Law Times

Page 4 November 7, 2016 • Law Times www.lawtimesnews.com employers will have to consider under the Misetich approach. "Under the Johnstone test, it's a pretty clear line. It has to be your legal obligation," she says. Another part of the John- stone test with which Scott took issue was the requirement for the claimant to prove they had tried to self-accommodate — or find alternative solutions for their obligations. The tribunal said this was too stringent a test at the outset of discussions and that accommodation and discrimination had been con- f lated. Scott said that accom- modation "is a joint process," and that it does not fall solely on the employee. Parisa Osborne, a lawyer with Rubin Thomlinson LLP, says both tests have their advantages but what is important going for- ward is that lawyers are aware of both until clarity is provided. "We may not know exactly what the test is, but the process is unchanged," says Osborne, who was not involved in the case. In Misetich, Value Village fired the employee after she re- fused to work an altered work schedule to accommodate an in- jury she suffered. Her employer requested she provide proof of her elder care responsibilities. Misetich provided a doctor's note, but management rejected it saying it was from her own doc- tor. She found the requirement to provide evidence that she had taken all reasonable steps to self- accommodate "insulting and offensive." The tribunal deter- mined that Misetich had failed to provide sufficient informa- tion to substantiate her responsi- bilities to her mother and as such had not proven discrimination had taken place. Kathryn Bird, the lawyer rep- resenting Value Village, declined comment, and Misetich, who was self represented in the proceed- ings, could not be reached. LT NEWS NEWS NEWS arguing there might be many obligations caregivers have that do not stem from legal responsi- bilities but are still vital. "To limit human rights pro- tection to legal responsibilities imposes an unduly onerous bur- den on applicants," Scott wrote in the decision. The tribunal also said that the test of legal respon- sibility is hard to apply in the context of elder care, as the legal responsibility to take care of an elderly parent is not as clear as that of caring for a child. Chisholm, who was not in- volved in the case, says this might not be easy to apply practically, as it is not necessarily clear what Continued from page 1 Test of legal responsibility hard to apply for elder care mons at the time that the changes were part of a "broader public pol- icy position" of the Conservative government, similar to manda- tory minimum prison sentences. The constitutional challenge, brought by Michael Charron and Joseph Rajab in a joint ap- plication, argues that access to the pardon process is part of the punishment imposed on anyone convicted of a criminal offence. "The applicants are entitled to the benefit of the lesser pun- ishment — that is, the punish- ment that was in place when the offences were committed," state lawyers Michael Spratt and Mi- chael Lacy in written arguments on behalf of their clients filed in Superior Court. Individuals who must disclose past criminal convictions have a more difficult time finding employment and even housing, they state. Charron, who received a four-month sentence in 2008 for a drug-related offence, would have been able to apply in 2013 for a restriction on access to his criminal record. He must now wait until 2018. Rajab would also have been able to apply for a pardon in 2013 under the pre- vious provisions after receiving a conditional sentence of two years less one day for criminal negligence causing death. Spratt, a partner at Abergel Goldstein & Partners LLP in Ot- tawa, and Lacy, partner at Brauti Thorning Zibarras LLP in To- ronto, argue that punishment is more than jail. "Liberty must be given a broad meaning," they state in their written arguments. Catherine Latimer, a lawyer and executive director of the John Howard Society of Can- ada, says there is a stigma and negative consequence for any- one who has to disclose a crimi- nal record. "Once someone has com- pleted their sentence and passed through a crime-free period, their record should be closed. They have done their time. Let it go," says Latimer. Crime data in Canada shows that recidivism is more common shortly after someone has com- pleted their sentence in custody and not later on, she explains. The previous waiting periods were fair and not a risk to public safety, states Latimer. Goodale expressed a simi- lar view in an interview with CBC News in January about the changes enacted by the Con- servatives, including the sharp increase in the application fee. "It looks to me that [what] was done was far beyond any mea- sure of practical cost recovery. It was, in fact, a punitive mea- sure," Goodale told CBC and he promised to re-examine the record suspension process. No changes have been made by the Liberal government. The Parole Board of Canada sought public consultation this year about the increased application fee, but it has not issued any fol- lowup report. The constitutional challenge is focused on the increases in the waiting periods. In response, the federal government says the existing rules "address pressing and substantial objectives" to public safety. The written argu- ments filed in Superior Court suggest there was an imbalance in the previous rules and that the changes made by the Con- servatives were necessary. Public Safety Canada did not respond to requests for comment. LT Waiting period fair? 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