Appeals Court Upholds Employee’s Reinstatement 9 Years After Termination

At the end of 2013, this blog proclaimed the decision of the Human Rights Tribunal of Ontario in Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440, as the number one case in Ontario employment law for that year. At the end of September 2014, the Tribunal’s decision was upheld by a three-judge bench of the Ontario Divisional Court: 2014 ONSC 2411.

While one has to assume that this case is still yet far from over, the purpose of this post is to consider the decision of the Divisional Court with respect to this matter.

More is Required for a Human Rights Case than Simple Unfairness

Does being treated unfairly in employment and simply having a disability, being a member of a visible of invisible minority, or otherwise being protected by the provisions of Ontario’s Human Rights Code entitle one to bring an application before the Human Rights Tribunal of Ontario?

A recent appeal decision from Ontario’s Divisional Court, Hay v. Ontario (Human Rights Tribunal), 2014 ONSC 2858 (CanLII) affirmed that the answer is no.

Why the Human Rights Tribunal of Ontario may be the Wrong Place to Plead Your Wrongful Dismissal Case

Many people who get fired while pregnant, on maternity or disability leave assume that the Human Rights Tribunal of Ontario (“HRTO”) is the logical place to turn to grieve their case. However, several recent decisions from both the HRTO itself and the Ontario courts demonstrate that that assumption may be misplaced.

While this blog has previously looked at other cases on this topic (see e.g. Human Rights Tribunal Not The Place To Ask For Severance) this post will consider a decision of the HRTO concerning an employee fired while pregnant.

Human Rights Tribunal Not The Place To Ask For Severance

Does the Human Rights Tribunal of Ontario (“HRTO”) have the legal ability (“jurisdiction”) to award severance pay? According to a recent decision from the Divisional Court (a branch of the Ontario Superior Court of Justice, and a type of court of appeal), Campbell v. Revera Retirement LP, 2014 ONSC 3233 (CanLII), the answer is that it is probably best to look elsewhere.

The case is an important reminder to potential plaintiffs to pick the proper venue for advancing one’s case.

Human Rights Legislation does Not Apply to Partners

In a decision released today, the Supreme Court of Canada has held that British Columbia’s Human Rights Code, RSBC 1996, c. 210 does not apply to equity partners in law firms.

Federal Court of Appeal Affirms Decision that Employers Must Accommodate Employees' Childcare Obligations

On May 2, 2014, the Federal Court of Appeal confirmed that employers have a legal obligation to accommodate their employees' “childcare obligations” as a component of their duty to accommodate an employee’s “family status.”

In its decisions in the parallel cases of Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII) and Canadian National Railway v. Denise Seeley and Canadian Human Rights Commission the Federal Court of Appeal confirmed that the definition of “family status” in the Canadian Human Rights Act includes “parental obligations.”

SCC: Pregnant Women Have the Right to Refuse Unsafe Work Environments

(c) istock/PIKSEL

Does a pregnant woman have the legal right to refuse to work in an environment that is unsafe to her as a pregnant woman? According to a recent decision from the Supreme Court of Canada, concerning a Quebec law, the answer is yes, she does.

HRTO: Frustration is not Discrimination

Can an employer in Ontario legally fire someone who gets injured at work and then, as a result, becomes unable to work? According to a case from the Human Rights Tribunal of Ontario, Gahagan v. James Campbell Inc., 2014 HRTO 14, the answer is: yes, as long as you can demonstrate an inability to accommodate that person in employment and that it is clear that the employee will unlikely be able to ever work again.

The Flu is Not a Disability: HRTO

Is having the flu a “disability” under the Ontario Human Rights Code? According to a decision from the Human Rights Tribunal of Ontario, the body responsible for enforcing Ontario’s Human Rights Code, the answer is no.

Costs and the Human Rights Tribunal of Ontario

Should the Human Rights Tribunal of Ontario (“HRTO”) have the legal ability to award legal costs? Some people think so, including the Member of Provincial Parliament for Lanark--Frontenac--Lennox and Addington, the Hon. Randy Hillier.

On December 4, 2013, Bill 147 Human Rights Code Amendment Act (Awarding of Costs), 2013 passed first reading in the Ontario legislature. If passed, the amendment would grant the HRTO the discretionary ability to award legal costs of the proceeding.

Hotel Employee Gets Early Check-out from Ontario Lawsuit

If an employee works in the United States for a multinational corporation with its corporate head office in Ontario, can that employee sue her former employer in the Ontario courts for wrongful dismissal and violations of the Ontario Human Rights Code when she gets fired?

