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Labour and Employment

At Shibley Righton LLP, our Labour and Employment law group has been acting on behalf of school boards and other employers for more than thirty years, including contract negotiations, grievances, mediations, arbitrations, and many other aspects of the union/management relationship. We also handle wrongful dismissal and other employment law disputes for both employers and employees with the practical approach needed to get the job done right. Whether the claim is $25,000.00 or $10 million, our team's experience allows them to balance toughness in negotiations and litigation, with recognition of the mutual desire of the parties to get the problem resolved.

The firm's Business Law group is also active in employment issues, advising employers and employees at the time of contracting on the best ways to avoid future disputes, and to protect their respective interests.

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Date_Published
2020-04-27
Publication
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Date_Published
2020-03-27
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The creation of a school dress code requires the often delicate balance between the right to freely express oneself and the need for school environments to be respectful and appropriate, says education lawyer Sheila MacKinnon.

One Newfoundland and Labrador school’s dress code recently prompted protests, reports the CBC, as students at Beaconsfield Junior High in St. John's felt the policy was “sexist and unfair.”

Last year, another Newfoundland and Labrador school, Menihek High School in Labrador City, also dealt with dress code controversy after about 30 students were sent home because of attire deemed to have violated the code — including wearing sleeveless shirts and having bra straps exposed, says the CBC.

The Newfoundland and Labrador Federation of School Councils has said schools need to be “democratic” about dress codes and involve parents, teachers and students, says the report.

In Ontario, says MacKinnon, dress codes are created at the individual school and community level.

“As far as I understand it, many school boards have parameters in place to guide schools, but they leave it to individual schools to set their own policies,” MacKinnon, a partner with Shibley Righton LLP, tells AdvocateDaily.com. “Many are then vetted through school councils, and put to a vote by the parents on behalf of children if they’re under 18.”

Individual policies may vary, but MacKinnon says all should be in line with human rights codes and the Canadian Charter of Rights and Freedoms.

“Some people may say, ‘I have freedom of expression and I can wear what I want,’ but like any other Charter right, it’s a balance,” she says. “Schools should consider whether their policy is consistent with human rights codes and the Charter, especially as related to religious beliefs.”

An ideal dress code should touch on respect, safety and the importance of diversity, says MacKinnon.

“Schools should ensure those are covered off. A dress code should also discuss what’s not appropriate. Gang affiliation or profanity is usually not allowed, or clothing depicting violence or any sort of discrimination based on gender, race or disability,” she says. “Decency is usually a concept that’s included as well, with some going as far as to say females cannot bare their midriff, for example.”

Determining where to draw the line with such rules is never easy, says MacKinnon.

“Where that line is may be different depending on the circumstances,” she says. “It’s always difficult, but the principal has an obligation to ensure the school is safe and welcoming to all students. The right way to balance individual rights is to prepare dress codes on a school-by-school basis so they're reflective of the local community and ensure democratic rights by having parents vote on a code.”

Rules are generally not “black and white,” says MacKinnon, noting a dress code may require students to remove hats during the national anthem, for example, but if that goes against a religious right, an exception will be made.

“Schools have to be mindful of what is in the code and whether it could violate someone’s right under the human rights code,” she says. “They have to take that into account when setting their rules and then allow for that adjustment when they do discover mitigating factors.”

Date_Published
2019-11-19
Description

Organizations have increasingly found efficiencies by using in-house lawyers, but sometimes there is a need for them to seek outside help, says Windsor employment and education lawyer Sheila MacKinnon.

“If you’re doing something routine — like real estate, where the transactions are not particularly novel — it makes sense to use in-house counsel,” MacKinnon, managing partner of Shibley Righton LLP’s Windsor office, tells AdvocateDaily.com.

She points to a municipality needing to draft a new bylaw as an example of routine work that can likely be tackled by an organization’s internal legal team.

