Human Rights Tribunal Orders TTC to Announce Subway Stops to Accommodate Blind and Visually Impaired Riders

On 29 June 2005 the Human Rights Tribunal ruled on a long-standing discrimination complaint in Lepofsky v. Toronto Transit Commission and ordered the TTC to consistently announce subway stops to accommodate blind and visually-impaired riders.

The complainant, David Lepofsky, a blind Toronto lawyer, has for over a decade, tried to get the TTC to provide effective, reliable, consistent audible announcements of its subway stops on Toronto's subway system to accommodate the needs of blind and vision impaired subway riders. An experienced lawyer, he represented himself at the hearing. However, at his request, he has been assisted by Mary Cornish and Greg Sitch on a pro bono basis.

After several days of hearings spanning four months the Tribunal Chair, retired Justice Alvin Rosenberg, reserved for only 15 minutes before ruling that the TTC has discriminated against Mr. Lepofsky and other blind individuals for more than a decade. Justice Rosenberg also stated that any time that would pass between this ruling on liability and his final ruling on remedies would cause irreparable harm to blind subway riders. Therefore on 30 June 2005 he issued a number of interim orders to be put into immediate effect by the TTC.

These orders included:

* The TTC shall commence announcing subway stations, clearly and consistently at each station;

* The TTC shall conduct regular surveys of how consistently and appropriately the subway stop announcements are made. The Chief Executive Officer (“CEO”) of the TTC shall report to Justice Rosenberg by letter on the first day of each month, commencing on August 1, 2005, with respect to the surveys taken and the results achieved;

* The TTC shall conduct educational seminars for their guards, drivers and senior management, on a rotating basis, so that all employees in those categories will have attended at least one such seminar in the next 90 days.

Justice Rosenberg remained seized of the matter and expects to issue a full decision in 4-6 months.

To access a copy of Justice Rosenberg’s interim decision, please click here for a version in Word, and here, for a pdf version.

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Bill 144 labour law reforms are now in force - Update available

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Hugh O'Reilly and Fred Holmes comment in the Globe & Mail on the Chaoulli decision

Hugh O'Reilly and Fred Holmes have published a commentary on the Chaoulli decision in the online edition of the Globe. Hugh and Fred's comment focusses on the limitations of private insurance and the need to maintain a strong public health system in Canada.

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UPDATE available on Chaoulli Decision: Supreme Court of Canada Strikes Down Quebec Prohibition on Private Health Insurance

On 9 June 2005 the Supreme Court of Canada released a decision striking down legislation in Quebec that prohibited private health insurance for publicly-funded services. To view a copy of our UPDATE please click here. To read a copy of the Court's decision, click here.

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UPDATE on Bill 211 Repeal of Mandatory Retirement now available

An UPDATE on the Ontario government's proposed Bill 211 to repeal mandatory retirement is now available. To view a copy of the UPDATE please click here. To view a copy of the First Reading version of Bill 211 click here.

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Ontario Court of Appeal Overturns Lower Court’s Refusal to Exercise Jurisdiction
Over Benefits Matter and Awards Nurse’s Estate Over $200 000.

Liz McIntyre and Fay Faraday represented ONA in this appeal challenging a decision by the trial judge declining jurisdiction over the employer’s negligent administration of life insurance benifits.

Carole Perlett, a registered nurse and member of the Ontario Nurses Association (“ONA”), was employed by Riverside Health Care Facilities Inc. (“Riverside”) from March 16, 1981 until she was killed on March 22, 1996. After her death, the Estate of Ms. Perlett (“the Estate”), claimed life insurance benefits on her behalf from the Riverside under a group life insurance policy issued by The Mutual Life Assurance Company of Canada (“Mutual Life”) and administered by Riverside (the “Policy”).

The Estate soon discovered that Ms. Perlett’s life insurance entitlement was only the basic amount under the Policy instead of the enhanced entitlement equal to double Ms. Perlett’s annual earnings at the time of her death. Under the collective agreement Riverside was only obliged to pay the premiums of the insurance plan and provide an information booklet. ONA grieved the matter but withdrew the grievance when Riverside took the position that the matter was inarbitrable. The Estate took the matter to court naming both Riverside and Mutual Life as parties. Riverside then took the position in a preliminary motion that the matter was within the exclusive jurisdiction of an arbitrator. ONA intervened but eventually withdrew when the parties agreed that the issue of jurisdiction would not be put before the court and the case would be argued on its merits. Before trial the Estate settled with Mutual Life for $55 000.