While the typical law answer will always be "it depends," in a decision released earlier this year, Sullivan v. Four Seasons Hotels Limited (2013), 2013 ONSC 4622, 116 OR (3d) 365, the Honourable Justice Sandra Chapnik of the Ontario Superior Court of Justice held that at least one employee could not.

Ontario Superior Court Awards Human Rights Damages

After years of waiting, the first decision from an Ontario Superior Court judge to award damages pursuant to section 46.1 of the Ontario Human Rights Code was published to CanLII on September 12, 2013. Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799, a decision of the Honourable Mr. Justice A. Duncan Grace concerned a claim for wrongful dismissal damages plus a claim for damages pursuant to the Human Rights Code.

What is a Poisoned Workplace?

What is a poisoned workplace under Ontario law? A recent case from the Court of Appeal for Ontario, General Motors of Canada Limited v. Johnson, 2013 ONCA 502, in which a worker's claim for damages for constructive dismissal following allegations of a poisoned work environment was dismissed, provides a good reminder for the legal elements of such a definition.

Intention Not a Requirement for Discrimination

"But I didn't mean to." Those words, often offered in defence of an allegation of discrimination, beg a frequent question in human rights law: is intent a requirement for an infringement of someone's rights? That is to say, must someone intend to infringe someone's right before a violation can happen?

As recently affirmed by the Court of Appeal for Ontario in the case of Peel Law Association v. Pieters, 2013 ONCA 396, the answer is no.

Request For Doctor's Note After Illness Discriminatory: HRTO

Is it a discriminatory practice to ask an employee to produce a doctor's note confirming that she is in a "normal" state of health before allowing her to return to work after an illness?

According to a recent decision from the Human Rights Tribunal of Ontario, Thompson v. 1552754 Ontario Inc., 2013 HRTO 716 (CanLII), the answer can be yes.

Employee Awarded Human Rights Damages Without Discrimination

Is an act of reprisal in response to an unfounded human rights complaint grounds for an award of damages under the Ontario Human Rights Code? According to a recent decision from the Human Rights Tribunal of Ontario, Morgan v. Herman Miller Canada Inc., 2013 HRTO 650 (CanLII), the answer is yes.

The case is interesting because it stands in stark contrast to decisions taken by the Ontario Labour Relations Board with respect to claims of reprisal following unsuccessful claims of workplace harassment. On this latter point I would encourage readers to review my post Workplace Harassment Complaints and Bill 168. 

Is Obesity a “Disability” Under the Ontario Human Rights Code?

Is obesity a “disability” under the Ontario Human Rights Code? This question emerged as a result of an e-card image that was posted on Facebook earlier this week. As one can see from the image below, the perception of the woman portrayed is that she cannot become a stripper on account of the fact she perceives herself to be fat and unable to dance.

Are Random Drug and Alcohol Tests Legal?

A controversial and contentious area of workplace law concerns the issue of random drug and alcohol testing. It is important to note that the Ontario Employment Standards Act, 2000 does not specifically address the issue, thus leaving the issue to labour boards, courts, and the Human Rights Tribunals.

Single, Childless Employees Have Human Rights Too

In a provocative article in today’s Washington Post, “Single, childless and want work-life balance? How taboo” columnist Jena McGregor argues that it is unfair for single, childless employees to be expected to carry the weight for employees with child care obligations.

It is unclear whether Ms. McGregor is aware of the recent Canadian Federal Court decision, which held that child care obligations are the sine qua non of “family status,” a protected ground on which employers cannot discriminate. If she was aware, she does not make reference to it. But the article does permit a consideration of the concerns that that decision raised.

Can I be Fired for Being Pregnant?

For a great number of working women it is one of the single greatest concerns, “Can I be fired for being pregnant?” There are, at least, nine questions embedded in that question:

1. Can I be fired for getting pregnant?
2. Can I be fired for being pregnant?
3. Can I be fired for taking pregnancy or parental leave?
4. What about my benefits while I am on leave?
5. What about my seniority?
6. Can I be fired while on pregnancy leave?
7. Can I be fired after returning from pregnancy leave?
8. How much severance should I get if I am fired?
9. What about EI?

While this blog has previously canvassed the topic of an Ontario woman’s rights in employment, (Fired After Maternity Leave and Are New Parents Entitled to Accommodation) this post will attempt to bring together, in one place, some comprehensive answers to this question of labour.