But sometimes, unique situations — including litigation — arise outside of the legal staff’s area of expertise. So at that point, they should consider tapping an outside law firm.

If the organization needs to defend or launch a lawsuit but that’s not something they do routinely, they might be better off hiring a litigation lawyer or firm that specializes in litigation and works exclusively in that practice area, MacKinnon explains.

“It becomes not so much a cost factor as a capacity issue,” she says. “It really isn’t to their benefit to train up just to do one file.

“But if you’re dealing with human rights complaints on a regular basis, for example, it makes sense to train in-house lawyers to take on those files.”

Often, she says, it’s simply less expensive to higher outside counsel. Costs associated with having a lawyer on staff go beyond salary and benefits. There’s the expense of mandatory training as well as support staff who require instruction as well.

“So a company or an institution would have to weigh the cost of getting this person up and running to the volume of work they anticipate will happen. The larger the institution, the more likely they have higher volume routine matters,” says MacKinnon, who has seen the evolution of in-house lawyers.

She recalls when opportunities for lawyers looking to work with an organization or business were largely restricted to banks, security commissions and governments. The work wasn’t very diversified and, until about a decade ago, the pay wasn’t nearly as good as private practice.

Although, for lawyers, in-house work can be an attractive alternative for those seeking regular office hours and predictability.

MacKinnon says the contrast between corporate counsel and those in private practice would be particularly noticeable during litigation, which involves intense work, especially during the period the issue comes before the courts. The lower-paid in-house lawyer would have to put in the same long hours and dedication on the file as the much higher-paid lawyer they're opposing.

"No litigator works nine to five" when they’re on a trial, she says.

But the pay has improved substantially and the work can be rewarding, MacKinnon says. There are also opportunities for lawyers to move from the legal department into the operations side of the establishment, where their legal knowledge and education are viewed as a benefit to the overall organization.

Date_Published
2019-11-19
Description

When using social media as a pre-employment screening tool, recruiters must look at privacy concerns related not only to the applicant – the individual's 'friends' must also be considered, says Toronto and Windsor employment lawyer Sheila MacKinnon.

A partner with Shibley Righton LLP, MacKinnon recently spoke at the Ontario Public School Boards' Association’s 2014 Labour Relations Symposium on the topic of social media in the workplace.

The presentation was part of a three-day event focused on the topics of education labour relations and human resources. MacKinnon participated in a session that examined when social media sites can be used for pre-employment screening; how to balance an employee’s right to privacy with an employer’s right to surveillance of electronic devices; trustees’ use of social media and what’s appropriate; and what can be done about students’ or employees’ use of social media to criticize the board or harass an employee.

School boards are subject to the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), which means collection of personal information usually requires the individual’s consent, the presentation says.

However, MacKinnon says, s. 52 (3) 3 may apply in some cases, excluding the application of the act when dealing with records collected, prepared, maintained or used by or on behalf of an institution in relation to meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest.

The Office of the Information and Privacy Commissioner of Ontario (IPC) has found that “records relating to recruitment and screening are employment-related matters within the meaning of s.52 (3) 3,” the presentation reads.

“Even if the MFIPPA applies, the IPC has found that if information is only viewed and not printed or downloaded then it is not being collected by the institution.”

While viewing publicly available social media pages isn’t likely to be a problem, MacKinnon says asking for passwords or sending friend requests to potential employees is where the activity becomes more intrusive.

“Much of the information on a Facebook page would not be relevant for employment purposes and may breach the applicant’s friends’ privacy,” the presentation says.

On the topic of surveillance of electronic devices, MacKinnon a balance must be struck between an employee’s right to privacy and the employer's interest in safety and security.

Generally, the test for conducting surveillance considers whether there were reasonable grounds for conducting the search; if monitoring was necessary to meet the legitimate employer’s purpose; and whether the least intrusive method was used.

When a school board trustee is using social media, they must remember they are a trustee 24 hours a day, and consider whether it’s clear if they’re speaking on behalf of the board or presenting a personal view.

