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Introductory remarks by Co-Chairs
8:30 a.m. to 8:45 a.m.

The use, both inside and outside of the workplace, of Facebook, e-mail, blogs, and Twitter raises a host of legal issues for employers and employees. What rights do employees have to access and safeguard electronic information generated about them in the workplace? What online activity can an employer prohibit? Our panel of experts will offer guidance on employers' and employees' rights and obligations in relation to the use and abuse of modern technologies in or relating to the workplace.

• Employees' Expectation of Privacy: Do employees have a reasonable expectation of privacy in relation to e-mail messages, text messages, and personal files, such as bank statements, stored on employer-owned computers or phones? Does it matter if the information is otherwise privileged? What if they are expected to carry devices such as Blackberries, cellphones or laptops? What electronic safeguards are employers required to provide for employee information?
• Protecting Against Misuse of Technology: What constitutes internet or e-mail abuse and when does it warrant discipline? What may employers do to discourage/prohibit non-authorized and non-work-related employee usage of internet and e-mail? What use can an employee make of an employer's electronic resources for the purpose of union activity?
• Electronic Monitoring: What information should be provided to employees concerning the scope of monitoring and surveillance? Is consent required? In what circumstances can an employer justify its use of surreptitious monitoring technology to assess the productivity of its employees? Can an employer record some, or all, of an employee's phone conversations? Do biometric scanning devices used to monitor access to the workplace and to implement timekeeping and payroll systems violate employee privacy?
• Off-Duty or Off-Site Activity: 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 the employer's computers to make the internet postings? Are there circumstances in which employers can demand access to employees’ personal technology, for example, Blackberries or home computers?
• Employee Access to Information about the Business or Co-workers: How has technology changed the access employees have to business information and personal information about co-workers? What standards have arbitrators placed on employees respecting the privacy of co-workers? Does an employer have a duty to an employee to disclose e-mails exchanged among co-workers that refer to that employee? How can an employer protect its electronically stored business information and trade secrets in the case of a departing employee?
• Electronic Background Checks: What are the human rights and privacy implications of employers conducting online searches as part of the background check of a potential employee during the recruitment process? Is information about a candidate posted on a publicly accessible blog or social networking webpage "personal information?" Can employees have removed information from search engines which they regard as embarrassing or otherwise prejudicial to their careers?

Is proof of differential treatment on the basis of a prohibited ground sufficient to make out a plausible case of discrimination, i.e. prima facie discrimination, or is something more required, such as proof of stereotyping, offence to dignity etc.? In this session, experts will review recent developments in the law and will clarify the elements to be established in different types of human rights claims. Issues to be discussed include:

• Discrimination in Charter Cases: How has the test for prima facie discrimination in Charter cases been altered by the Supreme Court's decision in the Kapp case?
• Test for Discrimination in Human Rights Cases: What is the difference between Charter tests and the "traditional" test for prima facie discrimination under the Human Rights Code? Is it necessary to demonstrate an impact upon human dignity in order to establish prima facie discrimination? What effect, if any, does the fact that a case has "government overtones" have on the approach tribunals take in applying the test for prima facie discrimination?
• Adverse Effect Discrimination: Human rights legislation considers differential treatment to be discrimination, not only if it is intended, but if the effect is adverse.  Does the B.C. Court of Appeal's approach in the Gooding case represent a change in direction?
• Perceived Discrimination: If an employee is adversely treated on the basis of a perceived characteristic – for example, a disability or sexual orientation – which the individual does not, in fact, possess, is this discrimination? If an employee does not acknowledge that he or she has a disability, what duty does the employer have to accommodate?
• Discrimination in Arbitration Cases: How has the debate over the test for prima facie discrimination been resolved in grievance arbitrations?
• The Role of the "Comparator Group": When do courts and adjudicators use a comparison with other employee groups to determine the existence of discrimination? How is the comparator group selected?

The remedial powers of human rights tribunals and arbitrators have expanded significantly to enable adjudicators to order remedies that are durable and effective. At the same time, employers, management, employees, and unions are increasingly looking for alternatives to formal adjudication in order to remedy human rights violations in the workplace. This session examines innovative remedies that are being fashioned by adjudicators and by the parties themselves, with analysis focused on the following issues:

• Damages for Monetary Loss: How do tribunals and arbitrators calculate damages for loss of wages? For loss of a job where termination was not justified but reinstatement is not sought or ordered? When can a human rights tribunal or arbitrator award compensation for legal costs or other out-of-pocket expenses incurred as a result of a human rights violation or of proceedings required to obtain redress? What do tribunals do if damages are difficult to quantify?
• Mitigation of Damages: How does the employee's duty to mitigate or cooperate in accommodation affect the calculation of damages? Can an employee be required to return to his or her former workplace while looking for another job? If a wrongfully terminated employee loses multiple months' wages but then obtains new employment paying as much or more in a shorter period of time, is he or she still entitled to compensation?
• Damages for Non-Monetary Loss: In what circumstances will adjudicators award damages for injury to dignity and self-esteem? Defamation? Mental distress? Violations of the intrinsic value of the protected right? What amounts are being ordered by arbitrators and human rights tribunals in the latest cases? Are there limits on the amount of damages that can be awarded under these headings? How have legislative changes affected these limits?
• Punitive and Aggravated Damages: In what circumstances do tribunals and arbitrators have jurisdiction to award aggravated and punitive damages? What principles govern their assessment and what amounts are being awarded?
• Loss of Opportunity: How do arbitrators and human rights tribunals determine damages when discriminatory treatment leads to a loss of "employment opportunity" (i.e. in hiring or promotion) as distinguished from a loss of employment? Can a union be compensated for the loss of opportunity to be consulted regarding an employer's decision that adversely affects the bargaining unit? Will adjudicators issue awards for the loss of opportunity to be considered for a position, for example, in the case of an overqualified candidate?
• Non-Monetary Remedies: What rules govern the award of public interest remedies such as sensitivity training, monitoring and policy revision? When will a breach of a human rights obligation persuade an arbitrator or human rights tribunal to reinstate a dismissed employee?  Will adjudicators order the transfer of harassers? Staff training or counselling? Remedies which conflict with the collective agreement? Can adjudicators order apologies? What if a remedy – for example, reinstatement – is contingent on an apology?
• Informal and Alternative Solutions: What are the advantages of informal solutions over human rights tribunal or grievance arbitration procedures? What options are there for voluntary restructuring of the workplace to address past discrimination? What are some examples of unions and management working together to achieve innovative accommodation strategies? When should approaches such as mediation to resolve human rights issues in the workplace be considered? How do considerations of privacy and confidentiality fit in? What mediation outcomes/remedies are possible and is there a way to enforce mediation orders?
• Interim Measures: During the investigation of an alleged human rights issue, how can the union and management work together to come up with interim workplace solutions? When should the complainant be transferred to another area in the workplace? Placed on leave? How does the presumption of innocence bear on the interim status of the alleged harasser? What interim remedies are available from tribunals, arbitrators, and the courts?

The abolition of mandatory retirement across Canada and the evolving protection of employees suffering from disabilities raise issues about the feasibility of implementing non-discriminatory work performance standards. Can deficiencies that are due to an employee's disability, or are a natural consequence of the aging process, be taken into account when assessing work performance? Can an employee who does not disclose his or her disability challenge an unfavourable work performance evaluation impacted by that disability? This panel will address these and the following current issues:

• Essential Duties: Employees are expected to perform the essential duties of their job. At what point are workers no longer fulfilling this term of their contract? What are "essential duties" and can an employer rely on the tasks outlined in the job description to argue that the employee is unable to perform the essential duties of the job?
• The Aging Worker: What types of tasks are most likely to be adversely affected when performed by an older worker? Are employers required to modify duties or to lower work performance standards? Can age be considered in ranking employees? Is suggesting or alluding to early retirement discrimination based on age? Can employers in financial difficulty replace higher-paid older workers with lower-paid younger workers? Can an employer institute tests to assess whether the capacity of a worker has been affected by increasing age?
• Modified Duties: If a disabled employee returns to work on modified duties, will this undermine a claim of total disability so as to disqualify him or her from LTD leave?
• Assessment and Intermittent Work: If an employee's disability or age-related limitations prevent him or her from working on a regular basis, can the employee's attendance record be considered in the assessment of the employee's work performance? Must an employer extend the probationary period of a disabled employee to whatever period is necessary to accumulate the equivalent of the normal probationary period in which to assess the employee's performance?
• Medical Information: What medical information should or can the employer obtain from the employee's doctor prior to conducting a work performance analysis in relation to a disabled aging worker?
• Undue Hardship:  If an employer has in the past tolerated a lower standard of performance from an employee, will these past accommodations count towards the assessment of undue hardship?  Does an employer have a duty to provide additional training to an employee seeking accommodation in another position? At what point will the requirement and costs of additional training necessary to ensure an adequate level of performance in the new position amount to undue hardship?

Across Canada, employers, unions, and employees are struggling to address issues of violence and harassment in the workplace. However, due to overlapping legal regimes along with recent changes in the law, parties may not fully understand their rights and obligations in relation to workplace harassment. What is the difference between personal and Code-based harassment? What obligations are triggered for the employer upon notice of alleged harassment in the workplace? Focusing particularly on developments in this past year, this panel will provide an overview of the laws addressing harassment in the workplace and will review strategies to pro-actively prevent and effectively deal with workplace incidents:

• What is Harassment? What is Violence?: Can a single episode or a series of discrete incidents constitute harassment under human rights legislation? How are workplace harassment issues addressed in grievance arbitrations? Do the courts offer recourse to employees who are mistreated in the workplace?
• Dealing with Complaints: What steps should the employer and the union take to demonstrate an adequate response to a harassment complaint? What are the potential legal consequences under human rights legislation for a failure to investigate or for conducting a flawed investigation into allegations of harassment? What policies and procedural protections (as to confidentiality, non-reprisal etc.) should be put in place for the employee subject to investigation, as well as for complainants and witnesses?
• Occupational Health and Safety Legislation: What kind of improper behaviour is prohibited under OHS legislation? What steps must employers take under OHS legislation if improper/harassing behaviour or violence occurs in the workplace? Does an employer have any obligation if an employee confides in him or her about a domestic violence issue? What is the scope and what are the limits of Ontario's new Bill 168, amending the Occupational Health and Safety Act, and what is the impact of this legislation likely to be on the rest of Canada?
• Prevention: What are useful components of an effective workplace violence prevention program? What are the proper elements of a risk assessment protocol?
• Remedies: What developments, in case law and legislation across Canada, have taken place in the last year with respect to remedies for violence and harassment in the workplace?

A host of issues arise for the employee, employer, and union in relation to employee sickness and disability leave. Can employees "moonlight" while on sick leave or long-term disability (LTD)? What kind of inquiries are employers allowed to make into a claimant's treatment? Can the denial of a promotion to an employee on sick leave constitute discrimination? In this section, a panel of experts will answer these questions and address the following issues:

• Recovery and Return to Work: Can an employee who can be accommodated with modified duties be forced to return to work even if not fully recovered? Will employers incur liability if they place undue pressure on employees to return to work prematurely? If an employee returns to work but not on a full-time basis, can the employee's status be converted to part-time, or will this constitute discrimination?
• Termination: Can employment be terminated while an employee is on LTD? If the collective agreement contains a clause allowing for the dismissal of an employee on leave after a specified period of time, will the lapse of this time period relieve an employer of any further duty to accommodate the on-leave employee? Does the unfair denial of sick leave constitute constructive dismissal?
• Sharing of Information: Can an employee be required to disclose a medical diagnosis and treatment in order to obtain or continue on sick leave? When can employees be required to provide medical certificates? What recourse does an employer have if the medical certificate is inaccurate or inadequate?
• Benefits: What obligations does an employer have to assist a disabled employee in understanding or obtaining benefits while on leave? Can the failure of an employer to provide short- or long-term disability benefits constitute discrimination? Do sick leave credits, seniority, and benefits accrue while an employee is on occupational injury or sick leave? Do employer policies or collective agreement provisions which cut down the entitlement of an employee to paid sick leave following a certain number of absences in a given time period amount to discrimination in violation of human rights legislation?
• Rehabilitation: What duties does an employee on LTD have to facilitate his or her own healing? What happens if an employee on leave due to an addiction refuses to participate in a rehabilitation program? Is an employer entitled to cut off benefits to that employee?
• Investigations and Monitoring: What kind of investigation into the legitimacy of sick leave and LTD claims is permissible? When is surveillance justified? Where an insurer refuses to cover a LTD claim, can the employer be held responsible?

Job-related stress and anxiety are having a profound impact on Canadian workplaces – contributing to sickness, disability, and loss of productivity. But deciphering the employer, employee, and union's rights and obligations in relation to a worker's stress is not a simple matter. Is stress a symptom of a disability or a disability itself and does it matter? How can an employer distinguish between an employee who is simply unable to handle the normal "stress" of the job versus an employee suffering from a stress disorder in need of accommodation? This panel will address these and the following issues:

• Prevention: How can employers create a work environment that minimizes physical and psychosocial causes of stress? Does an at-risk employee have a duty to make use of assistance offered by an employer, such as counselling services?
• Early Recognition: How much information does an employer need before a duty is triggered to inquire into whether the employee is suffering from a stress- or anxiety-related disability? How can unions and employers implement systems for the early identification of employees with possible stress- or anxiety-based disabilities?
• Sick Leave:  When an employee is on leave for an anxiety disorder, is the employer entitled to detailed information regarding a specific diagnosis, symptoms and treatment plan? How does the employee's obligation to provide medical information vary with the length of absence and/or complexity of accommodation arrangements?
• Stress as a Disability under Human Rights Law: Does the law recognize a disability arising from the stress of the job itself? What if the stress is caused by a work-related task that interferes with a personal belief? Can workplace stress resulting from a problematic relationship with a supervisor or from increased managerial scrutiny due to work performance problems constitute a disability under human rights legislation?
• Union and Management Cooperation: What measures can unions and employers implement to work together effectively to ensure that an objective understanding of the worker's disability is achieved and that the accommodation process is successful? What types of accommodations are effective for workers with anxiety- or stress-related disabilities?
• Medical Evaluations: Can an employer challenge a stress leave recommendation provided by an employee's family doctor? If an independent medical opinion is received, will the failure of an employer to follow specific recommendations – for example, to transfer an employee – constitute a failure to fulfill the duty to accommodate?
• Workers' Compensation: Do workers' compensation schemes across Canada recognize stress and anxiety disorders as occupational diseases? What is the test for compensability? Must claims be linked to a specific workplace incident and what kind of incidents will qualify?

CONFERENCE ENDS
3:30 p.m.