May 17, 2013
Gerald D. Chipeur

The Harper Administration has made transparency its theme since assuming office in 2006.  First, it brought in the Federal Accountability Act, S.C. 2006, c. 9, to make transparent all communication to the Federal Government, where a fee is charged for such communication.  Secret lobbying for pay was made illegal.

Then, on December 5, 2011, Russ Hiebert, M.P. succeeded in having Parliament advance his private member’s bill (C-377) requiring the financial records of labour unions to be disclosed to both members of labour unions and members of the public.  The House of Commons passed Bill C-377 on December 12, 2012 and the Bill is currently at second reading in the Senate.  On May 9, 2013 the Senate Banking Committee commenced hearings on Bill C?377.

First Nations’ transparency was the next focus for the Parliament of Canada.  On March 27, 2013 the First Nations Financial Transparency Act, S.C. 2013, c. 7, (“Act”) received Royal Assent.  Sixteen months were expended debating the legislation after it was introduced for first reading by the Minister of Aboriginal Affairs and Northern Development (“Minister”) on November 23, 2011.

The Act establishes three significant financial reporting requirements for First Nations:

1. Audited financial statements must be prepared by First Nations and made available to the Minister, to First Nations members and to the public (see sections 5 and 7 of the Act);
2. A schedule of remuneration must be prepared each year that includes details of any “salaries, wages, commissions, bonuses, fees, honoraria, dividends and reimbursement of expenses … and any other monetary benefits and non-monetary benefits” and must be audited and made available in the same manner as the financial statements (see sections 2 and 6 of the Act);
3. The First Nations and the Minister must each independently place the financial statements and the schedule of remuneration on their respective internet sites (see sections 8 and 9 of the Act);

As well, the Act creates two significant enforcement procedures:

1. Any person, including a First Nations’ member and the Minister, may obtain a court order (with enforcement through the contempt powers of the Court) against a First Nation (see sections 10 and 11 of the Act) where there is non-compliance with the Act;
2. The Minister may utilize administrative measures to enforce the Act, including withholding funds due to a First Nation or termination of an agreement that provides Federal funding to a First Nation.

In conclusion, it is important to note that the Act applies to financial statements and schedules of remuneration for financial periods commencing after March 27, 2013.  This means that many First Nations are almost immediately impacted by the Act.  All First Nations with a fiscal period commencing on April 1, 2013 must file financial statements and schedules of remuneration within 120 days after March 31, 2014, in accordance with the Act.

April 5, 2013
Carol S. VandenHoek

In the face of competing views regarding the proper approach in establishing discrimination on the basis of family status, employers are faced with uncertainty in relation to their obligations. These murky waters are likely to continue for some time until the issue makes it way through appeals.

In the decision of the Federal Court in Attorney General of Canada v. Johnstone[1], Ms. Johnstone alleged that her employer had engaged in a discriminatory employment practice in relation to a request for fixed shifts to address childcare demands. The Canadian Human Rights Tribunal agreed with Ms. Johnstone. On application for judicial review, the Federal Court upheld the finding of the Tribunal that parental childcare obligations come within the scope and meaning of ‘family status’ in the Canadian Human Rights Code. The Court upheld the decision of the Tribunal that the employer had discriminated against Ms. Johnstone on the basis of family status. The Federal Court determined that the Tribunal erred in part regarding the compensation and policy awards and referred that matter back to the Tribunal.

Will this decision open the floodgates to requests for accommodation based on childcare obligations? The Federal Court confirmed that childcare obligations must be of substance and the complainant must have tried to reconcile the competing family and work obligations. Of note, the Court addressed that the employment rule, policy or condition must interfere with the employee’s ability to meet a substantial parental obligation in “any realistic way.” The Federal Court adopted the threshold seen in the Supreme Court of Canada in Amselem,[2] where the Court ruled that religious freedom is interfered with where the person demonstrates that he or she has a sincere religious belief interfered with in a non-trivial or not insubstantial manner. This is equated to “a substantial parental duty or obligation”. This language provides hope that some balance and common sense will be brought to bear on the issue.

The application of the employer’s unwritten and blanket policy was criticized. The treatment of those seeking accommodation for childcare was contrasted with the individualized assessment provided for those employees seeking medical or religious accommodations with the employer.

April 1, 2013
Gerald D. Chipeur

On November 29, 2012, the Supreme Court of Canada accepted the arguments of Miller Thomson partner Kent Davidson and reinstated a decision of the Alberta Labour Relations Board. In so doing, the Supreme Court underscored the deference that appellate courts are prepared to afford administrative bodies.

