Ted's Blog

University Professor Professing "I am Crazy About You" – Not Considered Sexual Harassment

From Nicole Skuggedal and Katy Allen of Lawson Lundell LLP:

A recent decision of the British Columbia Human Rights Tribunal (the “Tribunal”) held that a professor telling a subordinate employee (the “Complainant”) that “you will have to let me know if this is a misstep but I am crazy about you” (the “Comment”) did not constitute sexual harassment pursuant to the B.C. Human Rights Code.


Dismissal For Delay In A Human Rights Complaint

remai modern
In 2015, the Saskatchewan Human Rights Commission (the "Commission") received a complaint naming Gregory Burke as well as two corporate employers as respondents. At the time, Mr. Burke was the Museum Director for what is now the Remai Modern, and he was alleged to have discriminated against female employees.

In 2019, four years after the Commission commenced an investigation into the complaint as part of the standard process, Mr. Burke brought an application to the Court of Queen's Bench seeking an order granting a stay of the entire proceedings or, alternatively, seeking an order both granting a stay of the proceedings to the extent they relate to him and removing him as a respondent. Mr. Burke argued that the investigation process resulted in inordinate delay, which caused him prejudice, and as a result the complaint against him ought to be dismissed.

In a decision dated December 31, 2019 [Burke v Saskatchewan Human Rights Commission, 2019 SKQB 339], the Court held that the four years taken to only partially conduct an investigation resulted in ordinate delay and that Mr. Burke had suffered prejudice as a result of the delay, which was sufficient to grant a stay of proceedings insofar as they involved Mr. Burke as an individual respondent. The Court went on, however, to provide commentary on the Commission's decision to expand the investigation's scope midway through the process.

Illegal Toker Or Legitimate Smoker? Marijuana-Smoking Employee Lawfully Dismissed

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. Read More...

University of British Columbia reasonably accommodated researcher with severe mouse allergy

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". Read More...

"Too Much" Is Never Enough When Dignity Injured: B.C. Human Rights Tribunal's Ground-Breaking Award Restored By Court Of Appeal

You may recall that CCPartners wrote in November of last year about a case making its way through the judicial review process in British Columbia. At the time, the British Columbia Supreme Court had just overturned the largest human rights award for "injury to dignity" in the case of UBC v. Kelly. In the latest turn of events, the British Columbia Court of Appeal has now restored that landmark damages award of $75,000. Read More...

What Is Physical Disability? BC Human Rights Tribunal Confirms Legal Test Under Human Rights Code

A decision this month by the BC Human Rights Tribunal (the "Tribunal") considered the evidence required to prove a "physical disability" under the Human Rights Code (Li v. Aluma Systems Inc. et al, 2014 BCHRT 270). Read More...

Employers, Pay Attention: Google Searches Will Not Replace Tailored Accommodation

Recently, the Human Rights Tribunal of Ontario (HRTO or the tribunal) released a decision wherein the employer failed to meet its duty to accommodate an employee diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). Read More...

Rejected Sexual Advance At Work: Cause For Retaliation? It’s No, Nay, Never!

sex harass
The respondent does not dispute the allegation that the actions complained of above are causally connected to the event of February 28, 2011, during which the applicant rejected the respondent's owner's sexual advance. I find and the evidence clearly establishes that but for the rejection on ... the subsequent events would never have occurred—Horner and Peelle Company Ltd. 2014 HRTO 112, para. 185


Alberta Human Rights Tribunal Upholds Employer's Release In Alleged Discrimination Case

In Marquardt v Strathcona County, 2014 AHRC 3, the Alberta Human Rights Commission ("AHRC" or "Tribunal") considered the validity and enforceability of an employment release that was signed by a departing employee.

Marie Marquardt was employed as a bus driver prior to being involved in two motor vehicle accidents in 2011. Following these accidents, Ms. Marquardt took time off work to recover. She was deemed fit to resume work as of June 28, 2011 and returned to work on July 4. On July 11, she left her employment again for medical reasons. She was deemed fit to return to work by August 1, 2011 and returned to work on August 22. Eventually, Ms. Marquardt's employer decided to terminate her employment and presented her with a termination letter, severance payment, and a release. Ms. Marquardt accepted the severance and signed the release. Subsequently, in September of 2012, Ms. Marquardt filed a human rights complaint alleging that she had been discriminated against on the basis of a mental disability.

