On June 24, 2010 a new Human Rights Act, 2010 (the “Act”) came into force in Newfoundland and Labrador which has replaced the Human Rights Code (the “Code”). While much of the Act mirrors the former Code, there are a number of key changes of which employers should be aware.
Revisions to the prohibited grounds of discrimination The definition of “family status” now includes step-children and step-parents.
The effect of this may be to broaden the basis upon which an employer must
accommodate an employee due to family commitments. Additionally, “marital
status” is now defined and includes the status of being single, engaged, married,
separated, divorced, widowed or living common law.
The Act includes two new additions to the list of prohibited grounds which
will likely affect employers when making decisions about hiring, termination
of employment and changes to the employment relationship. Under the Act,
an employer cannot refuse to employ an otherwise qualified person who has
been convicted of a criminal offence, unless their conviction is related to the
employment position. “Disfigurement” is not defined in the Act, however, in
Ontario human rights legislation, disfigurement is described as a degree of
disability which may be caused by bodily injury, birth defect or illness and includes
amputation. While “source of income” has also been added to the list of prohibited
grounds of discrimination, it is expected to impact predominantly in respect
of individuals seeking residential accommodations and not in the employment
context.
The former categories of physical disability and mental disability are now
combined as “disability” and there is a new express provision in the Act that
prohibits discrimination on the basis of “perceived disability”. Therefore, employers
cannot discriminate against someone on the basis that: (i) they have or have had a
disability in the past; (ii) the employer only believes that the person has a disability;
or (iii) the individual has or is believed to have a pre-disposition to developing a
disability. While not expressly set out in the prior Code, perceived disability has
been recognized by courts in Newfoundland and Labrador as being a prohibited
ground of discrimination for at least the past 7 years based on the decision of the
Newfoundland and Labrador Court of Appeal in Evans v. Health Care Corporation of
St. John’s.
Extension of and limitations to human rights protection The Act extends human rights protection to a number of groups, most notably
to pregnant women. In addition, people under the age of 19 years are no longer
restricted from filing age-based discrimination complaints as they were under
the prior Code. The Act also prohibits discrimination in contracts, with exceptions
made for insurance, life annuity, and pension contracts. It should be noted that
while an employer seeking to hire someone to complete personal services cannot
advertise for the position in a manner that is discriminatory, the employer is
able to discriminate in deciding who to hire for the personal services position.
Personal services is defined as “work of a domestic, custodial, companionship,
personal care, child care, or educational nature or other work within the private
residence that involves frequent contact or communication with persons who live in the residence”. Additionally, under the former Code, an employer who was
exclusively a religious, fraternal or sororal organization was not prohibited
from discriminating on the grounds of religion or sex, respectively. Under the
new Act, such organizations are no longer permitted to discriminate in relation
to their employment related decisions.
Faster and more efficient complaint process The Executive Director now has discretion to defer or dismiss a complaint if
it may be capable of being appropriately dealt with in another proceeding,
including a proceeding authorized under another Act or a grievance
proceeding under a Collective Agreement. The Executive Director may
also dismiss frivolous complaints or complaints that do not fall within the
jurisdiction of the Act.
There is requirement for the Commission to refer a complaint to a board of
inquiry for hearing where the complaint: (i) has not been dismissed by the
Executive Director and the Commission believes there is sufficient evidence
to proceed; (ii) where the parties are unable to settle the complaint; or (iii)
where the Executive Director is not of the opinion that it should be deferred.
The Executive Director’s decision to dismiss a complaint and the Commission’s
decision to not refer a matter to a board of inquiry for hearing are both subject
to a complainant’s right to appeal to the Supreme Court, Trial Division.
Finally, there has been an increase in the amount of a fine that can be levied
in connection with an offence under the Act where a complainant decides
to proceed directly to Provincial Court and forego a complaint to the
Commission. Under the Code, an individual was liable, on conviction, to pay
a fine not exceeding $100.00, while a corporation, trade union or employer’s
organization was liable on conviction to pay a fine not exceeding $500.00.
Under the Act, those fines have increased to a fine up to $500.00 for an
individual and up to $1,000.00 for a corporation, trade union or employer’s
organization. These fines are in addition to other damages that may be
awarded by the Provincial Court, including lost wages, costs and general damages for hurt feelings.
This is a publication of the Labour & Employment Group in St. John’s, NL. Please direct questions or suggestions to
D. Richard Robbins
rrobbins@coxandpalmer.com
709.570.5325
Gregory M. Anthony
ganthony@coxandpalmer.com
709.570.5532
Michelle A. Willette
mwillette@coxandpalmer.com
709.570.5335
Anna Cook
acook@coxandpalmer.com
709.570.5565
Christopher Peddigrew
cpeddigrew@coxandpalmer.com
709.570.5552
