Toronto Human Rights and Accommodation Conference

Monday, April 17, 2023

Panel 1

Human Rights Headlines: The latest caselaw and legislative developments

	Esi Codjoe Employer Counsel Turnpenney Milne LLP		Raj Dhir Executive Director and Chief Legal Officer OHRC
	Matthew Hrycyna Greivance Officer, OPSEU

In this session, experts will review the most important legal developments of the past year and flag significant ongoing litigation and legislative reform. Topics to be addressed include discrimination, harassment, privacy, and drug testing policies. Other updates to be discussed include the implementation of electronic monitoring policy requirements and the regulation of NDAs (non-disclosure agreements) in post-secondary sexual abuse allegations. 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

Monday, April 17, 2023

Panel 2

Investigations Under the Magnifying Glass: A close look at significant developments

	Nathaniel Marshall Employer Counsel and Workplace Investigator Marshall Workplace Law		Kirsty Niglas-Collins Partner, Unified LLP
	Sharon Naipaul Consultant, Mediator, and Trainer Strategic Workplace Equity and Conflict Resolution Solutions

Workplace investigators often grapple with issues of bias, fact-finding, and confidentiality that may emerge during an investigation. In this session, experts will discuss important developments in these areas, in addition to practices and policies that safeguard fair and effective investigations:

• What lessons can be drawn from recent cases about the limits on an employer's investigation, taking into account the need to preserve a fair, adequate, and effective investigation process?
• How do unconscious and implicit biases impact human rights investigations in the workplace? What can be done to avoid them?
• How do investigators, in the fact-finding and report-writing process, address pervasive systemic discrimination in the workplace?
• How does adopting a trauma-informed approach to conducting witness interviews affect the affect the nature of the investigation?
• How should workplace parties address the challenges of conducting investigations in a remote work environment? Is there any proven or perceived benefit to conducting workplace investigations in-person?
• What are best practices for drafting investigation reports?

Lunch

Monday, April 17, 2023

Panel 3

Disabilities that elude Diagnosis: Accommodating employees with Long COVID, Chronic Fatigue Syndrome, and other poorly understood conditions

	Simmy Sahdra McCarthy Tetrault LLC		Dr. Alexandra Rendley University Health Network Toronto Rehabilitation Clinic
	Justin Amaral Union Counsel Morrison Watts

Workplace parties are familiar with applying principles regarding the duty to accommodate in cases of visible disabilities, well-known conditions, or conditions for which there exists a clear diagnostic test. However, challenges arise when an employee seeks accommodation for a condition that eludes diagnosis. In this session, experts will address questions such as:

• What are common medical conditions that elude diagnosis, or that are considered "diagnoses of exclusion"? Why does "Long COVID" fall within this list?
• What medical evidence is an employer legally permitted to request to establish an employee's right to accommodation in such cases? Is a definitive diagnosis, or "objective evidence," necessary to establish an invisible disability?
• How can employers and unions effectively formulate requests for medical information in cases where an employee's condition cannot be confirmed using a clinician's diagnostic test? What types of information should employees request from doctors in such cases?
• When sick leave abuse is a concern, how can an employer distinguish between employees who have genuine, difficult-to-diagnose disabilities, and employees who are malingering? When will an employer be justified in seeking further information, including a specialist's report or an independent medical examination?
• How might stereotypes and stigma associated with these medical conditions contribute to the challenge of providing accommodation?
• How might eligibility requirements for short- and long-term disability insurance programs pose additional complications in such cases? Where an employee has been denied disability benefits, and that denial is later held to be improper, which party will be liable for the denial?
• What types of accommodations may be of assistance to an employee suffering from persistent symptoms such as pain, fatigue, or cognitive difficulties? For example, what will help individuals coping with Long COVID? How can employers and unions cooperate to accommodate individuals with multiple chemical scent sensitivities?

