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Human Rights and Accommodation Conference

Toronto • March 31 - April 1, 2020
Sheraton Centre Toronto Hotel


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HRPA Continuing Professional Development

HRPA Continuing Professional Development

The Human Resources Professionals Association (HRPA) has approved Lancaster House as a Continuing Professional Development Partner, guaranteeing that participation in our conferences, workshops and audio conferences will be accepted by the HRPA for CPD credit.

Register today to earn your CPD credits with Lancaster!

In association with: http://www.library.utoronto.ca/cirhr/
 

Tuesday, March 31, 2020


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


Panel 1


Human Rights in Review: Major caselaw and legislative update

9:10 AM - 10:30 AM

Panelists

Mark Hart
Arbitrator/Mediator

Wassim Garzouzi
Union Counsel
Raven, Cameron,
Ballantyne & Yazbeck LLP

Erin Kuzz
Employer Counsel
Sherrard Kuzz LLP
Sara Malkin
Employer Counsel
Mathews, Dinsdale & Clark LLP
Archana Mathew
Grievance Officer
Ontario Public Service Employees Union

Panel Summary

In this session, seasoned counsel will review the most important legal developments of the past year and flag significant litigation and legislative reform on the horizon. Topics to be addressed include the latest cases on disability-related misconduct, the suitability of accommodative measures, and cost awards from human rights tribunals. Final selection of topics will take place in the weeks leading up to the conference, ensuring coverage of the latest and most important developments.

BREAK (with refreshments)

10:30 AM - 10:45 AM

Tuesday, March 31, 2020


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


Panel 2


In Search of Inclusivity: Strategies for recruiting and retaining a diverse workforce

10:45 AM - 12:00 PM

Panelists

Christine Maclin
Director of Human Rights
Unifor
Tana Turner
Principal
Turner Consulting Group
Waheeda Rahman White
Director, Equity, Diversity and Human Rights, People & Equity Division
City of Toronto

Panel Summary

Given widespread recognition of the advantages associated with diversity, most organizations have taken steps to promote diversity in the workplace. Yet conventional workplace diversity programs and policies have not always proven effective, and many people still experience discrimination and other barriers in hiring and employment. Moreover, both employers and unions often encounter difficulties in creating a truly inclusive workplace where diverse employees feel welcome, respected, and empowered. In this session, experts will provide insight into practical strategies for supporting a diverse workforce and overcoming challenges to inclusivity in the workplace.

NETWORKING LUNCH

12:00 PM - 1:00 PM

Tuesday, March 31, 2020


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


Panel 3


Difficult Accommodations: Responding to denial, defensiveness, and personality disorders

1:00 PM - 2:15 PM

Panelists

Dr. Katy Kamkar
Clinical Psychologist,
Centre for Addiction
and Mental Health
Assistant Professor,
Department of Psychiatry

University of Toronto
Michelle Henry
Employer Counsel
Borden Ladner Gervais LLP
Craig Morrison
Union Counsel
Morrison Watts

Panel Summary

Mental health disabilities can affect workers' judgment, ability to cooperate, and perceptions of others, all of which will likely interfere in the accommodation process. In this session, a mental health expert, together with experienced labour lawyers, will provide practical guidance in dealing with situations in which the employee in need of accommodation seems to be either unwilling or unable to participate in the accommodation process. Specific issues to be addressed include:

  • When faced with a "difficult employee," should employers adopt a supportive or rehabilitative approach? Must employers always inquire as to whether disruptive workplace behaviours are related to a mental disability before applying progressive discipline?
  • Can "difficult people" change if given a chance? Does the answer depend on whether the difficult behaviour is the result of a common mental health disability, a personality disorder, or simply a "bad attitude"?
  • Why might an employee react defensively to a suggestion that he or she may require accommodation due to a mental health disability? What, if anything, can be done to minimize the possibility of such a reaction? What course should be followed where the employee does not acknowledge a disability?
  • Do employers or unions dealing with workers in fragile emotional states have a duty to act with greater sensitivity than would normally be necessary?
  • Are employees with certain mental health disabilities more likely than others to behave in ways that disrupt the accommodation process? In what ways have adjudicators recognized that a mental illness may interfere with an employee's ability to fully meet his or her obligations in the accommodation process?
  • What, if anything, can employers and unions do to overcome an employee's reluctance or refusal to cooperate in the accommodation process? What steps must employers take in order to fulfill the duty to accommodate? What steps must unions take to meet their duty of fair representation?
  • What should be done if it appears that, as a result of a mental health disability, employees are unable to make rational decisions in their own interest? Is there a role in the accommodation process for the employee's family members or for some other (non-union) representative or support person?
  • When will an employee's lack of cooperation or other "difficult behaviour" during the accommodation process bring the employer's duty to accommodate to an end?

