Human Rights and Labour Law Conference
Ottawa Human Rights and Labour Law Conference Day One - Wednesday, October 3, 2018
- Major Caselaw and Legislative Update: Sexual harassment, cannabis issues, flexwork, and more
- Indigenous Traditions: Understanding spiritual practices and approaches to dispute resolution
- At the Breaking Point: The growing problem of workplace stress and burnout, and what to do about it
Day Two - Thursday, October 4, 2018
- Workplace Investigations: Recent top cases, key legislative changes
- How to Tell Who's Telling the Truth: How do adjudicators assess credibility?
- Reading the Signs in Disability Cases: When does the law impose a "duty to inquire?"
- Sick Leave and Return to Work: Tackling credibility, self-reporting, and other thorny issues
Patricia Harewood Coordinator, Oppression Prevention, Public Service Alliance of Canada
David Patacairk Legal Counsel, City of Ottawa
Andrew Tremayne Arbitrator/Mediator
Conference Advisory Committee
Sydney Baxter Arbitrator/Mediator
Raquel Chisholm Employer Counsel, Emond Harnden
Lisa Addario Member, Canada Industrial Relations Board
Laura Ross Employment Relations Officer, Professional Institute of the Public Service of Canada (PIPSC)
Jennifer Duff Union Counsel, Shields Hunt Duff
David Law Employer Counsel, Law at Work
Wednesday, October 3, 2018
Registration and Breakfast
8:00 AM - 9:00 AM
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM
Major Caselaw and Legislative Update: Sexual harassment, damage awards, flexwork, and more
9:10 AM - 11:10 AM
Sean Kelly Senior Counsel, Treasury Board of Canada Secretariat, Government of Canada
David Law Employer Counsel, Law at Work
Daria Strachan Union Counsel, Shields Hunt Duff
Isabelle Roy General Counsel and Chief of Labour Relations Services, Professional Institute of the Public Service of Canada (PIPSC)
Top advocates will review the year's most important cases and legislative developments, and flag significant litigation and legislative reform on the horizon. Final selection of topics will take place in the weeks leading up to the conference, ensuring coverage of the latest and most important developments. Issues to be addressed include:
- In light of recent high profile sexual harassment allegations and the #MeToo movement, which incidents of sexual harassment are just cause for dismissal and which warrant lesser discipline?
- Following the Supreme Court's decision in Schrenk v. BC, when can employers be held liable for discrimination?
- In practice, how have adjudicators applied the Supreme Court's decision in Stewart v. Elk Valley regarding disability-related misconduct? Has the decision been broadly applied, or has it been restricted to its particular facts? Has it resulted in reduced human rights protections for employees with substance use disorders or other disabilities?
- Will forthcoming legislation giving employees the right to request flexible work arrangements make such arrangements more common?
BREAK (with refreshments)10:15 AM - 10:30 AM
Recruiting and Retaining Indigenous Workers: Best practices for employers and unions
11:20 AM - 12:00 PM
Chantal Fraser Human Resources Leader and Storyteller, Empowered Path Inc.
Krista Maracle Chair, Indigenous Circle; Member, Region 5, Ontario Public Service Employees Union
Indigenous peoples in Canada experience disproportionately high levels of unemployment and underemployment. In its final report, the Truth and Reconciliation Commission of Canada called on Canadian businesses to ensure that Indigenous peoples have equitable access to jobs in the private sector, while governments continue to strive to meet employment equity targets to close employment gaps. In this panel, experts provide insight on proactive steps employers and unions can take to recruit and retain Indigenous workers and remove barriers in the workplace.
