What are the Laws for Commission Employees in Ontario?

by Stacey R. Ball| August 7, 2023August 18, 2023 | Employment Law| | General

So, you’ve been hired in a commission-based role – What are your legal rights?

Commission as a form of Wage

Commission is a form of compensation that is based on job performance. The Employment Standards Act (ESA) deems commissions to be a form of wage. Employers will usually provide their employees with an employment contract, such as a commission agreement that stipulates how the commission will be calculated, how the employee will be paid, and specific targets the employee must meet. The commission agreement must coincide with the laws of the ESA, otherwise, the agreement will be deemed null and void.

Commission agreements are important reference documents in the event of a dispute between an employer and an employee. If an employer does not provide a commission agreement, they increase their risk of conflict with employees with regard to the calculation of their commission.

Termination with Unpaid Commission

If an employee is terminated, an employer must provide an employee with reasonable notice of their termination. All employment-related compensation, including commissions, must be accounted for.

Section 60(1) of the ESA stipulates that during a notice period the employer:

Shall not reduce the employee’s wage, rate or alter any other term or condition of employment;
Shall in each week pay the employee the wages the employee is entitled to receive, which in no case shall be less than his or her regular wages for a regular work week.
Shall continue to make whatever benefit plan contributions would be required to make in order to maintain the employee’s benefits under the plan until the end of the notice period.

It is against the law for an employer to withhold any residuary commissions earned by an employee upon termination. Because commissions are deemed wages, they are included in the reasonable notice period.

Case Law Precedence

In O’Reilly v. Imax Corporation, an Ontario Court of Appeal Case from 2019, the Court evaluated whether a wrongfully dismissed employee was entitled to receive employee stock options and restricted share units (RSUs) with a vesting date that was after the time of his termination. The employer argued that since the options had not yet been vested, the employee should not be entitled to them as part of his compensation package. The court, however, found that Mr. O’Reilly was entitled to receive all commissions that he would have been entitled to up until the date of his termination, including those with a vesting date after the time of his termination. This is based on the aforementioned principle that an employer cannot reduce an employee’s wage rate during the notice period (ESA, 2000, s. 60(1)).

In another case from the Ontario Court of Appeal, Andros v. Colliers Macaulay Nicolls Inc., the respondent was terminated from his position as Managing Director for a commercial real estate company. The respondent received a bonus for every year that he worked at the company, but he did not receive the bonus for the year that he worked up until his termination, as per his contract. The court found that the provision in the respondent’s contract, which disentitled him from receiving the bonus, conflicted with the ESA and the common law reasonable notice period and therefore was not enforceable. The judge affirmed that the respondent was entitled to the bonus earned while he was still employed and the bonus he would have earned during the notice period.

Unpaid Commission upon Resignation

When an employee resigns, the discretion of whether to pay the employee commission is left to the employer and the employment agreement. If the employment contract stipulates that the employee is not to be paid commission until the funds are received by the employer, then in the event that the employee resigns after funds are received, he or she will not be paid. Alternatively, if the employment contract states that the employee is to be paid when a deal is facilitated then the employee will be entitled to any commissions earned prior to resignation.

An employee’s legal rights for a commission-based role will vary according to the terms of the employment contract and the circumstances surrounding the cessation of employment. But in all cases, commissions are deemed as a form of wage and therefore employers cannot withhold from employees any commissions that they would otherwise be entitled to under the ESA or common law upon resignation or termination.

Can an Employer Rescind a Job Offer?

Have you been offered a job but now your employer wants to rescind that offer? – You may be entitled to financial compensation.

There are several reasons why an employer would want to rescind a job offer. For instance, an employee may have been hired before a period of economic downturn, and as a result the employer no longer has the budget to pay the employee. Another instance is if the job offer was conditional and the employee did not meet the conditional requirements or if the employer has just cause to fire the new employee. An employer who rescinds a job offer may be liable to pay damages to the employee. In this case, the employee would be considered wrongfully dismissed and would therefore be entitled to contractual damages or termination pay in lieu of reasonable notice. The law treats an employee whose job offer was rescinded the same as any employee who worked and was terminated from employment at the same company. This is to deter employers from breaching the employment contract at will.

