Workplace Wire - Connecting Employers to Developments in Labour, Employment & Pension Law

The Ontario Human Rights Tribunal is in the midst of hearing a case involving a Jamaican citizen who died while working in Canada as a temporary agricultural worker.   

The worker died in August 2002 after a farm skid fell on him.  At the time of his death, he was working for a tobacco farm just outside of Brantford, Ontario.   

Although local police investigated the circumstances surrounding the worker's death, the family of the deceased worker believes that there remain many unanswered questions.  The family accordingly requested that a coroner’s inquest into his death be conducted.  This request was refused. 

The family claims that the refusal to conduct an inquest violates the Ontario Human Rights Code because it disproportionately discriminates against seasonal agricultural workers, a large number of whom are foreigners.  The family specifically argues that a coroner's inquest should be mandatory in deaths involving seasonsal agricultural workers.  Currently coroner inquests are only mandatory in cases involving deaths in construction, mining, or quarry work. 

The Toronto-based non-profit group Justice for Migrant Workers is representing the deceased worker’s family. They believe temporary foreign workers are not accorded the same protection as Canadians and permanent residents when it comes to employment standards and health and safety protection. They also claim that temporary foreign worker live in Canada in a precarious state with significantly less security than local workers.

According to Human Resources and Skills Development Canada 14 agricultural workers died at work between 1996 and 2002. 

We will provide updates to this case as the hearing continues and more information becomes available.

For further information please do not hesitate to contact the writer at ssultan@heenan.ca or 416-7774175.

The federal government announced yesterday that it is overhauling the Temporary Foreign Worker Program (TFWP).  This follows recent criticism of the program, namely that it was taking away opportunities for Canadians and reducing general wage levels across the country.

The proposed changes include the following:

• A requirement that employers have in place a plan to shift to hiring Canadian workers
• Cancellation of a pilot project that allowed employers in certain circumstances to pay up to 15 percent below the prevailing wage rates to temporary foreign workers
• Increased government authority to suspend and revoke work permits where employers are deemed to be abusing the program
• A requirement for employers to pay new fees in requesting to hire a foreigner
• An immediate suspension of the Accelarated Labour Market Opinion process, which allowed for expedited processing of temporary work permits
• A rule that English and French can be the only languages required for job 

We will be both assessing and providing further analysis of these changes shortly.  We are also hosting a session at our Toronto offices on May 22nd on managing global mobility in the light of changing immigration and employment rules and regulations.  Do not hesitate to sign up for this free seminar at the following link.

For further questions, please do not hesitate to contact the writer at ssultan@heenan,ca or 416-777-4175.   

The number of temporary foreign workers in Canada has increased exponentially over the last 10 years, and in particular since 2006.  There are now over 250,000 foreigners entering Canada each year under a temporary work permit, and approximately half a million temporary foreign workers in the country at any given time.

As the Globe and Mail reported this past week, the number of foreign labourers in Canada has increased to the point where they now represent 1 in 50 workers across the country.   

Unsurprisingly, as the number of temporary foreign workers increases, so does the number of disputes arising between temporary foreign workers and their employers. 

Foreign workers however often face both unique and significant obstacles when pursuing claims against their current or former employers.  This is primarily because of the fact that foreign workers by definition have temporary status in Canada.  What this means is that most temporary workers who pursue claims against their employers face a real possibility that their status will expire before a decision on or resolution of their matter.  This means that a foreign worker who brings files a claim may not be present in Canada nor have the papers necessary to return to Canada to attend in person for a tribunal or court appearance. 

These realities present a serious risk to maintaining access to justice, particularly given the sheer number of temporary foreign workers in Canada at present.   

Courts and tribunals have accordingly begun to seriously address this problem.  A good example is the recent decision of the Ontario Human Rights Tribunal (the “Tribunal”) of Hazel v. 624091 Alberta Ltd., 2013 HRTO 435 (CanLII).  The case addresses a claim by a foreign worker who states that his employer discriminated against him on the basis of citizenship, disability, and race.  The employee, a citizen of Trinidad, was in Canada under a temporary worker permit granted by the federal government’s pilot project for occupations requiring low levels of formal training.  The worker states that his employer improperly provided him low wages, denied him health insurance, did not provide him with certain safety equipment, and ultimately terminated his employment shortly after he became injured.

