OMHRA Spring Conference 2011 Case Law Update

1. OMHRA Spring Conference 2011 Case Law Update Michael Kennedy and Stephen Goodwin

2. Legislation

3. AODA Update • What is the AODA? • Fundamental purpose to make Ontario fully accessible by 2025 • Five accessibility standards • customer service - in force • built environment – Standard approved May 2010 – awaiting MCSS to pass regulation • transportation; information and communications; and employment – rolling into one standard - review just ended October 16, 2010

4. AODA Update • Customer Service Standard • In force for public sector as of Jan 1, 2010; private sector and not-for-profit by January 1, 2012 • Can apply now to private sector if acting as agent or third party for public sector organization • Establish policies, practices and procedures based on principles: • goods and services provided in manner that respects dignity; • provision must be integrated to enable disabled person to use goods or service; • equal opportunity for disabled persons to use and benefit from goods or service

5. AODA Update • Customer Service Standard cont’d • entrance accompanied by guide dog or other animal, and to keep the animal with them, and if the animal is otherwise excluded by law, to ensure that other measures are available • assistive devices, notice of temporary disruptions, feedback processes and complaint procedures • training for staff • Feedback process • accessibility report • time & resources!

6. AODA Update • Employment Accessibility Standard • now included in one standard with Information and Communication as well as Transportation • Review ended October 16, 2010 • Employment Standard sets out specific requirement for the recruitment, assessment, selection, hiring, retention and separation and termination from employment • Will apply to all employers in Ontario

7. When Deadlines? • Large Public: January 1, 2014 • Small Public: January 1, 2015 • More information @ www.hicksmorley.com

8. Bill 160 – Occupational Health & Safety Amendment Act, 2011 • New training and certificate requirements

9. Bill 122 – Broader Public Sector Accountability Act, 2010 • Not apply to municipalities, however…

10. WSIB Work Reintegration Policies Responsibilities of Workplace Parties More active WSIB role RTW Plan expectations “Duty to Accommodate” Penalty system if failure in RTW obligations Work Transition Services NEER Window – to FOUR years starting with 2008 DOA

11. The Budget • It’s all about the politics

12. NRA60 for Fire Fighters • Expect a bill passed this Spring • It will be messy

13. Arbitration

14. GTAA Decision • Divisional Court • Makes Shime’s Decision legitimate

15. GTAA • Facts

16. GTAA • Future Loss • Mental Distress • Punitives

17. George Brown v. OPSEU • Discharge for incompetence

18. Sheridan College v. OPSEU • Discharge for unauthorized and inappropriate use of employer’s computer network

19. Cambridge Towel • Discharge of 17 year employee for performance issues

20. Hendrickson Springs v. USW • Contracting Out Grievance

21. Carillion Services v. CUPE • Dispute over documentation to be removed from file

22. Chatham-Kent v. ONA • Post Age 64 benefits issue

23. Air Canada NRA60Case • Federal Court grant judicial review of CHRT Decision

24. Interest Arbitration • Participating Hospitals v. SEIU • ATB of 2%

25. Employment Law

26. Van Mensel v. Walpole Island First Nation • Contract interpretation issue

27. Russo v. Kerr • Motion for summary judgment related to constructive dismissal

28. Beggs v. Westport Foods • Lawyer letter ends employment relationship

29. Serbanescu v. Spam Manufacturing • Reasonable notice

30. Love v. Acuity Investment • Reasonable notice

31. Robertson v. Manitoba Keewatinowi • Vicarious liability over employee alleging sexual assault

32. Employment Standards

33. Frustration of Contract under the ESA • Unionized employees seeking severancewhen employer has not taken steps to terminate • severance • notice • time limits

34. St. Joseph’s General Hospital and ONA 134 L.A.C.(4th) 86. Luborsky dismisses grievance - insufficient medical evidence 148 L.A.C.(4th) 326. New medical evidence. Randall finds meets definition of severance “unable to continue employing the employee” not an issue that cba does not have deemed termination clause and allowed for continued seniority when absent due to illness

35. H.E. Vanhatter Ltd. 169 L.A.C. (4th) 400 (Reilly) 5 year deemed termination clause meant employee absent less than 5 years, not entitled to severance. Employee absent more than 5 years entitled to severance due to frustration.

36. H.E. Vanhatter Ltd. “On the question of pay in lieu of notice: the collective agreement provides the notice and it is for a period of five years. Therefore Mr. St. Pierre is entitled to receive his severance pay and not his pay in lieu of notice and I so find.”

37. Tembec Enterprises Inc. 92 C.L.A.S. 350 (Harris) following LMR, employee started working for another employer Employer said “Quit” Harris said severed/terminated due to frustration and entitled to both severance and pay in lieu of notice Divisional Court overturned on the basis no evidence employee couldn’t be accommodated

38. William Osler Health Centre and ONA 179 L.A.C. (4th) 143 (Shime) bundle of benefits under the cba not a greater right or benefit to severance amount of severance owing not decided

39. Cargill [2010] O.L.A.A. No. 617 (Jesin) [2010] O.L.A.A. No. 679 (Chauvin) [2010] O.L.A.A. No. 680 (Chauvin) [2010] O.L.A.A. No. 681 (Chauvin)

40. Cargill Chauvin – dismisses preliminary objection on timeliness Does not decide issue of termination pay Jesin – dismisses preliminary objection on timeliness “It is not entirely clear to me that the grievor is entitled to termination pay”

41. Emrick Plastics [2010] O.L.A.A. No. 575 (Crljenica) Employee injured 2000, modified work until 2002 Off since 2002 Awarded NEL 2003 2005 LMR declined – not employable Grievance filed 2009 Dismissed – frustrated in 2005 – well beyond cba and ESA time limits

42. Human Rights

43. De Abres v. Humber Institute of Technology • Accommodation of disabled employee with cancer

44. ATU v. City of Mississauga • Arbitration award regarding alcoholic employee

45. Watson v. CAW • HRTO decision regarding retirement package offer

46. Ottawa Hospital v. CUPE • Arbitration decision regarding attendance management

47. OPSEU v. Seneca College • Religious leave issue

48. McIntosh v. Metro Aluminum • “Sexting” – text message flirting case

49. Ford v. Nipissing University • Was response to human rights violation adequate?

50. Privacy