Sabbath Observance and Workplace Discrimination: Ontario HR Tribunal Awards $4,000.

Can an employer discriminate against Sabbath observers in the course of interviews for employment in Ontario?  If not, what kinds of penalties can employers face when they discriminate in this fashion?  A recent Ontario Human Rights Tribunal case awarded an applicant $4,000 in damages for injury to “dignity, feelings and self-respect” when she was screened out of a job due to her Sabbath observance.

L.W. is a Seventh Day Adventist.  She applied for a position with the Desjardins Group.  The position was a short-term contract to work in a call centre.  Ms W was asked in the interview process if she could work on Saturdays.  She indicated that she could not since this was her Sabbath.  According to the findings of the Tribunal, she was then “screened out” from any further interview process and was not  considered for the position.

Surprisingly, the Tribunal held that it was permissible for employers to ask about work availability.  The Tribunal noted that there was no evidence in this case to indicate that the question was being asked in order to “classify” the applicant by her creed.

However, the Tribunal went on to conclude that the applicant’s inability to work on Saturdays for religious reasons led her to being screened out from any further interview process.  In other words, she was subjected to discrimination on the basis of her creed by the Desjardins Group, according to the Tribunal.  It is hard to see how this type of conduct could be prevented if the Tribunal is correct that applicants can be asked by an employer about work availability.

Nevertheless, the Tribunal found that Ms W. had been subjected to discriminatory treatment.  It awarded her the grand total of $4,000.  This hardly seems like a sufficient incentive to deter employers from discriminating on the basis of creed.  Part of the reason for the modest award was that Ms W., apparently, did not provide evidence of any steps that she had taken to try to find other employment.  But these damages are of a different type.  The $4,000 was awarded as “general damages.”  This should reflect the Tribunal’s view of the respondent’s conduct and its impact on the applicant.  $4,000 does not seem like very much of a deterrent.  I would have thought that $25,000 or $30,000 or even as much as $50,000 would have been an appropriate message to send in light of the seriousness of the impugned conduct and the findings of the Tribunal.

This aspect of the case reminds Ontario residents that even where discriminatory conduct has been proven, the Ontario Human Rights Tribunal may not award a very significant amount of money.  Further since the Ontario Human Rights Tribunal does not award payment of legal fees to successful parties, this type of hearing could be very costly for a claimant.  In many cases, it may make much more sense for a litigant to file a lawsuit in the Ontario Superior Court and to consider asking a jury for its assessment of damages.  A large jury award might serve as a much better deterrent than the modest sum that was awarded in the Desjardins and W. case.

Constructive Dismissal: Racism Ruling Overturned

How hard is it in Ontario to sue for constructive dismissal because of a racially poisoned work atmosphere?  According to a recent Ontario Court of Appeal decision in General Motors of Canada v. Johnson, released on July 31, 2013, the onus on the plaintiff is very significant.

Yohann Johnson, a black man, was a production supervisor with General Motors (GM).  According to the evidence, he had worked for GM, without incident, for almost eight years.   In early 2005, Johnson became responsible for training group leaders in a GM body plant.  An individual who was supposed to be trained by Johnson failed to show up for his training session.  The individual, Alex Markov,  claimed that he was uncomfortable with Johnson because of a remark that Johnson had made to him in the past, regarding Markov’s brother, who had been murdered.  Apparently, Markov’s brother had been killed by a black man.  Johnson understood that Markov was refusing to train with him because Johnson was black.  Markov was permitted by GM, initially, to train with another trainer instead of Johnson.

Johnson filed a complaint with GM alleging that Markov had refused to undergo training with him because he was black.  GM investigated these complaints.  Markov was initially told that he would have to train with Johnson or he would be forced to leave GM.  Apparently, with union involvement, GM agreed that Markov could be relieved of his group leader responsibilities so that he would not have to train with Johnson.  Shortly afterwards, Markov was working in the body shop, performing group leader functions, but GM claimed that this was only a temporary fill-in for another employee.  Markov was suspended for breaching the agreement but he filed a grievance and wound up overturning the suspension.   Johnson viewed this as evidence that GM was not prepared to enforce a deal that was agreed upon, to address Johnson’s concerns of racism.

