Prima Facie Discrimination
Frustration of contract, absenteeism, modified duties, bundling work, creating new position.
Official Abstract: "The focus of this article is mental health and workplace disability discrimination in the UK. The article will look at a number of ways that disability discrimination in the UK could be developed to the advantage of people with mental health problems, through an examination of the legislation and through case analysis.The issues that are raised by disability discrimination on the ground of mental health are pertinent to all legal systems that have enacted laws to try and protect people suffering from disability discrimination.
Discusses when addiction is not considered prima facia discrimination by the SCC and the descenting opinions. Reviews the SCC decision on when a zero-tolerance policy will be upheld despite the presence of an addiction.
Examines the rights of persons with mental health issues when participating in the workplace, and argues that the principle of inclusion can facilitate a better understanding of discrimination complaints in order to address them appropriately.
The article distinguishes between how discrimination is determined under the Ontario Human Rights Code and the Charter of Rights. An extensive discussion of the distinctions between prima facia discrimination under the codes and discrimination in a substantive sense under the Charter and the different thresholds of proof required by the claimant under each statue. Defines systemic discrimination under human rights codes.
Advocates for a systemic approach to anti-discrimination law and reviews the factors considered when anticipating the need for individualized accommodation; reiterates that prima facie case of discrimination should be distinct from assessments of a bona fide occupational requirement.
Argues that the decision in Tranchemontagne to import a substantive test at the prima facia stage, into human rights tribunal cases, shifts the burden onto the claimant to prove that the rule was substantively discriminatory and is inconsistent with previous Supreme Court of Canada decisions.
Commentary on SCC case Communications, Energy and Paperworks Union of Canada Local 30 v Irving Pulp and Paper Mill, 2013 SCC 34, and compares ratio to provide an analysis on the then ongoing litigation issues in Alberta Communications, Energy and Paperworks Union Local 707 v Suncor Energy Inc, 2012 ABCA 307; union vs. non-unionized setting on pre-employment drug test and the line of addiction as deciding factor.
The article discusses the conceptual challange that addiction and mental health pose in being not immutable, pose for establishing prima facia discrimination and how courts/adjudicators have dealt with it. The article addresses the test to determine indirect discrimination and the need to include indirect discrimination to achieve substantive equality.
Summary and analysis of decision in Stewart v Elk Valley Coal Corp, 2017 SCC 30; impact on employer's right to take proactive measures in the workplace.