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SSM finishes closing arguments in sex-ed case

Feb 20, 2019

Over the course of 10 hearing days, SSM lawyers Mika Imai and Marcus McCann argued a landmark case at the Human Rights Tribunal of Ontario – that the Ontario government’s decision to retreat to the 1998 sex-ed curriculum was discriminatory and contrary to the Human Rights Code.

SSM was supported by three interveners – the Ontario Human Rights Commission, the Elementary Teachers’ Federation of Ontario and Justice for Children and Youth.

The Applicant at the heart of the case, AB, is an 11-year-old trans girl. Both AB and her mom testified at the Tribunal, speaking about the message sent by the government’s actions and AB’s fears about what she’ll be taught this year in sex-ed. In addition, five expert witnesses spoke to the impact of the government’s decision on LGBTQ2+ students more broadly, as well as the chilling effect it would have on teachers.

Through the course of the hearing, it was revealed that the government knew the 1998 curriculum included no mandatory learning on homophobia, sexual orientation, gender identity and gender expression. It also came out that the government had considered removing sex-ed classes completely for the 2018-2019 year while it developed a new curriculum.

The Tribunal intends to release a decision in the Spring. We will provide an update at that time.

Photo by Alex Guibord; cc.


Employer obligations under the Accessibility for Ontarians with Disabilities Act

Aug 16, 2018

The Accessibility for Ontarians with Disabilities Act, 2005 (AODA) seeks to make Ontario accessible for persons with disabilities by 2025. The Act focuses on various private and public spaces, including in employment, customer service and transportation. While it’s been more than 10 years since the law first came into force, many workplaces still aren’t compliant.

It’s important for Ontarians, whether bound by or the beneficiary of the AODA, to have some basic knowledge of what the Act requires. In the workplace context, some of the key employer obligations include:

  • Notifying applicants during recruitment about the availability of accommodations
  • Notifying new hires about accommodation policies
  • Accounting for the accessibility needs of employees with disabilities in performance management and advancement decisions
  • Developing a process for individual accommodation plans (note – this doesn’t apply to small organizations)
  • Providing information in an accessible format and with communication support to those employees with disabilities who request it

A failure to comply with these, and any other AODA standards can lead to additional reporting requirements and/or penalties.

Symes Street & Millard LLP has extensive experience in preparing and enforcing employment policies. If you are an employer or an employee seeking information on your obligations under the AODA, contact us [hyperlink] to discuss your options.

By Mika Imai; photo by Steve Johnson, cc.


SSM is Challenging Ontario’s Sex-Ed Curriculum

Aug 13, 2018

The Ontario government has announced plans to retreat to the sex-ed curriculum developed in 1998. Our firm is challenging this decision at the Human Rights Tribunal of Ontario arguing, on behalf of an 11-year-old trans student, that the policy is discriminatory and will cause significant harm to LGBTQ2+ students.

See below for coverage of the case:

Photo by torbakhopper; cc.


SSM Former Client Makes Documentary

Jul 12, 2018

Mika’s former client, Joshua Ferguson, is making a documentary about their fight for recognition of their non-binary gender on government documentation. You can find Joshua’s trailer here:

They Are Joshua – Official Trailer from Turbid Lake Pictures on Vimeo.


Weed and the Workplace

Jul 04, 2018

Recreational marijuana is expected to be legal in Canada as of October 17, 2018. In preparation for this landmark change, we wanted to give employers and employees a heads up on what it might mean for them.

At the outset, it’s important to keep in mind that marijuana being legal doesn’t mean that employees suddenly have free rein to use it at work. We can expect that, as with alcohol, most employers will prohibit the use of marijuana in the workplace and, generally speaking, this will be within their rights.

The bigger question is to what extent an employer can regulate marijuana-use outside work hours. Unfortunately, there’s no simple answer. When considering an employer’s approach to marijuana, courts and tribunals balance a variety of interests, such as an employer’s right to a productive workforce and an employee’s rights to privacy and the protection of their human rights.

Because of these different considerations, an employer who relies on across-the-board mandatory drug testing policy is more likely to run into trouble. Having said that, if the workplace is safety-sensitive (e.g. truck driving), an employer will have a lot more leeway to regulate marijuana use.

Employers also need to tread carefully when it comes to zero-tolerance policies on marijuana use. If an employer prevents all off-duty use of marijuana and some employees use it medically, this could contravene the Ontario Human Rights Code if accommodation was a reasonable alternative. Employers should therefore be careful to approach recreational and medical marijuana differently.

We can expect the law in this area to evolve as marijuana becomes more accessible and therefore, presumably, much more widely used. We will continue to keep you updated on these changes.

At Symes Street & Millard LLP, we have extensive experience developing workplace policies for employers and challenging unreasonable policies for employees. If you have questions about your legal rights and obligations, contact us to discuss your options.

By Mika Imai; photo Torben Hansen, cc.