Damages Based on a Fixed-Term Contract

The damages for the rescission of a job offer will vary based on the type of employment contract. If the employee is hired with a fixed-term contract, the damages they will be entitled to will be outlined in the employment contract. A fixed-term contract is when an employee is hired for a definite period of time or to carry out a specific task. If an employee is terminated before the expiration of the fixed-term, they will be awarded damages for the breach of that contract, as stipulated by the termination clause. In the event that there is no termination clause or severance provision, the employee will be awarded the balance of the fixed-term. Fixed-term contracts bring about a degree of certainty to the employee that the employee will be able to obtain a salary and benefits and will not have to search elsewhere for employment. When an employer rescinds that contract, they are taking away that certainty. Consequently, there is a general consensus among Canadian Courts that employers should have to pay the employee salary and benefits that the employee would have received, had the offer not been rescinded. The employee in this case does not have a duty to mitigate their losses by seeking alternative employment.

Damage for an Indefinite Contract

Conversely, if an employee is hired with an indefinite contract, and the employer rescinds the offer, then the employee is entitled to common law reasonable notice. The Court will assess the Bardal Factors to determine the employee’s reasonable notice period. These factors are the character of the employment, length of service, age and availability of similar employment, considering the experience, training and qualifications of the employee. When an indefinite job offer is rescinded, the employee has a duty to mitigate his or her losses by seeking alternative employment elsewhere. The Courts will take all of these factors into account when calculating the damages that the employee is entitled to for the breach of the employment contract. In some cases, the employee may be entitled to severance pay.

In Kim v. BT Express Freight Systems, a 2020 case from the Ontario Superior Court, Mr. Kim was offered a job by BT Express Freight Systems while he was still working at his previous company. Mr. Kim quit his job to commence employment at BT Express Freight Systems, but several days before he was to commence employment, BT rescinded the offer. Mr. Kim was no longer able to return to his previous job so he sued BT for damages. The Court determined that BT was liable to pay slightly less than three months of what would have been Mr. Kim’s salary and a portion of his legal costs. The court in Kim v. BT Express Freight Systems stated that: “A valid employment contract creates an employment relationship even before any work begins. An employer is entitled to reasonable notice for the breach of that contract and may sue for damages if the appropriate notice is not given”.

When an Employer Would Not Have to Pay Damages

There are a few instances where an employer would not have to pay damages to the employee for rescinding the employment offer. These are: if the employee did not meet the conditional job requirements, such as reference checks, the employee lied in his application, or the employer had just cause to fire the employee.

When an employee is offered a job, the employer is expressing an intention to be bound by that contract. Breaching that contractual obligation is a violation of the employee’s rights. Furthermore, this leaves the employee with uncertainty with regard to how he or she will earn income. The employee would not have been left with this uncertainty had the job offer not been rescinded. Because of these considerations, employees will be entitled to damages from the employer.

At-Will Employment in Canada

by Stacey R. Ball| August 2, 2023August 18, 2023 | Cause For Dismissal| | Employment Law

You’ve been hired under an at-will employment contract and you’re wondering if this is enforceable in Canada – the answer is no.

What is At-Will Employment?

At-will employment is a type of employment that can be terminated at any point in time without providing cause and without providing any reason or notice to the employee. At-will employment is at the will of both parties involved and can be terminated by either party without consequences. Employment, however, cannot be terminated if the reason for termination is unlawful, for example, termination on the basis of discrimination. The closest thing in Canada to this type of employment is a fixed-term job contract. This is when an employee is hired for a fixed period of time or to perform a specific task. If the employment is terminated before the end of the contract, then the employer will have to pay the employee damages. At-will employment is illegal in Canada. This is because employees in Canada are entitled to reasonable notice upon termination unless the employee has been fired for just cause. The law of reasonable notice was established in the famous decision from the former Ontario High Court, Bardal v. Globe and Mail.

