Orillia Case Factum

Court File No. C28113

COURT OF APPEAL FOR ONTARIO

Appellant

ONTARIO NURSES' ASSOCIATION

-and-

ORILLIA SOLDIERS MEMORIAL HOSPITAL and

SAULT STE. MARIE GENERAL HOSPITAL

Respondents

FACTUM OF THE

COUNCIL OF CANADIANS WITH DISABILITIES

BRIAN SHELL

Barrister & Solicitor

615 Lonsdale Road

Toronto, Ontario M5P 1R8

Brian Shell

(416) 656-6003 Tel.

(416) 654-8469 Fax

Solicitor for the Council of Canadians

with Disabilities

Court File No. C28113

COURT OF APPEAL FOR ONTARIO

BETWEEN:

ONTARIO NURSES' ASSOCIATION

Appellant

- and -

ORILLIA SOLDIERS MEMORIAL HOSPITAL, and

SAULT STE. MARIE GENERAL HOSPITAL

Respondents

FACTUM

COUNCIL OF CANADIANS WITH DISABILITIES

PART I - NATURE OF PROCEEDINGS

1. The Council of Canadians with Disabilities (the "CCD") sought and was granted leave of the Court of Appeal by Order of the Honourable the Associate Chief Justice of the Court of Appeal dated March 4. 1998 to intervene in these proceedings as a friend of the court. The Order is included as an Appendix at the end of this Factum. The CCD submits that this case raises the following question of concern to all Canadians and especially to people with disabilities:

Should an employee with a disability be denied benefits which other employees enjoy under a collective agreement or an employment contract because she is disabled?

The socio-economic context - people with disabilities in Canada

2. Like the Supreme Court of Canada, the CCD is well aware of the "unfortunate truth", in the language of LaForest J. speaking for the Supreme Court in the October 9, 1997 judgment in Eldridge, that in contemporary Canada people with disabilities continue to be marginalized, excluded and/or removed from the labour force, and denied opportunities for advancement and social interaction. While there is an emerging consensus that to a significant extent the situation of historical disadvantage which people with disabilities face is a matter of paternalistic attitudes of pity and charity, the is also an unsatisfying awareness that too often access to the social mainstream has required "their emulation of able-bodied norms" rather than support through appropriate accommodation measures mandated by human rights legislation across Canada and by the equality provisions of the Canadian Charter. For these reasons, LaForest J. commented:

One consequence of these attitudes is the persistent social and economic disadvantage faced by the disabled. Statistics indicate that persons with disabilities, in comparison to non-disabled persons, have less education, are more likely to be outside the labour force, face much higher unemployment rates, and are concentrated at the lower end of the pay scale when employed; see Minister of Human Resources Development. Persons with Disabilities: A Supplementary Paper (Ottawa: Minister of Human Resources Development, 1994), at pp.3-4, and Statistics Canada. A Portrait of Persons with Disabilities (Ottawa: Statistics Canada, 1995), at pp. 46-49.

Eldridge v. British Columbia (Attorney General) and the Medical Services Commission, (1997) 151 D.L.R (4th) 577at p. 613 [hereinafter Eldridge]

See also Abella, Rosalie S. Report of the Royal Commission on Equality: Report of the Employment Equity Consultations [Ottawa, 1984] generally. See pp 38-46 for a discussion about disabled people and employment issues, including at p.39:

It is therefore essential to develop an approach to the employment problems of disabled persons that treats disability as tangential to, rather than definitive of, the individual.

The issue must be examined from the point of view of the individual who has disability rather than from the point of view of the assumptions of the employer.

See also Chapter 1 "Defining Equality in Employment" and at p. 5:

For disabled persons, there must be as full accommodation as possible and the widest range of human and technical supports. Workplaces must in all respects be physically accessible; flexible working arrangements must be available for those unable to work long hours; attendants and technical aids should be available for those who require them, and the necessary tax adjustments must be available both to employers and disabled employees. Pension and benefit schemes must be adjusted so as to encourage disabled persons to join the workplace, and transportation systems must be adequate to permit access to workplaces.

The Council of Canadians with Disabilities ("CCD")

3. The CCD is a national not for profit umbrella organization representing Canadians with disabilities. Founded in 1978 as the Coalition of Provincial Organizations of the Handicapped ("COPOH") until it changed its name in January 1, 1994, CCD consists of eight provincial member groups and six national disability organization which in turn represent approximately 163 local organizations. The CCD was established by people with disabilities to create a national voice for Canadians with disabilities and to promote their full participation and equal opportunity in Canadian society. The CCD has participated extensively across Canada in appellate litigation affecting people with disabilities.

