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

The duty to accommodate disability under human rights law has existed for decades and many of the legal principles that define the scope of that duty are well settled.

However, there still exists much confusion as to what an employer must do when faced with a request for accommodation. Unfortunately for employers, much of this confusion exists among employees, who not infrequently seek accommodations to which they are not entitled at law.

Worse, when an employer does not bend to such a demand, it is not uncommon for the employee to file a discrimination complaint alleging not only failure to provide the requested accommodation but also that the refusal to provide it was motivated by such things as racial or religious prejudice.

Indeed, it is also not uncommon for these sorts of allegations (of racial or religious prejudice) to be raised for the first time at a hearing before the Human Rights Tribunal of Ontario.

Akash v. Toronto Transit Commission is one of those cases.

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The Human Rights Tribunal in Ontario was set up as a direct access model in 2008, allowing employees to bring an Application directly to the Tribunal and obtain a hearing. One issue that has been immensely frustrating for employers has been the ability of employees to make accusations of discrimination with little supporting evidence other than the employee’s own sense that the way they have been treated relates to race, religion, or some other prohibited ground of discrimination.

Although there is no true right of appeal of Human Rights Tribunal decisions, the decisions are subject to review by the Divisional Court in Ontario, and can be overturned where they are not reasonable. In some cases, the Divisional Court has strongly criticized the Tribunal for making findings of discrimination based on inferences which were not supported by any evidence (see, for example, the case of Audmax Inc.).

In another decision released just this week, the Court again criticized the Human Rights Tribunal for the same problem. Although the Tribunal found that two Toronto lawyers had been racially profiled when they were asked for identification by a law librarian at the Brampton courthouse, the Divisional Court could not find any evidence that the request had been racially motivated. The three judge panel concluded that the finding of discrimination was not rationally supported.

The decision hasn’t yet been made public, but we will post a copy when it becomes available. An article about the decision is available here. While it doesn't involve an employment relationship, it will be of assistance to all employers defending a human rights application.

In the Fall, I blogged about the McGuinty government appointing Toronto lawyer Andrew Pinto to conduct a review of the effectiveness of the June 2008 changes to Ontario’s human rights system. Those changes included creating a direct access complaint model, creating the Human Rights Legal Support Centre to assist complainants and significantly changing the role of the Human Rights Commission.

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While it is firmly established that a successful party may recover their legal costs from an opposing party in a civil court action, the same cannot be said for proceedings before administrative tribunals.  There has been significant debate about whether human rights tribunals in particular ought to make awards in respect of legal costs.  Some view this as a matter of access to justice, while others see it as an effective barrier to defending, if not precluding, frivolous and/or vexatious complaints.

The Supreme Court decisively resolved this debate at the federal level when it recently ruled that the Canadian Human Rights Tribunal’s power to compensate "any expense" suffered by victims of discrimination did not extend to an award of legal costs.  Simply put, the court held it was unreasonable to equate "costs", a legal term of art, with "expense".

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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.

The Ontario government released the Integrated Accessibility Regulation – its second set of standards under the Accessibility for Ontarians with Disabilities Act on June 3, 2011. The Regulation aims to promote access for people with disabilities in three broad areas:

• information and communications;
• employment; and
• transportation.

The Regulation was released following two rounds of public consultation and addresses several of the broader concerns that were raised by the private sector. For example, the definition of “small organization” was expanded to include organizations with 1 to 49 employees (as compared to only 1-19 employees under the Accessibility Standards for Customer Service). This came in response to concerns raised by mid-sized employers that the obligations were too onerous given the size of their operations. Similarly, many of the requirements under the information and communications standard are relaxed as compared to their first incarnation. The deadlines for compliance are also extended to take into consideration the fact that many organizations will need to invest in new software.

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Effective January 1, 2012, most private sector businesses will need to comply with new customer service requirements under the Accessibility for Ontarians with Disabilities Act.

The new requirements, which are described in the Accessibility Standards for Customer Service, are intended to promote the accessibility of goods and services to people with disabilities. These requirements already apply to parts of the public sector.

As of January 1, 2012, the requirements will apply to all people, businesses and organizations that:

• Provide goods or services either to the public or to other businesses or organizations; and
• Have at least one employee in Ontario.

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