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Introductory remarks by Co-Chairs
8:45 a.m. – 9:00 a.m.

Since 2008 parties have been able to file a human rights complaint directly with the Human Rights Tribunal of Ontario (HRTO) without going through the Ontario Human Rights Commission as an intermediary. This direct access model of human rights adjudication has led to concerns about unmeritorious complaints potentially consuming the time and resources of employers, unions and the Tribunal itself. However, the HRTO's rules of procedure provide mechanisms for disposing of unmeritorious complaints at an early stage. For example, Rule 19A of the Tribunal's Rules of Procedure now provides that the Tribunal may hold a summary hearing to determine whether an application has a reasonable prospect of success, and section 45.1 of the Human Rights Code states that the Tribunal may dismiss an application if another proceeding has appropriately dealt with the substance of the application. In this panel Lancaster's experts will discuss mechanisms for disposing of complaints outside the tribunal's jurisdiction, complaints that have no reasonable chance of success, and complaints that have already been appropriately dealt with.

• Applications Outside the Tribunal's Jurisdiction: What does it mean for an application to be outside the tribunal's jurisdiction? What are some examples of applications the tribunal has found to be outside its jurisdiction? What is the procedure for dismissing a complaint outside the Tribunal's jurisdiction? At what stage in proceedings can a party ask the Tribunal to decide whether an application is outside its jurisdiction? Can the tribunal dismiss a complaint outside its jurisdiction without an oral hearing?
  
  
• "Appropriately Dealt With"/ "Abuse of Process": In what circumstances will the Tribunal dismiss an application on the basis that another proceeding has appropriately dealt with the substance of the application? Based on the Supreme Court of Canada's decision in British Columbia (Workers' Compensation Board) v. Figiola, what is the test for determining whether another proceeding has appropriately dealt with a matter? Does the tribunal have discretion to hear a matter if it has been appropriately dealt with elsewhere? Will the Tribunal dismiss an application as being appropriately dealt with in another proceeding if the parties have reached a settlement or if the applicant has signed a release? In what circumstances will the Tribunal dismiss an application as being an abuse of process? How do 'abuse of process' cases differ from those in which the Tribunal dismisses an application as being 'appropriately dealt with'? What provisions exist for dismissing an application where proceedings related to the application are ongoing in court?
  
  
• Summary Hearings: What is a summary hearing? On what basis does the Tribunal grant summary hearings? What is the procedure for requesting a summary hearing? What is the difference between a request for a summary hearing and a request to dismiss an application outside the tribunal's jurisdiction?
  
  
• "A Reasonable Prospect of Success": When the tribunal holds a summary hearing, what test does it apply to determine whether an application has 'a reasonable prospect of success?' Is there a difference between establishing a prima facie case and establishing a reasonable prospect of success? Does the tribunal assume that all allegations in the application are true in order to determine whether there is 'a reasonable prospect of success?' Does the tribunal weigh or otherwise consider the evidence the applicant has put forward? Can the tribunal dismiss an application as having no reasonable prospect of success in the middle of a hearing into the merits of a complaint (that is, after hearing some but not all proposed evidence)?

Episodic disabilities are disabilities that are characterized by periods of good health alternating with periods of illness or disability. These episodes of disability often occur unpredictably and their duration is uncertain. Some of the most prevalent disabilities in Canada, including mental illness, arthritis, and cancer can be characterized as episodic disabilities. The accommodation of employees with episodic disabilities presents significant challenges, such as maintaining contact between employer and employee during prolonged absences and determining when it's appropriate for an employee to work and when it's appropriate for an employee to take time off. Lancaster's panel of experts will discuss these challenges and the following issues:

• Episodic Disabilities Generally: What are the characteristics of some common episodic disabilities? What are the unique challenges in accommodating these disabilities? Why might it be helpful to categorize certain disabilities as 'episodic'?
  
  
• Recognizing Disabilities: When must an employee disclose an episodic disability to an employer? When and how should employers (or unions) discuss the need for accommodation with employees who are at work and showing signs of an oncoming episode of disability? Are attendance management plans helpful tools that identify employees with episodic disabilities? Or are they a form of discrimination against such employees?
  
