Employees often take work-related data with them when they resign or are terminated from employment.  In many cases, it is an inadvertent act that has happened over time by using their own device or email account to work after hours.

Emily Chung, technology writer from CBC News interviewed me and wrote the following piece, exploring the issue:

Employees often take private data when they leave:  Intentions not malicious, but practice still poses risk to companies

Most employees see nothing wrong with taking their employer’s confidential data out of the office — and about half even take it with them to their next employer, a study has found.

Meanwhile, even when they are not changing jobs, a majority of employees are putting sensitive corporate information at risk by transferring confidential corporate data to their personal devices, personal email accounts and cloud services such as file transfer service Dropbox, said the report titled, "What’s yours is mine: how employees are putting your intellectual property at risk"…

Click here for rest of article.

 

 

As I set out in my last blog post, "Who is Demanding BYOD?", the demand for bringing your own device to work may come from all corners and levels of the company. In this post, I set out the benefits of BYOD. 

Benefits:

1.      EMPLOYEE REQUESTS: The most obvious benefit to embracing BYOD is employee engagement and retention. If you are in an industry full of creatives, Gen-Y or tech savvy employees, it’s a no brainer and you probably had BYOD before we all came up with the catchy label.   Giving employees choice and respecting different preferences can demonstrate progressive workplace culture and nurture employee loyalty. 

On the other hand, if you are in a necessarily conservative industry such as the military equipment manufacturing industry, it is likely also a no brainer that security issues may outweigh any potential benefits. For the many companies in between these two extremes, employee engagement and retention may be one of a number of benefits to consider.

2.     CLIENT OPTICS: Certain clients in certain industries may have a preference for one type of device over another. If you are visiting a Blackberry dependent tech client in Waterloo, whipping out your iPhone is both rude and stupid. If your client is in Cupertino, your Canadian loyalty may not be quite so impressive. Allowing BYOD flexibility to support various platforms may be essential to reflecting business reality.

3.     INCREASED PRODUCTIVITY: BYOD may positively impact employee productivity. Letting people connect their tablet to the company email and document system may facilitate convenient and more frequent after hours work. Rather than lugging a cumbersome laptop home, employees can use their tablet to finish up a document or clear out their email after the kids go to bed. Business travellers, trade show attendees and salespeople on the road all may find BYOD a critical piece to maintaining productivity out of the office.

4.     COLLABORATION: Linking up devices may encourage people to connect together more frequently, leading to more collaboration and more effective communications. 

5.     COMPANY COST SAVINGS: An obvious bottom line benefit is that the company is no longer on the hook to pay for the hardware. Employees insisting on their own type of device and want to simply connect what they already have can eliminate a line item in the company’s technology budget.

 

In addition to various other benefits, there are, of course, risks and costs associated with BYOD. Stay tuned for my next blog post to round out this rosy picture. 

My next posts on BYOD:

  • Risks & Costs of BYOD
  • Developing a BYOD Program

As employees increasingly demand to use their preferred electronic device in the workplace, employers are working through whether the “Bring Your Own Device” (BYOD) concept is a good idea, or an employee perk to ban for security and cost reasons. In my next few blog posts, I plan to explore the issue and take a look at the pros and cons, and to set out how to implement an effective BYOD program for those workplaces that are going to jump in.

Consuming & Pushing Out Content

Smart phones and tablets continue to change how we consume online content, communicate with each other and participate in social media. I recently upgraded my device and have been pleased with how much easier and quicker it is to sync my social media platforms and to post or tweet on the spot. It turns out that the kids these days are not spending all their time in front of a screen tweeting each other, but rather, staying on top of technology makes social participation seamless and efficient to do on the go.

The Lure of Mobile Across the Ages

We cannot underestimate the allure of the mobile device, and employers who try to ban such extensions of an employee’s social system without good reason are likely to face resistance. Beyond all the stereotypes of Gen-Yers needing to tweet out what they just had for lunch, the more powerful call for BYOD may come from your higher end executives who have set up their electronic infrastructure at home and want their mobile device to match – out of efficiency, a reluctance to waste time learning multiple platforms, or perhaps perceived status of one environment versus another.

Whether it is Apple for your Boomer’s excessive jazz collection on his beautifully designed minimalist machine (speaking of stereotypes) or PC because your Gen-Xer still prefers to get at the motherboard to customize and upgrade her own engine power, employees come with all kinds of non-work related reasons for BYOD.

