What about a unionized employee bringing a complaint to the Human Rights Tribunal of Ontario?11/8/2022 The Human Rights Tribunal of Ontario (HRTO) recently released a decision that helps answer such questions. In October 2021, the Supreme Court of Canada made a decision in Northern Regional Health Authority v. Horrocks that ruled that an adjudicator appointed under the Manitoba Human Rights Code did not have jurisdiction to hear a complaint of discrimination of a unionized employee on the basis that disputes concerning the termination of a unionized worker lie within the exclusive jurisdiction of a labour arbitrator, including alleged human rights violations. This Horrocks decision, however, applied to Manitoba’s Human Rights Code, and the Manitoba Human Rights Code and the Ontario Human Rights Code are different. The HRTO recently addressed the question of whether Horrocks applies in Ontario and whether the HRTO has jurisdiction to hear human rights complaints of unionized employees. Weilgosh v. London District Catholic School Board, released in October 2022, applied the two-step analysis set out in the Horrocks decision. In short, the HRTO ruled that it does have jurisdiction to decide claims of discrimination and harassment falling within the scope of a collective agreement of a unionized worker.  Weilgosh applied Horrock’s two-step test used to resolve jurisdictional questions between labour arbitrators and competing statutory tribunals. “First, the relevant legislation must be examined to determine whether it grants the arbitrator exclusive jurisdiction and, if so, over what matters… Where the legislation includes a mandatory dispute resolution clause, an arbitrator under that clause has the exclusive jurisdiction to decide all disputes arising from the collective agreement, subject to clearly expressed legislative intent to the contrary.”
If the first step determines that the legislation grants the labour arbitrator exclusive jurisdiction, the next step is to determine whether the dispute falls within the scope of that jurisdiction. In Weilgosh, the HRTO decided that the Ontario Human Rights Code demonstrates a clear legislative intent to expressly displace a labour arbitrator’s exclusive jurisdiction. As such, the HRTO has concurrent jurisdiction to decide claims of discrimination and harassment falling within the scope of a collective agreement in Ontario. The Supreme Court in Horrocks discussed two possible scenarios where the competing statute demonstrates an intention to displace the labour arbitrator’s exclusive jurisdiction: (i) when the legislation enacts a ‘complete code’ that confers exclusive jurisdiction over certain types of disputes on a competing tribunal, or (ii) when the legislation endows a competing tribunal with concurrent jurisdiction. Horrocks found that Manitoba’s Human Rights Code did not carve out concurrent jurisdiction for human rights adjudicators under that statute. The adjudicators in Weilgosh examined the Ontario legislation and agreed that the broad language used in Ontario’s Human Rights Code signals a legislative intent that the HRTO maintains concurrent jurisdiction over human rights complaints. “The broad discretion provided to Tribunal decision-makers indicates a positive expression of the Legislature to maintain concurrent jurisdiction, thereby displacing labour arbitration as the sole forum for disputes arising from a collective agreement.” In other words, a unionized employee in Ontario can choose whether they want to bring their human rights complaint to an arbitrator under the collective agreement or to the Human Rights Tribunal of Ontario. The HRTO has found a clear legislative intent to be endowed with concurrent jurisdiction on claims of discrimination and harassment under the Ontario Human Rights Code. Multiple factors are important when a worker, whether unionized or non-unionized, has a human rights complaint. If you are a worker in Ontario and have a human rights complaint, you may be advised to speak promptly with a lawyer or licensed paralegal who handles human rights tribunal matters in order to know more about your options.
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 Amendments to the Occupiers’ Liability Act came into effect on January 29, 2021. As of this date, the law requires that a person injured on private property because of ice or snow and negligence must provide written notice to the property owner, an occupier, or the snow removal contractor within 60 days. This written notice needs to specify the date, time, and location of the incident, and needs to be served personally or by registered mail.