Johnson ultimately went off on a stress leave that he claimed had come about as a result of workplace racism and the treatment of him.  He sued for constructive dismissal.  He alleged that GM had created a poisoned work atmosphere that tolerated racism at the workplace.

At trial, an Ontario Superior Court Judge, Alfred Stong J., accepted Johnson’s allegations.  The court held GM had “traded away Johnson’s human rights as a bargaining chip” and had created a poisoned workplace for Johnson.  The trial court awarded Johnson damages of more than $150,000 including constructive dismissal damages and other “Wallace” damages for bad faith conduct.  The court held that the evidence had shown that Johnson “satisfied the burden of proof placed on him of proving that he was constructively dismissed from his employment with GM.”

The Ontario Court of Appeal unanimously reversed the decision in its entirety.  It held that the trial judge’s findings should be overturned because they were “wrong, unreasonable or unsupported by the evidence.”  The Court of Appeal held that the foundational finding of racism was “unreasonable and unsupported by the evidence.”  The court noted that there had been no direct evidence of racism by anyone at GM.  The trial court’s conclusion was based on inconsistent statements that Markov had made, leading to a finding that he was lying.  Moreover,  the trial court based its decision on information provided by another employee, effectively “hearsay evidence.”  The Court of Appeal held that, on a proper evidentiary record, it was unreasonable for the trial court to make a funding that Markov’s refusal to train with Johnson was “solely racially based.”  The finding of constructive dismissal was overturned.

The Court of Appeal went on to state that the plaintiff bears the onus of establishing a poisoned workplace in a constructive dismissal case.  It is up to the plaintiff to demonstrate that “the objective reasonable bystander would support the conclusion that a poisoned workplace environment had been created.”  Further, the court stated that “except for particularly egregious, stand-alone incidents, a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated.”

The Court of Appeal rejected the argument that the refusal by one employee on one occasion,  to train with another employee, for racially motivated reasons, would have been enough to establish a poisoned workplace due to racism.  The court held that there was no evidence of systemic or institutional racist behaviour.  It noted that this was one incident over the course of an eight year working relationship and it was addressed, to the satisfaction of Johnson, initially.

Although the trial judge had put together a list of 8 factors that the judge felt established a constructive dismissal, the Court of Appeal rejected each of these factors, as improperly drawn conclusions, factual findings made without a proper evidentiary basis, or for other reasons, finding that the judge’s holdings were a “fundamental misapprehension of the evidence.”

The Court of Appeal was satisfied by GM’s evidence of numerous investigations, the steps it took to deal with the situation and its offers to Johnson to have him working in locations in which he would not have contact with Markov.  The Court of Appeal held that there was no evidence that any conduct on GM’s part signified an intention to “repudiate its contact of employment” with Johnson.  In fact, the Court of Appeal had this to say about the trial decision:

“The trial judge appears to have concluded that GM repudiated Johnson’s employment contract by failing to provide him with a discrimination free employment environment.  With respect, this misconceives GM’s obligations in the circumstances.”  The Court of Appeal, went on to add “GM, however, was not obligated to immunize Johnson from any future contact with Markov or any other body shop employees.”  The Court of Appeal rejected the trial court’s findings that there had been at least one threat made, indirectly, against Johnson.

The Ontario Court of  Appeal decision is an unusual example of a case in which an appellate court will delve into the trial record and overturn various factual findings and conclusions made by the trial court judge.  This is quite rare.  The standard is a very high one for this type of review and appellate courts are not usually interested in “retrying the case.”  Here, however, the Court of Appeal was obviously persuaded that the trial court judge’s conclusions were so unfounded that it felt it was warranted to review all of the findings.

The Court of Appeal’s decision also establishes that claims of a poisoned work atmosphere due to racism will be required to meet a high threshold.  Evidence of one encounter or incident, unless it is particularly “egregious” will not be sufficient to enable an employee to resign and sue for constructive dismissal.

