Human rights codes across Canada prohibit discriminatory practices with respect to employment. Ontario's Human Rights Code prohibits discrimination on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed (religion), sex (e.g., sexual harassment), sexual orientation, gender identity, gender expression, age, record of offences (e.g., a conviction for which a pardon has been granted), marital status, family status or disability. This prohibition applies to all aspects of the employment relationship, including hiring, discipline, promotion, work assignments and firing. Discrimination on the basis of pregnancy is defined as discrimination on the basis of sex. Employees also have a right to freedom from harassment due to any of the foregoing prohibited grounds in the workplace by the employer, an agent of the employer or by another employee.
Provincial commissions and tribunals may investigate and award damages for loss of income and other damages arising out of a discriminatory practice. They also have the discretion to order non-pecuniary remedies such as training, apologies or changes to workplace practices and policies.
At one time, mandatory-retirement policies were very common across Canada. However, mandatory retirement is increasingly treated as a form of age-related discrimination, unless the employer can establish a bona fide occupational reason why an employee must retire at a certain age as opposed to undergoing individualized fitness or aptitude tests. There is no legislated mandatory-retirement age. In large part, however, pensions are structured around a presumed retirement date of age 65 and it may be financially disadvantageous for an employee not to start retirement at age 65.
Effective January 1, 2012, all private sector employers in Ontario who provide goods or services to members of the public or other organizations, and that have at least one employee in Ontario, must comply with the Accessibility for Ontarians with Disabilities Act, 2005 (the "AODA") and specifically, the Accessibility Standards for Customer Service and the Integrated Accessibility Standards. The Customer Service Standard requires that employers establish policies and procedures which ensure that goods or services are provided in a manner that respects the dignity and independence of persons with disabilities and affords them equal opportunity to use or benefit from the goods or services. It also requires employers to train their employees with respect to these requirements. Organizations with 20 or more employees are required to file an AODA compliance report. The Integrated Accessibility Standards covers information and communications, employment, transportation and the design of public spaces. As of January 1, 2014, there are additional obligations that private sector organisations with 50 or more employees must meet under this Standard. The requirements under the AODA are being gradually phased in with full compliance targeted for 2025, at which time the expectation is that the province of Ontario will be fully accessible to disabled persons.
It should be noted that the Ontario Human Rights Code and the AODA both deal with accessibility, but are two very different pieces of legislation. The Ontario Human Rights Code is an individual, complaints-based legislation that addresses discrimination. The AODA and its regulations apply to all organizations in Ontario and are intended to increase accessibility for all Ontarians with disabilities.
Random Drug and Alcohol Testing
In the United States, it is common practice to require pre-employment drug/alcohol testing or random post-employment drug/alcohol testing. In Canada, pre- and post-employment drug/alcohol testing are considered to be violations of an employee's human rights and therefore not permitted. There are some exceptions to this general rule if the employer is able to demonstrate that the testing can be justified as a necessary and reasonable component to the employer's other policies aimed at protecting the safety of employees and third parties.
Occupational Health and Safety
Ontario's Occupational Health and Safety Act, and like legislation in the other provinces, provides comprehensive rules that impose duties on employers and employees in worker health and safety matters. Many provinces have included the prevention of and response to workplace violence and harassment as an employer obligation in their occupational health and safety regimes, and as of September 8, 2016, Ontario employers will be required to ensure that their workplace harassment policy includes workplace sexual harassment. There are stringent rules requiring the posting of safety legislation, the existence and updating of written policies, the establishment of workplace safety committees, safety training, the use of personal protective equipment, and the handling of hazardous materials. It should be noted that a failure to maintain a safe workplace can lead to both civil and criminal consequences.
Under the Criminal Code, directors and executives may face criminal prosecution for negligence that leads to serious injury or death. Under the various occupational health and safety laws across the country, there are significant fines and penalties if an employer fails to comply with applicable legislation. Fines can be as high as $500,000 where death or serious injury occurs, and fines in the range of $100,000 to $150,000 are quite common.
It should be noted that occupational health and safety requirements apply to workers, not just employees. Independent contractors, agency and temporary employees and interns will all be protected by the legislation and should be included in all safety and training initiatives.
Canadian law recognizes the right of employees to unionize. Each jurisdiction has enacted comprehensive legislation with respect to the right of workers to unionize that outlines the obligations of employers in a unionized workplace. The legislation also establishes how a union may be certified and decertified.
Once a union is certified, the employer must bargain with the union in good faith to reach a collective-bargaining agreement that governs the workplace. Once certified, an employer remains so, even if it sells its business. In most circumstances, the purchaser will be required to recognize the union and honour any collective agreement in effect as a successor employer. The legislation also provides for grievance arbitration of workplace disputes.
The legislation also forbids a broad range of unfair labour practices (ULPs) such as the use of threats, intimidation or coercion in the course of a union drive, which could result in automatic certification. Complaints about ULPs can be brought against both the union and the employer. Canadian labour boards have broad remedial powers. Successor-rights provisions are designed to ensure that bargaining rights survive the sale or divestiture of a business.
A sophisticated body of case law interpreting both federal and provincial labour laws has been developed by the Canada Industrial Relations Board, the provincial labour relations boards and various arbitration panels appointed pursuant to the laws. Although the courts have the power to review the decisions of the labour boards, considerable deference is given to their specialized expertise.
The Personal Information Protection and Electronic Documents Act (PIPEDA) sets out ground rules for how private sector organizations may collect, use or disclose personal information in the course of commercial activities. PIPEDA also applies to federal works, undertakings and businesses in respect of employee personal information. The law gives individuals the right to access and request correction of the personal information these organizations may have collected about them.
In general, PIPEDA applies to organizations' commercial activities in all provinces, except British Columbia, Alberta, Manitoba and Québec, which have adopted their own privacy legislation that specifically regulates employers' collection, use and disclosure of their employees' personal information. Privacy issues typically manifest themselves when the employer tries to secretly monitor or record an employee's activities, whether in or out of the workplace, but can also be a concern when a company is performing due diligence in connection with a proposed transaction. Improper collection, use and disclosure of an employee's personal information can also lead to legal action based on the tort of invasion of privacy or intrusion upon seclusion.
(Note: this is the fourth installment of a five part series on Employment Law. View the full article)
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This article is intended to be an overview and is for informational purposes only.