This case originally came from an arbitrated dispute involving a union. The employee had a lengthy record of absences – missing 960 days of work over a span of 7 years. The employer had adjusted working conditions to try to meet the employee’s needs but these efforts had not been entirely successful. Eventually, the employee brought a physician’s note indicating that she would “no longer be able to work on a regular and continuous basis without continuing to have an absenteeism problem”. The employer dismissed the employee, who then filed a grievance. At arbitration, the arbitrator held that the employee was unable to work for the foreseeable future, as required, and the employer had no further obligations. The case made its way up to the Supreme Court of Canada after the Québec Court of Appeal overturned the lower Court decision and sided with the employee.

The Supreme Court of Canada discussed the concept of “undue hardship” when an employer is required to accommodate a disabled employee. Employers must be flexible in adopting a standard that is appropriate – to ensure that the employee can work. However, the employer does not need to “alter the essence of the contract of employment”. Employers should be required to offer their employees variable work schedules, lighten work loads or authorize shift transfers if these steps can be taken to accommodate the needs of disabled employees.

The Court noted that if an employee’s illness means that “the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test” and will not be required to keep the employee any longer.

The Supreme Court’s decision in this case is not strikingly different from existing case law dealing with disabled employees. Employers have never been required to provide that it is “impossible” to accommodate a disabled employee. Employers should not be required to create entirely new positions or put up with inappropriate levels of chronic absenteeism. Although this decision is another victory for employers, it was a unanimous decision of the Supreme Court of Canada which did not fundamentally change the law.

The one concern that employees may have however, is the absence of genuine empathy in the decision in reviewing the case history. Where Supreme Court of Canada decisions in the past have focused on “vulnerable employees” and the sheer gap in bargaining power between employees and employers, this Supreme Court of Canada decision is most concerned with employer needs to carry on business efficiently and productively.

Perhaps it is too early to assess the impact of this type of thinking on other factual scenarios, but this decision is one of a number of significant decisions issued by the Supreme Court in 2008. All of the decisions sided with employers. Looking at the language used in Hydro-Quebec and the results of the other decisions, employees in Canada certainly have cause to worry about what other decisions might be coming down the pipeline.

Having a poorly trained or insensitive officer on the front lines in an assault or harassment situation does not meet a reasonable police standard. But in an employment context, it can also give rise to legal liability and damage awards.

In a recent case involving Nipissing University, a professor was awarded $9,950 by the Ontario Human Rights Tribunal when the University was found to have been less than fully diligent in pursuing a harassment complaint.

The professor, who was seven months pregnant at the time, received an anonymous, sexually offensive and threatening email, purporting to be from one of her students. The email was traceable to one of the University’s library computers though the sender was never found. The University had freely available computers in its library with no log in ID required and no surveillance in many of the computer areas.

The University was found to have taken the complaint seriously and to have made some initial efforts to investigate. However, when the professor went to meet with campus security to discuss the matter, she was told “if it makes you feel any better, this isn’t the worst case I’ve seen.” Though perhaps intended by the officer as an effort to console her, the words had the effect of belittling her and leaving her feeling that campus security was not about to take this matter seriously. Due to the content of the email, she was concerned for her safety for the safety of her unborn child.

Although the Tribunal found that the University fulfilled many of its obligations including its general duty to provide a safe work environment and to take this kind of complaint seriously, the University was held to have “failed to remain diligent in pursuit of the matter.” Its policies and procedures for dealing with matters of sexual harassment were found to have been “inadequate to deal with the offensive and threatening email.”

While this is not one of the largest monetary awards that the Tribunal has issued, it is recognition by the Tribunal that employers have a wide ranging obligation to protect their employees from sexual harassment and assault. This includes the requirement to have proper procedures and processes in place for investigating and addressing complaints. Employers must use properly trained officers who are knowledgeable and sensitive and know how to respond to harassment, threats or to an assault. Most significantly, failure to meet these standards may be a breach of the Ontario Human Rights Code and can give rise to awards for damages.

After the incident at York University and the Nipissing University decision, employers should redouble their efforts to ensure that they have proper policies and procedures in place to prevent sexual harassment and assault and to address complaints appropriately. Most importantly, they must ensure that they have properly trained staff to implement the procedures and policies.

