Number 8 – September, 2006
| Number 8 – September, 2006 |
Personal Harassment: Case Summary of Government of Nunavut and PSACAn interesting arbitration decision was released recently which addressed an issue which will have resonance for any professional working in a small and isolated community. In the arbitration decision Government of Nunavut and PSAC (Kellett Grievance), May 2006, unreported (Knopf), Ms Kellett was Nurse in Charge in a community health centre in Qiktarjuaq, a small community on Baffin Island. In this capacity, Ms Kellett addressed a full range of issues including gunshot wounds, suicides, heart attacks and palliative care issues. Approximately two years after her acceptance of this position, a petition signed by 95 members of the community was filed with the Ministry of Health asking that she be removed from her position because she was allegedly rude to patients and disclosed personal medical information to the public. The Employer conducted a full investigation which concluded that there had been no misconduct, and that the complaint was unsubstantiated. Following this, no announcement was made to the community, despite the nurse’s repeated demands of her Regional and Executive Directors that they communicate with the community and exonerate her publicly. Ms Kellett complained that the Employer had failed to protect her from community abuse and harassment and, in addition, that she had been humiliated, unsupported by her Employer, and made to feel like a scapegoat because of the Employer’s actions, and its failure to act. The collective agreement in question contained an explicit commitment by the Employer to promote a work environment free from personal harassment, with a clause that required the Employer to ensure that policies were in place to properly investigate and intervene in harassment situations. The arbitrator concluded that “a finding of harassment could only be made if there is objective evidence to support that claim.” In this case, the arbitrator found that the Employer had acted appropriately in its initial investigation, but following that, the Employer began a second investigation without having provided a clear mandate to the investigator other than to “look for issues” concerning her performance. During this second “investigation”, Ms Kellett was asked intrusive and humiliating questions about her health and was subjected to the “humiliation of having to trying to defend herself against amorphous and indefinable attacks.” The investigator went in to the community to ask whether Ms Kellett was “acting strange” and this could only lead to the impression that there was cause for concern. This second “investigation” was done inappropriately and without a reasonable basis. These actions were found to be demeaning, humiliating and embarrassing, and constituted personal harassment. The arbitrator found that the Employer’s behaviour demonstrated a lack of support for a vulnerable employee; it developed no plan to lessen the likelihood of further abusive behaviour from the community; and fanned the fuels of suspicion, giving credence to unfounded rumours. Ms Kellett’s resulting emotional distress and humiliation were “completely foreseeable consequences” according to the arbitrator who awarded her general damages for emotional suffering in the amount of $12,500 plus compensation for counselling costs. In sum, the Employer “could have, and should have” done more to fulfill its obligations to this nurse under the collective agreement according to arbitrator Knopf. This decision builds on previous decisions which have awarded monetary
damages for personal harassment (see, for example, the decision in Toronto
Transit Commission and the Amalgamated Transit Union (Stina Grievance),
132 L.A.C. (4th) 225 (Shime). This type of harassment is not linked to
the Human Rights Code; in this case it arose from a specific clause in
the collective agreement. Where a professional is attacked by a community
petition or complaints, this case ensures that the Employer must properly
investigate the matter, support the vulnerable individual and not “fan
the flames” of community animosity. Otherwise, the employer may
be liable for damages under this type of clause in the collective agreement. Mandatory Retirement and Health ProfessionalsBy Kate Hughes Overview of the new legislation coming into force December of 2006 On December 12, 2006, Bill 211: An Act to amend the Human Rights Code and certain other Acts to end Mandatory Retirement will be implemented. The Bill amends the Ontario Human Rights Code and prohibits mandatory retirement at age 65. The legislation received Royal Assent on December 12, 2005, but implementation was delayed for a year to allowed workplaces time to change policies, bylaws, contracts and/or collective agreements so as to comply with the new law. The government stated that the reason for the new legislation was to abolish age discrimination. However, there was no doubt that the impending skilled labour shortage, once the baby boomers retire, was a big impetus behind changing this law as well. Specifically, the government’s consultation report highlighted the expected shortage of professionals and specifically cited nursing as an example of the need to abolish mandatory retirement. Most people in Ontario statistically retire before age 65. However, once this new act comes into force, no one will be forced to retire at age 65 (or any specific age). Nor, of course, are they forced to continue working; however, these individuals will now have the same human rights protections against age discrimination as their colleagues under the age of 65. Despite common belief, there was no general law that prescribed mandatory retirement at age 65 prior to the new law. However, employers, including health care institutions, typically had mandatory retirement policies that were lawful because the Human Rights Code only protected individuals from age-based workplace discrimination when they were between the ages of 18 and 64. For employment purposes, the Code previously defined “age” as meaning “an age that is eighteen years or more and less than sixty-five years”. Bill 211 changes the definition of age in the Human Rights Code. Age will now be