The Human Rights system in Ontario works to remedy the discrimination that continues to marginalize vulnerable groups in employment. Minimizing the importance of human rights in the workplace and failing to correct discriminatory policies, rules and practices can have serious consequences. The Ontario Human Rights Code is government policy aimed at protecting people based on 17 grounds. There is specificity to the grounds identified because real examples of cases and complaints still remain an unfortunate reality in the modern workplace. The case Waseeb v. Imperial Oil Limited, as described in articles from HR Reporter and the Financial Times, illustrates  increasing government intervention and policy enforcement aimed at combatting discrimination in the workplace. The scope of human rights codes in Canada has been evolving for decades, so why does it seem businesses are not keeping up?

In the case Waseeb v. Imperial Oil Limited the discrimination present in Imperial Oil’s recruitment and selection processes was found to have violated Muhammad Waseeb’s human rights and directly discriminated against him on the protected ground of citizenship. Further, Imperial Oil’s assertion that Waseeb’s failure to be truthful is just cause to rescind the employment offer was found to be without merit because his behaviour was necessary to avoid discrimination. The Human Rights Tribunal first made its decision in favour of Waseeb in 2018. At that time the Tribunal didn’t enforce remedial action. The parties agreed to engage in mediation to resolve the case. In 2019, after mediation was unsuccessful, the case resumed at the Tribunal. Imperial Oil was ordered to pay $120,000.00.

Waseeb v. Imperial Oil Limited is one example among many of the Tribunal’s intolerance for discrimination and Human Rights violations. Jon Pinkus writes: “In 2013, the tribunal awarded a supervisor $420,000, almost 10 years of back pay, against a school board that discriminated against her for her disability. In 2015, two temporary foreign workers who were severely mistreated and sexually harassed were awarded $200,000 in damages. In 2018, a retail worker was awarded $200,000 in damages for sexual harassment and solicitation by her employer.” Pinkus concludes the article stating, “Discrimination has become a very costly mistake in Ontario.” But were Imperial Oil’s actions a mistake? Large awards following lengthy trials suggest intentional refusal to change rather than an error in process.

Imperial Oil was very sure of what it was doing, requiring confirmation of permanent Canadian work status many times throughout the recruitment and selection process. Further, it put forward the argument of permanent Canadian working status as a Bona Fide Occupational Requirement (BFOR) in support of its policy (Rudner and Taylor) and, finally, it maintained its discriminatory position a year after the Tribunal decision. Imperial Oil made no mistake in defending policy and actions that were discriminatory: the stated intention of its actions was to disqualify people who aren’t permanently eligible to work in Canada (Tribunal Decision). It can be inconvenient to review HR policies, rules and practices, but businesses are legally required to remove bias and discrimination in the workplace. Further, poor attention to Human Rights can be a competitive disadvantage. What other talent has been passed over because of antiquated expectations of the workforce, and at what cost? Does Imperial Oil consider this form of discrimination a BFOR because Canadian citizens and permanent residents never leave their jobs? It would behove any business to explore how removing discriminatory barriers can be a part of their talent strategy rather than resting complacent in policies and actions of the past. An effective review includes exploring beyond what is inconvenient to develop fair, inclusive policies, rules and practices intended to respect people’s Human Rights. It would be helpful to understand why a rich company like Imperial Oil didn’t try harder to develop a talent strategy that didn’t require directly discriminating against potential employees eligible to work on temporary work permits. In fact, Imperial Oil recognized the limitations in their discrimination and arbitrarily waived its own rules when it suited them.

In conclusion, the Human Rights system in Ontario, including the Human Rights Code and legal remedy for violations, continues to require businesses to pay attention to Human Rights and to remove discrimination in the workplace. Businesses can be slow to react, defensive that cost and strategy are sacrificed when policies, practices and rules must be changed. Harsh penalties have been handed down to businesses that have demonstrated disregard for Human Rights. Any approach that minimizes the importance of Human Rights in the workplace is bad for business.

References

Ontario Human Rights Commission. 2013. “Guide to Your Rights and Responsibilities Under the Human Rights Code”.

Weinburg, Dr. Bradly. Queen’s University EMPR 240 W20 Module 6 Video Podcasts.