The case centred around the release and two issues: whether the release was valid and enforceable, and whether Ms. Marquardt had presented evidence which could successfully challenge the validity and enforceability of the release.

Age Discrimination Found In Termination For Poor Performance

too old
In the recent decision of Price v Topline Roofing, 2013 BCHRT 306 the BC Human Rights Tribunal awarded close to $12,000 in lost wages to an employee terminated because of his age. Read More...

Alberta Court Of Appeal Considers The Duty To Accommodate Probationary Employees

In reasons released on May 6, 2014, the Alberta Court of Appeal dismissed an appeal by the Telecommunications Workers Union in respect of an unsuccessful judicial review application to question a labour arbitrator award. The Arbitrator had determined that TELUS Communications Inc. had no duty to accommodate a probationary employee who failed to raise his disability (which was not readily apparent) in an assertive way until days before the end of his probationary period, at which point he was terminated. The Arbitrator reasoned that the Union had to establish actual or constructive knowledge of the Grievor's disability as part of its prima facie case in accordance with the Alberta Court of Queen's Bench decision Burgess v Stephen W Huk Professional Corporation, 2010 ABQB 424. The Arbitrator also based her decision on the alternative basis that TELUS could not have accommodated the grievor without undue hardship given unrefuted medical evidence that no accommodation could be offered which would enable the grievor to perform the call center role for which he was hired. Read More...

I Want To Leave Work Early To Pick Up My Child. Does My Employer Have To Accommodate Me?

Your employer denies your request for an hour shift change to allow you to pick up your child from school each day at 5 p.m. Can you now file a valid human rights complaint for discrimination based on family status? Absolutely. And, however unlikely to succeed there can be no reprisal for making the complaint.

But will you win? In its recent decision in
Canada (Attorney General) v. Johnstone, the Federal Court of Appeal made its decision based on the answers to four questions: Read More...

Gloves Come Off: Sky High Damages In Human Rights Cases

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Human Rights Tribunals across the country have been issuing damage awards which have raised the eyebrows of the employer community. In a number of recent cases, employees have been awarded record setting damages. In many of these cases, these damages have greatly exceeded what a Court would be prepared to award in a wrongful dismissal cases. Read More...

B.C. Human Rights Tribunal Awards Unprecedented $75,000 for Injury to Dignity and Nearly 500k In Total Damages

In keeping with the trend of rapidly increasing damage awards for human rights violations in the employment context, in Kelly v., UBC, the B.C. Human Rights Tribunal recently awarded an Applicant close to $475,000 in damages including an unprecedented $75,000 in damages for injury to dignity, feelings and self-respect and over $385,000 in lost wages. Read More...

Yogi Was Right – It Is Like Déjà-vu, All Over Again!

He is a three time most valuable player, a Hall of Fame catcher, one of only seven managers in major league baseball history to pilot teams from both leagues in the World Series and the only sporting figure to have a well-known animated character named after him. Yogi Berra is one of baseball's all-time greats.

As accomplished as Yogi was on the field, he is also well-known as a master of the malaprop. Among Yogi's better known sayings is: "It's like déjà-vu, all over again"!

Well, it is like déjà-vu all over again.

In the recent Human Rights Tribunal decision of
Burgess v. College of Massage Therapists of Ontario 2013 HRTO 1960, the Tribunal dealt with a human rights application from Candace Burgess, a massage therapist. Burgess had missed a mandatory two day training program required of examiners who assess candidates seeking certification in Ontario as registered massage therapists. She contacted the College the day before the scheduled training, indicating that she had the flu and was concerned she may not be able to attend. In fact, she did not attend and her contract to act as an examiner was cancelled. Burgess alleged that action was an act of discrimination based on her disability.

At the Tribunal's summary hearing Burgess testified that she initially felt she had the flu but that a few days later, following a throat swab, her physician told her she had strep throat. She argued that the College had a duty to accommodate her disability, while the College for its part contended that Burgess was not suffering from a disability, and in any event the training was a bona fide occupational requirement.

The Tribunal rejected the College's argument that the training was a bona fide requirement and that it would have been unable to accommodate Burgess without undue hardship. However, it dismissed her application as it found that she did not have a disability.

Is The Sky Falling? Family Status Discrimination and Shift Shopping

In most jurisdictions in Canada, human rights legislation prohibits discrimination on the basis of "family status." Until recently, few cases were brought alleging discrimination under this branch. However, recent decisions across several jurisdictions have made it clear that employers must be attentive to this ground of discrimination or risk exposing themselves to significant liability.

