On August 4, 2017, Premier John Horgan announced the Government’s intent to re-establish a human rights commission. The British Columbia Human Rights Commission was dismantled about 15 years ago. Currently British Columbia has a direct access model allowing complaints to be brought directly to the British Columbia Human Rights Tribunal. In jurisdictions with commissions (in other provinces and federally) complaints must first proceed through an investigation process with a human rights commission.
On June 19, 2017, Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, received Royal Assent. As a result, “gender identity” and “gender expression” are now prohibited grounds of discrimination under the Canadian Human Rights Act (the “Act”). In particular, section 3(1) of the Act now reads:
Prohibited grounds of discrimination
3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, disability and conviction for an … Continue Reading
In Stewart v. Elk Valley Coal Corp., 2017 SCC 30, the Supreme Court of Canada recently reaffirmed the two-part test for discrimination in the workplace. Centered on the termination of an employee’s employment for drug use in violation of a drug and alcohol policy, this decision reinforces employers’ ability to implement and rely upon drug and alcohol policies aimed at promoting a safe workplace.
Elk Valley Coal Corporation implemented an Alcohol, Illegal Drugs & Medication Policy (“Policy”) aimed at promoting safety at its mine. The Policy contained a “No Free Accident Rule” – employees who disclosed any … Continue Reading
The national epidemic of opioid abuse and overdoses is almost a daily feature in news media. Meanwhile, recent figures indicate that prescriptions for painkillers continue to increase in Canada. It is in this context that the Canadian Human Rights Commission recently released a new guide: Impaired at Work: Guide to Accommodating Substance Dependence. As stated at the outset of the guide, its purpose is “to help federally-regulated employers address substance dependence in the workplace in a way that is in harmony with human rights legislation.”
The definition of disability under the Canadian Human Rights Act includes “previous or existing … Continue Reading
On April 7, 2017, the BC Government issued a press release on having fulfilled its promise to ban mandatory high heels from BC workplaces. The change was made by amending section 8.22 of the Occupational Health and Safety Regulations (“OHS Regulation”), and is explained by WorkSafeBC’s recently adopted OHS Guideline G8.22Footwear regarding section 8.22 of the OHS Regulation.
The Guideline provides that “footwear must both allow the workers to perform their work safely and provide the protection required for the particular environment.” Employers must conduct an assessment of the risks present in their particular workplace and duties of the employee … Continue Reading
McCarthy Tétrault’s Doing Business in Canada provides a user-friendly overview of central aspects of the Canadian political and legal systems that are most likely to affect new and established business in Canada. The newest edition includes sections on: Immigration (at page 129); Employment (at page 151); and Dispute Resolution (at page 171).
General guidance is included throughout the publication on a broad range of discussions. We also recommend that you seek the advice of one of our lawyers for any specific legal aspects of your proposed investment or activity.
In 2010, Mr. Skinner was involved in a motor vehicle accident while working, and subsequently developed a physical and mental disability. After exhausting conventional drug options to treat his symptoms, Mr. Skinner’s physician prescribed medical marijuana. The medication provided him with some relief from his chronic pain and improved functionality. Mr. Skinner requested coverage for the medical marijuana under the Canadian Elevator Industry Welfare Trust Plan (“Plan”), a private benefit plan designed to provide health and related benefits to union employees in the elevator industry.
The Plan’s Trustees denied the request on the basis that: (i) medical marijuana did not … Continue Reading
A recent decision of the BC Human Rights Tribunal (“Tribunal”) serves as a useful reminder of the utility of a reasonable settlement offer, which can result in the Tribunal putting an end to complaint proceedings without a hearing. In Sebastian v. Vancouver Coastal Health and others (No. 3), 2017 BCHRT 1, the Vancouver Coastal Health Authority (“VCH”) made a reasonable settlement offer and succeeded in having a human rights complaint filed by a litigious employee dismissed by the Tribunal under section 27(1)(d)(ii) of the Human Rights Code, thereby avoiding a 15-day hearing.
