While you’re here, you may wish to attend one of our upcoming workshops:
Interviewing and Dealing with Difficult Witnesses
While you’re here, you may wish to attend one of our upcoming workshops:
Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
Some months ago, I was asked to speak at the Human Resources Professional Association’s HR Law Conference to be held in Toronto on October 20, 2016. My task was to identify the notable developments in workplace human rights over the last 25 years. This was no mean feat. There were so many cases to consider. However, to narrow down our very subjective list, we focused on those areas of the law that we deal with every day in our practice as employment lawyers. Ours is not a particularly academic list – although I suspect there is some overlap. Rather, we asked ourselves, which cases, which concepts, which statutory changes from the last 25 years do we turn to over and over again?
Here is our top 10 list from the paper we prepared for the conference and delivered in a session on October 20, 2016:
- RETHINKING THE BONA FIDE OCCUPATIONAL REQUIREMENT – British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U.  3 SCR 3 (“Meiorin”)
Human rights statutes throughout Canada recognize that bona fide occupational requirements (“BFOR”) are not discriminatory. However, the determination as to what constitutes a BFOR fundamentally shifted in the Meiorin decision, in which a universal fitness standard for firefighters was challenged as having an adverse effect on women.
In finding the fitness standard to be unjustified, the Supreme Court developed a test that has since become the accepted approach to the BFOR analysis:
- Is the standard rationally connected to the performance of the job?
- Was the standard adopted in an honest belief that it is necessary to the fulfilment of a legitimate work-related purpose?
- Is the standard reasonably necessary to the accomplishment of that work-related purpose?
As an interpretive lens to the application of the test, the Supreme Court emphasized that where a standard is prima facie discriminatory, an employer may justify it only if individual employee differences have been accommodated to the point of “undue hardship”.
Meiorin was a game changer. We probably refer to it more often than any other case in our office when we talk to clients about the process requirements of assessing the accommodation needs of their employees. Those discussions frequently arise in the context of return-to-work plans and the associated obligations of employers to facilitate the reintegration process. We often see a tendency in employers to assert “undue hardship” prematurely.
Meiorin sent a clear message that, notwithstanding the existence of universal workplace rules and expectations, employers must conduct assessments of the circumstances and individualized needs of their employees to determine whether accommodation is reasonably possible. Those assessments must take place even in the face of preconceived notions, and even if related determinations have already been made by third parties (e.g. workplace insurance providers). Asserting “undue hardship” should be a remedy of last resort.
Application of the Meiorin Principles
In a series of more recent cases, including Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 (“Hydro-Québec“), the Supreme Court has confirmed the ongoing relevance of the above-noted approach, and has clarified that “undue hardship” does not require proof of impossibility.
In Hydro-Québec, the Supreme Court found that the “undue hardship” threshold was satisfied where an employee with a history of medical absences remained unable to work for the reasonably foreseeable future. Following its consideration of the Meiorin test, the Supreme Court re-confirmed that the individualized duty to accommodate may require the employer to modify the workplace and duties of employees in a manner that enables their performance of work. However, the employer is not required to establish that accommodation is impossible, nor is it required to alter the fundamental essence of the employment contract.
- THE COMPETING RIGHTS ASSESSMENT – R v. S. (N.), 2012 SCC 72
The Canada of 2016 has a greater number of identifiable equity seeking groups. Inevitably, this results in competing rights. What does an employer do when its efforts to accommodate one employee has an impact on the rights of another? These can be challenging issues to sort out.
In R. v. S. (N.), the Supreme Court weighed in on the issue and set out a legal framework for assessing competing rights. The case involved the conflict between a woman’s religious freedom to wear a niqab while testifying in a criminal matter, with the rights of an accused to a fair trial.
In finding that the witness may be required to remove the niqab in certain circumstances, the Court endorsed an approach that seeks to balance the extent of the competing harms:
- Is there an interference with two legitimate rights?