When an occupier receives such notice, the occupier must provide written notice to other occupiers of the premises during the relevant period and any relevant independent contractor employed by the occupier to remove snow and ice. Likewise, when a snow removal contractor receives notice from a complainant, the contractor must provide written notice to the occupier that employed their snow removal business. Exceptions to the requirement to give notice within 60 days are outlined in the legislation. For example, failure of a plaintiff to provide written notice or insufficiency of the notice is not a bar to the legal action if a judge finds that there is reasonable excuse for the want or insufficiency of the notice and the defendant is not prejudiced in their defence. This amendment to occupiers’ liability law does not change the need to give written notice to a city. A person injured because of snow or ice on city or municipal property in Ontario is still required to provide written notice to the city or municipality within 10 days. Contact a lawyer or paralegal if you have questions about an injury and the Occupiers’ Liability Act. COVID-19 raises multiple questions about health, safety, and employment law. The answers to many of these questions are highly fact dependent and the law around these issues is subject to change. Both employers and employees have numerous duties and rights under the law. In Ontario, an employer has a general obligation under s. 25(2)(h) of the Occupational Health and Safety Act to “take every precaution reasonable in the circumstances for the protection of a worker.” Reasonable precautions may include encouraging hygiene such as washing hands thoroughly, encouraging employees to not attend the workplace when sick, and informing employees of leave policies.  Part V of the Occupational Health and Safety Act is about a worker refusing dangerous work. According to Section 43(3)(b): “A worker may refuse to work or do particular work where he or she has reason to believe that… the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself.” Numerous critical professions, including doctors, nurses, firefighters, correctional officers, and the police, may be exempted from this provision of the Act; however, in general employees coming into contact with a genuine danger in the workplace, or who fear that they may come in contact with it, may decide to seek to exercise their right to refuse work under s. 43(3)(b) of the Act. The work refusal starts when the employee notifies the employer of the danger. The law prohibits an employer from punishing or threatening discipline upon an employee who reasonably refuses work that is or may be dangerous. Section 66 of the Act states that an employer who contravenes this law may be forced to pay a monetary penalty. Section 50 of the Employment Standards Act of Ontario provides that an employee is entitled to unpaid leave of absence. “An employee who has been employed by an employer for at least two consecutive weeks is entitled to a leave of absence without pay because of a personal illness, injury or medical emergency.” At the time of this writing, employees of provincially regulated industries have rights to three unpaid sick days per year. Most employees in Ontario work in provincially regulated employment, but employees of federally regulated industries, such as banking and airlines, are entitled to a minimum of five sick days per year. Federally regulated employees with more than three months of service are entitled to three paid sick days per year, under current minimum employment standards. Section 50(3) and (4) of the Employment Standards Act of Ontario is about communication. An employee who wishes to take leave under section 50 of the Act must advise their employer that they will be doing so, or as soon as reasonably possible after beginning the leave. Section 50(6) generally allows an employer to require the employee to demonstrate proof, such as with a medical note. These provisions under the Employment Standards Act, however, may be changed with new legislation from government. For example, the provincial government of Ontario recently announced that it intends to introduce legislation that allows job-protected leave to employees in isolation or quarantine due to COVID-19 or those that need to be away from work to care for children because of school or day care closures; medical notes may not be needed by the employers if they take sick leave for COVID-19. Furthermore, employees may be entitled to additional sick days, with or without pay, under a collective bargaining agreement, workplace policies, or employment contract. The Ontario Human Rights Code protects people in Ontario in certain social areas such as employment from discrimination based on the protected grounds of the Code, including gender, race, ethnicity, country of origin, sexual orientation, disability, and family status. The Human Rights Tribunal of Ontario has interpreted the Code to mean that an employer has a duty to accommodate the child care needs of an employee up to the point of undue hardship. Undue hardship varies depending on the size and capabilities of the employer, and the child care needs of the family should not be mistaken with mere preferences. Further, an employee in such a case has a duty to try multiple alternatives and efforts in order to avoid missing their employment, and may need to demonstrate proof of such efforts in the event of a dispute over the matter. An employee likewise has a duty to cooperate in the accommodation process with their employer and may need to even compromise in view of the employer’s needs. Section 10 of the Ontario Human Rights Code defines disability as “any degree of physical disability, infirmity… illness”. The Code requires that accommodation up to the point of undue hardship need be provided in response to an employee's valid request for accommodation on the basis of disability. On March 13 of 2020, the Ontario Human Rights Commission released a policy statement on COVID-19 wherein it suggested that a COVID-19 illness may be under the protected ground of disability. The Commission stated: “The OHRC’s policy position is that negative treatment of employees who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, is discriminatory and prohibited under the Code. Employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety.” The Ontario Human Rights Commission does not determine how the Ontario Human Rights Tribunal decides on individual cases and interprets the Code, but the Tribunal can be required to consider the policies of the Commission during decision making. Information about employment law is subject to change and dependent upon ongoing developments. How legislation, policy, and the decisions of courts and tribunals affect your context is very dependent on the specific facts of your particular situation, and whether your workplace is unionized or has an employment contract. These paragraphs are informational only and do not constitute legal advice. If you are an employee or an employer and have questions related to COVID-19 and your rights and duties, before taking any action it may be suggested to you to seek legal advice or representation promptly. Despite widespread uncertainty during these times, the current challenges are a strong reminder of the need to invest in and support social services such as health care and education, and have acceptable minimum employment standards in Ontario and across Canada. References:
Occupational Health and Safety Act, http://canlii.ca/t/54487 Employment Standards Act, https://www.ontario.ca/laws/statute/00e41#BK99 Ontario Human Rights Code, https://www.ontario.ca/laws/statute/90h19#BK12 OHRC policy statement on the COVID-19 pandemic, http://www.ohrc.on.ca/en/news_centre/ohrc-policy-statement-covid-19-pandemic Government of Ontario, https://www.ontario.ca/document/your-guide-employment-standards-act-0/sick-leave A Book Review of Leah Lakshmi Piepzna-Samarasinha’s Care Work: Dreaming of Disability Justice4/5/2019  Care Work (2018) is a remarkable treasure. Combining narrative with critique, it presents an illuminating vision of disability justice by activist educator Leah Lakshmi Piepzna-Samarasinha.
