A key element of effective workforce management and organizational success is to address employee performance issues in a timely manner.  This can be achieved through the proper use of Performance Improvement Plans (“PIPs”).  PIPs are often misunderstood with costly consequences for employers.   A common misunderstanding, both for employers and employees, is to consider a PIP as a precursor to termination for cause.  Understood this way, employees experience great stress and anxiety, sometimes resulting in extended sick leaves.

The employer’s message should clearly convey that the PIP is intended to assist the employee in improving identified performance issues and encouraging the employee’s growth. If the employer is not going to implement a PIP in good faith, a better option is to consider a termination without cause.

A PIP is not a cover-up for termination or disciplinary action. It is also not just another performance review.  As shown below, misusing PIPs can have serious and costly consequences.

Risks of misusing PIPS

Risk of Moral Damages Claims

In Piresferreira v. Ayotte, 2010 ONCA 384, misuse of PIPs resulted in the award of an additional $45,000 against the employer, Bell Mobility, for mental suffering of the employee. This employee’s supervisor, known for his aggressive behaviour, became verbally abusive towards her, and then pushed and shoved her when she did not perform as he wanted. He then strategically timed the delivery of a PIP to thwart any potential complaints against him. Further, even after Bell Mobility became aware of the manager’s conduct, it failed to take appropriate action.

A PIP must be implemented in good faith and fairly. As this case illustrates, implementing a PIP in bad faith can lead to moral damages against the employer.

Risk of Human Rights Claims

An employee in Ontario filed an application against her former employer with the Human Rights Tribunal Ontario. She claimed she was discriminated against based on sex, age, marital status, race, place of origin, and disability, and faced reprisal, which goes against the Human Rights Code.

The conflict started in June 2018 when one manager wanted to terminate her, while another manager and the Human Resources representative disagreed and offered her a PIP instead.

During the hearing, the employee argued that the PIP was created to cover up racial discrimination within the company and was a setup for her dismissal. An email from one of her managers seemed to support this claim.

Although the employee’s human rights claim was not successful, the process had a negative impact on the company’s public image and cost the employer time and resources to prove that the PIP was not just an excuse for termination or a way to cover up discrimination.

Risk of Occupational Health and Safety Claims

In British Columbia, a flight attendant filed for compensation for a mental disorder allegedly caused by traumatic or work-related stressors. He listed various factors that contributed to his distress, one of which was being placed on a PIP. This case was reviewed by BC’s Workers’ Compensation Appeal Tribunal (“WCAT”).

Although ultimately unsuccessful because the flight attendant failed to prove that he developed a compensable mental disorder, this case serves as another cautionary tale for employers to properly implement PIPs. WCAT stated that all workers experience “normal pressures and tensions” in the workplace related to their duties and interpersonal relations. However, if an employee can show that the pressure they faced exceeded normal levels, it could potentially change the outcome of their claim.

Proof that an employee faced excessive pressure resulting in a compensable mental disorder might point to a breach of the employer’s duty to ensure a safe work environment. That employee might also have grounds for a successful compensation claim.

Understanding PIPS

A PIP is intended to guide and support employees in enhancing their performance, bridging any gaps through collaboration and mutual respect. It focuses on empowering individuals for increased productivity and morale in the workplace, rather than serving as a punitive measure or a pretext for termination. Here are key points to remember:

• Not a Cover-up for Termination: PIPs aim to support and guide, not punish or create grounds for dismissal.
• Not Punishment or Discipline: Employers can create a positive and supportive work environment conducive to growth and improvement by reframing PIPs as constructive tools for development rather than disciplinary measures.
• Not Just Another Performance Review: Instead of treating PIPs as one-way communication or a regular review of an employee’s performance, employers should view them as opportunities for meaningful engagement and problem-solving.

Tips on Implementing PIPs

A PIP serves as a strategic framework designed to enhance employee performance through detailed requirements and constructive dialogue. When implementing a PIP, employers should consider:

• Setting specific requirements: Detail areas that need improvement, establish achievable and measurable goals, outline available support, and set a clear timeline.
• Harnessing the power of feedback: Facilitate a two-way conversation, schedule regular check-ins for progress assessment, and foster continuous learning through the exchange of feedback.
• Responding properly to employee dissents: Keep open channels for employees to express their concerns in writing, address their feedback constructively, and adjust the PIP based on employee perspectives when necessary.
• Carefully managing termination: Ultimately, even the best-faith efforts to assist an employee in improving their performance may fail. If that is the case, termination may become an option. While PIPs may precede termination, employers should consider it a last resort and proceed with caution and fairness, ensuring the process is perceived as transparent and just.

It is crucial for employers to ensure that PIPs are implemented with genuine intent to assist employee development, not as a pretext for termination. Such an approach not only helps in avoiding legal repercussions but also contributes to a positive and productive work environment.

Employees are entitled to a workplace free from discrimination and harassment, and employers have a duty to accommodate. In Ontario, specific legislation is in place to protect employees and guide employers on adequately managing their business. Failure to comply with the existing legislation could be costly.

Understanding Human Rights Legislation in Ontario.

Ontario employers are governed by Ontario’s Human Rights Code (“Code”), which prohibits discrimination based on protected grounds in specific social areas, including employment. The other social areas are housing, services, unions and vocational associations and contracts. There are 17 protected grounds:  citizenship, race, place of origin, ethnic origin, colour, ancestry, disability, age, creed, sex/pregnancy, family status, marital status, sexual orientation, gender identity, gender expression, and record of offences. Employers must familiarize themselves with these protected grounds to prevent breaches of their employees’ human rights.

Accommodation: A Central Obligation

The Code imposes a crucial responsibility on employers: the duty to accommodate. This mandate compels employers to make reasonable adjustments or arrangements, up to the point of undue hardship, to meet employees’ needs arising from protected grounds. For example, if an employee has a disability and requests accommodation, employers have an obligation to provide suitable accommodations, such as modifying workstations, providing additional break time, or altering work arrangements.

While employers have a duty to accommodate, employees must also play their role in the accommodation process. Firstly, employees should inform their employer of their need for accommodation. This proactive step ensures that the employer is aware of the need for accommodation and can take appropriate action. When an employee’s need for accommodation is evident, the employer should also proactively inquire whether accommodation is required and act accordingly.

Secondly, employees are expected to work collaboratively with the employer and act reasonably to come to an accommodation arrangement. This means engaging in a constructive dialogue with the employer, providing relevant information about their needs, and being open to discussing potential solutions. Collaboration between both parties is essential to finding accommodation solutions that respect the employee’s human rights while also considering the practical constraints of the workplace. Acting reasonably and in good faith during this process is an obligation and a critical factor in reaching a successful accommodation arrangement that benefits both the employee and the employer.

Undue hardship is a high bar to meet, as some degree of hardship is acceptable. The Code prescribes only three considerations when assessing whether an accommodation would cause undue hardship: cost, outside funding sources (if any), and health and safety requirements (if any). No other considerations can be appropriately considered.

The Cost of Non-Compliance

Employers who fail to meet their obligations regarding human rights and accommodation can face severe consequences, including:

Legal Costs: Employees who believe their human rights have been violated can file complaints with the Human Rights Tribunal of Ontario or a court. If a complaint is substantiated, the employer may be ordered to compensate the affected employee. Defending against human rights complaints and legal actions can be costly, including legal fees, settlements, and potential fines. For example, in Giang v. DBG Canada Limited, 2021 HRTO 97, the Human Rights Tribunal of Ontario found the employer discriminated against the employee, as the employer failed to accommodate the employee’s disability (a heart condition that required an implantable defibrillator) and terminated his employment when he refused to work in areas with high voltage machinery that, in the employee’s opinion, could interfere with his device. As a result, the employer had to pay the employee $20,000 as monetary compensation for injury to her dignity, feelings, and self-respect in addition to the loss of income, $39,697.12, the employee claimed for over a year.

Reputation Damage: News of a human rights violation can tarnish an employer’s reputation, making it challenging to attract top talent and maintain a positive public image.

Productivity Loss: Workplace conflicts resulting from human rights violations can decrease productivity, as employees may feel demoralized and disengaged.

Common Pitfalls

(1) The Code goes beyond the ESA:

Employers must understand the nuanced interaction between the Code and Ontario’s Employment Standards Act, 2000 (“ESA”). While the ESA sets minimum employment standards, compliance with these minimum standards does not guarantee Code compliance. A prime example is sick leave entitlements. While the ESA prescribes a minimum of three sick days, the Code extends additional safeguards.

The Code obliges employers to accommodate employees with health issues to the point of undue hardship. This means that employees requiring more than the mandated three sick days due to a disability or health condition should likely be granted additional sick leave as a reasonable accommodation. Neglecting this responsibility can constitute discrimination based on disability, violating the Code.

Employers must be prepared to exceed the ESA’s minimum requirements when accommodating employees. Employers must remain vigilant regarding their obligations under the ESA and the Code to foster a fair and inclusive work environment.

(2) Apparent Neutral Standards with Discriminatory Effects:

Employers often establish seemingly impartial standards or policies without any intent to discriminate. However, these standards can unintentionally produce adverse discriminatory effects. For example, instituting a physical requirement for a job without considering actual job duties may disproportionately affect individuals with protected grounds. This unintended impact can still be viewed as discriminatory and potentially lead to legal challenges under the Code.

In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3, the employer fired a female firefighter due to her failure to pass the minimum physical fitness standards. However, the Supreme Court found that even though the minimum physical fitness standards were established in good faith without intent to discriminate, the employer failed to prove (i) that the standards were no more than necessary and (ii) that the employee who failed the test would pose a severe safety risk to herself, her colleagues, or the general public. As such, the termination was ruled discriminatory, and the employee was reinstated. Another similar scenario is when an employer uses sales performance to rank their salespersons and treats them differently according to their ranking (e.g., termination, etc.), which may put salespersons who could not perform their jobs full-time due to protected grounds at a disadvantage. This might be considered discriminatory as well.

(3) Failure to Diligently Handle Employees with Protected Grounds:

Even without discriminatory intentions, employers mishandling situations that involve employees with protected grounds, especially during terminations, can invite litigation. Discriminatory termination poses significant repercussions for employers, extending beyond human rights violation damages.  If a termination is found to be discriminatory, the Human Rights Tribunal of Ontario or a court could order that the employer not only reinstate the employee to their previous position, but also damages to compensate the employee for loss of wages and other benefits from the date of termination to the date of reinstatement, in addition to general damages. This financial burden can be substantial, particularly if the reinstatement is delayed. For example, in Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421, the Ontario Court of Appeal upheld a decision where the employer was ordered to reinstate the employee, provide back pay from June 26, 2003 to the date of reinstatement (about ten years of pay, and likely an amount over $400,000, less any income and non-repayable benefits she received), in addition to $30,000 damages as compensation for the injury to her dignity, feelings, and self-respect and other remedies.

Employers must recognize that the cost of discriminatory termination may encompass damages for human rights violations, loss of wages, and the potential for reinstatement and back pay. Hence, it is imperative to ensure that termination decisions comply with the law, avoiding discrimination based on protected grounds.

Terminating a disabled employee without adequately documented performance issues, especially if the process appears rushed or unfair, may also raise suspicions of discrimination. For example, in Luckman v. Bell Canada, 2022 CHRT 18, the tribunal found that Bell discriminated against the employee by terminating him. As a result, Bell was ordered to pay more than $120,000 in damages to the employee.

(4) Failure to address Workplace Sexual Harassment adequately:

As a form of discrimination related to gender, the Code prohibits sexual harassment in employment. Workplace sexual harassment is not just a dispute between employees. Employers have a duty to provide a safe and healthy workplace for employees and conduct workplace investigations under certain circumstances. Under certain circumstances, employers could even be jointly liable for their employees’ workplace harassment.