Date_Published
2019-11-19
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Deborah Howden Head Shot

Employers may be wondering if their workers are consuming drugs on the job, especially since marijuana became legal, but there are few instances where they can actually conduct random drug testing, says Toronto employment lawyer Deborah Howden.

“Legalization of cannabis has many employers asking us, ‘Can we now do random drug testing?’” says Howden, a partner with Shibley Righton LLP. “The short answer is still no, for various reasons.”

Howden tells AdvocateDaily.com that there are “very few circumstances” where drug testing employees would be considered acceptable to the courts and Human Rights Tribunals.

“The reason for that is the concern over privacy — that’s a big piece— but also whether the methods for testing give us accurate results for impairment,” she says.

“The problem with cannabis is that it stays in your system much longer than alcohol,” says Howden. “Employers have reached out to ask us to draft policies on cannabis in the workplace, and what we recommend is that they focus on fitness-for-work issues instead.”

Drug testing will indicate that a person has cannabis in their system, but it won’t tell you if the worker is actually impaired, she says.

“In addition, there are legal limits for impairment with alcohol, but it doesn’t mean you’re actually impaired. Our tribunals prefer objective evidence of impairment,” says Howden.

That means if an employer thinks that someone in a safety-sensitive position might be consuming cannabis at work, it needs to think about ways to objectively assess impairment in the workplace, she says.

Does the person have red eyes or delayed reaction time? Are they exhibiting poor memory or muscle coordination? Those objective indicia of impairment are preferable because they actually tell you that someone may be impaired as opposed to merely having drugs in their system,” says Howden.

However, if you have an extremely hazardous workplace — such as the operation of vehicles — and there’s a reasonable suspicion of an impairment problem and a serious concern for safety, an employer may be able to introduce random drug testing, she explains.

Employers have a statutory obligation under the Occupational Health and Safety Act to keep workers safe from hazards — including those resulting from impairment, she says.

“The problem is, drug testing is not the means that our courts tend to allow,” says Howden.

“The beauty of a fitness-for-work policy is that it covers not only cannabis but alcohol and other drugs — legal or illegal— as well as fatigue,” she says.

A fitness-for-work policy confirms the employee must come to work fit to discharge duties and not be impaired, Howden says. Such policies also typically require employees to reveal any disability that requires accommodation.

“To the extent an employee is not fit for work, that is subject to corrective action and accommodation up to the point of undue hardship under the Human Rights Code,” she says.

“Accommodating doesn’t mean you let them come to work impaired. It means if you suspect or they reveal a drug or alcohol dependenceyou have to support those workers in dealing with that addiction by providing reasonable supports and time off work to get treatment,” says Howden.

 

Date_Published
2019-09-24
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John Devellis Headshot

Employees who believe they have been constructively dismissed take a risk when they walk away from their job, says Toronto labour and employment lawyer John De Vellis.

In a recent Nova Scotia case, the province’s appeal court ruled against a newspaper account executive who quit his new position, claiming the revised compensation model would cut his income. The decision overturned an award of more than $100,000 made to the man by a trial judge who found he had been constructively dismissed.

“Constructive dismissal is a very difficult and unclear area of the law, and I always tell people that they’ve got to tread very carefully,” says De Vellis, a partner with Shibley Righton LLP. “Unless the circumstances are extremely clear, you’re taking a big risk as an employee by walking away because you could end up with nothing if the court finds you weren’t constructively dismissed.”

He tells AdvocateDaily.com that plaintiffs bear the responsibility of proving they were constructively dismissed, which is the technical term when an employee unilaterally alters a fundamental aspect of the conditions of employment or makes continued employment intolerable. That can occur either as a result of the unilateral actions of the employer, or through the combination of a series of smaller issues in the workplace.

If an employee contacts him before quitting, De Vellis says he typically advises them to hold out and keep their legal options open.

