Number 9 – May, 2009
| Number 9 – May, 2009 |
New Bill Answers Call for Safer WorkplacesSignificant changes may soon be sweeping through Ontario workplaces with respect to heightened protections against violence, assault, harassment, verbal and psychological abuse at work. Bill 168, The Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009, was introduced on April 20, 2009, by Labour Minister Peter Fonseca. The proposed legislation follows extensive consultations with unions, employers, and other stakeholders on workplace violence prevention last fall, and signals the arrival at a crossroads after these last few years of sustained and concerted lobbying. If passed, Bill 168 would amend the Occupational Health and Safety Act (OHSA) to specifically address workplace violence and workplace harassment as separate and distinct workplace safety issues. This would bring Ontario law in line with other jurisdictions in Canada, such as Quebec, Saskatchewan and P.E.I. For workers in the province, this would broaden the scope of grievances and complaints lodged with the Ministry of Labour. The duties of employers, supervisors and workers under OHSA have both been clarified to apply specifically to workplace violence. The proposed legislation would require employers to develop policies and – importantly – implement programs to prevent both workplace violence and workplace harassment. Implementation of mandatory policies would become a legal duty. Additionally, the OHSA amendments would expressly require employers to take reasonable precautions to protect an employee from domestic violence in the workplace, and allow a worker to remove themselves from harm if they have reason to believe that workplace violence is likely to endanger them. Under Bill 168, employers must also engage in assessments to measure the risk of workplace violence. While the language of the amendments falls short in some areas, the spirit and substance of the proposed legislation should be applauded. Main Features of Bill 168 A. New Definitions of Workplace Violence and Harassment Bill 168 defines "workplace harassment" as follows:
Bill 168 defines “workplace violence” as follows:
Some problem areas are evident here. The definition of violence only deals with actual or attempted physical force which causes or could cause physical injury and does not include the threat of physical force, and does not anticipate the potential for violence enough. The definition also limits workplace violence to acts that cause or could cause physical injury. This may preclude acts of violence which only cause or could cause psychological injury, such as Post Traumatic Stress Disorder, anxiety, depression, and other conditions that arguably are not captured by the term “physical injury”. Also, the definition of “workplace violence” addresses physical force against a worker per se and does not address violence in the workplace experienced generally, between clients or customers, or by others in the workplace who may not be “workers”, such as students. B. Workplace Violence and Harassment Policies and their Implementation Bill 168 requires employers to prepare written policies dealing with workplace violence and harassment. Workers must be trained on these policies, which must be posted in workplaces with more than five workers. The policies must be reviewed by the employer annually. Under Bill 168, employers are required to develop and maintain a program to implement workplace violence and harassment policies. The workplace violence program must include measures and procedures to:
If any of these duties are violated or provisions contravened, the penalties in Part IX of OHSA would apply (fines, imprisonment). C. Risk Assessments for Workplace Violence Employers would be obliged to assess the risk of workplace violence that may arise, based on the nature of the workplace, the type of work, or working conditions. Risk assessments must take into account circumstances that would be common to similar workplaces as well as circumstances specific to the workplace itself. Bill 168 also requires that workplace violence risks be reassessed "as often as is necessary" to ensure the workplace violence policy and program continue to protect workers. Bill 168 requires that employers “advise” the joint health and safety committee or the health and safety representative of the results of these risk assessments. If the workplace does not have a joint health and safety committee or a health and safety representative, the workers must be advised of the results of the assessments and of how to obtain a copy of the assessment. This causes some concern regarding the one-way communication envisioned by the Bill, and many unions would prefer to see consultation between the parties instead. Domestic Violence The issue of “domestic violence” in the workplace is explicitly addressed in Bill 168. The Bill requries employers to "take every precaution reasonable in the circumstances" to protect workers from domestic violence that would likely cause physical injury to workers in the workplace. Curiously, domestic violence is not defined and reinforces the false dichotomy between work and home, public and private life. The language of the amendment only addresses physical injury as opposed to the types of harms, hazards and injuries conduct such as harassment, stalking, and psychological and emotional abuse may cause. These are, in fact, demonstrated precursors of physical violence. D. Disclosure of Persons with a Violent History Another pioneering aspect of Bill 168 is the obligation on employers and supervisors to provide information, including personal information, to a worker about a person with "a history of violent behaviour" if:
Bill 168 amends s. 43 of the OHSA on work refusals to add that a worker may refuse to work or do particular work where he or she has reason to believe that workplace violence is likely to endanger him or herself. F. Notice to Heath and Safety Committee and to the Ministry of Labour Bill 168 also obliges employers to notify the Ministry of Labour where a person is disabled from performing work or requires medical attention because of an act of workplace violence. This notice provision confirms that injuries to workers from acts of violence are reportable under Part VII of the OHSA. However, there is no notice provision to report to the Ministry of Labour regarding harassment which leads to requiring medical attention or where a person is disabled from performing work. For a copy of Bill 168, click here Returning to Human Rights Roots: “Human Dignity” and Comparator Groups are Out, Substantive Equality is InHuman rights claimants and those committed to a principled approach to human rights will take some comfort from the Ontario Divisional Court’s recent decision in Tranchemontagne v. Ontario. The Divisional Court has clarified the discrimination test