- Is there a way to accommodate both rights and avoid the conflict?
- Do the salutary effects of the interference with one of the rights outweigh the deleterious effects of it?
Application of the R. v. S. (N.) Principles
Although the decision was rendered in relation to protections prescribed by the Charter of Rights and Freedoms (the “Charter”), the Court’s framework arguably provides a broader guideline on reconciling competing claims to most human rights protections. In fact, in January 2012, the Ontario Human Rights Commission released a Policy on Competing Human Rights (the “Competing Rights Policy”), which encourages a very similar analysis.
In the context of workplace disputes, the Competing Rights Policy urges employers to recognize and reconcile competing rights by determining whether there is a solution that allows the enjoyment of everyone’s rights. Where such an outcome is not possible, the employer is asked to come up with the “next best” solution for one or more of the rights.
The Competing Rights Policy also identifies a number of key principles that should guide the reconciliation process, some of which include:
- there is no hierarchy of rights;
- no rights are absolute;
- the core of a right is more protected than its periphery; and
- the full context, facts and constitutional values at stake must be considered.
We look at the Supreme Court’s decision in R. v. S. (N.), in conjunction with the Competing Rights Policy, whenever we have a matter in which the human rights protections of multiple employees appear to conflict. In our experience, we often see a tendency in employers to preemptively favour one side of the dispute, without having undertaken the principled analysis. This commonly arises in conflicts involving religious rights, where one party asserts that their religious beliefs prevent them from adhering to certain established practices (e.g. making physical contact with members of the opposite sex in service-based occupations).
We generally encourage our clients to be neutral and open-minded, and accept the positions of those involved in good faith. In doing so, employers are better able to come up with creative solutions that may allow the reasonable exercise of everyone’s rights, even when some of those rights may conflict with preconceived ideals generally accepted by others.
- RECOGNIZING SUBSTANTIVE EQUALITY – Andrews v. Law Society of British Columbia,  1 SCR 143 (“Andrews”)
What does equality mean in Canada? In 2016, we often forget that following the advent of the Charter, there was widespread disagreement over what equality meant. Was it the same treatment between people? Was it something else? Some legal decision-makers interpreted the language formally and restrictively, equating the protection with the prevalent maxim that persons who are “similarly situated ought to be similarly treated”.
In Andrews, the Supreme Court went further and adopted a contextual analysis. The case involved a lawyer who was denied admission to the British Columbia bar because he lacked Canadian citizenship.
In striking down the citizenship requirement, the Supreme Court endorsed a substantive approach to equality, which recognizes that universal laws may nevertheless be discriminatory to certain individuals, depending on differences in personal characteristics and situations. Specifically, consideration must be given to the content of the law, its purpose and its impact upon those to whom it applies, as well as those excluded from its application.
Application of the Andrews Principles
Since Andrews, many cases have applied and refined the substantive equality framework. Quite recently, in Hay v. Ontario Provincial Police, 2014 ONSC 2858 (“Hay”), the Ontario Divisional Court upheld a decision of the Human Rights Tribunal of Ontario (the “HRTO”), which found that the dismissal of a First Nations Constable was not tainted by discriminatory motives relating to race, ancestry and ethnic origin. In addition, the HRTO found that the exclusion of First Nations Constables from the disciplinary protections of the provincial Police Services Act was not discriminatory, as the exclusion reflected a respect for the self-government of First Nations communities.
In Hay, the Ontario Divisional Court reviewed the evolving case law, including a number of post-Andrews Supreme Court decisions, and extracted the following principles:
- a finding of discrimination is ultimately based on whether the norm of substantive equality has been violated;
- the focus of the inquiry must be on establishing discriminatory impact or effect, rather than discriminatory attitudes or motives; and
- while prejudice and stereotyping are indicia of discrimination, they are not discrete prerequisites.
Bottom line for our clients: treating employees equally does not necessarily mean treating them the same. This approach is consistent with the individualized nature of the duty to accommodate.