It remains to be seen whether Johnson will file a Request for Leave to Appeal to the Supreme Court of Canada or how this decision will otherwise be applied if Johnson does not.  It is important to note that the case was all based on one incident where one employee had refused to train with another, without any direct evidence that this refusal was racially motivated.  That is to say, this case is certainly not dismissive of poisoned work environment claims based on racism.  However, the Court of Appeal has indicated that it will require a high standard, of explicit, direct incidents of racism in order to uphold a claim of constructive dismissal.

The difficulty with this approach is that many incidents of racism are more subtle and are not nearly as explicit as the standard that the Court of Appeal seems to require.   However, these incidents may still cause significant and far-reaching damage to the victim.  The Court of Appeal recognized that Johnson “believed that he had been a victim of racism in his workplace.”  But it concluded that this was not a “work environment poisoned by racism.”









Supreme Court Strikes Drug and Alcohol Testing

Is random drug and alcohol testing legal in Canadian workplaces?  There still may not be an absolutely clear answer to that question but the Supreme Court of Canada has restored an arbitrator’s decision in a unionized workplace that a universal random testing regime was an affront to the dignity and privacy of employees.  It held that there was insufficent evidence of enhanced safety risks to justify the policy.  The fact that the workplace was dangerous did not, in itself, give the employer a carte blanche to impose the policy unilaterally.

In Communications, Energy and Paperworkers of Canada, Local 30 v. Irving Pulp & Paper Ltd., the Supreme Court reviewed a case that had started as a grievance filed by a teetotalling employee, who had not had a drink in 30 years.  The grievance had been filed to challenge a policy of mandatory drug and alcohol testing that the employer had unilaterally imposed.  At the grievance arbitration, the arbitrators noted that there had been 8 incidents of alcohol consumption or impairment over a 15 year period.  None of these incidents had led to accidents, near misses, or injuries.  The arbitrators concluded that the harm to employee privacy and dignity substantially outweighed the safety-risk justification of upholding the policy.    The Supreme Court ultimately agreed, overturning decisions of two levels of New Brunswick courts, which had reversed the arbitrators’ decision.

The majority had this to say about the standard for testing:

“the dangerousness of a workplace — whether described as dangerous, inherently dangerous, or highly safety sensitive — is, while clearly and highly relevant, only the beginning of the inquiry.  It has never been found to be an automatic justification for the unilateral imposition of unfettered random testing with disciplinary consequences. What has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.”

The 3-judge minority of the Court issued a blistering dissent in which it argued that the arbitrator’s decision was outside of the range of reasonable outcomes and had been properly reversed by the New Brunswick courts.  The minority would have found that there had been sufficient evidence of safety risk to justify the unilateral imposition of a universal drug and alcohol testing policy.  In its view, there was sufficient evidence of safety considerations to outweigh the incursion into employee privacy rights.

The case is considered relevant and applicable, primarily, to unionized workplaces.  But the impact may be very significant, across a range of workplaces.  In unionized workplaces, the Supreme Court has made it clear that employers will need to meet a high threshhold to justify the unilateral imposition of a universal testing policy.  In non-unionized workplaces, the Court’s decision may well wind up having an impact.  Human rights tribunals across Canada and Canadian Courts will be required to take notice of the Supreme Court’s assessment of the importance of employee privacy and dignity in Canadian workplaces.

While it is too early to assess the extent of the impact this will have, it seems likely to help the cause of employee privacy rights across Canada in many different contexts.



Should Canadian Employees Have Faith in Workplace Accommodation of Religion?

Canadian employers are required to accommodate the needs of religious employees in the workplace.  This requirement can extend to a number of different issues including weekly Sabbath Observance, religious holy days, daily prayer breaks, religious dress and, sometimes, disputes relating to employer requirements.  I will be speaking about this issue at the Law Society’s Annual Six Minute Employment Lawyer Conference on June 13, 2013.