PART II - FACTS

4. The CCD adopts the facts set out in paragraphs 2 - 36 of the Appellant's factum.

PART III - POINTS IN ISSUE, THE LAW AND ARGUMENT

5. CCD submits that this Court may be assisted by considering the questions posed in paragraph 37 of the Appellant's factum from the following perspective:

(A) In evaluating whether or not there has been prohibited adverse effect discrimination, did the majority of the Board of Arbitration and the Divisional Court err in drawing a distinction between the disabled employees absent from work "because of handicap" whose seniority accrual and benefit coverage ceased and, on the one hand, able-bodied employees voluntary absent from work whose seniority accrual and benefit coverage also ceases,

OR,

on the other hand, is the appropriate comparator all employees who continue to work in the bargaining unit who continue to accrue seniority and to receive benefit coverage.

(B) When faced with a choice of comparators, and having regard to the proper approach to and interpretation of the Human Rights Code, did the majority of the Board of Arbitration and the Divisional Court err in failing to choose the approach which advances the purpose and objective of the Code, inter alia, the elimination of discrimination in employment "because of handicap".

6. With respect to the basic principles of law that apply in a case requiring the Court to interpret and apply human rights legislation and the equality provisions of the Canadian Charter, CCD adopts paragraphs 38 - 43 of the factum of the Appellant.

7. CCD also adopts paragraphs 44-82 of the Appellant's factum dealing with the analyses of the decisions of the Divisional Court on appeal and of the Board of Arbitration. As the friend of the court, the CCD makes the following additional submissions:

Human rights statutes are remedial

8. There is little controversy about the fact that human rights statutes like the Code are remedial in nature. In the words of the Supreme Court of Canada in Zurich:

... it is often the final refuge of the disadvantaged and the disenfranchised. As the last protection of the most vulnerable members of society, exceptions to such legislation should be narrowly construed.

Zurich Insurance Co. v. Ontario Human Rights Commission (1992), 93 D.L.R. (4th) 346 (S.C.C.) at p. 374

Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre) (1996) 134 D.L.R. (4th) 1 (S.C.C.) at pp. 8 - 10

[hereinafter Green Bay Health Care Centre)

Battlefords and District Co-operative Ltd. v. Gibbs ( 1996), 140 D.L.R. (4th) 1 (S.C.C.) [hereinafter Gibbs]

Human rights statutes are subject to the Canadian Charter

9. Human rights laws occupy a position of pre-eminence in the hierarchy of laws in this country because such laws and the values they "buttress and protectÂ… are, saveÂ… constitutional laws, more important than all others" in the words of Lamer J. writing with the majority in Heerspink. For this reason the Code itself; like all legislation, does not escape the scrutiny of the equality rights provisions in section 15 of the Canadian Charter. It is respectfully submitted that the Code itself must be interpreted and applied in a manner that advances human rights and the dignity of all people. The Court must strain to avoid an interpretation of the Code which fails to advance human rights on behalf of people with disabilities

Gibbs, supra at p. 9

Insurance Corporation of British Columbia v. Heerspink, [1992] 2 S.C.R. 145 at pp. 157-158.

Re Blainey and Ontario Hockey Association et al. (1986), 54 O.R. (2d) 513 (Ont. C.A.); leave to appeal to the S.C.C. denied (1986), 58 O.R. (2d) 274

Adverse effect discrimination

10. There is now no uncertainty in Canada that a finding of discrimination can be based on a discriminatory etiect or impact of an otherwise "neutral" contractual term, rule, regulation or law. "Adverse effect" discrimination has entered the mainstream of Canadian human rights jurisprudence. In Eldridge, LaForest J. re-stated the proposition as follows:

... a discriminatory purpose or intention is not a necessary condition of a s. 15(1) violation. A legal distinction need not be motivated by a desire to disadvantage an individual or group in order to violate s. 15(1 It is sufficient if the effect of the legislation is to deny someone the equal protection or benefit of the law... In this the Court has staked out a different path than the United States Supreme Court, which requires a discriminatory intent in order to ground an equal protection claim...

Eldridge, supra at pp. 615-616

Andrews v. Law Society of British Columbia, (1989), 56 D.L.R. (4th) 1 (S.C.C.)

Ontario Human Rights Commission v. Simpson-Sears Ltd, [1985] 2 S.C.R. 536, (1985), 23 D.L.R. (4th) 321 (S.C.C.) pp. 328-29

11. The facts in this case disclose that otherwise neutral contractual terms in a negotiated collective agreement have an adverse effect on a group of employees who suffer the impact of the contractual terms "because of handicap". The result is that burdens or obligations are born by that group of employees with disabilities, and not by other employees who continue to be at work; employees with disabilities suffer disadvantages which employees who are not disabled do not bear.

Andrews, supra at pp. 16- 17

Gibbs, supra at pp. 9-10

No contracting out of human right obligations, by collective agreement or othervise

12. It is respectfully submitted that there is no longer any doubt that because the Code is a public statute which constitutes public policy in Ontario, the Appellant and Respondents are not competent to contract themselves out of any of the provisions of the Code and then engage in otherwise discriminatory and prohibited conduct. Provisions in contracts and collective agreements having such effect are void, as contrary to public policy.

