Number 5 – November, 2007
| Number 5 – November, 2007 |
OFL Advocates For Better Continence Care for the ElderlyThe Ontario Federation of Labour is undertaking a two-pronged strategy to advocate for better continence care for the elderly in long-term care homes. First, the Federation is filing a complaint with Ontario’s Director of Long Term Care to challenge inadequate incontinence policies and practices in the province’s long-term care homes. Second, the OFL is requesting that the Human Rights Commission conduct an investigation and consultation into the issue. A. Complaint to Ministry Most long-term care homes in Ontario ration incontinence products. They also have policies and practices in place that require elderly residents to wear continence pads until they are at least 75% full. The OFL’s complaint charges that such policies and practices place long-term care homes in breach of applicable legislation and standards, the Ontario Human Rights Code, as well as the Agreements the homes must sign with the Ministry of Health and Long-Term Care. The complaint outlines several breaches including the following:
The OFL is requesting that the Director of Long Term Care assign a compliance advisor to conduct an investigation of the continence care policies and practices in long-term care homes. The Federation is also requesting that the Director require homes to comply with legal continence care requirements and take whatever measures are necessary to ensure that residents’ continence care needs are met in a respectful, dignified, and compassionate manner, free from abuse and neglect. B. Call for Human Rights Commission Investigation The OFL is also calling on Barbara Hall, the Chief Commissioner of the Ontario Human Rights Commission, to conduct an investigation into continence care policies and practices in long term care homes. The OFL is requesting that the Commission inquire into, review and develop recommendations, strategies, measures, education and other programs to address the systemic violation of human rights of residents and workers in long-term care homes. While the Commission’s power to pro-actively investigate human rights violations will be greatly expanded when the reforms to the Code come into effect June 30, 2008, the Commission has the power under s. 29 of the current Code to initiate investigations into human rights problems and to co-ordinate plans to address such problems. In both its complaint and request for a Human Rights Commission investigation the OFL stresses the need to investigate how inadequate government funding of continence care has contributed to legislative and human rights violations by long-term care homes. The OFL’s advocacy relating to continence care in long-term care homes is based upon the legal analysis and research contained in the legal opinion provided by Mary Cornish and Jo-Anne Pickel. Click here for a copy of the Executive Summary of the Opinion and here for a copy of the full opinion. Click here to link to the OFL’s website for more information on this issue. Is your body your employer’s business?: Assistive Devices and the Duty to AccommodateAs we move towards an understanding of “disability” as socially constructed rather than innate or essential, accommodation law has also recognized that employers should provide technological devices for employees with physical, intellectual or sensory impairments or functional limitations, to enable performance close to or at the same level as able-bodied employees. A recent decision by the Board of Arbitration in Elementary Teachers’ Federation of Ontario v. Toronto District School Board (Mootilal), [2007] O.L.A.A. No. 341 confuses the obligation by differentiating between “personal” and “work-related” assistive devices. A. Facts In December 2004, ETFO filed a grievance on behalf of a special needs
teacher with 70% hearing loss. The Toronto District School Board teacher
began wearing hearing aids as a child. She compensated for her hearing
loss by also lip reading and using sign language. The new hearing aids improved her performance. She could now focus on individual voices. She could hear what her students were saying even when her back was turned towards them, and could respond to questions much faster. After a month of use, the grievor returned the hearing aids because she could not afford them. The benefit plan in the collective agreement provided for a one-time maximum benefit of $400 for hearing aids, which she had already used up on a previous set in 1997. A government Assistive Devices fund provided another $1,000 but she still owed $2,470 to the supplier. B. Arguments ETFO argued that the TDSB had a duty to accommodate the grievor's disability and as such, it was obliged to supply the digital hearing aids because these were necessary for the performance of her employment duties. The Union took issue with the $400 lifetime hearing aid benefit and said the