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<?xml version="1.0" encoding="UTF-8"?><rss xmlns:dc="http://purl.org/dc/elements/1.1/" xmlns:content="http://purl.org/rss/1.0/modules/content/" xmlns:atom="http://www.w3.org/2005/Atom" version="2.0"><channel><title><![CDATA[HTW Law - Employment Lawyer | Employment Law Toronto]]></title><description><![CDATA[HTW Law Employment Lawyer | Employment Law • Wrongful Dismissal • Harassment • Discrimination • Sexual Harassment • Severance • Constructive Dismissal]]></description><link>https://www.htwlaw.ca/blog</link><generator>RSS for Node</generator><lastBuildDate>Fri, 19 Apr 2024 06:43:14 GMT</lastBuildDate><atom:link href="https://www.htwlaw.ca/blog-feed.xml" rel="self" type="application/rss+xml"/><item><title><![CDATA[UK Remote Work Visas and Working Aboard Ultimate Guide]]></title><description><![CDATA[If you want to understand more about the legal and other aspects of working abroad or to do remote work in UK, please continue reading.]]></description><link>https://www.htwlaw.ca/post/uk-remote-work-visas-and-working-aboard-ultimate-guide</link><guid isPermaLink="false">660e909f6c3fc2f5b2431147</guid><category><![CDATA[Employment Contract]]></category><pubDate>Sun, 07 Apr 2024 02:44:39 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/aef01b_758b492d9166403db025a61ce6bb3b01~mv2.png/v1/fit/w_1000,h_706,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>smithemma0226</dc:creator><content:encoded><![CDATA[If you want to understand more about the legal and other aspects of working abroad or to do remote work in UK, please continue reading.
 
<figure><img src="https://static.wixstatic.com/media/11062b_64d9259ae05d440ca0350cc1faf7fda3~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="UK Remote Work Visas and Working Aboard Ultimate Guide - htwlaw employment lawyer"></figure>
 
<hr>
An Article from Our <a href="#wpy8u461" rel="noopener noreferrer">British Contributor</a>.
<hr>
 
The <a href="https://travel.gc.ca/travelling/living-abroad/working" rel="noreferrer" target="_blank">Government of Canada</a> reports that thousands of Canadians go abroad each year in search of employment opportunities and the opportunity to further their education. Most countries will not grant permission for a tourist to work unless special permission, such as a work visa, to work in a foreign country is granted.
 
Please <a href="https://travel.gc.ca/travelling/living-abroad/working" rel="noreferrer" target="_blank">click here</a> for helpful resources prepared by the Canadian government to learn more about security and legal issues when working abroad.
 
Modern workplaces get digital tools that make working more exciting and rewarding. After all, it allows you to work from anywhere or nearly everywhere in the world. However, some countries have strict and confusing requirements for digital workers. It's crucial to be ready before moving to the UK if you intend to relocate overseas.
 
With its dynamic culture, rich history, and stunning cities, the UK has become a popular choice for remote workers looking to advance in their careers.
 
Just before packing your bags and moving across the globe, it's crucial to have knowledge about UK <a href="https://cpclaw.co.uk/" target="_blank">work visas</a> and immigration processes.
 
In this guide, we’ll explore eligibility criteria, the application process, and other factors related to obtaining a UK remote work visa, and then we will look into the legal ramifications of working aboard. 
 
<figure><img src="https://static.wixstatic.com/media/aef01b_758b492d9166403db025a61ce6bb3b01~mv2.png/v1/fit/w_1000,h_706,al_c,q_80/file.png"alt="things to consider - UK Remote Work Visas and Working Aboard Ultimate Guide - htwlaw employment lawyer"></figure>
<a href="https://www.freepik.com/free-photo/visa-application-composition-with-france-spain-flag_18895562.htm#fromView=search&page=1&position=20&uuid=56d8bdbd-c7f7-49e8-96c6-9ca94b591448" target="_blank">Source</a>
 
<h2>Things to do before moving </h2>
 
Hold on, before you buy a plane ticket to the UK, let us tell you a few things to consider before starting the application process. Ensure to prepare yourself financially, as immigration authorities in the UK love financially stable people. If you have already found a remote job or on-site work in the UK, make sure to have evidence. 
 
Learn things about healthcare accessibility, ways to connect with others as well as best cities to live in. Your documentation for application should according to the nature of your job which includes job responsibility, salary, employment details, and so on. 
 
<h2>Obtaining a VISA</h2>
 
The UK offers various types of visas, as they depend upon person-to-person. The kind of visa you need will depend on where you're from and what your plans are for staying in the UK. 
 
You can choose to enter the nation for an outside of six months with a standard Visitor visa. This visa can also be used for business, study, or trips. The professed worker visa is another popular order of UK visas. However, you're suitable to work there, If you're patronized by a certified employer while you're in the UK. 
 
However, It can be tricky for remote workers to move to the UK, and ensure to make informed decisions with guidance experts or immigration lawyers such as CPC law. 
 
<h2>Application process </h2>
 
<ul>
<li>The application process involves gathering the right documentation like your passport, birth certificate, etc. Ensure to find the correct type of visa after looking at every option available, after selecting pay the required fee for the visa.</li>
<li>Prove proficiency in the English language through various tests like IELTS, as well as you above 18, to be eligible for citizenship. Get your health insurance done.</li>
<li>You must schedule a biometric appointment at a visa application center to provide fingerprints and photographs. Wait patiently, as it can take several weeks to get approval. 
</li>
</ul>
<figure><img src="https://static.wixstatic.com/media/aef01b_6dfe3cc654d74aa1b6294c26acbda980~mv2.png/v1/fit/w_1000,h_920,al_c,q_80/file.png"alt="application process - things to consider - UK Remote Work Visas and Working Aboard Ultimate Guide - htwlaw employment lawyer"></figure>
 
<h2>Challenges </h2>
 
In the whole process, you should be aware of potential challenges and considerations. Think about the duration of your stay and plan and budget accordingly to avoid consequences in the future. Try to save as much to cover your whole stay in the UK.
 
Visa restrictions may limit the types of employment permitted and the duration of stay in the UK, requiring careful planning and following regulations is must. The length and type of your stay may determine whether you are subject to UK tax laws, so there may be consequences for taxes as well.
 
<h2>Consideration</h2>
 
Get the Job: When organizing a remote work arrangement, it's important to take into account the cost of living in the UK, which includes casing, transport, and other charges. In comparison to UK banks, opening an account with an international bank is easier, so you might want to think about that option.
 
It can be difficult to find a job, but you can try searching online at employment sites like Indeed or Monster or on official government websites.
 
Stay Updated: Changes in <a href="https://cpclaw.co.uk/personal-immigration/" target="_blank">personal immigration</a> policies and regulations may further impact eligibility criteria and visa requirements, necessitating vigilance and adaptability. Be updated and get insights from the official immigration website of the UK.
 
<hr>
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/491d2c_ec5537edd2c54e01997917266d9aa808~mv2.png/v1/fit/w_962,h_154,al_c,q_80/file.png"alt="contact htw law - employment lawyer for wrongful dismissal help"></figure>
<hr>
 
<h2>Legal Considerations in Working Aboard</h2>
 
<figure><img src="https://static.wixstatic.com/media/b3a4967ff3214a43b9ca98e1b3b8777b.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Legal Considerations in Working Aboard - UK Remote Work Visas and Working Aboard Ultimate Guide - htwlaw employment lawyer"></figure>
 
<h3>1. Working Aboard as a Continuation of Work Performed in Ontario</h3>
 
If the work being done is a continuation of employment that started in Ontario, workers residing outside the province will be subject to the Ontario <a href="https://www.ontario.ca/laws/statute/00e41#BK5" rel="noreferrer" target="_blank">Employment Standards Act</a> ("ESA"). 
 
According to <a href="https://www.ontario.ca/laws/statute/00e41#BK5" rel="noreferrer" target="_blank">Section 3</a> of the ESA, the law is applicable to the working relationship if:
 
<ul>
<li>the employee’s work is to be performed in Ontario; or,</li>
<li>the employee’s work is to be performed in Ontario and outside Ontario but the</li>
<li>work performed outside Ontario is a continuation of work performed in Ontario.</li>
</ul>
 
The sole pertinent element in determining the ESA's jurisdiction with regard to workers outside of Ontario is the continuance of work; other factors, such as the location of the employee's residence or the place where the employment contract was signed, are not relevant. 
 
In Karpowicz v Valor Inc., John Karpowicz v Valor Inc., <a href="https://canlii.ca/t/gsrv2" rel="noreferrer" target="_blank">2016 CanLII 49203</a> (ON LRB). an employee lived and performed almost all of his work in Michigan. His employer was headquartered in Ontario and the employment contract specifically stated that the parties were bound by the laws of Ontario, including the ESA.
 
A matter was brought forward to the <a href="https://www.olrb.gov.on.ca/" rel="noreferrer" target="_blank">Ontario Labour Relations Board</a> (OLRB). At the outset of the hearing, the Employer took the position that the ESA did not apply to its employment relationship with the employee.
 
<figure><img src="https://static.wixstatic.com/media/491d2c_1505bfbaaf9d476da48153096517e4d5~mv2.jpg/v1/fit/w_470,h_195,al_c,q_80/file.png"alt="ministry of labour - olrb claim - working aboard - htw law employment lawyer"></figure>
 
OLRB determined that the ESA did not apply to the employment relationship, despite the fact that the parties expressly intended for their employment contract to be governed by Ontario law, the employee worked for an Ontario business, and the employee serviced Ontario clients. According to OLRB, the employee's trip to Ontario for meetings was "incidental," and, as a result, was not caught by the legislation.
 
A salesman who lives in Ontario but regularly goes to other provinces for work is one example of this. The worker would be eligible for the ESA because the work began in Ontario and is merely "continued" in the other provinces.
 
Please be aware that Ontario law will apply to the Michigan worker if the case is before the Superior Court rather than the OLRB. Ontario law will most likely apply to a person who lives in the United Kingdom but works for an Ontario company.
 
<figure><img src="https://static.wixstatic.com/media/11062b_8d66aa5276ce409f9faa7f49c32422ab~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Working Aboard NOT as a Continuation of Work Performed in Ontario - UK Remote Work Visas and Working Aboard Ultimate Guide - htwlaw employment lawyer"></figure>
 
<h3>2. Working Aboard NOT as a Continuation of Work Performed in Ontario</h3>
 
If a worker works on a temporary project in a foreign country for a short amount of time, Ontario law may apply if the individual returns to Ontario. Please keep in mind that if someone spends some time outside of Ontario and then returns, only the time spent in Ontario or continued in Ontario will count toward the three-month probation period rule under <a href="https://www.ontario.ca/laws/statute/00e41#BK131" rel="noreferrer" target="_blank">section 54</a> of ESA.
 
If a worker is permanently employed out of province and works entirely outside of Ontario, then UK laws will apply to the foreign worker working in UK.
 
<h3>3. Residence as Workplace</h3>
 
The <a href="https://www.ola.org/en/legislative-business/bills/parliament-43/session-1/bill-79" rel="noreferrer" target="_blank">Working for Workers Act, 2023</a>, which received Royal Assent on October 26, 2023, amends Ontario's Employment Standards Act, 2000 (ESA) and other employment-related laws in Ontario.
 
After the amendment, pursuant to <a href="https://www.ontario.ca/laws/statute/00e41#BK129" rel="noreferrer" target="_blank">section 53.2</a> of the ESA, the definition of work establishment was extended to include an employees residence, but only if the employee works exclusively from home. 
 
This was in reaction to the enormous number of employees who were compelled to work remotely during and after the Covid 19 outbreak, and it aimed to clarify what constituted a work establishment under the ESA.
 
 
<h2>Final Words </h2>
 
Careful planning and preparation are necessary for both the work visa and immigration processes. Knowing the requirements, how to apply, and the potential difficulties of getting a work permit in the UK will help you make wise choices and proceed confidently.
 
A work visa for the UK provides access to countless chances for discovery, development, and adventure. So, seize the moment, catch the opportunity, and embark on a remote work adventure in the United Kingdom – the journey awaits!
 
You may want to <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">consult with an experienced employment law</a> firm such as HTW Law, to learn of your employment law rights and the do and don't before deciding to work remotely in UK or work aboard.
 
Before working remotely in the UK or abroad, it's recommended to <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">consult with an experienced employment law firm</a>, such as HTW Law, to understand your rights and responsibilities.
 
<figure><img src="https://static.wixstatic.com/media/491d2c_7e700562dcf54955bfbfdd3f56a102fe~mv2.png/v1/fit/w_220,h_324,al_c,q_80/file.png"alt="HTW Law - top employment law firm 2023"></figure>
You don't have to fight the battle alone. Speaking with an <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">employment lawyer</a> who is familiar with the laws and regulations regarding remote work, <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contracts</a> and <a href="https://www.htwlaw.ca/employment-lawyer" target="_blank">employment law</a> in general will go a long way. If you are in doubt, it's essential that you reach out for help as soon as possible right away.
<hr>
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
 
<figure><img src="https://static.wixstatic.com/media/73d2cb_3af18cfe049e44a5bac8cff0e3cd5865~mv2.jpg/v1/fit/w_740,h_384,al_c,q_80/file.png"></figure>
<figure><img src="https://static.wixstatic.com/media/491d2c_ec5537edd2c54e01997917266d9aa808~mv2.png/v1/fit/w_962,h_154,al_c,q_80/file.png"alt="contact htw law - employment lawyer for wrongful dismissal help"></figure>
 
<hr>
Author Bio: Emma Smith is a passionate writer, poet, and storyteller based in London. With a background in immigration law and content writing, she brings a unique perspective to their work, often blending elements of innovative thoughts. She has been features in various journals and anthologies. When not writing, she enjoys, which often finds their way into their creative endeavors. ]]></content:encoded></item><item><title><![CDATA[The Stay-or-Pay Clause: The Dilemma of Paying to Quit Your Commitment]]></title><description><![CDATA[comparing working for workers act 2021 to stay or pay clause situation in the USA to gain insight of how USA compared to Canada]]></description><link>https://www.htwlaw.ca/post/the-stay-or-pay-clause-the-dilemma-of-paying-to-quit-your-commitment</link><guid isPermaLink="false">65c34db670b0cd778996cc1c</guid><category><![CDATA[Employment Contract]]></category><pubDate>Tue, 27 Feb 2024 02:12:15 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/73d2cb_2241be5d99a648fb8c6203851f1f0553~mv2.jpg/v1/fit/w_940,h_788,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>lylesesq</dc:creator><content:encoded><![CDATA[
<hr>
A article from our <a href="#44go3" rel="noopener noreferrer">American Contributor</a>.
 
<hr>
<figure><img src="https://static.wixstatic.com/media/73d2cb_2241be5d99a648fb8c6203851f1f0553~mv2.jpg/v1/fit/w_940,h_788,al_c,q_80/file.png"alt="The Stay-or-Pay Clause: The Dilemma"></figure>
Under the Stay-or-pay clauses, employers seek "reimbursements" from workers if they want to quit. This law applies if the employee quits within a specific time. This law has had an intense effect on the U.S. workforce. These contracts apply to all types of workforce, even those in specialized roles. Stay-or-pay clauses, or TARP, are being used by many businesses. It is adopted by mid to lower-income professions. This includes salespeople, truck drivers, nurses, teachers, and other roles. <a href="https://www.consumerfinance.gov/data-research/research-reports/issue-spotlight-consumer-risks-posed-by-employer-driven-debt/full-report/" target="_blank">The CFPB published a report</a> describing the dangers that debt employers induce. According to workers' rights organizations, these clauses are like financial penalties. It is designed to prevent job switching.
 
<h3>What is A Stay-or-Play Clause?</h3>
 
<figure><img src="https://static.wixstatic.com/media/11062b_50a3aecd4105499abc0ec503381fa5d9~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
 
"Stay-or-pay" clauses are growing increasingly widespread in the United States, and while such agreements are unlikely to be enforced in Canada, experts believe businesses may still learn from their counterparts south of the border. 
 
The practice of punishing employees who violate the terms of their employment contract with sometimes exorbitant sums, ostensibly to recoup training, education, relocation, or other costs, has recently made headlines in the United States as employees begin to fight back against what they claim is unfair treatment. Stay-or-pay clauses have typically been used with executives or highly specialized professions such as airline pilots or engineers, but due to economic conditions, firms are also using the tactic with middle- and low-income workers.
 
You can read more about the subject matter with this blog post:
 
<a href="https://www.hcamag.com/ca/specialization/employee-engagement/stay-or-pay-clauses-in-canada-experts-weigh-in-on-the-us-trend-of-charging-employees-who-quit/468668" rel="noreferrer" target="_blank">Stay-or-pay clauses in Canada? Experts weigh in on the U.S. trend of charging employees who quit</a>
 
<h3>What is the Working for Workers Act 2021 in Canada?</h3>
 
 
<figure><img src="https://static.wixstatic.com/media/73d2cb_515c2feea6a44a3eb2bb00aa396d47ec~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
 
The key highlight of the <a href="https://www.ontario.ca/laws/statute/s21035" rel="noreferrer" target="_blank">Working for Workers Act, 2021</a> is 1) prohibitions on the use of non-compete obligations in employment agreements; 2) requiring employers with 25 or more employees in Ontario to develop a "disconnecting from work" policies; 3) prohibitions on temporary help agency or anyone acting as a recruiter to operate without a valid licence.
 
You may want to read the following blog post for more info. on the subject matter:
 
<a href="https://www.htwlaw.ca/post/non-compete-agreement-no-longer-legal-under-bill-27-working-for-workers-act-2021" rel="noreferrer" target="_blank">Non-Compete Agreement No Longer Legal Under Bill 27: Working for Workers Act, 2021</a>
 
And don't confuse <a href="https://www.ontario.ca/laws/statute/s21035" rel="noreferrer" target="_blank">Working for Workers Act, 2021</a> with <a href="https://www.htwlaw.ca/post/case-update-on-heller-v-uber-technologies-are-uber-drivers-employees-or-independent-contractors" rel="noreferrer" target="_blank">Working for Workers Act, 2022</a> that deals with the rights of digital platform workers.
 
<a href="https://www.ontario.ca/laws/statute/s21035" rel="noreferrer" target="_blank">Working for Workers Act, 2021</a> codifies the common law position that non-competition clauses are only enforceable in very limited circumstances. 
 
As per the <a href="https://www.htwlaw.ca/post/non-compete-agreement-no-longer-legal-under-bill-27-working-for-workers-act-2021" target="_blank">Working for Workers Act</a>, 2021, If you've got 25 or more representatives, your company must have a composed procedure on how all of them can disconnect from work.
 
On December 2, 2021, these rules were included in the <a href="https://www.ontario.ca/laws/statute/00e41" target="_blank">Employment Standards Act, 2000 (ESA)</a>. As of June 2, 2022, companies with 25 or more laborers as of January 1, 2022, need a composed technique to disengage from work.
 
All specialists and bosses secured by the <a href="https://www.ontario.ca/laws/statute/00e41" target="_blank">ESA</a> must have composed arrangements to disengage from work. The increasing use of "stay-or-pay" clauses in <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contracts</a> stresses the employer. If an employee signs a contract that contains a "stay or pay" clause, it will be terminated early. High-paying professional jobs such as airline pilots, medical workers, and police officers require prior training.
 
Canadians may benefit from the example of the United States, which has imposed similar duties on employers for quite some time.
 
<h3>What is TARP in the USA?</h3>
 
<figure><img src="https://static.wixstatic.com/media/73d2cb_85f224c07d6040a7b545d49a1ecfd23d~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
In the United States, employers claim that employers inflated damages in the Troubled Asset Relief Program (TARP) or included damages not justified by workers who left the company. In this way, <a href="https://www.investopedia.com/terms/t/troubled-asset-relief-program-tarp.asp" target="_blank">TARP acts as a "fine" imposed for breach of contract</a>, which is illegal if the fines are increased and bear little relation to the damages suffered by the party. Some argue that TARP is a permanent promise not to compete because it does not force workers to quit. In California and other states, pure covenants not to compete are illegal. The same goes for non-compete, such as a buyer/supplier non-solicitation clause.
 
However, you and your employer have legal obligations when you are fired. For example, adequate notice must be given. Two weeks is the norm, but more is needed. Also, if you quit in an emotional moment, you may not quit.
 
<h3>Comparing the Canadian and American Models</h3>
 
In Canada, the default position regarding employment contracts tends to favor permanent positions, with termination often viewed as a breach of contract or wrongful dismissal. Conversely, the USA operates under a more diverse landscape, with provisions like TARP offering financial assistance to troubled industries during times of crisis.
 
<h3>The Consideration of Stay or Pay: Weighing Commitment and Cost</h3>
 
<figure><img src="https://static.wixstatic.com/media/73d2cb_83f46d70989b4acfb2f24ad6376347b4~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
The Stay-or-Pay clause presents a dilemma for both employers and employees. Employers may include such provisions to mitigate turnover costs and retain valuable talent, while employees must weigh the potential financial implications of termination against their long-term career aspirations. This decision becomes particularly significant in light of legislative changes and external factors influencing the employment landscape.
 
<h3>Navigating Commitment in Employment Contracts</h3>
 
The introduction of clauses like Stay-or-Pay underscores the complexities inherent in employment relationships. Legislative measures like the <a href="https://www.ontario.ca/laws/statute/s21035" target="_blank">Working for Workers Act 2021</a> and initiatives such as TARP offer insights into regulatory interventions and financial mechanisms to address economic challenges. As individuals and organizations navigate the Stay-or-Pay dilemma, a nuanced understanding of legislative frameworks, industry practices, and individual rights remains essential. By fostering open dialogue and proactive engagement, stakeholders can work towards fostering fair and equitable employment practices in today's dynamic workforce.
 
 
<h2>Conclusion</h2>
 
The Stay-or-Pay clause underscores the delicate balance between commitment and cost in employment contracts. Navigating this dilemma requires open discussion and understanding of legislative frameworks. Employers must offer a commitment to transparency. By embracing these principles, stakeholders can create inclusive workplaces where individuals thrive and organizations succeed, shaping a brighter future for the workforce.
 
You may want to <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">consult with an experienced employment law</a> firm such as HTW Law, to learn of your employment law rights under <a href="https://www.htwlaw.ca/post/non-compete-agreement-no-longer-legal-under-bill-27-working-for-workers-act-2021" rel="noreferrer" target="_blank">Working for Workers Act, 2021</a>.
 
<figure><img src="https://static.wixstatic.com/media/491d2c_7e700562dcf54955bfbfdd3f56a102fe~mv2.png/v1/fit/w_220,h_324,al_c,q_80/file.png"alt="HTW Law - top employment law firm 2023"></figure>
You don't have to fight the battle alone. Speaking with an <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">employment lawyer</a> who is familiar with the laws and regulations regarding remote work, <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contracts</a> and <a href="https://www.htwlaw.ca/employment-lawyer" target="_blank">employment law</a> in general will go a long way. If you are in doubt, it's essential that you reach out for help as soon as possible right away.
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
 
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/73d2cb_3af18cfe049e44a5bac8cff0e3cd5865~mv2.jpg/v1/fit/w_740,h_384,al_c,q_80/file.png"></figure>
<figure><img src="https://static.wixstatic.com/media/491d2c_ec5537edd2c54e01997917266d9aa808~mv2.png/v1/fit/w_962,h_154,al_c,q_80/file.png"alt="contact htw law - employment lawyer for wrongful dismissal help"></figure>
<hr>
<h3> About The Author: </h3>
<figure><img src="https://static.wixstatic.com/media/73d2cb_6db0f5001f6b4fda825dea384a965baf~mv2.jpg/v1/fit/w_200,h_200,al_c,q_80/file.png"></figure>
Lyle Solomon has extensive legal experience, in-depth knowledge, and experience in consumer finance and writing. He has been a member of the California State Bar since 2003. He graduated from the University of the Pacific’s McGeorge School of Law in Sacramento, California, in 1998 and currently works for the <a href="https://www.ovlg.com/" target="_blank">Oak View Law Group</a> in California as a principal attorney.]]></content:encoded></item><item><title><![CDATA[Navigating the Reversal on Remote Work: Strategies for Coping and Adaptation]]></title><description><![CDATA[If you want to learn more about employment law legal and other considerations regarding reversal on remote work, please continue reading.]]></description><link>https://www.htwlaw.ca/post/navigating-the-reversal-on-remote-work-strategies-for-coping-and-adaptation</link><guid isPermaLink="false">64a3fa1b195009c931c9540e</guid><category><![CDATA[Wrongful Dismissal]]></category><category><![CDATA[Severance Pay]]></category><category><![CDATA[Constructive Dismissal]]></category><category><![CDATA[Employment Contract]]></category><pubDate>Wed, 05 Jul 2023 11:46:57 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/73d2cb_1d0ced5cd2e543d794713c625f997d50~mv2.jpg/v1/fit/w_740,h_493,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>lylesesq</dc:creator><content:encoded><![CDATA[If you want to learn more about legal and other considerations regarding the reversal on remote work, please continue reading.
<figure><img src="https://static.wixstatic.com/media/73d2cb_1d0ced5cd2e543d794713c625f997d50~mv2.jpg/v1/fit/w_740,h_493,al_c,q_80/file.png"alt="employment law regarding remote work copying and adapting"></figure>
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An Article from Our <a href="#92bg2" rel="noopener noreferrer">American Contributor</a>.
<hr>
Remote work became a prevalent and welcomed practice for many employees during the pandemic. However, some companies reverse their remote work policies as the world transitions towards a post-pandemic era. This sudden change can be disheartening and disruptive for employees who have embraced the flexibility and benefits of remote work.
 
A lot of people have embraced remote work for various reasons. Some love to work in the comfort of their home. Some people have found free time to do some freelancing assignments and generate extra income to <a href="https://www.ovlg.com/debt-consolidation/credit-card.html" target="_blank">pay off credit card debts</a>. Others have finally got time to take care of their kids and save a massive amount of money on daycare. The benefits are too much. We can’t deny it anymore.
 
In this article, we will explore strategies to help employees cope with and adapt to the reversal of remote work, enabling them to navigate the transition and maintain a healthy work-life balance.
 
<h3>Understand the rationale: </h3>
 
To navigate the reversal of remote work effectively, it is crucial to understand the reasons behind the company's decision. Explore the rationale provided by management, such as productivity concerns, collaboration challenges, or cultural considerations. Gaining insight into the decision-making process can help you approach the situation more openly and better understand the company's perspective.
 
<h3>Communicate and seek clarification: </h3>
 
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If the reversal on remote work leaves you with concerns or questions, you must communicate with your superiors or HR department. Seek clarification on the new policies, expectations, and the potential impact on your work and personal life. Express your perspective respectfully and constructively, highlighting the benefits of remote work and how it has positively influenced your productivity and well-being. Engaging in open dialogue can foster understanding and potentially lead to flexibility within the new framework.
 
Consider the counterarguments to strengthen your case for working from home. Your manager can contend that having "face time" with employees or clients is crucial. You can mention how face-to-face meetings can be held with team members and individuals anywhere in the world using tools like Skype, WebEx, or other live meeting platforms.
 
Instant messenger (IM) is another instant communication tool. Inform them that you will be reachable by phone, IM, and email just as if you were in the office. Mention that, even if you work in the same workplace, there may be times when you never speak to your coworkers or a manager.
 
Make it clear to your manager that you'll be just as accessible as if you were at work. Above all, keep your composure while handling this. The time has come to act professionally.
 
<h3>Adapt and embrace flexibility:</h3>
 
While the complete reversal of remote work may be disappointing, explore opportunities for flexibility within the new policies. Discuss possibilities such as hybrid work arrangements, where you can split your time between remote and in-office work. Embrace the concept of adaptability and explore how to maintain a healthy work-life balance within evolving circumstances.
 
Request for a trial period: 
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Ask for a trial period of 1 or 2 days per week if there is resistance, and then reevaluate. Get your promise to participate in a trial period in writing.
 
Ask your manager for comments following the trial period. Evaluate their reactions to your performance. Keep track of all your accomplishments and how working from home has helped the business succeed.
 
When a client called frantically at 4:30 p.m., were you at home working? Remind them that you wouldn't have been able to answer the call if you were caught in traffic, which could have led to an expensive error. Use that knowledge to your advantage if your business saves $2,000.
 
Your boss might let you work from home if you give specific examples, particularly anything involving saving or creating money. The organization needs to keep its word if it truly supports work-life balance and wants to foster a culture of flexibility.
 
The fact remains that you cannot force the business to keep its word. But if honesty is one of the company's basic values, pay attention to how it replies and ask yourself if it's doing what it said it would.
 
<h3>Negotiate remuneration: </h3>
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You can negotiate for a better salary if your employer demands a complete return. Plan your argument in great detail.
 
For example, you can say that it takes me this long to commute, and it costs me this much. Parking or public transit must be paid for. Would you help me move or give me a stipend?
 
Gas and car maintenance are both expensive. Additionally, you may request additional remuneration since you must wear professional attire, which can be costly.
If you're a caregiver, mention your care requirements during the discussion.
 
Employees might consider productivity and mental wellness as well. [Flexibility] is going to improve my mental state. I'll work harder and give my 300 percent. I'll be more content at work. When I feel like I'm not giving up everything, my performance will remain where it has been.
 
A compromise resulting from the negotiation for many workers may be hybrid work. Hybrid is the most feasible option for both the employer and the employee.
 
<h3>Request for flexibility at your workplace: </h3>
 
Employees who work remotely have more autonomy, and when that liberty is lost, they really notice it. You might demand additional flexibility in your in-office employment if your company is unwilling to enhance your pay or offer new mobility benefits.
 
If you return to work, there might be a way for you to find the same sense of independence. If you must spend all of your time at the office, reclaim some of your freedom by requesting tasks, you are interested in working on or negotiating more reasonable deadlines. Reclaim your free time by going for a stroll or organizing your workspace.
 
<h3>Embrace the transition as an opportunity for growth:</h3>
<ol>
<li>Although the reversal on remote work may present challenges, view it as an opportunity for personal and professional growth.</li>
<li>Embrace the chance to develop new skills, adapt to changing work environments, and broaden your experiences.</li>
<li>Seek new projects or responsibilities to enhance your skill set and career trajectory.</li>
<li>Maintain a positive and proactive mindset as you navigate the transition, recognizing that change often brings unforeseen opportunities for growth and development.</li>
</ol>
 
Prioritize self-care: Transitioning back to an office environment can be emotionally and physically demanding. It is crucial to prioritize self-care to maintain your well-being during this time. Establish routines that support work-life balance, practice stress-management techniques, and set aside time for activities that bring you joy and relaxation. Taking care of your mental and physical health will contribute to your overall resilience and ability to adapt to change.
<hr>
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
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<h2>Legal Considerations in Reversal on Remote Work</h2>
 
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<h3>1. Whether the Reversal on Remote Work Constitute Constructive Dismissal?</h3>
 
<a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">Constructive Dismissal</a> occurs when an employer unilaterally changes a key term or condition of an employment contract without the employee's permission. 
 
The determination of whether a reversal on remote work constitutes constructive dismissal is fact-driven. The following are some of the factors being considered when making such a finding:
<ol>
<li>Whether there's any language in the employment contract as to the location(s) that an employee is required to work or the absence thereof?</li>
<li>Whether there's any language in the employment contract authorizing an employer to unilaterally change the workplace without consent?</li>
<li>Whether the employer was working remotely when he or she was hired, or was there a temporary arrangement due to the pandemic?</li>
<li>How long have the employee been working remotely as compared to the length of employment "on-site"?</li>
<li>Was working remotely a key contractual term being bargained for during the hiring purpose?</li>
<li>Whether it's feasible, without undue hardship, to recall the employee to work "on-site"? How far away is the employee from the "on-site" workplace?</li>
</ol>
If an employee is deemed to be <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructively dismissed</a>, he or she will be entitled to <a href="https://www.htwlaw.ca/severance-pay" target="_blank">severance pay</a> under the employment standards Act or under the common law reasonable notice.
 
Obviously, if the employee is being terminated as a result of refusing to be recalled to work "on-site", a <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">wrongful dismissal</a> may occur.
 
Please read the following blog posts for more details regarding <a href="#1bsrb" rel="noopener noreferrer">constructive dismissal</a>, <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">wrongful dismissal</a> and <a href="#7kcfe" rel="noopener noreferrer">severance pay</a>:
<ol>
<li><a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">Constructive Dismissal Ultimate Guide</a> </li>
<li><a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">Wrongful Dismissal Ultimate Guide</a> </li>
<li><a href="https://www.htwlaw.ca/severance-pay" target="_blank">Severance Pay Ultimate Guide</a> </li>
</ol>
 
<h3>2. Human Rights Protections</h3>
 
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Human rights protections apply to all employees, regardless of whether they are working on-site or working remotely. 
 
The obligation of an employer to safeguard employees from workplace harassment and discrimination applies to remote workers. Employers are required to make reasonable accommodations. Employers must have systems in place to handle accommodation requests, since failing to accommodate an employee based on a <a href="https://www.ohrc.on.ca/en/ontario-human-rights-code" target="_blank">protected ground</a> can be considered a violation of the <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Human Rights Code</a>.
 
Some reasonable accommodations include offering flexible working hours to assist employees with childcare obligations or providing necessary accommodation or equipment to people with disabilities.
 
You may want to read the following <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">Discrimination and Harassment</a> Blog Posts of Interest:
<ul>
<li><a href="https://www.htwlaw.ca/post/disability-discrimination" target="_blank">Disability Discrimination Ultimate Guide</a></li>
<li><a href="https://www.htwlaw.ca/post/a-legal-analysis-on-the-medical-documentation-in-disability-cases-and-the-duty-to-accommodate" target="_blank">A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate</a></li>
<li><a href="https://www.htwlaw.ca/post/legal-protections-available-against-sexual-harassment" target="_blank">Legal Protections Available Against Sexual Harassment</a></li>
<li><a href="https://www.htwlaw.ca/post/family-status-discrimination-a-legal-analysis" target="_blank">Family Status Discrimination - A Legal Analysis</a></li>
<li><a href="https://www.htwlaw.ca/post/age-discrimination-vs-bona-fide-occupational-requirement-bfor" target="_blank">Age Discrimination vs. Bona Fide Occupational Requirement (BFOR)</a></li>
</ul>
 
<h3>3. Other Legal Considerations</h3>
 
Health and Safety Responsibilities: Employers are mandated by the Ontario <a href="https://www.ontario.ca/laws/statute/90o01" target="_blank">Occupational Health and Safety Act</a> (OHSA) to provide a safe and healthy workplace for their employees. The OHSA defines "workplace" broadly, including any location where employees carry out their job tasks.
 
Tax and Immigration Issues: If an employee currently lives outside of Ontario, the reversal of remote work will necessitate a relocation to Ontario, which will have major tax and immigration ramifications.
 
<h2>Conclusion</h2>
 
If you strongly believe in the benefits of remote work and its positive impact on your productivity and well-being, consider advocating for flexibility and remote work alternatives within your organization. Collaborate with like-minded colleagues to present a well-researched and reasoned proposal to management. Highlight the success stories and tangible outcomes achieved through remote work, such as increased productivity, reduced costs, and improved employee satisfaction.
 
You may want to <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">consult with an experienced employment law</a> firm such as HTW Law, to learn of your employment law rights in case of a compulsory reversal of remote work, as you may be entitled to some legal protections.
 
<figure><img src="https://static.wixstatic.com/media/491d2c_7e700562dcf54955bfbfdd3f56a102fe~mv2.png/v1/fit/w_220,h_324,al_c,q_80/file.png"alt="HTW Law - top employment law firm 2023"></figure>
You don't have to fight the battle alone. Speaking with an <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">employment lawyer</a> who is familiar with the laws and regulations regarding remote work, <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contracts</a> and <a href="https://www.htwlaw.ca/employment-lawyer" target="_blank">employment law</a> in general will go a long way. If you are in doubt, it's essential that you reach out for help as soon as possible right away.
<hr>
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
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<h3> About The Author: </h3>
<figure><img src="https://static.wixstatic.com/media/73d2cb_6db0f5001f6b4fda825dea384a965baf~mv2.jpg/v1/fit/w_200,h_200,al_c,q_80/file.png"></figure>
Lyle Solomon has extensive legal experience, in-depth knowledge, and experience in consumer finance and writing. He has been a member of the California State Bar since 2003. He graduated from the University of the Pacific’s McGeorge School of Law in Sacramento, California, in 1998 and currently works for the <a href="https://www.ovlg.com/" target="_blank">Oak View Law Group</a> in California as a principal attorney.]]></content:encoded></item><item><title><![CDATA[Things American Employers Should Know About Canadian Employment Law]]></title><description><![CDATA[Things American Employers Should Know About Canadian Employment Law. Learn more about Canadian employment law, Ontario employment law]]></description><link>https://www.htwlaw.ca/post/things-american-employers-should-know-about-canadian-employment-law</link><guid isPermaLink="false">647c7fd76bfbc13df340393c</guid><category><![CDATA[Employment Contract]]></category><category><![CDATA[Federal Regulated Worker]]></category><pubDate>Wed, 07 Jun 2023 19:32:12 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/d2feda_8dcaf73eefee4a8c8cf3eedb52a7291b~mv2.jpg/v1/fit/w_740,h_493,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Guest Post</dc:creator><content:encoded><![CDATA[If you want to learn more about Canadian employment law, particularly Ontario employment law, please continue reading.
<figure><img src="https://static.wixstatic.com/media/d2feda_8dcaf73eefee4a8c8cf3eedb52a7291b~mv2.jpg/v1/fit/w_740,h_493,al_c,q_80/file.png"alt="Things American Employers Should Know About Canadian Employment Law and what ontario employment lawyer can help"></figure>
<hr>
An Article from Our <a href="#9entc" rel="noopener noreferrer">American Contributor</a> .
<hr>
The US and Canada have strong economic ties. Today, thousands of Canadians commute to or work remotely with American companies and vice versa. Even though both countries share many similarities, things are different when it comes to <a href="https://www.htwlaw.ca/employment-lawyer" target="_blank">employment law</a>. Many employers already familiar with the American market might assume that the regulations are the same, but this is far from the truth. Take time to grasp the differences if you’re hiring workers in Canada or opening a new branch there.
 
If you belong to the second group that is setting up a new office, you know how complex it is. You have to do everything from renting some space to looking for ways to promote your new regional website. You can outsource all of this. Your realtor can look for some offices, while <a href="https://www.linksmanagement.com/seo-software-for-your-business/" target="_blank">plenty of software</a> and <a href="https://www.htwlaw.ca/post/overcoming-the-challenges-of-freelancing-an-ultimate-guide" target="_blank">freelancers</a> can write lawyer blogs to improve your website’s rankings. But there is one thing you can’t solve that fast – gaining knowledge of Labor Laws in Canada. Of course, you can hire an <a href="https://www.htwlaw.ca/contactus" target="_blank">employment law firm</a> for that, but it is always better to understand your rights and obligations. This article will dive deeper into what American employers need to know about Canadian employment laws.
 
<h2>Canadian Employment Laws: Factsheet</h2>
 
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Most <a href="https://www.htwlaw.ca/federally-regulated-employee" target="_blank">federal employees</a> in Canada have a minimum entitlement of two to four weeks of <a href="https://laws-lois.justice.gc.ca/eng/acts/L-2/page-25.html#h-342367" target="_blank">vacation annually</a>. In several provinces, such as Ontario, the <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/vacation" target="_blank">minimum vacation time</a> is two to three weeks.
<ul>
<li>As per the <a href="https://laws-lois.justice.gc.ca/eng/acts/l-2/" target="_blank">Canada Labour Code</a>, employees are guaranteed at least five days of <a href="https://laws-lois.justice.gc.ca/eng/acts/L-2/page-28.html#h-1200847" target="_blank">personal leave</a>.</li>
<li>The minimum wage is on average $15- $16.65, but it varies by region.</li>
<li>As of December 18, 2022, qualified employees, who meet certain conditions, can get up to 26 weeks of <a href="https://www.canada.ca/en/services/benefits/ei.html" target="_blank">employment insurance</a> benefits.</li>
<li>All federally regulated employers are to <a href="https://www.canada.ca/en/employment-social-development/news/2023/05/canada-labour-code-to-ensure-access-to-menstrual-products-at-work-starting-december-15.html" target="_blank">provide menstrual products</a> in their workplaces starting December 15, 2023.</li>
<li>Conducting workplace drug tests is prohibited except in certain circumstances (e.g. when workers take <a href="https://www.canada.ca/en/employment-social-development/services/health-safety/cannabis-workplace/questions-answers.html" target="_blank">“safety-sensitive”</a> positions).</li>
</ul>
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The labor laws in Canada are specific about the rules that all employers must adhere to. This varies based on whether the industry is under the federal, provincial, or territorial government. These laws govern how employers may recruit, treat and dismiss workers and other vital aspects of workplace safety.
 
<h3>a. Law Structure Across Canada</h3>
 
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It is essential to note that Canadian labor laws also differ by province. The reason for this is simple. The <a href="https://educaloi.qc.ca/en/capsules/workplace-protections-in-quebec/" target="_blank">Quebec region's labor laws</a> are based on Europe's civil laws, while Ontario's share similarities with the British common laws, especially when it comes down to <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">wrongful dismissal</a> and <a href="https://www.htwlaw.ca/severance-pay" target="_blank">severance pay</a>. This has created differences in regulations like minimum wage, employment termination, and so on. For example, In Ontario, the minimum wage is $15 an hour, while in Vancouver, the rate is $15.20 per hour. On the other hand, federal employees get $16.65 regardless of their province.
 
Still, there are universal regulations that apply to all employees and employers. Examples are the Canadian Human Rights Laws (such as the <a href="https://laws-lois.justice.gc.ca/eng/acts/h-6/" target="_blank">Canadian Human Rights Act</a> for federally regulated sectors and it's provincial counterparts e.g. <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Human Rights Code</a> for Ontario) and the <a href="https://laws-lois.justice.gc.ca/eng/acts/e-5.401/" target="_blank">Employment Equity Act</a> that applies to federally regulated employees and it's provincial counterparts such as the <a href="https://payequity.gov.on.ca/guide-pea/" target="_blank">Pay Equity Act</a> and the Ontario <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/equal-pay-equal-work" target="_blank">equal pay for equal works</a> under the <a href="https://www.ontario.ca/laws/statute/00e41" target="_blank">Employment Standards Act</a>. The <a href="https://www.ohrc.on.ca/en/book/export/html/8931" target="_blank">Employment Equity Act</a> (EEA) stipulates that employers must make additional protection for vulnerable employees like aboriginal people, people living with disabilities, minorities, and women.
 
Do note that the Employment Equity Act may also apply to certain Ontario companies that have contracts with the federal government. These companies would be bound by the Ontario Human Rights Code as well.
 
<a href="https://www.ohrc.on.ca/en/book/export/html/8931" target="_blank">Click here</a> for a useful guide prepared by the <a href="https://www.ohrc.on.ca/en" target="_blank">Ontario Human Rights Commission</a> showcasing the intricacy between different provincial and federal relevant statues in related to human rights. 
 
You may also want to take a look at this blog post to learn more about when a provincial entity will be subjected to federal employment law:
 
<a href="https://www.htwlaw.ca/post/is-your-company-federally-regulated-or-not-a-primer-on-the-derivative-jurisdiction-test" target="_blank">Is Your Company Federally Regulated or Not? A Primer on the Derivative Jurisdiction Test</a>
 
<h3>b. Employment Rights</h3>
 
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The <a href="https://www.htwlaw.ca/employment-lawyer" target="_blank">employment laws</a> in Canada provide a framework that specifies the rights of every employee. Some of these include directives on:

1. Payroll. The law mandates employers to keep accurate payment records for all employees for at least <a href="https://www.canada.ca/en/revenue-agency/services/tax/businesses/topics/keeping-records/where-keep-your-records-long-request-permission-destroy-them-early.html" target="_blank">six years</a>. This is important for tax purposes and provides the necessary data for the employees' pension plan, employment insurance, and other supplemental insurance benefits.
 
2. Working hours and overtime. The general working hours in Canada are <a href="https://www.canada.ca/en/services/jobs/workplace/federal-labour-standards/work-hours.html" target="_blank">40 hours per week</a>, but it could be higher in certain provinces like <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/hours-work" target="_blank">Ontario</a>. The overtime pay differs across the different regions. The rate is generally 1.5x the regular wage or an equivalent of paid time off. This also depends on regional differences stipulated by law.
 
3. Benefits. Workers who meet the requirements are entitled to benefits such as annual leave, pension plan contribution, insurance pays, severance pay, vacations, and more. The laws regarding severance pay differs between <a href="https://www.htwlaw.ca/unjust-dismissal-wrongful-dismissal" target="_blank">federally regulated employees</a> and provincial employees such as <a href="https://www.htwlaw.ca/severance-pay" target="_blank">Ontario employees</a>.
 
4. Holidays. Under each provincial regulation, employees qualify for a vacation. It ranges from 2 weeks to more based on their years of service. The days off do not include public holidays. Workers can also apply for extended leave based on special circumstances such as a death of a family member, etc. <a href="https://laws-lois.justice.gc.ca/eng/acts/L-2/page-22.html#h-342149" target="_blank">Click here</a> to see holidays and leave under the <a href="https://www.canada.ca/en/services/jobs/workplace/federal-labour-standards/vacations-holidays.html" target="_blank">Canada Labour Code</a> for federally regulated sectors. <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0" target="_blank">Click here</a> to see the same for Ontario under the Employment Standards Act for <a href="https://www.ontario.ca/laws/statute/00e41#BK59" target="_blank">vacation</a> and <a href="https://www.ontario.ca/laws/statute/00e41#BK80" target="_blank">leave</a>.
 
5. Right to disconnect. Employees in some provinces such as Ontario are allowed to disconnect from work activity outside their working hours pursuant to the <a href="https://www.ontario.ca/laws/statute/s21035" target="_blank">Working for Workers Act, 2021</a>. <a href="https://www.htwlaw.ca/post/non-compete-agreement-no-longer-legal-under-bill-27-working-for-workers-act-2021#viewer-e74r1" target="_blank">Click here</a> to learn more. It means that companies shouldn’t expect their workers to answer work emails or calls and do other work-related activities when they are off. The right to disconnect law protects them from burnout and ensures a better work-life balance. These laws apply to businesses with over 25 employees.
 
6. Parental leave. The laws on parental leave work for either one of both genders. An eligible parent can get up to <a href="https://www.canada.ca/en/employment-social-development/programs/laws-regulations/labour/interpretations-policies/parental-leave.html" target="_blank">63 weeks</a> or more in some cases after birth or when a child becomes the employee's responsibility under both <a href="https://www.canada.ca/en/employment-social-development/programs/laws-regulations/labour/interpretations-policies/parental-leave.html" target="_blank">federal</a> and most, if not all, <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/pregnancy-and-parental-leave" target="_blank">provincial</a> regimes.
 
7. Privacy. Employment laws in Canada also protect workers' rights and ensure that businesses and organizations respect their workers' right to privacy. One such example is the <a href="https://laws-lois.justice.gc.ca/eng/ACTS/P-21/index.html" target="_blank">Privacy Act</a>. This means that invasive workplace surveillance is not allowed. It is also illegal to secretly monitor employees outside their office and off working hours.
<h3></h3>
<h3>c. Employment Procedure and Agreement</h3>
<h3></h3>
<figure><img src="https://static.wixstatic.com/media/d2feda_70096ae0d9e846c39fa1f32245d0319c~mv2.jpg/v1/fit/w_900,h_468,al_c,q_80/file.png"></figure>
 
In most cases, the location where workers carry out their activities determines what does or doesn't apply to them. Therefore, a company should draft a relevant employment contract compliant with Canadian labor laws. Having an employee sign a contract drafted elsewhere, like in the US, means it is not enforceable by a Canadian court. The court may use common law principles to deliver judgment in such situations. Also, it is advisable to have a lawyer and a <a href="https://speedingticketkc.com/how-to-write-a-good-law-firm-blog-post-guest-post/" target="_blank">legal marketing writing</a> team to communicate its terms and conditions clearly and effectively.
<hr>
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/491d2c_ec5537edd2c54e01997917266d9aa808~mv2.png/v1/fit/w_962,h_154,al_c,q_80/file.png"alt="contact htw law - employment lawyer for wrongful dismissal help"></figure>
<hr>
 
<h3>d. Contract Termination</h3>
 
Canadian employment laws are clear on the rights of <a href="https://www.canada.ca/en/employment-social-development/corporate/portfolio/labour/programs/labour-standards/reports/termination-rights.html" target="_blank">termination</a> of employment. Here, the employer must give proper termination notice or provide payment in lieu of notice. The laws regarding termination differ between federally regulated firms and their provincial counterparts.
 
For federally regulated employees they can elect to take 2 weeks' notice or payment in lieu as per the <a href="https://www.canada.ca/en/services/jobs/workplace/federal-labour-standards/termination.html" target="_blank">Canada Labour Code</a> or to file an <a href="https://www.htwlaw.ca/unjust-dismissal-wrongful-dismissal" target="_blank">unjust dismissal</a> claim.
 
Provincial workers, such as those in Ontario, have the option of accepting <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/termination-employment" target="_blank">termination pay</a> and <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/severance-pay" target="_blank">severance pay</a>, if applicable, under the Employment Standards Act, or suing for <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">wrongful dismissal</a> or <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructive dismissal</a> depending on the situations.
 
Termination without any notice other than the statutory minimum guaranteed by the employment protection statutes mentioned above may be possible for cases of severe employee misconduct, such as <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">office harassment</a> or theft. 
 
By including a termination provision in an <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contract</a>, the company may be able to limit certain legal liabilities. However, it is extremely technical, and the Court will strike down any employment agreement with even the slightest violation of employment law legislation.
 
<figure><img src="https://static.wixstatic.com/media/11062b_2d60145a58214f47a9115d8391c12c77~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="important employment law cases regarding termination clause enforceability"></figure>
 
For instance, in Ontario, in Wood v. Fred Deeley Imports Ltd., <a href="https://canlii.ca/t/gxn69" target="_blank">2017 ONCA 158</a>, the Court of Appeal has stated that a termination clause will rebut the presumption of reasonable notice only if its wording is clear, and employees should be made aware at the beginning of their employment what their entitlement will be at the end of their employment.
 
Following the Court of Appeal decision in 2020 in Waksdale v SwegonNorth America Inc., <a href="https://www.htwlaw.ca/post/termination-for-cause-after-waksdale-v-swegon-north-america-inc#viewer-3u09t" target="_blank">2020 ONCA 391</a>, many termination provisions in employment contracts were invalidated by the Waksdale rule, which states that the termination clause will NOT be enforceable unless the entire employment contract is in line with the Employment Standards Act (ESA).
 
<a href="https://news.ontario.ca/en/backgrounder/1001032/working-for-workers-act-2021" target="_blank">Bill 27: Working for Workers Act, 2021</a> was introduced in late October 2021 which prohibit Non-compete clauses or non-compete obligations in employment contracts, if such agreement was entered into after October 25, 2021.
 
After Gracias v Dr David Walt Dentistry Professional Corp, <a href="https://canlii.ca/t/jwhzn" target="_blank">2023 ONSC 2052</a> (Div Ct), aff'g <a href="https://canlii.ca/t/jpbg4" target="_blank">2022 ONSC 2967</a>, the divisional court has confirmed that the employment agreement will be enforceable only if it in its entirety complies with the minimum employment standards of the Employment Standards Act, 2000; if the contract does not comply with the Act, then the employee is entitled to reasonable notice of termination. This is so even if the provision that breaches the ESA has nothing to do with termination.
 
If you are an employer, you are very strongly advised to retain an experienced <a href="https://www.htwlaw.ca/employment-lawyer" target="_blank">employment lawyer</a><a href="https://www.htwlaw.ca/employment-lawyer" target="_blank"> </a>to draft a legally <a href="https://www.htwlaw.ca/employment-contract" target="_blank">enforceable employment contract</a>. In many cases, it’s a make-it-or-break-it move. If you are an employee, you are well advised to seek <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">legal advice</a> from <a href="https://www.htwlaw.ca/employment-lawyer" target="_blank">employment lawyers</a> before signing any <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment agreement</a> or accepting "<a href="https://www.htwlaw.ca/severance-pay" target="_blank">severance package</a>" or "<a href="https://www.htwlaw.ca/severance-pay" target="_blank">termination package</a>" to protect your employment law entitlements.
 
<h2>Conclusion</h2>
 
<figure><img src="https://static.wixstatic.com/media/d2feda_1b4fc4a4773240a3806cd2f6363468fd~mv2.png/v1/fit/w_641,h_642,al_c,q_80/file.png"alt="conclusion - summing up employment law and employment lawyer helps regarding terminatino and employment law in general"></figure>
 
Understanding Canadian employment laws is necessary for business owners with employees working in Canada. Such laws protect the workers' rights while safeguarding the company's interests. Taking the time to be duly acquainted with the regulations regarding employment will help you avoid legal issues in the future. 
 
You don't have to fight the battle alone. Speaking with an <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">employment lawyer</a> who is familiar with the laws and regulations regarding <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contracts</a> and <a href="https://www.htwlaw.ca/employment-lawyer" target="_blank">employment law</a> in general will go a long way. If you are in doubt, it's essential that you reach out for help as soon as possible right away.
<hr>
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/73d2cb_3af18cfe049e44a5bac8cff0e3cd5865~mv2.jpg/v1/fit/w_740,h_384,al_c,q_80/file.png"></figure>
<figure><img src="https://static.wixstatic.com/media/491d2c_ec5537edd2c54e01997917266d9aa808~mv2.png/v1/fit/w_962,h_154,al_c,q_80/file.png"alt="contact htw law - employment lawyer for wrongful dismissal help"></figure>
<hr>
 
<h2>Author Bio:</h2>
Thomas Lore is a 27-year-old writer. As a creative and diligent freelance blogger, he is always seeking new ways to improve himself.
 
 
]]></content:encoded></item><item><title><![CDATA[Gender Equality – Is Society Giving Equal Rights To Women As Well?]]></title><description><![CDATA[Gender equality is a fundamental human right that is essential for building a just and equitable society. Reads on to learn more.]]></description><link>https://www.htwlaw.ca/post/gender-equality-is-society-giving-equal-rights-to-women-as-well</link><guid isPermaLink="false">6450dae9eb7710c9948c162f</guid><category><![CDATA[Workplace Harassment]]></category><category><![CDATA[Workplace Discrimination]]></category><pubDate>Wed, 03 May 2023 10:49:20 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/24334f_19e476bf89694e728677acf9008d9066~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Guest Post</dc:creator><content:encoded><![CDATA[Gender equality is a fundamental human right that is essential for building a just and equitable society. Unfortunately, women continue to face significant social, economic, and political barriers that prevent them from fully participating in society.
 
<figure><img src="https://static.wixstatic.com/media/24334f_19e476bf89694e728677acf9008d9066~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="discrimination and harassment - gender equality"></figure>
<a href="https://www.pexels.com/photo/male-and-female-signage-on-wall-1722196/" target="_blank">Image Source</a>
<hr>
An Article from Our <a href="#68tbt" rel="noopener noreferrer">American Contributor</a> .
<hr>
In Canada, for example, women still earn just 84 cents for every dollar earned by men, and only 29% of Members of Parliament are women. Women are also disproportionately affected by gender-based violence, with one in three women in Canada experiencing some form of violence in their lifetime. It is clear that more work is needed to ensure that women are given equal rights and opportunities in all areas of society.
 
Reads on to learn more about gender inequality, problems faced by women and legal protections available.
 
You may want to take a look at the following articles to learn more about legal protections available to women in Ontario:

- <a href="https://www.htwlaw.ca/post/family-status-discrimination-a-legal-analysis" target="_blank">Family Status Discrimination - A Legal Analysis</a>

- <a href="https://www.htwlaw.ca/post/legal-protections-available-against-sexual-harassment" target="_blank">Legal Protections Available Against Sexual Harassment</a> 
 
As compared to a decade ago, there's significant improvements in terms of social and economics status. However, being a woman, you still face numerous social and workspace issues. Let's have a look at some of the problems and legal safeguards available:
<ol>
<li><a href="#duchh" rel="noopener noreferrer">Social Issues Faced by Women</a> </li>
<li><a href="#fn9ci" rel="noopener noreferrer">Workplace Issues Faced by Women</a> </li>
<li><a href="#36mdp" rel="noopener noreferrer">MeToo Movement</a> </li>
<li><a href="#6es21" rel="noopener noreferrer">Solution To Inequality</a> </li>
<li><a href="#eumrp" rel="noopener noreferrer">Laws for Gender Equality </a> </li>
<li><a href="#dj7u8" rel="noopener noreferrer">Ontario's Legal Answers to Gender Inequality</a> </li>
<li><a href="#d8lc7" rel="noopener noreferrer">While Summing It Up…</a> </li>
</ol>
 
<h2>1. Social Issues Faced by Women</h2>
<figure><img src="https://static.wixstatic.com/media/491d2c_891dbf8875fc4ae98d8cf74768de6209~mv2.jpg/v1/fit/w_773,h_538,al_c,q_80/file.png"alt="discrimination and harassment - Social Issues Faced by Women"></figure>
 
As compared to a decade ago, many social policies and legal safeguards are in place to protect women. Irrespective of the fact that things are being done to spread gender equality awareness, still women have to face several social issues.
 
