Human Rights Remedies for Ontario Employees

Written on behalf of Peter McSherry
A father holding his baby representing an employee who cannot return to work due to childcare issues
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The present state of emergency was recently extended to July 22nd. There are a host of temporary laws passed by the Ontario government that are tied to the duration of the emergency declaration. For example, the job protections offered to coronavirus-related terminations or lay-offs are all of a temporary nature and will expire as of the end of the emergency period, as will the pause button on relevant limitation periods, that is, the ticking clock within which you must commence legal proceedings.

For this reason, the July 22 date is very important. The end of the emergency period may offer psychological relief but the end of the pandemic, and its fallout, is far from close.

For this reason, the province has indicated its intent to pass a new law which will allow the government to issue further temporary orders designed to deal with COVID-19 related issues without the need to rely upon the existence of the state of emergency.

In its place will likely come a series of continuing COVID-19 related laws, the details of which we now have no idea, but very likely employment issues will continue to remain front and center. The new laws will also likely deal with the opening of businesses across the province and potential re-closings should the virus begin to surge again. Civil courts remain closed while certain provincial courts which deal with lesser criminal cases and family law issues are re-opening.

Stay tuned to this page for further updates as they develop.

Human Rights Remedies Continue

Many of the COVID-19 reforms to the Employment Standards Act were designed as temporary measures to deal with adverse treatment faced by employees during the emergency period. These were quite powerful reforms designed to protect workers during the period of the pandemic. Very likely, these reforms will soon end, barring any particular orders made under the newly proposed legislation referenced above.

It is important to remember that human rights law already provided, before these new temporary legal protections, strong remedies to workers who have been adversely treated due to a medical disability. This includes the coronavirus and more broadly speaking, coronavirus related issues, such as child care concerns.

For example, a worker fired for having the virus or unable to return to work because of the virus, will always have a human rights remedy available to them.

This is not limited just to employees dealing with illness, or caring for an ill family member. A worker who cannot work or return to work because of child care issues is also given human rights protections as “family status” is a protected right.

Similarly, human rights law protects workers against a “perception of a disability”. If a worker is fired because the employer thinks they have the virus or have been exposed to the virus, there will be a remedy. A worker who is in quarantine may well fit this definition, that is, they have no symptoms but believe that they have been exposed and hence are self-isolating out of an abundance of caution. This may also apply to a worker whose partner or spouse has the virus, but they do not. A termination in this context will also likely lead to a remedy.

As mentioned in our last post, human rights tribunals have allowed for a very liberal interpretation of “employee” for this remedy. Persons who are paid through management companies have been given status to file such a complaint. Also, a cab driver looking to have his licence registered with a taxi cab brokerage company was also allowed to have the right to make such a complaint.

The irony is that the human rights remedy is more powerful than the temporary measures imposed by the province in the COVID-19 crisis. It is well regarded and has a solid case history, enabling a fairly predictable result in most cases.

A successful remedy includes lost wages from the date of termination (where applicable) to the date of hearing, reinstatement, or even additional compensation instead of reinstatement, and compensatory damages for injured feelings.

Get Informed, Stay Current

The law on COVID-19 is changing every day and will continue to do so, likely even more dramatically. Stay informed and be prepared. We will update the all news as it develops in this space. Contact the offices of Guelph employment lawyer Peter McSherry for up-to-date advice on a variety of employment issues, including the ever-changing employment rules in light of the pandemic. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.