We are often asked whether an employee’s failure to follow universal workplace policies, or satisfy company-wide performance expectations, is sufficient to establish cause for termination. The answer always depends on whether there are underlying factors at play. If there are, and if those factors relate to a protected ground (e.g. age, disability, sex, etc.), the employer may be exposed to a claim for discrimination, notwithstanding the universality of the expectation. This theme has become quite well-entrenched in the human rights case law.
- SEXUAL HARASSMENT AS SEX DISCRIMINATION – Janzen v. Platy Enterprises Ltd.,  1 SCR 1252 (“Janzen”)
Human rights statutes throughout Canada have long prohibited discrimination in employment on the basis of sex. Since the early 1980s, human rights adjudicators began expanding the protection to include acts of sexual harassment. However, some Canadian courts continued to question the nexus between sexual harassment and sex discrimination in employment until the Supreme Court’s decision in Janzen.
In that case, two waitresses were sexually harassed by a cook, and brought complaints that the conduct constituted discrimination on the basis of sex. In overturning the decision of the Manitoba Court of Appeal, the Supreme Court unanimously ruled that sexual harassment is a form of sex discrimination. In recognition of its impact as both an abuse of economic and sexual power, the Supreme Court broadly defined workplace sexual harassment as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences”.
Application of the Janzen Principles
Even today, Janzen continues to be referenced in virtually every workplace human rights case involving sexual harassment. Many of those cases are increasingly awarding significant damages to deter workplace sexual harassment, and recognize the serious psychological and physical impact it has on the long-term well-being of its victims. For example, in the highly publicized decision O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675, the HRTO awarded an unprecedented sum of $150,000 to a temporary foreign worker who had been subjected to numerous unwelcome sexual advances, solicitations and assaults by the owner of her employer.
In addition, since the decision in Janzen, there is an enhanced focus on an employer’s duty to investigate complaints of workplace sexual harassment. For example, in the oft-cited Harriott v. National Money Mart, 2010 HRTO 353, the HRTO was highly critical of an employer’s failure to undertake a prompt, serious and thorough investigation when it became aware of the possibility of harassment occurring in the workplace.
Consider the impressive legacy of Janzen: from increased vigilance on preventing workplace sexual harassment, to the growth of workplace investigations and statutory obligations, including Ontario’s Bill 132 (as further discussed below) and British Columbia’s Bill 23. Added to this list would be Justice Marie Deschamps’ report on sexual misconduct and harassment in the Canadian Armed Forces, and Sheila Fraser’s current inquiry into the RCMP’s handling of four harassment-related claims.
- RECOGNIZING LGBT RIGHTS – Vriend v. Alberta,  1 SCR 493 (“Vriend”)
The LGBT community has historically been excluded from rights-conferring legislation. It was not until the 1970s-80s that provincial human rights statutes began to recognize sexual orientation as a protected ground. The province of Alberta was one jurisdiction that lagged behind that development, until the Supreme Court’s decision in Vriend.
In that case, an employee was fired as a result of his admitted homosexuality, but was unable to file a discrimination complaint because “sexual orientation” was not a protected human right in the provincial legislation. The employee commenced a lawsuit, alleging that the omission was inconsistent with the equality guarantees of the Charter. In agreeing with the employee, the Court effectively ruled that legislation purporting to discriminate or exclude individuals on the basis of sexual orientation is inconsistent with the Charter.
Application of the Vriend Principles
Vriend is viewed as one of the fundamental triggers for the increased recognition of LGBT rights in the 21st century. A number of cases have applied its principles to expand the protections afforded to LGBT persons. For example, in Heintz v. Christian Horizons, 2010 ONSC 2105 (“Heintz“), the Ontario Divisional Court upheld a ruling of the HRTO which found that a religious not-for-profit organization discriminated against a lesbian support worker by requiring her to adhere to a workplace policy that prohibited homosexual relationships. In reaching its decision, the HRTO specifically referred to Vriend when commenting on the particularly harmful effect of policies purporting to exclude homosexuals from employment, despite otherwise being hard workers and having the required competencies.
