DUTY TO ACCOMMODATE BRAND NEW AGENDA. Presented by Insight Information

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1 Presented by Insight Information Advanced Issues in DUTY TO ACCOMMODATE Proactive Management of Employer, Union and Employee Responsibilities BRAND NEW AGENDA This was, by far, the most useful conference I have ever attended. Each speaker and topic was wonderful. I never lost interest and have gained so much knowledge from being here! Thank you! Gina Schwengler Telus Sourcing Solutions March 27 28, 2007 Ottawa Congress Centre Ottawa Avoid costly legal and financial liability by ensuring your accommodation policies and strategies reflect recent legal developments. Union, management, HR and medical experts will provide insights into: How Xerox Canada is successfully fighting rising costs with a wellness and prevention program A toolkit The Ottawa Hospital designed for step-by-step navigation of intricate accommodation procedures Initiatives CIBC uses to de-medicalize the complex return-to-work process How to avoid paying $100,000 in punitive damages following Keays v. Honda Canada Practical privacy procedures for accommodations at DuPont Canada Common failures to avoid when accommodating mental disabilities, addictions and hidden disabilities The duty to participate can the right to accommodation opportunities be forfeited? The risks employers face when insurers deny disability benefits PROGRAM CHAIR MOCK ARBITRATION In groups, delegates will work through problems after hearing union and management counsel argue scenarios L.A. Law style before Arbitrator Richard Brown. Electronic voting will allow delegates to compare how their decisions stack up against the Arbitrator s. How your collective agreement could be a source of human rights liability DON T MISS THESE TIMELY WORKSHOP TOPICS! MARCH 26, 2007 MANAGING WSIB AND WORKPLACE DISABILITY CLAIMS: From Injury to Resolution MARKETING PARTNER MAKING WORKPLACES WORK: Achieving Excellence in Conflict Management ENROLL TODAY! Call or fax or register online at

2 EXPERT FACULTY Stephen Bird Bird McCuaig Russell David Brown, MD CIBC Richard M. Brown Richard Brown Arbitration & Mediation Inc. Blaine Donais The Society of Energy Professionals Workplace Fairness Institute Celia Dumas Xerox Canada Jacques A. Emond Mary J. Gleason Ogilvy Renault LLP Charles V. Hofley Hicks Morley Hamilton Stewart Storie LLP David Law Emond Harnden Lise Leduc Sack Goldblatt Mitchell LLP Michel LeFrançois Treasury Board Portfolio Legal Services Michael Lynk University of Western Ontario David MacKay Ceridian Canada Ltd. Mary Mackinnon Raven, Cameron, Ballantyne & Yazbeck LLP Sean T. McGee Nelligan O Brien Payne LLP Craig Morrison Jewitt Morrison & Associates Jill Nimmo The Ottawa Hospital Joy Noonan Heenan Blaikie LLP Melanie Polowin Osler, Hoskin & Harcourt LLP E. Michael Power Gowling Lafleur Henderson LLP Norma Segreto, RN, COHN(C) E.I. DuPont Canada (Mississauga) John H. Yach Shields & Hunt Dear Colleague: I am pleased to invite you to Insight Information's 2007 Advanced Issues in Duty to Accommodate Conference. A faculty of outstanding presenters will address the most challenging issues facing employers and unions today relating to human rights law and the obligation to accommodate employees. Featuring a brand new agenda that includes practical case studies and speakers from both union and management perspectives, the 2007 program focuses on the proactive management of employer, union and employee responsibilities in the accommodation process. Starting with a look at the key principles of Duty to Accommodate obligations, the presenters will address topical issues such as: The collective agreement as a source of human rights liability Practical early intervention strategies to minimize the impact of mental health disorders Tactics for dealing with employees who deny their need for accommodation The risk of liability to employers when insurers deny disability benefits Can an uncooperative employee forfeit his/her right to accommodation? Punitive damages for failure to accommodate will $100,000 be the new norm? Insight has assembled an impressive roster of speakers. They include human resource practitioners with hands-on experience in developing wellness and disability management programs, leading practitioners in the field of employment, labour and human rights law, and a physician with expertise as a corporate medical director. To help you apply your knowledge, the conference will close with an interactive mock arbitration. After hearing union and management argue their cases before arbitrator Richard Brown, delegates will work in groups to decide the outcomes, and electronic voting will allow you to compare how your votes stack up against Arbitrator Brown s decisions. I am confident that you will find this conference of excellent value. I look forward to seeing you there. Yours truly, Vice Presidents, Directors and Managers of Human Resources Labour and Industrial Relations Practitioners Union Presidents, Officials, Business Agents, and Stewards In-house Counsel Employment and Labour Lawyers Return to Work Managers Payroll and Benefits Professionals WHO SHOULD ATTEND Directors & Managers of Occupational Health, Safety & Environment Occupational Health Nurses and Doctors Labour Relations Consultants Mediators, Arbitrators and Conciliators Plant Managers HR and Labour Relations Consultants Government Officials

