Category Archives: Human Rights

Dealing with Mental Health and Addiction – A New Ontario Human Rights Commission Policy

On the heels of its recently updated policy on Gender Identity/Gender Expression, the Ontario Human Rights Commission (OHRC) has now released a new policy to provide guidance on how to define, assess, handle and resolve human rights issues related to mental health and addiction disabilities. The full Policy can be found at:

http://www.ohrc.on.ca/en/policy-preventing-discrimination-based-mental-health-disabilities-and-addictions

The OHRC’s new Policy builds on its Policy and Guidelines on Disability and the Duty to Accommodate, applying the same principles to people with mental health issues or addictions. The new Policy recognizes that people with mental health disabilities are entitled to the same level of protection as people with physical disabilities, and is reflective of the prevalence of mental illness and addiction in Canada today. The OHRC cites research estimating that one in five Canadians will experience a mental illness or addiction.

Given these statistics, most employers will need to provide assistance or accommodation to an employee dealing with mental illness or addiction. A full review of the OHRC’s new Policy is therefore recommended. The Policy provides insight into recognizing mental health and addiction issues and provides examples of appropriate accommodation in such circumstances.

Also important for employers to note is the emphasis placed on employer responsibility for the overall work environment. The new Policy makes clear that the obligations of employers do not end with their own accommodation efforts, but rather extend to maintaining a workplace that is free from discrimination and harassment of individuals with a mental health disability or addiction. There is also a clear duty on employers not to condone or further a discriminatory act that has taken place, and to properly respond when others engage in discriminatory behaviour.

Issues related to mental health and addiction disabilities can be difficult to navigate. Should you require assistance as you encounter these issues, please contact a member of our group.

 

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Filed under Accessibility, Duty to Accommodate, Employment, Human Rights, Workplace Policies

New Gender Identity/Gender Expression Policy from the Ontario Human Rights Commission

The Ontario Human Rights Commission (OHRC) has released a new policy on the rights of trans and gender non-conforming individuals. The Policy on preventing discrimination because of gender identity and gender expression can be read in its entirety at:

http://www.ohrc.on.ca/en/policy-preventing-discrimination-because-gender-identity-and-gender-expression

The Policy represents a complete revision and update to the OHRC’s original policy on gender identity first published in 2000. Since that time, the Ontario Human Rights Code has been updated to enshrine gender identity and gender expression as Code-protected grounds. The OHRC’s new Policy reflects this change and provides guidance to organizations seeking to meet their legal responsibilities under the Code. The Policy also promotes understanding and awareness about trans people and the bias and prejudice they often face.

The Policy reminds organizations that trans people and other gender non-conforming individuals are protected from discrimination and harassment because of gender identity and gender expression in the following five areas:

  • when receiving goods, services and using facilities;
  • when occupying housing accommodation;
  • when entering into a contract with others;
  • in employment; and
  • when joining or belonging to a union, professional association or other vocational association.

The Policy provides examples as to how gender identity and gender expression may come into play in these five areas, and solutions that meet an organization’s responsibilities under the Code. For example, access to change rooms/washrooms, the provision of shelter services, the implementation of dress codes and proper hiring procedures are all topics that are considered. A best practices checklist is also provided.

Issues related to gender identity and gender expression can be complex. We recommend a full review of the OHRC’s new Policy in order to gain an understanding of how these issues may impact your organization.

 

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Filed under Duty to Accommodate, Employment, Human Rights, Workplace Policies

The Risks of Self Representation

Recently an individual represented himself in a wrongful action before the Ontario Court of Appeal. He was appealing the decision of Mr. Justice Morgan from November 28, 2012 dismissing the action [Musoni v. Logitek Technology Ltd., 2012 ONSC 6782].

The decision of Morgan J. outlines a number of other proceedings brought by Musoni, including a complaint against a lawyer who had been referred to him by the defendant, as well as a human rights application.

In the trial decision, Morgan J. found that Musoni had been hired in October of 2005. On April 17, 2006 the parties had executed an employment agreement that ‘…governed the terms of the Plaintiff’s employment with the Defendant”. It provided as follows (in part):

“LOGITEK or EMPLOYEE shall have the right to terminate this agreement by notice in writing. A fifteen (15) days’ notice period will be required by the appropriate party, if agreement is terminated.”

The decision makes no reference to any additional consideration provided for the terms of this contract. It states he did not have legal advice but had several weeks to review it before he signed it.

There were two problems with the contractual term, at least one of them fatal. First, courts have determined in numerous cases that for an employment contract which significantly reduces common law rights to be enforceable it must have consideration other than continued employment if it is signed after the employment has commenced. There is no discussion in the decision of any such fresh consideration.

Second, a termination clause cannot provide less notice than could be required by relevant employment standards legislation, in this case Ontario’s Employment Standards Act, 2000 (the “ESA”). Following a Supreme Court of Canada decision on point such clauses have been ruled to be void ab initio and common law rights are read in.

In this case, Musoni apparently indicated that he had read and understood the contract and conceded it to be ‘valid and in force’. As a matter of law, however, that was incorrect. The clause should have been found to be void and unenforceable, and Musoni should have been entitled to common law notice.

Musoni appealed the decision to the Court of Appeal. In a surprising and very short judgement issued on October 11, 2013, the Court of Appeal ruled that Mr. Musoni was paid the amount specified in the contract and found no error in Morgan J’s conclusions. No mention was made in either judgment of what have been found to be fatal errors in termination clauses of this sort in numerous other judgments. Whether or not the trial court and/or the Court of Appeal were made aware of the clear law in this area they neither discussed nor applied it. Clearly, Musoni was not aware of it.

Musoni had costs awarded against him both at trial and at the Court of Appeal. According to the facts as articulated by Morgan J., he should have won!

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Filed under Employment, Employment Contracts, Human Rights