Green Hay Health Care Centre, supra at p. 7, 9

Central Okanagan School District No. 23 v. Renaud (1992), 95 D.L.R. (4th) (S.C.C.) at pp. 586-587.

Ontario Human Rights Commission et al v. Borough of Etobicoke (1982), 132 D.L.R. (3d) 14 (S.C.C.) at pp. 23-24

The comparator group analysis

13. It is respectfully submitted that the facts in this case leave no uncertainty that there is "discrimination". The difficult issue to be decided by this Court is whether the discrimination in question is prohibited by the Code. The analysis requires the identification of the proper comparator group.

14. The process of selecting the comparator group in the course of interpreting and applying human rights legislation is a rational process of making a comparison between the group suffering the disadvantage and some other class or group. In so doing, it is respectfully submitted that the Court must bear in mind the objects of the Code. In expanding upon this requirement, writing for the Supreme Court in Gibbs, (McLachlin J. concurring), Sopinka J. emphasized that a broad, purposive approach is required when defining the scope of "discrimination" in a provincial human rights code, as follows:

The fact that it was initially unclear who would later be treated distinctively does not lessen the strength of the conclusion that the plan discriminated against those with a mental disability. It would be inimical to the objects of human rights legislation if a practice could be immunized from scrutiny under this legislation simply because its discriminatory effects are contingent on uncertain future events.

As noted above in the quotation from Zurich, supra, the purpose of human rights legislation is to protect the most vulnerable members of society. It would clearly be contrary to this purpose to fail to find discrimination where the discrimination is contingent on the very event that gives rise to the need for the protection of the Human Rights Code.

Gibbs, supra, at pp. 9, 11

15. The finding of discrimination based on the imposition of a burden withholding of a benefit must be rooted in a comparison of the treatment person with the treatment received by another person. This essential analytic was stated by Mclntyre J in Andrews, supra, at p. 10:

The concept of equality has long been a feature of Western thought... It is a comparative concept, the condition of which may only be attained or discerned by comparison with the condition of others in the social and political setting in which the question arises.

Andrews, supra at p. 10

See also Gibbs, supra at p. 14

See the illuminating discussion about the construction of an appropriate and inappropriate comparator group in Pano Cap (Canada) Limited and United Food and Commercial Workers Union Local 1977 (October 2, 1997) unreported decision (G.T. Surdykowski) at para 22-25, pp. 16-19, and para 39-40 at pp 30-31 [thereinafter Pano Cap]

16. In selecting the appropriate comparator, one factor to consider is that a prohibition against discrimination "because of handicap" is a distinct and enumerated prohibited ground under the Code, and has equivalency under s. 15(1) of the Canadian Charter. Another factor is the statutory construction of the Code itself. For example, the fact that section 25(4) of the Code specifically deals with the issue of compensation for an employee with a disability. The result which the Divisional Court has approved in the case before this Court is based on a construction of the Code applicable to people with disabilities which creates distinctions between compensation discrimination and participation discrimination. The former has been condoned by the Divisional Court despite section 25(4) of the Code while the latter has been prohibited.

Gibbs, supra at p. 14

See the discussion about section 25(4) of the Code in Pano Cap at para 49-50, pp.

35-36

17. The fact that people with disabilities who may be absent from work "because of handicap" continue to experience historical disadvantage is an additional "broad factor" to consider when selecting the appropriate comparator.

Gibbs, supra, p 14-15

18. In evaluating the appropriate comparator group in Gibbs, Sopinka J. considered the alternative comparator group urged in that case, namely all person without a disability as opposed to persons with physical disabilities. In the circumstances of the Gibbs case, Sopinka J. considered what the impact would be if he selected the former comparator as follows:

Clearly, if the comparator group is all persons without a disability, then a claim of discrimination on the basis of inadequate disability insurance benefits would seldom be successful. Such a result appears contrary to the underlying purpose of human rights legislation, especially given the particular historical disadvantages facing the mentally disabled.

[Emphasis added]

Gibbs, supra at p. 15

See also Brooks v. Canada Safeway Ltd. et al ( 1989), 59 D.L.R. (4th) 321 and Sopinka J. 's analysis of the appropriate comparison group selected in Brooks, at Eldridge pp. 15-16, including the following passage:

The Court concluded that the disability plan in question discriminated on the basis of pregnancy, given that pregnant employees received a lower level of benefits as compared with the benefits received by other employees who were unable to work because of health-related reasons. That is, since the insurance in Brooks was intended to compensate those absent from work for health-related reasons, the relevant comparison was between the benefits available to pregnant employees and those available to other employees unable to work for other health reasons.

