ACCESSIBILITY RULES FOR BUSINESSES AND NON-PROFIT ORGANIZATIONS

Jane’s Question: I own a non-profit organization with 17 full-time employees, 20 volunteers, 8 part-time employees, and 10 seasonal employees. What are the rules and deadlines that I must follow in order to meet Ontario’s accessibility standards? What happens if I refuse to follow them?

Thank you for your questions Jane. The rules that you need to follow are dependent on the type and size of your organization.

Businesses and non-profits that are exempt from meeting Ontario’s accessibility standards include:

  1. Individuals that are self-employed; and
  2. Businesses/Non-Profits that do not have any employees.

There are different timelines for businesses and non-profit organizations that have:

  1. 1 to 19 employees;
  2. 20 to 49 employees; or
  3. 50 plus employees.

1. How to Count your Employees:

When determining the number of your employees you are to count all full-time, part-time, seasonal, and contract workers.

Do not count:

  1. Employees outside of Ontario;
  2. Volunteers; or
  3. Independent Contractors.

Therefore, for the purposes of Ontario’s accessibility standards, your non-profit organization has thirty five (35) employees.

  • 17 Full-Time Employees
  • + 8 Part-Time Employees
  • + 10 Seasonal Employees

2. Standards for Businesses or Non-Profit Organizations with 20 to 49 Employees:

While a number of the deadlines have already passed, here is a full list of Ontario’s accessibility standards.

3. By January 1, 2012 you must have:

  1. Incorporated accessible customer service. This includes:
    1. Training your staff and volunteers to serve all customers;
    2. Welcoming service animals and support persons;
    3. Creating accessible ways for people to provide feedback; and
    4. Putting an accessibility policy in place.
  2. Provided accessible emergency and public safety information. This includes providing evacuation plans or brochures in an accessible format to the public.
  3. Provided accessible emergency information to staff. When asked, provide employees with evacuation plans or brochures in an accessible format. Keep in mind that some employees may need accommodation in the case of an emergency.

4. By December 31, 2014, you must have:

  1. Filed an Accessibility Compliance Report. The Accessibility Compliance Report confirms that you have met your current accessibility deadlines.

5. By January 1, 2016 you must have:

  1. Created accessibility policies, by drafting and enacting policies that help you to achieve your accessibility goals; and inform your employees and customers about your policies.
  2. Considered accessibility when purchasing or designing self-service kiosks. Examples of self-service kiosks include parking meters, buying groceries, and/or renewing licenses.

6. By January 1, 2017 you must have:

  1. Made your public information accessible. You can do this by working with an employee/volunteer/customer in order to best meet their needs.
  2. Made your employment practices accessible. This pertains to how you hire and train, volunteers and employees.

7. By January 1, 2018 you must have:

Filed another Accessibility Compliance Report. In your report, you are to state whether your organization has had a change in:

  1. Address;
  2. Primary contract information;
  3. Number of employees; and/or
  4. Status (IE: no longer in business/fewer than 20 employees).

8. By January 1, 2018, you must have:

  1. Made public spaces accessible. Examples include recreational trails, beach access routes, parking lots, service counters, fixed waiting lines, and waiting areas with fixed seating.

9. By December 31, 2020, you need to:

File another Accessibility Compliance Report. In your report, you are to state whether your organization has had a change in:

  1. Address;
  2. Primary contract information;
  3. Number of employees; and/or
  4. Status (IE: no longer in business/fewer than 20 employees).

10. By December 31, 2023 you need to:

File another Accessibility Compliance Report. In your report, you are to state whether your organization has had a change in:

  1. Address;
  2. Primary contract information;
  3. Number of employees; and/or
  4. Status (IE: no longer in business/fewer than 20 employees).

11. Non-Compliance:

Service Ontario’s main responsibility is to help Businesses and Non-Profit Organizations comply with Ontario’s accessibility standards under the OADA. Penalties are given on a sliding scale to businesses and non-profit organizations that do not cooperate. For example, if your organization refuses to submit their Accessibility Compliance Report on multiple occasions, they will be dealt with more severely than a business/organization that has accidentally missed a deadline.

12. Conclusion:

It is highly recommended that you comply with the OADA and meet Ontario’s accessibility standards. If you refuse to cooperate, you will be given a number of substantial fines.

13. Suzanne Desrosiers Professional Corporation:

For more information, or to book an appointment please contact Suzanne Desrosiers today, at suzanne@sdlawtimmins.com or 705-268-6492.

