Number 4 – September, 2007
| Number 4 – September, 2007 |
Seeking Change Through Electoral Reform: Ontario’s MMP ReferendumBy Michelle Dagnino On October 10, 2007, Ontarians will have the opportunity to inject a measure of proportional representation into the province's electoral system by voting in a referendum on the Mixed Member Proportional system, or MMP.
Proponents of the MMP system argue that it would assist in increasing the number of women, minorities and Aboriginal persons in the provincial legislature. The MMP system is used successfully in New Zealand, Germany, Scotland and Wales, resulting in stable coalition governments in which more women play partner roles. Canada is one of the few modern democracies with the Westminster model of electing legislators from local ridings. Canada also stands 48th in the world with respect to the percentage of women MPs in the House of Commons (just under 21%). Canada’s standing is unlikely to improve in the near future as the number of women running in elections has declined in recent years. Advocates for MMP emphasize that many of the decisions that impact women disproportionately – such as child care, home care, and reproductive choice – currently lie largely in the hands of men. As such, they argue that increasing the number of women in the legislature would contribute to more fair and representative social and economic policies.
After studying different proportional representation systems, the Citizens' Assembly on Electoral Reform (103 Ontarians randomly chosen by Elections Ontario) recommended MMP as a moderate change to Ontario’s electoral system. A majority of MPPs (90) would still be elected to represent ridings, and a minority (39) would be elected by proportional representation. Each voter would cast two votes: one for a local candidate to represent their riding and one for a party to represent their interests. Each party would receive a number of seats that is proportional to the percentage of party votes. These would include the local seats won by members of their party in specific ridings. The rest would be allocated to legislators who would not represent specific ridings but rather the party as a whole. These legislators would be drawn from the top of a ranked list of candidates chosen by each party. Since parties would be required to make their lists public, MMP Advocates have argued that no party would likely present a list that did not include a fair gender balance and a fair proportion of visible minority candidates. As such, under MMP, the composition of the legislature and the government likely would more fairly represent the actual makeup of the population. There are currently only 26 women in the 103-seat provincial legislature (25 %) and only eight MPPs who are from visible minority groups. Both figures are half what they should be based on provincial demographics. The October 10, 2007 referendum will be closely watched across the country
as a vote in favour of MMP in Ontario could revitalize efforts to achieve some
form of proportional representation in Prince Edward Island, New Brunswick,
Quebec and British Columbia. The government has set a high bar for the referendum
to succeed – 60 per cent of the votes in 60 per cent of ridings must
be cast in favour of the new system. For further information, see: Elections
Canada’s special website – www.yourbigdecision.ca or click here;
the Citizen’s Assembly on Electoral Reform website at www.citizensassembly.gov.on.ca/en/default.asp
or click here; and the Equal Voice in Politics website at www.equalvoiceinpolitics.ca
or click here. The Equal Pay Coalition’s Call For Action to Bring Pay Equity To All Ontario Women
By Mary Cornish and Michelle Dagnino With Ontario’s 2007 election campaign just underway and Ontario moving towards the 20th Anniversary of the Pay Equity Act on January 1, 2008, the Equal Pay Coalition is calling on party leaders and candidates to commit to strengthen, revitalize and fully fund the effective enforcement of non-discriminatory pay for all Ontario women.
As 2008 draws near, most Ontario women, regardless of their occupation, age or education, continue to be paid less than men because they do women’s work. Women on average still earn only 71% of what men earn – leaving a 29% pay gap. Ontario women receive less for their work regardless of where they work in the economy, the size of their workplace or the precariousness of their work. The most vulnerable women – aboriginal woman, women of colour, racialized or immigrant women, and non-unionized women workers – face an even greater gap than the wage gap between white men and women. Retired women have much less income than men and pay inequity contributes to poverty levels.
To address this situation, the Pay Equity Coalition’s Call to Action is asking for a specific commitment to:
Women account for two-thirds of minimum wage earners. Aboriginal women, immigrant and refugee women, women with disabilities and racialized women are even more likely to be working at the minimum wage. In its campaign, the Coalition argues that increasing the minimum wage will have a significant impact on closing the gender pay gap and reducing women’s poverty. The Coalition is seeking a commitment to support increasing the minimum wage to $10 per hour effective 1 January 2008.
