Canadians go to the polls on May 2 for the 2011 federal election.  Here is a brief review of an employer’s obligations on voting day:

  • Any employee who is a "Canadian citizen and is 18 years of age or older on polling day" is entitled to vote.
  • The hours of voting are set by statute:

(a) from 8:30 a.m. to 8:30 p.m., if the electoral district is in the Newfoundland, Atlantic or Central time zone;

(b) from 9:30 a.m. to 9:30 p.m., if the electoral district is in the Eastern time zone;

(c) from 7:30 a.m. to 7:30 p.m., if the electoral district is in the Mountain time zone; and

(d) from 7:00 a.m. to 7:00 p.m., if the electoral district is in the Pacific time zone.

  • Every employee eligible to vote is entitled, during voting hours on polling day, to have three consecutive hours to vote.  If the employee’s hours of work do not allow for those three consecutive hours, the employer is required to allow time off to vote.
  • If an employer is required to allow time off for an employee to vote, that period of time is at the convenience of the employer, not the employee.
  • An employer is not permitted to deduct the pay of an employee or impose any sort of penalty for the time taken by an employee to vote.
  • The Elections Canada website contains general information about how and when to vote.  This is a good place to direct employees that may have questions about the logistics of voting on election day.

 

Of the many areas of employment and human rights law that change quickly, I have noticed over the last 6 months that disputes over social media in the workplace have started to hit the courts and tribunals at a much faster pace.  While a year or two ago there was virtually no case law for employers to turn to for guidance, this is no longer the case.

Four blog posts over the last two weeks provide good summaries of the recent issues, benefits and pitfalls of using social media in the workplace.

  1. The All About Information blog cites a recent BC Labour Relations Board decision in which two employees were dismissed because of comments posted on their Facebook page that were critical of their employer.  Facebook continues to be a source confusion by employees about what is private and what is public.  Facebook is on the internet, which is an inherently public sphere.  Posting negative comments about your employer in your status update or on your wall is no different than sending a letter to the editor of your local newspaper.
  2. Also from the All About Information blog, there is a reference to an interesting article in the Ottawa Citizen that outlines how insurance companies are "Mining Information from Social Media Sites" to counter disability claims.
  3. In her Human Rights in the Workplace blog, Donna Seale pointed out a good online article about googling potential candidates.  It rightly points out that some quirky online details about a candidate may actually indicate a more interesting, diverse employee that can bring more to the table than a overly cautious or neutral candidate. 
  4. Finally, this morning on the First Reference blog, Stuart Rudner posted a good piece on the different ways employers can, should and/or should not use online content about candidates and employees.  As he notes, social media is "not going to go away" and there can be many benefits of engaging social media for employers throughout the employment relationship.  Whether it is to screen employees for hiring or to review a former employee’s LinkedIn profile to determine whether he or she is mitigating his or her losses, the internet is a wealth of information. 

I particularly appreciate Stuart’s observations that we old folks (i.e. those of us over 30) all engaged in some behaviour that is not particularly Facebook-friendly when we were younger.  The difference is that we enjoyed a world without instantly uploaded pics through a smartphone.  Hopefully common sense will come into play when deciding whether employers should act on online content involving candidates and employees.

While legal disputes are rarely good for anyone but the lawyers, the good news is that the growth in judicial decisions on social media will continue to provide greater guidance for employers who invariably struggle with how to integrate social media information into their workplace decision making.

 

I haven’t blogged since mid-September.  The spirit is willing, but the flesh is weak.  

I’m home in month 3 of a maternity leave with my second baby and simply haven’t been able to get to a computer for a solid period of time.  As anyone who has been on a parental leave with a newborn knows, it is a wondrous, happy time – but it is no vacation.  

My eldest is 2 and was apparently an easy baby (something I didn’t appreciate at the time!).  Then along came #2… I feel very fortunate to have two healthy, happy kids and am trying to appreciate every moment of this special time. My 3 month old, however, spent his first 2 months very grumpy about entering this world, and complained about it 24 hours a day, feeding relentlessly in protest.  He’s finally become human and things are sorting itself out.  But it was one heck of a long, sleepless haul to get here.

For any employers out there who have an employee at home on a maternity leave, I can tell you that they are busy.  I don’t know what we’re busy doing, and I always have a hard time remembering what I all did when my spouse asks at the end of the day, but what I do remember is not having 5 minutes to myself to think. 