  
• Accommodation: What are the best practices to adopt in accommodating employees with episodic disabilities? What aspects of an attendance management plan or policy cannot be applied to employees with episodic disabilities because they are discriminatory? Is it discriminatory to offer a full-time employee part-time work as an accommodation or not to agree to it when an employee has requested part-time work as an accommodation? Does an employee with an episodic disability have a duty to make use of assistance offered by an employer, such as counselling services? When will an employer reach the point of undue hardship? Can an employer argue that accommodating an employee with an episodic disability is undue hardship because the employee's unpredictable absences will place an undue burden on other employees? Or significantly decrease workplace morale and productivity?
  
  
• Communication During Absences: What should employers do to maintain communication with employees absent from work for an episode of disability? To how much information is the employer entitled in order to support an ongoing absence or entitlement to benefits? What information is required before an employee can return to work? What type of communication should unions maintain with members who are off work due to an episode of disability? Do unions breach their duty of fair representation if they do not maintain adequate communication with members regarding their fitness to work, possible accommodations and return to work? What responsibility do employees have to keep the lines of communication open with both employers and unions?

During this lunchtime presentation, Andrew Galloway will explain what it’s like to struggle with addiction, why people with addictions are hesitant to seek help and why people relapse into addiction. He will also provide tips on recognizing addiction and broaching the subject of addiction with employees. Galloway, a recovering addict himself, is an interventionist on the documentary television show Intervention Canada. He completed Addiction Studies at McMaster University where he won the Award of Excellence in Academic Achievement. He also received The Centre of Addiction and Mental Health’s Transforming Lives Award in 2008.  Galloway’s private practice includes interventions, assessments, counseling and referral. He has facilitated interventions in the workplace.

It often seems that lawyers and health professionals speak different languages. Obtaining the information necessary to provide appropriate accommodation to employees is difficult because physicians, union representatives and management representatives may all have different ideas of what information is necessary. It is also often difficult to frame requests for information in a way that elicits the necessary information but does not cause alarm by seemingly asking for too much information. In this panel, lawyers and health care providers will offer guidance on asking the right questions to receive the information you need and address the following issues:

• Necessary Information: What obligation does an employee have to alert the employer that accommodation is necessary? Must the employee alert the employer at the beginning of the employment relationship if the need is known at that time? When will arbitrators impute to employers "constructive knowledge" of a disability? What information may an employer legally request (and what must an employee provide) in order to assess appropriate accommodation? Is the employer entitled to the employee's diagnosis, prognosis, or information on the employee's treatment? How does the employer's entitlement to information vary with the type of accommodation requested? For example, is an employer entitled to different information to substantiate a long-term absence than it would be entitled to for a short term absence?

• Requesting the Necessary Information: What is the most effective way of requesting the information you need? How should unions and employers request information from physicians? Are standardized forms helpful? If so, what should and should not be on standardized forms? How specific should they be in their requests? What questions are likely to prompt physicians to provide useful information? What types of questions are likely to result in physicians providing vague information? What are some examples of doctors' notes that are too vague? If you receive a vague response, how should you request more specific information? How much time should employers give employees to get the medical information they have requested?
  
  
• GPs, Specialists and Other Health Professionals: Is medical information from an employee's treating GP sufficient for accommodation purposes? When do you need information from a specialist physician? How should employers treat information from health care professionals who are not physicians, for example, physiotherapists? For mental health issues, is information from a GP sufficient? Or should you seek medical information from a psychiatrist? How should parties treat information from licensed counselors and psychologists? When is an independent medical exam appropriate? When can the employer ask an employee to see a physician of its choice? Are there particular types of questions that general practitioners are ill-equipped or reluctant to answer? What guidelines and/or professional rules guide physicians in providing information to employers and unions?
  
  
• Medical Evidence in Legal Proceedings: What are the characteristics of persuasive medical evidence? When must a physician attend an arbitration or human rights hearing to give testimony regarding a medical report? Who pays for the physician's attendance?

