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Opening Remarks:
BUILDING A NEW TRIBUNAL: DEVELOPING RULES AND PROCEDURES TO MEET AN EXPANDED MANDATE
8:15 a.m. – 8:30 a.m.
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| Since the announcement of a new regime for the enforcement of human rights in Ontario, the Human Rights Tribunal has been engaged in wide-ranging consultations in order to develop appropriate procedures for the new complaint-based system. The Chair of the Tribunal will kick-off the conference with timely introductory remarks about the proposed new Rules of Procedure and other plans for the Tribunal in the months leading up to the formal transition to the new system on June 30, 2008. |
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Panel 1:
THE NEW HUMAN RIGHTS REGIME:
TRANSITION RULES AND LEGAL SUPPORT
8:30 a.m. – 9:45 a.m.
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| SPEAKERS |
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Helena Birt
Transition Director
Human Rights Legal Support Centre |
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Mary Cornish
Human Rights Counsel
Cavalluzzo Hayes Shilton McIntyre & Cornish
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Jamie Knight
Employer Counsel
Filion Wakely Thorup Angeletti |
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Hart Schwartz
Director, Legal Services Branch
Ontario Human Rights Commission |
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With the Ontario Legislature's passage of Bill 107, An Act to Amend the Human Rights Code on December 5, 2006, the way in which human rights complaints are to be treated in Ontario changed dramatically. On June 30, 2008, the amendments will come into full effect, with significant implications for employers, unions and complainants. This panel focuses on the new reality for all parties, including applications to the Tribunal and its policies, practices and procedures. Special attention will be given to: |
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 Transitional processes: What will happen to existing applications when the amendments come into effect? What rules will apply to these complaints? |
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The new rules: How will the Tribunal handle cases after June 30th? What will be its role and powers? What are the requirements and timelines for applications and responses? How will the mediation process work? |
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Legal support: What is the role of the Legal Support Centre? How is it being funded? What implications does this have for complainants and respondents? Is there a role for private counsel and paralegals? |
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Overlapping forums: How will the new system deal with the possibility of multiple proceedings (before the Tribunal, arbitrators and the courts) arising from a single case? |
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What is the continuing role of the Commission? |
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BREAK
9:45 a.m. – 10:00 a.m. |
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Panel 2:
FAMILY STATUS, RELIGIOUS OBSERVANCE AND AGE: ACCOMMODATING EMPLOYEE NEEDS, IDENTIFYING THE LIMITS
10:00 a.m. – 11:15 a.m.
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Much attention has been paid to the issues arising from accommodation of employees with disabilities, but employers and unions must be equally vigilant about obligations to employees arising from other prohibited grounds of discrimination. Our panel of experts will consider recent developments in three areas: |
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Family status |
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What constitutes discrimination on the basis of family status? |
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What distinguishes ordinary family responsibilities from the protections of "family status"? Do you need a change in a condition of employment? |
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What obligations do employers have to accommodate workers' familial obligations? Does there have to be a change for the accommodation obligation to arise? |
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Is the assessment of "undue hardship" different in an accommodation case involving family status? |
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When can workers insist on particular hours of work, shifts, or part-time hours based on child care or other family responsibilities such as breast-feeding? |
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Religion/religious observances |
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What kinds of activities constitute religious observance? |
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Must an employee be a fully observant member of a religion, or is a casual adherent entitled to accommodation? |
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What scheduling changes may an employer be required to make to accommodate religious observance? |
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What kinds of duties can employees refuse to perform on religious grounds? |
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Is an employer required to provide facilities in the workplace for religious observance? What about providing alternative uniforms to employees who object to standard uniforms on religious grounds? |
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Age |
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Are skills tests for older workers discriminatory? |
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Can age be a perceived disability? |
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Is age a legitimate consideration when selecting employees for layoff? |
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What exceptions to age discrimination have survived the abolition of mandatory retirement? Are benefits and pensions affected? |
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BREAK
11:15 a.m. – 11:45 a.m. |
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Panel 3:
MISCONDUCT, DISABILITY, OR BOTH? DEALING WITH THE DILEMMA OF THE HYBRID CASE
11:45 a.m. – 1:00 p.m.
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One of the most challenging situations in the workplace involves employee conduct which may be both culpable and non-culpable as a result of a disability. Using a detailed fact scenario (which will be distributed to the audience in advance), an arbitrator and counsel for union and management will analyze the complex issues of accommodation and discipline in this hypothetical hybrid case involving a drug-addicted employee. Variations on the facts will further illuminate the grey areas confronting the parties as they seek a fair and practical resolution. |
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LUNCH
1:00 p.m. – 2:15 p.m. |
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Panel 4:
PERSONAL AND PSYCHOLOGICAL HARASSMENT IN THE WORKPLACE: RECENT CRITICAL CASES
2:15 p.m. – 3:30 p.m.