Rudner, Stuart and Taylor, Britany. “Requirement that employees be eligible to work in Canada on permanent basis constitutes direct discrimination: Tribunal”. Canadian HR Reporter. September 3, 2018. https://www.hrreporter.com/opinion/canadian-hr-law/requirement-that-employees-be-eligible-to-work-in-canada-on-permanent-basis-constitutes-direct-discrimination-tribunal/297698

Rudner, Stuart. “Case Update: Imperial Oil”. Canadian HR Reporter. October 23, 2019. https://www.hrreporter.com/opinion/canadian-hr-law/case-update-imperial-oil/322450

Pinkus, Jon. “Ontario human rights tribunal orders employer to pay $120,000 in damages to worker it didn’t even hire”. Financial Post. October 9, 2019. https://business.financialpost.com/opinion/ontario-human-rights-tribunal-orders-employer-to-pay-120000-in-damages-to-worker-it-didnt-even-hire

Waseeb v. Imperial Oil  Human Rights Tribunal Decision https://www.canlii.org/en/on/onhrt/doc/2018/2018hrto957/2018hrto957.html?resultIndex=1

The Ontario government is accused of trampling on the rights of public workers and legislating away their Charter rights. Treasury Board President Peter Bethlenfalvy asserts that the government hasn’t done anything wrong. At issue is Bill 124 which enacted the Protecting a Sustainable Public Sector for Future Generations Act. Passed in November 2019, Bill 124 changed the rules as Ontario’s education unions were heading into collective bargaining.

Bill 124 imposes salary and compensation caps for unionized and non-unionized public employees in Ontario over a moderated three-year period. Its stated purpose is “to ensure that increases in public sector compensation reflect the fiscal situation of the Province, are consistent with the principles of responsible fiscal management and protect the sustainability of public services”. Outraged, the heads of Ontario’s four biggest education unions say that the Bill “seeks to unilaterally impose limits on the ability of workers to negotiate compensation” and that the government is “turning its back on the collective bargaining process”.

Governments imposing wage and bargaining limitations on its workers is not new and precedents will be set in the court challenges to Bill 124. There is a long history of Government Policy as it relates to economic conditions and recent historical precedents are available to be considered.  In the early 1980s, in a time of serious economic downturn, the federal Liberal government legislated wage controls, suspended collective bargaining rights and, in some cases, legislated away an essential worker’s right to strike. Six provincial governments took notice and followed with similarly restrictive legislation of their own. The Conservative Party was elected in 1984 and continued legislative control of public sector union bargaining actions. By 1992 the recession had made a lasting impact and legislation became more intrusive to the bargaining process. Governments, including Ontario’s, legislated wage controls. Ontario’s NDP government legislated the Social Contract Act in 1993 imposing a wage freeze and unpaid leave to public employees. In the last two decades different Ontario governments have had to engage in the collective bargaining process with their employees and have both won and lost cases of alleged bargaining in bad faith and attempts to revoke public employees’ Charter freedoms. Most notably the Ontario Liberal Party’s Bill 115 imposed a wage cap and restrictions on strike activity for public employees (teachers) which the Ontario Superior court found to substantially interfere with workers’ collective bargaining rights under the Charter.

Is the Ontario government trampling public employees’ rights under the Charter of Rights and Freedoms? At least 15 of Ontario’s largest unions think so and are launching court battles against the government. They argue that the Ontario government has an obligation to negotiate wages at the bargaining table and not unilaterally impose them through restrictive legislation. Peter Bethlenfalvy maintains that the legislation was not passed in bad faith and that the proposed wage cap does not substantially interfere with workers’ Charter rights to association and collective bargaining. Legal experts suggest that Bill 124 has been drafted with the successful, precedent setting challenge of Bill 115 in mind. Kevin Banks, who serves as director of the Queen’s University Centre for Law in the Contemporary Workplace, suggests that the government “have learned from some of the constitutional cases that have taken place since Bill 115, in that they’ve structured the legislation so as to permit bargaining to continue with respect to every issue except the one that they want to control”.

Course Article: https://www.cbc.ca/news/canada/toronto/teachers-unions-launch-action-1.5393168