defined as meaning “an age that is 18 years or more” and individuals in the workplace are protected from being terminated on the basis of their age. As a result, workplace rules, practices, institutional bylaws and policies that make distinctions based on age (over age 18) may be subject to complaints of age discrimination under the Code. If your workplace makes such distinctions, whether in a collective agreement, in policies or in hospital bylaws (or in their practices) these provisions must be changed by December 12, 2006 so as to comply with the law. Bill 211 does not have any retroactive effect. This means that existing mandatory retirement policies will continue to be lawful until December 12, 2006. Employees or independent contractors who are compelled to retire under these policies prior to December 12, 2006 will not be able to file complaints of age discrimination and employers will not be compelled to reinstate them after Bill 211 comes into effect. Impact on Health Professionals Health professionals workplace arrangements vary greatly. Some are employees while others practise as independent contractors or pursuant to hospital privileges. No matter what the workplace arrangements, all health care professionals have been affected by written and unwritten polices, practices and, for some health care providers such as midwives and physicians, bylaws governing privileges, that health care institutions have had in place governing mandatory retirement age. Ending mandatory retirement affects health professions in a number of ways, including impacting on how long they can practise their profession and whether they have access to accommodations in the workplace that address issues relating to aging. 1) No automatic end of professional career Many professionals have rewarding careers and do not want to abruptly end their practices simply because of reaching an arbitrary age. Others cannot afford to retire. This new legislation will assist those who turn 65 after December 12, 2006 and wish to continue their practise. Health professionals who turn 65 up until December 11, 2006, can still be forced to retire pursuant to employer policies, collective agreements, individual contracts or bylaws. Similarly, health professionals practising pursuant to hospital privileges who are governed by hospital bylaws cannot automatically lose their privileges if they turn 65 after December 11, 2006. Many hospitals have bylaws that automatically terminate privileges or gave various hospital committees the ability to terminate privileges at age 65. Hospitals, other health care institutions and health professional practice groups should be revising their policies and/or bylaws in anticipation of December 12, 2006 at which time these practices and bylaws will be in violation of the Human Rights Code. Some may already have implemented the changes to be effective prior to the legislation being in force. After the new law is implemented professional careers cannot be halted simply by virtue of the health care professionals age. Individualized testing may reveal evidence that they are no longer competent to continue to practice because of health issues that cannot be accommodated but this has to be determined on a case by case basis. It is no longer permissible to assume that a employee or contractor is no longer safe to practice simply because they are age 65. Professionals have been challenging mandatory retirement polices for some time, largely without success, so this new legislation should be welcomed by professionals seeking to continue their practice beyond what was considered normal retirement age. For example, in 1990 the Supreme Court of Canada heard a challenge of a group of physicians from Vancouver General Hospital who were being forced to stop practising medicine at age 65. In that case, the hospital’s bylaw terminated physicians’ hospital privileges at age 65 (except on recommendation of the Medical Advisory Committee and only after the physician had proven his/her competence through a personal interview, medical examination and performance review and had proven that he/she “had something unique to offer the hospital”). The physicians challenged the bylaw on the basis that it was a violation of age discrimination protected under the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada agreed that the bylaw violated their right to be free of discrimination on the basis of age, but said that it was allowable under section one of the Charter (which allows “reasonable limits” on rights “prescribed by law as can be demonstrably justified in a free and democratic society”). Most troubling to health professions was that the Court found that the practice of medicine and the provision of hospital services justified infringements on individual rights. It found that the hospital had special responsibility by virtue of its mandate as a major acute care hospital with extensive involvement in teaching and research. As such, it held that the hospital policy requiring retirement at 65 had a “rational connection” to the objective of “renewal and the intellectual invigoration” of health professions. It noted that the hospitals were a “closed system with limited resources” and, as such, needed the regular infusion of young professionals which justified the corresponding departure of older members of staff. The Court stated that it was reasonable to force physicians to retire “before the deterioration of skills and aptitudes that come with advancing age and that will normally undermine their ability to function as full and competent members of the medical staff.” As this was a Supreme Court of Canada decision, it was very difficult to successfully challenge health care retirement policies in the absence of legislative change as most, if not all, employers could claim “limited resources”. Despite the changing societal views that age 65 does not mean automatic deterioration of skills and competence, and the lack of evidence that age 65 undermines one’s competence, there was no way to challenge forced retirement policies without legislative change . The law has now changed in Ontario. As a result of Bill 211, employers will only be able to terminate members for just cause and can only deny