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a) Federal legislation
i) Canadian Human Rights Act
The Canadian Human Rights Act (“CHRA”) applies to workplaces in federal organizations or industries that are regulated by the federal government. The Ontario Human Rights Code does not apply to such organizations. Both of these laws cannot apply at the same time. If one applies, the other does not.
The choice of incorporating statute does not determine whether a company is provincially or federally regulated. The CHRA covers workplaces such as:
- federal departments and agencies
- Crown corporations
- the post office
- chartered banks
- airlines
- television and radio stations
- inter-provincial communications and telephone companies
- buses and railways that travel between provinces
- places of business where labour issues are governed by the Canada Labour Code
- other federally-regulated industries, such as certain mining operations.
ii) Canada Labour Code
The Canada Labour Code covers labour relations in federal workplaces in a way similar to the Ontario Labour Relations Act, discussed below. The CHRA applies in situations where the Canada Labour Code is the appropriate legislation for labour purposes. For example, Canada Post Corporation is covered by the Canada Labour Code.
iii) Employment Equity Act
Since 1996, the Employment Equity Act has required employers to take progressive measures, including reviewing barriers, collecting data and planning to achieve equity for four designated groups: women, Aboriginal peoples, members of “visible minorities” and persons with disabilities. In general, the Employment Equity Act applies to federally regulated employers with more than 100 employees. The Employment Equity Act may also apply to certain Ontario companies that have contracts with the federal government. These companies would be bound by the Ontario Human Rights Code as well.
iv) Privacy legislation
The federal Personal Information Protection and Electronic Documents Act (“PIPEDA”) applies to all organizations that collect, use or disclose personal information when doing business. It also applies to the personal information of an employee of a federal work, undertaking and business (but not the personal information of other private sector employers).
PIPEDA applies when organizations collect, use and disclose personal information during commercial activities. Personal information is any information about an identifiable individual, whether recorded or not. Organizations can only collect personal information that is appropriate for the specific transaction. They must explain why they need the information, what it will be used for, and whether they plan to share it with anyone else. They must also obtain consent for this use and disclosure.
When collecting, using and disclosing employees’ personal information, employers should consider the requirements of the Code, as well as the requirements of privacy laws. For example, in collecting information needed for benefit plans or required by other legislation, or giving information to third parties, only collect or disclose information that is really needed.
b) Provincial legislation
i) Accessibility for Ontarians with Disabilities Act
The Accessibility for Ontarians with Disabilities Act (“AODA”) talks about developing, implementing and enforcing accessibility standards. Standards are developed through a process of public consultation and will become regulations under the AODA. The aim of the Act and the standards is to make sure Ontarians with disabilities have access to services, goods, facilities, accommodation, employment, building structures and premises by January 1, 2025.
There will be standards in five areas: customer service (complete), transportation (ongoing at the time of publication), information and communications, built environment and employment. As of spring 2008, a draft employment standard has not yet been released for public comment and consultation. Once the standard is finalized and made into regulation, the rights and obligations in the Ontario Human Rights Code will continue to apply. If relevant, employers also need to comply with the accessibility requirements in the Building Code and the Ontarians with Disabilities Act, until it is repealed.
If these different Acts and standards are not consistent with the Code, employers should remember that the Code takes precedence over other provincial acts and regulations because of its almost constitutional nature. See also Section II-2b) – “Supremacy of the Code.”
ii) Building Code
Workplaces must be accessible for persons with disabilities and other people identified by Code grounds. The Ontario Building Code Act (“OBC”) and the regulations under it govern the construction of new buildings, as well as renovating and maintaining existing buildings. The OBC is designed to make sure uniform general standards are used to create and protect healthy and safe buildings.
In terms of accessibility, OBC’s objective is to “limit the probability that, as a result of the design or construction of a building, a person with a physical or sensory disability will be unacceptably impeded from accessing the building or circulating within it.” [98] The Commission’s position is that the accessibility requirements in the OBC and regulations fall short of the requirements of the Code.
The Code takes precedence over the OBC and applies to the OBC itself. The fact that a facility complies with the OBC is not a defence to a claim of discrimination under the Code. Persons involved in designing, building or renovating buildings should consider the Code requirements to design inclusively for, and accommodate, persons with Code-related needs instead of only relying on the minimum standards in the OBC. See also Section II-2b) – “Supremacy of the Code.”
iii) Employment Standards Act
The Employment Standards Act (ESA) sets out specific minimum obligations employers must meet, such as hours of work, minimum wage, overtime, vacation, pregnancy and parental leave, termination, layoff and severance. In general, allegations of discrimination and harassment cannot be dealt with under the ESA, although there are some areas of overlap. For example, the ESA provides protections to pregnant employees and requires employers to pay equal pay for work of equal value. Both of these issues are also covered under the Code under sex discrimination. There are also common situations in which an employee may have a right to a remedy under both Acts.
Example: An employee requests her Record of Employment (ROE) because she has started maternity leave. The employer withholds it because she is upset that the employee has had to go off work earlier than expected due to sudden pregnancy complications. The employee is also harassed. The employee may take action under the ESA to compel the employer to give her the ROE. She may also file a human rights claim alleging discrimination based on sex because she was not given her ROE due to her pregnancy and was harassed.
