Canadian Employment Law Today

September 12, 2018

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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©2018 Thomson Reuters Canada Ltd. 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. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $308 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was the building council within its rights to sever its ties with the worker because of his convictions? OR Was the worker discriminated against? Convicted worker cries foul over termination THIS INSTALMENT of You Make the Call features a worker who was fi red after his employer learned of a criminal conviction. e worker was employed at a residential building complex called the Strata, where residents owned their individual lots and co-owned public areas of the complex. e worker was friends with the building manag- er, who paid him to perform jobs around the building complex such as repair and janito- rial work, painting, and landscaping starting in 2008. e Strata provided all the tools and equipment for the work and the complex's council was aware of and consented to the worker's hiring for these jobs. For example, at one point the worker fi lled in for the regu- lar janitor and the council decided to keep him on when the regular janitor quit. e worker was paid for each job until June 1, 2014, when the Strata gave him a "janitorial agreement and work description," which was a one-year contract to provide janitorial services for the building, to be re- newed yearly as necessary. In October and November 2016, the worker performed work in the elevator pit at the building and the Strata paid him extra above his janitorial contract. However, a new building council was soon elected and it de- termined that the worker wasn't qualifi ed for it. e council asked the worker for confi rma- tion he had workers' compensation coverage but said he failed to do so — though the work- er did have coverage as of Jan. 20, 2016 – so it decided not to assign him any more work. On Nov. 27, 2016, a resident of the build- ing informed the council that she had seen the worker performing tasks around the building and recognized him from the news- paper as a convicted sex off ender. She was concerned that the worker had access to the building when several residents had grand- children who visited or were women. e council learned that the worker had been convicted of sexual interference and jailed for six months in 2012 and convicted of possession of child pornography and breaking his probation in May 2015, leading to more jail time. His name was placed on the sexual off enders' registry for life and he had to submit his DNA to the criminal databank. A court prohibited the worker from contact with minors under the age of 16, ordered him to avoid places where children may be present, and forbid him from accessing the Internet for fi ve years. A newspaper article about the second conviction noted that the worker had said he felt bad for his family but showed no remorse towards his victims, and a psychological assessment determined he was untreatable due to low intelligence, de- spite a high risk to re-off end. e council informed the building man- ager that the worker was no longer to per- form any tasks at the Strata and he should not have unsupervised access to the building e worker fi led a human rights com- plaint claiming discrimination in employ- ment on the basis of criminal convictions unrelated to his employment, which was prohibited by the B.C. Human Rights Code. e Strata countered that it didn't initially al- low the worker to complete his work because he didn't prove he had workers' compensa- tion coverage and decided not to use him go- ing forward after it learned of the newspaper articles saying the worker was untreatable and likely to re-off end. IF YOU SAID the building council was able to sever its ties with the worker, you're correct. e B.C. Human Rights Tribunal agreed that the worker had a protected char- acteristic under the Human Rights Code — his past criminal convictions. It also agreed that for all intents and purposes, the worker was an employee of the Strata and was de- nied the opportunity to do further work for the building complex. It was likely the work- er could prove that the Strata's decision to deny him employment — an adverse impact — was caused at least in part by his criminal convictions, said the tribunal. However, while there was no evidence that the Strata conducted any investigation to determine the accuracy of the newspaper articles, the worker didn't refute any of the information contained in them — in fact, the worker himself proved the contention that he was likely to re-off end with his sec- ond conviction three years after his fi rst. is raised the issue of the compatibility of the worker's convictions with his employ- ment, as the court ordered him to avoid con- tact with minors and places where children may be present. ere was no dispute that children could be present in the building at any time with grandchildren visiting their grandparents and the worker's employment gave him unrestricted access to various parts of the building. e tribunal determined that the Strata had enough to establish that the worker's criminal convictions were related to his em- ployment and he was unsuitable for work at the building complex. e worker's com- plaint was dismissed. For more information see: • Pater v. Strata Plan VIS 4136, 2018 Car- swellBC 2066 (B.C. Human Rights Trib.).

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