hospital privileges for reasons other than age. As a result, employers will need proof of performance issues on an individualized basis rather than, as in the past, relying on policies that assume all health care professionals’ competence deteriorate at age 65 such as to require termination. It will be important to ensure that older health care professionals are not subject to discriminatory performance evaluations and that any performance concerns raised by employers are addressed in the same way as they would be for all other employees in terms of giving constructive feedback, a fair opportunity to improve, and access to training where necessary. In addition, any performance concerns which could relate to the aging process should, if necessary, be properly addressed through age- or disability-related accommodation, as discussed below. If age is a factor in an employee’s termination, it will be necessary to examine whether there is a taint of discrimination that could give rise to a grievance, a human rights complaint or an appeal to a decision regarding privileges. 2) Bona fide occupational requirements Even after Bill 211 comes into effect, there will be some circumstances in which mandatory retirements will remain enforceable. Section 24(1)(b) of the Human Rights Code carves out an exception for unequal treatment where“ the discrimination in employment is for reasons of age ... if the age... of the applicant is a reasonable and bona fide qualification because of the nature of the employment”. This is called a “bona fide occupational requirement” (“BFOR”). In order to show that a mandatory retirement policy is a reasonable and bona fide qualification under the Code, the employer (or hospital or institution) has the onus to prove that the nature of the job generally required termination at age 65. Mandatory retirement policies are only likely to be upheld as a BFOR in contexts where the work is physically demanding and/or involves matters of employee or public safety. For example, mandatory retirement policies have most frequently been upheld in relation to firefighters or pilots, but given issues of public safety regarding the practice of health professionals, it may be that hospitals will raise BFOR in certain sectors of health care. This will have to be carefully monitored once the new law is implemented. 3). Duty to Accommodate As Bill 211 has eliminated the upper limit on the definition of “age” all workers over the age of 18 will be entitled to equal treatment in the workplace. In addition to not being forced to retire, older workers should not be treated differently and disadvantageously in relation to matters such as job opportunities, transfers, promotions, access to training, evaluations or other conditions of work. In conjunction with the right to equal treatment, the duty to accommodate is also extended to older workers. Older health professionals have the same right to accommodation as younger health professionals; employers will be held to the same legal standard of accommodation to the point of undue hardship. There is not a reduced standard of accommodation for older workers. With respect to older workers, the duty to accommodate may arise most frequently in relation to matters such as disability, family status (including the need to care for an elderly spouse), or conditions relating to aging itself. The most common disabilities that develop with age are decreased mobility, decreased agility and hearing loss. Examples of some kinds of accommodation that may be needed may include:
The duty to accommodate will require an individualized assessment of the particular health care duties in question. Given the physical aspects of many health care professionals’ jobs (such as lifting of patients or long physically demanding shifts) health care professionals should anticipate accommodation issues to become a major issue with the aging population of many health care professionals. 1. See http://www.e-laws.gov.on.ca/DBLaws/Source/Statutes/English/2005/S05029_e.htm 2. Prior to Bill 211 some legislation prescribed set retirement ages for discrete groups of workers – i.e. coroners, medical officers of health. These provisions have been repealed by Bill 211. 3. While Bill 211 extends the right to equality in employment to older workers, it also carves out two key exceptions where distinctions based on age will remain permissible: it maintains a provision under the Employment Standards Act, 2000 regulations which permit an employee benefit, pension, superannuation or group insurance plan or fund to make distinctions based on age where those distinctions are made on an actuarial basis (see section 2.1-2.3) Second, Bill 211 specifically exempts the Workplace Safety and Insurance Act, 1997, the regulations made under it and the decisions and policies made under the Act and regulations that require or authorize a distinction based on age. 4. Vancouver General Hospital v. Stoffman (1990) 76 DLR (4th) 700. Teachers, Board Elections and the Charter: Case Summary of Baier v. AlbertaOn July 28, 2006, the Supreme Court of Canada granted four teachers and the Teachers’ Association of Alberta leave to appeal the decision in Baier v. Alberta, [2006] A.J. No. 447 (C.A.). In May of this year, the Alberta Court of Appeal rejected the Association’s allegation that amendments to the Local Authorities Election Act (LAEA) violated the Canadian Charter of Rights and Freedoms (the “Charter”). In 2004, the Alberta government amended the LAEA. Prior to this date, Alberta teachers were allowed to hold the position of school board or district trustee, provided they did not teach in a school in the district concerned or the area that elected the board. As a result of the 2004 amendments, teachers were precluded from running for any board or district trusteeship while they were employed as a school teacher unless they took a leave of absence. The amended Act also deemed any teacher who was elected to the position of school board or district trustee to have resigned their teaching position at the moment they took the oath of office as an elected official of the school board or district. Mr. Baier, three other teachers, and the Association claimed that running for office was an expressive activity that fell within s. 2(b) of the Charter, which guarantees freedom of expression. The teachers and the Association argued that forcing teachers to quit their jobs as a condition of being elected to the much lower paid post of school board trustee was tantamount to preventing them from carrying out this activity. The legislative amendments, they argued, effectively amounted to a total ban on the teachers’ expressive rights. In the lower court decision, a judge of the Alberta Court of Queen’s Bench upheld the teachers’ claim and found that the effect of the amendments resulted in a violation of s. 2(b). Specifically, the judge stated that:
