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plaintiffs’ goals are laudable: they seek to support the social acceptance of interracial relationships, to eradicate outdated racial taboos, and to encourage television networks not to perpetuate outdated racial stereotypes.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.

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.

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.”

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.

I reviewed the Federal Court decision of AG Canada v. Johnstone in this blog.  The Federal Court of Appeal (FCA) has now upheld that decision and provided a review of the law relating to family status and child care responsibilities.  This is the decision I would like to address, since the other decision is simply a further example of an application of the Johnstone decision by the FCA.

This article is not a recap of the facts, some of which are described in the previous blog article.  Rather this blog sets out the key rulings of the FCA.  The full text of the decision can be found here.

The Court made a number of key determinations.  First of all, it defined childcare obligations that are included under “family status”:

When is Family Status Engaged?

“The child care obligations that are contemplated under family status should be those that have immutable or constructively immutable characteristics, such as those that form an integral component of the legal relationship between a parent and a child.  As a result, the childcare obligations at issue are those which a parent cannot neglect without engaging his or her legal liability.”

The FCA expressly noted that voluntary obligations such as “family activities…extracurricular sports events, etc.,…” are not included.  In other words, according to the FCA, if a person faces “legal obligations” as opposed to “personal choices,” that is when protection on the grounds of family status will be engaged.    This may well be an overly restrictive definition.  A person may feel compelled to take care of a child (or a parent) in certain circumstances where the “legal requirement” is murky.  This contrasts with the manner in which other types of discrimination are engaged, according to the Supreme Court.  For example, to request accommodation of a religious practice, a person is not required to prove that he or she is obligated to perform the particular practice, only that the religious practice is being observed in good faith.  This is the decision of the Supreme Court of Canada in Amselem.

The FCA has defined included childcare obligations in a much narrower fashion for purposes of family status than some of the other rights that are protected, including religion and gender.  Nevertheless, it has likely done so in an effort to restrict the number and types of claims that might be made if family status were to be defined more broadly.

Steps in Claiming Family Status Discrimination

In its decision, the FCA then proceeds to review the specific requirements for making a claim of family status accommodation.

The person must show that the issue is one of “substance and the complainant must have tried to reconcile family obligations with work obligations.”  The employee must be able to show that she or he has “sought out reasonable alternative childcare arrangements unsuccessfully, and remains unable to fulfill her or his parental obligations.”  That is the first hurdle – demonstrating “prima facie” discrimination.

The FCA then sets out a test to be applied to determine if there has been discrimination.  It involves four factors:

a.  The child must be under the care and supervision of the parent;  (In most cases, this will be automatically proven by the very status of the parents as parents, according to the court);

b.  The childcare obligation engages legal responsibility as opposed to personal choice;  This means that the age of the child is taken into account as well as the type of activity at issue.  As the court mentioned – going on a class trip would not be covered.  Being at home to look after a toddler would.

c.  The parent has made reasonable efforts to meet those obligations but has not been able to come up with an alternative solution;  The complainant must show that neither parent can meet their enforceable obligations while working and that there is no accessible solution.  In other words, the complainant must demonstrate a “bona fide childcare problem.”

d.  The workplace rule that is being questioned interferes with the parent’s obligations in a way that is more than “trivial or insubstantial.”

Johnstone Conclusion

In the Johnstone case, the FCA went on to conclude that each of these factors had been demonstrated and that discrimination on the basis of child care status had been demonstrated.

Most of the orders of the Tribunal were upheld, including a significant award of $15,000 for “pain and suffering.”

Conclusion

This is the type of case that the Supreme Court of Canada may well choose to hear if leave to appeal is sought.  That is not to say that the Supreme Court will substantially alter the decision.  That seems unlikely.  However, the Supreme Court may well determine that it would be appropriate for it to set out its own test for reviewing and assessing family status discrimination cases.  As well, it may view it as an opportunity to review the definition adopted by the FCA and consider whether access to family status protection should be broader.

Alternatively, the Supreme Court may simply choose not to grant leave (i.e. not to hear the case), which would give this FCA decision even greater weight as a Canadian legal precedent.

For now, and quite possibly, for good, it is clear that “family status” under Canadian human rights law includes child care obligations.  Employers are required to take requests for accommodation very seriously and to make significant efforts to work with employees who require accommodations to deal with childcare challenges.

Katie Hamilton worked as a cashier and cook in Crepe It Up, a small restaurant owned and operated by Chris Quy Lee on Church Street in Toronto. She worked there for about six months. She quit work and filed a complaint against Mr. Lee at the Ontario Human Rights Tribunal, alleging that she had been forced to endure a poisoned work environment.  Ms Hamilton’s claim went to a two day tribunal hearing in May 2012. At the hearing the adjudicator heard evidence of various comments made by Mr. Lee, some of which were only partially contested. The adjudicator made a number of findings of inappropriate comments on the part of Mr. Lee.