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Gillian Demeyere
Assistant Professor of Law
University of Western Ontario |
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Len Hatzis
Employer Counsel
Ontario Ministry of Government Services |
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Jeffrey Sack
Union Counsel
Sack Goldblatt Mitchell |
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Workplace harassment continues to take centre stage in the latest case law dealing with the enforcement of human rights in the workplace. While the jurisprudence on sexual harassment is well-developed, issues pertaining to psychological and personal harassment are far less clear. In this advanced session, Lancaster's panel of experts will analyze the latest arbitral, human rights tribunal and court decisions in this developing area of the law. Topics include: |
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What kinds of behaviour have been found to violate harassment provisions in collective agreements or to offend employers' harassment policies? |
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While bullying, abusive language and threats are less ambiguous, can the "silent treatment", gossip and isolation constitute harassment? When may a workplace investigation cross the line and become personal harassment? |
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What degree of harassment is prohibited? Must there be a pattern? At what point does the workplace become a poisoned environment? |
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When is personal harassment grievable? Does an arbitrator have jurisdiction if the collective agreement does not specifically mention personal harassment? When can an employee sue? |
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Can harassment be the subject of a work refusal under occupational health and safety legislation? |
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How effective is Quebec's Labour Standards Act prohibition of psychological harassment? |
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END OF DAY ONE
3:30 p.m. |
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DAY TWO
Wednesday, April 2, 2008 |
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Panel 5:
NO RIGHT WITHOUT A REMEDY: CURRENT DEVELOPMENTS IN HUMAN RIGHTS REMEDIES
8:30 a.m. – 9:45 a.m.
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| As the maxim goes, there is no right without a remedy, and remedies for human rights violations have expanded significantly. This panel examines what arbitrators, the courts and human rights tribunals are awarding as remedies in human rights cases, with analysis of trends in the following areas: |
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Damages: What are the latest cases saying about compensation for wage loss, emotional distress and injury to dignity/self-esteem, punitive and aggravated damages, and tort damages? |
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Systemic remedies: What jurisdiction do arbitrators have to award systemic remedies? What rules govern the award of systemic remedies such as sensitivity training, monitoring and policy revision? Can arbitrators award remedies that amend the collective agreement? How are systemic remedies enforced? What are the consequences of the employer's failure to comply? |
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Costs: When can a human rights tribunal award compensation for a complainant's legal costs? For a respondent's legal costs? What impact does the conduct of the parties have on any award for costs that might be made? Will arbitrators consider making cost awards? |
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Reinstatement: When will a breach of the duty to accommodate or other human rights obligations persuade arbitrators to reinstate a dismissed employee? |
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BREAK
9:45 a.m. – 10:05 a.m. |
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Panel 6:
CASE STUDY: FOCUS ON PRACTICAL SOLUTIONS
10:05 a.m. – 11:00 a.m.
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Susan Brickell
Local Coordinator/Bargaining Unit President
ONA Local 111 |
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Marg Creen
Manager
Occupational Health & Employee Rehab Unit
The Scarborough Hospital |
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This session will provide an overview of a particular program that an organization has adopted to meet human rights issues in the workplace, with a focus on developing practical strategies to avoid problems before they develop, encouraging collaborative approaches, and reducing cost and delay. Management and union representatives will discuss how they developed their program, how well it works, and what lessons can be drawn from their experience for other workplace parties. |
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BREAK
11:00 a.m. - 11:30 a.m. |
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Panel 7:
MENTAL ILLNESS: DEALING WITH THE "INVISIBLE DISABILITY"
11:30 a.m. – 1:00 p.m.
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One of the greatest challenges for employers and unions is recognizing and accommodating "invisible disabilities" like depression and other mental illnesses, chronic fatigue syndrome, chronic pain, migraines, environmental sensitivity and cognitive limitations. These complicated cases often involve the intersection of discrimination, privacy and occupational health and safety law, and Lancaster's panel of experts will focus on the tough questions that arise, including: |
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When do these "invisible" illnesses constitute a disability giving rise to the duty to accommodate? Do temporary conditions count? What constitutes discrimination based on perceived disability? |
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When will arbitrators impute to employers "constructive knowledge" of an "invisible disability"? Does inappropriate or anti-social behavior trigger a duty on the employer's part to inquire about an employee’s mental health? |
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What must the employee disclose in order to establish a need for accommodation? When can the employer obtain independent medical evaluations or specialists' opinions? What measures should be put in place to protect an employee's privacy? |
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Is the employer required to accommodate an employee with a mental illness where the employee denies disability? Refuses to provide medical information? Experiences a relapse? |
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Can mentally ill employees be required to undergo psychiatric treatment and/or take medication as a condition of employment? |
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Can the employer be required to modify the workplace in order to reduce triggers for these conditions, such as stressors, fragrance, lighting, etc.? |
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LUNCH
1:00 p.m. – 2:15 p.m. |
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Panel 8:
WHAT'S NEW IN TECHNOLOGY AND PRIVACY RIGHTS: FACEBOOK, INSTANT MESSAGING, INTERNET USE
2:15 p.m.– 3:30 p.m.
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| Employees have unprecedented access to information in the workplace, and easy access to the internet. Employers are increasingly faced with issues regarding the policing, control, proof and discipline of employee misconduct in cyberspace. Our panel of experts will guide participants through the vast network of employers' and employees' rights and obligations in relation to the use, and often abuse, of computers and other technologies in the internet age. Topics include: |
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Can employees be disciplined for views expressed on Facebook, blogs and other internet sites that reflect adversely on the employer or other employees? Does it matter if the employee does not use work time or computers to make the internet postings? |
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Can employers monitor employees' internet and e-mail usage at work? Do employees have a reasonable expectation of privacy in relation to workplace e-mail? What constitutes internet/e-mail abuse and when does it warrant discipline? |
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What approaches have arbitrators adopted to the admissibility of evidence obtained through computer monitoring? What impact does privacy legislation have on the monitoring of computers and other electronic devices inside and outside the workplace? |
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What does the latest case law say about computer monitoring, call logging software, voice recognition software and similar technologies? |
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What elements should be set out in a company's policies regarding monitoring and surveillance? |
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CONFERENCE ENDS
3:30 p.m. |
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