At-Will Employment in the Unites States

At-will employment is common in the United States. In some instances, US based companies will employ Canadians under an at-will employment contract. If a Canadian employee signs an at-will contract and it is clear that the employee is in fact a Canadian employee, the law in Canada will permit the employee to sue for wrongful termination. Canadian courts will therefore void any at-will contract and replace it with an indefinite contract that can only be terminated by reasonable notice. If it is unclear whether the employee is an employee of a Canadian corporation, this could lead to a legal dispute regarding the jurisdiction of the employment contract.

Since the COVID-19 pandemic, it has become increasingly common for US companies to seek out employees from overseas to work remotely. Because at-will employment is so common in the US, this poses a problem for Canadians working remotely for US companies. Although these employees may be carrying out their work in Canada, the organization is based out of the US. These companies, therefore are not governed by the laws in Canada and are able to hire employees on an at-will basis. This leaves Canadians vulnerable to having their employment terminated freely with no cause of action to obtain damages.

Case Law on At-Will Contracts

In a case from the BC Court of Appeal, Stanley v. Advertising Directory Solutions, the plaintiff was terminated from her employment at Verizon and offered a severance package that was well below what she was entitled to under common law. Her employer argued that because Verizon was a subsidiary of an American parent company and because the plaintiff had signed an at-will contract, her employment could be terminated without providing reasonable notice. The BC Court of Appeal found that his term was unenforceable in Canada. The plaintiff carried out work in Canada for a Canadian subsidiary. As a result, the termination was found to be wrongful and the plaintiff was awarded 19 months in lieu of notice.

The bottom line, at-will employment is not legal in Canada. However, it stands to pose a problem for many Canadians, as remote US-based employment becomes increasingly common.

Can You Get Fired for Calling In Sick?

Employees may often worry whether they can be fired for taking time off from work due to illness. The short answer is – no.

Sick Leave and Statutory Provisions

According to our wrongful dismissal lawyer in Toronto, An employer cannot fire an employee for taking legitimate sick days or a medical leave of absence. According to the Employment Standards Act, employees in Ontario are entitled to at least three sick days each year. Employers are also bound by the Ontario Human Rights Code (OHRC). Section 13 of the OHRC imposes the duty to accommodate the needs of people with psychosocial disabilities on employers. Consequently, employers must provide sufficient medical leave to employees, unless doing so would bring undue hardship to the employer. The difficulty, however, is that it is extremely difficult for an employer to prove undue hardship. Here, the employer must prove they have done everything in their power to support the employee and that any additional support would create an undue hardship for the employer. In turn, employers leave themselves vulnerable to human rights claims if they fire an employee for taking sick leave.

The View of Canadian Courts

It is generally held across Canadian courts, that an employer is entitled to discharge an employee who fraudulently claims sick leave. Courts have generally imposed such a high penalty for this offense due to the breach of trust incurred to the employer and because of their difficulty to detect. In an Ontario case, an employee was terminated from his position at Ineos Nova Ltd. when he left a voicemail to his employer claiming to be sick but admitted to lying about it when he forgot to hang up the phone. In this case, the arbitrator found that the level of trust had been breached beyond repair and because of that the termination was justifiable.

In a similar case from Alberta, a Telus employee by the name of Jarrod Underwood, was fired from his position of five years for calling in sick under false pretenses. Mr. Underwood had requested the day off to compete in a softball tournament. When his request was denied, Mr. Underwood called in on the morning of the tournament and stated that he couldn’t come in to work due to ‘unforeseen circumstances’. His employer was suspicious and decided to go to the tournament to see if Mr. Underwood was there. He saw Underwood playing in the tournament and upon being questioned about the incident, Mr. Underwood insisted that he was sick but that his symptoms could be better managed at the ballpark. Mr. Underwood was fired but claimed wrongful termination. The arbitrator argued for a one-month suspension instead of termination, but the Court of Queen’s Bench upheld Telus’ decision to fire Mr. Underwood, arguing that his dishonesty had irreparably damaged the employment relationship.

