and extremely difficult in
practice to do a detailed accounting of the
contributions made and benefits received on a fee-for
services basis. … [T]he legal consequences of the
breakdown of a domestic relationship should reflect
realistically the way people live their lives. It should not
impose on them the need to engage in an artificial balance
sheet approach which does not reflect the true nature of
their relationship.
Kerr v. Baranow, 2011 SCC 10, at para. 69.
Family Law: Spousal Support
Recognition of Contribution of Unpaid Work
Factors to determine the amount and duration of spousal
support include:
• a contribution to the realization of the respondent’s
career potential;
• any housekeeping, child care or other domestic
service performed for the family, as if the spouse
were devoting the time spent in performing that
service in remunerative employment and were
contributing the earnings to the family’s support,
• the effect on the spouse’s earnings and career
development of the responsibility of caring for a child
Family Law Act, R.S.O. 1990, c. F.3, s. 33(9).
Compensation in Tort Law
Recognition of Unpaid Work
[H]ousekeeping and other spousal services have
economic value for which a claim by an injured
party will lie even where those services are
replaced gratuitously from within the family.
Kroeker v. Jansen , [1995] B.C.J. No. 724, at para. 9.
Work Place Protections
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Discrimination
Vulnerable workers
Safe workplaces
Domestic violence
Harassment
Pregnancy and parental leaves
Sex workers
Human rights Law Provides for
Equal Treatment
• Every person has a right to equal treatment
with respect to employment without
discrimination because of race, ancestry,
place of origin, colour, ethnic origin, citizenship,
creed, sex, sexual orientation, age, record of
offences, marital status, family status or
disability.
Human Rights Code, R.S.O. 1990, c, H.19, s. 5(1).
Equal pay for equal work
No employer shall pay an employee of one sex at
a rate of pay less than the rate paid to an
employee of the other sex when,
a) they perform substantially the same kind of
work in the same establishment;
b) their performance requires substantially the
same skill, effort and responsibility; and
c) their work is performed under similar working
conditions.
Employment Standards Act, 2000, S.O. 2000, c. 41, s. 42.
Minimum age protects
vulnerable workers
• Must be 14 years old to work
• A young person between the ages of 14
and 17 inclusively cannot work during
school hours
• Certain trades and sectors can only hire
adolescents older than 14
(ex. Construction: 16 years;
Underground Mines: 18 years)
Industrial Establishments, R.R.O 1990, Reg. 851, s. 4(1).
Occupational Health and Safety
Provincial laws impose general duties on
employers, such as:
• Take all reasonable precautions to
protect the health and safety of workers
• Ensure that equipment, materials and
protective equipment are maintained in
good condition
• Provide information, instruction and
supervision to protect worker health
and safety
Occupational Health and Safety Act, R.S.O. 1990, c. O.1.
Employer’s duty regarding
domestic violence
Where and employer knows or
ought reasonably to know that
domestic violence will likely expose
a worker to injury in the workplace,
the employer has a duty to take
reasonable precautions for the
protection of the worker.
Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 32.0.4.
Assented December 2009.
Harassment free workplace
Every employee has a right to freedom from
harassment in the workplace because of sex,
marital status, family status, etc.
Human Rights Code, R.S.O. 1990, c, H.19, ss. 5(2), 7(2).
Income replacement during
pregnancy & parental leave
• Pregnancy leave:
• 15 weeks of limited income replacement
• Parental leave:
• 35 weeks of limited income replacement
which can be taken by either parent or
shared by both parent
Employment Insurance Act, S.C. 1996, c. 23, ss.22, 23.
Parental leave
The parent has a right to
• Reinstatement
• Continuation of benefit plans
• Continuation of seniority
Protection for sex workers
• The Criminal Code prohibition
against bawdy houses and
living off the avails of prostitution
increases the risk of physical
harm to sex workers.
• “[T]he law cannot operate in a manner to increase a risk
of harm. The law is supposed to protect us, and protect
our vulnerabilities.”
(Professor Alan Young, Lead counsel for the three sex workers)
Canada (Attorney General) v. Bedford, 2012 ONCA 186.
Protection for sex workers
“Any measure that denies an already
vulnerable person the opportunity to protect
herself from serious physical violence,
including assault, rape and murder, involves
a grave infringement of that individual’s
security of the person.”
Canada (Attorney General) v. Bedford, 2012 ONCA 186, at para. 360.
Protection for sex workers
The Court of Appeal gave Parliament one year
to amend the Criminal Code for it to comply
with the Charter of Rights and Freedoms.
Income replacement
Federal income replacement system is
available when a worker is:
• Temporarily unemployed
• Temporarily disabled
• On pregnancy or parental leave
• Temporarily caring for a family member
who is gravely ill
Canada Pension Plan
• Based on contributions made during time
in paid workforce.
• Can be split between spouses where one
spouse was not in paid workforce.
Canada Pension Plan, R.S.C. 1985, c. C-8, s. 55.1.
Church House Conference Centre
London