BREAK (with refreshments)

2:15 PM - 2:30 PM

Tuesday, March 31, 2020


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


Panel 4


Sexual Harassment and the Workplace: Trauma-informed approaches to investigation and litigation

2:30 PM - 3:45 PM

Panelists

Angela Bradley
Lawyer/Mediator/Workplace Investigator

Joanna Birenbaum
Lawyer
Ursel Phillips Fellows Hopkinson LLP
Cherie Robertson
Director, Human Rights and Equity Initiatives
Sheridan College

Panel Summary

The Public Health Agency of Canada has defined trauma- and violence-informed approaches as "policies and practices that recognize the connections between violence, trauma, negative health outcomes and behaviours," with a focus on minimizing the potential for re-traumatization. In the workplace context, employers and unions are increasingly adopting trauma-informed approaches as best practices in responding to complaints of workplace sexual harassment due to the significant likelihood of trauma affecting both harassed individuals and their colleagues. In this session, experts will provide an overview of workplace trauma and explore the nature and effectiveness of trauma-informed approaches in investigating and litigating complaints of workplace sexual harassment.

  • What is trauma? What are common symptoms of trauma, and how long do they last? What traumatic events may occur in the workplace?
  • How might trauma present in someone who has experienced workplace sexual harassment? In addition to the complainant, who might experience trauma in relation to a complaint or incident of workplace sexual harassment? What challenges may be experienced in traditional investigation and litigation procedures by individuals who are coping with trauma?
  • What is a trauma-informed approach? What are the key characteristics or principles of trauma-informed approaches? What are the benefits of trauma-informed approaches?
  • What is a trauma-informed approach to conducting investigations? What are examples of trauma-informed interview techniques, and how do they assist interviewees who are coping with trauma? How do trauma-informed approaches help to ensure procedural fairness in an investigation?
  • What is a trauma-informed approach to litigation? How can union and legal representatives best support individuals who are involved in grievance or litigation procedures following a complaint of workplace sexual harassment?
  • What steps can workplace parties take to respond to workplace trauma more broadly?
  • What resources are available to employers and unions that are seeking to become more familiar with trauma-informed approaches?

END OF DAY ONE

3:45 PM

NETWORKING RECEPTION

3:45 PM - 4:45 PM

Wednesday, April 1, 2020


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


Panel 5


Mending Fences: Restoring a workplace poisoned by harassment

9:10 AM - 10:30 AM

Panelists

Tina Lopes
Mediator and Organizational Consultant

TBA
Speakers TBA


Panel Summary

In the wake of the #MeToo movement, employers and unions have become familiar with the duty to investigate allegations of workplace harassment. But what happens once the investigation is complete? Harassment often has a disruptive impact on the workplace; it can damage relationships, lower productivity, and jeopardize psychological health and safety, creating a toxic environment that an investigation alone will not repair. Workplace parties have consequently become increasingly aware of the need to undertake restorative efforts following any incident of harassment. In this session, experts will discuss the role of restoration in responding to workplace harassment, with a focus on how restoration benefits the workplace; how employers, unions, and employees can prepare for restoration; the types of interventions used in restoration; and the ways in which workplace parties can support and contribute to restorative processes.

BREAK (with refreshments)

10:30 AM - 10:45 AM

Wednesday, April 1, 2020


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


Panel 6


Family First? Best practices and policies to balance caregiving and work

10:45 AM - 12:00 PM

Panelists

Deborah Hudson
Employer Counsel
Hudson Law
Randy Slepchik
Union Counsel
Jewitt McLuckie & Associates LLP

Panel Summary

In many workplaces, a majority of employees have family care obligations at any given time, but that doesn't mean that they are all entitled to accommodation. Although there has not been any recent significant change to the law, workplace parties still struggle to understand when the duty to accommodate arises, and when to put in place appropriate supports to assist employees in balancing their work and responsibilities at home. What types of provisions should workplace parties negotiate to promote accommodative work arrangements? How can they ensure that policies are applied in a fair and consistent manner while at the same time remaining sufficiently flexible to respond to an individual employee's needs?

