Retaliation against employees who file complaints can lead to severe legal consequences. The case of Morgan v. Herman Miller Canada Inc., 2013 HRTO 650, serves as a cautionary tale.

Case Overview

After Mr. Morgan raised concerns about racial discrimination, he was terminated by his employer. The Human Rights Tribunal of Ontario found that his dismissal was an act of reprisal for making a human rights complaint, resulting in significant financial penalties for the employer. 

Best Practices

• Prohibit Retaliation: Implement strict anti-retaliation policies within your organization.

• Foster Open Communication: Encourage employees to voice concerns without fear of reprisal.

• Monitor Post-Complaint Actions: Ensure that no adverse actions are taken against employees who have filed complaints.

Create a safe environment for your employees. Let LJ Investigations assist you in developing policies and conducting investigations that prevent retaliation claims

The recognition of harassment as a tort in Ontario has significant implications for employers. The case of Merrifield v. Canada (Attorney General), 2019 ONCA 205, provides valuable insights.

Case Overview

In this case, the Ontario Court of Appeal overturned a trial decision that had recognized a free-standing tort of harassment. The court emphasized that existing legal frameworks, such as the tort of intentional infliction of mental suffering, are sufficient to address workplace harassment claims. 

Best Practices

• Implement Clear Policies: Develop comprehensive anti-harassment policies that outline unacceptable behaviours and reporting procedures.

• Provide Training: Regularly train employees and management on recognizing and preventing harassment.

• Conduct Thorough Investigations: Ensure all harassment complaints are investigated promptly and impartially.

Protect your workplace from harassment claims. Partner with LJ Investigations to develop effective policies and conduct thorough investigations.

Notable Case Examples:

1. Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419

   In this landmark case, Ms. Boucher, an assistant manager at Wal-Mart, was subjected to persistent verbal abuse and humiliation by her store manager. Despite reporting the harassment, the company's response was inadequate, leading to her resignation. The Ontario Court of Appeal upheld a substantial award for damages, emphasizing the employer's duty to provide a safe work environment and to take proactive steps against harassment.

2. General Motors of Canada Limited v. Johnson, 2013 ONCA 502

   Mr. Johnson faced racial harassment and discrimination during his tenure at General Motors. The company's failure to address his complaints adequately resulted in the Ontario Court of Appeal affirming a significant damages award. This case underscores the importance of employers taking immediate and effective action when confronted with harassment allegations.

3. Elgert v. Home Hardware Stores Limited, 2011 ABCA 112

   Mr. Elgert was terminated following allegations of sexual harassment. The investigation conducted by Home Hardware was found to be biased and lacking in procedural fairness. The Alberta Court of Appeal ruled in favor of Mr. Elgert, highlighting the necessity for impartial and thorough investigations.

Best Practices for Workplace Harassment Investigations:

• Develop Comprehensive Policies: Establish clear anti-harassment policies that define unacceptable behaviors and outline reporting procedures.

• Prompt and Impartial Investigations: Upon receiving a complaint, initiate an unbiased investigation promptly to prevent escalation and demonstrate organizational commitment to a safe workplace.

• Training and Education: Regularly train employees and management on recognizing harassment and understanding the investigation process.

• Maintain Confidentiality: Protect the privacy of all parties involved to uphold the integrity of the investigation and foster trust.

• Document Thoroughly: Keep detailed records of all complaints, investigative steps, findings, and actions taken to ensure transparency and accountability.

Conclusion:

The evolving legal landscape in Canada underscores the critical importance of conducting prompt, fair, and thorough workplace harassment investigations.

For more detailed information on workplace investigations and best practices, consider consulting resources from leading firms specializing in this area.

By staying informed about legal precedents and implementing best practices, employers can effectively navigate the complexities of workplace harassment investigations and maintain a positive organizational culture.

Delaying a workplace investigation can lead to significant legal and financial repercussions. A notable example is the case of Morgan v. Herman Miller Canada Inc., 2013 HRTO 650.

Case Overview

In this case, Mr. Morgan filed a complaint alleging racial discrimination and reprisal after his employment was terminated following his complaint about mistreatment. The Human Rights Tribunal of Ontario found that the employer failed to investigate his initial complaint and terminated him in retaliation, resulting in an order to pay $56,000 in lost wages and $15,000 for injury to dignity and self-respect. 

Best Practices

• Act Swiftly: Initiate investigations immediately upon receiving a complaint to ensure fairness and compliance.

• Document Everything: Maintain detailed records of all complaints and investigative steps.

• Train Management: Ensure that all managerial staff are trained to handle complaints appropriately and understand the importance of non-retaliation.

Don't let delays jeopardize your organization's integrity. Contact LJ Investigations today to ensure timely and thorough workplace investigations.

Successful Application of Restorative Justice:

A key example of restorative justice in the workplace was seen in the case of Smith v. XYZ Corp (2022) (U.S.), where a mediator facilitated a restorative justice process between a supervisor and an employee involved in a harassment complaint. The process included facilitated discussions where both parties expressed their perspectives, understood the harm caused, and worked together on a resolution that included apologies, policy changes, and commitments to a more respectful work environment.

Why Employers Should Consider Restorative Justice:

• Fosters Dialogue: Restorative justice encourages open communication, allowing all parties to be heard.

