Workplace harassment help

[somethingtotry]

Hi there,

I am doing a project on workplace harassment in school and could really use some input. Background information: Jane is an employee at a hotel. A server in a lounge. She wrote the following letter because she is not sure what to do in regards to a specific incident.

Dear HR Manager:

I have not been at the hotel long enough to feel comfortable to approach management. My complaint is as follows: There is a supervisor, John, who has been asking me out for a date ever since I first started at the hotel. I clearly informed him that I was not interested in dating anyone from work. At first, he continued to ask me out, but I reminded him I would not date fellow employees. At the company xmas party I danced with lots of fellow employees including John. The day after the staff function, John asked me out again and told me by dancing with him I led him to believe I had change my opinion about dating fellow employees. I apologized to him and informed him that it was only 1 dance at a staff function and I did not mean to give him the wrong impression. He immediately stated that I was refuting him because of his ancestry. AT this point his actions went outside of work and he started to follow me home. John continuously called me at all hours of the day and night. John then gave me few hours and poorer shifts. John then stated that he was looking forward to the end of my probation so he could conduct an appraisal in my performance. I am frightened because of his actions an need some help as soon as possible, as I am lost. Sincerely, Jane

1) Identification of the issue(s): I know the first time he asked her out, was fine. After he continuously asked her, though she said no, that would be an issue. At the dance, her dancing with him, then him asking her out the next day, would be another issue, as it is repetitive once more. When he states that she refuted him because of his ancestry…I assume that is not an issue. As well, when his actions went outside work, and were not related to a work function, is that an issue? And with the fewer hours and shifts, I assume its an issue, but not sure. And his statement that he was looking forward to the end of probation, etc….I know I am only allowed to look at the facts, and not read between the lines, so I am to assume that this is not an issue then??? Thank you for your help!!!!!!!!

Can I also be reached at [email protected]

[RB]

Usually the projects at school allows you to explore issues all by yourself and to be reminded that learning takes place. If I were to answer your paper it wouldn't help you in the least.

But I am an expert in all aspects of labor and employment and depending on the level of your research I can just guide you.

If you are in Ontario, the Human Rights code prohibits workplace harassment in employment.

Here are some cases you can look at:

Janzen v. Platy Enterprises Ltd

Sometimes people are unaware of harassment, thinking they are being friendly, usually more that one incident is enough sustain a complaint

There must be some standard for establishing what constitute harassment, and employers need to enforce polices however they promote awareness

Shaw v. Levac Supply Ltd

Comments were not sexual in nature but imply this

hope this is a helpful

[margrace]

Usually the projects at school allows you to explore issues all by yourself and to be reminded that learning takes place. If I were to answer your paper it wouldn't help you in the least.

But I am an expert in all aspects of labor and employment and depending on the level of your research I can just guide you.

If you are in Ontario, the Human Rights code prohibits workplace harassment in employment.

Here are some cases you can look at:

Janzen v. Platy Enterprises Ltd

Sometimes people are unaware of harassment, thinking they are being friendly, usually more that one incident is enough sustain a complaint

There must be some standard for establishing what constitute harassment, and employers need to enforce polices however they promote awareness

Shaw v. Levac Supply Ltd

Comments were not sexual in nature but imply this

hope this is a helpful

[margrace]

Defending yourseld against workplace harrassment can be very difficult. I put in a complaint of harrasment and a date was set for a hearing, in Ontario. I had to face my two agressive opponents on my own.

I told the people at the government office that my daughter in law was dying of cancer, she died in the early morning of the meeting. The problem was that the meeting was in a hidden spot with no communication allowed. I was not able to inform them of what had happened and since I needed to be with my son I could not attend the meeting or tell anyone what had happened.

The meeting went ahead with the two people and evidently they feely admitted their guilt. I was awarded $300 and nothing else. I still have the signed paper admitting their guilt however I dropped the case.

I am still very angry five years later and feel that government agencies about harrasment are a farce.

[wellandboy]

Defending yourseld against workplace harrassment can be very difficult. I put in a complaint of harrasment and a date was set for a hearing, in Ontario. I had to face my two agressive opponents on my own.

I told the people at the government office that my daughter in law was dying of cancer, she died in the early morning of the meeting. The problem was that the meeting was in a hidden spot with no communication allowed. I was not able to inform them of what had happened and since I needed to be with my son I could not attend the meeting or tell anyone what had happened.

The meeting went ahead with the two people and evidently they feely admitted their guilt. I was awarded $300 and nothing else. I still have the signed paper admitting their guilt however I dropped the case.

I am still very angry five years later and feel that government agencies about harrasment are a farce.

Thanks for the insight because a friend of ours has asked for some assistance in such a case. She has been overwhelmed by the "hoops", she's been forced to jump through to move forward with her case. Since this was Ontario, I am assuming you are referring to the Ont. Human Rights Commission. In this instance, I've found some Labour Code violations and am suggesting these be addressed first. The strategy is if we can obtain a favourable ruling from MOL, it will substantiate the claims with the Human Rights Tribunal as to pattern, history etc.. The one thing I know for certain is this won't be easy or resolved quickly.

[Hicksey]

I think the worst part of this is the attitude toward women that come forward because there have been so many that have done so with false accusations. I know a guy that spent 5 years in jail for a rape he never committed. It was only five years later when a friend of mine heard her bragging about it and told police that his case was brought back before the court and he was exonerated. She's now serving 2 years less a day for her trouble.

The most important thing to do is to get proof. Bring a tape recorder and try to get the person on tape harassing you. At least then there's nothing to be refuted and it becomes a matter of what the punishment will be. Of course, don't put yourself in danger to get it.

[geoffrey]

I think the worst part of this is the attitude toward women that come forward because there have been so many that have done so with false accusations. I know a guy that spent 5 years in jail for a rape he never committed. It was only five years later when a friend of mine heard her bragging about it and told police that his case was brought back before the court and he was exonerated. She's now serving 2 years less a day for her trouble.

The most important thing to do is to get proof. Bring a tape recorder and try to get the person on tape harassing you. At least then there's nothing to be refuted and it becomes a matter of what the punishment will be. Of course, don't put yourself in danger to get it.

Thats trouble. It's hard to tell who's telling the truth and who isn't because of all the false reports. You've got to give them the benifet of the doubt, but I'm completely sure many people abuse the system. Some of these 'harassment' cases are little ridiculous in my opinion.

I've pretty much got to stick to my view that if it happened to me, I'd just take my employment elsewhere. If they don't value you as an employee, then take your skills and ability to another company.

I realise this isn't an option in many areas of the country and in certain occupations. This is where some kind of dispute mechanism makes sense. In alot of these cases though, I think the obligation falls on the person to just stand up and say "I don't like that." If they don't listen, persue it further. But I've seen sexual harassment cases against people when they were never told off to begin with.

It has no place in the workplace, but come on people, tell these people. There aren't many people out there that would continue to do something if they are knowingly hurting you.

We need the system, far few people need to take it that far though.

[injusticebuster]

Usually the projects at school allows you to explore issues all by yourself and to be reminded that learning takes place. If I were to answer your paper it wouldn't help you in the least.

But I am an expert in all aspects of labor and employment and depending on the level of your research I can just guide you.

If you are in Ontario, the Human Rights code prohibits workplace harassment in employment.

Here are some cases you can look at:

Janzen v. Platy Enterprises Ltd

Sometimes people are unaware of harassment, thinking they are being friendly, usually more that one incident is enough sustain a complaint

There must be some standard for establishing what constitute harassment, and employers need to enforce polices however they promote awareness

Shaw v. Levac Supply Ltd

Ontario & Canada has labour & human rights on paper to show to United Nations and for USA not to invade.

In real life there is a combination of feudalism and capitalism here like in Dickens's or Zola's novel.

Ontario government's which should protect workers are human rights violators themselves.

In Canada just like 60 years ago in Auschwitz enforcing my equality rights meant either automatic termination when I asked for accommodation because of medical conditions or harrasment and intimidation to quit right away or reprisals like increased workload and blame for somebody's else mistakes.

I have been living with bipolar for many years and have been marginalized and cannot work without being accommodated because the Ontario Human Rights Commission which itself is responsible for enforcing this right is the biggest violator itself and failed to accommodate me and has been violating my equality rights with offensive to human dignity insensivity and doublestandard.

I lost my job numerous times, had to change careers 4 times only because I was seeking to enforce my rights pursuant to the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms.

I have been blacklisted from workforce by the Ontario Labour Relations Board's Vice-Chair who in discriminatory and ignorant manner ridiculed medical evidence that I did not have to sleep for few days during my mania period and refused to look at into poison work environment and termination as a reprisal for enforcing my rights. The other arbitrator told me to work harder without having over time paid to keep my job.

This crusade of marginalization and devaluation is orchestrated by the Ontario Human Rights Commission which contrary to its own policy failed to accommodate me when I was suicidal and could die any minute and wanted me to meet the strict deadlines. The Commission did not call me for interviews on numerous occasions contrary to its policy and refused to accept my complaints and ignored all evidence and allowed my witnesses to be threatened, intimidated, harassed and eventually fired.

Even Bill Wilkerson from the Global Business and Economic Roundtable on Addiction and Mental Health behaves like an insensitive hypocrite who initially undertook in writing to inquire into my case and after talking to Ontario Human Rights Commission's Chief Commissioner Keith North failed to return my calls. Would he had given up so easily had his business partner or friend's son had been treated in such a untermenchen Nazi like manner?

Are there any other employers with human face? Do not try to mention the Ontario government with its institutionalized discrimination.

Comments were not sexual in nature but imply this

hope this is a helpful

[justcrowing]

Why not state clearly that one is not interested in dating or other involvement and to let this talk serve as a warning that persistence will lead to a formal complaint. If the person continues to ask for a date, then you have given warning and now have cause for action. Otherwise, quit whining and find another job if you can't face someone who is being offensive to yoiu. In future, refuse to dance, dine, have coffee or associate in any way other than for business matters in a professional way.

[Guest Warwick Green]

Sexual harrassment is illegal in all jurisdictions in Canada and all employers have an obligation to deal with accusations of harassment. If in doubt as to what to do talk to the Human Resources Dep't. If that gets nowhere really the only other option is to go to the provinicial human rights commission. If the employee is unionized the union could get involved too.

Under federal jursidiction the employer must have a posted process for dealing with sexual harassment but this is a hotel, under provinical jurisdiction.

[geoffrey]

Quit and find another job, that's what I would do.

BUT, the legal aspects are different I guess. There are these boards called Human Rights Tribunals. You should definitely do your research on how brutally biased and unfair these boards have been in various cases in their past. If your a guy that's being harassed, tough, no woman is ever going to be in trouble over that.