to be applied under the Human Rights Code. It also has clarified that the Charter’s s. 15 equality test should not be applied to claims made under human rights legislation. The “human dignity” test and rigid comparator group analysis used by some adjudicators are also to be discarded in favour of a more substantive approach to discrimination. The Divisional Court’s decision is not free of all problems but it does signal a significant step toward a more principled approach to statutory human rights. It is not yet clear whether the Ontario government will appeal the Divisional Court’s decision. Background The Divisional Court’s decision in Tranchemontagne v. Ontario, [2009] O.J. No. 1613 is the most recent iteration of a 10 year legal journey. The case is well known to many in the human rights community. It involved two individuals who challenged a provision that barred them from receiving disability benefits under the Ontario Disability Support Program Act (“ODSPA”). The provision in question excluded from eligibility persons who are dependent on, or addicted to, alcohol or drugs. The individuals sought to have the Social Benefits Tribunal (“SBT”) rule that the provision was discriminatory under the Human Rights Code. In its initial decision, the SBT found that it did not have jurisdiction to consider a challenge to legislation under the Code. The case made its way to the Supreme Court of Canada which ruled that the SBT did have the jurisdiction to consider the human rights challenge. The Supreme Court ruled that any statutory tribunal empowered to decide questions of law has the jurisdiction to apply the human rights legislation. Fast Forward: Clarifying the Test for Discrimination The Tranchemontagne case was remitted back to the SBT for determination. The SBT concluded that the impugned provision was discriminatory and contrary to the Code. The Ontario government sought judicial review to the Divisional Court, which upheld the SBT’s decision as correct. The Court’s decision is significant for ODSPA claimants who are dependent on alcohol or drugs. It clarifies that these claimants should not be barred from receiving ODSPA benefits. Just as significant are the Court’s conclusions in relation to the appropriate test to be applied in discrimination cases under human rights legislation. Over the past several years there has been a general lack of clarity on this issue. Many administrative decision makers and courts have applied the Charter’s s. 15 equality test to discrimination cases arising under human rights legislation. Until recently, a claimant alleging an s. 15 violation was required to show that their “human dignity” had been infringed. After widespread criticism of this subjective and malleable test, the Supreme Court in R. v. Kapp, [2008] 2 S.C.R. 483 returned to its equality rights roots by reaffirming the equality test set out in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143. The Supreme Court reaffirmed the substantive approach to equality taken in Andrews. It also eliminated “human dignity” as a separate component of the s. 15 test. Following on the Supreme Court’s heels, the Ontario Divisional Court’s decision in Tranchemontagne signals a return to the courts’ statutory human rights roots, albeit with some modifications. The decision is significant for the following reasons:
Conclusion As noted above, it is not yet clear whether the Ontario government will appeal the Divisional Court’s decision in Tranchemontagne. For now, the decision is a significant one for any person, trade union or other organization claiming a violation of the Human Rights Code. It also applies to all statutory human rights claims regardless of the forum within which the claim is being made. That is, the decision applies whether the discrimination claim is being made before the Human Rights Tribunal of Ontario, an arbitrator, any other administrative or human rights tribunal, or the courts. Public Sector Unions Take Aim at Federal Government’s Wage Restraint and Pay Equity LawsThe two largest federal public sector unions – the Professional Institute of the Public Service of Canada (PIPSC) and the Public Service Alliance (PSAC) – each have launched Charter challenges to the wage restraint and pay equity laws passed as part of the federal budget in March. Both unions, as well as other public sector unions, have steadfastly opposed both pieces of legislation from the time they were introduced. Both statutes were included in the government’s Economic and Fiscal Statement that precipitated the suspension of Parliament last November. Both unions are challenging the wage restraint legislation as a violation of the freedom of association guaranteed under s. 2(d) of the Charter. They are both challenging the government’s wide ranging changes to – and erosion of – pay equity protections for public sector workers as a violation of the equality rights protected under s. 15 of the Charter. Public Sector Wage Restraints The Expenditure Restraint Act severely restricts the ability of public sector unions and workers to negotiate pay rates and compensation with their employers. The Act compromises the essential integrity of the process of collective bargaining. It does so by invalidating the fruits of past collective bargaining and pre-emptively undermining future collective bargaining on one of the most important issues to workers: compensation. The Expenditure Restraint Act establishes the following wage caps:
The legislation interferes with collective bargaining in three primary ways:
In the 2007 B.C. Health Services case, the Supreme Court of Canada ruled that s. 2(d) of the Charter protects workers’ right to bargain collectively. The Court held that the government “must not substantially interfere with the ability of a union to exert meaningful influence over working conditions through a process of collective bargaining conducted in accordance with the duty to bargain in good faith.” Both PIPSC and PSAC are challenging the Expenditure Restraint Act as a violation of freedom of association as it denies the process of good faith negotiation and consultation that is protected under s. 2(d). Erosion of Pay Equity The federal government’s budget legislation also included the Public Sector Equitable Compensation Act (PSECA), a statute which overhauls the pay equity system applicable to public sector workers. The PSECA violates the fundamental equality right of women and other workers in female dominated jobs in the federal public sector to be free from wage discrimination. The legislation perpetuates ongoing sex-based wage discrimination by the federal government:
The PSECA redefines key pay equity concepts and wrests these concepts from their quasi-constitutional human rights underpinnings in the Canadian Human Rights Act. Among other substantive changes, the PSECA redefines the criteria to be applied in assessing the value of work performed, restricts the pool of workers who will who will receive protection under the Act, and limits the comparators to be considered during an assessment. Having restricted substantive rights to pay equity, the PSECA restricts pay equity further by fundamentally changing the processes by which pay equity is implemented and enforced. Prior to the passage of the PSECA, public sector workers had a right to file human rights complaints challenging wage discrimination under the Canadian Human Rights Act. The PSECA extinguishes this right. Pay equity for unionized workers must now be dealt with by employers and unions through the collective bargaining process. Pay equity is now to be treated as any other issue to be bargained rather than as an independent fundamental right to equal pay for equal work of equal value. The PSECA makes employers and unions jointly responsible for providing equitable compensation to unionized workers under the PSECA even though unions have no control over the federal purse. Moreover, the Act places public sector unions in the invidious position of having to trade their members’ equality rights against their other interests in the collective bargaining process. It also exposes unions to potential duty of fair representation complaints under the Public Service Labour Relations Act if they fail to achieve equitable compensation for their members; or if they negotiate lower compensation for the general membership in order to accommodate pay equity issues. Beyond these significant changes, the PSECA contains serious process flaws that will limit the pay equity protections likely to be achieved by public sector workers. By doing so, it permits sex-based wage discrimination to continue in the federal public service. Finally, the PSECA severely restricts the pay equity remedies currently available to public sector workers in several ways, thus permitting and perpetuating the continuation of sex-based wage discrimination. Both PIPSC and PSAC are arguing that these fundamental changes to pay equity protections for public sector workers violate the equality rights protected under s. 15 of the Charter. The Professional Institute of the Public Service of Canada is represented in this Charter challenge by Paul Cavalluzzo, Mary Cornish and Jo-Anne Pickel. For the Institute’s press release announcing the Charter challenge, click here. Employment Equity is the Law in OntarioBy Mary Cornish
Introduction Despite the 1995 repeal of Ontario’s Employment Equity Act, employers in Ontario are still required to pro-actively work and bargain with trade unions the establishment and maintenance of workplace employment equity (“EE”). Ontario Human Rights Commission reports continue to document that Ontario workers experience widespread systemic discrimination because of their sex, race, disability, age, Aboriginal status, sexual orientation and other prohibited factors. This discrimination affects all aspects of their labour market experience, including gaining access to work, the type and conditions of work and work retention and retirement. Workplace rules and practices can reinforce that discrimination. Employment equity means ensuring workplaces are free of such unlawful discrimination. Employment equity planning is the recognized systematic human rights method for workplace parties to identify and redress, within the spheres of their responsibility, such systemic discrimination. Guide to Pro-Active Employment Equity Obligations The Ontario Federation of Labour is taking a leading role in this area by developing a “how to bargain employment equity” course for trade union negotiators for the Fall, 2009. Our firm has provided advice to the Federation on the legal requirements for employers and trade unions. We have prepared a Guide to Pro-Active Employment Equity Obligations in Ontario`s Provincially Regulated Workplaces (co-authored by Mary Cornish and Fay Faraday) (“Guide”). It can be downloaded from the firm website at www.cavalluzzo.com or click here. The Guide covers the following areas:
The Importance of Employment Equity Planning In the current recession, employment equity rights and obligations are an important union tool to further the equality and workplace interests of all bargaining unit members. Employers have no “discretion” to violate the Human Rights Code (“Code”) because they think human rights enforcement is too `costly`or `difficult`. Employment equity measures also maximize productivity and economic viability by making full use of the skills of Ontario’s diverse workforce. Yet many employers resist the notion and others see the process as exclusively an employer rather than a joint obligation. Unions have a long history of supporting employment equity - bargaining for equality promoting provisions in collective agreements and using equality promoting collective agreement provisions to further the rights of disadvantaged employees. Such union participation is also critical to protecting unions from incurring costly legal liabilities. With the recent amendments to the Code, both unions and dissatisfied employees have easier access to an adjudication of their human rights claims before the Human Rights Tribunal of Ontario. Overview of Employer and Trade Union Employment Equity Obligations While there are a number of Supreme Court of Canada decisions mandating employment equity obligations, the 1999 British Columbia v. B. C. Government and Service Employees Union (Meiorin) decision is a watershed one. The Court made it clear that employers must act to prevent and eradicate discrimination. They are not to wait for complaints, proven discrimination cases or requests for accommodation. Workplace standards and rules, including collective agreement provisions must be designed to reflect all members of society from the outset. Important Ontario employment equity law provisions include:
Taken together these various laws and provisions require employers and trade unions to do the following:
Ontario Human Rights Commission Policies The Commission has issued 21 Guide policies most of which are employment-related and cover various Code grounds. (See Appendix D) All explain the need for planning pro-active steps and measures to be taken by employers and trade unions to provide a discrimination-free workplace. These now have a formal status under sections 30 and 45.5 of the Code as providing guidance to the Human Rights Tribunal of Ontario for the application of the Code policies. The Commission`s Guidelines on Developing Human Rights Policies and Procedures provide specific advice about what employers and trade unions must do in order to address their pro-active human rights obligations and secure a discrimination-free environment. They call for employers to engage in planning, remedial measures and monitoring, with the involvement of the union as a “key partner”.