At trial, the court concluded after hearing all of the evidence and despite being informed the parties were not contesting jurisdiction that: “Had Carole Perlett not been a member of a collective bargaining unit, I would have had no difficulty in concluding negligence by the employer is made out.” The trial judge then went on to hold that Riverside’s negligence in administering the group life insurance plan was a matter “within the normal scope of employer-[employee] relations, and [was] governed by the collective agreement”. On this basis, and in reliance on the Supreme Court of Canada’s decision in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, the trial judge dismissed the Estate’s action. The trial judge upheld her decision on a reconsideration motion by the Estate.

A unanimous panel of the Ontario Court of Appeal overturned the decision of the trial judge. The Court cited the following three reversible errors:

Because the trial judge had concluded that but for the collective agreement she would have found Riverside negligent, the Court of Appeal having overturned the jurisdictional ruling awarded the Estate judgement for $206 840 with pre and post judgement interest. The Court did not accept Riverside’s submission that any award of damages should be either foreclosed or reduced by the amount settled with Manual Life. The Estate was also awarded costs on the appeal set at $25 000 and costs of the trial.

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Mary Cornish made expert presentations at June 2, 2005 World Bank Seminar on Trade, Gender and Labor Policy.

Mary Cornish will be speaking at a World Bank Seminar in Washington on June 2, 2005 entitled: "Equitable Development and the MDGs: Addressing Equity Challenges in Labor and Trade Agendas". She will make two presentations - one on "Equity Challenges in Trade and Labor Policy" and one on "The Impact of Global Trade Integration". The seminar will include equality experts from the ILO, UNIFEM, and the UN Office of the High Commission on Human Rights. She also prepared the working discussion paper for use by the Seminar experts and participants entited: "Building Gender Equality into the Global Trading System". She prepared a Working Discussion Paper for the Bank to further dialogue and debate on the issues.

Law Society Awards its Top Honour - the Law Society Medal - to Paul Cavalluzzo

The Law Society recently awarded Paul Cavalluzzo the Law Society Medal. This is the Law Society's top honour and recognizes Paul for his outstanding contributions as a member of the legal profession. The Medal is awarded annually to selected lawyers who demonstrate in their work the highest ideals of the legal profession.

Here is the text of the citation:

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Mary Cornish Honoured by the YWCA Toronto

Mary Cornish, 1988 Women of Distinction recipient, has been honoured by the YWCA Toronto. In celebration of the 25th Anniversay of the YWCA Toronto's Annual Women of Distinction Awards, Mary Cornish has been chosen to be among a group of 25 women to represent the contributions of 175 Women of Distinction to the life of the city, the country and the world. Banners for each of these 25 women have been erected on University Avenue between Dundas and Adelaide Street from April 27, 2005 to June 10,2005.

Click here to view the YWCA Press Release.

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Ontario Court of Appeal unanimously affirms ONA’s position that the denial of severance pay to disabled employees under the Employment Standards Act is discriminatory and unconstitutional

Liz McIntyre and Amanda Pask represented the Ontario Nurses’ Association in this appeal concerning ONA’s challenge to the constitutionality of a section of Ontario’s Employment Standards Act that denied severance pay to employees whose contract has been frustrated by illness or injury.

In January 2004 a panel of Ontario’s Divisional Court issued a unanimous decision that this provision was contrary to the equality provisions of the Charter of Rights and Freedoms, and ordered the payment of the severance benefit to a nurse who had been terminated for innocent absenteeism as a result of her health.
The Divisional Court had reviewed the legislative history of the ESA’s severance pay provisions to conclude that "severance pay.... is an earned benefit that compensates long-serving employees for their past services and for their investment in the employers’ business" and "is properly payable or any non-culpable cessation of employment". The Divisional Court concluded that "the denial of the benefit to a group already disadvantaged by their disability and the loss of their employment by reason of their disability is discriminatory and not demonstrably justifiable. As such subsection 58(5)(c) cannot withstand constitutional scrutiny."

