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This program has been accredited by the Law Society of Upper Canada towards the professional development requirement for certification (Day 1 for 5.5 hours and Day 2 for 4.5 hours).

Labour Law             10 hours

Introductory remarks by Co-Chairs
8:45 a.m. to 9:00 a.m.

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. Focusing particularly on developments in this past year, notably the Ontario government's passing of Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009, this panel will provide an overview of the laws addressing harassment in the workplace and will review strategies to proactively prevent and effectively deal with workplace incidents:

• What is Harassment? What is Violence?: What is the difference between personal and Code-based harassment? 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?
• Duties under Ontario's Bill 168: What is the definition of workplace harassment under Bill 168? What new duties do employees and employers have with respect to violence and harassment? What steps should an employee take when he or she becomes aware of a potentially violent situation in the workplace? What liabilities do employees face for failure to comply with their obligations under the Act? What liabilities do employers and supervisors face for failure to comply with the provisions of the Act? What obligation is there to conduct a risk assessment analysis or to develop a workplace policy? How is Bill 168 likely to be used and interpreted by arbitrators?
• Dealing with Complaints: What are the potential legal consequences of a failure to investigate or for conducting a flawed investigation into allegations of harassment under human rights legislation? 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?
• Prevention: What are an employer's obligations to monitor and detect discriminatory conduct? What are useful components of an effective workplace violence prevention program?
• 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?

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? What is required to establish a prima facie case of reprisal?
• 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?
• Religious and Racial Discrimination: What is the test for establishing a plausible case of race discrimination? How have adjudicators been applying this test in recent cases? What about the test for discrimination on the basis of religion?
• 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?

On November 12, 2005, Lori Dupont, a nurse at the Hotel-Dieu Grace Hospital in Windsor, Ontario, was stabbed to death by her former boyfriend, Dr. Marc Daniel, an anesthesiologist at the same hospital. In the months leading up to the murder, there were numerous unheeded warnings of what was to come: Daniel's symptoms of depression, including suicide attempts, incidents of public harassment and abuse of Dupont at the hospital, and complaints by hospital staff regarding Daniel's unprofessional and disruptive behaviour. In 2007, following a 10-week Coroner's Inquest to examine the events leading up to the murder, a jury returned a list of 26 recommendations, aimed at preventing a similar tragedy from occurring again.

Ms. Dawn Ricker-Vassos is the Safe Workplace Advocate at Hotel-Dieu Grace Hospital, a position that was created in response to the recommendations of the Dupont Inquest. She is responsible for conducting violence prevention training and working with management and staff to prevent the escalation of conflicts that arise at the hospital.

Evolving societal definitions of and shifting roles and responsibilities within the family are being reflected in current human rights cases relating to family status. What family obligations are protected by human rights legislation? Is the assessment of "undue hardship" different in an accommodation case involving family status? This panel will address these and the following issues:

Proving Family Status Discrimination – Two Competing Approaches: Campbell River and Hoyt:

• What are the two approaches? Which approach prevails in which jurisdictions and in which forums?
• What new approaches are emerging and how do these succeed in reaching a compromise between the two dominant streams?
• What do the competing approaches mean from a practical perspective when presenting a case where family status is an issue?
• What is "family status?" Are family obligations to take care of sick or disabled relatives covered? Who counts as "family?" To what extent will adjudicators scrutinize family arrangements and decide whether they represent parenting "choices" versus parenting "needs" and why does this distinction matter?

Accommodating Family Status:

• Are employers required to conduct an individual assessment of each employee's "family status" needs? Can an employer be relieved of a duty of individual assessment, for example, by providing employees with a specified maximum number of "family days" off work?
• Can the employer require an employee to make changes to his or her family obligations instead of accommodating the employee's circumstances?
• What kind of accommodation can be required by an employee? Leaves of absence? Modified work schedule? Particular shifts or hours?
• What will amount to undue hardship to the employer? Can the employer argue that the number of employees who may seek a similar accommodation amounts to undue hardship? When does an adverse impact on production constitute undue hardship?