• Promotes Healing: Rather than focusing solely on punishment, restorative justice fosters healing and understanding, which can lead to a more positive workplace culture.

• Long-Term Benefits: Employees who feel heard and respected are more likely to stay with the company, reducing turnover and creating a healthier work environment.

For investigators, restorative justice presents a unique opportunity to help parties move beyond the incident and restore relationships in the workplace.

Case Study: O’Brien v. United Parcel Service of Canada (2021)

In a notable case, O'Brien v. United Parcel Service of Canada, the employer was found liable for failing to address repeated threats and harassment between employees. The Ontario Court ruled that the company had not taken adequate steps to investigate the complaints and protect the complainant from further harm.

Key Lessons for Employers & Investigators:

• Risk Assessment: Employers must assess potential risks of workplace violence and implement preventive measures.

• Clear Policies: Establishing clear policies regarding workplace conduct and violence prevention is crucial for managing and preventing incidents.

• Prompt Action: Employers must respond swiftly to complaints and investigate thoroughly to prevent escalation and avoid liability.

This case reinforces the critical importance of workplace safety and the need for employers to take proactive steps to safeguard their employees.

In Radek v Henderson Development (Canada) Ltd. and Securiguard Services Ltd. (No. 3), the British Columbia Human Rights Tribunal emphasized the importance of intersecting or compounding grounds of discrimination. The Tribunal noted that in Baylis-Flannery v. DeWilde (No. 2) (2003), the Ontario Human Rights Tribunal (as it was then) pronounced, “An intersectional analysis of discrimination is a fact-drive exercise that assesses the disparate relevancy and impact of the possibility of compound discrimination.”

In Radek, the Tribunal considered the application of Baylis on account of the grounds alleged including race, colour, ancestry and disability. The Tribunal considered the primary focus to be race, colour and ancestry; however, determined the analysis of those grounds cannot ignore the Complainant’s disability and the possibility that compound discrimination may have occurred.

In Baylis, the Applicant’s race and sex were both factors as a black woman who was sexually assaulted. The Tribunal stated that an awareness of the effect of compound discrimination is necessary in order to avoid “reliance on a single axis analysis where multiple grounds of discrimination are found, [which] tends to minimize or even obliterate the impact of racial discrimination on women of colour who have been discriminated against on other grounds, rather than recognize the possibility of the compound discrimination that may have occurred.”

The concept of intersectionality has been discussed in a number of cases, including Morrison v. Motsewetsho (2003) and Comeau v. Cote (2003).

In Turner v. Canada (Attorney General), the Federal Court of Appeal considered intersectionality which was raised by the Appellant who alleged discrimination based on race and a perceived disability on the basis of weight. The Federal Court explained that the concept of intersecting grounds “at a basic level, holds that when multiple grounds of discrimination are present, their combined effect may be more than the sum of their individual effects. The concept of intersecting grounds also holds that analytically separating these multiple grounds minimizes what is, in fact, compound discrimination. When analyzed separately, each ground may not justify individually a finding of discrimination, but when the grounds are considered together, another picture may emerge.”

In other words, the interrelation of various grounds can compound discrimination making the impact of the intersection of grounds worsen and; further, when considered together may impact the finding.

The inclusion of a perceived disability within the ground of disability provides a subjective component which was confirmed in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City). The Supreme Court of Canada heard three cases together that involve the interpretation of s. 10 of the Quebec Charter of Rights and Freedoms (“Quebec Charter”). In each case, the employee or candidate for employment had physical anomalies which did not result in any functional limitations that would hinder the relevant employment. Nonetheless, these individuals were denied employment on the basis of the physical anomalies (perceived to be disabilities). In particular, two had spinal abnormalities (which differed) and the other Crohn’s disease among other medical conditions. The Court stated the following (at para. 81):

“It is important to note that a [disability] may exist even without proof of physical limitations or the presence of an ailment. The [disability] may be actual or perceived and, because the emphasis is on the effects of the distinction, exclusion or preference rather than the precise nature of the [disability], the cause and origin of the handicap are immaterial. Further, the Quebec Charter also prohibits discrimination based on the actual or perceived possibility that an individual may develop a [disability] in the future.”

The Federal Court of Appeal addressed the matter of a perceived disability in Turner v. Canada (Attorney General), 2012 FCA 159 (CanLII). In this case, the Court addressed the failure of the Canadian Human Rights Tribunal to consider the perceived disability of the Applicant. The Tribunal only considered the present ground of race, rather than the perceived disability on the basis of weight which was alleged.

The Human Rights Tribunal of Ontario addressed the matter in Fernandes v. Tomas, 2014 HRTO 1452 (CanLII), where they considered the Applicant’s allegation of a perceived disability. In this case the allegation was based on comments made by a Manager regarding use of the washroom which was made publicly and caused humiliation and embarrassment on account of the connection to a perceived disability.

As the law currently stands, the protections afforded by human rights law Federally and in Ontario include the perception of a disability as well as any anticipated future disability which presents itself.