The plaintiffs were alleging that Wal-Mart’s policy of giving local supervisors discretion over employment matters resulted in a disproportionate negative effect on women who were promoted less frequently than men. Wal-Mart maintained that it had a policy in place banning gender discrimination. It also maintained that its policy of giving supervisors discretion was gender neutral. However, as the minority opinion pointed out, women fill 70% of the hourly jobs in Wal-Mart’s stores but make up only 33% of management employees. The plaintiffs also demonstrated that women are paid less than men in every region of the country in similar positions and that Walmart’s statistics were less favourable than other retailers.

Though the plaintiffs could not point to a specific policy directive that would violate anti-discrimination legislation or a specific person or group responsible for creating the discriminatory results, they were able to show that there was evidence of significant gender discrimination, across the country and it was not being addressed.

The Supreme Court majority rejected these arguments. It was of the view that the plaintiffs were seeking to “sue about millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why I was disfavoured.” Politically, the voice of the Court majority is heard most clearly in its general assumptions about gender issues. As Justice Scalia writes, “…left to their own devices most managers in any corporation – and surely most managers in a corporation that forbids sex discrimination – would select sex-neutral, performance based criteria for hiring and promotion that produce no actionable disparity at all.” In other words, most of the male managers, who make up 70% of management, are not likely to discriminate in making promotion decisions about others even though the process by which they have been promoted may have been flawed and even discriminatory.

With an entirely different political and philosophical view, the minority naturally saw this issue differently. As Justice Ginsburg writes, “Managers, like all humankind, may be prey to biases of which they are unaware. The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.” The minority would have permitted the case to move forward as a class action with sufficient commonality found in the issue of whether Wal-Mart’s pay and promotions policies result in unlawful discrimination.

As a result of this decision, litigants alleging discrimination will need to narrow their class definition to be able to rely on a specific policy or decision that affects all of the members of that class. This may well make it extremely difficult for large groups of employees to advance cases of systemic discrimination.

The Canadian legal landscape has a statutory and common law regime that makes Canadian employment law completely different from U.S. law. Although there have been changes to Human Rights legislation across Canada that now permit lawsuits to address discrimination in some jurisdictions instead of complaints with human rights tribunals, we have not yet seen a move to class action discrimination cases of this type.

If this type of case does it make it to the Supreme Court of Canada, it is likely that the decision will be as politically acrimonious among the Court’s members as it was in the U.S., particularly if the current Prime Minister further politicizes the Court by selecting nominees on the basis of ideology rather than competence as the U.S. has done for so many years.

Linda Fraser had worked for UBS for more than 20 years.  She became ill after a holiday and was off work for six months on short term disability leave.  She tried to return to work but was unable to do so due to her illness, which had become more severe.  She went off again on short term disability leave for another six months.  After her second leave, Ms Fraser was off for a two year period on long term disability leave.

Most LTD policies change after two years.  For the first two years, Ms Fraser was required to show that she could not perform the duties of her employment, meaning the specific job that she had with UBS.  After two years, she was required to show that she could not perform the duties of any gainful occupation.  The insurer cut Ms Fraser off benefits when the definition changed and Ms Fraser sued the insurer to challenge that decision.  The lawsuit was totally separate from her wrongful dismissal case.

From UBS’ perspective, Ms Fraser’s disability coverage ended even though she was suing the insurer.  She was off work and no longer in receipt of benefits for a period of five months.  She did not keep UBS informed about her status.  After five months, UBS wrote to Ms Fraser and stated that her employment was being terminated.  It paid her out 8 weeks’ notice pay and 22 weeks’ severance pay under the Ontario Employment Standards Act and continued her extended health benefits for three more months.  Ms Fraser did not accept this decision and sued for wrongful dismissal.

At trial Justice Wein of the Ontario Superior Court reviewed the law of “frustration” and concluded that it applied in this case.  Ms Fraser was found to be “permanently disabled.”  The Court held that she is “totally disabled and her disability is permanent such that she will never be able to work again.”  As a result, the employment contract had ended and UBS was not required to provide any further payments.  The wrongful dismissal lawsuit was dismissed.

For employees in Ontario, the case is a reminder that employees have an obligation to keep their employers updated as to their status when they are off on a sick leave.  If disability benefits are cut off, they must provide information to their employers about their proposed actions.  If it becomes clear that the employee will not be able to return to work again, the employer may be able to conclude that the employment relationship has ended.  This will not necessarily lead to a viable wrongful dismissal lawsuit.