The employer appealed this decision to the Ontario Court of Appeal, which, on May 4, 2005 issued a unanimous ruling upholding the decision of the Divisional Court.

At the Court of Appeal the Employer and the Attorney-General took the position that the dominant purpose of severance pay was not to compensate for past services, but rather to compensate for capital losses going forward into new employment, and argued that “since employees whose contracts have been frustrated due to illness or injury are unlikely to re-enter the workforce, denying them severance pay is not discriminatory”.

The Court of Appeal rejected this argument, stating that, even assuming “for the sake of argument”, that the dominant purpose of severance pay was as suggested by the Employer and the Attorney-General, their defence of the legislation failed because of its reliance on treating employees whose contracts were frustrated due to illness or injury as employees who will not work again.

In the unanimous decision written by Justice Jurianz, the Court held that the approach of the Employer and Attorney-General was based on impermissible stereotyping of disabled persons as being unable to fully participate in the workforce. The Court further commented that this generalization was “not true”, because employees with severe and prolonged disabilities, while unable to be employed in one workplace, may yet be able to be employed elsewhere, and further, because disabilities, the skills of employees with permanent disabilities, and the ability of society to accommodate disabilities are all are subject to change.

The Court also held that the fact that the exclusion is inconsistent with other purposes of severance pay (such as compensation for past service) would have been sufficient to ground a s.15 breach, stating: “In my view, where a statute has several purposes, adverse differential treatment in light of one purpose is sufficient to establish a prima facie breach of s.15".

The Court went on to rule that the provision was not saved under section 1 as a reasonable limit in a free and democratic society, and therefore upheld the decision of the Divisional Court declaring the provision to be unconstitutional and of no force and effect.

While this decision concerns predecessor legislation to the current Employment Standards Act, 2000, the legislation has changed only in form and not in substance. The new provisions denying severance pay to employees whose contract of employment is frustrated by illness or disability are found in section 9 of Ontario Regulation 288/01 under the ESA, 2000.
This decision will be of considerable significance to those seeking to uphold the rights of ill and disabled employees to receive severance benefits. In addition, the Court’s finding that differential treatment in light of one of the purposes of a multiple purpose statute is sufficient to demonstrate a breach of s.15, is a significant development in equality rights jurisprudence.

The decisions may be read in full by clicking on the links below.

Court of Appeal Decision - Ontario Nurses’ Association v. Mount Sinai Hospital
Divisional Court Decision - Ontario Nurses’ Association v. Mount Sinai Hospital

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Arbitrator rules that school board's prohibition against wearing nose rings is unreasonable

AEFO challenged a provision in a dress code enacted at a high school in the employer's school division that forbade students and teachers from wearing jewellery on their faces. The dress code was enacted by the school in consultation with teachers and a school council made up of parents and one teacher. The discussions concerning this code focussed on its applicability to students, although the code ultimately applied to teachers as well. The Union filed a policy grievance alleging that the facial jewellery provision of the dress code was an unreasonable rule enacted without consulting the Union. The Union alleged that the policy served no legitimate purpose and was overly intrusive as it applied to teachers who wear this type of jewellery as a means of expression, both inside and outside the classroom. The employer, for its part, argued that the rule was required in order to ensure that students would respect and obey the rule themselves. The employer argued that, if teachers could be allowed to wear facial jewellery, students would be less willing to obey this prohibition. The employer based its arguments in part on the fact that teachers act as role models for students and must, in that capacity, promote respect for the rules and culture of a particular school environment.

A majority of the Board of Arbitration held that the rule was unreasonable. To constitute a reasonable rule, the rule must rationally and effectively serve to promote the purpose underlying the rule, and this purpose must itself be legitimate. On the facts of this case, namely, proof that one teacher had been wearing and continued to wear a nose ring both before and after the rule was enacted, and proof that this had not limited the school's ability to enforce its dress code, the rule was not needed in order to promote the employer's interests. While in some cases rules that apply to students could equally be applied to teachers, there was no evidence to support the fact that the rule here had to be extended and applied to teachers as well. The panel also found that there was no proof that the school was experiencing difficulties with order and discipline and therefore required the challenged rule.

Click Here to view the decision.