The findings included:

• Lee had referred to a Black employee as being on “Jamaican time”
• He had made a comment about anal sex to Ms Hamilton that he knew or ought to have known was unwelcome;
• He had sent an allegedly inappropriate text to Ms Hamilton’s boyfriend when Ms Hamilton had not phoned in to Mr. Lee. This was the day after Halloween and Ms Hamilton had dressed up as Little Red Riding Hood. The adjudicator found that the text said “where is she, did you eat her?” The adjudicator found that this was an unwelcome comment containing sexual innuendo;
• Staff members were asked to wear buttons that said “A kiss gets you 14% off.” The adjudicator held that Mr. Lee knew or should have known that this was would be an invitation to kiss staff.

Ultimately, the adjudicator held that Ms Hamilton had experienced a poisoned work environment, contrary to section 5(1) of the Ontario Human Rights Code. Ms Hamilton was awarded $3,000 as compensation for injury to dignity, feelings and self-respect. Mr. Lee brought a judicial review application to the Ontario Divisional Court.

The Divisional Court overturned the decision and sent it back to the Tribunal to be heard by a different adjudicator. The Divisional Court decision is somewhat puzzling.

Essentially, the Divisional Court rejected two of the factual findings and conclusions of the adjudicator.

With respect to one set of findings, it questioned the process by which the adjudicator had concluded that the comments about anal sex had been made. As a result, it concluded that the adjudicator’s “finding that the allegation was proved is consequently unreasonable.”

The Divisional Court also took issue with the post-Halloween text. It held that Ms Hamilton’s boyfriend would not have shown the allegedly offensive text to her; that it was not “workplace-related” and Ms Hamilton did not complain about it at the time. The Court concluded that “it is difficult to see how this conduct, even if it is discriminatory, could have contributed to the poisoning of the work environment.”

Accordingly, the Divisional Court found that two of the findings by the adjudicator were “unreasonable” and the “finding of liability based on a poisoned work environment must be set aside.”

What has really occurred here? The Divisional Court, without actually hearing the witnesses at a hearing, has substituted its views for those of the adjudicator. Perhaps, the court did not really believe that these comments, even if all true, were serious enough to warrant a finding of a poisoned work atmosphere. That might have been the court’s prerogative, as a matter of law, but that is not what the court chose to say. Instead, the court held that the adjudicator’s findings were “unreasonable.” While the court may not have liked the adjudicator’s decision, it seems like quite a stretch to call the adjudicator’s conclusions “unreasonable.”

Perhaps the court’s view was coloured by the fact that Mr. Lee is an openly gay man. It may be that the judges of the court had concluded that the comments were not as threatening or offensive when made by a gay man to a female employee as they would have been from a straight boss who was seeking sexual favours from a complainant.

In any case, the divisional court applied the 2013 decision of the Ontario Court of Appeal in General Motors of Canada v. Johnson (2013) ONCA 52. Here is the key passage, picked up by the court:

“[E]xcept 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.”

Following the Johnson decision, the Crépe It Up v. Hamilton decision is a further example of a judicial pendulum that has swung back somewhat in favour of employers. Ontario courts have been making it more difficult for employees to establish a “poisoned work atmosphere” in cases of isolated comments or incidents that are viewed by the courts as less serious. This is a marked departure from some early decisions of the Ontario Court of Appeal in a sexual harassment context, such as Bannister v. General Motors [1998] O.J. No. 3402, in which the court took a much stricter view of certain types of unwelcome comments.

In the present case, the matter is not yet concluded. Crépe It Up may still find itself in hot water at the conclusion of another hearing as long as the reasons of a new adjudicator are not held to be half-baked. The adjudicator will need to sift through the new evidence more carefully and apply the divisional court’s definition of a “poisoned work environment” to all of the evidence that it hears.

Of course, Ms Hamilton may prefer to try to take this case to the Ontario Court of Appeal. She would need to “seek leave” but the Court of Appeal may well agree to hear the case. She could certainly argue that there seems to be some very questionable legal analysis by the Divisional Court in this decision.

This could all make for very interesting law. However, another possibility is that Ms Hamilton might simply choose to drop the matter altogether. Given the amount of money at stake ($3,000 plus legal fees awarded to Mr. Lee of approximately $2,000), this might be the most financially sound decision.

We’ll watch for any developments.