Disregarding workplace sexual harassment can have severe consequences. It poisons the work environment, resulting in costly workplace investigations, litigation, and reputational damage. Employers should implement robust anti-harassment, including sexual harassment, policies, provide regular training, and promptly investigate and address complaints. Ignoring or downplaying such issues can tarnish a corporate reputation and cause significant financial consequences. For example, in Escobar v. WCL Capital Group Inc., the Human Rights Tribunal of Ontario found that the CEO/President of the employer sexually harassed the applicant, an employee, in breach of her human rights. As the CEO/President of the employer was the directing mind of the employer, the employer was also liable. The tribunal ordered the CEO and the employer jointly and severally to pay the employee $50,000 as monetary compensation for injury to dignity, feelings and self-respect.

Conclusion

In Ontario’s complex employment landscape, understanding and navigating human rights and accommodation are imperative for employers. By upholding these principles and avoiding common pitfalls, employers can create inclusive workplaces that respect employees’ rights and dignity while safeguarding their interests and reputation.

Most employers will, at some point during the lifetime of their business, have to deal with a workplace incident that results in a harassment or discrimination complaint. Although you can always hope no such incidents occur, you should be prepared to deal with them if they do. In some instances, this may require a workplace investigation.

The challenge for many employers is that it can be hard to know where to start.

Creating a solid foundation

A crucial first step for dealing with workplace harassment, which includes sexual harassment and violence, is to develop, post, regularly update, and reinforce anti-harassment policies that comply with Ontario’s Occupational Health and Safety Act (“OHSA”). The OHSA requires employers to develop written workplace violence and harassment policies, and then review and update them yearly. Every workplace harassment policy should feature the following:

• Clearly articulated definitions of discrimination and harassment that align with the Code and OHSA;
• Measures and procedures that enable employees to make complaints without fear of reprisal;
• A procedure for how the employer will address and investigate incidents and complaints of workplace harassment and discrimination.

Regarding discriminatory harassment and discrimination, Ontario’s  Human Rights Code (“Code”) recommends discrimination and harassment policies, which cover discrimination or harassment that occurs in the workplace, based on any of the prohibited grounds, such as Age, Gender, Race, Colour, Ancestry, Creed (religion), Ethnic Origin, Citizenship, Sex  (including pregnancy, gender identity), Sexual Orientation, marital Status, Disability, Receipt of Public Assistance or Family Status. Developing workplace harassment policies, including Code-based discrimination or harassment, ensures you satisfy your statutory obligations pursuant to the OHSA and Code.

If you do not already have workplace harassment policies in place, you have contravened the OHSA, and should immediately rectify the breach. Contacting an experienced employment lawyer can begin this process.

Before commencing a costly investigation, consider mediation

Mediation can be a cost effective and efficient method to resolve a dispute in instances where the allegations are not serious and do not trigger an obligation to investigate. For example, in a situation where there is a workplace conflict, but harassment that meets the OHSA definition has not been alleged. There are numerous benefits to mediation, such as:

• Early mediation can prevent workplace conflicts from escalating into more serious instances of workplace harassment or discrimination;
• Mediation is less costly and more time efficient than a workplace investigation;
• Mediation is less disruptive to the workplace; and
• Mediation can lead to reconciliation between the parties and a mutually agreeable outcome.

The Investigator

If mediation is not an option, your first step is to consider what kind of investigation is appropriate for the situation. Investigations are costly if you need to hire an external investigator, and not every situation warrants it.  However, if you err and conduct an internal investigation with inexperienced staff, or staff that may have or be perceived to have a bias, there could also be costly consequences. If the situation involves senior management, or there are complex allegations, you should find an experienced external workplace investigator. Where you might also need a legal opinion along with the investigation and findings, you should seek out a lawyer with investigation experience.

Whether you choose to an internal or external investigator, bear in mind that the ideal investigator is familiar with OHSA, as well as the Code where discrimination is also alleged, and should also be familiar with workplace law and the employer’s policies and practices.

Dealing with the results of an investigation

The investigator will provide you with a report on the findings and recommendations of the investigation. In some instances, you may ask the investigator for a legal opinion to accompany the report. If you do, you must hire a lawyer with workplace investigation experience.

Depending on the results of the investigation, you may be required to take action. For example, if the investigator concludes that harassment or discrimination did, in fact, occur, you could be required to take disciplinary measures against the respondent, up to and including termination for cause in serious situations.

Commuting is one of the key parts of an employee’s workday. Deciding how they get to and from work, and how much time this will take, is on every employee’s mind. As COVID-19 has changed the way we live and work, the question about commuting has become even more prevalent.  Indeed the blogTO headline of “total chaos at Eglington Station ” reflects a worse case scenario, making commuting a top of mind issue.

For those required to be physically at work, some have their own vehicle or are close enough to work that they do not need to use public transportation. However, many others are not so lucky, and exclusively depend on public transportation to commute. Getting on public transit increases the risk of contracting and spreading COVID-19, because of the exposure to others, due to the difficulties of social distancing on a bus or a train. A common question at this time from employees is whether the Employer can force them to commute using public transit, and if the Employer does attempt to do so, could this be a human rights violation?

 

Determining liability

Employers can require their employees return to work in order to keep the business going. However, requiring an employee to commute to work could expose employers to a human rights claim. If an employee objects, employers would be wise to take the context surrounding the workplace and the factors affecting the employee into consideration. For example, is the employee part of an at-risk group for COVID-19? If the employee is elderly, has a medical condition, or has been directed to stay at home to self-quarantine, the employee may need to be accommodated. Part of the employer’s requirement to accommodate could be how they address the commute of the employee.

In a recent labour arbitration case between the Toronto District School Board and its Union, the TDSB took the position that they were not obligated to accommodate the employee’s commuting time. In this case, the TDSB was not found to have discriminated against the employee but the Arbitrator did give serious thought to the adverse impact on an employee if the employee’s requested adjustments to their commute are not accommodated.

Because the current pandemic situation is unprecedented, any decision that is made by our courts or tribunals will set the tone for future decisions.   Is it sufficient for the employer to state that public transportation has taken social distancing seriously, and implemented safety measures?  Is the length of the commute a factor to be considered?  Is there a difference between subway or bus transportation? An argument could successfully be made either way, so context matters.

 

Accommodating employee commutes

Accommodation is an individualized exercise that must be examined in context. The nature of the work in question and the work environment are essential contextual factors, as is factoring in the individual employee’s situation.

There can be several options available to the employer and the employee to accommodate the commute. If the employer can stagger their usual work schedules and have the Employee go to work at times when commuting traffic is low, this could be one form of accommodation while requiring the employee to commute since the exposure risk is then  lower. Other more costly forms of accommodation include the Employer subsidizing taxi or car rental costs. The Employee is still required to commute and physically come to work, but they are no longer exposed to the higher-risk commute on public transportation.

The Ontario Government continues to make strides to make public transportation safe for those who need to take it. In a recent news release, the Ontario Government announced measures to keep employees safe as more and more businesses are opening up.  Employers can look to these safety measures if accommodation is requested and judge what additional accommodations might be needed, given the particular circumstances of the employee.

Toronto and the TTC, following the likes of the municipalities of Mississauga, Brampton, and Ottawa, are implementing mandatory facemasks on public transportation. Where mandatory measures such as these are implemented and enforced, the contextual factors relevant to an Employee’s accommodation for their commute will be affected. The safety measures on public transit change the calculus, and some employees will not incur the same risk even if they do need to commute to work via train, subway, or bus.

Accommodation is dependent on the circumstances of the employee requiring accommodation and circumstances of the employer and the workplace. Some employees are at higher risk concerning COVID-19, and may require more accommodation than others.

If you have questions about how to navigate the changing employment laws during COVID-19, Hum Law can advise how to manage your employee contracts while protecting both employers and employees. Contact us today.  To reach us by phone call (416)214-2329.

March 30, 2017
Author: Lai-King Hum

Corporate culture is a critical part of success. Create a toxic culture and you will pay a price. This is one of the lessons for the recent human resource disasters at TD Bank and Uber. Each reflects the danger for companies, large and small, when they allow, even sometimes encourage, a dysfunctional workplace culture.  Beyond compliance with human rights and health and safety laws, companies need to encourage the development of respect for ethics, diversity and civility. Doing so may increase profits and avoid the cost of repairing a human resource process gone rogue. Company culture works best when policies and procedures are thoughtfully created and consistently supported.

The day after CBC reported that three TD Bank employees claimed frontline staff faced “incredible pressure” to act unethically, investors punished TD, and the bank lost 5.5 percent overnight. That is over 7 Billion dollars in value!  Analysts see the stock as heading on a downward trend as a result of this, despite having just reported an increase in net revenue of over 13%. Tellers admitted lying and fraudulently increasing credit limits because of the pressures to meet their sales quota.

For the bank and its competitors, this will involve their regulator looking at the allegations of fraud and to what extent they are liable. Clearly, it creates a nightmare scenario for the human resources department.  There are thousands of front line employees who may seek dramatic improvement. Going forward, hiring may be more difficult.  Now perceived as a poor employer, new hires may demand higher compensation. Any yet to be seen is what impact this will have on consumers.  Doubtless some customers will avoid the TD Bank.

Lyft’s response to Uber is an important example of how a competitor might leverage the TD Bank’s problem and what might transpire.  Lyft’s response to Uber’s raising rates during a taxi strike was to make a 1 million dollar donation to the ACLU, announced through a blog post entitled Defending our Values.  The #DeleteUber  campaign cost Uber 200,000 users and doubtless lifted Lyft’s fortunes greatly.  Of course, Uber has become the poster company for poor culture motivated by greed, rather than acting on principled and core values.

Uber created a uniquely dysfunctional culture based on their 14 core values. What happens when this culture meets social media? Well the initial response to a former employee accusing the company of a misogynist workplace has been another backlash against Uber for a poison culture. Of course, contrition was supplied. But does anyone believe them? Their own investors are doubtful.  Early Uber investors Mitch and Freada Kaptor wrote ““To us, this decision is yet another example of Uber’s continued unwillingness to be open, transparent, and direct”.   As founders of the Kaptor Centre for Social Change, and important drivers of social change and diversity, their condemnation (here) is as devastating as it is selfless because as investors in Uber they  will be affected by the negative press.  For many Uber employees, the time for apologies (especially if they lack credibility) is too late as recruiters are now shunning Uber employees looking to leave.  A video of CEO Travis Kalanick blasting an Uber driver only further condemns the company culture.   Then, in the face of a social media backlash, we see another apology and a commitment to change by the CEO Travis Kalanick . So pervasive is the toxic culture some employers are resistant to hiring present and a former Uber worker because they worry the cost of a dysfunctional employee is too high.

Toxic workplaces can be transformed and potential liability limited.  In the immediate term, a full workplace transformation project will need to be created, implemented and seen to be done by the employees, customers and investors. Marketing messaging will need to re-orient itself to counter the damage done the brand.

Abusive and high-pressure unethical workplace cultures damage a company’s reputation and brand, whether or not the line into discrimination or harassment has been crossed, leading to possible loss of shareholder value and lower profits. Even dishonest, if not illegal, practices such as the Uber Greyball tactic stemming from such workplaces obviously create lasting damage.  As noted above companies, employees, business partners and investors will suffer. As reported by Time, Lyft experienced a 40% increase in application of their application and a 60% increase in activations.

The best solution is to identify any issues early, and build a respectful, productive culture that is both discrimination and harassment free, as well as ethical.  Otherwise, companies will likely spend more to repair a damaged brand. There may also be potential lawsuits, from employees who feel vindicated in their discomfort pushing ethical boundaries.  To paraphrase an old saying  “an ounce of prevention is worth billions of pounds of cure”.

