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Substantial Parental Obligations Must Be Accommodated: Federal Court
Two recent decisions of the Federal Court confirm that the term "family status" in the Canadian Human Rights Act includes parental childcare obligations and that employers must accommodate substantial obligations where the requests are reasonable and do not amount to "undue hardship." In Canada (Attorney General) v. Johnstone, 2013 FC 113, the court upheld the tribunal decision that the Canadian Border Services Agency had discriminated against an employee by refusing her request for fixed day shifts to facilitate her day care needs. In Canadian National Railway v. Seeley, 2013 FC 117, the court upheld an award of compensation to an employee whose employment was terminated when, due to childcare obligations, she was unable to temporarily relocate as required by her collective agreement. These articles discuss the import of the rulings for employers: |
Right to Strike Not Guaranteed by Charter: SKCA
The Saskatchewan Court of Appeal overturned a lower court ruling that the Charter guarantees a right to strike in R v Saskatchewan Federation of Labour, 2013 SKCA 43, finding that "any decision to overturn the Labour Trilogy (a series of SCC cases from 1987 which held that freedom of association in s.2(d) of the Charter does not guarantee a right to strike) must be left in the hands of the Supreme Court itself." (para. 68) The court also dismissed the union's argument that changes to the Trade Union Act concerning the certification process were unconstitutional. For differing views on the "rightness" of the decision and a history of the case law on this point see: |
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The Cost of Ignoring a Duty to Accommodate: HRTO
In Hamilton-Wentworth District School Board, 2013 HRTO 440, the Ontario Human Rights Tribunal reinstated an employee ten years after she left her job on disability leave and ordered her employer to pay lost wages and other expenses from the point at which they discriminated against her by failing to investigate alternative work to accommodate her disability. The decision, which will likely be appealed, is a wake-up call for employers inclined to ignore their duty to accommodate. |
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Update on Legislation
Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity), has passed third reading in the House of Commons and is now before the Senate. The bill proposes changes to the Canadian Human Rights Act and the Criminal Code, to include gender identity as a prohibited ground of discrimination or as a "distinguishing characteristic" for sentencing purposes. For more information on the bill see the Legisinfo links or this Slaw post. Manitoba approved similar amendments to its Human Rights Code last spring. The Manitoba Human Rights Commission guidelines provide guidance to employers and employees on how to protect against gender identity discrimination in the workplace.
The Manitoba government introduced Bill 26, The Accessibility for Manitobans Act, on April 24, 2013. According to this government news release the goal of the proposed legislation is to work towards making Manitoba a fully accessible province, by providing the framework for collaborative, long-range planning between governments, the private sector and accessibility advocacy groups. The Accessibility Advisory Council report outlining its recommendations for accessibility legislation and the government response to that report are instructive reading. |
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Changes to the Temporary Foreign Workers Program
The government announced changes to the temporary foreign worker program on April 29, 2013, responding to widespread criticism of the program which escalated last month (for a more positive spin on the program see this article). Among other things, the government has:
- removed the existing wage flexibility and now requires employers to pay temporary foreign workers at the prevailing wage;
- temporarily suspended the Accelerated Labour Market Opinion process; and
- introduced fees for the processing of labour market opinions and increased worker permit fees.
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CCCA Conference Papers
The CCCA has posted links to the materials and presentations from its April 2013 National Spring Conference on the conference website, including several papers on social media and human resources issues in the workplace. See for example:
- HR Essentials - deals with employment contracts, disability management, accommodation, performance management, and termination.
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Recommended Reading
Perspectives, the CBA Labour and Employment Law section newsletter, contains articles on prosecutorial discretion in enforcing health and safety violations and on workers' compensation for mental disorders, among others.
Reasonable Accommodation - How Far Should an Employer Have to Go? - this Slaw article questions how far employers must go to accommodate disabled employees.
Canadian Laws on Union Dues and Membership - this Law of Work article provides a brief overview of Canadian law on union dues and membership and links to a more comprehensive summary of the topic.
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Accommodation in the Workplace: LSM/MBA Joint Program
Accommodation in the Workplace - the 10th instalment of this popular program reviewing current accommodation issues will be held from 1:00 to 4:00 p.m. on May 9, 2013 at the Law Society classroom. Presenters Tracey Epp, Isha Khan, Grant Mitchell, Q.C., and Garth Smorang, Q.C. will discuss the accommodation process, mandatory retirement, the disabled professional and licensing body obligations, concurrent jurisdiction, and ethical issues.
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May MBA/CBA Programs
New Federal Court / Human Rights case on family status - Karen Clearwater and Shannon Carson will discuss two recent FC decisions on accommodation of parental childcare obligations (see above) at this lunch hour program on May 31, 2013. See the MBA website for further information and to register.
Employment-Related Class Action Litigation - this online presentation of the national Labour and Employment Law section will explore the challenges of employment-related class action litigation. It takes place on May 21, 2013. Register online at the CBA.
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