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British Columbia Employer Advisor Keeping Employers Posted on Developments in Labour and Employment Law

Category Archives: Discrimination

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The Canadian Human Rights Act gets an update with the addition of “gender identity or expression”

Posted in Discrimination, Employer Obligations, Human Rights, Legislative Changes

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

These heels weren’t made for workin’… BC bans mandatory high heeled shoes in workplace

Posted in Discrimination, Employer Obligations, Human Rights, Legislative Changes, Legislative Requirements, Occupational Health and Safety, WorkSafeBC

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

Reasonable offer prevents litigious complainant from proceeding at BC Human Rights Tribunal

Posted in Discrimination, Employee Obligations, Human Rights, Labour Relations, Litigation

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.

Background

Joseph Sebastian is an employee … Continue Reading

Gender expression and gender identity now express grounds of discrimination under Code

Posted in Discrimination, Human Rights, Legislative Changes, Legislative Requirements

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

B.C. changes course to join other jurisdictions in expressly recognizing gender identity and expression under human rights legislation

Posted in Discrimination, Human Rights, Legislative Changes

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.

LGBTQ2 advocates had argued previously for the changes for a number of reasons, including that, practically speaking, without express protection, Continue Reading

Dismissing an Employee in the Federal Sector? You Will Need More Than a Severance Package

Posted in Discrimination

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

Family status quo for British Columbia

Posted in Accommodation, Best Practices, Discrimination, Employee Obligations, Employer Obligations, Family Status, Human Rights, Litigation

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

Record-high B.C. Human Rights Tribunal Damages for Injury to Dignity Overturned

Posted in Discrimination, Human Rights

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

Foreign Laws Create Human Rights Headaches for Canadian Employers

Posted in Discrimination, Human Rights

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

New Human Rights and Privacy Protections For ‘Genetic Test Results’ Introduced

Posted in Discrimination, Human Rights, Legislative Changes, Privacy

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

“Virtual Slave” Awarded $50,000 for Injury to Dignity

Posted in Discrimination, Family Status, Human Rights, Immigration, Wage and Hours

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

Meeting the Duty to Accommodate – A Success Story

University of British Columbia reasonably accommodated researcher with severe mouse allergy

Posted in Accommodation, Discrimination, Human Rights

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”.

In Wilcox v. University of British Columbia, the British Columbia Human Rights Tribunal dismissed a human rights complaint from a … Continue Reading

Bill To Amend Definition Of ‘Sex’ Under BC Human Rights Code Passes First Reading

Posted in Discrimination, Human Rights, Legislative Changes

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

Holiday Parties – Keep the Season Jolly

Posted in Discrimination, Human Rights, Occupational Health and Safety, Workplace Training

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

How Not To Fill A Labour Shortage

New Challenges for Employers under the Temporary Foreign Worker Program

Posted in Discrimination, Human Capital, Immigration, Recruiting, Temporary Foreign Worker Program

Since we last posted about the Temporary Foreign Worker Program (“TWFP”) here and here, the federal government has, in the face of political pressure, introduced significant changes to the program. Employers now face greater challenges and cost in addressing labour shortages through the use of temporary foreign workers (“TFWs”).

First, employers are now subject to a cap on the proportion of their workforce which can be filled by low wage TFWs. A “low wage” job is any job which pays below the provincial or territorial median wage. Employers with ten or more employees can employ only 10% of their … Continue Reading

Rare Costs Award at BC Human Rights Tribunal for Improper Conduct

Posted in Discrimination, Human Rights, Legislative Changes, Litigation, Termination

Despite an employer’s legitimate basis for terminating an employee’s employment, it will often find itself a respondent to a human rights complaint following termination. The costs for employers to defend a human rights complaint can be very high and, unlike in the courts, the B.C. Human Rights Tribunal does not have jurisdiction to order unsuccessful parties to pay the successful party’s legal fees. However, in exceptional circumstances, the Tribunal has a limited jurisdiction under the Human Rights Code to make punitive costs awards for “improper conduct” that impacts the integrity of the Tribunal’s processes.

The Tribunal found such circumstances to … Continue Reading

Teachers’ Strike: What does it mean for your workplace?

Posted in Accommodation, Discrimination, Employment Standards, Family Status, Human Rights, Labour Relations, Unions, Wage and Hours

While talks continue, there is no immediate end in sight for the ongoing teachers’ strike. For employees with school-age children, this may mean facing a child care gap starting next week. As an employer, what are your legal obligations and what can you do to make sure work continues while school’s out?