refusal to purchase the improved hearing aids was a discriminatory “policy” that denied her the ability to perform her job. The policy, the Union argued, could not be justified as a bona fide occupational requirement (BFOR) under the analysis in the Supreme Court's decision in Meiorin, [1993] 3 S.C.R. 3 since the School Board had not established that purchasing these hearing aids would be an undue hardship. The Union relied on the decision to assert that the School Board could only justify its alleged discriminatory policy if it could establish that the decision not to equip the grievor with the hearing aids was a bona fide occupational requirement. The School Board responded that the grievor performed her job very well and was not in need of accommodation. Even if she were, the duty to accommodate disability did not force the employer to provide perfect accommodation. The School Board also argued that the one-time $400 benefit was negotiated as part of the collective agreement. The policy not to pay more than that amount was not discriminatory since all employees with health care benefits were treated the same (i.e., everyone received the same amount, regardless of need). Furthermore, and importantly, the School Board took the position that providing “personal assistive devices” for life-functioning outside the workplace was not part of its duty to its employees. C. Decision Problematically, the Chair of the Board of arbitration, Pamela Picher, denied the grievance on the threshold issue that the employer’s duty to accommodate does not oblige the employer to pay for what she deemed “personal assistive devices”. The majority reasoned that accommodating a disabled employee did not have to extend beyond modifications to the workplace to encompass modifications to the worker. Picher observed that “[a]n employee’s body, generally, is not the employer’s business”. Picher also decided that the Meiorin analysis did not apply to the decision not to fund the hearing aid. The employer’s decision to not help fund or purchase the digital hearing aids was not a “policy” for a standard for the performance of work, or a norm, benchmark, measure or criterion imposed by the employer as a requirement for employment or continued employment. The decision did not set up a barrier based on disability against a disabled employee’s entitlement to work. Therefore, the Board did not accept the Union’s submission that the three-step test in Meiorin ought to be triggered.
D. Analysis: Whose business is it? Like it or not, disability is personal, and disability is bodily; accommodating disability and allowing us to work to our full abilities and in a dignified way involves scrutiny of the body, as it interacts with tools and devices at work. It may well be that a prosthetic limb (or the even easier example – eyeglasses) cannot be classified in the same manner as a digital hearing aid. But at what point does a device such as a specialized hearing aid to drown out background noise cease to become a workplace tool and turn into a personal tool? Compare, for example, an employee with Repetitive Strain Injury who brought her tablet computer to and from the workplace, or a visually-impaired employee who carried a cell phone with a light-ring indicator and large buttons? Whether or not the device stays or goes with the employee seems to be an arbitrary distinction. And here, the grievor was prepared to leave the hearing ads at school if that were necessary for her to become eligible for the funding. The Board’s approach presumes that a bright line can be drawn between technological equipment and the body. Many decided cases of accommodation have included masks, voice-activated software, headsets, and other tools, aids, devices and technologies which interface directly with the body. The Board relied on the fact that the assistive device was “available in the marketplace” and “help[ed] a person take part in life’s normal functions”. But if work is such a large and substantial part of life, should it not be folded into “life’s normal functions”? Did the Board’s reasoning fall back onto the impugned public/private divide? To be fair, the Board doubled back and pointed out that the issue of whether the grievor in fact needed accommodation had not been sufficiently explored by the School Board in consultation with the grievor and the Union. The Board directed the parties to discuss the matters, and recommended that the employer facilitate her purchase of the digital hearing aids through the arrangement of favourable financing and a reasonable repayment schedule. Our government very recently signed the United Nations’ Convention
on the Rights of Persons with Disabilities (click here
for article on the Convention). Once ratified, the Convention will hold
Canada accountable on for compliance with the Convention through periodic
reports to the UN Committee on the Rights of Persons with Disabilities.
