By Warren Shepell
A newly hired business graduate, predicted by senior managers of a major bank to have significant potential, left the organization after one year.He sued for harassment and bullying, saying among other things that he had a manager who set out to prove he had limited potential and frequently assigned him impossible tasks and deadlines, shouted at him and shamed him in front of co-workers for inconsequential matters.The graduate spoke to his manager’s boss on three separate occasions, but the issues he raised fell on deaf ears. After severe anxiety and depression set in, he felt he had no choice but to leave and sue for harassment. The case is now going through the court system.
In another situation, a senior finance manager attended a conference with his assistant in another city. On the first evening, he got cosy with her, stroking her hand over a glass of wine and talking about a promotion for her. He promised her the promotion would move along quickly, if she was “good” to him. She managed to excuse herself. The next night, he invited her to his room. She has since launched a lawsuit for sexual harassment.
A significant skills gap
Such examples demonstrate that many people in positions of power haven’t developed the filters and communication skills they need in the workplace. Often, those who find themselves the target of harassment lawsuits are to blame for their own follies.
But their managers and the organizations they work for are also at fault. No longer can they protect employees with interpersonal styles that fail to differentiate how they relate to others in their personal life from the ways they interact with their co-workers. A new workplace order is necessary.
Civility in management and communication is absolutely essential. Although employees bring their individual differences to the workplace, including their cultural backgrounds, gender, sexual orientation and age, managers and co-workers must learn to see beyond those characteristics and focus on work, achieving tasks, collaboration and motivating people to attain results.
To create a better workplace environment, managers should emphasize work-related tasks and activities by using phrases such as:
• “Over the next few days, completing this work assignment will require more effort and focus than usual. I need your help in getting it done.”
• “There is a convention in another city that I would like you to attend.”
• “You have been coming in later than our starting time recently. How will you change that?”
On the other hand, it’s important to stay away from interactions unrelated to work that stray into personal comments:
• “I love the colour of your blouse.”
• “People of your religion have too many holidays.”
• “It looks like you go to the gym a lot.”
Other behaviours that can damage employees include: banging the desk; pointing fingers; raising voices; and shunning people.
The push to do more
The provinces, meanwhile, are taking action by introducing legislation to address harassment issues. In Ontario, Bill 132 (which amends the Occupational Health and Safety Act) requires any employer with five or more employees to train all staff members on the requirements of the legislation; provide a written program setting out how the organization will implement it; and create a safe person or team separate from the immediate manager to handle all harassment incidents. Other provinces are enacting similar or even stronger laws.
Organizations need to go further, however. Managers and employees need to recognize what constitutes harassment and develop the workplace and people skills that are key to fostering civility and eliciting lasting change.
There’s no room for managers or co-workers prone to biases, prejudices or personal attacks. The goal is to create a workplace where people aren’t afraid to go to work and, more importantly, they actually like to work.
By David Harris
September 12th, 2017This recent Court of Appeal decision raises once again the issue of the test of employer liability for sexual harassment in the workplace.
The Human Rights Administrative Process
Ontario’s Human Rights Code contains a deeming provision holding an employer responsible for the conduct of its officer, official, employee or agent in the course of their employment.
This provision, however, does not apply to freedom from harassment in the workplace, sexual harassment in the workplace and sexual solicitation and freedom from reprisal connected to sexual solicitation.
There is hence is no deemed liability upon the employer for wrongdoings under these remedy sections.
Thus, under the Ontario Code, the complaint must be brought personally against the individual who is accused of the offensive conduct.
The Federal legislation, however, allows for a “due diligence” defence to be raised against the assertion of vicarious liability. The employer must show that (1) it did not consent to questioned conduct, (2) and it used all due diligence to prevent event and (3) did all it could to minimize or avoid the adverse consequences.
This does not, however, end the analysis of employer liability, again to a complaint of pure sexual harassment under the administrative process.
This concept of “organic liability” provides an argument that the employer company is responsible for the conduct of its principals. It is different from vicarious liability. The theory is that a legal entity can only act through its principals and hence the company will held liable for such conduct of its “principals” or “its directing mind” in a sexual harassment case, or a similar situation where the statute’s deeming provision of liability upon the employer does not apply.
The above review, however, does not end the analysis of employer liability.
Poisoned Work Environment
The remains a further means of establishing employer liability for a sexual harassment allegation due to the existence of a “poisoned work environment”. This liability is not exempted from the deeming provisions of the Ontario Code. Management employees who fail to take remedial action to eliminate such a work environment and the corporation may both be liable for a breach of this obligation. In essence, a company which has failed to deal with Code violations prevalent in the workplace will take on this liability due to its failure to assure a proper and safe workplace.
The word “reprisal” can lead to confusion as there are two types of such retaliatory conduct often described as “reprisal”. The first is such actions taken by the employer in response to the filing or threatened filing of any human rights complaint. To make the analysis clear, this is referenced as “General Reprisal”.
The second is conduct of the employer or an individual against a person who has not acceded to demands for sexual favours. This conduct is generally defined as a form of sexual harassment which for this purpose, it will be referenced as “Sexual Reprisal”.
Conduct which is retaliatory to the threat of or the commencement of a human rights complaint is actionable as reprisal. This is to be distinguished from adverse conduct due to the failure to reply to sexual solicitation.
The employer has direct liability for such a complaint.
A complainant for a General Reprisal remedy stands alone. Success in the substantive complaint is not required. The applicant must only show that rights were claimed or threatened to be claimed under the Code and she was the subject of adverse treatment or the threat of as a result. The applicant in such a case simply must show that rights under the code were claimed and she was then the subject of threats of, or actual adverse consequences.
Unlike a complaint of adverse discriminatory conduct which does not require proof of intent, a claim of General Reprisal requires proof that the action or threat was indeed intended as a retaliation to the claim to or enforcement of a right under the Code.
Such intent may be inferred from circumstantial evidence, but there must be evidence to support the proposition that the decision maker was aware of the steps being taken to enforce Code rights.
It is generally conceded that to prove General Reprisal, intent must be shown. The intent to reprise may be inferred from the facts and is a matter of credibility. To constitute reprisal, it is sufficient if the conduct is “at least in part” due to the complaint or threatened complaint.
To show General Reprisal, the complainant must show a link between the alleged retaliatory conduct and the threat of or the filing of the complaint, which is normally proven by inference as direct evidence is invariably non-existent. The second aspect of the test is to show that the offensive conduct is, at least in part, an intentional response to the complaint.
To succeed on such a General Reprisal claim, the substantive claim which has been threatened or actually brought, need not succeed. The applicant cannot threaten or bring a claim which she knows lacks merit. He must, however, have a genuine belief in its merits.
A General Reprisal claim may also lead to a lost income award, again independently of the merits of the substantive complaint.
In a common law civil action, the plaintiff will typically seek to make the employer responsible for the conduct of its employee.
There are two arguments possible. The first is the same organic theory of liability as discussed above. Such a plea puts liability on both the individuals and the company.
The second argument is the plea of vicarious liability. This leads to a finding of strict liability, without the need to prove negligence on the part of the employer. A finding of liability against the employee will then attach such liability upon the employer without fault on its part for the wrongdoing.
Interestingly, the Nova Scotia Court of Appeal found that a claim which is founded only on a breach of fiduciary duty, with no accompanying tort claim, will not support a claim for the vicarious liability of the employer. This is so as this obligation is a personal one and is not delegable. There may be liability as a co-fiduciary but this is a distinctive plea.
The most frequent relationship which creates vicarious liability is that of employee and employer.
It does not, however, follow that once such a relationship is established, that liability will follow. Conduct which is only coincidentally linked to the business of the employer and the duties of the employee cannot justify the imposition of vicarious liability. The conduct in these cases is independent of the employment situation and further the employer was not in a position to prevent this behaviour. The conduct must be closely and materially related to the risk introduced or enhanced by the employer for vicarious liability to be imposed.
For example, should a man assault his wife’s lover, a co-worker, in an employee’s lounge, the employer should not be seen as accountable. Equally, a security guard who decided to commit arson for his own amusement would not give rise to strict liability.
Conduct which is only coincidentally linked to the business of the employer and the duties of the employee cannot justify the imposition of vicarious liability. The conduct in these cases is independent of the employment situation and further the employer was not in a position to prevent this behaviour. The conduct must be closely and materially related to the risk introduced or enhanced by the employer for vicarious liability to be imposed.
The basic premise of the cases finding strict liability is that the conduct of the employee falls within the ambit of the risk created by the business, or enhanced by it. The policy arises where the wrong is so connected with the employment that it can be said that the employer has introduced the risk itself.
Hence where the risk is closely associated with the wrongful conduct, the employer should bear the risk and internalize the full cost of operation, including such liability. But where the wrongful act does not have a meaningful connection to the business, liability should not flow. The “mere opportunity” to commit a tort does not suffice. The business and employment must not only provide “the locale or the bare opportunity for the employee to commit his or her wrong, it must materially enhance the risk, in the sense of significantly contributing to it, before it is fair to hold the employer vicariously liable.”
In determining the application of vicarious liability on a policy basis, courts should be guided by the following principles, where precedent cases are inconclusive, to determine liability in cases of unauthorized intentional wrong.
- The question of liability should be openly confronted and not disguised under the rubric of “scope of employment” and “mode of conduct”;
- The basic issue is whether the maligned conduct is sufficiently related to the authorized conduct. There should be a significant connection between the creation or enhancement of a risk and the resultant wrong that so accrues, even where this is unrelated to the employer’s objectives.
To assess the sufficiency of the connection between the employer’s creation or enhancement of the risk, and the conduct in question, the following factors should be considered, in determining liability for intentional conduct:
- the opportunity that the business gave the employee to abuse his power;
- the extent to which the wrongful conduct may have furthered the employer’s aims;
- the extent to which the acts in question were related to friction, confrontation or intimacy inherent in the business;
- the extent of power conferred on the employee in relation to the victim;
- the vulnerability of potential victims to the wrongful exercise of the employee’s power.
In an Alberta civil action for sexual harassment, the factors considered were that (1) the personal defendant was her boss and consistently one of the only other persons in the office, (2) he was her direct boss, (3) she was led to believe that he was the only person in charge, (4) the two were often alone and (4) there was no corporate policy on sexual harassment. These factors, as noted by the Court of Appeal, materially enhanced the risk of tortious actions.
An exception was taken to this decision by a B.C. decision firstly noting that the above case did not fully apply the first step by asking the question of “whether there are any precedents which unambiguously determine whether vicarious liability should apply in the circumstances”.
More significantly, the court did not refer to other decisions where courts have looked carefully at the policy considerations which are significant in the second step of the analysis.
In the application of the connection between the creation of the risk and the wrong, “incidental connections to the employment enterprise, like time and place (without more), will not suffice”.
The court found against the imposition of vicarious liability as (1) the opportunity given to the personal defendant to abuse his power was not significant, (2) the assignment of work was done openly, (3) there was ample opportunity for employees to raise issues about work or work assignments to senior management, (4) the wrongdoing did not further the employer’s aims, (5) there was no friction, confrontation or intimacy inherent in the business, (6) there was nothing in the business of residential plumbing service which created situations of intimacy between employees, (7) the power given to the wrongdoer was supervisory with respect to the plaintiff, but limited and such power was not one which could be readily abused.
The very fact of supervision of one employee of another, the court stated, should not give rise to vicarious liability.
From a broad policy overview, a contrary finding, the court stated, would create economic hardship to the business community.
The Ontario Court of Appeal recently considered the above tests in a case involving a taxi cab driver who had committed a sexual assault in the course of his job responsibilities. The Court noted that the application of the above test becomes more difficult in the case of an authorized intentional wrongdoing such as sexual assault.
The trial judge had found in favour of the employer but had not specifically set out his analysis of the five factors above. The Court of Appeal did so, based on the evidentiary record.