The employee asked for the Tribunal to adjourn a scheduled hearing on the basis that he did not have status to travel to Canada.  The Tribunal’s normal practice is to require that all parties attend in person in order to be available to present their case and to be available for cross-examination.  Exceptions to the requirement are generally dealt with on a case-by-case basis.  The employer took the position that the matter should not be adjourned.  The Tribunal however allowed the adjournment in order to provide the former employee with an opportunity to apply for approval to come to Canada to attend at the Tribunal. 

Why is this case important?

This case is important because it demonstrates that judicial and administrative bodies are willing to accommodate the immigration status of temporary foreign workers and former temporary workers.  It means that employers will not be able to rely on the fact that temporary workers will likely leave Canada to avoid potential liability.  To the contrary, employers are likely to see temporary workers pursue claims until they are heard by judges or other decision-makers. 

This case is an important development, particularly given that employers are already under greater scrutiny by Canadian immigration authorities with respect to the manner in which they treat foreign workers.  Employers would accordingly be wise to ensure that they are familiar with all rules and regulations pertaining to the hiring of foreign workers and that they take proactive steps to reduce the chance of potential liabilities. 

For more information, please contact the writer at ssultan@heenan.ca or at (+1)416-777-4175.

An Italian sports psychologist has filed a claim with the British Columbia Supreme Court, claiming that the Vancouver Canucks are responsible for damages relating to wrongful dismissal and mental distress. 

The psychologist, Mr. Demichelis, claims that the Vancouver Canucks and co-owner Mr. Aquilini induced him to leave his employment with the Chelsea Football Club in the United Kingdom and to work for the Vancouver Canucks in Vancouver. 

Mr. Demichelis claims that he initially declined the Canucks offer of employment but that he later accepted it after sustained efforts on the part of Mr. Aquilini and the team.   Mr. Demichelis specifically states that the Vancouver Canucks stated to him that he was the person the Canucks needed to improve the players’ physical and psychological well-being.  Mr. Demichelis also claims that he was told that his expertise was essential to winning the Stanley Cup.

Mr. Demichelis further alleges that he agreed to a two year contract with the Canucks starting July 2012 for a salary of $700,000, along with a signing bonus of $400,000. He also states that the Canucks agreed to market Mr. Demichelis’ expertise to other professional clubs in North America. 

Mr. Demichelis was told in December 2012 that his employment would end at the end of January 2013.  He claims that the club explained to him that, as part of the process of trying to secure him a work permit, they found Canadians that were able to fulfill the requirements of his role. 

Mr. Demichelis claims that he has suffered significant damages in part because he gave up his employment in the United Kingdom and moved his family to Vancouver. 

The Vancouver Canucks have yet to file a Statement of Defence.

What does this mean for employers?

This case demonstrates the potential pitfalls in the employment of foreigners.  In particular, employers can face significant liability when disputes arise from the hiring and/or employment of temporary foreign workers.  This issue is becoming increasing commonplace in large part because of the exponential growth in the number of temporary foreign workers in Canada.  There are now approximately 250,000 individuals entering Canada on an annual basis under a temporary work permit, and 500,000 temporary foreign workers in the country at any given time. 

Employers should accordingly ensure that they receive adequate employment and immigration advice to ensure that all matters relating to the hiring of foreign workers are addressed adequately and in a seamless fashion.  This can help to ensure that employers are in the best position to defend against claims should disputes arise. 

 For further inquiries, please contact the writer at ssultan@heenan.ca or (+1)416-777-4175  

For years the Canadian public has been warned about the coming retirement of the so-called Baby Boomers.  The concern has been that the supply of young people entering the labour market has been dropping precipitously just as the wave of Baby Boomer retirees quickly approaches.