In this session, labour relations experts will explore the practical side of family status accommodations, examining best practices and policies in order to proactively address concerns without having to resort to grievance arbitration or a human rights complaint. Issues to be discussed include:

  • Education and training: Is there any training that should be provided to managers or supervisors on how to respond to the workplace needs of employees with caregiving responsibilities? What about training for union representatives? Are there any measures that can be put in place to help organizations understand and accept unfamiliar family dynamics or cultural expectations, such as the need to care for extended family or people who are not "legally" considered family members?
  • Workplace policies: What are some measures that parties can put in place to address family status issues before they become adversarial? How does one maintain sufficient flexibility to remain responsive to a particular employee's needs while at the same time ensuring consistency and fairness across the organization?
  • Collective agreement terms: Are there any policies or collective agreement provisions that are helpful in accommodating family status? How should employers and unions address accommodation requests that conflict with provisions in the collective agreement, such as scheduling, benefits, or seniority provisions?
  • Sharing information: What information should the employee or union provide to help make its case that accommodation is required? How can an employee demonstrate that he or she made reasonable efforts to balance family and work obligations and that a workplace accommodation is the only reasonable solution? What type of evidence should the employer provide to demonstrate that it has accommodated an employee's family status obligations to the point of undue hardship? Can an employer argue that having a number of employees seeking accommodations at the same time constitutes undue hardship?

NETWORKING LUNCH

12:00 PM - 1:00 PM

Wednesday, April 1, 2020


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


Panel 7


The ABCs of IMEs: Constructing a fair and workable process

1:00 PM - 2:15 PM

Panelists

Dr. Mike Condra
Adjunct Assistant Professor,
Department of Psychology

Queen's University
Sarah Crossley
Employer Counsel
Filion Wakely Thorup Angeletti LLP
Rebecca Gewurtz
Associate Professor, School of Rehabilitation Science
McMaster University
Robert Whillans
Union Counsel
CaleyWray

Panel Summary

The use of independent medical exams (IMEs) in accommodation is highly contentious. Unions and employees may doubt the independence of a physician designated by the employer or whose income is derived mostly from performing evaluations for employers and insurance companies. Employees are reluctant to lay bare before a stranger and the employer intimate details of their lives. Employers, on the other hand, sometimes have reason to doubt the objectivity or adequacy of a treating physician's opinion. Given such misgivings, can workplace parties ever agree to IME policies and procedures that are acceptable, and useful, to employers, unions, and employees? In this session, experts will discuss this question, specifically addressing such issues as:

  • How and when are IMEs typically used in the accommodation process? What are problems with the prevailing approach to IMEs from the employer perspective? What are the problems from the perspectives of unions and employees?
  • How useful are independent medical examinations, i.e. those conducted by physicians, in comparison to other types of evaluations, such as functional ability or functional capacity assessments, which might be conducted by other professionals, such as psychologists or occupational therapists?
  • From the perspective of management or union representatives assessing a person's ability to function in the workplace, how useful are the reports generated by standard independent psychiatric evaluations? Are there standardized psychological tests/assessments that might be more helpful and reliable in the context of workplace accommodation?
  • Do medical professionals have any concerns regarding the often adversarial way IMEs are currently used? For example, is there evidence that IMEs might aggravate certain mental disorders or cause undue psychological distress to employees? Is there concern about the validity of an employee's consent to an evaluation given the power imbalance between the employee and the employer and the financial pressures employees may face?
  • When, if ever, might an agreed upon IME or functional assessment process benefit the employer, the employee, and the union? For example, might such processes be used to address a lack of access to specialists? Would it be better for such processes to be agreed upon on an ad hoc basis or codified in a collective agreement?
  • Should unions and employers make more use of mutually agreed upon experts — whether they be physicians, psychologists, or occupational therapists — to resolve disputes regarding accommodation before they proceed to arbitration? What would be the advantages and disadvantages of such an approach? If the union and the employer both agree to such an expert, in what circumstances, if any, can either party challenge that expert's opinion?
  • What would be the key features of an IME or functional assessment process that is acceptable to all parties?
  • Even if parties cannot agree on a standard process, what should be done to balance an employee's right to privacy with an employer's legitimate interest in having sufficient information to provide safe, appropriate accommodation?

BREAK (with refreshments)

2:15 PM - 2:30 PM

Wednesday, April 1, 2020


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


Panel 8


Crunched by the Numbers: Artificial intelligence, algorithmic discrimination, and other emerging issues in workplace privacy law

2:30 PM - 3:45 PM

Panelists

Jeffrey Andrew
Union Counsel
Cavalluzzo LLP
Avner Levin
Professor, Law & Business
Department and Director of the
Privacy and Cyber Crime Institute

Ryerson University
Lisa Stam
Employer Counsel
SpringLaw

Panel Summary

In this session, noted experts will explain how new technologies, including artificial intelligence (AI), are being used to manage the workplace. Pointing out the potential for infringement of privacy rights and prohibited discrimination, the panelists will provide guidance on how to take advantage of emerging technologies while respecting privacy and human rights.