The Role of Technology

With the digitalization of society, it is becoming increasingly common for employers to catch their employees taking false sick days though their social media use. In 2014, a TTC bus driver was fired from his position when he posted pictures on his Facebook page that showed him partying in Vegas after claiming to be sick. Another Canadian employee was fired from her job at the Insurance Corporation of British Columbia for ‘dishonesty and sick leave fraud’ when she posted to social media that she was celebrating out of town with her husband after calling in sick to work that day.

Remember, under the Ontario Human Rights Code, employees are entitled to take legitimate sick leave and cannot be fired for taking too many sick days. If an employer denies sick leave to an employee, this is a serious human rights violation, and the employee is entitled to take legal action against the employer. If the employee, however, takes sick leave and lies about it, the employer is generally entitled to terminate his or her employment.

Is Work Suspension Paid in Ontario?

Employees who have been suspended from their jobs may wonder whether they are entitled to financial compensation. The short answer is – it depends.

Administrative Suspension & Constructive Dismissal

There are two primary reasons for placing an employee on suspension. The first is an administrative suspension, which is often for investigative reasons and the second is a suspension for disciplinary reasons. While investigating a workplace incident, an employer can place an employee on an administrative suspension. The employee must be paid for the administrative suspension if he or she is available and willing to work. If the employee agrees in the employment contract that he or she will not be paid for the suspension, then the employer is not obligated to pay. When there has been an administrative suspension of an employee and the employer is refusing to pay, the employee has the right to refuse the suspension. In this situation, the employee will be deemed to have been constructively dismissed. Constructive dismissal is when an employer makes a substantial change to the terms of an employee’s contract without the employee’s consent. Minor changes to a contract do not trigger constructive dismissal, as the employer has the right to make reasonable adjustments to an employer’s duties to adapt to changes in the market. If it is concluded that the employee was constructively dismissed, then the employee will be entitled to receive a severance package.

The Case Law

The Supreme Court of Canada (SCC) outlined four criteria in Cabiakman v. Industrial Alliance Life Insurance Co. that are required for an administrative suspension. First, the suspension must be necessary to protect legitimate business interests, the employer must be acting in good faith, the suspension must be a fixed term and relatively short and other than in exceptional circumstances, the suspension must be paid.

In a case from the Ontario Court of Appeal, Filice v. Complex Services Inc., a casino worker was placed on suspension without pay while the company investigated him for theft. The employee’s contract permitted suspensions during investigations, but the court held that for a suspension to be given without pay, the circumstances would have to be exceptional. The burden falls upon the employer to justify the suspension without pay. In this case, the employer assumed that the process would be automatic and did not take steps to justify the suspension. It was therefore considered a constructive dismissal.

In Potter v. New Brunswick (Legal Aid Services Commission), the SCC looked at whether an employer can place an employee on an administrative suspension without providing a reason. Mr. Potter was placed on an administrative suspension, and after eight weeks of silence from his employer, he commenced an action for constructive dismissal. The employer argued that by commencing this action, Mr. Potter was resigning. The court stated that suspending Mr. Potter without providing him with any rationale was so unreasonable that Mr. Potter was correct in assuming he was constructively dismissed. The court stated that employers must provide reasoning for suspension, regardless of what the employment contract states.

Disciplinary Suspension

An employee will be placed on disciplinary suspension when they have committed a form of misconduct. This form of suspension must also be paid unless the employment contract states otherwise. If the misconduct is severe, the employer may have just cause to terminate the employee without providing compensation. It may be considered reasonable conduct for an employer to suspend an employee without pay if the misconduct was so severe. This is because the employer was acting leniently by choosing to suspend the employee instead of firing them.