Joseph Sebastian is an employee … Continue Reading
Following our previous post on the British Columbia government’s bill to amend the Human Rights Code [Code] earlier this year, the bill recently received royal assent and “gender identity and gender expression” are now expressly included in the Code as protected grounds.
Though the meaning and application of these new protected grounds will need to be fleshed out by Tribunal and court decisions, the Tribunal’s website now provides the following descriptions:
Gender Expression: Gender expression is how a person presents their gender. This can include behaviour and appearance, including dress, hair, make-up, body language and voice. This … Continue Reading
McCarthy Tétrault’s Doing Business in Canada provides a user-friendly overview of central aspects of the Canadian political and legal systems that are most likely to affect new and established business in Canada. The newest edition reflects legislative changes including:
- Changes to the Competition Act and Investment Act Canada;
- and an updated Mergers and Acquisitions chapter including new rules on takeover bids in Canada.
General guidance is included throughout the publication on a broad range of discussions. We also recommend that you seek the advice of one of our lawyers for any specific legal aspects of your proposed investment or activity.… Continue Reading
British Columbia’s Attorney General and Minister of Justice, Suzanne Anton, announced on Wednesday, July 20, 2016, that the government will introduce a bill next week to amend British Columbia’s Human Rights Code [Code] to include “gender identity and gender expression” as protected grounds. This announcement reflects a change in the government’s policy, which for years maintained that it was not necessary to amend the Code because the language was already sufficient to protect the rights of transgendered people.
The Supreme Court of Canada ruled today in Wilson v. Atomic Energy of Canada Ltd. that federally regulated employers must provide justification for dismissing a non-unionized employee, confirming that that federally regulated, non-unionized employees cannot be dismissed without cause or reasons. This means that a federal sector employer cannot simply terminate the employment of an employee by providing reasonable notice, whether measured by the statutory minimums provided under the Canada Labour Code (the “Code“) or the common law. Without proper justification, an employee may be entitled to a host of remedies under the Code including, but not … Continue Reading
We previously reported on the B.C. Human Rights Tribunal’s record-high $75,000 award for injury to dignity, and the subsequent decision of the B.C. Supreme Court that the award was patently unreasonable in the circumstances.
The B.C. Court of Appeal in University of British Columbia v. Kelly has now restored the Tribunal’s original award for injury to dignity, emphasizing that it is for the Tribunal to consider the evidence in each individual case.
Dr. Kelly was a medical school graduate who had been diagnosed with ADHD and a non-verbal learning disability. He experienced significant difficulties while attempting to complete UBC’s residency … Continue Reading
Employment and Social Development Canada recently released a Discussion Paper on Flexible Work Arrangements, signaling potential changes to the Canada Labour Code (“Code”). The Discussion Paper follows on the federal government’s November 2015 mandate to the Minister of Employment, Workforce Development and Labour to amend the Code in order to allow workers in federally regulated sectors to formally request flexible work arrangements from their employers. Employers would then be obliged to respond to such requests, and could only deny requests on “reasonable business grounds”. Changes to the Code would affect some 880,000 employees working for over 11,450 employers in federally … Continue Reading
Many employers and practitioners of human rights law in British Columbia (like us) have been following the Federal Court of Appeal decision in Canada (Attorney General) v Johnstone, expecting that, as in Alberta and Ontario, the BC Human Rights Tribunal may adopt Johnstone‘s broader federal human rights test for family status discrimination, which would displace the narrower BC test from Health Sciences Association of B.C. v. Campbell River and North Island Transition Society (Campbell River). Although Johnstone was not raised directly in the decision, the BC Human Rights Tribunal recently declined an invitation to reconsider the … Continue Reading
Last year, we reported on a decision of the B.C. Human Rights Tribunal which awarded $75,000 in damages for injury to dignity, feelings, and self-respect, more than twice the previous high water mark ($35,000) in similar cases. The B.C. Supreme Court has now ruled that the $75,000 award was unreasonable in the circumstances. The decision likely signals at least a pause in the expansion of such awards.