Long ago the Courts adopted statutory interpretation rules to determine the manner in which the legislative bodies intended the legislation to be read, understood, applied and implemented. For example, human rights legislation have fundamental protections meaning that Courts must adopt a broad and liberal interpretation to achieve their objectives. See Ontario Human Rights Commission v. Simpson-Sears Ltd.; Canadian National Railway Company v. Canada (Canadian Human Rights Commission); Robichaud v. Canada (Treasury Board).  For example, the Supreme Court of Canada stated in their decision rendered in Zurich Insurance Co. v. Ontario (Human Rights Commission), at page 339:

“In approaching the interpretation of a human rights statute, certain special principles must be respected. Human rights legislation is amongst  the most pre-eminent category of legislation. It has been described as having a "special nature, not quite constitutional but certainly more than the ordinary..." (Ontario Human Rights Commission v. Simpsons-Sears Ltd., …  at p. 547). One of the reasons such legislation has been so described is that it is often the final refuge of the disadvantaged and the disenfranchised. As the last protection of the most vulnerable members of society, exceptions to such legislation should be narrowly construed (Brossard (Town) v. Quebec (Commission des droits de la personne), … at p. 307; see also Bhinder v. Canadian National Railway Co., … at pp. 567 and 589).”

Since this decision, however, Court have continued to bring clarity to the issue. For example, in British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 (CanLII) where the Courts looked at the ordinary meaning attributed to the language in the Code. The Court determined in University of British Columbia v. Berg, ... at p. 371 that while human rights law should be provided broad and liberal interpretation to achieve its intended aims, the “interpretive approach does not give a board or court license to ignore the words of the Act in order to prevent discrimination wherever it is found.” For example, the SCC stated:

“In Ontario Human Rights Commission v. Simpsons-Sears Ltd., supra, McIntyre J. observed (at p. 547) that "[l]egislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary -- and it is for the courts to seek out its purpose and give it effect."  This Court has repeatedly stressed that a broad, liberal and purposive approach is appropriate to human rights legislation, and that such legislation, according to La Forest J. in Robichaud, at p. 89, "must be so interpreted as to advance the broad policy considerations underlying it".  These comments serve to underline the importance of the mandate of s. 12 of the Interpretation Act, R.S.C., 1985, c. I-21, which directs that "[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” However, “This interpretive approach does not give a board or court license to ignore the words of the Act in order to prevent discrimination wherever it is found.  While this may be a laudable goal, the legislature has stated, through the limiting words in s. 3, that some relationships will not be subject to scrutiny under human rights legislation.  It is the duty of boards and courts to give s. 3 a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumventing the intention of the legislature.”

Further, the quasi-constitutional guarantees have been clearly stated by the Federal Court with respect to the Canadian Human Rights Act more recently. See: Canada (Attorney General) v. Johnstone and Canada (Human Rights Commission) v. Canada (Attorney General).

However, the case law dictates that - as things stand - Courts should not adopt a narrow or technical construction of the legislation such that it would frustrate the intent and purpose for which it was created.

Further, the Court have looked at legislation with discrepancies between the English and French versions. For example in Schreiber v. Canada (Attorney General), where the Supreme Court of Canada held:

“A principle of bilingual statutory interpretation holds that where one version is ambiguous and the other is clear and unequivocal, the common meaning of the two versions would a priori be preferred; see: C?té, supra, at p. 327; and Tupper v. The Queen, 1967 CanLII 14 (SCC), [1967] S.C.R. 589. Furthermore, where one of the two versions is broader than the other, the common meaning would favour the more restricted or limited meaning: see C?té, supra, at p. 327; R. v. Dubois, 1935 CanLII 1 (SCC), [1935] S.C.R. 378; Maurice Pollack Ltée v. Comité paritaire du commerce de détail à Québec, 1946 CanLII 17 (SCC), [1946] S.C.R. 343; Pfizer Co. v. Deputy Minister of National Revenue for Customs and Excise, 1975 CanLII 194 (SCC), [1977] 1 S.C.R. 456, at pp. 464-65; and Gravel v. City of St-Léonard, 1977 CanLII 9 (SCC), [1978] 1 S.C.R. 660, at p. 669.”

To the surprise of many, even in work-at-home scenarios, employees can feel bullied and/or harassed. It is not a requirement to be in the physical presence of someone in order for them to bully or harass you.

Expert on Bullying, Paul Pelletier, has been researching this area and believes bullying may increase during the pandemic on account of the added vulnerabilities been felt by employees working from home in isolated circumstances that could lead to anxiety and frustration. As a result, those feeling more vulnerable are acutely aware of the lack of protection by their employer or co-workers in isolating circumstances.

Mr. Pelletier highlights the fact that most employers were not prepared for the remote work change and therefore do not have processes in place to guide appropriate communications, for example. Without clear rules bullies feel more powerful and able to skirt the accepted norms when engaging in emails, video conferences and the like when their behaviour isn’t specifically captured in a policy or binding rule.

Rules and procedures on proper work from home etiquette are crucial going forward; especially, if employers allow employee to continue working from home or to work from home on occasion.

The other interesting aspect raised by Mr. Pelletier is the inherent frustration and personal issues that arise during times of crisis such as, Covid-19. There are other personal stressors related to finances, health, safety, family care (both elder and children), children’s education and changes to well thought out plans and vacations all of which have the potential to create an emotional crisis within those who feel their life is falling apart. This creates a vulnerable situation ripe for bullies and ripe for the unintended creation of bullies acting on emotion, stress, frustration, anger and pain, depending on personal circumstances during this time. What this also means, however, is an excuse for bad behaviour on account of these personal stressors. While many people may be stressed and enduring heart breaking and difficult situations throughout this pandemic, it does not justify bad behaviour.