Six Minutes Employment Lawyer 2016
Author: Lai-King Hum[1] May 4, 2016

Included in almost every defence to a wrongful dismissal claim is a failure on the part of a dismissed employee to mitigate the loss of his or her employment. This obligation to mitigate usually refers to the obligation of employees who lose their job to take reasonable steps to find and accept other comparable work where available. If an employee fails to take reasonable steps, then a court may reduce the damages (or the reasonable notice period) that might otherwise be applicable.

Some people have explained this obligation as the duty of the dismissed employee to now act in the employer’s interest. However, this legal rule is not about a duty owed to the employer, but about the employee taking steps to act in his or her own interest, as measured by the standard of the reasonable person in a similar circumstances. The employer’s common law duty to provide reasonable notice of termination of employment is linked to but independent of the employee’s duty to mitigate the loss of employment and minimize the damages suffered.

The concept of mitigation in the employment law context, explained below, seems simple enough at first blush. However, how the duty of mitigation has been applied in different recent cases shows nuances that are not well understood. Counsel acting for both employers and employees would be wise to consider some of the more nuanced issues, which are raised here.

THE CONCEPT OF MITIGATION

[or, as Billie Holiday might say, “Do Your Duty”]

Mitigation is well understood as a general principle of common law contracts. In writing for the majority of the Supreme Court of Canada, Chief Justice Laskin succinctly described the general duty to mitigate in Michaels v. Red Deer College, [1976] 2 S.C.R. 324[2], at p. 330 [Red Deer College]:

The primary rule in breach of contract cases, that a wronged plaintiff is entitled to be put in as good a position as he would have been in if there had been proper performance by the defendant, is subject to the qualification that the defendant cannot be called upon to pay for avoidable losses which would result in an increase in the quantum of damages payable to the plaintiff. The reference in the case law to a “duty” to mitigate should be understood in this sense.

In the context of employment law, the concept of mitigation seems rather counter-intuitive: after being terminated from employment, does the dismissed employee now have the obligation to mitigate the employer’s contractual breach of the employment relationship? Most employees are surprised to learn of this obligation to mitigate, and the corresponding potential clawback of their termination pay package, seeing this as an additional affront to their dismissal by their employer.

The Court of Appeal in Forshaw v. Aluminex Extrusions Ltd., 1989 CanLII 234 (BCCA), at p. 6, sought to clarify this duty to mitigate in an employment law context:

That “duty” – to take reasonable steps to obtain equivalent employment elsewhere and to accept such employment if available – is not an obligation owed by the dismissed employee to the former employer to act in the employer’s interests. It would indeed be strange that such a duty would arise where an employer has breached his contractual obligation to his employee, having in mind that no duty to seek other employment lies on an employee who receives proper notice.

The duty to “act reasonable”, in seeking and accepting alternate employment, cannot be a duty to take such steps as will reduce the claim against the defaulting former employer, but must be a duty to take such steps as a reasonable person in the dismissed employee’s position would take in his own interests – to maintain his income and his position in his industry, trade or profession. The question whether or not the employee has acted reasonably must be judged in relation to his own position, and not in relation to that of the employer who has wrongfully dismissed him…

Finally, the duty to mitigate applies to the common law duty of the employer to provide reasonable notice of the termination of employment. Payments and other entitlements owed to an employee under employment standards legislation must be provided, even if the dismissed employee starts working at another job the very next day. [3]

WHO BEARS THE ONUS OF PROOF?

[or, as Aretha Franklin might say, “Prove It!”]

Ordinarily, the plaintiff bears the burden of proving their case in court. One might think therefore that the plaintiff must prove that they have taken reasonable steps to mitigate the loss of employment.

In Red Deer College, the Supreme Court of Canada addressed the issue of who bears the onus of proof in a mitigation defence. Red Deer College was a wrongful dismissal action brought by two dismissed members of the academic staff of Red Deer College in Alberta. The appeal to the Supreme Court of Canada was on one issue only: whether or not the Alberta Court of Appeal erred in its reasoning that the plaintiffs did not bear the onus of proof relating to the duty to mitigate.

Chief Justice Laskin adopted a passage from the text Williston on Contracts, vol. 11, 3rd ed. (1968) at page 325:

In the ordinary course of litigation respecting wrongful dismissal, a plaintiff, in offering proof of damages, would lead evidence respecting the loss he claims to have suffered by reason of the dismissal. He may have obtained other employment at a lesser or greater remuneration than before and this fact would have a bearing on his damages. He may not have obtained other employment, and the question whether he has stood idly or unreasonably by, or has tried without success to obtain other employment would be part of the case on damages. If it is the defendant’s position that the plaintiff could reasonably have avoided some part of the loss claimed, it is for the defendant to carry the burden of that issue, subject to the defendant being content to allow the matter to be disposed of on the trial judge’s assessment of the plaintiff’s evidence on avoidable consequences.

The duty to mitigate is therefore an issue raised by the defence. As such, in order for a mitigation defence to succeed, the employer bears the onus of establishing that the former employee has “either found, or, by the exercise of proper industry in the search, could have procured other employment of an approximately similar kind reasonably adapted to his abilities” [Red Deer College, p. 332].

In Somir v. Kohler Canada Co., 2006 CanLII 42369 (ONSC), the Court found that the employer had failed to satisfy the onus of proof in its mitigation defence. The employer had argued that the plaintiff’s search for comparable employment had diminished a year following his termination, that the plaintiff had failed to consult former employees who could have provided leads to potential employment, and also that the plaintiff failed to accept two offers from companies in the kitchen cabinet industry. The Court disagreed with the employer and found that there was ample evidence to support the plaintiff’s active search for comparable employment, despite reduced documentary evidence a year following his termination. The Court also dismissed and found the employer’s argument that the plaintiff ought to have consulted with former employees for available employment highly speculative. Finally, the Court concluded that “there was no requirement on the plaintiff to accept the positions offered by two kitchen cabinet companies” as “[b]oth positions were at substantially lower wage rates, neither was a supervisory position” similar to the plaintiff’s previous employment, and that “each was temporary” [para 62].

ALTERNATE EMPLOYMENT WITH DISMISSING EMPLOYER

[or, as the Clash might ask “Should I stay or should I go?”]

Employees are often faced with the difficult decision of whether or not they should accept alternative employment with the same employer.

An employee is entitled to refuse to continue working with the same employer where to do so would subject the employee to humiliation and embarrassment. For instance, in Farwell v. Citair, Inc. (General Coach Canada), 2014 ONCA 177 (CanLII) [Farwell], the Court of Appeal dismissed the employer’s appeal of lower court decision, which had awarded the dismissed employee damages in lieu of notice of 24 months. The plaintiff was 58 years old, and had worked for 38 years for this company, with his last position as VP Operations. During an economic downturn, the company decided to give the VP Operations position to someone else, and told the plaintiff that he would henceforth take the Purchasing Manager position, a position that he had held several years prior. He refused to take this step backwards. Unwisely, the company announced to other employees the change in the VP Operations role, and made no announcement about the plaintiff’s future within the company.

The employer’s argument was focused on the plaintiff’s failure to adequately mitigate his damages, since he had refused to accept the employer’s offer of the Purchasing Manager position (one which the employee had occupied years prior) to work out the notice period. In arriving at his decision, Justice Lauwers cited the following passage from the Supreme Court of Canada decision, Evans v. Teamsters Local Union No. 31, [2008] 1 S.C.R. 661, at para. 12:

This Court has held that the employer bears the onus of demonstrating both that an employee has failed to make reasonable efforts to find work and that work could have been found (Red Deer College v. Michaels, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324). Where the employer offers the employee a chance to mitigate damages by returning to work for him or her, the central issue is whether a reasonable person would accept such an opportunity. In 1989, the Ontario Court of Appeal held that a reasonable person should be expected to do so “[w]here the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships involved are not acrimonious” (Mifsud v. MacMillan Bathurst Inc. (1989), 1989 CanLII 260 (ON CA), 70 O.R. (2d) 701, at p. 710).

[Emphasis added]

Justice Lauwers agreed with the trial judge in that “an employee cannot be obligated to mitigate by working in an atmosphere of hostility, embarrassment, or humiliation” [para. 13], and therefore it was not unreasonable for the plaintiff to have refused the lesser position.

However, in both of Bolibruck v. Niagara Health System, 2015 ONSC 1595 (CanLII) [Bolibruck] and Ghanny v. 498326 Ontario Limited, 2012 ONSC 3276 (CanLII) [Ghanny], the court dismissed the plaintiff’s action in finding that each had unreasonably turned down the employer’s offer of re-employment, or in Ghanny, a replacement offer at a related company. Both courts found that there were no atmospheres of hostility or embarrassment, and their new roles would have similar or identical salary and benefits. As “the reasonableness of an employee’s decision not to mitigate is assessed on an objective standards”, both plaintiffs’ actions to decline reemployment were viewed as unreasonable [Bolibruck at paras. 96 – 101; Ghanny at para. 12].

FIXED NOTICE OR SEVERANCE PROVISIONS

[or, as Ryan Adams says, “Fix It”]

How does the duty of mitigation apply when dealing with fixed notice or severance provisions, as opposed to common law reasonable notice? The simple answer is that it does not, with exceptions. Fixed notice or severance clauses are used as a means of predetermining what the severance obligations are upon termination, but employers need to beware that they are not subject to a duty to mitigate unless there is an express clause that provides for it.

Until relatively recently, the prevailing understanding, based on the somewhat convoluted reasoning in Graham v. Marleau, Lemire Securities Inc., 2000 CanLII 22616 (ON SC) [Graham], was that the duty to mitigate generally applied, whether in the context of indefinite or fixed term employment, with or without a notice or severance clause, unless there was an express provision waiving the duty to mitigate. [4]
However, since 2012, the leading case on the duty to mitigate the loss of employment has been Bowes v. Goss Power Products Ltd., 2012 ONCA 425 (CanLII) [Bowes]. The Court of Appeal considered whether an employment agreement with a fixed notice or severance clause, and no express waiver of mitigation, is subject to the duty to mitigate, and found that a contractually fixed term of notice is distinguishable from common law reasonable notice.

Then Chief Justice Winkler, writing for the Court of Appeal, referenced Justice Nordheimer’s earlier decision in Graham, and the error of treating a contractually fixed term of notice as effectively indistinguishable from common law reasonable notice. He concluded that the parties, by providing for a fixed notice provision, did not intend mitigation to apply:

An employment agreement that stipulates a fixed term of notice or payment in lieu should be treated as fixing liquidated damages or a contractual amount. It follows that, in such cases, there is no obligation on the employee to mitigate his or her damages.

Counsel for employers are advised to ensure there is an express duty of mitigation if the aim is to minimize payout if the dismissed employee re-employs.[5]

FIXED TERM CONTRACTS SILENT ON MITIGATION

[remember Simon & Garfunkel’s “The sound of silence”?]

Employers utilize fixed term contracts at their peril, unless the contract contains a well-written early termination clause. Otherwise, employers who early terminate a fixed term contract may find themselves liable for paying the balance of the contract to the dismissed employee.

More significantly, while Bowes, discussed above, held that the duty to mitigate does not apply in the context of fixed notice ­termination provisions, a very recent Court of Appeal case determined that the duty to mitigate also does not apply in the case of fixed term contracts that are silent on the issue of mitigation.