Heintz involved the application of the special employment provisions of the Ontario Human Rights Code relating to religious institutions. The employer acknowledged that the policy contemplated differential treatment based on a prohibited ground, but it argued that the treatment was justified by the special employment exemption, which applies where:
- the employer is a religious organization
- the employer is primarily engaged in serving the interests of persons identified by their creed and employs only people who are similarly identified; and
- the differential treatment is a reasonable and bona fide qualification because of the nature of the employment.
Although the Ontario Divisional Court did not agree with the complete analysis of the HRTO, it did agree that the employer failed to meet the third branch of the test, as the prohibition was not reasonably necessary or connected to the duties of a support worker whose primary role did not involve helping others adopt a religious way of living.
The trend towards an increased recognition of LGBT rights has continued in recent years, from protecting individuals who are gay to the express inclusion of wider gender-related protections in the human rights legislation of various provinces, including Ontario, Alberta and British Columbia. This culture shift has presented a number of new challenges for our clients. For example, employers must now consider how to design and encourage the use of workplace facilities (e.g. washrooms, change rooms, etc.) in a manner that respects the lived gender identities of employees. They must also consider how to maintain employee records to reflect changes in gender identify, or changes in how pronouns are used in the workplace, from “he” and “she”, to the newly coined “they” in some circumstances. These types of workplace considerations were virtually non-existent 20 years ago.
- ACCOMMODATING RELIGIOUS FREEDOM – Grant v. Canada (Attorney General),  125 DLR (4th) 556 (Fed. C. A.) (“Grant”)
In a complex and diverse society, accommodating religious freedoms is no easy task. In fact, attempts to challenge multicultural policies under the guise of “reverse discrimination” have made their way through the Canadian legal system.
Grant was one such prominent case in which a uniform policy of the RCMP, which allowed Sikhs to wear turbans, was challenged as unconstitutional on the grounds that:
- it compelled individuals to acknowledge the religious traditions of Sikh officers; and
- it favoured the religious preferences of Sikhs over those of other groups.
In finding that the policy was one which actually encouraged religious freedom, the Federal Court of Appeal judicially stamped recognition of the multicultural nature of Canada. In that respect, the Court held that religious protections for one group do not denote a disregard for other groups, nor do they compel other individuals to participate in, adopt or share the associated religious practices.
Application of the Grant Principles
The multiculturalism encouraged by the decision in Grant has expanded into other aspects of workplace accommodation, including the toleration of religious observances. In that respect, many employers have come up with creative ways to design flexible holiday policies that universally address the needs of a diverse workforce.
For example, in Markovic v. Autocom Manufacturing Ltd., 2008 HRTO 64, the HRTO was presented with a workplace policy that sought to accommodate religious observances by offering employees a “menu of options”, which included making up time, arranging to switch shifts with another employee, adjusting shift schedules, using up earned vacation time and taking an unpaid leave of absence. Notwithstanding those options, an employee alleged that the policy was discriminatory as it did not offer paid time off during Orthodox holidays to mirror the paid time off that employees would receive during Christian holidays.
In dismissing the complaint, the HRTO found that a “menu of options” approach was appropriate in the circumstances, as it permitted religious observance without loss of pay and was supportive of an employee’s autonomy of choice. In reaching that conclusion, the HRTO specifically noted that employers are obligated to design workplace standards in a way that recognizes differences in religion, and accommodates those differences with the goal of enhancing participation and inclusion – a task that it believed the employer had accomplished.
The evolving legal recognition of the multicultural nature of Canada sends a clear message; unreasonable and unsubstantiated beliefs will not justify policies that directly or indirectly impose blanket restrictions on religious practices. In contrast, employers must accommodate and encourage religious diversity in ways that reflect our evolving society.
