Number 1 – November, 2006
| Number 1 – November, 2006 |
Human Rights Reform – Attorney General Announces Proposed Amendments to Bill 107 as Public Hearings Begin in TorontoBy Fay Faraday Public hearings on Bill 107 – the proposed Human Rights Code Amendment Act – began in Toronto on November 15, 2006. Attorney General Michael Bryant led off the presentations to the Legislative Committee by announcing a number of significant proposed amendments to the Bill which he indicated aim to address a number of concerns that various parties had raised since the Bill received Second Reading in May 2006. The proposed amendments address four key themes relating to:
Overview of the Bill Drawing on the 1992 Ontario Human Rights Review Task Force Report, Bill 107 has proposed changes that would substantially reform how human rights are enforced in the province. The Bill significantly changes the existing roles of the Ontario Human Rights Commission and Human Rights Tribunal of Ontario to introduce a “direct access” model of enforcement. In addition, the Government promised to establish a publicly-funded human rights legal support centre, although the Second Reading version of the Bill 107 did not contain detailed provisions addressing this key “pillar” of the reform. Under Bill 107, claimants will file applications directly with the Human Rights Tribunal rather than the Human Rights Commission. The Commission would no longer investigate, mediate or settle individual complaints; nor would it screen complaints to determine whether the complaint can be heard by the Tribunal. The Commission’s re-oriented mandate would focus on pro-active efforts to ensure human rights compliance and to eliminate systemic discrimination, including the power to initiate complaints and to participate in Tribunal hearings on issues of systemic discrimination. The Human Rights Tribunal, which has the power to develop its practices and procedures, will address all complaints through either a hearing or an alternative dispute resolution mechanism which may be developed in its rules. The Tribunal’s remedial powers will be amended to eliminate the cap on monetary compensation for discrimination. In introducing Bill 107, the Government also promised to provide “full access to legal assistance”, including information, support, advice and legal representation to all persons seeking a remedy. The Second Reading version of the Bill, however, contained only a brief provision granting the Government power to enter agreements to provide legal and other services which may be publicly funded. The Government’s Proposed Amendments (a) Human Rights Legal Support Centre The proposed amendments announced on November 15 would amend the Bill to set out explicitly in the legislation that the Minister will establish a Human Rights Legal Support Centre and confirm public funding for the Legal Support Centre. The amendments would clarify and ensure that the Legal Support Centre will provide range of services “including information, support, advice, assistance and legal representation” which will be available, where needed, across the province. The changes would also provide that “any person who is, has been, or may be an applicant seeking a remedy at the Tribunal would be eligible for the Centre’s services.” (b) Independence of the Commission Because the government is frequently named as a respondent in human rights complaints, an issue has been raised over a number of years that the legislation should ensure that the Commission operates and is seen to operate independently of government. The government’s proposed amendments aim to enhance the independence of the Commission by giving the Commission the power to report directly to the people of Ontario through the Legislature rather than by reporting to the Attorney General as is currently done. The Commission would deliver its annual reports to the Speaker who would lay the report before the Assembly. In addition to making annual reports, the Commission would also be given a new power to “make any other reports respecting human rights as it considers appropriate and could present such reports to the public or any other person it considers appropriate.” (c) The Commission’s Investigative Powers The Attorney General proposes to amend Bill 107 to strengthen the Commission’s powers to conduct investigations by making amendments to ensure that the Commission will have the powers:
The Commission would also be given the express right to intervene in any application before the Tribunal. The Commission is also empowered to bring an application to the Tribunal if it is of the opinion that the application is in the public interest. This proposed amendment would remove provisions in Bill 107 that had set criteria for when the Commission could bring an application. (d) The Human Rights Tribunal Process Finally, the Attorney General’s proposed amendments address the process and procedures before the Human Rights Tribunal. They appear to be aimed at ensuring that the processes that are adopted remain focussed on what is fair and just in order to resolve the dispute on the merits and ensuring the applicants before the Tribunal have an opportunity to have an oral hearing. The Tribunal has the power to make rules of practice and procedure, including alternatives to traditional adversarial or adjudicative procedures. The current Bill 107 provisions would be amended to require that the Tribunal rules “facilitate fair, just and expeditious resolution on the merits of the matters before it.” The amendments would restrict the Tribunal’s powers to dismiss applications without a hearing. They would also ensure that all applications to the Tribunal that are timely and are within the Tribunal’s jurisdiction, “could not be finally disposed of without affording the parties an opportunity to make