In April 2016, the Ontario Court of Appeal released its decision in Howard v. Benson Group Inc. (The Benson Group Inc.), 2016 ONCA 256 (CanLII), which considered the issue of mitigation when a fixed term contract is early terminated. The case involved an employee hired on a five-year contract starting in September 2012. Twenty-three months into the contract (with just over 3 years remaining in the term), the employer terminated his employment, without cause. Although the employee was successful in his motion for summary judgment, the judge only awarded him common law damages for wrongful dismissal, with the quantum of damages to be assessed at a further mini trial. On appeal, the question was whether an employee employed under a fixed term employment contract without a clause providing for early termination without cause, is entitled to payment of the balance of the contract on early termination of the contract.

Justice Miller, for the Court of Appeal, confirmed that in the absence of an express provision specifying a pre-determined notice period, or pay in lieu instead, the early termination of a fixed term contract makes the employer liable to pay the employee to the end of the fixed contractual term. He concluded that the motion judge erred in holding that the appellant was only entitled to common law damages and that a duty to mitigate applied. Instead, he held that the appellant was entitled to damages for the early termination of his contract, in an amount equal to his salary and benefits for the unexpired term.

Further, where a fixed term contract is silent on mitigation, absent an express provision addressing mitigation, a dismissed employee does not have an obligation to mitigate his or her damages. This conclusion is summarized in para. 44:

In the absence of an enforceable contractual provision stipulating a fixed term of notice, or any other provision to the contrary, a fixed term employment contract obligates an employer to pay an employee to the end of the term, and that obligation will not be subject to mitigation. Just as parties who contract for a specified period of notice (or pay in lieu) are contracting out of the common law approach in Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (3d) 140 (Ont. H.C.), so, too, are parties who contract for a fixed term without providing in an enforceable manner for any other specified period of notice (or pay in lieu).

MITIGATION AS A CONTINGENCY FACTOR

[ Pink Floyd might ask “What shall we do now?”]

An interesting situation arises when a case reaches trial, and the dismissed employee has not re-employed. When the awarded notice period extends beyond the trial date, does the employee receive the benefit of the entire notice period? Employer clients are happy to hear that the employee is still subject to the duty to mitigate for the balance of the notice period.

The courts have applied three different approaches to deal with the situation. The three approaches were recently discussed in the decision of Zoldowski v. Strongco Corp., 2015 ONSC 5485 (CanLII) at para. 20 [Zoldowski]:

Which approach has been taken depends on the judge and the facts of the case. For example, in Paes v. Cascades Canada ULC, 2015 ONSC 7356 (CanLII), Justice Faieta found in favour of the plaintiff. With a reasonable notice period of 21 months that extended beyond the trial date, he found that the most practical and efficient way to address a future duty to mitigate was to apply a contingency. At 63 years old, and after working 26 years with the same employer, Justice Faieta concluded that it was very unlikely the plaintiff would re-employ, and applied a contingency of 1% to the award, reducing the award from 21 to 20.8 months pay in lieu of notice.

It is very unlikely that the Plaintiff will find comparable employment. In the circumstances, the most practical and efficient way to address this future duty to mitigate is to apply a contingency as this Court did in Hussain rather than to use one of the other two approaches. It is my view that the Plaintiff has about a 1% chance of finding comparable employment prior to the end of the reasonable notice period. Accordingly, I reduce the Plaintiff’s reasonable notice period from 21 months to 20.8 months.

Then, in Paquette v. TeraGo Networks, 2015 ONSC 4189 (CanLII) [Paquette], Justice Perell favoured the trust and accounting approach and rejected the partial summary judgment approach, at paras. 68-70:

Yet, in Markoulakis v. SNC-Lavalin Inc., 2015 ONSC 1081 (CanLII) [Markoulakis] and Russo v. Kerr, 2010 ONSC 6053 (CanLII) [Kerr], both courts preferred the partial summary judgement. In Markoulakis, Justice Pollak found that the partial summary judgment approach allows the possible creation of an evidentiary record sufficient to “fairly and justly adjudicate the dispute” [para. 24]. In Kerr, Justice Gray reasoned that the partial summary judgment approach avoids turning the duty to mitigate into a theoretical duty only.

More recently, a fourth approach, a hybrid crafted out of the trust and accounting, and the partial summary judgment, approaches has emerged. In Lalani v. Canadian Standards Association, 2015 ONSC 7634 (CanLII), Justice Diamond ordered that a trust in favour of the employer be impressed upon the damages award paid to the employee during the balance of the notice period, with the employee required to account to the employer on a monthly basis on his mitigation efforts and any mitigation income earned. This approach relies on the employee’s transparency in accounting to avoid the impracticality of having the parties return to court.

UNREASONABLE JOB SEARCH

[or, as James Ingram might lament “I did my best but I guess my best wasn’t good enough…”]

What are the parameters of a “reasonable search” for comparable employment?

As stated above, the onus is on the employer to show that the dismissed employee has failed to conduct a reasonable job search. The stakes can be high, as where a court finds that a dismissed employee has not taken reasonable steps to search for new employment and mitigate the loss of employment, that employee may suffer a significant reduction in a court awarded notice period. The quantification of the appropriate reduction has been problematic.

For instance, in Robinson v. Team Cooperheat-MQS Canada Inc., 2008 ABQB 409 (CanLII), where the employer refused to allow an employee to withdraw a resignation hastily given after a heated meeting, the plaintiff successfully sued for wrongful dismissal. In reviewing the plaintiff’s efforts in mitigation, the Court reconfirmed that the “test is not whether there was a particular job open” for the plaintiff, but “whether the plaintiff acted reasonably in seeking alternative employment, and whether had he attempted, it is probable he would have secured employment” [para. 124]. The Court found that the plaintiff’s mitigation efforts were sporadic at best and that the evidence established an unprecedented boom in the industry during the plaintiff’s notice period. As such, had the plaintiff taken reasonable steps to re-employ, he likely would have easily found similar employment. The Court consequently decreased the 18-month notice otherwise applicable period by 6 months (a reduction of over 30%), for failure to mitigate.

In Hyland v. Advertising Directory Solutions Inc., 2014 ABQB 336 (CanLII) [Hyland], the Court acknowledged the difficulty in quantifying a failure to mitigate [para. 73]:

Quantification of the failure to mitigate is a difficult assessment. There is little assistance from the caselaw as to how to quantify a failure to mitigate. In the absence of evidence of a specific job that was available to the plaintiff, the amount by which damages are reduced seems to be arbitrary.

In examining other decisions, Hyland provides various factors to be considered in quantifying mitigation [para. 80]:

In quantifying an appropriate reduction of Mr. Hyland’s notice period, I find the recent decisions by this Court in Johnson v Top-Co Ltd, 2009 ABQB 731 (CanLII), 488 AR 182 (“Johnson“) … to be persuasive. In Johnson, the plaintiff made no effort to explore the job market, and instead became self-employed. The plaintiff in that case actually had two specific opportunities to obtain full-time employment, but failed to follow-up with the potential employers, in part due to health concerns. As a result, there was no evidence as to whether these positions would have been suitable replacement employment. There was, however, clear evidence that the plaintiff in Johnson had skills that were valued in the industry, based on the lengthy period of time it took the defendant to replace him and a feeling in the industry at the time that there were more jobs available than there were qualified personnel.

The Court also recognized that following dismissal, employees generally need not immediately start their job search, since time might be required to recover from the shock of dismissal. Further, while the plaintiff’s mitigation efforts need to be reasonable, they do not need to be “perfect” [Paquette at para. 46].

The decision of Day v. JCB Excavators Ltd., 2011 ONSC 6848 (CanLII) [Day], is also helpful in quantifying mitigation. The plaintiff, Mr. Day, spent his entire working career in the agricultural, heavy industrial and construction equipment industries. The employer had eliminated Mr. Day’s employment following an economic downturn in the heavy machine industry. The economic downturn was industry-wide and eventually extended to all of Canada. Following his termination, Mr. Day turned to self-employment and started a tree farm, which did not generate any immediate income for him.

The Court upheld Mr. Day’s action for wrongful dismissal and accepted that “his decision to start a tree farm was a reasonable one even though an immediate source of revenue was not generated from that source” [para. 107]. The Court also found that the employer had provided no evidence suggesting that “similar employment [was] available even if Mr. Day had acted with greater diligence” [para. 106].

Although there are decisions where the dismissed employee’s decision to start a new business was not well received, in Day, the Court relied on the decision of Peet v. Babcock & Wilcox Industries Inc., 2001 CanLII 24077 and did not reduce Mr. Day’s notice period for failure to mitigate [para. 109]:

Finally, not every job offer must be accepted. In some circumstances, it is reasonable for an employee to not accept a job offer . More recently, in the Ontario Superior Court decision of Tsakiris v. Deloitte & Touche LLP, 2013 ONSC 4207 (CanLII), the Honourable Justice Michael A. Penny held that it was reasonable for an employee to defer accepting a job offer when it was still possible that a comparable and better position might yet come along.

———

[1] Lai-King Hum is the Principal and Senior Lawyer of Hum Law Firm. She thanks Allisa Wu, a lawyer with the firm, for her assistance with this paper.

[2] Cited recently in the employment law context: Bowes v. Goss Power Products Ltd., 2012 ONCA 425.

[3] Boland v. APV Canada Inc., 2005 CanLII 3384 (ON SCDC), 38 C.C.E.L. (3d) 95 (Ont. Div. Ct.) at para. 23.

[4] Graham, at para. 50:

I confess that I do not find it easy to reconcile all of these cases. However, I believe that the following general conclusions can be drawn from them:

(a) whether a contract is a fixed term contract or a contract of indefinite duration, the principle of mitigation applies to a claim arising from any breach of that contract, and;

(b) in cases where there is an agreed upon severance provision, the principle of mitigation also applies to that provision, but;

(c) there is an exception to that second conclusion in cases where the contract of employment can be interpreted as having exempted, either expressly or by implication, the employee from the duty to mitigate. Examples of such exemptions are:

(i) an express wavier of the duty to mitigate as in Neilson;

(ii) an express obligation to continue to make the payments under the employment contract as in Paquin;

(iii) where the contractual provision provides that the severance amount is payable immediately at, or very shortly after, the time of the termination as in Borkovich and Rossi. In such cases, the fact that the payment is to be made prior to the time when either the employer or the employee could know whether mitigation could occur implicitly suggests a waiver of that obligation.

[5] See Goldsmith v Sears Canada Inc., 2015 ONSC 3214 (CanLII)

Taking a Closer Look at Human Rights Commission Policy Directives: Policy on removing the “Canadian experience” barrier and Policy on preventing discrimination based on mental health disabilities and addictions

Ontario Bar Association 2015 Annual Update on Human Rights
Author: Lai-King Hum, Principal / Senior Lawyer, Hum Law Firm[1]
May 29, 2015

1. Introduction

Section 30 of the Ontario Human Rights Code (“Code”) authorizes the Ontario Human Rights Commission (“OHRC”) to prepare, approve and publish human rights policies to provide guidance on interpreting provisions of the Code. For those of us who practice in the area of human rights, the OHRC policies set the standards against which our clients (employers, individuals, service providers) should act to ensure compliance with the Code.

Although the OHRC policies do not have force of law, they are likely to and have been given great deference by the Human Rights Tribunal of Ontario (“HRTO”) and/or the courts in their decisions. Section 45.5 of the Code specifically provides that the HRTO may consider policies approved by the OHRC in a human rights proceeding before the HRTO, and that if presented before a proceeding, the HRTO must consider the policy.[2]

This paper will discuss and take a closer look at the two policy directives from the perspective of employment law and the regulation of professions: (i) the Policy on removing the “Canadian experience” barrier (“Canadian Experience Policy”)[3]; and (ii) the Policy on preventing discrimination based on mental health disabilities and addictions (“Mental Health Policy”)[4].