1.  Ghomeshi and the CBC

This case is not completely over since there is a still a potential labour arbitration pending.  Moreover, the case was not adjudicated.  It was settled.  However, it created a great deal of discussion in the employment law world and for that reason it is worth including.  What are the key points to think about?

A.  Unionized employees will have an incredibly difficult time launching wrongful dismissal or other employment law related cases in the court system.  The proper venue for these cases is labour arbitration hearings.  For the most part, dismissed unionized employees must file a grievance.

B.  Egregious personal conduct, even off-hours conduct, can be cause for dismissal, particularly if at least some of it spills over into the workplace or into workplace related events.  Employers will need to pay careful attention to allegations of improper personal conduct and should address and deal with these matters before they become unmanageable.

C.  Taking an extremely aggressive approach to employment law litigation is simply not always the best strategy for plaintiffs.

There may still be more on this in 2015 as Canadians follow Ghomeshi’s criminal proceedings and his labour arbitration case.  The high profile nature of the dispute warrants its inclusion on a list of interesting developments.

2.  Boucher v. Wal-mart

The Ontario Court of Appeal awarded more than $400,000 to an employee who had been subjected to humiliating treatment in the workplace.  It is still rare in Canada to see these types of awards.  Although the amount of the trial judgment was reduced considerably, this case is still a significant weapon in the arsenal of decisions upon which abused employees and their counsel will rely.  It remains to be seen whether large scale punitive and aggravated damages become more commonplace in Canada.  Employees facing humiliating workplace conduct and bullying bosses have additional legal options to consider in light of this decision.

3.  AG Canada v. Johnstone

In this key case, the Federal Court of Appeal looked at the issue of “family status” under human rights legislation and concluded that family status includes childcare responsibilities and similar family care obligations.  This means that an employee with childcare responsibilities may, in certain circumstances, be entitled to protection and accommodation under applicable human rights legislation.  The Court set out a number of criteria that must be met and tried to make it clear that not every employee with some child care responsibilities will be able to request accommodation.  However, many employers are trying to deal with the issues pro-actively and are finding ways to accommodate the needs of employees with child care and elderly care responsibilities.

4.  Jan Wong and the Globe and Mail

Although I originally discussed this in 2013, the adjudicator’s decision was upheld in 2014 and Jan Wong was left facing a significant award as well as an award of legal costs.  The case illustrates a few points:

A.  The difficulty of proceeding in any kind of dispute in a unionized workplace without the backing and support of the union;

B.  The seriousness of confidentiality provisions in a settlement.  Employees who sign confidentiality provisions in settlements with their former employers can expect to face repercussions if they breach these provisions.  In some cases, a breach can mean a requirement to pay back to the employer the full amount of the original settlement.

5.  Fulawka v. Bank of Nova Scotia (Originally 2012 Ontario CA)

The Bank of Nova Scotia reached a settlement of a class action lawsuit with a group of bank employees claiming entitlement to overtime pay.  This settlement means that as many as 16,000 employees of the Bank of Nova Scotia could be entitled to overtime pay for overtime hours worked during the time period 2000 to 2013.  The affected employees were required to submit their claims by October 2014.  The case is a significant illustration of the availability of class actions to deal with widespread policies of large employers that may affect many different employees.  It is also which has caused employers and employees to examine their overtime hours and overtime policies.  Just because an employee is paid a salary does not mean that the employee can be required to work uncompensated overtime hours.

2014 Blog Posts – Selected Highlights

As well as they the key cases and issues set out above, I have highlighted a few of my blog posts from the past year.  In case you missed any of these, you might find them interesting:

1.  Hollander v. Tiger Courier Inc. (Sask C.A.)

It was not considered wrongful dismissal where a package of marijuana was delivered to an employee at his workplace.    The employee claimed that he knew nothing about the pot and that it wasn’t his…Fascinating reading.

2.  Rhebergen v. Creston Veterinary Clinic (B.C.C.A.)

The B.C. Court of Appeal upheld a very onerous non-compete provision for a veterinarian.  The clause prohibited a vet from setting up a practice within 25 miles of her employer’s clinic, for a period of 3 years.  It included huge financial penalties that would become payable in the event of a breach.  Surprisingly, the B.C. Court of Appeal upheld this clause.

3.  Steps to Take When You Are Fired

In this blog post, I have set out some things to consider when facing a dismissal situation.

4.  Are Employment Contracts Negotiable?

This post deals with aspects of employment contracts that can and should be negotiated.

5.  Poisoned Work Environment?  Not in this Restaurant.

Discussion of a recent Ontario Human Rights Tribunal decision addressing allegations of a poisoned work environment.

For 2015, I will aim to put up one or two new posts a month and I hope to send out an email update quarterly, or so.

Wishing everyone a Happy New Year.