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Arbitrator Restricts Use of Non-Teacher Supervisors in Classrooms

The Ontario English Catholic Teachers’ Association, represented by David Bloom, has won an important education law arbitration prohibiting school boards from using non-teacher supervisors to stand in for absent teachers. The decision in OECTA v. Toronto Catholic District School Board, released 20 April 2005, can be viewed by clicking here. The decision is significant for two reasons.

1) Following the Supreme Court of Canada case of Parry Sound v. OPSEU, [2003] SCC 42, it confirms that under s. 48(12)(j) of the Labour Relations Act an arbitrator has jurisdiction to apply and enforce the employment-related provisions under the Education Act and regulations directly without a nexus to a separate provision of the collective agreement;

2) When a teacher is absent, school boards are not permitted to engage non-teachers to perform classroom supervision to cover that absence.

On the first point, the school board argued that the arbitrator had no jurisdiction to look into how teacher absences were dealt with as there was no provision in the collective agreement stating that non-teacher supervisors could not be used to cover teacher absences. Arbitrator Randi Abramsky rejected this argument and became one of the first Ontario arbitrators to explore the implication of Justice Iacobucci’s ruling in Parry Sound that human rights and other employment related statutes “establish a floor beneath which an employer and a union cannot contract” and that arbitrators do not require an express provision in the collective agreement to acquire jurisdiction under s. 48(12)(j) of the Labour Relations Act, 1995.

The Arbitrator ruled that the school board’s management rights under the collective agreement could not be extended to violate employment-related statutes that establish employee rights. Those aspects of the Education Act which deal with the employment rights of teachers – including those provisions designating who is permitted to provide classroom instruction – are “employment-related” and therefore enforceable through the arbitration process.

On the second point, the arbitrator accepted the Association’s submission supervising pupils in class during the instructional program is a “core” duty of teachers and, pursuant to the regulations under the Education Act, can only be performed by non-teachers in emergency situations. The Arbitrator rejected the school board’s contention that supervision is distinct from instruction. She ruled that “the instructional program includes more then active teaching. It includes supervision of planned learning activities.” The Arbitrator concluded that the Board was in violation of the legislation and the collective agreement by not using qualified teachers to cover for the absences of other teachers. The Arbitrator stated conclusively that “under the Act and regulations, substituting for an absent colleague is the work of a teacher.”

This case is a complement to the decision of Arbitrator Etherington in London District Catholic School Board v. OECTA, [2000] O.L.A.A. No. 764 (QL) which prohibited the school board from hiring non-teachers to supervise classrooms to provide prep time for qualified teachers.

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Inquest jury adopts ONA's recommendations regarding changes to Long Term Care in Ontario

Kate Hughes and Philip Abbink represented the Ontario Nurses' Association at a ten week Coroner's Inquest into the violent murder of two elderly residents of Casa Verde, a Long Term Care facility. P. Lopez and E. Elroubi were murdered by their roommate on the same day he was admitted to the nursing home. The evidence was that this violence was not an isolated event: there have been 14 homicides in long term care facilities in Ontario since 1999, and; over 3,000 incidents of violence have been reported to the Ministry of Health and Long Term Care.

The Inquest heard testimony from numerous experts on the long term care industry, including evidence that the staffing at Ontario facilities has not kept up with the increased acuity levels and dementia problems of the growing elderly population. In particular the staffing of such facilities is far too low, both in terms of the numbers of Registered nurses and other specialized staff to safely care for residents with cognitive impairment, many of which exhibit aggressive behaviors as a result of their dementia and related diseases.

The jury adopted ONA's recommendations for short and long term changes to address the problem. The jury's 85 recommendations implemented ONA's recommendations regarding the need to staff and fund specialized facilities and units in Long Term Care facilities to treat the growing numbers of individuals with cognitive impairment, specialized training for all staff, as well as changes to the assessment and placement process.

Click on the following links to read ONA’s recommendations to the Jury and the Verdict of the Coroner’s Jury

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SARS Action Tested in Court

In 2003, the Ontario Nurses Association, on behalf of 52 registered nurses, the family of one deceased registered nurse, and nearly 100 of their family members, filed a statement of claim against the Government of Ontario alleging that the government was negligent in the manner in which it responded to and managed the response to the SARS outbreak in Toronto. Each of the nurses contracted SARS and was severely affected by SARS, both in terms of the harm to their health, as well as to the impact on their working, family, and social lives.