It appears that the day of reckoning is upon us.  As the Globe and Mail reports today, at some point this year the number of young workers entering the labour market is set to no longer outnumber the number of individuals exiting the market (i.e. retiring).  Specifically, the Globe reports that in 2013 the number of 15- to 24-year-olds will begin to drop below the number of 55 to 64 year olds for the first time ever.

A record to celebrate? Not so much

Rather than congratulating Canada’s Baby Boomers for reducing Canada’s baby production to record low levels, the country must instead grapple with what is quickly becoming a serious demographic problem.  Less young people entering the labour market threatens Canada’s tax base, meaning that there may not be enough money to support a rapidly aging population.  Employers will also have an increasingly difficult time finding the skills necessary in order to drive their businesses forward, potentially hurting Canada’s competitiveness and, by extension, its economic growth rate.    

Various studies point to potential home grown solutions to this demographic problem.

A common one is that we should not be concerned because people are not retiring until much later in life today.  While it is true that increasing numbers of workers are putting off retirement, this presents at best a temporary solution.  The fact is that the Baby Boomers will retire, they will retire in large numbers, and it will begin shortly. 

Others point to the potential of activating idle labour across the country, through initiatives such as job retraining programs and improving labour mobility so that people move to areas of the country where skilled labour is required.  There is however only so much slack in Canada’s economy and certainly not enough idle labour to fully address what is a major shift in Canada’s demographics. 

The fact is that, the various solutions suggested will at best act as stop-gap measures that only partially address what is an enormous and historically remarkable demographic shift. 

Time to import the goods  

So how is Canada to ensure that it secures the skills necessary in order to drive its economy forward and improve living standards as its population ages? The answer will almost certainly lie in large part through immigration, both permanent and temporary. 

While permanent migration to Canada has remained relatively stable, the number of temporary foreign workers has increased in recent years at an exponential rate, from approximately 60,000 individuals in 2006 to over 250,000 today.  The massive growth of this largely employer-driven program demonstrates that companies are already looking abroad in order to secure the skills needed which they cannot find locally.  This trend will undoubtedly continue.

Already immigration represents almost all of Canada’s labour-force growth.  Employers which may not have considered hiring foreigners will take seriously this option in the future.  This will not be limited only to extractors of raw materials but will pervade across the entire economy from coast to coast. 

Employers would accordingly be wise to become familiar with the rules and regulations of the Temporary Foreign Worker Program in order that they are prepared to use this tool when required. 

For further inquiries, please contact the writer at ssultan@heenan.ca or (+1)416-777-4175

A recent decision of the Human Rights Tribunal of Ontario (HRTO) reminds employers that they must act very carefully when approaching the termination of a disabled employee.

In Campbell v. Revera Retirement LP the employer terminated a Health Care Aide.  The employee’s job had involved looking after elderly residents, which included bathing, feeding, dressing, toileting and transporting them from one location to another by wheelchair. She was diagnosed with a condition that caused ongoing discomfort and swelling, thickening and discoloration of the skin on her legs. The disease was painful and was likely aggravated by prolonged standing or extensive walking.

In early 2009 the employee went off work for a number of months. The parties explored possibilities as to modified duties to which the employee could return and in mid-2009 the employer offered a position in its laundry facility.

The employee maintained that the position exceeded her functional limitations, even with modifications as proposed by the employer, and she was supported in this by her family doctor. The employer adopted the position that the employee could do the job with the modifications proposed and proceeded to terminate the employee when she failed to assume the position in the laundry facility. In doing so, the employer did not seek further clarification from the employee’s doctor or a second opinion from another physician.

The HRTO accepted that the employer had exhaustively canvassed all positions available in the workplace in which the employee might have returned to work. The HRTO also concluded that the employer had no position which the applicant could perform even with accommodation.

However, it found that the termination was discriminatory, in the following terms:

[57] The reason the applicant did not take on the laundry aide job was for reasons related to her disability; specifically because her doctor confirmed in writing to the employer that she could not perform the required tasks, even with the proposed modifications suggested by the respondent.

[58] It is difficult to understand the respondent employer’s rationale for the termination. If it took the position that the applicant could do the accommodated laundry aide job, then it was open to it to continue to seek further clarification from the physician or suggest an IME to resolve the issue. It did not do so and insisted in writing, instead, that there was no medical information regarding restrictions rather than acknowledging that there was medical information, albeit information that it disagreed with or found lacking.