However, the Court of Appeal reversed the lower court’s decision and ruled that “seeking election to a school board is not a constitutionally protected fundamental freedom” under s. 2(b) of the Charter. The Court of Appeal found that while seeking election was a form of expressive activity, the power to decide whether or not to hold school board elections and to decide who was eligible to seek election was reserved to the Alberta legislature. Excluding teachers from seeking election to a school board did not “interfere with a fundamental freedom or with the exercise of a constitutional right.” The Court of Appeal found that the Alberta government could choose to extend this platform of expression to teachers or remove them from the benefit of the platform that had previously been extended to them without infringing s. 2(b) of the Charter. The Court of Appeal also rejected the teachers’ claim that their occupational status as teachers was analogous to that of groups protected by the prohibition of discrimination in s. 15(1) of the Charter. Specifically, it was held that:
The Limitations of Privacy Legislation in Protecting the Health Information of Regulated Health Care ProfessionalsBy Mia London
A recent decision by the Divisional Court highlights the potential limitations of the protections provided by the Personal Health Information Protection Act, 2004 to the personal health information of health care professionals. In Hooper v. College of Nurses of Ontario, [2006] O.J. No. 2696 (Div. Ct.), the plaintiff, a registered nurse, brought an application for judicial review which challenged the actions of the College of Nurses. The College had acquired her Occupational Health and Safety department records without her consent. More precisely, the College asked for and acquired these records in the face of the nurse’s express refusal to provide consent for their disclosure. On behalf of Ms Hooper, Liz McIntyre and Mia London of our firm argued that the College’s investigation breached the procedural protections provided by the Procedural Code to the Regulated Health Professions Act. Specifically, it was argued that the College improperly used their powers pursuant to disciplinary investigations to gather information which was intended to be used only incapacity investigations. Disciplinary investigations by the Executive Committee are governed by s.75(a) of the Procedural Code whereas incapacity investigations are governed by s.57 of the Code. In addition, counsel argued that the College had no authority or jurisdiction to use documents acquired under one process (discipline) in aid of the other process (incapacity). In response, the College argued, first, that occupational health and safety records are not “personal health information” within the meaning of s.4 of PHIPA as they are maintained primarily for a purpose other than the provision of health care. In this case, the College argued, an employee’s occupational health and safety file is primarily an employment record. The Divisional Court, in a decision written by Swinton J., disagreed. It held that occupational health and safety records are personal health information and are entitled to the protections provided by PHIPA. Had the College’s argument prevailed, it is probable that employers’ attempts to gain access to occupational health and safety records during grievance arbitrations would have increased significantly and may have succeeded. However, the Divisional Court agreed with the College’s second argument when it held that two specific exemptions found in PHIPA with respect to regulatory health colleges permitted the College of Nurses to request from the hospital and the hospital to provide Ms Hooper’s occupational health and safety records to the College. At para.30:
Section 9(2)(e) and s.43(1)(b) read as follows: 9. (2) Nothing in this Act shall be construed to interfere with, (e) the regulatory activities of a College under the Regulated Heath Professions Act, 1991, the College under the Social Work and Social Service Work Act, 1998 or the Board under the Drugless Practitioners Act[.] 43. (1) A health information custodian may disclose personal health
information about an individual, The Divisional Court held that the language of these two sections was sufficiently broad to cover the provision of Ms Hooper’s occupational health records to the College without her consent. We note, however, that nothing in the Divisional Court’s decision appears to restrict the application of ss. 9(2)(e) and 43(1)(b) to occupational health and safety records. Many College members receive medical care through practitioners who are located in the hospitals in which the members work. It remains an open question, and a concern, whether the regulated health colleges can request all medical records related to the members by application of these two sections of PHIPA. As PHIPA was created to protect the privacy of health information, there is no doubt that this is an anomalous result and one which must continue to be monitored. Update for Professionals Archives | Cavalluzzo website | Human Rights Update 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, Brian Hanulik, at updateforprofessionals@cavalluzzo.com. To add yourself to the newsletter mailing list, please send an email to majordomo@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. If you have specific questions regarding the regulated professions, you may contact Elizabeth McIntyre at 416.964.5501 or at emcintyre@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
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