I look forward to getting back into the office to read documents that don’t rhyme and that contain more than 1 syllable words, to problem solve more than whether to watch Yo Gabba Gabba or Cailiou on TV, to eat hot food and to put my years of training back into practice.  I know, however, that I’ll be there before I know it and will miss these quiet moments with my baby sleeping on my lap in the middle of the day, "trapping" me in the recliner and forcing me to taking life a little slower. 

If only we could clone ourselves and somehow have both worlds.

 

Recent caselaw suggests that huge damage awards for employees claiming wrongful dismissal is on the decline. Upper courts continue to cut down lower court awards and eliminate “bad faith”-types of compensation.

 

Last month, in Soost v Merill Lynch, the Alberta Court of Appeal reduced the lower court award to dismissed stock broker, Kurt Soost, from $2.2-million to $600,000. The Court held that while the employee was wrongfully dismissed by Merrill Lynch Canada, 12 months’ notice was a sufficient award for a high performing 3 year employee. It reversed the additional $1.6-million bad faith award the lower court had awarded for the loss of Soosts’ book of business as a result of the termination.

 

In Canada, if an employee is terminated with cause, the employee is entitled to no notice or pay in lieu of notice.  If, however, the employee is terminated without cause (or sues and a court sides with the employee), the employee is entitled to notice of termination or pay in lieu of termination.   Although there is no official rule of thumb, most agree the range of notice is between 3 to 5 weeks of notice per year of service – or a payment in lieu of such notice.  Courts have generally capped awards at around 12-15 months, but some have gone as high as 24 months.

 

In addition to the payment in lieu notice reflecting the number of years the employee has worked at a company, courts have inconsistently awarded additional awards for behaviour such as an employer’s bad faith in the termination, the employee’s mental suffering, and other losses suffered by the employee. 

 

Key to the analysis in Soost is whether the employer was acting in bad faith when terminating Mr. Soost.  Since the Supreme Court of Canada’s Keays v Honda Canada case in 2008, employee plaintiffs must prove that the employer’s conduct caused actual losses. The act of dismissal itself is not a sufficient “bad faith” or loss that warrants extra damages from the court. 

 

The trend over the last couple of years has been to limit the damages awarded to employees for wrongful dismissal.  While it remains impossible to predict exactly what a court would award, it appears that for most cases, the basic notice period requirements will be the extent of the damages.

 

For a good summary of the case and further commentary, you may want to visit the following sites: 

 

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.

 

Working notice is like eating at a cheap buffet restaurant – it’s inexpensive, and it seems like a good idea at the time, but the meal doesn’t taste so great within a short period of time.  This usually applies to both employers and employees.

I often have employer clients looking for a way to lower the cost of dismissing more expensive employees by providing some or all of the notice in working notice, rather than paying out the full amount owed in cash. 

No "At Will" Employment In Canada

For American clients in particular, the cost of terminations in Canada can often seem quite high.  We do not have an "at will" employment concept in Canada, so if an employer wishes to dismiss an employee without cause (for business restructuring, redundancy, etc), the employer is essentially breaking the employment contract, which the courts otherwise deem to be a permanent long-term relationship.  In order to break that contract, the employer must either give working notice to the employee or make a payment in lieu of that notice

How Much Notice is Required?

Most employment law is governed by provincial statutes, so the amount of notice varies slightly from province to province.  In Ontario, there are four sources of notice that could dictate the amount of notice an employer must provide to an employee:

1.      Employment Contract – if the parties entered into an employment contract that contains a termination provision, the terms of that contract will apply and will trump any common law (i.e. court) amount or amount required by the Ontario Employment Standards Act (ESA) (assuming the employment contract provides more than that set out in the ESA).  This generally applies in the unionized context where the collective agreement will dictate the terms of termination.

2.      Termination Pay – the ESA requires that an employer provide 1-8 weeks of notice (or pay in lieu), depending on the years of service of the employee.  Termination Pay can either be pay in lieu of notice, or can be provided as a notice period during which the employee is required to continue working.  The Ontario Ministry of Labour website provides details on dismissals and the ESA.

3.      Severance Pay – in Ontario, an employer must pay Severance Pay in the amount of a week of pay for each year of service (up to a maximum of 26 weeks) if the following apply:  the employee was employed by the employer for 5 or more years and (i) the employee is one of 50 or more employees terminated because of a permanent discontinuance of all or part of the business, or (ii) the employer has a payroll of $2.5 million or more.  Severance Pay must be provided as a lump sum payment and cannot be provided as working notice.