The Coalition is calling for a commitment to fully fund significant pay equity adjustments that remain owing. The government has already identified the discriminatory pay gaps existing in broader public sector workplaces. Pursuant to a settlement to a challenge under the Canadian Charter of Rights and Freedoms in 2003, the government provided funding to cover much of the monies owing from 1999-2005 to close those gaps. However, since the end of the settlement payments in 2005, the Liberal government has failed to continue dedicated funding for pay equity adjustments that remain owing. The payments are necessary to close the identified gaps which on average will need to be paid up to 2011. According to the Coalition, as of this year, the government has failed to deliver approximately $78.1 million owing to women for their 2006-2007 adjustments. A further approximately $467.9 million is owed from 2008-2011.
The Pay Equity Commission and the Pay Equity Hearings Tribunal have had their funding and staff substantially reduced. Their funding in 2006 was about one-half of their funding in 1992-93 and the number of Commission Review Officers has been reduced from 28 to 16. The Coalition is calling for the Commission and the Tribunal to be restored to at least the 1992-93 funding level of $6.8 million. It is also asking that the government provide the further funding necessary to ensure vigorous enforcement of the Pay Equity Act and the closing of Ontario’s gender pay gap.
The Coalition has written to party leaders and candidates asking them to complete and return a Questionnaire which asks for their specific commitments with respect to the issues listed above. The Coalition plans to release the results of these questionnaires to the media during the election campaign. The results will also be posted on the Coalition’s website and circulated widely. In addition, the Coalition will seek to have the issue of pay equity raised in the leaders’ election debate on September 20, 2007 and at all-candidates and other election meetings across the province. The Coalition’s call for urgent action on this issue is backed by its broad-based membership of trade unions, community and social justice organizations, and business and professional women’s organizations who represent over one million Ontarians. The Ontario Federation of Labour and many public sector unions have provided important financial and other support to the campaign. The Coalition is chaired by CHSMC’s Mary Cornish with the following other lawyers and staff providing legal and administrative support: Fay Faraday, Michelle Dagnino, Janina Fogels, Victoria Réaume, summer student Janet Borowy and Legal Assistant Wendy Balaban. For more information on the Coalition, see the Coalition’s recently
redesigned website: www.equalpaycoalition.org or click here. For more information
on pay equity, see CHSMC’s Resource Guide to Maintaining Pay Equity by
clicking here. If you require legal advice on implementing pay equity, please
contact Mary Cornish, Fay
Faraday, Victoria Réaume, Michelle Dagnino,
or Janina Fogels. Update on Human Rights Reform – Reforms to Take Effect 30 June 2008By Fay Faraday The Ontario government has proclaimed that the substantial reforms to the province’s human rights system will take effect on 30 June 2008. In anticipation of increased referrals to the Tribunal prior to that changeover date, the Human Rights Tribunal of Ontario has released draft Interim Rules of Procedure and is seeking input from stakeholders by 17 September 2007. Finally, the Ministry of the Attorney General has announced a series of “Human Rights Transformation Forums” which will take place around the province in November. Each of these developments is addressed in more detail below.
Bill 107 - the Human Rights Code Amendment Act, 2006 - overhauls the way human rights are enforced in the province. While Bill 107 received Royal Assent in December 2006, the Bill provided that the most significant reforms would not take effect until a date to be named by proclamation. That date has now been set as 30 June 2008. For our detailed analysis of the substantive changes that will take effect on 30 June 2008 and the provisions governing the transition to the new regime, please click here. Briefly, as of 30 June 2008, the following significant changes will come into effect:
The provisions creating the Human Rights Legal Support Centre came into effect on Royal Assent in December 2006. The design and development of that Centre are taking place under the Centre’s Transition Director Helena Birt. Under the new enforcement system, the Legal Support Centre will provide information, support, legal advice and representation to those seeking a remedy under the Code.