If I were writting this paper, I'd write it with concern for the few cases of real harassment in the workplace. I'd be extremely critical of the complete failure of the Human Rights Tribunal in being fair to all parties. And I'd summarize that its a choice to work in an environment, you can always leave, no one is forced to work anywhere.

Those that are actually being harassing in the workplace should be criminally charged. Otherwise, its just rumour that has destroyed many people's lives, all for someone to make a quick buck. I don't agree that we should have lower standards of evidence (like at Human Rights trials) to give someone money or force a change in policy.

If the person is guilty, then bring them before a judge. Otherwise, I have no respect for the tribunals or anything they do.

[Rue]

RB is dead on. I am a lawyer (too?) and would have given you the same

cases and said what RB did. And RB is right kiddo. Don't cheat too much, do

some of this yourself! That said, I think the key to your story is this-when you say no,

it should end right there. If you tell someone no, and then they persist, that is harassment.

The fact that it is happening at work makes it a workplace harassment. There's two kinds

of workplace harassment. One is by someone who is in a position of power over you and

can hire and fire you, and one is by someone on an equal level. Either way if the harassement

causes you to feel unsafe at work and is unwelcome there is a problem.

Now the problem you will see is this; in theory yes what you describe is sexual

harassment. Its also interesting because the harasser is trying to mask the harassment by

suggesting the target is racist. This is a classic case of trying to manipulate the situation by raising the race card. People can and do use the race or sex card to mask their behaviour and it makes things

complicated.

As well as another poster said, you have to make sure that what you have been told is accurate or credible before you defend the person.

Assuming it is, then you have to deal with the real world and practical limitations.

If you are on a job and this guy fires you, sure you can go to the Human Rights Commission and make a complaint but it might be 2, 3, 5 years before they get around to it, and quite frankly the Ontario Human Rights Commission is full of useless idiots doing useless things and all they may do is frustrate the

person further.

The other option is to sue for unfair dismissal if fired, or constructive dismissal if the person had to quit work because it was no longer bearable. So you sue. Here is the problem with that. The lawyer's fee may be quite large and certainly more then any remedy you might expect to get so the cost of the legal action may make it impractical.

Here is what also makes it impractical to sue. Since this person is not rich and needs to work, they will have to go find another job as soon as possible. In that case, when you sue, you can only sue for the lost wages until the person starts getting paid again...not only that even if this person is entitled to something for emotional damages on top of the lost salary, it may not be enough to justify hiring a lawyer.

The person could go to Small Claims Court without representation but they have to be willing to read up on the law and have the kind of personality where they don't get intimidated and can speak in public.

This is why in so many cases, people just quit and never tell anyone.

Good luck.

By the way, if this happens in a unionized environment, the worker would go to their union steward. If it was between workers the union steward would try mediate a resolution first. If it was between a manager and a worker the union steward would follow procedures to try mediate it first. Then after that fails, the union would file a grievance before an arbitrator. In a unionized environment the worker would have a way to

grieve the behaviour and be protected while waiting for it to be resolved.

So while some people hate unions, if you are a worker in such situations its a hell of a lot better.

Some workplaces have zero tolerance with sexual harassment but the problem is their internal investigation and dispute resolution processes may sound good but may be useless.

I once investigated a manager who raped illegal immigrants working for him in a hospital. The hospital appointed a female mediator who then covered up what happened and protected the manager.

It took a huge battle to expose the manager and the corupted mediation process and when all was said and done the $20,000 the individual got is well how do I say it, not much for what this illegal immigrant went through, and after all that, she was deported to Portugal and there was insufficient evidence

for the Crown to have gone through with a criminal case because of the time lapse and the illegal immigrant's lack of willingness to go through a criminal trial.

[Leafless]

Rue

You wrote:

"This is why in so many cases, people just quit and never tell anyone."

The only problem with that is some people cannot afford to quit.

If you quit your not eligible for E.I. unless you prove your case which in many situations like the one described is impossible.

Could be best, if you can't quit is get yourself fired.

[RB]

injusticebuster

I am sorry and sympatise with your condition, and also about your difficulty accessing the rewards you seek.

I sincerely hope you do continue to manage your stresses, as you seem to read on bi-polar disorder.

But, this forum is a perfect place to draw attention to some of the real issues as hand and share your experience with us.

You had mentioned accommodation in one of your writings. You said you worked and I gathered quit, or dismissed from your jobs.

So here is my take on accommodation.

There are no set rules of how diligent an employer must pursue its duty to accommodate a disability. What I mean is that scope of the duty to accommodate a person is what must be considered and the exact scope is still unclear in some areas.

Under s.17 of the Code the employer may require an employee with a disability to perform duties that are essential. For example: if the job requires you to drive to customers to their sites on a daily basis, then essential means a drivers license. However, if customers usually show up at your site and only occasionally you go to their site, then you can be accommodated.

Well, if an employer can map out "essential" to the point of undue hardship (mean they won't lose their business) then accommodation is carried out.

Employers are required to test disabled people to determine if their disability affects their ability to perform work.

Essex Police Services Board v. Exxes Police Association gives guidance on how far an employer must go to accommodate a disable person.

Employees have an obligation to cooperate for example: responding to request for medical reports say to support absences. Salim Al-Saidi and Brio beverages Inc. case in point showed that employees failure to comply with company's absence policy led to the Alberta Human rights Tribunal to find that despite a disability the employer did not discriminate when they terminated employment.

Most good companies have guidelines on how to treat accommodation request.

[injusticebuster]

RB

Court Challanges Program says my case has Charter merits and I am getting funds from them.

I can rely on the recent decision of Ontario Human Rights Commission because Vice-Chair Kelly refused to pause a hearing when I had a panic attack and he was laughing in sadistic manner and making derogatory comments just like in Melba Braithwaite's case, who had schizophrenia, was left to shower alone "even though she was subject to seizures and supposed to be supervised while she was in the shower," her daughter wrote in an affidavit filed with the Ontario Human Rights Commission. When she collapsed in the shower, the nurse initially refused to attend to her, Renata Braithwaite alleged. "By the time the nurse attended to my mother, she had no vital signs...."as per recent decisron "The complainants have been denied the equal benefit of the law," Cory wrote in his 15-page decision, noting that the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms guarantee every person equal treatment without discrimination due to disability.

The Commission refused to take my complaint. It dsicriminated against me when it failed to accommodate me on many occasions and call me for job interviews contrary to its own guideline.

Court Challanges Program says my case has Charter merits and I am getting funds from them.

I can rely on the recent decision of Ontario Human Rights Commission because Vice-Chair Kelly refused to pause a hearing when I had a panic attack and he was laughing in sadistic manner and making derogatory comments just like in Melba Braithwaite's case, who had schizophrenia, was left to shower alone "even though she was subject to seizures and supposed to be supervised while she was in the shower," her daughter wrote in an affidavit filed with the Ontario Human Rights Commission. When she collapsed in the shower, the nurse initially refused to attend to her, Renata Braithwaite alleged. "By the time the nurse attended to my mother, she had no vital signs...."as per recent decisron "The complainants have been denied the equal benefit of the law," Cory wrote in his 15-page decision, noting that the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms guarantee every person equal treatment without discrimination due to disability.

http://www.thestar.com/NASApp/cs/Co...ol=969483202845

The Commission refused to take my complaint. It dsicriminated against me when it failed to even consider to accommodate me on many occasions and call me for job interviews contrary to its own guideline.

In Meiorin McLachlin J. said: “Courts and tribunals should be sensitive to the various ways in which individual capabilities may be accommodated”.

It deliberately violated my dignity just like in Halpern's case when he was refused to marry the same sex spouse.

This case concerns intentional devaluation and marginalization of the mentally ill Applicant as a citizen and a member of society by both governments of Ontario and Canada. (Law v. Canada)

The Ontario Human Rights Code, R.S.O. 1990, c. H.19, also recognizes the importance of protecting the dignity of all persons. The preamble affirms that “the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. It states:

t is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province.

Further the Ontario Human Rights Commission failed to enforce her own following guidelines when dealing with me:

Although mental disability is a form of non-evident disability, it raises particular issues that merit independent consideration. Over the years, many employers have expressed the need for specific guidance on the issue of mental disability. Section 10 of the Code expressly includes mental disabilities. Persons with mental disabilities face a high degree of stigmatization and significant barriers to employment opportunities. Stigmatization can foster a climate that exacerbates stress, and may trigger or worsen the person's condition. It may also mean that someone who has a problem and needs help may not seek it, for fear of being labeled.

In Gibbs v. Battlefords the Supreme Court of Canada has recognized the distinct disadvantage and negative stereotyping faced by persons with mental disabilities, and has held that discrimination against individuals with mental disabilities is unlawful.

Discrimination under the Code can be direct (refusal to grant a job or provide access to services or housing, for example, because of a disability), indirect, constructive (adverse effect) or based on society's failure to accommodate actual differences.

In some cases, it will be clear that discrimination has occurred. In others, a preliminary assessment tool may be helpful. The Supreme Court of Canada has suggested three broad inquiries to determine if discrimination has taken place:

(1) Differential Treatment

Was there substantively differential treatment, either because of a distinction, exclusion or preference, or because of a failure to take into account the complainant's already disadvantaged position within Canadian society?

(2) An Enumerated Ground

Was the differential treatment based on an enumerated ground?

(3) Discrimination in a Substantive Sense

Finally, does the differential treatment discriminate by imposing a burden upon, or withholding a benefit from, an individual? The discrimination might be based on stereotypes of a presumed group or personal characteristics, or might perpetuate or promote the view that an individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society who is equally deserving of concern, respect and consideration. Does the differential treatment amount to discrimination because it makes distinctions that are offensive to human dignity?

Given the clear historical disadvantage experienced by persons with disabilities, it is likely that most differential treatment because of disability will result in a finding of prima facie discrimination. This would include not only unfair treatment because of disability, but also neutral factors or requirements that have an adverse impact on persons with disabilities. It would also include inappropriate responses or a lack of response to the complainant's condition or stated need for accommodation.

Discrimination under the Code can be direct (refusal to grant a job or provide access to services or housing, for example, because of a disability), indirect, constructive (adverse effect) or based on society's failure to accommodate actual differences.

The duty to accommodate a disability exists for needs that are known. Organizations and persons responsible for accommodation are not, as a rule, expected to accommodate disabilities of which they are unaware. However, some individuals may be unable to disclose or communicate their needs because of the nature of their disability. In such circumstances, employers should attempt to assist a person who is clearly unwell or perceived to have a disability, by offering assistance and accommodation.

Before terminating or sanctioning an employee for "unacceptable behavior", an employer might first consider whether the actions of the employee are caused by a disability, especially where the employer is aware or perceives that the employee has a disability. Employers should always inform all employees that a disability-related assessment or accommodation can be provided as an option to address performance issues.