In my view, Brooks, supra, provides a useful guide in determining the appropriate group to compare to mentally disabled employees in the case at bar. The first step is to determine, in all the circumstances of the case, the purpose of the disability plan. Comparing the benefits allocated to employees is not helpful in determining discrimination - it is understandable that insurance benefits for disparate purposes will differ. If, however, benefits are allocated pursuant to the same purpose, yet benefits differ as a result of characteristics that are not relevant to this purpose, discrimination may well exist.

[Emphasis added]

19. It is respectfully submitted that the selection of the class of employees voluntarily absent from work, as a comparator with persons absent "because of handicap" who are also denied premium benefits and seniority accrual, is the wrong choice in law. Such a comparator selection is "contrary to the underlying purpose of choice in law. Such a comparator selection is "contrary to the underlying purpose of human rights legislation, especially given the particular historical disadvantagesÂ…" facing people with disabilities. Such a choice of comparators would deprive people absent from work "because of handicap" of the protection of certain employment benefits at precisely the time when they become most vulnerable, the time when the protection of human rights legislation is most needed. Such a choice ignores the fact that people absent from work "because of handicap'' retain their status as employees and have not voluntarily absented themselves from active work. While a comparison must be made between groups of people in the search for either equality or discrimination, that means that discrimination cannot be identified in a vacuum.

Gibbs, supra, at p. 11, 15

Brooks, supra

Ontario Cancer Treatment and Research Foundation and Ottawa Regional Cancer Centre v. Ontario Human Rights Commission, (unreported decision of the Divisional Court, dated January 21, 1998) at pp. 11-12 [hereinafter Ontario Cancer Treatment and Research Foundation affirming Crook v. Ontario Cancer Treatment and Research Foundation (No. 3) 30 C.H.R.R., D/10, 104 (Ontario, Board of Inquiry) [hereinafter Crook]

Egan v. Canada, (1995) 124 D.L.R. (4th) 609, at p. 662

All bargaining unit employees is the correct comparator class in this case

20. It is respectfully submitted that the comparator group that is consistent with a human rights code purposive interpretation of the Code, one that gives effect to the Code and to community values including the values imbedded in the Canadian Charter, and the interpretation which gives full recognition to the adverse effect of a neutral rule that ignores "because of handicap" and appears to consider the affected employees simply absent from work, is the comparator class: all bargaining unit employees.

Status as "employees does not chanoe when absent "because of handicaps

21. The suggestion that the selection of all bargaining unit employees as the correct comparator class, on the f cts of this case, does not lead logically to the conclusion that persons absent because of handicap should receive what was referred to as "special payments" by Arbitrator Brown in Versa Services Ltd. Nor does it lead to conferring a seniority regime on disabled employees that, in the words of Arbitrator Kennedy in Metropolitan Hospital and O.N.A. "protects [them] from the normal consequences of not being at work." In Arbitrator Kennedy s analysis which flows logically from the incorrect analysis of Arbitrator Brown: "Only if others in equivalent non-working circumstances were given seniority entitlement that exceeded that available to the grievor could there be found to be discrimination."

Versa Services Ltd. v. Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees Union, Local 647 (1994), 39 L.A.C. (4th) 196 (Brown); affirmed February 5, 1995 (unreported endorsement of the Divisional Court) at pp.202-205

Metropolitan General Hospital and Ontario Nurses' Association (1995), 48 L.A.C. (4th), 291 (Kennedy) at pp. 299-300

22. While the CCD understands that some arbitrators strain to .given effect to the "bargain" the parties have negotiated (so as not to "artificially sever the bargain that the parties freely made" as the concept has been described by Arbitrator Rayner in Re Ajax (Town) and C.U.P.E, Loc. 54 at p.82 and cited with approval in Re Metropolitan General Hospital, infra), that labour relations rule of construction of a collective agreement must give way to the requirement to give the Code a purposive and liberal construction. Arbitrators Kennedy and Brown have both failed to grasp a crucial distinction about the nature of the employment relationship when an employee who is actively at work ceases active work. Subject to the lawful termination of employment, the employee remains an employee even when absent for whatever reason. Comparing an employee absent "because of handicap" to another absent employee rather than to employees who remain at work assumes that entitlements flow from the performance of actual work, rather than from the fact that the person in question is an employee, albeit absent from work.

Versa Services Ltd., supra

Re Metropolitan General Hospital, supra

Re Ajax and C.U.P.E. Local 54 (1991), 23 L.A.C. (4th) 77 (Raynee at p. 82

This point is made with some emphasis by Arbitrator Surdykowski in Pano Cap at para 51-56, pp. 3741, including at para 51:

...Their entitlement to such benefits arises out of the employment relationship as such. That is, these are benefits which are consequent upon employment even though they may not be paid directly by the employer. Accordingly, while it may be appropriate to consider employees who are involuntarily absent from work and receiving income replacement benefits to be in the same position as employees who are voluntarily absent from work (and not receiving income replacement benefits) for the purpose of issues relating to wages and benefits earned by performing work for an employer, it is not appropriate to do so for the purposes of issues of benefits which are consequent upon the employment relationship per se. In this latter respect, there is more to distinguish than there is to identify handicapped employees with employees who have voluntarily absented themselves from work.