The proclamation of the effective date for the changes also establishes the schedule for the transition to the new enforcement system. The following procedures will apply to complaints that are made before 30 June 2008:
Where a complaint has been referred to the Tribunal by the Commission either before 30 June 2008 or in the six-month period following that, the following procedures apply:
For more information about the Bill 107 reforms, you are welcome to contact Fay Faraday, Mary Cornish, Kate Hughes or Jo-Anne Pickel.
Earlier this year, the Ontario Human Rights Commission implemented an “Enhanced Complaint Process” to speed up the processing of complaints that are filed with it. See our Human Rights Update April 2007 and see also the Commission’s Internal Guide for Processing Complaints. As a result of this new Commission process, the Human Rights Tribunal anticipates that an increased number of complaints will be referred to the Tribunal in the months leading up to the 30 June 2008 changeover. To enhance its capacity to accommodate this increased volume, the Tribunal has developed and circulated draft “Interim Rules” that will affect the procedure for new complaints that are referred to the Tribunal after the Interim Rules are adopted and before 30 June 2008. The Tribunal has also circulated amendments affecting the existing rules relating to motions and reconsideration and a new practice direction regarding reconsideration. Interested parties can submit comments on the Draft Rules by 17 September 2007. Copies of the draft rules and further information about how to make submissions are available on the Tribunal’s website. The Tribunal is also developing comprehensive new Rules of Procedure. A draft of those comprehensive rules will be circulated for stakeholder input before 30 June 2008.
On 7 September 2008, the Ministry of the Attorney General announced a series of human rights transformation forums that will be taking place in five different locations around the province in November. The dates and locations that have been set are:
Barbara Hall, Chief Commissioner of the Ontario Human Rights Commission, Michael
Gottheil, Chair of the Human Rights Tribunal of Ontario and Helena Birt, Transition
Director for the Human Rights Legal Support Centre will attend each of the
forums to make presentations on the new roles of their organizations and the
implementation progress to date. For more information on these forums, click
here. One Year Pregnancy Leaves: Strategies to Address DiscriminationIt has now been several years since the federal Employment Insurance Act and Ontario Employment Standards Act were amended to allow women a full year for pregnancy and parental leave. While seemingly heralding a victory in the rights of women and children, enough time has now passed to see that the impact on women in employment has been mixed. Some of the benefits of these changes are illusory in practice and anecdotal evidence suggests that employers are attempting to circumvent the real protections provided. However, employee organizations and human rights advocates can adopt a number of strategies to better enforce these important rights.
The federal Employment Insurance (“EI”) Act was amended effective December 31, 2000 to provide up to 50 weeks of insurance benefits for employees on pregnancy and parental leave. This was an increase from the previous coverage of six months. Coinciding with this change, the Ontario government amended the Employment Standards Act (“ESA”) to extend pregnancy and parental leaves to a total of 52 weeks, also an increase from the previous six months. While the EI Act allows women to be paid for a year of leave, the ESA protects the mother’s right to return to work following her year off. In particular, the ESA entitles the mother to a year’s leave and requires the employer to reinstate her at the end of her leave. She must be reinstated to the position she most recently held with the employer if it still exists, or to a comparable position if it does not: s. 53(1). Her employment may only be terminated solely for reasons unrelated to her leave: s. 53(2). In addition, her wages must be the greater of what she most recently earned with the employer and what she would have earned if she had not taken leave: s. 53(3).
Whether it be because of employer resistance to one-year leaves or because of other inappropriate attitudes surrounding working mothers, human rights advocates are increasingly noting problems arising prior to and at the end of pregnancy/parental leaves, in spite of the protections in the ESA. In particular, while the ESA (together with the Human Rights Code) protects the employee’s job and wages, employers are increasingly finding creative ways to effectively avoid providing pregnant and returning employees with the same job and compensation they would otherwise have. Some common examples of these tactics include:
As with many human rights complaints, the challenge with many of these changes is that they can be difficult to prove. Changes in job responsibility and authority can be difficult to quantify, not to mention the subtle shifts in attitude that accompany reduced responsibility and authority. Moreover, it is often difficult or impossible to find direct evidence of the connection between the change and the pregnancy/parental leave. In some cases, evidence of such a connection technically should not be required (given that the ESA provides the right to the same or a comparable position on return to work, without the need to show that any change was due to a leave). However, as a practical matter, employee counsel and advocates need to emphasize the connection to the employee’s pregnancy or leave to make a compelling case 1.