The principles of equality and human dignity that underlie human rights legislation enjoy almost universal support, and Canadians like to think of themselves as tolerant and accommodating people. However, applying human rights principles and legislation in the real world can be complex and contentious. This interactive panel will address the situations in which the application of human rights principles is least clear and most contentious. Participants will be presented with factual scenarios drawn from complex cases and experienced counsel will argue the merits of the case from both the union and management perspective. Conference participants will then be given an opportunity to discuss the case and render a decision, which they can compare to the decision rendered by the experienced adjudicator on our panel. Issues to be addressed may include:

• Rights in Conflict: How do you strike the appropriate balance when the human rights of two or more employees come into conflict? How should workplace parties handle requests for accommodation when the accommodation appears to infringe upon the human rights of other employees?

• Systemic Discrimination: How can you prove systemic discrimination, which by its very nature is subtle and not necessarily intentional? Is it necessary to establish that a distinction based on a prohibited ground perpetuates existing stereotypes or disadvantage? Is the identification of a comparator group necessary to establish a prima facie case of discrimination? How should the comparator group be chosen?

• Intersecting Grounds: Does discrimination against an employee based on more than one protected ground compound the harm and result in higher damages?

• Cultural Norms: Can the combination of two or more protected grounds, for example religion, place of origin and sex, create protection for cultural practices or attitudes? What's the line between looking for ideal qualities and character traits in employees or potential employees and discriminating against individuals because of their differing cultural norms, values and behaviours?

End of Day One
4:00 p.m.

Bill 168 amendments to OHSA require employers to deal with bullying. However, determining what constitutes bullying beahviour is not always an easy task, and responding appropriately to bullying can be more difficult still. Matters become even more complicated when employees act out in verbally or physically aggressive ways because of mental illness. In this session, Lancaster's panel of experts will discuss this developing area of the law. Topics include:

• Bullying/Personal Harassment: What is "personal harassment"/ bullying? Are the following included: Foul language? Threats? Gossip? Deliberate isolation? Unfair distribution of workload? Denial of privileges? What is the difference between personal harassment under health and safety legislation and harassment prohibited by human rights legislation? Can a single episode or a series of discrete incidents constitute harassment? At what point does the workplace become a poisoned environment? How can you distinguish between bullying, an aggressive management style and simple insensitivity? How do jurisdictions other than Ontario deal with personal harassment in the workplace?

• Policies, Prevention and Education: What legal requirements do the Bill 168 amendments to OHSA impose with regard to establishing anti-harassment policies and programs? What innovative anti-harassment policies and education programs have workplace parties recently implemented?

• Technology and Harassment: Can employers monitor email or text messages for signs of bullying/harassment? What about social media such as blogs, Facebook, Twitter, etc.? Do employers have a legal obligation to engage in such monitoring? How should employers respond to the technological bullying that takes place outside working hours and with personal computers?

• Threats and Violence: Have the Bill 168 amendments to OHSA influenced arbitrators to be less lenient towards grievors disciplined for uttering threats? Should the discipline imposed for uttering threats vary depending on whether or not the individual who uttered the threats had an intention to actually carry them out? Have the Bill 168 amendments changed arbitrators' perception of what constitutes appropriate discipline for engaging in violence in the workplace? How should workplace parties deal with an employee whose mental illness caused him or her to utter threats or engage in violence in the workplace?

• Remedies: Have the Bill 168 amendments created new remedies for employees who are the victims of personal harassment or violence? What remedies have arbitrators awarded in response to personal harassment grievances? What remedies are available in court for employees who have been harassed?

Employees are often faced with conflicts between their family and work responsibilities. Traditionally, balancing these competing responsibilities has been the responsibility of the employee alone. However, recent developments in the law suggest that the prohibition of discrimination based on 'family status' may mean that employers must work with employees to help them balance work and family responsibilities. Lancaster's panel of experts will discuss these legal developments and address the following issues:

• Family Status Defined: What is "family status"? Who counts as "family"? Does it include family obligations to take care of sick or disabled relatives? Does the prohibition of discrimination based on family status prohibit nepotism? What about anti-nepotism policies? Are they prohibited?

• Competing Approaches: What are the two competing tests used to determine whether a prima facie case of family status discrimination has been established? Which approach prevails in which jurisdictions and in which forums? What do the competing approaches mean from a practical perspective when presenting a case where family status is an issue?

