In finding that the policy was one which actually encouraged religious
freedom, the Federal Court of Appeal judicially stamped
recognition of the multicultural nature of Canada. In that respect,
the court held that religious protections for one group do not denote
a disregard for other groups, nor do they compel other individuals
to participate in, adopt or share the associated religious practices.
7. Defining Family Status
Johnstone v. Canada (Border Services Agency), 2014 FCA
The inclusion of “family status” in human rights statutes as a protected
ground is a recognition of the nature of modern Canadian families,
as well as the competing obligations they often face. However, the
scope of the “family status” protection has been a source of discord
amongst adjudicators. In Johnstone, the Federal Court of Appeal adopted
a broad interpretation of the concept, which has since become
one of the leading authorities on the analysis.
In Johnstone, an employer denied a mother’s request for a
modified work schedule that would permit making adequate arrangements
for the care of her child. In finding that the mother
had been discriminated against on the basis of family status, the
court effectively determined that the concept applies not only to
the status of being a family member, but also to the associated legal
We have only just begun to feel the effects of Johnstone and expect
that it will have a broad application – in fact, the principles set
forth therein have already been equally applied to eldercare. Think
about that in the context of a country that has an aging population
soon to be the largest cohort of older persons in Canada’s history.
8. Abolishing Mandatory Retirement throughout Canada
For many years, human rights statutes throughout Canada did not
prohibit age discrimination in employment against persons older
than a prescribed threshold. Based on that exemption, some
employers developed mandatory retirement policies, which arbitrarily
ended the employment of employees at the age of 65.
In the last 25 years, provincial legislatures began repealing those
exemptions. That nationwide movement culminated in 2012, with
amendments to the age provisions of the Canadian Human Rights
Act. As a result, Canadian employers are now required to establish
that any differential treatment on the basis of age is either justified
as a BFOR, or permitted by a prescribed exemption in the applicable
legislation. These changes, coupled with the aging workforce,
have meant that who we think is too old to work has dramatically
9. Statutory Accessibility Standards for Persons
Although human rights statutes across Canada have long prohibited
discrimination on the basis of disability, few jurisdictions have
passed extensive legislation that imposes proactive accessibility
obligations on employers in relation to persons with disabilities.
In 2005, the province of Ontario enacted the Accessibility for
Ontarians with Disabilities Act (AODA), and became the first
Canadian jurisdiction to introduce a comprehensive statutory
scheme that seeks to develop, implement and enforce accessibility
The legislation imposes various obligations on certain employers
in Ontario, including:
■■ Notifying employees and job applicants about the availability
■■ Providing employees with accessible communication supports
and formats; and
■■ Documenting individual accommodation plans for employees
Other Canadian jurisdictions have recently begun to follow
Ontario’s lead and develop similar accessibility standards. In fact, the
province of Manitoba recently enacted its own legislative scheme,
the Accessibility for Manitobans Act. While the implementation of
AODA has not been without its challenges, it nevertheless is a signal
of a very different way of thinking about disability.
10. The Statutory Duty to Investigate Workplace
Harassment and Discrimination
It is one thing for an employee to have human rights protection,
but it is quite another to mandate employers with a legal
obligation to deal with breaches of these protections. This is
how we see the development of the legal obligation to conduct
workplace investigations into allegations of workplace harassment
and discrimination. The legal obligation has its roots
in human rights case law, where some human rights adjudicators
(but not all) determined that an employer was obliged
to investigate complaints as part of its obligation to provide
employees with a workplace free from harassment and discrimination.
There has also been movement in employment law
cases, where an employer’s failure to investigate has typically
triggered awarding of bad faith damages, or has grounded an
independently actionable tort.
As a result, there is now a body of case law on workplace investigation.
It deals with the circumstances under which an
investigation should be conducted, and the procedural content
of the employer’s obligation to conduct one, among other things.
This simply did not exist 25 years ago.
On Sept. 8, 2016, Ontario’s Bill 132 amended the Occupational
Health and Safety Act (OHSA), and imposed upon employers a
statutory duty to investigate complaints of workplace harassment.
In the absence of a satisfactory investigation, Ministry of Labour
inspectors may order an investigation be completed by a third party,
at the employer’s expense. This is the first statutory provision of
its kind in the country. n
Janice Rubin is co-founder and co-managing partner of Rubin
Thomlinson LLP. Titus Totan is an associate lawyer at Rubin
26 ❚ OCTOBER 2016 ❚ HR PROFESSIONAL