The applicant in a human rights complaint is generally required to make at least a prima facie case of discrimination by showing that (i) they have a characteristic protected from discrimination; (ii) they have experienced an adverse impact within a social area protected by the Code; and (iii) the protected characteristic was a factor in the adverse treatment. The necessary connection between the various elements has evolved over the years. Previously, the applicant had to establish, on a balance of probabilities, that there was a causal nexus between conduct on the part of the respondent and differential treatment experienced by the applicant. A recent Court of Appeal decision clarified that what is required is a “connection” or “nexus” between the adverse treatment and the ground of discrimination. [5] The ground of discrimination need only be “a” factor in the adverse treatment, it need not be “the” factor. If discrimination is only one factor among other non-discriminatory factors, that is enough to find a contravention of the Code.

These policies advocate a progressive interpretation of the necessary connection between the adverse treatment and the ground of discrimination, For instance, the Canadian Experience Policy represents the OHRC’s view that a strict requirement of Canadian experience in the employment or professional licensing context is prima facie discriminatory. Such an interpretation is in line with the applicant’s onus of having to show a “connection” or “nexus” between adverse treatment and the ground of discrimination. The Mental Health Policy proposes a more flexible and contextual analysis of the factors in determining whether a prima facie case of discrimination exists. Depending on the type of discrimination claimed or the ground alleged, the contextual factors and relevant considerations may vary.

As will be shown herein, these policies represent not only a consolidation of the law developed in recent cases, but an extension of the law as it has evolved.

2. Policy on Removing the “Canadian Experience” Barrier

2.1 Introduction

The “Canadian experience” barrier is most often seen in two contexts: that of employment or professional licensing. Employers and regulators have argued that the Canadian experience requirement is to ensure that only those candidates with the necessary qualifications for the Canadian market are hired or licensed so as to guarantee high standards of competence and performance.

Discrimination itself is only prohibited if the discrimination is based on a prohibited ground. Sections 5 and 6 of the Code lists the following specific grounds for employment and vocational associations:

Employment

5. (1) 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, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Harassment in Employment

5. (2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Vocational Association

6. Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

However, the OHRC, through extensive studies supported by the Office of the Fairness Commissioner (“OFC”), disagreed, and saw the “Canadian experience” requirement as the single most significant barrier to employment and/or licensing opportunities. In January 2013, just prior to the OHRC’s release of the Canadian Experience Policy, the OFC released a research report “A Fair Way to Go: Access to Ontario’s Regulated Professions and the Need to Embrace Newcomers in the Global Economy“.[6] The OFC report cited “Canadian experience” as a significant hurdle for all newcomers seeking registration into a regulated profession.

On July 15, 2013, the OHRC released the Canadian Experience Policy. The OHRC policy recognizes the difficulty faced by immigrants, who, in order to gain “Canadian experience” so that they can find employment or become licensed as a professional, are unable to simply because they lack “Canadian experience”. The Policy also points out that to get the requisite Canadian work experience, some newcomers turn to volunteer positions or unpaid internships — situations which are fraught with their own problems.[7]

The dilemma was addressed by the OHRC’s stance that a strict requirement for “Canadian experience” is prima facie discrimination, and that such a requirement can only be used in very limited circumstances, such as when the employer or a professional regulatory body can show that a requirement for prior work experience in Canada is a bona fide occupational requirement.

The OHRC position may be summarized as follows:

• A strict requirement of “Canadian experience” is prima facie discriminatory, and may only be used in rare circumstances; and
• The onus is on employers and regulatory bodies to show that a requirement of prior work experience in Canada is a bona fide

The OHRC’s position takes developments in caselaw and other decisions by courts, human rights tribunals, labour arbitrators, and regulatory decision makers, and advances them further. In doing so, Ontario’s Human Rights Commission has become the first provincial human rights commission to explicitly adopt the position that, except in rare circumstances, requiring “Canadian experience” as a condition of hiring or for accreditation is prima facie discriminatory.

The OHRC position is based partly on the Supreme Court of Canada decision in Meiorin[8] which set out a three-part test to determine when a job requirement which violates human rights legislation may be justified as a bona fide occupational requirement. Under the Code, where discrimination is found, the employer or regulatory body may establish a defence to the discrimination by showing that the policy, rule, or requirement that resulted in unequal treatment is a legitimate work standard, also known as a bona fide occupational requirement.

A bona fide occupational requirement must have all of the following elements:

• The requirement was adopted for a purpose or goal that is rationally connected to the function being performed;
• It was adopted in good faith, in the belief that it is needed to fulfill the purpose or goal; and
• It is reasonably necessary to accomplish its purpose or goal, because it is impossible to accommodate the claimant without undue hardship.

The test ensures that the policy or requirement must be as inclusive as possible of individual differences and that each individual is assessed according to his or her personal abilities rather than under presumed group characteristics counter to the Code. As applied to the Canadian Experience Policy, the OHRC emphasizes the need for employers and regulatory bodies to be as specific as possible about the qualifications they are seeking, rather than using a “catch-all” term, requiring “Canadian experience”.

2.2 Employment Context

The issue of “Canadian experience”, as opposed to foreign work experience, has been legally considered in the employment context prior to the issuance of the Canadian Experience Policy.

For instance, in Clarke Institute of Psychiatry v. O.N.A.,[9] the Ontario Labour Relations Board (“OLRB”) found that the Clarke Institute of Psychiatry did not recognize nurses’ years of experience outside of Canada when the experience was not from particular countries. The nurses’ years of experience was used to calculate the salary grid level of the employee as per the collective agreement. The OLRB held that the automatic refusal to recognize experience from particular countries, in this case, Africa, amounted to discrimination based on country of origin or race. Of significance is that the Institute did not produce any rational or substantive explanation for devaluing experience from Africa.

Employers should also be cognizant that refusing a candidate with no Canadian experience, but extensive non-Canadian experience, on the basis that they are “over qualified” could also be found to be prohibited discrimination. The Canadian Human Rights Tribunal found in Sangha v. Mackenzie Valley Land & Water Board[10] that an employer who applies a policy against hiring overqualified candidates is discriminating on prohibited grounds. The Tribunal found that visible minority immigrants are disproportionately excluded from higher level positions in the job market, and therefore they apply to lower level positions, even where their qualifications exceed the job requirements. As such, an employer who establishes a rule against hiring overqualified candidates, although neutral on its face, impacts the visible minority immigrant candidates. The Tribunal also noted that native-born candidates who are rejected because of over-qualification can seek other work suited to their resumes, but immigrants do not have this option.

2.3. Professional Regulation Context

Of greater significance is the impact that the Canadian Experience Policy may have on the professions and their regulatory bodies. There are over 800,000 members of regulated professions in Ontario, and an increasing number of internationally trained and educated applicants.

Since the establishment of the OFC in 2007, there have been reductions in Canadian experience requirements in the licensing criteria for various professions. While some regulators have reduced Canadian experience requirements as part of its accreditation process, the change had not been uniform amongst Ontario regulators.[11] Some have held onto requiring Canadian experience before a candidate can be licensed for the purpose of ensuring that competency and high standards are met.

In November 2013, the OFC released yet another research report, “Academic Requirements and Acceptable Alternatives: Challenges and Opportunities for the Regulated Professions in Ontario”, which discussed mechanisms for Ontario regulators in accepting alternatives to their standard academic requirements. While acceptable alternatives bring new flexibility to the licensing and accreditation process, they do not remove all barriers for internationally educated professionals. The report cautioned that regulators must ensure that the academic requirements are not only relevant, but necessary to the practice of the profession and that acceptable alternatives must be developed with careful attention to accessibility, affordability, and sustainability.[12]

In 2011 the OFC conducted a study and found that, out of 38 professions, 26 required work experience, of which 14[13] continued to require Canadian experience, including 6 that specifically required Ontario experience. These include architects, dieticians, engineers, foresters, general accountants, land surveyors, midwives, physicians and psychologists. In OFC’s 2013-2014 assessments, it was determined that these requirements have changed very little since the 2011-2012 assessments. Despite OHRC’s Canadian Experience Policy, of the 14 professions from the previous years, 13 of the regulators have an unchanged requirement for Canadian work experience or practical training. Only the regulatory body for foresters has developed an alternative to Canadian work experience.

In its 2013-2014 assessments, the OFC made poignant recommendations, one of which is for regulators to identify the competencies associated with existing requirements for Canadian work experience or practical training, which is in line with the OHRC Policy. It should be interesting to see if regulatory bodies will change their requirement for Canadian work experience, or at least identify the specific qualifications or competencies sought after, rather than resorting to the “catch-all” term, in the 2014-2015 assessments.

As in the employment context, Canadian experience in the profession regulation context has also been legally considered prior to the issuance of the Canadian Experience Policy.

In the case of Bitonti v British Columbia (Ministry of Health)[14], the College of Physicians and Surgeons divided applicants for licenses to practice medicine into two categories: 1) those who have been educated at medical schools in approved countries; and 2) those who have been educated at medical schools outside the approved countries. The licensing requirement for both groups differed significantly. The first group, having been educated at medical schools in approved countries, was required to have twelve months of an internship at an approved hospital or two years of a residency program. The applicants belonged to the second group, all of whom were graduates of medical schools outside of the list of approved countries. The latter group was required to have two years of post-graduate study, with one year of an internship in Canada. Graduates in the second group were unable to satisfy the Canadian internship requirement given the difficulty of securing such internships.

In deciding that the College’s practice was discriminatory, the Tribunal analyzed whether the requirement for Canadian experience had a correlation with a protected characteristic, and whether there was an underlying rationale for the rule. The Tribunal found that the College did not adequately consider foreign equivalencies and that there were immediate assumptions based on the country where the training took place, as opposed to actual knowledge. The Tribunal recognized that “the problem is clearly a complex one with national dimensions” and “requires cooperation by a number of different organizations to solve”, specifically, that the organizations work together to “develop a comprehensive mechanism for ensuring that graduates of foreign medical schools are able to have their skills assessed based on merit rather than assumption” and that they be “given an opportunity to compete fairly” under these circumstances.[15]

Following the decision of Bitonti, in Gersten v College of Physicians and Surgeons of Alberta[16], the College was found not to have discriminated against an Israeli trained doctor whose application for specialist medicine certification was denied. He was required to pass a specialist certification process, and he failed the second assessment. His argument that the requirements were impossibly burdensome and virtually unattainable by foreign trained graduates was rejected. The Tribunal, in a decision in line with the reasoning in Bitonti, found that there was insufficient evidence that the specialty assessments were discriminatory. The Tribunal also found that the assessments and the six months of training were reasonable and necessary to protect patient safety.[17]

More recently, in Fazli v National Dental Examining Board of Canada[18], it was found that the National Dental Examining Board did not discriminate against an Afghan trained dentist who consistently failed to meet the Board’s requirement for certification. Mr. Fazli, was from Afghanistan and graduated with a degree in dentistry and practiced dentistry in Afghanistan, Pakistan, and India prior to immigrating to Canada. Since arriving to Canada, Mr. Fazli made extensive efforts to be certified by National Dental Examining Board of Canada, but consistently failed to meet the Board’s requirements for certification. Mr. Fazli brought the application in the HRTO and alleged that the Board’s requirement that graduates from non-accredited dental programs undergo a different process than graduates from accredited programs disadvantaged those from countries where there were no accredited programs.

