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:
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.
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:
- Libel: Defamation with a permanent record (e.g. email, video, newspaper); and
- 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.
McCann on reframing the queer legal project
Mar 06, 2018
Marcus McCann spoke to the University of Victoria Faculty of Law on January 24, 2018 about lesbian, gay, bi, trans and queer (LGBTQ) rights, and the limits of a narrow focus on equality. Here is an excerpt from the introduction to his talk.
You’ve probably learned about LGBTQ legal cases in your Constitutional Law classes. These are cases in which courts found that discrimination on the basis of sexual orientation is analogous to discrimination on the basis of sex, race, place of origin, and therefore that differential treatment on the basis of sexual orientation is impermissible. Discriminatory treatment is impermissible under Section 15 of the Charter, when it comes to state action, and it is impermissible under provincial human rights codes, in certain fundamental areas of public life, like housing, employment and the provision of services customarily available to the public. I don’t want to underplay the usefulness of equality and non-discrimination; the application of the Human Rights Code is a big part of my daily work.
But there is another aspect of this lineage in which LGBTQ people have been on the vanguard of changing cultural and legal perceptions about sex. And not just the sodomy law. This through-line in our history includes opposition to the 1981 Bathhouse Raids, pornography prosecutions, the seizure of material at the Canadian border, the Pussy Palace raid, and the broad criminalization of people living with HIV. What all of these battles have in common was a need to assert that a non-normative sexual practice is merely “benign sexual variation” and not morally blameworthy behaviour. And not just gay sex was implicated in these battles, but also promiscuity, public sex, pornography, BDSM, and so on.
It’s not just one law we keep getting caught up on. LGBTQ people have often found themselves at odds with a variety of laws which endorse the dominant view of sexuality. That is, in part, because the Canadian justice system has tended to see same-sex sexual activity as particularly scandalous, particularly obscene, particularly worthy of moral opprobrium. Charges related to LGBTQ sexuality have varied over time, and have included buggery, gross indecency, public indecency, indecent theatrical performances, operating or being a found in bawdy house, nudity, disorderly conduct, and a raft of non-criminal charges and by-law infractions. Authorities often use seemingly neutral laws (liquor license, fire code, health and safety, importation guidelines) to target sexualized and LGBTQ spaces.
These are also battles that tend to be less easily defended along equality lines. Were the bathhouse raids only wrong because they were targeting queer people, or were they also wrong because the state has no business interfering with the sexual activities of consenting adults?
There are good reasons why we should pay special attention to sex in this way. Firstly, autonomous sexual decision making is important to the integrity of the person and an aspect of human dignity. Secondly, sexual regulation is an area in which the government seems especially eager to legislate. In the last 10 years, Parliament has introduced a steady stream of new laws about sex — for instance, by increasing penalties for sexual offences, introducing the offence of internet luring and raising the age of sexual consent, new legislation about sex work. Finally, sexual regulation is especially in need of an anti-majoritarian counterweight because of what Brenda Cossman calls the “ick factor” — a tendency to want to regulate or criminalize those practices which fall outside our ordinary understandings of good (monogamous, heterosexual, and otherwise normative) sex.
If sexual autonomy and sexual expression were viewed by the court as representing positive value, it would not cash out in absolutist terms that “no sexual regulation is good regulation”. Instead, it would require the courts to be frank about balancing, including what we are giving up when we regulate sex.
My comments today aren’t about identity, but nonetheless I think it’s worth saying that we all have a right to demand to see ourselves reflected in the law. What are the ways in which we could begin to see sex-positive feminism and queerness represented in the jurisprudence? We need to do that work.
Marcus McCann has been involved in a number of high-profile LGBTQ cases, including appearing at the Supreme Court of Canada in Trinity Western University v Law Society of Upper Canada; organizing legal defences for men caught in a 2016 cruising sting in Marie Curtis Park; and winning the release of secret documents used in HIV prosecutions. He primarily practices in the areas of employment and human rights.
Women Lawyers’ Professional Skill Enhancement Training
Dec 18, 2017
Beth Symes travelled to Kathmandu, Nepal in 2015 and 2017 to train women lawyers. The program is coordinated by Women Lawyers Joining Hands. Alongside experts in Nepal, Canada, Australia, France, Germany and the United States, Beth has developed and delivered training to approximately 60 Nepalese lawyers.
The participants reflect on the importance of the training not only in providing a skill sharing opportunity, but also in developing strategies to address sexism in the workplace.