Employers Must Tread Carefully in Ending Benefits for Employees Aged 65+

Jun 18, 2018

It has been more than a decade since mandatory retirement has been prohibited in Ontario. What has been allowed to continue, however, is the termination of group benefits for workers aged 65+. This remnant of age discrimination has been severely curtailed with the recent release of Talos v Grand Erie District School Board.

In Talos, the Human Rights Tribunal of Ontario found that the School Board’s decision to terminate an employee’s group benefits at 65 (even though he continued to work full time) created a disadvantage based on age and reinforced the view that older workers were less valuable members of the workforce. The Tribunal did not accept the School Board’s argument that providing such benefits were cost-prohibitive.

While this landmark decision doesn’t automatically overturn other benefit plans with age restrictions, it does leave open a much easier route to challenging them.

Lawyers at Symes Street & Millard LLP are experts in human rights law. If you think that you have been discriminated based on age or are an employer uncertain of your obligations under the Ontario Human Rights Code, contact us to discuss your options.

By Mika Imai; photo by Feliphe Schiarolli


TWU free to teach what it wants, no matter what SCC says

Jun 13, 2018

Trinity Western University can open a law school no matter what the Supreme Court decides. It’s important that partisans on both sides keep this simple truth in mind as Canada’s top court prepares for June 15, when it will release two decisions in cases which pit an evangelical Christian university against provincial law societies.

At the centre of the cases is the school’s community covenant, which forbids intimacy outside of the bounds of heterosexual marriage on and off campus for the duration of a student’s studies. The covenant amounts to an extra burden on lesbian, gay, bi, trans and queer (LGBTQ) students and law school applicants.

The upshot of Trinity Western’s requirement would be an unequal number of seats in Canadian law schools for LGBTQ students (who, for the most part, cannot sign the covenant in good conscience) compared to their heterosexual peers. But the truth is, no one is trying to stop that outcome.

No one has forbidden the university from opening a law school. No one has challenged the school’s right to teach what it wants to who it wants — although, to be fair, the B.C. government has for the time being withheld its accreditation in the face of messy litigation. That means that while Trinity Western can teach what it wants, it can’t call the result a law degree. The government promised to revisit the law school’s accreditation after the Supreme Court decision.

It was not in the power of the law societies to deny a law school to Trinity Western even if it had wanted to. The decisions under review were made by the law societies of Ontario and BC, respectively. In both cases, the law societies voted to withhold automatic admission to the provincial bar for graduates of Trinity Western’s proposed law school. Alternative routes to practice for Trinity Western grads were not canvassed at the time of the decisions.

And to be clear: no law students were harmed in the making of this decision, since the law school never got off the ground. It never admitted students, let alone graduated them.

The Charter and the BC Human Rights Code protect the right of religious communities to teach what they want to who they want. Anyone can set up shop under a eucalyptus tree and peddle their intellectual wares. Such schools can teach that homosexuality is sinful, that women should be subordinate to men, and that other religious beliefs amount to Satanist witchcraft (no offence to Satanists and witches). Many such classrooms exist in Church basements and other religious meeting places. And there’s nothing wrong with that.

The question posed to the Supreme Court is, essentially, to what degree are secular institutions required to provide public benefits like accreditation to such classrooms — especially when classrooms offend secular values of diversity and pluralism.

In the United States, the question was answered thirty-five years ago, when Bob Jones University sued the U.S. government for revoking its tax-exempt status. Bob Jones allowed Black students to attend only if they were already married, in an effort to prevent intermarriage between its white students and Black enrollees. The University claimed the protection of religious freedom.

The U.S. Supreme Court’s conclusion: you are free to have your discriminatory university, but the state is not required to heap benefits on it.

The truth is, a law department brings money and prestige to a university campus, especially now that some law schools charge upwards of $30,000 a year to attend. But that money and prestige is linked to graduates’ ability to practice in the Canadian jurisdiction of their choosing, especially Ontario (the largest market for legal services in Canada) and B.C. (a province from which the proposed school would presumably draw many of its applicants).

The implications of this should help temper dire warnings on both sides.

For the university’s supporters, they would do well to admit that the cost of non-accreditation is primarily monetary. Trinity Western is free to open a money-losing religious law program, but they don’t want to do that. They want a cash cow, and they want the state’s imprimatur on it.

For critics of the proposed law school, we must stop telling religious adherents that they are forbidden from practicing what they preach. Their rights are protected by the Charter to the same degree as LGBTQ rights are. As the court has said on multiple occasions, there is no hierarchy of rights. We must candidly admit that the law societies did not and could not act to prevent the law school’s opening.

Recognizing what is at stake — and also what isn’t at stake — will help us to take stock of the Supreme Court’s decision, whatever it is, with clear eyes and a level head on Friday.