NETWORKING LUNCH12:00 PM - 1:00 PM
Clearing the Cannabis Confusion: Experts dispense advice on policies, testing, and impairment
1:00 PM - 2:15 PM
Nancy Carnide Post-Doctoral Fellow, Institute for Work and Health
Russell MacCrimmon Employer Counsel, Bird Richard
Union Counsel TBA
The legalization of recreational cannabis and the increasing use of medicinal marijuana has created big headaches for employers attempting to respect the rights of employees while at the same time ensuring that they remain safe and productive workers. Unions, too, must be aware of the level of protection employees are entitled to expect. In this session, medical experts will join seasoned labour lawyers to discuss the effects of cannabis consumption, the challenges in assessing impairment, appropriate workplace policies and other critical issues, including:
- Legal landscape: What are the key features of the federal legislation that is legalizing cannabis for recreational purposes? How have the provinces adapted their laws relating to substance use? Are there any specific legislative measures to address cannabis in the workplace?
- Understanding use and impairment: How widespread is cannabis use among Canadian workers? What are the short- and long-term effects of cannabis use? Can it be addictive or habit-forming? What are the symptoms of impairment? How long does impairment last? Are there any forms of cannabis, or strains of cannabis, that do not cause impairment, or are less impairing than others? Does the effect on the body vary depending on the method of consumption?
- Impairment testing: Under what circumstances are employers allowed to administer drug tests? What testing methods are currently available, and what do they measure/reveal? How is impairment testing being addressed by federal and provincial legislation in relation to impairment while driving?
- Disclosure and accommodation: In what circumstances can employees be required to disclose their medical or recreational use of cannabis? What type of medical information should be requested to determine whether employees can safely and effectively perform their jobs? Following the Supreme Court of Canada's ruling in Stewart v. Elk Valley Coal Corporation, can an employee be required to disclose substance dependence prior to a work-related incident or else face dismissal without the benefit of accommodation?
- Crafting workplace policies: Do workplace parties need to rewrite their policies to address medical/recreational cannabis use or can they use existing drug and alcohol policies with slight modifications? What elements should be included? Can possession or a positive test result provide justification for discipline or termination, or would such a policy be ripe for challenge? What are reasonable restrictions for employers to put on cannabis use during work hours (given that having a glass of wine at lunch is generally permissible)? What about restrictions on off-duty use?
BREAK (with refreshments)2:15 PM - 2:30 PM
At the Breaking Point: The growing problem of workplace stress and burnout, and what to do about it
2:30 PM - 3:45 PM
Edith Bramwell Director, Negotiations and Programs Branch, Public Service Alliance of Canada
Karen Jensen Employer Counsel, Norton Rose Fullbright
Darcy Santor Professor of Psychology, Faculty of Social SciencesUniversity of Ottawa
The common refrain "work is killing me" is often an expression of feeling stressed by work, but scientific studies increasingly recognize that workplace stress does indeed adversely affect employees' physical and mental health. In fact, Japanese authorities have identified two types of death which result from overwork, and the Japanese language has a specific word, karoshi, to refer to the phenomenon. In addition to being a health and safety issue, workplace stress can also lead to serious labour relations issues as it may cause employees to become less productive and more likely to leave their jobs. In this session, a leading expert on workplace stress and experienced labour lawyers will address questions such as the following:
- How do medical and psychological authorities define stress, overwork, and burnout? How significant is workplace stress as a health hazard? Is it really killing people?
- To what degree is workplace stress caused by systemic issues, such as understaffing and the general organization and governance of workplaces, and to what degree is it more of an "individual issue," dependent on individual employees' abilities to cope with stress?
- Is the legal perspective on workplace stress in Canada changing? Are adjudicators now more likely to recognize workplace stress as a serious workplace health and safety issue? Will they award damages to employees who have suffered stress as a result of unreasonable management decisions?
- What are the best practices for preventing or reducing stress, overwork and burnout in the workplace? What role is there for the National Standard of Canada for Psychological Health and Safety in the Workplace?
- Is "stress" a disability that must be accommodated? Are employers required to change performance standards or reduce workloads for stressed employees? Are they required to transfer an employee or a supervisor where a supervisor is a source of stress for an employee?