3 IN-DEPTH INTERACTIVE WORKSHOPS MONDAY MARCH 26, 2007 MANAGING WSIB AND WORKPLACE DISABILITY CLAIMS: From Injury to Resolution 8:30 A.M. TO 12 NOON David Law,, Workplace injury cases inflict multiple costs on the workplace parties: the personal injury to the worker, her inability to fully contribute at work and at home, the loss of expertise and productivity, the need to recruit and train replacements, the rising cost of insurance, human rights complaints and the heavy administrative demand placed on management. And there are hidden costs too: the toll these cases take on relationships and morale in the workplace. Smart management begins with prevention, but when accidents or illness occur, rapid and wise action is required by employers. By learning how to effectively manage disability claims and resolve problem areas, employers can avoid the unnecessary costs and invest where they should: in safety and productivity. Claims, safety and attendance managers have learned a lot in recent years on how to deal with these cases. Now, by incorporating the concept of practical accommodation and by sharing expertise with the speaker, attendees can take their knowledge and approach to the next level. This workshop focuses on: The true cost of workplace injury claims Incorporating the duty to accommodate into all aspects of attendance and disability management Building a system which recognizes that accommodation is a two way street it must enable the worker to productively perform How to convey the message within the organization, to front-line and senior managers, about the true cost of claims and how to make smart investments in risk control Understanding the new WSIB early and safe return-to-work protocols and how they will affect case management Techniques for success in the management of disability cases, such as: - Goal setting - Milestone management - Measuring results achieved - Building the case team: the worker, managers, insurers, health professionals - Obtaining the resources for case management David Law focuses his labour and employment law practice on matters of occupational safety, workplace insurance, human rights and grievance arbitration providing counsel, advocacy and training to public and private enterprises across Canada. In the past, David heard workers' compensation appeals in Ontario and provided public policy advice in that province, Nova Scotia and British Columbia. In 2006, David was successful before the Supreme Court of Canada in an important labour law case and in 2007 will be teaching for the Queen's University Faculty of Law. David also serves as the Chair of Government Relations for the Canadian Council of Human Resources' Associations. 12:00 1:00 LIGHT LUNCH WILL BE SERVED FOR DELEGATES ATTENDING BOTH WORKSHOPS MAKING WORKPLACES WORK: Achieving Excellence in Conflict Management 1:00 P.M. TO 4:30 P.M. Blaine Donais, Staff Officer, The Society of Energy Professionals/IFPTE Local 160 President and Founder, Workplace Fairness Institute Author of Workplaces that Work: A Guide to Conflict Management in Union and Non-Union Work Environments Employees who cannot thrive in an atmosphere of conflict and who feel they are not being treated fairly will look for greener pastures elsewhere. With talented employees in short supply, it is imperative for employers to fix the leakage caused by workplace conflict so that good employees are retained and their workplace becomes more attractive to potential employees. In this session, participants will be introduced to a new diagnostic tool, the Testing Instrument for Fairness Systems (TIFFS), to learn how to define the conflict management systems in their workplaces, rate the system to determine what works and does not work, and discover methods for implementing solutions to minimize the conflict culture and strengthen weak mechanisms for dealing with conflict when it arises. Analyse how to improve an organization s conflict management systems Discover how to define a corporation s system using a system checklist Use a diagnostic tool to rate the system and uncover its strengths and weaknesses Learn how to engage workplace stakeholders in system change Learn how to achieve excellence in the management of conflict so that your organization can: Reduce stress levels Reduce absenteeism and presenteeism Improve morale Retain quality staff Improve your company s reputation Engage your union stakeholders Blaine Donais, LL.M. (ADR), RPDR, C. Med., author of Workplaces That Work: A Guide to Conflict Management in Union and Non-Union Work Environments, is President and Founder of the Workplace Fairness Institute, Conflict Management Solutions. He also represents professionals as a labour lawyer (since 1995) at the Society of Energy Professionals. An expert in both the practice and theory of assisted labour/management negotiation, mediation-arbitration and facilitation, Blaine teaches and trains human resources professionals, labour leaders and others in Human Rights, Labour and Employment Law, Human Resources, Collective Bargaining and Conflict Resolution.