The Legal Framework

First, the Employment Standards Act provides all employees in the province with up to five (5) unpaid days of family responsibility leave each year for the care, health and education of a child in an employee’s care.  Employers do not have the discretion to … Continue Reading

Wal-Mart (Still) Pays High Price for Failing to Investigate Employee’s Complaint

Posted in Discrimination

Our colleagues in Ontario recently published a blog post on a decision of the Ontario Court of Appeal involving Wal-Mart that is of interest to employers. The case is a good reminder of the importance of properly implementing and following a comprehensive investigation procedure in response to employee complaints of discrimination and/or harassment.… Continue Reading

“Control and Dependency Define the Essence of Employment”, SCC Rules

Focus is on substance, not form

Posted in Age, Discrimination, Human Rights, Independent Contractors, Litigation

The Supreme Court of Canada released a highly-anticipated decision for professional partnerships, employers and employees today in McCormick v Fasken Martineau DuMoulin LLP.   We commented previously on the facts of the case and the history of proceedings to the British Columbia Court of Appeal here.

In short, McCormick, a partner at a large law firm, claimed that the mandatory retirement provision in the partnership agreement was discriminatory and contravened the Human Rights Code.  The case was eventually heard by the British Columbia Court of Appeal, which concluded that McCormick could not be both a partner and an … Continue Reading

Duty to Accommodate Child Care Obligations? The Federal Court of Appeal Weighs In

The Federal Court of Appeal takes a “broad” approach to family status discrimination – with limitations – in two recent decisions

Posted in Accommodation, Discrimination, Employee Obligations, Family Status, Human Rights

What is an employer’s duty to accommodate an employee’s child care obligations? This topic continues to be a hot one in the workplace, as employers try to balance the need to retain talent and ensure a productive workplace.

Part of the problem is that “family status” is not defined in either the British Columbia Human Rights Code or the Canadian Human Rights Act. As a result, different approaches to what family obligations, if any, are protected by human rights legislation have emerged in various Canadian jurisdictions. As we have discussed in previous posts here and here, the British … Continue Reading

WorkSafeBC Safety Investigations Could Compromise Charter Protections

Crown declines to pursue charges relating to deaths in 2012 Burns Lake Sawmill explosion due to WorkSafeBC investigation inadmissibility concerns

Posted in Discrimination

Media outlets are reporting that the B.C. Criminal Justice Branch is declining to pursue charges against the Burns Lake Sawmill owner following a workplace explosion two years ago that resulted in the deaths of two workers.  Crown counsel cited the inadmissibility of significant portions of the investigation report prepared by WorkSafeBC after the incident, based on the likelihood of Charter-rights violations.  Crown counsel concluded that certain evidence collected by WorkSafeBC would likely be found inadmissible, and result in the charges being dismissed.  Crown counsel’s concerns stemmed from the lack of search warrants and the failure to instruct a company … Continue Reading

Damages for Injury to Dignity Significantly Increased by B.C. Human Rights Tribunal

Case signals Tribunal’s willingness to increase this kind of damages award in the future.

Posted in Accommodation, Damages, Discrimination, Human Rights

In Kelly v. University of British Columbia (No. 4), 2013 BCHRT 302, the B.C. Human Rights Tribunal awarded the complainant, Dr. Carl Kelly, $75,000 in damages for injury to dignity. This is more than double the previous highest award of $35,000, set in Senyk v. WFG Agency Network (B.C.) Inc., 2008 BCHRT 376.

Dr. Kelly was a medical school graduate who had been diagnosed with ADHD and a non-verbal learning disability. Between November 2005 and August 2007, Dr. Kelly experienced significant difficulties integrating with and passing his residency program rotations. He continuously consulted a psychiatrist and numerous … Continue Reading

Human Rights Tribunal Takes On Forum Hopping

Does not further the purposes of the Code

Posted in Accommodation, Discrimination, Human Rights, Unions

The BC Human Rights Tribunal has breathed new life into the concept of what it means to further the purposes of the Human Rights Code with the result that employers have some hope in stopping forum hopping and serial litigation.  Mahdi v. Hertz Canada Limited could prove to be one of the Tribunal’s most important dismissal decisions yet.

Mr. Mahdi is a long time unionized employee of Hertz.  Over the course of about four years he pursued multiple  grievances about his vacation rights.  He had some success following hearings or by way of settlement.

Before the last of his vacation … Continue Reading

Why DSM-5 is Important to Employers

Posted in Discrimination, Human Rights, Occupational Health and Safety, Workers Compensation

The long awaited DSM-5 has arrived and the controversy rages. Meanwhile, no matter what employers may think about the changes, they have no choice but to deal with the inevitable fallout.

DSM-5 is the “Diagnostic and Statistical Manual of Mental Disorders” as newly revised from the previous DSM-IV. It was formally introduced this week by the American Psychiatric Association and it becomes the authoritative source in North America for diagnosing mental disorders. (An earlier post talked about some of the controversy in the making of DSM-5.)

Why is it important to employers in BC?

First – it is authoritative – … Continue Reading