“If you’re being sexually harassed, or the workplace has become completely poisoned or dangerous, then you’re under no obligation to stay,” he says. “But if you are able to, it’s probably less risky to stay and try working something out with the employer.”

Instead of departing, De Vellis says employees can register their disapproval with new terms of employment and sue their employer for damages if necessary.

In the Nova Scotia case, the plaintiff employee — a long-serving account executive — ultimately paid for his decision to quit after initially accepting a new position as a business development specialist. After studying sales forecasts, he believed he was being set up for a reduced income, and left the job, claiming he had been constructively dismissed.

While a trial judge accepted his position and awarded the man damages for a 16-month notice period, the appeal court reversed that judgment.

“Rather than wait and see or stay under protest in order to mitigate his losses, [the employee] quit and sued for wrongful dismissal,” the appeal court ruling reads.

“The duty to mitigate your damages applies whether you are terminated or constructively dismissed,” De Vellis says.

 

Date_Published
2019-09-10
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Deborah Howden Head ShotThe introduction of a new Canadian digital charter to combat hate speech, protect online privacy and battle fake news is timely, says Toronto employment lawyer Deborah Howden.

“When you’re dealing with hate speech on digital platforms, it’s very difficult to get ahead of it and correct misinformation because it spreads so quickly and has such a broad reach,” says Howden, partner with Shibley Righton LLP.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2019-07-29
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John Devellis Headshot

Just because Ontario's highest court has ruled that the tort of harassment does not exist, doesn’t mean there aren’t options available to wronged parties, says Toronto employment lawyer John De Vellis.

A three-judge panel of the Ontario Court of Appeal (OCA) found there was “no compelling reason to recognize a new tort of harassment,” overturning a trial judge’s decision to recognize it as part of a $140,000 award to a former RCMP officer.

De Vellis, partner with Shibley Righton LLP, says the court found there are already similar torts in place, such as those focusing on sexual harassment or the intentional infliction of mental suffering (IIMS).

“The employee in this case was asking for recognition of a new tort of harassment, which would have some of the same elements as IIMS, but a little bit lower of a test,” he tells AdvocateDaily.com.

Court documents state, “... the test for IIMS is met where the plaintiff establishes conduct that is (1) flagrant and outrageous, (2) calculated to produce harm, and which (3) results in visible and provable illness.”

To meet the standard for IIMS, De Vellis says people also have to prove the other party intended to cause suffering.

“The difference between IIMS and harassment is that you don’t have to necessarily prove an illness for harassment, and it doesn’t have to be intentional,” he says.

The OCA judgment states that when the lower court made its decision, the “analysis concerning the existence of the tort is quite brief in the context of an otherwise lengthy decision — a mere eight paragraphs of her 896-paragraph judgment.”

By contrast, the appeal court judgment explains in-depth not only why the tort is unjustified in this case, but also how updates to Ontario law should be made.

“Common law change is evolutionary in nature: it proceeds slowly and incrementally rather than quickly and dramatically … significant change may best be left to the legislature,” court documents state.

“The court can create a new tort anytime it considers it appropriate to do so. But that is not how the common law works, nor is it the way the common law should work,” the judgment reads.

“Courts are extremely reluctant to recognize new torts,” says De Vellis.

“When a legislature passes a new law, they have committees that have studied the legal or economic consequences and implications of the legislation, while a court is not really in a position to determine that.”

He says there have been a few torts developed in recent years, like the one that deals with the invasion of privacy.

De Vellis believes the OCA has “left the door open” for the tort of harassment to be introduced in the future, noting that the judgment states, “... while we do not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, we conclude that [the plaintiff] has presented no compelling reason to recognize a new tort of harassment in this case.”

“I don’t think we’ve heard the last on this issue,” he says. “I think the law will eventually evolve in some way to recognize a form of harassment tort, especially with the societal changes we are seeing.”