The case was Construction Labour Relations – An Alberta Association v. Driver Iron Inc., 2012 SCC 65. It involved an appeal from an Alberta Relations Board decision interpreting section 176 and 178 of the Alberta Labour Relations Code.

The Alberta Labour Board’s decision was upheld on an initial judicial review by the Court of Queen’s Bench of Alberta. An appeal to the Court of Appeal of Alberta was allowed and the Board’s decision was quashed. Leave to appeal was secured by Construction Labour Relations, An Alberta Labour Association and an appeal to Canada’s highest court proceeded.

Both the argument and the Supreme Court of Canada’s decision were direct and to the point. They emphasized four now well settled principles of law:

1. labour tribunal decisions are due deference by the courts, including the Supreme Court of Canada;

2. an administrative tribunal does not need to consider and comment upon every issue raised by the parties in the tribunal’s reasons for decision;

3. when interpreting a labour statute, a labour tribunal need not explicitly address in writing all possible shades of meaning of the statute;

4. the fundamental issue for consideration by a reviewing court is whether the tribunal’s decision, viewed as a whole in the context of the record, is within the realm of reasonable outcomes.

The reasons for decision allowing the appeal were brief and unequivocal. The Supreme Court took just four paragraphs on one page to make the point that appeal courts must show restraint and give deference to administrative tribunals. The message is clear: courts are only to intervene where satisfied that the decision of an administrative decision maker is beyond reason. That alternative reasonable conclusions might also be drawn will not justify interference by a reviewing court.

March 25, 2013

The new Saskatchewan Employment Act promises to be a “game changer” in Saskatchewan labour and employment law. The SEA, which was introduced to the legislature in December, 2012, is a consolidation of twelve provincial labour and employment statutes into a single statute. In total, it serves to repeal or amend 33 separate pieces of legislation.

The changes that will be effected with the enacting of the proposed SEA touch on a wide range of areas, including employment standards, occupational health and safety, appeals, and labour relations. Highlights of the new legislation include (from the provincial government’s news release):

• The Minimum Wage Board will be dissolved, and minimum wage will now be indexed to inflation;
• Unions will be required to provide audited financial statements and the results of votes to their members;
• While maintaining the 40 hour work week, two work arrangements will be permitted in the legislation - eight hours per day for five days per week or 10 hours per day for four days per week. This is consistent with other jurisdictions in Western Canada;
• Introduction of two new leave provisions – for organ donation and attendance at citizenship ceremonies;
• Clarification of the definition of employee for labour relations purposes to exclude those employees whose duties are confidential or managerial;
• A definition of supervisory employee that would restrict a supervisor from belonging to the same bargaining unit as those they supervise;
• The ability of employers or employees to decertify a union that has been inactive for three or more years;
• Following an unsuccessful application to decertify a union, employees can apply to decertify the union again after waiting 12 months;
• Limitation of the ability of a union to fine a member for crossing a picket line, to be consistent with other Canadian jurisdictions;
• Reduction of the qualification period for maternity, parental and adoption leave from 20 weeks to 13 weeks of service;
• Recognition that no individual or group may be compensated differently on the grounds of any prohibition identified within The Saskatchewan Human Rights Code;
• Establishment of a single avenue for appealing a decision on an occupational health and safety or employment standards matter; and
• Appeals of adjudicator decisions to the Labour Relations Board with a final appeal to the Court of Appeal.

Predictably, reaction to the new legislation has been mixed. The government has stated that it “creates a fair, balanced, competitive and growth-oriented employment environment that reflects current and best practices”, while union leaders have said that “many of the proposals…represent a step backwards for workers’ rights” and “there is simply too much that’s been changed far too quickly”.

The SEA will undoubtedly be the subject of hot debate in the current session of the Legislature.

March 20, 2013
Marie-Pier Côté

In a rather surprising decision[1], Québec arbitrator Jean Ménard admitted after acquired cause as evidence to justify an initial disciplinary measure.

In this case, two employees had an altercation on the workplace premises concerning the affairs of a local Union. The altercation was instigated and heated by Mr. Hogue, who told Mr. Vadnais “If I did not restrain myself, I would punch you in the face. I am not going to get you here, but I will get you outside” (our translation).

Because of the incident, Mr. Hogue received a 5 day suspension, to which he responded with a grievance.