Progressive performance management and discipline as well as employee assistance supports ensure that all employees have a range of opportunities to address performance issues on an individualized basis before sanctions or termination are considered. For example, severe change in an employee's behavior could signal to an employer that the situation warrants further examination.

Mental illness should be addressed and accommodated in the workplace like any other disability. In some cases, an employer may be required to pay special attention to situations that could be linked to mental disability. Even if an employer has not been formally advised of a mental disability, the perception of such a disability will engage the protection of the Code. Prudent employers should try to offer assistance and support to employees before imposing severe sanctions. It should be borne in mind that some mental illnesses may render the employee incapable of identifying his or her needs.

Once disability-related needs are known, the legal onus shifts to those with the duty to accommodate. For example, counseling or referral through Employee Assistance Programs (EAPs) could be the solution for an underlying disability that might be aggravated by workplace or personal stress.

In Grismer, the Supreme Court of Canada therefore defines accommodation in generally as “what is required in the circumstances to avoid discrimination”

In Thwaites v. Canadian Armed Forces, the Tribunal stated “the employer must show that it could not have done anything else reasonable or practical to avoid the negative impact on the individual.”

In Cameron, Mr. Justice Cumming wrote: “The objectives of the Code’s handicap provisions as they relate to employment are several. First, there is an objective of securing for the handicapped person equality of opportunity with respect to employment. Everyone deserves the same opportunity and chance to make the most of life, regardless of physical or mental handicap. A corollary is to require an employer to make a decision respecting employment of a handicapped person based upon a fair and accurate assessment of her true ability, and not based upon a stereotype or misconception about her handicap.”

In Engel v. Mount Sinai Hospital, the Tribunal stated as follows: “The focus of the legislation is to protect the rights of disabled individuals, among other groups, and to ensure that they have access to the employment opportunities, dignity, and respect that the able-bodied have”.

In Martin, the Court stated that it “has consistently recognized that persons with mental disabilities have suffered considerable historical disadvantage and stereotypes.”

In Morris v. British Columbia Rail, the Tribunal stated that “There are few illnesses as little understood as mental illnesses. While societal understanding and acceptance of persons suffering from mental illness is improving, it remains the fact that persons with mental illness may be subject to prejudice and stereotyping.”

In Morris v. British Columbia Rail, in which a decision was made by an employer to terminate an employee living with major depression while away from work on a medical leave of absence. the Tribunal stated that “the fact that an employer makes the decision to terminate a disabled employee’s employment while that employee is on a leave related to disability should be taken into account in determining whether one can infer that the employee’s disability was a factor in the employer’s decision-making.”

In Bernard v. Waycobah Board of Education, an employee was terminated because of a concern that people in the community considered her to be “crazy.”

In Bultemeyer, the Court stated that “properly participating in the interactive process means that an employer cannot expect an employee to read its mind and know that her or she must specifically say ‘I want a reasonable accommodation,’ particularly when the employee has a mental illness. The employer has to meet the employee half-way, and if it appears that the employee may need an accommodation but doesn’t know how to ask for it, the employer should do what it can to help.” In Miller, the Court stated that “f, moreover, the nature of the disability is such as to impair the employee’s ability to communicate with his or her needs, as will sometimes be the case with mental disabilities, the employer, provided of course that he is on notice that the employee has a disability, has to make a reasonable effort to understand what those needs are even if they are not clearly communicated to him.”

David Lepofsky in "Equality Rights for Handicapped Persons in the Charter: Putting the Accent on Individual Ability" Proceedings of Cambridge Lecture Series (1985) (forthcoming) at 27 states the following purposes underlie section 15's promise of equality for disabled persons:

(1) Section 15 seeks to ensure that in its dealings with mentally and physically disabled persons, all agencies of government, legislative, judicial and administrative, respect the dignity, worth, individuality and personal autonomy of these persons, recognizing that these individuals are first and foremost individuals and not merely members of some socially-created category such as "the handicapped";

(2) Section 15 seeks to ensure that when governments make or implement laws and policy or undertake initiatives having an impact on the rights, benefits, privileges, obligations or opportunities of handicapped individuals, government should conduct these activities based on a fair and accurate assessment of the individual abilities of handicapped persons, and not based upon stereotypes, preconceptions, prejudgments, paternalism, or morally unacceptable indifference to handicapped persons' rights to full participation;

(3) Section 15 seeks to ensure that governments recognize that every individual is equal, but that every individual is not identical to all others. Thus, the business of government should be carried on based on respect for the similarities between individuals, and a recognition and accommodation of differences between individuals, in order to ensure equality of opportunity for all.

Beginning with Andrews v. Law Society of British Columbia, the Court favour substantive equality approach in which a claimant does not need to prove discriminatory intent and the focus is placed on the effect of the discrimination on him or her.

In Andrews, McIntyre J. stated:

Discrimination is unacceptable in a democratic society because it epitomizes the worst effects of the denial of equality, and discrimination reinforced by law is particularly repugnant. The worst oppression will result from discriminatory measures having the force of law.

The Commission ignored all the evidence and Rose De Stefano did lie when she stated she could no find witnessess. She told me to drop my complaints because the Commission did not like that type and at the time it allocated all resources to guarantee a right to party for naked, drunk lesbians in bathhouse.

The Respondents ignored the difficulty recognized in the case law of proving discrimination. The basis for requiring that ethnic origin or race be only a factor in the termination is the recognized difficulty in proving allegations of race discrimination by way of direct evidence. As was noted in Basi v. Canadian National Railway Co. (No. 1) (1988), 9 C.H.R.R. D/5029 (C.H.R.T.) at para. 38481:

Discrimination is not a practice which one would expect to see displayed overtly. In fact, rarely are there cases where one can show by direct evidence that discrimination is purposely practiced.

It has been held consistently that intent or motive to discriminate is not a necessary element of discrimination. In Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears Ltd. the court said:

The proof of intent, a necessary requirement in our approach to criminal and punitive legislation, should not be a governing factor in construing human rights legislation aimed at the elimination of discrimination. It is my view that the courts below were in error in finding an intent to discriminate to be a necessary element of proof.

Further, it is not the motivation or knowledge of the employer that is in issue; it is the effect of the discrimination on the complainant. This is highlighted most notably in cases of constructive dismissal, such as Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536 (S.C.C.).

There is ample judicial authority for the principle that an employer has a positive duty to familiarize himself and be aware of circumstances at the workplace that may result in anxiety and excessive stress. Ignorance because of willful blindness does not accord with the standards demanded in determining whether or not discriminatory treatment has taken place. When there are clear and ample signs that an employee is working in an environment that is unsafe and when the employee exhibits signs that clearly indicate that the work environment is causing her health to become deleterious, the employer is deemed to have an obligation to be aware of and ultimately responsible for eradicating and eliminating the factors and conditions which cause the threat to the employee’s health. Many persons who are unwell are often unaware of their condition and therefore cannot communicate it to the employer or any other party in a timely fashion. This is so even when they exhibit clear symptoms of their disability. Therefore, it cannot be argued that the Applicant’s employers were not aware of or only should have become aware of the Applicant’s disability when he raised it explicitly.

Just because I did not carry a white cane, use a hearing aid, or get around in a wheelchair, did not make me any less deserving of accommodation recognition of his debilitating condition. The refusal ignores the fundamental principle of human rights law that accommodation is a right, not an indulgence granted by one’s employer or, worse yet, an act of charity. The Supreme Court of Canada in Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, struck down time limit provisions as contrary to the equality guarantees of section 15(1) of the Charter of Rights and Freedoms in that they deprived such disabled persons of the continuing benefits that were available to “mainstream” recipients.

Even if one accepts that the employer was not aware that its conduct was discriminatory or did not know of the my disability, if its conduct has a discriminatory effect, the intent of an employer is irrelevant. Andrews v Law Society of B.C. (1989) 1 S.C.R 143 at 164-171; Law v Canada at par 25, 38 and 81.

The Supreme Court of Canada has emphasized that the focus of the discrimination “must always remain upon the central question of whether, viewed from the perspective of the claimant, the differential treatment imposed by the legislation has the effect of violating human dignity.” As Justice Iacobucci stated in Law:

“[h]uman dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law.” Writing for the Court, he explained that “human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment” and with “the realization of personal autonomy and self-determination.”

Law, supra, at paras.53 and 70 (emphasis added); Corbiere v. Canada, [1999] 2 S.C.R.

203 at para.59; M. v. H., supra at para.70; Rodriguez v. B.C., [1993] 3 S.C.R. 519 at

para.61

A human rights Tribunal engaged in a “dignity” analysis should therefore ask whether, viewed from the perspective of the complainant, the differential treatment imposed by the respondent has the effect of violating human dignity. In answering that central question, the Tribunal may consider such factors as (1) whether the respondent’s impugned conduct had an adverse effect on the complainant’s feelings of self-respect and self-worth, (2) whether it impaired the complainant’s physical and psychological integrity and empowerment, or (3) whether it interfered with the complainant’s realization of personal autonomy and self-determination.

The jurisprudence calls lower onus for mental disabilities. These disabilities come in many varieties, are often difficult to detect and assess, and employees are usually reluctant to reveal them because of the enormous attendant social stigma. The breadth of this stigma has been expressed by the Supreme Court of Canada in R v. Swain.

Where an employee’s capacity for rational judgment is impaired by a mental disability, human rights tribunals and labour arbitrators have placed a higher onus on employers to accommodate the employee.

In Lussa v. Health Sciences Centre, Mr. Justice Kroft said:

It seems to me that when we are dealing with people of questionable mental capacity, there is some obligation to show, not only that the necessary information was given, but it was understood; or alternately that the person in question was unable to understand.

The fact that the employee did not disclose the mental disability when she was hired, did not provide the employer with a medical diagnosis while in the throes of the illness, did not disclose the mental illness until two years after being terminated does not necessarily disentitle him or her to accommodation. Nor can an employer rely upon the unsympathetic attitudes of others to justify terminating an employee with a mental illness.

As well, where the illness causes erratic behavior at work, recent rulings have said that the employer in some cases ought to have been aware of a link between the work problems and the employee’s condition. In Allbright Cleaners Ltd., the employee had been hospitalized for depression, and a distinct change in her behavior had been observed by the employer. The human rights tribunal found that it was already apparent to the employer, when it dismissed her, that she was suffering from a mental disability. Instead of firing her, the tribunal ruled, the employer should have sought to accommodate her. It upheld the employee’s complaint. An employee who is recovering from depression is entitled to be reasonably accommodated by her or his employer when attempting to return to work In McConnell v. Yukon (Public Service Commission), a Yukon Territory board of adjudication held that the employer’s efforts to accommodate an employee seeking to return to work after recovering from depression were inadequate.