oral submissions.” Applicants would also have more time to file complaints with the Tribunal. The time limit for filing an application would be extended from the current 6 months to one year. The provision in Bill 107 that would have given the Tribunal the power to establish and charge fees would be eliminated. Finally, amendments would require that members of the Tribunal have expertise in human rights. Bill 107 and the government’s proposed amendments will continue to be addressed as Legislative Committee hearings continue. Three days of Legislative Committee hearings were held in London, Ottawa and Thunder Bay in August. The Toronto hearings commenced on November 15 and are currently scheduled to continue on Wednesday and Thursday mornings until the Legislature rises in December. Individuals or groups can also file written submissions until the end of public hearings on the Bill. For further information about Bill 107, contact Fay
Faraday or Kate
Hughes. To access a detailed analysis of the Second Reading version
of Bill 107, prepared by Fay Faraday and Mary Cornish, click
here. To access a commentary by the same authors, published in the
Lawyers Weekly, click
here. For further details on the Bill 107 Committee Hearings, click
here. The End of Mandatory Retirement in Ontario: What Will This Mean in Reality for the Workplace?By Kate Hughes On December 12, 2006, Bill 211 – the Ending Mandatory Retirement Statute Law Amendment Act, 2005 – will be implemented (1). The Act amends the Ontario Human Rights Code and a number of other statutes to prohibit mandatory retirement at age 65 (2). Mandatory retirement at age 65 has been recognized as age discrimination for some time, but amending the Human Rights Code to protect workers has been controversial. Some employers and unions felt that a clear date for retirement allowed workers to leave the workplace with dignity and allowed for renewal of the workforce by creating space for younger workers. The legislation has ended the debate. Now that we are on the eve of Bill 211 being implemented it is time to look at what will change in workplaces, what won’t change and what may change as a result of this new legislation. While Bill 211 is a very brief and simple piece of legislation, it has a very wide range of implications in the workplace. Prohibition against Mandatory Retirement applicable from December 12, 2006 onwards While the Act was passed a year ago (it received Royal Assent on December 12, 2005) implementation of most provisions of the Act was delayed for a year to allowed workplaces time to change human resources, pension and other policies, bylaws, employment contracts and/or collective agreements to comply with the new law. The full Act will come in force on December 12, 2006 and will not be retroactive. This means that existing mandatory retirement policies and practices will continue to be lawful until December 12, 2006. Employees (or “independent contractors” etc) who are compelled to retire under workplace policies or agreements prior to December 12, 2006 will not be able to file complaints of age discrimination and employers will not be compelled to reinstate them. It is an arbitrary cut off which may adversely affect those who turned 65 before December 12, 2006 and who wish to remain working at that workplace but one that will be difficult to challenge if the employer will not agree to continue employment. Overview of the Act Despite common belief, there was no general law that prescribed mandatory retirement at age 65 prior to Bill 211. However, employers typically had mandatory retirement policies. These were lawful because the Human Rights Code only protected individuals from age-based workplace discrimination when they were between the ages of 18 and 64. The new Act changes the definition of age in the Human Rights Code. Age will now be defined as meaning “an age that is 18 years or more” and individuals in the workplace are protected from being terminated on the basis of their age. As a result, workplace rules, practices, institutional bylaws and policies , pension and other benefit plans that make distinctions based on age (over age 18) may be subject to complaints of age discrimination under the Code. It will now be unlawful for employers to impose mandatory retirement at a designated age, with the exceptions as set out below. Exceptions: (a) Bona fide occupational requirements Even after Bill 211 comes into effect, there will be some circumstances in which mandatory retirements will remain enforceable. Section 24(1)(b) of the Human Rights Code carves out an exception for unequal treatment where “ the discrimination in employment is for reasons of age ... if the age... of the applicant is a reasonable and bona fide qualification because of the nature of the employment”( called a “bona fide occupational requirement” or“BFOR”). In order to show that a mandatory retirement policy is a reasonable and bona fide qualification under the Code, the employer has the onus to prove that the nature of the job generally required termination at age 65. Mandatory retirement policies are only likely to be upheld as a BFOR in contexts where the work is very physically demanding and/or involves matters of employee or public safety. For example, mandatory retirement policies have most frequently been upheld in relation to firefighters or pilots but these cases were generally decided before the Meiorin Supreme Court of Canada case which placed the onus squarely on the employer to prove a high standard regarding BFOR. Whatever employers use the BFOR (3) exception will have to be carefully monitored once the new law is implemented. (b) Employment Standards Act Bill 211 maintains the status quo under the Employment Standards Act, 2000 regulations which permit an employee benefit, pension, superannuation or group insurance plan or fund to make distinctions based on age where those distinctions are made on an actuarial basis. Bill 211 amends s. 25 of the Human Rights Code to provide as follows:
Please contact us if you have specific question regarding the impact of the Employment Standards Act in a particular circumstance. (c) Workplace Safety and Insurance Act Bill 211 also specifically exempts the Workplace Safety and Insurance Act, 1997, the regulations made under it and the decisions and policies made under the Act and regulations that require or authorize a distinction based on age from the application of s. 1 (right to equal treatment in respect of services) and s. 5 (equal treatment in employment) of the Human Rights Code. Bill 211 enacts the following new provisions to the WSIA:
These new provisions in the WSIA came into effect December 12, 2005, unlike the rest of the Act which had a year to be implemented. These amendments were introduced in order to ensure that the WSIA system was not changed. The status quo is maintained for WSIA claims. There are three key age-based distinctions in the WSIA that are maintained.
It is clear that under this scheme, workers over the age of 65 are treated differently based on age. In the wake of Bill 211 this distinction could be vulnerable to challenge under the Canadian Charter of Rights and Freedoms as legislation that discriminates based on age. This is an area that we anticipate will be subject to challenge. Please contact us if this is an area of problem in your workplace. Rationale for the Change: Age Discrimination The Ontario government stated that the reason for the new legislation was to abolish age discrimination. The Ontario Human Rights Code (similar to a number of other provinces such as British Columbia but unlike provinces such as Manitoba or Quebec) did not protect individuals from age discrimination as it only provided protection to those “eighteen years or more and less than sixty-five years”. The Human Rights Commission however had recommended that this provision be amended for a number of years in its policy paper on age discrimination. As well, for several decades, it has been legally established that mandatory retirement at age 65 is age discrimination. There have been a number of court and human rights challenges to widespread employer policies setting age 65 as the mandatory retirement age. The leading case is McKinney (5) where in 1990 the Supreme Court of Canada, dealing with university professors, held that the age 65 mandatory retirement was age discrimination as it violated the equality provisions in s. 15(1) of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada also said that the Ontario Human Rights Code violated s. 15 of the Charter to the extent that it failed to protect those employees above the age of 65. However the majority of the Court went on to say the violation that was “justifiable” in our society under s. 1 of the Charter, largely on the rationale that it allows for renewal of jobs for younger academics. In the 17 years since this case, there have been repeated court, arbitration and tribunal challenges to the Code’s restrictions on age discrimination, all largely unsuccessful in Ontario (6). The new legislation now deems mandatory retirement at age 65 no longer justifiable in Ontario. The government’s consultation paper noted the impending skilled labour shortage, once the baby boomers retire, as a reason for legislating mandatory retirement policies and practices as unlawful. Specifically, the government’s consultation report highlighted the expected shortage of health professionals as an example of the need to abolish mandatory retirement. Trends: Anticipated Impact on Workplaces Statistically, most people in Ontario retire before age 65 and it is expected that this trend will continue. However, once this new Act comes into force, no one can be required to retire at age 65 (or any specific age); nor, of course, are they forced to continue working. All workers will now have the same human rights protections against age discrimination as their colleagues under the age of 65. However workplaces are expected to change as a result of abolishing mandatory retirement, even if people do not all plan to continue working past 65 in large numbers. There are a number of potential areas of change and areas for review in each workplace: (a) Collective Agreements and Workplace Policies The most immediate task for unions (and employers) will be to review all the collective agreements, pension benefit documents and workplace policies and employer practices that make distinctions based on age to impose mandatory retirement or to impose other forms of differential treatment for older workers. Hopefully this has been done in the year since the Act was proclaimed but not implemented. The language in these documents or the practices will need to be revised where necessary to bring them into line with Bill 211. We note that collective agreements are not grand-parented under Bill 211. This means that if they include provisions which discriminate based on age these provisions will need to revised by December 12, 2006 (or be rendered ineffective) even though the collective agreement is in mid-term. (b) Termination and Evaluation of Older Workers As a result of abolishing mandatory retirement, employers will only be able to terminate employees against their will for just cause rather than force termination through retirement. Many people believe that previously, rather than fire “unproductive” older workers or attempt to counsel them, employers simply waited for the employee to retire. While it is not known if this was actually the case in a widespread way, employers will now need proof of performance issues on an individualized basis to terminate, rather than relying on mandatory