Suspension and the Employment Contract

The courts will generally look to the employment contract to determine the validity of the suspension and whether a suspension without pay is justifiable under the circumstances. Courts are generally sensitive to the power imbalance between employers and employees, are therefore lenient in interpreting these contractual provisions. Courts will only allow suspension without pay in exceptional circumstances. Further, suspension must be in the nature of the business, and courts will generally consider whether the employee had an opportunity to appeal the suspension to another individual. If employers do not conform to these standards, the suspension could be rendered a constructive dismissal, upon which the employee would be paid severance.

Progressive Discipline?

by Stacey R. Ball| April 29, 2023August 14, 2023 | Employment Contracts| | Employment Law

What is it?

The legal concept of progressive discipline in Ontario is a system designed to manage employee performance and behaviour in the workplace. The goal of this system is to provide a structured approach to dealing with employee misconduct while giving employees the opportunity to correct their behaviour before being subjected to more severe disciplinary measures.

The concept of progressive discipline in Ontario has its roots in common law and is also codified in the Employment Standards Act, 2000 (ESA). Under the ESA, employers are required to provide employees with reasonable notice or pay in lieu of notice upon termination, unless the employee has engaged in misconduct. This is where progressive discipline comes in – it provides a way for employers to manage employee behavior in a way that allows them to avoid paying severance or termination pay, while also providing a fair and reasonable approach to discipline.

How does Progressive Discipline Work?

The basic principle of progressive discipline is that disciplinary measures should be progressive, starting with the least severe measure and progressing to more severe measures as necessary. This means that before an employee is terminated, they should be given several warnings, and the severity of the disciplinary measures should increase with each subsequent warning.

The first step in progressive discipline is usually an informal verbal warning. This is a chance for the employer to address the employee’s behaviour and provide feedback on how they can improve. The employer should document the verbal warning, including the date, time, and a summary of the conversation.

If the behaviour continues, the employer may move on to a more formal written warning. The written warning should be specific about the behaviour that is unacceptable and should include a clear outline of what is expected of the employee going forward. The written warning should also include a timeframe for improvement and consequences if the behaviour does not improve.

If the employee’s actions still do not improve, the employer may move on to a more severe disciplinary measure, such as a suspension without pay. The length of the suspension should be proportionate to the behaviour in question.

Finally, if the behaviour still does not improve, the employer may terminate the employee’s employment. However, before doing so, the employer should understand that termination with cause is the ‘capital punishment’ of employment law. They should be certain the necessary progressive disciplinary measures have occurred and not rectified the situation.

It is important to note that the steps and severity of progressive discipline will vary depending on the circumstances of each case. For example, some types of behaviour may be severe enough to warrant skipping the verbal and written warning steps and moving directly to suspension or termination.

Main Takeaway

The legal concept of progressive discipline in Ontario is a structured approach to managing employee performance and behaviour in the workplace. Employers should ensure that any disciplinary action taken against an employee is appropriate and proportionate to the offence. This not only benefits the employer by improving employee performance and behaviour, but also benefits the employee by giving them the opportunity to correct their behaviour before being subjected to more severe disciplinary measures.

Notice of Resignation in Ontario

When an employee decides to leave their job, it’s essential to give their employer enough notice to ensure a smooth transition. In Ontario, there are specific rules and regulations regarding how much notice an employee should give their employer when quitting their job. In this blog post, we will discuss these rules and why they’re essential for both employees and employers.

What is the Minimum Notice an Employee Must Give their Employer?

A common belief is that an employee must give two weeks notice of resignation to their employer. However, that may not always be the case. It is true that many employers include a resignation clause in their employment contracts that stipulate an employee must provide two weeks notice. Nonetheless, there is no legal requirement under the Employment Standards Act or similar legislation requiring an employee to provide a specific amount of notice before resigning. Thus, this is a negotiable term when discussing an employment contract.

Why Should an Employee Give an Employer Notice of Resignation?

Giving adequate notice is crucial for several reasons. Firstly, it allows the employer to plan for the employee’s departure and arrange for a replacement if necessary. It also gives the employer enough time to ensure a smooth handover of responsibilities and to tie up any loose ends. This is particularly important if the employee holds a senior position or is responsible for critical projects or clients.

