The Top 10 Human Rights Cases

Decisions touching on issues of human rights in the workplace are released every week, but familiarity with the landmark decisions will provide you with the foundation you need to master this area of law. In this session, Lancaster’s panel of experts will provide an in-depth analysis of the top ten cases on human rights in relation to employment, and will arm you with the tools you need to use them to your best advantage. The cases to be discussed include:

• Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Limited: Will a condition of employment or rule that applies equally to all employees but has an adverse effect of discriminating against an employee on a prohibited ground violate human rights legislation? If so, how far must the employer go to accommodate the employee experiencing adverse effect discrimination?
• C.N.R. v. Canada (Human Rights Commission): What is systemic discrimination? What is the scope of human rights tribunals’ power to make orders to address systemic discrimination?
• Janzen v. Platy Enterprises Ltd. and Robichaud v. Canada (Treasury Board): What behaviour constitutes “sexual harassment” and what are the key elements that must be present? What is the extent of an employer’s duty to provide a workplace free from harassment? What obligations does an employer have to take proactive measures to prevent harassment from occurring, and where harassment has already occurred, what obligations does an employer have to take measures to respond to, and provide a remedy for, the harassed employee?
• Parry Sound v. OPSEU: What is the scope of an arbitrator’s authority to interpret and apply employment-related statutes? When will the substantive rights and obligations in human rights and other employment-related legislation be considered to be an implied term of the collective agreement, a “floor beneath which an employer and a union cannot contract”?
• Entrop v. Imperial Oil Ltd.: Does mandatory drug and alcohol testing constitute disability-based discrimination in violation of human rights legislation? What about in the pre-employment phase? Does a rule requiring mandatory disclosure of past or present substance abuse or of measures taken in response thereto violate human rights legislation?
• Syndicat des Employés de l’Hôpital Général de Montréal v. Centre Universitaire de Santé McGill: In dismissing a disabled employee who is unable to attend at work, to what extent can an employer rely on a “deemed termination” clause in the collective agreement? When will the continued employment of an employee who is absent from work due to a disability reach the level of undue hardship for the employer?
• Ontario Human Rights Commission v. Etobicoke (Borough): What is a bona fide occupational qualification, and what is the relevance of such a designation? What type of evidence will be required to prove that a particular qualification is a bona fide occupational qualification?
• British Columbia v. BCGEU (Meiorin): What is the test for establishing that a workplace requirement is a bona fide occupational qualification and therefore a defence to an allegation of discrimination? What has been the effect of this test on the concept of accommodation to the point of undue hardship for the employer?
• Central Okanagan School District No. 23 v. Renaud: What is the employee’s and the union’s role in the search for accommodation? What factors are to be considered in determining whether an accommodation would amount to “undue hardship” for the employer?
• Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec: What are the limits of an employer’s duty to accommodate disabled employees? What is the effect of the duty to accommodate on an employer’s ability to discharge an employee for disability-related absenteeism?