Employment Equity Planning Process While the nature and scope of EE planning will vary depending on the size and structure of the workplace, a comprehensive EE planning process usually involves the following steps:
Throughout the above-noted steps, it is important to provide information to employees to explain the process and for the employer to establish and maintain appropriate records to measure progress. Conclusion The existence or repeal of specific Employment Equity Acts does not detract from the force of the EE obligations which flow from the Code which is a quasi-constitutional law and from the LRA or collective agreement. The only legal discretion employers have is to identify, working with unions, the specific steps, based on their particular workplace circumstances that will be taken to prevent discrimination and dismantle the patterns of human rights violations which may be operating. Civil Remedies for Human Rights Code ViolationsBy Katie Gibson The Human Rights Code now empowers courts to decide whether the Code has been infringed where the question arises in a civil proceeding and to award monetary and/or non-monetary restitution for those infringements (s. 46.1). A plaintiff in a civil action who “is seeking an order under section 46.1 with respect to the alleged infringement” is barred from also commencing an application to the Human Rights Tribunal (s. 34(11)). This provision is intended to eliminate duplicate proceedings. As reviewed below, courts and the Tribunal have only just begun to grapple with these amendments, and the provisions’ effectiveness in redressing human rights violations is not yet clear. Implications and Questions Raised A. New Opportunities for Making Human Rights Claims The amendments to the Code have created new opportunities for alleging human rights infringements in civil cases. Ontario is now the only province in which courts can award monetary compensation for a private party’s infringement of human rights legislation. However, civil plaintiffs should be aware that courts’ remedial power does not create a cause of action based solely on a Code infringement. Therefore, to claim Code remedies a plaintiff must still assert another cause of action – e.g. wrongful dismissal. B. Bar to Duplicate Proceedings A plaintiff who claims human rights remedies in a civil court action is prohibited from making an application to the Tribunal (s. 34(11)). The early Tribunal caselaw on this question indicates that duplicate actions will likely be barred except where the applicant can show that the civil proceeding will not make even the most general reference to a Code infringement. Several cases have held that s. 34(11) may bar an applicant’s Tribunal claim even if the plaintiff does not specifically plead s. 46.1 in their statement of claim. For example, in Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, the Tribunal held that an applicant’s claim was barred by s. 34(11) because she had commenced a wrongful dismissal action claiming, in part, punitive damages arising from breaches of the Code. The Tribunal held that s. 34(11) barred the application because “the facts and issues in a court action are the same as those in the application, and ...this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement”, even though she had not specifically pleaded s. 46.1 (para. 11). See also Vickery v. Invista Canada Corp., 2009 HRTO 305. In addition, the Tribunal has rejected the argument that applications should be permitted to proceed when they claim only public interest or other non-monetary remedies which may not be available in a civil claim. In Hallett v. Grey Bruce Health Services, 2009 HRTO 403, the Tribunal held, “[t]he issue under s. 34(11) is whether an order under s. 46.1 is claimed in the civil action as a result of the alleged Code infringement, not whether additional or different remedies might be capable of being claimed in an application before this Tribunal” (para. 15, original emphasis). See also Dionne Lloyd v. Novopharm Limited where the Tribunal held, “[t]he bar is described in terms of allegations not remedies” (para. 10). In one case, the Tribunal held that the plaintiff need not even expressly plead a Code violation, as long as the statement of claim refers to the Code and to human rights obligations. In Dionne Lloyd v. Novopharm Limited, 2009 HRTO 377, the Tribunal held that the application was barred by s. 34(11). The applicant had filed a human rights complaint alleging sexual harassment and discrimination in her workplace. She had also commenced a civil action in contract and tort alleging sexual harassment and a lack of appropriate management response; she sought general, special, aggravated, and punitive damages. Although the statement of claim did not request an order under s. 46.1, it did refer to the Code and the law prohibiting discrimination and harassment in employment, and the Tribunal held that the arguments “are not distinct despite the quite different legal framework in which they are being advanced” (para. 8). The Tribunal further noted that the “absence of express pleadings of a violation of the Code or an express request for an Order under section 46.1 is not determinative” (para. 9). However, the Tribunal allowed the application to proceed in another case because the plaintiff’s civil claim was limited to an allegation of wrongful dismissal and did not claim a Code infringement or remedy. In Baghdasserians v. 674469 Ontario Ltd., 2008 HRTO 404, the Tribunal held that it could hear an application alleging that an employee was terminated on the basis of his creed and age even though he had already commenced a civil action. The Tribunal noted that the application was not barred by s. 34(11) because the civil claim was solely “for wrongful or constructive dismissal on the ground that the respondent’s decision