Break

Monday, April 17, 2023

Panel 4

Fluctuations and Flare-Ups: Practical guidance on accommodating episodic disabilities in the workplace

	Melissa Egan Lead Episodic Disabilities, Realize Canada		Shibil Siddiqi Progressive Barristers
	Sheilagh Turkington Cavalluzzo

Employees experiencing episodic disabilities often experience fluctuations in wellness, which may lead to a decline in workplace performance and increased absenteeism. In this panel, experts will explore accommodation procedures for employees with episodic disabilities. Specifically, panelists will address:

• What questions are appropriate regarding an employee's episodic disability? When do requests for medical information amount to discrimination or harassment?
• Can an employer inquire into whether an employee's atypical workplace behaviours or schedules are related to the employee's episodic disability?
• Is an employer entitled to request medical information from an employee on an ongoing basis? How can an employer balance its interest in requesting medical information with an employee's right to privacy?
• What steps must unions take to satisfy their duty of fair representation for members with episodic disabilities?
• In what circumstances have arbitrators or judges found that employers or unions have not met their duty to accommodate?
• What are best practices in accommodating an employee who requires modified work?
• What steps should an employer take when accommodating and communicating with an employee returning from disability leave?
• What proactive policies should employers and unions develop to meet the duty to accommodate?

Networking reception

Tuesday, April 18, 2023

Panel 5

Promoting Workplace Equity: Removing barriers, promoting inclusion, and identifying the promise and perils of big data

	Brandy Ryan Director, Equity, Diversity and Inclusion Canada Post		Akilah Haneef-Jabari Anti-Racism Advisor, Consultant and Trainer Jabari Community Services
	Brendan McCutchen Union Counsel, Wright Henry

Promoting equity at work requires a commitment from workplace actors to remove barriers to participation and success, to proactively support inclusion, and to ensure that measures do not, in fact, perpetuate discriminatory practices. In this session, expert panelists will offer attendees practical guidance on topical issues including the value of anti-racist approaches, improving equity in recruitment and retention (and the related role of preferential equity programs), the practical impacts of non-disclosure agreements (NDAs), and the promises and perils of disaggregated data and artificial intelligence in advancing workplace equity.

Break

Tuesday, April 18, 2023

Panel 6

Is Privacy a Human Right? The evolution of Code-based rights in a technological world

	Avner Levin Professor, Faculty of Law and Law & Business Department, Ted Rogers School of Management, Toronto Metropolitan University		Amanda Hunter Hunter Liberatore LLP
	Danielle Bisnar Cavalluzzo

Should employee privacy be recognized as a human right in response to evolving monitoring technologies? In this panel, experts will discuss best practices in balancing employee privacy and modern technologies in the workplace. Specifically, panelists will address:

• What changes does the federal Digital Charter Implementation Act, 2022 (Bill C-27) propose regarding workplace electronic monitoring? How do these provisions in the proposed Act differ from the current Personal Information Protection and Electronic Documents Act and related provincial legislation?
• What consequences do monitoring technologies pose for employees' privacy and human rights? What specific considerations do these technologies raise for remote workers?
• What key issues should employers and unions address in policies or collective agreement provisions governing employee privacy for in-person, hybrid, and remote workers?
• What suite of off-duty privacy rights and protections does an employee enjoy, if any? What privacy rights, if any, are available to job applicants?
• What are best practices in soliciting employee consent to digital surveillance measures?
• What are best practices in tracking, compiling, and retaining employee information? How about job applicant information?
• How have arbitral attitudes towards workplace privacy measures evolved in response to monitoring technologies?

Lunch

Tuesday, April 18, 2023

Panel 7

Off the Clock Conduct: Balancing employee beliefs and actions with maintaining a respectful workplace

	Patricia D'Heureux Partner, Cavalluzzo		Dr. Faisal Bhabha Osgoode Hall Law School, York University
	Carla Black Partner Rae Christen Jeffries		Richard Moon Professor of Law, University of Windsor

Employees with differing perspectives and beliefs nonetheless need to work collegially in the workplace. In this panel, experts will examine the responsibilities of an employer and union in ensuring appropriate employee conduct, both inside and outside the workplace. Topics to be addressed include:

• What are best practices for employers and unions to balance an employee's Charter rights and freedom of expression with a workplace that remains free from discrimination and harassment?
• What are best practices for employers and unions in preventing workplace bullying and harassment? Should workplace training include off-duty conduct?
• How can employers and unions best respond to problematic employee behaviour in a virtual working environment?
• Can an employer limit an employee's political speech at work? What constitutes political speech?
• Can an employee face discipline for verbal statements, online commentary, or conduct outside of work hours? Is an employer justified in disciplining an employee whose off-duty conduct reflects that employee's workplace behaviours?
• Does an employer, union, or employee have a duty to report a controversial online statement by another employee?
• What are the duties of a union in representing members facing consequences from expressing unpopular beliefs or opinions in the workplace? Is the union's duty different if the member is being disciplined for expressions or comments made outside the workplace or online?
• What are best practices for unions and employers where an employee or member alleges that workplace management has engaged in inappropriate or controversial comments or behaviours? Is a different duty owed when the conduct occurs outside the workplace or online?

Break

Tuesday, April 18, 2023

Panel 8

Seeking the Antidote: Identifying and repairing poisoned workplaces

	Mae Nam Union Counsel Ryder Wright Holmes Bryden Nam LLP		Elana Fleischmann Mediator/Workplace Restoration Expert
	Ozlem Yucel Osgoode Hall Law School, York University		Paul Champ Champ Law

As codified in the Ontario Human Rights Code, employers must ensure that a workplace is free from discrimination and/or harassment. While poisoned workplaces are not directly defined under the Code, these topics do include poisoned work environments involving personal harassment. In this panel, experts will examine employer and union responsibilities in identifying and repairing poisoned workplaces. Specifically, panelists will address:

• How have adjudicators differentiated between personality conflicts and a poisoned workplace? Do an employee's perceptions factor into this assessment?
• Does "workplace culture" excuse conduct that would otherwise be considered poisonous? What role, if any, does a workplace harassment policy play in making this determination?
• What types of behaviour may constitute subtle forms of a poisoned workplace? What signs may indicate that someone is experiencing unreported harassment or bullying?
• What actions and restorative approaches should unions and employers take when an employee raises allegations of a poisoned environment? Is the intent to poison relevant when assessing disciplinary actions?
• What management styles or behaviours have adjudicators identified as harassment or bullying?
• How have remote environments changed the prevailing understanding of poisoned workplaces? What strategies can employers and unions implement to respond to problematic behaviour in virtual spaces?
• What support can unions provide to members affected by a poisoned workplace?
• What steps should employers and unions take to create a safe and respectful workplace?

End of day 2

Wednesday, April 19, 2023

Panel 1

Paving the Path to Gender Equity: Exploring recent caselaw, contract clauses, and legislation

	Nicole Biros-Bolton Associate (Human Rights Law), Ross & McBride LLP		Anna Matas Senior Lawyer, Gillian Hnatiw & Co
	Jan Borowy Partner, Cavalluzzo

In this panel, experts will discuss caselaw addressing workplace harassment, discrimination, and pay equity, examine emerging trends in remedies, and explore significant legislative updates related to gender equity. Panelists will also canvass emerging contract language promoting workplace equity in the areas of sex, sexual orientation, gender identity and expression, and family status. Final selection of topics takes place in the weeks leading up to the conference, ensuring coverage of the latest and most important developments. The speakers and materials for this session will address the following questions, among others:

• How have adjudicators acknowledged sex- and gender-based barriers in recruitment, retention, and advancement? What aspects of hiring and promotion processes have weighed in favour of, or against, a finding of discrimination? What principles can be drawn from recent cases in which adjudicators found, or declined to find, that employer policies or actions had a discriminatory impact on employees because of pregnancy or family status?
• What trends in discipline and remedies are discernible in recent caselaw addressing workplace sexual harassment and gender-based discrimination? What aggravating and mitigating factors have impacted adjudicators' decisions?
• How have courts and adjudicators applied the Ontario Pay Equity Act in recent cases? What principles can be drawn from the Court of Appeal's decision in Ontario Nurses' Association v. Participating Nursing Homes regarding the proxy method and the Divisional Court's decision in Ontario Nurses' Association v. 10 Community Care Access Centres holding that employers are not statutorily required to bargain pay equity?
• Where the Ontario Pay Equity Act does not directly apply, what factors have influenced a determination of whether gender-based pay discrimination has occurred? For example: What factors were determinative in the Court of Appeal decision in Ontario (Health) v. Association of Ontario Midwives that upheld a finding of gender discrimination and a retroactive wage increase for Ontario midwives? On what basis did the court find in Ontario English Catholic Teachers Association v. His Majesty that Bill 124 did not violate Charter equality rights?
• Has progress on closing the gender pay gap been made in Ontario? in Canada? Are recent cross-country legislative reforms — such as the introduction of the federal Pay Equity Act, the introduction of pay equity legislation in Newfoundland, and consultations regarding pay transparency measures in British Columbia — indicative of a growing commitment to pay equity?
• What key legislative reforms have been introduced that are intended to further gender equity at work? For example: What are the implications of Canada's recent ratification of the international Violence and Harassment Convention, 2019 (C190)? Is legislation such as the newly introduced U.S. Pregnant Workers' Fairness Act and Providing Urgent Maternal Protections for Nursing Mothers Act necessary in Canada? What amendments to the federal Employment Equity Act relating to gender and sexual orientation are being considered in the course of the legislation's ongoing review?
• How can employers and unions modify contract language to promote workplace equity in the areas of sex, sexual orientation, gender identity and expression, and family status? For example: What changes should be made to leave, benefits, training, recruitment, retention, and advancement provisions?
• Does the recent certification of class action proceedings related to workplace sexual harassment and discrimination signal an increasing potential for success in pursuing these claims on a systemic scale?

Break

Wednesday, April 19, 2023

Keynote Speaker:

Lessons from the past for the post #MeToo Workplace

Peggy Nash Senior Advisor and Chair of the Advisory Committee of the Centre for Labour Management Relations at the Ted Rogers School of Management at TMU

In a post #MeToo and post “because it’s 2015” environment, we assume that workplaces are gender equal and respectful. Yet all too often we hear about continuing challenges with gender biases and outright harassment in the workplace. Ongoing problems in the RCMP capture headlines, but they are far from alone as institutions struggling to make progress. Women continue to drop out of jobs, giving up because they just don’t believe that they are valued or that they want to continue to push back against the barriers they face. While we have made significant progress, many organizations still struggle to find solutions. However, there are some lessons to be learned from workplaces that have been grappling with these issues for decades.

Lunch

Wednesday, April 19, 2023

Panel 2

One Size Does Not Fit All: Fashioning non-discriminatory dress code policies

	David Jewitt Arbitrator and Mediator		Niiti Simmonds Partner, Cavalluzzo
	Megan Mah Partner, Weirfoulds LLP

Employers are entitled to establish workplace dress codes in accordance with the operational needs of the organization. In doing so, however, employers must ensure that dress code policies comply with the Ontario Human Rights Code. In this panel, experts will examine the development of dress code policies in light of employees' personal preferences and religious obligations, discussing the following:

• What are best practices for employers when developing workplace dress code policies? What are best practices for employers and unions when addressing an employee's non-compliance with dress code policies?
• What recent human rights complaints have resulted from workplace dress code policies?
• When developing dress code policies, what lessons can Canadian employers learn from employers in other jurisdictions?
• What are best practices in crafting dress code policies that use gender-inclusive language? How have organizations incorporated gender-neutral and inclusive dress code policies into their workplaces?
• What guidance has the Ontario Human Rights Commission issued for employers in industries which tend to have gender-specific or "sexualized" dress code policies?
• When, if ever, can an employer ask an employee to remove religious attire to comply with a workplace health and safety policy? What are other aspects of dress code policies that may intersect with health and safety concerns?
• To what extent can an employer dictate the grooming habits of its employees? In what circumstances, if any, can an employer restrict the use of make-up or jewelry, or the visibility of tattoos and body modifications, in the workplace?
• What should employers consider when mandating dress code policies for remote workers?

End of Micro-Conference