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OMHRA Spring Conference 2011 Case Law Update. Michael Kennedy and Stephen Goodwin . Legislation. AODA Update. What is the AODA? Fundamental purpose to make Ontario fully accessible by 2025 Five accessibility standards customer service - in force

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omhra spring conference 2011 case law update

OMHRA Spring Conference 2011 Case Law Update

Michael Kennedy and Stephen Goodwin

aoda update
AODA Update
  • What is the AODA?
    • Fundamental purpose to make Ontario fully accessible by 2025
    • Five accessibility standards
      • customer service - in force
      • built environment – Standard approved May 2010 – awaiting MCSS to pass regulation
      • transportation; information and communications; and employment – rolling into one standard - review just ended October 16, 2010
aoda update1
AODA Update
  • Customer Service Standard
    • In force for public sector as of Jan 1, 2010; private sector and not-for-profit by January 1, 2012
  • Can apply now to private sector if acting as agent or third party for public sector organization
  • Establish policies, practices and procedures based on principles:
    • goods and services provided in manner that respects dignity;
    • provision must be integrated to enable disabled person to use goods or service;
    • equal opportunity for disabled persons to use and benefit from goods or service
aoda update2
AODA Update
  • Customer Service Standard cont’d
    • entrance accompanied by guide dog or other animal, and to keep the animal with them, and if the animal is otherwise excluded by law, to ensure that other measures are available
    • assistive devices, notice of temporary disruptions, feedback processes and complaint procedures
    • training for staff
    • Feedback process
    • accessibility report
    • time & resources!
aoda update3
AODA Update
  • Employment Accessibility Standard
    • now included in one standard with Information and Communication as well as Transportation
    • Review ended October 16, 2010
    • Employment Standard sets out specific requirement for the recruitment, assessment, selection, hiring, retention and separation and termination from employment
    • Will apply to all employers in Ontario
when deadlines
When Deadlines?
  • Large Public: January 1, 2014
  • Small Public: January 1, 2015
  • More information @
bill 160 occupational health safety amendment act 2011
Bill 160 – Occupational Health & Safety Amendment Act, 2011
  • New training and certificate requirements
bill 122 broader public sector accountability act 2010
Bill 122 – Broader Public Sector Accountability Act, 2010
  • Not apply to municipalities, however…
wsib work reintegration policies
WSIB Work Reintegration Policies

Responsibilities of Workplace Parties

More active WSIB role

RTW Plan expectations

“Duty to Accommodate”

Penalty system if failure in RTW obligations

Work Transition Services

NEER Window – to FOUR years starting with 2008 DOA

the budget
The Budget
  • It’s all about the politics
nra60 for fire fighters
NRA60 for Fire Fighters
  • Expect a bill passed this Spring
  • It will be messy
gtaa decision
GTAA Decision
  • Divisional Court
  • Makes Shime’s Decision legitimate
  • Facts
  • Future Loss
  • Mental Distress
  • Punitives
george brown v opseu
George Brown v. OPSEU
  • Discharge for incompetence
sheridan college v opseu
Sheridan College v. OPSEU
  • Discharge for unauthorized and inappropriate use of employer’s computer network
cambridge towel
Cambridge Towel
  • Discharge of 17 year employee for performance issues
hendrickson springs v usw
Hendrickson Springs v. USW
  • Contracting Out Grievance
carillion services v cupe
Carillion Services v. CUPE
  • Dispute over documentation to be removed from file
chatham kent v ona
Chatham-Kent v. ONA
  • Post Age 64 benefits issue
air canada nra60 case
Air Canada NRA60Case
  • Federal Court grant judicial review of CHRT Decision
interest arbitration
Interest Arbitration
  • Participating Hospitals v. SEIU
  • ATB of 2%
van mensel v walpole island first nation
Van Mensel v. Walpole Island First Nation
  • Contract interpretation issue
russo v kerr
Russo v. Kerr
  • Motion for summary judgment related to constructive dismissal
beggs v westport foods
Beggs v. Westport Foods
  • Lawyer letter ends employment relationship
love v acuity investment
Love v. Acuity Investment
  • Reasonable notice
robertson v manitoba keewatinowi
Robertson v. Manitoba Keewatinowi
  • Vicarious liability over employee alleging sexual assault
frustration of contract under the esa
Frustration of Contract under the ESA
  • Unionized employees seeking severancewhen employer has not taken steps to terminate
    • severance
    • notice
    • time limits
st joseph s general hospital and ona
St. Joseph’s General Hospital and ONA