Moreover, giving adequate notice demonstrates a level of professionalism and respect for the employer. It shows that the employee is committed to ensuring a smooth transition and that they value the time and effort the employer has invested in them. This can be particularly important if the employee plans to seek a reference or maintain a positive relationship with the employer.

Consequences of Failing to Give Notice of Resignation

On the other hand, failing to provide adequate notice can have negative consequences for both the employee and the employer. For instance, the employer may need to scramble to find a replacement or redistribute the departing employee’s responsibilities, causing disruption and potentially affecting the company’s operations. Additionally, the employee may burn bridges with the employer, which can hurt their professional reputation and future job prospects. Another potential consequence is if the employee does not provide reasonable notice as specified in their contract, they may be liable for breach of contract.

Main Takeaway

it’s crucial for employees to provide their employer with adequate notice when quitting their job in Ontario. There is no legal requirement under the Employment Standards Act or similar legislation requiring an employee to provide a specific amount of notice before resigning but employees are encouraged to give reasonable notice, particularly if they hold a senior position or are responsible for critical projects or clients. Adequate notice allows the employer to plan for the employee’s departure, ensure a smooth transition, and maintain a positive relationship with the employee. Failing to provide adequate notice can have negative consequences for both parties, potentially causing disruption and damaging professional reputations as well as breach of contract implications liabilities for the employee.

What is the Duty to Mitigate and How does it Work?

What is Mitigation?

When an employee is terminated without cause, they have a duty to make reasonable attempts to find comparable employment in order to mitigate their losses from the dismissal. There are various legal issues and scenarios that make the duty to mitigate less clear-cut than it seems.

How to Comply with the Duty to Mitigate:

As stated, a terminated employee has a duty to mitigate their losses. Choosing to stay unemployed can result in a situation where the employee has been deemed to have failed in their duty. This can ultimately lead to the notice pay provided to the employee being reduced. However, it should be noted that the employers have a heavy burden in proving a failure to mitigate has taken place. The Supreme Court of Canada has stated this burden is “by no means a light one”.

Employees should try to take reasonable steps to mitigate their losses. The following are several ways an employee can do this:

Applying for available jobs
Reaching out to contacts in your industry
Cold calling companies
Keeping a record of your efforts (dates, jobs applied to, contacts spoken to, if you received interviews, etc.)

It is important to note that going back to school rather than applying for jobs will not satisfy the duty to mitigate.

Is there an Obligation to Apply for Lower-Paying Work in Order to Mitigate?

This is a common question dismissed employees have. Do they have to accept any position they can find? Does it have to be in the same industry? More specifically, if one was previously a company Director, do they still need to accept a lesser position such as manager?

The Lake v. La Presse decisions provided us with the insight to answer such questions.

The dismissed employee was the General Manager of a division of the Employer, where she earned $185,000 per year plus benefits. Eight staff members reported to her, and she reported to the VP of Sales and Operations.

Decision of the Motion Judge

The original decision was that she was entitled to eight months’ notice. However, the motion judge felt that the employee failed to take reasonable steps to mitigate her losses. The judge stated:

The employee waited too long to start her search;
The employee did not apply to enough applications; and
The employee “aimed too high” in her job search.

The motion judge stated that there was nothing wrong with her applying to roles such as VP. The motion judge inferred that had she expanded her search efforts (for example, a sales representative), she likely would have found a new job. As a result, the motion judge deducted two months from the eight-month award.

Court of Appeal Reversal

The Court of Appeal stated that the employee was not required to search for lesser-paying jobs. Crucially, the Court of Appeal stated that the employee needs only to seek comparable employment. This means that the status, hours, and compensation are comparable to what the employee previously had.

It also noted that the terminated employee has no obligation to search for lower-paying work such as a sales representative (as suggested by the motion judge).

Lastly, the Court of Appeal found that she did not aim too high in her search efforts because the positions were largely a fit based on qualifications and skills. The motion judge focused too much on the title itself.