Vacation Time and Vacation Pay

What is the difference between vacation time and vacation pay??

1. The Employment Standards Act:
Section 15.1(1) of the Employment Standards Act defines and sets out vacation time and vacation pay.

2. 12-Month Vacation Entitlement Year:
A 12-month vacation entitlement year is the 12-month period beginning on the date that you were hired.
For example, if you were hired on November 1, 2017, that 12-month vacation period would end on October 31, 2018.

3. Vacation Time:
Vacation time refers to the number of paid weeks that salaried employees are entitled to take each entitlement year. The number of weeks that an employee can take off is dependent on the number of years that they have worked for his/her employer.
Employees who have worked for their employer for less than five (5) years are entitled to two (2) weeks of vacation each entitlement year.
Employees who have worked for their employer for five (5) years or more are entitled to three (3) weeks of vacation each entitlement year.

4. Vacation Pay:
If you are paid by the hour in Ontario, vacation pay refers to a percentage of your gross wages that may be banked or paid out to the employee, each pay period. The percentage paid to the employee is determined by the number of years that the employee has worked for his/her employer.
For employees that have worked for their employer for less than five (5) years, vacation pay must be at least four percent (4%) of their gross wages earned during the entitlement year.


For employees that have worked for their employer for five (5) years or more, vacation pay must be at least six percent (6%) of their gross wages earned during the entitlement year.
5. Example Vacation Pay:
Andrew started working as an Electrical Engineer at Engineering Inc. on September 1, 2014. His position is salaried.
Andrew’s standard vacation time runs from September 1 to August 31 each year. In his first entitlement year, Andrew is entitled to two (2) weeks of vacation.
Andrew is entitled to two (2) weeks of vacation for the following entitlement years:
i) September 1, 2015 to August 31, 2016;
ii) September 1, 2016 to August 31, 2017;

iii) September 1, 2017 to August 31, 2018; and
iv) September 1, 2017 to August 31, 2019.
On August 31, 2019, Andrew will have completed five years of employment at Engineering Inc. and will be entitled to take three weeks of vacation each entitlement year thereafter.
6. Example: Vacation Time:
Jody works part-time as a Barista at Starbucks Canada. Jody started working at Starbucks in 2017, and she is paid $14.00 per hour.
In her first vacation entitlement year, Jody earned gross wages of $30,000. Jody was therefore entitled to $1,200.00 in vacation pay (4% of her gross wages).

7. Suzanne Desrosiers Professional Corporation:
For assistance in updating your employment policies and procedures and/or providing training to staff members, please contact Suzanne Desrosiers today, at suzanne@sdlawtimmins.com or (705) 268-6492.

Marijuana in the Workplace

What does the legalization of marijuana mean for Canadian Employers?

1. The Current Legal Statue of Marijuana:
Today, the possession, production, and trafficking of marijuana is still illegal in Canada, as per Schedule II of the Controlled Drugs and Substances Act.

2. Government Announcement:
The Government of Canada has recently announced its intention to:
i) Legalize, strictly regulate, and restrict access to Cannabis for non-medical purposes;
ii) Restrict access of marijuana of youth; and
iii) Stop criminals from profiting from illicit marijuana trade

3. Why is the Federal Government looking to legalize and regulate access to marijuana?
The Government states that the strict production, distribution, and sale of marijuana will:
i) Enhance public safety;
ii) Better protect the public’s health;
iii) Make it less profitable for drug dealers and growers; and
iv) Make it less accessible to young people.

4. The Duty to Accommodate:
By law, Ontario employers are required to accommodate employees with disabilities up to the point of undue hardship. Employees that use medical marijuana or employees that are addicted to marijuana are to be accommodated.
Employers should be leery of making stereotypical comments/assumptions about an employee’s ability to do their job when, they have been prescribed medical marijuana.

5. Limits on the duty to accommodate:
The use of medical marijuana DOES NOT allow an employee to:
1. Be impaired at work;
2. Compromise his/her safety;
3. Compromise the safety of others;
4. Smoke in the workplace;
5. Have unexcused absences; and/or
6. Show up late for work.

6. Safety in the Workplace
Employers are also required to ensure safety in the workplace.

7. Workplace Policies:
With the upcoming changes, employers will likely need to set specific policies regarding the use of marijuana in the workplace.
Be careful, a zero-tolerance policy may interfere with an employer’s duty to accommodate, as it can cause discrimination against employees who have been prescribed medical marijuana. A zero-tolerance policy may be allowed in the safety-sensitive sector.