23. Employees away from work for reasons other than "because of handicap" (i.e. vacations, bereavement days, etc.) continue to accrue seniority and to benefit from premium payments for benefit plans. Employees who are voluntarily absent from work (leave of absence, etc.) are not entitled to benents derived from employment. While these employees experience "discrimination", that discrimination is not prohibited under the Code. However, employees who are absent from work "because of handicap'' suffer the burden of being denied seniority accrual and benefit premium payment, when compared to employees at work and they bear this burden only "because of handicap." 'But for' the disability, the affected employee would not experience the burden of the disentitlements.

24. In the seminal 1989 arbitration decision, (Glengarry Industries, cited and quoted with approval by the unanimous Divisional Court in Etobicoke General Hospital, employees did not have the same rights as other employees to grieve unjust discharge on account of absences "because of handicap". The grievor was treated the same as other employees who were not disabled and were absent for 6 months. The arbitrator held that the appropriate comparator group was the majority of employees in the bargaining unit and determined that the grievor was treated differently from them "because of handicap" i.e. deprived of the standard of "proper cause" for termination from employment, due to her compensable injury. Similarly, in the instant case, it is only on account of absences "because of handicap" that disabled employees do not have the same rights as other employees to payment of premium for benefits and seniority accrual that are consequential to the status of being an employee. It is respectfully submitted that the fact that non-disabled absent employees are also denied the same things is of no matter.

Re Glengarry Industries Chromalox Components and {United .Steelworkers of America, Local 6976 (1989). 3 L.A.C. (4th) 326 ( K.A. Hinnegan) at pp. 331-332

Ontario Nurses' Association v. Etobicoke General Hospital (1993), 14 O.R. (3d) 40 (Div.Ct.) at p. 42-43

Stratford (City) v. Canadian Union of Public Employees, Local 197 (1990). 13 L.A.C. (4th) 1, at pp. 7-8, affirmed April 19, 1991, unreported (Div.Ct).

25. The "similarly situated" test is a method to determine the appropriate comparator group for the "discrimination" analysis. This test has been explicitly rejected by Canadian courts and arbitrators. As indicated, this test results in a finding of no discrimination because it compares the group adversely affected by the neutral rule because of a protected ground (i.e "because of handicap") to other groups denied the benefit for other reasons (i.e. voluntary absence from work).

Egan v. Canada, supra, at p. 662

Andrews, supra at pp. 10-12

Brooks, supra at pp. 339-342

Pano Cap, supra at pp. l6-19 and at pp. 31-32

Etobicoke General Hospital, supra at pp.42-43

Re Glengarry Industries, supra at pp. 331-332

Victorian Order of Nurses (Algoma Branch) and Ontario Nurses Association (1996), 56 L.A.C. (4th) 235 (W.Low) at p. 244

Crook, supra at para 75-79 at pp.118, affirmed by the Divisional Court in Ontario Cancer Treatment and Research Foundation, supra

26. While the "permissible compensation discrimination" construct in Versa Foods and supported by implication by the Divisional Court in the case at bar is of academic interest because it delimits some neutral employment rules with adverse impacts on persons with disabilities from other neutral employment rules with different adverse impacts, the schema is not consistent with the proper approach to the Code. An interpretation of the Code which expresses the values of the Canadian Charter must be given preference over an interpretation running contrary to such values. The rationale pathway in Versa Foods undermines the values of equality before and under the law without discrimination on a prohibited sround such as mental or physical disability. The Versa Foods approach proclaims some aspects of employment discrimination (i.e. participation) to be more worthy of protection by the Code than other aspects of employment (i.e. compensation). This is an arbitrary and subjective application of the Code which would appear to have more to do with the expressed desire to engage in some kind of "balancing" of cost implications of the required accommodation, a matter properly dealt with in the undue hardship analysis, than with the purpose and objective of the Code.

Hills v. Canada (Attorney General) (1988), 48 D.L.R. (4th) 193 (S.C.C.) at pp. 226 - 227

Andrews, supra

Eldridge, supra at p. 621

Gibbs, supra

27. Protections afforded by the Code against discrimination in employment on the basis of disability ought not be construed more restrictively than other protections. Similarly, it is improper to elevate artificial distinctions, such as "compensation" as opposed to "participation" terms of employment, to the level of defenses which in the interpretation of human rights codes are to be narrowly interpreted since they restrict the protection of rights.