Human rights are violated when people are discriminated against on the basis of disability or perceived disability. Leah calls for the elimination of this discrimination while also calling for the acknowledgement that disability affects different people in different ways in relation to factors such as race, gender, class, gender expression, and relations to colonization. Self-identifying as a queer, disabled, femme writer and artist of Burgher/Tamil and Irish/Roma ascent, Leah shares in this book vital lived experience and knowledge in order to confront oppressive relations such White supremacy and to remind us to imagine possible futures and turn dreams into action and liberation. Care Work builds upon what activists such as Patty Berne and Sins Invalid addressed as the Ten Principles of Disability Justice. The first of these principles is about intersectionality, which is about how all people carry out multiple identities, how each of these identities can be a site of privilege or oppression, and how understanding disability experience is shaped by factors such as race, gender, class, gender expression, and colonization. Additional principles of disability justice are about promoting leadership of the most affected, challenging capitalism, recognizing the dignity of people and interdependence, and building solidarity and sustainability. In addition to vivid narrative about creating collective access, building care webs, using social media, and boycotting inaccessible events, a vital contribution of Care Work is to add to discussions about emotional intelligence. Leah emphasizes that to have emotional intelligence is to ask and not assume, to give others the benefit of the doubt, to understand isolation, and to not take everything personally. Their emphasis is also to share resources and to show up, to not shame people and to not offer miracle cures, to understand difficulty, and to ask to help, offer help, and keep offering. Care Work is a complex text with high aspirations. A reoccurring theme is about collective care. In the words of Leah, “It’s not about self-care - it’s about collective care.” The book advances a much needed vision of community and cooperation based on working together and caring together. In contrast to the dominance of forms of extreme selfishness and cruelty, Care Work presents multiple lessons that many would benefit greatly from. The book can be obtained via http://brownstargirl.org/care-work-dreaming-disability-justice/ Leah Lakshmi Piepzna-Samarasinha. (2018). Care Work: Dreaming Disability Justice. Vancouver: Arsenal Pulp Press.  Paralegals licensed by the Law Society of Ontario are bound by a code of professional ethics. Rule 3 of the Paralegal Rules of Conduct requires that a paralegal holds all information concerning the business and affairs of a client in strict confidence. Although some exceptions to this rule allow for limited disclosure in certain circumstances, the emphasis is on maintaining confidentiality and trust. Rule 3.03(9) maintains that even when disclosure of client information is permitted or justified, the paralegal shall not disclose more information than is necessary. This duty of confidentiality continues even after the paralegal has ceased to act for the client.