The Tribunal assessed the Board’s certification requirements and held that the evidence established that the Board’s differential treatment of graduates from accredited programs was based on actual knowledge about the programs, garnered through a sophisticated and ongoing process of evaluation of the program.[19] Therefore, in the absence of any such knowledge-based assurances about graduates from non-accredited schools, it was not discriminatory for the Board to have individuals from non-accredited schools to establish that their dental training was equivalent to the accredited schools by successfully passing through the Equivalency Process.[20]

The different outcomes between the Bitonti decision and the Gersten and Fazli decisions are illustrative of the “best practices” espoused by the Canadian Experience Policy. A test that focuses on the individual’s actual competencies will not be discriminatory, whereas qualification assessments that are based solely on where an individual obtained their academic or work experience without further individualized considerations will likely be found to violate human rights. The decisions recognized the need for regulatory bodies to adequately tailor their mechanisms for accreditation so as to ensure proper and fair assessment of the credentials and work experience of foreign professionals, which is in accordance with the Canadian Experience Policy.

Another extraordinary case, currently under appeal, is Mihaly v The Association of Professional Engineers, Geologists and Geophysicists of Alberta.[21] The Alberta Human Rights Tribunal held that the APEGGA discriminated against Mr. Mihaly, who received his engineering education in Slovakia and had about twelve years international work experience, by imposing certain requirements upon him before the APEGGA would register him as a professional engineer. Since Mr. Mihaly received his education from an institution that was on the “Foreign Degree List”, he was considered eligible for registration provided he passed confirmatory examinations and the National Professional Practice Examination (NPPE). All applicants are required to take the NPPE exam regardless of where they received their education. After examining his credentials, and since there were no Mutual Recognition Agreements in place between Canada and Slovakia recognizing the latter’s accreditation system, the APEGGA also required that Mr. Mihaly complete three confirmatory examinations and take a course or pass an equivalent exam in Engineering Economics by a given deadline.

Over the course of about eight years, Mr. Mihaly failed three times to pass the NPPE. He also did not pass the confirmatory exams by the deadline. In a reconsideration of his application, the Board of Examiners for the APEGGA also determined that Mr. Mihaly had not acquired the one year required North American professional engineering in the position where he had worked because it was not at the required “D level”. He was therefore required to obtain one-year acceptable “D level” North American engineering experience.

Mr. Mihaly then claimed that the APEGGA had discriminated against him, in contravention of the Alberta Human Rights Act. In a lengthy decision released in February 2014, the Alberta Human Rights Tribunal found that the process used by the APEGGA to assess the complainant’s credentials and experience was discriminatory since it was insufficiently individualized and created undue barriers for the registration of an internationally educated engineer. Further, the Tribunal held that the APEGGA’s requirement that all applicants acquire one-year of North American engineering experience was not justified and that the standards sought could be met through other means.

The appeal of this decision is eagerly awaited by professional regulatory bodies that have maintained the importance of a “Canadian experience” or similar requirement as part of its public policy mandate to maintain high standards within a given profession.

3. Policy on Preventing Discrimination Based on Mental Health Disabilities and Addictions

3.1 Introduction

The OHRC officially released its Policy on preventing discrimination based on mental health disabilities and addictions on June 18, 2014. The Mental Health Policy deals with issues of discrimination for psychosocial disabilities[22] and provides guidance on the duty to accommodate. The Mental Health Policy furthers the position of the OHRC in its previous publication on the same issue, Minds that matter: Report on the consultation on human rights, mental health and addictions, released in 2012. This report was a consultation on the human rights issues experienced by people with mental health disabilities or addictions. The report was based on a province-wide consultation that involved more than 1,500 individuals and organizations across Ontario.

Section 10(1) of the Code provides a broad definition of disability, with subsections (b) and (d) covering mental health disabilities and addictions.[23] Both past and perceived disabilities are also protected under the Code. However, in keeping with the principle of human rights legislation, the Code does not provide an exhaustive list of conditions that could be considered a disability. Under the Code, impairments such as anxiety, panic attacks, depression, schizophrenia, alcohol dependence, and addictions to illegal drugs have all been recognized as disabilities.[24] The Mental Health Policy, however, offers the following guidance on how to better understand and recognize a psychosocial disability that might require accommodation:

• Psychosocial disabilities may be temporary, sporadic, or permanent, and in many cases, may not be visible to the average onlooker.
• Psychosocial disabilities encompass mental health disabilities and addictions.
• Psychosocial disabilities differ from cognitive, intellectual and sensory disabilities, and learning disorders.
• Psychosocial disabilities may result from bodily or mental impairments or from limitations arising from impairments that affect people’s ability to function in certain areas of living.
• Psychosocial disabilities may be the result of combinations of impairments and environmental barriers that may hinder full participation by individuals with these disabilities.[25]

According to the Mental Health Policy, the barriers faced by individuals with psychosocial disabilities are largely due to stereotypes that marginalize these individuals on the basis of presumed characteristics. Individuals with psychosocial disabilities are frequently presumed to be violent or aggressive without objective evidence of such behavior. These individuals are also often defined entirely by their disability and are presumed to be less worthy of respect. These presumed characteristics are the direct result of a culture that has adopted an “ableist” attitude and one that marginalizes individuals with psychosocial disabilities while making such marginalization seem neutral.

From the OHRC’s mental health consultation, it has been found that more often than not, individuals with psychosocial disabilities are more likely to have low incomes and live in chronic poverty. There is a link between mental health, addictions, and societal factors such as poverty, lack of affordable housing, lower levels of education, and access to public assistance and other social supports. Further, the OHRC Policy recognizes the concept of intersectional discrimination, where the discrimination is based on two or more Code grounds.[26]

Additionally, as part of the legal framework that has developed to protect those with psychosocial disabilities, the Accessibility for Ontarians with Disabilities Act (“AODA”) addresses the right to equal opportunity and inclusion for people with disabilities, including mental health disabilities.[27] The AODA introduced a series of standards implemented in stages, geared toward improving accessibility for those with disabilities and mandates compliance from both public and private organizations.[28] The aim of AODA is to make Ontario fully accessible by 2025.

Unlike OHRC’s stance with respect to the requirement of Canadian experience in the employment or professional licensing context, there is no prima facie finding of discrimination just because an individual suffers from psychosocial disabilities. To establish prima facie discrimination under the Code, a claimant must satisfy the legal test and threshold as described above. While the legal test for discrimination does not change, the Policy, however, pushes for a more flexible and contextual analysis of the circumstantial evidence to determine whether substantive discrimination has taken place.

Over the years, certain cases have raised concerns that different treatment may not amount to discrimination in a substantive sense and that disadvantage is not inferred or assumed from the circumstances, but may need to be shown by the claimant, to establish adverse treatment or impact.[29] However, in Hendershott v Ontario (Community and Social Services)[30], the Tribunal stated:

An inference of stereotyping or of perpetuating disadvantage or prejudice will arise where the claimant is able to make a connection between their own identity and the prohibited ground and where the subject-matter of the claim is connected to the underlying purpose of the Code. In those cases, it will be sufficient for the applicant to prove that they have been adversely affected on the basis of a prohibited ground…

As such, it is not be necessary to go through a process of specifically proving what the disadvantage is, but rather, the disadvantage can be assumed where there is adverse treatment based on a prohibited ground.

The Mental Health Policy discusses accommodation for psychosocial disabilities in different protected social areas under the Code, most commonly known as: 1) services; 2) housing; 3) contractual relationships; 4) employment; and 5) membership in a union, professional association, or other vocational associations. Section 17 of the Code sets out the duty to accommodate for those individuals with disabilities. While it is not discriminatory to refuse a service, housing, or a job because the individual is incapable of fulfilling the essential requirements, an individual will only be considered incapable if his or her disability-related needs cannot be accommodated without undue hardship.

The accommodation process is a shared responsibility. The Mental Health Policy comments on the necessity for the players involved in the process to engage in the process, share information, and consider potential accommodation solutions. The approach adopted by the OHRC is very cooperative in nature and encourages the participants in the accommodation process to follow certain guidelines with the aim of eliminating the perpetuation of psychosocial disabilities.

In accordance with the guidelines as set out by the Mental Health Policy, the individual with a disability is required to:

• Make accommodation needs known to the best of their ability, preferably in writing so that they can be properly accommodated;
• Provide information about relevant restrictions or limitations as required;
• Participate in discussions about possible accommodation solutions; and
• Cooperate with experts whose assistance is required to manage the accommodation process.

On the other hand, the accommodation provider is required to:

• Inquire into situations where there is a basis to believe the individual is suffering from a mental conditions;
• Intervene in situations where the individual is clearly unwell or perceived as having a mental health concern;
• Maintain confidentiality and limit requests for information to those reasonably related to the nature of the limitation or restriction given the nature and sensitivity of the matter;
• Maintain a record of accommodation request and action taken;
• Consult with experts where necessary;
• Canvass various forms of possible accommodation and alternative solutions while accepting the individual’s request for accommodation in good faith, unless undue hardship or bona fide requirement; and
• Implement accommodations in a timely way, to the point of undue hardship.

For the purposes of this paper, however, the focus will be on how psychosocial disabilities and the duty to accommodate impact actors in both the employment and professional regulatory context.

3.2 Employment Context

The Mental Health Policy incorporates the common law positions that have been developed by the courts and tribunals to strike a balance when faced with human rights issues on the basis of psychosocial disabilities. The duty of accommodation has always been at the heart of litigation between the employer and the employee.

In two recent HRTO decisions, MacLeod v Lambton (County) (No. 2)[31] and Gaisiner v. Method Integration[32], the Tribunal made a finding of discrimination when employers terminated employees with mental disabilities for performance issues without taking steps to ameliorate the symptoms of the disorder.

In MacLeod, the applicant, a manager of Emergency Medical Services at the County, suffered from bipolar disorder. However, there were no performance issues until several years after he was hired, when a change in his medication made the symptoms of his bipolar disorder more prominent. His behaviour at work became erratic, impulsive, and at times aggressive. The County ultimately conducted an investigation into its concerns over the applicant’s conduct, which resulted in the permanent removal of the applicant from his managerial position.

The Tribunal concluded that much of the conduct relied upon by the County to remove the applicant from his role as a manager was conduct that was related to his bipolar disorder. While the Tribunal agreed that the applicant’s disability-related behavior was harmful, it found that the County failed to take steps to consider whether the applicant’s conduct might have been disability-related, or whether he could have been accommodated in his position without undue hardship.

Therefore, employers are not only obligated to conduct investigations in the workplace, they must also be cognizant of disability-related issues that may trigger a duty to accommodate should the conduct investigated be a product of the disability.

Similarly in Gaisiner, the Tribunal came to a conclusion similar to that in McLeod. The Tribunal found that the employer failed in its duty to accommodate by not having considered the applicant’s disability which was impacting his job performance. The applicant was hired as a Customization Solutions Specialists. However, shortly after his hiring, supervisors found that the applicant did not follow instructions and could not adequately service clients. The applicant then disclosed to the employer that he was recently diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), which was the cause for his poor performance. The company conducted online “Google searches” to learn more about ADHD and coping mechanisms but ultimately moved to terminate the applicant’s employment on the basis that he did not have the technical ability to perform the duties of his job.

Having established a prima facie case of discrimination because the employer terminated the applicant without giving due consideration to the extent to which his ADHD was contributing to his performance issues, the Tribunal also held that the employer failed to fulfill the procedural component of the duty to accommodate. The internet searches conducted by the employer were not only grossly inadequate, but the Tribunal held that internet searches would only yield general information and not individualized results. Additionally, internet searches may yield misleading, highly prejudicial, incorrect, or biased information.[33] Since the duty to accommodate should be individualized, the employer had failed in this respect.