4 TUESDAY MARCH 27, :00 8:45 Registration and Continental Breakfast 8:45 8:50 Welcoming Remarks from Insight Information 8:50 9:00 Chair s Opening Remarks 9:00 9:40 How Did We Get Here? Key Principles of Duty to Accommodate Historical perspective on duty to accommodate When does an illness become a disability and subject to the CHR Duty to Accommodate? What sections of the Human Rights Act apply? Distinction between accommodation obligations for public and private sector / large and small corporations Exceptions to the obligation do they exist? Issues facing employers today e.g. declining workforce factor Protocol for handling accommodation requests 9:40 10:30 DEBATE Losing the Right to Accommodation: Can an Employee Forfeit Their Opportunity? Management Counsel Charles V. Hofley Hicks Morley Hamilton Stewart Storie LLP Union Counsel Lise Leduc Associate Sack Goldblatt Mitchell LLP Examining the employees duty to participate in the accommodation process roles and responsibilities Reasonable but not perfect defining reasonable as an accommodation standard Issues to consider: - red circling salaries - seniority - different hours of work - temporary vs. permanent positions Getting employees back to work when the problem is the supervisor, not the disability When the employee comes back and the accommodation doesn t fit how many times must they be re-accommodated? At what point does the employee forfeit their right for further accommodations? How long do you wait to terminate if a suitable accommodation is not accepted? Recent cases 10:30 10:45 Networking Coffee Break 10:45 11:20 Combatting the Growing Problems of Stress, Burnout and Mental Health Claims: A Framework for Employers David MacKay Chief Operating Officer Ceridian Canada Ltd. Employee Assistance Programs are critical for workers with mental health problems. This session will explore both traditional and innovative models of support, such as union counsellor programs, and discuss the important role employers and unions play in employees continuing mental health, and illness recovery. The discussion will discuss the importance of early intervention, explore ways for employees to be accommodated so they can stay at work while working through the issues, and approaches to use to improve the understanding of managers in order to reduce stigma and discrimination. 11:20 12:00 CASE STUDY Fighting Costs by Implementing a Wellness Initiative at Xerox Canada Celia Dumas Manager, Occupational Health and Wellness Xerox Canada When Xerox analyzed the increasing costs associated with drug and benefit expenses, employee assistance plan usage, disability claims and loss of productivity related to absenteeism, they decided to combat costs by introducing a wellness program focused on prevention. In this session, Celia will share how they have implemented nationwide stress management seminars and mental health workshops to help managers recognize when an employee might be at risk, and teach them how to take proactive measures that take the stigma out of mental illness. In addition to seeing positive health outcomes, in just a few months, Xerox Canada is also starting to see an economic return on their investment. 12:00 1:00 Networking Luncheon 4

5 1:00 1:50 Attendance Management Policies and Accommodation Obligations Can There Still Be Terminations for Excessive Innocent Absenteeism if a Disability is Involved? Stephen Bird Bird McCuaig Russell Key Elements in an Attendance Management Policy What do you have to prove? Why and how do you set a threshold level of application for attendance management? Is entitlement to sick leave an impediment to a termination for excessive absenteeism? How does the duty to accommodate impact on attendance management practices? Attendance Management and the Disabled Employee Can you count absences related to disability for the purposes of attendance management and innocent absenteeism terminations? What quality of evidence is required to establish a medical disability is worker self-diagnosis acceptable? What are the courts and arbitrators saying about attendance management and the duty of accommodation the fall-out of the OC Transpo decisions? How to avoid legal pitfall in innocent absenteeism releases 1:50 2:45 How to Accommodate Employees Who Deny Their Need for Accommodation Management Counsel Joy Noonan Heenan Blaikie LLP Union Counsel John Yach Shields & Hunt The need to precisely identify accommodation needs can be hampered by the individual s negative reaction to and/or denial of the disability. In this session, learn how to properly document the accommodation process and the common mistakes that are often made in attempting to help employees who need to be accommodated due to addictions, hidden disabilities and mental health concerns. Discover where unions and management agree and where they part company on these issues. Drug and Alcohol Accommodations How to recognize the signs and