On occasion, an employer, and even an employee, will be unaware of the disability until after the employee’s termination for apparently culpable reasons. While the duty upon an employer to accommodate is not triggered until the employee notifies the employer of the need, the duty remains alive even if the notification does not occur until after the termination. In Re Ottawa Civic Hospital, the employer only learned of the griever’s drug and alcohol dependency after terminating her for excessive absenteeism. The arbitration board ruled that:

Even if the [Human Rights] Code does not apply to a dismissal which occurred before a handicap is known, this legislation would apply to a refusal to reinstate the complainant once the disability has been revealed

Similarly in Re Canada Safeway Ltd., medical information about the mental disability of a terminated employee was provided to the employer only after the dismissal. He had been fired following a long history of poor performance, lack of response to criticism, and baffling behavior. Just before the commencement of the arbitration hearing, almost two years later, the employee was diagnosed as suffering from controllable

schizophrenia. In its award, the arbitration board ruled that the employer had cause at the time of the termination to suspect a mental illness. Since the illness was controllable, it directed that the employee be reinstated, subject to specific conditions, and without back pay:

The investigator reached conclusions regarding the legitimacy of the Applicant’s employers’ version of the events as compared to the legitimacy of the Appelicant’s version of the events. It is a fundamental principle that an investigator should not reach conclusions of credibility during the investigation stage when that function should have been left to a later assessment by the Tribunal at a hearing. In any event, on the entirety of the evidence, unresolved issues of credibility warrant a hearing. Bryan v Premark Canada Inc., (1999) O.H.R.B.I. D. No. 5 (Ont. Bd. of Inq.); Larsh v Canada (Attorney General), (1999) F.C.J. No. 508 (T.D.); Khan v University of Ottawa (1997), 34 O.R. (3d 535 (C.A.) and Anselm v Ontario H.R.C., (1998) O.J. No 2577 (Gen.Div.).

The Applicant submits that the Respondents have not maintained an open mind and have wrongly concluded that the complaint should not proceed beyond the investigation stage. Ms. De Stefano has thus predetermined an issue which should have been decided by the Commission at the hearing stage. Bell Canada V C.E.P.U. (3d) C.H.R.R. Vol. 31, Decision 3, par 31

While purporting to make a decision as to whether or not there was sufficient evidence to prove the Appellant’s complainants, the investigation report usurped the proper function of a Board of Inquiry which is the arena where the merits of a complaint should be decided on the balance of probabilities. Moagi (1986), 69 N.R. 229 (F.C.A.); Owusu-Ausah (1989), 8 lmm. L.R (2d), 106 (F.C.A.); Tung (1991), 124 N.R. 388 (F.C.A.) at pps 393-394 and You Zen Wu (F.C.A.) May 25, (1992), p.2.

Res Ipsa Loquitor

As you see I have knowledge and bviously the Ontario Human Rights Commission, Ministry of Labour and Ombudsman Ontario discriminated against me when they failed to call me for job interviews.

In Kanags Premakumar v. Air Canada, the Tribunal stated:

In a case of this nature, the burden of proof is on Mr. Premakumar to establish a prima facie case of discrimination. Once that is done, the burden shifts to the respondent to provide a reasonable explanation for the conduct in issue. A prima facie case is one which covers the allegations made, and which, if believed, is complete and sufficient to justify a verdict in Mr. Premakumar's favour, in the absence of an answer from the respondent.

(1) In the human rights context proof of an affront to the claimant’s dignity is not required because the legislature has already pre-determined which types of distinctions are sufficiently critical to human dignity that they ought to be proscribed. By circumscribing the specific areas of private activity that human rights legislation regulates (i.e., employment, housing and access to public services), the legislature has determined that decisions about where people may live, where they may work, and how they may interact in the marketplace are so fundamental that differential treatment in respect of them is presumed to impact on human dignity. It is worthy of note that, in s.15 jurisprudence, the Supreme Court of Canada has mirrored these value judgments by, for example, emphasizing the importance of employment as “a fundamental aspect of …human dignity.” The difference in the human rights context is that such findings have already been made by the legislature and it is therefore unnecessary (and inappropriate) for tribunals to require human rights complainants to demonstrate an infringement of their dignity as a component of their prima facie case of discrimination.

[injusticebuster]

RB

Court Challanges Program says my case has Charter merits and I am getting funds from them.

I can rely on the recent decision of Ontario Human Rights Commission because Vice-Chair Kelly refused to pause a hearing when I had a panic attack and he was laughing in sadistic manner and making derogatory comments just like in Melba Braithwaite's case, who had schizophrenia, was left to shower alone "even though she was subject to seizures and supposed to be supervised while she was in the shower," her daughter wrote in an affidavit filed with the Ontario Human Rights Commission. When she collapsed in the shower, the nurse initially refused to attend to her, Renata Braithwaite alleged. "By the time the nurse attended to my mother, she had no vital signs...."as per recent decisron "The complainants have been denied the equal benefit of the law," Cory wrote in his 15-page decision, noting that the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms guarantee every person equal treatment without discrimination due to disability.

http://www.thestar.com/NASApp/cs/Co...ol=969483202845

The Commission refused to take my complaint. It dsicriminated against me when it failed to even consider to accommodate me on many occasions and call me for job interviews contrary to its own guideline.

In Meiorin McLachlin J. said: “Courts and tribunals should be sensitive to the various ways in which individual capabilities may be accommodated”.

It deliberately violated my dignity just like in Halpern's case when he was refused to marry the same sex spouse.

This case concerns intentional devaluation and marginalization of the mentally ill Applicant as a citizen and a member of society by both governments of Ontario and Canada. (Law v. Canada)

The Ontario Human Rights Code, R.S.O. 1990, c. H.19, also recognizes the importance of protecting the dignity of all persons. The preamble affirms that “the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. It states:

t is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province.

Further the Ontario Human Rights Commission failed to enforce her own following guidelines when dealing with me:

Although mental disability is a form of non-evident disability, it raises particular issues that merit independent consideration. Over the years, many employers have expressed the need for specific guidance on the issue of mental disability. Section 10 of the Code expressly includes mental disabilities. Persons with mental disabilities face a high degree of stigmatization and significant barriers to employment opportunities. Stigmatization can foster a climate that exacerbates stress, and may trigger or worsen the person's condition. It may also mean that someone who has a problem and needs help may not seek it, for fear of being labeled.

In Gibbs v. Battlefords the Supreme Court of Canada has recognized the distinct disadvantage and negative stereotyping faced by persons with mental disabilities, and has held that discrimination against individuals with mental disabilities is unlawful.

Discrimination under the Code can be direct (refusal to grant a job or provide access to services or housing, for example, because of a disability), indirect, constructive (adverse effect) or based on society's failure to accommodate actual differences.

In some cases, it will be clear that discrimination has occurred. In others, a preliminary assessment tool may be helpful. The Supreme Court of Canada has suggested three broad inquiries to determine if discrimination has taken place:

(1) Differential Treatment

Was there substantively differential treatment, either because of a distinction, exclusion or preference, or because of a failure to take into account the complainant's already disadvantaged position within Canadian society?

(2) An Enumerated Ground

Was the differential treatment based on an enumerated ground?

(3) Discrimination in a Substantive Sense

Finally, does the differential treatment discriminate by imposing a burden upon, or withholding a benefit from, an individual? The discrimination might be based on stereotypes of a presumed group or personal characteristics, or might perpetuate or promote the view that an individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society who is equally deserving of concern, respect and consideration. Does the differential treatment amount to discrimination because it makes distinctions that are offensive to human dignity?

Given the clear historical disadvantage experienced by persons with disabilities, it is likely that most differential treatment because of disability will result in a finding of prima facie discrimination. This would include not only unfair treatment because of disability, but also neutral factors or requirements that have an adverse impact on persons with disabilities. It would also include inappropriate responses or a lack of response to the complainant's condition or stated need for accommodation.

Discrimination under the Code can be direct (refusal to grant a job or provide access to services or housing, for example, because of a disability), indirect, constructive (adverse effect) or based on society's failure to accommodate actual differences.

The duty to accommodate a disability exists for needs that are known. Organizations and persons responsible for accommodation are not, as a rule, expected to accommodate disabilities of which they are unaware. However, some individuals may be unable to disclose or communicate their needs because of the nature of their disability. In such circumstances, employers should attempt to assist a person who is clearly unwell or perceived to have a disability, by offering assistance and accommodation.

Before terminating or sanctioning an employee for "unacceptable behavior", an employer might first consider whether the actions of the employee are caused by a disability, especially where the employer is aware or perceives that the employee has a disability. Employers should always inform all employees that a disability-related assessment or accommodation can be provided as an option to address performance issues.

Progressive performance management and discipline as well as employee assistance supports ensure that all employees have a range of opportunities to address performance issues on an individualized basis before sanctions or termination are considered. For example, severe change in an employee's behavior could signal to an employer that the situation warrants further examination.

Mental illness should be addressed and accommodated in the workplace like any other disability. In some cases, an employer may be required to pay special attention to situations that could be linked to mental disability. Even if an employer has not been formally advised of a mental disability, the perception of such a disability will engage the protection of the Code. Prudent employers should try to offer assistance and support to employees before imposing severe sanctions. It should be borne in mind that some mental illnesses may render the employee incapable of identifying his or her needs.

Once disability-related needs are known, the legal onus shifts to those with the duty to accommodate. For example, counseling or referral through Employee Assistance Programs (EAPs) could be the solution for an underlying disability that might be aggravated by workplace or personal stress.

In Grismer, the Supreme Court of Canada therefore defines accommodation in generally as “what is required in the circumstances to avoid discrimination”

In Thwaites v. Canadian Armed Forces, the Tribunal stated “the employer must show that it could not have done anything else reasonable or practical to avoid the negative impact on the individual.”

In Cameron, Mr. Justice Cumming wrote: “The objectives of the Code’s handicap provisions as they relate to employment are several. First, there is an objective of securing for the handicapped person equality of opportunity with respect to employment. Everyone deserves the same opportunity and chance to make the most of life, regardless of physical or mental handicap. A corollary is to require an employer to make a decision respecting employment of a handicapped person based upon a fair and accurate assessment of her true ability, and not based upon a stereotype or misconception about her handicap.”

In Engel v. Mount Sinai Hospital, the Tribunal stated as follows: “The focus of the legislation is to protect the rights of disabled individuals, among other groups, and to ensure that they have access to the employment opportunities, dignity, and respect that the able-bodied have”.

In Martin, the Court stated that it “has consistently recognized that persons with mental disabilities have suffered considerable historical disadvantage and stereotypes.”

