When Employees Fail to Engage in the Accommodation Process

Photo Credit - Alvaro Serrano

Photo Credit – Alvaro Serrano

Last week I wrote about the statutory framework of the family status accommodation requirements in Ontario.  The case that has moved this area of law along is Misetich v Value Village Stores (2016 HRTO 1229, “Misetich”), a case the Human Rights Tribunal of Ontario (HRTO) released this fall.


This case intersects with disability accommodation law and explores the difficult issue of competing human rights.  The HRTO reviewed the caselaw, including the Federal Court of Appeal’s Johnstone case, and clarified its test for accommodating family status requests in the workplace.

Background to the Misetich Case

In Misetich, the applicant was a part-time sales clerk working in the front of the Value Village Store, who then moved full-time to the more physically demanding production area in the back.  In January 2013, the employee developed an arm and hand injury and, after providing medical documentation regarding the injury, was offered accommodation by moving back to the front of the store.

Moving back to the front of the store meant returning to irregular hours that were often on evenings and weekends.  The back end production role had been Monday to Friday.

When presented with the option of disability accommodation by moving back to the front of the store, the employee requested specific shift times as accommodation on the basis of family status so that she could care for her 89 year old mother.

Accommodating Family Status

And so began the dispute between the employer and employee regarding the parameters of family status accommodation.  Over the next number of months, the employer requested medical documentation to establish that the employee was the primary caregiver, the parent is unable to safely perform the duties the daughter is required to do, that no one other than the daughter can perform those duties, and that the daughter has taken all reasonable steps to self-accommodate.

The employee was offended by this request and refused to provide any detail other than a one-liner doctor’s note that said she had to “take care of her mother”.  She instructed her doctor not to provide any confidential medical details regarding her mother to her employer.  The employer remained in the dark regarding the extent of family status accommodation required.

The HRTO Family Status Test

The information sought by the employer was essentially those requirements set out in the Johnston test for accommodation.  The adjudicator in the Misetich case rejected what she described as a higher standard of accommodation required by Johnston and the subsequent line of cases.  Rather, she held that the test for discrimination should be the same for all cases, including family status:

[43]      …the applicant must establish that he or she is a member of a protected group, has experienced adverse treatment, and the ground of discrimination was a factor in the adverse treatment. There is no principled basis for developing a different test for discrimination depending on the prohibited ground of discrimination alleged.

The adjudicator expressly parted ways with the previous line of cases for a number of reasons, including the inconsistency of outcomes, the higher standard required, the difficulty of applying the requirement for a legal responsibility to have been triggered by the obligation to cases involving elder care (i.e. there are legal obligations regarding children but not parents), and finally, the confusing conflation of the test for discrimination and accommodation.

In this case, the employer’s requirement that the employee “self-accommodate” raised concern.  The tribunal held that mutually considering the supports available to the employee is fine, but the threshold becomes too high when the employer requires the employee to bear the onus of finding a solution to the family/work conflict before discrimination can be established (para 56).

The repeated request for proof that there was no other solution disproportionately shifted the onus to the employee.  Rather, once the employee proves discrimination, the onus shifts to the employer to establish that the employee cannot be accommodated to the point of undue hardship (para 57).

While the HRTO clarified that the test for establishing family status should not require the employee to prove no solution is possible before establishing discrimination, in this case, the employer prevailed.  Throughout 2013, the employee failed to provide any medical documentation or other proof that accommodation was required.  As a result, the employee failed to establish discrimination.  The HRTO held as follows:

[63]        The applicant baldly asserted to the respondent that the change in hours discriminated against her on the basis of her family status. While the applicant made this assertion, she provided no information to the respondent about the nature of her eldercare responsibilities. The only information that she gave was that she provided evening meals for her mother.

[64]        The applicant’s ability to provide evening meals for her mother was not adversely affected by the requirement to work days, evenings and weekends. The applicant could have worked these shifts and provided evening meals for her mother, when required, in the same way that she was able to provide a meal in the middle of the day. As a result, the applicant has failed to establish discrimination. In light of this ruling, it is not necessary to consider the issue of accommodation.

[65]        For these reasons, the applicant has failed to make out her claim of discrimination.

Take Aways for Both Sides

Personal preference and the failure to meaningfully cooperate in the accommodation process continues to prevent an employee from succeeding in a discrimination claim.  The family status test may have shifted, but the employer’s right to basic information to engage in accommodation has not. In this case, the failure of the employee to cooperate meaningfully in the accommodation process lost her case before it even got to the stage of determining whether the employer accommodated her up to undue hardship.