Therefore, the Court of Appeal held that there was no failure to mitigate and thus, no deduction to her eight months’ notice.

Further Questions on the Duty to Mitigate?

Please contact our office by calling (416) 921-7997 ext. 225 to book an appointment with Stacey Ball.

Workplace Discrimination Ontario: Grounds for Discrimination

by Stacey R. Ball| April 21, 2023July 17, 2024 | Employee or Dependent Contractor| | General

What is Discrimination?

Under the Ontario Human Rights Code, workplace discrimination is defined as any conduct or action, intentional or not, that treats someone differently or adversely because of a protected characteristic. The Canadian Human Rights Act also plays a crucial role in prohibiting discriminatory practices. The protected characteristics under the Code include:

Race
Ancestry
Place of origin
Colour
Ethnic origin
Citizenship
Creed (religion)
Sex (including pregnancy and gender identity)
Sexual orientation
Age
Marital status
Family status
Disability

Human rights law serves as a framework for safeguarding individual rights and addressing instances of discrimination. The Employment Equity Act further ensures equal opportunity and non-discrimination under federal jurisdiction.

To help clarify each ground, the following is more detail and some examples of the prohibited grounds for discrimination in Ontario.

Race/Ancestry/Place or Origin/Skin Colour

Discrimination based on race can include treating employees or job candidates differently based on their skin color, ancestry, ethnicity, or place of origin. For example, an employer might pass over a qualified job candidate for a promotion because they are of a different race than the majority of the company’s employees. Alternatively, an employee could experience discrimination in the course of their employment, through things like racial slurs or other racist behaviors.

Gender Identity/Sexual Identity/Sexual Orientation

Discrimination based on gender can include treating employees or job candidates differently based on their gender, gender identity, sex, sexual identity, or sexual orientation. For example, an employer might refuse to hire a transgender person because of their gender identity. An employer may also discriminate against a worker in the course of their employment because of their sexual orientation or gender identity.

Age

Discrimination based on age can include treating employees or job candidates differently based on their age. For example, an employer might lay off older workers because they assume they will retire soon or refuse to hire younger workers because they assume they lack experience.

Disability

Discrimination based on disability can include treating employees or job candidates differently based on their physical, mental, or learning disabilities. For example, an employer might refuse to hire someone with a visible physical disability because they assume the person will need reasonable accommodations that the company is unwilling to provide. Otherwise, a worker might experience discrimination during work by being denied reasonable accommodations.

Creed (Religion)

Discrimination based on religion can include treating employees or job candidates differently based on their religion or beliefs. For example, an employer might refuse to accommodate an employee’s request for time off to observe a religious holiday.

Marital status

Discrimination based on marital status can include treating employees or job candidates differently based on their marital status or relationship status. For example, an employer might assume that a single employee is less committed to their job than a married employee.

Family status

Discrimination based on family status can include treating employees or job candidates differently based on their family status or responsibilities. For example, an employer might refuse to hire someone because they have young children and the company assumes the employee will need to take time off for childcare.

What is Not Covered Under the Ontario Human Rights Code:

While the Ontario Human Rights Code provides protections against discrimination based on certain specific characteristics, not all types of discrimination are covered. Examples of discrimination that are not a prohibited ground, hence not covered by the Ontario Human Rights Code include:

Political Beliefs or Affiliation: This means that an employer may be legally allowed to discriminate against an employee or job candidate based on their political views or affiliation, as long as it does not overlap with any of the protected grounds.
Criminal Record: While the Code protects against discrimination based on certain criminal convictions (such as a conviction that has been pardoned or expunged), it does not protect against discrimination based on an individual’s criminal record more broadly. This means that an employer may legally refuse to hire an individual or terminate their employment based on their criminal record.
Physical Appearance: While appearance-related discrimination is sometimes included under the grounds of “disability” or “gender”, in most cases it is not explicitly covered by the Code. For example, an employer may be legally allowed to discriminate against an employee or job candidate based on their height, weight, hair style, or facial features.