In Morris v. British Columbia Rail, the Tribunal stated that “There are few illnesses as little understood as mental illnesses. While societal understanding and acceptance of persons suffering from mental illness is improving, it remains the fact that persons with mental illness may be subject to prejudice and stereotyping.”

In Morris v. British Columbia Rail, in which a decision was made by an employer to terminate an employee living with major depression while away from work on a medical leave of absence. the Tribunal stated that “the fact that an employer makes the decision to terminate a disabled employee’s employment while that employee is on a leave related to disability should be taken into account in determining whether one can infer that the employee’s disability was a factor in the employer’s decision-making.”

In Bernard v. Waycobah Board of Education, an employee was terminated because of a concern that people in the community considered her to be “crazy.”

In Bultemeyer, the Court stated that “properly participating in the interactive process means that an employer cannot expect an employee to read its mind and know that her or she must specifically say ‘I want a reasonable accommodation,’ particularly when the employee has a mental illness. The employer has to meet the employee half-way, and if it appears that the employee may need an accommodation but doesn’t know how to ask for it, the employer should do what it can to help.” In Miller, the Court stated that “f, moreover, the nature of the disability is such as to impair the employee’s ability to communicate with his or her needs, as will sometimes be the case with mental disabilities, the employer, provided of course that he is on notice that the employee has a disability, has to make a reasonable effort to understand what those needs are even if they are not clearly communicated to him.”

David Lepofsky in "Equality Rights for Handicapped Persons in the Charter: Putting the Accent on Individual Ability" Proceedings of Cambridge Lecture Series (1985) (forthcoming) at 27 states the following purposes underlie section 15's promise of equality for disabled persons:

(1) Section 15 seeks to ensure that in its dealings with mentally and physically disabled persons, all agencies of government, legislative, judicial and administrative, respect the dignity, worth, individuality and personal autonomy of these persons, recognizing that these individuals are first and foremost individuals and not merely members of some socially-created category such as "the handicapped";

(2) Section 15 seeks to ensure that when governments make or implement laws and policy or undertake initiatives having an impact on the rights, benefits, privileges, obligations or opportunities of handicapped individuals, government should conduct these activities based on a fair and accurate assessment of the individual abilities of handicapped persons, and not based upon stereotypes, preconceptions, prejudgments, paternalism, or morally unacceptable indifference to handicapped persons' rights to full participation;

(3) Section 15 seeks to ensure that governments recognize that every individual is equal, but that every individual is not identical to all others. Thus, the business of government should be carried on based on respect for the similarities between individuals, and a recognition and accommodation of differences between individuals, in order to ensure equality of opportunity for all.

Beginning with Andrews v. Law Society of British Columbia, the Court favour substantive equality approach in which a claimant does not need to prove discriminatory intent and the focus is placed on the effect of the discrimination on him or her.

In Andrews, McIntyre J. stated:

Discrimination is unacceptable in a democratic society because it epitomizes the worst effects of the denial of equality, and discrimination reinforced by law is particularly repugnant. The worst oppression will result from discriminatory measures having the force of law.

The Commission ignored all the evidence and Rose De Stefano did lie when she stated she could no find witnessess. She told me to drop my complaints because the Commission did not like that type and at the time it allocated all resources to guarantee a right to party for naked, drunk lesbians in bathhouse.

The Respondents ignored the difficulty recognized in the case law of proving discrimination. The basis for requiring that ethnic origin or race be only a factor in the termination is the recognized difficulty in proving allegations of race discrimination by way of direct evidence. As was noted in Basi v. Canadian National Railway Co. (No. 1) (1988), 9 C.H.R.R. D/5029 (C.H.R.T.) at para. 38481:

Discrimination is not a practice which one would expect to see displayed overtly. In fact, rarely are there cases where one can show by direct evidence that discrimination is purposely practiced.

It has been held consistently that intent or motive to discriminate is not a necessary element of discrimination. In Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears Ltd. the court said:

The proof of intent, a necessary requirement in our approach to criminal and punitive legislation, should not be a governing factor in construing human rights legislation aimed at the elimination of discrimination. It is my view that the courts below were in error in finding an intent to discriminate to be a necessary element of proof.

Further, it is not the motivation or knowledge of the employer that is in issue; it is the effect of the discrimination on the complainant. This is highlighted most notably in cases of constructive dismissal, such as Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536 (S.C.C.).

There is ample judicial authority for the principle that an employer has a positive duty to familiarize himself and be aware of circumstances at the workplace that may result in anxiety and excessive stress. Ignorance because of willful blindness does not accord with the standards demanded in determining whether or not discriminatory treatment has taken place. When there are clear and ample signs that an employee is working in an environment that is unsafe and when the employee exhibits signs that clearly indicate that the work environment is causing her health to become deleterious, the employer is deemed to have an obligation to be aware of and ultimately responsible for eradicating and eliminating the factors and conditions which cause the threat to the employee’s health. Many persons who are unwell are often unaware of their condition and therefore cannot communicate it to the employer or any other party in a timely fashion. This is so even when they exhibit clear symptoms of their disability. Therefore, it cannot be argued that the Applicant’s employers were not aware of or only should have become aware of the Applicant’s disability when he raised it explicitly.

Just because I did not carry a white cane, use a hearing aid, or get around in a wheelchair, did not make me any less deserving of accommodation recognition of his debilitating condition. The refusal ignores the fundamental principle of human rights law that accommodation is a right, not an indulgence granted by one’s employer or, worse yet, an act of charity. The Supreme Court of Canada in Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, struck down time limit provisions as contrary to the equality guarantees of section 15(1) of the Charter of Rights and Freedoms in that they deprived such disabled persons of the continuing benefits that were available to “mainstream” recipients.

Even if one accepts that the employer was not aware that its conduct was discriminatory or did not know of the my disability, if its conduct has a discriminatory effect, the intent of an employer is irrelevant. Andrews v Law Society of B.C. (1989) 1 S.C.R 143 at 164-171; Law v Canada at par 25, 38 and 81.

The Supreme Court of Canada has emphasized that the focus of the discrimination “must always remain upon the central question of whether, viewed from the perspective of the claimant, the differential treatment imposed by the legislation has the effect of violating human dignity.” As Justice Iacobucci stated in Law:

“[h]uman dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law.” Writing for the Court, he explained that “human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment” and with “the realization of personal autonomy and self-determination.”

Law, supra, at paras.53 and 70 (emphasis added); Corbiere v. Canada, [1999] 2 S.C.R.

203 at para.59; M. v. H., supra at para.70; Rodriguez v. B.C., [1993] 3 S.C.R. 519 at

para.61

A human rights Tribunal engaged in a “dignity” analysis should therefore ask whether, viewed from the perspective of the complainant, the differential treatment imposed by the respondent has the effect of violating human dignity. In answering that central question, the Tribunal may consider such factors as (1) whether the respondent’s impugned conduct had an adverse effect on the complainant’s feelings of self-respect and self-worth, (2) whether it impaired the complainant’s physical and psychological integrity and empowerment, or (3) whether it interfered with the complainant’s realization of personal autonomy and self-determination.

The jurisprudence calls lower onus for mental disabilities. These disabilities come in many varieties, are often difficult to detect and assess, and employees are usually reluctant to reveal them because of the enormous attendant social stigma. The breadth of this stigma has been expressed by the Supreme Court of Canada in R v. Swain.

Where an employee’s capacity for rational judgment is impaired by a mental disability, human rights tribunals and labour arbitrators have placed a higher onus on employers to accommodate the employee.

In Lussa v. Health Sciences Centre, Mr. Justice Kroft said:

It seems to me that when we are dealing with people of questionable mental capacity, there is some obligation to show, not only that the necessary information was given, but it was understood; or alternately that the person in question was unable to understand.

The fact that the employee did not disclose the mental disability when she was hired, did not provide the employer with a medical diagnosis while in the throes of the illness, did not disclose the mental illness until two years after being terminated does not necessarily disentitle him or her to accommodation. Nor can an employer rely upon the unsympathetic attitudes of others to justify terminating an employee with a mental illness.

As well, where the illness causes erratic behavior at work, recent rulings have said that the employer in some cases ought to have been aware of a link between the work problems and the employee’s condition. In Allbright Cleaners Ltd., the employee had been hospitalized for depression, and a distinct change in her behavior had been observed by the employer. The human rights tribunal found that it was already apparent to the employer, when it dismissed her, that she was suffering from a mental disability. Instead of firing her, the tribunal ruled, the employer should have sought to accommodate her. It upheld the employee’s complaint. An employee who is recovering from depression is entitled to be reasonably accommodated by her or his employer when attempting to return to work In McConnell v. Yukon (Public Service Commission), a Yukon Territory board of adjudication held that the employer’s efforts to accommodate an employee seeking to return to work after recovering from depression were inadequate.

On occasion, an employer, and even an employee, will be unaware of the disability until after the employee’s termination for apparently culpable reasons. While the duty upon an employer to accommodate is not triggered until the employee notifies the employer of the need, the duty remains alive even if the notification does not occur until after the termination. In Re Ottawa Civic Hospital, the employer only learned of the griever’s drug and alcohol dependency after terminating her for excessive absenteeism. The arbitration board ruled that:

Even if the [Human Rights] Code does not apply to a dismissal which occurred before a handicap is known, this legislation would apply to a refusal to reinstate the complainant once the disability has been revealed

Similarly in Re Canada Safeway Ltd., medical information about the mental disability of a terminated employee was provided to the employer only after the dismissal. He had been fired following a long history of poor performance, lack of response to criticism, and baffling behavior. Just before the commencement of the arbitration hearing, almost two years later, the employee was diagnosed as suffering from controllable

schizophrenia. In its award, the arbitration board ruled that the employer had cause at the time of the termination to suspect a mental illness. Since the illness was controllable, it directed that the employee be reinstated, subject to specific conditions, and without back pay:

The investigator reached conclusions regarding the legitimacy of the Applicant’s employers’ version of the events as compared to the legitimacy of the Appelicant’s version of the events. It is a fundamental principle that an investigator should not reach conclusions of credibility during the investigation stage when that function should have been left to a later assessment by the Tribunal at a hearing. In any event, on the entirety of the evidence, unresolved issues of credibility warrant a hearing. Bryan v Premark Canada Inc., (1999) O.H.R.B.I. D. No. 5 (Ont. Bd. of Inq.); Larsh v Canada (Attorney General), (1999) F.C.J. No. 508 (T.D.); Khan v University of Ottawa (1997), 34 O.R. (3d 535 (C.A.) and Anselm v Ontario H.R.C., (1998) O.J. No 2577 (Gen.Div.).

