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Atlantic Canada Human Rights & Labour Law Conference

May 15 - 16, 2019
The Delta Halifax


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Wednesday, May 15, 2019


Registration and Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 1


New and Noteworthy: An update on the year's most significant cases

9:10 AM - 10:30 AM

* Panelists to be announced

Panel Summary

Top advocates will review the most important decisions from courts, arbitrators, and human rights tribunals, as well as key legislative developments. The panel will also flag significant litigation and legislative reform on the horizon. Final selection of topics will take place a few weeks before the conference, ensuring up-to-date coverage of the most significant developments in human rights and labour law.

BREAK (with refreshments)

10:30 AM - 10:45 AM

Wednesday, May 15, 2019


Registration and Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 2


How to Tell Who's Telling the Truth: How do adjudicators and investigators assess credibility?

10:45 AM - 12:00 PM

* Panelists to be announced

Panel Summary

Assessing credibility is a fundamental task of any adjudicator or investigator, often determining the outcome of a case or investigation. However, this task cannot be reduced to an exact science and the many subjective factors that go into weighing credibility – including demeanour, consistency in testimony, and appearance of bias – mean that triers of fact can reach different conclusions about witness credibility. At the same time, there are strategies for bringing rigour to the process of credibility assessment, with a view to minimizing reliance on stereotypes. In this session, prominent adjudicators, investigators and a seasoned psychologist will provide guidance on assessing credibility, discussing problematic areas in eyewitness evidence, as well as various techniques and tools available to avoid pitfalls in witness credibility assessment.

  • Factors impacting the assessment: What are the factors that adjudicators and investigators will examine when assessing credibility? Are some factors, such as demeanour, considered to be less reliable indicators of credibility?
  • Assessing conflicting evidence: How do adjudicators and investigators assess conflicting evidence where witnesses sincerely believe that they are telling the truth? Does credibility simply boil down to a question of whether the witness's evidence, when considered in light of the facts, is "in harmony with the preponderance of probabilities?"
  • Problematic areas of witness evidence: What are some common mistakes made by witnesses that undermine their credibility?
  • Techniques to avoid pitfalls: What are some steps that advocates can take to prepare their witnesses so that they will be more comfortable or confident while testifying? Is there any way to "rehabilitate" a witness's credibility?

NETWORKING LUNCH

12:00 PM - 1:00 PM

Wednesday, May 15, 2019


Registration and Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Keynote Address


Responding to Crisis Situations

1:00 PM - 1:30 PM

Mike Condra
Adjunct Assistant Professor, Department of Psychology
Queen's University

Topics

Crisis situations (such as highly-disturbed behaviour, apparent suicide risk, or risk of violence) can be a source of significant disruption and stress in the workplace. As well, these situations can leave lingering distress, safety concerns, and fear among staff who have been involved, even peripherally. In this keynote address, a leading mental health expert will provide an overview of how employers and unions can respond to crisis situations in a way that ensures the safety and mental health of all employees.

Wednesday, May 15, 2019


Registration and Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 3


This Job Makes Me Sick: What to do when the workplace contributes to disability

1:35 PM - 2:45 PM

* Panelists to be announced

Panel Summary

In this session, experts will examine some of the difficult questions that arise when workers claim that workplace stress, bullying, or interpersonal conflicts are making them ill. Such claims raise fundamental questions for both unions and employers about the organization of work and the legitimacy of management actions. Specific questions to be addressed include:

  • What are "stress" and "burnout?" Are they illnesses? Disabilities? What role does stress play in other mental and physical disabilities?
  • What is the appropriate response to an employee who goes on "stress leave" immediately after management has raised concerns about the employee's behaviour or performance at work? In such circumstances, can the employer assume the employee is abusing sick leave to avoid discipline or other types of management?
  • How do you draw the line between bullying and legitimate management actions such as performance management? Is the assessment based on an objective standard, or does an adjudicator examine the complainant's subjective impressions? Do employers have a duty to be more sensitive in dealing with individuals with mental disorders that make them especially sensitive to criticism, or is taking direction and criticism a bona fide occupational requirement?
  • Would changing an employee's supervisor or asking the employee's supervisor to adopt a different management style constitute undue hardship in situations where interaction with the supervisor is contributing to an employee's disability?
  • What is the appropriate response when an employee claims that his or her workload is causing or aggravating a mental illness or disability? Are employers required to change performance standards or reduce workloads for stressed employees?
  • How should employers and union respond when an interpersonal conflict appears to be adversely affecting the mental health of one or more employees? Does it matter whether the behaviour at issue constitutes harassment or bullying? How can unions fulfil their duty to fairly represent all members when members are in conflict?
  • What is the role of the workers' compensation system in situations where employees claim that working conditions (such as workloads or bullying) are causing or aggravating a mental disability?