to terminate his employment contract was without cause” and “[t]here is no claim that the applicant’s rights under the Code were infringed and no remedy is sought for an alleged breach of the Code” (para. 14). Overall, these early cases suggest that the Tribunal will reject duplicate proceedings except where the statement of claim in the civil proceeding does not make even the most vague or general reference to a Code infringement. What remains to be seen is whether courts will step in and order Code remedies in the many instances where the Tribunal declines jurisdiction. It is possible that courts may require more explicit pleadings of human rights infringements and remedies. In that case, a gap could open, leaving some victims of human rights violations without a remedy. Victims of human rights infringements therefore have a choice. If they wish to pursue Code remedies in the courts, they should consider explicitly pleading Code violations and s. 46.1 remedies in their civil actions. If they wish to pursue concurrent actions, they should ensure that the statement of claim in the civil action does not make any suggestion at all of Code infringements or remedies. Either approach involves risks since the court and Tribunal jurisprudence remains unsettled. C. Different Remedies The types of remedies and quantum of damages that civil courts are likely to award has not yet been determined. Courts may order “monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect”. They may also order restitution other than through monetary compensation “for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect“ (s. 46.1). The amount of monetary compensation that courts are likely to order is not yet clear. The Code used to cap mental anguish damages at $10,000 and required applicants to demonstrate that the infringement was wilful or reckless. Now that these requirements have been lifted, the Tribunal is likely to increase awards, and courts may do so as well. Also unclear is how courts will exercise their jurisdiction to award non-monetary restitution. The Tribunal can direct “any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act” (s. 45.2(1)), but courts do not have this power. It remains to be seen whether courts will interpret their jurisdiction to award non-monetary restitution to include the power to order some form of systemic remedies, such as requiring an employer to take specific steps to combat discrimination in the workplace. Another open question is whether courts will order reinstatement of an employee whose wrongful dismissal involves Code infringements. As courts begin to address these issues, plaintiffs may wish to claim higher damages than the Tribunal previously awarded and push for an expansive interpretation of non-monetary restitution that would include systemic remedies and reinstatement. D. Timing Concerns Questions have been raised as to whether courts’ new power to award remedies for human rights infringements applies to claims that arose before the amendments to the Code came into force on June 30, 2008. This may cause problems for plaintiffs. In a short endorsement, the Court of Appeal recently concluded that s. 46.1 of the Code creates a new substantive jurisdiction and that it should be read prospectively only (Dobreff v. Davenport, 2009 ONCA 8). However, the Tribunal has ruled in at least two cases that s. 34(11) may bar a Tribunal application even if the events leading to the civil action occurred before s. 46.1 came into force. This inconsistency suggests that claimants who filed civil court actions seeking human rights damages for events arising before June 30, 2008 may be denied s. 46.1 remedies, but may also be barred from bringing Tribunal applications. This would leave them without a remedy for the infringement of their human rights. Individuals in this position may wish to argue that in light of the Court of Appeal decision, the Tribunal should now allow older applications to proceed. The Human Rights Tribunal’s New Approach to Concurrent ProceedingsBy Liam McHugh-Russell Under the old Human Rights Code, the Ontario Human Rights Commission played a double gatekeeper role. In addition to dismissing claims it found to lack merit, it routinely refused to consider complaints it felt could or would be more appropriately be dealt with in another forum. The Human Rights Tribunal’s power to dismiss human rights applications is now more limited under the amended Code. The Tribunal may defer hearing an application until a decision is rendered in a parallel proceeding. But, once the claim has been considered elsewhere, the Tribunal may only dismiss an application if the Tribunal determines that the “substance of the application” was “appropriately dealt with” in the other proceeding. Furthermore, the Tribunal can only dismiss applications after providing parties with the opportunity to make oral submissions. Changes Under the New Code Before the recent amendments to the Code, the Human Rights Commission could refuse to deal with a complaint if it found that the issues “could or should” more appropriately be heard under another Act. Because of the concurrent jurisdiction of other bodies to adjudicate human rights claims, this essentially meant that the Commission would often dismiss claims whenever another forum could deal with the claim – i.e. not only when other proceedings were under way in the other forum. This procedure was often frustrating to claimants. Once the Commission dismissed a complaint, there was no guarantee that the human rights analysis in the other proceedings would be adequate, that the remedies would be sufficient, or even that the other proceeding would consider the Code at all. The new Code aims to make a better fit between the Tribunal’s processes and that of other decision-making bodies. There are three parts to the new system.