END OF DAY ONE 3:45 PM
NETWORKING RECEPTION 3:45 PM - 4:45 PM
DAY 2 Thursday, October 4, 2018
Breakfast 8:00 AM - 9:00 AM
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM
Workplace Investigations: Recent top cases, key legislative changes
9:10 AM - 10:30 AM
Samantha Lamb Union Counsel, Jewitt McLuckie
Adam Gamwell Employer Counsel, Emond Harnden
Conducting a fair and effective investigation of workplace misconduct is of vital importance. Moreover, since mistakes committed in the investigation process can result in irreparable harm and significant liability, it is critically important that workplace parties understand and fulfill their obligations including those set out in applicable legislation such as the federal Bill C-65 and Ontario's Bill 132. In this session, leading counsel will review recent workplace investigation caselaw and discuss best practices for initiating an investigation, appointing an investigator, and ensuring procedural fairness throughout the process. Topics to be addressed include:
- Conducting fair and adequate investigations: What lessons can be drawn from recent cases about an employer's duty to investigate misconduct and the essential elements of fair and adequate investigations? What steps must a union take in investigating employee grievances in order to satisfy its duty of fair representation? What are the procedural changes introduced by Bill C-65 when investigating complaints of workplace violence and harassment?
- Selecting an appropriate investigator: What are the essential qualities or qualifications of an investigator? How can you determine whether an investigator is a "competent person" under the federal occupational health and safety regulations? When should an external investigator be retained? In cases of workplace violence and harassment, can unions or employees effectively veto an employer's choice of investigator?
- Disciplinary response to investigation: Can an employer rely solely on an investigation report as the basis for discipline? Does it have an obligation to investigate whether disability played a role in an employee's misconduct prior to imposing discipline? How will an employee's dishonesty during an investigation impact discipline and/or reinstatement?
- Disclosing investigation reports: Under what circumstances will adjudicators order that investigation reports be disclosed during litigation? Can an employer claim that an investigation report is subject to solicitor-client privilege solely on the basis that the investigation was conducted by a lawyer?
BREAK (with refreshments) 10:30 AM - 10:45 AM
How to Tell Who's Telling the Truth: How do adjudicators assess credibility?
10:45 AM - 12:00 PM
Judith Allen Arbitrator/Mediator
David OlsenVice-Chair, Federal Public Sector Labour Relations and Employment Board
Assessing credibility is a fundamental part of an adjudicator's work, often determining the outcome of a case. However, this task cannot be reduced to an exact science and the many subjective factors that go into weighing credibility – including demeanour, consistency in testimony, and appearance of bias – mean that triers of fact can reach different conclusions about witness credibility. At the same time, there are strategies for bringing rigour to the process of credibility assessment, with a view to minimizing reliance on stereotypes. In this session, prominent adjudicators and a seasoned psychologist will provide guidance on assessing credibility, discussing problematic areas in eyewitness evidence, as well as various techniques and tools available to avoid the pitfalls in witness credibility assessment.
- Factors considered by adjudicators: What are the factors that adjudicators will examine when assessing credibility? Are some factors, such as demeanour, considered to be less reliable indicators of credibility?
- Assessing conflicting evidence: How do adjudicators assess conflicting evidence where witnesses sincerely believe they are telling the truth? Does credibility simply boil down to a question of whether the witness' evidence is the most reasonable when considered in light of the facts ("most in harmony with the preponderance of probabilities")?
- Problematic areas of witness evidence: What are some common mistakes made by witnesses that undermine their credibility?
- Techniques to avoid pitfalls: What are some steps that advocates can take to prepare their witnesses so that they will appear more comfortable or confident while testifying? Is there any way to "rehabilitate" a witness's credibility?
NETWORKING LUNCH 12:00 PM - 1:00 PM
Reading the Signs in Disability Cases: When does the law impose a "duty to inquire?"
1:00 PM - 2:15 PM
Jessica Greenwood Union Counsel, Raven Cameron Ballantyne & Yazbeck
Dr. Darcy A. Santor Professor of Psychology, Faculty of Social Sciences, University of Ottawa
Meg Steele Senior Legal Counsel, City of Ottawa
Arbitrators and other adjudicators have consistently held that an employer has a "duty to inquire" into an employee's health and possible need for accommodation if an employee displays unusual behaviour that may be indicative of a mental health problem. In some cases a union may also need to inquire into a member's health in order to meet its duty of fair representation. In this session, experienced lawyers and a mental health expert will describe the behaviours that may trigger a duty to inquire and provide practical tips on how employers and unions can broach the subject of mental health with workers. Specific issues to be addressed include:
- How prevalent are mental health conditions in the workplace? What are the signs and symptoms of mental illness that are most likely to manifest themselves in the workplace?