<h3>a. Unequal Pay</h3>
 
Despite the existence of laws promoting gender equality, women continue to face persistent wage gaps in many countries, including Canada and the United States. 
 
According to a report by the <a href="https://policyalternatives.ca/" target="_blank">Canadian Centre for Policy Alternatives</a> in colloboration with <a href="https://assignmentassistance.co.uk/buy-coursework" target="_blank">Assignment Assistance UK</a>, women in Canada earn an average of just <a href="https://left.eu/issues/explainers/equal-work-for-unequal-pay-the-discrimination-of-women-at-work-an-explainer/" target="_blank">84 cents for every dollar</a> earned by men. This wage gap has serious implications for women's economic security and can limit their ability to access housing, healthcare, and other basic needs.
 
<figure><img src="https://static.wixstatic.com/media/24334f_22bd7a084e3c4b32a744cdd8e5845db5~mv2.png/v1/fit/w_1000,h_628,al_c,q_80/file.png"alt="workplace harassment and discrimination - gender pay gap in numbers"></figure>
 
The factors contributing to the wage gap are complex and multifaceted, but often include occupational segregation, where women are overrepresented in lower-paying jobs, as well as discrimination and bias against women in the workplace. Addressing the wage gap requires a multifaceted approach, including stronger legal protections, better enforcement of existing laws, and greater efforts to challenge gender stereotypes and promote workplace diversity.
 
<h3>b. Lack of Representation in Politics and Leadership Roles</h3>
 
Women are significantly underrepresented in politics and leadership roles in many countries. In Canada, for example, women make up just 29% of Members of Parliament, despite comprising nearly half of the population. Similar patterns of underrepresentation can be seen in business, academia, and other sectors.
 
Barriers to women's access to positions of power are numerous and include sexism, gender bias, and structural inequalities. Addressing these barriers requires a concerted effort to challenge gender stereotypes and promote greater diversity in all areas of society.
 
<h3>c. Gender-Based Violence and Harassment</h3>
 
Gender-based violence and harassment are pervasive issues that impact women in all corners of society. According to a report by Statistics Canada, over half of Canadian women have experienced some form of sexual harassment since the age of 15. The impact of this violence on women's physical and mental health can be severe and can limit their ability to participate fully in society.
 
Addressing gender-based violence requires a multifaceted approach that includes stronger legal protections, greater awareness and education, and better support services for survivors.
 
 
<h2>2. Workplace Issues Faced by Women</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_ad29f3d29fc04163a5fdf9fab91544a8~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="workplace discrimination and harassment - Workplace Issues Faced by Women"></figure>
 
Along with social issues, women suffer from significant challenges in the workplace. Here are some of the most pressing issues:
 
<h3>a. Gender-Based Discrimination</h3>
 
Unfortunately, gender-based <a href="https://www.htwlaw.ca/post/disability-discrimination" target="_blank">discrimination</a> remains all too common in the workplace. According to a Canadian Women's Foundation survey, 60% of women have experienced some form of workplace harassment or discrimination. This can take many forms, from sexual harassment and pregnancy discrimination to gender bias and <a href="https://www.payequity.gov.on.ca/en/LearnMore/Pages/Pay-Equity-v-Equal-Pay.aspx" target="_blank">unequal pay</a>.
 
<figure><img src="https://static.wixstatic.com/media/24334f_92b4cd36ff434e51a9489c61ffe3ac45~mv2.png/v1/fit/w_1000,h_562,al_c,q_80/file.png"></figure>
 
The impact of these forms of discrimination on women's career opportunities and job satisfaction can be significant. Women who experience discrimination or harassment are more likely to leave their jobs, which can hurt their long-term career prospects.
 
<h3>b. Lack of Family-Friendly Policies</h3>
 
Many women struggle to balance work and family responsibilities, especially when it comes to raising children. Unfortunately, the lack of <a href="https://www.htwlaw.ca/post/family-status-discrimination-a-legal-analysis" target="_blank">family-friendly policies</a> in many workplaces can make this even more difficult. For example, many companies don't offer paid parental leave or affordable child care, which can make it difficult for women to take time off to care for their children without sacrificing their careers.
 
This can disproportionately impact women, who are still more likely to take on the bulk of childcare responsibilities. As a result, many women are forced to choose between their families and their careers, limiting their ability to reach their full potential in the workforce.
 
<h3>c. Occupational Segregation</h3>
 
Finally, women continue to be concentrated in low-paying, undervalued occupations, such as caregiving and retail. This occupational segregation can significantly impact women's economic security and career opportunities. 
 
According to the experts from <a href="https://dissertationassistance.co.uk/write-my-assignment" target="_blank">dissertationassistance.co.uk</a>, "Women who work in female-dominated fields often earn less than men who work in male-dominated fields, even if their jobs require similar skills and education levels."
 
These workplace issues highlight the ongoing need for policies and programs supporting gender equality in the workforce. By addressing these challenges head-on, we can create a more equitable and inclusive workplace for all.
 
<hr>
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/491d2c_ec5537edd2c54e01997917266d9aa808~mv2.png/v1/fit/w_962,h_154,al_c,q_80/file.png"alt="contact htw law - employment lawyer for wrongful dismissal help"></figure>
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<h2>3. MeToo Movement</h2>
<figure><img src="https://static.wixstatic.com/media/24334f_39a5994873af47568ac0e1b207e4790a~mv2.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="workplace discrimination and harassment - MeToo Movement"></figure>
 
In recent years, the MeToo movement has emerged as a powerful force for promoting gender equality and combating sexual harassment and assault against women. The movement began in 2017 as a social media campaign, with women sharing their experiences of sexual harassment and assault using the hashtag #MeToo. Since then, the movement has grown to become a global phenomenon, with millions of people sharing their stories and demanding change.
 
<figure><img src="https://static.wixstatic.com/media/24334f_6408b77de7134801a3451a430a298a57~mv2.png/v1/fit/w_1000,h_630,al_c,q_80/file.png"alt="workplace harassment and discrimination - metoo"></figure>
 
The MeToo movement has been instrumental in raising awareness about the prevalence of sexual harassment and assault against women. According to a survey by the Angus Reid Institute, 67% of Canadian women have experienced some form of sexual harassment in their lifetime.
 
The movement has also led to changes in how these issues are addressed in the workplace and in society more broadly. For example, many companies have introduced new policies and procedures for addressing sexual harassment and have committed to promoting greater gender equality in the workplace.
 
Overall, the MeToo movement has played a critical role in advancing the cause of gender equality and promoting greater awareness and understanding of the challenges faced by women in society. However, there is still much work to be done to ensure that women are able to fully participate in all areas of society, free from discrimination & harassment.
 
 
<h2>4. Solution To Inequality</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_911a54a78de841ccb932ab4e26323dc0~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="workplace harassment and discrimination - Solution To Inequality"></figure>
 
In order to combat the social and workplace issues faced by women, it is important to develop potential solutions that can help promote gender equality and improve their lives. Here are some suggestions:
<ul>
<li>Promote diversity and inclusion in the workplace by implementing hiring practices that prioritize underrepresented groups and creating a safe and welcoming work environment.</li>
<li>Support victims of gender-based violence and discrimination by establishing employee resource groups, offering counseling services, and implementing zero-tolerance policies.</li>
<li>Encourage women to take on leadership roles by offering mentorship programs, training, and professional development opportunities.</li>
<li>Implement family-friendly policies such as flexible work hours, paid parental leave, and affordable childcare to help women balance work and family responsibilities.</li>
<li>Educate both women and men about gender-based discrimination and harassment in the workplace and society as a whole to increase awareness and reduce stigma.</li>
<li>Increase representation of women in politics and leadership roles by implementing quotas, promoting female candidates, and supporting organizations that advocate for gender equality.</li>
<li>By implementing these solutions, we can create a more equitable and inclusive society for women.</li>
</ul>
Many countries and states worldwide are actively working to address issues related to gender equality in the workplace and society. Some notable examples include:
<ul>
<li>Norway: known for its gender quota law, which requires that publicly traded companies have at least 40% female representation on their boards of directors</li>
<li>Iceland: has been ranked the world's most gender-equal country for over a decade by the World Economic Forum, and recently passed a law requiring companies to prove they are paying men and women equally</li>
<li>California, USA: has implemented various gender-related policies, such as making it necessary that publicly traded companies must have at least one woman on their board of directors by the end of 2021</li>
<li>New Zealand: passed the Equal Pay Amendment Act in 2020, which aims to close the gender pay gap by ensuring that women are paid the same as men for work of equal value</li>
</ul>
These are just a few examples of the many countries and states worldwide that are taking steps towards gender equality in the workplace and society.
 
<h2>5. Laws for Gender Equality</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_0f74f04bfac24372b73093ad9af8ee33~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="workplace harassment and discrimination - Laws for Gender Equality"></figure>
 
Despite the ongoing challenges faced by women, there have been significant advances in <a href="https://www.htwlaw.ca/post/legal-analysis-and-protection-against-religious-discrimination-at-work" target="_blank">legal protections</a> for gender equality in Canada and the United States. Some of the key laws in place to promote gender equality include the <a href="https://laws-lois.justice.gc.ca/eng/acts/h-6/" target="_blank">Canadian Human Rights Act</a>, the Ontario <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Human Rights Code</a>, and the U.S. <a href="https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964" target="_blank">Title VII of the Civil Rights Act</a>.
 
The Canadian Human Rights Act prohibits discrimination on the basis of gender in the workplace and other areas of society. Similarly, the Ontario Human Rights Code provides protections against gender-based discrimination in the workplace, housing, and other areas of public life. Title VII of the Civil Rights Act also prohibits employment discrimination on the basis of gender and includes provisions to address sexual harassment and pregnancy discrimination.
 
These laws are intended to protect women's rights and promote gender equality in the workplace and in society more broadly. By providing legal remedies for instances of gender-based harassment or discrimination, these laws help to ensure that women are able to participate fully in all areas of society, free from discrimination and bias. 
 
However, despite the existence of these laws, more work is needed to ensure that they are fully enforced and that women are able to access their legal protections.
 
<a href="https://www.chrc-ccdp.gc.ca/en/about-human-rights/human-rights-canada" target="_blank">Click here</a> to learn more about the <a href="https://www.chrc-ccdp.gc.ca/en/about-human-rights/human-rights-canada" target="_blank">Canadian Human Rights Act</a>.
 
<a href="https://www.ohrc.on.ca/en/ontario-human-rights-code" target="_blank">Click here</a> to learn more about the Ontario <a href="https://www.ohrc.on.ca/en/ontario-human-rights-code" target="_blank">Human Rights Code</a>, and <a href="https://qweri.lexum.com/w/onlegis/rso-1990-c-h19-en#!fragment/sec3/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoJC4BmASgBpltTCIBFRQ3AT2gHI+9SmFwIOXXgKGERCAMp5SAIV4AlAKIAZdQDUAggDkAwuvqkwAI2ilscWrSA" target="_blank">click here</a> for an <a href="https://qweri.lexum.com/w/onlegis/rso-1990-c-h19-en#!fragment/sec3/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoJC4BmASgBpltTCIBFRQ3AT2gHI+9SmFwIOXXgKGERCAMp5SAIV4AlAKIAZdQDUAggDkAwuvqkwAI2ilscWrSA" target="_blank">annotated version of the Human Rights Code</a>.
 
<a href="https://www.ftc.gov/policy-notices/no-fear-act/protections-against-discrimination" target="_blank">Click here</a> to learn more about the U.S. <a href="https://www.ftc.gov/policy-notices/no-fear-act/protections-against-discrimination" target="_blank">Title VII of the Civil Rights Act</a> and other relevant status in the United States.
<hr>
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/73d2cb_3af18cfe049e44a5bac8cff0e3cd5865~mv2.jpg/v1/fit/w_740,h_384,al_c,q_80/file.png"></figure>
<hr>
 
<h2>6. Ontario's Legal Answers to Gender Inequality</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_8f882a9634ee4a18acd35e1db73df829~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
 
If we talk specifically about Ontario, Canada, it has a number of legal protections in place to promote gender equality in the workplace and society. 
 
<figure><img src="https://static.wixstatic.com/media/491d2c_4a1057c0027a4c2d950059b8d3063874~mv2.jpg/v1/fit/w_462,h_92,al_c,q_80/file.png"alt="workplae harassment and discrimination - hrto"></figure>
The <a href="https://en.wikipedia.org/wiki/Human_Rights_Code_(Ontario)" target="_blank">Ontario Human Rights Code</a> provides important legal safeguards for women and prohibits <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a> and <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment</a> on the basis of gender identity, gender expression, and sexual orientation. This means that employers cannot discriminate against women in hiring, promotion, or pay, and cannot create a work environment that is hostile or unwelcoming to women.
 
<a href="https://www.ohrc.on.ca/en/iii-principles-and-concepts/4-legal-responsibility-human-rights-work" target="_blank">Click here</a> to learn more about <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">legal protections against workplace harassment and workplace discrimination</a> under the <a href="https://www.ohrc.on.ca/en/iii-principles-and-concepts/4-legal-responsibility-human-rights-work" target="_blank">Human Rights Code</a>.
 
<figure><img src="https://static.wixstatic.com/media/491d2c_c61dae386e2c4c75a0f5ce2d302a8bc8~mv2.jpg/v1/fit/w_699,h_326,al_c,q_80/file.png"alt="workplace harassment and discrimination - esa"></figure>
In addition, the province has a <a href="https://laws-lois.justice.gc.ca/eng/acts/P-4.2/page-1.html" target="_blank">Pay Equity Act</a> that requires employers to pay employees of different genders equally for work of equal value. An amendment was added to the Ontario <a href="https://www.ontario.ca/laws/statute/00e41" target="_blank">Employment Standards Act</a> relating to <a href="https://www.ontario.ca/laws/statute/00e41#BK75" target="_blank">equal pay for equal works</a>. These helps to address the persistent wage gap between men and women.
 
<a href="https://www.payequitychrc.ca/en/about-act/what-pay-equity" target="_blank">Click here</a> to learn more about the <a href="https://www.payequitychrc.ca/en/about-act/what-pay-equity" target="_blank">Pay Equity Act</a>.
 
<a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/equal-pay-equal-work" target="_blank">Click here</a> to learn more about the <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/equal-pay-equal-work" target="_blank">equal pay for equal works</a> under the ESA.
 
Pay equity act requires equal pay for equal value for men and women. Equal pay under ESA require equal pay for different workers in different locations for same skill, same level, despite different location, whether full time or part time workers.
 
Both legislation allows for exceptions for measurable distinction such as merit basis, seniority based, but NOT gender, religious or ethnic based. A violation of the pay equity and equal pay for equal work itself is prima facie evidence of discrimination based on gender.
 
<a href=" https://www.payequity.gov.on.ca/en/LearnMore/Pages/Pay-Equity-v-Equal-Pay.aspx" target="_blank">Click here</a> to learn more about the <a href=" https://www.payequity.gov.on.ca/en/LearnMore/Pages/Pay-Equity-v-Equal-Pay.aspx" target="_blank">difference between </a><a href=" https://www.payequity.gov.on.ca/en/LearnMore/Pages/Pay-Equity-v-Equal-Pay.aspx" target="_blank">Pay Equity Act</a><a href=" https://www.payequity.gov.on.ca/en/LearnMore/Pages/Pay-Equity-v-Equal-Pay.aspx" target="_blank"> and </a><a href=" https://www.payequity.gov.on.ca/en/LearnMore/Pages/Pay-Equity-v-Equal-Pay.aspx" target="_blank">Equal Pay for Equal Works</a> under the ESA.
 
These legal protections are important because they help create a more equitable society. They provide women with the tools to challenge discriminatory practices and hold employers accountable for promoting gender equality. However, it is important to note that legal protections alone are not enough to achieve gender equality. It also requires changes in societal attitudes and norms and proactive efforts by employers to promote diversity and inclusion in the workplace. A clear example is a case of <a href="https://www.ohrc.on.ca/en/news_centre/pay-equity-midwives-upheld-ontario%E2%80%99s-highest-court" target="_blank">midwives who demanded to pay equally</a>.
 
<figure><img src="https://static.wixstatic.com/media/11062b_0255c1d3192f44f2a1530d23d1c293d6~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="workplace harassment and discrimination - Association of Ontario Midwives v Ontario (Health and Long-Term Care), 2020 HRTO 165"></figure>
In <a href="https://canlii.ca/t/j5f8b" target="_blank">Association of Ontario Midwives v Ontario (Health and Long-Term Care)</a>, 2020 HRTO 165, the <a href="https://tribunalsontario.ca/hrto/" target="_blank">Human Rights Tribunal of Ontario</a> (HRTO) ruled in favor of the <a href="https://www.ontariomidwives.ca/" target="_blank">Association of Ontario Midwives</a> (AOM), finding that the <a href="https://www.health.gov.on.ca/en/" target="_blank">Ministry of Health</a> (MOH) unlawfully underpaid midwives due to gender discrimination, and ordering the MOH to (i) implement a 20% wage adjustment for eligible midwives retroactive to April 1, 2011, and (ii) pay $7,500.00 in damages to each eligible midwife for injury to dignity, feelings, and self-respect.
 
The HRTO reasoned that the midwives were almost entirely women and members of a protected group under the Code; they faced discrimination beginning in 2005, when the MOH abandoned the 1993 Principles; and, for a variety of reasons, gender was a factor in the discrimination the midwives faced and the compensation gap that developed between them and the CHC physicians since 2005.
 
MOH appealed the decision.
<figure><img src="https://static.wixstatic.com/media/491d2c_629a2462126549dc917c2f857ad31aa1~mv2.png/v1/fit/w_226,h_298,al_c,q_80/file.png"alt="workplace harassment and discrimination - Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458"></figure>
 
In <a href="https://canlii.ca/t/jprf6" target="_blank">Ontario (Health) v. Association of Ontario Midwives</a>, 2022 ONCA 458, the <a href="https://www.ontariocourts.ca/coa/" target="_blank">Court of Appeal for Ontario</a> (OCA) was satisfied with the reasonableness of the <a href="https://tribunalsontario.ca/hrto/" target="_blank">Human Rights Tribunal of Ontario</a>'s (HRTO) finding that the <a href="https://www.health.gov.on.ca/en/" target="_blank">Ministry of Health</a> (MOH) subjected midwives to pay discrimination on the basis of gender, and upheld the HRTO decision made in 2020.
 
The OCA found that the HRTO articulated the well-established three-step test established in <a href="https://canlii.ca/t/ftp16" target="_blank">Moore v. British Columbia (Education)</a>, 2012 SCC 61, to demonstrate a prima facie case of gender discrimination, namely, a claimant must show that they are a member of a group protected by the Code; they have been subjected to adverse treatment; and their gender was a factor in the adverse treatment. 
 
The OCA concluded that the HRTO’s reasons, read holistically, revealed “a logical chain of analysis grounded in the record and the relevant jurisprudence” in support of its conclusion of discrimination. 
 
<a href="https://www.littler.com/publication-press/publication/ontario-canada-human-rights-tribunal-finds-midwives-underpaid-due" target="_blank">Click here</a> for a details in-depth explanation and analysis of <a href="https://www.littler.com/publication-press/publication/ontario-canada-human-rights-tribunal-finds-midwives-underpaid-due" target="_blank">Association of Ontario Midwives v Ontario (Health and Long-Term Care), 2020 HRTO 165</a>.
 
<a href="https://www.littler.com/publication-press/publication/ontario-canada-appeal-court-affirms-finding-midwives-were-underpaid" target="_blank">Click here</a> for a details in-depth explanation and analysis of <a href="https://www.littler.com/publication-press/publication/ontario-canada-appeal-court-affirms-finding-midwives-were-underpaid" target="_blank">Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458</a>.
 
<a href="https://www.ontariomidwives.ca/closing-gap-understanding-ontario-midwives-legal-action" target="_blank">Click here</a> to read about <a href="https://www.ontariomidwives.ca/closing-gap-understanding-ontario-midwives-legal-action" target="_blank">Closing the gap: Understanding Ontario midwives’ legal action</a> from the <a href="https://www.ontariomidwives.ca/denounce-bullying" target="_blank">Association of Ontario Midwives</a> (AOM) website.
<h2></h2>
<h2>7. While Summing Up…</h2>
 
In conclusion, gender equality remains a pressing issue in the workplace and society. Social and workplace issues faced by women, such as unequal pay, lack of representation in politics and leadership roles, gender-based violence and harassment, occupational segregation, and discrimination and harassment, continue to persist.
However, there are potential solutions to these issues, such as promoting diversity and inclusion, providing support for victims of gender-based violence and discrimination, and encouraging women to take on leadership roles. It is important to continue working towards gender equality in all areas of society to create a more equitable and just world for all.

You don't have to fight the battle alone. Speaking with an <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">employment lawyer</a> who is familiar with the laws and regulations regarding <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment</a> and <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a>, and gender inequality against women will go a long way. If you are in doubt, it's essential that you reach out for help as soon as possible right away.
 
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/73d2cb_3af18cfe049e44a5bac8cff0e3cd5865~mv2.jpg/v1/fit/w_740,h_384,al_c,q_80/file.png"></figure>
<figure><img src="https://static.wixstatic.com/media/491d2c_ec5537edd2c54e01997917266d9aa808~mv2.png/v1/fit/w_962,h_154,al_c,q_80/file.png"alt="contact htw law - employment lawyer for wrongful dismissal help"></figure>
<hr>
 
<h2>Author Bio:</h2>
 
Melissa Calvert is currently working as assistant researcher at crowdwriter.com. She was previously associated with a reputed firm as an SEO Analyst. Melissa likes to travel, and she often travels solo to explore different cultures of various places. In her leisure time, you will find her reading books and browsing technological advancements.
 
<figure><img src="https://static.wixstatic.com/media/24334f_f1a5591b713e4cadb4a5ef5ea7f0cd90~mv2.jpg/v1/fit/w_451,h_526,al_c,q_80/file.png"></figure>
 
<h2>Sources:</h2>
<ol>
<li><a href="https://www150.statcan.gc.ca/n1/pub/89-503-x/2015001/article/14694-eng.htm" target="_blank">https://www150.statcan.gc.ca/n1/pub/89-503-x/2015001/article/14694-eng.htm</a> </li>
<li><a href="https://www150.statcan.gc.ca/n1/pub/85-002-x/2019001/article/00018-eng.htm" target="_blank">https://www150.statcan.gc.ca/n1/pub/85-002-x/2019001/article/00018-eng.htm</a> </li>
<li><a href="https://angusreid.org/story-10-the-metoo-movement/" target="_blank">https://angusreid.org/story-10-the-metoo-movement/</a> </li>
<li><a href="https://www.elections.ca/content.aspx?section=res&dir=rep/off/sta_2019&document=index&lang=e" target="_blank">https://www.elections.ca/content.aspx?section=res&dir=rep/off/sta_2019&document=index&lang=e</a> </li>
<li><a href="https://www.eeoc.gov/types-discrimination" target="_blank">https://www.eeoc.gov/types-discrimination</a> </li>
<li><a href="https://psycnet.apa.org/doiLanding?doi=10.1037%2F0021-9010.82.4.578" target="_blank">https://psycnet.apa.org/doiLanding?doi=10.1037%2F0021-9010.82.4.578</a> </li>
<li><a href="https://www.jstor.org/stable/2657415?origin=crossref" target="_blank">https://www.jstor.org/stable/2657415?origin=crossref</a> </li>
<li><a href="https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures" target="_blank">https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures</a> </li>
</ol>]]></content:encoded></item><item><title><![CDATA[Homeworkers Complete Guide to Labour Rights in Ontario]]></title><description><![CDATA[Knowing your employment law rights is critical to being able to demand good working condition and wages. Read on to learn more.]]></description><link>https://www.htwlaw.ca/post/homeworkers-complete-guide-to-labour-rights-in-ontario</link><guid isPermaLink="false">6436ca8d0f1e6869b1b19879</guid><category><![CDATA[Employment Contract]]></category><pubDate>Thu, 13 Apr 2023 09:52:02 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/f336c8_e7f9aab09a2a4c098758c94d47279f81~mv2.png/v1/fit/w_1000,h_670,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Guest Post</dc:creator><content:encoded><![CDATA[Knowing your <a href="https://www.htwlaw.ca/employment-lawyer" target="_blank">employment law</a> rights as an employee is critical to being able to demand good and healthy working conditions and timely and fair remuneration for your work. On the other hand, as an employer, you are required to comply with the law. It can get a bit complicated if you work remotely from home. Hence, here’s everything homeworkers should know about labour rights in Ontario.
<figure><img src="https://static.wixstatic.com/media/f336c8_e7f9aab09a2a4c098758c94d47279f81~mv2.png/v1/fit/w_1000,h_670,al_c,q_80/file.png"alt="employment law rights of remote workers"></figure>
<a href="https://unsplash.com/photos/OQMZwNd3ThU" target="_blank">Source</a> 
<hr>
An Article from Our <a href="#9fbhf" rel="noopener noreferrer">American Contributor</a> .
<hr>
 
<h2>1. What Is the Employment Standards Act?</h2>
<figure><img src="https://static.wixstatic.com/media/f336c8_559d7498b2dc4aeabc22bd713ab82cff~mv2.png/v1/fit/w_1000,h_565,al_c,q_80/file.png"alt="htwlaw - emploment standards act"></figure>
<a href="https://unsplash.com/photos/EKy2OTRPXdw" target="_blank">Source</a> 
 
The most important employment law you need to know of as a resident of Ontario is the <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0" target="_blank">Employment Standards Act</a> (ESA). This is the law that protects workers’ rights and outlines how employees should be treated by their employers as well as what they can demand in terms of their rights being upheld properly.
 
That being said, not all types of workers are protected by ESA. If you work in a <a href="https://www.htwlaw.ca/federally-regulated-employee" target="_blank">federally-regulated</a> industry (e.g. banking or transportation), then this law won’t apply to you.
 
Otherwise, ESA is the statute you should look into if you want specific details about your rights as an employee (or if you are an employer who wants to comply with the law).
 
<a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0" target="_blank">Click here</a> to take a look at a helpful guide prepared by the Ministry of Labour.
 
 
<h2>2. The Basics: Working Hours, Minimum Wage, Overtime</h2>
 
<h3>Employment Law Regarding Working Hours</h3>
<figure><img src="https://static.wixstatic.com/media/f336c8_09e1f302e6c04f59b2d1e41d4d9048c5~mv2.png/v1/fit/w_1000,h_670,al_c,q_80/file.png"alt="employment law protections regarding working hours"></figure>
<a href="https://unsplash.com/photos/p_BsZdHQHy4" target="_blank">Source</a> 
 
According to ESA, the maximum hours an employee <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/hours-work" target="_blank">could be required to work</a> is 8 hours per day or 48 hours per week. However, this limit can be exceeded if there is a written or electronic agreement between the employer and the employee. The length of a regular workday should be clearly established in the agreement between the employer and the employee. The fact that a worker is working remotely from home doesn't change that requirement.
 
Even if the employee signs an agreement with the employer for a long workday, the employer still has to pay the employee if they are working overtime.
 
If you are an employer and have a workload that your team of employees can’t handle, you can consider outsourcing. For instance, you can contact the writing service <a href="https://www.trustmypaper.com/" target="_blank">Trust My Paper</a> to hire professional writers who can help you with content creation, documentation, and so on.
 
What counts as work hours should also be established in the agreement. For instance, breaks for eating might not be considered as working time even though the employee is staying at the office i.e. the workplace. Travel time such as commuting doesn’t count as working hours either (but there are exceptions). Training time is considered as working time if it is required by the employer or by law for the employee to perform their job (e.g. training during the onboarding period).
 
Of course, as a homeworker, you should discuss what counts as working hours with your employer. You may not need to commute to the office and back, but you do need breaks during the day to eat. You might even want to discuss time for sleeping during the day if your employer allows it.
 
 
<h3>Employment Law Regarding Minimum Wage</h3>
<figure><img src="https://static.wixstatic.com/media/f336c8_bdc386a329b14572b855817444dc905b~mv2.png/v1/fit/w_1000,h_565,al_c,q_80/file.png"alt="employment law rights regarding minimum wage"></figure>
<a href="https://unsplash.com/photos/lq-PS3Yyzg8" target="_blank">Source</a>
 
Most employees must be paid at least <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/minimum-wage" target="_blank">the minimum wage</a> no matter what type of job they have – full-time, part-time, casual, paid hourly, or per commission, etc. The minimum wage changes every year and will be increased on October 1, 2023. Right now, the minimum wage for homeworkers is $17.05 per hour.
 
If the employee is paid by commission, then the minimum wage should be calculated based on the number of hours worked to complete that specific commission. For example, if it took you 10 hours to complete a particular commission, then you will use that number of hours to calculate the minimum amount you should be paid using the minimum wage rate (10 * 17.05 = $170.50).
 
 
<h3>Employment Law Regarding Overtime</h3>
<figure><img src="https://static.wixstatic.com/media/f336c8_08c6fa85c6da40f6be8ec90feada5a36~mv2.png/v1/fit/w_1000,h_666,al_c,q_80/file.png"alt="employment law rights regarding overtime"></figure>
<a href="https://unsplash.com/photos/rYRE6ju-2K8" target="_blank">Source</a> 
 
In most cases, overtime starts when you have been <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/overtime-pay" target="_blank">working over 44 hours</a> per week. The hours an employee worked over 44 hours in a specific week will have to be paid by the employer as overtime. The rate for overtime work is 1.5 times the regular rate.
 
Keep in mind that overtime is generally not calculated on a daily basis but rather on a weekly basis or over a long period of time under an averaging agreement. If you want to be paid for overtime work on a daily basis, you need to discuss this with your employer and sign an agreement regarding it.
 
<hr>
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/491d2c_ec5537edd2c54e01997917266d9aa808~mv2.png/v1/fit/w_962,h_154,al_c,q_80/file.png"alt="contact htw law - employment lawyer for wrongful dismissal help"></figure>
<hr>
 
<h2>3. How About Holidays, Vacation, and Leave?</h2>
 
<h3>Holidays - Employment Law</h3>
<figure><img src="https://static.wixstatic.com/media/f336c8_6a702063546645859347901077db3ab8~mv2.png/v1/fit/w_1000,h_670,al_c,q_80/file.png"alt="Holidays - Employment Law"></figure>
<a href="https://unsplash.com/photos/NNtEsejVqkE" target="_blank">Source</a> 
 
Ontario has nine <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/public-holidays" target="_blank">public holidays</a>, including New Year’s Day, Family Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Christmas Day, and Boxing Day. Most employees can take these days off and get paid public holiday pay.
 
If an employee wants to work during a public holiday, an agreement should be signed electronically or in writing. As an employer, you can hire a professional writer from the writing agency <a href="https://bestessayseducation.com/" target="_blank">Best Essays Education</a> to help you craft a simple agreement. The employee will either have to be paid public holiday pay and premium pay or paid regular wages while receiving another substitute holiday for which they will receive public holiday pay.
 
However, you want more than a simple agreement, you will need to consult with an employment lawyer to draft a full <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment agreement</a>.
 
<h3>Vacation - Employment Law</h3>
<figure><img src="https://static.wixstatic.com/media/f336c8_0f655e42018c422eb5d21a5f55b05afa~mv2.png/v1/fit/w_1000,h_670,al_c,q_80/file.png"alt="Vacation - Employment Law"></figure>
<a href="https://unsplash.com/photos/SIOdjcYotms" target="_blank">Source</a> 
 
Depending on how many years of employment you have, you as an employee will be entitled to a <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/vacation" target="_blank">different number of vacation days</a>:
<ul>
<li>Less than 5 years of employment – 2 weeks of vacation time after each 12-month vacation entitlement year</li>
<li>5 or more years of employment – 3 weeks of vacation time after each 12-month vacation entitlement year</li>
<li>Your vacation pay also depends on the number of years of employment you have:</li>
<li>Less than 5 years of employment – vacation pay is at least 4% of the gross wages (excluding vacation pay) earned in the 12-month vacation entitlement year</li>
<li>5 or more years of employment – vacation pay is at least 6% of the gross wages (excluding vacation pay) earned in the 12-month vacation entitlement year</li>
</ul>
DO NOT confuse vacation time with vacation pay, they are two different things.
 
<a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/vacation" target="_blank">Click here</a> to take a look at a helpful guide prepared by the Ministry of Labour regarding vacation time and vacation pay.
 
<h3>Leaves of absence - Employment Law</h3>
<figure><img src="https://static.wixstatic.com/media/f336c8_6d5d10a67dc145458a467b7441538327~mv2.png/v1/fit/w_1000,h_670,al_c,q_80/file.png"alt="Leaves of absence - Employment Law"></figure>
<a href="https://unsplash.com/photos/Wr3comVZJxU" target="_blank">Source</a> 
 
There are different types of leave you can take that have different standards for length, pay, and so on:
<ul>
<li>Pregnancy and Parental Leave – <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/pregnancy-and-parental-leave" target="_blank">Pregnancy leave</a> can last up to 17 weeks and is unpaid. New parents have the right to take parental leave which is also unpaid. Mothers can take up to 61 weeks (if pregnancy leave was taken) or up to 63 weeks (if pregnancy leave wasn’t taken).</li>
<li>Personal Emergency Leave – This kind of leave includes sick days. <a href="https://www.ontario.ca/document/your-guide-employment-standards-act/personal-emergency-leave" target="_blank">Personal emergency leave</a> usually amounts to 10 days every calendar year.</li>
<li>Family-Related Leave – This includes <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/family-caregiver-leave" target="_blank">family caregiver leave</a> (unpaid, up to 8 weeks per calendar year per family member), <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/critical-illness-leave" target="_blank">critical illness leave</a> (unpaid, up to 37 weeks if a minor child is critically ill or up to 17 weeks if an adult is), and <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/crime-related-child-disappearance-leave" target="_blank">crime-related child death or disappearance leave</a> (unpaid, up to 104 weeks).</li>
</ul>
<a href="https://www.ontario.ca/document/employment-standard-act-policy-and-interpretation-manual/part-xiv-leaves-absence" target="_blank">Click here</a> to take a look at a helpful guide prepared by the Ministry of Labour regarding vacation time and vacation pay.
 
 
<h2>4. Wrapping Up</h2>
<h2></h2>
All in all, homeworkers in Ontario can be certain that their rights are protected, but if the employer doesn’t comply with ESA, then you must demand that your rights be respected. This guide will help you better understand ESA, but reading the statute yourself will give you a better picture of how the law protects your rights.
 
The Employment Standards Act may be found by <a href="https://www.ontario.ca/laws/statute/00e41" target="_blank">clicking here</a>.
 
<a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0" target="_blank">Click here</a> to take a look at a helpful guide prepared by the Ministry of Labour.
 
Unfortunately, not all businesses comply with the ESA and other employment laws that apply to Ontario homeworkers and remote workers, otherwise there wouldn't be any <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">wrongful dismissal</a>, <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructive dismissal</a> and <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment</a> and <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a> claims.
 
You don't have to fight the battle alone. Speaking with an <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">employment lawyer</a> who is familiar with the laws and regulations governing remote workers and homeworkers will go a long way. If you are in doubt, it's essential that you reach out for help as soon as possible right away to help you maximize your <a href="https://www.htwlaw.ca/severance-pay" target="_blank">severance pay</a> and separation package.
 
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/73d2cb_3af18cfe049e44a5bac8cff0e3cd5865~mv2.jpg/v1/fit/w_740,h_384,al_c,q_80/file.png"></figure>
<figure><img src="https://static.wixstatic.com/media/491d2c_ec5537edd2c54e01997917266d9aa808~mv2.png/v1/fit/w_962,h_154,al_c,q_80/file.png"alt="contact htw law - employment lawyer for wrongful dismissal help"></figure>
<hr>
 
<h2>Bio</h2>
 
Kristen Bray is a professional writer and blogger. She mainly covers topics such as blogging, digital marketing, and self-education. In her free time, she practices yoga and also travels.
]]></content:encoded></item><item><title><![CDATA[Overcoming The Challenges Of Freelancing: An Ultimate Guide]]></title><description><![CDATA[This ultimate guide is for you if you're thinking of becoming a gig worker, starting a side hustle, or researching your options. ]]></description><link>https://www.htwlaw.ca/post/overcoming-the-challenges-of-freelancing-an-ultimate-guide</link><guid isPermaLink="false">63f5a1f74292c49d5644f436</guid><category><![CDATA[Employment Contract]]></category><pubDate>Sun, 05 Mar 2023 08:56:37 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/24334f_db5d538b5ef44d15a634259ffb19c487~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Guest Post</dc:creator><content:encoded><![CDATA[This complete guide will give you expert insights and guidance on everything freelancing. This ultimate guide is for you if you're thinking of becoming a gig worker, starting a side hustle, or researching your options.
 
<figure><img src="https://static.wixstatic.com/media/24334f_db5d538b5ef44d15a634259ffb19c487~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
<hr>
An Article from Our <a href="#9evhf" rel="noopener noreferrer">American Contributor</a> 
<hr>
There are a lot of challenges that freelancers have to face during their work life. According to <a href="https://techjury.net/#gref" target="_blank">Techjury</a>, there are almost 1.57 billion freelancers in the world. Out of this 47% global workforce, almost all of them face different issues and challenges. These challenges are finding new projects, time management, retaining customers, etc.
<figure><img src="https://static.wixstatic.com/media/24334f_c01f7a3e282e446b81d553571537d116~mv2.png/v1/fit/w_1000,h_576,al_c,q_80/file.png"alt="challenges faced by gig workers and freelancers"></figure>
 
You may want to take a look at the following articles to learn more about legal protections available to <a href="https://www.htwlaw.ca/employment-contract" target="_blank">Independent Contractors</a>, <a href="https://en.wikipedia.org/wiki/Gig_worker" target="_blank">Gig workers</a> and <a href="https://en.wikipedia.org/wiki/Freelancer" target="_blank">freelancers</a> in Ontario:

- <a href="https://www.htwlaw.ca/post/case-update-on-heller-v-uber-technologies-are-uber-drivers-employees-or-independent-contractors#viewer-9or84" target="_blank">Case Update on Heller v. Uber Technologies - Are Uber Drivers Employees or Independent Contractors?</a> 

- <a href="https://www.htwlaw.ca/post/are-you-a-contractor-or-an-employee" target="_blank">Are you A Contractor or An Employee?</a>
 
Let's have a look at some most common challenges faced by freelancers and how you can overcome them:
<ol>
<li><a href="#dd56k" rel="noopener noreferrer">Time Management Tips for Freelancers / Gig Workers</a> </li>
<li><a href="#avtsr" rel="noopener noreferrer">Tips for Finding Suitable Gigs and Jobs</a> </li>
<li><a href="#du7vc" rel="noopener noreferrer">Tips for Marketing Your Skills and Talent</a> </li>
<li><a href="#1lp95" rel="noopener noreferrer">Tips for Negotiating Rates and Getting Paid</a> </li>
<li><a href="#1gdsp" rel="noopener noreferrer">Legal Protection for Freelancers / Gig Workers in USA</a> </li>
<li><a href="#7kf1k" rel="noopener noreferrer">Legal Protection for Freelancers / Gig Workers in Ontario</a> </li>
<li><a href="#dphp1" rel="noopener noreferrer">Other Legal Considerations</a> </li>
<li><a href="#91kv9" rel="noopener noreferrer">While Summing It Up…</a> </li>
</ol>
 
<h2>1. Time Management Tips for Freelancers / Gig Workers</h2>
 
<figure><img src="https://static.wixstatic.com/media/757fdb55710742188f13a137cddb906a.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Time Management Tips for Freelancers / Gig Workers"></figure>
 
As a freelancer, managing your time effectively can be challenging. According to a study by the <a href="https://financesonline.com/freelance-statistics/" target="_blank">Freelancers Union</a>, 46% of freelancers say that their biggest challenge is finding a balance between work and personal life. In addition, 42% of freelancers report that they struggle with time management, which can lead to missed deadlines, lost opportunities, and burnout.
 
To help you overcome these challenges, we've compiled some time management tips for freelancers. These tips can help you maximize your productivity, improve your work-life balance, and achieve your goals.
 
<h3>Set Specific Goals</h3>
<h3></h3>
Set specific, measurable, achievable, relevant, and time-bound (SMART) goals for your work. Write them down and refer to them regularly. This will help you stay focused and motivated.
 
<h3>Create a Schedule</h3>
<figure><img src="https://static.wixstatic.com/media/24334f_fcc710fa08d142f780efe28527be7a49~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Gig works should Create a Schedule"></figure>
 <a href="https://www.pexels.com/photo/photo-of-planner-and-writing-materials-760710/" target="_blank">Image Source</a>
Create a daily or weekly schedule that includes specific work hours. Set aside time for breaks, exercise, and other personal activities. This will help you maintain a healthy work-life balance.
 
<h3>Prioritize Your Tasks</h3>
 
Identify the most important tasks that need to be completed and prioritize them. Use a task management tool to keep track of your to-do list and deadlines. This will help you stay on top of your workload.
 
<h3>Minimize Distractions</h3>
 
Minimize distractions during your work hours by turning off notifications, closing unnecessary tabs, and working in a quiet and comfortable space. This will help you stay focused and avoid burnout.
 
<h3>Take Breaks</h3>
 
<figure><img src="https://static.wixstatic.com/media/11062b_2a8387dd99ee4eada1544742459461a2~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Gig workers should Take Breaks"></figure>
 
Take regular breaks to recharge and avoid burnout. Taking short breaks can help improve your productivity and focus.
 
<h3>Automate Repetitive Tasks</h3>
 
Use tools or software to automate repetitive tasks such as invoicing, accounting, and social media scheduling. This will help you save time and streamline your workflow.
 
<h3>Delegate Tasks</h3>
<figure><img src="https://static.wixstatic.com/media/24334f_2d334473310b4f45be34c1093bf41469~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="gig workers should Delegate Tasks"></figure>
<a href="https://www.pexels.com/photo/cheerful-multiethnic-students-having-high-five-with-teacher-5940841/" target="_blank">Image Source</a>
If you have a lot of work, consider delegating some tasks to others. You can hire other freelancers or virtual assistants to help with non-core tasks. This will help you focus on your core strengths and increase your productivity.
 
<h3>Track Your Time</h3>
 
Use time-tracking tools to monitor the time you spend on each task. This will help you identify areas where you can improve your productivity and stay on top of your deadlines.
 
By implementing these time management tips, freelancers can better manage their time, increase their productivity, and achieve their goals. As a result, they can enjoy a better work-life balance, reduce stress, and improve their overall well-being.
<hr>
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/491d2c_ec5537edd2c54e01997917266d9aa808~mv2.png/v1/fit/w_962,h_154,al_c,q_80/file.png"alt="contact htw law - employment lawyer for wrongful dismissal help"></figure>
<hr>
 
<h2>2. Tips for Finding Suitable Gigs and Jobs</h2>
 
<figure><img src="https://static.wixstatic.com/media/11062b_07e7bfd3e3cf49f6a98b2c9fce867079~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Tips for Finding Suitable Gigs and Jobs"></figure>
 
As a freelancer, finding suitable jobs that match your skills and talent can be a challenging task. According to a survey by <a href="https://www.freelancermap.com/blog/major-challenges-survey/" target="_blank">FreelancerMap</a>, 56% of freelancers say that finding new projects is their biggest challenge. In addition, 31% of freelancers report that they struggle to find high-quality clients who are willing to pay them fairly.
To help you overcome these challenges, we've compiled some tips for finding suitable jobs as a freelancer. These tips can help you identify your core strengths, showcase your talents, and attract high-quality clients.
 
<h3>Identify Your Niche</h3>
 
<a href="https://www.forbes.com/sites/johnrampton/2017/11/07/a-5-step-formula-to-find-your-niche/?" target="_blank">Identify your niche</a> or core strengths, and focus on jobs that align with your skills and talent. This will help you stand out from the competition and attract clients who are looking for your specific expertise.
 
<h3>Build a Strong Online Presence</h3>
 
Build a strong online presence through your website, social media, and other online platforms. Showcase your work, your skills, and your personality. This will help you attract high-quality clients who are looking for a reliable and trustworthy freelancer.
<h3></h3>
<h3>Network with Other Freelancers</h3>
 
<figure><img src="https://static.wixstatic.com/media/24334f_ca33a2ef94a340aca7023775dc846896~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Gig workers should Network with Other Freelancers"></figure>
<a href="https://www.pexels.com/photo/ferris-wheel-at-night-2911364/" target="_blank">Image Source</a>
Join online communities, attend events and network with other freelancers and gig workers in your industry. This will help you build relationships, learn new skills, and find new <a href="https://www.htwlaw.ca/get-my-job-back-after-termination" target="_blank">job opportunities</a>.
 
<h3>Use Freelance Job Boards</h3>
 
Use freelance job boards such as <a href="https://www.upwork.com/hire/" target="_blank">Upwork</a>, <a href="https://www.freelancer.com" target="_blank">Freelancer</a>, and <a href="https://www.fiverr.com/" target="_blank">Fiverr</a> to find suitable jobs that match your skills and talent. Make sure to optimize your profile and proposals to stand out from the competition.
 
<h3>Cold Pitch to Potential Clients</h3>
 
Identify potential clients who are a good fit for your skills and talent, and send them a <a href="https://www.forbes.com/sites/forbesbusinessdevelopmentcouncil/2020/05/18/15-effective-ways-to-personalize-a-sales-pitch" target="_blank">personalized pitch</a>. Make sure to highlight your strengths and show how you can add value to their business.
<figure><img src="https://static.wixstatic.com/media/11062b_ea4ed6f959884251be4d31877afd7ea5~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Cold Pitch - an important step for gig workers to find clients and gigs"></figure>
 
<h3>Ask for Referrals</h3>
 
Ask your current clients for referrals to other potential clients who may be a good fit for your skills and talent. This can help you expand your network and find new job opportunities.
 
By following these tips, freelancers can find suitable jobs that match their skills and talent, attract high-quality clients, and build a successful freelance career.
 
 
<h2>3. Tips for Marketing Your Skills and Talent</h2>
 
<figure><img src="https://static.wixstatic.com/media/11062b_c343dcb2b2a24101bae1b7eacc53b16c~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Tips for Marketing Your Skills and Talent"></figure>
 
As a freelancer / gig worker, it's essential to market your skills and talent effectively to attract clients and grow your business. According to a <a href="https://bloggingwizard.com/freelancing-statistics/" target="_blank">survey by PayPal</a> and Intuit, 53% of freelancers say that marketing is a major challenge in their business.
 
To help you overcome this challenge, we've compiled some tips to market your skills and talent effectively as a freelancer / gig worker. These tips can help you reach new clients, stand out from the competition, and build a strong reputation in your industry.
 
<h3>Define Your Unique Selling Proposition</h3>
 
Define your <a href="https://en.wikipedia.org/wiki/Unique_selling_proposition" target="_blank">unique selling proposition</a> (USP) to differentiate yourself from the competition. Identify what sets you apart from other freelancers and gig workers, and use this as your marketing message to attract clients who are looking for your specific expertise.
 
<h3>Create a Portfolio</h3>
 
<figure><img src="https://static.wixstatic.com/media/24334f_78981dcc6b8b4cd8b600991dfd3cdd2a~mv2.png/v1/fit/w_1000,h_675,al_c,q_80/file.png"alt="gig workers should Create a Portfolio"></figure>
<a href="https://static.startuptalky.com/2022/02/Freelance-Portfolio-StartupTalky.jpg" target="_blank">Image Source</a>
<a href="https://www.wix.com/blog/creative/2018/04/how-to-make-online-design-portfolio-guide/" target="_blank">Create a portfolio</a> that showcases your best work and highlights your skills and talent. Use this portfolio to demonstrate your capabilities to potential clients and build trust with them.
 
<h3>Build a Strong Online Presence</h3>
 
Build a strong online presence through your website, social media, and other online platforms. Use these platforms to share your work, engage with potential clients, and build your brand.
 
<h3>Ask Colleagues To Market You</h3>
 
Network with other freelancers in your industry and collaborate on projects. This can help you expand your reach and attract new clients through word-of-mouth referrals.
 
<h3>Offer Free Samples or Trials</h3>
 
<figure><img src="https://static.wixstatic.com/media/11062b_e1765be8b74f4a6fa50c652fbf37710e~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="gig workers should Offer Free Samples or Trials"></figure>
 
Offer free samples or trials of your work to potential clients to demonstrate your skills and build trust. This can help you attract new clients and build a loyal customer base.
 
<h3>Participate in Online Communities</h3>
 
Participate in online communities related to your industry, such as forums, social media groups, and online events. This can help you connect with potential clients and showcase your expertise.
 
These tips can help freelancers to effectively market their skills and talent, attract new clients, and grow their businesses.
<hr>
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/73d2cb_3af18cfe049e44a5bac8cff0e3cd5865~mv2.jpg/v1/fit/w_740,h_384,al_c,q_80/file.png"></figure>
<hr>
 
<h2>4. Tips for Negotiating Rates and Getting Paid</h2>
 
<figure><img src="https://static.wixstatic.com/media/ed63990671080641484e6d8b3c200a69.jpg/v1/fit/w_616,h_232,al_c,q_80/file.png"alt="Tips for Negotiating Rates and Getting Paid"></figure>
 
According to a <a href="https://bloggingwizard.com/freelancing-statistics/" target="_blank">survey by PayPal and Intuit</a>, 44% of freelancers say that negotiating payment terms and rates is a significant challenge in their business. However, effective negotiation and payment processes are crucial to building a sustainable freelancing career.
 
To help freelancers overcome these challenges, we've compiled some tips for negotiating rates and ensuring timely payments. These tips can help freelancers establish fair payment terms with clients and streamline their payment processes.
 
<h3>Research Industry Standard Rates</h3>
<h3></h3>
Before negotiating rates with clients, research <a href="https://www.lawinsider.com/dictionary/industry-standard-rate" target="_blank">industry standard rates</a> to ensure that you are offering a fair and competitive rate. Websites such as <a href="https://www.glassdoor.com" target="_blank">Glassdoor</a> and <a href="https://www.payscale.com/" target="_blank">Payscale</a> can help you determine the average rates for your services in your location.
 
<h3>Highlight Your Value</h3>
 
When negotiating rates, focus on the value you provide to the client rather than the time it takes to complete the work. Highlight your skills, expertise, and experience to justify your rates.
<h3></h3>
<h3>Set Clear Payment Terms</h3>
<figure><img src="https://static.wixstatic.com/media/24334f_57e4b5ae1c12444dac09c54fddc4fac6~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
<a href="https://www.pexels.com/photo/crop-businessman-giving-contract-to-woman-to-sign-3760067/" target="_blank">Image Source</a>
Set <a href="https://www.fool.com/the-ascent/small-business/accounting/articles/payment-terms/" target="_blank">clear payment terms</a> in your <a href="https://www.htwlaw.ca/employment-contract" target="_blank">contract</a>, including the payment amount, due date, and method of payment. This can help you avoid confusion and ensure timely payments.
 
<h3>Request an Upfront Deposit</h3>
 
Request an upfront deposit from clients to cover your initial expenses and confirm their commitment to the project. This can help you avoid payment issues later on.
 
<h3>Follow Up on Late Payments</h3>
 
If a client is late on a payment, follow up with a polite email or phone call to remind them of the payment due date. If the payment is significantly overdue, consider imposing late payment fees or ceasing work until payment is received.
 
<h3>Use Online Payment Platforms</h3>
 
<figure><img src="https://static.wixstatic.com/media/11062b_a2cdd2294cc54e69b1217bc9b997835e~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
Use online payment platforms such as <a href="https://www.paypal.com" target="_blank">PayPal</a>, <a href="https://stripe.com" target="_blank">Stripe</a>, or <a href="https://wise.com" target="_blank">Wise</a> to streamline your payment processes and avoid payment delays or disputes.
 
By following these tips, freelancers and gig workers can negotiate fair rates and establish clear payment terms with clients, ensuring timely and secure payments for their work.
 
 
<h2>5. Legal Protection for Freelancers / Gig Workers in USA</h2>
 
<figure><img src="https://static.wixstatic.com/media/11062b_9be88ec50ac6415a9e25a7c0504dedf5~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Legal Protection for Freelancers / Gig Workers in USA"></figure>
 
According to a study by the Freelancers Union in coordination with <a href="https://www.crowdwriter.com/coursework-help" target="_blank">coursework helper</a>, 71% of freelancers have had trouble getting paid, and 54% have had trouble with a client refusing to pay for work. To protect themselves and their business, freelancers should be aware of their legal rights and the laws that apply to their work.
 
<h3>Freelance Isn't Free Act</h3>
 
The <a href="https://www.nyc.gov/site/dca/about/freelance-isnt-free-act.page" target="_blank">Freelance Isn't Free Act</a> is a law that provides legal protection for freelancers in New York City. The law requires clients to provide freelancers with a written contract, including the payment amount, due date, and method of payment. It also establishes penalties for clients who fail to pay freelancers on time.
 
<h3>Independent Contractor Laws</h3>
<figure><img src="https://static.wixstatic.com/media/11062b_c256aa4748c24bd28445029f478eca3b~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Independent Contractor Laws that protects gig workers and freelancers"></figure>
Freelancers and gig workers are customarily classified as independent contractors, which means they are not employees and are not entitled to <a href="https://www.htwlaw.ca/contract-work-count-as-employment" target="_blank">certain employment</a> benefits. However, there are state and federal laws that provide <a href="https://en.wikipedia.org/wiki/Independent_contracting_in_the_United_States" target="_blank">legal protection for independent contractors</a>, including the right to organize and unionize.
 
<h3>Copyright Law</h3>
 
<a href="https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States" target="_blank">Copyright law</a> protects the creative work of freelancers, including writing, photography, and design. Freelancers can register their work with the U.S. Copyright Office to establish legal proof of ownership and protect against infringement.
 
<h3>Small Claims Court</h3>
<figure><img src="https://static.wixstatic.com/media/11062b_2d60145a58214f47a9115d8391c12c77~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Small Claims Court in USA for gig workers"></figure>
If a client refuses to pay for work, freelancers can take legal action in small claims court. Small claims court is a low-cost and efficient way to resolve disputes over small amounts of money, typically up to $10,000 in many states including, but not limited to, <a href="https://www.dca.ca.gov/publications/small_claims/basic_info.shtml" target="_blank">California</a> and <a href="https://www.civillawselfhelpcenter.org/self-help/small-claims/overview-of-small-claims/215-overview-of-small-claims" target="_blank">Nevada</a>.
 
Some Worthy Resources for Legal Protection of Freelancers in the USA:
<ol>
<li>Freelancers Union: The <a href="https://www.freelancersunion.org/" target="_blank">Freelancers Union</a> provides resources and advocacy for freelancers, including legal advice and support.</li>
<li>National Federation of Independent Business: The <a href="https://www.nfib.com/" target="_blank">National Federation of Independent Business</a> provides legal support and advocacy for small business owners and independent contractors.</li>
<li>U.S. Copyright Office: The <a href="https://www.copyright.gov/" target="_blank">U.S. Copyright Office</a> provides information and resources for registering creative work and protecting intellectual property.</li>
</ol>
By being aware of legal protection laws for freelancers / gig workers and utilizing resources and support, freelancers can protect themselves and their businesses from legal issues and disputes.
 
<h2>6. Legal Protection Laws for Freelancers In Ontario</h2>
 
<figure><img src="https://static.wixstatic.com/media/11062b_8f882a9634ee4a18acd35e1db73df829~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
 
Let's have a look at some <a href="https://www.htwlaw.ca/employment-lawyer" target="_blank">protection laws</a> and facilities for freelancers in Ontario. Gig workers and freelance workers in Ontario have legal protections as well that are specific to the province.
 
You may want to take a look at employment contract related blog post at this link:
 
<a href="https://www.htwlaw.ca/blog/categories/employment-contract" target="_blank">https://www.htwlaw.ca/blog/categories/employment-contract</a> 
 
<h3>Employee Misclassification</h3>
 
In Ontario, employers are required to classify their workers correctly as either employees or independent contractors. <a href="https://www.htwlaw.ca/employment-contract" target="_blank">Misclassifying</a> an employee as an independent contractor can result in the employer being required to pay back wages, benefits, and taxes, as well as penalties and interest.
 
Misclassification happens more often than you may expect. It is sometimes the result of poor contract drafting. If the parties intend to form an independent contractor agreement, it is strongly advised that the contract be drafted by an experienced employment lawyer. A law firm like <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">HTW Law - Employment Lawyer</a> can help. 
 
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
 
<h3>Workplace Safety and Insurance Board (WSIB)</h3>
<figure><img src="https://static.wixstatic.com/media/491d2c_83ae4448862945f8bded6a2ab7d3f405~mv2.jpg/v1/fit/w_412,h_240,al_c,q_80/file.png"alt="WSIB for gig workers and freelancers"></figure>
In Ontario, most employers are required to have workers' compensation coverage through the <a href="https://www.wsib.ca/en" target="_blank">WSIB</a>. This coverage provides benefits to workers who are injured or become ill as a result of their work.
 
Companies attempt in Contracting out work and WSIB obligations DON'T always work.
 
An independent operator/contractor must have mandatory WSIB coverage; nevertheless, in the event of an accident, WSIB may decide that the company is accountable for the individual / contractor and consider him or her an employee.
 
To reduce an employer’s exposure to WSIB costs/penalties, he or she is encouraged to clarify the status of the independent operator with WSIB before retaining the contractor by having both the employer company and the independent operator complete a WSIB questionnaire form, both signing it and forwarding it to WSIB for a judgement.
 