First Factor Opportunity – Opportunity for Abuse
The Court saw this issue as “not negligible” as intoxicated passengers, as in this case, must be trusting of the driver. The cab driver has a form of power and has the ability to create chances for abusive conduct. The Court saw, however, the opportunity for misconduct as “not as intimately connected to his functions”, not comparable to the child caregiver in Bazley and closer to the groundskeeper in Jacobi.
Second and Third Factors – Does Wrongdoing Extend the Employer’s Business; Extent to which the Business Purpose related to friction, confrontation or intimacy inherent in the business;
The assault did not promote the employer’s business purpose and was “not related to friction, confrontation or intimacy inherent in the employer’s aims”. The Court found that the fact that the employer did not require or permit physical contact between the driver and the passenger “in any intimate body zones” was influential. In fact the company’s written directions were to avoid physical contact and dating requests.
Fourth Factor – Extent of Power Conferred on the Employee in Relation to the Victim;
To this issue, the Court noted that the employer delegated no power on the driver with respect to the plaintiff. It did not know that it as sending its driver to pick up a lone, intoxicated woman. The Court stated:
The relationship between the driver and the appellant was that of adult driver and adult fee-paying passenger. Arguably, what power the driver had, he arrogated to himself through his own decisions.
Fifth Factor Vulnerability
Clearly a lone drunk woman was vulnerable. However, as the Court stated, while this is an important factor, the power of the driver is not predicated on his employment. In any event, vulnerability does not, per se, provide the “strong link”:
Moreover, as Binnie J. wrote for the majority in Jacobi, “vulnerability does not itself provide the “strong link” between the enterprise and the sexual assault that imposition of no-fault liability would require” (para. 86).
The strong connection required for the finding of vicarious liability failed. Further from a policy prospective, the Court was not moved by the need to find “deep pockets”;
Further, the appellant has not demonstrated, in this case, that imposition of vicarious liability would further the broader policy rationales of fair compensation and deterrence used to justify it.
This decision illustrates the reluctance of the Court to attach employer liability in a context of employment, even in a context where there was clearly sympathy for the victim’s circumstance. The “closely and materially” test is clearly one which is difficult to reach.
 S. 46.3 (1) Ontario Human Rights Code
 S. 5(2) OHRC
 S. 7 OHRC
 The Ontario Human Rights Tribunal publishes a guide for the filing of human rights complaints, which quite rightly discourages employees from naming personal respondents. This should be ignored in sexual harassment cases.
 This arises from S. 5(1) of the Ontario Code.
 OHRC v Farris
 The distinction is important, particularly in Ontario. The general reprisal violation attracts deemed employer liability whereas the specific sexual solicitation provision does not.
 That is, a reprisal for the use or threatened use of the Code remedy as opposed to conduct retaliatory to the sexual solicitation.
 Lewis v Lakeridge Health (Bhabha)
 It has been held consistently that intent or motive to discriminate is not a necessary element of discrimination. In Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears Ltd
 in Murchie v JB Mongolian Grill (Hendriks)
 in Kowalczyk v Hudson’s Bay (Hart); Jones v. Amway of Canada Ltd.  O.J. No.1504 (Ont. Div. Ct.)
 A good example of this is found in Smith v Menzies in which the finding of general reprisal was influenced by the close proximity between the complaint of offensive conduct and the dismissal the following day and the lack of any credible evidence from the employer to explain this decision.
 see Jones v. Amway of Canada Ltd.  O.J. No.1504 (Ont. Div. Ct.)
 Murchie v JB’s Mongolian Grill (Hendriks); deSouza v. Gauthier (2002), 43 C.H.R.R. D/128; Elkas v. Blush Stop Inc. (1994), 25 C.H.R.R. D/158 (Ont. Bd. Inq.); and Entrop v. Imperial Oil Ltd. (No.7) (1995), 23 C.H.R.R. D/213, affirmed on other grounds 108 O.A.C. 81 (Ont. Div. Ct.), and reversed on other grounds 2000 CanLII 16800 (ON CA), (2000), 189 D.L.R. (4th) 14.
 Walsh v Mobil Oil
 Noble v. York University (Gottheil) This provides a good review of the tests referenced above. The actual reprisal claim failed in this instance.
 Bertrand v. Primary Response, 2010 HRTO 186 (CanLII) (Overend).
 Morgan v Herman Miller (Debane). The general reprisal claim resulted in a lost income claim of 14 months and the substantive claim was dismissed.
 in K.T. v Denis Vranich, Elixir and Paradise Lane Developments Hamilton Inc.; Hudson v Youth Continuum, Phillip Brindle and The Brindle Agency Inc.; Shulz v Attorney-General and upheld on appeal. Shulz was a case alleging verbal abuse and was not a sexual harassment case.
 Nova Scotia v Carvery N.S. C.A. March 2016
 SCC 671122 Ontario Ltd. v. Sagaz Industries Canada Inc.  2 SCR 983
 Supreme Court of Canada in Bazley v Curry
 This is the first step, to ask of “whether there are any precedents which unambiguously determine whether vicarious liability should apply in the circumstances”.
 Pawlett v Dominion Protective Services 2007 ABQB 415
 Corfield v Shaw
 Manitoba Court of Appeal decision in Robertson v Manitoba Keewatanowi where it saw no material connection to support the vicarious liability submission
 Ivic v Lakovic
By David HarrisFew cases consider the proposition that one possibly contemplated remedy of a human rights complaint may be the continuation of the employment relationship without active day to day employment. Many pension plans allow for credits to the employee while on disability, as also is the case with employment benefit policies. In addition, the insurance coverage to a disabled employee, who has recovered from his medical impairment and who has been terminated, will be denied continuing coverage for a future disability, save the modest recurrent protected period.This may raise the issue of a reinstatement remedy without the necessity of active employment, but rather simply to order that the employment relationship remains intact for purposes of such benefits. A foundation in the form of an employer policy document or a pension plan with such terms would likely be required to support such an argument.This issue was raised in a human rights context in Hargrove v Phoenix Glass (Bernd Walter), a 2012 decision of the British Columbia Human Rights Tribunal in which the employer moved to dismiss on the submission of no reasonable prospect of success under section 27-1-c of the B.C. Code.The complainant, due to a vision disability, was unable to work and had been absent from active employment from April 2007 until his eventual dismissal in September of 2011. It was accepted that his medical impairment was permanent and he would be unlikely to return to work. He continued to receive LTD benefits.
The employer also continued to provide MSP and extended health care premiums. The employer alleged that it offered to maintain his employment status until his 65th birthdate to maintain his group disability benefits, if the complainant paid the premiums, an offer which was declined and on which the evidence was disputed.
The complainant argued that it was not a BFOR that he report for active employment.
The claim was based on two arguments, the first being based on the threat of the termination of the MSP and health premiums, which was later rescinded and secondly, based on the termination of his employment.
The first argument was a non-starter, as the employer had withdrawn its threat and had continued the benefits.
As to the second submission, an issue arose as to whether continued active employment was a pre-condition to the entitlement to continued disability payments. The determination of the argument was delayed pending the response from the employer to this issue, one which ultimately had shown that continued active employment was not such a prerequisite to continued disability benefits, as is normally the case.
The motion was successful and the claim was dismissed. It is clear, however, that the tribunal was prepared to consider argument on the issue of reinstatement to non-active employment if this was factually required to allow for the continuum of disability coverage.
The tribunal did, however, to the point at issue, note that certain disability plans require employment status and observed arbitral authority for the conclusion that active employment, in such a circumstance, would not be required for reinstatement:
I am aware that some disability plans only cover workers while they remain employees, however as stated in West Fraser Mills Ltd. (Skeena Sawmill Division) v. United Steelworkers of America, Local I-1937, 2012 BCCA 50 (CanLII), 2012 BCCA 50,
[I]t seems clear that where such a plan is provided, it is not open to the employer to dismiss an employee for non-culpable absenteeism. The collective agreement in such cases militates against a finding that the ability to continue working is a bona fide occupational requirement, since it contemplates that workers on long-term disability will continue to be employees. (para. 78)
One case referenced by the British Columbia Court of Appeal in Fraser Mills was a British Columbia Human Rights Tribunal decision of MacRae v Interferon. In this case, the tribunal agreed that the ability to provide work is usually a BFOR.
MacRae was terminated for non-culpable absenteeism due to a serious medical issue eleven days before an agreement was reached with the union that allowed employees on lay-off entitlement to a substantial severance payment.
The Tribunal concluded that such a decision to terminate had the direct impact of causing the loss of the right of severance pay and hence was a basis to show an “extraneous motive” which thus may have established a prohibited adverse discriminatory intent.
If such a decision was motivated by an intent to deprive disabled persons a severance payment that was available to all other employees, such would lead to a finding of discrimination.
The employer had closed its mill operation in Squamish with no likely possibility of re-opening it. It was not providing employment or compensation, including health and welfare benefits to any of the Squamish crew at the date of termination. For this reason, it was argued that MacRae was treated in the same manner as his colleagues.
The Tribunal found, however, where a plant shutdown was in the offing, that the ability to perform work was not a BFOR and that the complainant’s employment was terminated to prevent him from receiving severance pay and was hence a violation of the Code.
The British Columbia Court of Appeal in the concurring reasons of Mr. Justice Groberman specifically stated that he was not endorsing the decision in MacRae. The reasons of the Chief Justice did not speak to this issue.
Groberman J.A. did agree that it was arguable in this situation of a shutdown, that the employee need not have the capacity to work. This issue remained undecided was his view:
It may well be that a more detailed analysis of the collective agreement than was performed in MacRae would conclude that, notwithstanding a contemplated shutdown, the ability to return to work should be considered to be a bona fide occupational requirement of continued employment.
 This Court has not, to date, considered the questions addressed in MacRae and the arbitral decisions that follow it. The arbitrator in this case did not analyze those questions in any detail, nor have they been argued on this appeal. As the issues are complex and the answers are far from clear, I would not want our dismissal of this appeal to be seen as an endorsement of the MacRae analysis adopted by the arbitrator in this case.
Such an order was made in the decision of the Yukon Human Rights Board of Adjudication in its December 2008 decision of Hayes v Yukon College 67 CHRR D/408 (Evans, Tkachuk and Riseborough) which found liability against the respondent due to its adverse treatment of the applicant who suffered from a debilitating liver disease. An order of reinstatement was made even when the applicant was unable to return to active employment.
Arbitral Authorities on Reinstatement to Inactive Employment
The recent decision of Pharma Plus Drugmarts Ltd. v United Food & Commercial Workers Canada, Local 175 (William Marcotte) released in June of 2013 provides an excellent review of arbitral case law on this subject.
On the facts of this case, the employer terminated 29 employees, all of whom were on LTD benefits which resulted in five individual rights grievances and a policy grievance.
All employees were given notice as required by the ESA and paid the statutory severance sums. Apart from LTD benefits, which were not adversely effected, all other benefits terminated at the end of the ESA notice period.
One argument put forward by the union was that the interpretation of the collective agreement allowed for continuation of benefits during the period of the disability and hence the termination denied such benefits such as group life, accidental death and dismemberment and the prescription drug plan. Reinstatement should hence follow to allow for the continuation of such benefits became the submission.
The essential issue to be determined was whether the collective agreement contemplated the continuation of benefits beyond the basic LTD and hence precluded the company from termination due to innocent absenteeism.
To this end, arbitrator Marcotte examined many precedent cases which were factually driven and dependent on the interpretation made of the particular collective agreement in each instance.
One such decision was the 1982 award of Re DeHaviland Aircraft and UAW local 112  OLAA No. 123, 9 LAC (3d) 271 (Rayner) which was later referenced in another cited case of Re Harris Rebar and BSIOW local 734  OLAA No.107, 35 LAC (3d) 348 (Dunn) in which arbitrator Dunn stated:
It has been held that the existence of a disability plan under a collective agreement may limit the right of any employer to discharge a disabled employee, if the effect of such discharge deprives that employee of long-term disability and other benefits. The termination may constitute a breach of the employer’s obligation to provide the benefits….