Family Status Discrimination: The Statutory Framework

Photo Credit - Anne de Haas

Photo Credit – Anne de Haas

Discrimination on the grounds of “family status” continues to be a hot topic for Canadian employers. Are employers required to accommodate an employee’s eldercare obligations? Are these sorts of obligations different than an employee’s childcare obligations?  Where is the line between personal preference to help out one’s parents and a medical or legal obligation that requires accommodation under the Ontario Human Rights Code?  What happens when an employee’s disability accommodation starts to intersect with her family care obligations?

In an era full of dual-income families without the traditional housewife who spent significant time taking care of aging parents and young children, families continue to sort through how to continue working while fulfilling care duties on the homefront.

Over the next few weeks, I will explore the statutory framework of discrimination on the basis of “family status”, the evolving case law, the new legal test, and best practices for handling family status issues in the workplace.

Legislative Framework

All human rights legislation across Canada include “family status” (“civil status” in Quebec) as a ground of prohibited discrimination. The only exception is New Brunswick, but there are apparently ongoing reviews to add the ground at some point.

Under the Ontario Human Rights Code, Ontario employers cannot discriminate against an employee on various protected grounds, including “family status”, as follows:

  1. (1)Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability

The term “family status” is defined in the Code to mean “the status of being in a parent and child relationship”.

Constructive Discrimination

Few employers would discriminate flatly on the grounds that someone is caring for aging parents or taking care of kids if the employee is otherwise a reliable, high performer.  Having said that, there is no doubt that discriminatory assumptions about family care continue to exist in many workplaces (I cringe every time I hear people talk of “her baby brain” when a women returns from mat leave).

The more complicated risk of discrimination, however, is when an otherwise acceptable rule, standard or qualification amounts to a discriminatory result as follows:

  1. (1)A right of a person under Part I [the general Freedom from Discrimination provisions] is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

All employees who are captured by one of the protected grounds under the Code are entitled to be accommodated, up to the point of undue hardship of the employer, subject to the exceptions of (a) a reasonable and bona fide requirement or (b) the Code declares that a specific act is not discrimination (e.g. setting up a religious school and requiring families attending the school to be of that particular faith).

This is a very complicated and prolific area of human rights law in Canada. What is undue hardship, and at what point can the employer say it has reached that threshold?

Stay tuned for my next post on family status, where I discuss what the accommodation of this ground of discrimination looks like, and what the courts and tribunals are saying are the lengths employers must go to address discrimination on the basis of family status.


12 Tips for Tipsy Holiday Parties

As of the date of this posting, there are only 38 more sleeps until December 25 (according to my kids’ countdown app).  This means only 5 more weekends (6 if you count December 24 as a perfectly noble shopping day) and likely several parties before the end of the year.  Cue the annual articles on holiday party liability.

Photo Credit - Marcela Laskoski

Photo Credit – Marcela Laskoski

If you are a young entrepreneur with a workforce full of friends, see my past post, Holiday Party Tips for the Young Boss.

With the increasingly diverse demographics of our Canadian workforce, fewer employees will actually celebrate a religious Christmas, so the focus is likely more on marking the milestone of another calendar year of hard work and success.

Here are 12 tips to mark that milestone with festive teambuilding – and to feed your defence should anything go awry:

  1. Delegate some of the planning to both an extravert and an introvert, to ensure a balanced approach to the party.  Word the invitations to staff in a way that is inclusive to all but that does not make attendance mandatory.
  2. Do not have your own staff serve the drinks – it’s also always easier to cut off a stranger than a friend or worse, a supervisor.
  3. Avoid an open bar with a free-for-all, unmonitored approach.  Consider drink tickets or providing the first couple of rounds only so that you can state in cross-examination how many drinks were officially provided to guests.
  4. Serve real food, not just snacks.
  5. Oh social media. Where to begin. Showing you have a vibrant, fun workplace is one thing (so lots of civilized group shots on the company Facebook page the next day), but over-the-top hammered pictures will always come back to haunt you and your staff. A friendly reminder in the invite and also in an email the afternoon of the party advising staff to avoid over-posting on personal social sites is one option. If you have a particularly post-friendly workplace, you may need to also delegate someone to keep an eye on posts that reference the company name the night of, so that more embarrassing posts can be removed or responded to quickly.
  6. Serve non-alcoholic drink options – not just water or pop.
  7. Don’t serve free alcohol until the wee hours.  Wrap up the free booze before midnight, a couple of hours before the end of the party.
  8. Appoint someone to discretely keep an eye on over-drinking, and to cut people off before it’s too late.
  9. Order lots of Uber, hand out taxi chits freely and consider hotel rooms. These are some of your strongest defences and easiest way to avoid anyone driving.
  10. Never let an employee who drank alcohol drive home.  Turning a blind eye or not asking questions or respecting their privacy/dignity is not an option – if that person gets in an accident on the way home, you are liable as host of the party, even if the party is at a third party restaurant.  If the person pops into another bar on the way home first, you may still be at least partially liable for the contribution of the first several rounds of drinks.
  11. Be mindful of any employees you think may have a drug or alcohol issue.  Addictions are a disability under Canadian human rights law.  Some employees may otherwise have bad experiences with drug or alcohol in their personal lives or be dealing with unrelated but difficult issues at home, and are just not in the mood for a big party.  Avoid pressuring staff to come to the holiday party, and consider marking year end milestones in a variety of ways, not just at the end of a long night of festivities.
  12. As the owner, take a look around throughout the night and make sure all your staff feel included and part of the action.  Loud, drunk staff parties can be very difficult, awkward or just plain boring to some employees, but those very well could be your best contributors who you really want to thank the most for the past year’s achievements.

