Equity – Related Courses Offered by OPSEU
Mental Health: Challenging the Stigma in the Workplace
Speak Up and Organize: Challenging Bullying and
Psychological Harassment in the Workplace
Duty to Accommodate: A Tool for Inclusive Workplaces
Making Accommodation Work: Duty to Accommodate 2
Women and Unions: Strengthening Leadership
Women in Unions: Getting Involved
Human Rights, Union Rights and Global Solidarity
Please visit
http://www.opseu.org/membereducation/description.htm to find
out about the courses offered in your region.
Legislation
Ontario Human Rights Code
Human Rights Tribunal
of Ontario
Ontario Human
Rights Legal Support Centre
Ontario Human
Rights Commission
Bill 168 – Amendment to the Ontario Occupational Health and Safety
Act
Employment Standards Act, 2000
Workplace Safety and Insurance Act, 1997
Ontarians with Disabilities Act, 2001
Freedom of Information and Protection of Privacy Act
General Information and Case Law
• Aboriginal Rights
• Psychological and Personal Harassment
• Racial Equality
•
Religious Rights
•
Women’s Equality
•
Same-sex and LGBTTQ Rights
•
The Concept and Meaning of Discrimination
• The Duty to Accommodate
•
Family and Marital Status
Aboriginal Rights
• R. v. Marshall; R. v.
Bernard [2005] This is a leading Aboriginal rights decision from the
Supreme Court of Canada determining the extent of constitutional
protection for aboriginal practices. It narrowed the test from two
earlier decisions and ruled that although treaty rights are not
frozen in time, a claim to a modern treaty trading right must
represent a logical evolution from a traditional trading activity at
the time the treaty was made.
http://scc.lexum.umontreal.ca/en/2005/
2005scc43/2005scc43.html
• Delgamuukw [1996] This
landmark decision confirms the ongoing existence and nature of
Aboriginal title. It also established new rules of evidence with
respect to establishing title, as well as the significance of oral
history and tradition.
http://scc.lexum.umontreal.ca/en/1997/
1997rcs3-1010/1997rcs3-1010.html
• Sparrow [1990] This
was the first Supreme Court consideration of the meaning of section
35 of the Constitution Act, 1982 that recognized and affirmed "the
existing Aboriginal and treaty rights of the Aboriginal peoples of
Canada". The case imposed a requirement upon the Crown to justify
any regulation that limits the exercise of Aboriginal rights.
http://scc.lexum.umontreal.ca/en/1990/
1990rcs1-1075/1990rcs1-1075.html
• Guerin [1984] This
case legally recognized the "trust-like" duty upon the federal
government in its handling of matters for Aboriginal people. Now,
the Crown-Indian/Aboriginal relationship is often characterized as
an ongoing "fiduciary" responsibility.
http://www.canlii.org/ca/cas/scc/1984/
1984scc10009.html
• Lovelace v.
Canada [1981] This international precedent-setting case involves a
successful appeal to the Human Rights Committee of the United
Nations. The United Nations found that Canada’s Indian Act provision
which denied women married to non-Indian spouses equal access to,
and enjoyment of, reserved lands (and not vice-versa) was
discriminatory on the basis of sex.
http://www.hrni.org/files/
caselaw/HRNi_EN_604.html
Top
Psychological and
Personal Harassment
General Info
• Workplace Harassment
may be Grievable -
http://www.caut.ca/en/publications/
legaladvisory/200602_harassment.pdf
• From Words to Weapons:
Legalities
http://www.workplaceviolence.ca/thm
-bullying/legal.html
• Bullying in the
Workplace
http://www.safety
-council.org/info/OSH/bullies.html
• OPSEU Brochure on
Bullying and Psychological Harassment
•
Sample policy on Bullying and Psychological Harassment
•
CAAT Support
EERC Research Paper on Bullying and Mobbing in the Workplace
Case Law
• Jubran [2005] In this
case, a British Columbia School Board of Trustees was held
responsible for the discrimination a young student subjected to
years of bullying, insults and taunting. The Board failed to provide
an educational environment that was free from discriminatory
harassment and did not respond effectively to the discriminatory
conduct. The school staff also pursued a disciplinary approach that
was not effective and lacked resources to deal with the issues of
harassment and discrimination.
http://www.edst.educ.ubc.ca/courses/
EADM560/School%20Dist%
2044%20v.20Jubran.htm
• TTC Case [2004] In
this case, veteran arbitrator Owen Shime found that that the
collective agreement contained an “implied term” in the management
rights clause requiring supervisors to ensure employees’ physical
and psychological safety. Click
here to download pdf.