…the termination of an employee’s continuous service and seniority … can not be read as termination of the total continuing employee [sic] relationship…
It [i.e., loss of continuous service and seniority as added by arbitrator Marcotte] means something less than that, or the provision of section 14[A] to provide L.T.D. benefits until a disabled “employee” recovers or reaches 65 years of age would be an insecure benefit indeed. By the same token, the general right to terminate an employee because of innocent absenteeism is modified by the provision that contemplates continued benefits that arise from the employee relationship.
Returning to the decision of Arbitrator Marcotte, he concluded that these past two cases that the collective agreement may limit the right of the employer to terminate for innocent absenteeism:
Relevant for our purposes, the Harris Rebar case suggests, as did the DeHavilland case, the provisions of the collective agreement which provide benefits to employees if absent for an extended period of time fetters the employer’s right to discharge the employee for reason of innocent absenteeism. Further, and as did arbitrator Rayner in DeHavilland, arbitrator Dunn found the employee was eligible for employment status, notwithstanding the loss of continuous service and seniority in the Harris Rebar case, and which status allowed the employee to continue to receive, in both cases, long-term disability benefits and specifically in the Harris Rebar case, health and drug benefits, albeit there is no reference to the period of time for such entitlement, but referred to by arbitrator Rayner in DeHavilland as entitlement during the “currency” of the benefits under the collective agreement.
The distinction was noted between benefits which arise directly from the illness or injury and those which are tied simply to employment. To argue that termination is not allowed due to a loss of benefits, such claim for benefits must be related to the former.
Arbitrator Marcotte summarized the arbitral jurisprudence as follows:
The above review of the submitted cases indicates that an employer may properly terminate the employment of an employee on the grounds of innocent absenteeism. It may also properly do so where the employee is in receipt of LTD benefits provided that the termination of employment does not interfere with the employee’s continued entitlement to LTD benefits. In the instant case, the employees who were terminated on the grounds of innocent absenteeism continue to be entitled to long-term disability benefits. Therefore, I do not find they were improperly terminated from employment.
The analysis does not, however, end here as there may be other benefits to which the employee on LTD may be entitled which a termination would disentitle:
However, it may be that entitlement to other insured benefits, for example extended health case or dental plans, properly prohibits discharge of employees on LTD for reason of innocent absenteeism. In that regard, in Re Port Colborne, supra, for example, arbitrator O’Shea found the employer was liable for the grievor’s dental expenses “…until such time as the grievor’s right to L.T.D. benefits has been vested and the company exercises its right to properly dismiss the grievance.” (para. 42). In the DeHavilland case, arbitrator Rayner found the grievor was entitled to sickness and accident benefits, “during the currency of the protection afforded” by that programme of benefits. That is, the jurisprudence seems to indicate that continued entitlement to benefits other than disability may prohibit dismissal for innocent absenteeism during the period of time when an employee continues to be eligible for those non-disability benefits. In contrast, the Atomic Energy and Maple Leaf Meats awards, both of which expressly dealt with benefits other than disability, concluded that the simple existence of such plans did not prohibit an employer from properly dismissing employees on LTD for reason of innocent absenteeism.
Essentially, this involves a review of the collective agreement to determine if additional benefits were intended to be provided to the disabled employee during the period of LTD eligibility, which, in this instance, were found to be lacking and hence the termination decision was upheld.
Common Law Authority – Inactive Employment
The Ontario Superior Court in the 2007 decision of Mr. Justice Perell of Dragone v Riva Plumbing considered the motion made by the plaintiff for declaratory relief that the employment relationship remained in tact to allow the plaintiff to claim coverage under medical, drug and dental insurance plans.
A dispute had arisen between the parties as to whether the employment relationship had ended due to the plaintiff`s resignation and hence the case is not demonstrative of a declaration to reinstate the plaintiff back to employment following a direct termination.
On this issue, the court found that the evidence demonstrated that there was no evidence of a clear and unequivocal intention to resign communicated by the plaintiff.
The plaintiff was not in active employment and in receipt of long term disability benefits when the application was made 14 months after her last active day of employment.
A declaration that the plaintiff remained employed was granted, in addition to an order that the employer continue to maintain medical, dental and drug insurance plans.
The Court also stated, albeit obiter, and without a definitive conclusion, that once the employer was made aware of the plaintiff`s medical disability of metastasized breast cancer, which preceded the evidentiary dispute surrounding her alleged resignation, any attempt made by it to amend the benefits coverage would have arguably been contrary to the Human Rights Code:
Employers may change terms of employment with reasonable notice, but that has not yet occurred in the case at bar. Moreover, Riva Plumbing is confronted with a problem if it were now to give Ms. Dragone reasonable notice of a change of employment because it would be arguable that such a change would violate s. 5 of Ontario’s Human Rights Code, R.S.O. 1990, c. H.19, which provides, amongst other things that every person has a right to equal treatment with respect to employment without discrimination because of disability. Section 17(2) of the Code provides that the needs of a person with a handicap must be accommodated unless to do so would cause the employer undue hardship “considering the cost, outside sources of funding, if any, and health and safety requirements, if any.”
 Ms. Dragone continues to be an employee. She is currently on long-term disability leave because of illness. It would appear to be arguable that it would be illegal for Riva Plumbing to change just Ms. Dragone’s terms of employment because of her disability. However, I do not need to decide what might be the consequences of what Riva Plumbing might do in the future; for present purposes, it is enough for me to decide that Ms. Dragone has not received reasonable notice that Riva Plumbing has changed her employee health benefits nor has Riva Plumbing given notice of an intention to end the employment relationship.
Since no notice has been given, and perhaps cannot lawfully be given, I conclude that Riva Plumbing’s third argument fails.
There is much logic in these comments. There is every likelihood that a civil court would grant a similar order at the very least for the period of reasonable notice and where the evidence will support a connection of such benefits to long term disability insurance, for the period of disability.
It remains to be seen how the human rights regime will respond to this issue. It is expected that it will look to the arbitral jurisprudence for guidance as has been the historical pattern.
By David Harris
July 18,2017 Ontario’s most recent budget has proposed amendments to workers’ compensation entitlement based on claims arising from mental stress. At present a worker’s claim must show “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment.” This has been successfully challenged as contrary to the Charter of Rights and Freedoms and hence the amendment is designed to bring the statute into compliance.The revision, which is intended to become effective January 1, 2018, reads as follows:13(4) Subject to subsection (5), a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker’s employment.13(5) A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.
This amendment will have repercussions, however, well beyond its immediate intention. For those workers covered by the statute, roughly 70% of Ontario’s work force, it will very likely bar any form of civil tort claim based on an abusive work environment, including any claim for aggravated damages and or punitive damages, which recently have been substantive.
It may even limit recovery of human rights damages under the Human Rights Code, as unimaginable as that may seem at first blush.
Master Laycock of the Court of Queen’s Bench in Alberta in the March 2013 decision of Ashraf v SNC Lavalin ATP Inc. considered a motion brought by the employer to dismiss the civil action brought by the plaintiff in which it was asserted that he had been bullied by his co-workers.
The plaintiff sued for damages for mental anguish. No constructive dismissal claim was alleged. He remained an employee and was in receipt of disability insurance benefits.
The employer motion was based on the proposition that the Workers’ Compensation Act applied and hence no civil action was possible against the employer. The civil claim was based on intentional and wilful wrongdoing of the employer.
Statutory Wording Typical
The Court noted section 21 of the Act which denied the right to sue stated as follows:
(1) No action lies for the recovery of compensation under this Act and all claims for compensation shall be determined by the Board.
(2) This Act and the regulations apply instead of all rights and causes of action, statutory or otherwise, to which a worker, the worker’s legal personal representatives or the worker’s dependents are or might become entitled against the employer of the worker by reason of any accident happening to the worker, and no action in respect of that accident lies against the employer. (emphasis added by the court)
In turn, the Act also defined “accident” in a manner, as noted by the Master, which is contrary to its common meaning, as the defined term included a “willful and intentional act” and “disablement”:
Alberta’s statute allowed for workers’ compensation claims based on emotional distress. The court also noted that whether the action was brought in contract or tort was of no moment, as the legislation forbade any civil claim, no matter how pleaded.
The motion succeeded and the claim was dismissed. This decision was upheld by Mr. Justice Mahoney and again by the Alberta Court of Appeal. The employee was allowed to assert that the abusive conduct was constructive dismissal.
Most statutes governing such benefits, including that of Ontario, use a similar definition of define “accident” to include willful and intentional conduct.
The consequences of this decision may be dramatic, particularly given the proposed amendments. Decisions such as the Ontario case of Prinzo v Baycrest, and indeed the moral or aggravated damage claim as set out in Honda v Keays, may be of historical value only where the employee is covered by this legislation.
Human Rights Claims Under Protective Legislation A Safe Haven?
There remains a further argument that the workers’ compensation statutes may deprive the relevant human rights commission of jurisdiction to award a damage claim for such a violation, given appropriate coverage.
Generally, human rights legislation is considered quasi-constitutional and as such, supersedes any conflicting statute, unless specifically stated to the contrary in the human rights enabling legislation. This principle was stated quite clearly in 2008 by the Nova Scotia Court of Appeal in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) and remains a cornerstone of human rights law.
Apart from the quasi-constitutional status argument, the human rights process does deal with broader issues from a public interest perspective and includes other forms of non-monetary relief, including reinstatement, which is not available by a workers’ compensation claim.
Two consequences may follow. The first is that this decision may have no impact on human rights claims. The second is that it may, at least, effect a claim for compensatory damages and/or lost income claims based on a workplace human rights violation.
The Supreme Court of Canada in its 1996 decision in Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., considered a similar conflict between the Quebec Charter of Rights and Freedoms and the workers’ compensation regime of Quebec.
The employee had received compensation under the Quebec workers compensation legislation with the Commission de la santé et de la sécurité du travail (“CSST”) for “an employment injury” which was based on sexual harassment.
She also had commenced a civil action against the alleged harassor and her employer based on improper sexual advances based on a remedy allowed to her under the Quebec Charter.
The employer argued that due to waiver of civil remedy under this legislation that she was barred from civil action. The plaintiff relied upon the wording of the Quebec Charter of Human Rights and Freedoms which provided as follows:
49. Any unlawful interference with any right or freedom recognized by thisCharter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.
In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to exemplary damages.
52. No provision of any Act, even subsequent to the Charter, may derogate fromsections 1 to 38, except so far as provided by those sections, unless such Act expressly states that it applies despite the Charter.
The Quebec Charter specifically allowed for an award of exemplary damages. It was noted by the court that the Charter maintained a special status of a quasi-constitutional substance:
Like the statutes that are its counterparts in the other provinces, the Charter, which was enacted in 1975, has a special quasi‑constitutional status. Certain of its provisions thus have relative primacy, resulting from s. 52. By its very nature, such a statute calls for a large and liberal interpretation that allows its objectives to be achieved as far as possible. In this sense, not only the provisions at issue but the entire statute must be examined (see in this regard Ontario Human Rights Commission and O’Malley v. Simpsons‑Sears Ltd., 1985 CanLII 18 (SCC),  2 S.C.R. 536, at p. 547). In Quebec, s. 53 indeed provides that if any doubt as to interpretation arises, it must be resolved in keeping with the intent of the Charter.