- In what situations have adjudicators found that an employer had a duty to inquire into an employee's mental health? What factors/signs should employers look for in deciding whether to inquire about mental health issues?
- What is the extent of the employer's duty to inquire into an employee's health if it suspects that a disability may be impacting his/her attendance? At what stage in the process should such an inquiry be made, and by whom?
- When will a union need to inquire into an employee's mental health in order to meet its duty of fair representation?
- When questioning an employee regarding his or her mental health, what constitutes appropriate questioning and how is such questioning to be distinguished from overly intrusive or discriminatory inquiries? What are some practical tips and best practices for raising the potential need for accommodation with an employee? How should employers and unions deal with the issue of denial in the face of evidence that a disability in fact exists?
- How does the Supreme Court of Canada's decision in Stewart v. Elk Valley Coal alter the duty to inquire? Are employees who engage in misconduct related to a disability now prevented from raising discrimination and accommodation arguments at arbitration if they did not notify the employer before the misconduct occurred?
- How do mental health disabilities, particularly substance use disorders, affect an employee's choice or control over conduct in the workplace?
BREAK (with refreshments) 2:15 PM - 2:30 PM
Panel 8 Sick Leave and Return to Work: Tackling credibility, self-reporting, and other thorny issues
2:30 PM - 3:45 PM
Lori Harreman Labour Relations Officer, Ontario Nurses Association
Robert Monti Director of Labour/EmployeeRelations and Compliance, Carleton University
The misuse of sick leave is a serious problem, with some workers mysteriously falling "ill" when a major sporting event, long weekend, or holiday is on the horizon. While some employers attempt to curb this misuse by demanding medical notes to substantiate every absence, doctors are pushing back, publicly calling on employers to stop burdening the health care system by requesting notes for routine illnesses. In this session, seasoned counsel and a medical expert will tackle common challenges that arise when managing sick leave, such as requesting appropriate medical information, responding to suspected misuse and facilitating the return to work process. Topics that will be addressed include:
- Obtaining medical information: What medical information can employers legally request from employees who take one or two "sick days?" Given the new amendments to the Ontario Employment Standards Act which prohibit employers from requiring medical certificates for employees taking personal emergency leave, what constitutes "evidence reasonable in the circumstances" that an employer is entitled to request? Are employees entitled to use a sick day as a "mental health day" or to take care of a sick child? If so, what medical evidence, if any, can substantiate the need for such an absence? How does the information required to justify longer absences – i.e. those necessitating the use of several weeks of "sick days" or application for short-term or long-term disability benefits – differ from the information required to justify an occasional sick day or two? What must employers do to protect employee privacy in the context of sick leave?
- Preventing misuse: How can employers prevent misuse of sick leave without violating employees' privacy rights? If an absent employee is observed playing sports or doing yard work, is this activity evidence of sick leave fraud? When, if ever, is it appropriate for an employer to conduct covert surveillance of an employee suspected of sick leave fraud? What is the potential liability of an employer who unjustly accuses an employee of sick leave or disability benefit fraud? Will arbitrators invariably uphold a termination of an employee who has abused sick leave?
- Return to work: What are the obligations of the employer, the union, and the insurer (if applicable) to an employee who has been absent from work due to illness for a substantial period? What obligation do any or all of these parties have to contact the employee for updated medical information or to facilitate a return to work? Where is the line between maintaining appropriate contact to receive medical information necessary to assess return to work and accommodation options on the one hand and harassing an employee on the other? What type of medical evidence is needed to facilitate a return to work? What are the key elements of a return to work transition plan?
CONFERENCE ENDS 3:45 PM