The C-Suite Demand

The other surprising corner from where the BYOD demand appears to be coming are C-suite executives who, according to one study conducted by Wakefield Research for Avanade, are focused on the benefits of what can be accomplished outside the office walls. Their IT decision makers, on the other hand, are still focused on how to minimize potential risks.

Here are some other findings from that same study, which surveyed about 600 C-level executives and IT decision makers in 19 countries:

  • More than six in ten companies (61 percent) report the majority of their employees now use personal computing devices in the workplace.
  • More than half (54 percent) report the majority of their employees use smartphones for basic work tasks such as reading email, online documents and calendar invitations.
  • One-third (33 percent) report the majority of their employees use tablets for basic work tasks.
  • More surprisingly, the exact same number of respondents – 33 percent – report the majority of their employees are using tablets for advanced business purposes such as CRM, project management, content creation and data analysis.

Like social media, or desk top computers before that, or the new-fangled telephone before that, the allure of technological development continues to be the increased speed by which we can access information and communicate with each other. The modern variety of devices upon which to do this are increasingly vast.

Stay tuned for my next posts on BYOD:

 

My nominations for the 2012 Clawbies (Canadian law blog awards) are:

1. Donna Seale‘s Human Rights in the Workplace – again.  She continues to be one of the individual voices out there that churns out great content, is not backed up by a big marketing department, and is a go-to resource blog for me.

2. The employment boutique Crawford Chondon’s blog, The Employer’s Edge, has consistently turned out brief, readable and relevant content throughout 2012.

3.  Professor Doorey’s Workplace Law Blog is always controversial, opinionated and full of Professor Doorey’s passion for workplace issues.  I may not always agree with his posts, but I’m always engaged in his writing.

Good luck to everyone.

 

Paramedics and other emergency workers face unique communication issues when on duty.  Speed, constant availability and focus are paramount.  So how does one check their smart phone email, update their Facebook status or tweet out an update?  Turns out they don’t.  At least not in some of the organizations that are starting to ban personal electronic devices in the workplace because of the realities of an emergency worker’s day to day job.

I spoke at the Manitoba EMS Conference, InterAct2012 last weekend and met a lot of smart, friendly, and talented people.  I presented on social media in the workplace, an issue which has a number of unique nuances when the employee is busy driving emergency vehicles and saving lives.  Click here for a copy of the power point presentation.

Here are few of the issues EMS workers face in our evolving social media world.

Patient Confidentiality

Patient confidentiality regularly winds its way throughout the case law involving health professionals.  Health professionals are governed by provincial privacy legislation and are usually trustees of the personal health information they interact with throughout their day.  There is a very low tolerance in the case law for revealing confidential information.

Social media gives rise to challenges around inadvertent disclosure of patient confidentiality, which in several cases has led to termination of employment.

An example is in Credit Valley Hospital v CUPE in which a hospital employee was called to clean up after a patient had tragically committed suicide in the parking lot.  The deceased patient had already been removed, and the employee took two pictures of the scene, posted them to his Facebook and added this comment on one photo: “Mother pleads with kid not to jump off PRCC side of the parking lot but did anyways poor thing”.  Through his comment, he revealed the age, medical information and location of the patient.  His termination was upheld at arbitration.

Safety

Given the intense, emergency situations that EMS workers regularly find themselves in, the issue of safety is frequently raised.  With many provinces now passing laws prohibiting the use of any hand-held electric device while driving, the usual safety concerns also interact with traffic laws.  A brief call on the cell phone, a quick text or a mindless glance at the Twitter feed all while driving are safety issues, let alone a PR disaster when such conduct is noticed by the public.

And yet, EMS workers are human too – they have spouses, a social life, daycare workers to communicate with, co-workers to interact with online, time to kill when waiting on a call for hours in the hallway of a hospital.  This tension will no doubt continue to be part of the lively conversation between EMS providers and their unions.  How does the school of a paramedic’s child contact him during the day when his child is sick?  Can’t co-workers shoot each other a quick text about a job related task?  Management will continue to point out the infrastructure in place to contact workers on a call should there be a personal emergency, and at the end of the day, providers generally prioritize the safety of patients and employees when on duty.

BYOD

Many employers are starting to adopt a “bring your own device” approach in the workplace, largely in response to employee requests.  The opposite is happening in some EMS workplaces, however, given concerns around patient confidentiality and safety.  Some EMS employers are simply banning any personal electronic devices in the workplace.  When the purpose of such a policy focuses on safety and patient confidentiality, rather than curbing employee conduct, it will be difficult for employees to resist such a policy.