There are two different ways in which employees have argued that they have been argued against due to family status. One is when they are treated differently due to the identity of specific family members. For example, in B
v Ontario, the applicant was fired because his daughter had accused the applicant's brother and President of the employer of molesting her. The Supreme Court accepted that the applicant was fired because of his biological relationship to his daughter, which was discriminatory. There does not appear to be much controversy surrounding this type of complaint.

However, recent cases have largely dealt with employee requests for accommodation due to their family status. These complaints are similar in structure to requests for accommodation by disabled employees. These family status complaints argue that by complicating employees' abilities to fulfil their obligations to their families, employer policies are discriminating against workers with families.

Such accommodation poses serious challenges to employers attempting to efficiently schedule their workforces. It adds another factor that must be taken into account in organizing the workforce. However, unlike what is often the case in disability-related accommodations, in many workplaces the majority of employees may be subject to these familial pressures.

Until recently, few reported decisions dealt with such demands for accommodation. Beginning approximately ten years ago, the volume of cases dealing with this type of complaint has increased. Unfortunately, courts have not reached a consensus on how to deal with them. Three tests have emerged, with their roots in cases in British Columbia, Ontario and the Federal jurisdiction. Each test has used different and vague definitions for what exactly are employees' rights and employers' obligations when it comes to family status.

Scents-ible Court Ruling Highlights Employer And Employee Responsibilities In Workplace Accommodation

Employers have a duty to consider and accommodate the disabilities and medical conditions of their employees in the course of their employment, but as Robinson v Edmonton (City) demonstrates, this process is not one-sided: employees also have a responsibility to engage in the accommodation process. Read More...

Reasonable Notice And The Older Worker

There was once an expectation that workers would retire by age 65. That expectation is changing. For a variety of reasons, many workers now want or expect to work later in life. As it can no longer be assumed that employees will retire at a certain age, employers will encounter issues about dismissing older and long-serving employees. Read More...

Disability And Other Leaves Of Absence: Employee Status At Time Of Termination

The following article was written by Clarence Bennet and Lara MacDougall of Stewart McKelvey. While it is written from an employer perspective, it also provides some useful information for employees. Read More...

Alberta Court finds employer has no duty to inquire further into disclosed disability.

A recent Alberta Court of Queen's Bench decision confirmed an employee's obligation to prove an employer knew (or ought to have known) about his or her disability in order to establish discriminatory treatment. Read More...

BC Human Rights Decision Sets New High For Damages For Injury To Dignity

The British Columbia Human Rights Code, like human rights legislation in other provinces, prescribes a number of remedies once the British Columbia Human Rights Tribunal ("Tribunal") determines that a human rights violation has occurred. Besides authorizing the Tribunal to make declaratory judgments (such as reinstatement of employment or orders to cease the discriminatory behaviour), the Tribunal also has the ability to award damages to claimants for wages lost, expenses incurred, and for injury to dignity, feelings and self-respect (or for any of them).

In December 2013, the Tribunal released its decision
Kelly v. University of British Columbia (No. 4), in which it awarded $75,000 for injury to dignity, feelings and self-respect - the highest amount of damages ever awarded in this category by far. Further, because of the facts and amount of damages awarded, the Kelly decision will likely affect how human rights lawyers' weigh the risk and potential amount of damages that could be awarded for injury to dignity in the future. Read More...

When is an Illness Not a Disability?

In a recent Ontario Human Rights Tribunal decision, the Tribunal determined that a diagnosis of strep throat was insufficient to invoke the protection of the Ontario Human Rights Code. Read More...

Child Care

In A.G. of Canada v. Johnston et al, the Federal Court of Canada ruled employers must accommodate staff’s child-care requests. Read More...

A policy imposing tougher requirements on retired teachers not age discrimination.

In Law v. Thames Valley District School Board, the Ontario Human Rights Tribunal held a school board policy requiring retired teachers, but not new teacher's college graduates, to be certified in one or more of French, special education, music, or technology before they could be placed on the occasional teacher list was not discriminatory on the basis of age. Read More...

Mandatory retirement of Air Canada pilots at age 60 is bona fide occupational requirement

In Vilven and Kelly v. Air Canada and Air Canada Pilots Association, the Canadian Human Rights Tribunal dismissed a complaint by two Air Canada pilots alleging that the airline's mandatory retirement policy constitutes prohibited age-based discrimination under the Canadian Human Rights Act. Read More...