• Parry Sound [2003]
This leading case from the Supreme Court affirmed the principle that
the substantive rights and obligations from employment-related
statutes are implicit in every collective agreement. This leads to
the conclusion that the violation of employment-related legislation,
such as an employer’s statutory obligation to ensure a safe
workplace, constitutes a violation of the collective agreement and
is arbitrable.
http://scc.lexum.umontreal.ca/en/
2003/2003scc42/2003scc42.pdf
• OC Transpo [2000] On
April 6, 1999, a former employee of OC Transpo in Ottawa went on a
shooting rampage that left four employees dead, then took his own
life. The killer had himself been the victim of workplace
harassment. A coroner's inquest into the killing of four workers at
OC Transpo ended with 77 recommendations to prevent harassment and
violence at work. The jury's number one recommendation calls for the
federal government and the province to make it mandatory for
employers to develop and implement policies dealing with workplace
violence. More than a third of the proposals are aimed at changing
management style at the bus company.
http://www.psac-ncr.com/cttees/hs
/jury-oc-tranmspo-e.pdf
Top
Racial Equality
General Info
• Racial Harassment:
Your Rights and Responsibilities
http://ohrc.on.ca/english/guides/racial-harassment.shtml
Case Law
• McKinnon v. Ontario
(Min. Of Correctional Services) (No.3) [1998] This is a precedent
setting case in terms of systemic racial discrimination and the
meaning of a “poisoned work environment”. In the initial decision in
1998, the Board found that there were several factors contributing
to a poisoned work environment and that management at every level
failed to seriously investigate allegations of racial discrimination
or to take measures to avoid their repetition.
http://www.opseu.org/legal/
legalupdate27.htm
• National Capital
Alliance on Race Relations (NCARR) v. Health and Welfare Canada
[1997] This was the first successful human rights case of systemic
racial discrimination in Canada, and one which also included an
effective employment equity remedy. The resulting decision, focusing
on barriers to promotion of visible minorities to top management
positions, the so-called glass ceiling phenomenon and was
particularly important because it underscored how hidden and obscure
systemic racial discrimination may be.
http://www.chrt-tcdp.gc.ca/search/files/
t423_0495de_03_19.pdf
• Naraine v. Ford Motor
Co. [1996] This was a case in which Ford was found to have
discriminated against Naraine. It had neither acknowledged nor
remedied an atmosphere of racial harassment/derogation and, when
dismissing Naraine because of temper/outbursts, it did not take into
account that these outbursts were the result of the adverse effect
of a poisoned workplace atmosphere. The harassment, which took the
form of graffiti, racial slurs and other incidents, was seen to have
constituted conditions of employment and were thus a violation of
the Ontario Human Rights Code.
http://www.uottawa.ca/hrrec//hrlc
/hrlc2002/narraine.html
Top
Religious Rights
General Info
• Religion and Human
Rights
http://www.ohrc.on.ca/english/guides/
religious-rights.shtml
Case Law
• Chambly v. Bergevin, [1994] This case involved the differential compensation for Jewish
teachers at public school who take unpaid leaves of absence for holy
days as compared to Christian teachers who get paid "holidays"
according to a work calendar based historically on the Christian
faith. The Court held that the school board's leave policy had an
adverse effect on Jewish teachers despite the secularized nature of
Good Friday and Christmas. The Court concluded religious leave
should have been made available as a “special-purpose paid-leave”
under the collective agreement, as it did not cause undue hardship.
http://scc.lexum.umontreal.ca/
en/1994/
1994rcs2-525/1994rcs2-525.html
• Bhinder v. Canadian
National Railway Co [1985] In this case, a Sikh employee’s religious
obligation to wear turban was in conflict with employer's
requirement of wearing hard hats. The Supreme Court held that the
hard hat requirement was a reasonable and bona fide requirement
aimed at protecting the health of the worker.
http://scc.lexum.umontreal.ca/en/1985/
1985rcs2-561/1985rcs2-561.html
• See also
Simpson, Renaud and
Central Alberta Dairy Pool
below
Top
Women’s Equality
General Info
• Sexual Harassment:
Your Rights And Responsibilities
http://www.ohrc.on.ca/english/guides/
sexual-harassment.shtml
• Ontario Women’s
Justice Network: Legal Info
http://www.owjn.org/info.htm#q&a
Case Law
• R. v. Darrach [2000]
This s a leading Supreme Court case that upheld the validity of the
criminal code's “Rape Shield Law” that limits intrusions into
records and evidence related to a complainant’s sexual history. The
Court held that in general, personal records of complainants in
sexual assault trials should be private and the accused must meet a
high standard of proof in order to gain access to them.