As social media continues to infuse every corner of our lives 24/7, it will be interesting to watch the EMS world, and to see how health care professionals will balance the tension between personal desire for access to the online world, and the practical realities of the job that present challenges to such access.

 

Privacy and Porn on Workplace ComputersEmployees have a reasonable expectation of privacy in the personal information on their workplace computers, even if that expectation can be significantly diminished with effective workplace policies and practices.  However, whether such reasonable expectations extend to workplace computer evidence admitted in a criminal proceeding was addressed in last Friday’s highly anticipated Supreme Court of Canada decision of R v Cole. 

In that case, a school board computer technician ran a routine system maintenance check on the computer network and he discovered photographs of a naked student on a teacher’s laptop.  The technician advised the school principal.  On the principal’s instructions, the technician copied the photos to a disc, obtained the computer and copied the temporary internet files onto a second disc.  The laptop and both discs were then handed over to the police.

Workplace Computer Evidence Wrongly Excluded at Criminal Trial

The police reviewed the evidence, and charged Mr. Cole with possession of child pornography and unauthorized use of a computer.  At trial, all of the evidence was thrown out, because the police had obtained the laptop and discs without a search warrant.  At the heart of this case is whether an employee has any expectation of privacy of information on a workplace computer, which may attract Charter rights to prevent such evidence from being gathered and used against the employee in a legal proceeding.

The Supreme Court of Canada held that while Mr. Cole’s Charter right to be free from unreasonable state search and seizure had been breached, the admission of that evidence was appropriate in the circumstance and would not bring the administration of justice into disrepute.

Accordingly, the Court ordered a new trial, ordering that the evidence unlawfully obtained by the police should not be excluded in this case.

Reasonable Expectations of Privacy

Although this is a criminal law case, there are a number of employment law aspects to the matter. 

First, while Canadians may reasonably expect privacy in the information found on our home computers, this decision reiterates the principle that information on work-issued computers does attract some reasonable expectation of privacy.  Computers typically contain information that is “meaningful, intimate, and touching on the user’s biographical core”, attracting a protection of privacy. 

Second, while workplace policies and practices may diminish an employee’s expectation of privacy, such “operational realities” around workplace policies and practices do not remove the expectation entirely.  Context will matter.

Third, in this case, the employer was entitled to rely on the evidence it obtained through a standard, workplace maintenance check to discipline the employee as appropriate through its internal procedures.  The school board was not, however, entitled to waive the employee’s Charter rights by handing over such evidence to the police, even if the employer had originally lawfully obtained such evidence for own human resource purposes.  Only the employee could consent to disclosing the private information to the state.

Take-Away for Employers

Workplace policies are a critical tool for employers to enforce workplace standards, but they cannot be left to gather dust on an electronic shelf.  In this case, the Court relied on several facts to lessen the employee’s expectation of privacy in the workplace:

  • the workplace policy was up to date, asserting ownership of both the hardware and the data;
  • the employer annually reminded the employees that the students’ computer use policy also applied to the employees; and
  • the student policy specifically provided that email could be monitored and that users should not assume that any files stored on the network servers or hard drives of individual employer-issued computers will be private.

All of these factors diminished Mr. Cole’s expectation of privacy, but did not eliminate it.  He was entitled to be free from unreasonable state search and seizure of such personal information. 

Employers should not only continue to ensure their computer use, privacy, social media and electronic data policies are up to date, but it is essential that employees are informed and educated about the meaning and impact of such workplace policies so that employers can more effectively rely on such policies and practices. 

The Ontario Human Rights Code and the Accessibility for Ontarians with a Disability set out the rights and obligations regarding employees, but what about volunteers?  A reader of this blog (thanks Angie!) has asked about the application of these laws when recruiting volunteers.  Human rights codes across Canada work largely the same on this issue, but since Angie is from Ontario, I’ll focus on this province.

Volunteers are not “Employees”

Can You Discriminate Against a Volunteer?First of all, volunteers are not “employees”.  The Ontario Employment Standards Act defines “employee” as a person who performs work or services for an employer “for wages”.  As long as the person is receiving wages, they are not a volunteer and are therefore entitled to minimum wage, paid holidays and all of the other minimum standards set out in the Employment Standards Act.

It is possible to reward a volunteer, but that reward must be purely discretionary and not tied to performance.  In other words, you can provide the volunteer with a generous gift basket on your annual volunteer recognition day, without the risk of creating an employment relationship.  You cannot, however, pay the volunteer $10 for each new donor to your organization that he or she signs up on the street corner.  That’s a commission and tied to performance, indicating an employment relationship.