8. Suzanne Desrosiers Professional Corporation:
For assistance in updating your employment policies and procedures and/or providing training to staff members, please contact Suzanne Desrosiers today, at suzanne@sdlawtimmins.com or 705-268-6492.

Dangerous Driving, Section 249 Of The Criminal Code – Timmins, ON

The following is general information and not legal advice, so please call our office to make an appointment to learn more about your particular offence.

Dangerous driving is one of the most serious driving offences in Canada and the penalties associated with it on a conviction are appropriately severe, including the fact that you will have a criminal record.

This charge involves operating a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, and also includes the operation of a boat, water skis or a towed object on or over Canadian waters. Once the trier of fact is satisfied that your actions match the wording of this Criminal Code provision beyond a reasonable doubt, they must turn their mind to the mental element of the crime. Essentially, the Crown will have to prove that your actions were a marked departure from the standard of care of a reasonable person in your circumstances.
Each case turns on its particular set of facts. A momentary loss of attention while driving may not be sufficient to be convicted. For example, a driver of a vehicle who lost consciousness or fell asleep for a few seconds and collided with an oncoming vehicle, thereby killing its occupants, was ultimately found not guilty of this charge. However, if you are aware of a medical condition (ex. seizures) and you do not take the proper precautions for this pre-existing medical condition, the occurrence of this medical condition while driving may not be a defence to this charge. So, you may not believe you have a defence but schedule an appointment with our office to be sure.

Contact our office to see how we can best assist you in defending yourself. We will request your Disclosure package from the Crown Attorney’s office and review it with you to explore your defence options.

CONSEQUENCES

Apart from having a criminal record, a conviction of dangerous driving will cause you to have your licence suspended for at least one year. You may face a longer suspension if you’ve been convicted of this charge previously, or if you’ve been convicted of other specific charges as outlined at s. 41 of the Highway Traffic Act (ex. impaired driving under s. 253 of the Criminal Code) within the last ten years.

You could face up to 5 years in prison as a result of a conviction of dangerous driving. However, if the dangerous driving caused serious bodily harm, then you could be facing up to 10 years in custody, or up to 14 years of custody if the dangerous driving caused death.

Additionally, you could face other charges in addition to the dangerous driving if you participated in any other underlying illegal conduct while driving dangerously, such as speeding or being impaired.

Contact our office to hear about your options and choose your best course of action.

Careless Driving (Section 130 Of The Highway Traffic Act) – Timmins, ON

Driving is a privilege not a right, and improper behaviour while behind the wheel of a vehicle may cause you to face consequences in a number of situations. For example, inattentiveness or inconsideration of other motorists on a highway could cause you to face a charge of careless driving. This is a broad charge that can be applied to various driving scenarios, from being involved in a serious high-speed collision to a minor traffic concern.

Careless Driving (under section 130 of the Highway Traffic Act) states:

“Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years.”

The Justice of the Peace must be satisfied beyond a reasonable doubt that you drove the vehicle on a highway without due care and attention or without reasonable consideration for other people using the highway.

The charge of careless driving is found at section 130 of the Ontario Highway Traffic Act. It is a strict liability offence. This means that the Crown must only prove that you committed the alleged act—that you drove the vehicle on the highway without due care and attention or without reasonable consideration for other persons using the highway. The Crown does not have to prove a mens rea element of the charge—more simply, the Crown does not have to show that you intended to commit this offence. However, it is open to you to avoid liability under this charge to prove that you took all reasonable care in the circumstances. In making this determination, you would need to show that your conduct is what the average careful driver would have done in similar circumstances. Contact our office to meet with us, so that you can share the details of what lead to your charge and explore what defences may have available to you to fight this charge. We will request the Disclosure package from the Crown Attorney to find out more details about your situation, including any police officer notes and witness statements, to assist you in this process.

ISSUING A CHARGE

A careless driving charge may be issued under Part I or Part III of the Provincial Offences Act. Under Part I, the police officer will issue you a ticket whereas under Part III, you will be issued a Summons, requiring your attendance in court. In the latter case, the penalty is more severe... Even if you have been issued a ticket under Part I (the fine will be printed on the ticket), you still have the option of going to court to fight the ticket/charge.