For employers, this type of decision is rare.  If the employee can show that he or she simply required more time to recover and kept the employer informed, the employer will not necessarily be able to rely on “frustration.”  The situation may also be different where the employee continues to receive LTD benefits.  Employers looking to rely on “frustration” will need to be reasonably sure that the employee will not be able to return to work for the foreseeable future.

I picked up Jan Wong’s latest book Out of the Blue out of professional interest.  As an employment lawyer, I had heard that the book was an interesting assessment of Ms Wong’s fight with the Globe and Mail, her former employer.

Although the dispute with The Globe and Mail plays a significant role, this memoir style offering is much more concerned with Ms Wong’s battle with depression and her struggle to overcome it.

It is a very intimate, personal look at a person struggling to deal with mental illness.  Ms Wong spends of great deal of time dealing with the effect that her depression had on her relationship with her family members, her interactions with family and friends and her own very personal ways of trying to overcome these challenges.

Early in the book, Ms Wong describes the events that she believes triggered her depression.  A well known, accomplished columnist for many years, she wrote a column analyzing the Dawson College shooting in Montreal, Quebec in September 2006.  The column drew a connection between the fact that the only three campus shootings in Canada had been committed by immigrants in Quebec and that the three killers had been marginalized by a society that values pure laine Quebec stock.

As if to partially substantiate her claims, Ms Wong was flooded with angry hate mail, much of it in French. She received mail that attacked her ethnicity, her gender, and her appearance.   She was subjected to outrageous, vulgar email attacks and, ultimately, a death threat.  She was also attacked by mainstream media, including major Quebec newspapers.  The Globe and Mail itself printed numerous articles responding harshly to Ms Wong’s column and there was even a call in the Canadian Parliament for her to “apologize” to the people of Quebec.  Things became worse as caricatures of her were drawn in Quebec newspapers, her father’s restaurant was boycotted and the Globe and Mail eventually printed a column indicating that Ms Wong had erred.

As a result of these incidents and Ms Wong’s feeling that the Globe and Mail had abandoned her, she descended into a medically diagnosed depression.  Much of the book deals with her attempts to treat, self-analyze and overcome her depression. She describes in detail her medical appointments, her trips to her psychiatrist, the types of medication she was prescribed and the ongoing interaction she was having with the Globe’s benefits administrator, Manulife Financial, over the assessment of her disability claim.

Ms Wong relies on the writings of various authors, poets, researchers and others to paint a picture of a much understood illness, from a very personal vantage point.  Chunks of the book are repetitive and tedious.  But she sets out to explain how a person can be “depressed” and not necessarily exhibit common symptoms of other illnesses.  Her aim is to de-stigmatize this type of illness and to urge employers and insurers to treat people who are suffering from depression more compassionately.

Along the way, Ms Wong details her methods of trying to fight off her illness.  One suggested approach is to get away from it all and use the “geographic cure.”  In other words, Ms Wong sets off to travel to China, Scandinavia or New York City, partially as way of self-treating her depression.  She does mention that she was economically fortunate enough to be able to do that, which is not the case for many dismissed employees (like many of my clients) who are off from work with their monthly income benefits cancelled due to a dispute as to whether their illnesses are legitimate.  Another approach is medication and Ms Wong reviews a whole range of depression medication along with the effectiveness of each type, the side effects and other issues.

In the midst of all of this, and while being unable to work for the Globe and Mail (or perhaps in between spates of being unable to work), Ms Wong completed a book, Beijing Confidential, and scheduled a book tour.  She writes about the fact that the Manulife investigators made videos of her smiling during her book tour to show that she was not really depressed.  Sure, the fact that she was caught on camera smiling does not prove that she was depressed.  But for many employers, cynicism would be a natural reaction to a situation in which a star employee was too sick to work but was, instead, crossing the country promoting her new book.  Ms Wong tries to explain this, but even as employee-side counsel, I had a hard time finding it to be convincing.  While I don’t doubt her sincerity or the fact that she was genuinely depressed, I find it harder to accept that she could write a book but could not write anything for the Globe and Mail.

Perhaps as in the case with many other dismissed, depressed employees, Ms Wong really begins to emerge from her depression when her case with the Globe and Mail is settled and she is paid a large amount of money.  She does not detail the amount but she does detail the fact that she fought very hard to ensure that she did not have to sign a general confidentiality agreement and that she could write about her battle with her illness, with the Globe and Mail and with Manulife, which is probably portrayed as the most roguish of characters in the book.  She is correct in noting that most employees are not in a strong enough position to be able to refuse this demand and are usually forced into silence when settling their disputes with their former employers.