The RCMP recently provided us with a great example of how to promote religious diversity and inclusion. In August 2016, the organization announced that women may now request approval to wear hijab head scarves as part of the iconic RCMP uniform, a change that was allegedly implemented in an effort to attract Muslim women to the organization.
- DEFINING FAMILY STATUS: Johnstone v. Canada (Border Services Agency), 2014 FCA 110 (“Johnstone”)
The inclusion of “family status” in human rights statutes as a protected ground is a recognition of the nature of modern Canadian families, as well as the competing obligations they often face. However, the scope of the “family status” protection has been a source of discord amongst adjudicators. In Johnstone, the Federal Court of Appeal adopted a broad interpretation of the concept, which has since become one of the leading authorities on the analysis.
Johnstone involved an employer denying a mother’s request for a modified work schedule that would permit making adequate arrangements for the care of her child. In finding that the mother had been discriminated against on the basis of family status, the Court determined that the concept applies not only to the status of being a family member, but also to the associated legal obligations (e.g. a parent’s legal obligation to care for a dependent child).
Based on the decision in Johnstone, a case of family status discrimination that is grounded in childcare obligations will arise where the following factors are satisfied:
- a child is under the parent’s care and supervision;
- the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
- the parent has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and no such alternative solution is reasonably accessible; and
- the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation
Application of the Johnstone Principles
We have only just begun to feel the effects of Johnstone and we expect that it will have a broad application – in fact, the principles enunciated therein have already been applied to eldercare. For example, in Canada (Attorney General) v. Hicks, 2015 FC 599, the Federal Court found that the ground of family status should encompass eldercare obligations, as such obligations are entrenched in Canadian values, and their improper fulfillment can attract both civil and criminal responsibility. Think about that in the context of a country that has an aging population, which will soon be the largest cohort of older persons in Canada’s history.
In Ontario, a recent HRTO decision involving eldercare, Misetich v. Value Village Stores Inc., 2016 HRTO 1229 (“Misetich“), may be re-defining the breadth of the family status protection. In considering the test formulated by Johnstone, the HRTO determined that:
- there should not be a different test for family status discrimination than for other forms of discrimination;
- there are many obligations that caregivers may have that do not emanate from their legal responsibilities – limiting the protection only to legal responsibilities imposes an unduly onerous burden on applicants; and
- as part of the test for discrimination, an applicant should not be required to establish that he or she made reasonable efforts to meet obligations through reasonable alternative solutions and that no alternative solution was reasonably accessible.
The HRTO ultimately held that the employee failed to make out her claim for family status discrimination due to the lack of information she provided to the employer about the nature of her eldercare responsibilities. In reaching that conclusion, the HRTO appears to have modified the Johnstone test, and has shifted the focus to the following considerations:
- the applicant must establish that there is a negative impact on a family need, which results in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship, or to the employee’s work; and
- the supports available to the applicant may be relevant to assessing both the family-related need and the impact of the impugned rule on that need.
We are interested in seeing whether subsequent decisions will follow the approach in Misetich.
Next to Meiorin, we have probably discussed Johnstone more often than any other case with our clients. We are often asked to delineate the extent to which employers are required to accommodate matters of convenience rather than absolute need. For example, is an employer always required to acquiesce to an employee’s request to leave work early to pick up their children from school? Employers may find comfort in knowing that the guidelines expressed in both Johnstone and Misetich appear to suggest that employers are not required to accommodate bald and unsubstantiated requests, nor those that are based solely on matters of convenience.
- ABOLISHING MANDATORY RETIREMENT THROUGHOUT CANADA
For many years, human rights statutes throughout Canada did not prohibit age discrimination in employment against persons older than a prescribed threshold. Based on that exemption, some employers developed mandatory retirement policies, which arbitrarily ended the employment of older workers once they reached the age of 65.
