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

Three weeks ago, I had a baby.  He's my second child, was a very reasonable 6 lbs 12 ozs and happily zipped out with no fanfare or complications.  I am now at home with plenty of down time while I feed and wish I was sleeping, and while keeping watch over my 2 year old to make sure she doesn't poke the baby in the eye or hug him too hard. 

Maternity Leave In Other Countries

All this "free time" has made me rather grateful that I live in Canada - great health care system and a great maternity leave laws.  I work at a global law firm and out of curiousity, over the last few years have spoken with women at our offices in other countries about their maternity leaves.  In some of the Latin American countries, mat leave is 5 years - but that is because it is assumed you will not continue working while being a mom with a pre-schooler (likely a serious dent in the partnership track either way). 

On the other hand, in the US, 3 months with plenty of Blackberry action is the norm.  It certainly makes it much easier to stay on top of files and avoid the time-consuming transition memos before you go on leave, but going back after 3 months feels too quick for a Canadian-bred lawyer like me.

According to Wikipedia (I'm on a mat leave, so cut me some slack for the lazy research!), the length of mat leave and top ups vary greatly across the globe. The length of leaves ranges from 30 days at a 67% wage supplement in Tunesia to 16 months at about 82% of salary in Sweden.  By comparison, in Canada, we have a year at 55% of wages, more if you are in Quebec. 

Maternity Leave in Ontario

As an update for those who have not yet had kids, or who had kids a couple of decades ago, the Ontario Employment Standards Act entitles a pregnant employee to 17 weeks of Pregnancy Leave (sections 46-47) and another 35 weeks of Parental Leave (or 37 weeks if no Pregnancy Leave was taken) (sections 48-49). 

The federal Employment Insurance Act regime provides up to 15 weeks of EI Maternity Benefits and up to 35 weeks of Parental Benefits.  The Parental Benefits can be shared with your partner, allowing both parents to spend time at home. 

For those curious about the current EI benefit amounts, the basic benefit rate is 55% of your average insured earnings, up to a yearly maximum insurable amount of $43,200. This means you can receive a maximum payment of $457 per week.  After taxes, you'll get about $1,500.  Yes, this may be a dip in pay for some, but its better than $0, and for the vast majority of Canadians, it makes all the difference whether a parent can afford to stay home. 

Some workplaces offer a "top-up" on the EI benefit so that the employee on leave maintains a full or nearly full salary for a certain number of months of the leave.  While any earnings (such as severance packages or part-time wages) are clawed back dollar for dollar with other types of EI benefits, employees are entitled to keep any amounts paid during the maternity and parental leave, provided it does not exceed the employee's regular salary.

I often think I was born at the right time and place in history - as a woman, I could go to university; as the daughter of working class parents, I could afford a good education through student loans; as a female lawyer at the beginning of the 21st century, I work in a law firm with equal access to as interesting files as my male colleagues; and finally, as a Canadian, I can still have a family while trying to do the above. 

Of course, it's not all rosy, and there are still many hurdles for women to overcome (too many women feel they must leave high profile jobs as they enter parenthood, law firm partnership remains elusive to many women, and statistically, we still have many of the home front responsibilities while taking on increasingly demanding roles in the public sphere).  Perhaps it's my sleep deprived state of being a new parent, but I still conclude that we've come a long way and wouldn't trade my place with June Cleaver anytime soon.

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It's been a year since Michael Bryant had his car accident and altercation that led to the death of a bike courier.  If he applied for a job at your company, would you hire him, given the publicity and nature of the fatal accident?

The Rising Star of Bryant?

The September issue of the magazine, Toronto Life, has a very interesting cover article on our former provincial Attorney General.  For any readers outside of Ontario, Bryant was a rising political star, becoming the province's youngest Attorney General at only 37 years old. After leaving politics, he headed up Invest Toronto. 

As a result of the accident on August 31, 2009, Bryant was charged with criminal negligence causing death and dangerous driving causing death.  On May 25, 2010, all charges were dropped by the Crown because there was "no reasonable prospect of conviction".

I say "was" a rising star, but have no doubt I will eventually be proven wrong on that.  His political return seems inevitable, at least according to the Toronto Life article. 

Innocent Until Proven Guilty?

For me, what has been fascinating about the entire ordeal is whether Bryant's political career can survive such a terrible tragedy.  Given that the charges were dropped, the old adage of innocent until proven guilty is particularly important - he is officially innocent of any wrongdoing.  So can he and/or should he be punished - formally or informally - for the incident?

All is fair game in politics, and the public can respond in whatever raw fashion it wants.

Discrimination Based on Record of Offences

An employer, on the other hand, cannot respond in its own raw fashion.  If Bryant did apply at your company, you could not deny him a position on the basis of a criminal record, because he doesn't have one.  The charges were dropped, so there is no criminal conviction. 

Even had he been convicted, however, there are certain restrictions at law that would apply to both potential applicants and current employees.

The Ontario Human Rights Code prohibits discrimination on the grounds of "record of offences", which is defined as follows:

10(1)  "record of offences” means a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment;

So, had Bryant been convicted and been subsequently pardoned, it would have contravened the Code to deny him employment, even in part because of the record of offences.

As with all discrimination claims in the workplace, the employment decision at issue need not be based entirely on the ground of discrimination.  For example, you may have denied Bryant a job as head cashier in your bookstore because of several factors (lack of political fit, over-qualified, lack of specific experience, conservative haircut, etc), but if he could prove that at least part of the decision was based on your concerns with his record of offences (that is, had he been convicted and pardoned), he would have a successful discrimination claim. 

More difficult are the applicants that fall outside the specific grounds of discrimination in the Code (see section 5).  Can you refuse to hire a high profile person because of a perception of guilt (OJ Simpson comes to mind), or a reputation for raising public eyebrows (Mel Lastman, for example?)?

As long as you are not basing the hiring decision at least in part on a ground of discrimination (e.g. racial profiling or assumptions about certain religious or ethnic backgrounds), then the business decision can prevail.  Not every applicant will fit with your organization, and that is perfectly legitimate, provided the lack of fit is not in any way based on the Code's list of grounds for discrimination     

As for Bryant, he returned to private practice on Bay Street, but I suspect we haven't seen the last of his political ambitions. 

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