Some time after the suspension was imposed, the griever was elected president of the local Union at a general assembly. During this same assembly, he told Mr. Vadnais he would not help him should he have difficulties with the employer. Moreover, and shortly after the assembly, the griever warned the employer’s HR Director that Mr. Vadnais would be evicted from the Union if he came and testified before the arbitrator.

The arbitrator was required to decide whether events subsequent to a disciplinary measure can be admitted to evaluate the reasonableness of such measure.

In this case, he found that the above incidents were relevant as they helped clarifying whether the measure taken by the employer was reasonable and appropriate at the time it was imposed. Not only did the subsequent incidents constitute a repetition or continuation of the threats plaintiff initially directed towards the employee, but they helped appreciating Mr. Hogue’s credibility.

The arbitrator admitted the subsequent events as evidence and refused to intervene to alleviate the disciplinary measure imposed upon Mr. Hogue.

Interestingly, this case may be seen to broaden the strict standard established by the Supreme Court of Canada in 1995[2], whereby “ an arbitrator can rely on such evidence, but only where it is relevant to the issue before him. In other words, such evidence will only be admissible if it helps to shed light on the reasonableness and appropriateness of the dismissal under review at the time that it was implemented”.

January 30, 2013
Erik Marshall

News reports of the scourge of bed bugs infiltrating the City of Toronto abound. Fear mounts as we learn more about how bed bugs are known to “hitch-hike” on peoples’ clothing as they move throughout public spaces, increasing the likelihood of bed bug relocation. Not surprisingly, many of those affected by bed bug infestations have reported feeling stigmatized as a result. The bed bug issue has now been brought before the Human Rights Tribunal of Ontario.

In Craster v. Hearthstone Communities Services Ltd., the Applicant alleged, among other things, that he was discriminated against with respect to housing and contracts on the basis of disability. One of the alleged disabilities related to an infestation of bed bugs in the Applicant’s condominium unit and his allegations that he was treated unfairly as a result of the infestation. The Respondents in the case were the owner of the condominium complex in which the Applicant lived, the property management company providing services for the condominium complex, and the company which owned and managed the club occupying two units in the condominium complex which included facilities such as the dining room, health and wellness centre, library, pool and fitness facility (i.e., common areas) used by residents of the condominium complex.

The Respondents had duct taped the outside of the Applicant’s unit to prevent the spread of infestation, a sign was posted on the Applicant’s door, and he was barred from accessing the common facilities, among other things. There was also an allegation that a representative for the club instructed a nurse visiting the Applicant (for a disability unrelated to the bed bug infestation) not to go into the unit because of the bed bug infestation. A summary hearing was held to determine whether the Application should be dismissed on the basis that there was no reasonable prospect that it would succeed.

With respect to the bed bug allegations, the Tribunal held that:

In my view, the fact that an otherwise healthy person (or, as in the applicant’s case, a person with a disability unrelated to the bed bug infestation) may have the potential to spread a bed bug infestation in her or his home by transporting bed bugs on her or his clothes or possessions to another location is not a basis upon which that person can properly be regarded as having a “disability” within the meaning of the Code. Applying the plain language of the definition of “disability” in s. 10 of the Code, in such circumstances there is no “disability, infirmity, malformation or disfigurement” when such a person is a potential transporter of bed bugs, and the potential for such a person to transport bed bugs is not caused by a “bodily injury, birth defect or illness”. Rather, such a person is merely an unwitting facilitator of the manner in which this particular insect spreads to other locations.

It is important to note that the Tribunal was quick to clarify that its ruling did not relate to a situation where a person experiences adverse treatment because of bites, rashes or bumps caused by bed bugs or whether adverse treatment in such circumstances could be regarded as being because of disability. The Applicant in this case did not allege adverse treatment because he was bitten by bed bugs, but rather because his condominium unit was infested with bed bugs.

In its reasons, the Tribunal noted that the case was similar to an earlier Tribunal decision in C.M. v. York Region District School Board, dealing with a school board policy requiring students with head lice or nits to be sent home from school until the issue was resolved. In that case, the Tribunal found that the presence of head lice was not a disability within the meaning of the Human Rights Code (“Code”), relying on a Supreme Court of Canada case in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), in which it was held that everyday illnesses or normal ailments are not generally considered disabilities under human rights legislation.

Of particular interest is the statement of the Tribunal in C.M., wherein it stated:

. . . lice or nits, like colds, are a normal ailment that does not fall within the ground of disability protected by the Code…Like individuals with cold symptoms, to avoid the risk of spreading to others, individuals with lice may be required not to participate in school or work until the symptoms are treated or have resolved, but that does not mean that the ailment leads to stigma or bias in the sense of Code­ protected disabilities that are barriers to full participation in society.