symptoms of abuse and addiction How to help a person with an alcohol or drug problem What you must know about the addictive personality Responsibility, whose responsibility is this problem anyway? What is the acceptable due diligence standard? How many times must you pay for rehabilitation? Discussion of the Alberta (Human Rights & Citizenship Commission) v. Kellogg Brown & Root (Canada) decision Hidden Disability and Mental Health Accommodations What do you do if you suspect the employee has a hidden or undisclosed disability? How to help a person who denies they have a problem Must you accommodate stress? What do you do if the disability affects work performance? Your responsibility to co-workers morale and safety concerns How to deal with workplace harassment complaints when the complainant and/or the respondent has a mental disability 2:45 3:00 Networking Refreshment Break 3:00 3:45 Coordinating Medical Information While Meeting Privacy Obligations E. Michael Power /Chief Privacy Officer Gowling Lafleur Henderson LLP Norma Segreto, RN, COHN(C) Integrated Health Services Coordinator E.I. DuPont Canada (Mississauga) How the principle of need to know applies in the context of sharing medical information within the organization, and when can it be disclosed outside the organization Key privacy principles: disclosure, confidentiality, security of records How much of the file can an employer/manager see? What if you can t understand the results? Practical privacy procedures for accommodations at DuPont Canada 3:45 4:30 Reaching the Limit: Accommodation Cases Where Undue Hardship Was Established Michel LeFrançois General Counsel Treasury Board Portfolio Legal Services What factors can establish undue hardship Ontario and Canadian Human Rights Commission policy guidelines Where labour arbitrators have found undue hardship Where human rights tribunals have found undue hardship Where courts have found undue hardship 4:30 Conference Adjourns for the Day 5

6 WEDNESDAY MARCH 28, :15 9:00 Continental Breakfast 9:00 9:45 Rolling the Dice: Can Employers Rely on an Insurer s Decision to Deny Disability Benefits Without Risk of Liability? Melanie Polowin Osler, Hoskin & Harcourt LLP In this session, delegates will learn about recent wrongful denial decisions involving employee claims against disability insurers, and their implications for employers. Does the insurer s decision to deny benefits cancel the employer s duty to accommodate? What kind of evidence must the insurer or employer rely upon? The employer s duty to warn, when benefits are discontinued Employer liability for insurer wrongdoing Bad decision or bad faith: what if the decision to deny is reasonable, but wrong? Perils of collective agreements which require insurer s decisions to be arbitrated Risk-reduction: practical tips for employers 9:45 10:30 CASE STUDY The Ottawa Hospital Accommodation: You Know What You Have To Do How Do You Do It! Jill Nimmo Disability Manager The Ottawa Hospital In this session, Jill will cover the processes and procedures that The Ottawa Hospital has developed to assist managers navigate through the many steps of the complex accommodation process. Learn about a toolkit designed to clarify the responsibilities of all parties involved, and the identifiers of key milestones that indicate the accommodation process is continuing to move forward. Anecdotal stories will enhance this discussion. 10:30 10:45 Networking Coffee Break 10:45 11:30 Cleaning Up Yesterday's Mess, and Avoiding the Same Problem Tomorrow: The Collective Agreement as a Source of Human Rights Liability Sean McGee Nelligan O Brien Payne LLP In this session, Sean will walk the audience through common pitfalls lurking in most collective agreements. These will include clauses dealing with sick leave, specific termination provisions, language governing seniority, vacation leave and other benefit accrual, job competition provisions and job security language. The session will discuss how and when to identify collective agreement language that may not survive close human rights scrutiny. The presentation will describe how far a union or an employer has to go in efforts to fix the language, and what parties can do to avoid liability when they feel that it is the "other side" that is insisting on discriminatory language. 11:30 12:10 CASE STUDY Success Story: Rational Disability Management at CIBC David Brown, MD Corporate Medical Director CIBC (Toronto) Since instituting a disability management program that centers around the employee-managerial relationship and de-medicalizes the complex return to work process, the program has paid dividends for the employees and CIBC. In this session, hear how CIBC redefined the guiding principles behind their disability management program and successfully implemented various initiatives which allow employees to resume productive lives as early as possible, thus reducing the duration of short- and long-term disability claims and their associated costs. 12:10 1:10 Networking Luncheon NEARLY 70 DELEGATES ATTENDED IN 2005 HOW DID THEY BENEFIT? The speakers and their presentations were great! I learned relevant information regarding the employer and union responsibilities under duty to accommodate. I will apply this knowledge and educate my union Brothers and Sisters when I get home. Joe Krmpotich, United Steelworkers Local 2251, Sault Ste. Marie Gave me many points to bring back to the workplace and many resources to help resolve many issues. Irene Boutillier, Stelwire Ltd., Hamilton