The Applicant submits that the Respondents have not maintained an open mind and have wrongly concluded that the complaint should not proceed beyond the investigation stage. Ms. De Stefano has thus predetermined an issue which should have been decided by the Commission at the hearing stage. Bell Canada V C.E.P.U. (3d) C.H.R.R. Vol. 31, Decision 3, par 31

While purporting to make a decision as to whether or not there was sufficient evidence to prove the Appellant’s complainants, the investigation report usurped the proper function of a Board of Inquiry which is the arena where the merits of a complaint should be decided on the balance of probabilities. Moagi (1986), 69 N.R. 229 (F.C.A.); Owusu-Ausah (1989), 8 lmm. L.R (2d), 106 (F.C.A.); Tung (1991), 124 N.R. 388 (F.C.A.) at pps 393-394 and You Zen Wu (F.C.A.) May 25, (1992), p.2.

Res Ipsa Loquitor

As you see I have knowledge and bviously the Ontario Human Rights Commission, Ministry of Labour and Ombudsman Ontario discriminated against me when they failed to call me for job interviews.

In Kanags Premakumar v. Air Canada, the Tribunal stated:

In a case of this nature, the burden of proof is on Mr. Premakumar to establish a prima facie case of discrimination. Once that is done, the burden shifts to the respondent to provide a reasonable explanation for the conduct in issue. A prima facie case is one which covers the allegations made, and which, if believed, is complete and sufficient to justify a verdict in Mr. Premakumar's favour, in the absence of an answer from the respondent.

(1) In the human rights context proof of an affront to the claimant’s dignity is not required because the legislature has already pre-determined which types of distinctions are sufficiently critical to human dignity that they ought to be proscribed. By circumscribing the specific areas of private activity that human rights legislation regulates (i.e., employment, housing and access to public services), the legislature has determined that decisions about where people may live, where they may work, and how they may interact in the marketplace are so fundamental that differential treatment in respect of them is presumed to impact on human dignity. It is worthy of note that, in s.15 jurisprudence, the Supreme Court of Canada has mirrored these value judgments by, for example, emphasizing the importance of employment as “a fundamental aspect of …human dignity.” The difference in the human rights context is that such findings have already been made by the legislature and it is therefore unnecessary (and inappropriate) for tribunals to require human rights complainants to demonstrate an infringement of their dignity as a component of their prima facie case of discrimination.

- 25 -

[injusticebuster]

injusticebuster

I am sorry and sympatise with your condition, and also about your difficulty accessing the rewards you seek.

I sincerely hope you do continue to manage your stresses, as you seem to read on bi-polar disorder.

But, this forum is a perfect place to draw attention to some of the real issues as hand and share your experience with us.

You had mentioned accommodation in one of your writings. You said you worked and I gathered quit, or dismissed from your jobs.

So here is my take on accommodation.

There are no set rules of how diligent an employer must pursue its duty to accommodate a disability. What I mean is that scope of the duty to accommodate a person is what must be considered and the exact scope is still unclear in some areas.

RB

Court Challanges Program says my case has Charter merits and I am getting funds from them.

I can rely on the recent decision of Ontario Human Rights Commission because Vice-Chair Kelly refused to pause a hearing when I had a panic attack and he was laughing in sadistic manner and making derogatory comments just like in Melba Braithwaite's case, who had schizophrenia, was left to shower alone "even though she was subject to seizures and supposed to be supervised while she was in the shower," her daughter wrote in an affidavit filed with the Ontario Human Rights Commission. When she collapsed in the shower, the nurse initially refused to attend to her, Renata Braithwaite alleged. "By the time the nurse attended to my mother, she had no vital signs...."as per recent decisron "The complainants have been denied the equal benefit of the law," Cory wrote in his 15-page decision, noting that the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms guarantee every person equal treatment without discrimination due to disability.

http://www.thestar.com/NASApp/cs/Co...ol=969483202845

The Commission refused to take my complaint. It dsicriminated against me when it failed to even consider to accommodate me on many occasions and call me for job interviews contrary to its own guideline.

In Meiorin McLachlin J. said: “Courts and tribunals should be sensitive to the various ways in which individual capabilities may be accommodated”.

It deliberately violated my dignity just like in Halpern's case when he was refused to marry the same sex spouse.

This case concerns intentional devaluation and marginalization of the mentally ill Applicant as a citizen and a member of society by both governments of Ontario and Canada. (Law v. Canada)

The Ontario Human Rights Code, R.S.O. 1990, c. H.19, also recognizes the importance of protecting the dignity of all persons. The preamble affirms that “the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. It states:

t is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province.

Further the Ontario Human Rights Commission failed to enforce her own following guidelines when dealing with me:

Although mental disability is a form of non-evident disability, it raises particular issues that merit independent consideration. Over the years, many employers have expressed the need for specific guidance on the issue of mental disability. Section 10 of the Code expressly includes mental disabilities. Persons with mental disabilities face a high degree of stigmatization and significant barriers to employment opportunities. Stigmatization can foster a climate that exacerbates stress, and may trigger or worsen the person's condition. It may also mean that someone who has a problem and needs help may not seek it, for fear of being labeled.

In Gibbs v. Battlefords the Supreme Court of Canada has recognized the distinct disadvantage and negative stereotyping faced by persons with mental disabilities, and has held that discrimination against individuals with mental disabilities is unlawful.

Discrimination under the Code can be direct (refusal to grant a job or provide access to services or housing, for example, because of a disability), indirect, constructive (adverse effect) or based on society's failure to accommodate actual differences.

In some cases, it will be clear that discrimination has occurred. In others, a preliminary assessment tool may be helpful. The Supreme Court of Canada has suggested three broad inquiries to determine if discrimination has taken place:

(1) Differential Treatment

Was there substantively differential treatment, either because of a distinction, exclusion or preference, or because of a failure to take into account the complainant's already disadvantaged position within Canadian society?

(2) An Enumerated Ground

Was the differential treatment based on an enumerated ground?

(3) Discrimination in a Substantive Sense

Finally, does the differential treatment discriminate by imposing a burden upon, or withholding a benefit from, an individual? The discrimination might be based on stereotypes of a presumed group or personal characteristics, or might perpetuate or promote the view that an individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society who is equally deserving of concern, respect and consideration. Does the differential treatment amount to discrimination because it makes distinctions that are offensive to human dignity?

Given the clear historical disadvantage experienced by persons with disabilities, it is likely that most differential treatment because of disability will result in a finding of prima facie discrimination. This would include not only unfair treatment because of disability, but also neutral factors or requirements that have an adverse impact on persons with disabilities. It would also include inappropriate responses or a lack of response to the complainant's condition or stated need for accommodation.

Discrimination under the Code can be direct (refusal to grant a job or provide access to services or housing, for example, because of a disability), indirect, constructive (adverse effect) or based on society's failure to accommodate actual differences.

The duty to accommodate a disability exists for needs that are known. Organizations and persons responsible for accommodation are not, as a rule, expected to accommodate disabilities of which they are unaware. However, some individuals may be unable to disclose or communicate their needs because of the nature of their disability. In such circumstances, employers should attempt to assist a person who is clearly unwell or perceived to have a disability, by offering assistance and accommodation.

Before terminating or sanctioning an employee for "unacceptable behavior", an employer might first consider whether the actions of the employee are caused by a disability, especially where the employer is aware or perceives that the employee has a disability. Employers should always inform all employees that a disability-related assessment or accommodation can be provided as an option to address performance issues.

Progressive performance management and discipline as well as employee assistance supports ensure that all employees have a range of opportunities to address performance issues on an individualized basis before sanctions or termination are considered. For example, severe change in an employee's behavior could signal to an employer that the situation warrants further examination.

Mental illness should be addressed and accommodated in the workplace like any other disability. In some cases, an employer may be required to pay special attention to situations that could be linked to mental disability. Even if an employer has not been formally advised of a mental disability, the perception of such a disability will engage the protection of the Code. Prudent employers should try to offer assistance and support to employees before imposing severe sanctions. It should be borne in mind that some mental illnesses may render the employee incapable of identifying his or her needs.

Once disability-related needs are known, the legal onus shifts to those with the duty to accommodate. For example, counseling or referral through Employee Assistance Programs (EAPs) could be the solution for an underlying disability that might be aggravated by workplace or personal stress.

In Grismer, the Supreme Court of Canada therefore defines accommodation in generally as “what is required in the circumstances to avoid discrimination”

In Thwaites v. Canadian Armed Forces, the Tribunal stated “the employer must show that it could not have done anything else reasonable or practical to avoid the negative impact on the individual.”

In Cameron, Mr. Justice Cumming wrote: “The objectives of the Code’s handicap provisions as they relate to employment are several. First, there is an objective of securing for the handicapped person equality of opportunity with respect to employment. Everyone deserves the same opportunity and chance to make the most of life, regardless of physical or mental handicap. A corollary is to require an employer to make a decision respecting employment of a handicapped person based upon a fair and accurate assessment of her true ability, and not based upon a stereotype or misconception about her handicap.”

In Engel v. Mount Sinai Hospital, the Tribunal stated as follows: “The focus of the legislation is to protect the rights of disabled individuals, among other groups, and to ensure that they have access to the employment opportunities, dignity, and respect that the able-bodied have”.

In Martin, the Court stated that it “has consistently recognized that persons with mental disabilities have suffered considerable historical disadvantage and stereotypes.”

In Morris v. British Columbia Rail, the Tribunal stated that “There are few illnesses as little understood as mental illnesses. While societal understanding and acceptance of persons suffering from mental illness is improving, it remains the fact that persons with mental illness may be subject to prejudice and stereotyping.”

In Morris v. British Columbia Rail, in which a decision was made by an employer to terminate an employee living with major depression while away from work on a medical leave of absence. the Tribunal stated that “the fact that an employer makes the decision to terminate a disabled employee’s employment while that employee is on a leave related to disability should be taken into account in determining whether one can infer that the employee’s disability was a factor in the employer’s decision-making.”

In Bernard v. Waycobah Board of Education, an employee was terminated because of a concern that people in the community considered her to be “crazy.”

In Bultemeyer, the Court stated that “properly participating in the interactive process means that an employer cannot expect an employee to read its mind and know that her or she must specifically say ‘I want a reasonable accommodation,’ particularly when the employee has a mental illness. The employer has to meet the employee half-way, and if it appears that the employee may need an accommodation but doesn’t know how to ask for it, the employer should do what it can to help.” In Miller, the Court stated that “f, moreover, the nature of the disability is such as to impair the employee’s ability to communicate with his or her needs, as will sometimes be the case with mental disabilities, the employer, provided of course that he is on notice that the employee has a disability, has to make a reasonable effort to understand what those needs are even if they are not clearly communicated to him.”