In the last few decades, provincial legislatures began repealing those thresholds. That nation-wide movement culminated in 2012, with amendments to the age provisions of the Canadian Human Rights Act. As a result, Canadian employers are now required to establish that any differential treatment on the basis of age is either justified as a BFOR, or permitted by a prescribed exemption in the applicable legislation.
Application of the Principles
The repeal of those thresholds, in conjunction with our aging workforce, has dramatically shifted our thoughts about who we think is too old to work, and how we manage the ongoing performance of older workers.
For example, in Clennon v. Toronto East General Hospital, 2009 HRTO 1242, the HRTO sent a strong message that, when older employees are experiencing performance issues, soliciting discussions about retirement rather than adhering to established performance management policies will not be tolerated. Similarly, in Deane v. Ontario (Community Safety and Correctional Services), 2011 HRTO 1863, the HRTO found that an employer had discriminated against an older employee by discouraging her from applying for an internal position, and by actively promoting the advantages of retirement in a number of unsolicited discussions.
In light of those decisions, our clients often ask us whether voluntary retirement programs are an effective way to downsize their workforce by attrition, while avoiding complaints of age-based discrimination. In Ontario, voluntary retirement programs are generally permissible if they satisfy various requirements, including:
- they are truly voluntary and not mandatory;
- there are no consequences associated with non-acceptance;
- the employer does not actively encourage retirement; and
- the employer avoids making comments about the reduced utility of older employees.
While we have seen some age discrimination cases in the last few years, we expect to see more as employers are increasingly asked to manage their aging workforces.
- STATUTORY ACCESSIBILITY STANDARDS FOR PERSONS WITH DISABILITIES
Although human rights statutes across Canada have long prohibited discrimination on the basis of disability, few jurisdictions have passed extensive legislation that imposes proactive accessibility obligations on employers in relation to persons with disabilities. In 2005, the province of Ontario enacted the Accessibility for Ontarians with Disabilities Act, (the “AODA”), and became the first Canadian jurisdiction to introduce a comprehensive statutory scheme that seeks to develop, implement and enforce accessibility standards.
The AODA is being implemented in accordance with a gradual roll-out schedule, which seeks to establish a fully accessible province by 2025. The AODA’s prescribed accessibility standards impose various obligations on certain employers operating in Ontario, including:
- notifying employees and job applicants about the availability of accommodation;
- providing employees with training on the requirements of the AODA and the Ontario Human Rights Code as it pertains to persons with disabilities;
- providing employees with accessible communication supports and formats;
- documenting individual accommodation plans for employees with disabilities; and
- filing ongoing accessibility compliance reports.
Application of the Principles
Implementing wide-spread accessibility standards in Ontario has had its challenges. In fact, since its inception, the AODA has undergone two legislative reviews, both of which identified a number of concerns in how the legislative scheme was being implemented. The reviews resulted in the preparation of comprehensive reports. The first was prepared by Chares Beer in February 2010 and the second was prepared by Mayo Moran in November 2014.
Both reports highlight similar overarching themes, including:
- the slow progress in implementing the targets of the accessibility regime;
- the need for stronger government leadership;
- the lack of public awareness on the initiative;
- the implementation challenges experienced by obligated organizations due to the complexity, lack of harmonization and broadness of the legislation; and
- the lack of effective and visible enforcement.
Despite those challenges, the enactment of the AODA signals that Canadians are increasingly adopting a very different way of thinking about disability. In fact, other jurisdictions have recently undertaken to follow Ontario’s lead and develop similar accessibility standards, including the province of Manitoba with its recent enactment of the Accessibility for Manitobans Act. We strongly believe that Canada is progressively transitioning away from the provision of individual accommodation on an ad hoc basis, towards the establishment of a society that is universally accessible.
A great example is the Toronto Transit Commission, an organization that has taken a number of steps to provide the public with a universally accessible transportation service, including by establishing:
- operational elevators and escalators at subway stops;
- on-route audio and visual notices of approaching destinations;
- kneeling buses with extendable ramps;
- designated priority seating for persons with accessibility needs; and
- a 24-hour door-to-door Wheel-Trans service.