SENTENCING

The penalties for a conviction of careless driving are severe. You could have to pay a fine of between $400 to $2,000 dollars, go to jail or be under house arrest for a period of up to six months, have your licence suspended for up to two years, or some combination of the above sentencing options. Additionally, there is a victim fine surcharge based on the amount of your fine and which is stated in the Regulations of the Provincial Offences Act. For example, if your fine is $400, then the surcharge is an additional $85.

If you are convicted of this offence (paying the ticket fine is still a conviction), you will receive 6 demerit points on your driving record and you will likely face higher premiums for your auto insurance or your insurance company may even cancel your existing policy.. If you are a novice driver (ex. hold a G1 or G2 licence) this means that your driver’s licence may be suspended as you will likely be scheduled for an interview with the Ministry of Transportation to discuss your driving record and you will have to explain why your licence should not be suspended. You will have to pay an additional $50.00 for this interview and failure to do so will result in your licence being cancelled. If you have a full licence (ex. G licence) with no demerit points, then a conviction of careless driving will cause you to receive a warning letter. However, if this conviction will cause you have between 9 to 14 demerit points, then you will face the same consequences as a novice driver. A fully licenced driver who has accumulated over 15 demerit points will automatically have their licence suspended for 30 days and will need to surrender their licence for that time period or risk losing their licence for up to two years.

If you have been charged with the offence of careless driving, call our office as soon as possible to see how we can best assist you.

Landlord And Tenant Issues

Being a landlord is a great idea when you have excellent tenants. However, when problems develop, things get complicated so consider the following things you should know as a landlord.
Often, landlords and tenants have verbal agreements about the rent and utilities and then the tenant moves in. However, a written lease agreement is best as it should clearly illustrate what the agreement was between the parties, in case there is any contention in the future.

According to the Residential Tenancies Act (RTA), a landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards. Therefore, the landlord is usually responsible for mowing the lawn and shovelling the snow. If you are a landlord and don’t want to do those tasks yourself, consider hiring a reputable company to do it for you. If you want the tenant to be responsible for these tasks, consider creating a separate agreement detailing these responsibilities and ensure that you are compensating the tenant for performance of these tasks.

A common problem for landlords is tenants who do not pay the rent or do not pay it on time. Often, the landlord wants to evict the tenant for the unpaid rent. The proper way to do this is to serve the tenant(s) with the relevant Notice document (N4) and to ensure that this Notice has the correct termination date on it. It is very important to review the Notice because if there is a mistake on the Notice, the Landlord and Tenant Board (LTB) will likely not be able to correct it and the landlord may face additional delays in obtaining an eviction order. All Notices can be found on the LTB website.

Another common situation is that the tenant agrees to transfer the utilities to the tenant’s name and assume payment of the utilities. The inevitable problem is when the tenant refuses to pay for the utilities, which are still all under the landlord’s name. Since the RTA says a landlord cannot cut vital services to the rental unit, the landlord is in the unenviable situation of paying money to service providers (or putting their own credit score into jeopardy) for utilities that a tenant is using and not paying for. In this situation, the landlord may choose to serve an N5 Notice on the tenant and file an L2 application with the LTB, if necessary. At the LTB hearing, the Chair may make an order for the tenant to transfer the utilities to their name and pay any amounts owed to the service providers, otherwise the tenancy will be terminated. However, if the tenant does not do so, the landlord would have to make a claim in the Small Claims Court (assuming the amount in question is under $25,000) to get an order with an actual dollar value.

Non-profit Housing Co-operatives (Co-ops)

Another piece of legislation, apart from the RTA, that may come into play in a co-operative housing situation is the Co-operative Corporations Act (CCA). The CCA has a section that details the termination of a member’s membership and occupancy rights in a non-profit housing co-op.

While it is not a landlord/tenant situation, a member can still be evicted for failure to pay the monthly housing charge. The co-op still needs to give the member the proper Notice form (can be found on the LTB website) with the correct termination date. While the procedure is similar to that of residential landlords, there are some differences in categories for which members can be evicted. For example, a member risks eviction for persistent non-payment/late payment of regular monthly housing charges or for misrepresentation of their income. In some situations, the co-op may apply immediately to the LTB for a hearing date after serving the member with the proper Notice form.

Should matters proceed to the LTB hearing stage, remember that we can represent you in your matter so that you do not have to personally attend at the hearing.