*

Marcus McCann (Symes Street & Millard) and Angela Chaisson (Chaisson Law) are lawyers in private practice. They represented LGBTOUT, a group of LGBTQ university students, as an intervenor before the Supreme Court of Canada in Trinity Western University v Law Society of Upper Canada. 

Photo by Eflon (via Flickr) used under cc license


SSM Client Receives Ontario’s First Non-Binary Birth Certificate

May 08, 2018

On May 12, 2017, Dr. Joshua M. Ferguson (they/them pronouns) applied for a non-binary birth certificate. When their application was delayed by Service Ontario, Symes Street & Millard LLP and Dewart Gleason LLP jointly filed a human rights application on Dr. Ferguson’s behalf alleging discrimination on the basis of sex and gender expression.

After reaching a successful resolution with the Government, Dr. Ferguson held a press conference yesterday announcing receipt of the first ever Ontario birth certificate with an “X” gender-marker. Ontario is now the only jurisdiction in the world to provide four gender options on a resident’s birth certificate: M, F, X or nothing. This is a monumental change for Dr. Ferguson and the trans community more broadly.

Click here for Dr. Ferguson’s editorial in the Toronto Star and go to 17:25 seconds in this news clip for Dr. Ferguson’s on-camera interview at the CBC.

Symes Street & Millard LLP has a long history of supporting systemic legal change for the LGBT community. If you believe you have been discriminated against, contact us to discuss your legal options.


Equal Pay for Equal Work Provisions Now in Effect

Apr 30, 2018

As of April 1, 2018, employers are now required to pay employees equal pay for equal work. We discussed this change in an earlier post on Bill 148, the Fair Workplaces, Better Jobs Act, 2017, but it was only earlier this month that the provision came into effect.

Under the new provision, employers are prohibited from paying employees different wages based on employment status. For example, this prevents employers from paying part-time employees a lower wage than full-time workers provided they’re doing the same or similar work.

Employees who suspect their employer is not complying with the requirement for equal pay can request that their employer review their pay for compliance with the Employment Standards Act. An employee who does so cannot be punished by their employer.

Employees should note, however, that this provision does not protect them if the difference in wage is based on seniority, required skills or different working conditions.

Symes Street & Millard has extensive experience drafting employer policies to comply with changing legal obligations, as well as supporting employees in seeking their legal entitlements. If you would like to discuss your options, please contact us.

By Mika Imai. Photo by Jonathan Kos-Read, cc.


Is my ex-boss allowed to tarnish my reputation?

Mar 28, 2018

When an employment relationship ends, things can turn nasty. We often get calls from employees who suspect their former employer is smearing their name. Talk of this nature is upsetting and can make re-employing difficult, but is it defamation?

Defamation refers to activity that harms another person’s reputation through communication with a third party. Defamation captures two types of conduct:

  1. Libel: Defamation with a permanent record (e.g. email, video, newspaper); and
  2. Slander: Defamation with no permanent record (e.g. spoken statement or a hand gesture).

In an employment context, defamation might include damaging statements made in an email to all staff, a phone call to a prospective employer or a report to a regulatory organization. Such statements alone, however, aren’t enough to succeed in court. An employer has several defences to a defamation claim, including “truth” and “qualified privilege”.

The defence of truth is fairly straightforward – if the damaging statement is true, the employer won’t be held liable. For example, if your former employer tells your industry peers that you called a colleague stupid, and you did, you’ll have a hard time arguing defamation.

Qualified privilege protects statements that, while potentially damaging to an employee’s reputation, are non-malicious and well-intentioned. This defence is typically used to protect subjective statements. For example, a manager may tell a prospective employer that you performed poorly. Unless you can show that this statement was malicious, the employer is unlikely to be liable. Qualified privilege would also capture internal company communications, such as your manager informing human resources of your termination so they can update their records.

Because of these defences, employees often have a hard time obtaining damages for defamation against their former employers. This is not to say that it doesn’t happen. In a case earlier this year, Hampton Securities Limited v Dean , an employee received $25,000 in damages for defamation after her employer reported to her regulatory body that she had been terminated for, amongst other reasons, unauthorized trading. The Court found that the accusation had a devastating impact on the employee and was indefensible.

For one, the statement was untrue. The employee was not terminated for unauthorized trading but for refusing to contribute to her reserve account. Secondly, in submitting the report, the employer either knew that they weren’t telling the truth or were reckless in that regard. As a result, the statement exceeded the legitimate purposes of reporting to a regulator.

Dean is a warning for employers who might exaggerate the reasons an employee was terminated. Employers must be cautious about making statements that could harm the reputation of a former employee. If a court finds that the statement was untrue or exaggerated and was not made for a bona fide and legitimate purpose, the employer could be found liable for defamation.

Symes Street & Millard has extensive experience obtaining compensation for employees whose rights have been breached and advising employers on their legal obligations. Contact us to discuss your options.

By Mika Imai; photo by Simone Lovati, cc.

 


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