• Examples of Discrimination: When might a supervisor's questions about an employee's family life constitute harassment or evidence of discrimination? Is it harassment if a supervisor suggests that an employee may need to find another position that would be more compatible with the employee's family obligations? Is it discriminatory to offer a part-time position to a full-time employee who requests significant schedule changes to accommodate childcare obligations?

• Accommodation: Are employers required to conduct an individual assessment of each employee's "family status" needs? Do employers have to accommodate employees' 'routine' childcare obligations? Does it make a difference if a child has special needs? Must employers accommodate child custody arrangements? What kinds of accommodation can employees request? Leaves of absence? Modified work schedule? Particular shifts or hours? What are the employee's responsibilities in the accommodation process? Is it a pre-condition to accommodation that an employee exhaust other alternatives? Can the employer require an employee to make changes to his or her family obligations instead of accommodating the employee's circumstances?

• Undue Hardship: What will amount to undue hardship to the employer? What factors do adjudicators consider to determine whether an employer has accommodated an employee to the point of undue hardship? Can the employer argue that the number of employees who may seek a similar accommodation amounts to undue hardship?

Will an aging population and an end to mandatory retirement really result in people working longer? Will problems in access to pension plans and in pension plan sustainability force people to work longer? If people do work longer, what does that mean for employers, employees and unions? What steps will workplace parties have to take to ensure a non-discriminatory environment for older workers? And what about younger workers? Is the current focus on older workers further marginalizing younger workers, who are already being characterized by some as a 'lost generation' of workers because of a lack of employment opportunities? Lancaster's panel of experts will address these and the following questions:

• Demographics: We know that the population is aging, but are people really staying in their jobs past normal retirement age? Are employees in certain sectors more likely than others to work past 65? Conversely, do employees in certain sectors routinely retire before age 65? Will workers be forced to work longer because of a lack of adequate retirement resources? Is it essential to Canada's economic well-being that people work longer? If it is desirable to have Canadians work longer, what incentives should be offered to encourage them to do so? If members of the 'baby boom' generation do work longer, what will be the impact on younger workers, especially the 'echo' generation?

• Mandatory Retirement? Are there any Canadian jurisdictions in which mandatory retirement still exists? Can employers in certain sectors in Ontario or in the federal jurisdiction still impose mandatory retirement because of safety concerns? Has age been found to be a bona fide occupational requirement in certain types of employment? Does such a finding effectively create a mandatory retirement age?

• Discrimination and the Duty to Accommodate: What sorts of workplace standards and rules have been found to discriminate indirectly on the basis of age? Does the duty to accommodate require employers to treat older employees differently? Are employers required to modify duties or to lower work performance standards to accommodate the aging worker? Can an employer institute tests to assess whether the capacity of a worker to perform his or her job has been affected by increasing age? What remedies have been awarded in cases of age-based discrimination in employment?

• Benefits and Pensions: What exceptions are made in human rights legislation to facilitate the operation of pension plans? Is a pension plan discriminatory if it does not allow employees to accrue pensionable service after a certain age? Can benefit plans still make distinctions based on age? Does the termination or reduction of employee benefits at age 65 constitute age-based discrimination? Are age-based reductions in benefits associated with retirement benefit plans discriminatory? What measures can an employer implement to contain the costs associated with a retirement benefit program? Are retiree health care trusts, similar to the Auto Sector Retiree Health Care Trust established by the CAW, GM and Chrysler, a sound way to provide retiree benefits while limiting employer costs?

• Balancing Rights of Aging Workers and the Rights of Young Workers: What measures should workplace parties take to balance the rights of aging workers with the rights of young workers? Would it be discriminatory to encourage older workers in receipt of pensions to refrain from working part time in order to give more opportunities to younger workers? Is it discriminatory to refuse older employees' requests for part-time work? Are older workers or younger workers at a greater disadvantage in the job market if they lose their jobs?

Prominent counsel will review recent legislative changes and important decisions delivered in the past year by Canadian courts, tribunals, and arbitrators. In particular, they will discuss what trends can be discerned from recent caselaw and legislation dealing with critical issues in human rights and privacy law. The selection of cases for this session takes place a few weeks before the conference, ensuring up-to-the-minute coverage of late-breaking decisions.

CONFERENCE ENDS
4:00 p.m.

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