Ideally, by allowing claims to return to the Tribunal after related matters have been heard or settled in another forum, the option of deferral and continuance ensures that the human rights aspects of claims are dealt with appropriately somewhere – either in a settlement between the parties, by another administrative body, or by the Tribunal itself. The Tribunal’s Approach Under the New Code Under section 40 of the amended Code, the Tribunal is required to develop practices that will encourage the best opportunity for fair, just and expeditious disposition of the merits of applications before it. The Tribunal’s decisions on deferral and dismissal should be used together to ensure that this goal is pursued effectively in the Tribunal’s interaction with other decision makers. In Bhagdasserians v 674460 Ontario, 2008 HRTO 404, the Tribunal held that a decision whether to defer an application is to be determined based on: “the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to parties to defer, having regard to the status of each proceeding and the steps that have been taken.” The Tribunal has reconfirmed this approach in other decisions. When deciding whether to dismiss a claim because a prior proceeding “appropriately” dealt with the substance of an application, the Tribunal has emphasized that it is not sitting in appeal of prior decisions, and should be careful not to interfere too easily with the principle of finality in litigation. The factors that the Tribunal will take into consideration in determining the appropriateness of a prior adjudication of the issues are similar to those applied by the Tribunal when determining whether to defer: the statutory scheme applied, the question decided, the application of human rights principles and the fairness of the prior proceedings. How Will The Tribunal’s Deferral and Dismissal Powers Be Used Together? There are two ways to tie the procedures together into a “general” process. On the one hand, the Tribunal could take a more ‘hands off’ approach, preferring early deferral and less stringent consideration of dismissal requests, thereby encouraging other bodies to be ‘fair, just and expeditious’ in their disposition of human rights issues. Alternatively, because of the Tribunal’s expertise in human rights matters, and the presumptive speed at which the Tribunal plans to dispose of the human rights claims, it may prefer to retain active jurisdiction of applications despite the potential injustice and delay which may arise from a multiplicity of proceedings. A review of the Tribunal’s deferral and dismissal decisions so far reveals that the Tribunal’s approach has been inconsistent as discussed in the sections below on:
Grievances, Informal Proceedings and Withdrawal It is generally settled that the Tribunal will defer where a grievance has been filed and is ongoing, demonstrating a high level of deference to that process and to control over workplace issues by unions and employers, where appropriate. Yet two issues - one related to deferral and one to dismissal - appear to suggest that the Tribunal may not take a completely deferential approach to the grievance process. Strictly speaking, section 45 requires only that a deferral be made “in accordance with Tribunal Rules of Procedure”. The Rules allow the Tribunal to defer at the request of a party “on such terms as it may determine.” Yet the caselaw has required the initiation of formal proceedings before deferral is granted. For example, in Garcia v. Tri-Krete, 2008 HRTO 288, the Tribunal refused to defer an application when no grievance had yet been filed, stating that “[s]ection 45 provides for deferral to a proceeding not a potential for a proceeding.” Another clear result of the amended process as it applies to dismissal decisions is that, once a grievance has been withdrawn by the union, a grievor is nonetheless within their rights to pursue or continue a claim before the Tribunal. In Manchanda v Children’s Aid Society of Toronto, 2009 HRTO 376, a union had filed and subsequently withdrawn a grievance. The respondent employer requested that the application before the Tribunal be dismissed because the claim had been dealt with through the grievance process. The Tribunal held that there was no evidence “that the withdrawal by the union indicated an agreement by the applicant to withdraw her human rights complaint,” and that dismissal was therefore inappropriate. The Importance of Timing The tension between deference and a more hands-on approach was demonstrated by a pair of deferral cases raising accommodation issues under the Workplace Safety and Insurance Act. In Cui v MSM, 2008 HRTO 449, the Human Rights Tribunal held that it would be appropriate to defer pending the outcome of a Workplace Safety and Insurance Appeals Tribunal hearing because the application was based on facts similar to those under consideration by the WSIAT. Yet in Boyce v Toronto Community Housing, 2009 HRTO 131, once again, in addition to the discrimination claim before the Tribunal, the applicant was pursuing accommodation from the employer at the Workplace Safety and Insurance Board. In making the decision not to defer, the Tribunal held that the most salient difference was that the WSIA process was much farther from completion in that case. In Cui, the hearings were about to commence, whereas, in Boyce, the claim was still in its preliminary stages. The Tribunal’s reasoning was that refusing deferral would expedite the final disposition of the human rights aspects of the claims to the advantage of the applicant, and that this weighed against the other factors: the priority was the timely resolution of Code issues by the Tribunal, some of which would not be addressed by the WSIB process. Settlement A similar tension continues to hang over the treatment of dismissal requests where a prior settlement of the issues has been agreed to by the parties. The Tribunal’s basic approach to settlements was set out in Dunn v Sault Ste. Marie, 2008 HRTO 149, where