Tuesday, 19 February 2013

Reviewing the Ontario Human Rights System

A report recently submitted by the Ontario Human Rights Review to the Honourable John Gerretsen, Attorney General of Ontario advocates for some potentially profound changes to the human rights system in this province. The report was prepared by Andrew Pinto, a lawyer appointed by the province to take stock of the human rights system. In Pinto’s determination the human rights system in Ontario is a passably decent system, but one which has much room for improvement. In the report, Pinto made a total of 34 recommendations to improve the system. Two particular aspects of the report stand out.

“Significantly increased” Damage Awards

Recommendation 10 encourages a substantial increase in the available damage awards in cases of discrimination, stating:

The Tribunal should reconsider its current approach to general damages awards in cases where discrimination is proven. The monetary range of these awards should be significantly increased.

If Pinto’s advice is heeded and the recommendation helps to reform and increase the upper limits of damages that may be awarded in discrimination cases, the change will have a tremendous impact on employers and workers alike. Such an increase could have the positive effect of encouraging employers to exercise more diligence in preventing discrimination from occurring in the workplace. Take, for instance, the case of Garrie v. Janus Jones, where a disabled employee who did nearly identical work to the non-disabled employees was paid only $1.25 per hour, much less than the non-disabled employees who received minimum wage.

Worse still, the $1.25 an hour paid to the disabled employees represented a raise from the $1.00 per hour “training honourarium” the disabled worker(s) had been paid! This is where action on Recommendation 10 could be especially advantageous.  If the potential costs of damage awards outweighed the financial benefits of discriminating against employees, discrimination simply wouldn’t make good business sense and employers would be prompted to treat employees fairly. In other words, if ethics will not guide some employers, perhaps fear of higher damage awards will be sufficient incentive to treat employees with dignity and respect.

The Jones case would never have occurred if Janus Jones Inc. was a unionized workplace where, apart from the protection of the collective agreement, the complainant would have had additional recourse to arbitration grievance procedures. In this respect, the Jones case is but another testament to the enduring importance of organized labour.  The Jones case may be a good example, but maybe it can still serve some good as a horrible warning of the gross power imbalance between employers and employees that exists when the employees are not unionized.

Mandatory Workplace Human Rights Policies

As discussed in an earlier post, the Bill 168 amendments to the OHSA now require employers to have a workplace violence and harassment policy in place. Pinto’s report suggests it may be advisable for employer’s to be required to have workplace human rights policies. On its face, it is hard to disagree with Pinto’s suggestion.

However, if a new Bill is created to mandate workplace human rights policies, it must not carry the same failings as Bill 168. The Bill 168 amendments have resulted in much uncertainty as to the Ontario Labour Relations Board’s ability, or lack of ability, to protect employees from employer reprisals. If workplace human rights policies become statutorily mandated, any Bill requiring such policies must clearly stipulate that employer’s cannot seek reprisals against employees who make complaints under those same policies. Like violence and harassment policies, human rights policies are too important to be mired in confusion. Pinto’s suggestion is a sound one, but only if properly crafted by the Legislature.

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