A paralegal’s duty of confidentiality is further addressed in the Paralegal Professional Conduct Guidelines. Guideline 8 comments that: “A paralegal cannot render effective professional service to a client, unless there is full and unreserved communication between them. The client must feel completely secure that all matters discussed with the paralegal will be held in strict confidence. The client is entitled to proceed on this basis, without any express request or stipulation.” This commentary emphasizes the importance of trust in these relationships. Rule 3 of the Paralegal Rules of Conduct and Guideline 8 noted above are virtually identical to what is in the lawyer rules of professional conduct. The commentary in the lawyer rules also addresses the issue of privilege. “This rule [of confidentiality],” according to the lawyer rules, “must be distinguished from the evidentiary rule of lawyer and client privilege, which is also a constitutionally protected right, concerning oral and documentary communications passing between the client and the lawyer. The ethical rule is wider and applies without regard to the nature or source of the information or the fact that others may share the knowledge.” In other words, the ethical rule of confidentiality is broader than the evidentiary rule of privilege. Privilege with respect to confidential information belongs to neither the lawyer nor the paralegal. The privilege is that of the client. Chancey v Dharmadi (2007) is a case where a plaintiff in a motor vehicle injury claim brought a motion in the Ontario Superior Court of Justice to have a paralegal who defended the Highway Traffic Act charge produce their file. During discovery, the plaintiff insisted the paralegal hand over the HTA file. The paralegal refused. The court dismissed the plaintiff’s motion. As described by Master Dash, who was presiding over the matter: “The communications between the client and paralegal, in the circumstances of this case, have satisfied all of the elements of the Wigmore test and in my view those communications are privileged and should be protected from disclosure.” The plaintiff was ordered to pay the defendant costs of the motion fixed in the sum of $2,100. There are times to speak out, and times to act, but there are also times to refuse. References: Paralegal Rules of Conduct. Retrieved March 8, 2019 from https://lso.ca/about-lso/legislation-rules/paralegal-rules-of-conduct/complete-paralegal-rules-of-conduct Paralegal Professional Conduct Guidelines. Retrieved March 8, 2019 from https://lso.ca/about-lso/legislation-rules/paralegal-professional-conduct-guidelines Rules of Professional Conduct. Retrieved March 8, 2019 from https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/complete-rules-of-professional-conduct Chancey v Dharmadi, 2007 CanLII 28332. Retrieved March 8, 2019 from http://canlii.ca/t/1s60z  Housing is a human right. According to Article 25 of the Universal Declaration of Human Rights, “Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services…”
In Ontario, the Human Rights Code of Ontario explicitly prohibits discrimination in the social area of housing. Section 2 states that, “Every person has a right to equal treatment with respect to occupancy of accommodation, 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, disability or the receipt of public assistance.” For example, a landlord must not refuse a rental property to a person because of their sexual orientation, the colour of their skin, their ethnicity, or their place of origin. Complaints of discrimination in the social area of housing can be brought to the Landlord Tenant Board or the Human Rights Tribunal of Ontario. Deciding on whether to bring a complaint of discrimination during housing to the Landlord Tenant Board or the Human Rights Tribunal on Ontario, or another forum, depends on multiple factors. The Human Rights Tribunal of Ontario has heard complaints of refusal to rent because of a protected ground. In Thomas v Haque, 2016 HRTO 1012, a landlord refused to show an apartment to a person because of the place of origin of the person. The Human Rights Tribunal found that the landlord's refusal was discriminatory. The landlord was ordered to pay the person $10,000 within 30 days, and participate in Human Rights training. The Human Rights Tribunal of Ontario also hears complaints of refusal to rent because of age. In BA v Havcare Investments Inc., 2014 HRTO 1087, the Tribunal agreed that the landlord had discriminated against a prospective tenant, a 17 year old, on the basis of age. The landlord was ordered to pay $10,000 in compensation. Landlords may also be prohibited from requesting information about the age of co-occupants of a prospective tenant. St. Hill v VRM Investments Ltd., 2004 HRTO 1 was about a person who was searching for a tenancy for herself and daughter. The landlord asked about the age of the daughter. The Human Rights Tribunal agreed that the landlord had discriminated against the mother and ordered the landlord to pay $5,000 for general damages, plus $1,230 in monetary damages for extra transportation costs, extra food costs, and a deposit not returned, for a total of $6,230. Section 2 of the Ontario Human Rights Code further clarifies that every tenant has a right to be free from harassment by the landlord or agent of the landlord, and the Residential Tenancies Act sets out additional rights, protections, and responsibilities of tenants and landlords.  The Ontario Human Rights Code defines harassment as "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome." Harassment based on race, ancestry, pace of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, martial status, family status, or disability is a violation of the Code.