This is a short list of a few of the main topics that I will be covering and some of the key points:

1.  Workplace  Accommodation: Sabbath Observance:  Many Canadian employees of different faiths observe a weekly Sabbath.  Since the Canadian Charter of Rights and Freedoms (the “Charter”) came in effect in 1985, the Canadian Supreme Court has, on a number of occasions, recognized the importance of accommodating minority religious requirements, including a weekly Sabbath.  Canadian employers are required to accommodate the Sabbath observance of their employees by permitting employees to take the day off unless doing so would create “undue hardship” for employers.  In unionized workplaces, unions are also responsible for cooperating with this duty to accommodate these needs.  There are very few cases in which Canadian courts, tribunals or arbitrators have actually found that it would create “undue hardship” to permit an employee to observe his or her weekly Sabbath, although there have been some.  One recognized exception would be if the employer was looking to hire a person specifically to work on the Sabbath day.  Another would be if work on the Sabbath could be shown to be an essential requirement of the position.  For the most part, however, even small workplaces have been required to permit employees to observe their weekly Sabbath breaks.

2.  Workplace Accommodation: Religious Holy Days:  As with weekly Sabbath observance, Canadian employers have also been required to permit employees to take time off to celebrate or observe religious holy days, subject to “undue hardship.”  This may include a significant number of days in a calendar year.  However, the legal question has been whether employers are required to pay for these observances.  The short answer, for the most part is “no.”  If employers provide “discretionary days off” or “personal days” or most other types of paid days, employees are permitted to use these days, as paid days off, to observe holy days.  Employees are not required, and cannot be required, by their employers to use up paid vacation time for these days. Moreover, if there is a way to make up the days through scheduling time, extra hours, or time shifting, employers are required to permit their employees to use these methods.   Many employers do provide two or three paid annual “personal” or “discretionary” days which employees can use for these purposes.  But, in most cases, employers are not required to pay for religious holy days even though they must permit employees to observe these days by not attending at work.   If employees elect not to use their vacation time for these observances, they can take unpaid holy day time – or try to make up the time otherwise.

3.  Workplace Accommodation: Daily Prayer Breaks: There are fewer cases involving daily prayer breaks.  However, Canadian law recognizes that employers must accommodate these requirements to the point of undue hardship.  Employers may put rules into place to ensure that a workplace or a post is not left vacant while an employee takes a prayer break.  For example, a system of notifying a superior, obtaining approval or “signing out” at the required time may be reasonable.  Employers are not necessarily required to pay for this prayer break time and can ask employees to work extra time to make up this break time – unless the employees are simply using break time that is otherwise available to all employers.  Employers are not necessarily required to provide designated prayer areas, though if this is something that can be arranged, it may be preferable over having the employees leave the workplace.

4.  Workplace Accommodation: Religious Dress: Canadian employers are required to permit their employees to wear various forms of religious dress unless doing so would create undue hardship (which usually means safety concerns in this area).  Thus employees may wear turbans, kippahs (yarmulkes), hijabs, crosses, kirpans and other forms of religiously required headgear or attire to work.  Employers, in most cases, cannot require employees to shave their beards or other facial hair that is grown for religious purposes.  Clothing that is not religiously required but is a cultural practice may be permitted as well, though this may be open to question.  Clothing worn for religious or cultural reasons which completely covers a person’s face such as a niqab or a burka may also create issues if the employee works, for example, in a customer service environment.  Employers may argue that it is an essential requirement of the position that the employee’s face be visible while working.  It is unclear how courts and tribunals will decide these cases.  In 2012, the Supreme Court determined that women who wear niqabs may be required to remove them when testifying in court in some circumstances.  However, this has not yet been applied to workplaces.

4.  Workplace Accommodation: Employer Requirements:  If employees are asked to do something that would violate their religious beliefs, practices or customs, they may be able to get an exemption from these requirements for religious reasons.  The test would be whether the issue can be accommodated without creating undue hardship.  In one case, for example, some 407 employees refused to participate in a new security system that involved biometric hand scans, for fear of having the “Mark of the Beast” imprinted on their hands.  An arbitrator accepted this argument and exempted the employees from the biometric hand scan program, finding that this was something that could be accommodated.  Employers are not required, however, to accommodate religious requirements that would affect the human rights of other employees.  So if, for example, an employee requests that he or she not be required to work with members of the opposite gender, that request need not be accommodated in a Canadian workplace since it would affect the equality rights of other employees.

