According to the Ontario Human Rights Code, there are certain circumstances in which an employer will be required to “accommodate” an employee.
Some of the grounds that require accommodation include:
Accommodation can range from having to change a schedule because the employee must work reduced hours, to having to buy additional office equipment such as ergonomic chairs or temporarily changing the employee’s duties (for example, having an assistant do administrative duties).
When we tell our dentist clients about this duty, they say “of course I will accommodate my employee” but quickly follow with “to what point”?
The Ontario Human Rights Code says that a court/tribunal cannot find that the employer is incapable of accommodating unless satisfied that the needs of the employee cannot be accommodated without undue hardship on the employer [s. 17(2)].
To determine what is undue hardship, courts/tribunals are only permitted to look at:
Other considerations, such as inconvenience, employee morale, what it may look like to patients, etc. cannot be taken into consideration (unless they somehow tie into one of the three allowable considerations).
Here are two cases where the “undue hardship” of the employer was assessed and the outcome:
Munroe v. Padulo Integrated Inc., 2011 HRTO 1410 (CanLII)
The Employee, Munroe was an account director at an advertising company. He had been employed with Padulo for several years when he found out he would need hip surgery. That surgery and recovery took about 18 months. Instead of providing Munroe with accommodation to return to work, the company terminated his employment. The company argued that was because the company was in the process of downsizing and cutting costs – Munroe’s job would have ended shortly anyway.
Here’s what the judge had to say:
Over less than two years, the company would shrink from about 31 employees to about 17. In January 2009, other individuals were being laid off or experiencing significant salary reductions. Further, the team on which the applicant worked was in the process of winding down the work with its major client. The work to which the applicant would have returned was not continuing, but was anticipated to come to an end. In the context of these specific circumstances, it would not be reasonable to expect the company to have brought the applicant back as an additional person on its payroll for a period of re-orientation, for the purpose of delaying a decision on layoffs until later.
The judge sided with the company and agreed that it had no duty to accommodate Monroe due to undue hardship based on cost.
ADGA Group Consultants Inc. v. Lane et al., 2008 CanLII 39605 (ONSCDC)
Lane was diagnosed with bipolar disorder, characterized by manic and depressive episodes with periods of stability. Lane applied for and was hired by ADGA as a software program tester without revealing his diagnosis. Once at work, Lane disclosed his diagnosis to a supervisor and told her how to identify when he was becoming manic and asked her to interfere if she observed any inappropriate behaviour. Ten days after starting work, Lane was dismissed from his job for having misrepresented his ability to do the duties of the job. As a result of the job loss, Lane went into a full blown manic episode, was hospitalized, then his condition turned depressive as a result of the financial burden of job loss and his marriage ended up breaking up. The employer was dismissive of their obligation towards Lane and tried to justify its lack of accommodation by arguing that Lane was a health and safety risk, that the supervisor was not able to watch Lane at all times, and that his manic/depressive episodes could lead to a national security issue if he told others classified information ADGA entrusted him with.
The Human Rights Tribunal disagreed. They said that Lane was fully capable of performing the job but had a disability and found that ADGA did not meet its procedural duty of accommodating Lane’s disability and awarded Lane $35,000 in general damages and $10,000 as damages for mental anguish and ~$34,000 in special damages for loss of salary. The tribunal also said that undue hardship cannot be established by relying on “impressionistic or anecdotal evidence or after-the-fact justifications”.
As you can see, it is open to an employer to argue that they would face undue hardship under one of the three heads enumerated in the Human Rights Code, but the success of the argument will depend in each individual case based on the circumstances.
If you are unsure about if or how to accommodate an employee, be sure to contact us and we can help to guide you through the process of accommodation.
Please note that the information provided herein should not be considered legal advice and is provided for informational and educational purposes only. If you have any questions about the OHSA, need advice about your obligations as an employer, or need help coming up with and implementing the new harassment policy, please contact me (Ljubica Durlovska), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
Yes, it’s true. The Ontario Ministry of Finance has started to audit dentists in order to ensure they have paid enough Employer Health Tax (EHT) for all employees. And they’re disputing dentist’s characterization of hygienists and associates as independent contractors (instead of employees)(! If they believe they should have been employees, then the practice would be on the hook for paying EHT, plus interest and penalties!!!
This is VERY BIG NEWS because, industry wide, many associates are considered independent contractors and their contracts are set up in that manner. But just saying in an agreement that a hygienist or an associate is an independent contractor ISN’T ENOUGH to actually make them so.