Human rights laws differentiate between federal and provincial jurisdictions, with each level of government having its own set of regulations and protections.

If you are feel you are not being treated equally at work, and have any questions regarding discrimination in the workplace, please contact our office by calling (416) 921-7997 ext. 225 to book an appointment with Stacey Ball.

Cannabis and Discrimination Issues

by Stacey R. Ball| April 11, 2023August 14, 2023 | General

There are several legal issues that can be raised in the context of cannabis in the workplace. A recent Human Rights Tribunal of Alberta decision dealt with the issue of pre-employment drug testing and discrimination. Both employers and employees should be aware of the implications of the following decision: Greidanus v Inter Pipeline Limited, 2023 AHRC 31.

The Background and Context:

The complainant, Jason Greidanus, alleged that the respondent, Inter Pipeline Limited, discriminated against him on the ground of physical disability.

Mr. Greidanus was offered a job with Inter Pipeline with one of the stipulations of the contract being he underwent a pre-employment drug test. Mr. Greidanus failed the drug test due to cannabis (THC) in his system. Mr. Greidanus was diagnosed with Hashimoto’s disease which causes chronic pain, anxiety, depression and low energy. So, he used cannabis to treat himself. Mr. Greidanus was using CBD oil to help treat his condition, which he says did not impair him. However, at the time of the drug test, he had not received a prescription from a doctor. He does not smoke cannabis because of respiratory issues he has arising from a wildfire in Fort McMurray.

Due to this failed drug test, Inter Pipeline revoked their offer of employment. Inter Pipeline did not know of Mr. Greidanus’ disability when they revoked their offer of employment. At that time, there was merely a failed drug test, positive for THC in his system.

The Moore Test:

The commission applied the Moore test to determine if there was a prima facie discrimination in the workplace. The Moore test requires the complainant to establish, on a balance of probabilities, that:

(1) he has a characteristic protected from discrimination under the applicable human rights legislation;

(2) he experienced an adverse impact with respect to his employment; and

(3) the protected characteristic was a factor in the adverse impact.

1) He has a characteristic protected from discrimination under the applicable human rights legislation

Based on the evidence presented, the diagnosis of Hashimoto’s disease was considered a physical disability. Thus, he has a physical disability that is a protected ground under the human rights legislation which satisfies the first part of the test.

2) He experienced an adverse impact with respect to his employment

The second part of the test is also easily satisfied. Mr. Greidanus was to be hired and given a salary of $125,000.00, as well as other forms of compensation. Revoking the offer of employment is a clear adverse impact on the complainant.

3) The protected characteristic was a factor in the adverse impact

The third and final part of the test is the most challenging question to be answered in this case. Inter Pipeline was not aware of a disability or condition that Mr. Greidanus was using cannabis to treat.

There was also no evidence that it can be implied that Inter Pipeline ought to have reasonably known that Mr. Greidanus may have had a physical disability. He had numerous opportunities to inform the prospective employer of his disability and his usage of CBD oil to treat it. He did not disclose it before, during or after the job interview. He also did not disclose it even after he knew of the pre-employment drug test when he was given the conditional offer of employment. Lastly, he did not disclose it when doing the pre-employment drug test questionnaire, or to the third-party agency administering the test.

Therefore, his disability was not a factor in the adverse impact he experienced (revocation of employment offer).

The Duty to Inquire:

The employer may also have a duty to inquire before it takes any disciplinary steps when it is reasonably ought to be aware that there may be a disability or the conduct of the employee is reasonably sufficient to raise an employer’s suspicion that the employee has a protected characteristic. If the duty to inquire does arise, Inter Pipeline would have a duty to investigate a possible connection between cannabis and a potential disability.

Once again, Mr. Greidanus did not provide any evidence of a disability or evidence on which one can reasonably conclude that the respondent ought reasonably to know that the complainant had a disability or that there may be a connection between the complainant’s disability and the complainant’s inability to satisfy the pre-employment drug test requirement.

Thus, there was no duty to inquire.