Other issues may arise that relate to religious freedom in the workplace.  The Supreme Court of Canada has established that employees seeking any of these accommodations for religious purposes are not required to prove that they are religiously required by a particular religion or religious leader to observe such practices.  Rather, they need only prove that they are sincere in their belief and observance of a particular practice.  In other words, employees must show that they believes that they are required to observe a particular practice and actually follow it, sincerely.  If this can be demonstrated, Canadian employers are required, in most cases, to accommodate the practice to the point of undue hardship.

Supreme Court of Canada Upholds Hate Speech Restrictions

William Whatcott

The Supreme Court of Canada handed down a lengthy but fascinating decision today in the case of Saskatchewan (Human Rights commission) v. William Whatcott.  The case is the latest foray by the Supreme Court into the area of restrictions on hate speech in Canada.  Suprisingly, the Court reached a unanimous decision, concluding that restrictions on hate speech in Canada continue to be legal if they are targeted at expression which exposes groups to hatred on the basis of characteristics listed in human rights legislation or Canada’s Charter of Rights and Freedoms.  I say suprisingly, not because of the result, but because the Supreme Court has been issuing increasingly complex decisions with different Court members holding different (and often diametrically opposite) opinions.

The Court also held that restrictions on expression which “ridicule, belittle or affront the dignity” of minority groups on the basis of personal characteristics will not be upheld.  In other words, Canadians are free to make fun of other people – and even “ridicule, belittle and affront the dignity” of others, without worrying about violating hate speech legislation.  But expression which exposes others to hatred or which is intended to promote hatred can be legally restricted or penalized.

In this case, the issue centred on a series of posters prepared by Mr. Whatcott which attacked homosexuals.  Some of the language used by Whatcott in his posters was laden with biblical references, which was one of the main bases on which Mr. Whatcott defended his expression.  Other posters were found to have painted homosexuals as “carriers of disease, sex addicts, pedophiles and predators who proselytize vulnerable children and cause their premature death.”  In total, four posters were the subject of human rights complaint un der the Saskatchewan Human Rights Code.  The case made its way up to the Supreme Court.  Two of the posters were ultimately have found to have crossed the line and advocated hatred of homosexuals.  Restrictions on this type of expression, contained in the Saskatchewan legislation were upheld by the Court.

The Supreme Court decided that two other posters did not violate the hate law legislation – as the Supreme Court recrafted it.  The Court effectively hived off part of the legislation and eliminated a ban on certain types of expression.  The two posters that advocated hatred were found to have violated the legislation whereas the other posters, as offensive as they were, did not violate the legislation.  Although they may have “affronted the dignity” of homosexuals, they did not advocate hatred.

In making its decision, the Supreme Court first ruled that all of the restrictions on hate speech violated the Charter‘s protections of freedom of expression and of freedom of religion.   However, the Court went on to hold that some of the restrictions were demonstrably justified in a free and democratic society, as provided for in section 1 of the Charter.  This two step process is a unique part of the Canadian Charter, which first requires courts to determine whether there has been a violation of a right and then asks courts to determine whether the violation (if there has been one) is justifiable in a free and democratic country.

A few principles emerge from this decision:

1. “Freedom of Religion” does not give religious groups carte blanche to promote hatred against minority groups.   While the Court held that religious groups can vocally express their religious-based opposition to homosexuality, they are are not free to promote hatred against homosexuals.  Admittedly, even after reading this decision, this is still a difficult line to draw.  The Court specifically stated that it would not accept the argument that the hate speech in question was only directed against “homosexual acts”  and not homosexuals since the targeted behaviour is “integral to and inseparable from the indentiy of the group.”  This principle would likely extend to other minority groups, including other religious minorities.   That is to say, a religious group could not use “freedom of religion” to defend the spread of hatred against another religious group.  Further, it could not save such hateful expression by claiming that it was only aimed at “actions” that were integral components of that other group’s religious belief system.

2.  The Court sent a strong message that equality and respect for the inherent dignity owed to all human beings are values in Canada that will be at leaset as important or even outweigh freedom of expression or freedom of religion in certain cases.  This is not to say that freedom of expression and freedom of religion have been dealt a crippling blow.  The Court was dealing with extreme examples of the promotion of hatred.  It still left available a wide range of noxious expression and religious activity (even offensive religious activity) that will not be challengable under hate speech laws.