http://scc.lexum.umontreal.ca/en/2000/
2000scc46/2000scc46.html
• R. v. Ewanchuk [1999]
This is a leading Supreme Court of Canada case concerning “consent”
in the context of sexual assault. In defining consent, the Court
held that there was no defence of “implied consent”; that consent is
to be determined from the perspective of the mind of the
complainant; that there are many actions and words that can convey a
lack of consent not merely “no” and that the responsibility rests
with the person seeking the sexual contact to actively and
positively determine that there is consent.
http://scc.lexum.umontreal.ca/en/
1999/1999rcs1-330/1999rcs1-330.html
• R. v. Lavallée [1990]
This Supreme Court ushered in the legal recognition of “Battered
Woman Syndrome”. That is, that evidence of years of abuse and its
psychological impact is relevant to the question of what constitutes
self-defence.
http://scc.lexum.umontreal.ca/en/
1990/1990rcs1-852/1990rcs1-852.html
• Janzen v. Platy
Enterprises Ltd [1989] Sexual harassment, which is included in the
legal concept of sex-based discrimination, was defined in this case.
The general definition was framed as “unwelcome conduct of a sexual
nature that detrimentally affects the work environment or leads to
adverse job-related consequences for the victims of harassment.”
http://scc.lexum.umontreal.ca/en/1
989/1989rcs1-1252/1989rcs1-1252.html
• Brooks v. Canada
Safeway Ltd [1989] In this Supreme Court Case, there was finally a
recognition by the Court that discrimination based on pregnancy is
discrimination based on sex.
http://scc.lexum.umontreal.ca/en/
1989/1989rcs1-1219/1989rcs1-1219.html
• Action Travail Des
Femmes v. Canadian National [1984] This case led to the imposition
for the first time in Canada of an affirmative action program. It
was the result of a complaint of systemic discrimination based on
gender. The Supreme Court of Canada upheld an order of a Tribunal to
hire one woman for every four new hires into unskilled and
blue-collar jobs.
http://www.hrcr.org/safrica/
equality/railway_canada.html
Top
Same-Sex and LGBTTQ
Rights
General Information
• Sexual Orientation:
Your Rights & Responsibilities
http://www.ohrc.on.ca/english/guides/
sexual-orientation.shtml
Case Law
• Kimberly Nixon v.
Vancouver Rape Relief [2005] This B.C. Court of Appeal decision is
the highest level of court in Canada ever to rule on a case of
discrimination against a transsexual. Here, the B.C. Court of Appeal
held that the exclusion of a transsexual woman as a volunteer was
permitted under the B.C. Human Rights Code “special groups
exemption”. The Court held that the exemption permitted a women’s
service organization to discriminate against a sub-group of women,
namely transsexual women, where the discrimination is meant to serve
a specific group and is based on good faith.
http://www.lancasterhouse.com/d
ecisions/2005/dec/BCCA-Nixon.HTM
• M v. H. [1999] This
was a challenge against the definition of "spouse" that had the
effect of extending the right to support to members of opposite-sex
couples but not to same-sex couples. The challenge was successful in
overturning the heterosexual definition of spouse.
http://scc.lexum.umontreal.ca/en/
1999/1999rcs2-3/1999rcs2-3.html
• Egan [1995] This case
was the first time where a majority of the Supreme Court recognized
that sexual orientation is a prohibited ground of discrimination
under Section 15 of the Charter of Rights .
http://scc.lexum.umontreal.ca/en/
1995/1995rcs2-513/1995rcs2-513.html
• A.G. v. Mossop [1989]
This was the first decision of the Supreme Court of Canada to
consider equality rights that involved the intersection between
family status and sexual orientation. The case is also significant
because it contains a famous dissenting judgment arguing for the
need for an evolving model of the “family".
http://scc.lexum.umontreal.
ca/en/1993/1993rcs1-554/
1993rcs1-554.html
• Also see
Vriend below
Top
The concept and meaning
of Discrimination
Case Law
• Law v. Canada [1999]
Aside from summarizing ten years of equality case law, this case
emphasizes the role of human dignity in any equality rights
analysis. The "Law" framework has been consistently followed by the
courts since this decision.
http://scc.lexum.umontreal.ca/
en/1999/1999rcs1-497/
1999rcs1-497.html
• Corbiere [1999] This
case is important for its analysis of when a basis for differential
treatment constitutes an "analogous" prohibited ground of
discrimination. It is also important for its discussion of
discrimination in the Aboriginal context.
http://scc.lexum.umontreal.ca/
en/1999/1999rcs2-203/
1999rcs2-203.html
•
Vriend [1998] The case
is important because it includes a discussion of how legislation
which is "underinclusive" may violate equality rights by imposing a
discriminatory burden on the members of society which it excludes.