retirement. This includes ensuring that older employees are not subject to discriminatory performance evaluations and assumptions that competence always deteriorates with age. It will be important to ensure that any performance concerns raised by employers are addressed in the same way as they would be for all other employees in terms of giving constructive feedback, a fair opportunity to improve, and access to training where necessary. If age is a factor in an employee’s termination, it will be necessary to examine whether there is a taint of discrimination that could give rise to a grievance, a human rights complaint or a wrongful dismissal action, depending on the circumstances. (c) Duty to Accommodate Older employees have the same right to accommodation as younger employees; employers will be held to the same legal standard of accommodation to the point of undue hardship. There is not a reduced standard of accommodation for older workers. Any performance concerns which could relate to the aging process should, if necessary, be properly addressed through age - or disability-related accommodation. With respect to older workers, the duty to accommodate may arise most frequently in relation to matters such as disability, family status (including the need to care for an elderly spouse or parent), or conditions relating to aging itself. The most common disabilities that develop with age are decreased mobility, decreased agility and hearing loss. Examples of some kinds of accommodation that may be needed may include: • flex-time, reduced hours, job-sharing, part-time work and home
based work; (d) Training and Promotion Older workers should not be treated differently and disadvantageously in relation to matters such as job opportunities, transfers, promotions, access to training, evaluations or other conditions of work. This should be carefully monitored to ensure that workers are not “put out to pasture” due to assumptions of that age equals incompetence. (e) Pension Plans Bill 211 does not amend the Pension Benefits Act or make any changes with respect to employee pension plans. Instead, as set out earlier, by the terms of Bill 211, a pension plan can continue to make differentiations based on age where these distinctions comply with the Employment Standards Act, 2000 and its related Regulation on Benefit Plans (O. Reg. 286/01). Under the ESA regulations, where the distinctions are based on an actuarial basis, a pension plan can differentiate based on an employee’s age in order to identify a normal retirement age or early voluntary retirement age or date. Plans can also continue to make age-based distinctions where the differentiation is made on an actuarial basis because of an employee’s age and relates to the rates of contributions or voluntary additional contributions to a pension plan; the rates of contributions by an employer; or the benefits payable to employees. While these kinds of age-based distinctions remain permissible, it is still important to closely review all your pension documents to determine whether any other age-based differentiations (i.e. age for eligibility to join the pension plan) may contravene Bill 211. To maintain registration under the Income Tax Act, a employer
pension plan must commence payment of pension benefits by the end of the
calendar year in which a member reaches age 69. It will be necessary to
review your pension documents closely to determine what options are available
for employees who wish to continue working past age 69 and to determine
whether it may be necessary to bargain alternate compensation for such
employees in lieu of further pension contributions or further accrual
of pension benefits.
Bill 211 expressly permits some distinctions based on age to continue in various employee benefits plans. The Employment Standards Act, 2000 and its regulations had previously permitted certain age-based distinctions and Bill 211 leaves this regime unchanged. In addition, the new s. 25(2.3) of the Human Rights Code, clarifies that the age-based distinctions under the ESA are permissible whether or not the definition of “age” in the ESA or the regulations under it have the same meaning as under the Human Rights Code. In this respect, it is worth noting that the Benefit Plan regulation under the ESA defines age as “any age of 18 years or more and less than 65 year” so that differential treatment of workers aged 65 and older can continue. Many health benefit plans, life insurance plans, short and long term disability plans assume retirement at age 65 and provide that benefits under the plans will cease when an employee reaches age 65. In enacting Bill 211, the government expressly indicated that its intention was to maintain this state of affairs. The Ministry of Labour in its documents on Bill 211 has stated that
After Bill 211, age-based distinctions remain permissible with respect to life insurance, LTD and STD plans. This does not mean, however, that such restrictions are mandated or beyond challenge. In the absence of ESA regulations that permit differential health benefits based on age, once Bill 211 comes into effect, it could be argued that an employer’s refusal to continue health, dental or other benefits coverage to employees over age 65 would be prima facie discriminatory. This may be a matter for negotiations or litigation in the right case. Conclusion This overview of Bill 211: Ending Mandatory Retirement Statute Law Amendment Act, 2005 is not intended to give legal advice in particular circumstances. It is intended to highlight areas that the Act addresses generally and areas where we expect employees and unions will have to keep a close eye to see how the workplace is affected now that the Act is being brought into force. If you have specific questions or issues please contact us for a more
detailed analysis.