  • In Ontario what laws currently govern employer collection and use of personal employee information? Are provincially regulated employers in Ontario permitted to collect and analyze information related to employees' off-duty personal internet activity (on personal devices)?
  • How does the law regarding employee privacy in Ontario compare with jurisdictions (both within Canada and internationally) that have enacted privacy legislation applicable to the private sector?
  • What is "algorithmic management?" How is it related to "people analytics"? What are the promises and perils of people analytics and algorithmic management in terms of workplace safety, productivity, privacy, and human rights?
  • What are the implications of increased use of AI for workers' privacy and human rights given that it can be used to construct detailed personality profiles of employees and potential employees based on personal, off-duty internet use?
  • How are "wearables," which promise to increase workplace health and safety, currently being used in Canadian workplaces? What policies and procedures are necessary to ensure that wearables improve workplace health and safety without violating employee privacy?
  • Is there a way to reap the proposed benefits of algorithmic management and people analytics, such as more objective human resources decisions and increased responsiveness to employee demands, while protecting privacy and mitigating the potential for systemic discrimination?
  • How important is it that Canadian jurisdictions implement regulations similar to the European Union's General Data Protection Regulation (GDPR), which requires companies to be able to explain decisions made by the algorithms they develop and use?
  • Are existing personal information protection regimes, with their emphasis on notice and consent, inadequate? If so, what should replace them? In light of the widespread collection of data and the ease with which it is shared and analyzed, must we move toward principles that restrict and limit the use and processing of information?
  • How can unions and employers negotiate collective agreement provisions that safeguard workers' privacy and human rights while respecting employers' legitimate business interests in using new technology and benefiting from algorithmic management and people analytics? Are there existing best practices in using AI and algorithms in workplace management?

CONFERENCE ENDS

3:45 PM

Keynote Speakers


Monday, March 30, 2020


Breakfast 8:00 AM - 9:00 AM  

Recognizing and Responding to Drug-Related Impairment: An in-depth workshop

9:00 AM - 4:00 PM

Workshop Leaders

Steven Maxwell
Drug Recognition Expert
and Chief Consultant

Steven Maxwell Drug
Recognition Expert Consulting

Philip Abbink
Union Counsel
Cavalluzzo LLP
Donna Walrond
Solicitor
Toronto Transit Commission

Workshop Summary

The legalization of recreational cannabis has highlighted the need for employers and unions to address workplace impairment while respecting employees’ privacy and the right of employees to be accommodated if they have substance use disorders or use medical cannabis.

This in-depth training session will teach participants to recognize the signs of impairment and problematic substance use, ensure workplace safety through legally compliant policies dealing with impairment, and accommodate employees with substance use disorders.

With the guidance of experienced Drug Recognition Expert Steven Maxwell and leading management and union lawyers, participants will learn to:

  • spot the common signs and symptoms of impairment
  • identify aspects of Standardized Field Sobriety Tests that may be applicable to the workplace
  • recognize the signs that someone in the workplace may have a substance use disorder
  • develop legally compliant policies and procedures that ensure workplace safety while respecting employees' privacy and human rights

VIEW THE WORKSHOP AGENDA



Thursday, April 2, 2020


Breakfast 8:00 AM - 9:00 AM  

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

9:00 AM - 4:00 PM

Workshop Leaders

Dr. Mike Condra
Adjunct Assistant Professor, Department of Psychology
Queen's University
Sandy Donaldson
Labour Relations Officer
Ontario Nurses' Association
TBA 
Employer Counsel TBA


Workshop Summary

One in five Canadian adults will develop a serious mental health problem in any given year, and the overwhelming majority of Canadian employers rate mental health problems as one of the top three drivers of both short- and long-term disability claims.

Managers, supervisors, union representatives, and other labour relations professionals will leave this session prepared to promote mental well-being in the workplace, support employees who are mentally unwell, and fulfill the legal obligation to accommodate employees experiencing mental health problems.

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.
  • improve employee well-being.

VIEW THE WORKSHOP AGENDA



CPD


Click here to find out more information regarding CPD and the hour requirements in your province.

Conference Sessions

  • This program has been approved by the Human Resources Professional Association (HRPA) for 10.5 Continuing Professional Development (CPD) hours (5.25 hours for Day 1 and 5.25 hours for Day 2).
  • For Newfoundland and Labrador lawyers, consider counting substantive hours spent in this conference towards the CPD requirements of your Law Society.
  • Members of the Law Society of Saskatchewan should contact their Law Society regarding CPD approval.

Workshops

  • "Recognizing and Responding to Drug-Related Impairment" has been approved by the Human Resources Professional Association (HRPA) for 5.5 Continuing Professional Development (CPD) hours.
  • "Accommodating Mental Health Disabilities at Work" has been approved by the Human Resources Professional Association (HRPA) for 5.75 Continuing Professional Development (CPD) hours.
  • For Newfoundland and Labrador lawyers, consider counting substantive hours spent in this workshop towards the CPD requirements of your Law Society.
  • Members of the Law Society of Saskatchewan should contact their Law Society regarding CPD approval.