4.      Common Law – The ESA provides the minimum amount employers must provide to employees.  Courts will generally award more, taking into consideration an employee’s age, length of service, type of employment and availability of similar employment.  Often the common law amount will be in the range of 3-5 weeks of notice for each year of service, depending on the circumstances.  This is inclusive of any ESA amounts, not in addition to ESA amounts.

As an example, an employee without an employment contract with 30 years of service at a company with a payroll of at least $2.5 million will be entitled to 8 weeks of Termination Pay and 26 weeks of Severance Pay as a minimum.  That’s without considering what a court would offer on top of the ESA amounts.

Payment or Working Notice?

Unless the employment contract says otherwise, and other than Severance Pay which must be paid out as a lump-sum payment, an employer can offer all of the notice as working notice rather than pay.  The question is, do you really want to?

Generally, employees prefer the pay in lieu of notice.  No one wants to working under the cloud of dismissal, and the clean break gives the employee the time to move on and find a new job.

Generally, employers want to save the money by giving working notice, but here are some of the reasons why many employers in fact opt for the pay in lieu of notice:

  • no bang for your buck  – rarely does an employee retain his or her enthusiasm for the job and productivity inevitably goes down;
  • workplace sabotage – in highly sensitive positions, it is often best to make the clean break so that the employee is not tempted to take business secrets, confidential data or company property with him or her prior to the end of the working notice period;
  • the business must go on – if the reason for the dismissal is to bring in fresh talent, why wait out the many months for the employee to finish up the working notice period when you could bring in the fresh talent asap; and
  • workplace morale – an unhappy employee on their way out may drag down your other employees and create an atmosphere of low morale.

One option is to combine working notice with a pay in lieu of notice.  If, for example, you have decided to give your 30 year employee 18 months notice, you could do 12 months of that notice by way of working notice and pay out the remaining 6 months at the end of the working notice period.  In this example, an employer would have to pay at least 6 months as a lump sum payment for Severance Pay in any event, so the combination may be a natural break down of the notice provided.

 

Cost Effective Decisions

 

At the end of the day, employers with employees in Canada should balance the cost of a dismissal without cause with the potential cost of litigation.  If a company offers a long-term employee little more than the ESA amounts, there is a high likelihood the employee will sue for wrongful dismissal.  Even if the court awards the employee only a small amount above the ESA requirements, the hassle, the costs of litigation and the invitation to other employees to do the same will not be worth the several weeks of extra pay a company could have included in the original dismissal offer to the employee.

 

Additionally, any taint of bad faith or poor treatment during the termination process will invite a court to increase its award.  By offering a decent dismissal offer in the first place, a company can hopefully avoid the scrutiny of the court and help contain costs.

 

Finally, it should be noted that none of the above applies if an employee has been dismissed with cause.  An employee who steals, who has a long record of discipline issues, or has engaged in a serious act of violence, for example, all may be grounds for dismissal with cause.  In that case, no payment or notice is required. 

 

The threshold of “with cause” is high in Canada, however, and an employer would be wise to think hard about whether it has sufficient evidence to prove dismissal with cause.  In the case of any doubt, offer a decent package and be done with it.

 

 

The United Nations International Labour Organization (ILO) just held its annual conference in Geneva from June 1-18, 2010.  The purpose of the annual conference is to develop and monitor compliance with international labour standards. 

The ILO is a tripartite agency of the United Nations, comprised of employer, employee and government representatives.  They have been responsible for pushing forward numerous initiatives to improve workplace standards, develop international standards and raise awareness of workplace issues internationally.

 

HIV/AIDS in the Workplace

At this year’s annual conference, the ILO focused on an international labour standard regarding HIV/AIDS in the workplace.  While the issue of HIV/AIDS in the workplace has been has been discussed in various forums over the years (e.g. the ILO and the Commission on HIV/AIDS and Governance in Africa in 2004) it was in 2007 when the ILO initiated a working group to develop an international standard. This reflects an increasingly obvious awareness that HIV/AIDS remains an issue that is dealt with in a broad range of approaches in workplaces around the globe. 

