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Human Rights and Labour Law Conference

November 8 - 9, 2017
The Shaw Centre


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Wednesday, November 8, 2017


Registration and Breakfast 7:45 AM - 8:45 AM  
Introductory remarks by Co-Chairs 8:45 AM - 9:00 AM  


Panel 1


Major Caselaw and Legislative Update: Undue hardship, genetic discrimination, family status accommodation, and more

9:00 AM - 10:15 AM

* Panelists to be announced

Panel Summary

Seasoned counsel will review the year's most important cases and legislative developments, and flag significant litigation and legislative reform on the horizon.

BREAK (with refreshments)

10:15 AM - 10:45 AM

Wednesday, November 8, 2017


Registration and Breakfast 7:45 AM - 8:45 AM  
Introductory remarks by Co-Chairs 8:45 AM - 9:00 AM  


Panel 2


Prying Eyes: Privacy breaches at the workplace – and what to do about them

10:45 AM - 12:00 PM

* Panelists to be announced

Panel Summary

In this panel, privacy experts will focus on providing you with the legal information and practical know-how you need to prepare for, respond to, and avert situations in which an employee, without a legitimate work-related purpose, accesses the personal information of another employee or a third party that is in the custody or control of the employer, in violation of privacy rights. The following topics will be discussed:

  • Understanding potential liability for privacy breaches: What are the sources of privacy rights in Canada? What are the elements of the tort of intrusion upon seclusion, recognized for the first time by the Ontario Court of Appeal in Jones v. Tsige? With respect to the tort of public disclosure of private facts – recognized for the first time in a 2016 Ontario court decision – how is this established? What is the status of this tort since the decision recognizing it has been set aside? What has been the impact, to date, of these new torts on the scope of privacy rights in the workplace? Have the cases had any persuasive impact outside of Ontario? Where privacy legislation is applicable, can a common law action for breach of privacy be launched? In what circumstances, if any, will employers be held vicariously liable for an employee's unauthorized, intentional intrusion upon the privacy of another employee or third party? Are class actions for breach of privacy on the rise? Why or why not?
  • Responding to unwarranted privacy invasions: What steps should be taken by workplace parties to respond to instances of employees accessing or disclosing the personal information of other employees, clients, or customers without a valid work-related purpose? What internal or external reporting obligations may be triggered? When and how should such communications occur? What form of disciplinary action, if any, may be appropriate? Is more severe discipline warranted for intentional, versus unintentional, breaches of privacy? Will inappropriate disclosure or use of confidential information call for a different disciplinary response than mere access?
  • Preventing privacy breaches: What steps should employers and unions take to safeguard against privacy breaches by employees? What policies and procedures have proven effective in this regard? Will appropriate policies and procedures serve as an employer defence against being held vicariously liable for privacy breaches by employees? In light of the decision in Jones, are employers legally entitled to make use of monitoring software to prevent intentional breaches of privacy by employees? Is it advisable for employers to install monitoring systems for this purpose?

NETWORKING LUNCH

12:00 PM - 1:15 PM

Wednesday, November 8, 2017


Registration and Breakfast 7:45 AM - 8:45 AM  
Introductory remarks by Co-Chairs 8:45 AM - 9:00 AM  


Panel 3


Post-Traumatic Stress Disorder, Anxiety and Depression: Making inquiries, crafting workable solutions, overcoming stigma

1:15 PM - 2:30 PM

* Panelists to be announced

Panel Summary

Post-traumatic stress disorder, anxiety, and depression are three of the most common mental health disabilities in Canadian workplaces, yet they remain misunderstood and stigmatized. In this panel, a mental health expert will explain why people develop these conditions, how their symptoms manifest in the workplace, and how stigma prevents employees from seeking appropriate accommodation and treatment. Experienced labour lawyers will provide guidance on meeting the duty to accommodate employees with these conditions.