David Lepofsky in "Equality Rights for Handicapped Persons in the Charter: Putting the Accent on Individual Ability" Proceedings of Cambridge Lecture Series (1985) (forthcoming) at 27 states the following purposes underlie section 15's promise of equality for disabled persons:

(1) Section 15 seeks to ensure that in its dealings with mentally and physically disabled persons, all agencies of government, legislative, judicial and administrative, respect the dignity, worth, individuality and personal autonomy of these persons, recognizing that these individuals are first and foremost individuals and not merely members of some socially-created category such as "the handicapped";

(2) Section 15 seeks to ensure that when governments make or implement laws and policy or undertake initiatives having an impact on the rights, benefits, privileges, obligations or opportunities of handicapped individuals, government should conduct these activities based on a fair and accurate assessment of the individual abilities of handicapped persons, and not based upon stereotypes, preconceptions, prejudgments, paternalism, or morally unacceptable indifference to handicapped persons' rights to full participation;

(3) Section 15 seeks to ensure that governments recognize that every individual is equal, but that every individual is not identical to all others. Thus, the business of government should be carried on based on respect for the similarities between individuals, and a recognition and accommodation of differences between individuals, in order to ensure equality of opportunity for all.

Beginning with Andrews v. Law Society of British Columbia, the Court favour substantive equality approach in which a claimant does not need to prove discriminatory intent and the focus is placed on the effect of the discrimination on him or her.

In Andrews, McIntyre J. stated:

Discrimination is unacceptable in a democratic society because it epitomizes the worst effects of the denial of equality, and discrimination reinforced by law is particularly repugnant. The worst oppression will result from discriminatory measures having the force of law.

The Commission ignored all the evidence and Rose De Stefano did lie when she stated she could no find witnessess. She told me to drop my complaints because the Commission did not like that type and at the time it allocated all resources to guarantee a right to party for naked, drunk lesbians in bathhouse.

The Respondents ignored the difficulty recognized in the case law of proving discrimination. The basis for requiring that ethnic origin or race be only a factor in the termination is the recognized difficulty in proving allegations of race discrimination by way of direct evidence. As was noted in Basi v. Canadian National Railway Co. (No. 1) (1988), 9 C.H.R.R. D/5029 (C.H.R.T.) at para. 38481:

Discrimination is not a practice which one would expect to see displayed overtly. In fact, rarely are there cases where one can show by direct evidence that discrimination is purposely practiced.

It has been held consistently that intent or motive to discriminate is not a necessary element of discrimination. In Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears Ltd. the court said:

The proof of intent, a necessary requirement in our approach to criminal and punitive legislation, should not be a governing factor in construing human rights legislation aimed at the elimination of discrimination. It is my view that the courts below were in error in finding an intent to discriminate to be a necessary element of proof.

Further, it is not the motivation or knowledge of the employer that is in issue; it is the effect of the discrimination on the complainant. This is highlighted most notably in cases of constructive dismissal, such as Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536 (S.C.C.).

There is ample judicial authority for the principle that an employer has a positive duty to familiarize himself and be aware of circumstances at the workplace that may result in anxiety and excessive stress. Ignorance because of willful blindness does not accord with the standards demanded in determining whether or not discriminatory treatment has taken place. When there are clear and ample signs that an employee is working in an environment that is unsafe and when the employee exhibits signs that clearly indicate that the work environment is causing her health to become deleterious, the employer is deemed to have an obligation to be aware of and ultimately responsible for eradicating and eliminating the factors and conditions which cause the threat to the employee’s health. Many persons who are unwell are often unaware of their condition and therefore cannot communicate it to the employer or any other party in a timely fashion. This is so even when they exhibit clear symptoms of their disability. Therefore, it cannot be argued that the Applicant’s employers were not aware of or only should have become aware of the Applicant’s disability when he raised it explicitly.

Just because I did not carry a white cane, use a hearing aid, or get around in a wheelchair, did not make me any less deserving of accommodation recognition of his debilitating condition. The refusal ignores the fundamental principle of human rights law that accommodation is a right, not an indulgence granted by one’s employer or, worse yet, an act of charity. The Supreme Court of Canada in Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, struck down time limit provisions as contrary to the equality guarantees of section 15(1) of the Charter of Rights and Freedoms in that they deprived such disabled persons of the continuing benefits that were available to “mainstream” recipients.

Even if one accepts that the employer was not aware that its conduct was discriminatory or did not know of the my disability, if its conduct has a discriminatory effect, the intent of an employer is irrelevant. Andrews v Law Society of B.C. (1989) 1 S.C.R 143 at 164-171; Law v Canada at par 25, 38 and 81.

The Supreme Court of Canada has emphasized that the focus of the discrimination “must always remain upon the central question of whether, viewed from the perspective of the claimant, the differential treatment imposed by the legislation has the effect of violating human dignity.” As Justice Iacobucci stated in Law:

“[h]uman dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law.” Writing for the Court, he explained that “human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment” and with “the realization of personal autonomy and self-determination.”

Law, supra, at paras.53 and 70 (emphasis added); Corbiere v. Canada, [1999] 2 S.C.R.

203 at para.59; M. v. H., supra at para.70; Rodriguez v. B.C., [1993] 3 S.C.R. 519 at

para.61

A human rights Tribunal engaged in a “dignity” analysis should therefore ask whether, viewed from the perspective of the complainant, the differential treatment imposed by the respondent has the effect of violating human dignity. In answering that central question, the Tribunal may consider such factors as (1) whether the respondent’s impugned conduct had an adverse effect on the complainant’s feelings of self-respect and self-worth, (2) whether it impaired the complainant’s physical and psychological integrity and empowerment, or (3) whether it interfered with the complainant’s realization of personal autonomy and self-determination.

The jurisprudence calls lower onus for mental disabilities. These disabilities come in many varieties, are often difficult to detect and assess, and employees are usually reluctant to reveal them because of the enormous attendant social stigma. The breadth of this stigma has been expressed by the Supreme Court of Canada in R v. Swain.

Where an employee’s capacity for rational judgment is impaired by a mental disability, human rights tribunals and labour arbitrators have placed a higher onus on employers to accommodate the employee.

In Lussa v. Health Sciences Centre, Mr. Justice Kroft said:

It seems to me that when we are dealing with people of questionable mental capacity, there is some obligation to show, not only that the necessary information was given, but it was understood; or alternately that the person in question was unable to understand.

The fact that the employee did not disclose the mental disability when she was hired, did not provide the employer with a medical diagnosis while in the throes of the illness, did not disclose the mental illness until two years after being terminated does not necessarily disentitle him or her to accommodation. Nor can an employer rely upon the unsympathetic attitudes of others to justify terminating an employee with a mental illness.

As well, where the illness causes erratic behavior at work, recent rulings have said that the employer in some cases ought to have been aware of a link between the work problems and the employee’s condition. In Allbright Cleaners Ltd., the employee had been hospitalized for depression, and a distinct change in her behavior had been observed by the employer. The human rights tribunal found that it was already apparent to the employer, when it dismissed her, that she was suffering from a mental disability. Instead of firing her, the tribunal ruled, the employer should have sought to accommodate her. It upheld the employee’s complaint. An employee who is recovering from depression is entitled to be reasonably accommodated by her or his employer when attempting to return to work In McConnell v. Yukon (Public Service Commission), a Yukon Territory board of adjudication held that the employer’s efforts to accommodate an employee seeking to return to work after recovering from depression were inadequate.

On occasion, an employer, and even an employee, will be unaware of the disability until after the employee’s termination for apparently culpable reasons. While the duty upon an employer to accommodate is not triggered until the employee notifies the employer of the need, the duty remains alive even if the notification does not occur until after the termination. In Re Ottawa Civic Hospital, the employer only learned of the griever’s drug and alcohol dependency after terminating her for excessive absenteeism. The arbitration board ruled that:

Even if the [Human Rights] Code does not apply to a dismissal which occurred before a handicap is known, this legislation would apply to a refusal to reinstate the complainant once the disability has been revealed

Similarly in Re Canada Safeway Ltd., medical information about the mental disability of a terminated employee was provided to the employer only after the dismissal. He had been fired following a long history of poor performance, lack of response to criticism, and baffling behavior. Just before the commencement of the arbitration hearing, almost two years later, the employee was diagnosed as suffering from controllable

schizophrenia. In its award, the arbitration board ruled that the employer had cause at the time of the termination to suspect a mental illness. Since the illness was controllable, it directed that the employee be reinstated, subject to specific conditions, and without back pay:

The investigator reached conclusions regarding the legitimacy of the Applicant’s employers’ version of the events as compared to the legitimacy of the Appelicant’s version of the events. It is a fundamental principle that an investigator should not reach conclusions of credibility during the investigation stage when that function should have been left to a later assessment by the Tribunal at a hearing. In any event, on the entirety of the evidence, unresolved issues of credibility warrant a hearing. Bryan v Premark Canada Inc., (1999) O.H.R.B.I. D. No. 5 (Ont. Bd. of Inq.); Larsh v Canada (Attorney General), (1999) F.C.J. No. 508 (T.D.); Khan v University of Ottawa (1997), 34 O.R. (3d 535 (C.A.) and Anselm v Ontario H.R.C., (1998) O.J. No 2577 (Gen.Div.).

The Applicant submits that the Respondents have not maintained an open mind and have wrongly concluded that the complaint should not proceed beyond the investigation stage. Ms. De Stefano has thus predetermined an issue which should have been decided by the Commission at the hearing stage. Bell Canada V C.E.P.U. (3d) C.H.R.R. Vol. 31, Decision 3, par 31

While purporting to make a decision as to whether or not there was sufficient evidence to prove the Appellant’s complainants, the investigation report usurped the proper function of a Board of Inquiry which is the arena where the merits of a complaint should be decided on the balance of probabilities. Moagi (1986), 69 N.R. 229 (F.C.A.); Owusu-Ausah (1989), 8 lmm. L.R (2d), 106 (F.C.A.); Tung (1991), 124 N.R. 388 (F.C.A.) at pps 393-394 and You Zen Wu (F.C.A.) May 25, (1992), p.2.

Res Ipsa Loquitor

As you see I have knowledge and bviously the Ontario Human Rights Commission, Ministry of Labour and Ombudsman Ontario discriminated against me when they failed to call me for job interviews.

In Kanags Premakumar v. Air Canada, the Tribunal stated:

In a case of this nature, the burden of proof is on Mr. Premakumar to establish a prima facie case of discrimination. Once that is done, the burden shifts to the respondent to provide a reasonable explanation for the conduct in issue. A prima facie case is one which covers the allegations made, and which, if believed, is complete and sufficient to justify a verdict in Mr. Premakumar's favour, in the absence of an answer from the respondent.

