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Human Rights and Accommodation Conference

April 24 - 25, 2018
Hyatt Regency Vancouver


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CPHR Continuing Professional Development

CPHR Continuing Professional Development

The Chartered Professionals in Human Resources of British Columbia and Yukon (CPHR) has accredited this conference and these workshops for recertification credits.



 

Tuesday, April 24, 2018


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


Panel 1


Elk Valley and Disability-Related Misconduct: Did the Supreme Court get it right?

9:00 AM - 10:30 AM

Panelists

Dr. Diane Rothon
Canadian Institute for Substance Use Research; Medical Director and Founder, Alavida

Dr. Paul Farnan
Clinical Associate Professor
University of British Columbia
Lindsay Waddell
Union Counsel
Moore Edgar Lyster
Melanie Vipond
Employer Counsel
Gall Legge Grant Zwack

Panel Summary

Legal and medical experts will explore the Supreme Court of Canada's highly anticipated judgment in Stewart v. Elk Valley Coal Corporation, grappling with the question of whether an employer can dismiss an employee for failing to disclose a substance use disorder prior to a workplace accident. This session will provide a comprehensive examination of the Court's ruling and its implications for the treatment of disability-related misconduct in Canadian workplaces.

  • On appeal to the Supreme Court of Canada, why did the majority opinion, written by Chief Justice McLachlin, ultimately uphold the Tribunal's ruling? Has the majority's decision elevated the burden of proving prima facie discrimination in cases of misconduct related to a substance use disorder or other disability?
  • Is the majority's discussion of capacity, choice, and denial consistent with consensus views in the medical community regarding substance use disorders? How do such disabilities affect an employee's choice or control over conduct in the workplace?
  • In his dissenting opinion, why did Justice Gascon find that the Human Rights Tribunal decision, upheld by the Supreme Court majority, confused discriminatory intent with discriminatory effect? Does the Tribunal decision reinforce the stigma surrounding substance use disorders, as Justice Gascon contends?
  • What lessons can be drawn for drafting workplace alcohol and drug policies? From a medical perspective, are there concerns with a policy that requires employees to disclose a substance use disorder prior to a workplace accident in order to receive accommodation?

BREAK (with refreshments)

10:30 AM - 10:45 AM

Tuesday, April 24, 2018


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


Panel 2


Roads to Recovery: Experts discuss current best practices for alcohol dependency treatment

10:45 AM - 12:00 PM

Panelists

Dr. Diane Rothon
Canadian Institute for Substance Use Research; Medical Director and Founder, Alavida

Dr. Paul Farnan
Clinical Associate Professor
University of British Columbia

Panel Summary

When an employee's alcohol use disorder comes to light, it is not unusual for an employer or an arbitrator to require the employee to engage in treatment that requires abstinence from alcohol. But, is a treatment approach that requires something less than total abstinence a more effective response? This panel, featuring two prominent experts on treatment for alcohol dependency, addresses this controversial question head-on, as well as the following questions related to the appropriate treatment of employees with alcohol use disorders:

  • What is addiction? Is it a chemical dependency, a moral failing, a combination? What assumptions do different treatment methodologies make about the nature of addiction?
  • How often is an alcohol use disorder connected to another mental health issue, such as depression? How do different treatment methodologies deal with such underlying problems?
  • What are the characteristics of the most effective treatment programs? Are treatments that require abstinence more effective than those that do not? Can people who have been diagnosed with an alcohol use disorder learn to drink in moderation?
  • What use is being made of the drug "naltrexone," which can decrease the desire to drink alcohol? What are the pros and cons of using this drug in treatment?

NETWORKING LUNCH

12:00 PM - 12:45 PM

Tuesday, April 24, 2018


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


Keynote Address


A Medical Expert Clears the Smoke: Interactive session on cannabis in the workplace

12:45 PM - 1:30 PM

Keynote Speaker

Dr. Zach Walsh
Clinical Psychologist;
Associate Professor, Psychology

University of British Columbia

Topics

With the increasing popularity of medical cannabis as an option to treat symptoms ranging from chronic pain to PTSD, as well as the impending legalization of cannabis for recreational use, it is critical for employers and unions to assess and address the workplace implications of cannabis use. In this interactive session, medical cannabis researcher Dr. Zach Walsh will provide insight and answer your questions about the workplace impact of the growing acceptance of cannabis, and what legalization means for employers and unions as it relates to workplace safety.