<a href="https://www.cfib-fcei.ca/en/tools-resources/regulatory-compliance/contracting-out-your-work-and-wsib-obligations" target="_blank">Click here</a> to view an article by <a href="https://www.cfib-fcei.ca/en/" target="_blank">Canadian Federation Of Independent Business</a> (CFIB) to learn more.
 
<h3>Ontario Human Rights Code</h3>
<figure><img src="https://static.wixstatic.com/media/491d2c_b107ecfa65b1425396c12f41523e57a3~mv2.jpg/v1/fit/w_800,h_151,al_c,q_80/file.png"alt="HRTO protects all workers including gig workers and freelancers"></figure>
The Ontario <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Human Rights Code</a> prohibits discrimination based on a worker's race, gender, age, disability, and other factors. This means that gig and freelance workers are entitled to the same protections as other workers in Ontario.
 
You might want to take a look at this page to learn more about <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment and discrimination</a>, along with the <a href="https://www.htwlaw.ca/harassment-and-discrimination-faqs" target="_blank">legal protections</a> available to you:
 
<a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">https://www.htwlaw.ca/workplace-harassment-and-discrimination</a> 
 
You may also want to take a look at workplace harassment and workplace discrimination related blog post at this link:
 
<a href="https://www.htwlaw.ca/blog/categories/workplace-discrimination" target="_blank">https://www.htwlaw.ca/blog/categories/workplace-discrimination</a> 
 
If you have been a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">victim of workplace discrimination</a>, DON’T take it for granted. Open up and let a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">harassment lawyer</a> or a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination lawyer</a> assists you. A law firm like <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">HTW Law - Employment Lawyer</a> can help.
 
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
 
 
<h3>Pay Equity and Equal Pay For Equal Work</h3>
<figure><img src="https://static.wixstatic.com/media/491d2c_c61dae386e2c4c75a0f5ce2d302a8bc8~mv2.jpg/v1/fit/w_699,h_326,al_c,q_80/file.png"alt="employment standards act"></figure>
The <a href="https://www.ontario.ca/laws/statute/90p07" target="_blank">Pay Equity Act</a> in Ontario requires that all employers ensure that their employees are paid equally for work of equal value, regardless of their gender.
 
The <a href="https://www.ontario.ca/laws/statute/00e41" target="_blank">Employment Standards Act</a>'s "<a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/equal-pay-equal-work" target="_blank">Equal Pay for Equal Work</a>" provisions require that men and women be paid equally while doing the same or substantially the same work. 
 
Please <a href="https://www.payequity.gov.on.ca/en/LearnMore/Pages/Pay-Equity-v-Equal-Pay.aspx" target="_blank">click here</a> to view the <a href="https://www.payequity.gov.on.ca/en" target="_blank">Pay Equity Office</a>'s comprehensive comparison of the two. 
 
<h3>Case law and Digital Platform Workers' Rights Act, 2022</h3>
<figure><img src="https://static.wixstatic.com/media/11062b_82a894387a9f4480b5558e0d32503d23~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Digital Platform Workers' Rights Act, 2022 protects gig workers and freelancers"></figure>
 
<a href="#fjtju" rel="noopener noreferrer">As mentioned above</a>, companies often attempt to contract out their legal obligations under Employment related legislation. <a href="https://www.htwlaw.ca/employment-contract" target="_blank">Independent contractors</a> are frequently found to be <a href="https://www.htwlaw.ca/employment-contract" target="_blank">misclassified</a>, denied of their employment law benefits reserved for employees. <a href="https://www.htwlaw.ca/employment-contract" target="_blank">Misclassifying</a> an employee as an independent contractor may oblige an employer to pay back wages, benefits, and taxes, plus fines and interest.
 
You might want to take a look at this blog post regarding <a href="https://www.htwlaw.ca/employmentlaw-misclassification" target="_blank">misclassification</a> and relevant case law in depth:
 
<a href="https://www.htwlaw.ca/post/case-update-on-heller-v-uber-technologies-are-uber-drivers-employees-or-independent-contractors" target="_blank">Case Update on Heller v. Uber Technologies - Are Uber Drivers Employees or Independent Contractors?</a>
 
The <a href="https://www.ontario.ca/laws/statute/22d07" target="_blank">Digital Platform Workers' Rights Act, 2022</a>, passed into law on April 11, 2022, also provides some legal protections to freelancers and gig workers. This Act aims to regulate gig workers and freelancers who use apps to get jobs like transportation or food delivery for companies such as Uber, Door Dash, and Instacart. They are typically independent contractors who are not covered by the <a href="https://www.ontario.ca/laws/statute/00e41" target="_blank">Employment Standards Act</a> (ESA).
 
The Digital Platform Workers' Rights Act, 2022 creates rights for digital platform workers (such as right to minimum wage, Right to notice of removal, etc...), establishes policies, procedures, and regulations for record-keeping, director accountability, complaints and enforcement, collections, and offences and prosecutions.
 
The Act will take effect on a date to be determined by proclamation of the Lieutenant Governor. 
 
<a href="https://www.htwlaw.ca/post/case-update-on-heller-v-uber-technologies-are-uber-drivers-employees-or-independent-contractors#viewer-9or84" target="_blank">Click here</a> to learn more about the Digital Platform Workers' Rights Act 2022.
 
It is important for gig and freelance workers in Ontario to be aware of these legal protections and to know their rights as workers. 
 
However, employment law related to misclassification and Independent Workers' Rights are highly technical and often fairly complicated. You are well advised to <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">consult with an experienced employment lawyer</a>. A law firm like <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">HTW Law - Employment Lawyer</a> can help. 
 
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
<h2>
7. Other Legal Considerations </h2>

Legal issues can be a major concern for freelancers and gig workers who work independently without the protection of an employer. One important aspect to consider is the structure of the business (i.e. <a href="https://smallbusiness.chron.com/types-business-formations-74118.html" target="_blank">business formation</a>), whether it should be a sole proprietor, LLC, or corporation. 
 
Freelancers and gig workers should also ensure they have proper <a href="https://www.htwlaw.ca/employment-contract" target="_blank">contracts</a> in place with clients, outlining the scope of work, payment terms, and intellectual property rights. 
 
It's also crucial to understand tax obligations and ensure compliance with local, provincial / state, and federal laws. Additionally, it's important to protect personal assets by obtaining liability insurance. Freelancers and gig workers should stay informed about legal changes that may impact their business and seek the advice of a lawyer if necessary. By addressing these legal considerations, freelancers and gig workers can protect themselves and their businesses.
 
You don't have to fight the battle alone. Speaking with an <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">employment lawyer</a> who is familiar with the laws and regulations governing gig workers, digital platform workers, and freelancers will go a long way. If you are in doubt, it's essential that you reach out for help as soon as possible right away. 
 
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/73d2cb_3af18cfe049e44a5bac8cff0e3cd5865~mv2.jpg/v1/fit/w_740,h_384,al_c,q_80/file.png"></figure>
<figure><img src="https://static.wixstatic.com/media/491d2c_ec5537edd2c54e01997917266d9aa808~mv2.png/v1/fit/w_962,h_154,al_c,q_80/file.png"alt="contact htw law - employment lawyer for wrongful dismissal help"></figure>
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<figure><img src="https://static.wixstatic.com/media/24334f_58db097639a8424285308ff88cfb82ba~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
 <a href="https://www.pexels.com/search/legal%20post/" target="_blank">Source</a>

<h2>8. While Summing It Up…</h2>
 
Freelancing can be an exciting and rewarding career path, but it also comes with its fair share of challenges. As a freelancer / gig worker, you may struggle with time management, finding suitable jobs, and effectively marketing your skills and talent. However, with the right strategies and tools, you can overcome these challenges and build a successful freelance career.
 
I hope this post has provided you with meaningful insights into how you overcome freelancing challenges. Feel free to share your thoughts in the comments sections below.
 
 
<hr>
 
<h2>Author Bio:</h2>
 
Melissa Calvert is currently working as assistant researcher at crowdwriter.com. She was previously associated with a reputed firm as an SEO Analyst. Melissa likes to travel, and she often travels solo to explore different cultures of various places. In her leisure time, you will find her reading books and browsing technological advancements.
 
<figure><img src="https://static.wixstatic.com/media/24334f_f1a5591b713e4cadb4a5ef5ea7f0cd90~mv2.jpg/v1/fit/w_451,h_526,al_c,q_80/file.png"></figure>
 
<h2>Sources:</h2>
<ol>
<li><a href="https://www.nyc.gov/site/dca/about/freelance-isnt-free-act.page" target="_blank">https://www1.nyc.gov/site/dca/about/freelance-isnt-free-act.page</a> </li>
<li><a href="https://www.sba.gov/business-guide/manage-your-business/stay-legally-compliant" target="_blank">https://www.sba.gov/business-guide/manage-your-business/stay-legally-compliant</a> </li>
<li><a href="https://www.copyright.gov/circs/circ01.pdf" target="_blank">https://www.copyright.gov/circs/circ01.pdf</a> </li>
<li><a href="https://www.ohrc.on.ca/en/ontario-human-rights-code" target="_blank">http://www.ohrc.on.ca/en/ontario-human-rights-code</a> </li>
<li><a href="https://www.ontario.ca/laws/statute/00e41" target="_blank">https://www.ontario.ca/laws/statute/00e41</a> </li>
</ol>
<h3></h3>]]></content:encoded></item><item><title><![CDATA[7 Simple Tips to Help You Win a Wrongful Dismissal Trial]]></title><description><![CDATA[This primer will show you pro insights and tips on wrongful dismissal and wrongful termination that you might have missed otherwise.]]></description><link>https://www.htwlaw.ca/post/7-simple-tips-to-help-you-win-a-wrongful-dismissal-trial</link><guid isPermaLink="false">63f0c2193e978b0dcafb4288</guid><category><![CDATA[Wrongful Dismissal]]></category><pubDate>Sat, 18 Feb 2023 22:32:33 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/b18419_343c0e3ab61846dab089fbc51c1fd6dc~mv2.jpg/v1/fit/w_800,h_533,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Guest Post</dc:creator><content:encoded><![CDATA[This primer will show you pro insights and tips that you might have missed otherwise.
If you want to learn more about <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">wrongful dismissal</a> but don't have a lot of time, this high-level summary is for you.
<figure><img src="https://static.wixstatic.com/media/b18419_343c0e3ab61846dab089fbc51c1fd6dc~mv2.jpg/v1/fit/w_800,h_533,al_c,q_80/file.png"alt="7 Simple Tips to Help You Win a Wrongful Dismissal Trial"></figure>
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An article from our <a href="#ei3m2" rel="noopener noreferrer">Canadian Contributor</a>.
<hr>
Employment relationships are a vital aspect of the Canadian economy, providing financial stability and contributing to overall economic growth. Unfortunately, these relationships don't always work out and employees may face wrongful dismissal. <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">Wrongful termination</a> can be a challenging experience, especially if the employee feels they were unfairly terminated. In Ontario, employees who have been wrongfully dismissed can take their case to court. This article explores seven simple tips that can help you win a wrongful dismissal trial in Ontario.
 
To increase your chances of winning a wrongful dismissal trial, it is crucial to understand the relevant Ontario employment law and how it applies to your case. This includes the legal entitlements of employees who have been wrongfully dismissed and the damages they can claim. In addition to understanding the law, you need to gather evidence, follow proper procedures, document all damages, hire an employment lawyer, be prepared for mediation, and stay focused throughout the process. 
 
Let's explore these tips:
<ol>
<li><a href="#642qa" rel="noopener noreferrer">Educate Yourself on Employment Law Related to Wrongful Dismissal</a></li>
<li><a href="#eq9j5" rel="noopener noreferrer">Gather Evidence for your Wrongful Dismissal Case</a></li>
<li><a href="#49ldo" rel="noopener noreferrer">Follow Proper Procedures in a Wrongful Termination Case</a></li>
<li><a href="#1kr1c" rel="noopener noreferrer">Document All Damages Caused by the Unfair Termination</a></li>
<li><a href="#1l6ne" rel="noopener noreferrer">Hire an Employment Lawyer to Fight For Your Unfair Termination</a></li>
<li><a href="#9hbbj" rel="noopener noreferrer">Be prepared for mediation If You have Been Fired Unfairly</a></li>
<li><a href="#4megk" rel="noopener noreferrer">Don't give up</a></li>
</ol>
 
<h2>1. Educate Yourself on Employment Law Related to Wrongful Dismissal</h2>
 
<figure><img src="https://static.wixstatic.com/media/b18419_32de7f95120e43e58ba7690dcbc85eb5~mv2.jpg/v1/fit/w_800,h_533,al_c,q_80/file.png"alt="Educate Yourself on Employment Law related to wrongful dismissal"></figure>
 
One of the essential steps in winning a wrongful dismissal trial is to have a good understanding of the law. “For instance, the <a href="https://www.ontario.ca/laws/statute/00e41" target="_blank">Employment Standards Act</a> of Ontario provides employees with termination pay and severance pay (if applicable) if they are terminated without wilful misdoncut,” notes Kevin Parker, a legal writer at <a href="https://www.solidessay.com/our-services/capstone-project-essential-capstone-project-guidelines-for-students" target="_blank">Capstone Project</a> and <a href="https://www.confidentwriters.com/blog/how-to-write-tok-essay/" target="_blank">ConfidentWriters</a>. Employees in Ontario may also sue for wrongful dismissal under common law, where they are entitled to reasonable notice or pay in lieu of notice if they are terminated without just cause. The leading case on this topic is <a href="https://canlii.ca/t/gghxf" target="_blank">Bardal v. Globe & Mail Ltd.</a>, which establishes the principle that the notice period must be determined based on the employee's length of service, age, and position. Understanding the legal entitlements of wrongfully dismissed employees can help you build a strong case.
 
You may want to take a look at the following articles to learn more about the bardal factors:
 
<a href="https://www.htwlaw.ca/post/a-case-law-analysis-of-how-much-notice-is-reasonable-following-termination-without-cause" target="_blank">A Case Law Analysis of How Much Notice Is Reasonable Following Termination Without Cause?</a> 
 
<a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">Wrongful Dismissal Ultimate Guide</a> 
 
<h2>2. Gather Evidence for your Wrongful Dismissal Case</h2>
 
<figure><img src="https://static.wixstatic.com/media/b18419_031b6a5495a940f2971da65b523ed2b6~mv2.jpg/v1/fit/w_800,h_533,al_c,q_80/file.png"alt="Gather Evidence for your Wrongful Dismissal Case"></figure>
 
Evidence is essential in any legal proceeding, and a wrongful dismissal trial is no exception. You need to gather all relevant documentation, such as <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contracts</a>, emails, and performance reviews, and your job search record after the termiantion. This evidence can help support your case and prove that you have been <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">unfairly terminated</a>. The case law on wrongful dismissal, such as <a href="https://canlii.ca/t/1fqxh" target="_blank">Wallace v. United Grain Growers Ltd.</a>, establishes that an employer's conduct during the dismissal process can affect the damages awarded to an employee.
 
On the other hand, an employee who fails to mitigate their damages by seeking alternative employment may have their damages reduced in some situations. This is why it's imperative that you keep a meticulous job search journal. 
 
The most notable case in this area is <a href="https://canlii.ca/t/h3x8r" target="_blank">Brake v. PJ-M2R Restaurant Inc.</a>, wherein the Court of Appeal of Ontario held that while there's a general duty to mitigate damage, where a wrongfully dismissed employee is effectively forced to accept a much inferior position because no comparable position is available, the amount she earns in that position is not mitigation of damages and need not be deducted from the amount the employer must pay.
 
You may want to take a look at the following article to learn more about duty to mitigate damages and Extraordinary / Aggravated / Moral Damage In Wrongful Dismissal Cases:
 
<a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">Wrongful Dismissal Ultimate Guide</a> 
 
<h2>3. Follow Proper Procedures in a Wrongful Termination Case</h2>
 
<figure><img src="https://static.wixstatic.com/media/b18419_4559d7fb9a6d4deba18de4023118cba7~mv2.jpg/v1/fit/w_800,h_533,al_c,q_80/file.png"alt="Follow Proper Procedures in a wrongful dismissal case"></figure>
 
To win a wrongful dismissal trial, it is crucial to follow the proper procedures, which is governed by the Ontario <a href="https://www.ontario.ca/laws/regulation/900194" target="_blank">Rules of Civil Procedure</a>. This includes submitting a written complaint to your employer, attending any required meetings, and keeping detailed notes of all communications. Failure to follow proper procedures could result in your case being dismissed. 
 
The process could be highly technical and challenging, you may want to consult with an employment lawyer if you intend to sue for wrongful dismissal. HTW Law is experienced, and can help. <a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/491d2c_ec5537edd2c54e01997917266d9aa808~mv2.png/v1/fit/w_962,h_154,al_c,q_80/file.png"alt="contact htw law - employment lawyer for wrongful dismissal help"></figure>
<h2>4. Document All Damages Caused by the Unfair Termination</h2>
 
<figure><img src="https://static.wixstatic.com/media/b18419_e0fd96947c404277a0b09a7c8fb7ffbc~mv2.jpg/v1/fit/w_800,h_533,al_c,q_80/file.png"alt="Document All Damages Caused by the Unfair Termination"></figure>
 
When you are <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">wrongfully dismissed</a>, you may be entitled to compensation for lost wages and other damages. “To win your case, it is vital to document all damages that you have suffered as a result of your termination. This may include lost wages, benefits, bonuses, and other perks,” says Dave Webster, a legal case summaries writer at <a href="https://www.beestudent.com/blog/how-to-write-outline-in-mla-format/" target="_blank">MLA Format Writing</a> and <a href="https://www.paper-research.com/" target="_blank">Paper-Research</a>. The <a href="https://www.scc-csc.ca/home-accueil/index-eng.aspx" target="_blank">Supreme Court of Canada</a> in <a href="https://canlii.ca/t/1z469" target="_blank">Honda Canada Inc. v. Keays</a> established that employees are entitled to compensation for bad faith conduct during the dismissal process.
 
<h2>5. Hire an Employment Lawyer to Fight For Your Unfair Termination</h2>
 
<figure><img src="https://static.wixstatic.com/media/b18419_9ef34164137e4675b070ab72e62ed8d2~mv2.jpg/v1/fit/w_800,h_534,al_c,q_80/file.png"></figure>
 
Hiring an employment lawyer is crucial if you want to win a wrongful dismissal trial. An experienced employment lawyer can help you fight back and take control of your life once again. A qualified employment lawyer can help you navigate the legal system, provide you with legal advice, and represent you in court. They can also help you negotiate a settlement with your employer outside of court. 
 
If you've been terminated unfairly, it's essential that you reach out for help as soon as possible right away. You DON'T have to fight this alone. Don't wait!! Time is of the essence. A law firm like HTW Law can be of assistance.
No-Win-No-Fee for <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">wrongful dismissal cases</a>. <a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law if you have any inquiry regarding <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">wrongful dismissal</a> or you want to book an appointment for an no obligation <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">wrongful dismissal lawyer consultation</a>.
 
<h2>6. Be prepared for mediation If You have Been Fired Unfairly</h2>
 
<figure><img src="https://static.wixstatic.com/media/b18419_2a46c06a22124170af2ff8b0bf693171~mv2.jpg/v1/fit/w_800,h_534,al_c,q_80/file.png"alt="Be prepared for mediation If You have Been Fired Unfairly"></figure>
 
In Ontario, employees who have been wrongfully dismissed are required to participate in the Ontario <a href="https://www.ontario.ca/page/mandatory-mediation-civil-cases" target="_blank">Mandatory Mediation Program</a> if you are located in Toronto, Ottawa and Windsor before proceeding to a trial. Mediation is a process where a neutral third party helps you and your employer come to a settlement agreement. It is important to be prepared for mediation, as this can be a critical turning point in your case. Your lawyer can help you prepare for mediation and ensure that your rights are protected throughout the process.
 
If you cannot afford a lawyer, there are several resources available to help you prepare for mediation. The <a href="https://www.labour.gov.on.ca/" target="_blank">Ontario Ministry of Labour</a> offers a free mediation service to help employees and employers resolve disputes. The service is confidential and voluntary, and the mediator is a neutral third party who does not take sides. 
 
Having said that, the success rate and the settlement amount is often higher when an employment lawyer is involved, as the lawyer can demonstrate to your employer that he or she did something illegal. This can result in your employer offering a settlement, or offering you to have your job back. In fact, the back and forth <a href="https://en.wikipedia.org/wiki/Negotiation" target="_blank">negotiations</a> necessary to get you what you deserve is usually tedious and tactical.
 
An employment law firm like HTW Law is experienced and can help. <a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law for assistance and legal consultation.
 
<h2>7. Don't give up</h2>
 
<figure><img src="https://static.wixstatic.com/media/b18419_afd408145f434cd7917d1b35219303e4~mv2.jpg/v1/fit/w_800,h_533,al_c,q_80/file.png"alt="dont give up and keep fighting for your wrongful dismissal case"></figure>
 
Finally, it is important to remember that winning a <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">wrongful dismissal trial</a> can be a long and challenging process. It can take months or even years to resolve your case. During this time, it is important to stay focused, be patient, and don't give up. With the right legal representation and a strong case, you can win a wrongful dismissal trial.
 
In conclusion, winning a wrongful dismissal trial in Ontario requires a lot of work and preparation. You need to have a good understanding of the law, gather evidence, follow the proper procedures, document all damages, hire an employment lawyer, be prepared for mediation, and stay focused throughout the process. By following these simple tips, you can increase your chances of winning your case and getting the compensation that you deserve.
 
You know that you shouldn't have been fired from your job, but it can be overwhelming in fighting your employer alone. If you've been terminated unfairly, it's essential that you reach out for help as soon as possible right away. 
 
<a href="https://www.htwlaw.ca/contactus" target="_blank">Click here</a> to contact HTW Law - Employment Lawyer for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/73d2cb_3af18cfe049e44a5bac8cff0e3cd5865~mv2.jpg/v1/fit/w_740,h_384,al_c,q_80/file.png"></figure>
 
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Jeff Peters, a business strategist and writer at <a href="https://www.swiftpapers.com/" target="_blank">SwiftPapers</a> and <a href="https://ied.eu/blog/effective-grant-writing-tips-for-nonprofits/" target="_blank">Institute of Entrepreneurship Development</a>, devotes the majority of his free time to attending various tech and business conferences and providing consultation services to a variety of businesses. Additionally, he shares his insights by contributing articles to online magazines and blogs, such as <a href="https://www.globaltrademag.com/essential-tips-on-writing-international-trade-policy-op-eds" target="_blank">Global Trade Magazine</a>.
<hr>
]]></content:encoded></item><item><title><![CDATA[Knowing Your Rights As An LGBTQ+ Employee]]></title><description><![CDATA[What legal protection is available to LGBTQ+ employees in Canada against workplace harassment and workplace discrimination. More details.]]></description><link>https://www.htwlaw.ca/post/knowing-your-rights-as-an-lgbtq-employee</link><guid isPermaLink="false">63ac39776d3986ee24a59a48</guid><category><![CDATA[Workplace Harassment]]></category><category><![CDATA[Workplace Discrimination]]></category><pubDate>Fri, 06 Jan 2023 07:47:41 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/28454e_2ac2599e3bf64a968e57a5cf5deacc78~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Guest Post</dc:creator><content:encoded><![CDATA[In this day and age, it's assumed that LGBTQ+ employees in Canada have the same rights as every other person in the workplace. While there are laws that enshrine equality, they're not always upheld in the same way. As an LGBTQ+ person, you should know your rights in order to get the same treatment in your job. Here's what you need to know.

<figure><img src="https://static.wixstatic.com/media/28454e_2ac2599e3bf64a968e57a5cf5deacc78~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
<hr>
An article from our <a href="#8jm9n" rel="noopener noreferrer">American Contributor</a>.
<hr>
<h2>LGBTQ+ Rights In The Modern Workplace</h2>
 
<figure><img src="https://static.wixstatic.com/media/c98c1f9a215f49029f9e574a8a548168.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="LGBTQ+ Rights In The Modern Workplace"></figure>
 
In today's age, are LGBTQ+ workers treated equally? While the situation has improved a lot in recent years, it still isn't perfect. A recent online survey has seen that there is still some discrimination, and that hinders your work and productivity in your industry. 
 
For example, around three in ten respondents said they were reluctant to come out at work, as they were concerned about negative consequences. These include exclusion, harassment, and stopping their chances at advancement. 
 
Another study looked at CEOs in Canadian workplaces, as they hold a lot of power to improve LGBTQ+ rights. “There are many powerful CEOs who are discouraging advancements in rights, for several reasons” says legal writer Anna Marshall, from <a href="https://uk.eliteassignmenthelp.com/" target="_blank">Assignment Help</a> and <a href="https://ukservicesreviews.com/ukwritings/" target="_blank">UKWritings</a>. “These include believing they're not a good investment, catering to shareholders who aren't interested in them, and because they clash with their own beliefs.”

<h2>The Result of Discrimination</h2>
 
As a result of discrimination, LGBTQ+ workers aren't getting the same opportunities as their straight colleagues. Around two in five LGBTQ+ workers say that they have experienced <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a> at some point in their lives. That's a high number, and as such queer workers are at a real disadvantage still. 
 
You might want to take a look at a similar post regarding sexual harassment titled <a href="https://www.htwlaw.ca/post/legal-protections-available-against-sexual-harassment" target="_blank">Legal Protections Available Against Sexual Harassment</a>.

Around half of the respondents to the online survey said that they would come out at work, if they knew there would be no negative consequences. As such, we can see that change does need to happen to give LGBTQ+ workers the same rights as their straight counterparts. 
 
Similarly, queer workers should be able to get medicare products as other employees without discrimination. For an idea of what medicare products should look like, click here to <a href="https://assurance.com/medicare-products/" target="_blank">find a quote</a>.

<h2>The Law And Workplace Discrimination</h2>
 
<figure><img src="https://static.wixstatic.com/media/11062b_f51301a201244adda0742ea018c9f7dd~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="The Law And Workplace Discrimination"></figure>
 
What do current laws say about discrimination against LGBTQ+ people in the workplace? Since the amendment of the <a href="https://laws-lois.justice.gc.ca/eng/acts/h-6/" target="_blank">Canadian Human Rights Act</a> in 1996, <a href="https://www.webmd.com/sex-relationships/guide/sexual-orientation" target="_blank">sexual orientation</a> has become a protected class. 
 
Under the <a href="https://laws-lois.justice.gc.ca/eng/acts/h-6/" target="_blank">Canadian Human Rights Act</a>, you should have the same rights in the workplace as any other worker. Similar rights have been upheld by the Canadian Human Rights Commission, and the Canadian Charter of Rights and Freedoms. 
 
As your rights are enshrined in law, you have somewhere to start if you feel you are being discriminated against due to your sexual orientation. Typically, in the first instance you would go to your manager directly, or to your HR department if you have one. This should help correct the problem, as HR will understand that violating these rights is going to be a problem for the company. 
 
If this doesn't help, you may need to contact a lawyer who is familiar with LGBTQ+ issues as well as workplace harassment and discrimination in general. HTW Law can help. We will advise you on what your legal options are and what can be done, and help you take the next steps. <a href="https://www.htwlaw.ca/contactus" target="_blank">Contact us</a> for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/73d2cb_3af18cfe049e44a5bac8cff0e3cd5865~mv2.jpg/v1/fit/w_740,h_384,al_c,q_80/file.png"></figure>
 
Here's two related posts you might want to take a look at:
 
- <a href="https://www.htwlaw.ca/what-evidence-to-prove-harassment" target="_blank">What Evidence to Prove Harassment</a> 
 
- <a href="https://www.htwlaw.ca/how-do-i-complain-about-harassment" target="_blank">How Do I Complain About Harassment</a> 
 
<h2>Ontario LGBTQ+ Rights</h2>
 
<figure><img src="https://static.wixstatic.com/media/11062b_a9813239fb6d4784a537d3a5291f1170~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Ontario LGBTQ+ Rights"></figure>
 
“There will also be laws specific to your region” says Kevin Yates, a law blogger from <a href="https://topcanadianwriters.com/best-essay-services/" target="_blank">Top Canadian Writers</a> and <a href="https://revieweal.com/top-canadian-writing-services/" target="_blank">Essay writing services in Canada</a>. “For example, in Ontario there's the <a href="https://www.ohrc.on.ca/en" target="_blank">Ontario Human Rights Commission</a> (OHRC), who will have laws in place to protect you.”

In Ontario, there are laws in place to protect you from discrimination not only in your employment, but in housing, services, contracts, and more. Some Ontario-specific cases that have been taken to court may be found on the <a href="https://www.ohrc.on.ca/en/our_work/legal" target="_blank">OHRC</a> website. 
 
For example, the case of <a href="https://www.ohrc.on.ca/pa/node/3213" target="_blank">Connie Heintz v. Christian Horizons</a> has ensured that employers cannot let sexuality impact their hiring practices. 
 
Under the <a href="https://laws-lois.justice.gc.ca/eng/acts/h-6/" target="_blank">Canadian Human Rights Act</a>, and the Ontario Counterpart <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Human Rights Code</a>, you should have the same rights in the workplace as any other worker, and be free from discrimination.
 
The Ontario <a href="https://www.ohrc.on.ca/en/ontario-human-rights-code" target="_blank">Human Rights Code</a> strictly prohibits discrimination based on Gender identity, and gender expression. In fact, the Ontario <a href="https://www.ontario.ca/laws/statute/90h19#BK2" target="_blank">Human Rights Code</a>, the <a href="https://www.ontario.ca/laws/statute/90o01#BK59" target="_blank">Occupational Health and Safety Act</a>, imposes an affirmative duty for a company to investigate into complaints of harassment and discrimination.
 
<h2>Canadian v. American Law LGBTQ+ Rights</h2>
 
<figure><img src="https://static.wixstatic.com/media/d3ae4d50840b469b9a4591360721d960.jpg/v1/fit/w_920,h_613,al_c,q_80/file.png"alt="Canadian v. American Law LGBTQ+ Rights"></figure>
 
It's interesting to compare Canadian human right law to the American <a href="https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution" target="_blank">first amendment</a>, which enshrines the right to free speech for their citizens. While this wasn't made for LGBTQ+ people at the time, the amendment does cover their right to speak and express themselves without fear of discrimination. 
 
As such, cases brought to court around discrimination have been made around the amendment. This includes cases like <a href="https://law.justia.com/cases/federal/district-courts/FSupp2/29/1279/2472102/" target="_blank">Waever v. Nebo School Dist</a>., in which teachers who were forbidden from expressing their sexuality at work sued the schools. 
 
In <a href="https://law.justia.com/cases/federal/district-courts/FSupp2/29/1279/2472102/" target="_blank">Waever v. Nebo School Dist</a>., a teacher was dismissed as volleyball coach because she is a lesbian. She sued the school for violating her rights with an order preventing her from talking with students or staff members about her sexual orientation. The American Court held that the teacher's rights of free speech, equal protection and due process had been violated and the school district was ordered to reinstate her coaching position and to lift the order banning her from expressing her sexuality.
 
While a lot of strides have been made in protecting LGBTQ+ workers in Canada, there is still more work to be done. Unfortunately discriminatory practices against queer workers are still rampant.
 
If filing a complaint with the HR department does not resolve the situation, you may need to consult with a lawyer who is experienced with LGBTQ+ issues as well as workplace harassment and discrimination in general. HTW Law can help. <a href="https://www.htwlaw.ca/contactus" target="_blank">Contact us</a> for assistance and legal consultation.
 
<figure><img src="https://static.wixstatic.com/media/73d2cb_3af18cfe049e44a5bac8cff0e3cd5865~mv2.jpg/v1/fit/w_740,h_384,al_c,q_80/file.png"></figure>
 
<hr>
Jenny Han is a writer for <a href="https://essayroo.com/sociology-essay" target="_blank">Sociology Essay</a> and <a href="https://liahelp.com/essay-help" target="_blank">Essay Help</a>. She covers LGBTQ+ law and how it affects the community. She's also a blogger for <a href="https://bigassignments.com/online-assignment-help" target="_blank">Online Assignment Help</a>.
<hr>
]]></content:encoded></item><item><title><![CDATA[Handling a Harassing Neighbour]]></title><description><![CDATA[Use words to call names, bully, belittle, terrify, intimidate, dominate another person is referred to as verbal abuse, a form of harassment.]]></description><link>https://www.htwlaw.ca/post/handling-a-harassing-neighbour</link><guid isPermaLink="false">638dfb1a88eb420e0008d4cf</guid><category><![CDATA[Workplace Harassment]]></category><category><![CDATA[Workplace Discrimination]]></category><pubDate>Thu, 08 Dec 2022 06:52:55 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/db5ab0_b845efc641154d7d81748cc57f7f4865~mv2.jpg/v1/fit/w_1000,h_853,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Guest Post</dc:creator><content:encoded><![CDATA[You can’t choose your neighbours and sadly neighbour disputes can become a very real thing that impacts your mental health and well being. We all want to avoid conflict and a legal battle if you can , but sometimes you need to take further steps in order to deal with the situation.
 
This is especially the case if you work from home in the "<a href="https://en.wikipedia.org/wiki/New_normal#COVID-19_pandemic" target="_blank">new normal</a>" era .
You need a calm and tranquil environment in order to concentrate and be productive. 
<hr>
An article from our <a href="#8uip1" rel="noopener noreferrer">United Kingdom Contributor</a>.
<hr>
<h2>What Constitutes Verbal Abuse?</h2>
 
The use of words to call names, bully, belittle, terrify, intimidate, or dominate another person is referred to as <a href="https://www.verywellmind.com/how-to-recognize-verbal-abuse-bullying-4154087" target="_blank">verbal abuse</a>. Overt verbal abuse might involve yelling, screaming, or cursing . Such actions are attempts to obtain power, with the purpose of controlling and intimidating you into submission. Verbal Abuse is a form of <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">harassment</a>.
 
<h3>What is Harassment?</h3>
<figure><img src="https://static.wixstatic.com/media/db5ab0_b845efc641154d7d81748cc57f7f4865~mv2.jpg/v1/fit/w_1000,h_853,al_c,q_80/file.png"alt="what is harassment"></figure>
 
<a href="https://en.wikipedia.org/wiki/Harassment" target="_blank">Harassment</a> is a repeated and intentional act that can take many forms including:
<ul>
<li>Derogatory or offensive comments</li>
<li>Calling law enforcement on you repeatedly without just cause</li>
<li>Building or landscaping over the property line</li>
<li>Watching or stalking repeatedly</li>
<li>Threatening behaviour</li>
<li>Repeatedly coming onto your property after being asked to stop</li>
</ul>
The main thing when it comes to deciding if a behaviour is <a href="https://www.chrc-ccdp.gc.ca/en/about-human-rights/what-harassment" target="_blank">harassment</a> is if you can prove you have experienced <a href="https://www.medicalnewstoday.com/articles/emotional-distress" target="_blank">emotional distress</a> related to the incident which can be very difficult to define.
<h3>
How to Handle a Situation Involving Harassment?</h3>
<figure><img src="https://static.wixstatic.com/media/db5ab0_8fdf239e90054bd98d711e4a61ad7419~mv2.jpg/v1/fit/w_1000,h_853,al_c,q_80/file.png"alt="how to handle a situation involving harassment?"></figure>
 
If you believe you are being harassed by your neighbour the most important thing is to reduce and if possible avoid confrontations with your neighbour. “<a href="https://dictionary.cambridge.org/dictionary/english/retaliatory" target="_blank">Retaliatory action</a> can greatly hurt your case if it ends up in a legal situation,” warns business writer Thomas Brown of <a href="https://us.boomessays.com/essay-writer" target="_blank">Essay writer</a> and <a href="https://stateofwriting.com/uk/assignment-writer" target="_blank">State of writing</a>.

If you are unfortunate enough to have a harassing neighbour, you should: 
<ul>
<li>Document every incident of harassment from your neighbour, take videos and photos if possible of their actions to help back up the case. File police reports, even if they aren’t all investigated it provides a record of the situation that is strong in court.
</li>
<li><a href="https://www.htwlaw.ca/contactus" target="_blank">Speak to a lawyer</a> before going for a lawsuit to see if this can be resolved through a <a href="https://www.ontario.ca/page/getting-restraining-order" target="_blank">restraining order</a> or <a href="https://www.ontario.ca/page/getting-peace-bond" target="_blank">peace bond</a>. As part of all these steps you may be asked questions by police, lawyers, etc..., relating to your age, sexual orientation or any other factor that might be considered <a href="https://www.htwlaw.ca/blog/categories/workplace-discrimination" target="_blank">discriminatory</a>. This is difficult but it is essential in order to help back up your <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">harassment claims</a>.</li>
</ul>
 
<h3>Should I get a Peace Bond or a Restraining Order?</h3>
<figure><img src="https://static.wixstatic.com/media/db5ab0_4fa011cf317647beae6de8717140d430~mv2.jpg/v1/fit/w_1000,h_853,al_c,q_80/file.png"alt="should i get a peace bond against a harassing neighbour"></figure>
 
While in most places you would automatically gravitate to the restraining order, in Ontario the law is slightly different in its wording. A <a href="https://en.wikipedia.org/wiki/Restraining_order" target="_blank">restraining order</a> in Ontario is a legal document placing limitations on a current/former spouse or partner. For a no contact order not related to a spouse/partner you would need to consider a <a href="https://stepstojustice.ca/questions/abuse-and-family-violence/how-do-i-apply-peace-bond/" target="_blank">peace bond</a>.

Peace bonds are similar in their goal but have some defining factors that set them apart. Firstly, a peace bond can only last for a year and you need to reapply at the end of the year to get another peace bond if your neighbour is still a threat. Next, you need to go to court and speak with a Justice of the Peace in order to obtain a peace bond. This can take a few days to several months to be actually delivered to the subject. However, unlike a restraining order a peace bond can protect your property against threats of vandalism.
<h3>
Going to Court</h3>
<figure><img src="https://static.wixstatic.com/media/db5ab0_40ecb0d5eec8478486a347952cdb686a~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="going to court against harassment"></figure>

Deciding whether to bring a civil or criminal case will depend on the type of harassment you have faced and whether you have experienced emotional distress or genuine fear for your safety. 

Within the <a href="https://laws-lois.justice.gc.ca/eng/acts/c-46/" target="_blank">Canadian Criminal Code</a> there is a well-defined meaning of <a href="https://laws-lois.justice.gc.ca/eng/acts/c-46/section-264.html" target="_blank">criminal harassment</a> as acts including:
<ul>
<li>Following a person or someone close to the person</li>
<li>Repeatedly trying to contact and communicate with the person</li>
<li>Watching, stalking and trespassing at the person’s property or workplace</li>
<li>Viable threats to the person or someone close to the person</li>
</ul>
For all of this you need to prove the harasser has engaged in this contact and known that it was harassment. The person making the accusation must be able to say they felt harassed and had reasonable fear for their safety.
 
In Ontario, however, harassment doesn’t exist in the civil law and instead there is the <a href="https://en.wikibooks.org/wiki/Canadian_Tort_Law/Nuisance" target="_blank">tort of nuisance</a> which can be used in cases related to harassment from a neighbour. “This is where you need to prove emotional distress that has been caused by the harassment which again can be difficult to prove without strong documentation,” relays David Biel a journalist for <a href="https://paperfellows.com/write-my-research-paper" target="_blank">Paper Fellows</a> and <a href="https://uktopwriters.com/review-ukwritings/" target="_blank">UK Writings review</a>.
 
Interestingly, there was some creative effort in the <a href="https://www.htwlaw.ca/employment-lawyer" target="_blank">employment law</a> context to bring the tort of harassment into Canada, with limited success. <a href="https://www.htwlaw.ca/post/does-the-tort-of-harassment-exist-in-ontario" target="_blank">Click here</a> to read the blog post: <a href="https://www.htwlaw.ca/post/does-the-tort-of-harassment-exist-in-ontario" target="_blank">Does the Harassment Tort Exist in Ontario?</a>
 
A similar yet different tort of <a href="https://en.wikipedia.org/wiki/Intentional_infliction_of_emotional_distress" target="_blank">intentional infliction of emotional distress</a> can also be used against a harassing neighbour in Ontario. To be successful, the conduct has to be <a href="https://www.merriam-webster.com/dictionary/flagrant" target="_blank">flagrant</a> and <a href="https://dictionary.cambridge.org/dictionary/english/outrageous" target="_blank">outrageous</a> and that it must be intended to produce the harm, e.g. <a href="https://www.webmd.com/mental-health/features/10-signs-ailing-mind" target="_blank">emotional distress</a>, that eventually occurred.
 
If you are a victim of verbal abuse in the workplace or have problems with a harassing neighbour, <a href="https://www.htwlaw.ca/contactus" target="_blank">contact us</a> for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/73d2cb_3af18cfe049e44a5bac8cff0e3cd5865~mv2.jpg/v1/fit/w_740,h_384,al_c,q_80/file.png"></figure>
 
<h2>Wrapping Up</h2>
 
Don’t forget that you have the right to your home and are allowed to live your life free of harassment. If you are unsure of the situation it is always worth having a <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">lawyer consultation</a> to see whether there is a case for criminal or civil action.

Marketing strategist and writer Rebecca Leigh, <a href="https://academized.com/dissertation-writing-service" target="_blank">Dissertation writing service</a> and <a href="https://ukwritings.com/essay-services" target="_blank">Essay services</a>, spends most of her working hours attending tech and marketing conferences as well as consulting with various businesses. She also contributes articles to online magazines and blogs like <a href="https://oxessays.com/write-my-essay" target="_blank">OX Essays</a>.]]></content:encoded></item><item><title><![CDATA[Are You Able To Sue For Verbal Abuse In California and Ontario?]]></title><description><![CDATA[Verbal abuse is more common than you'd think in the workplace. In fact, around 42% of employees in the US have reported they've been the...]]></description><link>https://www.htwlaw.ca/post/are-you-able-to-sue-for-verbal-abuse-in-california-and-ontario</link><guid isPermaLink="false">6377ad52e9218733af2419ab</guid><category><![CDATA[Workplace Harassment]]></category><category><![CDATA[Workplace Discrimination]]></category><pubDate>Mon, 21 Nov 2022 10:42:32 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/4acb2e_f610dfecebf045f587a04b8d2b8ee79d~mv2.png/v1/fit/w_766,h_411,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Guest Post</dc:creator><content:encoded><![CDATA[<a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">Verbal abuse</a> is more common than you'd think in the workplace. In fact, around 42% of employees in the US have reported they've been the victim of <a href="https://www.eeoc.gov/harassment" target="_blank">workplace harassment</a>, at one time or another. Are you aware that you can sue your workplace for verbal abuse under <a href="#8cb5o" rel="noopener noreferrer">California law</a> similar to the <a href="#e6idh" rel="noopener noreferrer">situation in Ontario</a>? Here's what you need to know.
 
You may also want to <a href="https://www.htwlaw.ca/how-many-texts-are-harassment" target="_blank">click here</a> to learn more about <a href="https://www.htwlaw.ca/how-many-texts-are-harassment" target="_blank">text harassment</a>.
<hr>
A article from our <a href="#1ji46" rel="noopener noreferrer">American Contributor</a>.
<hr>
<h2>What Constitutes Verbal Abuse?</h2>
 
<figure><img src="https://static.wixstatic.com/media/4acb2e_f610dfecebf045f587a04b8d2b8ee79d~mv2.png/v1/fit/w_766,h_411,al_c,q_80/file.png"alt="verbal abuse"></figure>
 
Firstly, you need to know what exactly <a href="https://www.healthline.com/health/mental-health/what-is-verbal-abuse#abusevs-argument" target="_blank">verbal abuse</a> is, in the workplace. “In essence, verbal abuse is negative comments, rumors, or gossip about a person's characteristics, that are directed either directly or indirectly at a person” says Barry Pierson, a business blogger at <a href="https://writemyx.com/" target="_blank">Write My X</a> and <a href="https://1day2write.com/" target="_blank">1 Day 2 Write</a>. It also counts as verbal abuse when the person making the comments fails to, or refuses to, retract or apologize for those comments.
 
What can verbal abuse look like? There are several instances where you could be being verbally abused: 
<ul>
<li>Your boss threatens, yells or curses at you</li>
<li>Co workers spread rumors about you in the office</li>
<li>You are insulted by others</li>
<li>Others attempt to embarrass you on purpose</li>
<li>You are teased or bullied </li>
</ul>
These are just a few examples of how verbal abuse can happen. Just like other types of abuse though, no two cases of verbal abuse will look exactly alike. 
 
Furthermore, as an employee, you might have to ask for a pay advance from your employer in times of emergency. According to the surveys, this is something that many employees will encounter over their service years. The last thing you want is for your boss to verbally abuse you or shout at you. To prevent such scenarios, a <a href="https://www.creditninja.com/weekend-payday-loans/" target="_blank">weekend lender</a> is an easy way out. You don't want to offer your boss any more reasons to humiliate you for needing the cash advance.
 
<h2>When Does Verbal Abuse Become Illegal?</h2>
 
<figure><img src="https://static.wixstatic.com/media/4acb2e_b02ea566992948f9ad729b9e308bca0d~mv2.png/v1/fit/w_764,h_432,al_c,q_80/file.png"alt="verbal abuse becomes illegal"></figure>
 
In most US States, verbal abuse isn't actually unlawful! Says Linda Davies, a journalist at <a href="https://originwritings.com/essay-help" target="_blank">Essay Help</a> and <a href="https://britstudent.com/" target="_blank">Brit Student</a>. “In California though, you'll see that the <a href="https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/californiafairemploymenthousingact.aspx" target="_blank">California Fair Employment and Housing Act (FEHA)</a> actually protects you against verbal abuse.”
 
Typically, the protection is there for those who are being verbally abused thanks to their membership in a protected class. As such, if you're dealing with slurs, epithets or general abuse thanks to that protected class, it becomes unlawful under that act. 
 
As there's law in place in California, your employer is required to take all reasonable steps to prevent verbal abuse from happening. As such, if you suffer any health issues due to stress brought on by the abuse, your employer can be found liable for it. 
 
So with this in mind, you'll see that you'll be able to sue your employer under California law, if you can prove that the abuse you're suffering at work is due to <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination</a>. Also, be aware that if you're able to prove the abuse has created an unsafe work environment, then you'll be able to sue under <a href="https://www.dir.ca.gov/dosh/" target="_blank">CalOSHA</a> violations.
 
<h2>California Vs. Other North American Laws</h2>
 
<figure><img src="https://static.wixstatic.com/media/4acb2e_90e1f53826104c3482a3d0caf66def38~mv2.png/v1/fit/w_687,h_343,al_c,q_80/file.png"alt="California Vs. Other North American anti verbal abuse Laws"></figure>
 
<a href="https://www.courts.ca.gov/1258.htm" target="_blank">California law</a> is somewhat unique when it comes to legally outlawing <a href="https://endingviolencecanada.org/getting-help/" target="_blank">verbal abuse</a>. This type of abuse isn't covered as comprehensively elsewhere in most other US States. That doesn't mean that there aren't provisions for it in other North American areas, though. 
 
In Ontario, for example, there are some provisions for verbal abuse. There is a <a href="https://www.thecanadianencyclopedia.ca/en/article/torts" target="_blank">tort</a> against <a href="https://en.wikipedia.org/wiki/Intentional_infliction_of_emotional_distress" target="_blank">intentional infliction of mental suffering</a>, which outlaw flagrant and outrageous comments and remarks, made intentionally to harm the plaintiff, and has caused the plaintiff to suffer a provable harm.
 
This has been upheld in cases such as <a href="https://canlii.ca/t/g6xvb" target="_blank">Boucher Vs. Wal-Mart Canada Corp.</a>, where $100,000 worth of damages were awarded to the plaintiff, who had been systematically targeted and harassed by her supervisor for a six month period. <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">Human Rights Damages</a> are usually awarded in the form <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">aggravated damage</a> and <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">punitive damage</a> to punish the <a href="https://www.law.cornell.edu/wex/egregious" target="_blank">egregious conduct</a> of the employer. For example, in <a href="https://canlii.ca/t/hxsv5" target="_blank">Bassanese vs. German Canadian News Company Limited et al</a>, the employee was given $50,000 in aggravated damages, after her employer failed to investigate her claims of abuse and workplace harassment.
 
In addition, <a href="https://www.htwlaw.ca/office-harassment-vs-discrimination" target="_blank">workplace harassment</a> and <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a> are strictly prohibited under the Ontario <a href="https://www.ohrc.on.ca/en/iii-principles-and-concepts/4-legal-responsibility-human-rights-work" target="_blank">Human Rights Code</a>, the <a href="https://www.ontario.ca/page/understand-law-workplace-violence-and-harassment" target="_blank">Employment Standards Act</a> and the <a href="https://www.ontario.ca/document/guide-occupational-health-and-safety-act/part-iii0i-workplace-violence-and-workplace-harassment" target="_blank">Occupational Health and Safety Act</a>.
 
If you are a victim of verbal abuse in the workplace, <a href="https://www.htwlaw.ca/contactus" target="_blank">contact us</a> for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/73d2cb_3af18cfe049e44a5bac8cff0e3cd5865~mv2.jpg/v1/fit/w_740,h_384,al_c,q_80/file.png"></figure>
 
<h2>Suing For Verbal Abuse In California</h2>
 
<figure><img src="https://static.wixstatic.com/media/4acb2e_667695b240034a8f82430f32db7a64a1~mv2.png/v1/fit/w_609,h_405,al_c,q_80/file.png"></figure>
 
So, if you've suffered any kind of <a href="https://www.verywellmind.com/how-to-recognize-verbal-abuse-bullying-4154087" target="_blank">verbal abuse</a> at work, DO KNOW that you might be able to sue your employer in California. There are certain <a href="https://www.courts.ca.gov/1258.htm?rdeLocaleAttr=en" target="_blank">legal requirements</a> that have to be met if you want to do this: 
<ul>
<li>You're being harassed directly because of your membership of a protected class</li>
<li>The employer has not investigated any claims of abuse</li>
<li>The employee has evidence that abuse occurred</li>
<li>There is evidence the employee has suffered physical, mental, or emotional damage </li>
</ul>
<a href="https://www.maralawfirm.com/california-employment-lawyer" target="_blank">Employment laws</a> in California differ slightly from those in Ontario. In California, you have legal recourse if you have suffered verbal abuse in the workplace. If your employer hasn't sufficiently acted to prevent the abuse from happening, then you can look into suing them for any damages that arise from it. 
 
Unfortunately, this important employee right against verbal abuse has been traditionally overlooked by many employers and employees alike. It's time to make a difference by being more aware of verbal abuse! 
 
George J. Newton is a business writer with <a href="https://academicbrits.com/dissertation-writing-services" target="_blank">Dissertation writing services</a> and <a href="https://nextcoursework.com/do-my-coursework" target="_blank">Do my coursework</a>, where he specialises in business law. He also contributes to a range of other publications, such as <a href="https://phdkingdom.com/thesis-writing-service" target="_blank">Thesis writing service</a>. ]]></content:encoded></item><item><title><![CDATA[Legal Analysis and Protection Against Religious Discrimination at Work]]></title><description><![CDATA[Religious discrimination happens in case of denied employment, promotion, accommodation at the workplace, harassment, or being fired at work]]></description><link>https://www.htwlaw.ca/post/legal-analysis-and-protection-against-religious-discrimination-at-work</link><guid isPermaLink="false">6345133759dc60dffd5a7c68</guid><category><![CDATA[Workplace Harassment]]></category><category><![CDATA[Workplace Discrimination]]></category><pubDate>Wed, 12 Oct 2022 18:45:01 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/11062b_d31077c7dac9489ea60825e34eee6754~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>lylesesq</dc:creator><content:encoded><![CDATA[
<figure><img src="https://static.wixstatic.com/media/11062b_d31077c7dac9489ea60825e34eee6754~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="legal analysis and protection against religious discrimination at work"></figure>
 
<h2>What is Religious Discrimination?</h2>
 
Religious discrimination is a serious offence. Workplace discrimination includes discrimination due to a person's or spouse's religious beliefs. 
 
Religious discrimination may be in various forms, such as denied employment, promotion, accommodation at the workplace, harassment, or being fired from work. The reason is the beliefs and practices of a particular religion or lack of beliefs or practices of a certain religion. 
 
Discrimination in the workplace on religious grounds may also have serious financial consequences. As a result of being denied employment, promotion, or fired, people may depend more on their credit cards and other borrowing instruments to support their expenses. It can lead to an ongoing cycle of debt.
 
In such situations, various <a href="https://www.ovlg.com/debt-relief/" target="_blank">debt relief options</a>, like debt consolidation, debt management plans, etc., can help you come out of debt. However, with continued discrimination in the workplace, the financial crisis may go on a loop.
An overview of the Canadian Human Rights Act on Religious Discrimination in the workplace
 
Religious discrimination in the workplace is strictly forbidden under Canadian Law. The <a href="https://laws-lois.justice.gc.ca/eng/acts/h-6/" target="_blank">Canadian Human Rights Act</a>, <a href="https://laws-lois.justice.gc.ca/eng/acts/h-6/page-1.html#h-256801" target="_blank">Section 3(1)</a> dictates that <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination</a> on the grounds of "race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered" are strictly prohibited.
 
<a href="https://laws-lois.justice.gc.ca/eng/acts/h-6/page-1.html#h-256801" target="_blank">Sections 7 (a) and (b)</a> of the Act state refusing to hire or continue employment with someone or discriminating against an employee during work is prohibited.
 
Further, the Act elaborates that the following practices or policies of an organization are prohibited on the grounds of discrimination mentioned in Section 3(1):
<ul>
<li>Excluding a person from full membership in the company</li>
<li>Suspending or expelling a person from the company</li>
<li>Restricting, differentiating, classifying, or behaving in a way that would deprive the person of employment opportunities, limit them, or negatively affect the person's status.</li>
</ul>
In addition, it is discriminatory to establish or pursue any practice, policy, or agreement that affects the recruitment, promotion, training, and other employment-related matter that may deprive a person or a group of persons of employment opportunities on the grounds of religion.
 
<figure><img src="https://static.wixstatic.com/media/73d2cb_49acd29576e644b09d571a499efdfc42~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="K.S. Bhinder and the Canadian Human Rights Commission"></figure>
 
Case: <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/102/index.do" target="_blank">K.S. Bhinder and the Canadian Human Rights Commission</a>
 
As per the rule in a company, all employees were to wear a hard hat at a specific work site. Bhinder, a Sikh employee, found it against his religious beliefs to wear any other headgear than a turban. He refused to adhere to the rule or accept any other work that did not require wearing a hard hat. The company declined to make any exception to the rule and terminated his job. 
 
The <a href="https://www.chrc-ccdp.gc.ca/en" target="_blank">Canadian Human Rights Commission</a> stated that the company had participated in a discriminatory practice. Orders were made to reinstate as well as compensate for the lost wages. 
 
Although the hard hat policy was validated under the <a href="https://laws-lois.justice.gc.ca/eng/ACTS/L-2/index.html" target="_blank">Canada Labor Code</a> and Regulations, it is not considered a genuine occupational requirement under the Canadian Human Rights Act. As a result, the Tribunal could order the employer to offer an exemption to an employee because the general policy did not satisfy the requirements of <a href="https://laws-lois.justice.gc.ca/eng/acts/h-6/fulltext.html" target="_blank">section 14 (a)</a>.
 
<h2>An overview of the protection under the Canadian Charter of Rights and Freedoms</h2>
 
<figure><img src="https://static.wixstatic.com/media/11062b_359f5d962d504a889feb0a6c83274a8b~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Canadian Charter of Rights and Freedoms"></figure>
 
The <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/" target="_blank">Canadian Charter of Rights and Freedoms</a> is laid out to guard certain rights and freedom, for instance, the right to equality and the freedom of expression. According to the Canadian Charter of Rights and Freedoms, individuals in Canada have the right to follow or not follow any religion. 
 
Also, the Charter guarantees they are free to express their religious beliefs publicly. These liberties, however, are not limitless. There may be restrictions on how to express religious beliefs. For instance, when certain religious beliefs or practices violate the rights of others or undermine demanding public programs and policies. 
 
The Charter places a strong emphasis on equality rights. They aim to ensure that every person is treated with dignity and respect, irrespective of individual characteristics such as race, origin, color, religion, gender, age, mental or physical disability, sexual orientation, marital status, residency, or citizenship.
 
Any person whose Charter rights or freedoms have been violated or denied could file an application with a court of competent jurisdiction for whatever remedy the court deems appropriate and just. 
 
<h2>Protection Against Religious discrimination under the Ontario Human Rights Code</h2>
 
The <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Ontario Human Rights Code</a> states that <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a> based on creed or religion, intentional or unintentional, is against the law. It states that "equal treatment in the workplace" includes pay rates, overtime, working hours, holidays, benefits, shift work, discipline, and performance evaluations.
 
It acknowledges that prayer breaks, religious-based days off, and dress requirements are examples of religious or creed-based needs. The employer must meet these needs, except if he can demonstrate these could hinder the individual from performing the necessary job duties or adversely affect costs, health, or safety.
<figure><img src="https://static.wixstatic.com/media/73d2cb_183c2eccb28a4d88a3d0e51f385d337d~mv2.jpg/v1/fit/w_1000,h_853,al_c,q_80/file.png"alt="standup against religious discrimination"></figure>
 
Religion encompasses the practices, views, and customs associated with a faith or religion. However, personal moral, ethical, or political beliefs or religion promoting violence and hatred toward others are not included.
 