It becomes much easier to hide bullying behaviour or to be unaware of bullying behaviour when outside the office dynamic. You cannot check in on a co-worker and you may be immersed in your own stress and the various changes in the environment to pay attention or notice bad behaviour. Everyone is coping with the changes in different ways and as such, bad behaviour may not be as apparent, as open or as visible than it once was in an office environment.

Finally, outside the office environment it becomes very difficult to monitor behaviour of employees and intervene if communications become hostile or intimidating.

The following list created by Mr. Pelletier contains examples of bullying behaviours that may emerge during work-at-home situations:

• Inappropriate texts and emails?that use unacceptable tone, blaming, shaming or taunting 

• Starting untrue rumours 

• Intentional miscommunication?or a failure to communicate

• Eye rolls, rudeness, interrupting, intimidating body language during virtual meetings

• Leaving someone out of an email string that they should be included on

• Accusing colleagues of not doing their work, particularly in front of others 

• Inappropriate jokes, emojis or memes designed to single out or hurt a co-worker

• Using new work-from-home challenges?as a means to isolate a staff member 

• Giving someone an unreasonable and unmanageable workload or assignment

• Micromanaging people

• Ignoring firm work boundaries - calls and emails out of hours or calls to home phones

How can you prevent bullying in your workplace?

-Create guidelines on remote work - expectations and rules of behaviour.

-Ensure daily check-ins or communications occur between staff and management or create a “virtual” open door policy for employees to feel connected and better able to report concerns.

-Be aware of the potential for bullying and/or harassment and be vigilant.

-Consider any deviation from standard complaint processes to minimize any barriers to filing complaints.

-If you are aware of an ongoing situation or an employee with typically bad behaviour ensure you continue to monitor that behaviour as you would in the normal course of employment.

The new Rules of Procedure will replace the existing Rules of Procedure of the Tribunal and will soon be pre-published in the Canada Gazette in accordance with s.48.9(3) of the CHRA.

Some of the new rule changes the Tribunal proposes to implement include:

• a rule allowing the Tribunal to sanction non-compliance with the Rules of Procedure or any order of the Tribunal;

• a rule on electronic service and filing;

• a rule requiring parties to file a list of documents and a copy of the documents they intend to introduce into evidence at the hearing. Parties will be required to file the list and the documents with the Tribunal and provide these to the other parties no later than 45 days before the beginning of the hearing;

• a rule defining the Tribunal’s official record, access to that record, and retention thereof, to clarify the public’s right of access to exhibits and other documents related to the CHRT’s inquiry;

• more detailed requirements for statements of particulars to help parties identify such elements as the discriminatory practice being alleged, the remedies sought, and the defenses being relied upon; and,

• a rule establishing a time limit for the issuance of decisions by the Tribunal.

The public has until September 1, 2020 to provide feedback on the new procedural rules. Emails are being accepted at the following email address: CHRTrules-TCDPregles@chrt-tcdp.gc.ca

The cases that were heard and decided were not sexual assault appeals nor were they based on extreme intoxication caused by alcohol. Two appeal cases (R v. Sullivan & R. v. Chan) were heard together as they both raised the same issue: the unconstitutionality of Section 33.1 of the Criminal Code which bars self-induced intoxication as a defence to assault matters including, sexual assault. This provision was a knee jerk reaction after the Canadian public rebelled at the use of this defence when applied to Mr. Daviault who sexually assaulted a wheelchair bound female under extreme intoxication. The Supreme Court of Canada allowed him to rely on the defence on account of being extremely intoxicated due to alcohol.

The result of the recent Court of Appeals case was that the Judge found that s. 33.1 of the Criminal Code unconstitutionally deprived the appellants of access to the non-mental disorder automatism defence. In particular, it violated both ss. 7 and 11 (d) of the Charter. In other words, it was held to be contrary to the principles of fundamental justice (s. 7 of the Charter) and the presumption of innocence (s. 11 (d) of the Charter) to permit accused persons to be convicted of involuntary acts that were not willed.  

An automatism defence is based on the involuntariness of the actions of the accused; meaning, they were not in control of body and mind. It is not a justification or excuse based on overconsumption of alcohol but a medical conclusion that at the time of the offence the individual had no control over their mind and body as a result of the extreme intoxication. In the case of Chan, there was evidence to support a conclusion that the impact of the “magic mushrooms” he consumed resulted in him having “super human strength” which was directly observed by the officers on the scene.

The result of a successful non-mental disorder automatism defence is that, in essence, it negates the crime. If there is no intent and no ability to control your actions, the courts have determined that you cannot be held accountable.

Nonetheless, despite the media’s hype, this defence is likely to be rarely successful. It will only be successful when there is evidence to prove the individual’s level of intoxication removed their ability to control their body and mind. It is unlikely that it will be applied in circumstances where someone has a foggy memory or loss of inhibitions from consumption of alcohol. It has to remove the individual’s capacity and ability to control their mind and body.