134 L.A.C.(4th) 86. Luborsky dismisses grievance - insufficient medical evidence

148 L.A.C.(4th) 326. New medical evidence. Randall finds meets definition of severance “unable to continue employing the employee”

not an issue that cba does not have deemed termination clause and allowed for continued seniority when absent due to illness

h e vanhatter ltd
H.E. Vanhatter Ltd.

169 L.A.C. (4th) 400 (Reilly)

5 year deemed termination clause meant employee absent less than 5 years, not entitled to severance. Employee absent more than 5 years entitled to severance due to frustration.

h e vanhatter ltd1
H.E. Vanhatter Ltd.

“On the question of pay in lieu of notice: the collective agreement provides the notice and it is for a period of five years. Therefore Mr. St. Pierre is entitled to receive his severance pay and not his pay in lieu of notice and I so find.”

tembec enterprises inc
Tembec Enterprises Inc.

92 C.L.A.S. 350 (Harris)

following LMR, employee started working for another employer

Employer said “Quit”

Harris said severed/terminated due to frustration and entitled to both severance and pay in lieu of notice

Divisional Court overturned on the basis no evidence employee couldn’t be accommodated

william osler health centre and ona
William Osler Health Centre and ONA

179 L.A.C. (4th) 143 (Shime)

bundle of benefits under the cba not a greater right or benefit to severance

amount of severance owing not decided


[2010] O.L.A.A. No. 617 (Jesin)

[2010] O.L.A.A. No. 679 (Chauvin)

[2010] O.L.A.A. No. 680 (Chauvin)

[2010] O.L.A.A. No. 681 (Chauvin)


Chauvin – dismisses preliminary objection on timeliness

Does not decide issue of termination pay

Jesin – dismisses preliminary objection on timeliness

“It is not entirely clear to me that the grievor is entitled to termination pay”

emrick plastics
Emrick Plastics

[2010] O.L.A.A. No. 575 (Crljenica)

Employee injured 2000, modified work until 2002

Off since 2002

Awarded NEL 2003

2005 LMR declined – not employable

Grievance filed 2009

Dismissed – frustrated in 2005 – well beyond cba and ESA time limits

de abres v humber institute of technology
De Abres v. Humber Institute of Technology
  • Accommodation of disabled employee with cancer
atu v city of mississauga
ATU v. City of Mississauga
  • Arbitration award regarding alcoholic employee
watson v caw
Watson v. CAW
  • HRTO decision regarding retirement package offer
ottawa hospital v cupe
Ottawa Hospital v. CUPE
  • Arbitration decision regarding attendance management
opseu v seneca college
OPSEU v. Seneca College
  • Religious leave issue
mcintosh v metro aluminum
McIntosh v. Metro Aluminum
  • “Sexting” – text message flirting case
ford v nipissing university
Ford v. Nipissing University
  • Was response to human rights violation adequate?
r v cole court of appeal case
R. v. Cole Court of Appeal Case
  • Need to review policy regarding computers
jones v tsiga
Jones v. Tsiga
  • No tort of invasion of privacy
lougheed imports v ufcw
Lougheed Imports v. UFCW
  • BCLRB case regarding face book comments
windsor essex catholic district school board v lentini
Windsor-Essex Catholic District School Board v. Lentini
  • Defamation arising from Face Book comments
pay equity
Pay Equity
  • Are you compliant?
  • Really?
  • Seriously?
pay equity1
Pay Equity
  • Commission more active
  • Spot Audits
  • Unions going after it
interest awarded
Interest Awarded
  • January 1, 1990 Compliance Date
  • Interest Rate 12%
  • No time limits
omhra spring conference 2011 case law update1

OMHRA Spring Conference 2011 Case Law Update

Michael Kennedy and Stephen Goodwin