The nurses argue that Ontario failed to inform the nurses early on of precautions they could take to protect themselves from SARS and negligently drafted Directives setting out ways to protect themselves. They also alleged that the Government was responsible for enforcing the workplace safety precautions set out in the Occupational Health and Safety Act. Finally, the nurses allege that the Government has violated their Charter rights by relaxing the Directives for improper purposes, namely to deny the existence of a problem in order to get the World Health Organization to lift a travel advisory it issued against Toronto, and by drafting the Directives without consulting the nurses or their union.

Ontario responded by filing a motion that seeks to strike out the claim on the grounds that it discloses no legal right to pursue the government.

On April 8 and 12, the Government of Ontario presented its argument on this motion in the Superior Court of Justice before Justice Maurice Cullity. The Government argues that it did not owe the nurses a duty to the nurses to ensure that they worked in a safe, healthy work environment reasonably free from the threat of SARS transmission. Elizabeth McIntyre and Stephen Moreau responded on behalf of ONA, arguing that the Government owed these duties, in particular after they took over aspects of hospital operation in their response to SARS. This case tests the boundaries of the law respecting the liability of public bodies in negligence: it will determine how far negligence principles can operate in the domain of public health. Justice Cullity's has reserved judgment in this case. It is not known when his decision will be released.

To review the March 25, 2004 Press Release of the Ontario Nurses' Association, please click here.

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Human Rights Tribunal hearing challenging the TTC's discriminatory practices towards visually impaired riders opens in Toronto with CHSMC providing pro bono legal representation.

The complainant, David Lepofsky, a blind Toronto Lawyer, has for over a decade, tried to get the Toronto Transit Commission to provide effective, reliable consistent audible announcements of its subway stops on Toronto's subway system to accommodate the needs of blind and vision impaired subway riders. An experienced lawyer, he has been representing himself at the hearing. However, at his request, he has been assisted by Mary Cornish at the hearing, who adduced his evidence and throughout the rest of the hearing by Greg Sitch. The hearings commenced on March 22, 2005 at the Hearings Tribunal's Toronto offices and are scheduled to continue into June.

Lepofsky, who first complained to the Toronto Transit Commission in 1994, alleges that the TTC, some 12 years later, still does not provide consistent and reliable audible announcements of train stops. The TTC says that its efforts to date are the best it can do. The Commission and Lepofsky are asking for the Tribunal to order the TTC to do whatever it takes to promptly provide such announcements and in view of the TTC's past history, to require the TTC to institute wide-ranging systemic changes to its management and operational practices to ensure that the rights of riders with disabilities are pro-actively respected and enforced.  Prior to the hearing, our firm's Elizabeth Shilton provided pro bono advice to Mr. Lepofsky in preparation for the hearing.

"I want to thank your entire firm for the tremendous pro bono support you have been providing to me on this case. Your help is in the highest and finest tradition of the legal profession, and reflects the excellent quality of legal services for which your firm is so widely respected."  David Lepofsky

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Malicious Prosecution and Negligence Action by Chiropractor Against Professional Regulator Proceeds

Stephen Moreau is acting for Dr. John Alevizos, a chiropractor who has launched a civil action against the Manitoba Chiropractors Association for the way in which it investigated and prosecuted a complaint launched against him.  Dr. Alevizos successfully defended this prosecution and now claims that the investigation against him was negligent and the prosecution malicious.  This case raises interesting questions surrounding the type and quality of the investigation that health professionals should expect from their regulators when they are subjected to a complaint of professional misconduct.  The action has recently survived a challenge by the defendants to its legal validity, and the defendant has now filed its defence. 

Available to view is a copy of the Amended Statement of Claim and the Statement of Defence in this matter.

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IAMAW Obtains Ground-Breaking Decision that United Airlines Must Pay Pension Plan Contributions for its Canadian Employees during Insolvency Proceedings

The IAMAW, represented by Hugh O’Reilly filed a motion to lift a stay of proceedings which had included an order allowing the employer to cease making payments to its pension fund while the Company continued to operate under the protection of insolvency legislation. As a result the airline was ordered to pay pension plan contributions.