[59] Alternatively, if it took the opposite view, that it accepted the applicant’s physician’s views on the matter, the respondent could have communicated to the applicant that it had exhausted all avenues open to it under the accommodation process and suggested that she inform them of any changes in her restrictions if and when they occurred.

[60] The respondent did not do this either. Instead, it made the decision to terminate the applicant’s employment and, in doing so, given the connection between the reason for termination and the applicant’s disability, failed to meet its procedural obligation under the duty of accommodation and infringed her rights under the Code.

In the result, the Tribunal ordered payment of $5000 general damages, although it declined the employee’s request for severance pay.

As the HRTO noted, the safest approach for Ontario employers who feel that an employee can return to work, even though the employee’s doctor says otherwise, is to seek further clarification from the doctor or seek a second medical opinion before terminating the employee. Often a physician’s opinion as to an employee’s capacities may be colored by an incomplete or inaccurate description of job duties or symptoms provided by the employee. In such cases, providing objective descriptions of job tasks and any information the employer may have as to the employee’s true capacities (notably as captured on legally obtained video surveillance) may lead a physician to modify earlier opinions. In my experience, this approach has in a number of cases brought an employee’s physician over the employer’s view of the situation.

The second possible course action noted by the HRTO, that of advising the employee that it had exhausted all avenues under the accommodation process and asking her to advise of any changes in her restrictions, while sound, should not be taken by employers to mean that they must leave such employees on the rolls indefinitely. Eventually, an employer adopting this approach would be able to consider the employment relationship as frustrated and at an end. After a period of accommodating the employee’s incapacity by a leave of absence, if medical inquiries suggested that the employee was unlikely to return to work at regular or modified duties in the reasonably foreseeable future, the employment relationship could be considered as legally frustrated. In a jurisdiction such as Ontario the employer would have to provide to the employee her statutory termination and severance entitlements in that case. However, such a termination could lawfully be carried out without running afoul of anti-discrimination norms. As in all cases of terminating a disabled employee, this would have to be handled with care, compassion and, ideally, with the guidance of legal counsel.

On November 9, 2012, the Supreme Court of Canada released an important decision in Moore v. British Columbia (Education), 2012 SCC 61 that could have serious cost implications for provincial Ministries of Education and school boards across the country dealing with special needs children.  The decision dealt with a young student suffering from a form of dyslexia who was forced to enroll at a private school when funding for some of the services he needed was cut by his school board.

After 15 years of litigation, a 9-0 ruling by the Supreme Court reversed two lower courts’ decisions and substantially agreed with the British Columbia Human Rights Tribunal’s (“BCHRT”) that the school board had discriminated against the student when it cut all funding to the Diagnostic Centre - a program which provided intensive services and individualized assistance to students with severe learning disabilities.  The Supreme Court required that the school board reimburse the student’s parents for the cost of having to send their son to private school, in addition to reimbursing their legal costs.  The Supreme Court also awarded damages of $10,000 to the family.

This decision is receiving national attention because it forces school boards across the country to re-evaluate any future plans to trim back funding for special education in light of shrinking budgets and difficult economic times. 

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Co-authored by CHRISTINA HALL and ANDREW CARRICATO

The Supreme Court of Canada released its eagerly awaited decision in R. v. Cole, 2012 SCC 53 on October 19, 2012.  In the decision, the Court held that employees may have a reasonable, though diminished, expectation of privacy in personal information stored on their work computers – at least where the personal use of such devices is permitted or reasonably expected by employers.  This reasonable expectation of privacy is protected by the Canadian Charter of Rights and Freedoms (the “Charter”).

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Even though the legal principles governing the duty to accommodate disability are well established, applying them in practice continues to be a challenge for employers. It often seems that despite employers’ best efforts in the accommodation process employees and their unions can always find something to complain about, something they are willing to take all the way through an expensive litigation process.