It further states that religious discrimination in the workplace also includes the following:
<ul>
<li>Declining to grant an exception to dress codes in view of accommodating religious dress obligations</li>
<li>Rejecting permission to observe prayers at a specific time of the day</li>
<li>Declining a religious holiday.</li>
</ul>
In instances of <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">religious discrimination</a> in the workplace or <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">harassment in the workplace</a> due to religious faith, individuals can file Human Rights applications against their employer, contractor, union, or board of directors.
 
If you are a victim of religious discrimination in the workplace, <a href="https://www.htwlaw.ca/contactus" target="_blank">contact us</a> for assistance and legal consultation.
<figure><img src="https://static.wixstatic.com/media/73d2cb_3af18cfe049e44a5bac8cff0e3cd5865~mv2.jpg/v1/fit/w_740,h_384,al_c,q_80/file.png"></figure>
 
Case: <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/101/index.do?site_preference=normal" target="_blank">Ontario Human Rights Comm. </a><a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/101/index.do?site_preference=normal" target="_blank">v.</a><a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/101/index.do?site_preference=normal" target="_blank"> Simpsons-Sears</a>
 
Theresa O'Malley claimed religious discrimination against her employer, a retailer, as her job required her to work on Friday evenings and Saturdays. This was against the applicant's religious beliefs, which required her to observe the Sabbath from Friday sunset to Saturday sunset. Due to this conflict, she had to work part-time since a full-time position that did not require Saturday work was unavailable with her qualifications.
 
In such cases, the appellant must prove a prima facie case of discrimination, after which the employer must demonstrate the reasonable steps he took without extreme hardship to accommodate the employee. 
 
In the given case, the employer failed to demonstrate such reasonable steps taken by him. As a result, the judgment was held in favor of the appellant.
 
<h2>Conclusion</h2>
<h2></h2>
<a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">Religious discrimination in the workplace</a> is an intolerable act. Any form of discrimination in the workplace based on a person's religious faith or creed is strictly prohibited under the Canadian Human Rights Act Sections 3(1) and 7-10, The Canadian Charter of Rights and Freedoms, and The Ontario Human Rights Code.
 
In the workplace, religious discrimination can be in the form of declining employment opportunities, training, apprenticeship, promotion or differentiated wages, working hours, refusing to observe religious holidays, or not granting exceptions to dress codes because of religious obligations. All or any of the mentioned forms of discrimination based on a person's religious beliefs or the belief of their spouse is unlawful.
 
If you have ever faced <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination or harassment in the workplace</a> on religious grounds, do not take it for granted. You can stand up against this unfair behavior by filing a Human Rights application against your employer, contractor, union, or board of directors. Alternatively, you can seek assistance from a workplace discrimination lawyer or contact us for legal consultation.
 
About The Author: Lyle Solomon has extensive legal experience, in-depth knowledge, and experience in consumer finance and writing. He has been a member of the California State Bar since 2003. He graduated from the University of the Pacific’s McGeorge School of Law in Sacramento, California, in 1998 and currently works for the <a href="https://www.ovlg.com/" target="_blank">Oak View Law Group</a> in California as a Principal Attorney.
]]></content:encoded></item><item><title><![CDATA[Is Your Company Federally Regulated or Not? A Primer on the Derivative Jurisdiction Test]]></title><description><![CDATA[Federally regulated employees are governed by the Canada Labour Code, the federal equivalent of the Ontario Employment Standards Act. ]]></description><link>https://www.htwlaw.ca/post/is-your-company-federally-regulated-or-not-a-primer-on-the-derivative-jurisdiction-test</link><guid isPermaLink="false">628472c3fabdad87ece889f7</guid><category><![CDATA[Federal Regulated Worker]]></category><category><![CDATA[Employment Contract]]></category><category><![CDATA[Severance Pay]]></category><pubDate>Thu, 19 May 2022 06:26:26 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/11062b_1abdd4240d9d4ebc9a0cd7b5efd95741~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Tony Wong</dc:creator><content:encoded><![CDATA[In this post, we'll talk about <a href="https://www.ontariocourts.ca/scj/" target="_blank">Ontario cases</a>, <a href="https://www.ontariocourts.ca/coa/" target="_blank">Court of Appeal</a> and <a href="https://www.scc-csc.ca/home-accueil/index-eng.aspx" target="_blank">Supreme Court</a> decisions as to when will Ontario’s <a href="https://www.htwlaw.ca/severance-pay" target="_blank">Presumptive Labour Jurisdiction</a> be Displaced by <a href="https://www.htwlaw.ca/federally-regulated-employee" target="_blank">Federal Labour law</a> pursuant to the doctrine of <a href="https://definitions.uslegal.com/d/derivative-jurisdiction-doctrine/" target="_blank">derivative jurisdiction</a>. Continue reading to learn more.
<figure><img src="https://static.wixstatic.com/media/11062b_1abdd4240d9d4ebc9a0cd7b5efd95741~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt=" Ramkey Communications Inc. v Labourers’ International Union "></figure>
<h3>Topics Will be Covered in This Post:</h3>
<ol>
<li><a href="#fg3vs" rel="noopener noreferrer">Introduction</a> </li>
<li><a href="#195o6" rel="noopener noreferrer">Doctrine of Derivative Jurisdiction</a> </li>
<li><a href="#78cf8" rel="noopener noreferrer">Relevant Derivative Jurisdiction Cases</a> <ol>
<li><a href="#9oh5f" rel="noopener noreferrer">When the Employment Pertains to a Labour, Enterprise, or Company under Parliament's Legislative Jurisdiction</a> <ol>
<li><a href="#a5f5g" rel="noopener noreferrer">Reference re: Industrial Relations (The Stevedores' Reference)</a> </li>
<li><a href="#94tud" rel="noopener noreferrer">Letter Carrier’s v. Canadian Union of Postal Workers et al. (Letter Carriers')</a> </li>
</ol></li>
<li><a href="#3rb8d" rel="noopener noreferrer">When the Employment is an Integral Part of a Federally Regulated Undertaking</a> <ol>
<li><a href="#qouh" rel="noopener noreferrer">Northern Telecom Ltd. v. Communications Workers of Canada (Telecom)</a> </li>
</ol></li>
<li><a href="#3eg49" rel="noopener noreferrer">When Provincial Jurisdiction is Not Displayed by Federal Employment Laws</a> <ol>
<li><a href="#f34qj" rel="noopener noreferrer">United Transportation Union v. Central Western Railway Corp.</a> </li>
<li><a href="#4st5f" rel="noopener noreferrer">Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail)</a> </li>
<li><a href="#6hrqv" rel="noopener noreferrer">Ramkey Communications Inc. v Labourers’ International Union </a> </li>
</ol></li>
</ol></li>
<li><a href="#fse2f" rel="noopener noreferrer">Conclusion</a> </li>
</ol>
<h3>1. Introduction</h3>
 
In Ontario, the <a href="https://www.ontario.ca/laws/statute/00e41" target="_blank">Employment Standards Act</a> governs non-<a href="https://en.wikipedia.org/wiki/Trade_union" target="_blank">union</a> workers and the <a href="https://www.ontario.ca/laws/statute/95l01" target="_blank">Labour Relations Act</a> governs union workers. Employment Relationship in Ontario are also governed by numerous other Ontario employment law and labour relations related acts such as the <a href="https://www.ontario.ca/laws/statute/90o01" target="_blank">Occupational Health and Safety Act</a>, the <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Human Rights Code</a>, and Ontario <a href="https://en.wikipedia.org/wiki/Common_law" target="_blank">Common Law</a> jurisprudence.
<figure><img src="https://static.wixstatic.com/media/491d2c_c316e7b8f6444edfb8b3617f4f2d929a~mv2.jpg/v1/fit/w_464,h_207,al_c,q_80/file.png"alt="Ontario Jurisdiction in governing employment relationship and labour relations"></figure>
In contrast, <a href="https://www.canada.ca/en/employment-social-development/corporate/portfolio/labour/programs/labour-standards/reports/issue-paper-portrait-federally-regulated-private-sector.html" target="_blank">federally regulated businesses</a> are governed by the <a href="https://laws-lois.justice.gc.ca/eng/acts/l-2/" target="_blank">Canada Labour Code</a>, the <a href="https://laws-lois.justice.gc.ca/eng/acts/h-6/" target="_blank">Canadian Human Rights Act</a>, and Federal Common Law doctrines.
<figure><img src="https://static.wixstatic.com/media/11062b_8f882a9634ee4a18acd35e1db73df829~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="federally regulated businesses"></figure>
<a href="https://www.canada.ca/en/services/jobs/workplace/federally-regulated-industries/canada-labour-code-parts-overview.html" target="_blank">Click here</a> to see the list of federally regulated business and a brief explanation of the Canada Labour Code.
 
There are several significant differences between the two sets of labour laws. For instance the <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/termination-employment" target="_blank">termination pay</a> and <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/severance-pay" target="_blank">severance pay</a> under the Ontario Employment Standards Act (ESA) is significantly more than the <a href="https://www.canada.ca/en/employment-social-development/services/labour-standards/reports/termination.html" target="_blank">termination pay and severance pay</a> under the Canada labour Code (CLC).
 
Both<a href="https://www.htwlaw.ca/federally-regulated-employee" target="_blank"> </a><a href="https://www.htwlaw.ca/federally-regulated-employee" target="_blank">federal regulated employees</a> and Ontario non-Union workers can sue for <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">wrongful dismissal</a>. Yet <a href="https://www.canada.ca/en/employment-social-development/services/labour-standards/reports/unjust-dismissal.html" target="_blank">unjust dismissal</a> is ONLY available to federally regulated employees which grants them quasi-union status if certain conditions are met.
 
<a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0" target="_blank">Click here</a> to learn more about <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/termination-employment" target="_blank">termination pay</a> and <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/severance-pay" target="_blank">severance pay</a> under ESA.
 
<a href="https://www.canada.ca/en/employment-social-development/services/labour-standards/reports/termination.html" target="_blank">Click here</a> to learn more about <a href="https://www.canada.ca/en/employment-social-development/services/labour-standards/reports/termination.html" target="_blank">termination pay and severance pay</a> under CLC.
 
<a href="https://www.htwlaw.ca/unjust-dismissal-wrongful-dismissal" target="_blank">Click here</a> for a more in-depth discussion of unjust dismissal by reading the article titled: <a href="https://www.htwlaw.ca/unjust-dismissal-wrongful-dismissal" target="_blank">Unjust Dismissal vs. Wrongful Dismissal</a>.
<figure><img src="https://static.wixstatic.com/media/11062b_8238f9663ccb4d44bc34815c5b40364f~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="provincial or federal jurisdiction - derivative jurisdiction"></figure>
Unfortunately, it is not always straightforward whether provincial or federal jurisdiction will apply in a given scenario.
 
An airport is a federally regulated company, but what about the subcontractors that undertake airport construction and build the runways?
<figure><img src="https://static.wixstatic.com/media/11062b_d58c3a9dd80d47efaf125b952fc44712~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="provincial or federal jurisdiction - airport subcontractor"></figure>
A cable company, such as Rogers or Bell, is regulated by the federal government, but what about the subcontractors who install the cable connection in people's homes?
<figure><img src="https://static.wixstatic.com/media/11062b_96e3089f5908483db9dcf2feb5d1d405~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="provincial or federal jurisdiction - cable company subcontractor"></figure>
A financial institution is a federally regulated employer, but what about the service provider who handles the bank's janitorial and cleaning needs?
<figure><img src="https://static.wixstatic.com/media/11062b_c83770c6d93e4723a5bf4fc194f53a40~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="provincial or federal jurisdiction - financial institution cleaners"></figure>
In situations like these, the doctrine of derivative jurisdiction will be applied to establish whether provincial or federal rules apply. 
 
<h2>2. Doctrine of Derivative Jurisdiction</h2>
 
Ontario has presumptive constitutional jurisdiction over labour relations within its boundaries. However, this constitutional jurisdiction may be displaced through the operation of “derivative jurisdiction” such that federal labour laws would apply. 
<figure><img src="https://static.wixstatic.com/media/11062b_1f5c32329fc44218a1b85f597f816de2~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Doctrine of Derivative Jurisdiction"></figure>
The Supreme Court had held in Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), <a href="https://canlii.ca/t/frc5f" target="_blank">2012 SCC 23</a>, at para. <a href="https://canlii.ca/t/frc5f#par11" target="_blank">11</a>, that legislation respecting labour relations is presumptively a provincial matter since it engages the provinces’ authority over property and civil rights under <a href="https://www.canlii.org/en/ca/laws/stat/30---31-vict-c-3/latest/30---31-vict-c-3.html#sec92subsec13_smooth" target="_blank">s. 92(13)</a> of the <a href="https://www.canlii.org/en/ca/laws/stat/30---31-vict-c-3/latest/30---31-vict-c-3.html" target="_blank">Constitution Act, 1867</a>.
 
Under the doctrine of Derivative Jurisdiction, the <a href="https://www.canada.ca/en.html" target="_blank">federal government</a> has jurisdiction to regulate labour relations in two circumstances: 1) when the employment relates to a work, undertaking, or business within the <a href="https://qweri.lexum.com/w/calegis/30---31-vict-c-3-en#!fragment/sec91/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoJC4BOARgEoAaZbUwiARUUNwE9oA5AMaUwuBFx78hIwmIQBlPKQBC-AEoBRADKaAagEEAcgGFNjUmABG0Utjj16QA" target="_blank">legislative authority</a> of <a href="https://www.parl.ca/" target="_blank">Parliament</a>; or 2) when it is an integral part of a <a href="https://www.canada.ca/en/services/jobs/workplace/federally-regulated-industries.html" target="_blank">federally regulated undertaking</a>, sometimes referred to as derivative jurisdiction (Tessier, at para. <a href="https://canlii.ca/t/frc5f#par17" target="_blank">17</a>).
<figure><img src="https://static.wixstatic.com/media/11062b_025875b5e6874edea6a61c75ce2ebcad~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Derivative Federal Jurisdiction test"></figure>
In the case of derivative jurisdiction, the essential operational nature of a work, business or undertaking is assessed to determine if that ongoing nature renders the work integral to a federal undertaking. The focus of the analysis is on the relationship between the activity, the particular employees under scrutiny, and the federal operation that is said to benefit from the work of those employees. The relationship is to be considered from the perspective both of the federal undertaking and that of the work said to be integrally related, assessing the extent to which the effective performance of the federal undertaking is dependent on the services provided by the related operation, and how important those services were to the related work itself. The exceptional aspects of an enterprise do not determine its ongoing character.
<figure><img src="https://static.wixstatic.com/media/11062b_d7739529f2c246fab664dd7609b60134~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Construction Montcalm Inc. v. Quebec (Minimum Wage Commission)"></figure>
For instance, in Construction Montcalm Inc. v. Quebec (Minimum Wage Commission), <a href="https://canlii.ca/t/1mktj" target="_blank">[1979] 1 S.C.R. 754</a>, the <a href="https://www.scc-csc.ca/home-accueil/index-eng.aspx" target="_blank">Supreme Court of Canada</a> held that provincial minimum wage legislation and related labour legislation applied to a contractor building a runway at an airport, a federally regulated undertaking.
 
The Supreme Court in Montcalm held that labour relations of construction industry employers are subject to provincial jurisdiction, even when the employees are constructing a federally regulated undertaking. The Supreme Court explained that the construction of an airport is not in every respect an integral part of aeronautics and that the construction of runways is a matter so far removed from aerial navigation or from the operation of an airport that it cannot be said that the power to regulate this matter forms an integral part of federal jurisdiction over aeronautics.
<figure><img src="https://static.wixstatic.com/media/11062b_cd85e3d5ffaa4331a432b50270531642~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="building airport - federal or provincial jurisdiction - derivative test"></figure>
The Supreme Court in Montcalm reasoned that simply building a federal undertaking is not vital or integral to the operation of a federal undertaking; building, constructing, repairing (and even connecting to) the federal undertaking is not equivalent to operating the federal undertaking. 
<figure><img src="https://static.wixstatic.com/media/11062b_89c991b700544591a07e4d5a8e9ced88~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Ramkey Communications Inc. v Labourers’ International Union of North America"></figure>
In the recent decision, Ramkey Communications Inc. v Labourers’ International Union of North America, <a href="https://canlii.ca/t/j34hr" target="_blank">2019 ONCA 859</a>, the <a href="https://www.ontariocourts.ca/coa/" target="_blank">Court of Appeal</a> for Ontario decided that provincial jurisdiction was not displaced by federal derivative jurisdiction because it could not be said in the absence of dependency that Ramkey’s construction technicians were vital or integral to the operations of Rogers as a <a href="https://crtc.gc.ca/eng/home-accueil.htm" target="_blank">federal telecommunications</a> undertaking when the construction work for Rogers only accounted for 10-13% of Ramkey’s revenues, and that Rogers always had more than one contractor in the geographic areas where it operates.
 
<h2>3. Relevant Derivative Jurisdiction Cases</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_1b0ad9f446144dffb9ae7d534bb3a5a2~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="federal derivative jurisdiction cases"></figure>
<h3>a. When the Employment Pertains to a Labour, Enterprise, or Company under Parliament's Legislative Jurisdiction</h3>
 
<h4>i. The Stevedores' Reference</h4>
<figure><img src="https://static.wixstatic.com/media/11062b_3ee1d028888042cd859a8683909714a2~mv2_d_4380_2920_s_4_2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="The Stevedores' Reference - derivative jurisdiction"></figure>
Reference re: Industrial Relations and Disputes Investigation Act (Canada), <a href="https://canlii.ca/t/1nlk8" target="_blank">[1955] S.C.R. 529</a> 
 
The Eastern Canada Stevedoring Co. Ltd., which was incorporated under The Companies Act of Canada, 1934, c. 33, furnishes <a href="https://en.wikipedia.org/wiki/Stevedore" target="_blank">stevedoring</a> and terminal services for certain shipping companies in the ports of Halifax, St. John, Montreal, Mont Louis, Rimouski and Toronto. Its operations consisted exclusively of services rendered in connection with the loading and unloading of ships, pursuant to contracts with numerous shipping companies to handle all loading and unloading of their ships arriving and departing during that season. All these ships were operated on regular schedules between ports in Canada and ports outside of Canada.
<figure><img src="https://static.wixstatic.com/media/11062b_a96be23e2cac4329b1cdbb08350a2223~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Reference re: Industrial Relations and Disputes Investigation Act (Canada)"></figure>
In Stevedores' Reference, eight of nine judges concluded that federal labour law applied to the <a href="https://en.wikipedia.org/wiki/Stevedore" target="_blank">stevedores</a> in question because their work was integral to the federally regulated shipping companies that used them. The majority reasoned that the core federal undertaking was dependent to a significant degree on the workers in question and that the employees devoted all their time to the shipping companies and that those companies relied on them exclusively to load and unload all of their cargo.
 
The Supreme Court held, at p. 568 of S.C.R, that "[i]f . . . the work of stevedoring, as performed under the foregoing contracts, is an integral part or necessarily incidental to the effective operation of these lines of steam ships, legislation in relation thereto can only be competently enacted by the Parliament of Canada".
 
<h4>ii. Letter Carriers'</h4>
<figure><img src="https://static.wixstatic.com/media/11062b_88b10072c9104774819b4c81b3e4fc71~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Letter Carriers' - derivative jurisdiction case"></figure>
Letter Carrier’s Union of Canada v. Canadian Union of Postal Workers et al., <a href="https://canlii.ca/t/1xv5s" target="_blank">[1975] 1 S.C.R. 178</a>
 
M & B Ltd. held a number of contracts with the <a href="https://www.canadapost-postescanada.ca/cpc/en/home.page" target="_blank">Canada Post Office</a> for the delivery and collection of mail and the work that was thereby involved constituted approximately 90 per cent of the company’s business. The company also held an “A” licence under which it did certain furniture hauling and this accounted for the remaining part of its business.
 
The Supreme Court held, at pp. 185-86 S.C.R., that the company's employees performing work under contracts with the Post Office were subject to <a href="https://www.htwlaw.ca/federally-regulated-employee" target="_blank">federal jurisdiction</a> as the local operation is "an integral part or necessarily incidental to the effective operation" of the federal undertaking. The post office is dependent upon its subcontractors for mail delivery.
 
<h3>b. When the Employment is an Integral Part of a Federally Regulated Undertaking</h3>
 
<h4>i. Telecom</h4>
<figure><img src="https://static.wixstatic.com/media/a125200603ebdc3b45c85cbe72a4deea.jpg/v1/fit/w_1000,h_919,al_c,q_80/file.png"alt="Telecom - derivative jurisdiction case"></figure>
Northern Telecom Ltd. v. Communications Workers of Canada, <a href="https://canlii.ca/t/1mjtb" target="_blank">[1980] 1 S.C.R. 115</a> and <a href="https://canlii.ca/t/1lpdl" target="_blank">[1983] 1 S.C.R. 733</a>
 
Two similar cases involving the same group of employees of Telecom was brought in front of Supreme Court of Canada. 
 
One of the key issue at hand is whether a subset of Northern Telecom's employees who worked in its installation department were subject to <a href="https://www.htwlaw.ca/federally-regulated-employee" target="_blank">federal labour laws</a>. The installation department installed telecommunications equipment in the federally regulated telephone network of Northern Telecom's parent corporation, Bell Canada.
 
The Supreme Court held, at p. 774 S.C.R, that the labour relations of Northern Telecom should be federally regulated.
<figure><img src="https://static.wixstatic.com/media/7f14bd5b24c941fe82b08f34c1a84764.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Northern Telecom Ltd. v. Communications Workers of Canada"></figure>
The Supreme Court reasoned that Northern Telecom was a subsidiary of Bell. Bell acquired 90 per cent of its switching and transmission equipment from Northern Telecom and 95 per cent of all such equipment was installed by Northern Telecom. 
 
Northern Telecom's installers had no contact with the other Northern Telecom employees engaged in manufacturing, but instead worked closely with Bell employees, spending "the great bulk of their time" on Bell's premises (at p. 767 S.C.R.) and never working on Telecom's premises (at p. 770 S.C.R.). The work for Bell consumed a very high percentage of the work done by the installers (at p. 767 S.C.R.).
 
Key factors weighing in favour of federal jurisdiction included "[t]he almost complete integration of the installers' daily work routines with the task of establishing and operating [Bell's] telecommunications network" (at pp. 766-67 S.C.R.) and the interprovincial scope of the work of the employees, which extended into at least five provinces (at p. 768 S.C.R.).
 
<h3>c. When Provincial Jurisdiction is Not Displayed by Federal Employment Laws</h3>
 
<h4>i. United Transportation Union v. Central Western Railway Corp.</h4>
<figure><img src="https://static.wixstatic.com/media/11062b_3b6fcff0d1f94a6a9cd54332e36f1913~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="United Transportation Union - drivative jurisdiction case"></figure>
United Transportation Union v. Central Western Railway Corp., <a href="https://canlii.ca/t/1fsp9" target="_blank">[1990] 3 SCR 1112</a>
 
In United Transportation, the Supreme Court declined to find derivative jurisdiction over a local railway's employees. United Transportation arose out of the sale of a 105-mile railway line in Alberta from Canadian National Railway, a federally regulated railway company, to a provincial railway company, Central Western Railway Corporation. 
 
There was no daily or simultaneous connection between Canadian National Railway and Central Western Railway Corporation. Each company operated independently within its own sphere. The employees of Central Western Railway Corporation were located wholly within Alberta. (United Transportation, at p. 1141 S.C.R.)
 
The Supreme Court held that <a href="https://www.htwlaw.ca/federally-regulated-employee" target="_blank">federal labour legislation</a> no longer applies to the employees working on the railway line after the sale.
<figure><img src="https://static.wixstatic.com/media/11062b_3dc01b3c08264db5a164614243d5363b~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
The Supreme Court held, at p. 1142 S.C.R., that:
 
It cannot be said that Canadian National Railway is in any way dependent on the services of Central Western Railway Corporation. Since 1963, Canadian National Railway has consistently wanted to abandon the Central Western rail line, indicating that the line is not vital or essential to its operations. The effective performance of Canadian National Railway's obligations as a national railway is not contingent upon the services of Central Western Railway Corporation. The core federal undertaking would not be severely disadvantaged if Central Western Railway Corporation’s employees failed to perform their usual tasks. These factors point strongly, almost decisively, against a finding of federal jurisdiction over the employees in question.
 
<h4>ii. Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail)</h4>
<figure><img src="https://static.wixstatic.com/media/11062b_2e29978939ab4b23a1a8f20e6d4933f8~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Tessier - derivative jurisdiction case"></figure>
Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), <a href="https://canlii.ca/t/frc5f" target="_blank">2012 SCC 23</a>
 
In Tessier, the Supreme Court declined to find derivative jurisdiction yet again.
 
Tessier is a heavy equipment rental company that rents out cranes and heavy equipment. It also engages in intra‑provincial road transportation and maintenance and repair of equipment. In 2005‑2006, some of its cranes were used for <a href="https://en.wikipedia.org/wiki/Stevedore" target="_blank">stevedoring </a>(loading and unloading ships). This activity represented 14 percent of its overall revenue and 20 percent of the salaries paid to employees. Tessie’s stevedoring services were not performed by a discrete unit of employees; the employees were fully integrated into Tessier’s workforce and worked interchangeably across the different sectors of the organization. At the relevant time, all of Tessier’s activities took place within the province of Quebec.
<figure><img src="https://static.wixstatic.com/media/11062b_51b43d659ec24e46bc510178f0e30101~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail)"></figure>
In 2006, Tessier’s parent company sought a declaration from Quebec’s Commission de la santé et de la sécurité du travail (“CSST”) that Tessier’s stevedoring activities fell under federal jurisdiction over shipping, with the result that its employees should not be governed by provincial occupational health and safety legislation. The case went all the way to the Supreme Court of Canada.
 
The Supreme Court held that Tessier devoted the majority of its efforts to provincially regulated activities. Its essential operational nature is local, and its stevedoring activities, which are integrated with its overall operations, form a relatively minor part of its overall operation. As a result, Tessier’s employees are governed by provincial <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">occupational health and safety</a> legislation.
<figure><img src="https://static.wixstatic.com/media/11062b_83dfbe41d6664fd18b8250d8cbf2ca24~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="tessier - derivative jurisdiction test"></figure>
The Supreme Court stated that the derivative jurisdiction test for labour relations is applied in three contexts:
 
1. <a href="https://www.htwlaw.ca/federally-regulated-employee" target="_blank">Federal labour regulation</a> may be justified when the services provided to the federal undertaking form the exclusive or principal part of the related work’s activities (Stevedores Reference; Letter Carriers’). (Tessier, para. <a href="https://canlii.ca/t/frc5f#par48" target="_blank">48</a>)
 
2. Federal labour regulation may be justified when the services provided to the federal undertaking are performed by employees who form a functionally discrete unit that can be constitutionally characterized separately from the rest of the related operation (Telecom). (Tessier, para. <a href="https://canlii.ca/t/frc5f#par49" target="_blank">49</a>)
 
3. In cases where “the employees performing the work do not form a discrete unit and are fully integrated into the related operation", the Court is to consider whether the employment is an integral part of a federally regulated undertaking. (Tessier, para. <a href="https://canlii.ca/t/frc5f#par50" target="_blank">50</a>)
<figure><img src="https://static.wixstatic.com/media/554f48e877d3e4e71b8fb72dfd2adb4c.jpg/v1/fit/w_1000,h_960,al_c,q_80/file.png"alt="tessier - dependency alone not enough - federal derivative jurisdiction doctrine"></figure>
The Supreme Court reasoned, at para. <a href="https://canlii.ca/t/frc5f#par50" target="_blank">50</a>, that dependency alone may not be sufficient to transfer a work or undertaking to federal jurisdiction and that “even if the work of those employees is vital to the functioning of a federal undertaking, it will not render federal an operation that is otherwise local if the work represents an insignificant part of the employees’ time or is a minor aspect of the essential ongoing nature of the operation”.
 
The decision in Tessier was in line with United Transportation mentioned above.
 
<h4>iii. Ramkey Communications Inc. v Labourers’ International Union </h4>
<figure><img src="https://static.wixstatic.com/media/11062b_f67dff5c5ff74c32bfc124c6a631424c~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Ramkey Communications Inc. v Labourers’ International Union "></figure>
Ramkey Communications Inc. v Labourers’ International Union of North America, <a href="https://canlii.ca/t/j34hr" target="_blank">2019 ONCA 859</a>
 
In this case, the Federal Derivative Jurisdiction test was effectively demonstrated. 
 
One of the issue in the case is whether Ramkey Communications Inc. is a <a href="https://www.htwlaw.ca/federally-regulated-employee" target="_blank">federally regulated business</a> or is it subject to Ontario employment laws.
 
Ramkey, the employer, argued that its construction technicians performed essential work for federally regulated telecommunications companies which meant that their labour relations should be federally regulated.
<figure><img src="https://static.wixstatic.com/media/491d2c_5a4350364c094b8e9755125213e8cbc1~mv2.jpg/v1/fit/w_998,h_213,al_c,q_80/file.png"alt="ramkey - whether construction worker for rogers federally regulated - derivative jurisdiction"></figure>
At all material time, Rogers was Ramkey’s main client, with the construction work for Rogers accounting for 10-13% of Ramkey’s revenues. For the construction technicians, the work with Rogers represented the bulk of their work. However, despite being Ramkey’s main client, Rogers always had more than one contractor in the geographic areas where it operates.
 
The case went all the way to the <a href="https://www.ontariocourts.ca/coa/decisions_main/" target="_blank">Ontario Court of Appeal</a>. The Court of Appeal agreed with the Union and held that it would not impose exceptional federal jurisdiction over Ramkey’s construction technicians citing the doctrine of derivative jurisdiction, as shown in Tessier, <a href="https://canlii.ca/t/frc5f" target="_blank">2012 SCC 23</a> above, in making it’s decision (Ramkey, at para. <a href="https://canlii.ca/t/j34hr#par30" target="_blank">30</a>, <a href="https://canlii.ca/t/j34hr#par32" target="_blank">32</a>).
<figure><img src="https://static.wixstatic.com/media/11062b_2d60145a58214f47a9115d8391c12c77~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Ramkey Communications Inc. v Labourers’ International Union of North America - federal derivative jurisdiction case"></figure>
The Court of Appeal stated that, under the doctrine of derivative jurisdiction, presumptive constitutional jurisdiction of the provincial government will not be displaced unless an otherwise provincial function (i) relates to a work, undertaking, or business within the legislative authority of the federal government; or (ii) is an integral part of a federally regulated undertaking.
 
i) whether the employment relates to a work, undertaking, or business within the legislative authority of Parliament
<figure><img src="https://static.wixstatic.com/media/11062b_30d271f80b1a48d699abbad61f73a42e~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="whether the employment relates to a work, undertaking, or business within the legislative authority of Parliament - first circumstance - derivative jurisdiction"></figure>
The Court of Appeal held: “The first circumstance is not applicable here: Ramkey is a local work and does not itself own or operate a <a href="https://www.htwlaw.ca/federally-regulated-employee" target="_blank">federally regulated</a> telecommunications network. This appeal concerns the second circumstance.” (Ramkey, at para. <a href="https://canlii.ca/t/j34hr#par33" target="_blank">33</a>).
 
ii) Whether the employment is an integral part of a federally regulated undertaking
<figure><img src="https://static.wixstatic.com/media/e2df6a907c0c4fe6b0112734cf0cf807.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Whether the employment is an integral part of a federally regulated undertaking - second circumstance - federal derivative jurisdiction test"></figure>
The Court of Appeal held that the issue was one of the second circumstance as to whether the <a href="https://en.wikipedia.org/wiki/Telecommunications_network" target="_blank">telecommunications network</a> operated by Rogers was dependent on the construction technicians and that the employment of Ramkey’s construction technicians was an integral part of a telecommunications network such that Parliament has jurisdiction over it.
 
The Court of Appeal decided that Ramkey’s construction technicians were not vital or integral to the operations of Rogers or any other federal telecommunications undertaking, and as such Ontario’s jurisdiction isn’t displaced by the test for derivative federal jurisdiction.
<figure><img src="https://static.wixstatic.com/media/491d2c_629a2462126549dc917c2f857ad31aa1~mv2.png/v1/fit/w_226,h_298,al_c,q_80/file.png"alt="court of appeal ruling on federal derivative jurisdiction case"></figure>
The Court of Appeal held that the the evidence is clear that “Rogers was not dependent on Ramkey's construction technicians. The effective performance of Rogers' telecommunications network was not contingent upon the services of Ramkey's construction technicians. The controls Rogers had over Ramkey were no greater than any owner / client or general contractor in the construction industry might exercise over any subcontractor. Rogers only began using Ramkey's construction technicians in 2014. It had no long- term commitment to use Ramkey's construction technicians. It never relied exclusively on Ramkey's construction technicians. In 2016, in the course of the hearing before the Ontario Labour Relations Board, Rogers "pulled back" all the construction work it had given to Ramkey's construction technicians. Ramkey's competitors performed the construction work Ramkey used to do for Rogers.” (Ramkey, at para. <a href="https://canlii.ca/t/j34hr#par64" target="_blank">64</a>).
 
<h2>4. Conclusion</h2>
 
Non-union workers in Ontario are governed by the Employment Standards Act.
The Canada Labour Code, on the other hand, governs federally regulated businesses.
The two sets of labour legislation differ significantly in various ways. 
 
The federal government has jurisdiction to displace provincial jurisdiction to regulate labour relations 1) when the employment relates to a work, undertaking, or business within Parliament's legislative authority; or 2) when it is an integral part of a federally regulated undertaking, a concept known as derivative jurisdiction. 
 
When you are in doubt as to whether you are a federal worker or not, you are well advised to <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">consult with an employment lawyer</a> experienced in <a href="https://www.htwlaw.ca/federally-regulated-employee" target="_blank">federal regulated worker</a> matters. 
<figure><img src="https://static.wixstatic.com/media/491d2c_e75078ba610a403e88042cec43cdaa37~mv2.jpg/v1/fit/w_304,h_202,al_c,q_80/file.png"alt="lawyer consultation for federally regulated worker"></figure>
When you have been <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">terminated wrongfully</a> or you have been <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructively dismissed</a> or that you are a victim of <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment</a> or <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a>, you should consults with an <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">employment lawyer</a> or you risk waiving your legal rights under <a href="https://en.wikipedia.org/wiki/Common_law" target="_blank">Common law</a>, the Human Rights Code or your rights in <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">suing for wrongful dismissal</a>, <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructive dismissal</a> or <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a>.
 
If you are a <a href="https://www.htwlaw.ca/federally-regulated-employee" target="_blank">federally regulated employee</a>, and you think you have been <a href="https://www.htwlaw.ca/federally-regulated-employee" target="_blank">unjustly dismissed</a>, or if you are an employer being served with a <a href="https://www.htwlaw.ca/unjust-dismissal-wrongful-dismissal" target="_blank">claim of unjust dismissal</a>, you are highly recommended to <a href="https://www.htwlaw.ca/contactus" target="_blank">seek legal advice</a> immediately from an experienced <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">employment lawyer</a>. <a href="https://www.canada.ca/en/services/jobs/workplace/federally-regulated-industries/canada-labour-code-parts-overview.html" target="_blank">Canada Labour Code</a> is highly complex and an <a href="https://www.canada.ca/en/employment-social-development/services/labour-standards/reports/unjust-dismissal.html" target="_blank">unjust dismissal claim</a> is technical. In some cases, you have a VERY LIMITED amount of time to act on it, or be forever hold your peace.
 
<figure><img src="https://static.wixstatic.com/media/491d2c_169a70b0999a4c0da920be9d48ed6bb5~mv2.jpg/v1/fit/w_984,h_510,al_c,q_80/file.png"title="HTW Law - Employment Lawyer Contact Information"alt="HTW Law - Employment Lawyer Contact Information"></figure>
Don't Wait, Act Now before it's too late. Call us now at <a href="tel:+1 647-849-6582" target="_blank">647-849-6582</a> or <a href="https://www.htwlaw.ca/contactus" target="_blank">Contact Us</a> Now if you have any questions or concerns in related to <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contract</a>, <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">termination</a>, <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination</a> , <a href="https://www.htwlaw.ca/federally-regulated-employee" target="_blank">federally regulated employee</a>, or <a href="https://www.htwlaw.ca/severance-pay" target="_blank">severance package</a> or you want to book an appointment for a <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">legal consultation</a>. ]]></content:encoded></item><item><title><![CDATA[Disability Discrimination Ultimate Guide]]></title><description><![CDATA[This is the ultimate guide to disability discrimination and a complete guide regarding suing for disability discrimination.]]></description><link>https://www.htwlaw.ca/post/disability-discrimination</link><guid isPermaLink="false">623061b1b279359090ec5ba6</guid><category><![CDATA[Disability Law]]></category><category><![CDATA[Wrongful Dismissal]]></category><category><![CDATA[Workplace Harassment]]></category><category><![CDATA[Workplace Discrimination]]></category><category><![CDATA[Employment Contract]]></category><pubDate>Sun, 08 May 2022 17:40:26 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/949c5aef51724256b31ea56be6b3690c.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Tony Wong</dc:creator><content:encoded><![CDATA[This is the ultimate guide to <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">disability discrimination</a> and a complete guide regarding <a href="#dolau" rel="noopener noreferrer">suing for disability discrimination</a>. In this Disability Discrimination Definite Guide, we'll talk about <a href="https://www.ontariocourts.ca/scj/" target="_blank">Ontario cases</a>, <a href="https://www.scc-csc.ca/home-accueil/index-eng.aspx" target="_blank">Supreme Court</a> cases, <a href="https://tribunalsontario.ca/hrto/" target="_blank">Human Rights Tribunal</a> decisions, and decisions from other <a href="https://www.ombudsman.on.ca/have-a-complaint/administrative-tribunals" target="_blank">administrative tribunals</a> regarding <a href="#2lu15" rel="noopener noreferrer">disability discrimination</a>, protections available against disability harassment, and <a href="#9ebv8" rel="noopener noreferrer">legal defence</a> against disability claims. Continue reading to learn more.
<figure><img src="https://static.wixstatic.com/media/949c5aef51724256b31ea56be6b3690c.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Disability Discrimination Ultimate Guide"></figure>
<h3>Topics Will be Covered in the Disability Discrimination Definite Guide:</h3>
<ol>
<li><a href="#2lu15" rel="noopener noreferrer">What is Disability Discrimination?</a> </li>
<li><a href="#dolau" rel="noopener noreferrer">The Legal Test and the Consequence of a Finding of Disability Discrimination</a> </li>
<li><a href="#c7ffn" rel="noopener noreferrer">Disability Related STD and LTD, WSIB Claims</a> <ol>
<li><a href="#5llob" rel="noopener noreferrer">Short-Term Disability and Long-Term Disability Claims</a> </li>
<li><a href="#34gup" rel="noopener noreferrer">Disability Related WSIB Claims</a> <ol>
<li><a href="#2v4gv" rel="noopener noreferrer">WSIB Chronic Mental Stress and Traumatic Mental Stress Defined</a> </li>
<li><a href="#au9cv" rel="noopener noreferrer">WSIB Chronic Mental Stress Policy Explained</a> </li>
<li><a href="#ck32n" rel="noopener noreferrer">WSIB Traumatic Mental Stress Policy Explained</a> </li>
</ol></li>
</ol></li>
<li><a href="#18rnn" rel="noopener noreferrer">HRTO Substance Related Disorder Discrimination Claims</a><ol>
<li><a href="#3msai" rel="noopener noreferrer">HRTO Protections Against Substance Related Disorder</a> </li>
<li><a href="#7dfop" rel="noopener noreferrer">Substance Use Disorders</a> </li>
<li><a href="#5o8ls" rel="noopener noreferrer">Substance Induced Disorders</a> </li>
</ol></li>
<li><a href="#7sbh4" rel="noopener noreferrer">Duty to Accommodate and Undue Hardship in Disability Cases</a><ol>
<li><a href="#651v2" rel="noopener noreferrer">Duty to Accommodate Defined</a> </li>
<li><a href="#afocr" rel="noopener noreferrer">What Triggers the Duty to Accommodate a Disability?</a> </li>
<li><a href="#8c8r8" rel="noopener noreferrer">What Constitutes Undue Hardship?</a></li>
</ol></li>
<li><a href="#9ebv8" rel="noopener noreferrer">Legal defences Against A Claim of Disability Discrimination </a> <ol>
<li><a href="#bocpi" rel="noopener noreferrer">Bona Fide Occupational Requirement (BFOR)</a> </li>
<li><a href="#f6ct1" rel="noopener noreferrer">Frustration of Contract</a> <ol>
<li><a href="#73ui1" rel="noopener noreferrer">Frustration of Contract Defined</a> </li>
<li><a href="#29ppj" rel="noopener noreferrer">Recent Frustration of Contract Cases</a> <ol>
<li><a href="#8tf7d" rel="noopener noreferrer">Reasonable Prospect of Return to Work</a> </li>
<li><a href="#8g8h4" rel="noopener noreferrer">Duty to Accommodate vs. Frustration of Contract</a> </li>
</ol></li>
</ol></li>
<li><a href="#8qg2q" rel="noopener noreferrer">Section 31 of the Workplace Safety and Insurance Act (WSIA)</a> </li>
</ol></li>
<li><a href="#7u3s7" rel="noopener noreferrer">Other Statutory Protections for Disabled and Injured Employees</a> <ol>
<li><a href="#f2452" rel="noopener noreferrer">Regulation 288/1 Enacted Under the </a><a href="#f2452" rel="noopener noreferrer">Employment Standards Act</a> </li>
<li><a href="#ahko6" rel="noopener noreferrer">Workplace Safety and Insurance Act</a></li>
</ol></li>
<li><a href="#fjo0i" rel="noopener noreferrer">How HTW Law Can Assist you In a Disability Case</a> <ol>
<li><a href="#f8cr7" rel="noopener noreferrer">Why you Need a Disability Lawyer?</a> </li>
<li><a href="#dbmc" rel="noopener noreferrer">Core Beliefs at HTW Law – Employment Lawyer</a> </li>
<li><a href="#5slon" rel="noopener noreferrer">The HTW Law – Employment Lawyer Advantage</a> </li>
</ol></li>
<li><a href="#6gi9i" rel="noopener noreferrer">Conclusion</a><a href="#6gi9i" rel="noopener noreferrer"> </a> </li>
</ol>
<h2>1. What is Disability Discrimination? </h2>
<figure><img src="https://static.wixstatic.com/media/9547fd173f4c4e86940c4681a87033a7.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="What is Disability Discrimination? "></figure>
“<a href="https://www.ohrc.on.ca/en/policy-ableism-and-discrimination-based-disability/2-what-disability" target="_blank">Disability</a>” is defined at <a href="https://www.ontario.ca/laws/statute/90h19#BK12" target="_blank">section 10(1)</a> of the <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Ontario Human Right Code</a> (the Code) and includes physical and mental conditions as well as <a href="https://www.thesafetymag.com/ca/topics/safety-and-ppe/the-five-most-common-types-of-workplace-injuries/316462" target="_blank">workplace injuries</a>. The <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">test for discrimination</a> on the ground of disability requires an applicant to demonstrate (1) they are a person with a disability as defined by the Code, (2) they were subjected to differential or adverse treatment in employment; and (3) their disability was at least one factor in their treatment.
 
<a href="https://www.ontario.ca/laws/statute/90h19#BK19" target="_blank">Section 17</a> of the Code is an interpretive provision which effectively creates a <a href="#7sbh4" rel="noopener noreferrer">duty to accommodate</a> on an employer to the point of <a href="https://en.wikipedia.org/wiki/Undue_hardship" target="_blank">undue hardship</a> for a disabled employee who can still perform the <a href="https://www.lawinsider.com/dictionary/essential-duty" target="_blank">essential duties</a> of their job. <a href="https://www.ontario.ca/laws/statute/90h19#BK19" target="_blank">Section 17 (2)</a> specifies the factors relevant to undue hardship, being cost, outside sources of funding, if any, and health and safety requirements, if any. Business inconvenience is NOT a factor in the analysis.
<figure><img src="https://static.wixstatic.com/media/491d2c_1540822c5b5747c597465c5670426cd6~mv2.jpg/v1/fit/w_1000,h_270,al_c,q_80/file.png"alt="different form of disability discrimination"></figure>
While <a href="https://kines.rutgers.edu/dshw/disabilities/physical/1060-physical-disabilities" target="_blank">physical disability</a> is often easier to comprehend, <a href="https://www.ohrc.on.ca/en/human-rights-and-mental-health-fact-sheet" target="_blank">mental disability</a> is more complex and may sometimes be invisible to the average onlookers. <a href="https://www.ontario.ca/laws/statute/90h19#BK12" target="_blank">Section 10(1)</a> of the Code provides a broad definition of disability, which covers mental health disabilities under subsection (b) a “condition of mental impairment” and (d) “mental disorder.”
<figure><img src="https://static.wixstatic.com/media/491d2c_9ce3537899374e56a68c8bbcb2dbdb8d~mv2.jpg/v1/fit/w_408,h_95,al_c,q_80/file.png"alt="Ontario Human Rights Commission"></figure>
Please <a href="https://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions/4-recognizing-mental-health-disabilities-and-addictions" target="_blank">click here</a> to learn more about about the <a href="https://www.ohrc.on.ca/en" target="_blank">Ontario Human Rights Commission</a>'s <a href="https://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions/4-recognizing-mental-health-disabilities-and-addictions" target="_blank">Policy on preventing discrimination based on mental health disabilities and addictions</a>.
 
Apart from physical and mental disabilities, <a href="https://www.medicalnewstoday.com/articles/323465" target="_blank">addiction</a> and <a href="https://www.hopkinsmedicine.org/health/conditions-and-diseases/substance-abuse-chemical-dependency" target="_blank">severe substance abuse</a>, such as <a href="https://en.wikipedia.org/wiki/Alcoholism" target="_blank">alcoholism</a> and <a href="https://www.webmd.com/mental-health/addiction/drug-abuse-addiction#1" target="_blank">drug abuses</a>, is classified as a form of <a href="https://en.wikipedia.org/wiki/Substance_dependence" target="_blank">substance dependence</a>, which has been recognized as a form of disability.
<figure><img src="https://static.wixstatic.com/media/11062b_f51301a201244adda0742ea018c9f7dd~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Entrop v. Imperial Oil Limited"></figure>
For instance, in <a href="https://canlii.ca/t/1fbcd" target="_blank">Entrop v. Imperial Oil Limited</a>, the <a href="https://www.ontariocourts.ca/coa/" target="_blank">Court of Appeal</a> has held in <a href="https://canlii.ca/t/1fbcd#par89" target="_blank">para. 89</a> that substance abuse such as drug abuse and alcohol abuse is "an illness or disease creating physical disability or mental impairment and interfering with physical, psychological and social functioning", and that "Drug dependence and alcohol dependence ... are severe forms of substance abuse", and as such "substance abusers are handicapped and entitled to the protection of the Code".
 
According to the Ontario Human Rights Commission's <a href="https://www.ohrc.on.ca/es/node/2861" target="_blank">Drug or alcohol dependency and abuse as a disability</a>:
 
1. The use of legal or illicit drugs or alcohol may fall within the protection of the <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Human Rights Code</a>, where an individual's use of drugs or alcohol has reached the stage that it constitutes severe substance abuse, addiction or dependency, e.g. <a href="https://www.healthline.com/health/maladaptive-behavior" target="_blank">maladaptive</a> patterns of substance use leading to significant impairment or distress, including:
(a) continued substance abuse resulting in a failure to perform <a href="https://www.lawinsider.com/dictionary/essential-duty" target="_blank">essential duties</a> at work;
(b) continued substance abuse in situations which are physically hazardous;
(c) continued substance abuse despite persistent social, legal or interpersonal problems caused or aggravated by the effects of the substance.
 
2. The <a href="https://hrlsc.on.ca/en/how-guides-and-faqs/human-rights-ontario" target="_blank">Human Rights Code</a> also protects individuals who has had a drug or alcohol dependency in the past, or is perceived as having an addiction or dependency due to drug or alcohol use, and be discriminated against accordingly.
<figure><img src="https://static.wixstatic.com/media/491d2c_a7675d9c24064e3d921b2a0cfb9b7e6b~mv2.jpg/v1/fit/w_624,h_414,al_c,q_80/file.png"alt="drug abuse disability"></figure>
Three most common types of <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">disability discrimination</a>:
 
Type 1: An employee was injured or suffered from a serious illness and was unable to return to work temporarily, claiming WSIB, STD, LTD; however, when the employee files a request to return to work after the treating physician deemed him or her <a href="https://www.ccohs.ca/oshanswers/psychosocial/fit_to_work.html" target="_blank">fit to return to work</a>, the employer denies the request and terminates the employee.
 
Type 2: An employee has been injured or suffers from an illness, resulting in an impairment that restricts his or her ability to be fully functioning at his or her job capacity, and when he or she requests accommodations, the employer fails to discharge the <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">duty to accommodate</a> and dismisses the employee.
 
Type 3: An employer refuses to promote or let go an employee based on the perception that the employee is addicted to drugs or alcohol, or that the employee has a history of addiction, without discharging the <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">duty to investigate</a> to determine whether that is true or whether the employee has overcome such dependency.
<figure><img src="https://static.wixstatic.com/media/491d2c_169a70b0999a4c0da920be9d48ed6bb5~mv2.jpg/v1/fit/w_984,h_510,al_c,q_80/file.png"alt="HTW Law - Employment Lawyer, Contact Us Now"></figure>
 
<h2>2. The Legal Test and the Consequence of a Finding of Disability Discrimination</h2>
<figure><img src="https://static.wixstatic.com/media/9c3e43af2b0549bdbcc0c88bda3e1e1e.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="The Legal Test and the Consequence of a Finding of Disability Discrimination"></figure>
<a href="https://www.ontario.ca/laws/statute/90h19#BK6" target="_blank">Section 5</a> of the Human Right Code states that an employer cannot discriminate a person based on disability. 
 
According to the Misetich approach as established in Misetich v. Value Village Stores Inc., <a href="https://canlii.ca/t/gtvp9" target="_blank">2016 HRTO 1229</a>, the test for <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination</a> is as follows:
<ol>
<li>The Applicant must establish they have a characteristic protected from discrimination under the Code;</li>
<li>The Applicant must establish an adverse impact; and</li>
<li>The Applicant must establish the protected characteristic was a factor in the adverse impact.</li>
</ol>
(Misetich, at <a href="https://canlii.ca/t/gtvp9#par43" target="_blank">para. 43</a>)
<figure><img src="https://static.wixstatic.com/media/11062b_1be75569e8f243b5993d5a3b34612e70~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Misetich v. Value Village Stores Inc."></figure>
Once these factors are established, <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">prima facie discrimination</a> exists and the evidentiary burden shifts to the respondent employer to demonstrate that the employee cannot be <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">accommodated</a> to the point of <a href="https://en.wikipedia.org/wiki/Undue_hardship" target="_blank">undue hardship</a>. The accommodation process is a multi-party inquiry and the employee is obligated to cooperate in this process, providing sufficient information with respect to their disabilities and then working with the employer to identify possible solutions to accommodate the personal circumstances of the disabled workers.
<figure><img src="https://static.wixstatic.com/media/11062b_d65a2df3360b41c7b37c7f41d37de7ff~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate"></figure>
To learn more about the <a href="https://www.medleague.com/medical-record-legal-nurse-ehr-expert-emr/" target="_blank">medical documentation</a> required in Disability Cases, please read the following related blog post:
 
<a href="https://www.htwlaw.ca/post/a-legal-analysis-on-the-medical-documentation-in-disability-cases-and-the-duty-to-accommodate" target="_blank">A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate</a> 
 
<figure><img src="https://static.wixstatic.com/media/491d2c_b107ecfa65b1425396c12f41523e57a3~mv2.jpg/v1/fit/w_800,h_151,al_c,q_80/file.png"alt="Ontario Human Rights Tribunal"></figure>
Where the Applicant has successfully proven a case of discrimination, the <a href="https://tribunalsontario.ca/hrto/" target="_blank">Human Rights Tribunal</a> has the authority to <a href="https://www.hrlsc.on.ca/en/node/390" target="_blank">award a variety of of remedies</a>, including:
 
(a) <a href="https://www.investopedia.com/terms/b/back-pay.asp" target="_blank">Back Pay</a> all lost wages from the date of the <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination</a> to the date of the issuance of a <a href="https://tribunalsontario.ca/hrto/decisions/" target="_blank">Decision</a> (which could take a number of years in many cases;
 
(b) All costs (<a href="https://www.lawinsider.com/dictionary/pecuniary-damages" target="_blank">Special or Pecuniary Damage</a>) incurred as a result of the discrimination;
 
(c) An amount to cover “injury to dignity, feelings and self-respect”, often referred to as <a href="https://en.wikipedia.org/wiki/Damages" target="_blank">general damages</a>. Depending on the <a href="https://www.ohrc.on.ca/en/iii-principles-and-concepts/3-grounds-discrimination-definitions-and-scope-protection" target="_blank">manners of discrimination</a>, this amount can range from a few hundred dollars to many thousands of dollars.
 
(d) <a href="https://www.hrlsc.on.ca/en/node/390#12" target="_blank">Public interest remedies</a> such as training of management and employees, posting of information regarding human rights, amendments to policies and procedures, etc.;
 
(e) Any other remedy required to ensure that an employer complies with the Code.
 
<h2>3. Disability Related STD and LTD, WSIB Claims </h2>
<figure><img src="https://static.wixstatic.com/media/523cf885560e2e97c24a642a188003a7.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Disability Related STD and LTD, WSIB Claims "></figure>
<h3>a. Short-Term Disability and Long-Term Disability Claims</h3>
 
When filing a claim for <a href="https://www.canada.ca/en/financial-consumer-agency/services/insurance/disability.html#toc1" target="_blank">Short-Term Disability</a> (STD) and <a href="https://www.canada.ca/en/financial-consumer-agency/services/insurance/disability.html#toc2" target="_blank">Long-Term Disability</a> (LTD), insurance companies typically require employee, employer, and treating physician statements:
 
- Employee statements are submitted by the claimant employee. Employee statements must be brief and precise in describing how the claimant's impairment prevents them from performing essential tasks, and a description of how the claimant's symptoms affect their ability to work, including a reference to specific activities required in that employee's job. 
 
- Employer statements are submitted by the employers. Employers must submit a full description of the claimant's responsibilities, as well as information regarding the employer's ability to make reasonable accommodations to enable the disabled employee to continue working. 
 
- Claims evaluators frequently look treating physicians' statements. Treating doctors are required to state the claimant's symptoms, diagnosis, suggested therapy, the claimant's involvement in treatment, and an evaluation of why the claimant is unable to work. Copies of evaluations and appointment records must also be included in the statement. 
<figure><img src="https://static.wixstatic.com/media/491d2c_12ca319c1c7b43149d932e3d1e33382c~mv2.jpg/v1/fit/w_740,h_491,al_c,q_80/file.png"alt="Interplay between Long Term Disability, Wrongful Dismissal, Disability Discrimination"></figure>
Please read this blog post if you want to learn more about the intricacy between <a href="https://www.canada.ca/en/financial-consumer-agency/services/insurance/disability.html" target="_blank">Long Term Disability</a>, <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">Wrongful Dismissal</a>, <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">Disability Discrimination</a>:
 
<a href="https://www.htwlaw.ca/post/interplay-between-long-term-disability-wrongful-dismissal-disability-discrimination" target="_blank">Interplay between Long Term Disability, Wrongful Dismissal, Disability Discrimination</a>
 
Please read this blog post if you want to learn more about the Medical Documentation in Disability Cases:
 
<a href="https://www.htwlaw.ca/post/a-legal-analysis-on-the-medical-documentation-in-disability-cases-and-the-duty-to-accommodate" target="_blank">A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate</a> 
 
Please read this blog post if you want to learn more about the myth of the "2-Year" Rule in Disability Cases:
 
<a href="https://www.htwlaw.ca/post/the-persistent-myth-of-the-2-year-rule-in-disability-cases" target="_blank">The Persistent Myth of the "2-Year" Rule in Disability Cases</a> 
 
<h3>b. Disability Related WSIB Claims </h3>
<figure><img src="https://static.wixstatic.com/media/491d2c_83ae4448862945f8bded6a2ab7d3f405~mv2.jpg/v1/fit/w_412,h_240,al_c,q_80/file.png"alt="WSIB Ontario"></figure>
<h4>i. WSIB Chronic Mental Stress and Traumatic Mental Stress Defined</h4>
 
A physical <a href="https://www.wsib.ca/en/businesses/claims/report-injury-or-illness" target="_blank">injury WSIB Claim</a> is easy and strict forward that doesn't require further explanation. But a <a href="https://medlineplus.gov/ency/article/003211.htm" target="_blank">mental stress</a> related <a href="https://www.wsib.ca/en/claims" target="_blank">WSIB claim</a> is more complicated that deserves further explanation.
 