 

Final Text of Recommendation Passed by General Assembly

The final text of the new standard was passed by the General Assembly in a vote on June 16, 2010.  The standard is unique in that it is the first internationally sanctioned legal instrument aimed at strengthening the contribution of the world of work to universal access to HIV prevention treatment, care and support.

 

The new standard is in the form of a Recommendation and must be communicated to national parliaments and discussed in terms of how it will be implemented through national policies and legislation. 

 

This is a historic development for those suffering from HIV/AIDS and those affected by this pandemic.  Let’s hope the international standard will be able to push forward a better understanding of the skills, talent and hard work that employees with HIV/AIDS can contribute to the workplace.

 

The head of the employment and labour group in my firm, Kevin Coon, served as the Canadian employer delegate and has been working on the international labour standard for a couple of years.  In a press release about the new standard, Kevin notes that two thirds of those living with HIV/AIDS participate in the workplace, which is why the development of the standard is critical to the ongoing support, awareness-raising and protection of those with HIV/AIDS.  You can check out his video interview on the ILO website as well.

 

Impact in Canada

While it remains to be seen how the new international standard will be applied at Canada, increasingly, Canadian courts and arbitrators are considering international labour standards in the interpretation of other national laws.

 

Good examples are the Supreme Court of Canada cases of Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia and Fraser v. Ontario (A.G.) (the latter of which was heard in December 2009 but for which a decision has not yet been released). Both cases consider the international labour standard of freedom of association in the context of rights set out in the Charter.

 

While the development of policies, standards and recommendations of the ILO may seem a world way, their impact on local law continues to grow.

There is a lot of activity, spilled ink and worry about complying with Bill 168 out there.  For my own spilled ink, see my previous posts on the issue: 

Also see the Ministry of Labour/OHSCO’s resources at:

The week alone I revised a couple of policies on workplace violence and harassment, spoke to 100 employers at an industry association meeting about how to comply by June 15 and conducted an assessment of workplace violence with a client. 

Yes, there is a lot to do, but, given that it is a Friday morning before a long weekend and I’m feeling particularly cheerful, I wanted to point out that it is not all doom & gloom.  A pattern I’m seeing emerging is the number of opportunities this new legislation is creating for employers:

  • Conversations about improving workplace health and safety:  Obviously everyone benefits from a safer workplace.  Addressing risks of both violence and harassment may raise issues that are bubbling under the surface, clear up long-standing issues, or at least lessen future incidents. For employers, fewer incidents of workplace violence and harassment means fewer resources, time and money spent on these issues, and a decreased risk of liability, all of which are good for the bottom line of the company.
  • Raise awareness:  The training and the revised and/or newly introduced policies on workplace violence and harassment are opportunities to educate your employees about the issues.  If done well, it can both clarify what is not harassment (e.g. not every unkind word amounts to harassment) and identify what is workplace violence (e.g. certain "horseplay" or practical jokes that cross the line)
  • Educate on domestic violence:  This issue raises the most questions and concerns, which means people are actively turning their mind to it.  While I don’t believe employers should become the watchdog of their employees’ private life – and very few are qualified to actively counsel on this issue – as of June 15, there will be an express legal duty to not turn a blind eye to the issue when it exposes any employees to the risk of physical injury in the workplace.  This is an opportunity to gather resources and become aware of the telephone numbers, websites and booklets you could provide to an employee you suspect is suffering from domestic issue.  As a start:
  • Assess the physical attributes of the workplace:  In the course of the mandatory assessment, employers have the opportunity to revisit the basic physical attributes of their workplace: lighting, parking lot obstacles that may increase risks, battery life on panic buttons, general access to the building by strangers, family members and service providers, whether isolated areas should have a phone installed, etc. 
  • Engage your employees:  Employers need employee "buy-in" to make the entire exercise successful.  Employers need the information from employees if any trouble is brewing on the floor, and employees need to understand that it is equally their responsibility to relay information about risks of violence and harassment in the workplace.   Safety issues often impact women more than men, so this is also an opportunity to strengthen the voice of women in your workplace and provide them with a vehicle to raise concerns about workplace safety.
  • Engage your union reps:  Many union reps will welcome the opportunity to work with management on identifying and dealing with workplace violence and harassment.  Often your union rep is the front-line gatekeeper that has to decide whether a complaint from a union member actually falls within "harassment" or "violence".  If they are wrong and choose not to file a grievance, they may face a Duty to Fairly Represent complaint from their members.  The conversations, training, assessment and updating of policies all assist the union and management to clarify what various expectations are and what are the general parametres of the legislation.  While we are unlikely to see any overall decrease in grievances on the issue, hopefully these conversations can help eliminate some of the more frivolous complaints not contemplated by the legislation or the parties.
  • Engage high risk individual employees:  Several employers have told me that they will use the training as an opportunity to address specific issues already at play in their workplace.  For example, if you have two employees engaging in excessive flirting, and one of those employees has a spouse with a particular temper, after the training you can pull them each aside separately and point out how they fall squarely within the concerns raised by the domestic violence provisions of the Bill, and how your employer duties require you to pro-actively address the situation.  Similarly, during the training, you can identify certain types of behaviour that may violate the new provisions and put your employees on notice that the workplace will be actively dealing with these issues (e.g. "horseplay", excessive practical jokes or teasing, etc).