So would a workplace rule requiring employees, dealing with bed bug infestations or exhibiting symptoms (i.e., bites, rashes and/or bumps) associated with bed bugs, to stay home constitute a violation of the Code? Such a question has not specifically been addressed by the Tribunal to date, but the Craster decision offers some interesting insights into how the Tribunal might view the issue. If your organization is ever faced with this issue, it will be important to keep in mind that a “disability” under the Code includes “an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997”. This is because in Decision No. 2253/07, the Workplace Safety and Insurance Appeals Tribunal held that contracting head lice by an educational assistant in a school board was a workplace “accident” within the meaning of the Workplace Safety and Insurance Act, 1997 (“WSIA”). It is conceivable then that contracting bed bugs in the course of employment could constitute a “workplace accident” within the meaning of the WSIA and thus a “disability” under the Code. In this scenario, your organization would have to weigh its duty to accommodate the employee’s disability (up to the point of undue hardship) against its duty to take every precaution reasonable in the circumstances for the protection of its workers.

January 8, 2013
Erik Marshall

What does a company have to do when an employee discloses that he or she has sensitivity to scents and/or fragrances in the workplace and requests accommodation? This was the question before the Human Rights Tribunal of Ontario (“HRTO”) in a recently decided case called Kovios v. Inteleservices Canada Inc. Spoiler alert: this story ends well for employers.

Inteleservices Canada Inc. (“Company”) operates a call centre in a large open space that has rows of cubicles and is occupied by approximately 200 agents at any one time. Susan Kovios (“Applicant”), has a scent and fragrance sensitivity. The Applicant informed the Company of this during her initial job interview and asked if this would be a problem. She was told that the Company had a fragrance-free policy, but that with over 200 people working in the same area, it would not be possible to guarantee that there would be no exposure to scents and fragrances. It was unclear whether employees were told at the time they were hired to not wear any perfume or cologne at all or only not to wear strong perfume or cologne.

Following the job interview, the Applicant attended the call centre to start a three-day training session along with eight other trainees. On the first day, the Applicant noticed that another trainee was wearing perfume and reported to her manager at the end of the day that she had developed a headache in response to the scent.

On day two, the Applicant again noticed that a particular trainee was wearing perfume and reported the same to her manager at lunchtime also stating that she may have to leave since she was not feeling well. That afternoon, a fan was placed in the room and directed at the Applicant. In her Application, the Applicant stated that it was she who requested this, but at the hearing, she denied this and stated that the fan actually made the situation worse as now the scented air was blowing in her face.

On day three, the manager moved the training session to a larger room with better ventilation to accommodate the Applicant. Nevertheless, the Applicant smelled perfume as she took her seat in the larger training room. When she asked the trainee beside her if she smelled perfume, the other trainee admitted that it was her who was wearing perfume and moved away from the Applicant. The Applicant complained about the smell to her manager and stated that she did not think she could continue in the environment because of the strong smell of perfume. Since the training was almost finished, the manager offered to let the Applicant job-shadow an employee in the call centre, a larger open space, for the rest of the day. The Applicant agreed and so the manager took her to the call centre floor and introduced her to a call centre worker. Before she left, the manager made sure that there were no obvious scents in the area.

The Applicant testified that the call centre worker she was assigned to was wearing cologne and that this was immediately obvious to her. She stated that she felt nauseous, light headed and on the verge of a panic attack. After about ten minutes, the Applicant told her manager that she could not stay in the environment and that she would have to leave. The manager stated that the Applicant did not ask for any specific accommodation and only call centre jobs were available.

In the final result, the HRTO decided that the Company did not discriminate against the Applicant and in particular did not fail to accommodate the Applicant’s disability. The HRTO held that the Company did not fail to accommodate the Applicant’s disability by failing to enforce its fragrance-free policy as alleged because the fragrance-free policy was not intended to restrict the use of all scented products in the workplace but rather only asked for voluntary adherence. The question of whether the workplace could be accommodated without undue hardship so that the Applicant would not be exposed even to scents not noticeable by others was not a question that arose in this case since a request for such accommodation was never made or suggested by the Applicant.

This decision illustrates that, in cases like this, employees have a positive duty to accurately identify for their employer what their accommodation needs are and to clearly explain why the solutions that have been attempted are not adequate. Failure to do so may be the difference between a finding of discrimination and a dismissal of an Application, as was the case here.