But “Employment” Does Include Volunteers under the Human Rights Code

While the Employment Standards Act clearly does not apply to volunteers, it is likely that the Human Rights Code does.  The Human Rights Code does not specifically refer to volunteers, but it also does not limit “employment” to only paid positions.

Rather, under the Human Rights Code, employment is interpreted broadly and will generally include volunteers for the purposes of applying the Human Rights Code to the workplace.  See the Ontario Human Rights Commission’s website for general guidance (while the Human Rights Tribunal is not bound by the OHRC, the OHRC remains a persuasive voice in the human rights regime in Ontario).

Volunteer Canada has published a useful guide for organizations that engage volunteers.  The Canadian Code for Volunteer Involvement sets out guidelines for policies and procedures for volunteers, indicating that such policies and procedures should be consistent with human rights legislation (see page 13 of the guide).

Recruiting Employees/Volunteers

When recruiting employees (which will include volunteers under the Human Rights Code), the law is clear that you cannot discriminate against an individual based on any of the grounds set out in the Human Rights Code:

Employment

5. (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.

For example, it is discrimination if you refuse to hire someone because they are disabled, are pregnant, are too old, are members of a lesbian social club, are members of a particular religious organization, etc.

The Human Rights Code further specifies that the recruitment process itself cannot be discriminatory:

Employment

23. (1) The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

Application for employment

(2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

Questions at interview

(3) Nothing in subsection (2) precludes the asking of questions at a personal employment interview concerning a prohibited ground of discrimination where discrimination on such ground is permitted under this Act.

Employment agencies

(4) The right under section 5 to equal treatment with respect to employment is infringed where an employment agency discriminates against a person because of a prohibited ground of discrimination in receiving, classifying, disposing of or otherwise acting upon applications for its services or in referring an applicant or applicants to an employer or agent of an employer.

Special Interest Organizations

It is clear an organization cannot discriminate – but can an organization prefer volunteers that reflect the membership or purpose of the organization?  Many volunteers are engaged by special interest organizations, which by definition may exist to promote specific religious beliefs, gender issues, sexual orientation or cultural backgrounds, etc.

Can organizations recruit to favour and/or exclude volunteers based these otherwise protected grounds?

To some extent, yes, they can.  The Human Rights Code sets out special rules or exemptions in the area of recruitment for “special interest organizations” as follows:

Special interest organizations

18. The rights under Part I [the general section on Freedom from Discrimination] to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.

For example, a woman’s shelter is not discriminating against men if it has a policy to recruit only women volunteers.  A church club for teenagers can require members to adhere to the religious practices of that church.  A Dutch social organization can require board members to have a Dutch background.

This exemption is complicated.  There will be limits to this section, and we most often see the limits determined when you have competing human rights issues.  For example, can a religious organization refuse to recruit a transgender volunteer?  A full review of competing human rights would require a separate blog post, but suffice it to say that an organization can prefer volunteers that reflect the purpose or mandate of the organization, so long as the organization is not discriminating against the volunteer applying for the position (which I know is easier said than done in many situations).

Volunteers and AODA

The other piece to the human rights regime in Ontario is the Accessibility for Ontarians with a Disability Act, 2005.  Both the Customer Service Standard and the Integrated Accessibility Standard under the Accessibility for Ontarians with a Disability Act, 2005 specifically require organizations to train both employees and volunteers about the provision of goods and service to persons with a disability and about the accessibility standards set out in the legislation.

The purpose of AODA is to achieve accessibility for Ontarians with a disability.  The standards will be read broadly and interpreted to achieve the highest standard available under AODA and the Human Rights Code.  Any ambiguity around the application to AODA to a volunteer will likely be read widely to capture volunteers and ensure all individuals engaged at an organization are bound by the AODA standards.

 

Take Aways

The world of volunteers is outside and yet part of the employment context.  It is not always crystalCan You Discriminate Against a Volunteer? clear what role a volunteer has within an organization, but given the quasi-constitutional status of human rights legislation in Canada, employers and organization that engage volunteers would be most prudent to assume the full range of discrimination law applies to their volunteers.

This includes ensuring your volunteers are held accountable for any discriminatory conduct they engage in while representing the organization.  As always, setting out expectations in a policy for all members of the organization – whether paid or unpaid – will provide clarity around human rights issues.