it held that a settlement may constitute a ‘proceeding’ for the purposes of s. 45.1 of the Code. In Dunn, the issues had previously been the subject of duty of fair representation proceedings, which had been settled. Both the employer and the union brought motions to dismiss. In dismissing the claims against the union, the Tribunal held that it should limit itself to considering the issues that were addressed by the settlement and the express language used in it. The Tribunal found that, neither the reasoning process leading to the settlement nor the specific remedies chosen by the parties were appropriate considerations for determining whether the settlement had “appropriately dealt with” the underlying issues. Despite subsequent reliance on Dunn, in Bielman v Casino Niagara, 2009 HRTO 123, the Tribunal seemed much more willing to assume that a full review of the settlement was necessary. In Bielman, the disabled applicant had previously signed a release of claims when she decided to participate in a voluntary resignation program offered by the employer. Despite the release, the Tribunal held that a hearing was necessary on the merits to determine whether, in all the circumstances, the employer had met its duty to accommodate the claimant. Presumably, this would include an evaluation not only of the release in question, but the process which led to its signing. Lessons Going Forward The amendments to the Code have certainly provided an improved framework for the resolution of human rights claims where concurrent proceedings are being pursued. The following are clear lessons for applicants and respondents from the Tribunal’s decisions so far:
While some of these issues seem settled, the jurisprudence on deferral and dismissal is still in flux. Deferral and dismissal are both procedural decisions which have a substantial impact on the final rights in question. When crafting arguments proposing or opposing either request, it may be helpful for unions, applicants and other parties to keep in mind that the Tribunal’s job is not only to treat such procedural requests fairly, but to create an overarching procedural framework which is ‘fair, just, and expeditious.’ Ontario Human Rights Code Transitional Provisions: Expedited Hearings under Section 53 (3)By Jan Borowy On June 30,2008, Ontario’s new human rights enforcement regime came into effect. Since this date, applications alleging violations of the Ontario Human Rights Code are no longer made to the Ontario Human Rights Commission, but instead are filed directly to the Human Rights Tribunal of Ontario. However, with an estimated 4,000 cases remaining active at the Ontario Human Rights Commission, the question became what to do with these cases? The Code’s transitional provisions enabled complainants to re-file their case with the Tribunal under a new “expedited” process. Since June 2008, the Tribunal has issued over 300 decisions in these new expedited proceedings. These decisions as well as the Tribunal’s Rules for Transitional Applications (“Transitional Rules”) provide a window into this unique enforcement mechanism. What is emerging with this new mechanism is a proceeding that provides a very focused approach to the evidence and arguments relating to human rights claims. Complaints that remained unresolved at the Commission before June 30,2008 were considered “transitional applications”. As of June 30, 2008, and as set out in Section 53 of the new Code, there existed two options for complainants whose complaints had not been finally determined, withdrawn, settled or not yet been referred to a hearing.
Any outstanding and unresolved complaint that was previously before the Commission which is not re-filed as an application to the Tribunal by June 30, 2009 will be considered closed by the Tribunal. The new Code provided the statutory mandate for the Tribunal to adopt procedures and practices which in its opinion offered the best opportunity for a “fair, justice and expeditious resolution” of the merits of applications. The Tribunal designed a specialized expedited procedure often called the “53(3) expedited process” in reference to the governing section of the Code. In a Notice to the Community released in May 2008, the Tribunal directed potential 53(3) applicants to consider whether their case was suited to the new procedure. The Tribunal suggested that the new procedure was best suited for cases that did not raise significant public policy issues or complex questions of fact or law; that did not require expert evidence; and that did not involve the addition of more parties or an amended complaint. The Tribunal’s Transitional Rules reflect a commitment to an expeditious process to fulfill the Tribunal’s statutory mandate in dealing with transitional complaints. Rule 4 of the Transitional Rules provides the Tribunal with the same wide-ranging discretionary powers it has under its regular Rules to ensure the fair, just and highly expeditious resolution of applications that come before it. Specifically, the Tribunal may do any of the following:
Importantly, Section 53 (7) of the new Code provides parties to either a s. 53 (3) or s. 53 (5) application with the right to seek from the Commission any information obtained by it in the course of its investigation of the complaint. This disclosure provision may further assist the parties in identifying the main issues and facts of the alleged violations of the Code. A. Initial Procedural Matters A key initial procedural issue that has arisen in 53(3) applications is whether one party has improperly sought to expand the issues or add a party. Under Rule 3.4 of the Transitional Rules, where a fact or issue is not raised in the application, the response or supplemental materials filed following mediation, the Tribunal may refuse to allow the party to present evidence or make representations unless it is satisfied that there would be no substantial prejudice and no undue delay to the proceedings. In Williams v. Ottawa Internationals