If you are a landlord or represent a co-op in or around the Timmins area, call our office to see how we can best assist you with your unique situation.

Florence Gonsalves Associate Lawyer - May 31st , 2016

Court battle involving the St Anne’s Residential School Survivors in Fort Albany

Another Court battle involving the St Anne’s Residential School Survivors in Fort Albany, Ontario and the Federal Government on May 11, 2016, in Toronto

I have been working closely with my colleague Fay Brunning, an Ottawa lawyer in advancing the IAP claims for many of the St Anne Residential School survivors since 2012. St Anne residential School was a residential school that controlled by both the Federal Government and the Catholic Church up to about 1976. There was a class action that was brought forward on behalf of all the residential school survivors that attended all the residential school across Canada that suffered some severe type of abuse while attending residential school. The class action law suit was settled out of Court by way of a class action settlement which sets out the compensation to be paid to the survivors depending on the level of harm they suffered. The IAP process is only available to the residential school survivors that have either been sexually assaulted or were severely assaulted to the point they would have lost consciousness because of the actions of either the Employee’s or Supervisors at the school. Also student on student abuse is also compensable.

In order to assert their claims, these brave residential school survivors have had to come forward to tell these horrible stories and they had a deadline to file their claim until September 2013. If they failed to file their claim by the deadline, their claims would be forever lost.

You must remember that many of these survivors for the most part have never shared their abuse that ranged from minor levels of sexual abuse to rape, to different levels of physical abuse including being forced to eat their own vomit and being electrocuted in an electric chair if they did not obey. Many were traumatized by this abuse that often went on from the time they started residential school at 4 or 5 years old until they were 14 or 15 years old. Many never shared this abuse with their parents, their brothers or sisters, their spouse or their children. Even while attending residential school, if they had any brothers and sisters attending the same school, they were not allowed to speak to each other. They were not allowed to speak in the Cree language while at residential school. For many, their parents would drop them off at the school, or they would be flown in from their respective communities in September until June the following year. They would have no contact with their parents during this period because the parents were gone hunting on the traditional land and there was no means of reaching them. Overtime many residential school survivors could not even communicate with their parents and they did not know sufficiently the Cree language to be able to communicate with their parents. They were brainwashed when attending residential school that no one would ever believe there stories as after all priest and nuns would not mistreat the children in such fashion.

The abuse at St Anne was simply too horrid. It was one of the worst residential schools I am told. When these students did file their IAP claim, many sought the help of lawyers and for many telling their story of the abuse they lived as children to their lawyer was the first time they ever disclosed what in fact happened to them as children. To complete the claim, one had to go into details what they in fact lived as children. For many it was very difficult as they told their stories to the lawyers that went into the communities, and were told that if it was not sexual abuse may lawyers would refuse to represent them making it such that they had opened an old wound and the lawyer did not want their case. For many, filing the claim was the equivalent of reliving the horror of what happened to them as children.

For most it was simply too painful to discuss as it would cause them serious mental distress. The problem is even though the government imposed a deadline, the First Nation communities servicing these residential school survivors were not equipped to provide the mental health support that these survivors required after opening up old wounds they had lived as children. For some, mostly the older generations, it was particularly difficult to discuss it with their lawyers who were, on the one hand, strangers to them and secondly who didn’t understand the language. Even if interpreters were called into these meetings with the lawyers, the translation does not always express what the person is trying to express and for many they did not want the interpreters in the community to know their stories for fear they may repeat it in the community. After the residential school survivors completed the information portion of the claim, in order to be compensated the residential school survivors had to verbally tell their story in front of an adjudicator, in the presence of a lawyer for the federal government and if the survivor had legal representation, in front of the survivors lawyer. This hearing is highly confidential and typically the survivors don’t talk about it afterwards. During these IAP hearings the lawyer for the Federal Government is continually trying to attack the credibility of the survivor indicating that the person they are alleging to have either sexually or physical assaulted them were either not working at the school at the relevant time in an attempt to defeat their claim.

It is not until sometime in 2013 that it was discovered that the Federal Government had failed to disclose to the survivors of the St Ann Residential School in that there was over 12,000 documents (one document can represent 1200 pages) in the possession of the OPP that had not been disclosed as per the disclosure process of the IAP hearings even though the Federal Government was very well aware of it, and had already been reviewed by the Federal Government’s lawyers. Initially it was thought that the Federal Government had only inadvertently failed to disclose this documentation but that was not the case. They intentionally withheld these documents.

