Employment & Human Rights Law In Canada : Canada Employment Human Rights Lawyer : Lisa Stam, Law Firm : Labour Law in Toronto, Ontario

I love stories like this:  17 year old Courtney Greer from Waterloo, Ontario, tries out for the boys' soccer team, makes the team on her own athletic ability and is then told she is not allowed to play in the league.  She then has the guts to publicly fight it and files a claim against the Ontario Federation of School Athletic Associations (OFSAA) at the Human Rights Tribunal.  This is teenage courage and bravery at its best.

Given the high likelihood of success at the Tribunal, last week the OFSAA changed its policy to allow girls to try out for the boys' team, even if there is a girls team available for the girls join. 

The executive director of the OFSAA was quoted in an article by Carolyn Alphonso at the Globe and Mail as saying:   “We were basically forced into this by the Human Rights Tribunal...We don’t think it’s a good thing, no, because what does it say about girls’ sport?”

Blainey (again)

I thought this issue was resolved back in 1986 in the Ontario Court of Appeal case of Blainey and Ontario Hockey Association, (1986), 26 D.L.R. (4th) 728, 54 O.R. (2d) 513, which held it is discrimination to prohibit a person from playing in a sports league on the basis of gender.  In that case, then 12 year old Justine Blainey fought to try out for the boys hockey team. 

At the time, the Human Rights Code contained section 19(2) which provided that "the right under section 1 to equal treatment with respect to services and facilities is not infringed where membership in an athletic organization or participation in an athletic activity is restricted to persons of the same sex." 

Thus, prior to Blainey, while a sports league could not discriminate on the basis of race or religion, for example, it could discriminate on the basis of gender. 

The Ontario Court of Appeal in Blainey explained as follows:

Thus, but for s. 19(2), Justine Blainey would have been entitled to the protection of the Human Rights Code and the benefit of the complaint and enforcement procedures therein provided. But s. 19(2) denies her that protection and benefit. It permits membership in an athletic organization or participation in an athletic activity to be denied solely on the basis of sex without regard to any other factors. Individuals who may in all respects be equal in terms of qualifications for membership in an athletic organization or participation in an athletic activity can be treated differently for no reason other than their sex. With respect to athletic activity in the province, the protection of the Human Rights Code is still available to all others who complain of discrimination on other grounds, such as race, colour and ethnic origin. Only sexual discrimination is permitted. This renders s. 19(2) clearly discriminatory.

The court concluded that section 19(2) was contrary to section 15(1) of the Canadian Charter of Rights and Freedoms, which says:

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In Canada, the federal Charter trumps provincial legislation, and so, section 19(2) of the Ontario Human Rights Code was held to be unconstitutional and of no force and effect.  In other words, since 1986, it has been illegal to prohibit a girl from trying out for a sports team.

Undermines Girls' Sports?

One of the arguments of the OFSAA was that it may undermine the girls' sports programs.  This was also cited as a concern after Blainey, that we would see a flood of applicants to the boys' sports leagues, while the girls' leagues languished with the weak athletes who couldn't cut the "real" team. 

In fact the opposite has occurred:  girl's and women's sports leagues have sprouted up all over the place in Canada.  Hockey, in particular, has increased, leading to all kinds of issues over ice time in our limited number of rinks.  While we must surely have the most ice rinks per capita in the world, it is never enough.

Combine hockey issues & human rights, and you have a serious national crisis in Canada.

In Toronto, for example, it was news throughout the winter that the huge increase of girls playing hockey has actually created challenges with ice time in the various hockey rinks around the city.  The issue of gender equal ice time hit the front line news several times over the winter, with the City of Toronto taking over one of the rinks until it agreed to distribute time more equally. 

Let Skills & Ability Decide

While I am quite sympathetic to concerns about those boys who are displaced because of a more athletic girl (what team do those boys get to play on?), and while I very much value the collegiality and inspiration girls and women can get from playing on a sports team together, I prefer an approach where skill and ability is the deciding factor, not gender. 

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Earlier this week, I received an email from the owner of a small company who was frustrated at all of the resources available for employees and the lack of resources for employers.  She pointed out that the various human rights commissions across Canada will often offer services to complainants, and that in general, the system felt biased towards employees.

I agree that once a matter gets to a hearing, our arbitrators and decision makers acknowledge the power imbalance that often exists between an employer and an employee, particularly if the employee is unrepresented.  This is the case throughout the law, and represents more of an attempt to ensure fair outcomes than any intentional bias towards one side.

Having said that, I thought it would be helpful to point out some useful (free) resources that do exist for employers:

(a) Ontario Employment Standards

• Ontario Ministry of Labour Employment Standards Branch hotline - 416-326-7160.  Put this in your speed-dial - they are very knowledgeable about the basic provisions of the Employment Standards Act and are a great place to start with many employment law questions.
• Ontario Ministry of Labour website contains an information guideline for employers, and some useful tools, including a public holiday pay calculator and a new severance payment tool.
• The Ontario Employment Standards Act is also online.