Advocates can adopt a number of strategies to deal with this increased tendency to marginalize pregnant women and returning mothers. The first is to draw on all available legal tools to deal with the difficulty in proving these cases. Two important evidentiary tools are:
In addition to employing these evidentiary strategies, advocates can press for full and extensive remedies to the discrimination against pregnant and returning mothers. These can compensate the employee, but also deter the employer from treating this type of discrimination as a necessary cost of business. In particular, for employees who have a short period of service, the Human Rights Code provides favourable remedies by compensating a dismissed employee for wages lost to the date of the award (rather than only for a reasonable notice period, starting from the date of dismissal, as in civil cases) 3. In addition, new amendments to the Human Rights Code will see the removal of the $10,000 limit for mental anguish damages, as well as an elimination of the requirement for wilful or reckless conduct under s. 41(1)(b). Under the new amendments, the Human Rights Tribunal will be empowered to award unlimited monetary compensation for injury to dignity, feelings and self-respect without the requirement of wilful or reckless conduct. Finally, under the Human Rights Code, the employee can seek non-monetary remedies to change an employer’s future practice. These could include implementing training to prevent discrimination and developing certain policies and procedures surrounding pregnancy/parental leaves. A civil claim in court also offers new remedial opportunities. While a claim in court is not directly permitted for a simple claim of discrimination, the court can address ESA violations and can adjudicate human rights concerns when they form part of another cause of action, the most obvious being a claim for wrongful or constructive dismissal. In the recent Keays v. Honda Canada decision, the Ontario Court of Appeal awarded a plaintiff $100,000 in punitive damages as part of a wrongful dismissal claim where the employer treated the employee egregiously over an extended period of time, including in failing to accommodate his disability. While this case does not deal specifically with pregnancy-related discrimination, it does suggest that courts are increasingly willing to award large punitive damages for human rights violations 4.
Cases on behalf of pregnant women and mothers returning to work are always
difficult. In addition to the normal stresses surrounding any employment issue,
the plaintiffs in these cases have the physical stresses of pregnancy and the
emotional issues of addressing child care and leaving children to return to
work. While the one year leave provides many benefits to mothers and children,
returning to work on the other end has become, if anything, more difficult.
In employing the best evidentiary strategies and pressing for the fullest remedies,
advocates may deter employers from continuing the subtle but significant discrimination
that often accompanies these leaves.
Accommodating Diverse Families and Family ResponsibilitiesDemographic shifts and changing family forms continue to challenge preconceptions of what constitutes a “family” and traditional roles and expectations related to care-giving within families. Just as social norms and expectations have had to adjust to these changes, so must human rights law. The Ontario Human Rights Commission’s Policy and Guidelines on Discrimination Because of Family Status released this past spring may provide an important tool for human rights advocates to nudge human rights law regarding family status discrimination forward especially as it relates to workplace policies and practices. However, human rights advocates will need to incorporate critical analysis that extends beyond the Policy as, in many respects, the latter is based on caselaw which has adopted a questionable framework of analysis for family discrimination cases.
The Ontario Human Rights Code provides protection against discrimination on the basis of “marital status” and “family status”. Marital status is defined in the Code as the status of “being married, single, widowed, divorced or separated and includes the status of living in a conjugal relationship with a person outside marriage” (s. 10(1)). “Family status” is defined more narrowly in the Code as “the status of being in a parent and child relationship.” (s. 10(1)) Together, the two grounds of “marital status” and “family status” combine to cover a range of family forms, but they do not cover the full range of relationships that most people would consider familial. Thus, the Code’s restrictive definition may have an adverse impact on groups whose familial relationships do not fit the traditional mould such as individuals identified by sexual orientation, gender identity, disability, creed, race and other race-related grounds. The Code’s restrictive definition may also have an adverse impact on women who continue to be responsible for a disproportionate amount of caregiving work that is performed in families and in society generally. In its Policy on family status, the Commission suggests that the definition of family status may embrace a range of relationships where there are no blood or adoptive ties, but where there are relationships of care, responsibility, and commitment that resemble a parent/child relationship. This definition might then include a much broader range of caregiving relationships such as a person providing eldercare for her grandparent, a person who agrees to care for her sister’s children while she is experiencing difficult economic circumstances, or a person taking care of a younger sibling with a disability. This broader interpretation of the term may better accord with the range of familial relationships that should be protected under the Code.