Dr. Kelly was a medical school graduate who had been diagnosed with ADHD and a non-verbal learning disability. He experienced significant difficulties completing his residency program rotations. Dr. Kelly consulted various specialists during … Continue Reading
The reality of the global economy is that business decisions are frequently made based on factors from both inside and outside Canada’s borders. Employers in industries that may be subject to foreign laws, regulations or decisions can face real challenges if those factors affect their Canadian legal obligations, particularly when it comes to human rights issues. Throw in some uncertainty when a foreign decision is based on unknown security threats, and it can be a recipe for a long legal struggle.
Bombardier Inc. (Aerospace Training Centre) (“Bombardier”) faced this issue, and over a decade of human rights proceedings, when it … Continue Reading
Given the increasing availability and use of medical marijuana in British Columbia, employers are often faced balancing the need to ensure a safe workplace and an employee’s right to legitimate medical treatment. A recent decision of the BC Human Rights Tribunal gives employers some welcome clarity on the limits of the duty to accommodate, the nature of bona fide occupational requirements (“BFORs”), and the legality of “zero tolerance policies” regarding drug use on the job.
Federally-regulated employers may soon be seeing changes to privacy and human rights laws in relation to genetic information. On June 9, 2015, the federal Minister of Justice introduced Bill C-68, otherwise known as the Protection Against Genetic Discrimination Act. The bill is aimed at better protecting persons’ genetic information in Canada. The latest version of the bill can be found here.
Bill C-68 will clarify the law relating to the use, collection, and disclosure of genetic information by amending three pieces of federal legislation: the Canadian Human Rights Act, the Personal Information Protection and Electronic Document Act (PIPEDA) … Continue Reading
Human Rights Tribunal found nanny was sexually assaulted, isolated and underfed by employer
Where an employer fails to meet its human rights obligations, the damages awards for the “injury to dignity” component of damages are becoming increasingly significant. The recent decision of the British Columbia Human Rights Tribunal in PN. v. FR and another (No. 2), is an example of the scale of penalty an employer can face where the breach of human rights obligations is at the extreme end of the scale.
The complainant, a domestic worker from the Philippines, was placed with the respondents as a housekeeper … Continue Reading
The duty to accommodate is a difficult process because it is uncertain. Whether an employer has met its duty to accommodate under human rights law requires an individualized assessment on a case-by-case basis. In addition, the standard of “undue hardship” is a high and moving target, and will depend on the employer’s size, nature of operations, resources and other relevant factors. A recent decision, however, may have moved the target closer to “reasonableness” than “the point of undue hardship”.
Private member’s Bill M 211-2014, titled Gender Identity and Expression Human Rights Recognition Act, passed first reading in the BC Legislature on November 20, 2014. If eventually given royal assent, the bill will amend the definition of ‘sex’ under the Human Rights Code to include “gender identity” and “gender expression”.
The full text of the bill can be read here. We will be sure to keep you updated as this bill makes its way through the Legislature and of its impact on human rights law in the province.… Continue Reading
The Supreme Court of Canada recently made a rare oral ruling from the bench, giving the B.C. Teachers’ Federation (“BCTF”) a quick win in their appeal of a decision by the B.C. Court of Appeal regarding discrimination and unequal treatment under the Human Rights Code and the Charter of Rights and Freedoms.
The case started in 2012 with a grievance filed by the BCTF against the British Columbia Public School Employers’ Association and the Board of School Trustees of School District No. 36 (collectively, the “Employer”). The grievance alleged that the collective agreement discriminated against birth mothers in that … Continue Reading
Our colleague in Toronto, Melissa Kennedy, recently posted about the joys and legal perils of workplace holiday parties. Her post is an excellent reminder of best practices every employer should undertake to make sure that a holiday party does not lead to less jolly legal consequences. We reproduce Melissa’s post below.
With the holiday season fast approaching, many organizations are in the midst of planning their annual holiday parties, meant to recognize the culmination of a year of hard work by employees and celebrate the holiday season. Although this time of year is marked with celebration and provides … Continue Reading