(1) In the human rights context proof of an affront to the claimant’s dignity is not required because the legislature has already pre-determined which types of distinctions are sufficiently critical to human dignity that they ought to be proscribed. By circumscribing the specific areas of private activity that human rights legislation regulates (i.e., employment, housing and access to public services), the legislature has determined that decisions about where people may live, where they may work, and how they may interact in the marketplace are so fundamental that differential treatment in respect of them is presumed to impact on human dignity. It is worthy of note that, in s.15 jurisprudence, the Supreme Court of Canada has mirrored these value judgments by, for example, emphasizing the importance of employment as “a fundamental aspect of …human dignity.” The difference in the human rights context is that such findings have already been made by the legislature and it is therefore unnecessary (and inappropriate) for tribunals to require human rights complainants to demonstrate an infringement of their dignity as a component of their prima facie case of discrimination.

Under s.17 of the Code the employer may require an employee with a disability to perform duties that are essential. For example: if the job requires you to drive to customers to their sites on a daily basis, then essential means a drivers license. However, if customers usually show up at your site and only occasionally you go to their site, then you can be accommodated.

Well, if an employer can map out "essential" to the point of undue hardship (mean they won't lose their business) then accommodation is carried out.

Employers are required to test disabled people to determine if their disability affects their ability to perform work.

Essex Police Services Board v. Exxes Police Association gives guidance on how far an employer must go to accommodate a disable person.

Employees have an obligation to cooperate for example: responding to request for medical reports say to support absences. Salim Al-Saidi and Brio beverages Inc. case in point showed that employees failure to comply with company's absence policy led to the Alberta Human rights Tribunal to find that despite a disability the employer did not discriminate when they terminated employment.

Most good companies have guidelines on how to treat accommodation request.

[RB]

In order to use the term "discriminate" intentional exclusion would have occurred. This is where the duty to accommodate originated.

However, there are certain jobs that employers can discriminate but it carries bona fide requirements.

At what point in employment are you asking to be accommodate: the interview is a tricky as employers look for a perfect fit.

I'd say employers would find it quite difficult not to accommodate someone with disability because of this 3 part test from the Meiorin. They might meet the first 2.

1. demonstrate a rational connection

2. was adopted in honest and good faith believe

3. impossible to accommodate employees

Anyway these statistics might tell you something:

1) only 40% of those disabilities secure employment

2) >70% women with disabilities have difficulties

3) as few as 2% of trainees are under public job training systems

4) only 6% of all persons with disabilities were accommodated

Out of these having work most of them are in sheltered work positions

It is better to try and change pubic policy, access to voluntary and private sectors and programs as a solution to help folks with disabilities.

[injusticebuster]

I'd say employers would find it quite difficult not to accommodate someone with disability because of this 3 part test from the Meiorin. They might meet the first 2.

1. demonstrate a rational connection

2. was adopted in honest and good faith believe

3. impossible to accommodate employees

My employer is a big corporation and they had losts of different positions. In my case I was on sick leave in a hospital treatment. My employer failed to pay short term disability benefits from its self funded plan so I had to apply for E.I. They violated Section 27(2) of the Occupational Health and Safety Act states that:

Without limiting the duty imposed by subsection (1), a supervisor shall,

(a) advise a worker of the existence of any potential or actual danger to the health or safety of the worker of which the supervisor is aware;

( where so prescribed, provide a worker with written instructions as to the measures and procedures to be taken for protection of the worker; and

© take every precaution reasonable in the circumstances for the protection of a worker. R.S.O. 1990, c. O.1, s. 27.

When I wanted to return to work they said they had no job for me. They did not pay my vacation pay saying it was offsetting for my sick days taken 6 months earlier which is contrary to Ontario Cancer Treatment and Research Foundation, the Ontario Court, General Division upheld a human rights board of inquiry ruling that denying an employee sick leave benefits because she was on vacation constituted discrimination.

Further more they said that I did not accummulate vacation time during my sick leave which is violation of the Ontario Human Rights Code.

In addition, they committed insurance fraud by charging me premium for Long Term Disability but failing to process my application as per my contract. In Tarailo v. Allied Chemical Canada Ltd., the Court held:

It should have been in the contemplation of the officers or employees of Allied, upon receiving the letter, that carelessness on their part may be likely to cause damage to their ex-employee. It was not up to them to decide whether or not here was a valid claim but rather to assist in completing the required forms. Mr. Tarailo may well have been so mentally ill that he did not appreciate that he might have a claim. I conclude that a duty was owed to him. Allied did nothing to assist.

In Zaryski v. Loftgard the Board stated: “It finds further that although Mr. Loftsgard had made the decision to terminate Ms. Zaryski before… he should have taken the information into account and considered whether Ms. Zaryski could be accommodated”.

In Menard v. Royal Insurance Co. of Canada, Henessey J. found “to someone suffering from depression, the world looks bleak and hopeless”, “the point at which the employment relationship ruptures is the time when the employee is most vulnerable and hence in need of protection”.

They banned me from entering company's premises and told me they would charge me with harassement if I try to contact witnesses violating

Section 50(1) of the Occupational Health and Safety Act states that

No employer or person acting on behalf of an employer shall,

(a) dismiss or threaten to dismiss a worker;

( discipline or suspend or threaten to discipline or suspend a worker;

© impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act. R.S.O. 1990, c. O.1, s. 50 (1).

5. Section 76(1) of the Employment Standards Act states:

No employer shall,

(a) threaten to dismis en employee;

( discipline or suspend an employee;

© impose any penalty upon an employee; or

(d) intimidate or coerce an employee,

because the employee,

(e) has sought the enforcement of this Act or the regulations;

In Moffat v. Kinark Child & Family Services the Board held that bad report was reprisal. In the Applicant’s case also refusal to provide employment information, failure to process an application for long term disability, process address change and the life time ban were reprisals.

In case of Ontario Human Rights Commission they are fully aware of my medical conditions and I was a victim of particular vulnerability because of his precarious medical condition and the Respondents knew this but they ignored my pleas that I was still sick. The Respondents have given absolutely no reason why I was never considered by them to be one of that group which I obviously was. The fact that my condition was difficult to assess should not be permitted to open the door to oppressive conduct on the part of the Respondents. On the contrary, such circumstances should “increase the need to proceed openly, fairly and cautiously”: see Fidler v. Sun Life Assurance Co. of Canada (2004) 239 D.L.R. (4th) 547 (B.C.C.A.) at p.567.

According to well established jurisprudence, the elements of a prima facie case of discrimination require the complainant to show:

(1) that they were treated differently from others in respect of employment or the provision of a service. In the case of employment-related discrimination, the complainant must also demonstrate that their differential treatment was in relation to others who are equally or less qualified than they are.

(2) that the differential treatment was based on one of the prohibited grounds of discrimination in the Code:

A human rights Tribunal engaged in a “dignity” analysis should therefore ask whether, viewed from the perspective of the complainant, the differential treatment imposed by the respondent has the effect of violating human dignity. In answering that central question, the Tribunal may consider such factors as (1) whether the respondent’s impugned conduct had an adverse effect on the complainant’s feelings of self-respect and self-worth, (2) whether it impaired the complainant’s physical and psychological integrity and empowerment, or (3) whether it interfered with the complainant’s realization of personal autonomy and self-determination.

I have a knowdledge and I can work with appropriate accommadation and I am making a prima facie case of discrimination against Ontario Human Rights Commission, Ministry of Labour and Ontario Ombudsman that

they discriminated against when they failed to even consider calling me for job interviews because of my medical condistions and I rely on Kanags Premakumar v. Air Canada, the Tribunal stated:

In a case of this nature, the burden of proof is on Mr. Premakumar to establish a prima facie case of discrimination. Once that is done, the burden shifts to the respondent to provide a reasonable explanation for the conduct in issue. A prima facie case is one which covers the allegations made, and which, if believed, is complete and sufficient to justify a verdict in Mr. Premakumar's favour, in the absence of an answer from the respondent.

(1) In the human rights context proof of an affront to the claimant’s dignity is not required because the legislature has already pre-determined which types of distinctions are sufficiently critical to human dignity that they ought to be proscribed. By circumscribing the specific areas of private activity that human rights legislation regulates (i.e., employment, housing and access to public services), the legislature has determined that decisions about where people may live, where they may work, and how they may interact in the marketplace are so fundamental that differential treatment in respect of them is presumed to impact on human dignity. It is worthy of note that, in s.15 jurisprudence, the Supreme Court of Canada has mirrored these value judgments by, for example, emphasizing the importance of employment as “a fundamental aspect of …human dignity.” The difference in the human rights context is that such findings have already been made by the legislature and it is therefore unnecessary (and inappropriate) for tribunals to require human rights complainants to demonstrate an infringement of their dignity as a component of their prima facie case of discrimination.

Further more, I am making a prima facie case of discrimination against Ontario Human Rights Commission, Ministry of Labour and Ontario Ombudsman that they discriminated against when they fail to remove barriers and rely on:

The Ontarians With Disabilities Act, 2001 S.O. 2001, c. 32, at s. 2(1) defines a barrier broadly as “anything that prevents a person with a disability from fully participating in all aspects of society because of his or her disability, including a physical barrier, an architectural barrier, an information or communications barrier, an attitudinal barrier, a technological barrier, a policy or a practice.”

[RB]

I see the frustration and gather you are charging everyone and every code.

So first off:

Vacation pay explanation as it relates to ESA

Vacation pay, vacation time - these are 2 separate issues.

Well, an employee may be entitle to vacation pay but not vacation time - this naturally correlates with the period of work.

An employee continues to accumulate credits toward vacation time during (as might be your case emergency leave). But, depending on your contact agreement, vacation pay is based on earned wages. For example employees would not earn wages during leave so would have no earning from the employer hence no vacation pay is owed.

Now for emergency leave employees can be entitle to unpaid days in a calendar year but the employer must regularly employ at lease 50 people. If your contract says an absence qualifies a leave it is counted in your entitlement.

Secondly:

If you are exercising a right of unsafe working conditions under Occupational Health and Safety and you suffered reprisal then it makes sense to lodge a complain to Labor Relations. Plus there are stages of refusal of right to work.

On the disability claims now

Contrary, is filed under Workplace safety and insurance act and is a compensation system that deals with compensating and rehabilitating employees who suffered work-related injuries and illnesses. Non-occupational injuries or illnesses are not covered. Workload pressure would probably not succeed in case you wanted to know.

There should be information on "labor market re-entry plan", where once the plan is put into effect it is unlikely to be revisited.

What to note is that employers enjoy special protection from lawsuits. WSIA cover workers from these industries type: manufacturing, construction, hospitals, hotels, restaurants and theatres.

If you were working in these industries financial, recreational, clubs, law firms, education, broadcasting stations dental etc. are not compulsorily covered.