The Supreme Court of Canada held that the exclusion of sexual
orientation from was discriminatory.
http://scc.lexum.umontreal.ca/
en/1998/1998rcs1-493/
1998rcs1-493.html
• Eldridge [1997] This
case is important for its explanation of the principle that equality
for all does not necessarily mean identical treatment for all. It
also highlighted the obligation, under the Charter and human rights
legislation, of governments, employers and service providers to
consider the need to eliminate intentional and unintentional
barriers to the full participation of persons with disabilities in
Canadian society.
http://scc.lexum.umontreal.ca/
en/1997/1997rcs3-624/
1997rcs3-624.html
• Miron v. Trudel [1995]
This case was the first in which the Court recognized marital status
as a prohibited ground of discrimination under Section 15 of the
Charter of Rights.
http://scc.lexum.umontreal.ca/
en/1995/1995rcs2-418/
1995rcs2-418.html
• Andrews v. Law Society
of British Columbia [1989] This case sets out the authoritative
definition of “discrimination” in the law. The Court's approach in
Andrews contributed to ensuring that equality rights are interpreted
broadly and not formalistically, to give effect to the remedial
anti-discrimination purpose for which equality rights were enacted.
http://scc.lexum.umontreal.ca/
en/1989/1989rcs1-143/
1989rcs1-143.html
•
Simpson v. O’Malley
[1985] Here, the Court first acknowledged the existence of indirect
discrimination. However, this distinction between indirect and
direct discrimination was later abandoned in favour of the Meiorin
approach.
http://scc.lexum.umontreal.ca/
en/1985/1985rcs2-536/
1985rcs2-536.html
Top
Duty to Accommodate
General Info
• Duty to Accommodate –
Frequently Asked Questions
http://www.chrc-ccdp.ca/preventing_
discrimination/toc_tdm-en.asp
• Human Rights and the
Family in Ontario
http://www.ohrc.on.ca/english/
consultations/family-status-discussion
-paper.pdf
• Disability and Duty to
Accommodate
http://www.ohrc.on.ca/english/
publications/disability-policy.pdf
• Mental Disabilities
and the Duty to Accommodate, Tips from the Case Law
http://www.caut.ca/en/publications/
equity/1_workplace_accomodation.pdf
• Medical Information in
the Accommodation Process
http://www.filion.on.ca/pdf/
AERPaper.pdf
Top
Case Law
Duty to Accommodate
•
Renaud [1992] This
case sets out the important principle that the duty to accommodate
is shared by all parties: the employer, the employee and the union.
http://scc.lexum.umontreal.ca/
en/1992/1992rcs2-970/
1992rcs2-970.html
•
Central Alberta Dairy
Pool [1990] This important duty to accommodate case sets out a list
of factors the decision-maker (an arbitrator or judge) may consider
when determining whether or not the employer met the “undue
hardship” test.
http://scc.lexum.umontreal.ca/
en/1990/1990rcs2-489/
1990rcs2-489.html
• Meiorin [1999] Before
Meiorin, human rights violations were treated in one of two ways;
either as direct discrimination or as adverse effects
discrimination. This was a widely criticized approach because it had
the effect of legitimizing systemic discrimination. With the Meiorin
case, this bifurcated approach was abandoned and a new 3-part
individualized “duty to accommodate” analysis was fashioned.
http://scc.lexum.umontreal.ca/
en/1999/1999rcs3-3/1999rcs3-3.html
Family and Marital Status
• Health Sciences Assn.
v. Campbell River [2004] This is one of the leading cases that both
defines and sets limits on the meaning of discrimination based on
“family status”. The court stated that a prima facie case of
discrimination is made out when a change in a term or condition of
employment imposed by an employer results in a “serious
interference” with a substantial parental or other family duty or
obligation of the employee.
Click
here to download pdf.
• B. v. A. [2002] This
Supreme Court case broadened the definition and concept of “family
status” protection. The Court ruled that the discrimination will be
found where it is based on either the individual’s status of being
in a child-parent type relationship or where the individual is
discriminated against based on the particular identity of their
spouse or family member.
http://scc.lexum.umontreal.ca
/en/2002/2002scc66/2002scc66.html