Maintaining Pay Equity: Commission Audits Put Pay Equity Back in the SpotlightBy Fay Faraday The Pay Equity Commission has recently been more active in initiating audits of Ontario workplaces to monitor compliance with the Pay Equity Act. In comments made at an OFL Pay Equity Conference on November 14, 2006, Ontario Pay Equity Commissioner Emanuela Heyninck indicated that the Commission is ramping up its pay equity audits and that they will be an ongoing and regular part of the monitoring. Commissioner Heyninck noted that there are particular problems with pay equity compliance in the private sector. The increase in audits is leading employers to review the status of pay equity in their establishments. Employers who have not complied with their obligations to achieve and maintain pay equity under the Act could face significant liabilities in terms of wages (both back pay and future wages) owed to women workers. In this context it is particularly important for unions to ensure that they are also actively monitoring pay equity implementation in their workplaces and upholding their obligations to both achieve pay equity as set out in their pay equity plans and to maintain pay equity in the face of changes in the workplace. It is important to stress that while the employer has the primary duty to achieve and maintain pay equity, employers and unions both have legal obligations under the Act to ensure pay equity compliance. Under s. 7(1) of the Act, employers have the obligation to “establish and maintain compensation practices that provide for pay equity”. Section 7(2) provides that “no employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted,” would breach the duty to establish and maintain pay equity. While much work has been done across the province, particularly in the
1990s, to prepare pay equity plans, much work remains to be done to ensure
that pay equity is in fact achieved under those plans and that pay equity
is maintained as conditions in the workplace evolve. Unions and employers must monitor their workplaces for any changes that can affect the validity of their pay equity plans. Changed circumstances that can trigger the obligation to re-examine the status of pay equity include:
Any of these circumstances may require the union and employer to re-evaluate particular job classes, conduct new comparisons and determine whether new pay equity adjustments are owed. Where there has been a new union certification or a significant business restructuring, it may be necessary for the union and employer to follow through all the steps that are necessary to develop a pay equity plan. For further information or advice, contact Fay
Faraday or Victoria
Reaume. To obtain a copy of the CHSM&C Resource Guide to Maintaining
Pay Equity, prepared by Mary Cornish, Fay Faraday and Victoria Reaume,
click
here. Significant Human Rights Decision Upheld at Court of Appeal: Keays v. HondaBy Kate Hughes In a decision long-awaited by those interested in disability and human rights issues, the Ontario Court of Appeal recently upheld the controversial Keays v. Honda decision in which a disabled employee was awarded unusually high damages, including punitive damages. The trial Judge had found that the employer had terminated the employee without just cause and in bad faith, and awarded significant wrongful dismissal damages of 15 months’ pay in lieu of notice, nine months’ damages for bad faith conduct (referred to as “Wallace damages”) and $500 000 in punitive damages (as well as more than $600 000 in legal fees). The Court of Appeal upheld the decision, although the majority award reduced the quantum of punitive damages from $500 000 to $100 000. This case is likely to have an impact beyond the non-unionized workforce and is expected to be relied upon by unions and others in arbitrations and before human rights tribunals in cases where employers, their agents or insurers, handle disability, accommodation and other related matters in bad faith. Facts in Keays v. Honda Honda Canada terminated Kevin Keays, a disabled employee with 14 years’ service who suffered from Chronic Fatigue Syndrome. Mr. Keays’ disability affected his attendance at work and resulted in the employer giving him poor performance assessments despite the fact that he was otherwise a “dedicated and conscientious employee”. Mr. Keays received Long Term Disability (LTD) benefits from 1996 to 1998; at that point, the employer’s insurer deemed Mr. Keays able to return to work and terminated his LTD benefits. Mr. Keays returned to work under protest and soon began to experience a renewal of symptoms that required him to be intermittently absent from work. Mr. Keays’ physician confirmed that he suffered from ongoing Chronic Fatigue Syndrome and his condition would likely require him to continue to be absent from work for medical reasons. The employer provided some accommodation but put “coaching“ on his record and required Mr. Keays to obtain a doctor’s note for each absence, a requirement not imposed on other employees. In addition, the employer required Mr. Keays to see the company’s doctor. The latter threatened to force Mr. Keays to return to a position on the physically