The Alberta Court of Appeal has recently added to the ongoing debate in Canada over who is or isn’t an employer in the human rights context. In its recent decision in 375850 Alberta Ltd. v. Beverly Noel and the Director of the Alberta Human Rights Commission, the dismissal of the complainant’s appeal illustrates that naming the correct employer is vital to the outcome. read more…
by Keri Bennett
As we reported previously, the Canadian federal government is about to join most of the provinces in making mandatory retirement, for the most part, unlawful. That deadline is fast approaching – December 15, 2012. What can employers do until then? According to the Canadian Human Rights Commission, very little.
Human Rights Commission news release
Earlier this year, the Canadian Human Rights Commission issued a news release cautioning employers against using the time leading up to December 15 to force employees to retire before they are ready to. In the release, Acting Chief Commissioner David Langtry said that “[t]he transition period should not be viewed as a license to force aging workers out the door. Forcing someone to retire because of their age clearly contradicts Parliament’s intent, even if a defence in the law still appears to be available.” read more…
The issue of employees with environmental sensitivities often arises for Canadian employers. Most commonly, employees complain about sensitivities to strong scents such as perfume.
Human rights laws in many provinces accept that environmental sensitivities may be disabilities, to which the duty to accommodate to the point of undue hardship may apply. This was recently confirmed by the British Columbia Human Rights Tribunal in McDaniel and McDaniel v. Strata Plan LMS 1657 (No.2), when it considered a case where the disability was sensitivity to secondhand smoke.
Employers are regularly called upon to modify the workplace or job duties in order to accommodate disabilities. But personal assistive bodily devices haven’t traditionally been part of the accommodation discussion in Canada. This may now be changing, according to a recent arbitration decision.
Teacher requires hearing aids
A teacher struggled with a serious, progressive hearing loss. She bought an analog hearing aid in the early 1990s. Her hearing got worse, and she couldn’t communicate effectively, which of course is an essential part of teaching.
By Clayton Jones and Derek Knoechel
A growing frustration for Canadian employers is the need to defend against human rights claims arising out of the same factual circumstances in multiple forums. Discrimination claims that are presumptively dealt with by a labor arbitrator can resurface as virtually identical claims before a human rights tribunal.
While most human rights tribunals have the discretion to dismiss such claims as a result of the prior proceeding, it historically has been difficult to predict whether such discretion actually would be exercised.
Your employee is required to pass a drug test before being assigned to another company’s worksite. The employee fails the other company’s drug test and is denied the work. The employee can clearly file a human rights complaint against you as his or her employer. But can he or she go after the other company? The Alberta Court of Appeal has recently said no.
Donald Luka was an electrician employed by Lockerbie & Hole. In 2004, Lockerbie decided to transfer him to a major construction project on a Syncrude-owned site in Fort McMurray, Alberta. Syncrude’s safety policy required workers to pass a drug test before they could be admitted to the site.
By David G. Wong
The British Columbia (BC) Supreme Court, in Emergency Health Services Commission v. Cassidy, has recently confirmed that a BC employer’s duty to accommodate doesn’t extend to including a freestanding procedural requirement that the employer treat the employee fairly, and with due respect for his dignity, throughout the accommodation process.
At issue in that case was the treatment of a paramedic with multiple sclerosis. As a result of diminished sensation in his hands, he wasn’t able to palpate pulses, a basic but necessary part of his job. Upon learning of the employee’s inability, the employer immediately removed him from active duty. After a number of months, the employee was eventually permitted to return to work as a driver only, at first on a restricted schedule and then on a regular schedule.