  • Making inquiries: How common are PTSD, depression and anxiety? What signs and symptoms of these conditions are most likely to manifest themselves in the workplace? Do employers and/or unions have a legal duty to inquire into an employee’s need for accommodation when she or he exhibits common signs of mental illness? Are such inquiries themselves likely to expose employers to a claim of discrimination (for implying that the employee has a disability)? If so, is there a way employers or unions can broach the subject of a potential disability that is less likely to lead to a claim of discrimination? Given that the regulations made under the Accessibility for Ontarians with Disabilities Act (AODA) require employers to make employees aware of possible accommodations at the hiring stage of employment, is there an obligation on employees to disclose mental health conditions at that time?
  • Crafting workable solutions: What functional limitations are these conditions likely to impose on people living with them? What types of accommodations will allow employees to continue to work despite these limitations? What unique privacy concerns are raised by the provision of medical information related to mental health disabilities? How should workplace parties address those concerns? Are employers justified in being skeptical of medical information and limitations related to mental health conditions on the basis that such information is based largely on self-reporting? Or is such skepticism rooted in the stigma and stereotypical assumptions associated with mental illness? What is the extent of an employee’s obligation to cooperate in accommodation? How might PTSD, depression or anxiety affect an employee’s ability to participate in the accommodation process? What are the common bases on which employers and/or unions claim undue hardship in accommodating employees with depression or anxiety? In what circumstances have such claims been successful recently?
  • Overcoming stigma: Do employers and/or unions have a legal responsibility to counteract stereotypical views held by employees/members? How should employers and unions react when co-workers complain about accommodations an employee is receiving because of a mental health disability?

BREAK (with refreshments)

2:30 PM - 2:45 PM

Wednesday, November 8, 2017


Registration and Breakfast 7:45 AM - 8:45 AM  
Introductory remarks by Co-Chairs 8:45 AM - 9:00 AM  


Panel 4


Managing Attendance at Work: Setting standards, accommodating employees, curbing abuse

2:45 PM - 4:00 PM

* Panelists to be announced

Panel Summary

Attendance management programs have become increasingly common in workplaces across Canada, yet they remain contentious and are often the subject of litigation. In this session, experienced labour lawyers will identify the key elements that attendance management programs must contain to be compliant with relevant legislation and collective agreement rights. Topics to be addressed include:

  • Reasonable policies and programs: Does arbitral caselaw generally recognize the creation of an attendance management policy as a reasonable exercise of management rights? Does the answer differ where the applicable collective agreement contains detailed provisions regarding sick leave and accommodation of disabilities? What elements must a unilaterally-imposed attendance management policy contain if it is to withstand arbitral scrutiny for reasonableness? How should threshold levels of attendance be set so as not to be arbitrary or otherwise unreasonable? Is it advisable to negotiate collective agreement provisions that expressly address attendance management? Why or why not? What are some examples of attendance management clauses that parties have included in collective agreements? What is the scope of an employee’s entitlement to union representation in an attendance management program?
  • Statutory floors of protection: Does human rights legislation prohibit employers from counting absences due to a disability for the purposes of an attendance management program? How should attendance management policies and programs deal with absences due to family obligations, such as childcare or eldercare, in light of the developing caselaw on “family status” protection in human rights legislation? Aside from human rights legislation, what other legislation must attendance management policies take into account?
  • Medical information and privacy: What medical information may be required from employees in an attendance management program? Should medical certificates be required for all absences once an employee has reached the threshold for enrolment? As part of an attendance management program, should human resources personnel seek permission to contact and communicate with the employee's doctor for updates on the employee’s medical status? What steps must employers take to safeguard the confidentiality of employee medical information received pursuant to an attendance management program? When, if ever, will communication with an employee regarding medical information be considered harassment?
  • Dismissal: When can an employer dismiss an employee for non-culpable absenteeism? What constraints are there upon an employer in discharging an employee for innocent absenteeism (e.g. benefit loss, notice, etc.)?

END OF DAY ONE

4:00 PM

NETWORKING RECEPTION

4:00 PM - 5:00 PM

Thursday, November 9, 2017


Breakfast 8:00 AM - 9:00 AM  


Panel 5


Fitness for Work: Ensuring a safe work environment in an era of marijuana, opioids, and other drugs

9:00 AM - 10:15 AM

* Panelists to be announced

Panel Summary

The increasing prevalence of medical marijuana and prescription drugs across Canada, in conjunction with the impending legalization of recreational marijuana use, makes it crucial for employers and unions to understand the implications of marijuana, opioids and other drugs in the workplace. Employers, unions and employees all share a common interest in maintaining a safe work environment while still respecting privacy and human rights. In this session, medical and legal experts will offer their thoughts on a range of issues relating to this topic, including disclosure requirements, impairment testing, accommodative measures and workplace policies.