demanding production line. When Mr. Keays asked that the employer’s “coaching” be removed from his file and that he no longer be required to provide medical notes to support each absence, he was, in the words of the trial Judge, “stonewalled”. As a result, Mr. Keays retained legal counsel who contacted the employer and offered to work towards a resolution of the situation. The employer responded by taking the position that Mr. Keays was no longer disabled and ordered Mr. Keays to once again see the company physician. On the advice of his lawyer, Mr. Keays declined to do so unless he received clarification as to the purpose of the meeting. The employer refused clarify the purpose of the meeting and instead fired Mr. Keays. As a result of his termination, Mr. Keays suffered from post-traumatic adjustment disorder and qualified for a total disability pension under the Canada Pension Plan. Ontario Court of Appeal Decision The Court of Appeal upheld the trial Judge’s decision that the employer’s actions amounted to wrongful dismissal and bad faith conduct. The Court concluded that Honda’s actions were “planned and deliberate and designed to intimidate and ultimately terminate the employment of a particularly vulnerable employee”. It found that it was unreasonable for Honda to order Mr. Keays to see its occupational medicine specialist without clarifying the purpose of the meeting. Moreover, the Court found that Honda’s refusal to provide clarification “would seem more consistent with the exercise of authority for its own sake than with an attempt to make the accommodation process function in a way that respected [Keays’] dignity and equality.” The Court of Appeal concluded that wrongful dismissal damages for lack of notice, “Wallace damages” and punitive damages were all justified, although the Court reduced the $500 000 quantum of punitive damages awarded at trial to $100 000. The Court stated that the punitive damages were justified on the basis that Honda’s conduct was planned and designed to intimidate Mr. Keays who it knew to be particularly vulnerable due to his medical condition. The Court stressed employers’ duty to accommodate disabled employees and noted that an employer “must engage in this process reasonably and in good faith.” According to the Court, “where [an employer] proceeds in bad faith and seeks to evade its legal obligation to accommodate those rendered vulnerable through disability by wrongfully terminating them, compensation and punishment are both justified.” The majority of the three member Court reduced the award of punitive damages, among other reasons, because it disagreed with the trial Judge’s finding that Honda’s ”outrageous conduction persisted over a period of five years” and determined instead that the misconduct occurred only over a seven month period. As well, the Court of Appeal noted that Honda’s conduct was not as egregious as the persistent conduct of the insurer in Whiten v. Pilot Insurance, a 2002 case in which the Supreme Court of Canada awarded one million dollars in punitive damages. Noting that punitive damage awards have been rare and generally much lower in Canada than in some other jurisdictions, the Court of Appeal substituted a quantum of $100 000 in damages. Likely Impact of Keays v. Honda Decision It remains to be what impact the Keays v. Honda decision will have on arbitral, human rights and wrongful dismissal cases. However, the decision raises many important issues to be considered by those representing employees. (a) Challenging an Employer’s Bad Faith Conduct in the Treatment and Accommodation of Disabled Employees Although the Keays v. Honda case involved the wrongful dismissal of a non-unionized employee, it also dealt with an employer’s duty to accommodate and other human rights issues that are frequently addressed by arbitrators and other administrative tribunals including human rights tribunals. Many unions frequently allege high-handed or bad faith conduct on the part of employers, and their agents, with respect to accommodation issues, demands for medical reports, forced visits to in-house physicians and others contracted by the employer to “manage” sick leaves and the accommodation of disabled employees. The Keays v. Honda decision may provide a very useful precedent in arbitration and tribunal cases involving these issues, as the Court of Appeal made clear that bad faith conduct towards vulnerable employees is unacceptable. (b) Punitive Damages Punitive damages are rarely awarded in civil cases, even more seldom awarded in arbitration cases, and almost never awarded in human rights tribunal cases. However, some arbitrators have awarded punitive damages and “tort-like damages” to remedy employers’ high-handed conduct in some types of cases (see for example, Pacific Press and C.E.P., Loc. 115-M (Velestuk) (Re) (1998), 73 L.A.C. (4th) 35.) In O.P.S.E.U. v. Seneca College, a decision released in May of this year, the Ontario Court of Appeal upheld as "not patently unreasonable" an Arbitration Board's finding that the O.P.S.E.U. collective agreement in question did not provide it with the power to award aggravated and punitive damages for tort-like conduct. Leave to appeal to the Supreme Court of Canada was dismissed on November 16, 2006. In its decision, the Court of Appeal concluded that the Arbitration Board gave cogent reasons for its finding that it did not have the power to award punitive or aggravated damages in that case. However, the Court of Appeal's decision in Keays v. Honda arguably lays some of the groundwork for a more restrictive application of its decision in O.P.S.E.U. v. Seneca College. In our view, the issue of punitive and tort-like damages in arbitrations is still a live issue, depending on the circumstances in particular cases. Conclusion In our view, unions and employees will want to consider requesting extraordinary