BREAK (with refreshments)

2:45 PM - 3:00 PM

Wednesday, May 15, 2019


Registration and Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 4


Harassment Investigations: The top do's and don'ts

3:00 PM - 4:15 PM

* Panelists to be announced

Panel Summary

As the number of complaints continues to rise, employers and unions must ensure that they understand and are prepared to fulfil their responsibilities in responding to allegations of workplace harassment. In this session, leading counsel will share dos and don'ts for conducting fair and effective harassment investigations.

  • Do act promptly in planning and initiating an investigation: What steps must an employer take once it becomes aware of an allegation of workplace harassment to comply with its legal obligations under provincial or federal legislation? What are the essential qualities or qualifications of a competent investigator? When should an external investigator be retained? What types of issues may need to be addressed before an investigation begins?
  • Don’t overlook the requirements of procedural fairness: What does procedural fairness require in the context of a harassment investigation? Are employees accused of harassment entitled to know the allegations against them?
  • Don’t neglect interim measures during the investigation: What interim measures may be considered by the employer or requested by the union while the investigation is ongoing? When should the respondent be removed from the workplace pending the outcome of the investigation?
  • Do consider proportionality in responding to an investigation: Can an employer rely solely on an investigation report as the basis for discipline? Is discipline always the best response to workplace harassment? What measures should an employer take when an allegation is not substantiated?
  • Don’t ignore confidentiality considerations: How much information about an incident or complaint of harassment can be kept confidential? What are the employer’s obligations to disclose or withhold the investigation report, witness statements, or other documents that form part of the investigation?
  • Do respect the role of the union: What is the role of the union in an investigation? When should the union conduct a parallel investigation? How can a union meet its duty of fair representation if both the complainant and respondent are union members? Do employees being interviewed during an investigation have the right to union representation?

END OF DAY ONE

4:15 PM

NETWORKING RECEPTION

4:15 PM - 5:15 PM

Thursday, May 16, 2019


Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 5


How High Can You Go? Policies and practices to prevent drug-related impairment at work

9:10 AM - 10:30 AM

* Panelists to be announced

Panel Summary

While recreational cannabis has recently received the bulk of attention, there are many substances that can cause impairment in the workplace. No matter the cause, the challenges for employers and unions remain the same, namely, to maintain a safe workplace while respecting employee rights. In this session, a medical expert will join seasoned labour lawyers to discuss the symptoms of impairment, the challenges in assessing impairment, appropriate workplace policies, and other critical issues, including:

  • Recognizing impairment: What are the most common substances that are used by Canadian workers, and how do they affect the body? Are there common signs or symptoms that could indicate impairment? Does the use of medical cannabis and other prescription drugs, such as opioids, necessarily result in impairment? Are there any tests that can measure current impairment?
  • Workplace policies: Should employers consider adopting a general fitness for duty policy that addresses impairment from a variety of sources, or is better to have a workplace policy that prohibits substance use? In what circumstances, if any, are zero-tolerance policies permissible? Are adjudicators likely to uphold policies that require complete abstinence from cannabis use during off-duty hours, or for prolonged periods before an employee has to report to work?
  • Duty to disclose: In what circumstances, if any, are employees required to disclose their use of medical cannabis or prescription drugs? What about recreational drug use? What is the appropriate response when an employee indicates, following a workplace incident, that he or she suffers from a substance use disorder? Will adjudicators uphold a termination or lengthy suspension when the employee discloses after the fact that he or she is using cannabis to treat a medical condition?
  • Providing suitable accommodations: How do you differentiate between recreational drug use and a substance use disorder? What are some examples of accommodations that can be implemented for workers who suffer from a substance use disorder? Does this differ from accommodations for medical cannabis or prescription drugs? Will a medical cannabis authorization or a prescription for other drugs entitle an employee to be impaired at work? Can a last chance agreement serve as an effective tool for preventing workplace drug impairment? What role should the union play in the accommodation process?
  • Managing safety risks: How should employers and unions respond when they suspect that an employee is exhibiting signs of impairment or reports that he or she is impaired? What are some best practices for managing safety risks when substance abuse is suspected? How can employers and unions work together to protect the safety of everyone in the workplace?

BREAK (with refreshments)

10:30 AM - 10:45 AM

Thursday, May 16, 2019


Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 6


Danger at Work: Responding to violence and harassment by patients, students, and others

10:45 AM - 12:00 PM

* Panelists to be announced

Panel Summary

Beyond creating an immediate threat to health and safety, third-party violence and harassment also negatively affect the workplace by lowering morale, job satisfaction, and productivity. While the occurrence of third-party violence and harassment is more widely acknowledged in the health care and education sectors, many workers are at some risk of encountering violent or abusive third parties in the workplace. In this session, experts will discuss the roles of employers, unions, and employees in reducing and responding to third-party violence and harassment.