The recent case of North York General Hospital v Ontario Nurses' Association, 2012 CanLII 50008 stands as an example. It also shows how employers can meet their procedural duty to accommodate so as to be able to pass arbitral muster.

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I just finished reading the Human Rights Tribunal of Ontario’s decision in Lagana v. Saputo Dairy Products. Among other things, this case shows that employers may need to be more careful in allowing employees with medical restrictions to work “as tolerated”.

The overall scenario is no doubt familiar to many employers, which I will abridge here to allow for easier reading. Employee claims a back injury. Employer questions whether the injury is truly work-related or happened on the employee’s own time but the WSIB recognizes the injury and the employer attempts to accommodate. There is back and forth between the employee, employer and WSIB, a period of absence and periods of accommodation in modified work. Eventually, the employee is required to perform modified duties on a shift he does not want. The WSIB finds that the duties offered are suitable. The employee alleges he was harassed months before by a supervisor in the accommodation process, insists on working a different shift, refuses to return to the shift that meets his medical restrictions and is ultimately fired for that.

In this case, the Tribunal found for the employer on several of the questions raised in the litigation (some of which I have tweeted about), notably on the alleged harassment and the employee’s termination.  However, it is the Tribunal’s finding that the employer failed to adequately accommodate the employee early in the return to work process which concerns us here.

The Tribunal found that during the employee’s first period of accommodated duties, the employer failed to meet its duty to accommodate because in fact some of the duties the employee was asked to perform exceeded his medical restrictions.

What is interesting to note about this is that the Tribunal accepted that the employee’s supervisor had an informal practice of letting employees decline work which they felt exceeded their medical restrictions.

We often see medical notes with comments to the effect that an employee may do work “as tolerated” and we also often see employees asking for accommodation in the nature of letting them decide how much work they can handle and when. Employers often accede to these sorts of requested accommodations.

And the Tribunal in this case recognized that sometimes this is an okay approach to accommodation:

 “… a reliance on employees self-regulating their work may be a reasonable accommodation measure when  employees have reported a minor injury and when there are no clearly identified medical restrictions.  It may also be a reasonable accommodation with an employee who has identified medical restrictions when they are told that they can decline to undertake a task that is within their restrictions in order to protect them from aggravating their condition.”

However, as this decision also shows:

“… this informal approach is not so appropriate in situations, such as the applicant’s, where an employee has defined medical restrictions and has job functions that potentially extend to tasks beyond these restrictions.  It is not appropriate, in my view, to have an employee potentially undertake tasks beyond their modified duties with a proviso that they do not have to do these tasks if it further aggravates their condition.”

In such cases, for the Tribunal, an employer needs to have a “more formal established protocol” that expressly makes it clear that the employee should not perform tasks beyond his or her medical restrictions.

This sort of paternalistic thinking is not out of line with what we often see in the Occupational Health and Safety law context. Employers are to leave as little as possible to the judgment of individual workers in order to protect them from potential harm. One mantra of the Ministry of Labour is that occupational health and safety legislation “does not rely on competent workers to take care of themselves, but exists to protect negligent, stupid or reckless workers from potential harm at the workplace”. It is not surprising therefore to see this sort of thinking making its way into the accommodation process as well.

The take away from this decision is that in the future employers may need to more carefully consider the scope of individual discretion they grant to workers in deciding which tasks they perform. If there is a risk that the exercise of this discretion could result in a worker performing tasks that exceed his or her medical restrictions, clear direction needs to be given as to which tasks can and cannot be performed in accommodated duties, and ideally these directions should be documented.

The Human Rights Tribunal of Ontario this week released its decision in Taylor-Baptiste v. Ontario Public Service Employees Union, which rejected a female manager’s claim that sexist comments made about her on a union blog violated her equality rights under the Human Rights Code (Code). Union rights to expression and association under the Canadian Charter of Rights and Freedoms (Charter) were key to this outcome.

As the Tribunal’s decision reveals, in the fall of 2008, as collective bargaining between OPSEU members and the Province was underway, an OPSEU local president started a blog about issues in the workplace. In that blog, which was publicly accessible on the Internet, posts were made which intermingled legitimate union speech with inappropriate sexist comments about the complainant.

