Thoughts from a Management Lawyer

Changing Canadian Workplace

A recent report by TD Bank Financial Group entitled The Changing Canadian Workplace starts off:

The landscape of the Canadian workplace has changed dramatically over the past few decades. Regardless of whether or not we, as a nation, are ready for it, macroeconomic and demographic trends and new workplace standards have changed the definition of a “traditional” career. Employers and workers must face this new paradigm with a different toolset than that which has been used up to this point. This study will investigate these trends and the challenges that they present.

Thanks to the always timely Perry Work Report.

Happy St. Patrick's Day

Abuse of Process Under the Ontario Human Rights Code

I have previously written about the circumstances in which the Human Rights Tribunal will dismiss a complaint (application) filed after an employee has signed a full and final release.  The issue continues to be litigated, but one question I have had is what interpretive value, if any a Guide to Releases with respect to Human Rights Complaints published by the Commission in May 2006 would have on the Tribunal's deliberations.  The Guide, when it was published, generated some discussion and debate in employment law circles because it seemed to take a restrictive view of releases.

In any event, the Tribunal has commented on the matter in O’Regan v. Firestone Textiles where it noted:

The applicant has relied upon a Commission document entitled “Guide to Releases with respect to Human Rights Complaints” published by the Commission in May 2006, in support of her position.  In this regard, and while I have considered this document, I note that this Guide was prepared by the Commission under the former Code in relation to the issue of whether a complaint was vexatious or filed in bad faith as a result of a pre-existing settlement, which is no longer an issue under the current legislation.  Under the current legislation, the issue for this Tribunal is whether it would be an abuse of process to allow an application to proceed in light of a settlement or release: see Dube v. Rockhaven Recovery Ltd., 2009 HRTO 53 (CanLII), 2009 HRTO 53 (CanLII).

It would seem, then, that the Guide has little if any application as a result of the change in the test under the "new" Code.