 

Mandatory Workplace Postings in Ontario - Lisa StamI doubt there is anything more dry than reading a blog post about mandatory workplace government posters, but it’s a mandatory requirement that comes with fines and cranky inspectors if you don’t comply with the requirements. And I will try to make this a short post to minimize the pain.

New OHSA Requirement

As of yesterday, all workplaces in Ontario must post a new mandatory government poster called, “Health & Safety at Work – Prevention Starts Here”. The poster explains the key rights and responsibilities of employers and employees, and sets out how to obtain additional health and safety information and how to contact a Ministry of Labour inspector.

 

Other Posting Requirements

While employers have always had to post a copy of the Employment Standards Poster, “What You Should Know” and the Occupational Health and Safety Act, this new requirement adds more to your collection of documents that must be posted in a conspicuous location (e.g. cafeteria or lunch room) in all Ontario workplaces.

 

The specific posting requirements are primarily under the following acts:

  • Employment Standards Act (ESA);
  • Workplace Safety and Insurance Act (WSIA);
  • Occupational Health and Safety Act (OHSA); and
  • a key regulation under OHSA, Workplace Hazardous Materials Information System (WHMIS).

A full summary of workplace posting, training and policy requirements is set out on the Ministry of Labour’s website.

Although not likely on the top of anyone’s fun list, this may be a good moment to do an audit of your workplace posters, training and policies to make sure your workplace is meeting the latest requirements.

Working from home, telecommuting, flexible hours, – whatever you call it, it is part of the Gen Y paradigm of focusing on work product rather than work process. In an information economy where so many workers are producing electronic written and graphic content rather than a physical product, many employees are pushing to work where they are the most comfortable, happy, and hopefully, the most productive – at home.

Having said that, while there is a general perception that the Gen-Y workforce will continue to push for change in flexibility, the push to telecommute may equally come from your older workforce who have settled into the workplace hierarchy, already have a good relationship with the boss and no longer need face-time, have the space in their larger suburban home, and have a busy schedule with family and community outside of work.

For example, in a study by Regis called “Meeting the Future of Work”, the author suggests that despite their tech savvy, mobile and socially connected instincts, many Gen-Yers still recognize a need to be in the office, near the work flow and near the boss:

We found that younger staff expressed 15% to 20% less desire than their older colleagues to choose their time and place to work. In fact, they actively seek out every opportunity to be in the office in the closest proximity to their boss. We found a direct, almost linear correlation between age and appetite for flexible working – from over 70% enthusiasm among older staff declining to under 40% with Generation Y staff.

Perhaps, as well, your typical 25 year old employee’s 500 square-foot Toronto condo doesn’t quite live up to the quest for freedom and space they envisioned. In other words, the interest in telecommuting will likely cut across all generations in the workforce.

Whether the push is from your Silicon-wannabes, or the sandwich-generation juggling small kids and elderly parents, here are some of the key legal issues employers need to think about when offering telecommuting to employees:

1. Policies:

As with most areas of the employment law universe, the legal backdrop should be a policy that sets out employer expectations around issues such as hours of work per day or week, preserving confidential information, home office insurance and liability issues, ownership of equipment and content, reporting structures, how to monitor work product and deadlines, any obligations to attend on-site meetings, and reserving a general right to pull the employee back into the office if necessary.

2. Discrimination:

Determine up front whether the right to telecommute will be offered to all employees. If you are offering the choice to work from home only to your high performers or the ones you “trust” the most, you may open yourself up to complaints of favourtism or, in some cases, discrimination.

If you do deal with telecommuting requests on an ad hoc or project basis, ensure your workplace policy sets out objective criteria for allowing employees to work from home. Without objective criteria, refusals to allow telecommuting can amount to a discrimination claim, as was the case in the Human Rights Tribunal of Ontario case last month of Devaney v ZRV Holdings (2012 HRTO 1590).

In that case, the applicant was an architect who had extensive elder care responsibilities at home. Denied the request to work from home and ultimately fired for failing to work in the office (his work product was good and his main client ultimately hired him directly), the tribunal ordered the employer to pay the employee $15,000 for discrimination on the basis of family status.

3. Constructive Dismissal Issues:

Most employees would view working from home as a positive term and condition of their employment. But what happens if corporate realities change and you want to bring employees back into the office? What if an employee’s productivity has become outweighed by their knowledge of day-time TV schedules? Without reserving the right in the workplace policy or employment contract to dictate work location, you may open yourself up to a constructive dismissal claim for introducing an adverse term (i.e. requiring the employee to return to a work office) into the employment relationship.