Under <a href="https://www.ontario.ca/laws/statute/97w16#BK12" target="_blank">Section 13</a> of the <a href="https://www.ontario.ca/laws/statute/97w16" target="_blank">Workplace Safety and Insurance Act</a> (<a href="https://www.wsib.ca/en/policy/workplace-safety-and-insurance-act" target="_blank">WSIA</a>), a worker is entitled to claim benefits for <a href="https://www.wsib.ca/en/operational-policy-manual/chronic-mental-stress" target="_blank">chronic mental stress</a> and <a href="https://www.wsib.ca/en/operational-policy-manual/traumatic-mental-stress" target="_blank">traumatic mental stress</a> arising out of and in the course of the worker’s employment.
<figure><img src="https://static.wixstatic.com/media/11062b_8bf554f0f2864eadb37236caf0e89754~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="WSIB Chronic Mental Stress and Traumatic Mental Stress"></figure>
Pursuant to <a href="https://www.ontario.ca/laws/statute/97w16#BK25" target="_blank">section 22</a> of the WISA, in order to receive WSIB benefits, you must file a claim as soon as possible, and no later than six months from the date of your accident. If you have an <a href="https://www.wsib.ca/en/occupationaldisease" target="_blank">occupational disease</a>, the six months runs from the date you discover the disease and that it is work-related.
 
Despite that, after a <a href="#1jv20" rel="noopener noreferrer">Section 31 application</a> is heard by the <a href="https://www.wsiat.on.ca/" target="_blank">Workplace Safety and Insurance Appeals Tribunal</a> (WSIAT), the deadline for submitting a WSIB claim is extended for six months after the Tribunal’s determination under <a href="https://www.ontario.ca/laws/statute/97w16#BK37" target="_blank">section 31(1)</a>, pursuant to <a href="https://www.ontario.ca/laws/statute/97w16#BK37" target="_blank">Section 31(4)</a> of the WSIA, and in accordance to <a href="https://www.wsiat.on.ca/" target="_blank">WSIAT</a> <a href="https://www.wsiat.on.ca/en/practiceDirectionsAndGuides/rightToSue.html" target="_blank">Practice Direction: Right to Sue Applications</a>.
<figure><img src="https://static.wixstatic.com/media/491d2c_14c97c90bf1449789ce6395adf1c38b9~mv2.jpg/v1/fit/w_556,h_374,al_c,q_80/file.png"alt="WSIB Stress Policy Checklist"></figure>
Both the chronic mental stress policy and the traumatic mental stress policy contains two key criteria that an injured worker must meet before being compensated:
<ol>
<li>The injured worker needs to provide a <a href="https://en.wikipedia.org/wiki/DSM-5" target="_blank">DSM-5</a> diagnosis from a regulated health-care professional who is authorized to make such a diagnosis (this includes family physicians, nurse practitioners, psychologists and psychiatrists). </li>
<li>There’s a <a href="https://en.wikipedia.org/wiki/Causation_(law)" target="_blank">causation requirement</a>. This means that the <a href="https://www.wsib.ca/en/operational-policy-manual/accident-course-employment" target="_blank">workplace incident</a> MUST be the <a href="https://www.lawinsider.com/dictionary/predominant-cause" target="_blank">predominant cause</a> of the chronic mental stress or the traumatic mental stress. </li>
</ol>
<h4>ii. WSIB Chronic Mental Stress Policy Explained</h4>
<h4></h4>
In addition to the two key criteria stated above, the chronic mental stress policy requires that an injured worker to prove that 1) a <a href="https://www.ohcow.on.ca/edit/files/events/spring_into_action/chronic_mental_stress_-_allen_cramm.pdf" target="_blank">substantial work-related stressors</a> exists, that 2) the event(s) or accident(s) occurred during the <a href="https://www.wsib.ca/en/operational-policy-manual/accident-course-employment" target="_blank">course of employment</a> and that 3) <a href="https://en.wikipedia.org/wiki/Causation_(law)" target="_blank">causation</a> must be proven.
 
Under the <a href="https://www.ontario.ca/laws/statute/97w16" target="_blank">Workplace Safety and Insurance Act</a> (WSIA), a worker is entitled to benefits for <a href="https://www.wsib.ca/en/operational-policy-manual/chronic-mental-stress" target="_blank">chronic mental stress</a> arising out of and in the course of the worker’s employment. A worker is NOT entitled to benefits for chronic 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.
 
A worker will generally be entitled to benefits for chronic mental stress if an appropriately diagnosed mental stress injury is caused by a substantial work-related stressor arising out of and in the course of the worker’s employment. 
<figure><img src="https://static.wixstatic.com/media/11062b_6e952c66f7ff4a188c3b95ee8e52fa63~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt=" WSIB Chronic Mental Stress Policy Explained"></figure>
According to WSIB disability related policy, a <a href="https://www.who.int/news-room/questions-and-answers/item/ccupational-health-stress-at-the-workplace" target="_blank">work-related stressor</a> will generally be considered substantial if it is excessive in intensity and/or duration in comparison to the normal pressures and tensions experienced by workers in similar circumstances.
 
In order to consider entitlement for chronic mental stress the WSIB decision-maker must be able to identify the event(s) which are alleged to have caused the chronic mental stress. 
 
Workers may be entitled to benefits for chronic mental stress due to an employer’s decisions or actions that are not part of the employment function, such as workplace harassment, or conduct that a reasonable person would perceive as <a href="https://www.dictionary.com/browse/egregious" target="_blank">egregious</a> or abusive.
<figure><img src="https://static.wixstatic.com/media/804c18c8464044daa438b6b945afad94.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Stress Resulted from Workplace harassment"></figure>
Workplace harassment is generally considered to be a <a href="https://www.wsib.ca/en/operational-policy-manual/chronic-mental-stress" target="_blank">substantial work-related stressor</a>. <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">Workplace harassment</a> is defined under the Policy as occurring when a person or persons, while in the course of the employment, engage in a course of <a href="https://www.ohrc.on.ca/en/policy-discrimination-against-older-people-because-age/8-harassmentpoisoned-environment" target="_blank">vexatious comment</a> or conduct against a worker, including bullying, that is known or ought reasonably to be known to be unwelcome.
 
The Policy expressly states that “work-related stressor” includes multiple work-related stressors, as well as a cumulative series of work-related stressors. 
 
<h4>iii. WSIB Traumatic Mental Stress Policy Explained</h4>
 
Similar to the chronic mental stress policy, the traumatic mental stress policy requires that, in addition to the two key criteria stated above, an injured worker to prove that one or more <a href="https://www.wsib.ca/en/operational-policy-manual/traumatic-mental-stress" target="_blank">traumatic events</a> occurred during the <a href="https://www.wsib.ca/en/operational-policy-manual/accident-course-employment" target="_blank">course of the worker’s employment</a>, which triggered the <a href="https://www.wsib.ca/en/operational-policy-manual/traumatic-mental-stress" target="_blank">traumatic mental stress</a>.
<figure><img src="https://static.wixstatic.com/media/b2f64f9763a84853b8847a280fdcc13b.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
According to WSIB, <a href="https://www.wsib.ca/en/operational-policy-manual/traumatic-mental-stress" target="_blank">traumatic events</a> include, but are not limited to:
<ul>
<li>witnessing a <a href="https://www.merriam-webster.com/dictionary/fatality" target="_blank">fatality</a> or a horrific accident</li>
<li>being the target of physical violence</li>
<li>being the target of death threats</li>
<li>being the target of <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment</a> </li>
</ul>
Please read this blog post if you want to learn more about the Medical Documentation in <a href="https://www.wsib.ca/en/businesses/claims/report-injury-or-illness" target="_blank">WSIB Claims</a>:
 
<a href="https://www.htwlaw.ca/post/a-legal-analysis-on-the-medical-documentation-in-disability-cases-and-the-duty-to-accommodate#viewer-6hc16" target="_blank">A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate</a> 
 
<h2>4. HRTO Substance Related Disorder Discrimination Claims</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_4867927ab7324481ade1154ee744ae5f~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="HRTO Substance Related Disorder Discrimination Claims"></figure>
<h3>a. HRTO Protections Against Substance Related Disorder</h3>
 
Drug abuse, drug dependence and addictions are diseases, illnesses, malfunctions and
mental disorders, which can create mental impairment and result in mental disorder and physical disability.
 
As stated above in <a href="https://canlii.ca/t/1fbcd" target="_blank">Entrop v. Imperial Oil Limited</a>, <a href="https://www.ohrc.on.ca/es/node/2861" target="_blank">severe alcohol or substance abuse, addiction and dependency</a> are well-recognized as disabilities within the meaning of the <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Human Rights Code</a> (the <a href="https://www.ohrc.on.ca/en/ontario-human-rights-code" target="_blank">Code</a>). Casual (or recreational) use of substances is not defined as a disability unless people are treated adversely because they are perceived to have issues of substance abuse, addiction or dependency, and be discriminated against.
 
<a href="https://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions/4-recognizing-mental-health-disabilities-and-addictions" target="_blank">Click here</a> to learn more about the <a href="https://www.ohrc.on.ca/en" target="_blank">Ontario Human Rights Commission</a>'s <a href="https://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions/4-recognizing-mental-health-disabilities-and-addictions" target="_blank">Policy on preventing discrimination based on mental health disabilities and addictions</a>.
 
<figure><img src="https://static.wixstatic.com/media/11062b_6762af6702f24619aa37fb2c000e3471~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="OHRC Policy on preventing discrimination based on mental health disabilities and addictions"></figure>
Often the employee who claims disability related accommodation for <a href="https://en.wikipedia.org/wiki/Substance-related_disorder" target="_blank">substance related disorder</a> needs to provide a <a href="https://en.wikipedia.org/wiki/DSM-5" target="_blank">DSM-5</a> diagnosis from a regulated health-care professional who is authorized to make such a diagnosis.
 
<a href="https://www.htwlaw.ca/post/a-legal-analysis-on-the-medical-documentation-in-disability-cases-and-the-duty-to-accommodate" target="_blank">Click here</a> to read a blog post on Medical Documentation in Disability Cases, titled <a href="https://www.htwlaw.ca/post/a-legal-analysis-on-the-medical-documentation-in-disability-cases-and-the-duty-to-accommodate" target="_blank">A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate</a>.
 
A DSM-5 diagnosis allows clinicians to specify how severe or how much of a problem the substance related disorder is. 
<figure><img src="https://static.wixstatic.com/media/491d2c_afbab09afdbd4fb9b1a6d9d9425d608c~mv2.jpg/v1/fit/w_587,h_396,al_c,q_80/file.png"alt="DSM-5 diagnosis of substance related disorder"></figure>
There are two groups of <a href="https://www.verywellmind.com/dsm-5-criteria-for-substance-use-disorders-21926" target="_blank">substance-related disorders</a>: <a href="https://www.nimh.nih.gov/health/topics/substance-use-and-mental-health" target="_blank">substance-use disorders</a> and <a href="https://www.ncbi.nlm.nih.gov/books/NBK555887/" target="_blank">substance-induced disorders</a>. 
 
<h3>b. Substance Use Disorders</h3>
 
A substance use disorder is a <a href="https://en.wikipedia.org/wiki/Mental_disorder" target="_blank">mental disorder</a> that affects a person’s brain and behavior, leading to a person’s inability to control their use of substances such as drugs or alcohol. Symptoms can range from moderate to severe, with addiction being the most severe form.
 
<a href="https://en.wikipedia.org/wiki/Substance_use_disorder" target="_blank">Substance use disorders</a> cover 11 different criteria:
<ol>
<li>Taking the substance in larger amounts or for longer than you're required to.</li>
<li>Unable to cut down or stop using the substance.</li>
<li>Spending a lot of time getting, using, or recovering from use of the substance.</li>
<li>Cravings and urges to use the substance.</li>
<li>Unable to perform essential duties or fulfill obligations at work, home, or school due to substance use.</li>
<li>Continuing to use, even when it causes problems in relationships.</li>
<li>Giving up important social, occupational, or recreational activities because of substance use.</li>
<li>Using substances repeatedly, even when doing so puts the user's personal safety in jeopardy (e.g. operating power tools, heavy equipment or driving under the influence of drugs or alcohol).</li>
<li>Continuing to use while knowing the existence of a physical or psychological condition that the substance may have caused or exacerbated. </li>
<li>Developing a <a href="https://en.wikipedia.org/wiki/Drug_tolerance" target="_blank">drug tolerance</a> against the substance.</li>
<li>Developing <a href="https://www.verywellmind.com/what-is-withdrawal-how-long-does-it-last-63036" target="_blank">withdrawal symptoms</a>, which can be relieved by taking more of the substance.</li>
</ol>
<figure><img src="https://static.wixstatic.com/media/11062b_4d256bf126fc4aa0996ce38b03ef668d~mv2_d_3261_2174_s_2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Criteria for substance use disorders"></figure>
The severity of substance use disorders depends on how many symptoms are identified. Two or three symptoms indicate a mild substance use disorder; four or five symptoms indicate a moderate one, while six or more symptoms indicate a severe substance use disorder. 
 
<a href="https://www.nimh.nih.gov/health/topics/substance-use-and-mental-health" target="_blank">Click here</a> for a detail description of <a href="https://www.nimh.nih.gov/health/topics/substance-use-and-mental-health" target="_blank">substance use disorder</a>.
 
<figure><img src="https://static.wixstatic.com/media/ffc0d41b812946ac9f194fe20c61ed05.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="substance-related disorders"></figure>
<h3>c. Substance Induced Disorders </h3>
 
<a href="https://www.verywellmind.com/dsm-5-criteria-for-substance-use-disorders-21926" target="_blank">Substance induced mental disorders</a> develop in individuals who didn't have mental problems prior to substances uses. They include:
<ul>
<li><a href="https://www.verywellmind.com/dsm-5-criteria-for-substance-use-disorders-21926" target="_blank">Substance intoxication</a> </li>
<li><a href="https://www.verywellmind.com/what-is-substance-medication-induced-psychotic-disorder-21938" target="_blank">Substance-induced psychotic disorder</a> </li>
<li>Substance-induced <a href="https://psychiatry.org/patients-families/bipolar-disorders/what-are-bipolar-disorders" target="_blank">bipolar disorders</a> and related problems</li>
<li><a href="https://www.verywellmind.com/substance-medication-induced-depressive-disorder-21931" target="_blank">Substance-induced depressive disorders</a> </li>
<li><a href="https://www.verywellmind.com/what-is-substance-medication-induced-anxiety-disorder-21936" target="_blank">Substance-induced anxiety disorders</a> </li>
<li><a href="https://www.verywellmind.com/substance-medication-induced-obsessive-compulsive-disorder-21937" target="_blank">Substance-induced obsessive-compulsive and related disorders</a> </li>
<li>Substance-induced <a href="https://www.mayoclinic.org/diseases-conditions/sleep-disorders/symptoms-causes/syc-20354018" target="_blank">sleep disorders</a> </li>
<li>Substance-induced <a href="https://www.healthline.com/health/what-sexual-dysfunction#libido" target="_blank">sexual dysfunctions</a> </li>
<li>Substance-induced <a href="https://en.wikipedia.org/wiki/Delirium" target="_blank">delirium</a> </li>
<li>Substance-induced <a href="https://www.mountsinai.org/health-library/diseases-conditions/neurocognitive-disorder" target="_blank">neurocognitive disorders</a> </li>
</ul>
Substance-induced disorder is a form of substance induced mental disorder, which includes depressive, anxiety, psychotic, or manic symptoms that occur as a physiological consequence of the abusive use of substances or medications. It may occur during active use, <a href="https://en.wikipedia.org/wiki/Intoxication" target="_blank">intoxication</a> or <a href="https://en.wikipedia.org/wiki/Drug_withdrawal" target="_blank">withdrawal</a>.
 
Many of the individuals who experience a substance use disorder during their lives will also experience substance induced disorder and vice versa.
 
<a href="https://www.ncbi.nlm.nih.gov/books/NBK555887/" target="_blank">Click here</a> for a detail description of <a href="https://www.ncbi.nlm.nih.gov/books/NBK555887/" target="_blank">Substance-induced disorder</a>.
<figure><img src="https://static.wixstatic.com/media/491d2c_169a70b0999a4c0da920be9d48ed6bb5~mv2.jpg/v1/fit/w_984,h_510,al_c,q_80/file.png"alt="HTW Law - Employment Lawyer, Contact Us Now"></figure>
 
<h2>5. Duty to Accommodate and Undue Hardship in Disability Cases</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_8d66aa5276ce409f9faa7f49c32422ab~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Duty to Accommodate and Undue Hardship in Disability Cases"></figure>
<h3>a. Duty to Accommodate Defined</h3>
 
<a href="https://www.ontario.ca/laws/statute/90h19#BK19" target="_blank">Section 17</a> of the <a href="https://www.cfib-fcei.ca/en/tools-resources/ontario-human-rights-code-frequently-asked-questions" target="_blank">Human Right Code</a> states that an employer has a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">duty to accommodate</a> a workers’ disabilities who can still perform core and <a href="https://www.shrm.org/resourcesandtools/tools-and-samples/exreq/pages/details.aspx?erid=132" target="_blank">essential duty</a> of the job to the point of <a href="https://en.wikipedia.org/wiki/Central_Alberta_Dairy_Pool_v_Alberta_(Human_Rights_Commission)" target="_blank">undue hardship</a>.
 
When an employer seeks to dismiss an employee due to their disability, he or she is at risk of incurring significant <a href="https://www.hrlsc.on.ca/en/node/390" target="_blank">human rights damages</a>, unless it can demonstrate a <a href="#bocpi" rel="noopener noreferrer">bona fide operational requirement</a> that prevents it from facilitating the employee’s continued employment.
<figure><img src="https://static.wixstatic.com/media/491d2c_7bc375fec04b40058149a87018f23988~mv2.jpg/v1/fit/w_609,h_207,al_c,q_80/file.png"alt="Duty to Accommodate Defined"></figure>
<a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">Duty to accommodate</a> has both a substantive and a procedural component:
 
- <a href="https://www.hrlsc.on.ca/en/how-guides-and-faqs/your-right-accommodation#Procedural" target="_blank">The procedural component</a> requires that an employer to undertake an individualized investigation of potential accommodation measures to address the employee's <a href="https://www.ohrc.on.ca/en/ontario-human-rights-code" target="_blank">code based needs</a>; and
 
- <a href="https://www.hrlsc.on.ca/en/how-guides-and-faqs/your-right-accommodation#Substantive" target="_blank">The substantive component</a> considers the <a href="https://en.wikipedia.org/wiki/Reasonable_accommodation" target="_blank">reasonableness of the accommodation</a> offered or the employer’s reasons for not providing accommodation (<a href="#bocpi" rel="noopener noreferrer">BFOR</a>). It is the employer who bears the onus to demonstrate that the employee's disability has been <a href="#7sbh4" rel="noopener noreferrer">accommodated to the point of undue hardship</a>.
 
The <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">duty to accommodate</a> is a shared responsibility between the employer and the disabled employee. The employer’s duty to make reasonable efforts to provide required accommodation is mirrored by the employee’s duty to make reasonable efforts to participate meaningfully in accommodation planning, and to make sincere efforts to return to work under <a href="https://www.ohrc.on.ca/en/iv-human-rights-issues-all-stages-employment/8-meeting-accommodation-needs-employees-job" target="_blank">modified conditions</a>.
 
<figure><img src="https://static.wixstatic.com/media/11062b_2d60145a58214f47a9115d8391c12c77~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Central Okanagan School District No. 23 v. Renaud"></figure>
 
Central Okanagan School District No. 23 v. Renaud, <a href="https://canlii.ca/t/1fs7w" target="_blank">[1992] 2 S.C.R. 970</a>.
 
As stated by the <a href="https://en.wikipedia.org/wiki/Supreme_Court_of_Canada" target="_blank">Supreme Court of Canada</a> in Central Okanagan School District No. 23 v. Renaud, a court’s assessment of what constitutes reasonable measures with respect to the duty to accommodate is a question of fact that will vary with the circumstances of each case. Accommodation measures may mean that the form and function of the employee’s role in the organization requires change to protect the employee’s right to not be excluded from employment because of their disability. It is important that the employee understand that, while the threshold of undue hardship is a high one, the employee is not promised a ‘perfect’ scenario, and concessions may need to be made with respect to the forms of accommodation.
 
<h3>b. What Triggers the Duty to Accommodate a Disability?</h3>
<figure><img src="https://static.wixstatic.com/media/491d2c_a802cef9e8774f7ca545e633c8e876c3~mv2.jpg/v1/fit/w_570,h_348,al_c,q_80/file.png"alt="What Triggers the Duty to Accommodate a Disability?"></figure>
The <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">duty to accommodate</a> arises when the employer is made aware that an employee has a disability that requires accommodation. This generally happens via a direct disclosure by the employee, the treating physician or another individual.
 
The <a href="https://www.hrlsc.on.ca/en/understanding-the-duty-to-accommodate" target="_blank">duty to accommodate</a> may also arise where the employer perceives (or reasonably ought to have perceived) the employee as having a disability that may require accommodation – even where no disclosure of disability and/or request for accommodation has been made.
 
Confirming a disability and the required accommodations should come from the employee’s treating practitioner, which can be a family doctor, specialist, midwife, etc. depending on the nature of the condition. 
<figure><img src="https://static.wixstatic.com/media/11062b_ca6284e4bf6e4bde8e8dc71a418bed5a~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="disability medical diagnosis"></figure>
The employer IS NOT entitled to information related to a diagnosis or the specific treatment.
 
The employer is entitled to information regarding the effect of the condition on the employee’s ability to work, with or without accommodation, and must be given details of the necessary accommodation where it is required.
 
<a href="https://www.htwlaw.ca/post/a-legal-analysis-on-the-medical-documentation-in-disability-cases-and-the-duty-to-accommodate#viewer-a0i2n" target="_blank">Click here</a> to for a discussion of duty to accommodate in <a href="https://www.htwlaw.ca/post/a-legal-analysis-on-the-medical-documentation-in-disability-cases-and-the-duty-to-accommodate#viewer-a0i2n" target="_blank">A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate</a>.
 
<h3>c. What Constitutes Undue Hardship?</h3>
<figure><img src="https://static.wixstatic.com/media/491d2c_3e288b238d5f4badb72a014c98b881fe~mv2.jpg/v1/fit/w_593,h_400,al_c,q_80/file.png"alt="What Constitutes Undue Hardship"></figure>
The <a href="https://www.scc-csc.ca/home-accueil/index-eng.aspx" target="_blank">Supreme Court of Canada</a> has established the <a href="https://en.wikipedia.org/wiki/Central_Alberta_Dairy_Pool_v_Alberta_(Human_Rights_Commission)" target="_blank">undue hardship test</a> in Central Alberta Dairy Pool v Alberta (Human Rights Commission), <a href="https://canlii.ca/t/1fsv9" target="_blank">[1990] 2 SCR 489</a>.
 
A number of factors are NOT to be considered, including:
<ol>
<li>Business inconvenience;</li>
<li><a href="https://www.loophealth.com/post/what-is-employee-morale" target="_blank">Employee morale</a>;</li>
<li>Third party preferences, such as customers’ discomfort;</li>
<li><a href="https://en.wikipedia.org/wiki/Contractual_term" target="_blank">Contractual terms</a> in <a href="https://en.wikipedia.org/wiki/Collective_agreement" target="_blank">Collective agreements</a> or <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contracts</a>, which cannot be relied upon to justify discrimination.</li>
</ol>
Only three factors will be considered:
 
(a) Costs will amount to undue hardship only where they are,
<ol>
<li>Quantifiable,</li>
<li>Shown to be related to the accommodation, and</li>
<li>So substantial that they would alter the very nature of the enterprise or so significant that they would substantially affect its viability;</li>
<li>Costs are likely to be absorbed more easily in a larger organization;</li>
</ol>
(b) Outside Sources of Funding will be taken into consideration where they are available to defray the costs of accommodation;
 
(c) Health and Safety Issues will be considered. An employer is not required to accommodate a disability by waiving health and safety standards if doing so would create liability under the <a href="https://www.ontario.ca/laws/statute/90o01" target="_blank">Occupational Health and Safety Act</a>. Health and safety risks will amount to undue hardship where the degree of risk remaining after accommodation has been made outweighs the benefits of enhancing equality for individuals with disabilities.
<figure><img src="https://static.wixstatic.com/media/11062b_1f5c32329fc44218a1b85f597f816de2~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Central Alberta Dairy Pool v Alberta"></figure>
Employers have the <a href="https://www.merriam-webster.com/dictionary/onus" target="_blank">onus</a> of proving undue hardship. Specific facts and evidence must be relied upon – unsubstantiated assumptions, speculations and expectations will not be acceptable proof of undue hardship.
 
<a href="https://www.htwlaw.ca/post/a-legal-analysis-on-the-medical-documentation-in-disability-cases-and-the-duty-to-accommodate#viewer-a0i2n" target="_blank">Click here</a> to for a discussion of undue hardship in <a href="https://www.htwlaw.ca/post/a-legal-analysis-on-the-medical-documentation-in-disability-cases-and-the-duty-to-accommodate#viewer-a0i2n" target="_blank">A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate</a>.
 
<h2>6. Legal defences Against A Claim of Disability Discrimination</h2>
<figure><img src="https://static.wixstatic.com/media/90d5959cfcc04888ba64d2059fa97909.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Legal defences Against A Claim of Disability Discrimination"></figure>
 
<h3>a. Bona Fide Occupational Requirement</h3>
 
A <a href="https://en.wikipedia.org/wiki/Bona_fide_occupational_qualification" target="_blank">Bona Fide Occupational Requirement</a>, or BFOR, is workplace job requirement that allows an employer to “justify" an otherwise prohibited ground under the Human Rights Code, if there is a legitimate reason that is connected to the ability to do the job.
 
In British Columbia (Public Service Employee Relations Commission) v British Columbia Government Service Employees' Union, <a href="https://www.canlii.org/en/ca/scc/doc/1999/1999canlii652/1999canlii652.html" target="_blank">1999 CanLII 652</a> (SCC), the Supreme Court has created a unified test, the Meiorin test, to determine if a violation of human rights legislation can be justified as a BFOR.
<figure><img src="https://static.wixstatic.com/media/b1da3076093b404ea90f5996c18540df.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Bona Fide Occupational Requirement"></figure>
Under the <a href="https://en.wikipedia.org/wiki/British_Columbia_(Public_Service_Employee_Relations_Commission)_v_British_Columbia_Government_Service_Employees%27_Union" target="_blank">Meiorin</a><a href="https://en.wikipedia.org/wiki/British_Columbia_(Public_Service_Employee_Relations_Commission)_v_British_Columbia_Government_Service_Employees%27_Union" target="_blank"> test</a>, an employer can justify the impugned standard by establishing on the <a href="https://en.wikipedia.org/wiki/Balance_of_probabilities" target="_blank">balance of probabilities</a>:
<ol>
<li>that the employer adopted the standard for a purpose rationally connected to the performance of the job;</li>
<li>that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and</li>
<li>that the standard was reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.</li>
</ol>
<a href="https://engagedhr.com/what-is-a-bfor-and-why-does-it-matter/" target="_blank">Click here</a> for further reading regarding BFOR. 
 
<h3>b. Frustration of Contract</h3>
<figure><img src="https://static.wixstatic.com/media/11062b_d75076444824430a818741565ee5d57f~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Frustration of Contract"></figure>
 
<h4>i. Frustration of Contract Defined</h4>
 
<a href="https://en.wikipedia.org/wiki/Frustration_in_English_law" target="_blank">Frustration of contract</a> is the legal termination of a contract because of unforeseen circumstances that:
<ul>
<li>make the <a href="https://www.htwlaw.ca/employment-contract" target="_blank">contract</a> and its objectives virtually impossible to execute;</li>
<li>make the performance of the contractual obligations illegal; or</li>
<li>render the contract fundamentally different from its original intended character.</li>
</ul>
For an employer to end an employment arrangement due to frustration of contract, the circumstances must have been <a href="https://dictionary.cambridge.org/dictionary/english/unforeseeable" target="_blank">unforeseeable</a> and occurred through no fault of either party to the contract. Furthermore, the<a href="https://en.wikipedia.org/wiki/Burden_of_proof_(law)" target="_blank"> </a><a href="https://en.wikipedia.org/wiki/Burden_of_proof_(law)" target="_blank">burden of proof</a> to demonstrate that a contract has been frustrated rests with the employer.
<figure><img src="https://static.wixstatic.com/media/491d2c_b3af13daa5f04600a1693ec4a1f7cb30~mv2.jpg/v1/fit/w_557,h_418,al_c,q_80/file.png"alt="Frustration of Contract Defined"></figure>
When a contract has been frustrated it can be terminated without liability to either party. This means that neither party is entitled to damages under <a href="https://www.htwlaw.ca/employment-contract" target="_blank">contract law</a>. In other words, a disabled or injured employee who have been terminated for contract frustration is NOT entitled to claim disability discrimination under the Human Rights Code. However, the employer is still OBLIGATED TO PAY the employee their minimum entitlements under the <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0" target="_blank">Employment Standards Act</a> (<a href="https://www.ontario.ca/laws/statute/00e41" target="_blank">ESA</a>) (such as <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/termination-employment#section-9" target="_blank">termination pay</a> and <a href="https://www.ontario.ca/document/your-guide-employment-standards-act/severance-pay" target="_blank">severance pay</a>) under the <a href="https://www.ontario.ca/laws/regulation/010288" target="_blank">Ontario Regulation 288/01</a> – Termination and Severance of Employment (made pursuant to ESA).
 
A successful <a href="https://www.htwlaw.ca/employment-contract" target="_blank">contract frustration</a> defence hinges on the nature, expected length of illness, and the prospect of recovery. Frustrating a contract is only allowed in situations involving a permanent disability. 
 
There is no set time period that an employee must be off from work for their contract to be considered frustrated. Courts will take into consideration how long an employee has been with a company as well as their position in it. Jurisprudence has established that a prolonged absence due to illness, standing alone, DOES NOT substantiate a claim that the employment contract has been frustrated.
<figure><img src="https://static.wixstatic.com/media/6023b017fd5e480a9d1e7b58788a007f.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="permanent disability vs temporary disability"></figure>
<a href="https://www.canada.ca/en/financial-consumer-agency/services/insurance/disability.html" target="_blank">Temporary disabilities</a>, on the other hand, MUST be accommodated to the point of <a href="#8c8r8" rel="noopener noreferrer">undue hardship</a> (in accordance with human rights laws).
 
Frustration of contract is largely addressed on a case-by-case basis. This is because the consequences of a frustrated contract are quite harsh to employees. Courts will also look to see if there is any reasonable chance the employee will be able to return to work in the foreseeable future.
 
If an employee can show medical evidence that there is a reasonable prospect of returning to work, an employer will not be able to claim frustration of contract and terminate employment on that basis. 
<figure><img src="https://static.wixstatic.com/media/11062b_53de36e9926f404595706f4467ffb3a0~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="medical evidence in disability case"></figure>
Please the following blog post for an in-depth discussion of medical documentation in disability cases:
 
<a href="https://www.htwlaw.ca/post/a-legal-analysis-on-the-medical-documentation-in-disability-cases-and-the-duty-to-accommodate" target="_blank">A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate</a> 
<figure><img src="https://static.wixstatic.com/media/076d87c5f6f84a499499fb4fa7f7ee31.png/v1/fit/w_381,h_410,al_c,q_80/file.png"alt="case-by-case analysis in a disability discrimination case"></figure>
The following questions are factors that a Court might consider in the case-by-case analysis in a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">disability discrimination case</a> where the <a href="#8k6l5" rel="noopener noreferrer">frustration of contract defence</a> has been raised by the Defendant Employer:
<ol>
<li>Is the employee temporarily or permanently disabled?</li>
<li>What are the prospects for medical recovery and return to work based on available medical documentations and other evidence?</li>
<li>Does the <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contract</a> contemplate a lengthy period of absence by an employee?</li>
<li>Does the employment agreement provide sick leave, <a href="#5llob" rel="noopener noreferrer">short-term disability and long-term disability</a> benefits?</li>
<li>How long has the employee been off work or unable to work due to the injuries, disability or illnesses?</li>
<li>Is the disability related to a workplace injury (i.e. whether the employee entitles to <a href="#34gup" rel="noopener noreferrer">disability related WSIB benefits</a>)?</li>
<li>Can the employee perform the essential duties of their job? Can the employee be accommodated short of undue hardship?</li>
<li>Is continued employment impossible or would it radically alter the employment relationship?</li>
<li>Is there a need to terminate the employment relationship? Can a temporary replacement be hired, or can existing staff resources be utilized?</li>
<li>What position did the employee have in the business? How senior and integral was the employee to the business?</li>
<li>What evidence does the employer have at the time of termination establishing a <a href="https://www.ohrc.on.ca/en/iv-human-rights-issues-all-stages-employment/9-more-about-disability-related-accommodation" target="_blank">permanent incapacity</a>? The onus is on the employer to prove frustration of contract and cannot rely on post-termination evidence that is unrelated to pre-termination incapacity.</li>
<li>Has the employer itself induced or caused the frustrating event?</li>
<li> Are there any other specific facts of the case that ought to be considered?</li>
</ol>
Please the following blog post for an in-depth discussion of <a href="https://en.wikipedia.org/wiki/Frustration_of_purpose" target="_blank">frustration of purpose</a>:
 
<a href="https://www.htwlaw.ca/post/interplay-between-long-term-disability-wrongful-dismissal-disability-discrimination" target="_blank">Interplay between Long Term Disability, Wrongful Dismissal, Disability Discrimination</a>
<figure><img src="https://static.wixstatic.com/media/491d2c_169a70b0999a4c0da920be9d48ed6bb5~mv2.jpg/v1/fit/w_984,h_510,al_c,q_80/file.png"alt="HTW Law - Employment Lawyer, Contact Us Now"></figure>
 
<h4>ii. Recent Frustration of Contract Cases</h4>
 
<h5>1. Reasonable Prospect of Return to Work</h5>
<figure><img src="https://static.wixstatic.com/media/11062b_56f3a0f83b634a7ba9db9a8332f84046~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Recent Frustration of Contract Cases Regarding Reasonable Prospect of Return to Work"></figure>
Nagpal v IBM Canada Ltd., <a href="https://canlii.ca/t/jfpnl" target="_blank">2021 ONCA 274</a> 
 
IBM’s frustration claim was undermined by evidence in the form of ongoing correspondence from the employee’s legal counsel that clearly established the employee’s intention to return to work, and their willingness to provide ongoing medical updates as required. These letters served to demonstrate that there was no basis to find that the employee had resigned or abandoned his employment, and that there was some basis to find a reasonable prospect that the employee could eventually return to work. IBM was thus unable to satisfy its onus to establish that the contract of employment was frustrated, and it was liable to the employee for damages for wrongful dismissal.
 
Boucher v Black & McDonald Ltd., <a href="https://canlii.ca/t/gvpmn" target="_blank">2016 ONSC 7220</a> (Div Ct)
 
The plaintiff was a 46-year-old employee who went on long-term disability benefits in October 2011 and later advised the employer that she could return to work
by the end of 2013. The insurer agreed she was no longer disabled and they proposed a graduated return to work by November 11, 2013. However, on October 31, 2013, the employer terminated her employment due to “absence of several months.”
 
The <a href="https://www.ontario.ca/page/suing-someone-small-claims-court" target="_blank">Small Claims Court</a> denied the employer’s frustration argument, employer appealed. The Divisional court agreed with the Small Claims Court decision and held, in <a href="https://canlii.ca/t/gvpmn#par36" target="_blank">paragraph 36</a>, that:
 
In the present case, there was a plan to return to work. Indeed, BML had been advised by October 13, 2013 that Boucher intended to return to work November 11, 2013. However, following the submission of the return to work plan, Boucher was terminated.
<figure><img src="https://static.wixstatic.com/media/491d2c_520699bf8fea46b88cdd459ddb7a4578~mv2.jpg/v1/fit/w_281,h_140,al_c,q_80/file.png"alt="superior court of justice"></figure>
Nason v Thunder Bay Orthopaedic Inc., <a href="https://canlii.ca/t/gmpwq" target="_blank">2015 ONSC 8097</a> 
 
The plaintiff was a 45-year old Registered Orthotic Technician employed for approximately 20 years before he was terminated purportedly for frustration of contract. In August 2010, the employer said it could no longer accommodate the employee and put him on a leave of absence. In June 2012, the plaintiff sought a return to work, but was ultimately terminated in January 2013.
 
The Court held, in <a href="https://canlii.ca/t/gmpwq#par180" target="_blank">paragraph 180</a>, that the plaintiff had been terminated and that the employer had not established frustration of contract due to the plaintiff’s disability. Specifically, the employer failed to show that there was no reasonable likelihood of the plaintiff being able to return to work within a reasonable timeframe around the time of termination.
 
<h5>2. Duty to Accommodate vs. Frustration of Contract</h5>
<figure><img src="https://static.wixstatic.com/media/a27c9a67b44842799bc46b4eca030bd9.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Duty to Accommodate vs. Frustration of Contract"></figure>
Sodexo Canada Ltd. v Canadian Union of Public Employees, Local 145, <a href="https://canlii.ca/t/j1ts1" target="_blank">2019 CanLII 72771</a> (ON LA)
 
In the Matter of a <a href="https://www.ontario.ca/page/resolving-workplace-grievances-through-arbitration" target="_blank">Labour Arbitration</a> pursuant to the <a href="https://www.ontario.ca/laws/statute/95l01" target="_blank">Ontario </a><a href="https://www.ontario.ca/laws/statute/95l01" target="_blank">Labour Relations Act</a>, the Arbitrator found that the employer had not established frustration because of its narrow approach to the consideration of accommodation options. In that case, the employer failed to consider if it could reintegrate the grievor via modifications to their former position and the use of assistive equipment, or if there were forms of work available at other worksites. As a result, the employer was found to have breached its <a href="https://www.hrlsc.on.ca/en/how-guides-and-faqs/your-right-accommodation#Procedural" target="_blank">procedural duty to accommodate</a> the grievor; this was contrary to the Human Rights Code, warranting the award of compensatory damages.
<figure><img src="https://static.wixstatic.com/media/491d2c_1505bfbaaf9d476da48153096517e4d5~mv2.jpg/v1/fit/w_470,h_195,al_c,q_80/file.png"alt="Labour Arbitration"></figure>
Milloy v Complex Services Inc., <a href="https://canlii.ca/t/h44qx" target="_blank">2017 ONSC 2923</a> 
 
The plaintiff had worked for more than 10 years with the defendant primarily as a table games dealer for a casino. There was no dispute in the case that the plaintiff developed a permanent disability to her right shoulder as a result of a repetitive work-related injury and could no longer work as a table games dealer.
 
The plaintiff applied for numerous alternate positions within the company, but was not hired for any despite being qualified. The defendant employer ultimately ended the relationship citing frustration of contract after approximately 2 years after the injury.
 
The Court found that although the plaintiff had an undisputed permanent injury to her shoulder and could not work as a table games dealer, there were many other positions within the company that she applied for and was qualified to work. The employer failed to give any convincing reason as to why the plaintiff was not hired for any of the numerous other jobs she applied for.
<figure><img src="https://static.wixstatic.com/media/491d2c_b6da938d95594ea88e61d7f2ecf4d72b~mv2.jpg/v1/fit/w_314,h_295,al_c,q_80/file.png"alt="employee dismissed due to disability, either permanent disability or temporary disability"></figure>
<h3>c. Section 31 of the Workplace Safety and Insurance Act (WSIA)</h3>
 
Under the <a href="https://www.ontario.ca/laws/statute/97w16" target="_blank">WSIA</a>, a qualified <a href="https://www.wsib.ca/en/injured-or-ill-people/claims/work-related-mental-stress-injuries" target="_blank">mental stress</a> is deemed to be a form of "personal injury by accident". If you quit you work as a result of a work related mental stress, and file for a lawsuit in Court against the Employer Defendant, a director, executive officer or worker employed by the Employer Defendant, he or she can file an application to the <a href="https://www.wsiat.on.ca/en/home/announcements.html" target="_blank">Workplace Safety and Insurance Appeals Tribunal</a> (WSIAT) to have the lawsuit dismissed pursuant to <a href="https://www.ontario.ca/laws/statute/97w16#BK37" target="_blank">Section 31</a> of the WSIA.
<figure><img src="https://static.wixstatic.com/media/491d2c_83ae4448862945f8bded6a2ab7d3f405~mv2.jpg/v1/fit/w_412,h_240,al_c,q_80/file.png"alt="Section 31 of the Workplace Safety and Insurance Act (WSIA)"></figure>
<a href="https://www.ontario.ca/laws/statute/97w16#BK32" target="_blank">Section 26</a> of the WSIA stated that ALL actions caught by the WSIA are to be be "heard and determined" by the <a href="https://www.wsib.ca/en/about-us" target="_blank">Workplace Safety and Insurance Board</a> (the Board).
 
<a href="https://www.ontario.ca/laws/statute/97w16#BK12" target="_blank">Section 13(1), 13(4), 13(4.1), 13(5)</a> states that when an employer is covered by the insurance plan set out in <a href="https://www.ontario.ca/laws/statute/97w16#BK5" target="_blank">Part 3</a> of the WSIA, any and all claims relating to for <a href="https://www.wsib.ca/en/operational-policy-manual/chronic-mental-stress" target="_blank">chronic mental stress</a> or <a href="https://www.wsib.ca/en/operational-policy-manual/traumatic-mental-stress" target="_blank">traumatic mental stress</a> arising out of and in the course of the worker’s employment are caught by the WSIA.
 
<a href="https://www.ontario.ca/laws/statute/97w16#BK37" target="_blank">Section 31</a> of the <a href="https://www.ontario.ca/laws/statute/97w16" target="_blank">Workplace Safety and Insurance Act</a> (WSIA) allows a party to an action (often the employer defendant) to <a href="https://efiling.wsiat.on.ca/Home/TermsAndConditions" target="_blank">apply</a> to the <a href="https://www.wsiat.on.ca/en/home/announcements.html" target="_blank">Workplace Safety and Insurance Appeals Tribunal</a> (WSIAT) to decide whether the <a href="https://www.merriam-webster.com/legal/right%20of%20action" target="_blank">right of action</a> has been statute barred by the WSIA. It's not a complete defence, but at least it significantly limits the damage awards the worker is entitled to.
<figure><img src="https://static.wixstatic.com/media/4622e0c099844409b1e6d88aac0a7110.png/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="two key notes regarding claiming s. 31 of wsia as legal defence of job related mental stress injuries"></figure>
Two points worth pointing out is that, even if a case is caught by <a href="https://www.ontario.ca/laws/statute/97w16#BK37" target="_blank">s. 31</a> of the <a href="https://www.ontario.ca/laws/statute/97w16" target="_blank">WSIA</a>:
 
- S. 31 of the WSIA take away the employee’s right of claim of <a href="https://en.wikipedia.org/wiki/Intentional_infliction_of_emotional_distress" target="_blank">mental distress</a> or any other injuries incurred in the course of his or her employment against an Employer defendant (<a href="https://en.wikipedia.org/wiki/Vicarious_liability" target="_blank">Vicarious Liability</a>), a director, executive officer or other worker(s) employed by the employer, pursuant to <a href="https://www.ontario.ca/laws/statute/97w16#BK34" target="_blank">s. 28(1), (2)</a> of WSIA, if the worker(s) were acting in the course of the employment (<a href="https://www.ontario.ca/laws/statute/97w16#BK34" target="_blank">s. 28(3)</a>). The WSIA DOES NOT take away the employee’s right of claim of other independent actionable torts against <a href="https://www.law.cornell.edu/wex/joint_tortfeasors" target="_blank">individual tortfeasors</a> 1) that were unrelated to the accident or injury; or 2) for acts committed not in the course of the employment.
 
- Even if an employee’s right of claim of <a href="https://www.medicalnewstoday.com/articles/emotional-distress" target="_blank">emotional distress</a> or other injuries against an Employer defendant, a director, executive officer or other worker(s) employed by the employer is removed after a S. 31 hearing by the <a href="https://www.wsiat.on.ca/" target="_blank">Workplace Safety and Insurance Appeals Tribunal</a> (WSIAT), the employee can still <a href="https://www.wsib.ca/en/claims" target="_blank">file a WSIB claim</a> within six months after the tribunal’s decision under <a href="https://www.ontario.ca/laws/statute/97w16#BK37" target="_blank">s. 31 (1)</a> pursuant to <a href="https://www.ontario.ca/laws/statute/97w16#BK37" target="_blank">Section 31(4)</a> of the WSIA.
<figure><img src="https://static.wixstatic.com/media/491d2c_f98773f65ac042e8be81b7753eaf6b9c~mv2.jpg/v1/fit/w_416,h_105,al_c,q_80/file.png"alt="Workplace Safety and Insurance Appeals Tribunal"></figure>
A Section 31 Defence under the WSIA is most often used to defend against a <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructive dismissal case</a>. There is well-established caselaw establishing that WSIAT has no right to take away a <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">claim of wrongful dismissal</a> or a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment complaint</a> under the <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Human Rights Code</a>.
 
The <a href="https://www.htwlaw.ca/post/am-i-barred-from-constructive-dismissal-claim-if-i-quit-due-to-stress#viewer-9cppc" target="_blank">inextricably link test</a> is the test to assess whether a <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructive dismissal claim</a> is <a href="https://dictionary.cambridge.org/dictionary/english/statute-barred" target="_blank">statute barred</a>. The test is whether the ONLY allegation of <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructive dismissal</a> was <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment</a>, or there’s more, such as <a href="https://www.htwlaw.ca/employment-contract" target="_blank">breach of employment contract</a>, <a href="https://www.htwlaw.ca/employment-contract" target="_blank">contractual repudiation</a>, etc…
<figure><img src="https://static.wixstatic.com/media/11062b_c3bf9d55edca43e0a7866bcf01a9416b~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="inextricably link test"></figure>
<a href="https://www.ontario.ca/laws/statute/97w16#BK37" target="_blank">Section 31 Defence</a> under the <a href="https://www.ontario.ca/laws/statute/97w16" target="_blank">Workplace Safety and Insurance Act</a><a href="https://www.ontario.ca/laws/statute/97w16" target="_blank"> </a><a href="https://www.ontario.ca/laws/statute/97w16" target="_blank">(</a>WSIA) is only available to businesses who are covered by the <a href="https://www.wsib.ca/en/operational-policy-manual/coverage-status" target="_blank">WSIB coverage</a>, which is ONLY mandatory for <a href="https://www.ontario.ca/laws/regulation/980175#BK11" target="_blank">Schedule 1</a> and <a href="https://www.ontario.ca/laws/regulation/980175#BK12" target="_blank">Schedule 2</a> industries, pursuant to <a href="https://www.ontario.ca/laws/statute/97w16#BK7" target="_blank">section 11</a> of the WSIA. Businesses that are not in Schedule 1 or Schedule 2 sectors may nevertheless opt in to WSIB coverage by paying premiums, even though it's not mandatory.
 
Mandatory <a href="https://www.wsib.ca/en/businesses/premiums-and-payment/premiums-and-payment" target="_blank">WSIB premiums</a> cover the employees, but not owners (except for most <a href="https://www.wsib.ca/en/businesses/registration-and-coverage/mandatory-coverage-construction-industry" target="_blank">construction businesses</a>). Owners (partners, sole proprietors, independent operators and executive officers) can apply for <a href="https://www.wsib.ca/en/operational-policy-manual/optional-insurance" target="_blank">optional WSIB coverage</a> for themselves, as long as they have coverage for any employees they may have. No mandatory WSIB premiums is required to cover <a href="https://www.wsib.ca/en/operational-policy-manual/workers-and-independent-operators" target="_blank">independent contractors</a> either.
 
Pursuant to <a href="https://www.ontario.ca/laws/statute/97w16#BK34" target="_blank">section 28</a> of WSIA, workers employed by “Schedule 1” or “Schedule 2” employers and the workers’ survivors are not entitled to commence actions against their employer, or a director, executive officer, or worker employed by such employer, in respect of the workers’ injury or disease.
<figure><img src="https://static.wixstatic.com/media/491d2c_03e15d25f8cc445b813f5d757f889027~mv2.jpg/v1/fit/w_492,h_331,al_c,q_80/file.png"alt="WSIA Schedule 1 Employer"></figure>
<a href="https://www.wsib.ca/en/bythenumbers/schedule-1-workplaces-industry" target="_blank">Schedule 1 Industries</a> include (but are not limited to): mining and related industries; manufacturing; transportation and storage; retail and wholesale trades; and construction. A variety of service industries are covered by the Act, including temporary agencies, hospitality and full-time domestic workers. 
<figure><img src="https://static.wixstatic.com/media/491d2c_4bfca8b4111d42909f9d5f973d779160~mv2.jpg/v1/fit/w_503,h_339,al_c,q_80/file.png"alt="WSIA Schedule 2 Employers"></figure>
<a href="https://www.wsib.ca/en/bythenumbers/schedule-2-injured-ill-people-leading-occupations" target="_blank">Schedule 2 Industries</a> include (but are not limited to): provincial governments; railways; and telephone companies licensed by the federal government. Although municipal governments are listed in Schedule 2, some have opted to become Schedule 1 employers.
 
The main distinction between Schedule 1 and Schedule 2 Industries is that a worker employed by a Schedule 1 employer, is not entitled to commence an action against any Schedule 1 employer (not just their own employer) in respect of the worker’s injury or disease (<a href="https://www.ontario.ca/laws/statute/97w16#BK34" target="_blank">s. 28(1)</a>, WSIA). Such restriction DOES NOT apply to Schedule 2 employees (<a href="https://www.ontario.ca/laws/statute/97w16#BK34" target="_blank">s. 28(2)</a>, WSIA).
 
<a href="https://www.wsib.ca/en/businesses/registration-and-coverage/can-i-choose-have-wsib-insurance" target="_blank">Click here</a> to learn more about the <a href="https://www.wsib.ca/en/businesses/registration-and-coverage/can-i-choose-have-wsib-insurance" target="_blank">WISB insurance</a> and about how to apply for WSIB coverage.
<figure><img src="https://static.wixstatic.com/media/11062b_08ffe62c502b4c9d82b786e905325959~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="questions to ask before claiming section 31 defence"></figure>
As an employer, you want to make sure your business, and the employee in question are under WSIB coverage before <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">claiming a Section 31 Defence</a> under the <a href="https://www.ontario.ca/laws/statute/97w16" target="_blank">WSIA</a>.
 
So the guiding principle in determining whether a <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">dismissal case</a> is statute barred by the WSIA is whether or not the case involves a situation in which the worker's employment was effectively <a href="https://www.htwlaw.ca/severance-pay" target="_blank">terminated</a><a href="https://www.htwlaw.ca/severance-pay" target="_blank"> </a>by the <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">harassing and bullying conduct</a> of coworkers and management, which caused his or her <a href="https://en.wikipedia.org/wiki/Mental_distress" target="_blank">mental distress</a> to such a degree that he or she was <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">forced to take sick leave</a> and, eventually, <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">resign</a>. These facts, if proven, are <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">inextricably linked</a> to a claim for mental stress under <a href="https://www.ontario.ca/laws/statute/97w16#BK12" target="_blank">s. 13(4)</a> of the WSIA. Thus, the worker's right of action is taken away.
<figure><img src="https://static.wixstatic.com/media/11062b_6fd46cbaddab4b69b5dec2fa1abdee24~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Am I Barred From Claiming Constructive Dismissal or Wrongful Dismissal if I Quit Due to Stress?"></figure>
Please read the following blog post for an in-depth discussion of the interplay between a <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">dismissal claim</a> and the WSIA statute bar:
 
<a href="https://www.htwlaw.ca/post/am-i-barred-from-constructive-dismissal-claim-if-i-quit-due-to-stress" target="_blank">Am I Barred From Claiming Constructive Dismissal or Wrongful Dismissal if I Quit Due to Stress?</a>
 
<h2>7. Other Statutory Protections for Disabled Employees </h2>
 
Both the <a href="https://qweri.lexum.com/w/onlegis/so-2000-c-41-en" target="_blank">Employment Standards Act</a> (ESA) and the <a href="https://qweri.lexum.com/w/onlegis/so-1997-c-16-sch-a-en" target="_blank">Workplace Safety and Insurance Act</a> (WSIA) offers some statutory protections for disabled employees.
 
<a href="https://www.ontario.ca/laws/regulation/010288" target="_blank">Regulation 288/1</a> of the ESA states that even if an employee has been terminated due to <a href="#f6ct1" rel="noopener noreferrer">frustration of contract</a> because of illness or long term disability, <a href="https://www.htwlaw.ca/severance-pay" target="_blank">ESA</a><a href="https://www.htwlaw.ca/severance-pay" target="_blank"> minimum notice</a> and <a href="https://www.htwlaw.ca/severance-pay" target="_blank">severance pay</a> has to be satisfied.
 
<a href="https://www.ontario.ca/laws/statute/97w16#BK49" target="_blank">Section 41</a> of the WSIA creates an Obligation for employer to re-employ injured employees who have been working in the workplace for more than 1 year if certain conditions apply, an employer who employs less than 20 people is one such exception.
 
<h3>a. Regulation 288/1 Enacted Under the Employment Standards Act</h3>
<figure><img src="https://static.wixstatic.com/media/491d2c_c61dae386e2c4c75a0f5ce2d302a8bc8~mv2.jpg/v1/fit/w_699,h_326,al_c,q_80/file.png"alt="Ontario Regulation 288/01 – Termination and Severance of Employment "></figure>
Ontario employees are entitled to a minimum amount of <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/termination-employment" target="_blank">termination notice</a> and, in some cases, <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/severance-pay" target="_blank">severance pay</a> in accordance with <a href="https://www.ontario.ca/laws/statute/00e41#BK119" target="_blank">Part XV</a> of the <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0" target="_blank">Employment Standards Act</a> (ESA). <a href="https://www.ontario.ca/document/employment-standard-act-policy-and-interpretation-manual/ontario-regulation-28801-termination-and-severance-employment#section-1" target="_blank">Ontario Regulation 288/01</a> – Termination and Severance of Employment (made pursuant to ESA) qualifies part XV of the Act by disentitling some employees from termination notice.
 
<a href="https://www.ontario.ca/laws/regulation/010288" target="_blank">Section 2 (1) (4)</a> disentitles “An employee whose <a href="https://www.htwlaw.ca/employment-contract" target="_blank">contract of employment</a> has become impossible to perform or has been frustrated by a <a href="https://www.merriam-webster.com/dictionary/fortuitous#usage-1" target="_blank">fortuitous</a> or <a href="https://dictionary.cambridge.org/dictionary/english/unforeseeable" target="_blank">unforeseeable</a> event or circumstance,” but <a href="https://www.ontario.ca/laws/regulation/010288" target="_blank">section 2 (3)</a> specifically carves out an exception for employees “…if the impossibility or frustration is the result of an illness or injury suffered by the employee.” The same protection applies for statutory severance under <a href="https://www.ontario.ca/document/employment-standard-act-policy-and-interpretation-manual/ontario-regulation-28801-termination-and-severance-employment#section-8" target="_blank">section 9 (2)</a> of the Regulation 288/01.
<figure><img src="https://static.wixstatic.com/media/491d2c_d6840c5f5c484a04b7d2d48e8e0b6b2b~mv2.jpg/v1/fit/w_470,h_308,al_c,q_80/file.png"alt="disability termination & severance pay"></figure>
Therefore, even in a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">frustration of contract case</a>, an employer is responsible for providing the dismissed employee with their minimum statutory termination notice, or pay in lieu thereof, and severance pay, if applicable.
 
<h3>b. Workplace Safety and Insurance Act</h3>
<figure><img src="https://static.wixstatic.com/media/491d2c_83ae4448862945f8bded6a2ab7d3f405~mv2.jpg/v1/fit/w_412,h_240,al_c,q_80/file.png"alt="Workplace Safety and Insurance Act"></figure>
Pursuant to <a href="https://qweri.lexum.com/w/onlegis/so-1997-c-16-sch-a-en#!fragment/sec41subsec1" target="_blank">Section 41 (1)</a> of the WSIA, an employer has an obligation to re-employ an injured worker 1) if the worker has been “unable to work” as a result of a work-related injury or illness, and 2) that the worker was continuously employed with the injury employer for at least one year before the date of injury.
 
<a href="https://qweri.lexum.com/w/onlegis/so-1997-c-16-sch-a-en#!fragment/sec41subsec2" target="_blank">Section 41 (2)</a> of WSIA specifically exempts employers who regularly employ fewer than 20 workers from the duty to re-employ.
 
<a href="https://qweri.lexum.com/w/onlegis/so-1997-c-16-sch-a-en#!fragment/sec41subsec4" target="_blank">Section 41 (4)</a> of the WSIA creates a statutory obligation on an employer to re-employ an injured worker who is medically able to perform the essential duties of his or her pre-injury employment.
<figure><img src="https://static.wixstatic.com/media/491d2c_581592957efa4b96b1db6dec210a0e44~mv2.jpg/v1/fit/w_474,h_317,al_c,q_80/file.png"alt="duty to re-employ injured worker"></figure>
<a href="https://qweri.lexum.com/w/onlegis/so-1997-c-16-sch-a-en#!fragment/sec41subsec6" target="_blank">Section 41 (6)</a> further imposes a <a href="#7sbh4" rel="noopener noreferrer">duty to accommodate</a> an injured worker. <a href="https://qweri.lexum.com/w/onlegis/so-1997-c-16-sch-a-en#!fragment/sec41subsec7" target="_blank">Section 41 (7)</a> defines the duration of this obligation on an employer to re-employ an injured worker, being until the earliest of: (a) two years from the date of injury, (b) one year after the worker is medically able to perform the essential duties of his or her pre-injury employment; and (c) the date on which the worker reaches the age of 65.
 