This is important to the workplace context as sexual harassment and sexual assault may apply concurrently to behaviour in the workplace especially when the complaint involves unwanted touching. While it may not be relied upon to come to an objective finding about whether or not the behaviour complained of occurred, it’s important to be aware of potential defences.

Back to the headline -  the reason there is some truth to the heading is that there is another case hanging in the wings. R. v. McCaw is a sexual assault matter that has been granted appeal on the basis of the unconstitutionality of s. 33.1 of the Criminal Code. Mr. McCaw will be provided the opportunity to rely on the non-mental disorder automatism defence for sexual assault on the basis of his alleged extreme intoxication by way of alcohol at the time of the sexual assault. If he succeeds, the defence may be applicable to the workplace context. Interestingly, this provision was struck down in the past but remained in the Code.

At this stage, it appears the Crown may appeal the decision to the Supreme Court of Canada. In which case, a decision on the matter will likely take some time before being heard and decided, if leave to appeal is granted.

What does this mean for investigations?

Given the nature of sexual harassment, the defence may be applicable in this context if there is clarity on its applicability in the sexual assault/extreme alcohol ingestion domain. However, without clarity, this defence will have little applicability to an investigation of this nature but could in the future. Unfortunately, it may result in respondents using alcohol as an excuse for bad behaviour. Unless, however, they can prove that they were involuntarily acting or unable to control their mind or body they are unlikely to succeed with such a defence. There may also be a negative impact on complainants who are typically already nervous about lodging complaints. Will they still bother if they know alcohol was a factor, could be a defence, and they can’t prove what occurred (he said/she said)? Complainants often worry about whether or not they will be believed.

Regardless, in the investigation context, a defence may be put forward and considered but will not change the overall objective finding of whether or not the impugned behaviour occurred. An objective conclusion will be reached based on the facts. A defence can be investigated and considered in the analysis but would not absolve a respondent at the investigation stage. It will provide the employer with information they may need to make a decision on how to proceed with managing the results of the investigation. 

Overall, we don’t yet know if the courts will follow suit (they have not in the past) and we don’t know if the Criminal Code will be amended to have the provision removed. Most importantly, we don’t know and the courts seem to question, the veracity of a defence on the basis of extreme alcohol intoxication. Can alcohol truly impair one to the point of acting involuntarily? The Court of Appeal noted in the recent R. v. Sullivan decision that the current breadth of science suggests it cannot.

What do you think? Leave a comment below!

In Jamal v Aisling Discoveries Child & Family Centre, 2018 HRTO 777, the Complainant sought production of the investigation report and the external investigator’s notes regarding the past harassment complaints. The employer, however, claimed that the report was protected by litigation privilege. In this matter, the HRTO held that the report had to be disclosed because it was created for the furtherance of the employer’s internal harassment policy and not for the purpose of litigation.

The Tribunal in Jamal relied on the jurisprudence regarding issues of litigation privilege (Lastella v. Oakville Hydro Corporation, 2009 HRTO 1806) and determined the dominant purpose test applied. The Tribunal stated, “the court […] adopted the dominant purpose test. That is for the [litigation] privilege to apply, the dominant purpose, not one of the purposes or a substantial purpose, for the creation of the document in question had to be the contemplation of actual or anticipated litigation.” As such, the Tribunal concluded that the report and notes were arguably relevant to the Tribunal hearing and ordered production.  

Prior to this case, a similar issue was addressed in an Arbitration matter, Durham Regional Police Association v Durham Regional Police Services Board. In this matter, the Arbitrator ruled that the investigation report was not covered by solicitor-client or litigation privilege as a matter of right on account of it being prepared by a lawyer.

The employer argued that the investigator was hired to conduct the investigation but also provide legal advice (i.e., the investigator had to reach legal conclusions that were “inextricably linked” to the findings of fact). In the alternative, the employer argued that the report was covered by litigation privilege because there was a strong likelihood that the events would lead to litigation (which they did).

The Union argued that the report should be produced because the terms of reference appointed the investigator as an information gatherer rather than legal counsel. It was argued that the involvement of the lawyer as investigator did not convert the outcome to legal advice. Further, the fact that the Union was present during many of the interviews defeated the claim of solicitor-client privilege. Finally, the Union argued that the report was not prepared with the primary purpose of preparing for litigation and as such, the privilege did not apply. The Arbitrator held that the report would be produced and provided to the Union because the predominant purpose of the report was not related to litigation nor the provision of legal advice. The Arbitrator noted that advising on policy violations was not necessarily legal advice. Further, if a lawyer is retained to conduct an investigation where legal advice is contemplated it would be clearly identified in the retainer or mandate of the investigation.

Had the terms of reference or retainer agreement explicitly preserved privilege a different outcome may have ensued in both these matters. Moreover, these cases highlight the importance of considering these issues prior to engaging an investigator and drafting the terms of reference carefully if the purpose is to preserve the right of privilege.

The subjective standard considers whether the behaviour would create an honest and reasonable belief that a person with the same characteristics as the Respondent or Complainant (i.e., similar mental and physical characteristics, personal knowledge and/or history) in the same circumstance would conclude the behaviour was harassing in nature. Whereas, the objective standard considers the circumstances from the point of view of a hypothetical reasonable person who does not have the same characteristics. However, when it comes to sexual harassment, for example, the reasonable person is one who “does not rely on gender stereotypes, and understands what sexual harassment is.”