The ongoing shift in how information and work product is created, stored, gathered, processed and packaged for clients will continue to evolve the workplace paradigm, which will inevitably include workplace location. For those employees who see themselves as more of a free agent to an employer rather than some sort of employee serf, flexibility around work location will be increasingly be viewed as more of an entitlement than a perk. Managing these job expectations will continue to be an interesting challenge for traditional workplace environments.

I have questioned the teeth of the Accessibility of Ontarians with a Disability Act (“AODA”) in my past blog post, Where’s the Teeth?.

While the fines for non-compliance are huge (up to $100,000 per day – see section 83 of AODA Reg 191/11), the regime relies on the Ministry of Community and Social Services (the “Ministry”) to identify, initiate and enforce compliance, as there is no mechanism within the AODA regime for an individual to initiate an AODA complaint against one’s employer or an organization. In other words, an organization would have to somehow get on the government’s radar in the first place.

So how does an individual seek to enforce the standards for disability accessibility set out in AODA? Last fall, I was told by a representative at the Ministry that there is no gap as individuals can take their complaint to the Human Rights Tribunal of Ontario (“HRTO”). He further explained that the purpose of the AODA regime was to focus on compliance, not punishment, and that the Ministry will respond to patterns of a large number of complaints, but not necessarily individual, one-off complaints.

The HRTO’s “does not enforce the AODA”

Since AODA began applying to the public sector in 2010, we have seen about a half dozen HRTO cases involving both public and private organizations that refer to AODA as a floor or minimum standard of accessibility requirements an organization must meet.

However, in Bishop v. Hamilton Entertainment and Convention Facilities Inc., one of the few HRTO cases that have considered AODA this year, the HRTO declined to reference the AODA standards and concluded the following:

The Tribunal does not enforce the AODA. There is a statutory framework for Director’s orders and administrative penalties set out in the AODA at sections 21 to 25.”

As a classic example of weak facts impacting the law, in the Bishop case, the applicant was unable to establish any discrimination based on disability.  The applicant claimed that the manner in which the respondent company was attempting to enforce a debt against the applicant’s non-profit organization was discriminatory. He, in part, relied on AODA’s Customer Service Standard to argue that the company did not provide services in accordance with the standards outlined in AODA.

Ultimately, the HRTO held that based on the facts in this case, there was no link between the debt enforcement and his disability, and it dismissed the matter.

Is there a gap for individual disability rights?

In dismissing the matter, the adjudicator in Bishop concluded that the HRTO “does not enforce AODA”. This makes sense from a statutory perspective – the Tribunal is not referenced in the AODA legislation, and it is the Ministry of Community and Social Services that enforces the AODA regime as against organizations.

However, the Tribunal remains the “enforcer” of human rights standards for individuals in Ontario. The AODA legislation expressly states that in the event of any conflict between the AODA standards and the Human Rights Code, the higher standard will trump. Allegations of discrimination on the basis of disability remain squarely within the reach of the Tribunal.

What remains unsettled, is the extent to which the AODA standards will be referenced as the minimum standards required to be met to avoid a discrimination claim. Many had thought the AODA standards would become a kind of checklist or enumerated criteria that an organization must meet, something we began to see in the HRTO cases, Wozenilek v 7-Eleven and Polangio v Cochrane.

This would promote an objective component to the human rights regime that would no doubt be encouraged by disability advocates, and would frankly provide some clarity for organizations regarding accommodation, accessibility and how to avoid a discrimination claim.

Competing or Complementing Administrative Regimes?

The Bishop case is a relatively short, succinct decision without any detailed analysis on AODA. I hesitate to jump to any conclusions based on this one case, but I am certainly curious what sort of discussion is happening behind the scenes at the HRTO.

Is the HRTO prepared to absorb the AODA standards and become the “enforcer” of the standards for individuals? While the standards will not tie the hands of the HRTO, is there a reluctance to be the high profile interpreter of the standards? To what extent will the Ministry of Community and Social Services look to the HRTO for guidance on interpreting its own standards?

It will be interesting to see how the caselaw develops given the distinctly different mandates of the two respective administrative bodies.

In the meanwhile, given the huge fines for non-compliance, employers are best off to continue to work towards AODA compliance, while being prepared for individuals to use the AODA standards as, at the least, a reference point in individual discrimination claims at the HRTO.

For more info on AODA, here are some of my past blog posts: