Human Rights Compliance

1. PRESENTER: CHUCK TAHIRALI
Human Rights Compliance
New System, New Challenges and New Opportunities

2. “Old” Versus “New”
Comparing human rights regimes in Ontario
• Inquiries steady…and overwhelming the system?
• Complaints to Ontario Human Rights Commission down 100%
• More applications to Tribunal and decisions from Tribunal in a
month under new system than in a year under old.

3. • Section 34 dismissals are a thing of the past.
• Limited opportunity for early dismissal under new system.
• No costs awarded for bringing frivolous application.
• But is Tribunal taking the mechanisms that exist more seriously?
What About The Trivial
And Frivolous?

4. Summary hearings
• Introduced 10 months ago
• Party may ask or Tribunal may proceed on its own motion
• Apply for Summary Hearing to argue that an Application should be
dismissed, either in whole or in part, because there is “no
reasonable prospect” that all or part of it will succeed
• Procedure – teleconference but no Skype
• No news is bad news if you are the Party who applied for summary
hearing
• Early case law – keeping all options open
Procedural Issues

5. Deferrals
• Request Tribunal to defer pending outcome of another
proceeding, e.g., WSIA, ESA, civil matter, grievance arbitration
• Key cases re: WSIA deferrals
• How are employers faring?
Procedural Issues

6. Delay
• Time for filing application doubled from 6 to 12 months
• Is the Tribunal taking a stricter approach to late filing?
• Early standards – ignorance of the law no excuse
• Employers faring well in getting applications dismissed for delay
Procedural Issues

7. Accommodation is a two-part process
• What are the “procedural” and “substantive” components?
• Key cases
• How to use the procedural and substantive requirements to your
advantage
Duty to Accommodate

8. Accommodation is a two-way street
• Employees have to do their part, too
• A “collaborative” process
• What are the employee’s duties and obligations?
• Key cases illustrate the approach you should be taking to
accommodation
Duty to Accommodate

9. • Employee wrongly insists leave of absence only appropriate
accommodation
• Teacher anxious over performance appraisal; School reacts
appropriately
• Does doctor’s note justify transfer to less stressful job?
• Changing shifts – the right way to avoid family status issues
• Accommodation doesn’t always result in job; severance may be
appropriate
Accommodation Case Law

10. • Orillia Soldiers Memorial Hospital – not just for unionized
employers anymore
o Important principles arising from arbitral jurisprudence
“crossing over” to non-union human rights jurisprudence
• Tribunal applies OSMH to duty to accommodate creed (religious
needs)
o Key case defines employer obligations
o Providing paid time off for religious observances not required
Duty to Accommodate

11. • Employees, clients and contractors in a hot tub away from the
office, after hours…and in another country
o In sorting out jurisdiction, Tribunal clarifies and confirms
important principles that may affect your harassment policies
• “Pockets of lost time” discovered months after hot tub retreat
o What is alleged to have happened during missing time?
o Issues of credibility
Harassment:
“Hot Tub Time Machine”

12. • Tribunal rules in favour of employer on the merits; disbelieves
drugging, hot tub assault story.
• Despite unbelievable complaint, Employer found to have violated
Code in manner of responding to strange story.
o Duty to investigate – what are the considerations?
o Why a robust investigation procedure is essential
o Remedies, including non-monetary remedies, for failure to
investigate
Harassment:
“Hot Tub Time Machine”

13. • In deciding whether the duty to accommodate has been fulfilled,
the conduct of the complainant will be considered.
• Employee has an obligation to inform the employer of the need
for accommodation.
• Employee has duty to facilitate search for accommodation.
A Collaborative Process

14. • Employee has obligation to provide medical updates.
• Employee must provide sufficient information to allow Employer
to understand how disability, for example, affects ability to
perform duties of job.
A Collaborative Process

15. • When Employer forwards reasonable proposal, Employee has
duty to facilitate proposal.
• If failure to take reasonable steps on the part of the Employee
causes the proposal to founder, any subsequent complaint will be
dismissed.
A Collaborative Process