Zurich, supra

Gibbs, supra

Ontario Cancer Treatment and Research Foundation, supra at p. 13

Lepofsky D.M., "The Duty to Accommodate" (1992), 1 Cdn. Lab. L.J. I at p.5

PART IV - ORDER REOUESTED

28. The CCD respectfully requests that the application be granted and that the following orders be made:

a. An order quashing the award of the arbitration board insofar as it holds that nurses who are absent without pay due to disability within the meaning of handicap under the Code may be denied accrual of service for any part of that period of absence.

b. An order quashing the award of the arbitration board insofar as it holds that the Hospitals may discontinue insurance premium contributions required under the collective agreement to nurses who are absent without pay due to a disability within the meaning of handicap under the Code.

c. A declaration that the provisions in the collective agreement violate the Code to the extent that they deprive nurses who are absent without pay due to a disability within the meaning of handicap under the Code of accrued service or employer insurance premium contributions.

d. In the alternative to c., an order remitting Appellant's Questions B, and Questions A and C (at pp.11-12 of the Appellant s factum), insofar as they relate to accrued service, to a differently constituted board of arbitration to complete the matter by embarking upon the required inquiries in accordance with correct lesal principles and evidentiary requirements

ALL OF \\1lICH IS RESPECTFULLY Submitted

this 11th day of March, 1998

_________________

BRIAN SHELL

_________________________

SHARON FFOLKES ABRAHAMS

Of Counsel to the Intervenor

Council of Canadians with Disabilities

SCHEDULE "A"

AUTHORITIES

CASES

1. Aldridge v. British Columbia (Attorney General) and the Medical >Services

(Commission, (1997) 151 D.L.R. (4th) 577 (S.C.C.)

2 . Zurich Insurance (5o. v. Ontario Human Rights Commission (1992), 93 D.L.R. (4th) 346

(S.C.C.)

3. Newfoundland Association of Public Employees v. Newfoundland Green Bay Health

Care Centre) (1996) 134 D.L.R. (4th) 1 (S.C.C.)

4. Battlefords and District Co-operative Ltd. v. Gibbs (1996)~ 140 D.L.R. (4th) 1 (S.C.C.)

5. Insurance Corporation of British (.'Columbia v. Heerspink, [1992] 2 S.C.R. 145

6. Re Blainey and Ontario Hockey Association et al. (1986), 54 O.R. (2d) 513 (Ont. C.A.);

leave to appeal to the S.C.C. denied (1986), 58 O.R. (2d) 274

7. Andrews v. Law Society of British Columbia, (1989), 56 D.L.R. (4th) 1 (S.C.C.)

8. Ontario Human Rights Commission v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536, (1985),

23 D.L.R. (4th) 321 (S.C.C.)

9. Central Okanagen School District No. 23 v. Renaud (1992), 95 D.L.R. (4th)

(S.C.C.)

10. Ontario Human Rights Commission et al v. Borough of Etobicoke (1982), 132 D.L.R.

(3d) 14 (S.C.C.)

11. Pano Cap Canada Limited and United Food and Commercial Workers Union Local

1977 (October 2, 1997) unreported decision (G.T. Surdykowski)

12. Brooks v. Canada Safeway Ltd. et al (1989), 59 D.L.R. (4th) 321

13. Ontario Cancer Treatment and Research Foundation and Ottawa Regional Cancer

Centre v. Ontario Human Rights Commission, (unreported decision of the Divisional

Court, Court File No. 565-96, dated January 21, 1998)

14. Crook v. Ontario Cancer treatment and Research Foundation (No. 3) 30 C.HR.R., D/10,

104 (Ontario Board of lnquiry)

15. Egan v. Canada, (1995) 124 D.L.R. (4th) 609, at p. 662

16. Versa Services Ltd v. Milk & Bread l)rivers, Dairy Employees, (Caterers & Allied

Employees Union, Local 647 (1994), 39 L.A.C. (4th) 196 (Brown); affirmed February 5,

1995 (unreported endorsement of the Divisional Court)

17. Metropolitan General Hospital and Ontario Nurses ' Association (1995), 48 L.A.C. (4th),

291 (Kennedy)

18. Re Ajax (Town) and C.U.P.E. Local 54 (1991), 23 L.A.C. (4th) 77 (Rayner)

19. Stratford (City) v. Canadian Union of Public Employees, Local 197 (1990). 13 L.A.C.

(4th) 1, affirmed April 19, 1991, unreported (Div.Ct).

20. Ontario Nurses 'Association v. Etobicoke General Hospital (1993) 7 14 O.R. (3d) 40

(DiV.ct )

21. Re Glengarry Industries/Chromalox Components and United Steelworkers of

America, Local 6976 (1989), 3 L.A.C. (4th) 326 ( K.A. Hinnegan)

22. Re Victorian Order of Nurses (Algoma Branch) and Ontario Nurses Association (1996),

56 L.A.C. (4th) 235 (W.Low)

23. Hills v. Canada (Attorney General) (1988), 48 D.L.R. (4th) 193 (S.C.C.)

TEXT

24. Abella, Rosalie S., Report of the Royal Commission on Equality: Report of the

Employment Equity Consultations [Ottawa ,1984]

ARTICLES

25. Lepofsky D.M., "The Duty to Accommodate" (1992), I Cdn. Lab. L.J. I

SCHEDULE "B"

STATUTES

ONTARIO HUMAN RIGHTS CODE, R.S.O. 1990, c. H. 19

Sections

5(1);

10(1) "because of handicap"

ll(l)(a) & (b);

1 1(2);

17(1) & (2);

25(4)

PART I-FREEDOM FROM DISCRIMINATION S. 7

(2) Harassment in accommodation.—Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, marital status, family status, handicap or the receipt of public assistance. 1981, c.53, s. 2(2).