People who have battled with depression and particularly in an employment or job loss context will find much of this book instructive, comforting and even reassuring.  Ms Wong’s description of the role of the benefits administrator and her battle to prove her entitlement to receive disability benefits in the face of rejected claims is realistic and is a battle that is commonly fought.

On the employment law side, the book has much less to offer.  For one thing, Ms Wong’s battle with The Globe and Mail occurs in a unionized workplace.   This means that Ms Wong was in a position to demand reinstatement or damages that are on a different scale than most other dismissed, non-unionized employees in Canada.  She had the benefit of having union counsel fight for this without any cost to her.  The vast majority of dismissed employees in Canada face a more difficult and costly legal battle when they are wrongfully dismissed.  Most dismissed employees are also much less likely to be able to use the “geographic cure” when they become depressed and travel great distances to cure themselves (or at least, to take their minds off their troubles).  Some readers might not relate to these parts of the book even while they find other parts of the book to be personally relevant and emotionally helpful.

Two black men, Christopher Johnson and Nathaniel Claybrooks, brought a law suit against ABC.  They claimed that ABC was discriminating against black people by only selecting white contestants as finalists on The Bachelor and The Bachelorette.  The two shows, combined, have run through 24 seasons.  Throughout that time period, none of the finalists have been black – or any other non-white minority.

The plaintiffs alleged discrimination in the casting process and claimed that ABC was specifically excluding non-white candidates.  They argued that this type of racial segregation in the media “perpetuates racial stereotypes and denies persons of color opportunities in the entertainment industry.”  ABC responded by arguing that the “creative process” in producing any television program is fully protected by the First Amendment and that this also applies to the casting process.

The court sided with ABC and dismissed the lawsuit after hearing a motion to strike out the case.  Here is the court’s conclusion:

“The plaintiffs’ goals are laudable: they seek to support the social acceptance of interracial relationships, to eradicate outdated racial taboos, and to encourage television networks not to perpetuate outdated racial stereotypes.  Nevertheless, the First Amendment prevents the plaintiffs from effectuating these goals by forcing the defendants to employ race-neutral criteria in their casting decisions in order to “showcase” a more progressive message.”

On one level, the court rightly held there should be a reluctance, on the part of any court, to interfere in what could be classified as creative casting decisions.  It would be hard to argue successfully that a broadcaster should have been forced to include more white people in The Jefferson’s or The Cosby Show or more black gangsters in The Sopranos.  It seems quite reasonable for courts to steer clear from scrutinizing the casting and producing processes for most types of entertainment that are content oriented.  To do so would indeed be to limit freedom of expression in a very serious way.

On the other hand, there must be a difference between casting decisions that really are part of the “creative process” as opposed to casting decisions that apply to reality shows, news broadcasts, sports programs and other types of shows.  If, for example, ABC had a policy of only hiring white news broadcasters, would that not be considered discriminatory?  Would that really be considered part of the “creative process” and thereby excluded from judicial scrutiny?  Could American Idol implement a policy of refusing to allow black contestants, as part of the “creative process?”  Perhaps in the U.S., the First Amendment argument relating to freedom of expression would still win out in these cases, though, as a Canadian lawyer, I am not about to draw that conclusion.

But in Canada, freedom of expression does not simply trump equality rights.  The Canadian Charter contains balancing provisions which provide the courts with the jurisdiction to consider competing rights and look at ways of providing meaningful content to both sets of rights.  If this case had been brought in Canada, the framing of it may have been quite different.  Instead of being presented as a case about the discriminatory messaging that the show was allegedly promoting, the case could have been characterized in Canada as one about equality of opportunity for potential contestants and racial discrimination.

It still may not be entirely clear, even in Canada that courts can or should interfere in the creative process of developing television shows or movies and force media producers to produce all, or even some of their content in a non-discriminatory way.  However, there is probably a reasonable argument in Canada, that the mere selection of candidates for a reality program should be conducted in a non-discriminatory fashion unless it can be demonstrated that there is a legally supportable basis for doing otherwise.   Whether or not that was the case with a show like The Bachelor or The Bachelorette is probably something that, in Canada, would have been tested at a full trial or a human rights tribunal hearing rather than being dismissed outright on a preliminary basis.

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.

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.

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.

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.