As was noted earlier, where the provisions of the ESA conflict with those of the Code, the Code takes precedence. See also Section II-2b) – “Supremacy of the Code.”
iv) Labour Relations Act
The Ontario Labour Relations Act covers unionized workplaces. Its purpose is to ensure the right to organize, encourage collective bargaining, promote harmonious labour relations and provide for effective and fair dispute resolution. Arbitrators appointed under this Act can interpret and apply the Code when resolving grievances, despite any conflict between the Code and the terms of the collective agreement. The substantive rights and obligations of the Code are deemed to be, or taken to be, part of each collective agreement that an arbitrator has jurisdiction over.[99] Both the Ontario Labour Relations Act and the Code may apply to a particular situation as the two laws are not mutually exclusive.
v) Occupational Health and Safety Act
The Occupational Health and Safety Act outlines requirements and responsibilities related to workplace occupational health and safety. Both the Occupational Health and Safety Act and the Code may apply to a particular situation as the two laws are not mutually exclusive. This overlap can arise most often when assessing health and safety risks as part of the undue hardship test. See Section IV-8 – “Meeting the accommodation needs of employees on the job” and Section II-2b) – “Supremacy of the Code.”
vi) Ontarians with Disabilities Act
The purpose of the Ontarians with Disabilities Act, 2001 (“ODA”) is to develop, implement and enforce accessibility standards to enable people with disabilities to take part fully in society. The ODA sets annual accessibility planning requirements for certain public organizations such as hospitals, schools, municipalities and public transportation. These organizations must identify, remove and prevent barriers to people with disabilities. Employers must do the same under the Code. Thus, organizations with obligations to prepare annual accessibility plans should consider the Code requirements to accommodate persons with disabilities. Refer also to Section IV-1a(i) – “Preventing, reviewing and removing barriers” and Section IV-1d) – “More about preventing, reviewing and removing barriers related to disability.”
Until it is repealed, ODA applies along with the AODA and the Code. The Code takes precedence over both the ODA and the AODA. See also Section II-2b) – “Supremacy of the Code.”
vii) Pay Equity Act
The objective of the Pay Equity Act is to make sure that female and male employees receive equal pay for work of equal value. This Act applies to all employers and employees in Ontario except for those that fall under federal jurisdiction and private employers with fewer than 10 employees and summer students.
Both the Code and the Pay Equity Act may apply to a particular case. For example, a woman may file a complaint of systemic sex discrimination under the Code and also seek remedies for differences in pay under the Pay Equity Act. Both the protections and the remedies in the Code are broader than those in the Pay Equity Act since the Code applies to all provincially regulated employers including those with fewer than 10 employees and summer students.
viii) Privacy laws
Ontario has passed the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act. These privacy laws are limited to the public sector, including Ontario government ministries, agencies, cities and towns, but not the private or not-for-profit/non-governmental organization (NGO) sectors. Government organizations are, with limited exceptions, prohibited from disclosing personal information in their control to third parties. Private sector employers cannot get personal information, such as a medical history, from a government agency without the employee’s consent.
The Personal Health Information Protection Act sets out rules for collecting, storing and disclosing personal health information. The Act applies to specific listed organizations and persons, such as hospitals and medical professionals, who fit the Act’s definition of “health information custodians.” The Act also applies to organizations, such as employers or insurance companies that receive this information from health information custodians.
When requesting or getting personal health information for employment purposes, employers must take care to comply with both this Act and the Code. If there is a conflict, the provisions of the Code take precedence.
ix) Workplace Safety and Insurance Act
Injuries in job-related accidents are covered by the Workplace Safety and Insurance Act (WSIA) (formerly the Workers’ Compensation Act). This Act provides an insurance plan to protect injured workers and allows employers to limit their financial exposure through a funding system based on payroll.
Under subsection 10(1) of the Code, a person who claims or receives benefits under the WSIA is deemed to have a disability for the purposes of the Code, and is entitled to file a human rights complaint resulting from unequal treatment on the ground of disability. Therefore, it is appropriate and indeed likely that claims under the WSIA and the Code may go on at the same time. Unless it relates to age, if there is an inconsistency between the Code and the WSIA, the Code applies. For example, under the WSIA the duty to re-employ only arises if the worker had been employed continuously for one year before the injury and the employer regularly employs 20 or more workers. In comparison, under the Code, the duty to accommodate arises even if the employee is injured during his or her first year with the employer, and even if fewer than 20 workers are regularly employed. This may include a requirement to return a worker with a disability to work, subject to the standard of undue hardship.
On the other hand, section 2.1(1) of the WSIA specifically states that provisions of that Act that authorize a distinction based on age apply despite the Code. This means, for example, that the restriction on the duty to accommodate workers over age 65 in the WSIA applies despite the Code. While this provision would apply in a claim under the WSIA, it does not affect the worker’s rights under the Code – a worker over age 65 would still be entitled to file a human rights claim under the Code alleging a failure to accommodate.
[98] Building Code Act, 1992. O. Reg. 350/06, Section 2.2.1.1.
[99] Parry Sound, supra note 28.