Canadian courts use the following four-fold criteria to determine whether a person is legally considered to be an independent contractor:
See Montreal v. Montreal Locomotive Works Limited,  1 DLR 161 (PC); Wiebe Door Services Ltd. v Minister of National Revenue,  2 CTC 200; and 671122 Ontario Ltd v Sagaz Industries Canada Inc., 2001 SCC 59.
Individuals who exert control over their own work, own their own tools, have the chance to profit and run the risk of loss will generally be considered independent contractors.
Importantly, the Supreme Court has held that there is no conclusive test to determine whether a person is an independent contractor or an employee The Courts will look at the totality of the relationship to determine if an individual is an employee or an independent contractor. More specifically, all of the facts must be considered in light of the common understanding of the parties’ legal relations. In other words: (1) was the subjective intention of the parties established or reflected in writing and / or by action and (2) does the objective reality, based on the four-fold criteria set out by the courts, sustain or deny the subjective intention of the parties?
See Royal Winnipeg Ballet v. Minister of National Revenue (2006), 2006 CarswellNat 2425 (Federal Court of Canada).
If you’ve been contacted by the Ontario Ministry of Finance about this, contact DMC LLP immediately and we will work with you to help get you the best possible results. If you haven’t been contacted yet, contact DMC LLP right now to help PREVENT this from happening by having your contracts drafted properly and the realities reflect a more truly independent relationship.
As we expected, the Ontario Government announced how they are going to update employment and labour laws in Ontario. After the lengthy Changing Workplaces Review was completed this month, the government moved fast to tell us which of the recommendations they would implement.
Dentists in Ontario should take note of the following updates to the law that will likely come into effect in 2018 or 2019: Read more
Filed under Blog, Dental Hygienists, Staff · Tagged with $15, $15 minimum wage, 3 hour payment, changing workplaces review, dentist lawyers, DMC LLP, employee, employment law, employment standards, ESA, esa enforcement, holiday pay, independent contractor, Jonathan Borrelli, jonathan n borrelli, minimum wage, ministry of labour, on-call, overtime, paid vacation, refusal to accept shifts, schedule changes, training
Spring is in the air! April showers have come and gone, the flowers are blooming, planting
of our vegetable gardens has already begun, the warm weather is upon us. It’s a great time of year.
A great time of year for Ontario Ministry of Labour Workplace Inspection Blitzes and Initiatives!
Filed under Blog, Dental Hygienists, Staff · Tagged with audits, blitz, employment standards, ergonomics, ESA, falls, holidays, hours of work, inspection, Jonathan Borrelli, minimum wage, ministry, ministry of labour, MOL, needle, needle safety, noise, northern ontario, occupational health and safety, OHSA, overtime, slips, standards, trips, vacation, workplace violence, x-ray
I’ve finally had a chance to review the 280-page federal budget for this year (building upon the work done by Michael Carabash on our blog) with an eye to employment law and what dentists need to know.
Here is my brief overview of changes we can expect as a result of the 2017 Federal Budget: Read more
Filed under Blog, Dental Hygienists, Staff · Tagged with benefits, budget, budget 2017, caregiver, children, cra, disability, DMC LLP, EI, EI benefits, email T4, employee, employees, employment insurance, enforcement, illness, injury, Jonathan Borrelli, maternity leave, parental leave, staff, t4, T4s, team
David Mayzel is your legal risk manager. He is a trained courtroom lawyer and has spent many years resolving disputes both in and out of court. He knows how to prepare documents and execute transactions in a way that avoids or mitigates legal risks. He can be reached at 416.528.5280. or firstname.lastname@example.org.
Michael Carabash is your business law adviser. He is an entrepreneur at heart who helps you see the big legal picture. He drafts clear and effective agreements that protect your rights while promoting your interests. He can be reached at 647.680.9530. or email@example.com.
Ljubica Durlovska is your transition lawyer. She helps you with staff and associates, maintaining your corporation, and other business matters. She can be reached at 416.443.9280, extension 206 or firstname.lastname@example.org.
Jonathan Borrelli is your employment lawyer. He helps you with staff and associates matters, including hirings, terminations, switching staff to written contracts and resolving disputes. He can be reached at 416.443.9280, extension 204 or email@example.com.
Benjamin Kong is an experienced business law clerk. He assists David and Michael with corporate matters and purchase / sale transactions. He can be reached at 416.443.9280, extension 207 or firstname.lastname@example.org.
Julie Whitehouse is an experienced business law clerk. She assists David and Michael with corporate matters and purchase / sale transactions. She can be reached at 416.443.9280, extension 203 or email@example.com.
David, Michael, Ljubica, Jonathan, Ben and Julie are a truly dynamic team. Their diverse knowledge, skills, and experiences will help you get the best deal possible while promoting your interests and protecting your rights. You can read dentist testimonials here.