Canadian Employment Law Today

November 18, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2020 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 70318 4911 RT0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE info@keymedia.com www.employmentlawtoday.com 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: jeffrey.smith@keymedia.com Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: fred.crossley@keymedia.com Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: donnabel.reyes@keymedia.com Phone: (647) 374-4536 ext. 243 THIS INSTALMENT of You Make the Call fea- tures a pony ride company that hired a teenager and then changed its mind. The company, Ponies R Us, provided pony rides for birthday parties and corporate events. It was based at a fruit farm for about six weeks each fall where it also offered pony rides for cus - tomers who came to the farm. In late August 2018, the mother of a 15-year- old boy contacted Ponies R Us about the boy working for the company that fall. The boy's sis - ter had previously worked there and the mother felt they had a good relationship. The owner's wife said she would be happy to have the boy work with them for the fall season and be "part of the team." She asked if he could start the first weekend of September. The boy's mother confirmed he could start the first weekend of September, but she added that he was deaf and could "communicate using gestures and writing notes with hearing people so working with the crew will not be an issue." The owner's wife replied that there wouldn't be a problem and the boy could meet most of the staff the first weekend of September. On Aug. 31, the owner's wife emailed the boy's mother to say that due to "juggling of schedules," he would have to wait until the fol - lowing weekend. She also said she would be in touch regarding questions the mother had about preparation. However, the mother didn't receive any fur - ther communication from Ponies R Us. She as- sumed that nothing had changed and the boy was expected to show up for work on the second weekend of September, particularly since she knew there was no formal orientation process when the boy's sister had worked for the com - pany. On Sept. 8, the boy and his mother went to the fruit farm, where they met the owner of Ponies R Us. The ponies were unloaded from a trailer and the owner handed the boy the reins to a pony with instructions. He left and the boy worked with three other employees for the rest of the morning, giving pony rides to children without any problems. According to the owner, he had thought that the boy and his mother were there to check out the fruit farm, but when one of his employees texted him to say the boy was there to work, he called his wife and told her to con - tact the boy's parents to pick him up. His wife emailed the boy's mother and said there was some miscommunication, as the boy wasn't scheduled to work that weekend. She also said that, after discussing it with her husband, they felt it wasn't safe to allow the boy to work there since he couldn't communicate with the children or hear potential dangers approach - ing him or the children. She added that she would see if there was some work on the fruit farm that didn't have any potential dangers and that, if she picked the boy up at lunch time, Ponies R Us "would gladly pay him for a half day." The boy's father texted the owner, who sug - gested the boy apply for a job at the fruit farm. However, the father didn't accept the fruit farm application form and took the boy home. They then filed a complaint of discrimination in em- ployment based on disability. YOU MAKE THE CALL Did the company discriminate against the boy? OR Did the company have legitimate reasons not to employ him? IF YOU SAID the company discriminated against the boy, you're right. The Ontario Human Rights Tribunal found that the boy had a disability that was protected from discrimination and he was removed from the pony ride after a half-day's work because of that disability — there was no evidence of any problem with his work over the course of that morning. Ponies R Us argued that the boy was never actually hired, but the tribunal disagreed, as the owner's wife had indicated that the company would be happy to have him be "part of the team" working for them during the fall season. In addition, the boy's sister had previously worked for Ponies R Us and there had been no formal ori - entation process, so it was reasonable to assume that the boy was expected to work on Sept. 8. The tribunal also found that if the company had safety concerns about the boy being deaf, it should have raised them after the boy's mother told the owner's wife, who had no problem with it at the time. In addition, the boy was allowed to work for an entire morning when the company was aware that he was deaf, said the tribunal. The tribunal noted that there was no evidence that pony rides were dangerous or that the boy's deafness presented a particular hazard — the company had never had an insurance claim in 21 years of business and no instances of anything happening where the boy's lack of hearing would make things more dangerous. "While [the owner of Ponies R Us] may have been genuinely concerned about safety, his con - cerns were founded in stereotype instead of real- ity," said the tribunal. "He did not turn his mind to an objective assessment of whether hearing was a bona fide occupational requirement for the position." In addition, the tribunal called into ques - tion the owner's claim that he initially thought the boy and his mother were there to check out the fruit farm, since, if that was true, the owner wouldn't have given the boy the reins to a pony and instructions. Ponies R Us was ordered to pay the boy $600 as compensation for lost wages and to develop a human rights policy and training. In addition, the tribunal invited both parties to make submis - sions on whether the boy should receive damag- es for injury to dignity, feelings and self-respect. For more information, see: • BK v. Ponies R Us, 2020 HRTO 161 (Ont. Hu- man Rights Trib.). Deaf worker rides off into sunset from seasonal job

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