Top 3 Tips for More Effective Use of Online HR Resources

Photo Credit - Dariusz Sankowski

Photo Credit – Dariusz Sankowski

Why reinvent the wheel?  Drafting employment contracts, policies, termination letters and releases based on a past precedent is often a good place to start. It is usually both time and cost efficient, and for someone unfamiliar with the document, it’s a great learning opportunity.

Plus, in today’s knowledge economy, there are a ton of great online resources to draw from, and it levels the HR playing field so that both entrepreneurs and large global corporations can have access to good legal documents.

When using a precedent or online resource, here are the top 3 tips to ensure the document is legally enforceable in your workplace:

1) Jurisdiction:  Always, always be sure the document is written for a Canadian workplace and is governed by Canadian law.  Look for the governing law provision near the end of most legal documents.  More often than not, the online resource will be a US-drafted document, which gives rise to very different fundamental laws.  For example, we do not have “at-will” employment in Canada, such that every employment relationship is a contractual relationship, whether express/written or implied.  This means that whether you have a great contract, or a really shoddy version that won’t be legally enforceable, the relationship is bound by contract.  In the absence of the enforceable written contract, the employee is entitled to the much broader common law damages (ie the implied contract).

2) Benefits upon Termination:  The Ontario Employment Standards Act requires all benefits to continue during the statutory notice period, and the common law generally requires the employer to make the employee whole during the notice period.  A termination provision that simply provides a few weeks/months of pay with no reference to benefits runs the risk of being declared invalid for attempting to contract out of statute.  This is an area where Canadian caselaw is rapidly evolving, and can be one of the most challenging issues at termination.  This is particularly so for terminations of employees who have a direct need for the benefits but cannot obtain similar benefits through individual insurance.  For many older workers, the odds of finding a new position that will offer benefits are not great, so benefits will often be a key issue.  You’ll want to be able to rely on an up-to-date provision.

3) Employee v Independent Contractor:  A good employment contract will very clearly set out exactly whether the new hire is an employee or whether he or she is an independent contractor.  These are substantively different types of workplace relationships, giving rise to different tax consequences, employment standards and termination entitlements.  Even a very good, otherwise legally tight contract, however, will be useless if the actual relationship is not captured.  The CRA, Ministry of Labour and the courts will all ignore the contract if the relationship is clearly one or the other, and the contract attempts to mischaracterize the actual relationship.  This is a legal question based on various factors considered in each of the different forums.

We fully embrace the exciting and rich array of online resources for HR issues, but it remains important that those resources are enforceable and up-to-date.  Our clients come to us with increasing sophistication and awareness of issues, letting us hit the ground running when providing legal advice.  This hybrid experience will continue to evolve as employers can increasingly compliment their legal advice with online resources and knowledge.

Employment Standards FYI – Minimum Wage     

The minimum wage that every Ontario employer must pay their employees has gone up from $11.25 to $11.40 per hour, effective October 1, 2016.  The Ontario Employment Standards Act sets out further details for specific categories of employees, such as students, liquor servers, hunting and fishing guides, and homeworkers.

For those workplaces that employ students, the new rates increased from $10.55 per hour to $10.70 per hour on October 1, 2016. This rate applies to students under the age of 18 who work 28 hours a week or less when school is in session, or work during a school break or summer holidays. Students who work more than 28 hours a week while school is in session are entitled to the general minimum wage.

As a heads up to entrepreneurs hiring “interns” who are young, hungry for experience and prepared to work for free to get in the door:  the minimum wage laws still apply.  While there may be some carve-outs as part of school experience-type programs, if the person is otherwise performing work in your workplace, she or he is entitled to at least minimum wage.