Tuesday, April 24, 2018


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


Panel 3


Boomers, Gen X and Millennials: Overcoming age discrimination faced by younger and older workers

1:35 PM - 2:45 PM

Panelists

Lori Charvat
Principal
Sandbox Consulting
Kaity Cooper
Legal Counsel
Hospital Employees' Union
Krista James
National Director
Canadian Centre for Elder Law
Carman Overholt
Employer Counsel
Overholt Law

Panel Summary

Invidious assumptions and stereotypes about older and younger workers remain prevalent in contemporary workplaces, including myths that older workers are less productive and innovative, and that the younger generation is entitled, lazy and lacking a strong work ethic. These unfair perceptions can influence decisions about hiring, promotion, training, accommodation and retention. In this session, specialists will identify the unique forms of discrimination and stereotyping faced by older and younger workers, and the steps that employers and unions can take to ensure a non-discriminatory environment. Issues to be addressed include:

  • What assumptions and stereotypes are associated with older and younger workers, and how are they reflected in employment practices? How does discrimination on the basis of age intersect with or relate to discrimination on the basis of race, disability, gender, or other protected grounds?
  • What sorts of qualifications, standards and rules have been found to discriminate on the basis of age in the areas of hiring, promotion, training and retention? How does age-based discrimination manifest itself in performance management? How should an employer deal with significantly reduced performance due to disability that is related to age, such as the early stages of dementia?
  • What kind of age-related accommodations, such as flexible work, may be appropriate?
  • In what circumstances have benefit and pension plans been found to be bona fide under human rights legislation and therefore unaffected by the prohibition on age discrimination?
  • Should workplace parties take measures to balance the rights of older and younger workers? Is it discriminatory to encourage older workers in receipt of a pension to refrain from working part time in order to give more opportunities to younger workers?

BREAK (with refreshments)

2:45 PM - 3:00 PM

Tuesday, April 24, 2018


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


Panel 4


At the Breaking Point: Practical strategies for dealing with workplace stress

3:00 PM - 4:15 PM

Panelists

Dr. Merv Gilbert
Director
Vancouver Psychological Health + Safety Consultants
Jess Hadley
Union Counsel
Hastings Labour Law Office
TJ Schmaltz
Chief Human Resources Officer
Westminster Savings

Panel Summary

Stress, like other workplace hazards, can adversely affect employees' health, making them more susceptible to both physical and mental illnesses; it can also cause employees to become dissatisfied and quit their jobs. In light of these facts, employers, unions and regulators are increasingly recognizing workplace stress as both a serious occupational health and safety hazard and a significant labour relations issue. However, the application of human rights law to "stress" remains a contentious issue. In this session, experts will address the difficult questions in this area head-on, including:

  • Does the legal definition of disability require a diagnosis of a recognized medical or psychological disorder? From a legal viewpoint, when might "stress" or "burnout" be recognized as "disability" that gives rise to the duty to accommodate?
  • Given the medical/psychological perspective on stress and the law on disability, what is the appropriate response to an employee who presents medical documentation requesting time off or accommodation "due to stress"? What additional information, if any, should unions and employers seek from an employee on "stress leave"?
  • Is the stress experienced by an employee because of childcare or eldercare arrangements a relevant consideration in requests for accommodation on the basis of family status? For example, can an employee reject accommodations proposed by an employer that would allow the employee to meet legal obligations to care for a family member, but would place the employee under a great deal of stress?
  • Where accommodation necessitates a reduction in stress, what accommodations are helpful? What types of accommodation measures would constitute undue hardship? Would changing an employee's supervisor or asking the employee's supervisor to adopt a different management style constitute undue hardship in situations where the supervisor is a source of stress for an employee?

END OF DAY ONE

4:15 PM

NETWORKING RECEPTION

4:15 PM - 5:15 PM

Wednesday, April 25, 2018


Breakfast 8:00 AM - 9:00 AM  


Panel 5


Major Caselaw and Legislative Update: Family status, drug and alcohol testing, the hiring process, and more

9:00 AM - 10:15 AM

Panelists

Aleem Bharmal
Executive Director and Human Rights Lawyer
Community Legal Assistance Society
Marcia McNeil
Employer Counsel
Sheen Arnold McNeil
Jitesh Mistry
General Counsel
BC Government and Service Employees' Union
Nicole Skuggedal
Employer Counsel    
Lawson Lundell

Panel Summary

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

10:15 AM - 10:45 AM

Wednesday, April 25, 2018


Breakfast 8:00 AM - 9:00 AM  


Panel 6


What's Old is New Again: (Re)-Introducing the B.C. Human Rights Commission

10:45 AM - 11:45 AM

Panelists

Lindsay Lyster
Union Counsel
Moore Edgar Lyster
Kathleen Reilly
Legal Counsel, Ministry of Attorney General
Government of British Columbia
Laura Track
Lawyer, Human Rights Clinic
Community Legal Assistance Society
David Wong
Respondent Counsel
Fasken