  • Proactive measures: What measures can employers and unions take to reduce the likelihood of violence, harassment, or threats from customers, clients, patients, and other third parties? How should workplace policies and programs address third-party violence and harassment? Should collective agreements include provisions that deal with third-party violence and harassment?
  • Reporting and responding to incidents: In what circumstances are employers required to advise employees about a potentially violent third party? What is the scope of an employee's duty to report concerns about a third party? How should employers respond to worker statements or reports of third-party violence or harassment? How should union representatives respond?
  • Potential liability and legal recourse: Under what circumstances might an employer face quasi-criminal charges under occupational health and safety legislation for failure to prevent a customer or patient attack on an employee? What about criminal charges? In what circumstances could an employer be held liable for third-party verbal abuse or harassment of an employee? Does workers' compensation coverage for injuries arising out of and in the course of employment protect employers from civil liability? What legal recourse is available to employers to protect workers from an abusive or violent third party? In what circumstances should a union grieve an employer's failure to protect employees from third-party violence or harassment? When should a union pursue remedies through the Ministry of Labour or the Labour Relations Board? What remedies can unions seek in these forums?
  • Work refusals: In what circumstances can workers refuse to work on the basis that they believe a third party will physically injure them? Can employees refuse to work on the basis of a threat? Are there any circumstances in which workers who are excluded from the general right to refuse unsafe work under occupational health and safety legislation (e.g. police officers, firefighters, correctional officers, and health care workers) can refuse unsafe work on the basis that they believe that a third party poses a danger?

NETWORKING LUNCH

12:00 PM - 1:00 PM

Thursday, May 16, 2019


Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 7


Lightning Law: Arbitrators give quick rulings on true-to-life cases

1:00 PM - 2:15 PM

* Panelists to be announced

Panel Summary

In labour arbitration, parties who understand the reasoning behind arbitral decision-making have a critical advantage. In this session, attendees will gain insight into how arbitrators approach cases involving two complex issues: (1) mental health issues affecting grievors that impact the grievance process; and (2) employee privacy and employer monitoring.

BREAK (with refreshments)

2:15 PM - 2:30 PM

Thursday, May 16, 2019


Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 8


You Can't Always Get What You Want: Getting medical information you need in disability accommodation

2:30 PM - 3:45 PM

* Panelists to be announced

Panel Summary

In the context of disability accommodation, obtaining medical information necessitates striking a balance between an employee's right to privacy and an employer's or union representative's entitlement to supporting documentation. In this session, legal and medical experts will discuss effective approaches to reconciling these interests and best practices for handling medical information in support of disability accommodation.

  • Recent cases: What guidance do recent cases provide on the appropriate scope of requests for employee medical information?
  • Making inquiries: What constitutes appropriate questioning regarding an employee's health? When will requests for medical information amount to harassment or discrimination? Are there any special considerations when a psychiatric or psychological disability is involved?
  • Determining what information is necessary: In general terms, what type of information can an employer or union representative legally request in the context of a workplace accommodation? When can they ask for it? What if the only accommodation sought is a period of absence from work?
  • Requesting medical information: What is the most effective way for unions and employers to request information from physicians? If an employee has submitted a medical certificate from his or her own physician supporting an accommodation or absence request, when will the employer be justified in seeking further information and/or a specialist report? What is the process that should be followed in such cases?
  • Independent medical examinations: When can an employer require an independent medical examination (IME)? Is the employer entitled to choose the physician conducting the examination? What is the union's role in the IME process? What type of information can an employer legally require from an IME? Does the permissible scope of information depend on the reason for which the IME is sought (e.g. fitness to return to work, eligibility for benefits, etc.)?
  • Confidentiality: What steps must/should employers/unions take to protect the confidentiality of medical information in their possession?

CONFERENCE ENDS

3:45 PM

Keynote Speakers


Tuesday, May 14, 2019



Mental Health at Work: Meeting legal obligations, providing effective support

9:00 AM - 4:00 PM

* Workshop leaders to be announced

Workshop Summary

Working-age Canadians are likely to spend most of their waking lives in the workplace, which means that managers, union representatives, and co-workers are likely to be among the first people to observe changes in behaviour that may indicate whether someone is developing a mental health problem. Unfortunately, many people are uncomfortable approaching a co-worker or employee who appears mentally unwell, which may result not only in further deterioration for the employee in question, but also in legal liability for employers and costly, time-consuming litigation.

This one-day skills training session will equip managers, supervisors, and union representatives with the knowledge and skills necessary to promote mental well-being in the workplace, support employees who are mentally unwell, and fulfil their legal obligation to accommodate employees experiencing poor mental health.

You should attend this session if you want to:

  • Understand the medical/psychological concepts of mental health, mental illness, and substance dependence, as well as the legal concept of mental disability.
  • Better understand stigma and know how to combat it.
  • Approach employees about their mental health in a helpful, non-threatening way.
  • Support and accommodate employees with mental health disabilities.
  • Develop effective, legally-compliant accommodation and return-to-work plans.

VIEW THE WORKSHOP AGENDA



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