In a unionized employment context, the labour arbitrator in Halton District School Board v Ontario Secondary Schools Teachers’ Federation, District 20[34], balanced the importance of cooperation between employees and employers in the accommodation process with the reality that individuals experiencing mental health disabilities may be unable to participate in such a process. In fact, the arbitrator made specific reference to the Mental Health Policy which recognized that persons experiencing mental health disabilities may be unable to or have limited ability to participate in the accommodation process. Nonetheless, in this situation, the organization should still have attempted to start the accommodation process and continue as appropriate. Nonetheless, it was also recognized that there will be a limit to the extent that an organization can accommodate someone’s disability in the absence of the person’s participation.[35]

In Halton, the grievor was a teacher who suffered from a mental disability but refused to acknowledge that he had any disability needs that required accommodation. While it was found that his disability was the cause of his home assignment, suspension, and ultimately termination from his position, this information was not disclosed until well after the grievance and well into the process of the hearing. The arbitrator noted that the grievor did not cooperate with either his union or employer by disclosing his need for accommodation at the relevant times. Nonetheless, the arbitrator agreed that the failure to cooperate was due to his disability as one of the features of his disability was a lack of insight into the effect the disability was having upon his behavior.

The cases discussed above, where psychosocial disabilities are at issue or believed to be at issue, put the onus on employers to inquire into the situation and take appropriate steps to ensure that it has properly exercised its duty to inquire and to accommodate. Failure to do so could well lead to an employer’s contravention of the Code. In certain circumstances, such as in Halton, employers may face a greater hurdle as it would have to take the initiative in starting and continuing an accommodation process with limited or even the complete absence of the employee’s participation in the process.

a. Professional Regulation Context

In the professional regulation context, human rights violations appear to be most prevalent in the two following areas: (1) denial of registration; and (2) disciplinary proceedings.

The decision of College of Nurses v Trozzi,[36] provides an interesting insight as to the deference that a regulatory tribunal will pay to a regulatory body’s internal decisions in human rights issues. Ms. Trozzi was a nurse suffering from depression and fibromyalgia. She sought registration as a member of the College. Although the registration Committee granted registration, conditions were imposed that were designed to protect the public. Ms. Trozzi appealed the decision at the Review Board, which found that the College had discharged its duty to accommodate by granting registration with conditions. Instead of seeking judicial review of the decision, Ms. Trozzi filed a complaint at the HRTO.

The College’s request to dismiss the complaint on the basis that the issue of discrimination had already been considered in the College’s registration process and by the Review Board was rejected by the Tribunal. However, the Ontario Divisional Court ultimately overturned the Tribunal’s decision and held that it was not open to the Tribunal to assume jurisdiction and substitute its statutory mandate for the mandate of another tribunal having responsibility and expertise in the area of regulating the profession.

Another interesting but controversial decision also involving nurses is the case of Wright v College and Association of Registered Nurses of Alberta (Appeals Committee)[37]. Two nurses who suffered from narcotic addiction appealed from the College’s Appeal Committee’s decision to confirm the disciplinary sanctions imposed by the College on the nurses. The two nurses were disciplined for professional misconduct after it was revealed that they were stealing narcotics and forging signatures of other nurses in order to remove narcotics from the hospital.

Though the College accepted that the nurses’ addictions were a mental health condition, it concluded that there was not a sufficiently close nexus between the addiction and the conduct at issue, which were theft and fraud. The Court ultimately dismissed the appeals of the nurses, finding that the College’s action in laying misconduct charges was not discriminatory since the criminal conduct which underlay the disciplinary charges was distinct from their disability. Therefore, the College’s motivation for laying the disciplinary charges did not arise from the addiction disability.

In a duty to accommodate decision, Fossum v Society of Notaries (No. 2), [38] the British Columbia Human Rights Tribunal held that the Society had met its duty to accommodate the applicant, Mr. Fossum. The applicant suffered from alcoholism, which affected his ability to carry on his practice. He alleged that the Society had failed to accommodate his disability and discriminated against him when it decommissioned him from practicing as a notary public.

There were numerous matters at issue before the Tribunal, including Mr. Fossum’s suspension, Notice of Inquiry and Undertaking, and his termination. Although the Tribunal found that the Society was discriminatory in one instance, it found that the Society had nonetheless met its duty to accommodate, that a duty to accommodate further was not required absent expert evidence that accommodation was required. The Society had justified Mr. Fossum’s termination based on its bona fide occupational requirement defence.

Unlike decisions in the employment context, these decisions recognize that the professional regulatory body have a higher standard against which the duty to accommodate is measured, that of protecting the public interest.

4. Conclusion

What do the policies mean for our clients? Our courts, tribunals and arbitrators have already grappled with issues involving discrimination arising from the “Canadian experience” barrier, as well as various mental and psychosocial disability issues. What these policies provide is awareness of the standards that the OHRC will use to assess compliance, and forewarning that the HRTO, as well as the courts, will likely give deference to the policies. As shown in Gaisiner and Halton, deference has already been shown to the OHRC directives.

The OHRC policies encourage employers and professional regulators to be proactive in anticipating and addressing the needs of those requiring accommodation. In providing advice to our clients, an appropriate appreciation of these policies and the developing law is essential.

As a final note, below are proactive measures and best practices geared towards employers and professional regulators that are also identified in the OHRC policies:

Employers:

• discrimination and accommodation policies and procedures; annual training of all staff and management; training In “duty to inquire” for all HR staff / owners.
• “genuine” efforts to provide accommodation without requiring employees to disclose confidential medical information or undergo an independent medical examination, unless necessary and directly relevant to providing the accommodation.
• accommodation to the point of undue hardship.
• develop accommodation policies and processes in advance with the assistance and benefit of research or expert consultation.
• if applicable, engage labour unions in the accommodation process.
• adopt progressive performance management and other processes that provide employees a chance to disclose their needs.

Professional Regulators:

• genuine inquiry to ensure that disciplinary issues are not actually issues of incapacity or incompetence based on disability.
• accommodation to point of undue hardship.
• higher standard, in that regulator must protect the public interest.
• specify the qualifications sought instead of using the catch-all term “Canadian experience” as a requirement of licensing or registration, or adopt alternative mechanisms for the purposes reviewing competency in the accreditation or registration process.
• gather and collect qualitative and quantitative data to support organizational policies and practices.

[1] This paper was prepared with the assistance of Allisa Wu, Associate Lawyer.

[2] Section 45.5(1) of the Code provides: “In a proceeding…, the Tribunal may consider policies approved by the Commission…” Section 45.5(2) of the Code states: “Despite subsection (1), the Tribunal shall consider a policy approved by the Commission… in a proceeding… if a party to the proceeding or an intervenor requests that it do so.”

[3] Canadian Experience Policy: http://www.ohrc.on.ca/en/policy-removing-%E2%80%9Ccanadian-experience%E2%80%9D-barrier

[4] Mental Health Policy: http://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions.

[5] In Pieters v Peel Law Association, 2010 HRTO 2411; aff’d in Peel Law Association v Pieters, 2013 ONCA 396. The Court of Appeal affirmed that the requirement of a “causal” nexus runs counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct, rather than on intention and direct cause.

[6] See http://www.fairnesscommissioner.ca/index_en.php?page=highlights/afairwaytogo. Faced with increasing numbers of applications from internationally trained and educated applicants for registration into the regulated professions, the role of the Office of the Fairness Commissioner was established by the Fair Access to Regulated Professions Act and Compulsory Trades Act, 2006 (FARPA). FARPA mandates transparency, objectivity, impartiality and fairness in the policies and procedures that regulators use to license applicants in their professions. As part of the Fairness Commissioner’s mandate to ensure that the registration practices of Ontario’s profession regulators are transparent, objective, impartial and fair, the Commissioner regularly audits profession regulators.

[7] The OHRC conducted an online survey with more than 1000 respondents, including jobseekers, applicants for professional registration, and employers. The conclusion was that many newcomers end up volunteering or taking unpaid internships in order to meet the “Canadian experience” requirement. See also article: Lai-King Hum, “will work for free!”: employers, beware of offers of free work by unpaid interns, Mondaq/Lexology, July 23, 2013 https://www.thehumlawfirm.ca/articles/will-work-for-free-employers-beware-of-offers-of-free-work-by-unpaid-interns/

[8] British Columbia (Public Service Employee Relations Commission) v BCEU (1997), 149 DLR (4th) 261 (BCCA); Court upheld that fitness tests required in firefighting were discriminating and inadequate as a measure of ability, and that the standards established did not take into account the differences of the physical abilities between men and women.

[9] 2001 CarswellOn 2007, [2001] L.V.I.3193-10, 95 L.A.C. (4th) 154

[10] 2006 CHRT 9, rev’d on the question of remedy only, 2007 FC 856.

[11] Regulators have developed innovative approaches to competency-based assessments and have committed to transparency and qualifications assessment. Regulators have developed innovative approaches to competency-based assessments and have committed to transparency and qualifications assessment.

[12] In the study, alternatives have been classified into 5 broad types of categories: 1) paper-based assessment of education and experience; 2) direct assessment of knowledge and skills; 3) self-paced learning; 4) bridging programs; and 5) advanced standing.

[13] The same body regulates both pharmacists and pharmacy technicians.

[14] Bitonti v British Columba (Ministry of Health) (No. 3) (1999), 36 CHRR D/263.

[15] Ibid, at para 381.

[16] 2004 AHRC 16.

[17] Ibid, at para 63..

[18] 2014 HRTO 1326.

[19] Ibid, at para 40.

[20] Ibid, at para 41.

[21] 2014 AHRC 1. The appeal was originally scheduled to be heard in December 2014. It was postponed and re-scheduled for hearing on July 23 and 24, 2015.

[22] A “psychosocial” disability refers to both mental health issues and addictions.

[23] Section 10(b): a condition of mental impairment; (d) mental disorder.

[24] As a profession, lawyers appear to be particularly prone to psychosocial disabilities, especially depression. See “Killing Ourselves: Depression as an Institutional, Workplace and Professionalism Problem”, by Megan Seto, Western Journal of Legal Studies, Volume 2, Issue 2, Article 5, 11-19-2012.

[25] Environmental barriers include attitudinal barriers, inaccessible information, and inaccessible communication.

[26] Other Code grounds may include: race, colour, ethnic background, creed, ancestry, citizenship, gender identity and gender expression, sex, family status, marital stats, disability, sexual orientation, age, receipt of public assistance, and record of offences.

[27] Consider also that Canada ratified the United Nations’ Convention on the Rights of Persons with Disabilities (“CRPD”), an international treaty designed to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”. Although international treaties or conventions are not binding on the courts, the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, at para 69. emphasized the importance of international law and how it helps give meaning and context to Canadian law. According to the Court, domestic legislation should be interpreted to be consistent with Canada’s international commitments (Ibid, at para 70).

[28] Standards are geared towards: customer service, transportation, built environment/infrastructure, employment, information, and communications.

[29] See Ontario (Disability Support Program) v Tranchemontagne, 2010 ONCA 593 at paras 100, 117, and 119.

[30] 2011 HRTO 482, at para 45.

[31] 2014 HRTO 1330.

[32] 2014 HRTO 1718.

[33] Ibid, at para 157; the Tribunal also referenced OHRC’s Mental Health Policy in recognizing stereotyping and stigmatization of disabilities such as ADHD in public discussion and commentary.

[34] 2015 CanLII 1394 (ONLA).

[35] Ibid, at paras 45-46.

[36] 2001 ONSC 4614.

[37] 2012 ABCA 267, leave to appeal denied, 2013 CanLII 15573.

[38] 2011 BCHRT 310

Originally appeared in McMillan’s employment and labour bulletin
Authors: George Waggott, Lai-King Hum
May 2010

By now, most employers are aware of Bill 168, amending the Occupational Health and Safety Act (“OHSA”) to impose new obligations on employers, with limited exceptions, starting June 15, 2010. Some of you have come to us asking if you need to engage external HR service providers to handle the many obligations under Bill 168, as you work to become compliant. Certainly, there are many service providers trumpeting the onerous nature of these obligations and offering their services to assist you.

