“Gender Identity” and “Gender Expression” Added to Canada’s Human Rights Law

New Legislation Enacted

On June 19, 2017, the federal government added “gender identity or expression” as a prohibited ground of discrimination under the Canadian Human Rights Act. While the Act does not define this new ground, the Ontario Human Rights Commission defines “gender identity” as the “internal and individual experience of gender” and “gender expression” as how one “publicly presents their gender”. Federally regulated employers may no longer discriminate against employees on either basis, and they bear a corresponding duty to accommodate gender identity and expression in all facets of employment. All Canadian jurisdictions now identify “gender identity” and/or “gender expression” as prohibited grounds of discrimination.

Random Drug and Alcohol Testing Allowed Pending Arbitral Decision

Precedential Decision by Judiciary or Regulatory Agency

On April 3, 2017, Ontario’s Superior Court of Justice denied the Amalgamated Transit Union’s (the Union) application for an injunction to prevent the Toronto Transit Commission (TTC) from implementing a random drug and alcohol testing policy pending the conclusion of a grievance arbitration respecting the validity of that policy. The Court’s reasons for allowing interim testing—including systematic implementation, absence of reputational or psychological harm, and the interest of safety of millions of TTC passengers—signal a shift in the judiciary’s priorities from employee privacy to safety and deterrence.

Employers May Demand Independent Medical Examination in Accommodation Process

Precedential Decision by Judiciary or Regulatory Agency

On May 19, 2017, Ontario’s Divisional Court upheld a Human Rights Tribunal decision that employers may demand an independent medical examination (IME) in the accommodation process. Specifically, employers may require an IME where it has reasonable and bona fide reason to question the adequacy and reliability of medical information provided by an employee. The Court held that contradictory evidence about an employee’s ability to return to work could constitute such reasonable and bona fide reason. Employers should not, however, use IMEs to “second-guess” an employee’s request for accommodation, as doing so could attract discrimination and/or wrongful dismissal claims.

Proposal to Further Amend Ontario’s Fair Workplaces, Better Jobs Act, 2017 (Bill 148)

Proposed Bill or Initiative

On August 21, 2017, the Standing Committee on Finance and Economic Affairs agreed upon Bill 148, to propose amendments to Ontario’s Fair Workplaces, Better Jobs Act, 2017. Bill 148 seeks to create a standalone leave for domestic or sexual violence; increase pregnancy and parental leaves; establish new record keeping requirements for employers; and provide additional scheduling, on-call, and holiday pay. If passed, Bill 148 will introduce a number of changes to Ontario’s Employment Standards Act, 2000 and Labour Relations Act, 1995, with certain provisions taking effect as early as January 1, 2018.

Ontario Government Announces Plans to Regulate Legalization of Marijuana

Proposed Bill or Initiative

In response to the federal government’s plan to legalize cannabis by July 2018, the Ontario Government announced that it will introduce legislation later this fall to regulate the use and retail of cannabis. A key element of the proposed legislation includes limiting the use of recreational cannabis to private residences, such that its use will be prohibited in public places, motor vehicles, and workplaces. The Ontario Government announced that it will develop resources to guide employers, labor groups, and other similar stakeholders as they manage workplace safety issues related to impairment at work through education and awareness initiatives. In the interim, employers should continue to treat cannabis in the workplace like any other prescription medication.