Panel Summary

Fifteen years after it was abolished, the provincial government has set in motion a process to re-establish the British Columbia Human Rights Commission. In this session, specialists will provide an update on the status of that process and discuss the impact that the Commission will have on human rights in the province. Topics to be addressed include:

  • Role of the Commission: Why is it important to have a Human Rights Commission? What gaps currently exist in the province's human rights regime and how will the Commission fill those gaps? What are the functions of the Commission? What is the Commission's role in promoting and protecting human rights in the province? What services will it provide?
  • Structure of the new Commission: What measures will be put in place to ensure the Commission's independence? Will it have the ability to report directly to the Legislature? Will the Commission adopt the three initial priority areas identified in the report to the Attorney-General?
  • Impact on the human rights system in British Columbia: How will the Commission interact with the Human Rights Tribunal? Will any of the Tribunal's responsibilities be reassigned to the Commission? What impact will the Commission have on applicants and respondents? Will there be any changes to the Code?

Wednesday, April 25, 2018


Breakfast 8:00 AM - 9:00 AM  


Keynote Address


Sexual Harassment in the RCMP: Is change possible?

11:50 AM - 12:35 PM

Keynote Speaker

Janet Merlo
Constable (retired)
Royal Canadian Mounted Police

Topics

After decades of experiencing near-daily sexual harassment and bullying by her managers, Constable Janet Merlo finally left the RCMP in 2010. Her attempts to report the problem had only backfired, and she had become both mentally and physically sick. In her bitterly angry exit letter, Cst. Merlo expressed her hope that the RCMP's disgraceful treatment of women would one day become public knowledge. Two years later, she became one of the first women to publicly speak out about the problem. Cst. Merlo is now one of two representative plaintiffs in a historic $100 million class action settlement against the RCMP and the Government of Canada involving 500 female complainants. During this special presentation, Cst. Merlo will explain how a lack of leadership and independent oversight allowed the RCMP to ignore and even punish complainants, and will describe what changes she feels are necessary to overcome the problem.

NETWORKING LUNCH

12:35 PM - 1:30 PM

Wednesday, April 25, 2018


Breakfast 8:00 AM - 9:00 AM  


Panel 7


Indigenous Traditions: Understanding spiritual practices and approaches to dispute resolution

1:30 PM - 2:45 PM

Panelists

Kelly-Ann Speck (Moderator)
Councillor
'Namgis First Nation
Patricia Barkaskas
Academic Director, Indigenous Community Legal Clinic; Instructor, Peter A. Allard School of Law, University of British Columbia

Keith Cameron
Aboriginal Liaison
BC Government and Service Employees' Union
TBA
Employer Counsel TBA


Panel Summary

The work of the Truth and Reconciliation Commission and debates around the Inquiry into Missing and Murdered Indigenous Women and Girls highlight the importance of rethinking the ways in which non-Indigenous Canadians engage with Indigenous peoples across the country. In this session, expert panelists will discuss how the workplace and related dispute resolution processes can be adapted to respect Indigenous practices and build trusting relationships.

  • How can workplace parties ensure that values and norms of Indigenous communities and persons are respected in the workplace and in dispute resolution processes? How can employers and unions create a climate of respect?
  • Why might Indigenous persons be resistant to union representation? What steps can/should unions take in this regard?
  • What are some Indigenous spiritual practices/beliefs that may require workplace accommodation?
  • What is the meaning/significance of Indigenous elements that might be incorporated into non-Indigenous dispute resolution processes, such as sitting in circle and opening with prayer? What is the most respectful way of incorporating these elements?
  • What steps should be taken to find the space and place for the voices of Indigenous women?

BREAK (with refreshments)

2:45 PM - 3:00 PM

Wednesday, April 25, 2018


Breakfast 8:00 AM - 9:00 AM  


Panel 8


Stop Genderalizing!: Supporting gender identity and expression in the workplace

3:00 PM - 4:15 PM

Panelists

Drew Dennis
Principal Partner
TransFocus Consulting
Pronouns: they/them/their

Kacey Krenn
Employer Counsel
Harris & Company
Pronouns: she/her/hers

Adrienne Smith
Regional Representative
Canadian Labour Congress
Pronouns: they/them/their


Panel Summary

While all Canadian jurisdictions have enacted legislation prohibiting discrimination based on gender identity or expression, much work remains to be done. As media reports indicate, transgender, transsexual and gender non-conforming individuals continue to suffer from negative stereotypes, discrimination, and harassment that pervades many aspects of their lives.