<a href="https://www.wsib.ca/en/operational-policy-manual/re-employment-obligations" target="_blank">Click here</a> for a detailed discussion of the duty to re-employ under <a href="https://qweri.lexum.com/w/onlegis/so-1997-c-16-sch-a-en#!fragment/sec40subsec8" target="_blank">Section 41</a> of the WSIA.
<figure><img src="https://static.wixstatic.com/media/491d2c_4a1057c0027a4c2d950059b8d3063874~mv2.jpg/v1/fit/w_462,h_92,al_c,q_80/file.png"alt="Human Rights damages"></figure>
However, even if Section 41 of the WSIA does not impose a duty to re-employ in a given situation , an employer may nevertheless be compelled to accommodate an injured worker to the point of undue hardship or risk being liable for <a href="#d6isg" rel="noopener noreferrer">Human Rights damages</a>. 
 
Please read the following blog post for a more in-depth examination of the intricacy between the Human Rights Code and the WSIA:
 
<a href="https://www.htwlaw.ca/post/the-persistent-myth-of-the-2-year-rule-in-disability-cases" target="_blank">The Persistent Myth of the "2-Year" Rule in Disability Cases</a> 
 
<h2>8. How HTW Law Can Assist you In a Disability Case</h2>
 
<a href="https://www.htwlaw.ca/aboutus" target="_blank">HTW Law</a> is a full-service employment law firm in Toronto, and we are well-versed in employment laws and human rights laws and have extensive experience in various aspects of employment law practice. 
 
<h3>a. Why you Need a Disability Lawyer?</h3>
 
If you've been the victim of disability discrimination, or get wrongfully terminated due to disability related issues, you're not alone. While this time in your life may be terrifying, a <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">Toronto disability lawyer</a> can work with you to help you fight back and take control of your life once again.
 
If you've been let go from your job, it can be an uncertain and scary time. You may be struggling in figuring out how you're going to pay your bills. You may be searching for another job while trying to juggle between your bills and the child care needs.
<figure><img src="https://static.wixstatic.com/media/491d2c_e3aa4f2846ea4321a96586cc95158c28~mv2.jpg/v1/fit/w_596,h_477,al_c,q_80/file.png"alt="wrongfully terminated due to disability"></figure>
We'll examine the circumstances of your employment and work with you to discover how your employer has denied your disability claim, your request for accommodation, or a <a href="https://www.htwlaw.ca/severance-pay" target="_blank">fair severance package</a> in terminating you. It's key to give us as much details as possible so that we can build a strong case against your employer.
 
We will fight zealously to help you get your job back or at the very least get you a fair severance package that you deserve. While a <a href="https://www.htwlaw.ca/severance-pay" target="_blank">severance package</a> is not meant to last a lifetime, it is meant to be a helpful stepping stone to help you get started in a new career. At <a href="https://www.htwlaw.ca/severance-pay" target="_blank">HTW Law</a>, we know what to do to maximize your <a href="https://en.wikipedia.org/wiki/Severance_package" target="_blank">severance payout</a>.
 
Often, we're able to settle out of Court as we demonstrate to your employer that he or she did something illegal. This can result in your employer offering a settlement, or offering you to have your job back. We'll take care of the back and forth <a href="https://en.wikipedia.org/wiki/Negotiation" target="_blank">negotiations</a> necessary to get you what you deserve.
<figure><img src="https://static.wixstatic.com/media/491d2c_8faff92c1a2848cdb20e595e9bf1f6a6~mv2.jpg/v1/fit/w_470,h_179,al_c,q_80/file.png"alt="disability severance negotiation"></figure>
We understand that going through a <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">wrongful termination in Toronto</a> or a disability discrimination can be devastating, and we're here to do the works necessary in helping you get your life back. It can be overwhelming in fighting your employer alone. We have the resources necessary in giving you a fighting chance against corporate giants.
 
If you've been terminated unfairly due to your disability, it's essential that you reach out for help as soon as possible right away. You DON'T have to fight this alone. Don't wait!! Time is of the essence. 
<figure><img src="https://static.wixstatic.com/media/491d2c_43f3f7842e0e47a7b37bdb5c87f77662~mv2.png/v1/fit/w_302,h_197,al_c,q_80/file.png"alt="disability lawyer consultation"></figure>
If you've been let go from your job, we're here to assist you. Reaching out to us today to talk with a <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">disability lawyer</a> about your case. We handle sensitive employment law clients’ information with care. 
<figure><img src="https://static.wixstatic.com/media/491d2c_fcb1e68d5d364ff58d089597b4fcb7f0~mv2.jpg/v1/fit/w_933,h_408,al_c,q_80/file.png"alt="why you need a disability lawyer"></figure>
 
<h3>b. Core Beliefs at HTW Law – Employment Lawyer</h3>
 
We believe in taking a client-centered approach and are dedicated to developing long-term relationships with our clients while providing employment law services and practical legal advice tailored to their specific needs.
<figure><img src="https://static.wixstatic.com/media/491d2c_dad2f55af7544b55a9dcb97c8e14adae~mv2.jpg/v1/fit/w_309,h_184,al_c,q_80/file.png"alt="Disability case client-centered approach"></figure>
We are passionate about employment law and keep ourselves up-to-date by attending seminars, conferences, and staying current on employment law cases and legislation.
We want you to succeed in your employment law litigation because we believe that word-of-mouth advertising based on your success stories is the most effective form of advertising.
 
It's simple. Good employment law Legal Services = happy client.
<figure><img src="https://static.wixstatic.com/media/491d2c_a7c2c6add6654c3baf3fb74ca1b9b7a8~mv2.jpg/v1/fit/w_675,h_285,al_c,q_80/file.png"alt="good disability law service, happy disability case client"></figure>
 
<h3>c. The HTW Law – Employment Lawyer Advantage</h3>
 
At HTW Law – Employment Lawyer, we provided <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">free employment law consultation</a> to employees in need, and we offer no-win, no-fee counsel in qualified employment law cases, which means that we don't get paid unless and until you get paid. You can rest assured that you are in capable hands, especially given that our success is dependent on your recovery.
<figure><img src="https://static.wixstatic.com/media/491d2c_b2eee04b53074051b86f42c10d99cd47~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="HTW Law Disability law services"></figure>
If you have been a victim of <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment</a>, <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a>, age discrimination, disability discrimination, marital status discrimination, or other forms of discrimination prohibited by the <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Human Rights Code</a>, we can MAKE SURE that the human rights issues are properly addressed in addition to your <a href="https://www.htwlaw.ca/severance-pay" target="_blank">severance pay</a>, <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">wrongful dismissal</a> or <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructive dismissal</a> claims.
 
HTW Law - Employment Lawyer has the necessary professional expertise to successfully protect your employment rights. At HTW Law – Employment Lawyer, we have a team of medical professionals, accountants, and other experts at our disposal to produce medical reports, financial reports and damage assessments for you when your employment law litigation calls for it.
 
HTW Law - Employment Lawyer is conveniently located right next to the intersection of Highway 401 and Highway 404 with a <a href="https://www.htwlaw.ca/gallery" target="_blank">huge parking lot</a>. You may view our Google Map here.
<figure><img src="https://static.wixstatic.com/media/491d2c_62aa77373ec946a5b6263ddb035e21fa~mv2.jpg/v1/fit/w_929,h_442,al_c,q_80/file.png"alt="HTW law disability lawyer advantage"></figure>
<a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">FREE initial employment law consultation</a> with an experienced <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">disability lawyer</a> for qualified employment law cases!! Call us now at 647-849-6582 or <a href="https://www.htwlaw.ca/contactus" target="_blank">Contact Us</a> Now if you have any inquiry regarding disability law or you want to book an appointment with us for an no obligation No-Win-No-Fee <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">disability lawyer consultation</a>.
 
<h2>9. Conclusion </h2>
 
We hope you now have a better understanding of <a href="#2lu15" rel="noopener noreferrer">what is Disability Discrimination</a>, what is the <a href="#dolau" rel="noopener noreferrer">Legal Test for disability discrimination</a> and the <a href="#d6isg" rel="noopener noreferrer">Consequence of a Finding of Discrimination</a>, <a href="#651v2" rel="noopener noreferrer">what are the Duty to Accommodate</a> and <a href="#8c8r8" rel="noopener noreferrer">Undue Hardship</a>, what are the <a href="#9ebv8" rel="noopener noreferrer">Legal defences Against A Claim of Disability Discrimination</a> such as <a href="#bocpi" rel="noopener noreferrer">BFOR</a>, <a href="#f6ct1" rel="noopener noreferrer">Frustration of Contract</a>, <a href="#8qg2q" rel="noopener noreferrer">WSIA Statutory Bar Under S. 31</a>, what are <a href="#7u3s7" rel="noopener noreferrer">Statutory Protections for Disabled Employees</a> under ESA and WSIA, and that you learn more about <a href="#5llob" rel="noopener noreferrer">Disability Related STD and LTD Claims</a>, <a href="#34gup" rel="noopener noreferrer">WSIB Claims</a>, <a href="#18rnn" rel="noopener noreferrer">HRTO Substance Related Disorder Discrimination Claims</a>.
 
Frustration of contract only applies to situations involving a permanent disability. If an employee can show medical evidence of a reasonable prospect of returning to work, a successful claim of frustration of contract is unlikely. A prolonged absence due to illness, without more, does not substantiate a claim that the <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment agreement</a> has been frustrated.
 
Temporary disabilities must be <a href="#7sbh4" rel="noopener noreferrer">accommodated to the point of undue hardship</a>. Failing of which, a claim of <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">Disability Discrimination</a> is likely.
<figure><img src="https://static.wixstatic.com/media/491d2c_e7c84ac24f66405f8659848ae88bda09~mv2.jpg/v1/fit/w_459,h_304,al_c,q_80/file.png"alt="experienced disability lawyer consultation"></figure>
There's no one-size-fit-all test on whether a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">case of disability discrimination</a><a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank"> </a>has been established in any given situation.
 
When in doubt, you are highly recommended to contact an experienced <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">disability lawyer</a> for a risk free <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">disability discrimination lawyer consultation</a>.
<figure><img src="https://static.wixstatic.com/media/491d2c_5e99024758874a18bcc7cb48f5378ea8~mv2.jpg/v1/fit/w_421,h_271,al_c,q_80/file.png"alt="disability discrimination lawyer consultation"></figure>
When you are a victim of <a href="#2lu15" rel="noopener noreferrer">disability discrimination</a> or you have been <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">terminated wrongfully</a> or <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructively dismissed</a> due to disability, or that you experienced <a href="#34gup" rel="noopener noreferrer">chronic or traumatic mental stress</a> due to <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment</a> or <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a>, you should consults with a <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">disability lawyer</a> or you risk waiving your legal rights under <a href="https://en.wikipedia.org/wiki/Common_law" target="_blank">Common law</a>, the Human Rights Code or your rights in <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">suing for wrongful dismissal</a>, <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructive dismissal</a> or <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a>.
<figure><img src="https://static.wixstatic.com/media/491d2c_0e39bbf42be842aa9e976900ad142111~mv2.jpg/v1/fit/w_336,h_225,al_c,q_80/file.png"alt="caring and compassionate staff answering disability discrimination inquiry"></figure>
When you require assistance with a disability case, HTW Law – Employment Lawyer is ONLY a phone call away. There's no need to search around for a disability lawyer who is ready, willing and able to assist you. When you call, we will be there to help you. We look forward to serving you soon.
<figure><img src="https://static.wixstatic.com/media/491d2c_169a70b0999a4c0da920be9d48ed6bb5~mv2.jpg/v1/fit/w_984,h_510,al_c,q_80/file.png"title="HTW Law - Employment Lawyer Contact Information"alt="HTW Law - Employment Lawyer Contact Information"></figure>
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<figure><img src="https://static.wixstatic.com/media/11062b_d65a2df3360b41c7b37c7f41d37de7ff~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="A Legal Analysis on the Medical Documentation in Disability Cases and the Duty to Accommodate"></figure>
<h3>Topics Will be Covered in This Post:</h3>
<ol>
<li><a href="#f3plj" rel="noopener noreferrer">The Role of Medical Documentation in Disability Cases?</a> </li>
<li><a href="#drmnk" rel="noopener noreferrer">Independent Medical Examinations (IME)</a> </li>
<li><a href="#1ikib" rel="noopener noreferrer">Type and Scope of Medical Documentation</a> <ol>
<li><a href="#a0i2n" rel="noopener noreferrer">The Duty to Accommodate</a> <ol>
<li><a href="#2t9eb" rel="noopener noreferrer">The Employer’s Duty</a> </li>
<li><a href="#24cjk" rel="noopener noreferrer">The Employee’s Duty</a> </li>
</ol></li>
<li><a href="#6hc16" rel="noopener noreferrer">Chronic Mental Stress</a> & Traumatic Mental Stress</li>
<li><a href="#e6tgr" rel="noopener noreferrer">Short-Term Disability and Long-Term Disability Claims</a> </li>
<li><a href="#22iml" rel="noopener noreferrer">Fitness to Resume Work</a> </li>
<li><a href="#fpd3f" rel="noopener noreferrer">Domestic or sexual violence leave</a> </li>
</ol></li>
<li><a href="#93c4d" rel="noopener noreferrer">Conclusion</a> </li>
</ol>
<h2>1. The Role of Medical Documentation in Disability Cases</h2>
 
<figure><img src="https://static.wixstatic.com/media/f1eecfa8d4f04b77a5ad606829222f57.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="The Role of Medical Documentation in Disability Cases"></figure>
 
Employers typically require medical information and evidence from employees to <a href="#a0i2n" rel="noopener noreferrer">accommodate</a> an injury, illness, or disability or to determine whether an employee is <a href="#22iml" rel="noopener noreferrer">fit to return to work</a> following a medical absence, or to determine whether an employee is eligible for <a href="#6hc16" rel="noopener noreferrer">chronic mental stress</a> <a href="https://www.wsib.ca/en/injured-or-ill-people/claims/wsib-benefits" target="_blank">WSIB benefit</a>.
 
<a href="#e6tgr" rel="noopener noreferrer">Medical Evidence</a> is usually required in filing <a href="https://www.canada.ca/en/financial-consumer-agency/services/insurance/disability.html#toc1" target="_blank">short-term disability</a> (STD) and <a href="https://www.canada.ca/en/financial-consumer-agency/services/insurance/disability.html#toc2" target="_blank">long-term disability</a> (LTD) claims to insurance companies as well.
 
You might also want to <a href="https://www.htwlaw.ca/post/disability-discrimination" target="_blank">click here</a> to check out our <a href="https://www.htwlaw.ca/post/disability-discrimination" target="_blank">disability discrimination ultimate guide</a> for an in-depth discussion of disability law and disability discrimination.
 
<figure><img src="https://static.wixstatic.com/media/491d2c_b107ecfa65b1425396c12f41523e57a3~mv2.jpg/v1/fit/w_800,h_151,al_c,q_80/file.png"alt="Ontario Human Rights Tribunal"></figure>
The <a href="https://www.ohrc.on.ca/en" target="_blank">Ontario Human Rights Commission</a> (OHRC) <a href="https://www.ohrc.on.ca/en/policy-ableism-and-discrimination-based-disability" target="_blank">Policy on Ableism and Discrimination Based on Disability</a> sets out information about the role of medical documentation in the accommodation process. 
 
The Policy states that the type of information accommodation seekers may generally be expected to provide to support an accommodation includes:
<ul>
<li>Confirmation that the person has a disability;</li>
<li>The limitations or needs associated with the disability;</li>
<li>Whether the person can perform the essential duties or requirements of the job, with or without accommodation;</li>
<li>The type of accommodation that may be needed to allow the person to fulfill the essential duties or requirements of the job; and</li>
<li>Regular updates about when the person expects to come back to work, if she is on leave.</li>
</ul>
<figure><img src="https://static.wixstatic.com/media/11062b_32769e30e84a4988a9e00727dbf9ef3a~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Policy on Ableism and Discrimination Based on Disability"></figure>
 
The Policy notes that where there is a reasonable basis to question the legitimacy of an employee’s <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">request for accommodation</a> or the adequacy of the information provided, the employer may request confirmation or additional information from a qualified healthcare professional.
 
However, an employer cannot ask for more confidential medical information than necessary in accommodating the employee’s needs. An employer generally does not have the right to require disclosure of an employee’s confidential medical information such as the cause of the disability, diagnosis, symptoms, or treatment, unless these clearly relate to the accommodation being sought. 
 
<h2>2. Independent Medical Examinations (IME) </h2>
 
<figure><img src="https://static.wixstatic.com/media/11062b_0ce2ca2db86244d2845cb33a66f7a8e9~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Independent Medical Examinations"></figure>
 
Employers or Insurance Companies typically request the employee consent to an <a href="https://en.wikipedia.org/wiki/Independent_medical_examination" target="_blank">Independent Medical Examination</a> (IME) for reasons mentioned above.
 
In Bottiglia v. Ottawa Catholic School Board, <a href="https://canlii.ca/t/h3xnh" target="_blank">2017 ONSC 2517</a>, the Ontario<a href="https://www.ontariocourts.ca/scj/divisional-court/" target="_blank"> Divisional Court</a> discussed the circumstances under which an employee must consent to an independent medical examination (IME). 
 
<figure><img src="https://static.wixstatic.com/media/9c3e43af2b0549bdbcc0c88bda3e1e1e.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Bottiglia v. Ottawa Catholic School Board, 2017 ONSC 2517"></figure>
 
In this case, as the employee prepared to return to work from a two-year medical leave, the employer asked him to undergo an IME by a doctor of its choosing as a precondition for his return to work to determine the appropriate accommodation. The employer took the position that the medical documents the treating physician provided were deficient.
 
The employee refused to undergo the IME, resigned and filed a complaint to the <a href="https://tribunalsontario.ca/hrto/" target="_blank">Ontario Human Rights Tribunal</a> (HRTO). <a href="https://tribunalsontario.ca/hrto/" target="_blank">HRTO</a> dismissed the complaint.
 
Referencing the <a href="#6ulh" rel="noopener noreferrer">OHRC policies</a> in its decision, the Tribunal held at <a href="https://canlii.ca/t/h3xnh#par69" target="_blank">para. 106 - 109</a> that the employer’s request of an IME was justified, and noted that the employer “had a reasonable and bona fide reason to question the adequacy and reliability of the information the employee provided and the legitimacy of the employee’s proposed accommodation and to consequently seek an independent medical assessment.”
 
<figure><img src="https://static.wixstatic.com/media/11062b_2efabf102f25402b9e463f781025a38c~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Bottiglia v. Ottawa Catholic School Board"></figure>
 
On <a href="https://en.wikipedia.org/wiki/Judicial_review" target="_blank">judicial review</a>, the <a href="https://en.wikipedia.org/wiki/Ontario_Superior_Court_of_Justice#Divisional_Court" target="_blank">Ontario Divisional Court</a> held that the Tribunal’s decision was reasonable. The Court disagreed with the employee’s submission that an employer may only request an IME in the presence of contractual authority or when expressly authorized by statute.
 
The Divisional Court reasoned in <a href="https://canlii.ca/t/h3xnh#par66" target="_blank">para. 66</a>, and <a href="https://canlii.ca/t/h3xnh#par67" target="_blank">para. 67</a> that “the duty imposed” on an employer to <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">accommodate an employee</a>’s disability to the point of <a href="https://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions/14-undue-hardship" target="_blank">undue hardship</a> under <a href="https://www.ontario.ca/laws/statute/90h19#BK19" target="_blank">section 17(2)</a> of the <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Human Rights Code</a> “brings with it the right in certain circumstances to request an IME”.
 
The Divisional Court agreed with the HRTO decision and held in <a href="https://canlii.ca/t/h3xnh#par76" target="_blank">para. 76</a> that “in certain circumstances, the procedural aspect of an employer’s duty to accommodate will permit, or even require, the employer to ask for a second medical opinion”, and it will be justified in requesting that an employee attend an IME. Those circumstances include “where the employer has a reasonable and bona fide reason to question the adequacy and reliability of the information provided by an employee’s medical expert”.
 
<figure><img src="https://static.wixstatic.com/media/11062b_a96be23e2cac4329b1cdbb08350a2223~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="limitations on requesting an independant medical examination"></figure>
 
However, the Divisional Court stated clearly in <a href="https://canlii.ca/t/h3xnh#par77" target="_blank">para. 77</a> that “an employer is not entitled to request an IME in an effort to second-guess an employee’s medical expert”, and that an IME is justified ONLY IF “the employer cannot reasonably expect to obtain the information it needs from the employee’s expert as part of the employer’s duty to accommodate”.
 
The Divisional Court also cautioned that in cases where an IME is justified, an employer is NOT ALLOWED to provide information to the examiner that could potentially bias the examination. Specifically, the Court stated, at <a href="https://canlii.ca/t/h3xnh#par92" target="_blank">para. 92</a>:
 
Where an employer has provided information to an examiner which might reasonably be expected to impair that examiner's objectivity...an employee is justified in refusing to attend the IME. In such a case, the accommodation process will not have failed as a result of the employee's refusal to attend the IME. Instead, the process will have broken down as a result of the employer's actions in potentially impairing the examiner's objectivity.
 
<h2>3. Type and Scope of Medical Documentation</h2>
 
<figure><img src="https://static.wixstatic.com/media/11062b_61159504c4b24999b7177c3ed9ddf4dc~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Type and Scope of Medical Documentation"></figure>
 
In this blog post we will discuss some of the most common situations where medical documents are required to be disclosed.
 
<h3>a. The Duty to Accommodate</h3>
 
<figure><img src="https://static.wixstatic.com/media/7b38f952f78e4d418da180188570f089.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="The Duty to Accommodate"></figure>
 
The HRTO has stated in the famous case Misetich v. Value Village Stores Inc., <a href="https://canlii.ca/t/gtvp9" target="_blank">2016 HRTO 1229</a>, that the <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">accommodation process</a> is a multi-party inquiry and the employee is obligated to cooperate in this process, providing sufficient information with respect to the disability or illness requiring accommodation and then working with the employer to identify reasonable solutions to accommodate the employee’s need appropriate in the circumstances.
 
<a href="https://www.htwlaw.ca/post/family-status-discrimination-a-legal-analysis" target="_blank">Click here</a> to learn more about family status <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination</a> by reading the blog post <a href="https://www.htwlaw.ca/post/family-status-discrimination-a-legal-analysis" target="_blank">Family Status Discrimination - A Legal Analysis</a>.
 
When considering the type of medical documentation an employer is entitled to, an employee’s <a href="https://en.wikipedia.org/wiki/Right_to_privacy" target="_blank">right to privacy</a> MUST always be balanced with an employer’s legitimate need for sufficient information to satisfy its accommodation and health and safety obligations. 
 
<figure><img src="https://static.wixstatic.com/media/11062b_8d66aa5276ce409f9faa7f49c32422ab~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Complex Services Inc v Ontario Public Service Employees Union, Local 278, 2012 CanLII 8645"></figure>
 
Ontario case law demonstrates that, in order to establish the existence of a disability and assist in the accommodation process, employers are generally entitled to request the following otherwise confidential medical information:
<ul>
<li>The nature of the illness or disability;</li>
<li>Whether it is permanent or temporary (prognosis);</li>
<li>Restrictions and limitations that flow from the disability;</li>
<li>The basis for the medical conclusions (i.e. the nature of the disability and illness, prognosis, restrictions), including the examinations or tests performed (but not necessarily the test results or clinical notes); and</li>
<li>Details of how any treatment needs, medication, or medical interventions may affect participation in the workplace.</li>
</ul>
See e.g. Complex Services Inc v Ontario Public Service Employees Union, Local 278, <a href="https://canlii.ca/t/fq9vg" target="_blank">2012 CanLII 8645</a> (ON LA), at <a href="https://canlii.ca/t/fq9vg#par95" target="_blank">para. 95</a>.
 
<h4>i. The Employer’s Duty</h4>
 
<figure><img src="https://static.wixstatic.com/media/11062b_171fc28e50f2428fa8125b4c608020b7~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
 
When an employee requests an accommodation due to a disability or an illness, it triggers the employer’s <a href="https://www.hrlsc.on.ca/en/understanding-the-duty-to-accommodate" target="_blank">duty to accommodate</a> under the <a href="https://www.ontario.ca/laws/statute/90h19#BK19" target="_blank">Ontario Human Rights Code </a>(the “Code”), to the point of undue hardship. 
 
The <a href="https://www.scc-csc.ca/home-accueil/index-eng.aspx" target="_blank">Supreme Court of Canada</a> has established the <a href="https://en.wikipedia.org/wiki/Central_Alberta_Dairy_Pool_v_Alberta_(Human_Rights_Commission)" target="_blank">undue hardship test</a> in Central Alberta Dairy Pool v Alberta (Human Rights Commission), <a href="https://canlii.ca/t/1fsv9" target="_blank">[1990] 2 SCR 489</a>.
 
<figure><img src="https://static.wixstatic.com/media/11062b_1f5c32329fc44218a1b85f597f816de2~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Supreme Court of Canada"></figure>
 
The Supreme Court has stated that in determining whether the employer has accommodated the employee to the point of undue hardship, a list of factors is to be considered: 
<ol>
<li>financial costs of accommodation</li>
<li>disruption of the collective agreement</li>
<li>problems of morale of other employees</li>
<li>interchangeability of work force and facilities</li>
<li>size of the employer's operation (which may also influence the other factors, such as whether the financial cost is undue or the difficulty in adapting the work force or facilities to accommodate individuals)</li>
<li>safety concerns</li>
</ol>
The duty to accommodate has both a procedural and a substantive component. 
 
<figure><img src="https://static.wixstatic.com/media/11062b_14b1ebf48b494daf9f1c5a0db9f82c13~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Central Alberta Dairy Pool v Alberta (Human Rights Commission), [1990] 2 SCR 489"></figure>
 
The procedural component requires employers to inquire into an employee’s accommodation needs and undertake an individualized investigation of potential accommodation measures to address those needs. The substantive component requires employer to make adjustments to the work environment to address those needs, including proof of undue hardship.
 
To be able to properly accommodate an employee, an employer requires medical information to understand the employee’s limitations, restrictions at work, and prognosis. This information is typically provided through <a href="#f3plj" rel="noopener noreferrer">medical documentation</a>, either from the employee’s treating physician or through an <a href="#drmnk" rel="noopener noreferrer">independent medical examination</a> (“IME”) performed by a medical practitioner chosen by the employer.
 
In Hamilton-Wentworth District School Board v. Fair, <a href="https://canlii.ca/t/gs1bt" target="_blank">2016 ONCA 421</a>, the Ontario <a href="https://en.wikipedia.org/wiki/Court_of_Appeal_for_Ontario" target="_blank">Court of Appeal</a> addressed employee medical documentation in the context of the procedural duty to accommodate. 
 
<figure><img src="https://static.wixstatic.com/media/11062b_6c09b917f62047959a28d26352d8c731~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421"></figure>
 
In that case, the employee’s psychiatrist provided the employer with a medical update during the employee’s medical leave due to anxiety and depression, advising that the employee could not return to her previous role for medical reasons and recommending less stressful positions. 
 
In February 2004, the employer requested that the employee attend an appointment with a psychiatrist to clarify restrictions or limitations and how best to accommodate them. The psychiatrist deemed the employee permanently disabled from her own occupation, but stated that the employee was still capable of gainful employment. 
 
The employer did not identify another suitable position for the employee and terminated her employment in July 2004.
 
<figure><img src="https://static.wixstatic.com/media/491d2c_b107ecfa65b1425396c12f41523e57a3~mv2.jpg/v1/fit/w_800,h_151,al_c,q_80/file.png"alt="Ontario Human Rights Tribunal"></figure>
The <a href="https://tribunalsontario.ca/hrto/" target="_blank">Ontario Human Rights Tribunal</a> (the “Tribunal”) found that the employee had fulfilled her obligation to cooperate fully in the accommodation process by staying in constant communication with the employer and providing her consent to the release of medical information. 
 
The Tribunal also found that the employer had not fulfilled its duty to obtain the medical evidence necessary to <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">accommodate the employee</a>, even though the employee was willing to provide such information. 
 
On <a href="https://en.wikipedia.org/wiki/Judicial_review_in_Canada" target="_blank">judicial review</a>, the Divisional Court found that the Tribunal’s decision was reasonable (<a href="https://canlii.ca/t/gdrjd" target="_blank">2014 ONSC 2411</a>), and the Ontario Court of Appeal upheld the Divisional Court’s decision (<a href="https://canlii.ca/t/gs1bt" target="_blank">2016 ONCA 421</a>).
 
<figure><img src="https://static.wixstatic.com/media/11062b_56f3a0f83b634a7ba9db9a8332f84046~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Hamilton-Wentworth District School Board v. Fair"></figure>
 
The Court of Appeal reasoned that the Tribunal had properly found that the employer had a duty to obtain medical evidence necessary to accommodate the employee, but that it did not fulfill its duty. 
 
The Court of Appeal held in <a href="https://canlii.ca/t/gs1bt#par85" target="_blank">para. 85</a> that, “the Tribunal had fairly observed that the medical evidence required clarification” concerning the employee’s restrictions and that “it would have been simple” for the employer “to clarify those restrictions with its own expert.” The employer presented “no evidence” that it “made any attempt to clarify” the employee’s “restrictions with its own expert or consider alternate positions during the two months following receipt of its expert’s report” confirming that the employee “was capable of gainful employment”.
 
<figure><img src="https://static.wixstatic.com/media/8739d2d99dbd55fa18b5deac40af94fa.jpg/v1/fit/w_1000,h_960,al_c,q_80/file.png"alt="duty to obtain medical evidence, Hamilton-Wentworth District School Board v. Fair"></figure>
 
As shown in <a href="https://canlii.ca/t/gs1bt" target="_blank">Hamilton-Wentworth District School Board</a>, employers cannot disregard the duty to obtain medical evidence once a request for accommodation is made. 
 
<a href="https://en.wikipedia.org/wiki/Undue_hardship" target="_blank">Undue hardship</a> is a high <a href="https://www.merriam-webster.com/dictionary/threshold" target="_blank">threshold</a> to meet, and the larger the organization, the higher the expectation will be that it obtains the appropriate documentation to satisfy its accommodation and health and safety obligations
 
<h4>ii. The Employee’s Duty</h4>
 
<figure><img src="https://static.wixstatic.com/media/11062b_a5d18a398b024820bb2f32af55045180~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="The Employee’s Duty"></figure>
 
An <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">employee seeking accommodation</a> is required to bring the fact of the disability or illness and need for accommodation to the employer’s attention, and to fully participate in the accommodation process.
 
Once an employee has communicated a request for accommodation for a disability or illness, the <a href="https://dictionary.cambridge.org/dictionary/english/onus" target="_blank">onus</a> remains on the employee to establish the nature and extent of the disability and the accommodations required, which in most cases requires the disclosure of personal medical information. 
 
<figure><img src="https://static.wixstatic.com/media/26ad151466cb46bda372f2f77825c707.jpg/v1/fit/w_980,h_415,al_c,q_80/file.png"alt="provide medical documentation to substantiate nature and extent of the disability"></figure>
 
An employee’s failure or refusal to substantiate the need for accommodation may stall or even end the accommodation process and may prove fatal in a future <a href="https://tribunalsontario.ca/hrto/forms-filing/" target="_blank">complaint to the Ontario Human Rights Tribunal</a> (HRTO) or to the Courts.
 
Betts v. IBM Canada Limited, <a href="https://canlii.ca/t/gr8d6" target="_blank">2016 ONSC 2496</a>, highlight the importance for employees of complying with their duties to provide medical information to support accommodation requests. Not taking this duty seriously may result in an inability to enforce their rights under the <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Human Rights Code</a>.
 
<figure><img src="https://static.wixstatic.com/media/11062b_c334e3faa3324a19a81a354fbfeb5b9e~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Betts v. IBM Canada Limited, 2016 ONSC 2496"></figure>
 
In Betts v. IBM Canada Limited, <a href="https://canlii.ca/t/gr8d6" target="_blank">2016 ONSC 2496</a>, the employee was away from work because of <a href="https://www.psychiatry.org/patients-families/depression/what-is-depression" target="_blank">depressive symptoms</a>. 
 
Over a period of a number of months, the employer sent the employee five (5) letters which noted that if the employee did not return to work or submit medical documentation to the insurer by a certain date, the employer would consider the absence to be a voluntary resignation. Each successive letter provided a later date to either return to work or submit medical documentation. On several occasions, the employee provided the insurer with letters and emails from his psychologist recommending that he not return to work on account of his depression and anxiety.
 
<figure><img src="https://static.wixstatic.com/media/f2d6740da60ff8f7a1292dd305a1a4eb.jpg/v1/fit/w_1000,h_667,al_c,q_80/file.png"></figure>
 
However, the employee did not provide a medical practitioner’s opinion. On May 14, 2014, the employer sent the fifth letter asking the employee to file additional medical documentation for his short term disability claim with the insurer, failing which he would have to return to work by June 30, 2014. 
 
On June 20, 2014, the employee informed the employer that, at his psychologist’s recommendations, he would not return to work. The employer treated this letter as a resignation. 
 
<figure><img src="https://static.wixstatic.com/media/11062b_bb801ff8935f4726a4352404685059df~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
 
The employee filed a <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">wrongful dismissal claim</a>. The employer moved for <a href="https://en.wikipedia.org/wiki/Summary_judgment" target="_blank">summary judgment</a>. The motion judge granted the employer’s summary judgment motion and dismissed the employee’s wrongful dismissal claim. The employee appealed. 
 
The Ontario Divisional Court dismissed the employee’s appeal. The court reasoned in <a href="https://canlii.ca/t/gr8d6#par16" target="_blank">para. 16</a> that the employee failed to submit any medical evidence to establish that he was medically unable to perform his job, notwithstanding the fact that the employer requested that information on numerous occasions over a period of 8.5 months.
 
So it seems that according to the <a href="https://www.ohrc.on.ca/en" target="_blank">OHRC</a>'s <a href="https://www.ohrc.on.ca/en/policy-ableism-and-discrimination-based-disability" target="_blank">Policy on Ableism and Discrimination Based on Disability</a> and <a href="https://canlii.ca/t/gr8d6" target="_blank">Betts v. IBM Canada Limited</a> mentioned above, in order to discharge an employee's <a href="#f3plj" rel="noopener noreferrer">duty to provide medical documentation</a>, an employee is expected to provide otherwise confidential medical information, in the form of his or her treating physician's or any other form:
<ul>
<li>The nature of the illness or disability;</li>
<li>Whether it is permanent or temporary (prognosis);</li>
<li>Restrictions and limitations that flow from the disability;</li>
<li>The basis for the medical conclusions (i.e. the nature of the disability and illness, prognosis, restrictions), including the examinations or tests performed (but not necessarily the test results or clinical notes); and</li>
<li>Details of how any treatment needs, medication, or medical interventions may affect participation in the workplace.</li>
</ul>
On the other hand, as stated by the Divisional Court in <a href="https://canlii.ca/t/h3xnh" target="_blank">Bottiglia v. Ottawa Catholic School Board</a>, it's the employer's duty to request an independent medical examination to satisfy itself where the employer has a reasonable and bona fide reason to question the adequacy and reliability of the information provided by an employee’s medical expert”.
 
<h3>b. Chronic Mental Stress & Traumatic Mental Stress</h3>
 
<figure><img src="https://static.wixstatic.com/media/11062b_e0e488fa69824c65a6209d6bbf8aff7e~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Chronic Mental Stress"></figure>
 
Under <a href="https://www.ontario.ca/laws/statute/97w16#BK12" target="_blank">Section 13</a> of the <a href="https://www.ontario.ca/laws/statute/97w16" target="_blank">Workplace Safety and Insurance Act</a> (<a href="https://www.wsib.ca/en/policy/workplace-safety-and-insurance-act" target="_blank">WSIA</a>), a worker is entitled to benefits for <a href="https://www.wsib.ca/en/operational-policy-manual/chronic-mental-stress" target="_blank">chronic mental stress</a> arising out of and in the course of the worker’s employment.
 
The chronic mental stress policy contains three key criteria that an injured worker must meet before being compensated:
<ol>
<li>The injured worker needs to provide a <a href="https://en.wikipedia.org/wiki/DSM-5" target="_blank">DSM-5</a> diagnosis from a regulated health-care professional who is authorized to make such a diagnosis (this includes family physicians, nurse practitioners, psychologists and psychiatrists). </li>
<li>There must be proof of <a href="https://www.ohcow.on.ca/edit/files/events/spring_into_action/chronic_mental_stress_-_allen_cramm.pdf" target="_blank">substantial work-related stressors</a>. An event or accident that occurred during the course of employment to trigger the chronic mental stress must be established to prove there is a cause. </li>
<li>There’s a <a href="https://en.wikipedia.org/wiki/Causation_(law)" target="_blank">causation requirement</a>. This means that the <a href="https://www.wsib.ca/en/operational-policy-manual/accident-course-employment" target="_blank">workplace incident</a> MUST be the <a href="https://www.lawinsider.com/dictionary/predominant-cause" target="_blank">predominant cause</a> of the chronic mental stress. </li>
</ol>
 
<figure><img src="https://static.wixstatic.com/media/491d2c_83ae4448862945f8bded6a2ab7d3f405~mv2.jpg/v1/fit/w_412,h_240,al_c,q_80/file.png"alt="Workplace Safety and Insurance Board"></figure>
 
An employer has the right to request a worker undergo an independent medical examination (IME) by a health professional selected and paid for by the employer if it’s reasonable necessary to access whether the employee suffers a chronic mental stress based on a <a href="https://en.wikipedia.org/wiki/DSM-5" target="_blank">DSM-5</a> diagnosis.
 
The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, often called the <a href="https://www.psychiatry.org/psychiatrists/practice/dsm" target="_blank">DSM–5</a>, is the latest version of the <a href="https://www.psychiatry.org/" target="_blank">American Psychiatric Association</a>’s gold-standard text on the names, symptoms, and diagnostic features of every recognized mental illness—including addictions.
 
Please <a href="https://www.wsib.ca/en/operational-policy-manual/employer-requested-health-examinations" target="_blank">click here</a> for details regarding the <a href="https://www.wsib.ca/en/operational-policy-manual/employer-requested-health-examinations" target="_blank">WSIB</a>’s policy on <a href="https://www.wsib.ca/en/operational-policy-manual/employer-requested-health-examinations" target="_blank">Employer-Requested Health Examinations</a>.
 
Similarly, the <a href="https://www.wsib.ca/en" target="_blank">Workplace Safety and Insurance Board</a> (WSIB) has the right to request a worker undergo an independent medical examination (IME) by a health professional selected and paid for by the WSIB.
 
Please <a href="https://www.wsib.ca/en/operational-policy-manual/wsib-requested-health-examinations" target="_blank">click here</a> for details regarding the <a href="https://www.wsib.ca/en/operational-policy-manual/employer-requested-health-examinations" target="_blank">WSIB</a>’s <a href="https://www.wsib.ca/en/operational-policy-manual/health-care/examinations" target="_blank">examination policy</a> on <a href="https://www.wsib.ca/en/operational-policy-manual/wsib-requested-health-examinations" target="_blank">WSIB-Requested Health Examinations</a>.
<figure><img src="https://static.wixstatic.com/media/491d2c_169a70b0999a4c0da920be9d48ed6bb5~mv2.jpg/v1/fit/w_984,h_510,al_c,q_80/file.png"alt="HTW Law - Employment Lawyer, Contact Us Now"></figure>
 
<a href="https://www.wsib.ca/en/operational-policy-manual/traumatic-mental-stress" target="_blank">Click here</a> to learn more about the WSIB's policy on <a href="https://www.wsib.ca/en/operational-policy-manual/traumatic-mental-stress" target="_blank">Traumatic Mental Stress</a>, which is very similar yet distinct from the Chronic Mental Stress policy. 
 
A worker will generally be entitled to benefits for traumatic mental stress if an appropriately diagnosed mental stress injury is caused by one or more traumatic events arising out of and in the course of the worker’s employment, which includes <a href="https://www.wsib.ca/en/operational-policy-manual/accident-course-employment" target="_blank">workplace accident</a> and <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment</a>.
 
Please read this blog post if you want to learn more about the intricacy between WSIB Chronic Stress Claim under <a href="https://www.ontario.ca/laws/statute/97w16#BK12" target="_blank">Section 13 of the WISA</a> and <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">wrongful dismissal</a> and <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructive dismissal</a> claims:
 
<a href="https://www.htwlaw.ca/post/am-i-barred-from-constructive-dismissal-claim-if-i-quit-due-to-stress" target="_blank">Am I Barred From Claiming Constructive Dismissal or Wrongful Dismissal if I Quit Due to Stress?</a> 
 
<h3>c. Short-Term Disability and Long-Term Disability Claims</h3>
 
<figure><img src="https://static.wixstatic.com/media/11062b_d75076444824430a818741565ee5d57f~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
 
When filing a claim for <a href="https://www.canada.ca/en/financial-consumer-agency/services/insurance/disability.html#toc1" target="_blank">Short-Term Disability</a> (STD) and <a href="https://www.canada.ca/en/financial-consumer-agency/services/insurance/disability.html#toc2" target="_blank">Long-Term Disability</a> (LTD), insurance companies typically require employee, employer, and treating physician statements:
 
- Employee statements are submitted by the claimant employee. Typically, an insurance provider will have specific paperwork that the claimant must fill out. Employee comments must be brief and precise in describing how the claimant's impairmentprevents them from performing essential tasks. Defining symptoms WILL NOT suffice unless there is a description of how the claimant's symptoms affect their ability to work, including a reference to specific activities required in that employee's job.
 
- Employer statements are provided by the employers. Such statements are also required to be clear and concise. Most essential, employers must submit a full description of the claimant's responsibilities, as well as information regarding the employer's ability to make reasonable accommodations to enable the disabled employee to continue working. 
 
- Claims evaluators frequently look at statements from treating physicians. Treating doctors should clearly state the claimant's symptoms, diagnosis, suggested therapy, the claimant's involvement in treatment, and an evaluation of why the claimant is unable to work. Copies of evaluations and appointment records must also be included in the statement. 
 
Please read this blog post if you want to learn more about the intricacy between <a href="https://www.canada.ca/en/financial-consumer-agency/services/insurance/disability.html" target="_blank">Long Term Disability</a>, <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">Wrongful Dismissal</a>, <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">Disability Discrimination</a>:
 
<a href="https://www.htwlaw.ca/post/interplay-between-long-term-disability-wrongful-dismissal-disability-discrimination" target="_blank">Interplay between Long Term Disability, Wrongful Dismissal, Disability Discrimination</a>
 
<h3>d. Fitness to Resume Work</h3>
 
<figure><img src="https://static.wixstatic.com/media/11062b_5b137a3f4c14412bae02af183c33a617~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Fitness to Resume Work"></figure>
 
Generally, when an <a href="https://www.wsib.ca/en/injured-or-ill-people/return-work/your-return-work-responsibilities" target="_blank">employee returns to work</a> after a period of disability or illness, an employer has an obligation to satisfy itself that the employee is <a href="https://www.ccohs.ca/oshanswers/psychosocial/fit_to_work.html" target="_blank">fit to resume employment</a>, and that the employee is not a source of danger to himself, to other employees, to company property, or to the general public.
 
The <a href="#1ikib" rel="noopener noreferrer">scope of medical information</a> an employer is entitled to request to prove fitness to return to work is narrower than when an employee requires accommodation.
 
<figure><img src="https://static.wixstatic.com/media/11062b_e8529498efaf4ce6bdcdbfc1c0a1c431~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="WSIB guideline on fitness to return work"></figure>
 
The employee has the initial onus of substantiating her ability to return to work, which may be discharged by producing a medical certificate. Once the employee returns to work, if an employer has reasonable grounds for suspicion that the employee is a source of danger to herself, to others, or to company property, or that she is unfit to perform her duties, the employer may ask for additional medical information.
 
However, the request must be related to the reasons for the absence and the employer is not entitled to a broad inquiry concerning the employee’s medical condition. If the employee refuses, in some circumstances the employer can discharge the employee for refusing a reasonable request and for being an occupational health and safety risk.
 
<h3>e. Domestic or sexual violence leave</h3>
 
<figure><img src="https://static.wixstatic.com/media/51486ded0e3240bca566f9bb5f7750c8.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Domestic or sexual violence leave"></figure>
 
Under <a href="https://www.ontario.ca/laws/statute/00e41#BK100" target="_blank">section 49.7</a> of the <a href="https://www.ontario.ca/laws/statute/00e41" target="_blank">Employment Standards Act</a> (ESA), employees who have been employed by their employer for at least 13 consecutive weeks are entitled to <a href="https://womanact.ca/publications/domestic-or-sexual-violence-leave/" target="_blank">domestic or sexual violence leave</a> if the employee or the employee’s child has experienced or been threatened with <a href="https://en.wikipedia.org/wiki/Domestic_violence" target="_blank">domestic violence</a> or <a href="https://en.wikipedia.org/wiki/Sexual_violence" target="_blank">sexual violence</a>, and the leave is taken for any of the following purposes:
<ul>
<li>To seek medical attention for the employee or the child of the employee because of a physical or psychological injury or disability caused by the domestic or sexual violence</li>
<li>To access services from a <a href="https://www.ontario.ca/page/victim-services-ontario" target="_blank">victim services organization</a> for the employee or the child of the employee</li>
<li>To have <a href="https://www.webmd.com/mental-health/guide-to-psychiatry-and-counseling" target="_blank">psychological or other professional counselling</a> for the employee or the child of the employee</li>
<li>To move temporarily or permanently</li>
<li>To seek legal or law enforcement assistance, including making a police report or getting ready for or participating in a family court, civil or criminal trial related to or resulting from the domestic or sexual violence</li>
</ul>
The employee MUST NOT be the perpetrator of the domestic or sexual violence. An employee is not entitled to this leave if the employee committed the domestic or sexual violence.
 
“Child” means a child, step-child, child under legal guardianship or foster child who is under 18 years of age.
 
<figure><img src="https://static.wixstatic.com/media/1ef8a6c287794628a4eb7dcb299ea8de.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
 
<a href="https://stepstojustice.ca/steps/employment-and-work/3-find-out-about-domestic-or-sexual-violence-leave/" target="_blank">Domestic and sexual violence leave</a> can be taken all at once, as single days or in groups of days. The leave provides:
<ul>
<li> 5 days of paid leave; and</li>
<li> 5 days of unpaid leave.</li>
</ul>
If needed, a longer-term of up to <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/domestic-or-sexual-violence-leave#section-1" target="_blank">15 unpaid weeks can be taken</a>. This leave may be taken consecutively or separately.
 
Under <a href="https://www.ontario.ca/laws/statute/00e41#BK100" target="_blank">Section 49.7</a> of the <a href="https://www.ontario.ca/laws/statute/00e41" target="_blank">Employment Standards Act</a> (ESA), an employer may require an employee who takes a leave under this section to provide evidence reasonable in the circumstances of the employee’s entitlement to the leave.
 
<figure><img src="https://static.wixstatic.com/media/491d2c_c316e7b8f6444edfb8b3617f4f2d929a~mv2.jpg/v1/fit/w_464,h_207,al_c,q_80/file.png"alt="Domestic or Sexual Violence Leave"></figure>
It’s unclear what type of evidence that would be considered reasonable, but the following would likely meet the threshold:
<ul>
<li>Medical Notes from medical practitioners, victim services organizations, or other community agencies helping the employee or the child;</li>
<li>Documentation from law enforcement agencies; or</li>
<li>Documentation showing that a lawyer was retained for a domestic or sexual violence related case.</li>
</ul>
For privacy considerations, the information provided by the employee will probably be required to be kept confidential by the employer.
 
The <a href="https://www.ontario.ca/page/ministry-labour-training-skills-development" target="_blank">Ministry of Labour, Training and Skills Development</a> has created a comprehensive guide regarding <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/domestic-or-sexual-violence-leave" target="_blank">domestic violence leave of absence</a>. <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/domestic-or-sexual-violence-leave#section-0" target="_blank">Click here</a> for more detail.
 
<a href="https://www.htwlaw.ca/post/legal-protections-available-against-sexual-harassment" target="_blank">Click here</a> to learn more about <a href="https://www.htwlaw.ca/post/legal-protections-available-against-sexual-harassment" target="_blank">Legal Protections Available Against Sexual Harassment</a>.
 
<h2>4. Conclusion</h2>
 
Employers typically require medical information and evidence from employees to accommodate an injury, illness, or disability or to determine whether an employee is fit to return to work following a medical absence, or to determine whether an employee is eligible for chronic mental stress <a href="https://www.wsib.ca/en/injured-or-ill-people/claims/wsib-benefits" target="_blank">WSIB benefit</a> or STD and LTD claims.
 
The <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">accommodation process</a> is a multi-party inquiry and the employee is obligated to cooperate, providing sufficient information, and in some cases consent to an <a href="#drmnk" rel="noopener noreferrer">IME</a>, and then working with the employer to identify reasonable solutions to accommodate the employee’s need appropriate in the circumstances.
 
There's no one-size-fit-all test on what is the required <a href="#1ikib" rel="noopener noreferrer">type and scope of medical documentation</a> in any given situation. 
 
When in doubt, you are highly recommended to contact an experienced employment lawyer for a risk free <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">employment lawyer consultation</a>.
 
When you have been <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">terminated wrongfully</a> or you have been <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructively dismissed</a> or you have been terminated due to disability, or that you experienced <a href="#6hc16" rel="noopener noreferrer">chronic or traumatic mental stress</a> due to <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment</a> or <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a>, you should consults with an <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">employment lawyer</a> or you risk waiving your legal rights under <a href="https://en.wikipedia.org/wiki/Common_law" target="_blank">Common law</a>, the Human Rights Code or your rights in <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">suing for wrongful dismissal</a>, <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructive dismissal</a> or <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a>.
 
<figure><img src="https://static.wixstatic.com/media/491d2c_169a70b0999a4c0da920be9d48ed6bb5~mv2.jpg/v1/fit/w_984,h_510,al_c,q_80/file.png"title="HTW Law - Employment Lawyer Contact Information"alt="HTW Law - Employment Lawyer Contact Information"></figure>
Don't Wait, Act Now before it's too late. Call us now at <a href="tel:+1 647-849-6582" target="_blank">647-849-6582</a> or <a href="https://www.htwlaw.ca/contactus" target="_blank">Contact Us</a> Now if you have any questions or concerns in related to <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contract</a>, <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">termination</a>, <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">sexual harassment</a>, <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">sexual assault</a>, <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination</a> or <a href="https://www.htwlaw.ca/severance-pay" target="_blank">severance package</a> or you want to book an appointment for a <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">legal consultation</a>. ]]></content:encoded></item><item><title><![CDATA[Legal Protections Available Against Sexual Harassment]]></title><description><![CDATA[Sexual harassment in the workplace is the most serious form of workplace harassment that deserves the most severe penalty. Continue reading ]]></description><link>https://www.htwlaw.ca/post/legal-protections-available-against-sexual-harassment</link><guid isPermaLink="false">620b687b382a7c3ae7ed768e</guid><category><![CDATA[Workplace Discrimination]]></category><category><![CDATA[Workplace Harassment]]></category><pubDate>Tue, 15 Feb 2022 21:34:36 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/11062b_fdf1de651ad64a59a120b0a7e5b70e28~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Tony Wong</dc:creator><content:encoded><![CDATA[In this post, we'll talk about <a href="https://www.ontariocourts.ca/scj/" target="_blank">Ontario cases</a>, <a href="https://tribunalsontario.ca/hrto/" target="_blank">Human Rights Tribunal</a> decisions and statutory protections against <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">sexual harassment</a>. Continue reading to learn more.
<figure><img src="https://static.wixstatic.com/media/11062b_fdf1de651ad64a59a120b0a7e5b70e28~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Legal Protections Available Against Sexual Harassment"></figure>
<h3>Topics Will be Covered in This Post:</h3>
<ol>
<li><a href="#9lfro" rel="noopener noreferrer">What is Sexual Harassment? </a> </li>
<li><a href="#7rt3u" rel="noopener noreferrer">An Overview of Bill 168 – Violence and Harassment in the Workplace</a> </li>
<li><a href="#fb9k3" rel="noopener noreferrer">An Overview of Bill 132 – Sexual Violence and Harassment Action Plan</a> </li>
<li><a href="#9hk05" rel="noopener noreferrer">Protections Under the Occupational Health and Safety Act</a> </li>
<li><a href="#cn9t3" rel="noopener noreferrer">Protection Against Sexual Harassment Under the Human Rights Code</a> </li>
<li><a href="#5vf1l" rel="noopener noreferrer">Protection Against Sexual Harassment and Violent Under Common Law</a> </li>
<li><a href="#rhmg" rel="noopener noreferrer">Conclusion</a><a href="#rhmg" rel="noopener noreferrer"> </a> </li>
</ol>
<h2>1. What is Sexual Harassment?</h2>
<figure><img src="https://static.wixstatic.com/media/a1eab4d429314361b9bc40370de566d5.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="What is Sexual Harassment?"></figure>
<a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">Sexual harassment in the workplace</a> is the most serious form of workplace harassment that deserves the most severe penalty. Any form of <a href="https://en.wikipedia.org/wiki/Sexual_harassment" target="_blank">sexual harassment</a> is strictly prohibited under different statutes such as <a href="#7rt3u" rel="noopener noreferrer">Bill 168</a>, <a href="#fb9k3" rel="noopener noreferrer">Bill 132</a>, the <a href="#9hk05" rel="noopener noreferrer">Occupational Health and Safety Act</a> and the <a href="#cn9t3" rel="noopener noreferrer">Human Rights Code</a> as well as under the <a href="#5vf1l" rel="noopener noreferrer">common law</a> in <a href="https://en.wikipedia.org/wiki/Sexual_assault" target="_blank">sexual assault</a> cases.
 
In Janzen v. Platy Enterprises, <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/456/index.do" target="_blank">[1989] 1 SCR 1252</a>, the <a href="https://www.scc-csc.ca/home-accueil/index-eng.aspx" target="_blank">Supreme Court of Canada</a> has ruled unanimously that <a href="https://www.htwlaw.ca/what-is-sexual-harassment" target="_blank">sexual harassment</a> is <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination based on sex</a>.
 
<a href="https://www.ohrc.on.ca/en/policy-preventing-sexual-and-gender-based-harassment/2-identifying-sexual-harassment" target="_blank">Sexual harassment</a> may include <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">unsolicited sexual jokes</a>, or <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">unwanted touching</a> and repetitive gestures of affection, physical assault, including attempted and actual rape. <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">Sexual harassment</a> includes <a href="https://www.htwlaw.ca/how-many-texts-are-harassment" target="_blank">cyber harassment</a> as well. Email, blogs, Facebook, cell phone text messaging, Whatsapp, etc. are all possible <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">domains for sexual harassment</a>.
 
An Employer has a responsibility and an affirmative duty to maintain a <a href="https://www.htwlaw.ca/common-type-of-workplace-harassment" target="_blank">harassment-free healthy working environment</a> not only in the physical premise and the work space but also in the cyberspace controlled by the Employer. Under certain circumstances, such legal obligations are extended to property owners and those who owes a <a href="https://en.wikipedia.org/wiki/Duty_of_care" target="_blank">duty of care</a> to people working on the premise.
 
<h2>2. An Overview of Bill 168 – Violence and Harassment in the Workplace</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_15e134be08f04c278e845c6a0e9b90f8~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="An Overview of Bill 168 – Violence and Harassment in the Workplace"></figure>
<a href="https://www.ontario.ca/laws/statute/s09023" target="_blank">Bill 168</a> amends the Ontario’s <a href="https://www.ontario.ca/laws/statute/90o01" target="_blank">Occupational Health and Safety Act</a> (“OHSA”). It came into force on June 15, 2010 and aims to <a href="http://news.ontario.ca/mol/en/2009/12/protecting-people-at-work.html" target="_blank">protect workers from violence and harassment</a>. The Bill introduces <a href="http://news.ontario.ca/mol/en/2009/12/new-protections-for-people-at-work.html" target="_blank">new protections</a> and outlines harsh penalties for all employers in Ontario who fail to meet their new responsibilities and duties.
 
Employers are now required to assess risks of workplace violence and harassment, to develop corresponding policies and procedures for investigating and handling complaints and incidents, and to implement proper communication and programs for protecting workers.
 
<h3>What are Workplace Harassment and Violence?</h3>
<figure><img src="https://static.wixstatic.com/media/11062b_8666dc7cbd944cfc96eede5ee1163916~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Workplace Harassment and Violence"></figure>
According to the Bill, <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment</a> occurs when a worker in the workplace is the victim of a course of <a href="https://www.ohrc.on.ca/en/policy-discrimination-against-older-people-because-age/8-harassmentpoisoned-environment" target="_blank">vexatious comments or conduct</a> that is known, or ought reasonably to have been known, to be unwelcome.
 
<a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">Workplace violence</a> occurs when a worker in the workplace is the victim of the exercise of physical force that causes or could cause physical injury. Violence could also include an attempt to exercise such force, or a statement or behaviour that could be reasonably interpreted as a threat to exercise such force.
 