Gonthier J., writing for the majority, however, determined that there was no remedy available under the Charter:
I am therefore of the view that s. 438 has the effect of validly barring the victim of an employment injury from bringing an action for damages under theCharter. By making this exclusion, the AIAOD clearly does not violate any of the rights guaranteed in ss. 1 to 38 of the Charter. Moreover, victims of employment injuries are not denied all forms of monetary compensation. Rather, they are subjected to a special scheme, which offers a number of advantages but which allows them to obtain only partial, fixed‑sum compensation. In this sense, and although the point is not determinative, it is worth noting that this Court has already held that a similar ban on civil liability actions by victims of work accidents did not violate s. 15 of the Canadian Charter of Rights and Freedoms(Reference re Workers’ Compensation Act, 1983 (Nfld.), 1989 CanLII 86 (SCC),  1 S.C.R. 922).
The majority opinion did also refer to the right of the individual to file a grievance under a collective agreement and offered these words, obiter, but nonetheless instructive of a view of the remedy of reinstatement and public interest remedies by analogy under the Human Rights Code:
I shall therefore refrain from determining whether a grievance could have been filed in the instant case. If that had been the case, however, it is understood that the arbitrator could not have awarded damages for the prejudice suffered as a result of the employment injury. The exclusion of a civil liability action also applies to the grievance arbitrator. This being said, it is not inconceivable that an arbitrator dealing with such a grievance in these circumstances could have ordered other remedial measures, such as reinstatement or reassignment, if the collective agreement so allowed.
The above words suggest that a public interest remedy and/or reinstatement may survive the claim for workers’ compensation benefits.
The Tribunal in Snow v Honda (Joachim) considered a case which was not argued on this identical basis, as the fact situation was different, but it did raise similar issues.
The facts of this case showed an employee who had applied for and received WC benefits after which an issue arose as to the conditions of his return to active employment. As the WSIB had determined the return to work conditions, the employer unsuccessfully disputed the jurisdiction of the Tribunal to determine if there had been unfair accommodation of the physical disability from a human rights perspective.
The issue, hence, was much different but it did raise submissions that would likely be repeated from the Commission’s perspective, in the circumstance referenced above. The plea of section 26 was made, but it was clearly of different application in this perspective.
Nonetheless the Tribunal stated in sweeping terms that the Code jurisdiction would not be ousted by a request for WC benefits:
Further, I find that section 26 of the WSIA prohibits actions “for or by reason of an accident happening to the worker.” A complaint under the Code is not “for or by reason of an accident happening to the worker.” Mr. Snow’s complaint is for or by reason of alleged discrimination because of disability. Similarly, section 28bars actions “in respect of the worker’s injury.” Mr. Snow’s complaint is not in respect of his workplace injury, but is in respect of the alleged discrimination he faced because of disability. I find that Mr. Snow is not barred from maintaining his complaint before the Tribunal.
The facts of this case differ from a person whose very claim for WC benefits is the same event that is the offensive conduct under the Code, as in a sexual harassment claim.
The prospective from the Tribunal defending its jurisdiction is predictable. The decision was not reviewed. No reference was made to the Supreme Court of Canada decision in Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., referenced above. This may not be the last word on this topic.
All this remains idle speculation for the present moment. Given the amendments as discussed, employers and human rights practitioners should prepare for a new world.
By Warren Shepell
July 28,2017Quotes capture a moment in time that others have had an insight that was helpful for them and reflected their “take” and perspective on an event, issue, feeling, or experience. They have taken everyday words and put them together in a way that gives us a different and, many times a most helpful and useful perspective. In the quote they have captured a view that had not crossed our mind.Over the years that I have counseled many people, couples, and families, as well as conceived, developed, and managed one of the first Employee Assistance Programs (EAPs) in Canada, my clients identified stress most frequently.Stress needs to be re-visited regularly and people need to be reminded that a stressed-out life need not be so! I thought it would be most helpful to pull together some quotes on stress, including some of my own, that can help you look at stress differently, and hopeful start you on a journey of living a life at work and at home with less stress and more calm and harmony.
- “Attention to self-care is how you take your power back.” – Lalah Della
- “Our anxiety does not come from thinking about the future, but from wanting to control it.” – Kahil Gibran
- “Life is ten percent what you experience and ninety percent how you respond to it.” – Dorothy M Neddermeyer
- “Every time you are tempted to react in the same old way, ask if you want to be a prisoner of the past or a pioneer of the future.” – Deepak Chopra
- “You wouldn’t worry so much about what others think of you if you realized how seldom they do.” – Eleanor Roosevelt
- “Anxiety’s like a rocking chair. It gives you something to do, but it does not get you very far.” – Jodi Picoult
- “When you find yourself stressed, ask yourself one question: Will this matter in five years from now? If yes, then do something about the situation. If no, then let it go.” – Catherine Pulsifer
- Worrying is a waste of time; it changes nothing.” – Robert Washington
- “Every time you say yes to something, especially when you are half-hearted in agreeing, you add stress to your life.” -Philip Veng
- “You don’t have to control your thoughts. You just have to stop letting them control you.” – Dan Millman
- “When I look back on all these worries, I remember the story of the old man who said on his deathbed that he had had a lot of trouble in his life, most of which had never happened.” – Winston Churchill
- “When you wake up each morning take one or two minutes to think of a positive action or even of just a positive word, and ways you can express it during the day that is about to begin; then do it.” – Warren Shepell
- “One of the symptoms of an approaching nervous breakdown is the belief that one’s work is terribly important.” – Bertrand Russell
- “Do not anticipate trouble or worry about what may never happen. Keep in the sunlight.” – Marcus Aurilius
- “Life is really simple, but we insist on making it complicated.” – Confucius
- “When you find yourself saying have to and need to, say want to and then decide if you still want to do it.” – Warren Shepell
- “It isn’t the mountain ahead that wears you out; it’s the grain of sand in your shoe.” – Robert W. Service
- “Living life with a sense of relativity makes life easier; what was one day a negative event can quickly turn into a good thing it happened event.” – Warren Shepell
- “There is more to life than increasing its speed.” – Mahatma Gandhi
- “It’s not stress that kills us, it is our reaction to it.” – Hans Selye
- “Don’t let the past control you.” -Deepak Chopra
- “Make it a point to express and show gratitude each day. Appreciation of a thought, an experience, or a person takes you to a calming place” – Warren Shepell
- “People become attached to their burdens sometimes more than the burdens are attached to them.” – George Bernard Shaw
- “The time to relax is when you don’t have time for it.” -Sydney Harris
- “Our culture encourages us to plan every moment and fill our schedules with one activity and obligation after the next, with no time to just be. But the human body and mind require downtime to rejuvenate. I have found my greatest moments of joy and peace just sitting in silence, and then I take that joy and peace with me out into the world.” – Holly Mosier
I hope that one or two of these quotes have resonated with you and you start to lower your stress levels in ways that are meaningful and helpful for you. You are worthy and you deserve it.
By David Harris
August 11th, 2017The issue of reinstatement under the Ontario Human Rights Code has been the subject of fresh attention, given this recent decision of the Court of Appeal affirming the order of reinstatement and back pay in a failure to accommodate case.Much has been said in the past describing reinstatement in this context as a remedy which was “rarely requested and rarely ordered”. Even the decision of the Court of Appeal itself spoke words to this effect.For many years, reinstatement was the forgotten remedy of the Human Rights Tribunal. Ironically in the early years of the Code’s interpretation, from 1975 to 1999, reinstatement was considered the default remedy.The first decision made by a Board of Inquiry (Cumming) under the 1981 Human Rights Code was that of Cameron v Nel-Gor Castle Nursing Home 1984 5 CHRR D/2170. The complaint was brought by a person suffering from a medical handicap.
The complainant had sought and been declined employment as a nursing aide with the respondent nursing home.
Having found a breach of the Code, the Board then considered remedy and noted that that the complainant had not requested an order that an offer of employment be extended to her, having as the Board noted, secured employment elsewhere.
The Board, nonetheless, made such an order, concluding that this relief should be “the primary remedy to a Complainant who has been denied her right to equal treatment with respect to employment because of handicap”.
The decision of the Board of Inquiry in the March 1987 decision in Ontario Human Rights Commission and Karumanchiri et al v Liquor Control Board of Ontario 8 CHRR D/4076 (Baum) found in favour of Karumanchiri and ordered that he be instated to a higher level position.
The employer had invited two employees to apply for the position of Assistant Chief Chemist, these being Parker and Karumanchiri. This was designed as an interim position, which had been created to facilitate the filling of the position of Chief Chemist, which was soon to be vacant due to the pending retirement of the incumbent.
The Board had announced that there would be an open competition for the position in question, yet appointed Parker to the post without implementing this process.
Having found liability, the Board ordered that Karumanchiri be appointed to the position of Chief Chemist.
The Board also noted that the order may have some issue in the day to day working environment and to this point, the Board, in effect, said get on with business and provided the order of instatement.
This decision was affirmed on a judicial review application in the Divisional Court 9 CHRR D/4868.
The same sentiment is evident in many of the earlier decisions in Segrave v Zeller’s Limited (Lederman), made in September of 1975, the May 1976 decision of Rajput v Algoma University College (Tarnopolsky), the 1977 decision of Singh v Security and Investigation Services Limited, the Board of Inquiry in Hall v Borough of Etobicoke Fire Department (Dunlop). the August 1979 decision of the Board of Inquiry in Snyker v The Fort Frances-Rainy River Board of Education (Ratushny), Hartling v City of Timmins (Cumming), Rand and Canadian Union of Industrial Employees v Sealy Eastern Limited, Upholstery Division 3 CHRR D/938 (Cumming) in June of 1982, the Board of Inquiry in its November 1984 decision of Mark v Porcupine General Hospital (Cumming) 6 CHRRD/2538
In the latter decision then Professor Cumming stated:
As I emphasized in Cameron (supra, at D/2196) para 18523) the prime remedy in an ‘employment case’ where a complainant has been denied her rights to equality of treatment, is an order under paragraph 40(1)(a) directing that an offer of employment be made. The remedy provisions should be construed liberally to achieve the purposes and policies of the legislation: Rand, supra at D/956. An overriding objective of the remedies is to achieve restitution:
that is, the eradication of the harmful effects of a respondent’s actions on the complainant, and the placing of a complainant in the same position in which she would have been, had her human rights not been infringed by the respondent. (Cameron, supra at D/2196, para 18523)
The Ontario Court of Appeal in Naraine v Ford reversed the award made by the Board of reinstatement. The initial order granted by the Board of Inquiry (Constance Backhouse) in December of 1996, in Naraine v Ford Motor Co. of Canada #5 28 CHRR D/267, is nonetheless instructive of the issues to be considered by the decision maker in such a circumstance.
The Board noted that arbitral jurisprudence had determined that “so long as the employment relationship appears to be viable, reinstatement orders will issue” and further observed that the remedial powers found in the Code were similar to those given to labour arbitrators.
Adjudicators under the Code obviously have the authority to issue orders of reinstatement, and can have resort to the principles and values articulated in arbitration awards insofar as these conform to the goals and purposes of human rights legislation.
The Board also noted that in the arbitral caselaw, reinstatement orders are the norm even where the parties may have exhibited a long history of interpersonal tension and confrontation.
The Board also made an order that the reinstatement process would be one which would be subject to guidelines issued by the Board to minimize conflict in this process:
The above analyses were not the subject of adverse commentary by the Court of Appeal which set aside the order of reinstatement for other reasons as noted above.
The Board of Inquiry in McKinnon v Ministry of Correctional Services #3 (Hubbard) in April of 1998 found adverse treatment due to race.
The Board also ordered that the complainant’s spouse, who was an employee of the same Ministry, although not a party complainant, also be instated into such a position. The apparent logic behind such an order was that it was intended to redress the harm done to the complainant for adverse treatment afforded to him, which included wrongs done to his spouse as a means of reprisal to the complainant
Wilson J. in her dissenting opinion in The Supreme Court of Canada decision of McKinney v University of Guelph voiced a strong view in support of reinstatement as a remedy in an age discrimination case, noting the specific factors of the age of the plaintiffs, the particular prejudice suffered by them and the need to redress the wrong.