After recognizing that “postings on blogs and other electronic media may be part of or an extension of the workplace and that the Code may apply to them”, the Tribunal made a number of findings  about the sexist remarks and related aggravating factors which heightened their seriousness.

According to the Tribunal:

• The union president drew upon frequently used sexist stereotypes about women in positions of power “sleeping their way to the top” suggesting that she had obtained her position through sex.
• Similarly, he drew upon the stereotype that women get ahead through their relationships with more competent “boyfriends”.
• The president approved the posting of an anonymous comment in support of the sexist blog, which suggested that, because the manager had married and taken the family name of an OPSEU member, she should adopt his values, including those of support for trade unionism, or disassociate herself from them by changing her name. The Tribunal found that suggestion targeted her as a woman because it was traditionally women who were expected to change their names upon marriage.
• The president’s blog post was serious because he was an active participant on behalf of the union in a process of restoration of a workplace that had been poisoned through racist hate mail and other events.
• When the offensive nature of the blog was pointed out to the union president by management, together with the fact that it may constitute discrimination or harassment contrary to the employer’s policy, he responded by “belittling the concerns, attacking management, and suggesting that his actions were justified because of alleged mistreatment of the union and its membership by the employer”.

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SYNDICAT DES EMPLOYÉS DES INSTALLATIONS PORTUAIRES, TCA, section locale 1946 et RIO TINTO ALCAN INC., INSTALLATIONS PORTUAIRES (AZ-50850462) is a case in which the grievor had been terminated for fraud and embezzlement (to the tune of roughly $480,000) and raised an alleged gambling addiction to contest the termination. 

The union sought to have a psychologist give an expert opinion to establish that the grievor had a gambling addiction. The employer objected to the union’s raising the issue without providing an expert medical opinion prepared by a psychiatrist. 

In a prehearing conference, the union had undertaken to provide the employer with the diagnoses of the grievor’s treating physicians in relation to the alleged gambling addiction as well as the report of any psychiatrist who had examined the grievor. 

The union later gave the employer a complete copy of the grievor’s medical file in relation to the therapy he received following his dismissal. In the context of that therapy the grievor’s family doctor diagnosed him with a gambling addiction. However, the union never provided an expert psychiatric report as it had promised. Instead, the union gave the employer the report of a psychologist who concluded that the grievor suffered from a gambling addiction.

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Ontario employers can now visit ServiceOntario to report their compliance with the Accessibility for Ontarians with Disabilities Act.  Reporting is mandatory to all employers with more than 20 employees in Ontario (excluding volunteers and independent contractors). For more information on the requirements of the AODA, see our blog posts on the Customer Service Standard and the Integrated Accessibility Standards.

Remember: the deadline for reporting is December 31, 2012

Filing your report

To file your report, you will need an account with ServiceOntario's ONe-Source for Business.  The Ministry of Community and Social Services has posted a step-by-step guide on how to create an account for your organization.

Once you have created your account, simply select the Accessibility Compliance Reporting (ACR)  tab and follow the prompts. 

What questions will my organization have to answer?

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The question of whether the estate of an applicant who has died may continue to pursue an application with the Human Rights Tribunal of Ontario was addressed in the 2010 HRTO decision Morrison v. Ontario Speed Skating. In that case, the Tribunal refused to dismiss the application of a deceased applicant which was being advanced by the applicant’s wife (who was also executor of his estate).

The Tribunal determined that a human rights application was not automatically extinguished through common law.  It ruled that the rights of an applicant do not automatically abate upon death, noting that the Human Rights Code contemplates complaints being brought forward by persons other than the applicant.

This reasoning has since been adopted in two subsequent tribunal decisions (Dorosz v. Kingston General Hospital and Roy v. Wal-Mart Canada), and the principle appears to be settled.

To successfully continue to pursue this kind of claim, the person bringing the claim forward on behalf of the applicant must prove his or her authority to act on behalf of the applicant’s estate, such as submitting documentation proving the appointment as the estate trustee.

