Tuesday, 29 December 2015

Law & Order: Special Victims Unit - How the Human Rights Code is Changing Ontario Employment Law

What can the American television programme Law and Order teach us about employment law in Ontario? Not a lot, really. But the opening line from the Special Victims Unit franchise does illustrate one point, which will be of increasing focus in the coming years:

In the criminal justice system, sexually-based offenses are considered especially heinous. In New York City, the dedicated detectives who investigate these vicious felonies are members of an elite squad known as the Special Victims Unit. These are their stories.

Why do I reference Law and Order SVU on an Ontario employment law blog? Because if the opening words of that show teach us anything, it is that different crimes are treated differently by the justice system. Nowhere in the Ontario employment law context is this disparate treatment more acute than with respect to the issues of workplace harassment and discrimination.

Let us compare and contrast two decisions, both from the Court of Appeal for Ontario: Piresferreira v. Ayotte, 2010 ONCA 384 (Cronk, Lang and Juriansz JJ.A.) and Partridge v. Botony Dental Corporation, 2015 ONCA 836, (Laskin, Pardu and Roberts JJ.A.)

Don’t Come Crying to Me: The Decision in Piresferreira

I have railed against the Court of Appeal’s decision in Piresferreira before. Several times actually. What has always bothered me about that decision is this one particular passage from the court’s decision:

[62] …The court is often called upon to review the work performance of employees and the content and manner of their supervision in dismissal cases. It is unnecessary and undesirable to expand the court’s involvement in such questions. It is unnecessary because if the employees are sufficiently aggrieved, they can claim constructive dismissal. It is undesirable because it would be a considerable intrusion by the courts into the workplace, it has a real potential to constrain efforts to achieve increased efficiencies, and the postulated duty of care is so general and broad it could apply indeterminately.

While condensed, essentially what the court said in that case was ‘we do not want to be involved in supervising and adjudicating an employer’s conduct, other than at the time of dismissal – then we’ll have a look to see whether the employer was unduly harsh.'

The Piresferreira decision stands for the proposition that an employee has no right to claim negligent infliction of mental suffering if that mental suffering arises from workplace conduct, including harassment. If the employee feels that he or she has been unduly harassed, then the employee must first leave the workplace, never to return, and claim constructive dismissal. While such an approach can yield substantial judgments (consider for example the case of Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (CanLII), canvassed by this blog in the post Wal-Mart Rolls Back Award of Punitive Damages), such cases are few and far between. Moreover, most employees suffering workplace harassment take umbrage at the fact that it is them that must leave their job, forever, in order to (potentially) receive justice. (Note that not every case of constructive dismissal is a winner. Consider, for example, the case of General Motors of Canada Limited v. Johnson, 2013 ONCA 502, canvassed by this blog in the post What is a Poisoned Workplace?)

Put another way, and so as to properly compare against the more recent line of cases, what Piresferreira says is: If you are suffering ‘routine’ workplace harassment without any allegation of discrimination on the basis of a protected ground (more on that in a second), then tough, the court doesn’t want to hear about it unless you’re prepared to walk out.

The New Sherriff in Town: Human Rights

In sharp contrast to the line of cases that followed Piresferreira, there stands the new line of cases where the court is prepared to review workplace conduct: Human Rights cases.

In June of 2008 the Ontario Human Rights Code was amended so as to allow people to sue in the civil courts for a violation of their human rights, provided that such a claim was ‘piggy-backed’ upon another civil claim. It took until September 12, 2013, for the first reported decision to award such damages to come out. (See Ontario Superior Court Awards Human Rights Damages.)

Since the Superior Court’s decision in Wilson v Solis Mexican Foods there have been a number of other Superior Court decisions awarding human rights damages. In those cases the courts have been willing to consider the employer’s conduct during the period of employment. Moreover, the Human Rights Tribunal of Ontario by necessity must consider the employer’s actions during employment; not simply at the end of employment. Employees taking their case to the Tribunal are not required to leave their employer and can, in fact, seek reinstatement – a remedy not considered to be available under the constructive dismissal approach.

More recently the Court of Appeal for Ontario weighed in on the issue of Human Rights claims in employment. In Partridge v. Botony Dental Corporation, 2015 ONCA 836, the Court of Appeal for Ontario upheld an award of $20,000.00 in general damages for the employer’s breach of the employee’s rights under the Code.

The issue in Partridge was accommodation of the employee’s childcare obligations; an issue which requires the court to very intimately consider the employer’s efforts - during the employment life cycle - to accommodate what some courts have called “personal decisions.” If ever there was an issue that could be considered a “considerable intrusion by the courts into the workplace”, which has “a real potential to constrain efforts to achieve increased efficiencies” it must be considerations of an employer’s duty to accommodate.

What’s My Point?

Some may be asking, ‘so what’s your point?’ Fair question. I do not want to be taken as saying that I think the cases looking at violations of the Human Rights Code are wrong. Nor do I wish to be taken as arguing that the Human Rights Tribunal should not have the power to consider an employer’s actions during the term of an employee’s employment.

Rather, my problem is this: Unless the employee alleges a violation of the Code, which requires the employee to demonstrate that one of his or her distinguishing features was somehow a factor in the decision to subject the employee to harassment (or some other form of negative treatment), the employee has no comparable remedy. Employees subject to ‘everyday' harassment have no real ability to have someone ‘in charge’ review their employers’ actions. Human Rights legislation has been a powerful tool to effect real changes in the workplace. Not everyone necessarily agrees with all of those changes, but the changes reflect deliberate policy choices made by society.

If the court’s findings are accurate, then Marta Piresferreira was treated awfully in employment and her supervisor, Richard Ayotte, was a bully. She ought to have better access to a meaningful justice system prepared to consider that which she endured while working as an employee. And, she may have had access to such a system if only she had alleged, ‘and I suffered such awful treatment not because of who or what Richard Ayotte was (i.e. a bully) but because of whom I am.’ Why the court would be prepared to consider, at considerable length, the employer’s actions in employment if Ms. Piresferreira had alleged a violation of her rights under the Human Rights Code, but not consider those same actions absent such a complaint perplexes me.

And I guess that is my point. Perhaps the law has changed in five years. Perhaps the court is more willing to consider an employee’s complaints of workplace harassment in 2015 then it was in 2010. On the other hand, perhaps not.

As always, your thoughts are welcomed below.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

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