Date_Published
2019-07-17
Description

New legislation under consideration in Ontario would allow more flexibility for those seeking elected office, says Windsor public law lawyer Sheila MacKinnon.

Bill 68, Modernizing Ontario’s Municipal Legislation Act, amends several existing acts and passedMay 30, 2017, says MacKinnon, managing partner of Shibley Righton LLP’s Windsor office.

One aspect of the bill would provide judges more discretion in whether a school board trustee or municipal councilor should be removed from their seat for a conflict of interest, MacKinnon tells AdvocateDaily.com.

“Currently if a judge finds a school board trustee or a municipal councillor has breached the Municipal Conflicts of Interest Act, they have no real discretion as to what they can do with them,” she says. “Their seat must be vacated.”

The new bill would not make the decision so black and white, says MacKinnon, who often acts as legal counsel for school boards.

“The judge may find that while it was a technical breach, there may be mitigating factors,” she says.

Another interesting change is a new pregnancy and parental leave for municipal councilors and school board trustees, MacKinnon says. While the rules for school board trustees are strict in terms of the number of meetings an elected official can miss, the new law would allow new parents to miss meetings for a 20-week period as a result of the member's pregnancy, the birth of the member's child or the adoption of a child by a member.

“It permits a municipal councilor or school board trustee to essentially take a leave of absence from their position for a period of time. Currently, for school boards, you can’t miss more than three meetings in a row unless the board permits it by a resolution.”

“The bottom line is this is good for women and new parents,” says MacKinnon.

“It would encourage women who want to seek office in their childbearing years,” she says. “Otherwise, you’re always at the mercy of your fellow board members to permit you to miss meetings."

Date_Published
2019-06-01
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Deborah HowdenThe condominium community in Ontario saw many hefty legislative reforms between November 2017 and April 2018. Those changes were effected primarily under the amended Condominium Act, 1998, the new Condominium Management Services Act, 2015 and the Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”), though there were other statutory amendments impacting condominiums . And just as the industry was adjusting to the overabundance of legislative change, many of the employment law reforms were swiftly clawed back, effective January 1, 2019.

Specifically, on November 21, 2018, the provincial government passed Bill 47, the Making Ontario Open for Business Act, 2018. Bill 47 was the current government’s reaction to the recent amendments to both the Employment Standards Act, 2000 (“ESA”) and the Labour Relations
Act (“LRA”) introduced under Bill 148. This article only focuses on certain  of the ESA changes.

Please click here to read the rest of the story.

Date_Published
2019-05-01
Description

Deborah Howden Head ShotFamily status discrimination claims could be on the rise, Toronto employment lawyer Deborah Howden tells AdvocateDaily.com.

Howden, partner with the Toronto office of Shibley Righton LLP, explains that Ontario’s Human Rights Code prohibits discrimination on the basis of a person’s family status, which covers the relationship between a parent and child.  

And while the number of cases claiming this type of discrimination still trails those involving allegations concerning a person’s disability or sex, she says the gap could be closing.

“I think they will increase in number as parents continue to juggle their responsibilities in increasingly complex workplaces,” says Howden, who adds that the popularity of telecommuting has helped keep the number lower than might otherwise have been expected.

“But it’s still a real problem when telecommuting is not an option,”

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2019-04-12
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Deborah Howden Head ShotA recent decision shows employees can be held responsible for discriminatory behaviour in the workplace, Toronto employment lawyer Deborah Howden tells AdvocateDaily.com.

In a ruling by the Human Rights Tribunal of Ontario, the adjudicator ordered a man who used a racial epithet at work to pay $1,000 to an offended colleague who overheard the remark.

The employer in the case reached a separate, confidential settlement with the complainant, but she elected to proceed personally with the application against her co-worker.   

“There’s a tendency to think that where a discriminatory event happens in the workplace, that the employer is going to be solely responsible, but that’s not the case, as this decision shows,” says Howden, partner with Shibley Righton LLP's Toronto office. “Typically, you wouldn’t see individual employees pursued because the employer is the one with the deep pockets, but this decision clearly demonstrates they can be held personally liable for what they say.