United Air Lines has been in Chapter 11 restructuring proceedings in the U.S. and proceedings under the Companies Creditors Arrangement Act (CCAA) in Canada since 2003. In reasons released February 28, 2005, Justice Farley of the Superior Court of Ontario ordered UAL to pay outstanding pension plan contributions on behalf of its Canadian employees. After entering Chapter 11 proceedings in the U.S. and winning court approval to suspend contributions to its U.S. pension plans during the restructuring, UAL obtained a foreign recognition order in Canada and obtained an identical order to suspend pension plan contributions.

Hugh O’Reilly argued, on behalf of employees represented by the IAMAW, that the stay of proceedings permitting UAL to cease contributions to the Canadian pension plans was improper. Justice Farley agreed that it was not a "given right" for employers to suspend pension plan contributions in an insolvency proceeding, and that they must negotiate ongoing contributions with unions or other stakeholders.

Justice Farley also noted that UAL had not demonstrated that making pension plan contributions would jeopardize the restructuring.

Justice Farley’s judgment also made several observations on the UAL restructuring, including that, although the restructuring focussed on the U.S. business, it could not ignore Canadian employees and Canadian laws governing restructuring proceedings, further jeopardizing Canadian employees pensions. It emphasized the difference between the two systems, noting in particular that if the restructuring failed, the U.S. had a national insurance scheme for pension plans that the Canadian system does not.

This judgement clarifies and reinforces Justice Farley’s earlier decision in Re: Air Canada, in which he held that employers and unions must negotiate regarding pension plan contributions, and that employers may not use a stay of proceedings to ignore their statutory and contractual obligations.

The decision is a victory for unions and pension plans involved in restructurings, and will have implications for other restructuring proceedings in Canada and the U.S. The decision clearly outlines the duty of employers and unions to negotiate pension plan contributions in good faith with a view to emerging from restructuring proceedings on sound financial footing.

The judgment has been reported in the Toronto Star.

The full text of the decision will be made available once a typed version is issued by the Court.

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Divisional Court Limits Retroactive Application of Professional Misconduct Regulations

On 25 January 2005, the Divisional Court released its decision in Cressman v. Ontario College of Teachers ruling that professional misconduct regulations did not apply to a teacher who had resigned before the regulations came into effect. In the decision, the Court clarified the application of its earlier decision in Bhadauria v. Ontario College of Teachers which had applied the discipline regulations retroactively. To access a more detailed analysis of the case click here. To access the Divisional Court decision, click here. Paul Cavalluzzo, Victoria Reaume and Fay Faraday represented Mr. Cressman before the Divisional Court.

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Coroner’s Inquest Regarding Murders at Casa Verde Health Centre

Kate Hughes is currently acting as counsel for the Ontario Nurses Association who have standing in the Coroner's Inquest regarding the Death of Pedro Lopez and Ezzeldine Elroubi starting 31 January 2005. These two men were murdered in the Casa Verde Health Centre by another resident who had just been placed at the Long Term Care Facility. It is expected that the Coroner's inquest will examine a number of issues relating to long term care facilities in Ontario including placement and classification of potentially violent residents, staffing, training, risk assessment and security measures and a number of other policy issues that will affect health care professionals in long term care setting across Ontario. The hearing is estimated to be 6-8 weeks long.

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Ontario Nurses Association Wins Interim Interlocutory Injunction to Halt Scheduling Change that would Disrupt Nurses' Childcare Arrangements

On January 19, 2005, the Ontario Nurses Association won a precedent-setting interim interlocutory injunction that protects the rights of women workers to arrange their work schedules to accommodate their childcare needs. Kate Hughes represented ONA on the injunction.

ONA grieved an attempt by the Toronto East General and Orthopaedic Hospital to unilaterally impose rotating shifts for certain nurses who had always worked permanent evening and night shifts. The nurses had been hired specifically on permanent evening and night shifts in order to accommodate their childcare needs.

As an arbitrator cannot issue a substantive interim order, the court ruled that it should intervene to issue an interim interlocutory injunction. The Court recognized that the grievance focused on the right of women to arrange their work schedules to accommodate the care of their young children. The Court found that "families and especially young children’s lives could be drastically and irreparably affected for substantial period of time" if the injunction were not granted pending the resolution of the grievance.

Click here to see the decision in Aranas v. Toronto East General & Orthopaedic Hospital.