My colleague Fay Brunning brought the Federal Government to task in 2013 and asked the Court by way of a Request for Direction to determine if the Federal Government failed in its obligation to the residential survivors of St Anne when it failed to include some12,000 documents that were in the possession of the OPP and which the Federal Government had full knowledge of since they had an opportunity to review these documents in prior lawsuits going back to 2003. The Federal Government fought tooth and nail not to have these documents disclosed in December 2013 but at the end of the day, Justice Perrell ordered the OPP to deliver these 12,000 documents to the Federal Government who in turn they were to provide this disclosure to the St Ann survivors or their legal counsel. The Court even ordered cost against the Federal Government of over $200,000.00 for its failure to provide such disclosure when they were legally obliged to do so. The Court had imposed a deadline for the Federal Government to provide this disclosure. The Federal Government pursuant to the Court Order produced the 12,000 documents but chose to be defiant and redacted (blacked out) most of the information contained in the 12,000 documents so that they were unreadable. As a result a further request for direction was brought again before Justice Perrrel in the early summer of 2015 and Justice Perrell ordered the Federal Government to produce the documents such that they would be legible and could be used to support the claims of the residential school survivors of St Anne’s. The Federal Government were again ordered to pay costs because of their non-compliance with a Court Order. The Federal Government finally produced the disclosure they were supposed to have disclosed going back to 2006.

Now that the proper disclosure has been produced by the Federal Government as of November 2015, (even if they were ordered to do so in January 2014) now some survivors can move forward with their cases showing the prejudice caused by the Federal Government with their lack of disclosure with respect to St Anne’s residential School. One of these cases is proceeding to the Superior Court of Justice on May 11, 2016, in Toronto to address the prejudice that the lack of disclosure has caused to some of these survivors.

One of these survivors has even attempted to commit suicide. He has suffered serious sexual abuse at St Anne’s and he was not believed when he went to his hearing because of the improper disclosure. The initial disclosure indicated that the priest in question was not at the school at the relevant time. He appealed the decision, and the appeal proceeded even though the Federal Government had been ordered by the Court to provide the accurate disclosure and they had yet to produce it. The Claimant’s claim was denied a second time because it was based again on the inaccurate disclosure provided by the Federal Government indicating that the priest had not been at the school at the relevant time of the abuse. As a result this residential school survivor did not receive any compensation whatsoever for the serious abuse he suffered while attending St Anne’s Residential School.

He sought the help of my colleague Fay Brunning, the lawyer that had the courage to fight the Federal Government on this issue and who has in fact succeeded. Now that the proper disclosure has been delivered by the Federal Government in November 2015 as a result of the two previous Court Orders it is now established that the priest in question was in fact at the residential school during the period the survivor indicated that he had been abused. This will have a direct impact on his credibility because there are now written documents that support what he is saying. At the May 11, 2016, court date, Fay Brunning will be asking the Court for this survivor to have a re-hearing. The Mushkegowuk Tribal Council has also made a request for Direction from the same Court on the same day asking for other relief.

Suzanne Desrosiers April 19th , 2016

Workplace Investigation Mistakes

COMMON MISTAKES THAT EMPLOYERS DO WHEN CONDUCTING A WORKPLACE INVESTIGATION

An employee files a complaint of sexual harassment against his manager. What do you do?
Firstly you want to meet with the employee in private and get as much information from him or her as you can about the incident in question. You want to take notes and you want the complainant to sign your notes to confirm the accuracy. During the course of obtaining this information, the Employee may ask that you keep the information that he or she is sharing confidential.

The ten (10) most common mistakes made by Employers when conducting a workplace investigation are the following:

1. The Employer cannot promise complete confidentiality to the complainant. The Employer can agree to disclose only the information necessary and on an as needed basis to be able to conduct a proper workplace investigation.

2. They assign the investigation to someone within the workplace but do not relieve that person from his or her other duties causing considerable delay between the date the complainant filed the complaint to the date of the decision.

3. The Employer fails to suspend the alleged offender during the course of the investigation with pay, making it such that many witnesses are not comfortable to come forward to indicate what they have observed for fear of retaliation

4. The Employer commences such workplace investigation without first reviewing their own Human Resources policies that governs the complaint such as “ sexual harassment” and accordingly the investigator is not following the steps set out in their own Human Resources Policy

5. The Employer commences such a workplace investigation without being familiar with the relevant legislation such as the Human Rights Act if we are dealing with a federally governed employer such as a First Nation or the Human Rights Code if we are dealing with a provincially governed Employer in Ontario.

