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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.

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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.

 


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.

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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.


Substantial Changes to Workers’ Rights

Nov 27, 2017

On November 22, 2017, the legislature passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017. The Bill makes several changes to employer obligations and employee rights under the Employment Standards Act (the “ESA”).

Symes Street & Millard has been closely following the Bill and written about it here and here.

The final version of the bill includes various amendments to the ESA, such as

  • New paid leave entitlements (e.g. domestic/sexual violence and critical illness);
  • New obligations on employers when it comes to scheduling;
  • Changes to public holiday pay and on-call pay;
  • Increased vacation entitlements; and
  • A higher minimum wage

Significantly, the Bill also introduces an employee’s right to “equal pay for equal work”. This means that an employer cannot pay employees who are doing “substantially the same” work different rates of pay except in specific situations (e.g. based on seniority). The legislature appears to be targeting the practice of some employers to pay part-time workers a lower rate of pay than full-time workers.

Many of these changes come into force on January 1, 2018.

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.

Photo by OFL Communications Department used under CC license.


Ontario Proposes New Workplace Leave

Oct 25, 2017

The Ontario Legislature is currently considering a new domestic/sexual violence workplace leave. If passed, Bill 148, the Fair Workplaces and Better Jobs Act, 2017, would permit workers to take a leave of absence of up to 17 weeks per calendar year if they or their child experiences or is threatened with domestic/sexual violence.

This change would add to the protections already afforded to employees based on family status and disability (such as due to domestic violence-related injury) under the Ontario Human Rights Code.

While the proposed expansion is a step in the right direction, there are several restrictions on the entitlement, including:

  • Employees must have at least 13 consecutive weeks of service;
  • Employers have no obligation to pay employees during the leave; and
  • The leave can only be used for the following purposes:
    • Seeking medical attention
    • Obtaining assistance from victim services
    • Undertaking professional counselling
    • Relocating; and
    • Seeking legal or law enforcement assistance.

Bill 148 has passed second reading and may be subject to further changes. We’ll monitor and continue to post about the Bill as it continues its way through the legislature.

If you or a family member have experienced domestic or sexual violence and are not being accommodated at work, please contact us here. Symes Street & Millard has extensive experience obtaining accommodations and/or compensation for employees whose rights in the workplace have been breached.


Firm heads to the Supreme Court of Canada (again)

Sep 22, 2017

When the Supreme Court of Canada hears the controversial case of Trinity Western University v the Law Society of Upper Canada, Symes Street & Millard will be there.

The case is the latest chapter in the saga of an evangelical Christian university which has applied to open a new law school. The school would forbid students from same-sex intimacy, effectively barring students from the Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community from attending.

Symes Street & Millard represents LGBTOUT, Canada’s oldest university organization for LGBTQ people. LGBTOUT’s undergraduate members represent the pool of potential applicants to law schools. Those members who apply would face discrimination from Trinity Western’s admissions policy. Symes Street & Millard Associate Marcus McCann and lawyer Angela Chaisson are acting as co-counsel. The written submissions of LGBTOUT — and all the parties and intervenors — can be found here.

Symes Street & Millard has previously appeared before the Supreme Court on numerous occasions, including here, here, and here. Ben Millard recently represented the United Church of Canada before the Supreme Court in Whatcott, a human rights case about anti-gay leafleting.

The firm is perhaps best known for the Supreme Court case Symes v Canada, in which Beth Symes challenged parts of the Income Tax Act which excluded small business owners from deducting child care costs as a business expense. Symes argued at that the exclusion was a barrier to women’s full participation in the workforce.

We will post further updates on this case after the hearing and after the Court issues its reasons.

Symes Street & Millard represents its clients before tribunals and all levels of court, including the Supreme Court of Canada. The firm has expertise in equality and human rights matters. Contact us to book a consultation.

Photo by SA/EMDX used under CC licence


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