damages in cases where employers and/or their agents act in bad faith
or engage in high-handed misconduct in dealing with disabled employees,
accommodation issues, sick benefits and terminations. In the right fact
situation, the Court of Appeal’s reasoning in Keays v. Honda
and its significant damage award may be used in support of expanded damage
awards at arbitration and before human rights tribunals. Recognizing Internationally Trained Professionals: Does Ontario’s Fair Access to Regulated Professions Bill Measure Up?Public hearings started this week on the government’s proposed Fair Access to Regulated Professions Act (Bill 124). Hearings continue on specific dates until December 6th. Written submissions to the legislative committee can be made until December 5, 2006. Bill 124 is aimed at ensuring that the registration practices used by regulated professions are transparent, objective, impartial and fair. Although the changes made by Bill 124 will apply to all individuals seeking to register with a professional body, the changes will be of particular benefit to foreign trained professionals who often find it difficult to practice their professions in Canada and must instead take jobs well below the ones they previously practiced in their home countries. In order to practice a profession in Ontario – such as teaching, health professions, engineering, law to name only a few examples – individuals must be registered by the governing body for their profession. For many decades, internationally trained professionals have faced significant barriers to practicing their profession in Canada, in large part due to difficulties in having their skills and non-Canadian credentials recognized. These barriers have many sources but the most frequently cited are the various rules of the provincial bodies which regulate access to professions in Ontario through licensing and registration requirements. These barriers have been studied for many years and have been the subject of reports at both the provincial and federal government levels. Bill124 has been introduced as one piece of the puzzle to help eradicate some of these barriers. While the Bill introduces some welcome changes, the legislative committee hearings should provide an opportunity for advocates for internationally trained professionals to ensure that some of the Bill’s shortcomings are also addressed. Bill 124 was introduced following the release of a government-commissioned report by George Thompson (the “Thomson report”) which reviewed the registration practices and appeal processes from registration decisions in Ontario’s regulated professions. Although the government has incorporated some of the report’s recommendations into the Bill, a number of recommendations have been left out. As such, a number of issues will need to be addressed in order for the Bill to more effectively break down the barriers faced by internationally trained professionals seeking to practice in Ontario. What is in Bill 124 Bill 124 imposes a general duty on regulated professions in Ontario to provide registration practices that are transparent, objective, impartial and fair by:
The Bill also provides for the appointment of a Fair Registration Practices Commissioner whose functions will include
Finally, Bill 124 will establish an Access Centre for Internationally Trained Individuals. While the Centre’s precise mandate remains to be fully developed, the Bill states that the Centre will provide information and assistance to internationally trained individuals and other applicants with respect to registration requirements and procedures. Its mandate will also involve conducting research and analysis as well as providing information and assistance to ministries, government and community agencies. Issues to be Addressed The measures introduced by the Bill appear aimed primarily at increasing the information available to applicants and thereby enhancing the transparency of the registration process followed by regulated professions. However, a number of issues are either not clearly addressed in the Bill or have been left out of the Bill altogether. For example:
It is clear that the Fair Access to Regulated Professions Act is only one piece of the puzzle when it comes to eradicating the barriers faced by internationally trained professionals seeking to practice their professions in Ontario. Even if advocates for internationally trained professionals may welcome many of the measures introduced by the Bill, they will also likely want to call attention to the Bill’s various shortcomings and ambiguities. In addition, they will want to propose amendments that would be required for the Bill to achieve its objective of ensuring transparent, objective, impartial and fair access to regulated professions in the province. Committee Hearings The Standing Committee on Regulations and Private Bills will hold public