“You can’t just hide behind your employer in cases where you engage in acts of discrimination,” she adds.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2019-01-25
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Deborah Howden Head ShotA recent decision by the British Columbia Supreme Court underscores the fact that unless an employee’s off-duty conduct has direct implications on the workplace or the employer’s business, it does not constitute just cause for dismissal, says Toronto employment lawyer Deborah Howden.

"However if you're in a front-line or public position and your continued presence could damage an employer's reputation or workplace morale, that's a different scenario," says Howden, a partner with Shibley Righton LLP's Toronto office.

The B.C. case involved a long-serving firefighter who was fired from his position after being charged with impaired driving while he was off duty. The court found he was not, in fact, properly fired for just case, she says.

"The takeaway is the courts are not just going to look at potential harm to the employer’s reputation," Howden tells AdvocateDaily.com. "They're going to consider a list of factors — for example does that off-duty conduct render the employee incapable of performing the workplace duties?"

She says employers should cautiously proceed when presented with this type of situation and take steps to conduct a proper investigation before taking significant corrective action.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-11-05
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Jessica Koper Head Shot

Canadian jurisdictions have taken a proactive approach to transgender rights in recent years, Windsor employment lawyer Jessica Koper tells AdvocateDaily.com.

Koper, an associate with Shibley Righton LLP, says the federal government recently made up lost ground on most provinces when Parliament passed Bill C-16, which added the terms “gender identity” and “gender expression” to the list of prohibited grounds of discrimination under the Canadian Human Rights Act (CHRA).

The language of the law mirrored provisions added to Ontario's Human Rights Code (HRC) as far back as 2012, she explains. In addition to the CHRA changes, the federal bill also amended the Criminal Code to ensure crimes motivated by a victim's gender identity or gender expression qualify as hate crimes.

“There has been a big movement in terms of transgender rights and protections, and I would describe the changes as more proactive than reactive,” Koper says. “There haven’t been many lawsuits in this area, but there has been a great deal of awareness raised along with policy changes.”

The CHRA first passed in 1977 under then-prime minister Pierre Trudeau's government, protecting Canadians from discrimination on the basis of sexual orientation. Canada later became one of the first countries in the world to legalize same-sex marriage in 2005 when the Civil Marriage Act passed both houses of Parliament during the government led by former prime minister Paul Martin.

“Today the tradition continues,” Justice Minister Jody Wilson-Raybould said in a statement following the introduction of Bill C-16.

“Diversity and inclusion have long been among the values that Canadians embrace, and Canadians expect their government to reflect these values,” she added.

Koper says employers in Ontario should familiarize themselves with the province’s HRC and develop policies that match its requirements.

For example, she says the law provides individual employees with the right to be called by the pronoun and wear required uniforms that match the gender they identify with.

“The provincial government no longer collects information on sex, but according to gender identity,” Koper says. “Employers should follow suit by giving employees the option to identify as male, female, transgender or declining to disclose if they prefer.”

Employers who allow discriminatory behaviour to occur in the workplace are exposing themselves to risk, according to Koper.

“If they are aware, or ought to be, of any bullying or harassment, employers have an obligation to address it, investigate it, and promote a positive environment in that regard,” she says. “Otherwise, they could be on the hook for failing to react to a poisoned workplace environment.”

Even during the hiring process, she says employers should avoid making assumptions about the gender identity or gender expression of candidates.

“Comments made during interviews could lead to possible claims of discrimination, even if they were not intended in that way,” Koper says.

Much of the public attention regarding the rights of transgender people relates to bathroom use, and Koper says it remains a flashpoint.

In 2012, the Human Rights Tribunal of Ontario ruled in favour of a packaging plant employee who transitioned from male to female during her time at the company.