The majority held against the plaintiffs in the action and hence did not address the issue of remedy. Apart from the majority opinion of LaForest J., both Cory J. and Sopinka J. delivered individual concurring reasons. L’Heureux-Dube dissented independently of Wilson J.
Accordingly of the five opinions which resulted, only that of Wilson J. dealt with the issue of the appropriate remedy. She stated her logic in favouring reinstatement of the plaintiffs:
What Just Happened Here ?
The modern administrative decisions are bereft of any acknowledgement of the jurisprudence set out above. The cited decisions have not been referenced, either in support of, opposed to, accepted, rejected or distinguished, in the recent analyses pondering the award of reinstatement.
The words of then Professor Cummings which described as the order of reinstatement as the “prime remedy” have somehow, for unknown reasons, fallen to wayside. That which was first set out so fundamentally as the default remedy, admittedly strong words, has been recently characterized as “rarely requested or ordered”, words which, it is submitted, are not fairly descriptive of the remedy, even in the current context.
Recent Ontario Cases – Moffatt – 2000 – Limited Reinstatement Ordered
The Tribunal ordered a limited form of reinstatement in the 2000 decision of Moffatt v Kinark Child and Family Services (Laird). The Tribunal had ordered that the employer offer to the complainant a position which was more junior than that held by him when the complaint was initially filed in November of 1991, which position was to be of a limited time duration.
The order requiring the contract to be given was based on the finding that the complainant suffered damage to his reputation due to the adverse treatment. The termination of his employment was found not to have been caused by unfair discriminatory conduct:
I also want to emphasize that the employment contract was ordered to redress the damage to Moffatt’s reputation arising from the discrimination, not to redress the termination of Moffatt’s employment which, on a balance of probabilities, was not found to be caused by the discrimination.
The purpose of the order being fashioned in such a manner was designed to reflect the absence of the complainant from active employment in his profession since the termination of employment and the final disposition, covering a period of 8 plus years:
Dhamrait – 2000 – Reinstatement Ordered
The decision of the Ontario Human Rights Tribunal in Dhamrait v JVI Canada (Flaherty) in May of 2010 awarded reinstatement. The company was an assembly and packaging business with nine employees.
The number of employees is noted due to later commentary in a subsequent Tribunal decision that reinstatement should be limited in its application to large corporations.
The size of the labour force and indeed its reduction from 9 to 6 due to the decision to close one of the two assembly lines was noted in the Dhamrait decision although the size of the employer’s work force was not noted as a factor in the reasons.
The goal of the shaping the remedy, the Tribunal noted, is to restore that which should have been:
In determining whether reinstatement is an appropriate remedy in the circumstances, I am governed by the principle that remedies under the Code are crafted to place successful applicants in the position they would have been but for the discrimination: Piazza v. Airport Taxi Cab (Malton) Assn., supra.
On the facts of this case, the employer was facing the need to reduce its staffing requirements. On this issue, the Tribunal found this decision would not have adversely effected the complainant:
There is no evidence upon which I could conclude that, but for discriminatory factors, Ms. Dhamrait would nevertheless have been laid off. Indeed, the respondents suggest that, on their own, Ms. Dhamrait’s relatively minor performance issues could have been the sole basis for the layoff. Similarly, there has been no suggestion that Ms. Dhamrait’s employment would, in any event, have been terminated in later rounds of layoffs.
 Based on the evidence before me, I find that on a balance of probabilities, the applicant would be employed by the corporate respondent but for the discrimination. While I have not reached this conclusion without some reservations, I find that reinstatement is the appropriate remedy in the circumstances.
April 2002 – Kearsley – Reinstatement Ordered
The Board of Inquiry in Kearsley v St. Catharines (O’Leary) considered the complaint based on a medical disability. The complainant had applied for and been accepted as a fire fighter for the City in June of 1977.
Kearsley was not then aware that he suffered from atrial fibrillation. He had nonetheless passed the “rigourous physical test designed to weed out those who lacked the strength, endurance, conditioning and agility needed in a fire-fighter”.
Soon after the medical condition was discovered and he was not accepted for employment. Kearsley was, however, successful in obtaining comparable employment in Hamilton commencing in October of 1998.
Essentially the liability issue was determined by medical evidence which was resolved in favour of the complainant.
An order of instatement together with lost income was made from June of 1998 forward. This date was chosen due to other medical testing which would have rationally followed after the revelation of the medical condition. His seniority date was also ordered to be adjusted to match this date.
June 2010 – Krieger – Reinstatement Ordered
The June 2010 decision of the Ontario Human Rights Tribunal followed in Krieger v Toronto Police Services (Overend) in which reinstatement was again awarded.
The Tribunal did observe that awards of reinstatement historically were “rarely requested or ordered”. In Krieger, the Tribunal spoke to this issue:
 While reinstatement orders are rarely requested or ordered in human rights cases, they are “normally” ordered in arbitral cases where a violation of a grievor’s rights has been found, unless there are “concerns that the employment relationship is no longer viable” Alberta Union of Public Employees v. Lethbridge Community College, 2004 SCC 28 (CanLII),  S.C.R. 727, 2004 SCC 28 (CanLII), at para. 56. The goal of human rights legislation, which is remedial in nature, is to put the applicant in the position that he or she would have been in had the discrimination not taken place. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 35 C.H.R.R. D/477 (Ont. C.A.). Where viable, reinstatement is sometimes the only remedy that can give effect to this principle.
The Tribunal pointed to the size of the employer as a large and sophisticated employer, an issue also noted in the discussion of reinstatement as the appropriate remedy in the subsequent decision below.
There was nothing said in this present decision of the influence attached to the fact that the workforce was unionized, although there is a reference to the applicant having the support of the Association, referring to the union:
There are many indications that reinstatement will work in this case: The applicant has the support of the Association, and reports having the support of individual members of the Service. Moreover, the Service is a large and sophisticated employer.
The short employment history was not considered a factor in the reinstatement remedy:
It would be inappropriate to use the applicant’s relatively short service record as a factor weighing against reinstatement in a human rights case. The factors taken into account by an arbitrator in deciding remedies for a termination grievance may not be congruent with the considerations applicable to determining remedies under the Code.
December 2011 – Tearne v Windsor
An instatement order was made by the Tribunal in Tearne v City of Windsor (Sengupta) an age discrimination case. The applicant had been offered employment as a part-time arena attendant to supplement his retirement income. Liability was found due to the failure of the employer to show a BFOR in medical testing it had requested.
The order made by the Tribunal was the applicant provide an updated medical certificate from his physician, as he had done initially, after which the City may perform such Code compliant medical testing as may be required and following the successful completion of same, that he be offered the employment in question.
Macan – 2013 – A Contrary View
The Human Rights Tribunal in Macan v Strongco (Renton) spoke to this issue in May of 2013. The Tribunal in this case noted that there was jurisdiction under the Code to reinstate, yet repeated the theme that “this order is rarely requested or ordered in human rights cases”.
The Tribunal continued to state that where reinstatement had been ordered, the applicant had been a unionized employee for a large employer as in Krieger above.
It was also suggested in this instance that a factor in awarding reinstatement in Dhamrait was that the applicant held an unskilled position, a sentiment which was not expressed by the decision maker in Dhamrait itself.
The Tribunal in Macan continued to state that in this case, where the disability was a factor, but not the sole cause for termination, reinstatement should not follow. No authority was then offered for this proposition.
The Remedy Shaped by the Liability Finding
It is difficult to imagine a remedy which is shaped by the reasoning by which liability was determined, apart from a concept which parallels contributory negligence.
This being stated, it is noted that similar reasoning was used, coupled with other reasons, in denying reinstatement in a decision of the British Columbia Human Rights Tribunal in J.J. v Coquitlam School Board (Beharrell):
In addition, it is by no means certain that J.J. would have obtained the continuing casual position which was created in November 2005. I found above that J.J.’s sex was a factor in the decision not to offer her that position. I did not find that it was the only factor, or even the predominant factor. In view of this uncertainty, I find that monetary compensation is a more appropriate remedy to the loss which J.J. has incurred.
A similar conclusion was made by the Nova Scotia Board of Inquiry in McLennan v MacTara. Although other reasons were offered for denying reinstatement, the finding that the adverse treatment was but one cause as opposed to the cause was certainly a factor in the decision.
I have considered and rejected Mr. McLellan’s request for reinstatement. I do so for several reasons:
• 1. I do not know whether there is a vacant entry position to which to restore Mr. McLellan;
• 2. I have already explained that Mr. McLellan’s termination was not exclusively the result of physical disability discrimination. He was terminated with notice;
• 3. the passage of time has been lengthy and the workplace adjustments at MacTara since would mean that a reinstatement order could unintentionally privilege Mr. McLellan above other longer term MacTara employees who today remain on layoff;
• 4. Mr. McLellan doubts that reinstatement would be a positive experience for himself;
• 5. I do not believe that it would benefit the public interest, or serve any instructive purpose for MacTara, in any way.
The argument against reinstatement would be more logically supported if the extraneous factors may have been proven to have militated against a continuation of the employment relationship. For example, if the complainant was terminated due to a physical disability, yet also exhibited legitimate performance issues, then it is conceivable a submission could be made that the application of the but-for test would have concluded that the relationship was otherwise doomed to fail, as opposed to the theory that if the Code was but a proximate cause, therefore, the remedy should not follow as a determined rule
Fair – 2013 – Reinstatement Ordered
Notwithstanding all of the above, the decision of Fair v Hamilton-Wentworth District School Board, (Joachim), released on March 14, 2013 ordered reinstatement.
The Tribunal had found that the employer had treated the applicant unfairly due to a disability by failing to accommodate her disability-related needs from April 2003 and then by terminating her employment on July 9, 2004.
Ms. Fair had commenced employment in October of 1988. From September of 1994 forward, she held the position of Supervisor, Regulated Substances, Asbestos.
Due to a fear of personal liability to the possibility of a breach of the Occupational Health & Safety Act, Ms. Fair developed a generalized anxiety disorder in the fall of 2001
She received LTD benefits until April 3, 2004 at which time she was assessed as capable of gainful employment.
It was determined that from April 2003 that the employer failed to take steps to investigate possible forms of accommodated employment and that from June 2003 that the employer had failed to offer alternative employment.
In particular, one area supervisor announced his resignation on June 26, 2003, a position which was comparable to that of the complainant and one which was not offered to her.
Further a second position was advertised on June 26, 2003 which was that of Staff Development Supervisor, which was a non-union supervisory position at the same salary grade. This was in the same department in which Ms. Fair had been working as part of her work-hardening program
The Tribunal noted that the remedial objective of human rights legislation is to make the applicant “whole”. It also found that had the employer been properly accommodating the applicant, she would have been returned to full-time employment in June of 2003, in one of the two positions referenced above.
Reliance was placed on the passage from the Supreme Court of Canada decision in McKinney, a case involving an analysis of mandatory retirement, as was referenced above. Again, this opinion was from a dissenting view and was the only decision delivered from the five sets of reasons which dealt with remedy:
I adopt the remedial principles of the Supreme Court of Canada in McKinney v. University of Guelph, 1990 CanLII 60 (SCC),  3 S.C.R. 229 at paragraph 341
It should be noted that the rights of the appellants which have been infringed pertain to their dignity and sense of self-worth and self-esteem as valued members of the community, values which are at the very centre of the Charter. It would be insufficient, in my view, to make any order which does not seek to redress the harm which flows from the violations of this interest. Reinstatement is clearly the most effective way of righting the wrong that has been caused…
The Tribunal also made reference to the remedy of reinstatement in an arbitral context to the effect that reinstatement is the default remedy in this context:
The Supreme Court of Canada has confirmed, in the arbitral context, that, “[a]s a general rule, where a grievor’s collective agreement rights have been violated, reinstatement of the grievor to her previous position will normally be ordered. Departure from this position should only occur where the arbitration board’s findings reflect concerns that the employment relationship is no longer viable,” see: Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28 (CanLII), 2004 SCC 28,  1 S.C.R. 727 at para. 56.