(b) Federal Employment Law Information

• If your company is federally regulated (e.g. banks, airlines, etc), Human Resources and Skills Development Canada (HRSDC) has an employment standards website.
• HRSDC also provides information about employment insurance (EI), information about maternity and parental benefits (which is a type of EI), and Records of Employments (ROE).  This information applies whether you are a provincially or federally governed business.

(c)  Health & Safety 

• For workplace insurance issues, the Workplace Safety & Insurance Board website is a place to start.
• A great resource for employers is the Employer's Advocacy Council.  The EAC is a non-profit organization that is a leading source of information, training and advocacy on workplace insurance, health and safety.
• The Canadian Centre for Occupational Health and Safety (CCOHS) and the Occupational Health and Safety Council of Ontario (OHSCO) are both useful sources about workplace workplace illnesses and injuries.  The OHSCO, for example, has developed and just posted a guide on complying with Bill 168, the new Workplace Violence and Harassment legislation.

 (d)  Human Rights

• Although the Ontario Human Rights Commission (OHRC) no longer has carriage of files at the Human Rights Tribunal, the OHRC has produced a number of helpful publications over the years, including guides about hiring employees, developing compliant workplace policies, drug testing, employment-related medical information, and an extensive online publication called "Human Rights at Work".  These guidelines are not binding on the Tribunal, in court or at an arbitration, but are useful minimum standards to use as a defence should an employee claim discrimination in the workplace.
• The Human Rights Tribunal has a number of online publications, including a Respondent's Guide (the one most used by employers) and a Guide to Preparing for a Hearing.
• Employees can access the Human Rights Legal Support Centre, the new organization established last year when the Human Rights Tribunal started accepting cases directly from complainants, rather than having to go through the OHRC as a gatekeeper.  The Centre is for "individuals throughout Ontario who believe they have experienced discrimination", not for employers. 
• The Ontario Human Rights Code is online.

• Practical Tip:  The Tribunal is now no different than any other legal proceeding, and given the assistance complainants (i.e. employees) can get through the Human Rights Legal Support Centre, I would caution an employer from trying to go it alone at the tribunal.  Whether you retain a lawyer to help with just the response at the beginning, or with the entire process, including the legal arguments at the hearing, there is no way to avoid the fact that this is an increasingly complicated a legal forum.

The above list is just a start and I know there are many, many more resources out there.  If you have a recommendation for a good employer advocacy organization, let me know and I'd be happy to post your link here as a resource to employers. 

Resources readers have since suggested to me:

• The Office of the Employer Adviser (OEA) is an independent agency of the Ministry of Labour that helps Ontario employers manage their workplace safety and insurance costs.  They provide advice to any size employer, but represent primarily employers who employ fewer than 100 employees.

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This week, Christine Thomlinson wrote a great blog post on the (potential) come-back of Tiger Woods.  She draws a parallel between Tiger's return to golf and employees returning to work after a difficult period in their life, whether criminal, personal, or otherwise.  As she points out, there are a number of pro-active steps an employer can take to ease the transition.

I would suggest that Christine's comments also extend to other types of absences, such as a maternity or parental leave, a sick leave or workplace sabbatical.  When an employee has been absent from the workplace for a period of time - even if for very happy reasons such as becoming a new parent - the workplace will continue to chug along without the absent employee. 

What  are an employer's obligations and an employee's entitlements during an extended leave?  For American employers with a Canadian subsidiary, this area is often a completely bizarre area of Canadian employment law.

Part XIV of the Employment Standards Act (ESA) provides for the following types of statutory leaves:

• Pregnancy Leave
• Parental Leave
• Family Medical Leave
• Emergency Leave, and
• Reservist Leave.

While an employer can offer other types of leaves (e.g. educational leave, etc), it is the above statutory leaves that come with specific legal entitlements. 

For example, when an employee finishes his or her statutory leave, the ESA requires the employer to "reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not."

The employer must also reinstate the employee at a wage rate that is equal to the greater of (a) the rate the employee most recently earned with the employer or (b) the rate the employee would be earning had she or he worked throughout the leave.

A further example involves benefit plans.  An employee on a statutory leave is entitled to continue to participate in the following benefit plans:  pension plans, life insurance plans, accidental death plans, extended health plans, and dental plans.  Again, while an employer can chose to continue all benefits in which the employee is enrolled prior to the leave, it is only the statutory enumerated benefit plans that must be continued during the leave. 

A caveat to this is if the benefit premiums are normally employee paid - in this case, the employee can give the employer written notice that he or she does not intend to pay the employee's contributions, in which case, the employer can cease the benefits for the duration of the leave.

In general, any entitlement based on length of employment must continue to accrue.  An entitlement based on hours worked, however, will generally amount to $0, since the employee will have worked 0 hours during the leave.

While the majority of leaves seem to go smoothly, there are always both legal, human resource and business issues to consider. 

The above outlines some of the legal issues.  Have you run across unique human resource or business issues in your workplace that were difficult to reconcile with the legal obligations? 

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