3. Contracts.—Every person having legal capacity has a right, to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap. 1981, c. 53, s.3; 1986, c. 64, s. 18(3).

4. (1) Accommodation of person under eighteen.- Every sixteen or seventeen year old person who has withdrawn from parental control has a right to equal treatment with respect to occupancy of and contracting for accommodation without discrimination because the person is less than eighteen years old.

(2) Idem.—A contract for accommodation entered into by a sixteen or seventeen year old person who has withdrawn from parental control is enforceable against that person as if the person were eighteen years old. 1986, c. 64, s. 18(4).

5. (l) Employment.—Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap. 1981, c. 53, s. 4(1); 1986, c. 64, s. 18(5).

(2) Harassment in employment.—Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship. creed, age, record of offences, marital status, family status or handicap. 1981, c. 53, s. 4(2).

6. Vocational associations.—Every person has a rsght to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour. ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap. 1981, c. 53, s.5; 1986, c. 64, s. 18(6).

7. (l) Harassment because of sex in accommodation.—Every person who occupies accommodation has a right to freedom from harassment because of sex by the landlord or agent of the landlord or by an occupant of the same building.

(2) Harassment because of sex in workplaces.—Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.

(3). Sexual solicitation by a person in position to confer benefit, etc.-Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person. 1981, c. 53, s. 6

8. Reprisals.—Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing. 1981, c. 53, s. 7.

9. Infringement prohibited.—No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.1981, c. 53, s. 8.

PART II

INTERPRETATION AND APPLICATION

10. (1) Definitions.-In Part I and in this Part,

"age" means an age that is eighteen years or more, except in subsection 5(1) where ''age" means an age that is eighteen years or more and less than sixty-five years;

(''age'')

"because of handicap" means for the reason that the person has or has had, or is believed to have or have had,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, including diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or on a wheelchair or other remedial appliance or device,

(b) a condition of mental retardation or impairment,

(c) a leaning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the

Workers ' Compensation Act; (" Ã cause d'un handicap")

"equal" means subject to all requirements, qualifications and considerations that are

not a prohibited ground of discrimination; ("égal")

"family status" means the status of being in a parent and child relationship; ("état

familial")

group insurance" means insurance whereby the lives or well-being or the lives and

well-being of a number of persons are insured severally under a single contract

PART 1I - INTERPRETATION AND APPLICATION S. 12

between an insurer and an association or an employer or other person; ("assurance-groupe'')

"harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome; ("harcèlement")

"marital status" means the status of being married, single, widowed, divorced or separated and includes the status of living with a person of the opposite sex in a conjugal relationship outside marriage; ("état matrimonial")

"record of offences" means a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment; ("casier judiciaire")

"services'' does not include a levy, fee, tax or periodic payment imposed by law;

("services")

"spouse'' means the person to whom a person of the opposite sex is married or with whom the person is living in a conjugal relationship outside marriage. ("con-joint") 1981,c.53,s.9; 1984,c.58,s.39.

(2) Pregnancy.-The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant. l986, c. 64, s. 18(7).

11. (l) Constructive discrimination.-A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bonafide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) Idem.-The Commission, the board of inquiry or a court shall not find that a requirement, qualification or factor is reasonable and bonafide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot

be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) Idem.-The Commission, the board of inquiry or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship. l 986, c. 64, s. 18(S); 1994, c. 27, s. 65(1, 2).

12. Discrimination because of association.-A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination. 1981, c. 53.

s. 11.

PART 11- INTERPRETATION AND APPLICATION S. 19

(2) Idem.-A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or lawful admission to Canada for permanent residence is a requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence.

(3) Idem.-A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or domicile in Canada with the intention to obtain Canadian citizenship is a requirement, qualification or consideration adopted by an organization or enterprise for the holder of chief or senior executive positions. 1981, c. 53. s. 15.

17. (l) Handicap.-A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap. 1986, c. 64, s. 18(9).

(2) Accommodation.-The Commission, the board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any~ and health and safety requirements, if any.

(3) Idem.-The Commission, the board of inquiry or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship. l 986, c. 64, s. 18(10); 1994, c. 27, s. 65(2).