As part of Ontario's recent overhaul of its human rights system, there have been changes in the rules and legislation governing the Tribunal's approach to procedural issues. This panel will examine how the Tribunal has been regulating its own process and will arm you with strategies to use to your best advantage.

• Interim Remedies: When will the Tribunal exercise its discretionary power to order interim remedies? What remedies have been ordered? Interim orders to stop reprisals? Payment of wages pending the determination of an application? What supporting material does the Tribunal require? Can a respondent whose position is ultimately vindicated claim repayment of damages incurred from an interim remedy?
• Deferrals: What principles does the Tribunal apply in deciding whether a deferral of proceedings is warranted? How does the fact that another proceeding - for example, a civil action - is close to resolution factor into the analysis? What if there is an ongoing grievance under a collective agreement based on the same facts and issues?
• "Services" versus "Adjudicative Decisions": When will the actions of a statutory tribunal, such as the Workplace Safety and Insurance Board, constitute "services" within the meaning of s.1 of the Code, rather than "adjudicative decisions" (the latter being outside of the Tribunal's jurisdiction)?
• Intervention: When will the Tribunal allow intervention in a proceeding? When a unionized member is a complainant, will the Tribunal grant the union intervenor status? What does being granted intervenor status allow the party to do?
• Dismissal of Applications: When will the Tribunal find that another proceeding has appropriately dealt with the "substance" of an application before the Tribunal such that dismissal (i.e. under s.45.1) is warranted? What if both proceedings arise from the same facts but different remedies are being sought? What if a court or arbitrator is being asked specifically to find an infringement based on the Code? What constitutes a "proceeding?" Will the Tribunal find that the Ontario Labour Relations Board is the appropriate forum to deal with an employee's allegations of a breach of the duty of fair representation against the union?
• Jurisdiction: How should arguments that a matter falls under federal jurisdiction be raised and how does the Tribunal address such assertions?
• Bankruptcy: When will an assignment in bankruptcy result in a stay of proceedings at the Tribunal in relation to a claim by an applicant against an insolvent respondent? Can a claim against individual respondents continue where the corporate respondent is in bankruptcy?
• Production Issues: Will the Tribunal grant a request for the production of documents prior to the deadline for disclosure of all relevant documents?
• Expedited Applications: When will the Tribunal order the expedition of an application and what circumstances will be considered to be "urgent" by the Tribunal?

The abolition of mandatory retirement across Canada, against the backdrop of economic uncertainty, raises a host of issues regarding the rights of and duties towards aging workers. Can employers suggest or allude to early retirement without attracting claims of discrimination based on age? Are age-based distinctions in pension plans discriminatory? Can employers in financial difficulty replace higher-paid older workers with lower-paid younger workers? This panel will address these and the following issues:

• Essential Duties: Employees are expected to perform the essential duties of their job. At what point are aging workers no longer fulfilling this term of their contract? What types of tasks are most likely to be adversely affected when performed by an older worker?
• Performance Standards: Are employers required to modify duties or to lower work performance standards to accommodate the aging worker? Can age be considered in ranking employees? Can an employer institute tests to assess whether the capacity of a worker has been affected by increasing age? If an employee’s 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?
• Retirement Benefits: When can an employer decrease retirement benefits? Does an employee have a right to sue an employer for altering or terminating his or her retiree benefit plan? Are age-based reductions in benefits associated with retirement benefit plans discriminatory? Are age-based restrictions on the accrual of pensionable service discriminatory?
• Dispute Resolution: Are there differences in the manner in which issues of age-based discrimination are dealt with at the Tribunal compared with grievance arbitration? What is the appropriate venue for resolving disputes about post-retirement benefits? Can unions negotiate and grieve retirement benefit matters on behalf of retired bargaining unit members?

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?

Prominent counsel will review recent legislative changes and important decisions delivered in the past year by Canadian courts, tribunals, and arbitrators. In particular, they will discuss what trends can be discerned from recent case law and legislation dealing with critical issues in human rights and privacy law. The selection of cases for this session takes place a few weeks before the conference, ensuring up-to-the-minute coverage of late-breaking decisions.

CONFERENCE ENDS
3:30 p.m.