Discrimination based on family status can take many forms, some overt and some more subtle. The Commission’s Policy makes clear that employers, accommodation providers, and service providers have an obligation to design policies and standards that are inclusive of a range of family types. The Policy also clearly provides that the Code’s family status protections include protections against discrimination arising from a failure to accommodate family-related obligations. But when does a family status need give rise to the duty to accommodate? A line of caselaw arising from the employment context has held that the parameters of the concept of family status cannot be open-ended and cannot apply to “ordinary” family obligations. According to this caselaw, in order to trigger a duty to accommodate, there must be “a change in a term or condition of employment imposed by an employer [which] results in a serious interference with a substantial parental or other family duty or obligation of the employee.” (Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society, [2004] B.C.J. No. 922 (C.A.).) Unfortunately, the Commission’s Policy adopts this same reasoning, stating that a duty to accommodate will be triggered “where there is a significant conflict between an important caregiving responsibility and an institutional rule, requirement, standard or factor.” However, the Policy does note the importance of carrying out a contextual assessment of particular situations. For example:
The Policy notes that the same standard of undue hardship applies to family status discrimination as other forms of discrimination. However, as noted in the Policy, in most cases, accommodations for needs related to family status will not require significant monetary expenditures. Instead, such accommodations require greater flexibility of policies and procedures. Accommodations may also involve some administrative inconvenience, but inconvenience by itself is not a factor for assessing undue hardship.
Discrimination based on family status often arises in workplaces. Frequently, workplace policies, practices and culture do not take into account employees’ caregiving responsibilities. Most workplaces are still built around the assumption that employees are members of families composed of two heterosexual persons, one of whom provides all necessary caregiving for children, elders, and other family members. Below are some examples of policies and circumstances that may give rise to discrimination based on family status:
The Commission’s Policy on family status assists in fleshing out the analysis of this form of discrimination and the different ways in which it may arise. However, several issues remain to be tested in future litigation:
The issue of family status discrimination will only become more pressing as notions of family continue to evolve and as assumptions and practices with respect to family obligations continue to be challenged. Even though the Commission’s policies and guidelines are not binding on any tribunal or court, they do have persuasive force. The Commission’s Policy on family status and its associated report The Cost of Caring will be useful to human rights advocates in pressing for the continued development of the caselaw on this issue in the future. However, on some aspects of the issue, it will be necessary for advocates to incorporate other critical analyses in order to challenge the more restrictive aspects of the framework that continues to be employed to analyze family status discrimination. For a copy of the Ontario Human Rights Commission’s Policy and Guidelines
on Discrimination Because of Family Status, click here. For a copy of the Commission’s
report The Cost of Caring, click here.
Human Rights Update Archives | Cavalluzzo website | Update for Professionals We welcome your comments. If you have comments about the newsletter, we would value receiving them, or to unsubscribe to this newsletter, please send a reply e-mail with UNSUBSCRIBE in the subject or send an e-mail to the Editor, Jo-Anne Pickel, at humanrightsupdate@cavalluzzo.com. To add yourself to the newsletter mailing list, please send an email to majordomo-2@cavalluzzo.com with the word SUBSCRIBE in the subject line. To find out more information about the firm and its lawyers and the scope of our practice generally, visit our web site at www.cavalluzzo.com. Providing this information does not constitute individualized legal advice, and does not establish any form of lawyer-client relationship with our firm or with any of our lawyers. Readers should not rely on or take any action based on this information; professional advice should be obtained. While we strive for accuracy, mistakes are possible and there may be errors and omissions. We disclaim any liability for such errors and omissions. Copyright 2007© Cavalluzzo
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