(4) Powers of Commission.-Where, after the investigation of a complaint, the Commission determines that the evidence does not warrant the subject-matter of the complaint being referred to the board of inquiry because of the application of subsection (1), the Commission may nevertheless use its best endeavours to effect a settlement as to the duties or requirements. 1981, c. 53, s. 16(2); 1986, c. 64, s. 18(11); 1994, c. '7. s. 65 (3).

18. Special interest organizations.-The rights under Part I to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified. 1981, c. 53. s. 17.

19. (l) Separate school rights preserved.-This Act shall not be construed to adversely affect any right or privilege respecting separate schools enjoyed by separate school boards or their supporters under the Constitution Act, 1867 and the Education Act.

(2) Duties of teachers.-This Act does not apply to affect the application of the Education Act with respect to the duties of teachers. 1981, c. 53, s. 18.

S. 25 HUMAN RIGHTS CODE

25. (1) Employment conditional on membership in pension plan.—The right under section 5 to equal treatment with respect to employment is infnnged where employment is denied or made conditional because a term or condition of employment requires enrolment in an employee benefit, pension or superannuation plan or fund or a contract of group insurance between an insurer and an employer, that makes a distinction, preference or exclusion on a prohibited ground of discrimination.

(2) Pension or disability plan.-The right under section 5,to equ,a) treatment with respect to employment without discrimination because of age, sex: marital status or family status is not infringed by an employee superannuation or pension plan or fund or a contract of group insurance between an insurer and an employer that complies with the Employment Standards Act and the regulations hereunder.

(3) Employee disability and pension plans: handicap.-The right under section 5 to equal treatment with respect to employment without discrimination because of handicap is not infringed,

(a) where a reasonable and bonaf de distinction, exclusion or preference is made in an employee disability or life insurance plan or benefit because of a pre-existing handicap that substantially increases the risk;

(b) where a reasonable and bonaf de distinction, exclusion or preference is made on the ground of a pre-existing handicap in respect of an employee-pay-all or participant-pay-all benefit in an employee benefit, pension or superannuation plan or fund or a contract of group insurance between an insurer and an employer or in respect of a plan, fund or policy that is offered by an employer to employees if they are fewer than twenty-five in number.

(4) Compensation.-An employer shall pay to an employee who is excluded because of a handicap from an employee benefit, pension or superannuation plan or fund or a contract of group insurance between an insurer and the employer compensation equivalent to the contribution that the employer would make thereto on behalf of an employee who does not have a handican. 1981. c. 53. s. 24.

26. (1) Discrimination in employment under government contracts.-It shall be deemed to be a condition of every contract entered into by or on behalf of the Crown or any agency thereof and of every subcontract entered into in the performance thereof that no right under section 5 will be infringed in the course of performing the contract

(2) ldem: government grants and loans.-It shall be deemed to be a condition of every grant, contribution, loan or guarantee made by or on behalf of the Crossn or any agency thereof that no right under section 5 will be infringed in the course of carrying out the purposes for which the grant, contribution, loan or guarantee was made.

(3) Sanction.-Where an infringement of a right under section 5 is found by a board of inquiry upon a complaint and constitutes a breach of a condition under this section, the breach of condition is sufficient grounds for cancellation of the contract, grant, contribution, loan or guarantee and refusal to enter into any further contract with or make any further grant, contribution, loan or guarantee to the same person. 1981, c. 53. s. 25.

COURT OF APPEAL FOR ONTARIO

The Honourable the Associate Chief Justice of Ontario} Wednesday, the 4th day of

March. 1998

BETWEEN:

ONTARIO NURSES' ASSOCIATION

Appellant

- and -

ORILLIA SOLDIERS MEMORIAL HOSPITAL

and SAULT STE. MARIE GENERAL HOSPITAL

Respondents

ORDER

THE MOTION made by COUNCIL OF CANADIANS WITH DISABILITIES ("CCD")

for leave of this Court to intervene in this appeal was heard on Wednesday the 4th day of March, 1998.

ON READING the affidavit of Hugh Scher sworn the 23rd day of February, 1998, the motion record and factums tiled and on hearing the submissions of counsel for the CCD and for Orillia Soldiers Memorial Hospital and Sault Ste. Marie General Hospital and for Ontario Nurses' Association:

1. THIS COURT ORDERS that the CCD is added as a friend of the Court on the following terms:

(1) The CCD will take the record as it is and will not be permitted to adduce further evidence.

(2) The CCD will not seek costs on the appeal but costs may be awarded against it.

(3) The CCD will serve and file its factum not exceeding 20 pages on or before March 13, 1998.

(4) The Respondents shall serve and file their factum on or before March 26, 1998.

(5) The time for the oral argument of the CCD shall be limited to 15 minutes.

2. THIS COURT ORDERS that there is to be no order as to costs for the motion.

ENTERED AT/INSCRIT A TORONTO

ON/BOOK NO:

LE/DANS LE REGISTRE NO:

MAR 9 1998

PER/PAR