  • Common misperceptions: What are some of the common misperceptions surrounding the use of medical marijuana and prescription drugs? Does the medicinal use of marijuana and other drugs necessarily result in impairment at work? What else can cause impairment in the workplace? Fatigue? Chronic pain?
  • Impairment testing: What tests are available for employers to measure actual current impairment in the workplace? What advantages does competency-based testing have over traditional drug testing? What possible privacy and/or human rights concerns are raised by impairment testing in the workplace?
  • Disclosure: In what circumstances, if any, are employees required to disclose their use of medical marijuana and prescription drugs? Can employees be required to disclose recreational use of marijuana or other drugs?
  • Balancing accommodation and safety obligations: Does medical marijuana authorization or a prescription for other drugs entitle an employee to be impaired at work? What type of medical information should be requested to determine whether an employee can safely and effectively perform his or her job? What are some best practices for managing safety risks when substance abuse is suspected?
  • Crafting workplace policies: What elements should be included in a workplace policy dealing with the use of medical marijuana and prescription drugs? What about recreational drug use? How should workplace policies be updated or revised following the legalization of recreational marijuana use? In what circumstances, if any, are zero-tolerance policies permissible?

BREAK (with refreshments)

10:15 AM - 10:45 AM

Thursday, November 9, 2017


Breakfast 8:00 AM - 9:00 AM  


Panel 6


Remedial Trends in Human Rights and Labour Law Cases: Damages, compensation in lieu of reinstatement, and more

10:45 AM - 12:00 PM

* Panelists to be announced

Panel Summary

A series of ground-breaking remedial awards have been released by courts, human rights tribunals and arbitrators across Canada in recent months. In this session, experienced advocates will highlight emerging remedial trends and offer guidance on preventing behaviour that leads to hard-hitting damages awards.

  • Damages for injury to dignity: What are the key recent decisions in which higher-than-usual damages for injury to dignity have been awarded? Are there any common features present in these cases – either in terms of the type of conduct sanctioned, or the harms suffered by the individuals compensated – that may shed light on the damages awarded? What role, if any, does the failure to investigate employees' concerns play in cases where hard-hitting damages are awarded? What about a failure to maintain a psychologically or physically safe workplace?
  • Aggravated and punitive damages: What trends can be discerned from recent decisions awarding aggravated, punitive and mental distress damages? Are aggravated and/or mental distress damages on the rise as an arbitral and/or judicial remedy for violations of human rights? Are they becoming more common in cases where the employer has breached its duty of good faith and fair dealing in the manner of dismissal? In what circumstances have courts and arbitrators awarded punitive damages?
  • Reinstatement: Will the Ontario Court of Appeal's decision in Fair v. Hamilton-Wentworth District School Board, upholding a tribunal decision to reinstate an employee nine years after termination, signal a new trend towards reinstatement at human rights tribunals? Following the Supreme Court of Canada’s decision in Wilson v. Atomic Energy of Canada Limited, finding that non-unionized employees in federally regulated industries cannot be dismissed without cause, is reinstatement the presumptive remedy in cases of unjust dismissal governed by the Canada Labour Code? Are awards of compensation in lieu of reinstatement becoming more common at arbitration? When are arbitrators likely to make such awards and how will they calculate the quantum of damages appropriate to compensate an employee for loss of unionized employment?
  • Lessons for the future: What lessons emerge from recent awards? What conduct should employers avoid in order to lessen the risk of becoming the subject of a hard-hitting damages award? What proactive steps or policies should be put in place to prevent the behaviour that leads to hard-hitting awards?

NETWORKING LUNCH

12:00 PM - 1:15 PM

Thursday, November 9, 2017


Breakfast 8:00 AM - 9:00 AM  


Panel 7


Combating Sexual Harassment: Engaging bystanders, training investigators, supporting survivors, and more

1:15 PM - 2:30 PM

* Panelists to be announced

Panel Summary

Recent high profile events, such as the RCMP’s historic apology and compensation to female officers, have raised societal consciousness about the pervasiveness of sexual harassment in employment. Has there been a change in the culture? What institutional barriers hinder the proper functioning of workplace harassment policies and the timely investigation of harassment complaints? This panel will address critical issues in investigating, responding to, and combating workplace sexual harassment, including:

  • Is sexual harassment more prevalent in certain sectors? Are certain workers more likely to be targeted? What role do myths and stereotypes play in sexual harassment?
  • What are the challenges involved in implementing changes in small and large institutions, and how can they best be addressed?
  • Why do people who experience sexual harassment in the workplace often not report it? How do we facilitate and encourage reporting workplace sexual harassment? Is there a difference between reporting and disclosure? Why is it common for people to witness sexual harassment in the workplace but not say anything or report it? What training should be provided to employees on intervening when they witness incidents of sexual harassment?
  • What are the challenges involved in investigating institutional behaviour? What measures should organizations implement to combat workplace sexual harassment? What specific measures need to be taken to comply with changes to Ontario's Occupational Health and Safety Act under Bill 132?