See the Ministry of Labour’s website for more details on minimum employment standards in Ontario.


Why Bother with Employment Contracts?

I had a client recently ask why he would bother going through the cost and efforts of doing up an employment contract, if he was going to have to fight with ex-employees’ lawyers and pay out a package in a without cause situation anyway.  Good question.

Without Cause Termination Entitlements

It remains very difficult to meet the “just cause” termination threshold in Canada, and in the vast majority of cases, the employee will be entitled to notice or pay in lieu of notice if the employer wants to end the relationship for any reason, other than just cause.  Reasons such as a decline in business or moving a division of the company off shore are not just cause, even if they may be a legitimate reason to terminate an employee’s employment.

All employees must get at least the minimum amount of notice or pay set out in the applicable employment standards legislation.  If there is no written employment contract that clearly sets out the entitlements upon termination (either capping the amount to the statutory amount or providing a bit more on top of the statutory minimums), the employee will be entitled to the common law amount.

The common law amount includes the statutory amount, is typically much more than the statutory minimums, and is an unpredictable range depending on the unique factors of the individual and how similar cases have been decided in the past.  The judge must look in her or his crystal ball and decide what sort of cushion this individual needs to find similar employment.  It can be a highly subjective exercise, although based on caselaw precedent.

Is Rolling the Dice Better?

Some employers prefer to roll the dice and see what sort of package they can negotiate on termination.  By promising a more generous amount in the contract, they worry that they are stuck with having to pay that generous amount at termination, even if the parties have degenerated into a fairly hostile relationship.

So why bother spending resources and effort on termination provisions?  Because it is usually more cost-effective to have the certainty of a known cap than to enter into extensive, heated negotiations with the employee regarding the common law amount.  It enables employers to plan and to think through budgets when deciding whether to terminate an employee.

Perhaps most importantly, it can help focus the parties on a winding up process already agreed upon, rather than diverting resources and time on the emotional arguments about what that employee is worth.  Courts award termination damages to cushion the employee to the next job, but most employees see the entire exercise as a commentary on whether their employer valued the loyalty, sweat and soul they gave to the organization over the years.

Rarely is it just a business decision to the employee, even if they intellectually can accept that.  The raw emotion of being fired will never go away, but a contract with a valid termination clause can help lower the temperature, facilitate a faster resolution and focus the parties on agreed upon terms.

WPC 2016 and the Global Tech Community

Yesterday was Day 1 of the annual Microsoft World Partners Conference here in Toronto.  As the news continues to highlight the distressing conflicts south of the border and around the world, a conference like WPC is a welcomed reminder that we all have far more in common than not.

There are 16,000 attendees that have descended on Toronto in the last day or so.  In the two hours our firm’s booth was open last night, we had visitors to our booth from Latvia, Frankfurt, Dortmund, the UK, California, Delaware, Oklahoma, Texas, Montreal and local Toronto partners.  And that’s not to mention the very kind attendee from Northern Ireland who carried one of my heavy booth prep bags to the convention centre in the hot summer sun with me (thanks Gary!).

Yes, this a conference for a specific industry, but the array of tech businesses, entrepreneurs, and projects on the go were enriched by the array of cultural backgrounds, not hindered.

Today will no doubt be a busy day full of conversations about expanding workforces into Canada, topped by a Women in Tech reception at the Community Hub.  I look forward to meeting so many people around the globe here in Toronto.

We’re at Booth 1737, by the coffee shop/bar – if you’re at WPC, come and say hello!

Top 3 Uniquely Canadian Workplace Issues

Toronto is a great place to be a tech employer. It’s a cool city with exciting innovation and talent. If you’re a US company considering getting in on the action in Toronto, there are few things you should know about the True North.

Canada strives to have workplaces that are tolerant and inclusive and employees have some serious protections and benefits. In Ontario, our Human Rights Code expects employers to play a big role in preventing all forms of discrimination at worflagk against a number of protected groups.

Here are a few things employers should be aware of:

1) We do not have at will termination

In Canada, unless the employer has a really good reason, it cannot terminate an employee without providing reasonable notice or pay in lieu of notice. Without at will termination, and with a high threshold for just cause to terminate, terminations are typically accompanied by pay to the terminated employee. If there is no employment agreement, the amount can be substantial.

2) Our employees have privacy rights at work

Employees have an expectation of privacy, even on work devices, and increasingly Canadian courts are recognizing this. While many Canadian employers monitor their employees’ use of technology, there is a fine line to tread between invading privacy and managing the workplace. While some of this can be managed through effective workplace policies, employers should proceed with caution when viewing potentially private digital information.