hearings on Bill 124 in Toronto on Wednesday, November 15 and 22, 2006,
and on Tuesday, November 21, 2006 (dates subject to change) and in Hamilton
on Wednesday, December 6, 2006 (date subject to change). Groups or individuals
who wish to make written submissions on Bill 124 must do so by December
5, 2006. Federal Cuts Will Affect Advocacy on Equality and Women’s RightsIn late September, the Conservative minority government announced deep cuts that will have an impact on advocacy for equality and women’s rights in Canada. The government announced that it was cutting all funding to the Court Challenges Program. It also announced significant cuts to Status of Women Canada’s budget as well as critical changes to the agency’s mandate and funding rules. Cancellation of Court Challenges Program Established in 1978, the Court Challenges Program provided funding support for test case litigation in equality and minority language rights cases as well as funding for publicly available research on systemic equality rights issues and for community consultations to address the implications of equality rights cases. As a result, the Program’s cancellation will have a significant impact on access to justice and the effective advancement of equality and minority language rights in the country. The Court Challenges Program has provided funding in a number of key equality rights cases or cases with an equality rights dimension including, to name only a small fraction of the cases: Egan v. Canada (challenge to the denial of old age pensions to same-sex spouses); R. v. Butler (challenge to the Criminal Code’s obscenity provisions); Corbière v. The Queen (challenge to Indian Act provisions that prohibited off-reserve Indian Band members from participating in Band elections); Gosselin v. Quebec (challenge to reductions in social assistance payments for individuals who do not participate in workfare programs); Mack v. Canada (claim for restitution of the “head tax” levied on Chinese Canadians in the early 20th century); and Egale Canada v. Canada (challenge to denial of right to marry for same-sex couples.) The Court Challenges Program was briefly cancelled in 1992 by Brian Mulroney’s Conservative government but reinstated, after widespread criticism, by Kim Campbell following her election in 1993. Numerous legal and community groups have opposed the cuts to this program. For more information on these initiatives, see the websites for the following organizations: Canadian Feminist Alliance for International Action (FAFIA) (http://www.fafia-afai.org/en/node/365); the Canadian Bar Association (http://www.cba.org/CBA/news/ccp) as well as www.savecourtchallenges.ca (website of a coalition of community and legal organizations). Cuts and Changes to Status of Women Canada At the same time, the Conservative minority government announced a $5 million (40%) cut to Status of Women Canada’s budget. Status of Women Canada is the federal government agency which conducts gender-based research into public policy and funds organizations working on women’s issues. The agency was established following the 1970 Royal Commission on the Status of Women in 1970 with a mandate to address issues of systemic inequality that women faced and continue to face. While the funding cut will not directly affect the Women’s Program, which funds women’s groups, it will drastically reduce SWC’s capacity to sponsor independent research, to ensure that other ministries take into account the impact of their policies on women and to report to the United Nations on Canada’s international commitments to women. In addition to cutting Status of Women Canada’s funding, the government has also made fundamental changes to the goals and funding rules of the Women’s Program. The government removed “equality” as one of the objectives of the Program and introduced new funding rules which will prevent Status of Women Canada from funding groups that are engaged in advocacy or lobbying of governments. Many community groups and other organizations have opposed the cuts and changes to Status of Women Canada. On October 31st, the all-party House of Commons Status of Women Committee passed a motion recommending that the government reverse the $5 million in cuts to Status of Women Canada and that it re-instate the original Terms and Conditions of the Women’s Program. The motion also recommended that the Chair of the Committee, Judy Sgro, report the adoption of the motion to the House of Commons without delay. For more information on interventions to oppose the cuts and changes to Status of Women Canada see for example the National Association of Women and the Law's website: www.nawl.ca. Human Rights Update Archives | Cavalluzzo website | Update for Professionals We welcome your comments. 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