Highlights of the bill include the following requirements:
<ul>
<li>Develop and implement a policy that specifically deals with workplace violence and harassment</li>
<li>Develop a program to inform employees about the policy and to implement that policy on an on-going basis</li>
<li>Take reasonable precautions to protect workers from <a href="https://www.canada.ca/en/public-health/services/health-promotion/stop-family-violence/services.html" target="_blank">domestic violence</a> that occurs in the workplace</li>
<li>Conduct workplace assessments on the risks of workplace violence, and to report back to the <a href="https://www.ontario.ca/page/guide-health-and-safety-committees-and-representatives" target="_blank">health and safety committee or representative</a>, or if neither exist, directly to the employees</li>
<li>Identify risks of workplace violence from a person with a history of violent behaviour and determine what information should be disclosed to protect the safety of workers and</li>
<li>Allow workers to refuse to work if they believe that they are at risk of workplace violence.</li>
</ul>
<h2>3. An Overview of Bill 132 – Sexual Violence and Harassment Action Plan</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_1ecbb845bb3845fbbebb37d3bd09bcc6~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="An Overview of Bill 132 – Sexual Violence and Harassment Action Plan"></figure>
 
<a href="https://www.ola.org/en/legislative-business/bills/parliament-41/session-1/bill-132" target="_blank">Bill 132</a> entered into force September 18, 2016. It amends the <a href="https://www.ontario.ca/laws/statute/90o01" target="_blank">Occupational Health and Safety Act</a> (OHSA), establishing specific requirements with respect to <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">sexualized harassment</a> and violence prevention in Ontario’s workplaces.
 
Bill 132 expanded the definition of “<a href="https://www.htwlaw.ca/what-defines-workplace-harassment" target="_blank">workplace harassment</a>” to include a new term, “<a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace sexual harassment</a>” within the definition of “workplace harassment” under the OHSA.
 
“Workplace sexual harassment” Under Bill 132 is defined as:
 
1. Engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or
 
2. Making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant, or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.
 
<figure><img src="https://static.wixstatic.com/media/11062b_025875b5e6874edea6a61c75ce2ebcad~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="note on bill 132 Workplace sexual harassment"></figure>
 
The key changes arising from Bill 132 include:
<ul>
<li>the addition of a definition of “workplace sexual harassment” in the definition of “<a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment</a>” under the <a href="https://www.ontario.ca/laws/statute/90o01#BK0" target="_blank">OHSA</a>;</li>
<li> a new requirement that the workplace harassment program be developed and maintained in consultation with the <a href="https://www.ontario.ca/page/training-joint-health-and-safety-committee-members" target="_blank">Joint Health and Safety Committee</a> or a health and safety representative;</li>
<li>the workplace harassment program be reviewed yearly, provide a means to report incidents or complaints of workplace harassment, and set out how complaint will be investigated and dealt with;</li>
<li>a new requirement for employer to address alternate means of reporting complaints of <a href="https://en.wikipedia.org/wiki/Workplace_harassment" target="_blank">workplace harassment</a>;</li>
<li>a new requirement for employer to conduct an investigation that is “appropriate in the circumstances” when the employer becomes aware of or ought to be aware of any complaint or allegation of workplace harassment;</li>
<li> confidentiality and reporting obligations relating to workplace harassment investigations; and</li>
<li>a new power to the <a href="https://www.ontario.ca/page/ministry-labour-training-skills-development" target="_blank">Ministry of Labour</a> (MOL) to order an <a href="https://www.awi.org/page/canada_jurisprudence" target="_blank">independent workplace harassment investigation</a> at the employer’s expense.</li>
</ul>
<figure><img src="https://static.wixstatic.com/media/491d2c_642c8b55957444b08ea08917fd4ec1cd~mv2.jpg/v1/fit/w_578,h_217,al_c,q_80/file.png"alt="htw law - employment lawyer"></figure>
 
Further, Bill 132 also amended certain provincial legislation by removing <a href="https://ca.practicallaw.thomsonreuters.com/1-518-8770?transitionType=Default&contextData=(sc.Default)&firstPage=true" target="_blank">limitation periods</a> for certain civil or criminal proceedings relating to sexual violence under the Ontario <a href="https://www.ontario.ca/laws/statute/02l24" target="_blank">Limitations Act</a>, unless the proceeding was
 
1. dismissed by a court and no further appeal is available; or 
2. settled by the parties and the settlement is legally binding.
 
The amendment to the Limitations Act makes it crystal clear that sexual assault victims or victims suffered from misconduct of a sexual nature can proceed with their civil claims on their own terms. Moreover, these changes apply retroactively meaning that they apply regardless of when the act of sexual assault occurred and even if a former limitation period had already expired.
 
The Ministry of Labour has published a <a href="https://www.ontario.ca/page/code-practice-address-workplace-harassment" target="_blank">Code of Practice</a>, to provide guidance to employers in addressing workplace harassment. 
 
<h2>4. Protections Under the Occupational Health and Safety Act</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_8d66aa5276ce409f9faa7f49c32422ab~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Protections Under the Occupational Health and Safety Act"></figure>
The <a href="https://www.ontario.ca/laws/statute/90o01" target="_blank">Occupational Health and Safety Act</a> (OHSA) imposes <a href="https://en.wikipedia.org/wiki/Law_of_obligations" target="_blank">legal obligations</a> for employers, property owners and other persons to ensure that all workplaces comply with OHSA.
 
Pursuant to <a href="https://www.ontario.ca/laws/statute/90o01" target="_blank">Section 1</a> of OHSA, a workplace is defined as “any land, premises, location or thing at, upon, in or near which a worker works.”
 
<a href="https://www.ontario.ca/laws/statute/90o01#BK44" target="_blank">Part III</a> of OHSA specifies the <a href="https://www.ontario.ca/document/guide-occupational-health-and-safety-act/part-iii-duties-employers-and-other-persons" target="_blank">legal obligations</a> of these workplace parties.
 
Under <a href="https://www.ontario.ca/laws/statute/90o01#BK47" target="_blank">Section 25</a> of OHSA, employers are responsible for, among other things:
<ol>
<li>Taking all possible and reasonable precautions to protect the health and safety of all their workers;</li>
<li>Ensuring that equipment, materials and protective equipment are maintained and in good condition;</li>
<li>Providing information, instruction, and supervision to protect workers and ensure their health and safety well-being; and</li>
<li>Co-operating with <a href="https://www.wsps.ca/health-safety-representatives" target="_blank">health and safety representatives</a> and Joint Health and Safety Committees.</li>
</ol>
Under <a href="https://www.ontario.ca/laws/statute/90o01#BK52" target="_blank">Section 29</a> of OHSA, property owners must ensure that, among other things:
<ol>
<li>workplace facilities are provided and maintained and in good condition;</li>
<li>workplaces comply with OHSA to protect the health and safety anyone working on the premises; and</li>
<li>no workplace is constructed, developed, reconstructed, altered or added to except in compliance with OHSA.</li>
</ol>
Regarding <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">harassment</a>, there are two main types of cases you can claim under <a href="https://www.ontario.ca/laws/statute/90o01" target="_blank">Occupational Health and Safety Act</a> (OHSA). 1) <a href="https://www.htwlaw.ca/" target="_blank">Reprisal by employer</a> for trying to enforce the rights protected by OHSA; and 2) being a victim of <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">office harassment</a>.
<figure><img src="https://static.wixstatic.com/media/491d2c_1505bfbaaf9d476da48153096517e4d5~mv2.jpg/v1/fit/w_470,h_195,al_c,q_80/file.png"alt="ministry of labour health and safety"></figure>
Reprisal against by the employer: OHSA requires employers to provide employees with a healthy and safe working environment that is <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">free from discrimination and harassment</a>. An employee who is terminated by the employer for trying to enforce OHSA protections can file a <a href="https://www.ontario.ca/laws/statute/90o01#BK89" target="_blank">reprisal</a> complaint against the employer with the <a href="http://www.olrb.gov.on.ca/" target="_blank">Ontario Labour Relations Board</a> (OLRB).
 
<a href="https://www.ontario.ca/page/reprisals-against-workers-employers#section-1" target="_blank">Click here</a> to learn more about how to file a complaint to OLRB for a reprisal complaint.
 
Workplace Harassment Complaints: Unlike the <a href="https://www.ontario.ca/laws/statute/00e41" target="_blank">Employment Standards Act</a> (ESA), OHSA applies to all workers, who are defined in <a href="https://www.ontario.ca/laws/statute/90o01#BK0" target="_blank">Section</a><a href="https://www.ontario.ca/laws/statute/90o01#BK0" target="_blank"> 1</a> as a person who performs work or supplies services for monetary compensation. In other words, you are protected even if you are a seasonal worker or an independent contractor or any other forms of workers that are ineligible for protection under ESA. You can submit a <a href="https://www.labour.gov.on.ca/english/hs/topics/workplaceviolence.php" target="_blank">workplace harassment complaint</a> if:
<ul>
<li>you reported to your employer that you were being harassed at work and your employer did not make sure an investigation appropriate in the circumstances was conducted</li>
<li>your employer does not have a <a href="https://www.labour.gov.on.ca/english/hs/pubs/fs_wvh_atwork.php" target="_blank">workplace harassment policy</a> or program</li>
<li>your employer did not provide training on the policy and program</li>
</ul>
<a href="https://www.ontario.ca/page/filing-workplace-health-and-safety-complaint#section-5" target="_blank">Click here</a> to learn more about how to file a complaint to <a href="https://www.labour.gov.on.ca/english/feedback/" target="_blank">Ministry of Labour</a> for a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">Workplace Harassment Complaint</a>.
 
<h2>5. Protection Against Sexual Harassment Under the Human Rights Code</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_cb534c4d62184ec3a89e16217fe8b190~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Protection Against Sexual Harassment Under the Human Rights Code"></figure>
Pursuant to <a href="https://en.wikipedia.org/wiki/Janzen_v_Platy_Enterprises_Ltd" target="_blank">Janzen v. Platy Enterprises Ltd.</a>, as mentioned above, the <a href="https://www.scc-csc.ca/home-accueil/index-eng.aspx" target="_blank">Supreme Court </a>has stated that<a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank"> </a><a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">sexual harassment</a> is a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">sex based discriminatio</a>n and by definition a violation of the <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Human Rights Code</a>.
 
<a href="https://www.ontario.ca/laws/statute/90h19#BK8" target="_blank">Section 7 (2)</a> of the <a href="https://www.ohrc.on.ca/en/ontario-human-rights-code" target="_blank">Human Rights Code</a> (the Code) states that every person who is an employee has a right to freedom from <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">harassment in the workplace</a> because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.
 
<a href="https://www.ontario.ca/laws/statute/90h19#BK8" target="_blank">Section 7 (3)</a> of the Code states that every person has a right to be free from: 
 
1. a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">sexual solicitation or advance</a> made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
 
2. a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person. 
 
<figure><img src="https://static.wixstatic.com/media/11062b_6c09b917f62047959a28d26352d8c731~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Legal test for sexual harassment"></figure>
 
Legal test for sexual harassment
 
To establish a <a href="https://en.wikipedia.org/wiki/Prima_facie" target="_blank">prima facie case</a> of <a href="https://www.ohrc.on.ca/en/policy-preventing-sexual-and-gender-based-harassment/2-identifying-sexual-harassment" target="_blank">workplace sexual harassment</a>, the worker must establish that the harasser:
<ol>
<li>engaged in a course of vexatious comment or conduct against he or she in a workplace;</li>
<li>because of sex, sexual orientation, gender identity or gender expression;</li>
<li>where the course of comment or conduct is known (<a href="https://en.wikipedia.org/wiki/Knowledge_(legal_construct)#Actual_knowledge" target="_blank">actual knowledge</a>) or ought reasonably to be known (<a href="https://en.wikipedia.org/wiki/Knowledge_(legal_construct)#Constructive_knowledge" target="_blank">constructive knowledge</a>) to be unwelcome?</li>
</ol>
Courts and Tribunals would also consider factors such as the balance of power between the parties.
 
<figure><img src="https://static.wixstatic.com/media/11062b_1f5c32329fc44218a1b85f597f816de2~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="supreme court of canada"></figure>
 
The leading case is Janzen v. Platy Enterprises Ltd., <a href="https://canlii.ca/t/1ft74" target="_blank">[1989] 1 S.C.R 1252</a>. The <a href="https://www.scc-csc.ca/case-dossier/cb/index-eng.aspx" target="_blank">Supreme Court</a> held that <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">sexual harassment in the workplace</a> includes a broad range of conduct which negatively impacts the work environment. This could include sexual gestures and sexual posturing, but doesn’t have to be limited to those instances only.
 
Discriminatory intent is not required. <a href="#498gj" rel="noopener noreferrer">Part 3</a> of the <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">sexual harassment test</a> is an objective test of which a reasonable objective person should know or ought to know someone in the Victim’s shoe would find the conduct unwelcome.
 
A <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">prima facie case of discrimination based on sex</a> is established against the harasser even if he or she didn’t mean it, or it was just a joke, if it would reasonably be regarded as unwelcome and Part 1 and Part 2 of the <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">sexual harassment test</a> are met. For the same token, any evidence of actual knowledge that particular conduct or comment is unwelcome will satisfy part 3 of test.
 
Anderson v. Law Help Ltd., <a href="https://canlii.ca/t/gwmqg" target="_blank">2016 HRTO 1683</a>
<figure><img src="https://static.wixstatic.com/media/491d2c_b107ecfa65b1425396c12f41523e57a3~mv2.jpg/v1/fit/w_800,h_151,al_c,q_80/file.png"alt="human rights tribunal of ontario"></figure>
Anderson nicely demonstrated how the <a href="https://en.wikipedia.org/wiki/Human_Rights_Tribunal_of_Ontario" target="_blank">Human Rights Tribunal of Ontario</a> (HRTO) applies the <a href="#4dtnt" rel="noopener noreferrer">sexual harassment test</a> in a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace sexual harassment</a> case.
 
The applicant alleged that after she began working at Law Help Ltd., the manager began to request that she met with him in the office boardroom, whereupon he would tell her how his wife, whom the Applicant reported to, did not like her because his wife was jealous of her.
 
Subsequently, the manager began to send the Applicant a series of text messages that would ask her what she had planned over the weekend and also invited her to go clubbing. The Applicant alleged that these text messages and the comments that the manager had made about his wife, made her feel uncomfortable.
 
The applicant alleged that the manager then propositioned her for a relationship with him and suggested that such a relationship would result in some financial benefits. The applicant ultimately rejected the manager which resulted in him being rude and disrespectful to her, not paying her on time and then failing to pay her full entitlements when everyone else was being appropriately compensated. This finally resulted in the applicant’s resignation.
 
The tribunal awarded the Applicant $22,000 in <a href="https://en.wikipedia.org/wiki/Damages" target="_blank">general damages</a> for compensation for injury to dignity, feelings and self-respect.
<figure><img src="https://static.wixstatic.com/media/11062b_2efabf102f25402b9e463f781025a38c~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Anderson v. Law Help Ltd., 2016 HRTO 1683"></figure>
The <a href="https://en.wikipedia.org/wiki/Human_Rights_Tribunal_of_Ontario" target="_blank">Human Rights Tribunal of Ontario</a> (HRTO) determined that a significant component of meeting the test for sexual harassment was whether a <a href="https://en.wikipedia.org/wiki/Reasonable_person" target="_blank">reasonable person</a> would know that that the alleged behaviour would be regarded as unwelcome.
 
In this case, there’s physical evidence showing that the manager had actual knowledge that the text messages and comments were unwelcome in the form of an actual text message the manager sent to the Applicant stating “I guess you are NOT interested” when the applicant stopped engaging in text messages. There’s also evidence showing that the manager continued his “sexual advances” despite the Applicant’s lack of interest.
 
The HRTO reasoned that the power imbalance between the parties by in terms of age gap between the Applicant and the Manager and the fact that the Applicant was a young woman who was starting out in her career played a significant part in the determination that the manager should have known that his advances were unwelcome from an objective perspective.
 
<h2>6. Protection Against Sexual Harassment and Violent Under Common Law</h2>
<figure><img src="https://static.wixstatic.com/media/9c3e43af2b0549bdbcc0c88bda3e1e1e.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Protection Against Sexual Harassment and Violent Under Common Law"></figure>
<a href="https://en.wikipedia.org/wiki/Sexual_assault" target="_blank">Sexual assault</a> is an actionable wrong under <a href="https://en.wikipedia.org/wiki/Common_law" target="_blank">Common law</a>. Not only does the typical <a href="https://www.ontario.ca/laws/statute/02l24#BK18" target="_blank">2-year limitation period</a> not apply to such a legal proceeding (criminal or civil), the range of proper defendants in a sexual assault or an attempted sexual assault case include third parties that owe a <a href="https://en.wikipedia.org/wiki/Duty_of_care" target="_blank">duty of care</a> to the victim, including but not limited to <a href="https://www.lawinsider.com/dictionary/property-operators" target="_blank">property operator</a> of the premise at which the sexual assault occurred.
 
The following cases showcased how the Courts addressed the <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">issues of sexual harassment</a> and <a href="https://en.wikipedia.org/wiki/Sexual_assault" target="_blank">sexual assault</a> and violent under Common law. 
 
Fox v. Narine, <a href="https://canlii.ca/t/gvb97" target="_blank">2016 ONSC 6499</a> 
 
This case demonstrated that the range of proper defendants in a sexual assault case extends to third party that owes a duty of care to the victim.
<figure><img src="https://static.wixstatic.com/media/491d2c_6e5d1c951e1b4b1f97c39833f639de04~mv2.jpg/v1/fit/w_748,h_542,al_c,q_80/file.png"alt=" Fox v. Narine, 2016 ONSC 6499 "></figure>
In Fox, the Defendant, Anduhyaun Inc., moves to strike the Statement of Claim arguing that the action is out of time; that the applicable 2-year general limitation period had expired by the time the action was commenced.
 
The plaintiff is the estate of Cheyenne Santana Marie Fox. The moving party, the Defendant, Anduyaun Inc., operates a woman's shelter. Cheyenne Santana Marie Fox was, at the material time, resident at the shelter. On June 1, 2012, the defendant, Navin Narine, is said to have followed Cheyenne Santana Marie Fox from a bar to the shelter where he climbed a wall or a fence onto the property where the shelter is located and sexually assaulted her for several hours.
 
The plaintiff pleads that the shelter was supposed to be a place of safety but that the assault was the result of the <a href="https://en.wikipedia.org/wiki/Negligence" target="_blank">negligence</a> of the defendant, Anduyaun Inc. (the operator of the shelter). 
 
There is nothing in the record that connects Navin Narine to Anduhyaun Inc.. There is nothing to suggest that it, or those associated with the shelter, were, in any sense, aware of Navin Narine. There is no basis on which it could be argued that Anduhyaun Inc. is <a href="https://en.wikipedia.org/wiki/Vicarious_liability" target="_blank">vicariously liable</a> for his actions.
<figure><img src="https://static.wixstatic.com/media/11062b_398fe0d876544f9a9b947fa716d0c1f7~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="section 16(1)(h) of the Limitations Act"></figure>
The question before the Court is that whether <a href="https://www.ontario.ca/laws/statute/02l24#BK18" target="_blank">section 16(1)(h)</a> of the <a href="https://www.ontario.ca/laws/statute/02l24" target="_blank">Limitations Act</a> can be applied to a defendant that is a third party and not the perpetrator of the assault?
 
The Court answered in the affirmative and held that the Defendant, Anduhyaun Inc., as operator of shelter, owed duty of care to Cheyenne Santana Marie Fox such that its breach would represent cause of action for negligence. When shelter holds itself out as available to provide abused or pregnant women with safe place to live and individual responds by taking up offer, necessary proximity exists to found duty of care.
 
The Court reasoned in <a href="https://canlii.ca/t/gvb97#par18" target="_blank">paragraph 18</a> that:
 
It is relevant to remember that what is being considered here is the interpretation of a statutory provision that would allow for an exception to a limitation period that would otherwise apply. Counsel for Cheyenne Santana Marie Fox points out that the exemption found in s. 16(1.3) of the Limitations Act, 2002, is the result of an amendment found in legislation that was passed and received Royal Assent this year (2016): the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016. The policy behind this statute is to improve the protection the law offers to the victims of sexual violence. This is contrary to a proposition that would limit the application of a statutory provision that extends that protection to those that carry the responsibility of a duty of care that would otherwise apply. There is no consideration that overrides the prima facie duty of care that is in place.
 
Cook v. Joyce, <a href="https://canlii.ca/t/gx18b" target="_blank">2017 ONCA 49</a> 
 
This case demonstrated that there's no limitation period for a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">case involving sexual harassment</a> or sexual assault.
<figure><img src="https://static.wixstatic.com/media/11062b_f7b77602dda247f484874aad2e2f6952~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Cook v. Joyce, 2017 ONCA 49"></figure>
The Respondent, Avie Cook, sues the Appellant, Ronald Joyce, seeking damages for an alleged sexual assault. Ms. Cook alleges Mr. Joyce touched her in a sexual manner without her consent on the morning of May 19, 2011 at the Appellant’s home.
 
The Appellant Joyce denies sexually assaulting Ms. Cook and brought a summary judgment motion arguing that the Respondent’s sexual assault claim was brought to court in 2013 and, thus, is barred by the two-year prescription period in the Limitations Act, 2002, S.O. 2002.
 
The motion judge dismissed Joyce’s motion, and he appealed to the Court of Appeal. The Appellant Joyce argued that s. 16(1)(h) of Limitations Act should not be applicable to him retroactively. 
<figure><img src="https://static.wixstatic.com/media/11062b_d3030684e82f4a36bca83f05840d216c~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="s. 16(1)(h) of Limitations Act applies retroactively"></figure>
The <a href="https://www.ontariocourts.ca/coa/" target="_blank">Court of Appeal</a> held that s. 16(1)(h) is to be applied retroactively. In <a href="https://canlii.ca/t/gx18b#par19" target="_blank">paragraph 19</a>, the Court of Appeal stated that: 
 
Upon coming into force on March 8, 2016, Schedule 2 to the Amending Act significantly changed the provisions of the Limitations Act, 2002 concerning sexual assault claims. Section 16(1)(h) of the Act was amended to provide there is no limitation period in respect of "a proceeding arising from a sexual assault."
 
The Court further held, in <a href="https://canlii.ca/t/gx18b#par22" target="_blank">paragraph 22</a>, that:
 
By enacting ss. 16(1.1) and (1.2), the Legislature expressly addressed the application of the amendments to a proceeding, such as Ms. Cook's, which was commenced before March 8, 2016. The "no limitation period" regime applies to Ms. Cook's action unless (i) her proceeding was dismissed by a court and no further appeal is available or (ii) it was settled by the parties and the settlement is legally binding.
 
Zando v. Ali, <a href="https://canlii.ca/t/htc1x" target="_blank">2018 ONCA 680</a> 
 
This case demonstrated that the Courts are willing to award high judgment awards in a case involving <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">Sexual harassment in the workplace</a>.
<figure><img src="https://static.wixstatic.com/media/11062b_a96be23e2cac4329b1cdbb08350a2223~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Zando v. Ali, 2018 ONCA 680"></figure>
 
In Zando, the Ontario <a href="https://www.ontariocourts.ca/coa/decisions_main/" target="_blank">Court of Appeal</a> has rejected the notion that<a href="https://www.htwlaw.ca/workplace-harassment-and-discriminationhttps://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank"> general damages for a sexual assault</a> victim should be relatively modest if it is a single incident involving adults and no breach of trust.
 
The plaintiff, Dr. Iram Zando, and the defendant, Dr. Syed Nasir Ali, are both originally from Pakistan and were friends and colleagues at Sarnia General Hospital. The litigation stems from an incident in July 1999, when Ali went to the home of Zando because of what he said was an urgent matter. While there, he was alleged to have sexually assaulted her.
 
At trial, an award of $200,000, which included $175,000 in <a href="https://en.wikipedia.org/wiki/Damages#General_damageshttps://en.wikipedia.org/wiki/Damages#General_damages" target="_blank">general damages</a> and $25,000 in <a href="https://en.wikipedia.org/wiki/Damages#Punitive_damages_(non-compensatory)" target="_blank">punitive damages</a> was granted. <a href="https://en.wikipedia.org/wiki/Damages#Legal_costs" target="_blank">Legal Costs</a> of $325,000 and <a href="https://www.ontario.ca/page/prejudgment-and-postjudgment-interest-rates" target="_blank">pre-judgment interest</a> of $155,000 were also awarded to the plaintiff in Zando as the case was plagued with delays in going to trial. The Defendant appealed the decision.
<figure><img src="https://static.wixstatic.com/media/11062b_38c5a35ddceb49e79729dc0b02832145~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt=" Zando v. Ali, 2018 ONCA 680 punitive damage award"></figure>
The Court of Appeal, in its ruling issued Aug. 7, 2018 ONCA 680, denying the appeal, found that the trial judge awarded nonpecuniary damages that were in the appropriate range based on past case law in this area and, as a result, there was no error in principle. The Court of Appeal held in <a href="https://canlii.ca/t/htc1x#par24" target="_blank">paragraph 24</a> that:
 
The trial judge's decision with respect to punitive damages was based on the fact that the appellant's conduct in sexually assaulting the respondent was morally reprehensible and should be punished and denounced, and that he had not been punished criminally. The fact that he had not been punished criminally was a relevant factor (to satisfy the court of the need for such damages as deterrence) but was not the reason punitive damages were awarded. As such, I see no reversible error in the trial judge's decision to award punitive damages in this case.
 
<h2>7. Conclusion</h2>
 
<a href="https://www.htwlaw.ca/what-is-sexual-harassment" target="_blank">Sexual harassment</a> is a <a href="https://www.merriam-webster.com/dictionary/heinous" target="_blank">heinous crime</a> that deserves the MOST serious and severe punishment, and any form of sexual harassment is strictly prohibited under the <a href="#5vf1l" rel="noopener noreferrer">Common law</a>, <a href="#cn9t3" rel="noopener noreferrer">Human Rights Code</a> and the <a href="#9hk05" rel="noopener noreferrer">Occupational Health and Safety Act</a>, especially so after the amendments made in <a href="#fb9k3" rel="noopener noreferrer">Bill 132</a> and <a href="#7rt3u" rel="noopener noreferrer">Bill 168</a>.
 
A prima facie case of <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">sex based discrimination</a> is not difficult to made out. It is not required to prove that the harasser in the <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">case of sexual harassment</a> that such harassment was sex based or that he or she is <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discriminatory towards women</a> in general.
 
If you have been a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">victim of sexual harassment</a>, DON’T take it for granted. Open up and let a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">harassment lawyer</a> or a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination lawyer</a> assists you.
<figure><img src="https://static.wixstatic.com/media/491d2c_169a70b0999a4c0da920be9d48ed6bb5~mv2.jpg/v1/fit/w_984,h_510,al_c,q_80/file.png"title="HTW Law - Employment Lawyer Contact Information"alt="HTW Law - Employment Lawyer Contact Information"></figure>
Don't Wait, Act Now before it's too late. Call us now at <a href="tel:+1 647-849-6582" target="_blank">647-849-6582</a> or <a href="https://www.htwlaw.ca/contactus" target="_blank">Contact Us</a> Now if you have any questions or concerns in related to <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contract</a>, <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">termination</a>, <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">sexual harassment</a>, <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">sexual assault</a>, <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination</a> or <a href="https://www.htwlaw.ca/severance-pay" target="_blank">severance package</a> or you want to book an appointment for a <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">legal consultation</a>. ]]></content:encoded></item><item><title><![CDATA[Family Status Discrimination - A Legal Analysis]]></title><description><![CDATA[In this post, we'll talk about Ontario cases, Federal cases and Human Rights Tribunal decisions regarding family status discrimination. ]]></description><link>https://www.htwlaw.ca/post/family-status-discrimination-a-legal-analysis</link><guid isPermaLink="false">620102ea5254a3b62017e640</guid><category><![CDATA[Workplace Harassment]]></category><category><![CDATA[Workplace Discrimination]]></category><pubDate>Wed, 09 Feb 2022 10:29:10 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/11062b_c3b8383f6da8448584010d8993dbebe4~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Tony Wong</dc:creator><content:encoded><![CDATA[In this post, we'll talk about <a href="https://www.ontariocourts.ca/scj/" target="_blank">Ontario cases</a>, <a href="https://www.fct-cf.gc.ca/en/home" target="_blank">Federal cases</a> and <a href="https://tribunalsontario.ca/hrto/" target="_blank">Human Rights Tribunal</a> decisions regarding family status discrimination. Continue reading to learn more.
<figure><img src="https://static.wixstatic.com/media/11062b_c3b8383f6da8448584010d8993dbebe4~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Family Status Discrimination - A Legal Analysis"></figure>
<h3>Topics Will be Covered in This Post:</h3>
<ol>
<li><a href="#ed8k7" rel="noopener noreferrer">Human Rights Code Protections in Related to Martial Status and Family Status</a> </li>
<li><a href="#9gsj2" rel="noopener noreferrer">The Misetich Approach</a> <ol>
<li><a href="#2vqbh" rel="noopener noreferrer">Misetich v. Value Village Stores Inc.</a><a href="#2vqbh" rel="noopener noreferrer">, 2016 HRTO 1229</a> </li>
<li><a href="#bdhrn" rel="noopener noreferrer">Espinoza v. The Napanee Beaver Limited</a><a href="#bdhrn" rel="noopener noreferrer">, 2021 HRTO 68</a> </li>
</ol></li>
<li><a href="#a4deb" rel="noopener noreferrer">The Johnstone Test</a> <ol>
<li><a href="#7abmb" rel="noopener noreferrer">What Is a Legal Obligation Versus Personal Choice?</a> <ol>
<li><a href="#8gt7q" rel="noopener noreferrer">Duty to Care for Your Child</a> </li>
<li><a href="#1ejqe" rel="noopener noreferrer">Duty to Care for Elderly</a> </li>
</ol></li>
</ol></li>
<li><a href="#ah5ak" rel="noopener noreferrer">Cases Involving Family Status Discrimination in Related to Child Care</a> <ol>
<li><a href="#ajvrm" rel="noopener noreferrer">Canada (Attorney General) v. Johnstone</a><a href="#ajvrm" rel="noopener noreferrer">, 2014 FCA 110 </a> </li>
<li><a href="#fk3mg" rel="noopener noreferrer">Partridge v. Botony Dental Corporation</a><a href="#fk3mg" rel="noopener noreferrer">, 2015 ONCA 836</a> </li>
<li><a href="#8u04" rel="noopener noreferrer">Henderson v. Marquest Asset Management Inc.</a><a href="#8u04" rel="noopener noreferrer">, 2010 CanLII 34120 (ON LRB)</a> </li>
</ol></li>
<li><a href="#3bdpf" rel="noopener noreferrer">Cases Involving Family Status Discrimination in Related to Elder Care</a> <ol>
<li><a href="#8b519" rel="noopener noreferrer">Devaney v. ZRV Holdings Limited</a><a href="#8b519" rel="noopener noreferrer">, 2012 HRTO 1590</a> </li>
<li><a href="#9osd9" rel="noopener noreferrer">Canada (Attorney General) v. Hicks</a><a href="#9osd9" rel="noopener noreferrer">, 2015 FC 599</a> </li>
</ol></li>
<li><a href="#avpq4" rel="noopener noreferrer">Cases Involving Family Status Discrimination in Related to</a><a href="#avpq4" rel="noopener noreferrer"> </a><a href="#avpq4" rel="noopener noreferrer">Code-Based Exemption to the Covid-19 Vaccination Mandate</a> <ol>
<li><a href="#fk1rk" rel="noopener noreferrer">United Steelworkers Local 2251 v Algoma Steel Inc.</a><a href="#fk1rk" rel="noopener noreferrer">, 2020 CanLII 48250 (ON LA)</a> </li>
<li><a href="#fgr43" rel="noopener noreferrer">Hydro Ottawa Limited v. IIBEW, Local 636</a><a href="#fgr43" rel="noopener noreferrer">, 2020 CanLII 77939 (ON LA)</a> </li>
<li><a href="#bhicq" rel="noopener noreferrer">JL v. Empower Simcoe</a><a href="#bhicq" rel="noopener noreferrer">, 2021 HRTO 222</a> </li>
</ol></li>
<li><a href="#d3lrn" rel="noopener noreferrer">Conclusion</a> </li>
</ol>
<h2>1. Human Rights Code Protections in Related to Martial Status and Family Status</h2>
<figure><img src="https://static.wixstatic.com/media/e398e1606de0446a925a6dad7c6cb705.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Human Rights Code Protections in Related to Martial Status and Family Status"></figure>
The <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Human Rights Code</a> (the Code) includes two grounds that provide protections for persons in relationships: <a href="https://www.ohrc.on.ca/en/code_grounds/family_marital_status" target="_blank">marital status</a> and <a href="https://www.ohrc.on.ca/en/code_grounds/family_marital_status" target="_blank">family status</a>. “Marital status” is defined in <a href="https://www.ontario.ca/laws/statute/90h19#BK12" target="_blank">section 10 (1)</a> of the <a href="https://www.ohrc.on.ca/en/ontario-human-rights-code" target="_blank">Human Rights Code</a> as “the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage”, including both same-sex and opposite sex relationships.
 
Family status is defined in section 10 (1) of the Human Rights Code as “the status of being in a parent and child relationship.” It applies not only to the fact of being a parent or a child, but also to the caregiving role between parents and children, and between adult children and their aging or ailing parents.
 
This can also mean a parent and child “type” of relationship, embracing a range of circumstances without blood or adoptive ties but with similar relationships of care, responsibility and commitment.
 
<h3>Two-Step Analysis</h3>
<figure><img src="https://static.wixstatic.com/media/11062b_d482f7fb62b04ae5a56d4235b94dac77~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Family Status Discrimination Two-Step Analysis"></figure>
Where an employee requests <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace accommodation</a> on a Code ground, a two-step analysis applies. 
 
First, the employee must show that there is <a href="https://en.wikipedia.org/wiki/Prima_facie" target="_blank">prima facie</a> <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination</a>, i.e. that the workplace requirement in question causes a disadvantage or exclusion of the sort that is prohibited by the ground of <a href="https://www.ohrc.on.ca/en/cost-caring-report-consultation-discrimination-basis-family-status/iv-defining-family-status" target="_blank">family status</a>. If this step is not proved, the employer does not have to even consider accommodation.
 
Second, if the first step is proved by the employee, the onus shifts to the employer to show that the workplace requirement is a <a href="https://en.wikipedia.org/wiki/Bona_fide_occupational_qualification" target="_blank">Bona Fide Occupational Requirement</a> (BFOR) and is necessary, such that any change of the requirement, to accommodate the employee, would cause the employer <a href="https://en.wikipedia.org/wiki/Central_Alberta_Dairy_Pool_v_Alberta_(Human_Rights_Commission)" target="_blank">undue hardship</a>.
 
<a href="https://engagedhr.com/what-is-a-bfor-and-why-does-it-matter/" target="_blank">Click here</a> for further reading regarding BFOR. 
 
<a href="https://engagedhr.com/what-is-a-bfor-and-why-does-it-matter/" target="_blank">Click here</a> for further reading regarding undue hardship.
 
This <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">duty to accommodate</a> has both a <a href="https://www.merriam-webster.com/dictionary/substantive" target="_blank">substantive</a> component (it must respond to the worker's needs) and a <a href="https://dictionary.cambridge.org/dictionary/english/procedural" target="_blank">procedural</a> component (the employer must demonstrate an active involvement in the search for accommodation). The person requiring accommodation must also cooperate in the attempt to find suitable accommodation.
 
In the process, details about the employees' own as well as their family’s health and personal circumstances may need to be disclosed, if relevant in determining what's the suitable accommodation. 
 
According to Espinoza v. The Napanee Beaver Limited, <a href="https://canlii.ca/t/jd9jp" target="_blank">2021 HRTO 68</a>, an employee requesting family status accommodation is “not permitted to insist on a particular accommodation and resign when that accommodation is denied”. (Espinoza, at <a href="https://canlii.ca/t/jd9jp#par99" target="_blank">para. 99</a>)
 
<h2>2. The Misetich Approach</h2>
<figure><img src="https://static.wixstatic.com/media/5ebe18ba04404df89de3ae26b737108c.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="The Misetich Approach"></figure>
In Misetich v. Value Village Stores Inc., <a href="https://canlii.ca/t/gtvp9" target="_blank">2016 HRTO 1229</a>, the “<a href="#a4deb" rel="noopener noreferrer">Johnstone test</a>” was rejected by the<a href="https://tribunalsontario.ca/hrto/" target="_blank"> </a><a href="https://tribunalsontario.ca/hrto/" target="_blank">Human Rights Tribunal of Ontario</a> (HRTO). The decision in Espinoza v. The Napanee Beaver Limited, <a href="https://canlii.ca/t/jd9jp" target="_blank">2021 HRTO 68</a>, confirmed that the Misetich Approach is the go-to test for family status cases at HRTO.
 
It is unclear whether <a href="https://www.ontariocourts.ca/scj/" target="_blank">Ontario Courts</a> will follow suits, considering the Johnstone test was adopted by the <a href="https://www.ontariocourts.ca/coa/" target="_blank">Ontario Court of Appeal</a> in Partridge v. Botony Dental Corporation, <a href="https://canlii.ca/t/gmcm9" target="_blank">2015 ONCA 836</a>. To be on the safe side, it is advised that legal practitioners should incorporate both the Johnstone test and the Misetich Approach into their legal analysis, when circumstances permit.
 
A. Misetich v. Value Village Stores Inc., <a href="https://canlii.ca/t/gtvp9" target="_blank">2016 HRTO 1229</a>
<figure><img src="https://static.wixstatic.com/media/11062b_2d60145a58214f47a9115d8391c12c77~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Misetich v. Value Village Stores Inc., 2016 HRTO 1229"></figure>
The HRTO agreed with the submissions of <a href="https://www.ohrc.on.ca/en" target="_blank">Ontario Human Rights Commission</a> (OHRC) that the <a href="https://www.fca-caf.gc.ca/fca-caf_eng.html" target="_blank">Federal Court of Appeal</a>'s formulation of the Johnstone test, which requires applicants to demonstrate that their caregiving obligations engage a "<a href="https://en.wikipedia.org/wiki/Legal_responsibility" target="_blank">legal responsibility</a>" imposes an unduly onerous burden on applicants and is especially unworkable in the context of eldercare.
 
The HRTO also accepted the OHRC’s argument that an assessment of whether a claimant had made reasonable efforts to meet family status obligations (i.e. self-accommodate) does not belong at the <a href="https://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions/9-establishing-discrimination" target="_blank">prima facie</a><a href="https://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions/9-establishing-discrimination" target="_blank"> discrimination</a> stage.
 
HRTO reiterate that the test for <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination</a> with respect to family status remains the same as the test for discrimination with respect to every ground:
<ol>
<li>The Applicant must establish they have a characteristic protected from discrimination under the Code;</li>
<li>The Applicant must establish an adverse impact; and</li>
<li>The Applicant must establish the protected characteristic was a factor in the adverse impact.</li>
</ol>
(Misetich, at <a href="https://canlii.ca/t/gtvp9#par43" target="_blank">para. 43</a>)
<figure><img src="https://static.wixstatic.com/media/491d2c_169a70b0999a4c0da920be9d48ed6bb5~mv2.jpg/v1/fit/w_984,h_510,al_c,q_80/file.png"alt="HTW Law - Employment Lawyer Contact Information"></figure>
 
Once these factors are established, <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">prima facie discrimination</a> exists and the evidentiary burden shifts to the respondent employer to demonstrate that the employee cannot be <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">accommodated</a> to the point of <a href="https://en.wikipedia.org/wiki/Undue_hardship" target="_blank">undue hardship</a>. The accommodation process is a multi-party inquiry and the employee is obligated to cooperate in this process, providing sufficient information with respect to the family-related needs and then working with the employer to identify possible solutions to resolve the conflict between work duties and family responsibilities.
 
The approach to <a href="https://www.ohrc.on.ca/en/employment-discrimination-based-family-status-fact-sheet" target="_blank">family status discrimination</a> however involves a contextual analysis to determine whether the work requirement at issue would result in a real disadvantage to the familial relationship. An employee need not self-accommodate as a pre-condition, but other supports that may be available to that employee can be considered in the contextual analysis.
 
B. Espinoza v. The Napanee Beaver Limited, <a href="https://canlii.ca/t/jd9jp" target="_blank">2021 HRTO 68</a>
<figure><img src="https://static.wixstatic.com/media/11062b_bd58d6b0e67d4729b6baba8e01f78548~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Espinoza v. The Napanee Beaver Limited, 2021 HRTO 68"></figure>
In Espinoza v. Napanee Beaver Limited., the HRTO continued to apply <a href="https://canlii.ca/t/gtvp9" target="_blank">Masetich</a> (Espinoza, <a href="https://canlii.ca/t/jd9jp#par89" target="_blank">para. 89, 90</a>). The Applicant became pregnant, experienced complications and went on a medical leave followed by a maternity/parental leave. The Applicant requested fewer modified hours upon her return to work, which was denied by the Employer.
 
The employer continued to deny the request, even after accommodation was requested on the basis of the Code. The Applicant did not return and stated she had to “unwillingly resign” as she was unable to secure appropriate childcare.
 
HRTO accepted that family status was engaged for the employee as a parent of twins. HRTO found that the Applicant had not demonstrated <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">prima facie discrimination</a> when the request for modified hours was denied on August 11, 2017 because the Applicant had not identified that her work scheduled created a barrier to return to work because of her childcare obligations. In the absence of a clear request for accommodation, there is no <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">duty to accommodate</a> on the employer. On August 17, 2017 however the Applicant did request accommodation as a result of childcare obligations.
 
The employer in this case argued that the Applicant “must establish that she made reasonable efforts to meet her childcare obligations through reasonable alternative solutions, and no such alternative solution was reasonably accessible” (Espinoza, at <a href="https://canlii.ca/t/jd9jp#par95" target="_blank">para. 95</a>). The Tribunal rejected this principle, finding that would essentially require the Applicant to “self-accommodate” and relying upon the previous position advanced by the Tribunal in Misetich (Espinoza, at <a href="https://canlii.ca/t/jd9jp#par96" target="_blank">para. 96</a>).
 
The Tribunal found that the employer failed to accommodate the Applicant as required by the Code and ordered $12,485.23 in wage loss and $10,000 in damages for injury to dignity, feelings and self-respect.
 
<h2>3. The Johnstone Test</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_c91cfb9be5244ea8a18ad08fbb510cc1~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="The Johnstone Test"></figure>
“The Johnstone test” is the current test being used in the <a href="https://www.fct-cf.gc.ca/en/home" target="_blank">federal courts</a> when considering family status cases under the <a href="https://laws-lois.justice.gc.ca/eng/acts/h-6/" target="_blank">Canadian Human Rights Act</a>. Even if a particular Ontario Court or HRTO Tribunal decides to use Misetich approach instead of the Johnstone test, the considerations are likely to be incorporated into the Misetich contextual analysis.
 
Under “the Johnstone test” as established in Canada (Attorney General) v. Johnstone, <a href="https://canlii.ca/t/g6sdn" target="_blank">2014 FCA 110</a>, in order to make out a <a href="https://en.wikipedia.org/wiki/Prima_facie" target="_blank">prima facie</a> case of <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">family status discrimination</a> resulting from childcare obligations, the individual advancing the claim must show:
<ol>
<li> that a child is under his or her care and supervision;</li>
<li>that the childcare obligation at issue engages the individual’s legal responsibility for that child, rather than just a personal choice;</li>
<li>that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible (not required under the Misetich approach to establish a prima facie case); and </li>
<li>that the impugned workplace rule interferes, in a manner that is more than trivial or insubstantial, with the fulfillment of the childcare obligation.</li>
</ol>
The court held that a “serious interference” with caregiving is not required, and that even ordinary caregiving circumstances can be prima facie discriminatory, as long as a “legal responsibility” exists.
 
The court’s analysis focused on part two of the Johnstone test – whether the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice.
 
Although it’s not required under the Misetich Approach to establish the existence of a child care or elder care legal obligation as opposed to a personal choice to establish a prima facie discrimination, recent legal jurisprudence suggests that such considerations are evaluated at the contextual analysis stage as to whether accommodation should be required and to what extent.
 
<h3>What Is a Legal Obligation Versus Personal Choice?</h3>
 
<h4>Duty to Care for Your Child</h4>
<figure><img src="https://static.wixstatic.com/media/11062b_536c5fdeea69452aaa73c8784d466753~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Duty to Care for Your Child"></figure>
In Ontario, there’s a legal obligation to care for your child under <a href="https://www.ontario.ca/laws/statute/90f03#BK37" target="_blank">Section 31</a> of the <a href="https://www.ontario.ca/laws/statute/90f03" target="_blank">Family Law Act</a>.
 
Under Section 31, every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who (a) is a minor; (b) is enrolled in a full-time program of education; or (c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents. 
 
The obligation under Section 31 does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.
 
Legal obligations is to be distinguished from “personal choices”:
 
... the childcare obligations at issue are those which a parent cannot neglect without engaging his or her legal liability. Thus a parent cannot leave a young child without supervision at home in order to pursue his or her work, since this would constitute a form of neglect …. (Johnstone, at <a href="https://canlii.ca/t/g6sdn#par71" target="_blank">para. 70- 71</a>)
 
Voluntary family activities, such as family trips, participation in extracurricular sports events, etc. do not have this immutable characteristic since they result from parental choices rather than parental obligations. These activities would not normally trigger a claim to discrimination resulting in some obligation to accommodate by an employer. (Johnstone, at <a href="https://canlii.ca/t/g6sdn#par72" target="_blank">para. 72</a>)
 
<h4>Duty to Care for Elderly</h4>
<figure><img src="https://static.wixstatic.com/media/11062b_bf327ebcf7e84d878a065a3b1b28e6df~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Duty to Care for Elderly"></figure>
In Ontario, there’s a legal obligation to care for aging parents if certain conditions are met.
 
In Ontario, under <a href="https://www.ontario.ca/laws/statute/90f03#BK38" target="_blank">section 32</a> of the <a href="https://www.ontario.ca/laws/statute/90f03" target="_blank">Family Law Act</a>, children who are over the age of majority (and who have withdrawn from parental care and control) have an obligation to support their parents where necessary. Section 32 requires that in order to be eligible for parental support, a parent must demonstrate need.
 
To claim parental support under Section 32, two conditions must be satisfied: 1) the parent must have ‘cared or provided support’ to the child, and 2) the parental support is limited to the extent to which the child has the means to provide. 
 
<h2>4. Cases Involving Family Status Discrimination in Related to Child Care</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_8d66aa5276ce409f9faa7f49c32422ab~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Cases Involving Family Status Discrimination in Related to Child Care"></figure>
A. Canada (Attorney General) v. Johnstone, <a href="https://canlii.ca/t/g6sdn" target="_blank">2014 FCA 110</a> 
 
“The Johnstone Test” decision. The tribunal and court found in favour of Ms. Johnstone, who worked for the <a href="https://www.cbsa-asfc.gc.ca/menu-eng.html" target="_blank">Canadian Border Service Agency</a>. Following a <a href="https://www.ohrc.on.ca/en/human-rights-obligations-related-pregnancy-and-breastfeeding-case-law-review" target="_blank">maternity leave</a>, she was unable to find child care arrangements suitable for the employer's required rotating schedule. She requested a fixed schedule, three days per week, because she only had access to childcare arrangements with family members on those days. Ms. Johnstone had investigated numerous regulated childcare providers, both near her home and near her work, but none of them provided services outside standard work hours. The court referred to the evidence before the Tribunal from an expert on childcare policy who testified that it is “almost impossible” to find childcare (regulated or unregulated) outside of standard work hours (Johnstone at <a href="https://canlii.ca/t/g6sdn#par104" target="_blank">paras. 104-107</a>).
 
B. Partridge v. Botony Dental Corporation, <a href="https://canlii.ca/t/gmcm9" target="_blank">2015 ONCA 836</a>
 
Partridge v. Botany Dental Corporation is the first Ontario court decision to apply the Johnstone test for <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination</a> on the basis of family status. The trial judge’s decision – affirmed by the <a href="https://www.ontariocourts.ca/coa/" target="_blank">Ontario Court of Appeal</a> – stated that Johnstone is the "leading case" on <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">family status discrimination</a>. The decision therefore confirms that Johnstone is binding on Ontario courts when <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">claims of discrimination</a> on the basis of <a href="https://www.ontario.ca/laws/statute/90h19#BK12" target="_blank">family status</a> are made.
 
When Ms. Partridge returned from maternity leave, the employer unilaterally demoted her from her former position of office manager, to her original position of dental hygienist, with reduced hours and pay. When Ms. Partridge objected, her hours were deliberately changed by the employer, who knew that the change to working evenings would interfere Ms. Partridge's childcare arrangements. The employer terminated Ms. Partridge's employment, citing cause when she refused to accept the new working arrangements.
<figure><img src="https://static.wixstatic.com/media/11062b_12fed874fdbf485ab0ff583d5708b945~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Partridge v. Botony Dental Corporation, 2015 ONCA 836"></figure>
The court rejected all of the alleged elements of just cause, and awarded Ms. Partridge <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">reasonable notice</a> for the <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">wrongful dismissal</a>, as well as general damages for <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">family status discrimination</a>, in violation of the Code. Following the Johnstone test, the court held that a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">prima facie case of discrimination</a> on the basis of family status was made out, and that the new schedule was not a <a href="https://en.wikipedia.org/wiki/Bona_fide_occupational_qualification" target="_blank">bona fide occupational requirement</a> (Partridge, at <a href="https://canlii.ca/t/gg06d#par91" target="_blank">paras. 91, 92</a>).
 
The employer attempted to argue that Ms. Partridge had not met the requirement to show that alternate childcare arrangements were not available (the third part of the Johnstone test). The <a href="https://www.ontariocourts.ca/coa/" target="_blank">Court of Appeal</a> disagreed, stating that Ms. Partridge "testified to a very complex arrangement of relatives and others whom she had asked to pick up her children from daycare.” The court accepted that “this arrangement was not sustainable." (Partridge, at <a href="https://canlii.ca/t/gmcm9#par22" target="_blank">paras. 22</a>)
 
The trial judge (affirmed on appeal) awarded Ms. Partridge a <a href="https://en.wikipedia.org/wiki/Damages" target="_blank">general damage</a> of $20,000 for injury to dignity, feelings and self-respect pursuant to the Code (exercising the Court’s authority under <a href="https://www.ontario.ca/laws/statute/90h19#BK79" target="_blank">section 46.1(1)</a> of the Code, which expressly provides that a court can grant <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">remedies for violations of the Code</a>), and twelve months’ <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">reasonable notice</a> for the <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">wrongful dismissal</a>. The court also found that the employer <a href="https://www.ohrc.on.ca/en/policy-preventing-discrimination-because-pregnancy-and-breastfeeding/7-employment" target="_blank">breached the reinstatement provisions</a> under <a href="https://www.ontario.ca/laws/statute/00e41#BK117" target="_blank">section 53</a> of the <a href="https://www.ontario.ca/laws/statute/00e41#BK117" target="_blank">Employment Standards Act</a> by refusing her the position she held prior to her <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/pregnancy-and-parental-leave" target="_blank">parental leave</a>. (Partridge, at <a href="https://canlii.ca/t/gg06d#par96" target="_blank">paras. 96-98</a>)
<figure><img src="https://static.wixstatic.com/media/d5c830b8f57c4b408d0bcd192df2c49c.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Henderson v. Marquest Asset Management Inc., 2010 CanLII 34120 (ON LRB)"></figure>
Henderson v. Marquest Asset Management Inc., <a href="https://canlii.ca/t/2b7n0" target="_blank">2010 CanLII 34120</a> (ON LRB)
 
In Henderson v. Marquest Asset Management Inc., the <a href="http://www.olrb.gov.on.ca/" target="_blank">Ontario Labour Relations Board</a> (OLRB) found that the employer breached <a href="https://www.ontario.ca/laws/statute/00e41#BK117" target="_blank">section 53</a> of the <a href="https://www.ontario.ca/laws/statute/00e41#BK117" target="_blank">Employment Standards Act</a> when it <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">terminated the employment</a> of a woman who took a <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/pregnancy-and-parental-leave" target="_blank">maternity leave</a>, and retained the person hired to replace her while she was on leave (Henderson, at <a href="https://canlii.ca/t/2b7n0#par13" target="_blank">para. 13 -14</a>).
 
The OLRB confirmed that a woman should not be disadvantaged by taking a maternity or parental leave, even if the leave results in the company finding an employee they prefer. The OLRB ordered the employer to reinstate the applicant forthwith into her position she held prior to the maternity leave.
 
<h2>5. Cases Involving Family Status Discrimination in Related to Elder Care</h2>
<figure><img src="https://static.wixstatic.com/media/93f21c0cb5af4a8f995f02a21e15f160.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Cases Involving Family Status Discrimination in Related to Elder Care"></figure>
 
Devaney v. ZRV Holdings Limited, <a href="https://canlii.ca/t/fsg03" target="_blank">2012 HRTO 1590</a>
 
In Devaney v. ZRV Holdings Limited, the HRTO held that the applicant’s employment was terminated based on absences, a significant portion of which were due to his obligation to care for his elderly mother. His mother was in a wheelchair, and had significant physical impairments. Mr. Devaney was an architect with the employer firm from 1982 until the termination of his employment in 2009. He had been promoted more than once over the period of this long-term career, and at the time of his termination he was the principal in charge of the Trump Tower project.
 
The Tribunal held that Mr. Devaney established a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">prima facie discrimination</a> case:
 
… given the applicant’s care responsibilities to his mother, the respondents’ requirement that the applicant be in strict attendance at the office each day had an adverse impact on the applicant, as he was expected to be in the office during certain hours each day regardless of eldercare requirements that he had, and his employment was terminated based on absences….. (Devaney, at para. 154)
 
Regarding <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">accommodation</a>, the Tribunal held that employer breached its procedural duty. Despite knowing of Mr. Devaney’s responsibilities for his mother, the employer never made meaningful inquiries, nor did anything to <a href="https://en.wikipedia.org/wiki/Reasonable_accommodation" target="_blank">accommodate</a>:
 
First, as set out above, the applicant did inform the respondents on a number of occasions of his eldercare responsibilities. Second, the respondents never asked the applicant about his responsibilities in relation to his mother’s health, and stated that they were not interested in hearing about such “excuses”. Third, while I agree that the applicant never made a formal request for accommodation, the respondents were aware that the applicant had eldercare responsibilities affecting his attendance, thereby giving rise to a duty to accommodate. Nevertheless, it is unfortunate that it appears from the evidence that neither the applicant nor the respondents, as professionals, ever initiated a meaningful dialogue in relation to accommodating the applicant’s eldercare responsibilities. Accordingly, I find that the respondents infringed the applicant’s rights under the Code by failing to meet the procedural aspect of their duty to accommodate the applicant’s Code-related needs. (Devaney, at para. 174)
<figure><img src="https://static.wixstatic.com/media/491d2c_169a70b0999a4c0da920be9d48ed6bb5~mv2.jpg/v1/fit/w_984,h_510,al_c,q_80/file.png"alt="HTW Law - Employment Lawyer Contact Information"></figure>
 
The Tribunal held that the employer failed to accommodate the Code-related absences to the point of undue hardship. The Tribunal held that beyond “rather bald assertions” of the employer, including comments that the absences were detrimental to company morale, “there does not appear to be any evidence… describing any problems that the applicant’s absences, which include when he was working at home, were actually creating for his team or others at the office.” (Devaney, at para. 192)
 
The Tribunal awarded $15,000 for injury to dignity. It accepted the applicant's testimony about the devastating impact that termination had on him after a long and successful career.
 
Canada (Attorney General) v. Hicks, <a href="https://canlii.ca/t/gj36x" target="_blank">2015 FC 599</a>
<figure><img src="https://static.wixstatic.com/media/11062b_2d60145a58214f47a9115d8391c12c77~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Canada (Attorney General) v. Hicks, 2015 FC 599"></figure>
In Canada (Attorney General) v. Hicks, the <a href="https://www.chrt-tcdp.gc.ca/index-en.html" target="_blank">Canadian Human Rights Tribunal</a> (upheld on judicial review) found against the federal government employer who “showed disregard and indifference towards the respondent’s family status.” (Hicks, at <a href="https://canlii.ca/t/gj36x#par81" target="_blank">para. 81</a>)
 
Mr. Hicks was a federal government employee being relocated from Halifax to Ottawa. His wife had to stay behind for a number of months in order to find acceptable arrangements for her ailing mother, who, because of a disability, lived in a nursing home. Mr. Hicks and his wife had to live apart, maintaining two residences for a period of time, and sought compensation for this under a federal policy covering "temporary dual residence assistance." The government employer rejected Hicks' request for compensation, saying that the ground of family status was not so broad as to capture the circumstance of an aging parent not living in the same home.
 