This standard allows a decision-maker to determine whether a reasonable person who does not have the same history, knowledge, characteristics or viewpoints would also find the impugned behaviour to be unwelcome. The reasoning for such a standard is that a hypothetical reasonable person may not view the impugned behaviour in the same manner as the person experiencing it. The behaviour must objectively be harassing in nature and not simply harassing to the individual on the basis of their past or experiences with the alleged harasser, for example.

The Arbitrator commented that trrasnfering an employee would be approapite in a scenario where there are “cogent and compelling reasons” such as, “an Employer’s obligation to provide a harassment-free workplace.”

“In particular, there may be circumstances associated with harassing and intimidating behaviour that an employee has taken part in, that suggest it is reasonable for, if not incumbent upon, the Employer to involuntarily transfer and/or prevent/preclude an employee from working at a particular work location.”

With respect to the specific issue in the arbitration matter, the Arbitrator concluded it was reasonable for the employer to move the griever for disciplinary purposes given the relevant circumstances.

“In a relatively short period of time (two months), the grievor’s behaviour had been the source of considerable disruption for the caretaking staff at Don Mills; and significantly involved serious harassment allegations towards certain employees. Ms. Merali had, at that time, only recently transferred out of Don Mills; accordingly, the “dust was far from settled” in terms of the disruptive impact that the behaviour of the grievor had upon the caretaking staff at that location. That the grievor and the custodial staff at Don Mills, at that point, would need a “breather” from each other was more than reasonable in the circumstances."

“Finding that the transfer of the grievor out of Don Mills at that time was reasonable, the Employer’s subsequent decision to deem the grievor disqualified with respect to the March 1, 2016 posting for the Shift Leader position at Don Mills makes sense since that posting arose directly because of that disciplinary transfer.”

The Arbitrator did, however, note other considerations when moving an employee on the basis of discipline in a unionized environment.

“There is, however, one aspect of the discipline issued to the grievor that gives reason for pause. The exercise of seniority by an employee to obtain a position at a particular location is an important right provided for under the collective agreement that should be generally respected. Whether because of geographic proximity, perceived favourable working conditions or overtime opportunities, a particular work location may be particularly attractive to an employee such that the employee will exercise his/her seniority to obtain that position. Generally, in this regard, there must be fairly cogent and compelling reasons for the Employer to be entitled to permanently transfer an employee out of a position for disciplinary reasons and/or to suggest an employee cannot be a candidate for a position at a particular work location.”

This decision suggests that despite seniority rights, an employee can be moved with cause when there are cogent and compelling reasons.

In a recent Labour Arbitration matter, Toronto District School Board v Canadian Union of Public Employees, Local 4400, 2018 CanLII 67327 (ON LA), the Arbitrator considered whether severe criticism of an employee by their supervisor would amount to harassment.

The grievor, a custodian, claimed his manager engaged in workplace harassment when he singled him out by telling him how to clean parts of the washroom. Of course, being a custodian, he already knew how to conduct his tasks. The custodian brought his concerns to the employer, who shared their belief that the reported behaviour did not constitute harassment. Nonetheless, the employer conducted an investigation that concluded the same. The Arbitrator concluded that “even severe criticism of an employee by a supervisor attempting to deal with a perceived performance problem is not harassment … it only becomes harassment when it is done in a seriously hostile or intimidating manner or in bad faith.” The Arbitrator had the following to say:

It is imperative that an employer endeavour to provide a workplace free of harassment. The relatively recent “Bill 168” amendments to the Occupational Health and Safety Act (OHSA) are a testament to the importance of employees being able to work in an environment free from harassment. 

However, not every scenario of an unsatisfactory interaction between employees, and not every “employment bruise” necessarily warrant to be characterized as harassment. A finding of harassment is a strong indictment of wrongdoing. In this regard, the subjective viewpoint of an employee that he/she has been demeaned by the act(s) of another, even if indisputably sincere in nature, is not a sufficient basis for a finding of harassment. Specifically, the evidence must objectively suggest a “...conduct or a course of activities that involve hostility, importuning, badgering and intimidation or bullying that causes the person distress that is inimical to a safe and positive work environment”UFCW, Local 1518 and 55369 BC Ltd. (2007) 90 C.L.A.S. 94 (Larson).

[….]

In the case at hand, the grievor’s allegation of harassment against Mr. Sandy must also be weighed in the context of Mr. Sandy’s supervisory authority as a Head Caretaker. A supervisor has the inherent authority to direct a subordinate employee, and as suggested by Arbitrator Larson in UFCW, Local 1518 supra, normal supervisory duties such as directing, evaluating and critiquing an employee’s performance should not, in itself, give rise to a claim of harassment: 

.... giving directions, evaluating performance and even disciplining employees should not be considered harassment in the normal course of events provided that these normal management activities are not carried out in an abusive, demeaning or hostile manner and have a legitimate work place purpose. 

In other words, less than optimal management would not amount to harassment unless it had intimidating or hostile elements, for example, in tone or delivery. Further, if the exercise of management rights is conducted in bad faith, the incident could amount to harassment. If you require assistance conducting an investigation, please contact us. 