This bulletin provides you with an understanding of the scope of these new obligations, and how you can address these issues without necessarily engaging external HR service providers unfamiliar with your workplace:

1. Enlarging the scope of workplace health and safety: “Workplace Violence” and “Workplace harassment”

The amendments to the OHSA are aimed at managing the risk of incidents of “workplace violence” and “workplace harassment”. The new definitions for workplace violence and harassment add an additional layer of protection for employees.

Workplace violence now includes not only actual physical violence or the threat of physical violence but also verbal threats that could reasonably be interpreted as threats of physical violence. The current right of workers to refuse to work is extended to include instances where a worker reasonably believes that “workplace violence is likely to endanger himself or herself”.

The new definition for “workplace violence” is:

(a) the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker,
(b) an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,
(c) a statement or behaviour that is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

Further, the scope of the OHSA has been expanded to include employer obligations to deal with harassment at the workplace. The inclusion of “workplace harassment” in the OHSA is new, and expands on harassment as defined in the Human Rights Code, which must be rooted in a prohibited ground of discrimination. Aimed at “workplace bullying” and other forms of psychological abuse, if the experience of other jurisdictions with similar harassment provisions is any indication, employers should not fear a curtailment of their ability to manage the performance of their workers. However, employers do need to be aware that a new right to be protected from harassment in the workplace has been created for workers. Until the parameters of “workplace harassment” are defined, there may be a difficult transition period as workers test the limits of that right.

2. Protection from Domestic Violence Crossing over into the Workplace

A further protection from workplace violence is the additional protection from domestic violence crossing over in the workplace. Employers will also be obliged to protect workers from incidents of domestic violence crossing over into the workplace by taking “every precaution reasonable in the circumstances”. The obligation is triggered when the employer either becomes aware of or ought reasonably to be aware of the potential for domestic violence that could cause physical injury in the workplace.

There is no definition for what constitutes “domestic violence.”

3. Obligation to Provide Information v. Privacy Issues

We foresee difficulties arising from the balance between the employer’s obligation to provide information and the employer’s privacy obligations.

The obligation pertains to the obligation on the part of employers and supervisors to provide information, including personal information, to a worker about a person with a “history of violent behaviour” if:

• The worker could be expected to encounter that person in the course of his or her work; and
• The risk of workplace violence is likely to expose the worker to physical injury.

The employer is bound to disclose only personal information that is reasonably necessary to protect the worker from physical injury.

Note that this obligation is with respect to workplace violence only, and not workplace harassment.

The difficulties arise with respect to a lack of definition for “history of violent behaviour” and lack of clarity as to what type of information must be provided. There is no requirement that the person identified must have been criminally charged or convicted of “violent” behaviour. However, these difficulties can be managed by clearly explaining to employees what information might be provided and what will be considered a history of violent behaviour.

4. Managing the Risks

We have prepared below a highlight of the steps to be taken to comply with the changes to the OHSA, with some practical guidance tips:

4.1 Risk Assessments of Workplace Violence

The obligation for a risk assessment pertains to workplace violence only. Aimed at determining if your workplace is vulnerable to acts of violence, employers are required to assess the risk against the nature of the workplace, the type of work or the conditions of work, and to consider circumstances common to similar workplaces and the circumstances specific to the workplace.

There is no legal obligation with respect to risk assessment for workplace harassment. We suggest however that including workplace harassment in the risk assessment is a matter of best practice.

There is otherwise no guidance for how such an assessment needs to be done, and no requirement that the results of the assessment be in writing.

Practical guidance:

• Persons familiar with the workplace and its operations, and similar workplaces, should conduct the assessment. Keep a record of how the risk assessment was conducted. As a matter of best practice, the results of the risk assessment should be in writing.
• In conducting the assessment, review past incidents of violence and threatened violence both within your specific workplace and similar workplaces, taking into consideration the work performed and where it is performed. Remember that incidents of violence (or harassment) include not only those involving co-workers but also those involving other persons who may enter into the workplace.
• Consider industry reports regarding workplace violence in similar workplaces.
• Assess the risk of incidents arising from public access to your workplace.
• Assess current protections available: are there emergency security measures in place, such as security guards, discreet security alerts, security protocol and training respecting such protocol? Is there a process in place for incidents arising between co-workers?
• Obtain input from workers: you need not interview each of your employees, but management may not be aware of the potential for violence that employees face. Consider interviewing a cross-section of your employers or conducting voluntary surveys, or have the committee or health and safety representative assist in identifying the potential risks.
• Address the additional measures that might be put into place.

The results of the risk assessment have to be reported back to the joint health and safety committee or to a health and safety representative.

Re-assessments are required as often as is necessary to protect workers from workplace violence. We suggest that engaging the committee, or health and safety representative, or your workers in a dialogue will assist in determining when a re-assessment might be necessary. We recommend that re-assessments be conducted after any incident, as well as annually after your annual policies review.

4.2 Violence and Harassment Policies, Procedures, and Programs

Most of you have likely started the process of both developing written policies and procedures with respect to workplace violence and harassment, or are amending current ones that will take into account Bill 168 obligations, and the requirement to develop programs to implement these policies. You are also likely aware of your posting requirements and obligation to review these policies annually.

Essentially, the changes enlarge the scope of employer’s current obligations to “develop, maintain and post” programs implementing occupation health and safety policies.

Practical guidance with respect to policies:

• Employees must be able to understand these policies. Keep them simple.
• Provide examples of what would be considered a threat of physical violence and an incident of workplace harassment, and what would not. For instance, state that employer management of employee performance through performance improvement plans is not an issue of harassment.
• Provide for disciplinary measures to be taken, including termination for cause, in the event that an employee fails to comply with these policies.

Practical guidance with respect to programs:

• Send the message that both management and employees are responsible for maintaining a safe workplace, and that any kind of violence or harassment is not tolerated.
• The program with respect to workplace violence must incorporate risks identified in the risk assessment, and how you will control those risks, including how immediate assistance will be summoned in the event of an incident or threat of violence.
• The programs for workplace violence and harassment must provide employees with a specific procedure for reporting incidents of workplace violence, including threats of such violence, and workplace harassment, and how the employer will deal with such incidents and complaints. Outline protective measures for employees reporting violence and harassment.
• Include procedures for employee reporting of potential risks for violence or harassment not only where they are personally involved but where a co-worker might be at risk, and detail how you will deal with such risks.
• Create an onus on the part of the joint health and safety committee or the health and safety representative, or where you do not have either, your employees, to report to you new risks of violence in order to assist you in determining if a risk re-assessment is necessary.
• As a matter of best practice and to minimize the risk of exposure to breach of privacy rights, highlight your obligation to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour, and that this might mean you are legally obliged to disclose personal information that would otherwise be protected by privacy laws. Include a list of what information might be provided and what constitutes a “history of violent behaviour”.
• Include procedures that a worker should take when refusing to work because workplace violence is likely to endanger the worker, and how you will deal with ensuring the safety of the worker pending an investigation.

• As part of the implementation, employers are obliged to provide “information and instruction that is appropriate to the worker” on the contents of the policy and program regarding workplace violence and harassment.
• Merely providing the policies to the employees in writing is not sufficient to satisfy the requirement of providing “instruction”. Specific training and information sessions are required. You must provide that information and instruction in the majority language of the workplace. As a matter of best practice, consider the use of other languages if a large number of your employees are not fluent in English, even if they do not form a majority.
• As a matter of best practice, time annual meetings with employees for training and information sessions, grouped in accordance with the work performed and workplace, so they follow the compulsory annual review of the policies.

5. Conclusion

Once your legal obligations are understood, the new obligations implemented by Bill 168 to the OHSA become less daunting. Bill 168 puts the onus on employers to consider issues of workplace violence and harassment, and to put in place measures that will protect workers against those risks. Once these initial measures are in place, it is a simple matter of (a) reviewing the policies and procedures annually in order to ensure that you are up to date, and to provide training and information to employees accordingly; and (b) re-assessing the risk of workplace violence whenever necessary. Compliance is not complicated, once you understand the actual scope of the legal obligations.

Originally appeared in Lang Michener LLP InBrief, and Monster.ca
Author: Lai-King Hum
Fall 2008

Employers are increasingly under a plethora of obligations vis-a-vis the well-being of their employees. These obligations must be balanced against their obligations towards you, the employee against whom a complaint has been made.

For instance, you have just received a letter from your superior stating that a co-worker has accused you of sexual harassment. An investigation is about to be conducted, and a preliminary meeting has been scheduled. You know that the complaint is frivolous and are angry that your co-worker has complained. As you are hauled into your superior’s office to undergo what may be unpleasant questioning, bear in mind that most employers understand that they are under a legal obligation to conduct these investigations with an open mind.

A complaint of sexual harassment is serious and could be cause for dismissal without notice. So are allegations of discrimination, criminal activity, theft, and bullying. On the other hand, you may have a legitimate explanation that nullifies the complaint.

Bear in mind the following if you are under investigation at work:

Look at your employer’s HR policies:

Most employers have policies in place regarding workplace complaints and investigations. Courts have held that employers are bound by employment policies relating to the conduct of investigations and disciplinary matters. Read the policies as soon as you are told that an investigation is being conducted. Be familiar with the process that your employer has committed to following and make sure that the process is in fact followed. If it is not, bring it to your employer’s attention.

Consult a lawyer:

An investigation is not a legal proceeding. You therefore don’t have a right to have your lawyer present during the course of an investigation. However, consulting a lawyer about your legal rights, particularly if the complaint is a serious one, is prudent and will help you understand the appropriate scope of an investigation.

Cooperate with the investigation:

Whether you like it or not, you are under an obligation to cooperate with your employer during the investigation. Failure to do so could be raised as a breach of the employer/employee relationship. At the same time, you are also entitled to be investigated by an unbiased investigator. If you suspect that the investigator is not a neutral third party, or that the investigator has already decided the outcome, raise this concern with your employer immediately.

Disclose underlying issues:

If you have underlying issues that may be affecting your work, such as substance abuse or mental health issues that might be characterized as an illness, you may wish to disclose them during the investigation. Where there are genuine health issues, the employer has an obligation to accommodate your illness. Although this may not justify behaviour that affects others in the workplace, it will be a factor in determining that a result other than termination for cause is appropriate. Ask questions:

The investigator is obliged to provide you with details of the complaint made against you. You are entitled to know what the complaint against you is, so get as many details as you can before you respond to the complaint.

Do not lie:

You have to respond to the investigation. You may have a legitimate explanation for the conduct complained about or the complaint may be simply frivolous. However, if it is not, do not lie. Deliberate dishonesty during the course of an investigation will provide your employer with grounds to terminate you for cause. Witnesses:

Consider who your witnesses might be and be ready to produce their names to the investigator. Most investigations are subject to confidentiality: do not try to influence your witnesses or to prevent other witnesses from coming forward with information against you.

Retaliation:

The name of the person who has complained will be disclosed to you as part of the investigation. Do not engage in any conduct that might be viewed as retaliatory. This will add fuel to the complaint against you, and could be additional grounds for cause.

Results of investigation:

An employer has an obligation to conduct a full and thorough investigation before reaching conclusions about the complaint. You are entitled to know the findings of an investigation. You should also be afforded an opportunity to get advice and consider the findings.

If there is no legitimacy to the complaint against you, a properly conducted investigation will clear you. If the investigation has been conducted in a biased or incompetent manner, and you are terminated unjustly, then you may have a case for wrongful dismissal and punitive damages for the manner in which the investigation was conducted. Consult a lawyer.