It was also noted that there was no personal animosity between the parties and that the employer was a large entity with a sophisticated management structure. All factors considered, there was no prejudice caused by the reinstatement request:
In some cases, animosity between the parties can impede the potential for a successful reinstatement. This is not a bar in this case. The applicant has testified that she holds no ill will toward the respondent as a whole and believes she could return to work there. The few individuals who were responsible for the decisions leading the termination of her employment are no longer in the employ of the respondent. The respondent is a very large employer with a sophisticated management structure. The reinstatement of the applicant would not cause any hardship.
The argument advanced by the employer that reinstatement would be unfair due to the passing of 8.5 years from termination to the date of the remedy was not successful. The delay was determined not to be to any failing of the applicant.
There may be some issue taken to the human rights tribunal relying upon arbitral authority as a means to support the reinstatement order. There is nothing noteworthy about this as many fundamental concepts in human rights principles have found their origin in arbitral decisions. This includes the need to establish but a prima facie case and the concept of liability be shown by a cause, not the sole cause. Similarly the process of evidence by reasonable inference found its initial reasoning from arbitral jurisprudence.
No matter what the origin, clearly the tribunal is empowered to consider reinstatement as an exercise of its discretionary remedial authority.
A case of the same genre, albeit not purely an employment reinstatement decision, is the May 2103 remedy segment of Chaudhry v Choice Taxi (Reaume).The applicant was a cab driver who had requested dispatch services from the respondent and with it the right to become a shareholder.
The Tribunal ordered that the company provide the applicant with the first available opportunity to become a shareholder.
Reinstatement in Sexual Harassment Case
One might expect that the employer would raise a submission that the employment relationship may be one which is difficult to resurrect as a consequence of a hearing involving evidence and issues which are likely to be emotionally charged and arguably destructive of inherent good will required for a continued life between the parties.
The views of the Federal Court in Pitawanakwat, discussed below, may be an apt rebuttal consideration for such an argument. It was concluded in that instance that this submission must be tempered by the fact that it was the wrongful conduct of the employer which led to the need for the litigation.
Notice to the Incumbent
Many of the early decisions deal with the issue of the impact of a reinstatement order upon innocent third parties.
In a unionized work environment, there will exist rights of the party effected pursuant to the terms of the collective agreement and hence the impact of such an order upon such a person will be cushioned by the protective terms of the agreement.
Professor Cumming made note of such provisions in Rand v Sealy referenced above, when he ordered that the complainant be reinstated. A similar reference was made by the same decision maker in Singh v Security and Investigation noting that no present employee would be adversely effected by the order that an offer of employment be extended.
The impact of the reinstatement remedy on innocent third parties was also a critical factor in declining reinstatement in the decision of the Board in Rajput v Algoma (Tarnopolsky) referenced above
The same theme followed in the decision of the Board in Olarte v Commodore (Cumming).
The decision of Baum in Karumanchiri was one which directly impacted the incumbent Parker, who as noted, was a direct party to the reprisal complaint and represented by counsel throughout the hearing.
The above decision is the only case in which the Board considered the requirement to give notice to such innocent third parties of the remedy being sought. This was academic in this instant for the reasons as noted.
The employer raised this issue on appeal from the decision of the Board. The Divisional Court rejected the argument as the incumbent Parker clearly had notice of the remedy being sought.
The Court did, however, refer to the 1967 Court of Appeal decision of Re Bradley v Ottawa Professional Fire Fighters Association in which an arbitration board had considered a grievance over a the test applied to award promoted positions.
One group of employees had grieved the means by which the successful candidates had achieved the positions in contest
The Court of Appeal concluded that proper notice should be given to the affected employees:
A collective agreement is a unique legal institution because, despite the generality of its terms as part of a bargain made between a representative union and an employer, its existence and application result in personal benefits to employees who are covered by it. Once it is accepted, as it must be, that the benefits running to employees may differ according to job classification or seniority ranking (to take two illustrations), and that the representative union is put to a choice between employees who competed for the same preferment as to which it will support against a different choice made by the employer, substantive employment benefits of particular employees are put in issue and they are entitled to protect them if the union will not.
It follows that they are entitled to notice of arbitration proceedings taken to test their right to continued enjoyment of the benefits. The fact that particular provision for notice is not made either in the statute or in the collective agreement is of no moment. There is a large silence in both — and this is not limited to collective bargaining relations in fire fighting — so far as concerns the procedure to be followed in an arbitration. The common law has been specially sensitive to deprivation of property or contractual advantages in proceedings of an adjudicative character without previous notice thereof to persons likely to be directly affected, unless there is clear statutory exclusion of such notice. In the present case, there is none. I leave for consideration when it arises any question of the power of bargaining unions and employers to commit employees to waiver of notice of or intervention in arbitration proceedings in situations such as that under review here.
What kind of notice should be given and who should give it? Preferably, it should be in writing indicating the issue or issues to be arbitrated as involving the possible diminuation of the collective agreement benefits being enjoyed by the persons entitled to the notice; and it should advise of the date, time and place of hearing; of the right to be represented by registered mail sufficiently in advance of the date fixed for the hearing to give the notified persons a reasonable opportunity to prepare their submissions if they decide to appear. I should think that if there is any question of the proper length of notice it would be one for the arbitrator to settle in the first instance
In arbitral jurisprudence, the concept of notice and subsequent party status when there is an adverse interest to that of the grievor shown, remains good law today.
There is no further guidance on the requirement to give notice in such instance in human rights administrative process, apart from the Divisional Court decision which clearly advocates such a concept. It would appear to be a prudent strategy to do so.
By David Harris
July 27th, 2017Initially, the essential controversy on this subject has centred on whether an underlying disability is required to be proven to support a ground of discrimination, one, which in turn has caused the applicant’s obesity.The answer to this question then appeared to turn on the particular wording of the relevant human rights code. For example, the B.C. statute did not define the need for such a causal connection whereas that of Ontario did.As noted below, Ontario cases have dealt with the issue as to whether the condition of obesity requires an underpinning of a causal medical disability. The issue appears to be in debate presently. B.C.’s statute does not contain such a definition, nor has the case law incorporated such a requirement.The 2000 decision of the Supreme Court of Canada in “Mercier” made it clear that the definition of a human rights disability was not one which was limited to a condition showing real and actual limitations but rather encompassed the perception of the employer that the applicant was suffering from a disability.
One would expect that an employer’s decision to treat an employee adversely due to obesity would readily fall into the well of “perceived disability” and not be dependent upon the need to prove an underlying medical cause, no matter what the wording of the legislation.
B.C. human rights cases embraced the concept of “perceived disability” even prior to the Supreme Court decision in 2000.
This issue was considered by the B.C. Human Rights Tribunal (then Council of Human Rights) in its 1989 decision of Hamlyn v Cominco. (1989 BCCHRD 29).The applicant weighed between 325 and 350 pounds. He was laid off from his position and was not recalled when other employees were requested to return to work as part of a shut-down crew.
He alleged that he was not called upon due to his weight and the employer’s perception that he was disabled. The employer denied the assertion and also led evidence, which was not accepted, showing what was attempted to be a bona fide reason for not calling the applicant back to work. It asserted that due to his weight he was not allowed access to certain parts of the plant and not allowed to work on the Bobcat machine.
Ironically, this alternative plea showed the employer perceived the applicant to have a disability, which became the grounds for the successful complaint. The applicant was reinstated.
A similar case came from the B.C. Human Rights Tribunal in Rogal v Dalgliesh. (2000 BCHRT 22). The complainant’s application for employment with the respondent carnival was admittedly denied because he was “too big and heavy” and that it did not have a uniform which would fit him.
The Tribunal concluded that the condition of obesity was a disability if the employer, as in this case, perceived it to be so.
The Tribunal in Rogal did parenthetically note that a finding of obesity as a human rights complaint will be dependent on the medical evidence in each instance:
There was no evidence presented by the DCC concerning the medical definition of obesity, its causes or its treatment. …
The DCC is, in effect, suggesting a new test with respect to the definition of disability. The DCC argues that, where there is widespread evidence of negative attitudes towards people with a certain characteristic (in this case, obesity), that characteristic should be considered a disability. However, the DCC does not address the implications of adopting such a definition of disability. …
Furthermore, the position of the DCC is not clear. It is unclear whether the position of the DCC is that obesity should, in every case, be considered a disability, or a perceived disability, or whether the determination should be made on a case by case basis. It may be that the determination of whether a particular individual who is obese is disabled will be determined on the basis of the medical evidence presented at the hearing. I note that in Cominco Ltd. v. United Steelworkers of America, Local 9705,  B.C.C.A.A.A. No. 62, the arbitrator concluded, based on the medical evidence before him, that only some smokers (i.e., those who are heavily addicted) were disabled within the meaning of the Code.
The BC Human Rights Tribunal again considered this issue in its 2010 decision in Johnson v D & B Traffic Control.
The complainant did not assert that he was obese. He described himself as overweight. He offered no evidence that this condition prevented him from doing any particular tasks. The Board dismissed the complaint on the basis that there was an actual disability but found in his favour that there was a perceived disability.
In its reasons, the Tribunal did offer this view of the standard of proof required for a finding of a disability, based on obesity. The applicant, it stated, was required to show a functional restriction upon his ability to perform the tasks of work or day to day life:
 In my view, simply being overweight is not sufficient to constitute a disability for the purposes of the Code. There must be some limitation on the ability to perform the activities of daily living or work in order to constitute a disability. While I accept that obesity may, dependent on the circumstances, constitute a disability, based on the evidence presented in this case, I am not persuaded that Mr. Johnson has an actual disability: Rogal v. Dalgliesh, 2000 BCHRT 22. (emphasis added – ed)
There was no suggestion of an underlying disability being a requirement of the test.
Saskatchewan – Need for An Underlying Disability
An early decision to decide this issue was that of the Saskatchewan Court of Appeal in its 1993 decision of Saskatchewan Human Rights Commission and Davison v St. Paul Lutheran Home of Melville.
The Board of Inquiry had found that the applicant was denied employment due to her obesity but found no liability as this condition was not proven to be caused by a recognized disability as defined in the Code. The Board hence saw obesity in itself was not a ground of complaint but required an underpinning to a recognized disability.
A first level review made by the Commission was not successful. The Court of Appeal agreed with the substantive decision and dismissed the appeal, agreeing that the applicant must show evidence of a disability which led to the obesity.
Ontario – Need to Show a Disability
The Ontario Code defines disability to be one which is caused by a medical issue:
- any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness…
The 1991 decision of the Ontario Human Rights Commission v Vogue Shoes 1991 14 CHRR D/435 concluded that there must be proven the disability which has led to the condition of obesity. This has been the subject of some debate in Ontario.
Several cases have repeated the mantra from Vogue Shoes that obesity unto itself is not a grounds for a disability complaint, however such cases as of Hinze v Great Blue Heron Casino (Shannon) and Kalam v Brick Warehouse (Muir) were not decisions dealing with an obesity complaint. The reference to Vogue Shoes in each instance was oblique and obiter.
Lombardi – No Causal Disability Required
The Human Rights Tribunal in the 2012 decision of Lombardi v Walton (Keene) considered the issue of whether obesity unto itself was within the definition of disability under the Code.
Lombardi was later set aside by the Divisional Court on unrelated grounds, which makes the statements which follow obiter.