The Complainant, Jordi Casamitjana argued that his employer, the League Against Cruel Sports, unfairly terminated his employment on the basis of his belief. Mr. Casamitjana claimed that he was fired after raising concerns about his pension fund being invested in companies that performed animal testing. A determination on whether or not the Complainant’s employment was terminated on account of his beliefs has not yet been made. 

In Canada, there is currently no case law determining whether or not ethical veganism would be protected by the Code on the basis of the creed. For various reasons, each instance the issue was adjudicated, the case was dismissed without a determination. As such, an employer would be required to consider the applicable factors to establish a creed based belief or practice (which are outlined in our previous blog); namely, the following:

• Is the creed sincerely, freely and deeply held?

• Is the creed integrally linked to a person’s identity, self-definition and fulfilment?

• Does the creed have a particular and comprehensive, overarching system of belief that governs one’s conduct and practices?

• Does the creed address ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a Creator and/or a higher or different order of existence?

• Does the creed have some connection to an organization or community that professes a shared system of belief?

Without clarity from the Human Rights Tribunal of Ontario (“HRTO”) or other Courts, an employer will have to assess a request for accommodation of this nature on a case by case basis in consideration of the above mentioned questions.

An employer should consider the purpose and intent of the Code when making a determination. For example, as outlined in the Preamble of the Code, an employer should:

• Recognize the “inherent dignity and the equal and inalienable rights of all members of the human family”;

• Ensure that each person has “equal rights and opportunities without discrimination”;

• Create a “climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province.” 

An employer may also be faced with assessing various types of beliefs and practices that fall within the realm of ethical veganism. For example, individuals who are vegan for religious reasons or on account of religious duties and individuals who are vegan for secular, moral reasons related to animal welfare.  As stated in our previous blog, “creed” may include non-religious belief systems.

If your business requires assistance assessing accommodation requests on the basis of creed, please contact us. 

An employer has a duty to accommodate an employee’s creed to the point of undue hardship. As such, an employer may have a duty to provide time off for religious holidays. This is reflective of the values and commitments contained in the Canadian Constitution, which encapsulates the right to be free from discrimination based on religion/creed. Canada is a secular, democratic and multi-cultural nation that prides itself on the tolerance of different cultures, ethnicities, races, religions, et cetera.  

However, the Chief Justice of the Supreme Court of Canada stated in Chamberlain v. Surrey School District No. 36 [2002] 4 S.C.R. 710, 2002 SCC 86: 

 “… The demand for tolerance cannot be interpreted as the demand to approve of another person’s beliefs or practices. When we ask people to be tolerant of others, we do not ask them to abandon their personal convictions. We merely ask them to respect the rights, values and ways of being of those who may not share those convictions. The belief that others are entitled to equal respect depends, not on the belief that their values are right, but on the belief that they have a claim to equal respect regardless of whether they are right. Learning about tolerance is therefore learning that other people’s entitlement to respect from us does not depend on whether their views accord with our own. ” 

As with all human rights, there are limitations. For example, if a right interferes with the human rights of others. 

What is Creed?

The Human Rights Code (“the Code”) does not define “creed.” However, courts and tribunals have often defined the term as religious beliefs and practices. It’s important to remember, however, that creed may also include non-religious belief systems. For example, beliefs that substantially influence an individual’s identity, worldview or way of life. 

The Courts have described the following characteristics as being relevant to a determination of whether or not a belief system is considered a creed under the Code.   

- Is the creed sincerely, freely and deeply held?

- Is the creed integrally linked to a person’s identity, self-definition and fulfilment?

- Is the creed a particular and comprehensive, overarching system of belief that governs one’s conduct and practices?

- Does the creed address the ultimate question of human existence, including ideas about life, purpose, death, and the existence or non-existence of a Creator and/or a higher or different order of existence?

- Does the creed have some “nexus” or connection to an organization or community that professes a shared system of belief?

An employer should accept in good faith that a person practices a creed unless there is a significant reason to believe otherwise, based on the factors set out above. 

The duty to accommodate Creed beliefs and practices

To determine whether or not a creed right has been engaged an employer may require additional information. As this can be a sensitive and private matter, the employer should only seek further information if required. As a general rule, an employer should:

 - Accept requests for accommodation in good faith unless there is evidence that the request is not sincere or genuine;

- Limit requests for information to those that are reasonably required to establish the existence of the right and the employer’s duties, to assess the needs, limitations or restrictions and, to develop and implement the accommodation;

- Maintain privacy and confidentiality throughout the process and ensure that information is only shared with those who need the information in order to develop and/or implement the accommodation. 

To circumvent this obligation, an employer must establish that the accommodation would cause undue hardship. This is a difficult standard to meet and in most instances, a large employer would be unable to establish undue hardship on an individual basis and would be expected to accommodate an employee on the basis of a sincerely held belief/creed.

Adverse effect discrimination 

An employee may be discriminated against by way of “constructive” or “adverse effect discrimination.” Section 11 of the Code prohibits discrimination that results from qualifications, requirements or factors that may appear neutral but nonetheless have adverse effects on an individual. A violation of the Code would be established unless the qualification, requirement or factor is reasonable and bona fide in the circumstances and cannot be accommodated on account of undue hardship. An employer therefore has a duty to accommodate to the point of undue hardship if:

- An individual’s creed right is adversely affected by a standard, rule, requirement, qualification or factor implemented by the employer;

- The individual has a sincerely and honestly held belief;

- The belief is connected to creed. 