- THE STATUTORY DUTY TO INVESTIGATE WORKPLACE HARASSMENT AND DISCRIMINATION
It is one thing for employees to have human rights protections – it is quite another to impose legal obligations upon employers to deal with breaches of those protections. This is how we see the development of the legal obligation to conduct workplace investigations into allegations of workplace harassment and discrimination.
The legal obligation has its roots in human rights case law, where some human rights adjudicators (but not all) determined that an employer was obliged to investigate complaints as part of its obligation to provide employees with a workplace free from harassment and discrimination. There has also been movement in employment law cases, where an employer’s failure to investigate has either triggered the awarding of bad faith damages, or has served as the basis for another actionable tort.
As a result, there is now a body of case law on workplace investigations. It deals with such matters as the circumstances under which one should be conducted, and the procedural content of the obligation to conduct one. This simply did not exist 25 years ago.
Application of the Principles
On September 8, 2016, Ontario’s Bill 132 amended the Occupational Health and Safety Act, and imposed upon employers a statutory duty to conduct “appropriate” investigations into incidents and complaints of workplace harassment. In the absence of a satisfactory investigation, the Ontario Ministry of Labour (the “Ministry”) has reserved the right to order an investigation to be conducted by an impartial third party at the employer’s expense.
The Ministry has also released a Code of Practice to Address Workplace Harassment (the “Code of Practice”), which is intended to be an instructive guide on the implementation of the amended provisions. The Code of Practice specifically sets out a number of principles that employers should adhere to when conducting investigations, including:
- interviewing the complainant and the alleged harasser;
- giving the alleged harasser an opportunity to respond to specific allegations;
- separately interviewing any relevant witnesses;
- collecting and reviewing relevant documents;
- taking appropriate notes and statements during interviews;
- preparing a written report of the investigation; and
- maintaining appropriate confidentiality throughout the process.
We have already participated in many discussions with our clients about the increased legislative focus on workplace harassment, as well as the associated requirements for conducting adequate and appropriate workplace investigations. Bill 132 is the first statutory enactment of its kind in the country, and we expect it to be a game-changer.
Workplace human rights law continues to grow and evolve as time passes. The concepts we have identified in this paper represent some fundamental changes in the world of human rights. When we consider the legal developments of the last 25 years, we believe that we have created workplaces that are more inclusive, more diverse and more respectful. However, as much as we have accomplished, we believe much more work needs to be done. We hope that when we review the legal landscape 25 years from now, we will see further developments.
Janice Rubin and Titus Totan
About the Author: Toronto Employment Lawyer, Janice Rubin, is a co-founder and co-managing partner at Rubin Thomlinson LLP. Janice regularly appears on Best Lawyers and Leading Practioners lists in Canada and is considered one of the country’s foremost experts on employment law.
About the Author: Toronto employment lawyer Titus Totan supports both employee and employer clients in all areas of employment law, including employment standards, contractual and implied obligations, terminations, workplace investigations and workplace human rights.
 Marie Deschamps, “External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces.” Government of Canada, March 27, 2015.
 Public Safety Canada, “Minister of Public Safety and Emergency Preparedness announces the appointment of a Special Advisor.” Government of Canada, July 7, 2016.
 Kathleen Harris, ” RCMP allows Muslim women Mounties to wear hijab.” CBC/Radio-Canada, August 24, 2016, http://www.cbc.ca/news/politics/rcmp-diversity-policy-hijab-1.3733829. Accessed October 4, 2016.
 Charles Beer, “Charting A Path Forward: Report of the Independent Review of the Accessibility for Ontarians with Disabilities Act, 2005.” Queen’s Printer for Ontario, February 2010.
 Mayo Moran, “Second Legislative Review of the Accessibility for Ontarians with Disabilities Act, 2005.” Queen’s Printer for Ontario, November 2014.