We advise about privacy and technology a lot! For more information about privacy in the workplace and issues specifically related to BYOD, cyberloafing and co-working, see my past posts on these topics: http://www.canadaemploymenthumanrightslaw.com/category/privacy/

3) Canadians like babies!

In Canada, parental leave is available for the birth or adoption of a child. A new mother can take up to 17 weeks of maternity leave and an additional 35 weeks of parental leave can be shared between both parents or taken by one. During this time off, employees get to continue on benefit plans and earn seniority. At the end of the leave employees must be given their old job back, or be placed in a comparable position.

New parents are entitled to employment insurance benefits while they are away from work, and many employers provide a “top up” to the employment insurance benefits, to ensure the employee does not suffer economically because of the leave.

If you want to make sure your company is compliant with Ontario employment laws, please feel free to send me your questions and I may address them in a future post.

The Perils of Working with Interns

Because of the recent controversy surrounding unpaid interns, we have been getting many calls from concerned employers about their obligation when working with interns and employers’ rights when interns do not work out.


As a general rule, unpaid internships are not permitted in Ontario. There are a few exceptions, the most common of which is where the intern is a “trainee”.

To qualify as a trainee, ALL of the conditions below must be met:

  1. The on-the-job training is similar to training at vocational school;
  2. The training is for the benefit of the intern and the intern receives a benefit, such as new knowledge or skills;
  3. The employer derives little, if any, benefit from the activity of the intern while he or she is being trained;
  4. The intern does not take an employee’s job;
  5. The employer is not promising the intern a paid position at the end of the training; and
  6. The intern has been advised that he or she will not be paid for his or her time.

If an employer provides an intern with training in skills that are used by the employer’s employees, the intern will generally not fall under the “trainee” exception.

Another situation where unpaid interns are permitted is where the intern performs work under a placement program approved by a university or college.

Simply agreeing to work without pay does not preclude an intern from later filing a claim against an employer for unpaid wages.

Terminatioffice 1on of Employment

If an intern is paid for work performed, the Employment Standards Act (ESA) applies. As a result, ending the internship must comply with the ESA. Employers should have interns sign contracts, setting out a clear (and lawful) termination provision. If the internship is for a fixed term, and if an employment contract with an appropriate termination provision was not signed, an employer may well be found to have to pay the intern what the intern would have earned during the term of the contract, even if the intern is asked to leave before the end of the term. If the term is not fixed and the internship ultimately lasts less than three months, notice will not be required.

Buyer beware – As simple as it may seem, it’s a good idea to call your lawyer before agreeing to let your employee’s niece hang out in the mail room for a few months.

WIT: The Impact of Job Automation on Women in Tech

Machines are taking our jobs. Researchers at Oxford have analyzed the skill sets required for more than 700 jobs to determine which of them will be most susceptible to automation. They concluded that in the next few decades, over 47% of the jobs we have today will likely be taken over by machines. we can take some comfort in the fact that growth is predicted in ways we cannot likely conWomen Telephone Operators at Workceive of today, another side of this story is the disproportionate effect job automation will have on women.

Our workforce continues to be divided along gendered lines. For example, according to the US Census Equal Employment Opportunity  Tabulation, 95% of the truck drivers in the US are men and 95% of secretaries and administrative assistants are women. Men hold 97 percent  of U.S. construction and carpentry jobs, and women hold 93 percent of the registered nurse positions. While traditional male job categories like transportation are expected to take a hit, sectors that employ the most women, such as customer service, office support, sales and administration, are expected to be hit harder.

Women are also expected to be disproportionately affected by the job growth in more male dominant sectors. Growth is expected in the STEM careers (science, technology, engineering and mathematics), as well as in fields such as architecture.  According to the World Economic Forum Future of Jobs report, women hold just 11% of worldwide jobs in architecture and engineering and just 23% of jobs in computing and mathematics. According to the World Economic Forum, “women stand to gain only one new STEM job for every 20 lost across other job families, whereas the ratio for men is one new job for every four lost elsewhere.”

The efforts to support and encourage women in tech are critical to address both the current and potential future trends.  Technology itself will otherwise undermine the number of jobs women hold in the STEM fields.  It is not enough to suggest merit will take care of the problem – the historical problem is much deeper and sophisticated than mere hiring quotas.  Creating communities and workplaces where women feel they genuinely belong and are able to contribute meaningfully will help keep women in tech once they get there.

Examples such as the Women in Tech meetup at WPC in July are opportunities to send your women employees to important career and company growth initiatives.  I’ll be there, and look forward to connecting with women entrepreneurs and tech experts.