BREAK (with refreshments)

2:30 PM - 2:45 PM

Thursday, November 9, 2017


Breakfast 8:00 AM - 9:00 AM  


Panel 8


Arbitrators Weigh In: What really tips the balance in discipline cases?

2:45 PM - 4:00 PM

* Panelists to be announced

Panel Summary

In this session, a panel of seasoned arbitrators will share insights on the factors they have found decisive in discipline cases, offering their views on topics such as:

  • Gross misconduct: What type of misconduct do arbitrators consider so egregious that summary discharge is typically justified? Theft? Time theft? Sick leave abuse? Threats, violence, and/or harassment?
  • Decisive aggravating and mitigating factors: How do arbitrators ensure proportionality in penalty? Which aggravating and mitigating factors are typically most important in deciding whether to substitute a lesser penalty for misconduct, where cause for discipline exists: nature of offence? Length of service? Disciplinary record? Risk of recurrence? Provocation? Consistency of discipline? Condonation? Admission of guilt? Acceptance of responsibility? Candour? Remorse? When will an employer's failure to impose consistent discipline or its apparent condonation of misconduct lead an arbitrator to substitute a lesser penalty? If an employee's misconduct is linked to a disability, how does this factor into an arbitrator's assessment? Is it treated as a mitigating factor in the disciplinary analysis, or is it necessary to engage in a human rights analysis? Should the "hybrid approach," which distinguishes between culpable and non-culpable factors, be applied in these circumstances? In what circumstances have arbitrators found that a grievor's lack of candour or remorse during the employer's investigation or the arbitration process tipped the balance in favour of dismissal? Conversely, when have arbitrators found that a grievor's admission of guilt and/or remorse tipped the balance in favour of a lesser penalty?
  • Refusing reinstatement: On what bases have arbitrators declined to reinstate employees who have been dismissed without just cause? What factors are determinative in arbitrators' decisions to order compensation in lieu of reinstatement? Lack of trust between employee and employer? Concerns that an employee poses a health and safety risk? An employee's concerns about a hostile workplace? Co-workers' concerns about a grievor returning to the workplace?

CONFERENCE ENDS

4:00 PM

Keynote Speakers


Tuesday, November 7, 2017


Conducting Fair and Effective Investigations: A hands-on workshop

9:00 AM - 4:00 PM

Topics

Workplace investigations, whether they are investigations into complaints of harassment or into employee misconduct, require fair and impartial investigators and procedures. In this workshop, experts will guide you through the steps in conducting fair and comprehensive investigations, addressing issues such as searches, confidentiality protections, union representation, and the release of the investigative report. Issues to be addressed include the following:

  • The legal framework: What legislation and seminal arbitration decisions establish the ground rules for workplace investigations? How does the answer differ depending on whether the investigation is a disciplinary investigation or an investigation into allegations of harassment, discrimination or violence? What triggers an employer's duty to investigate misconduct? In what circumstances, if any, can an employer respond to misconduct (including harassment or violence) without conducting an investigation?
  • Investigation essentials: What are the essential qualities or qualifications of an investigator? When should an external investigator be retained? In cases of workplace violence and harassment can employees effectively veto an employer's choice of investigator? Are employees required to cooperate with an employer's investigation? What protections should be put in place to protect the employee subject to investigation? What measures and procedures should be put in place to protect witnesses (and complainants) against reprisal or harassment during an investigation? What types of electronic searches, such as cell phone record searches and e-mail searches, can be conducted as part of the investigation? When can employers use video surveillance as part of their investigations? Do employees being interviewed during an investigation have the right to union representation? If so, what is the proper scope of that representation?
  • Investigation reports: Who is entitled to the investigation report, investigator's notes and other documents relied upon in the investigation? Who is entitled to access complaints and witness statements? Are complaints and witness statements privileged so that they cannot be used as evidence against the authors? Who is entitled to access these statements? What role, if any, do investigator recommendations play in determining an appropriate response to misconduct? Can the employer ignore these recommendations? Modify them? In what circumstances will arbitrators order investigation reports disclosed at arbitration? How far will such disclosure orders go? Will they include the investigator's notes?


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