The Supreme Court has spoken with a unanimous voice and has bolstered some of its previous jurisprudence in the area of restrictions on hate speech.  It has also reinforced its previous rulings that gays  and lesbians in Canada are as entitled to protection from hate speech as any other protected group.  This decision is likely to be applauded by the LGBT community and by other groups that have been the targets of hate speech in Canada, including Jewish and Muslim Canadians as well as other ethnic groups.  At the same, the decision will be attacked by those who place freedom of expression above any other Charter rights and oppose any restrictions on expressive activity.





Federal Court: Family Status includes Child Care Responsibilities Under Human Rights Act

Are Canadian employers required to accommodate child care challenges of their employees?  Is this covered by “family status?”  A recent decision of the Canadian Federal Court in AG Canada v. Johnstone  has sided in favour of employees in addressing issue.

The case involved a border services officer, Fiona Johnstone, who was working at Pearson Airport for the Canadian Border Services Agency (“CBSA”).  She had been working on rotating shifts.  After the birth of her children, she requested that she be able to work regular, fixed day shifts to accommodate her child care needs.  She claimed that she could not make child care arrangements that would support the rotating work schedule that she had been on and that her employer should accommodate her requirements by providing her with regular full-time day shifts.  The CBSA refused to accommodate her and she filed a human rights complaint with the Canadian Human Rights Commission alleging discrimination on the basis of family status.

In August 2010, the Canadian Human Rights Tribunal allowed Ms Johnstone’s human rights complaint.  It held that the CBSA had discriminated against Ms Johnstone on the basis of family status and that she was entitled to accommodation.  One of the key findings was that the definition of “family status” under the Canadian Human Rights Act includes parental child care responsibilities.  It ordered the CBSA to establish policies that would address family status accommodation issues and to accommodate Ms Johnstone.  It also ordered monetary damages of $35,000 for pain and suffering and for the fact that the CBSA had deliberately denied protection to those seeking family status accommodation.

The CBSA brought an application for judicial review in the Federal Court of Canada.

In its decision released on January 31, 2013, the Federal Court upheld the Tribunal ruling.  It determined that “family status” under human rights legislation – the Canadian Human Rights Act, in particular, includes child care responsibilities.  The Federal Court noted that many border services officers face difficulties with their work-life balance as a result of working for a 24-7 operation that requires employees to work rotating shifts.  However, the Court held that the CBSA was still required to consider Ms Johnstone’s particular situation and accommodate her.  The CBSA made no attempt to do so.  The Federal Court therefore upheld the Tribunal’s decision, including the award of damages to Ms Johnstone.

In many respects, the Federal Court’s decision is not surprising.  Employers have been required, under Canadian human rights law, to accommodate employees for religious reasons, including for example, the right to Sabbath observance or the right not to work on religious holidays.  Employers have also been required to accommodate employees to the point of “undue hardship” with respect to disability issues.   So it makes sense that Courts and Tribunals would find an obligation of accommodation for other human rights categories.

Defining “family status” to include child care obligations is not without its challenges.  Employers may have numerous employees, at any given time, who are struggling with child care arrangements.  It may be that some employers will be able to provide evidence of “undue hardship” by demonstrating that they require employees to work rotating shifts – even on some kind of alternating basis and they cannot accommodate all of the requests for full-time day shifts.  Tribunals and Courts will need to look at the size of the workplace, the ability of the employer to accommodate its employees and other relevant issues.  Employees will also be expected to make some efforts to address their employers’ concerns.

The Federal Court decision does not stand for the proposition that any employee with child care needs can automatically insist on working a full-time day shift while all of the other employees at that workplace are working rotating shifts at all hours.  However, the case does require employers to consider these requests and to try to come up with a way of addressing them.  The CBSA in this case had rejected the idea that it had any obligation to accommodate its employees’ child care needs and that was found to be a violation of the Canadian Human Rights Act.

Many employers across Canada have already implemented policies that provide for reasonable accommodation of employees with child care challenges.  Employers who have not done so may be required t reexamine their policies so that they are meeting their obligations under human rights legislation.

This type of accommodation may not be limited to child care but may also include people with elderly-care responsibilities or employees who must care for infirm or challenged family members.









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