The woman’s manager had told her she would need to provide medical evidence that she was female before she was allowed to use the female bathroom, but the adjudicator found that the stance violated her rights and that employers cannot insist on treating employees according to his or her birth gender.

“If there are separate bathrooms designated for each sex, individuals should be able to use the one they identify with from a gender perspective,” Koper says.

 

Date_Published
2018-08-02
Description

Deborah Howden Head ShotA new law limiting what can be turned over in police background checks will make employers’ lives easier, Toronto employment lawyer Deborah Howden tells AdvocateDaily.com.

The Police Record Checks Reform Act passed without opposition at Queen’s Park all the way back in 2015, but only goes into force this November, when it will alter what police can tell organizations who request background checks for prospective employees and volunteers.

According to the Toronto Star, the legislation was prompted by its investigation into the plight of individuals denied the ability to work or travel due to the disclosure of “non-conviction records,” which include details of police interactions related to unproven allegations and mental health issues.   

Howden, a partner with Shibley Righton LLP's Toronto office, says the old rules tended to put employers in a difficult position because of the sheer volume of information they received.

“Virtually any contact with police could be brought to the attention of employers, meaning that they would have access to information that they had no idea what to do with,” she says.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story
.


Date_Published
2018-07-10
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Deborah Howden Head ShotA recent Supreme Court of Canada (SCC) ruling clarifies the boundary between what constitutes incivility in a courtroom and strong legal advocacy, Toronto employment lawyer Deborah Howden tells AdvocateDaily.com.

The Law Society of Ontario (LSO) launched a proceeding against Toronto securities lawyer Joseph Groia 2007 for professional misconduct in court while successfully defending a client in a lengthy and complex fraud trial. The lawyer was cited by the law society for attacking Ontario Security Commission prosecutors both professionally and personally.

The lawyer received a $200,000 fine, a one-month suspension and ordered to pay about $2 million in legal fees in 2012.

He challenged the decision but it was upheld by the Divisional Court and the Court of Appeal until the Supreme Court of Canada overruled the LSO in a 6-3 judgment this year. The majority found that while the LSO retains the ability to determine whether courtroom behaviour can amount to professional misconduct, lawyers are also bound to fearlessly advocate for their clients, Howden says.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-06-19
Description

A recent Conference Board of Canada report has confirmed what many working  women have known all along — there is a significant gender wage gap in the province, with women making a mere 87 cents for every dollar earned by men. The Equal Pay Coalition’s calculation of the gap is actually bleaker, pegging it at approximately 30 per cent. Predictably, the conference board has given Ontario a “C” grade for the wage discrepancy.

By all accounts, the wage gap continues despite Ontario’s Pay Equity Act, which...

Please click here to read the rest of the story

Date_Published
2018-05-31
Description

Jessica Koper

Employers should prepare themselves for a spike in accommodation requests from employees with elderly family members due to Canada’s aging population, Windsor employment lawyer Jessica Koper tells AdvocateDaily.com.

Employers have a duty to accommodate under the Ontario’s Human Rights Code (HRC), which prohibits discrimination on the basis of family status, and Koper, associate with Shibley Righton LLP, explains that family status requests traditionally tended to relate to the care of children. However, that is changing.

“Given today’s society and the growing elderly population, there are now many more individuals who are responsible for caring for their elderly parents than there used to be,” she says.

“And that number will only grow,” Koper adds.

Indeed, Statistics Canada reports that Canada’s over-65 population grew from around eight per cent of the total in 1971 to 14 per cent in 2010. By 2036, that proportion is expected to hit 25 per cent and include more than three million people aged 80 years or older.

Koper says employees should approach their employers to discuss the possibility of accommodation when they suspect their workplace requirements may conflict with their duties at home.

“Employers will take these situations on a case-by-case basis, but it is a good idea to try to find reasonable common ground, or a solution as to how the employee can be accommodated, before formally requesting a change in the workplace environment,” she says. “There is no blanket rule or policy that applies to every person.”

