Publication Name: Case In Point

Court of Appeal for Ontario Upholds HRTO Finding of Racial Profiling, Clarifies Test Applicants Must Meet to Establish a Prima Facie Case of Discrimination

· 7 min read

The Court of Appeal for Ontario has set aside a decision of the Divisional Court and upheld a decision of the Human Rights Tribunal of Ontario (“HRTO”) which found that race and colour were factors in a librarian’s decision to ask the applicants for identification when they were using a lawyers’ lounge operated by the…

Majority of SCC Finds Employer Exceeded its Management Rights in Implementing Random Alcohol Testing Policy

· 1 min read

Today, a majority of the Supreme Court of Canada upheld an arbitration award which concluded that a random alcohol testing policy for use in a safety sensitive workplace was not justified. In the absence of evidence of an existing workplace alcohol use problem, it concluded that a dangerous workplace was not, on its own, reason…

Is it Appropriate to Reinstate an Employee Whose Employment Was Terminated as a Result of Sexual Harassment?

· 3 min read

In Professional Institute of the Public Service of Canada v. CEP, Loc. 3011, the Ontario Divisional Court concluded it was not. The grievor, a mail room clerk with six years seniority, tried to kiss a female cleaner. When she pushed him away, he grabbed her buttocks. The female worker reported the incident and stated that…

A Lower Cover Charge for Women on “Ladies Night” is not Discriminatory

· 2 min read

In the recent decision Maclean v. The Barking Frog, Mr. Maclean brought an application to the Human Rights Tribunal of Ontario in which he alleged that a bar discriminated against him by charging men a higher entry fee than women on “ladies night.” The application was dismissed after a summary hearing on the basis that…

An Employer’s ESA Obligation During Notice Period Where Employees Cannot Work During That Period

· 4 min read

Arbitrator Randy Levinson recently found that an employer complied with the provisions of the Employment Standards Act, 2000 (“ESA”) by providing written notice of termination, rather than termination pay, to two employees who could not work during the termination notice period due to disability. The case involved the termination of two employees who were on…

New High Water Mark for Punitive Damages Award: $4.5 Million

· 3 min read

A recent decision of the Court of Queen’s Bench for Saskatchewan, which granted an injured worker $4.5 million in punitive damages, has garnered considerable media attention. The plaintiff, Mr. Branco, was a Canadian citizen. He sued his employer (Kumtor, owned by Saskatchewan-based Cameco) and insurers AIG and Zurich Life in relation to benefits arising from…

Saskatchewan Court of Appeal Finds Right to Strike Not Protected by Freedom of Association Guarantee in Charter

· 2 min read

A five-member panel of the Saskatchewan Court of Appeal has overturned a lower court decision which had found in part that restrictions on the right to strike in The Public Service Essential Services Act infringed the freedom of association guarantee in section 2(d) of the Canadian Charter of Rights and Freedoms. The Court of Appeal…

Federal Appeals Officer Confirms Work Refusal Must Be Based on More Than “Hypothesis or Conjecture”

· 2 min read

The Occupational Health and Safety Tribunal Canada has found that there was insufficient evidence of radiation contamination on parcels arriving from Japan after the Fukushima nuclear incident in 2011 to warrant a work refusal at a mail sorting facility. For a reasonable expectation of danger to exist, there must be more than hypothesis or conjecture….