As for evidence at the hearing, the case law suggests that the adjudicator can use his or her discretion in determining whether to admit the hearsay evidence and what weight to give it, considering any other evidence regarding the circumstances.

With thanks to Roni Hoffman, Articling Student.

With the amendment of Ontario’s human rights enforcement process in 2008, employees were given direct access to the Human Rights Tribunal’s adjudicative process. As a result of that change, one frustration for employers has been an ability for employees to take another crack, through the Human Rights Tribunal, at claims that have heard and been dismissed by other adjudicators, such as through grievance arbitrations, WSIB claims, or employment standards claims.

Ordinarily, once a legal claim has been dealt with, the person who brought the claim can’t go to another court or tribunal and try to get a different result. They have to appeal the original decision, or go to court to have it judicially reviewed. However, the Human Rights Tribunal does have the right to hear a matter that has already been the subject of other proceedings, unless it is satisfied that the “substance” of the proceeding has already been “appropriately” dealt with.

Although in many cases dealing with this issue the Tribunal does dismiss the complaint, the Tribunal has treated this discretion in some cases as opening the door to letting it review not only whether the issue was the same in both proceedings, but also whether the original deciding body misapprehended the relevant human rights principles and law applicable to the issue (see Rao v. McMaster University for example.

A decision of the Supreme Court of Canada last week is likely to put an end to this application of the Tribunal’s discretion. A 5-4 majority of the Court found that a similar provision in BC’s Human Rights Code did not let the Human Rights Tribunal look at the other deciding body’s actual application of the principles and law. Their discretion is limited to looking at:

• Did the other body have the jurisdiction to determine the human rights issue?
• Was the previously decided legal issue essentially the same as the current claim?
• Was there an opportunity for the claimants to know the case to be met and have the chance to meet it?

If these three questions are answered positively, the Human Rights Tribunal will not have the ability to rehear the issue, even where it feels that the Tribunal would have applied different procedures, or looked at the question differently. This decision should provide employers with a very effective tool for fending off attempts by employees to re-argue cases that they have already lost before other adjudicative bodies.

British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52

Richard Lister of Lewis Silkin LLP (the UK member of Ius Laboris of which Heenan Blaikie is the Canadian member firm) has posted this article at Global Employment Law:

How old should airline pilots be before they're made to retire? That was the central question in a case brought by German pilots against the airline Lufthansa which has just been considered by the European Court of Justice (ECJ).

A collective agreement to which Lufthansa had signed up included a blanket prohibition on pilots working after they had reached the age of 60. Three pilots, whose employment contracts automatically terminated on their 60th birthday, didn't feel ready to hang up their captain's hats. They claimed the rule amounted to unlawful age discrimination.

The German court decided to ask the ECJ what it thought. A key point was that both German and international law allows pilots aged between 60 and 65 to carry on working, so long as the other members of the air crew are younger than 60.

In light of that, the ECJ concluded that a complete ban on pilots working beyond the age of 60 was a disproportionate requirement. It went beyond what was really needed to ensure air traffic safety and protect public health and security.

The ECJ did accept that possessing particular physical capabilities is a genuine requirement for acting as a pilot and such capabilities diminish with age. But the judgment makes clear that any difference in treatment on grounds of age must be justified as being necessary and proportionate.

Flying Lessons

This case has obvious implications for the aviation sector. But more generally, it highlights the developing obligation under age discrimination laws for organisations to justify compulsory retirement ages. They need be in a position to provide cogent, objective reasons for adopting particular ages for particular jobs. Conducting a comprehensive audit of retirement policies and procedures is strongly advisable.

Employers who try to wing it could be heading for a crash landing... in court

Ius Laboris is a global alliance of over 40 leading management labour and employment law firms, of which Heenan Blaikie is the Canadian member.

Once upon a time, if an employer was outside the NEER window and was finding it difficult to reintegrate a worker who had a workplace injury, it was relatively straightforward to arrange to have the worker go into the WSIB's "Labour Market Re-entry" program. For the employer, this often effectively solved the problem of trying to "accommodate" the worker's restrictions, usually at little or no cost to the employer. However, LMR was an enormously expensive program for the WSIB.

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