If they do want to pursue the matter formally, Koper says employees should be prepared to hand over information that they may have expected to remain private.

“There is a line of cases in Ontario that suggest employers have the right to request a certain amount of information, depending on the situation, as proof that there actually is a caregiving obligation that is in conflict with workplace responsibilities,” she says. “That’s where communication with the employer is very important because it does require the employee to share personal information.

“They have to be able to explain the specific situation they are faced with, and you can’t do that without letting your employer know a little more about your personal life,” Koper adds.

According to Koper, most employers are already familiar with their duties under the HRC and should respond to requests for accommodation involving eldercare in the same way they would to any other situation. Often, she says scheduling is at the heart of the matter.

“Most employee requests relate to an inability to do shift work or to work certain hours in the evening,” Koper says. “We have also seen an increase in requests for employees to split work days or take time off during the day in order to take care of someone or bring them to medical appointments.”

Koper says employers are within their rights to refuse accommodation requests that would cause them undue hardship.

“If the scheduling changes would infringe on the employer’s ability to operate the business, it may be unfeasible for it to be made,” she says.

Date_Published
2018-05-29
Description

stefan rosenbaum head shot

In Part 2 of a three-part series on the differences between employee and contractor, Toronto litigator Stefan Rosenbaum discusses the misconceptions.

The contract isn’t the last word on whether a worker is an employee or an independent contractor, Toronto labour and employment lawyer Stefan Rosenbaum tells AdvocateDaily.com.

“The most common misconception is that the contract itself is determinative, in the sense that if you have an agreement with an employer and it says you’re an independent contractor, that’s the end of the story,” says Rosenbaum, an associate with Shibley Righton LLP.

“Just because the two parties have decided that a worker is going to be an independent contractor does not mean the courts will necessarily agree.”

What often happens is when the work relationship ends, the party who’s designated an independent contractor will dispute the designation and argue that they were, in fact, an employee and entitled to the protections contained in Ontario’s Employment Standards Act (ESA), he says.

“Where you see this most often is with regards to severance pay and the notice period. If you’re an independent contractor, you’re governed by the contract. So, if it says you get one week’s notice, the employer can terminate the contract with one week’s notice,” says Rosenbaum.

The ESA covers such things as minimum wage, vacation pay, overtime, hours of work, maternity and parental leave, and notice of termination. Under the legislation, employees receive one week’s pay for every year worked, up to eight weeks, he explains.

“The Employment Standards Act exists for a reason. One of the main focuses is to protect employees. Judges usually want to give that protection to as many people as possible. So, they’ll look at the factors and decide whether they’re actually looking at an independent-contractor relationship,” Rosenbaum says.

One of the key factors the courts consider when making such a determination is the amount of control a worker has over their workplace, which includes such things as hours, whether they have their own tools and equipment, and risk of loss and chance to profit, he says.

“The courts look beyond what’s in the contract and look at all the factors. And they do that because of the idea that there’s an unequal bargaining position between workers and management, and the latter shouldn’t necessarily be able to take advantage of the contract to extricate themselves from the Employment Standards Act. I think the courts would say they’re evening things out.”

While many employers have good intentions when drawing up contracts and aren’t trying to avoid their obligations under the ESA when using independent contractors, they need to be aware that upon termination, a contractor may successfully challenge the designation in court, Rosenbaum says.

“All of a sudden, the employer could be on the hook for termination pay for the common law reasonable notice period,” he says.

On the other hand, independent contractors — who are able to reduce their income by declaring expenses that employees cannot and thereby lower their tax burden — should be aware that if they seek employee status in the courts after termination and are successful, “you’d be risking having a problem with the Canada Revenue Agency,” says Rosenbaum.

Stay tuned for Part 3 in the series, where Rosenbaum will discuss filing a claim with the Ministry of Labour for misclassification.

To read Part 1 — how to distinguish between employee and contractor — click here.



Date_Published
2018-05-08

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