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As an investigator at Rubin Thomlinson LLP who specializes in sexual harassment investigations, I understand how challenging these can be. These investigations need to be approached with not only sensitivity and empathy, but with up-to-date knowledge of the law.
Surprise, you have been recorded! It is the first thing that popped into my mind after reading my colleague and Vice-chair Bruce Best’s recent decision of Ardila-Zuluaga v. IO Industries Inc., 2021 HRTO 1042 .
In this blog, I highlight some practical applications of workplace assessments in the context of recently enacted “right-to-disconnect” legislation in Ontario and the issue of overwork more generally.
In human rights law, courts and tribunals will often find it useful to determine whether a claimant has established a prima facie case of discrimination. The test requires that the complainant has a protected characteristic under the relevant human rights legislation; that the complainant suffered disadvantage or adverse impact; and that the protected characteristic was a factor or had contributed to the disadvantage or adverse impact.
Time has always been of the essence in workplace investigations. In our practice, we go so far as to qualify time as one of the pillars of an investigation. As considerable as it already is, its importance may have reached another level with the recent decision in Toronto District School Board v. Canadian Union of Public Employees, Local 44001. In that case, Arbitrator John Stout found the failure to conduct a timely investigation to be a stand-alone ground to conclude a violation of the Ontario Human Rights Code (“the Code”).
In a decision earlier this year, considered a win for gender-diverse people, the Quebec Superior Court recognized the harms associated with the misidentification of non-binary and trans people on various forms of government issued identity documents (IDs).
Many of us are familiar with the expressions “shop talk” or “workplace banter” in reference to conversations that are presumed to occur in certain predominantly male workplaces, such as a construction site or an industrial worksite, but not in others.
The nature of discrimination is such that it is often based on an individual’s “gut feeling” about an experience or interaction, rather than anything that is overtly said or done. The courts have recognized time and again that discrimination is often subtle and not overt.
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