16. • Employee has obligation to accept reasonable accommodation;
Employee cannot expect a perfect solution or the one most
desired by Employee (not entitled to “cherry pick”).
• If a proposal that would be reasonable in the circumstances is
turned down, the Employer's duty is discharged.
A Collaborative Process

17. • 11 years after 2000 Court of Appeal decision in Entrop, we’re back
where we started from
• How labour arbitrators are ruining it for everybody – the
“Canadian Model”
• Chronology of events and key cases
• How random alcohol testing fell through the cracks – and why it
may be coming back
“Party like it’s 1999”

18. • Is the “Canadian Model” unassailable?
• “Dangerous is dangerous” – 2010 Court decision in Irving Pulp &
Paper
• Recreational drug use – a tale of two provinces and two cases
o Will non-union case law drift away from arbitral (union)
jurisprudence?
o Recreational drug use cases open the door for pre-
employment testing…?
“Party like it’s 1999”

19. PRESENTER: PETER CICAK
Constructive Dismissal

20. 1. What is constructive dismissal and how does it work?
2. New developments in the doctrine of constructive dismissal
3. How to protect against a potential constructive dismissal
claim
Constructive Dismissal

21. What is it?
• When the employer is responsible for a substantial change
to a fundamental term of employment
• The employee can accept the change and continue working,
or can reject the change and treat their employment as
being at an end (and seek termination/severance pay)
• Employee may be constructively dismissed irrespective of
the employer’s intention to terminate employment
Constructive Dismissal

22. Can be triggered by
• Compensation changes: Pay, bonuses, benefits,
commission structure
• Position change: Title, prestige, duties, reporting status,
demotion,
• Changes in workplace conditions: Location, hours of work,
harassment/poisoned work environment
• Seemingly general business practices: Lay-off, suspensions,
discipline in general
Constructive Dismissal

23. Timing and employee options
• If the employee does not communicate its rejection of
changes within a “reasonable time”, it may be seen to have
accepted the new terms of employment
• Changes need not be rejected right away, as employees
may “try out” the new terms and attempt to work under new
conditions before rejecting them
• The employee may choose to stay in the workplace under
the new terms and sue for the difference
Constructive Dismissal

24. New Developments: Mitigation
Evans v. Teamsters Local Union No. 31,SCC
• An employee who has been dismissed may have to accept
an offer to return to work for their former employer
• Must do so as a way to mitigate any damages suffered.
• Employee may not have to return if changes or conduct of
employer result in significant humiliation for the returning
employee
Constructive Dismissal

25. New Developments: Employer Acquiescence
Wronko v. Western Inventory Service Ltd. OCA
• When an employer announces that changes will occur at
some future date, the employee may stay on and insist on
working under the original terms of employment
• The employer may then terminate the employee with
appropriate notice and offer to rehire them on the new
terms of employment
Constructive Dismissal

26. New Developments: Employer Acquiescence
Wronko v. Western Inventory Service Ltd. OCA
• Failure to do so may result in an employer being found as
acquiescing to the employee’s demand to work under the
original terms of employment
• Result: If the employer later puts into action its proposed
changes and the employee resigns and launches a lawsuit
for constructive dismissal, the “notice clock” starts running
when the change occurred, not when the original notice of
the change was given (i.e. it will cost more)
Constructive Dismissal

27. New Developments: Economic climate
• Court considerations tend to shift between favouring
employers and employees, as the business cycle grinds
forward
• In poor economic times, increased recognition by courts of
the economic struggles facing employers
• Currently, expect more leeway for employers requiring
flexibility in troubled economic times
Constructive Dismissal

28. New Developments: Bill 168
• Requires employers to create procedures for dealing with
harassment in the workplace
• Bill 168 may make it easier for employees to prove the
existence of a “poisoned work environment” and thus that a
constructive dismissal occurred, if harassment
procedures/policies are not created or followed
Constructive Dismissal

29. Constructive Dismissal
Protecting against a potential constructive dismissal claim
• Create written contractual terms to allow for changes that
may occur down the road (upon hire or with new contracts)
• Give reasonable notice of new changes (Terminate/offer
rehire on new terms if employee insists on original terms)
• If employee resigns, invite them back to work to mitigate
their damages
• Document past practice of similar changes being accepted
by employee