6. The Employer fails to interview all the necessary witnesses making it such that they don’t have an accurate picture of what in fact took place.

7. The Employer fails to interview the alleged offender to get his version of the facts after they have spoken to all the other witnesses.

8. The Employer not realizing that the workplace investigation that is necessary is way above their level of expertise and they fail to reach out to an outside investigator to conduct the workplace investigation.

9. The Employer fails to advise the allege offender not to communicate with co-workers with respect to the matters under investigation or face discipline including termination;

10. The Employer fails to advise the complainant not to discuss the details of the incident with co-workers so that the witnesses testimony is only based on what they in fact observed and not on what they heard happened.
What most Employers don’t realize is that:

• If they try to terminate an Employee by alleging just cause without having conducted a workplace investigation; or
• That they botch the workplace investigation; or
• They fail to take the appropriate steps to protect the complainant;

they can be sued for either a constructive dismissal or a wrongful dismissal and the damages in both instances are costly.
Suzanne Desrosiers , Barrister & Solicitor March 1st 2016

Bishop Horden Residential School-Court hearing

I was in Toronto on May 20th 2015 with my colleague Ms. Fay Brunning for the hearing in the Ontario Superior Court of Justice representing some students of the residential school known as Bishop Horden in Moose Factory. The hearing dealt with whether the documentary searches done by the federal government with respect to the Bishop Horden Residential School were in fact done properly. In attendance at that hearing were Edmund Metatawabin and Deputy Chief of Mushkegowuk Tribal Council Leo Friday, as well as two Health Officers from NAN, and many other members of the public. APTN, CBC, Toronto Star, TVO were some of the media who were also in attendance at this hearing. There are stories on the internet on May 21st 2015 dealing with the said hearing.

The hearing proceeded as scheduled in front of Mr. Justice Perell, the same judge who decided the St. Anne’s Residential School case last year which determined that the Federal Government had failed to disclosed some 12,000 documents representing over 40,000 pages dealing with an OPP investigation that lasted some five(5) years. Mr. Justice Perell is the supervising judge of the class action settlement involving residential schools.

The main issue before the Court was whether or not the Federal Government had made a sufficient search for documents in its possession dealing with the abuse of the students, not just the students at Bishop Horden, but all the Indian Residential Schools across Canada. By cross examining under oath the officials of the Federal Government, Ms. Brunning had found out that the Federal Government had restricted their search of documents to only Archives Canada and to the Ministry of Aboriginal Affairs and the Federal Government took the position that such search was sufficient. The position of both Ms. Brunning on behalf of the former students that she represents, and of Stuart Wuttke on behalf of the Assembly of First Nations, was that the search by the Federal Government was insufficient. Nine (9) students at Bishop Horden Residential School in Moose Factory recalled a number of supervisors being both dismissed and charged criminally in the 1960’s and the Federal Government had no documentation to that effect in their disclosure to these students in the IAP process. Upon digging, it was revealed that the line departments such as the RCMP, Health Canada and the Department of Justice were never asked to search for any documents in their possession pertaining to sexual or serious physical abuse to Indian Residential School children.

Ms. Brunning asked the Court to order that the Federal Government should still search the line departments such as the RCMP and Health Canada to find any documentation about physical and sexual abuse at the Bishop Horden Residential School. The Assembly of First Nations supported the position of Ms. Brunning. The lawyers for the Federal Government were maintaining that they had discretion in how they did their search and what they had done was sufficient.

If the judge interprets the settlement agreement in favour of the position of both Ms. Brunning and the Assembly of First Nation, this may mean that some of the IAP cases that have already been heard may need to be re-opened if they find some documents with the line departments of the Federal Government such as the RCMP and Health Canada. Those details would be reviewed after the search for documents is properly made and the new documents are reviewed.

It was quite apparent that the judge had read all the material prior to the hearing and he was engaging legal counsel with the issues which he was struggling with to decide. Therefore we are waiting for the decision of the Court but from the demeanor of the judge yesterday and the questions he was asking, it appears that the judge is leaning towards the argument presented by Ms. Brunning on behalf of the applicant and the arguments of the lawyer of the Assembly of First Nations.

May 21st, 2015 SUZANNE DESROSIERS