The courts and tribunals, in Gregory v Parkbridge Lifestyle Communities Inc. (2011) for example, describe that in some circumstances a single, serious incident will meet the definition of harassment. The Code explicitly addresses harassment in accommodation, harassment in employment, and sexual harassment. In Granes v 2389193 Ontario Inc. (2016), the applicant experienced sexual harassment when one of the owners of the restaurant where she worked as a server subjected her to a series of inappropriate comments and touching/groping. The Tribunal ordered the respondents to pay $20,000 to the applicant as monetary compensation for injury to her dignity, feelings and self-respect, and about $9,440 in lost wages. Plus, the personal respondent had to complete Human Rights Training and the employer had to develop a policy for dealing with complaints of harassment and discrimination. In Prothero v Ontario (Ministry of Community Safety and Correctional Services) (2016), the applicant experienced harassment when his employer sent him an unnecessarily high number of letters immediately upon the commencement of a leave related to disability. The Tribunal ordered the personal respondent in the matter to pay $2,500 and the employer respondent to pay $25,000, in addition to Human Rights training. Harassment is offensive because it is demeaning and an assault on the dignity of people. Both employers and employees have responsibilities to stop harassment and eliminate it. The Ontario Paralegal Association newsletter published a short article I wrote about professionalism, climate change and environmentally sustainable practices. Thank you OPA.  Read the full article at https://www.opaonline.ca/uploads/1541121561_2018-11-01%20-%20Today's%20Paralegal.pdf
 Both the Ontario Human Rights Code and the Canadian Human Rights Act protect people from forms of discrimination such as sexism, racism, and harmful stereotypes.
As a result of the constitutional division of powers, the Ontario Human Rights Code generally applies to entities regulated by provincial law, such as school boards, hospitals, and most businesses. The Code does not apply to federally regulated entities, such as airlines and banks, even when these entities operate within the Province of Ontario. In general, the Canadian Human Rights Act has jurisdiction over complaints about discrimination involving federally regulated entities. In some cases, jurisdiction is clearly defined. For example, Tyrrell v Royal Bank of Canada, 2014 HRTO 1134 maintained that the Ontario Human Rights Tribunal, which hears complaints of a violation of the Ontario Code, does not have jurisdiction over banks, as they are federally regulated. Likewise, Voss v Garda Canada Security Corporation, 2013 HRTO 188 held that the work of airport security officers, and their supervisors, falls under federal jurisdiction. In other complaints, whether the Ontario Human Rights Tribunal has jurisdiction may be less clear. In Raiche v Pic Mobert First Nation, 2014 HRTO 1271, the Tribunal decided that depending on the activities of a First Nations organization, the case may fall within provincial jurisdiction or may fall within federal jurisdiction. In Tobin v Aroland First Nations, 2012 HRTO 2360, [2012] OHRTD No. 2318, the Tribunal decided that an application pertaining to the provision of education on First Nations fell under federal jurisdiction, and therefore outside the scope of the Ontario Human Rights Tribunal. If you have experienced discrimination in a social area such as employment, contracts, housing, membership in an association, or services, goods, or facilities, it is suggested to immediately contact a lawyer or paralegal who has Human Rights as an area of practice. Your rights matter, and you have options. Does the Ontario Human Rights Code apply to employees and employers during a probationary period?9/28/2018  Employment contracts in Ontario typically include a clause about a probation period lasting three months. Such a clause explains that the employer does not owe the employee any notice of termination or pay in lieu of notice before 90 days. In general, under the Ontario Employment Standards Act employers do not have an obligation to provide notice or pay in lieu of notice before 90 days of employment. This provincial legislation sets minimum standards of employment law, such as 1 week of notice or pay in lieu of notice for employees who worked between 3 to 12 months for an employer.
The probationary period of a contract may allow an employer to terminate a new employee without notice and without pay in lieu, but it does not waive responsibilities set out by the Ontario Human Rights Code. In Brillinger and Edery, 2016 HRTO 1450, an applicant was fired from her job during a probationary period after an absence caused by her disability. During her third month of employment she had suffered a serious concussion. The Tribunal found that her disability was a factor in the employer’s decision to terminate her, and ordered the employer to pay her $10,000.00 as compensation for damage to dignity, feelings, and self-respect. Lane v ADGA Group Consultants Inc., 2007 HRTO 34 is another case about a new employee under probation. He was fired after only 8 days of work for reasons related to a mental disability, so the Tribunal ordered the employer to pay the worker $35,000.00 for discrimination, $10,000.00 for causing mental anguish, and $34,278.75 in lost wages. Plus, the employer had to hire training for all its employees, supervisors, and managers, and develop and post a written anti-discrimination policy. In such cases, probation was not a defence to the claim of discrimination and the Tribunal ordered remedies requested by the applicants. |
AuthorJonathan Lambert, 
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