This new international human rights instrument expresses very clearly
that persons with disabilities’ mobility and independence are to
be fostered by facilitating access to mobility aids, devices, assistive
technologies and live assistance at an affordable cost (Article 20). Whether
we have succeeded in devising one category of “personal” devices
out of the reach of employees and another category of accessible workplace
devices remains entirely unclear. This case raises a number of questions that advocates for workers with disabilities will have to deal with in the future, and obstacles that will need to be overcome through principled legal arguments:
Damages for Mental Distress in the Employment Context: Potential Impact of Charlton v. OntarioThe Ontario Ministry of Correctional Services was ordered to pay $20 000 in damages for mental distress caused by racial harassment in Charlton v. Ontario, [2007] O.P.S.G.B.A. No. 4. The decision follows on the heels of the latest Ontario Human Rights Tribunal decision in McKinnon v. Ontario released earlier this year which condemned the Ministry for its failure to address systemic racism in correctional workplaces (click here for article on the McKinnon decision). Just as the McKinnon decisions have expanded the arsenal of legal remedies available to address persistent discrimination and harassment, Charlton v. Ontario provides an additional basis on which unions and employees can claim damages for mental distress at arbitration in egregious cases of workplace discrimination and harassment. A. Facts in Charlton v. Ontario The case of Charlton v. Ontario proceeded on an agreed statement of facts. According to this agreed statement, Ms. Charlton, a Black woman of African decent, was employed as a Correctional Officer at the Toronto Jail. In 2005, Ms. Charlton received an anonymous letter at her home containing racist and inappropriate content. She was one of several unionized and non-unionized employees to receive such a letter. As a result of the letter, Ms. Charlton suffered mental stress and had to go off of work and collected Workplace Safety and Insurance Benefits (WSIB). At the time of the decision in 2007, Ms. Charlton had been unable to work since October 15, 2005. Although Ms. Charlton was not covered by a collective agreement, she was entitled, under the Public Service Act, to refer a grievance on her own behalf to the Ontario Public Service Grievance Board (OPSGB). B. Board’s Decision The Board, chaired by Donald Carter, ordered the Ministry to Corrections to pay $20,000 for mental distress arising from the breach of what it found was an implicit contractual guarantee of freedom from racial harassment in the workplace.
The Board ruled that the Human Rights Code’s guarantee to freedom from racial harassment was a term in Ms. Charlton’s employment contract with the Ministry for two reasons. First, section 26 of the Code in effect provides that any contract entered into by the Crown is deemed to contain a provision requiring that it be performed without any employment-related discrimination. The Board ruled that this provision was broad enough to encompass contracts between the Crown and its own employees. Second, the Board ruled that the Code’s guarantees are implicitly incorporated into individual employment contracts between the Crown and its employees pursuant to the Supreme Court of Canada’s decision in Parry Sound Social Services Administration Board v. OPSEU (2003), 230 D.L.R. (4th) 257 (S.C.C.).
Once having found that Ms. Charlton’s employment contract contained an implicit guarantee to freedom from harassment, the Board concluded that it had the jurisdiction to remedy the harassment she suffered. Significantly, the Board found that it not only had jurisdiction to compensate Ms. Charlton for her financial losses but also for the mental distress she suffered as a result of the breach of the term guaranteeeing a harassment-free workplace. The question of whether damages should be awarded for mental distress
flowing from a breach of contract is one that has undergone significant
changes in recent years. Prior to the Supreme Court of Canada’s
decision in Fidler v. Sun Life Assurance Co. of Canada [2006]
S.C.J. No. 30, such damages were only available where an individual could
make out an independent cause of action (e.g. that a tort was committed
in addition to the breach of contract). The Court in Fidler expanded
the circumstances in which mental distress damages could be awarded. The
Fidler case involved an insurance company’s improper denial
of LTD benefits to a disabled employee. The Court ruled that , even in
the absence of an independent cause of action, mental distress damages
could be ordered where there has been a breach of a contract that created
the expectation of a “psychological benefit”. That is, mental
distress damages are not dependent on egregious conduct on the part of
the person breaching the contract; they are intended to remedy the failure
to deliver the psychological benefit promised by the contract. C. Likely Impact of Charlton v. Ontario Decision It remains to be seen what impact the Charlton v. Ontario 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.
Since the Charlton v. Ontario case is an Ontario Public Service Grievance Board case, Chair Donald Carter’s reasoning likely would apply to collective agreements. That is, an arbitrator likely would find on the basis of the Charlton case that there is an implicit guarantee to a harassment free workplace in collective agreements. This conclusion flows from the fact that Parry Sound, the decision relied upon by the Chair Carter for this implicit provision in Charlton was a case involving the application of a collective agreement. As well, the conclusion is consistent with the decision of Arbitrator Shime in TTC v. ATU (2004),132 L.A.C. (4th) 225 where he found, inter alia, that it is implicit term of a collective agreement that the direction of the workforce be exercised in a non-abusive and non-harassing manner. Moreover, there is no reason why only guarantees against racial harassment would be implicitly incorporated into individual employment contracts. A good argument can be made that Charlton has the same effect on individual employment contracts as Parry Sound had on collective agreements – that is, all protections found in the Human Rights Code should now be considered implicitly incorporated into individual employment contracts.