This decision stated that there was no need to prove a fundamental medical disability which has in turn led to the condition of obesity:
In Ontario (Human Rights Commission v. Vogue Shoes (1991), 14. C.H.R.R. D/425, a Board of Inquiry concluded that obesity was not included under the definition of “handicap” unless it was caused by bodily injury, birth defect or illness. However, more recently, the Tribunal has accepted that obesity is included under the definition of “disability” (see for example Ball v. Ontario (Community and Social Services), 2010 HRTO 360 (CanLII), 2010 HRTO 360, Ketola v. Value Propane Inc. (No. 1), 2002 CanLII 46510 (ON HRT), 2002 CanLII 46510. This development mirrors the Supreme Court of Canada’s acceptance of a social model that conceptualizes “disability” as the outcome of socially constructed barriers and discriminatory customs and norms and seeks to eliminate those barriers and prejudicial attitudes; see discussion of Montréal (City) and Boisbriand (City) in Hinze v. Great Blue Heron Casino, 2011 HRTO 93 (CanLII), 2011 HRTO 93.
Is Lombardi Rightly Decided ?
With respect, the provenance of the reasoning is in doubt. While it may be arguable that modern case law will support the conclusion, the road to the end in this case is in doubt.
Apart from the parallel sentiment seem in Mercier, two authorities were given for this proposition.
The first was Ball v Ontario, a case involving a claim for a special dietary allowance under the Ontario Disability Support Program. The complaint, “S”, had asserted adverse treatment in the assessment of his dietary allowance due to a condition of extreme obesity and symptoms of Preder-Willi syndrome. These submissions were not successful.
The Tribunal did agree that the dietary allowance which had been set for his condition of obesity, was the subject to discriminatory treatment for which a remedy was ordered.
The respondent did not dispute that the claimant suffered from a disability and indeed he had qualified under the relevant legislation for support which required a finding of a substantial physical impairment, which impacted his personal living circumstance, or function in the community or workplace.
In the context of the legislation in question, it was clear that the applicant had proven a disability.
The proposition that this decision may stand for the conclusion that no medical disability is required for employment related issues under the Code and hence overrules Vogue Shoes, a case which was not mentioned in the decision, is highly debatable.
The second decision referenced was Ketola. Ketola had nothing to do with an argument of obesity. It was a case alleging adverse treatment due to ALS. The sole relevance of the Ketola decision was that it quoted the same passage from the Supreme Court of Canada in Mercier, which decision is discussed momentarily. The relevant passage reads as follows:
Thus, tribunals and courts have recognized that even though they do not result in functional limitations, various ailments such as congenital physical malformations, asthma, speech impediments, obesity, acne and, more recently, being HIV positive, may constitute grounds of discrimination:
The Ketola decision did not reference the cases cited by the Supreme Court of Canada in support of this proposition of law. The full quote reads as follows, adding the cases referenced for the preceding statement. This is important as none of the cited cases lead to the decision that no medical underpinning is required for a conclusion that obesity is unto itself a disability:
Thus, tribunals and courts have recognized that even though they do not result in functional limitations, various ailments such as congenital physical malformations, asthma, speech impediments, obesity, acne and, more recently, being HIV positive, may constitute grounds of discrimination: Labelle v. Air Canada (1983), 4 C.H.R.R. D/1311 (Can. Trib.); De Jong v. Horlacher Holdings Ltd. (1989), 10 C.H.R.R. D/6283 (B.C.H.R.C.); Matlock v. Canora Holdings Ltd. (1983), 4 C.H.R.R. D/1576 (B.C. Bd. Inq.); St. Thomas v. Canada (Armed Forces) (1991), 14 C.H.R.R. D/301 (Can. Trib.); Davison v. St. Paul Lutheran Home of Melville, Saskatchewan (1992), 15 C.H.R.R. D/81 (Sask. H.R.C.); Thwaites v. Canada (Armed Forces) (1993), 19 C.H.R.R. D/259 (Can. Trib.).
The only decision cited above for the authority that obesity “may” be a disability is the Davison case of the Saskatchewan Court of Appeal, which held to the exact opposite, namely, that such a conclusion requires an underlying medical disability.
A further reference in the closing words of the paragraph in Lombardi was made to Hinze, a case which, as noted above, did not deal with the substantive issue of obesity as a disability.
With all due respect, the reasoning in Lombardi does not cut the mustard.
Perception of a Disability – Supreme Court of Canada in “Mercier”
As noted above, the B.C. cases cited above of Hamlyn, Rogal and Johnson were all decided on the basis that it was the employer’s perception that the applicant was disabled, not on the basis that the condition of obesity was unto itself a disability.
The Supreme Court of Canada in Canada in its May 2000 decision of Quebec v Montreal agreed with the submission that a perception of disability can be used to make a liability finding.
It is important to note that a “handicap” may exist even without proof of physical limitations or the presence of an ailment. The “handicap” may be actual or perceived and, because the emphasis is on the effects of the distinction, exclusion or preference rather than the precise nature of the handicap, the cause and origin of the handicap are immaterial. Further, the Charter also prohibits discrimination based on the actual or perceived possibility that an individual may develop a handicap in the future.
This decision of the Supreme Court involved the interpretation of the Quebec Charter, one which did not define the operative term “handicap” on which the three complaints before it were based.
One of the three had undergone surgery from Crohns’ Disease and was alleged to be at a risk of recurrence. The other two complainants suffered from spinal column anomalies and both showed an unremarkable medical history. All three presented as asymptomatic.
The unanimous decision of Justice L’Heureux-Dube spoke to the need in employment cases to “eliminate exclusion which is arbitrary” and based on preconceived ideas relating to personal characteristics:
The purpose of Canadian human rights legislation is to protect against discrimination and to guarantee rights and freedoms. With respect to employment, its more specific objective is to eliminate exclusion that is arbitrary and based on preconceived ideas concerning personal characteristics which, when the duty to accommodate is taken into account, do not affect a person’s ability to do a job.
A handicap, the Court concluded, will include ailments which do not demonstrate real life functional limitations and will hence include perceived disabilities:
The objectives of the Charter, namely the right to equality and protection against discrimination, cannot be achieved unless we recognize that discriminatory acts may be based as much on perception and myths and stereotypes as on the existence of actual functional limitations. Since the very nature of discrimination is often subjective, assigning the burden of proving the objective existence of functional limitations to a victim of discrimination would be to give that person a virtually impossible task. Functional limitations often exist only in the mind of other people, in this case that of the employer.
40 It would be strange indeed if the legislature had intended to enable persons with handicaps that result in functional limitations to integrate into the job market, while excluding persons whose handicaps do not lead to functional limitations. Such an approach appears to undermine the very essence of discrimination.
41 I am, therefore, of the view that the Charter’s objective of prohibiting discrimination requires that “handicap” be interpreted so as to recognize its subjective component. A “handicap”, therefore, includes ailments which do not in fact give rise to any limitation or functional disability.
Canadian Human Rights Tribunal – Turner
The Canadian Human Rights Tribunal considered this issue in the 2014 decision of Turner v Canadian Border Services Agency.
The Canadian Act defines the word “disability” unlike the Ontario Code. It sees no need for an underlying disability.
“disability” means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug;
The Tribunal had initially dismissed the complaint, a decision which was set aside by the Federal Court of Appeal based on the successful submission that the Tribunal had failed to deal with the argument of perceived disability.
The Federal Court did not decide the issue of whether the perception of disability was a ground of complaint, stating only that this argument was not considered in the decision.
Upon the return of this matter to the Tribunal, it was then determined that the perception of obesity as a disability is a violation of the federal code, even if that which is feared may not in fact be a condition which has led to real limitations:
Disability is a prohibited ground of discrimination under s. 3 of the CHRA. Based on the Supreme Court’s analysis in Boisbriand, cited above, it is clear that discrimination on the basis of disability can occur even in the absence of an actual physical or mental limitation on activities, based solely on societal perceptions of one’s limitations. Applying this reasoning, I find that the ground of disability under s. 3 of the Act encompasses perceived disability as well as actual disability. It is also well established that a person’s weight is a characteristic that can ground a claim of discrimination on the basis of disability: Bouchard v. Canadian Armed Forces,  D.T. 12/90 (CHRT); Hamlyn v. Cominco Ltd.,  B.C.C.H.R.D. No. 29. The combined effect of these principles, in my view, is that perceived disability on the basis of weight is a prohibited ground of discrimination contemplated by the CHRA.
The complaint was successful on the grounds of perceived disability, in addition to age and race. A remedy decision remains to be determined, although the Tribunal did define the parameters of the wage loss which would run, in concept, from mid-1993 to the date of the remedy decision, likely to be in the range of eleven years.
Interpreting the Ontario Code – The Need for a Disability
The Supreme Court also noted that, apart from the above conclusion, the cause and origin of the handicap, to use the term in the Quebec Charter case before it, were not relevant:
It is important to note that a “handicap” may exist even without proof of physical limitations or the presence of an ailment. The “handicap” may be actual or perceived and, because the emphasis is on the effects of the distinction, exclusion or preference rather than the precise nature of the handicap, the cause and origin of the handicap are immaterial. Further, the Charter also prohibits discrimination based on the actual or perceived possibility that an individual may develop a handicap in the future.
The Wording of the Ontario Code
While it is so that the wording of the Ontario Code on its face requires that there be an underlying and causal disability proven, the words of the Supreme Court would appear to give every opportunity to argue that such semantics are not defining of the substantive rights, unless such wording clearly showed a different intent of the relevant legislature:
This Court has often stressed that mere differences in terminology do not support a conclusion that there are fundamental differences in the objectives of human rights statutes. In University of British Columbia v. Berg, 1993 CanLII 89 (SCC),  2 S.C.R. 353, at p. 373, Lamer C.J., speaking for the majority, stated the following:
If human rights legislation is to be interpreted in a purposive manner, differences in wording between provinces should not obscure the essentially similar purposes of such provisions, unless the wording clearly evinces a different purpose on behalf of a particular provincial legislature. [Emphasis added.]
47 Because the Charter must be interpreted in light of the Canadian Charter and other human rights legislation, we are faced with the question of whether the ground of discrimination found in s. 15(1) of the Canadian Charter and in other human rights statutes includes disabilities which do not give rise to any functional limitation.
48 Whatever the wording of the definitions used in human rights legislation, Canadian courts tend to consider not only the objective basis for certain exclusionary practices (i.e. the actual existence of functional limitations), but also the subjective and erroneous perceptions regarding the existence of such limitations. Thus, tribunals and courts have recognized that even though they do not result in functional limitations, various ailments such as congenital physical malformations, asthma, speech impediments, obesity, acne and, more recently, being HIV positive, may constitute grounds of discrimination: Labelle v. Air Canada (1983), 4 C.H.R.R. D/1311 (Can. Trib.); De Jong v. Horlacher Holdings Ltd. (1989), 10 C.H.R.R. D/6283 (B.C.H.R.C.); Matlock v. Canora Holdings Ltd. (1983), 4 C.H.R.R. D/1576 (B.C. Bd. Inq.); St. Thomas v. Canada (Armed Forces) (1991), 14 C.H.R.R. D/301 (Can. Trib.); Davison v. St. Paul Lutheran Home of Melville, Saskatchewan (1992), 15 C.H.R.R. D/81 (Sask. H.R.C.); Thwaites v. Canada (Armed Forces) (1993), 19 C.H.R.R. D/259 (Can. Trib.).
The door is clearly open for such an argument to be made in Ontario.
Conduct as Sexual Harassment
Certain cases have allowed for a remedy based on sexual harassment or adverse treatment due to gender. While this argument may not be a full response to the addressing the issue, in specific cases, relief has been granted.
The essential framework of the argument is that the conduct which is abusive of the obese or overweight employee is gender biased and hence there has been adverse treatment proven based on gender or conduct which is sexually harassing. All cases referenced show the complainant as female, which is certainly a limiting feature.
