#human rights code

In a prior posting, we discussed the “liability” or fault decision of the Human Rights Tribunal in an unusual and dramatic case. That decision found that the employer had acted in a manner contrary to the Human Rights Code when it required that all new hires be eligible to work in Canada on a permanent basis.

The case was complicated as the individual had misled the company in his job interview about this very issue. The prior article deals with this question which turned on an important aspect of human rights law, which states that the adverse decision need only be influenced by a human rights violation.

The Remedy

Recently, the Human Rights Tribunal of Ontario released its decision on the appropriate remedy. It awarded the job applicant the total sum of $120,000.

Awards for lost income in human rights cases are much different from employment law wrongful dismissal cases which are based on the concept of reasonable notice. There is an implicit cap on fair notice which in the best possible case will be close to two years.

Human rights lost income awards are based on an entirely different concept. These awards are determined by looking at what income the person would have earned had the wrongful action not taken place. This principle can lead to significant awards of lost income from the date of the wrongdoing to the date of the remedy hearing and in some cases, even beyond that date.

This case is a good example of the dramatic difference in the two ways of looking at the damage claim for lost income.

In this case, the employee sought a lost income award on this basis of 4 years. Generally speaking, this claim was allowed. The employee was still required to show that he was diligent in looking for alternate employment over this time period.

In addition, he was required to show that he likely would have remained employed with the company over this time period and would not likely have been terminated for performance or other reasons.

Suppose, for example, the division for which the employee should have been hired was closed and all employees were terminated. The company could then argue that this employee would have suffered a similar fate and hence the lost income claim should cease as of this date. This was not the argument in this case but this is mentioned to show the general principle in determining the lost income award.

The arithmetic in the case at hand led to a claim of roughly $100,000. In addition, an award was made for damages for hurt feelings of $15,000.

Understand the Law

This case was a very complicated one from the very start. It illustrates quite well the value of astute legal advice. Knowledge of the law is critical and can be very valuable. Get advice before you act. Contact the offices of Guelph employment lawyer Peter McSherry. We can help you determine whether you may have a claim due to a human rights violation and how to deal with it. Contact us online or by phone at 519-821-5465 to schedule a consultation.

The post Human Rights Tribunal Decides Remedy in “Citizenship” Case appeared first on Peter A. McSherry.

"As many employers already know, smoking in the workplace is prohibited in Ontario.  However, with the topic of medical marijuana increasingly in the news, a question that comes to mind is: 'Does this prohibition apply to the smoking of medical marijuana in the workplace?'"

"Section 9 of the Smoke–Free Ontario Act... specifically applies to the smoking of tobacco, and does not make reference to the smoking of any other substance. Although medical marijuana is a controlled substance under the Marihuana Medical Access Regulation(MMAR) pursuant to the Controlled Drugs and Substances Act, and its use has been legalized for medical purposes since 2001, the legislation and its regulations do not provide an answer to our question about smoking it in the workplace.  That answer is also nowhere to be found in a new regulation, Marihuana for Medical Purposes Regulation, which amends the above-noted legislation."

"What, then, is an employer to do when an employee has a medical marijuana license and states that s/he must smoke their marijuana in the workplace?   What if the employee holds a safety sensitive position (like driving a forklift)?"

"Fundamentally, these questions invite the same analysis as an employee’s request to use and/or be under the influence of any prescription drug with intoxicating effects.  Accordingly, the answers are dictated by the employer’s obligations under both the Ontario Human Rights Code and the Ontario Occupational Health and Safety Act."

Click here to read on.

SOURCE: Global Post

First jurisdiction in North America to protect transgendered, lawmaker says.

David Trifunov - June 13, 2012

Politicians of all political stripes voted unanimously today to add “transgender” to the Human Rights Code in Ontario, Canada’s largest province.

It was New Democrat lawmaker Cheri DiNovo’s fourth attempt in six years to pass a bill to protect transgendered citizens.

“A long time coming, but it’s a very good day,” DiNovo said, The Canadian Press reported. 

“There’s a whole host of things that will be opened up for trans people because of this, and really this recognizes them simply as humans, with all the rights of every other human in Ontario.”

DiNovo said Ontario becomes the first jurisdiction in North America to make the move.

The Ontario code will celebrate its 50th birthday on Friday, The Toronto Star reported, with its first addition since the 1980s when politicians added clauses for homosexuals.

The new law adds “gender identity” and “gender expression” alongside protections for race, creed, color or sexual orientation.

DiNovo, a minister in the United Church, dubbed the act Toby’s Bill in honor of a transgender choir director at her church who committed suicide.

“I feel like we’ve pushed an elephant up a mountain and we’ve been successful,” Susan Gupta, a transgendered Torontonian, told the Star.

Ontario became the first province in Canada to protect transgendered citizens officially.

It was a rare show of solidarity among politicians, with right and left lawmakers from Ontario’s three main political parties co-sponsoring the bill, CBC said.