It is unclear from the Charlton v. Ontario case which terms (explicit and implicit ) of an employment contract or collective agreement will create an expectation of a psychological benefit and thus, if breached, give rise to mental distress damages. The Board in Charlton noted that not all terms and conditions of employment create the expectation of a psychological benefit and mental distress damages. There is certainly an argument based on Fidler that an employer’s breach of a disability benefits provision in an employment contract or collective agreement may give rise to mental distress damages. It will be left to future cases to determine whether provisions relating to salary, seniority, or other benefits are intended to provide a psychological benefit and, if breached, give rise to mental distress damages. It may also be argued that the implicit guarantee of reasonable notice of termination in individual employment contracts is intended to create an expectation of a psychological benefit that, if breached, would give rise to mental distress damages.
The variety of heads of damages that may be claimed is often confusing to human rights advocates, unions, and employees. The following heads of damages should be considered when drafting complaints and grievances in cases involving human rights violations:
The types of damages that are likely to be awarded in any particular case will depend on the facts of the case, the seriousness of the human rights violation, and the forum in which the case is being heard. In the case of grievances, the OPSGB's decision in Charlton is a sign that labour arbitrators are considering human rights damages more readily. In appropriate cases in both the unionized and non-unionized context, unions and other advocates should add a ground alleging the breach of contractual term providing expectation of psychological benefit. Upcoming 20th Anniversary of the Pay Equity ActJanuary 2008 marks the 20th anniversary of Ontario’s pay equity legislation. To mark the anniversary, pay equity advocates are sending out the message that Ontario women are entitled to be paid free of the discrimination that keeps them earning less than men. The Ontario government currently owes $78 million from 2006-2007 and will owe a further $467.9 million from 2008-2011 to over 100,000 women working in predominantly female workplaces such as child care centres that use the proxy comparison method for pay equity. Regardless of their occupation or education, most Ontario women 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. This is the best evidence that pay equity in Ontario is far from being achieved, nor has it been maintained as the Pay Equity Act requires. A. Canada Falls Behind Compared to Other Countries Ontario’s failure to adequately fund women’s work has contributed to Canada’s slip in global gender equality rankings. Canada has fallen behind as compared to the rest of the world in terms of ensuring gender equality, according to a study by the World Economic Forum released in early November 2007. The annual study ranking 128 countries found Canada had slipped four spots to 18th place compared with last year. Based on a scale in which perfect equality was assigned a score of 1.0, Canada achieved an overall mark of 0.72. That included almost perfect marks in the categories of educational attainment and health and survival. But Canda scored lower on economic participation and opportunity and much lower on political empowerment, with women making up only 21 per cent of MPs and 23 per cent of cabinet posts in Parliament. The countries that ranked the highest in the World Economic Forum gender equality rankings were countries with the strongest employment equity legislation. Nordic countries received the highest marks for gender parity in education, employment, health and politics. B. Ongoing Efforts to Achieve Pay Equity Advocates have long been frustrated by the government’s many attempts to weaken or eliminate the Pay Equity Act as well as the claims of pay equity opponents such as employers and taxpayer groups, that it should not be a provincial responsibility to fund pay equity. Unions and workers launched challenges under the Canadian Charter of Rights and Freedoms in 1996 and 2001 to obtain more government funding for pay equity. They achieved successful results in both cases. In addition, a mediated settlement in 2003 provided $414 million to fund better pay equity through 2006, but there have been no government commitments to fund pay equity further since that time. Advocates say the government must commit $78 million to cover pay equity funding that should have been allocated since 2006, while another $470 million should be earmarked to help make more salaries fairer through 2011. The Equal Pay Coalition is working hard to get pay equity back on the agenda. The Coalition has launched a postcard campaign to call on the newly elected Government to take action. An awareness campaign will also be launched in 2008, and a report card released on the Government’s progress on pay equity. The Coalition has been lobbying government leaders, and received responses from all 4 party leaders in request to their position on equal pay for women, which can be found on their website. The Coalition has also convened a meeting with the Pay Equity Commissioner to discuss the Commission’s ongoing obligations to monitor and maintain employers’ current pay equity obligations, and to educate the public about their rights. As Ontario moves towards the 20th Anniversary of the Pay Equity Act, the Coalition has mounted a province-wide campaign to bring public attention to the need for Ontario’s pay equity system to be revitalized, strengthened, adequately resourced and enforced. For more information visit the Equal Pay Coalition website at: www.equalpaycoalition.org
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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