In this panel, subject-matter experts and experienced counsel will discuss the challenges faced by transgender, transsexual and gender non-conforming persons in the workplace, provide advice on creating a more inclusive environment, and tackle complex issues such as washroom access, transitioning at work, and the use of gender-neutral pronouns. Topics to be addressed include:

  • A word on terminology: How are terms such as "gender identity," "gender expression," "cisnormativity" and "non-binary" defined? What are some of the common stereotypes associated with gender identity and expression? How are individuals who are transgender, transsexual or gender non-conforming marginalized in the workplace?
  • Barriers in the hiring process: What are some common barriers that arise in the hiring process? Does the possibility of documents, credentials and references being in the other gender effectively force an applicant to disclose during the hiring process? What are some examples of accommodations in the hiring process?
  • Accommodation and inclusive environment: Are there common workplace policies that should be revised in order to ensure that they are inclusive? Should employers adopt policies relating to the use of gender identifiers? What are some examples of typical accommodations based on gender identity or gender expression? How can employers request information without infringing on an employee's privacy? What role does the union play in creating an inclusive environment?
  • Dealing with difficult issues: How should the parties handle a person transitioning at work? Does it need to be disclosed to employers and co-workers? What leaves of absence or benefits are available during this period? How should employers address concerns from other employees and members of the public about access to washrooms and changerooms? How should discrimination or harassment by customers or members of the public be addressed?

CONFERENCE ENDS

4:15 PM

Keynote Speakers


Monday, April 23, 2018



Advanced Topics in Accommodation: Responding to complex disability, family status, and religious practice claims

9:00 AM - 4:00 PM

Workshop Leaders

Elaine Doyle
Arbitrator/Mediator

Alon Mizrahi
Employer Counsel
Dives, Harper & Stanger
Allison Tremblay
Union Counsel
Victory Square Law Office

Workshop Summary

Some of the most challenging situations facing employers and unions in the workplace involve the accommodation of complex medical conditions, family status obligations and religious practices.

Questions dealt with include the adequacy of and entitlement to information, the suitability of accommodation measures, and the appropriate response to conflicting rights and obligations.

In this workshop, a prominent arbitrator and experienced counsel will build on participants' existing knowledge of workplace accommodation principles by addressing complex issues such as:

  • In circumstances where doubt arises as to the objectivity and sufficiency of medical information, what additional information can the employer seek in order to evaluate appropriate accommodations?
  • How should workplace parties respond to requests for accommodation of disabilities that have controversial diagnoses, such as chronic fatigue, Lyme disease or multiple chemical sensitivities?
  • To what extent can the employer enquire into the measures that the employee has already taken to self-accommodate family-status obligations and second-guess the employee's attempts to balance his or her family and work obligations?
  • What steps should be taken if a worker expresses religious beliefs or requests a religious accommodation that infringes on the rights of others? For example, what is an appropriate response to an employee who refuses to work with persons of a different gender based on religious grounds?
  • How should employers and unions respond to a request for accommodation that conflicts with terms of the collective agreement or the accommodation requests of other employees?

VIEW THE WORKSHOP AGENDA



Thursday, April 26, 2018



Accommodating Employees with Mental Health Disabilities: An interactive session

9:00 AM - 4:00 PM

Workshop Leaders

Megan Pinfield
Registered Clinical Counsellor and Senior Advisor Workplace Mental Health, Department of Human Resources
University of British Columbia
Julie Menten
Employer Counsel
Roper Greyell
Lyndsay Watson
Union Counsel
Caroline Law

Workshop Summary

Employers and unions often find accommodating employees with mental health disabilities to be particularly challenging. This interactive training session will provide participants with the tools they need to approach this challenge with confidence. The mental health and legal experts leading the workshop will pay particular attention to the unique issues that arise such as:

  • What obligations do employers and unions have towards an employee who appears to have a mental health disability but is either unaware of having a condition or simply denies having one?
  • How has the union's role in the accommodation process changed following the B.C. Court of Appeal's decision in Telus Communications Inc. v. Telecommunications Workers' Union that unions do not have automatic right to notice, information, and consultation in all accommodation cases?
  • Must employers and/or unions be more sensitive in dealing with individuals with mental health conditions that make them especially sensitive to criticism or allegations of wrongdoing? What is the appropriate response when a performance or attendance management program aggravates an employee's mental health disability?
  • What can unions and employers do to prevent co-workers from discriminating against employees who require accommodation for a mental health disability while protecting the privacy of the accommodated employee?

VIEW THE WORKSHOP AGENDA



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