Soccer, 2009 HRTO 48, a case involving an alleged violation of the Code over access to the services of a soccer club, the applicant sought to add the ground of family status. In its interim decision, the Tribunal outlined that such requests are not normally entertained except where to do so is necessary to ensure a fair, just and highly expeditious process for the determination of the application. The Tribunal found that the amendment requested by the applicant was appropriate in the circumstances. There was no prejudice to the respondents in amending the complaint at an early stage of the proceedings. The Tribunal found that the addition could assist the parties in focusing on the ultimate issue in the case and ensure a just, fair and highly expeditious resolution of the dispute. B. Mandatory Mediation The Section 53(3) procedure involves two main steps: mandatory mediation and a Case Resolution Conference. At the mandatory mediation, a Tribunal member seeks to assist the parties to reach a settlement. Mediation discussions are confidential and the content cannot be referred to in Tribunal hearings or in any other proceeding without the consent of all parties and the Tribunal. Respondent corporations or organizations are required to be represented by a spokesperson with the authority to participate in all aspects of the discussions and with the authority to settle any and all issues in dispute. Where mediation is not successful, the mediator will assist the parties in completing a case management checklist that sets out a timetable for the issuance of documents and the holding of a Case Resolution Conference. C. Case Resolution Conference - The Expedited Hearing Where the parties do not settle an application at mediation, the matter is referred to an expedited hearing called a Case Resolution Conference. Rule 9 of the Tribunal’s Transitional Rules outlines the steps necessary to prepare for the Case Resolution Conference. Among other things, the parties may provide a statement of additional facts following the mediation and prior to the hearing. No later than 20 days prior to the Case Resolution Conference, the parties must serve and file a list of witnesses, witness will say statements, and a list of documents and copies not previously provided to the other party and to the Tribunal. If translation and interpretation is required at the Case Resolution Conference, the parties must contact the Tribunal directly, in writing, to make these arrangements. The Case Resolution Conference “will be conducted fairly and in an informal manner in accordance with the powers” set out in the Tribunal’s Transitional Rules”: Rule 9.6. In its information bulletins, the Tribunal has stated that it is committed to a process that is accessible; fair, just and expeditious; responsive to the parties; appropriate to the nature of the case; and appropriate to determine the merits of an application considering the facts and relevant legal principles. The Tribunal will take a direct and active approach to achieve the fair, just and expedited disposition of the matter. Parties can expect to have their “day in court” and a hearing of the facts at the core of their human rights claim. However, they should be prepared for a potentially fast-moving and focused procedure. At the Case Resolution Conference, the Tribunal member or Vice-chair will likely take an active role. The Tribunal may direct the parties to narrow their evidence to specific issues or facts. The Tribunal may directly ask questions of the witnesses. The Tribunal may ask that the parties summarize the key issues contained in the application and the Response in a less formal way than a traditional opening or closing argument. D. Settlements If at any stage of the proceedings the parties are able to reach a settlement of the matter, the Tribunal requires that the parties submit a signed Tribunal settlement form outlining that the parties have reached a settlement. The parties’ settlement will be governed by section 45.9 of the Code which provides that the settlement is binding and allegations of breaches may proceed to the Tribunal within six months of the alleged contravention. The Tribunal plays a role in enforcing settlements. If it determines that the settlement was contravened it may make any order that it considers appropriate to remedy the contravention. Challenging the Tribunal’s Decision A party can challenge a Tribunal’s decision made under the expedited procedure in the same way it can challenge Tribunal decisions made under its regular process: by seeking reconsideration and/or judicial review.
Concluding Comments Overall, parties whose applications are being dealt with through the Tribunal’s s. 53(3) expedited process can expect a highly focused and fast-moving approach to their applications. The same remedies and means of challenging a Tribunal decision are available under the expedited process as under the Tribunal’s regular process. The key difference is the process’ streamlined character. Under this expedited process, Tribunal members require parties to clearly focus their evidence and submissions in order to address alleged Code violations in the most expeditious manner. Enforcing Human Rights in OntarioEnforcing Human Rights in Ontario is the first comprehensive guide to how Ontario’s new human rights system works. Co-authored by Mary Cornish, Fay Faraday and Jo-Anne Pickel, the book is written in an accessible format applicable to everyone, including individuals in the public and private sectors, those who are responsible for ensuring their organizations comply with human rights obligations and those who are seeking to secure human rights protections. The book includes:
Practical tools in the appendices make navigating the system easier and include:
Enforcing Human Rights in Ontario is published by Canada Law Book. For a copy of the brochure for the book, 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 2006 © Cavalluzzo
Hayes Shilton McIntyre & Cornish LLP 
|