Clearly these cases are filling a gap and do not represent the real solution to the issue.
The Ontario Board of Inquiry in Shaw v Lavac and Robertson (1991), 14 C.H.R.R. D/36 found that the female employee was the subject of comments from her co-workers such as “waddle waddle” and “swish swish”, apparently referring to the sounds made by her nylons as she walked by them.
Such adverse words in reference to her body size were determined to be a form of sexual harassment.
Parallel reasoning was used in Egolf v Watson  B.C.C.H.R.D. No. 13 (Q.L.).to find liability. The complainant was described as a female wrestler and a Sumo wrestler due to her physical size.
The same ratio appeared in Fornwald v Astrographic  B.C.C.H.R.D. No. 31 (Q.L.). The female employee was called a bitch, slut, whore and behemoth. Comments which are intended to refer to women only have been seen as sufficient to be sexually harassing under the Canadian Human Rights Act. The phrase “get off your fat ass” was seen as gender specific and hence actionable under the Act.
Disability Under CTA – Federal Court of Appeal The Federal Court of Appeal in the 2006 decision of McKay-Panos v Air Canada considered the issue of disability under the Canadian Transportation Act. The complainant had asserted her weight had presented obstacles to her ability to occupy the space designated to her as a passenger on an Air Canada flight.
The preliminary issue was whether this condition qualified as a disability, a term which was undefined under the legislation. The secondary questions as to whether this presented (1) an obstacle and (2) one which was “undue” were not dealt with in this decision. The Federal Court of Appeal agreed with the complainant that her obesity was a disability under the Act:
Parliament did not define the word “disability” under the CTA. The only statutory reference throughout is to “persons with disabilities” in both the singular and the plural forms (see the preamble to section 5 and subparagraph 5(g)(ii), as well as subsection 170(1), section 171, and subsections 172(1), (3)). Nevertheless, there can be no doubt when regard is had to the scope and purpose of the accessibility provisions of the CTA that Parliament had in mind “persons with disabilities” in the context of the federal transportation network who are confronted with “an undue obstacle to [their] mobility” (subsection 172(3)). Whether a person comes within the class of persons contemplated by Parliament must be determined by reference to his or her impairment and the particular limitation encountered by reason of this impairment in the course of transport.
In light of the concession that the appellant suffers from an impairment and the fact that she has encountered an activity limitation on account of this impairment, the only conclusion open to the Agency was that the appellant is a person with a disability under the CTA.
For a thorough review of this issue, please refer to the paper presented by Leo McGrady of the Vancouver law firm of McGrady, Baugh and Whyte to the International Congress of Law and Mental Health in July of 2005.
By David Harris
July 17th, 2017It is clear that many restaurants hire, particularly in the bar area, female servers who are young and attractive and that the employer mandates the attire and appearance of these employees, typically in a low cut short black dress, heeled shoes and hair worn down.A group of Edmonton female servers have established a web site to allow for consumers and employees of such establishments to voice their concerns with respect to such a code. The same subject was the focus of Anna Marie Tremonte’s show on CBC Radio on April 8th, 2015.British Columbia banned the mandatory wearing of high heels by a regulation under its Workers Compensation Act. Alberta is contemplating a similar provision. The Ontario Human Rights Commission has issued a policy statement that the requirement to dress in such a fashion could violation the Human Rights Act.The law has been very slow in answering the question of whether such employment practices are in violation of human rights protections. There are a series of issues to be examined.
The first is whether the dress code imposes a different obligation on females as opposed to male employees and whether such distinction may be a human rights violation.
A subordinate argument, sometimes connected to the gender based dress code, really goes to the nub of the issue – is the restaurant or bar, in essence, using the sexual appeal of the servers to sell its wares – is this good, bad, indifferent or actionable as a human rights complaint?
The second question is whether the hiring decision is influenced by age and/or gender.
A third issue may be whether physical attractiveness, or perhaps more acutely, a lack of it, can be raised to the level of a human rights issue.
A further question could be whether the dress code is a violation of religious freedom, given a religion which sets restrictions on exposing parts of the human anatomy.
The 1987 Ontario Divisional Court decision of Ontario Human Rights Commission v Chrysalis, now some twenty years of age, was an early case to touch on this issue. It has not been referenced in any following decisions to date.
The Commission, as was then the process, brought the complaint against the employer disco bar due to the alleged sexually revealing nature of the apparel required by the female waitresses. The argument was based on the apparent distinction between male and female dress code, one which did not require the males to dress in such an alleged provocative fashion.
This submission failed before the Board of Inquiry and also in the subsequent judicial review. There were fatal findings of fact made at the Board level against the complainants, one of which was that the required manner of dress, referred to as a “uniform” was not unduly revealing or risqué and was not so “ ‘immodest’ or ‘sexist’ as to transform the waitresses into entertainers.”
The Divisional Court, however, did agree that the Board erred in its determination of the test to be applied in an argument of discrimination based on sex, that is sex in the sense of gender discrimination.
A review of this test will follow. One would expect, however, that the test of an offensive dress code would not be whether an abusive requirement was imposed equally on male and female alike.
The Board’s definition of adverse treatment due to gender, which was found not to be an exhaustive one, was stated as follows:
(1) that males and females perform the same or roughly similar work for the employer;
(2) that the employer has imposed a requirement on employees of one sex which is clearly more burdensome or exploitative than the requirement imposed on employees of the other sex;
(3) that the requirement in question lacks justification in “commonly accepted social norms”; and
(4) that the requirement is not proved (by the employer) to be reasonably related to the employer’s needs.
The majority decision of the Divisional Court noted that there may also be circumstances due to gender, in which the “uniform” of the females was one which had no relationship to the job, except the sexual connotation:
One can see a situation where there was discrimination on the ground of sex if only women were employed in that position but men were able to do the job and the uniform required had no relationship to the job except the sexual connotation. In E.E.O.C. et al. v. Sage Realty Corp. et al., 25 E.P.D. D7819981831,529 (1981), the United States District Court, Southern District of New York found that the imposition of a dress code on building attendants requiring them to wear a costume which knowingly subjected a female employee to sexual harassment and rude comments due to its sexually provocative nature constituted discrimination against her on the basis of her sex.
These words open the door for a complaint based on the requirement of a dress code which likely exposes a female worker to sexual exploitation. Does a low slung short black dress meet this test ? Perhaps not.
The Divisional Court decision continued to state that “normal social norms” would be an appropriate test, this again being stated in the context of gender discrimination:
Also, I can see that there could be discrimination even where the dress requirement for one sex was in accordance with commonly accepted social norms. One example is the situation in Carroll v. Talman Federal Sav. and Loan Ass’n of Chicago, 604 F. 2d 1028 (1979). There the male employees were reqired to wear normal business attire; the female employees to wear clearly identifiable uniforms. There the requirement of uniform, although one in accordance with commonly accepted social norms, was held to be discrimination because of sex.
The synthesis of this decision is that a dress code which subjects the female worker to sexual harassing conduct and that “accepted social norms” do not make the test, summarized by the court as:
The definition of discrimination in s. 4(4) that seems most appropriate is the one given in 14 C.E.D. (Ont. 3rd ed.), Title 74, s. 11, namely: “differential treatment as a result of which the victim suffers adverse consequences or a serious affront to a dignity”
White J., who dissented, stated that the Code will not allow the “accentuation of an employee’s sexuality”.
It is my opinion that the Ontario Human Rights Code does preclude the unequal application of a uniform requirement to different groups of employees based upon their gender and precludes the accentuation of an employee’s sexuality.
Amazingly enough, there has been a dirth of cases dealing with this issue over the years, whether the plea is based on gender discrimination or any other argument. The submission based on gender discrimination, as was made in this case, did allow the real issue to seep through, one which is really sexual exploitation and has nothing to do in reality with differing standards between genders. Would such a dress code be acceptable if it exposed both genders alike to sexual exploitation – clearly that would be an absurd result. The real question should be simply whether the dress code exposes the person to sexual exploitation or more fundamentally, as said by White J. in this dissent, the dress requirement should “preclude the accentuation of an employee’s sexuality”.
The 2010 decision of the British Columbia Human Rights Tribunal (MacNaughton) addressed these issues in Bil v Northland Properties on a motion to dismiss, one which is based on the allegations made in the complaint without affirmative evidence from either party, and hence similar to “no reasonable cause of action” in the civil world.
The complainant alleged that she was required to wear high-heeled sleek shoes, miniskirts, shirts showing cleavage and hair and make-up done with “class and sex appeal”. The training manual of the employer, known as “The Shark Club”, also stated that it preferred the female servers wear their hair down.
In rejecting the motion to dismiss, the Tribunal did use the usual gender biased differing treatment analysis and concluded sexually-based dress codes could in law be adverse treatment due to gender. It also referred back to the seminal decision of the Supreme Court in Janzen v Platy Enterprizes, which was a novel approach.
In Janzen, two waitresses employed by Pharos Restaurant had complained about the sexual harassment suffered by them by the cook employed at the restaurant. They had voiced their concerns to owner, who had failed to take any corrective action.
The Manitoba Human Rights Commission had found that they were both victims of sex discrimination, a finding upheld by the Court of Queen’s Bench.
As was the case with the original legislation in Ontario, the Manitoba statute did not then refer specifically to sexual harassment as a ground of discrimination and hence the complaint was forced to be based on gender. The Act was later amended to allow for a specific sexual harassment complaint prior to the decision of the Supreme Court, which was hence of academic note on this issue. The case thus required a finding that sexual harassment was actionable based on gender discrimination.
The Manitoba Court of Appeal reversed and, oddly enough, determined that the offensive conduct in question was based on the personal attractiveness of the two complainants, not gender and hence there was no actionable discrimination. These words appear incongruous in the modern context.
Twaddle J. A. stated that sexual harassment which was based on the “sex appeal” of the complainant did not constitute gender discrimination:
Although not conclusive, the sex of the victims and the sexual nature of the harassment is some evidence of the basis of their selection. There is, on the other hand, no evidence that women as a class were not welcome as employees or were subject to adverse treatment. On the contrary, the evidence discloses that at the restaurant in question women were the only employees other than the cook and the corporate officer. Another female employee testified that the cook touched her a lot by putting his arm around her or touching her neck, but she interpreted that as him being friendly… This evidence suggests that the complainants were chosen for the harassment because of characteristics peculiar to them rather than because of their sex. That is not discrimination no matter how objectionable the conduct.
This was the case which was presented to the Supreme Court of Canada. On this specific point, Chief Justice Dickson pulled no punches in stating his view:
To argue that the sole factor underlying the discriminatory action was the sexual attractiveness of the appellants and to say that their gender was irrelevant strains credulity. Sexual attractiveness cannot be separated from gender.
The Tribunal in Bil v Northland creatively used the Supreme Court of Canada decision to determine that “sexual harassment is sex discrimination”, that is based on a gender difference. That concept provides a much more logical argument to get to the real issue, namely, that the employer is using the sexual attractiveness, coupled with its dress code, to exploit these women for its commercial purposes.
Ironically, the Chief Justice hit the point in stating “sexual attractiveness cannot be separated from gender”.
As to the systemic pattern of hiring young females, it is patently clear that such a hiring policy is a clear violation of the Code. This one should not be difficult.
What about the argument that the hiring decision is based on the personal attractiveness of the female staff ? or for that matter, male employees?
The words of the Chief Justice, cited above, are out of context on this analysis. The case before him was the sexual harassment of two female staff. Here the question relates to the hiring decision.
There is likely no barrier to preventing a hiring decision based on the physical attractiveness of the candidate. A disability such as a facial disfigurement may present another argument.
A further argument could be made based on religious beliefs which do not permit the employee wearing revealing clothing.
It is odd that there is an absence of case law on this subject. Perhaps this will change. It should.
(An abbreviated version of this article appeared in the Law Times.)