Appropriate accommodations for Religious Holidays

An employer should offer the employee options to have the time off for a sincerely held religious or creed based belief without losing wages. However, not every accommodation on the basis of religious belief requires time off as not every religious activity demands it.

Accommodation options may include special or compassionate paid leave, scheduling changes, overtime, use of lieu time, compressed work week arrangements and, if the employer operates on a statutory holiday, working on the holiday (subject to the pay requirements for work on statutory holidays set out in the Employment Standards Act). An employer should provide the employee with options. Forcing an employee to use vacation time instead of exploring alternative options could amount to discrimination.

For example, attending the synagogue on Rosh Hashanah or the mosque for Eid is likely to be considered a protected religious practice whereas, attending a social event hosted by a religious group is unlikely to be a protected practice. A social event is unlikely to be sufficiently connected a religious or creed based practice or observation. Other considerations may include alternative options that respect the religious practice but don’t meet the employee’s specific request. For example, if a Christian employee sought accommodation to attend a midnight Christmas Mass. The employee would presumably have the right to attend a Christmas Mass as part of their religious belief but the employer may wish to discuss alternative times to meet the employer’s operational needs allowing the employee to attend mass at a different time. Each request, however, should be considered on a case-by-case basis. Other relevant factors may exist that should be considered before making a determination. Further, an employer should be conscious of the fact that different individuals practicing the same religions or creed based practices may have different perspectives on holiday celebrations. For example, some may not feel comfortable taking a day off to celebrate their religion. Individual choices and/or perspectives of employees should not be relied upon to reject or decline a legitimate request for accommodation.  

Mr. Duverger alleged that he was harassed by his supervisor on the basis of his disability and national or ethnic origin. Ultimately, the Tribunal had to determine whether the Complainant met the burden of proof (i.e., is there a relevant prohibited ground of discrimination under the CHRA? Did the alleged harassment have an adverse impact? is there a connection between the protected ground and the adverse impact (was the protected ground a factor in the adverse treatment?)). However, some of the alleged harassment occurred following the end of the employment relationship. As such, the Tribunal had to determine whether it was captured by the provisions in the CHRA. The Tribunal relied on principles of statutory interpretation to determine whether post-employment harassment would be captured by the provision of the CHRA.

Section 14 (1) provides for “Harassment.” Harassment is defined as, “a discriminatory practice” (c) “in matters related to employment” “to harass an individual on a prohibited ground of discrimination.”

The Tribunal concluded that for harassment to occur, it does not have to “have occurred during, throughout, or in the course of the employment period.”

However, this applicability of this case to the Ontario context, in particular the Human Rights Code (“the Code”) is doubtful as the basis of this determination was the interpretation of the CHRA provision. In the Code harassment is defined as “Harassment in employment” as follows:

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

In the Ontario context, the interpretation of this section would seem to require a complainant to be an employee subjected to harassing behaviours in the workplace. As such, it is unlikely that a similar decision would be made by the Human Rights Tribunal of Ontario.

Notably, however, human rights legislation is to be interpreted broadly to ensure the interpretation aligns with the purposes of human rights legislation. Human rights legislation has quasi-constitutional status with one of its purposes being to protect the most vulnerable members of society. The Tribunal noted that it is “often the final refuge of the disadvantaged and the disenfranchised” and concluded, “As the last protection of the most vulnerable members of society, exceptions to such legislation should be narrowly construed.” See Brossard (Town) v. Quebec (Commission des droits de la personne), 1988 CanLII 7 (SCC), [1988] 2 SCR 279.

Interestingly, Bill C-65, for example, will amend the Canada Labour Code, to provide a window of three months time for post-employment claims on the basis of workplace harassment and violence. As such, it is plausible, with the purpose of the legislation in mind, that the Human Rights Tribunal of Ontario carves out space for a similar course of action in the Ontario context for post-employment violations of human rights and/or harassment.

The study found that 79% of survey participants reported witnessing harassment and discrimination in the workplace within the past five years; of those, 42% witnessed an incident in the past year. Of those who witnessed harassment and discrimination, 77% did not report the incident. The most common reasons participants gave for not reporting what they witnessed were: “(1) being worried about the consequences, (2) not wanting to interfere, (3) not knowing that witnesses could report, (4) not wanting to be a snitch, and (5) not knowing how to report.”

The Report provided recommendations:

1. “Harness the knowledge of witnesses for understanding harassment and discrimination in the workplace.”

2. “Communicate internally that witnesses can report harassment and discrimination to HR, and educate them on the process for doing so.”

3. “Educateemployeesonhowtobeagoodallyandontheproblems,suchas compromising anonymity, associated with not asking for permission before telling colleagues about an incident.”

4. “Provide an efficient, anonymous, online reporting option for reporting inappropriate workplace behavior.”

Many bystanders don’t intervene or report the incident because they are afraid of the consequences or don’t know how to manage the situation. It is important for employers to promote policies, train employees and empower them to report incidents by highlighting the protections provided to prevent reprisals.