The Federal Court held that “Johnstone test” should be applied to eldercare as well as childcare, since eldercare can also engage a legal caregiving obligation (the second part of the “Johnstone test”):
 
I find this similar rationale can be applied for the analysis of eldercare obligation in the instant case. The prohibited ground of discrimination of family status should encompass the eldercare obligation…whose non-fulfillment can attract not only civil responsibility (Maintenance and Custody Act), but also criminal responsibility if not exercised properly… Eldercare obligation is entrenched in Canadian societal values. It demonstrates the adult children’s responsibility to their elderly parents. (Hicks, at <a href="https://canlii.ca/t/gj36x#par70" target="_blank">para. 70</a>)
 
On <a href="https://en.wikipedia.org/wiki/Judicial_review_in_Canada" target="_blank">judicial review</a>, the Federal Court upheld the award to the employee of $15,000 as compensation for the discriminatory practice and $20,000 for the reckless conduct of employer.
<h2></h2>
<h2>6. Cases Involving Family Status Discrimination in Related to Covid-19 Health and Safety Mandate</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_210274c4e3bb4857a1abea8a3cd41e04~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Cases Involving Family Status Discrimination in Related to Covid-19 Health and Safety Mandate"></figure>
 
Code-based exemption to the <a href="https://www.ontario.ca/page/covid-19-workplace-health-safety" target="_blank">Covid-19 health and safety mandate</a> is rare. There are, however, successful cases.
 
United Steelworkers Local 2251 v Algoma Steel Inc., <a href="https://canlii.ca/t/j8pt2" target="_blank">2020 CanLII 48250</a> (ON LA)
<figure><img src="https://static.wixstatic.com/media/11062b_3e9e428e40e24589a300480e0d675739~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
A dual Canadian-American citizen lived in Michigan and worked in Sault Ste. Marie, crossing the border daily. The Employer, Algoma Steel Inc. is situated in the City of Sault Ste. Marie, Ontario in the District of Algoma.
 
After the onset of the Covid19 pandemic the <a href="https://www.canada.ca/en.html" target="_blank">federal government</a> enacted an emergency order pursuant to <a href="https://laws-lois.justice.gc.ca/eng/acts/Q-1.1/page-3.html#h-419611" target="_blank">section 58</a> of the <a href="https://www.canlii.org/en/ca/laws/stat/sc-2005-c-20/latest/sc-2005-c-20.html" target="_blank">Quarantine Act</a>. Under that order, individuals who enter Canada from the United States must self-isolate themselves for a period of 14 days. But it exempt certain categories of persons who must cross the border regularly to go to their normal place of employment. Mr. Gendron qualified for that exemption. However, the Employer implemented a policy that any of its employees who cross the border must isolate for 14 days before attending work without any exception resembling the federal emergency order.
 
The implementation of this policy has been especially problematic for the Grievor employee who has two young children, aged 6 and 10, resided in Michigan, who are not entitled to cross the border to be with him while he is Canada. Pursuant to a custody order he resided with his children on his days off. The policy as administered by the Employer requires the grievor to disregard the custody order and take up residence in Canada if he wants to continue to attend work during the pandemic.
 
COVID rates in both locations were low. The employer policy requiring employees crossing the Canada-US border to self-isolate before returning to work in Canada would have required the Grievor to reside in Canada full-time, apart from his children. Thus, forcing the Grievor to choose between his children and attending work. The Grievor had no choice but to stop attending work so that he could comply with the custody order. The employer was ordered by the arbitrator to consider how it may accommodate the grievor under the ground of family status while maintaining a safe workplace.
 
Hydro Ottawa Limited v. International Brotherhood Of Electrical Workers (IBEW), Local 636, <a href="https://canlii.ca/t/jb4nj" target="_blank">2020 CanLII 77939</a> (ON LA)
<figure><img src="https://static.wixstatic.com/media/11062b_f67dff5c5ff74c32bfc124c6a631424c~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Hydro Ottawa Limited v. International Brotherhood Of Electrical Workers (IBEW), Local 636, 2020 CanLII 77939 (ON LA)"></figure>
The employer implemented a work from home schedule. Employees alternated working at home and in the office weekly. Employees without childcare arrangements were required to use vacation credits or unpaid leave rather than working from home. 
 
The employer expressed concern that some employees did not work well from home, that they have the rights to implement a work schedule as they see fit, and that working at the office is good for the employees' mental health and company morale, but there were not evidence on file that the employees' in question did not work well at home, nor did any of the employees' in question had any mental health issues because of working from home remotely.
 
The Arbitrator held that the union established <a href="https://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions/9-establishing-discrimination" target="_blank">prima facie </a><a href="https://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions/9-establishing-discrimination" target="_blank">discrimination</a> and the employer failed to demonstrate that the rule was a <a href="https://www.ohrc.on.ca/en/iv-human-rights-issues-all-stages-employment/2-setting-job-requirements" target="_blank">bona fide </a><a href="https://www.ohrc.on.ca/en/iv-human-rights-issues-all-stages-employment/2-setting-job-requirements" target="_blank">occupational requirement</a> (BFOR), as no evidence was produced by the employer to prove that the work schedule was related to a legitimate work purpose.
 
The Arbitrator further held that there was no evidence to substantiate a claim that it was impossible to accommodate the grievors without negative economic impact. In the alternative, the union met the prima facie test set out in <a href="#a4deb" rel="noopener noreferrer">Johnstone v. Canada</a>. The use of unpaid leave or vacation credits was not <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">reasonable accommodation</a>.
 
JL v. Empower Simcoe, <a href="https://canlii.ca/t/jf23l" target="_blank">2021 HRTO 222 </a>
<figure><img src="https://static.wixstatic.com/media/11062b_737fe83d0e7b43b1a1f578ce22a6270b~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="JL v. Empower Simcoe, 2021 HRTO 222 "></figure>
A child with a disability was resident in a group home with visitation restrictions. One of the ways the child communicated was through physical touch. The child's parents wished to visit the child while following all health recommendations except physical distancing. The request was denied. 
 
The HRTO held that the group home failed to consider the accommodation requested, or to investigate into the subject matter or seek public health advice regarding it. The HRTO further held that the group home failed to establish that <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">accommodating the request</a> would lead to <a href="https://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions/14-undue-hardship" target="_blank">undue hardship</a>.
 
The Home was ordered to pay $10,000 for <a href="https://en.wikipedia.org/wiki/Damages" target="_blank">general damage</a> for injury to dignity, feelings, and self-respect. The Home was ordered to develop an accommodation policy for children under the age of 18, with the Tribunal stipulating specific requirements for the policy.
 
<h2>7. Conclusion</h2>
 
A prima facie case of <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">family status discrimination</a> may be successfully made out when an employer failed to demonstrate that the regulation or policy in question was a <a href="https://www.ohrc.on.ca/en/iv-human-rights-issues-all-stages-employment/2-setting-job-requirements" target="_blank">bona fide </a><a href="https://www.ohrc.on.ca/en/iv-human-rights-issues-all-stages-employment/2-setting-job-requirements" target="_blank">occupational requirement</a> (BFOR), and that it was related to a legitimate work purpose.
 
The same hold true for discrimination due to marital status (married, cohabitation, single, widowed, <a href="https://www.kirkerdavis.com/austin-divorce-lawyer/" target="_blank">divorced</a> or separated). 
 
There's no one-size-fit-all test for company regulation or policy impacting family status, and each workplace is different. 
 
When you have been <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">terminated wrongfully</a> or you have been <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructively dismissed</a> or you have been terminated due to family status discrimination, or that you are a victim of <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment</a> or <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a>, you should consults with an <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">employment lawyer</a> or you risk waiving your legal rights under <a href="https://en.wikipedia.org/wiki/Common_law" target="_blank">Common law</a>, the Human Rights Code or your rights in <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">suing for wrongful dismissal</a>, <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructive dismissal</a> or <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a>.
 
<figure><img src="https://static.wixstatic.com/media/491d2c_169a70b0999a4c0da920be9d48ed6bb5~mv2.jpg/v1/fit/w_984,h_510,al_c,q_80/file.png"title="HTW Law - Employment Lawyer Contact Information"alt="HTW Law - Employment Lawyer Contact Information"></figure>
Don't Wait, Act Now before it's too late. Call us now at <a href="tel:+1 647-849-6582" target="_blank">647-849-6582</a> or <a href="https://www.htwlaw.ca/contactus" target="_blank">Contact Us</a> Now if you have any questions or concerns in related to <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contract</a>, <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">termination</a>, <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination</a> or <a href="https://www.htwlaw.ca/severance-pay" target="_blank">severance package</a> or you want to book an appointment for a <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">legal consultation</a>. ]]></content:encoded></item><item><title><![CDATA[Non-Compete Agreement No Longer Legal Under Bill 27: Working for Workers Act, 2021 ]]></title><description><![CDATA[Non-Compete Agreement No Longer Legal Under Bill 27. We'll discuss the most important amendments under Bill 27 in this blog post.]]></description><link>https://www.htwlaw.ca/post/non-compete-agreement-no-longer-legal-under-bill-27-working-for-workers-act-2021</link><guid isPermaLink="false">62004f66de81752b2d56fe9d</guid><category><![CDATA[Employment Contract]]></category><pubDate>Mon, 07 Feb 2022 00:43:39 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/11062b_008ec8cc88a24b7e82f01d4aa6665d02~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Tony Wong</dc:creator><content:encoded><![CDATA[Many changes to the <a href="https://www.htwlaw.ca/employment-lawyer" target="_blank">employment law</a> are coming after <a href="https://www.ontario.ca/laws/statute/s21035" target="_blank">Bill 27</a> came into force <a href="https://news.ontario.ca/en/backgrounder/1001032/working-for-workers-act-2021" target="_blank">late 2021</a>. We'll discuss the most important amendments under Bill 27 in this blog post.
<figure><img src="https://static.wixstatic.com/media/11062b_008ec8cc88a24b7e82f01d4aa6665d02~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Non-Compete Agreement No Longer Legal Under Bill 27: Working for Workers Act, 2021 "></figure>
<h3>Topics Will be Covered in This Post:</h3>
<ol>
<li><a href="#5mg7" rel="noopener noreferrer">What is </a><a href="#5mg7" rel="noopener noreferrer">Working for Workers Act, 2021</a><a href="#5mg7" rel="noopener noreferrer">?</a> </li>
<li><a href="#36dis" rel="noopener noreferrer">Prohibition On Non-Compete Agreements</a> <ol>
<li><a href="#3r85t" rel="noopener noreferrer">Exceptions to the Prohibition against non-compete agreements</a> </li>
<li><a href="#dn86l" rel="noopener noreferrer">Caveats Related to the </a><a href="#dn86l" rel="noopener noreferrer">Working for Workers Act, 202</a><a href="#dn86l" rel="noopener noreferrer">1</a> </li>
</ol></li>
<li><a href="#e74r1" rel="noopener noreferrer">"Disconnecting From Work" Policies</a> </li>
<li><a href="#c56v9" rel="noopener noreferrer">Temporary Help Agency and Recruiter Licence</a> </li>
<li><a href="#an1qr" rel="noopener noreferrer">Conclusion</a> </li>
</ol>
<h2>1. What is Working for Workers Act, 2021? </h2>
<figure><img src="https://static.wixstatic.com/media/c5b8e22f6afa42c0847e2841e3394094.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="What is Working for Workers Act, 2021?"></figure>
<a href="https://news.ontario.ca/en/backgrounder/1001032/working-for-workers-act-2021" target="_blank">Bill 27: Working for Workers Act, 2021</a> was introduced in late October 2021, and received Royal Assent on December 2, 2021.
 
The key highlight of the <a href="https://www.ontario.ca/laws/statute/s21035" target="_blank">Working for Workers Act, 2021</a> is 1) prohibitions on the use of non-compete obligations in employment agreements; 2) requiring employers with 25 or more employees in Ontario to develop a "disconnecting from work" policies; 3) prohibitions on temporary help agency or anyone acting as a recruiter to operate without a valid licence.
 
<h2>2. Prohibition On Non-Compete Agreements</h2>
<figure><img src="https://static.wixstatic.com/media/491d2c_ad751582489446689e96b20ca8869e59~mv2.jpg/v1/fit/w_588,h_398,al_c,q_80/file.png"alt="2. Prohibition On Non-Compete Agreements"></figure>
<a href="https://en.wikipedia.org/wiki/Non-compete_clause" target="_blank">Non-competition clauses</a> have been discredited by the Court and have been regularly struck down by Judges recently. Working for Workers Act, 2021 seems to be codifying that legal trend. 
 
Non-compete clauses or non-compete obligations in <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contracts</a><a href="https://www.htwlaw.ca/employment-contract" target="_blank"> </a>are now prohibited, if such agreement was entered into after October 25, 2021.
 
After the Amendments made by Bill 27, <a href="https://www.ontario.ca/laws/statute/00e41#BK137" target="_blank">Section 67.2</a> of the <a href="https://www.ontario.ca/laws/statute/00e41" target="_blank">Employment Standards Act</a> now prohibits any employer and employee to enter into a non-compete agreement.
 
<h3>A. Exceptions to the Prohibition Against Non-Compete Agreements:</h3>
 
An employer is allowed to prohibit an employee from competing with the employer's business during the employee's terms of employment.
<ol>
<li>The prohibition against non-competition is not applicable if such non-competition contractual obligations are tied to the sale of a business.</li>
<li>The prohibition against non-compete agreements DOES NOT apply to executive and high-ranking officers of a company.</li>
</ol>
<figure><img src="https://static.wixstatic.com/media/076d87c5f6f84a499499fb4fa7f7ee31.png/v1/fit/w_381,h_410,al_c,q_80/file.png"alt="Exceptions to the Prohibition against non-compete agreements"></figure>
- Under Working for Workers Act, 2021 (the Act), a "non-compete agreement" is defined in the Act to include "an agreement, or any part of an agreement, between an employer and an employee that prohibits the employee from engaging in any business, work, occupation, profession, project or other activity that competes with the employer's business after the employment relationship between the employee and the employer ends".
 
- Under the Act, the prohibition does not apply in the context of a sale of all or part of a business if i) the purchaser and seller enter into an agreement that prohibits the seller from engaging in any business, work, occupation, profession, project or other activity that competes with the purchaser's business after the sale, and ii) immediately following the sale, the seller becomes an employee of the purchaser.
 
- Under the Act, the prohibition does not apply to an "executive", which is defined as "any person who holds the office of chief executive officer, president, chief administrative officer, chief operating officer, chief financial officer, chief information officer, chief legal officer, chief human resources officer or chief corporate development officer, or holds any other chief executive position".
 
<h3>B. Caveats of the Working for Workers Act, 2021:</h3>
<figure><img src="https://static.wixstatic.com/media/fc9edd80623144118a9f34c55208912b.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="Caveats of the Working for Workers Act, 2021"></figure>
- The prohibition against <a href="https://globalnews.ca/content/8363992/can-non-compete-clause-be-enforced/" target="_blank">non-compete provisions</a> in <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment agreements</a><a href="https://www.htwlaw.ca/employment-contract" target="_blank"> </a>does not prevent employers from entering into <a href="https://en.wikipedia.org/wiki/Non-solicitation" target="_blank">non-solicitation</a> or <a href="https://en.wikipedia.org/wiki/Non-disclosure_agreement" target="_blank">confidentiality agreements</a>. Employers are well-advised to have employees sign non-solicitation and confidentiality agreements separate and distinct from any <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contract</a>. Employers should carefully review their existing non-solicitation and confidentiality agreements to ensure that they are enforceable and are <a href="https://www.hg.org/legal-articles/what-do-i-need-to-know-about-a-non-compete-agreement-31596" target="_blank">reasonably limited in scope and duration</a>.
 
- Although the Act does not apply <a href="https://www.dictionary.com/browse/retroactively" target="_blank">retroactively</a> to employment <a href="https://www.htwlaw.ca/employment-contract" target="_blank">contracts</a> signed and came into force before October 21, 2021, there's already a pre-existing legal trend against non-competition restrictions. The Act will likely result in Courts taking an even stronger stand against existing employment non-compete agreements.
 
- As the Act is a <a href="https://en.wikipedia.org/wiki/Codification_(law)" target="_blank">codification</a> of the <a href="https://www.thecanadianencyclopedia.ca/en/article/jurisprudence" target="_blank">legal jurisprudence</a> against non-compete obligations in employment agreements, it's likely the Court will use a <a href="https://www.merriam-webster.com/dictionary/pragmatic" target="_blank">pragmatic approach</a> in <a href="https://en.wikipedia.org/wiki/Statutory_interpretation" target="_blank">statutory interpretation</a> and consider the actual job functions and the level of control exercised over other employees in determining who is an "executive". And as such creative <a href="https://en.wikipedia.org/wiki/Naming_convention" target="_blank">naming conventions</a> of job titles by adding the word "chief executive" or "executive" in the job title is probably not enough in safeguarding a non-compete clause in the<a href="https://www.htwlaw.ca/employment-contract" target="_blank"> </a><a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment agreement</a>.
 
<h2>3. "Disconnecting From Work" Policies</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_98eb9802f3554aef955e82eecda2dac2~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="3. "Disconnecting From Work" Policies"></figure>
Under <a href="https://www.ontario.ca/laws/statute/s21035#BK4" target="_blank">Working for Workers Act, 2021</a>, any employer with 25 or more employees (as of January 1 of any year) is required to have a written policy in place in respect of "disconnecting from work" by March of that year for all employees.
 
"Disconnecting from work" is defined as "engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, to be free from the performance of work".
 
The Act does not include any specific guidance for a disconnecting from work policy. For example, there is nothing in the legislation that prohibits employees from working (or being asked to work) outside of their "usual" business hours. Further, there are no exceptions made for executive or other higher-ranking employees (who are often expected to work, or at least answer important phone calls, check their e-mail during off-hours).
 
Without further guidance, it is unclear as to whether the employees will be allowed to refuse work outside of regular working hours.
 
<h2>4. Temporary Help Agency & Recruiter Licence</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_38ecc59e96fe4884b3bd69d92ab85d37~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="4. Temporary Help Agency & Recruiter Licence"></figure>
The Act prohibits persons from operating as a <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0/temporary-help-agencies" target="_blank">temporary help agency</a> or acting as a <a href="https://www.dictionary.com/browse/recruiter" target="_blank">recruiter</a> without an Ontario license (to be issued by the <a href="https://www.ontario.ca/document/your-guide-employment-standards-act-0" target="_blank">Director of Employment Standards</a>) and prohibits knowingly engaging or using the services of an unlicensed temporary help agency or recruiter. The Act sets out <a href="https://www.ontario.ca/laws/statute/00e41#BK150" target="_blank">specific license application requirements</a> for recruiters and record-keeping requirements for recruiters and clients of temporary help agencies.
 
The amendments also include a prohibition against any possible act of <a href="https://www.ontario.ca/page/reprisals-against-workers-employers" target="_blank">reprisal</a> by a recruiter or temporary help agency against an employee due to an employee complying with the <a href="https://www.ontario.ca/laws/statute/00e41#BK189" target="_blank">Employment Standards Act</a> or asking that a recruiter do the same.
 
Licenses will have to be renewed yearly and will be non-transferable. A public database that lists all active, revoked, or suspended licenses will also be available.
 
Please note that the temporary help agency and recruiter licensing requirement mandated by the Act has not come into force yet, and thus will not yet be enforced. It has been suggested by <a href="https://toronto.ctvnews.ca/this-ends-now-ontario-proposes-new-temporary-agency-laws-that-would-require-license-1.5627358" target="_blank">government press releases</a> that the licence requirements might not come into effect until 2024.
 
<h2>5. Conclusion</h2>
 
Under the <a href="https://news.ontario.ca/en/backgrounder/1001032/working-for-workers-act-2021" target="_blank">Working for Workers Act, 2021</a>, there are many important changes to the <a href="https://www.ontario.ca/laws/statute/00e41" target="_blank">Employment Standards Act</a> and other <a href="https://www.htwlaw.ca/employment-lawyer" target="_blank">employment law</a> legislation.
 
When you are <a href="https://www.htwlaw.ca/employment-contract" target="_blank">drafting an employment contract</a> and contemplating adding some protections against non-solicitation and safeguarding confidential information, you should consults with an <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">employment lawyer</a> or these agreements might not be enforceable and you be without any legal recourse or protection after an employee quit or be terminated. You might want to your <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment terms and clauses drafted</a> or at least have your <a href="https://www.htwlaw.ca/employment-contract" target="_blank">agreement reviewed</a> by an<a href="https://www.htwlaw.ca/aboutus" target="_blank"> </a><a href="https://www.htwlaw.ca/aboutus" target="_blank">experienced employment lawyer</a> to make sure you are in compliance to the ever changing employment law.
 
As an employee, you consult an <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">employment lawyer</a> to <a href="https://www.htwlaw.ca/employment-contract" target="_blank">review your employment contract</a> before signing to make sure you know what you are getting yourself into. When you have been <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">terminated wrongfully</a> or you have been <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructively dismissed</a> or that you are a victim of <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment</a> or <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a>, you should consults with an <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">employment lawyer</a> or you risk waiving your legal rights under <a href="https://en.wikipedia.org/wiki/Common_law" target="_blank">Common law</a>, the Human Rights Code or your rights in <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">suing for wrongful dismissal</a>, <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructive dismissal</a> or <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a>.
 
<figure><img src="https://static.wixstatic.com/media/491d2c_169a70b0999a4c0da920be9d48ed6bb5~mv2.jpg/v1/fit/w_984,h_510,al_c,q_80/file.png"title="HTW Law - Employment Lawyer Contact Information"alt="HTW Law - Employment Lawyer Contact Information"></figure>
Don't Wait, Act Now before it's too late. Call us now at <a href="tel:+1 647-849-6582" target="_blank">647-849-6582</a> or <a href="https://www.htwlaw.ca/contactus" target="_blank">Contact Us</a> Now if you have any questions or concerns in related to <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contract</a>, <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">termination</a>, <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination</a> or <a href="https://www.htwlaw.ca/severance-pay" target="_blank">severance package</a> or you want to book an appointment for a <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">legal consultation</a>. ]]></content:encoded></item><item><title><![CDATA[Age Discrimination vs. Bona Fide Occupational Requirement (BFOR)]]></title><description><![CDATA[In this post, we'll talk about Ontario cases and Human Rights Tribunal decisions regarding age discrimination.]]></description><link>https://www.htwlaw.ca/post/age-discrimination-vs-bona-fide-occupational-requirement-bfor</link><guid isPermaLink="false">61e35e185b0dc20016cd291e</guid><category><![CDATA[Workplace Discrimination]]></category><category><![CDATA[Workplace Harassment]]></category><pubDate>Thu, 27 Jan 2022 11:26:42 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/11062b_73320997bee64b30a08fcf7c5e7ee501~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Tony Wong</dc:creator><content:encoded><![CDATA[In this post, we'll talk about <a href="https://www.ontariocourts.ca/scj/" target="_blank">Ontario cases</a> and <a href="https://tribunalsontario.ca/hrto/" target="_blank">Human Rights Tribunal</a> decisions regarding age discrimination. Continue reading to learn more.
<figure><img src="https://static.wixstatic.com/media/11062b_73320997bee64b30a08fcf7c5e7ee501~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="s age discrimination"></figure>
<h3>Topics Will be Covered in This Post:</h3>
<ol>
<li><a href="#2pnut" rel="noopener noreferrer">What is Age Discrimination?</a> </li>
<li><a href="#72s0l" rel="noopener noreferrer">How to Prove Age Discrimination</a> </li>
<li><a href="#d4psf" rel="noopener noreferrer">Summary Hearing Example for Bullying and Harassment Claims</a> </li>
<li><a href="#2bf1g" rel="noopener noreferrer">Age Discrimination in Termination</a> </li>
<li><a href="#8578p" rel="noopener noreferrer">Bona Fide Occupational Requirement</a> </li>
<li><a href="#88h8j" rel="noopener noreferrer">Conclusion</a> </li>
</ol>
<h2>1. What is Age Discrimination?</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_447c867c970b40c29bea4d024f0430c9~mv2.jpeg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"alt="What is Age Discrimination"></figure>
The Ontario <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Human Rights Code</a> (the “Code”) prohibit <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a>. However, the Code does not prohibit general bullying and <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment</a>.
 
A successful claim of <a href="https://www.ohrc.on.ca/en/iii-principles-and-concepts/2-what-discrimination" target="_blank">workplace discrimination</a> at the <a href="https://tribunalsontario.ca/hrto/" target="_blank">Human Rights Tribunal of Ontario</a> (“HRTO”) requires an applicant (i.e. the victim of the workplace discrimination) show that one of the prohibited grounds of the Code was a factor in the bullying and harassment (i.e. race, age, sex, disability, etc.).
 
In determining whether a case of <a href="https://en.wikipedia.org/wiki/Employment_discrimination" target="_blank">workplace discrimination</a> can be successful made out at the HRTO, the key question to ask is whether the employee’s Application is somehow connected to the Code?’ 
<figure><img src="https://static.wixstatic.com/media/491d2c_b107ecfa65b1425396c12f41523e57a3~mv2.jpg/v1/fit/w_800,h_151,al_c,q_80/file.png"alt="Human Rights Tribunal of Ontario"></figure>
<a href="https://www.ontario.ca/laws/statute/90h19#BK12" target="_blank">Age</a> is a protected ground under the Ontario <a href="https://www.ohrc.on.ca/en/ontario-human-rights-code" target="_blank">Human Rights Code</a> (Code), and it's illegal to discriminate anyone because of age unless it's a <a href="https://en.wikipedia.org/wiki/Bona_fide_occupational_qualification#Canada" target="_blank">bona fide occupational requirement</a> (BFOR), which will be discussed below.
 
To establish a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">case</a><a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank"> </a><a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">of discrimination</a> under the Human Rights Code in the <a href="https://www.htwlaw.ca/employment-lawyer" target="_blank">employment law</a> context, an Applicant must show that:
<ol>
<li>they have a characteristic protected from discrimination (e.g. old age);</li>
<li>they have experienced an adverse impact in hiring, in the workplace, or in termination decision;</li>
<li>and the protected characteristic (e.g. old age) was a factor in the adverse impact.</li>
</ol>
The Applicant MUST establish a <a href="https://en.wikipedia.org/wiki/Prima_facie" target="_blank">prima facie</a> case by showing that it is more probable than not that age discrimination took place. 
 
Intent is irrelevant for establishing age discrimination. Once a prima facie case has been established, the burden shifts to the Respondents that the adverse impact was justified as a BFOR.
 
<h2>2. How to Prove Age Discrimination?</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_2efabf102f25402b9e463f781025a38c~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
Discrimination is often hard to prove, and to be successful, an Applicant needs to have evidence of discrimination, both <a href="https://en.wikipedia.org/wiki/Direct_evidence" target="_blank">direct evidence</a> and <a href="https://en.wikipedia.org/wiki/Circumstantial_evidence" target="_blank">circumstantial evidence</a> are acceptable. An allegation of age discrimination without any actual proof is not sufficient to establish a prima facie case.
 
In deciding whether an application has a reasonable prospect of success, the oft-cited case of Dabic v. Windsor Police Service, <a href="http://canlii.ca/t/2cs0c" target="_blank">2010 HRTO 1994</a> (CanLII) at para. 8 to 10 is instructive:
 
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success....
 
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated.... 
 
.... However, when there is no reasonable prospect that any ... evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
 
As the Human Rights Tribunal of Ontario (HRTO) explained further in Forde v. Elementary Teachers’ Federation of Ontario, <a href="http://canlii.ca/t/fmhm3" target="_blank">2011 HRTO</a> 1389 (CanLII) at para. 17:
 
The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.
 
<h2>3. Summary Hearing Example for Bullying and Harassment Claims</h2>
<figure><img src="https://static.wixstatic.com/media/11062b_82a894387a9f4480b5558e0d32503d23~mv2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png"></figure>
A recent case at the HRTO sheds light on the <a href="https://tribunalsontario.ca/documents/hrto/Practice%20Directions/Summary%20Hearing%20Requests.html" target="_blank">Summary Hearing procedure</a> with respect to an allegation of workplace harassment. In Galuego v. Chartwell Master Care LP, <a href="https://canlii.ca/t/hxtb6" target="_blank">2019 HRTO 343</a>, Leonardo Galuego, the applicant, alleged that he was bullied and harassed by co-workers and unfairly disciplined.
 
A Summary Hearing was initiated, and the HRTO quickly dismissed the complaint as having no reasonable prospect of success because the applicant’s allegations of bullying and harassment were not connected to the Code. The HRTO has held from <a href="https://canlii.ca/t/hxtb6#par22" target="_blank">paragraph 22 to paragraph 29</a> that:
 
[22] In both his materials and oral submissions in the summary hearing, the applicant was unable to explain or establish a link between the Code grounds listed and what the respondent is alleged to have done…
 
[23] When asked directly why and how he believed his age was a factor in the alleged mistreatment, the applicant responded that because he was older, he should not have had to relocate to a new floor at work, as it would have impacted his effectiveness at work, rather than explaining how his age had been a cause of the mistreatment he allegedly received. Similarly, when asked about the accommodation he sought, the applicant stated that he believed the respondent failed to accommodate him when it did not properly investigate his complaints of harassment.
 
….
 
[26] Ultimately, it appears that the true concern of the applicant is that, in his view, the respondent did not properly investigate his longstanding complaints of harassment, not whether that behaviour turned, to some degree, on the Code grounds cited in the Application.
 
[27] I have no doubt the applicant strongly and genuinely believes that an injustice was done to him. However, the applicant has provided no information from which the Tribunal can reasonably infer that any of these actions, even if proven, were due to the applicant’s age, disability or sex. The Tribunal cannot decide general allegations of unfairness unrelated to the Code.
 
…
 
[29] For an application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond his or her own suspicions. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred.
 
<h2>4. Age Discrimination In Termination</h2>
 
The normal age for retirement in Canada is 65, but <a href="https://en.wikipedia.org/wiki/Mandatory_retirement#Canada" target="_blank">mandatory retirement</a> is <a href="https://www.cbc.ca/news/business/mandatory-retirement-fades-in-canada-1.799697" target="_blank">against the law</a>. The <a href="https://en.wikipedia.org/wiki/Human_Rights_Code_(Ontario)" target="_blank">Human Rights Code</a> (the Code) do not specify a retirement age. <a href="https://www.ontario.ca/laws/statute/90h19#BK12" target="_blank">S. 10 (1)</a> of the Code limits protection from <a href="https://en.wikipedia.org/wiki/Ageism" target="_blank">age discrimination</a> in employment to persons aged 18 or more.
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It’s not easy for an Applicant to successfully made out a <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">claim of age discrimination</a>. In fact, the vast majority of age discrimination cases are flagged by the HRTO at the internal review stage. If that happens, the HRTO will send a <a href="https://tribunalsontario.ca/documents/hrto/Guides/Applicants%20Guide.html#8c" target="_blank">Notice of Intent to Dismiss the Application</a> (NOID) to the Applicant, where the Applicant has roughly 30 days to response and establish a prima facie case of age discrimination.
 
However, if the complainant is able to establish a prima facie case of discrimination, it is very difficult for the employer to establish that the termination is justified on the basis that age is a Bona Fide Occupational Requirement (BFOR). 
 
The decisions in Adams v. Bata Retail, <a href="https://canlii.ca/t/gc5b2" target="_blank">1988 CanLII 8868</a> (Ont. Bd. Inq.). and Watchman v. Canada Safeway Ltd., <a href="https://canlii.ca/t/gd9hc" target="_blank">1992 CanLII 14254</a> (BC HRT), provide two good examples of ‘typical’ cases in this area. In the first case, the Ontario Board of Inquiry did not find age discrimination but found that the complainant’s employment was terminated primarily on the basis of unsatisfactory performance and also because the company was making changes in an effort to overcome financial difficulties. Similarly, in the second case, the complainant’s demotion was found to be because of work performance.
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The decision in Kearns v. Dickson Trucking Ltd., <a href="https://canlii.ca/t/1g8pd" target="_blank">1988 CanLII 111</a> (CHRT), is one example of a case in which age discrimination was successfully made out. However, the evidence in that case was overwhelming and there was no other reasonable explanation for the termination. The complainant, a 69-year-old salesman, was the best in the organization and there were no complaints at any time about his performance. Although he was terminated on the basis of “a lack of potential in the area serviced by him”, his position was not declared redundant but rather was filled by a younger person. Mr. Kearns was awarded damages for lost wages and for hurt feelings and self-respect.
 
<h2>5. Bona Fide Occupational Requirement</h2>
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A <a href="https://en.wikipedia.org/wiki/Bona_fide_occupational_qualification" target="_blank">Bona Fide Occupational Requirement</a>, or BFOR, is workplace job requirement that allows an employer to “justify" an otherwise prohibited ground, if there is a legitimate reason that is connected to the ability to do the job.
 
In British Columbia (Public Service Employee Relations Commission) v British Columbia Government Service Employees' Union, <a href="https://www.canlii.org/en/ca/scc/doc/1999/1999canlii652/1999canlii652.html" target="_blank">1999 CanLII 652</a> (SCC), the Supreme Court has created a unified test, the Meiorin test, to determine if a violation of human rights legislation can be justified as a BFOR.
 
Under the <a href="https://en.wikipedia.org/wiki/British_Columbia_(Public_Service_Employee_Relations_Commission)_v_British_Columbia_Government_Service_Employees%27_Union" target="_blank">Meiorin</a><a href="https://en.wikipedia.org/wiki/British_Columbia_(Public_Service_Employee_Relations_Commission)_v_British_Columbia_Government_Service_Employees%27_Union" target="_blank"> test</a>, an employer can justify the impugned standard by establishing on the <a href="https://en.wikipedia.org/wiki/Balance_of_probabilities" target="_blank">balance of probabilities</a>:
<ol>
<li>that the employer adopted the standard for a purpose rationally connected to the performance of the job;</li>
<li>that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and</li>
<li>that the standard was reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.</li>
</ol>
<a href="https://engagedhr.com/what-is-a-bfor-and-why-does-it-matter/" target="_blank">Click here</a> for further reading regarding BFOR. 
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The <a href="https://www.scc-csc.ca/home-accueil/index-eng.aspx" target="_blank">Supreme Court of Canada</a> has established the <a href="https://en.wikipedia.org/wiki/Central_Alberta_Dairy_Pool_v_Alberta_(Human_Rights_Commission)" target="_blank">undue hardship test</a> in Central Alberta Dairy Pool v Alberta (Human Rights Commission), <a href="https://canlii.ca/t/1fsv9" target="_blank">[1990] 2 SCR 489</a>.
 
<a href="https://engagedhr.com/what-is-a-bfor-and-why-does-it-matter/" target="_blank">Click here</a> for further reading regarding undue hardship.
 
To survive the Meiorin test, a <a href="https://www.cbc.ca/news/business/mandatory-retirement-fades-in-canada-1.799697" target="_blank">mandatory retirement policy</a> should contain exceptions for employees who are able to perform their duties despite their old age , and provide them with <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">reasonable accommodations</a>. Possible forms of <a href="https://en.wikipedia.org/wiki/Reasonable_accommodation" target="_blank">reasonable accommodation</a> may include allowing older employees to continue working on job duties with lighter workloads, as long they pass periodic medical check-ups and performance appraisals.
 
<h2>6. Conclusion</h2>
 
A case of <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">age discrimination</a> may be successfully made out when an employee is terminated due to old age for reason unrelated to job performance or<a href="https://www.indeed.com/hire/c/info/what-is-redundancy" target="_blank"> </a><a href="https://www.indeed.com/hire/c/info/what-is-redundancy" target="_blank">job redundancy</a>; or due to a mandatory retirement policy that doesn't pass the Meiorin test.
 
There's no one-size-fit-all test for mandatory retirement policy, and each workplace is different. 
 
When you have been <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">terminated wrongfully</a> or you have been <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructively dismissed</a> or you have been terminated due to age discrimination, or that you are a victim of <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace harassment</a> or <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a>, you should consults with an <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">employment lawyer</a> or you risk waiving your legal rights under <a href="https://en.wikipedia.org/wiki/Common_law" target="_blank">Common law</a>, the Human Rights Code or your rights in <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">suing for wrongful dismissal</a>, <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructive dismissal</a> or <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a>.
<figure><img src="https://static.wixstatic.com/media/491d2c_169a70b0999a4c0da920be9d48ed6bb5~mv2.jpg/v1/fit/w_984,h_510,al_c,q_80/file.png"title="HTW Law - Employment Lawyer Contact Information"alt="HTW Law - Employment Lawyer Contact Information"></figure>
Don't Wait, Act Now before it's too late. Call us now at <a href="tel:+1 647-849-6582" target="_blank">647-849-6582</a> or <a href="https://www.htwlaw.ca/contactus" target="_blank">Contact Us</a> Now if you have any questions or concerns in related to <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contract</a>, <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">termination</a>, <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination</a> or <a href="https://www.htwlaw.ca/severance-pay" target="_blank">severance package</a> or you want to book an appointment for a <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">legal consultation</a>. ]]></content:encoded></item><item><title><![CDATA[Legal Analysis of Mandatory Vaccine Policy and Antigen Testing Amid Covid-19]]></title><description><![CDATA[In this post, we'll talk about recent cases and arbitration decisions regarding mandatory vaccine policy and antigen test.]]></description><link>https://www.htwlaw.ca/post/legal-analysis-of-mandatory-vaccine-policy-and-antigen-testing-amid-covid-19</link><guid isPermaLink="false">6194b78649243e0016eb6e75</guid><category><![CDATA[Constructive Dismissal]]></category><category><![CDATA[Workplace Discrimination]]></category><category><![CDATA[Workplace Harassment]]></category><category><![CDATA[Wrongful Dismissal]]></category><category><![CDATA[Severance Pay]]></category><category><![CDATA[Disability Law]]></category><pubDate>Wed, 17 Nov 2021 13:11:36 GMT</pubDate><enclosure url="https://static.wixstatic.com/media/3c2eca45c90b483b9386d2b7eef92ae2.jpg/v1/fit/w_1000,h_1000,al_c,q_80/file.png" length="0" type="image/png"/><dc:creator>Tony Wong</dc:creator><content:encoded><![CDATA[In this post, we'll talk about recent cases and arbitration decisions regarding mandatory vaccine policy and antigen testing. Continue reading to learn more.
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<h3>Topics Will be Covered in This Post:</h3>
<ol>
<li><a href="#4pnvq" rel="noopener noreferrer">Mandatory Antigen Testing</a></li>
<li><a href="#5khe0" rel="noopener noreferrer">Mandatory Vaccination Policy</a></li>
<li><a href="#coblu" rel="noopener noreferrer">Ontario Human Rights Commission Policy Statement Regarding COVID Vaccination</a></li>
<li><a href="#c72j6" rel="noopener noreferrer">Conclusion</a></li>
</ol>
<h2>1. Mandatory Antigen Testing</h2>
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Antigen testing is a hot topic recently as many companies are mandating antigen testing at the workplace. The impact of a workplace policy on worker rights must be weighed in the balance against the actual benefit to the employer of that policy.
 
The protected right in COVID related antigen testing cases is <a href="https://en.wikipedia.org/wiki/Privacy" target="_blank">privacy</a>, including the dignity and bodily integrity interests that each of us has in <a href="https://www.canada.ca/en.html" target="_blank">Canada</a>.
 
Arbitrator Gedalof recently noted in an arbitration between workers and employers at <a href="https://canlii.ca/t/jh5ww" target="_blank">2021 CanLII 65284</a> (ON LA) at <a href="https://canlii.ca/t/jh5ww#par105" target="_blank">para. 105</a> that:
 
The Courts have repeatedly recognized that invasions of privacy give rise to a unique form of harm, both through the loss of control over ones’ personal information (in this case bodily fluids and breath samples that may also contain highly personal information), but also through subjecting the individual to the process through which that personal information is obtained.
 
A <a href="https://en.wikipedia.org/wiki/Balancing_test" target="_blank">balancing test</a> is use to analyze the reasonableness of the requirement.
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It would be permissible for an employer to mandate antigen testing across its workforce only where it can show that the benefit of antigen testing in the workplace outweighs the harm to an employee having to undergo an unwanted and coerced medical procedure against their piracy rights. 
 
Given the pervasiveness of <a href="https://covid-19.ontario.ca/" target="_blank">COVID-19</a> and the impact of it to the public <a href="https://www.labour.gov.on.ca/english/hs/" target="_blank">health and safety</a>, there's little argument as to whether or not <a href="https://www.canada.ca/en/health-canada/services/drugs-health-products/covid19-industry/medical-devices/testing/antigen-devices.html" target="_blank">antigen testing</a> should be mandated at workplaces.
 
Please read this article that talks about the antigen testing in detail:
 
<a href="https://www.htwlaw.ca/post/covid-19-rapid-antigen-test-an-alternative-to-getting-vaccinated" target="_blank">COVID-19 Rapid Antigen Test - An Alternative to Getting Vaccinated</a> 
 
<h3>Who Pays for Antigen Testing?</h3>
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If antigen testing is necessary to protect public health and safety, then next logical question to ask is whether or not the employer who imposes such testing unilaterally to its employees SHOULD pay for it?
 
A similar yet equally important question to ask is whether or not the employees is entitled to bill their employers for the time it takes for them to administer such antigen testing? After all, it is the employees who are being coerced unilaterally into such medical testing against their will.
 
Arbitrator Murray gave a definitive answer to that question in the Matter of Arbitration between Ontario Power Generation and Power Workers Union.
The employer in that case has a policy that requires antigen testing and verification of results. One of the issue (Issue # 1) at the Arbitration was who pays for the cost of the antigen testing, and whether the time the employees spent in administering the test billable working hours?
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Arbitrator Murray held that:
 
Employees who have not confirmed that they are fully vaccinated are required to self-administer the rapid antigen test, and the cost of such testing is to be borne by the employer.
 
Employees are required to self-administer on their own time, prior to reporting to work, and are not entitled to compensation for the time spent in the administration of the test or in the reporting of the results.
 
Arbitrator Murray seemed to have taken a middle ground approach to the issue wherein both the employers and the employees bare part of the costs of antigen testing.
 
<h2>2. Mandatory Vaccination Policy </h2>
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A much more heated and controversial topic of debate is whether or not a mandatory vaccination policy is justified.
 
Please read this article that talks about the concerns and considerations in vaccine policies in detail:
 
<a href="https://www.htwlaw.ca/post/can-my-employer-force-me-to-get-vaccinated" target="_blank">Can My Employer Force Me to Get Vaccinated?</a>
 
Like drug testing requirements, <a href="https://www.toronto.ca/home/covid-19/covid-19-vaccines/covid-19-how-to-get-vaccinated/" target="_blank">vaccination</a> requirements engage not only <a href="https://www.priv.gc.ca/en/about-the-opc/publications/guide_ind/" target="_blank">privacy rights</a> generally, but <a href="https://en.wikipedia.org/wiki/Bodily_integrity" target="_blank">bodily integrity rights</a> specifically. However, the impact and intrusiveness of a vaccine requirement on the individual is significantly greater than a requirement to submit to a test.
 
In addition, <a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines.html" target="_blank">COVID vaccines</a> occasionally has very serious side effects and more commonly causes pain, nausea and other unpleasant symptoms, and of which the <a href="https://www.mayoclinic.org/diseases-conditions/coronavirus/in-depth/coronavirus-long-term-effects/art-20490351" target="_blank">long term side effects</a>, if any, are not yet known.
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The harm done by vaccination, if any, is <a href="https://dictionary.cambridge.org/dictionary/english/irreparable" target="_blank">irreparable</a> by definition. No remedy, no monetary award by a Court can undone the <a href="https://en.wikipedia.org/wiki/Infringement" target="_blank">infringement</a> on privacy rights, bodily integrity, and pain and sufferings resulted from COVID side effects.
 
Nevertheless, the method of analysis of the <a href="https://en.wikipedia.org/wiki/Reasonable_person" target="_blank">reasonableness</a> of the requirement is the same: the <a href="https://en.wikipedia.org/wiki/Balancing_test" target="_blank">balancing test</a>. It would be permissible for an employer to mandate vaccinations if the benefit of vaccination in the workplace outweighs the harm done to an employee.
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The strength of that argument depends on several factors, most notably <a href="https://en.wikipedia.org/wiki/Scientific_evidence" target="_blank">scientific evidence</a> regarding the vaccines and an assessment of the risks within the workplace. Mandatory vaccine policies, if permitted at all, must be borne of necessity when no other realistically viable policy will suffice to meet objectively vital goals of the employer in meeting the legitimate and vital needs of its enterprise.
 
The alleged benefit of vaccination must be a benefit needed and justified beyond the protection provided by existing less intrusive protective means in the workplace – masking, physical distancing and hygiene – and in the context of available alternative work arrangements, such as working from home. 
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The <a href="https://en.wikipedia.org/wiki/Balancing_test" target="_blank">balancing test for reasonableness</a> is one of the simplest test and yet the administration of it is one of the most complicated. 
 
Having a mandatory vaccination policy for workers in a long-term care home may easily satisfy the test of being a <a href="https://en.wikipedia.org/wiki/Bona_fide_occupational_qualification" target="_blank">bona fide </a><a href="https://en.wikipedia.org/wiki/Bona_fide_occupational_qualification" target="_blank">occupational requirement</a><a href="https://en.wikipedia.org/wiki/Bona_fide_occupational_qualification" target="_blank"> </a>due to risk to the elderly and the health-compromised individuals in those settings. However, in a different workplace with a different set of facts, it may be more difficult to justify the need for a mandatory vaccination.
 
<a href="https://www.htwlaw.ca/common-type-of-workplace-harassment" target="_blank">Click here</a> to learn more about Common Type of <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">Workplace Harassment</a>, including <a href="https://www.htwlaw.ca/common-type-of-workplace-harassment" target="_blank">Disability Discrimination</a>. 
 
On October 1, 2021, the <a href="https://www.health.gov.on.ca/en/" target="_blank">Minister of Long-Term care</a> in Ontario announced that <a href="https://www.ontario.ca/page/ministers-directive-long-term-care-home-covid-19-immunization-policy" target="_blank">COVID19 vaccinations will be mandatory</a> for all in-home staff support workers, students, and volunteers and that they must be fully vaccinated by November 15, 2021 unless they have a valid medical exemption. If not fully vaccinated, they would be prohibited from entering a long-term care facility to work. New hires would be fully vaccinated or have a medical exemption before they could work in a long-term care home.
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However, on November 3, 2021, the government announced that <a href="https://globalnews.ca/news/8347039/ontario-covid-mandatory-vaccine-hospital-workers/" target="_blank">Ontario will not make vaccination mandatory for hospital workers</a>, primarily due to concerns regarding staffing shortages in the healthcare sector, except workers in long term health care facilities.
 
As mentioned above the context surrounding the mandatory vaccine policy is paramount and that there CANNOT be a “one size fits all” mandatory vaccine policy. The challenges faced by <a href="https://www.merriam-webster.com/dictionary/fact%20finder" target="_blank">fact finders</a> in applying the balancing test is highlighted in Blake v. University Health Network, <a href="https://canlii.ca/t/jk25x" target="_blank">2021 ONSC 7139</a> (CanLII).
 
In <a href="https://canlii.ca/t/jk25x" target="_blank">Blake</a>, the Court held at <a href="https://canlii.ca/t/jk25x#par28" target="_blank">para. 28</a> that employment can be terminated at will outside of the collective bargaining regime in Ontario with compensation being payable where cause is not alleged, or if cause is alleged and not proved. The Court held that it could not accept that any plaintiff who is not in a union could “allege irreparable harm arising from threatened termination of employment”.
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However, the Court in <a href="https://canlii.ca/t/jk25x" target="_blank">Blake</a> did acknowledge at <a href="https://canlii.ca/t/jk25x#par29" target="_blank">para. 29</a> that some of the plaintiffs may have additional rights under the <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Human Rights Code</a>, but unfortunately there was simply no evidence before the Court in the motion record that comes close to establishing even a serious issue to be tried that the impugned vaccine policy contravenes the anti-discrimination provisions of the Code as regards any of them.
 
In other words, a Court will ONLY determine the applicable remedy on a case-by-case analysis after an employee has been <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">terminated</a>.
 
The Difficulties in applying the balancing test when many factors and many stakeholders with competing interests are involved resulted in inconsistency in the application of the balancing test. The two arbitration decisions discussed below will showcase the dilemma.
 
In the Matter of Arbitration United Food and Commercial Workers Union, Canada Local 333 vs. Paragon Protection Ltd., Paragon issued a notice to its security guard employees advising that all employees were to be fully vaccinated by October 31, 2021 (subject to valid exemptions for medical reasons or under the Human Rights Code). 
In this case, mandatory vaccination policy was upheld.
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The Arbitrator held that the Policy was reasonable, enforceable, and compliant with both the <a href="http://www.ohrc.on.ca/en/ontario-human-rights-code" target="_blank">Ontario </a><a href="http://www.ohrc.on.ca/en/ontario-human-rights-code" target="_blank">Human Rights Code</a> and <a href="https://www.ontario.ca/laws/statute/90o01" target="_blank">Occupational Health and Safety Act</a><a href="https://www.ontario.ca/laws/statute/90o01" target="_blank"> </a>(OHSA) and adhered to the <a href="http://www.ohrc.on.ca/en/policy-statement-human-rights-based-approach-managing-covid-19-pandemic" target="_blank">Ontario Human Rights Commission guidance</a> that mandatory vaccination policies are permissible as long as protections are put in place to make sure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated.
 
The arbitrator conclude that the Policy struck a reasonable balance between the rights of employees not to get vaccinated, their rights under the Code, and the Company’s obligation under <a href="https://www.ontario.ca/laws/statute/90o01#BK47" target="_blank">Section 25(2)(h)</a> of <a href="https://www.ontario.ca/laws/statute/90o01" target="_blank">OHSA</a><a href="https://www.ontario.ca/laws/statute/90o01" target="_blank"> </a>as support for their obligation to take every precaution measures reasonable for the protection of their workers, to provide a safe workplace for staff and that, while receiving a vaccine is an employee’s personal choice, “personal subjective perceptions of employees to be exempted from vaccinations cannot override and displace available scientific considerations”.
 
In the Matter of Arbitration Electrical Safety Authority (“ESA”) vs. Power Workers Union (the "Union”), the opposite conclusion was reached. In this case, the ESA issued a notice to its employees advising that all employees were to be fully vaccinated by January 2022 when workers stop working remotely.
In this case, mandatory vaccination policy was struck down.
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Prior to the implementation of the subject policy, the ESA had established a policy in September of 2021 which allowed employees who did not voluntarily disclose their vaccination status to be tested. Arbitrator Stout determined that the ESA had not demonstrated any difficulties in protecting their workplace through the use of a combined vaccination and testing regime, other than an unfounded concern by the ESA that mandatory vaccination rules and policies by third parties could interfere with the ESA’s business and desire to bring employees back to work on-site in January of 2022.
 
There were no collective agreement provisions that dealt with vaccinations and that there had never been a requirement for any employee of the ESA to be vaccinated as a condition of employment. There were few cases even before vaccination, and many workers were not in direct contact with the public.
 
Arbitrator Stout reasoned that any rule or policy must be shown to be reasonably necessary and must involve a proportionate response to a real and demonstrated risk or business need.
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Arbitrator Stout recognized that in workplace environments that presented high risks or where there were vulnerable populations, mandatory vaccination policies may not only be entirely reasonable but may also be necessary and required.
 
In sharp contrast, in a workplace settings where employees can work remotely and where there is no specific problem or significant risk of an outbreak presented, or of any significant interference with the employer’s operations, then a reasonable less intrusive alternative policy should be adopted.
 
Arbitrator Stout distinguished the current case with the Paragon decision, and point out that 1) Paragon arose in a different context wherein employees performed all of their work at third party sites; and 2) the Paragon collective agreement contained language that required employees to receive a specific vaccination required at an assigned site. And as such Arbitrator Stout argued that his decision didn't conflict with Arbitrator von Veh’s award in Paragon.
 
<h2>3. Ontario Human Rights Commission Policy Statement Regarding COVID Vaccination </h2>
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The <a href="http://www.ohrc.on.ca/en/news_centre/ohrc-policy-statement-covid-19-vaccine-mandates-and-proof-vaccine-certificates" target="_blank">Ontario Human Rights Commission Policy statement</a> on COVID-19 vaccine mandates and proof of vaccine certificates, made on September 22, 2021, summed it up well. It’s all about balancing.
 
<h3>Vaccination requirements generally permissible</h3>
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While receiving a COVID-19 vaccine remains voluntary, the OHRC takes the position that mandating and requiring proof of vaccination to protect people at work or when receiving services is generally permissible under the <a href="http://www.ohrc.on.ca/en/guide-your-rights-and-responsibilities-under-human-rights-code-0" target="_blank">Human Rights Code</a> (Code) as long as protections are put in place to make sure people who are unable to be vaccinated for <a href="http://www.ohrc.on.ca/en/news_centre/covid-19-and-ontario%E2%80%99s-human-rights-code-%E2%80%93-questions-and-answers" target="_blank">Code</a><a href="http://www.ohrc.on.ca/en/news_centre/covid-19-and-ontario%E2%80%99s-human-rights-code-%E2%80%93-questions-and-answers" target="_blank">-related reasons</a> are <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">reasonably accommodated</a>. This applies to all organizations.
 
Upholding individual human rights while trying to collectively protect the general public has been a challenge throughout the pandemic. Organizations must attempt to balance the rights of people who have not been vaccinated due to a Code-protected ground, such as disability, while ensuring individual and collective rights to health and safety.
 
<h3>Personal preferences and singular beliefs not protected</h3>
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The OHRC and relevant <a href="https://www.chrc-ccdp.gc.ca/en/about-human-rights/human-rights-canada" target="_blank">human rights laws </a>recognize the importance of balancing people’s right to non-discrimination and civil liberties with public health and safety, including the need to address evidence-based risks associated with COVID-19.
 
Receiving a COVID-19 vaccine is voluntary. At the same time, the OHRC’s position is that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code. The OHRC is not aware of any tribunal or court decision that found a singular belief against vaccinations or masks amounted to a creed within the meaning of the Code.
 
While the <a href="https://www.ontario.ca/laws/statute/90h19" target="_blank">Code</a> prohibits <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination</a> based on creed, personal preferences or singular beliefs DO NOT amount to a creed for the purposes of the Code.
 
Even if a person could show they were denied a service or employment because of a creed-based belief against vaccinations, the duty to accommodate does not necessarily require they be exempted from vaccine mandates, certification or COVID testing requirements. The <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">duty to accommodate</a> can be limited if it would significantly compromise health and safety amounting to <a href="http://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions/14-undue-hardship" target="_blank">undue hardship</a> – such as during a pandemic.
 
In fact, a vast majority of religions, including those that traditionally opposed to medical interventions, blood transfusions and organ transplants, have shown their support to vaccination according to a <a href="https://www.vumc.org/health-wellness/news-resource-articles/immunizations-and-religion" target="_blank">list</a> compiled by the <a href="https://www.vumc.org/health-wellness/news-resource-articles/immunizations-and-religion" target="_blank">Vanderbilt University Medical Center</a> in related to <a href="https://www.vumc.org/health-wellness/news-resource-articles/immunizations-and-religion" target="_blank">immunization and religion</a>.
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<h2>4. Conclusion</h2>
 
There's a general consensus that antigen testing is an acceptable limit to privacy rights and bodily integrity in the face of a pandemic. There’s no one-size-fit-all test for mandatory vaccine policy, a sliding scale balancing test is to be used. 
 
In workplace environments that presented high risks or where there were <a href="https://www.canada.ca/en/public-health/services/publications/diseases-conditions/vulnerable-populations-covid-19.html" target="_blank">vulnerable populations</a>, mandatory vaccination policies may not only be entirely reasonable but may also be necessary and required in order to protect those vulnerable populations.
 
In workplace settings where employees can work remotely and where there is no specific problem or significant risk of an outbreak presented, or of any significant interference with the employer’s operations, then a reasonable less intrusive alternative policy - frequent antigen testing, masking, physical distancing and hygiene, may be in order.
 
When you have been <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">terminated wrongfully</a> or you have been <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructively dismissed</a> or you have been terminated for cause due to illegal mandatory vaccine policies you should consults with an <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">employment lawyer</a> or you risk waiving your legal rights under <a href="https://en.wikipedia.org/wiki/Common_law" target="_blank">Common law</a> or your rights in <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">suing for wrongful dismissal</a>, <a href="https://www.htwlaw.ca/constructive-dismissal" target="_blank">constructive dismissal</a> or <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">workplace discrimination</a>.
 
<figure><img src="https://static.wixstatic.com/media/491d2c_169a70b0999a4c0da920be9d48ed6bb5~mv2.jpg/v1/fit/w_984,h_510,al_c,q_80/file.png"title="HTW Law - Employment Lawyer Contact Information"alt="HTW Law - Employment Lawyer Contact Information"></figure>
Don't Wait, Act Now before it's too late. Call us now at <a href="tel:+1 647-849-6582" target="_blank">647-849-6582</a> or <a href="https://www.htwlaw.ca/contactus" target="_blank">Contact Us</a> Now if you have any questions or concerns in related to <a href="https://www.htwlaw.ca/employment-contract" target="_blank">employment contract</a>, <a href="https://www.htwlaw.ca/wrongful-dismissal" target="_blank">termination</a>, <a href="https://www.htwlaw.ca/workplace-harassment-and-discrimination" target="_blank">discrimination</a> or <a href="https://www.htwlaw.ca/severance-pay" target="_blank">severance package</a> or you want to book an appointment for a <a href="https://www.htwlaw.ca/employment-lawyer-consultation" target="_blank">legal consultation</a>. ]]></content:encoded></item></channel></rss>

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