If you have experienced other positive results from working on your Bill 168 compliance plan, I’d love to hear from you. 

Becoming complaint with the new workplace violence and harassment law (Bill 168) has recently moved to the centre of many organizational radars.  The deadline to comply  is June 15, 2010, so there are about 5 weeks left to take the necessary steps to meet the requirements of the legislation. 

Lots to Do…

Bill 168 passed last December and amends the Ontario Occupational Health and Safety Act.  Employers must have completed a number of steps by June 15, including:

  • update or create policies on workplace violence and harassment;
  • develop a program to implement the policies;
  • conduct an assessment of workplace violence;
  • communicate to and train staff about the the policies and programs;
  • determine protocol around domestic violence that exposes workers to violence in the workplace; and
  • determine protocol regarding the disclosure of information about a person with a history of violent behaviour that may expose a worker to violence.

Yes, there is a lot to do.  Many organizations already have decent policies and programs on workplace violence and harassment and will simply have to tweak existing documents to comply.  Others need to start from scratch.

Workplace Assessments

Virtually everyone, however, will be starting from scratch when it comes to the mandatory assessment of workplace violence.  The amendment requires employers to "assess the risks of workplace violence that may arise from the nature of the workplace, the type of work, or the conditions of work."  The assessment must take into account circumstances that are both common to similar workplaces and specific to your workplace. 

And that’s it – there is no other legislative guidance that outlines what the assessment should look like, how comprehensive it should be, in what format it should be, etc.

I have given a number of training sessions to clients on how to conduct workplace assessments.  One of the messages I try to get across is that this is not rocket science.  It’s a matter of developing a comprehensive and logical checklist of the risks of violence in your workplace. 

While it may be impossible to eliminate all risks of workplace violence and harassment, this exercise is about identifying risks so that steps can be taken to minimize those risks.

While the legislation only requires the assessment of workplace violence, I believe it is prudent –  and not necessarily extra work – to include the assessment of workplace harassment in the exercise.  Quite often, harassment is a preliminary step to violence and the two concepts cannot always be separated.

In general, employers, along with significant employee participation, will want to review the physical characteristics of your workplace to determine levels of risk, and to review past injury reports, security incident reports, human rights complaints and internal grievances to identify any patterns of behaviour or corners of the organization that may be at a higher risk.

Resources

Very recently, the Ontario Ministry of Labour and the Occupational Health and Safety Council of Ontario released some excellent resources to assist workplaces with becoming compliant:

  • What Employers Need to Know explains the various parts of the amendments, provides detailed resources about domestic violence, outlines how to develop the required policies and programs, and how to conduct the assessment.
  • A Toolbox includes sample policies, an optional employee survey, and a template assessment worksheet to build on and cater to your workplace.

While there are many good consultants and organizations that can assist with conducting the assessment, for many workplaces, the Ministry of Labour’s resources will provide an excellent and cost-effective way to conduct the assessment in-house.  Regardless of the route chosen, the HR team will need to dig through the existing (and sometimes very out of date) policies and documents that will inform the assessment, so it is impossible to completely outsource the project. 

Of all of the tasks required by the new amendments, the assessment will likely be the most time-consuming and labour intensive exercise.  Once you have your template up and running, however, future assessments will likely be much less of a burden. 

Furthermore, the assessments should provide a great opportunity for organizations to cross-educate management and employees about where are the potential risks of workplace violence and harassment, and to inform each other about concerns that should be acted on before they escalate into serious situations.  

 

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.