Healthcare & Human Rights Update

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In March 2021, we provided a Healthcare Update related to decisions released throughout the pandemic in the healthcare sector. The following are new cases of interest in healthcare and some cases of interest related to human rights.

This time, our update includes cases related to both Healthcare and Human Rights.

Healthcare Updates

Case about whether cancelled shifts are layoffs allowing for bumping rights

Renfrew Victoria Hospital v CUPE, Local 1548, (Kaplan, O’Byrne and Herbert, July 22, 2021) 2021 CanLII 64780 (ON LA)

The union filed a policy grievance alleging a violation of Article 9.09(g) & (d) of the Central Collective Agreement dealing with layoffs of a temporary or short-term nature. The union argued that when a full-time, part-time, or casual employee arrives at work and sometime thereafter has the remainder of their shift cancelled, they have been laid off and chain bumping rights allow this laid-off employee to displace any less senior bargaining unit employee anywhere in the Hospital for their remaining shift. The Hospital argued that bumping rights are restricted to full-time employees in the same classification and in scheduled shifts with the same start and finish time. The Board of arbitration partially allowed the grievance with respect for full-time employees. The Board found that article 9.09(g) allows full-time employees who have part of their shift cancelled because of a lack of work to bump and to receive overtime if that is the result. Further, there was no restriction in the collective agreement limiting bumps to the same classification so long as the full-time employee is immediately able to assume the job.

Case about whether Providing Information to a College Breached a Confidentiality Clause in Minutes of Settlement

Canadian Union of Public Employees, Local 566 v Brockville General Hospital (Jesin, August 5, 2021) 2021 CanLII 70483 (ON LA)

The union alleged that the hospital had breached the settlement of a grievance concerning the cessation of the grievor’s employment. The settlement provided that the employer would limit any statement about the grievor to his dates of employment, his last position held with the hospital, and his salary. The grievor sought registration with the College of Licensed Practical Nurses of Manitoba and required the employer to complete a form about his previous employment. The hospital’s Manager of People Services completed the form which stated that the grievor had been terminated from his employment. The College sought further information regarding the grievor’s prior employment and the grievor sought legal advice about how to respond without breaching the settlement terms. Since his application was not completed in time, registration was not granted. Arbitrator Jesin upheld the grievance finding that the employer had breached the settlement terms when it disclosed information it was not entitled to disclose. However, the grievor contributed to the breach by asking the hospital to complete the form and then failing to review it before submitting it to the College.  The grievor was not entitled to damages as he had suffered no monetary loss other than the out-of-pocket legal expenses incurred to assist in dealing with the application. He was however entitled to those legal expenses in the amount of $1,158.25.

Human Rights Updates

$50,000 in Damages awarded by Labour Arbitrator where Employer Vicariously Liable for the Discriminatory Behaviour of their Employees

Con-drain Company (1983) Ltd. v Labourers’ International Union of North America, Local 183, (Burkett, June 15, 2021) 2021 CanLII 53321 (ON LA)

A grievance was filed on behalf of a member of the Labourers’ International Union of North America (the “Union”) who is gay, Muslim, physically disabled, and working in the construction industry. The Grievor claimed that he was mistreated, discriminated against, and harassed by his direct supervisor over a prolonged period of time. The Grievor also alleged that the supervisor was always aware of their sexual orientation, physical disability, and religion.

Given that the alleged incidents took place in the context of construction work, the arbitrator first confirmed that the Ontario Human Rights Code (the “Code”) applied equally to all employers in the province, including construction employers. After several factual findings regarding the alleged mistreatment, discrimination, and harassment, the arbitrator declared that Con-Drain Company (the “employer”) was (vicariously) liable for the acts of its supervisors. The arbitrator made several orders regarding systemic remedies, such as requiring the employer to mandate that all management staff engage in training regarding workplace harassment and discrimination, at the employer’s expense. Additionally, the arbitrator ordered the employer to pay the Grievor an amount of $50,000 in human rights damages.

Case about whether a “permanent residence” requirement for employment constitutes discrimination

Imperial Oil Limited v. Haseeb, 2021 ONSC 3868 (CanLII)

This was a case concerning the requirement of an employer, Imperial Oil Limited (the “employer”), that a prospective employee be eligible to work permanently in Canada. The employer was seeking assurance that the prospective employee, Muhammad Haseeb (“Haseeb”), when hired and trained, would be able to remain with the company long-term. Haseeb was unable to confirm that he would be able to work permanently in Canada and did not end up getting the job. Haseeb filed a complaint with the Human Rights Tribunal of Ontario (the “HRTO”), for which there was a finding that the actions of the employer constituted “direct discrimination” based on the ground of “citizenship”. In essence, the HRTO expanded the ground of “citizenship” to include “permanent residence”.

After reviewing the HRTO’s decision, the Ontario Divisional Court (the “Court”), however, disagreed. The Court indicated that the HRTO’s decision extended the “citizenship” ground in a way that was not justified or sustainable. The Court held that there can be no finding of direct discrimination based on a requirement that an employee be permanently resident in Canada. Permanent residence is not a ground identified in the Ontario Human Rights Code, therefore there can be no prima facie case demonstrating direct discrimination resulting from such a requirement.

Cases about pressure to sign Minutes of Settlement

The Human Rights Tribunal of Ontario (the “Tribunal”) recently decided two cases in which employees brought applications alleging violations of the Ontario Human Rights Code (the “Code”) in their place of work. In Lontok v. Loblaws oa Zehrs Store, 2021 HRTO 523 (CanLII), Bridget Lontok (“Lontok”) brought an application against her employer, Loblaws oa Zehrs Store (“Loblaws”), claiming that Loblaws contravened the Code during her employment. In Sterling v. Dollarama LP, 2021 HRTO 183 (CanLII), Louis Sterling (“Sterling”) brought an application claiming that his employer, Dollarama LP (“Dollarama”), violated the Code by allegedly discriminating against him based on various protected grounds in the Code. Before either application could be heard, the Tribunal dismissed the applications at preliminary hearings with an abuse of process finding. So, what happened here?

Both Lontok and Sterling were bound by documents that prevented them from pursuing their human rights applications; however, they claimed that they signed their documents under duress. In the Lontok case, Lontok was involved in a grievance proceeding in which she signed Minutes of Settlement that included terms resolving all issues arising from her application and directing Lontok to withdraw her human rights application to the Tribunal. However, Lontok did not withdraw her application and claimed that she was under duress when she entered the settlement and that the legal doctrines of undue influence and unconscionability applied. In Sterling, Sterling was terminated from his employment without cause and was offered a severance package that required him to sign a “full and final release”. He accepted the offer at the time and signed the “full and final release”; however, in his application to the Tribunal, he claimed that the release was vitiated because he signed it under economic duress and did not have access to independent legal advice before signing it.

In both cases, the Tribunal considered the test to establish duress. To establish duress, applicants must establish that they were subject to illegitimate pressure applied to such a degree as to amount to “a coercion of the will.” In both cases, the Tribunal found that the applicants failed to demonstrate that they were under duress at the time of the signing of their documents and that there was an abuse of process. More specifically, in Lontok, the Tribunal wrote that Lontok could not establish duress, undue influence, or unconscionability and that settlements are often made in stressful situations and under pressure. However, not all pressure rises to the high threshold for establishing duress.