7 1:10 1:50 Hybrid Cases: When Conduct Has Both Culpable and Non-Culpable Elements Craig Morrison Jewitt Morrison & Associates Employee s state of mind A mitigating factor closely related to the potential of an employee to reform his or her behaviour is the employee s intention and state of mind at the time of the alleged offence. where the grievor s misconduct was triggered or affected in some way by a reasonable and bona fide mistake, domestic or emotional problems, a medical condition, the wrongful orders of a superior, alcohol or drugs, a gambling habit, or provocation by customers or other employees, arbitrators have, for those and analogous reasons, modified the discipline imposed. Brown and Beatty, 7: Set against that backdrop, one might well argue that the Duty to Accommodate is simply a refinement of long standing arbitral principles. To what extent is the Duty to Accommodate simply a mitigating factor? Are there circumstances in which it might offer a complete defense to an apparently culpable act? Are there circumstances in which it offers the worker no protection at all? This session will try to outline the boundaries of this issue, and offer some practical guidance for charting the waters in between those boundaries, from a union perspective. 1:50 2:30 Accommodating Mental Disabilities: How To Avoid Common Accommodation Failures Michael Lynk Professor University of Western Ontario (London) How to avoid common accommodation failures What does the law entitle an employer to ask? What kind of accommodations are expected? Can an employee with a mental disability or addiction ever be terminated? What is the legal standard of proof? What are the obligations of unions? 2:30 2:45 Networking Refreshment Break 2:45 3:30 Punitive Damages for Failure to Accommodate: What s the New Norm Following Keays v. Honda Canada? Mary Gleason Ogilvy Renault LLP What conduct gives rise to punitive damages? Can a Civil Court grant punitive damages for breaches of an employer's human rights obligations? What is the jurisdiction of labour arbitrators to award punitive damages? What amounts are recoverable as punitive damages? What is the overlap between punitive and aggravated damages or damages for mental distress? What are "best practices" to avoid exposure for a punitive damages claim? 3:30 5:00 INTERACTIVE SESSION Test Yourself: Application of Accommodation Principles in a Mock Arbitration Richard Brown Arbitrator Management Counsel Jacques A. Emond Union Counsel Mary Mackinnon Associate Raven, Cameron, Ballantyne & Yazbeck LLP In this interactive session, delegates will hear union and management counsel argue problems in L.A. Law style before Arbitrator Brown. In groups, they will apply accommodation principles to determine how to vote on the outcomes. The arbitrator will then render his decisions and give the reasons for each, allowing delegates to see how their votes compare to the outcomes. 5:00 Co-Chair s Closing Remarks and Conference Concludes UPCOMING CONFERENCES Western Canada LABOUR RELATIONS January Vancouver Advanced Issues in DUTY TO ACCOMMODATE February Calgary Sponsorship Opportunities: If you are interested in displaying your company's products or services to high level key decision makers within your target audience, please contact: Jim Pillinger at ext [email protected]

8 Presented by Insight Information Advanced Issues in DUTY TO ACCOMMODATE Proactive Management of Employer, Union and Employee Responsibilities BRAND NEW AGENDA This was, by far, the most useful conference I have ever attended. Each speaker and topic was wonderful. I never lost interest and have gained so much knowledge from being here! Thank you! Gina Schwengler Telus Sourcing Solutions FIVE EASY WAYS TO REGISTER Call Fax Internet: [email protected] Mail Insight Information, 214 King Street West, Suite 300, Toronto, Ontario M5H 3S6 March 27 28, 2007 Ottawa Congress Centre Ottawa TWO INTERACTIVE WORKSHOPS March 26, 2007 [ ] Yes! Please register the following delegate(s) (photocopy for additional delegates) PRIORITY CODE: 102-PDF Mr. [ ] Ms. [ ] Name: Title: Area of practice: Conference Code: HRC07102 HOTEL RESERVATIONS: The Ottawa Congress Centre is conveniently located at 55 Colonel By Drive, Ottawa, ON. Tel: For overnight accommodation, please contact the Westin Ottawa, located at 11 Colonel By Drive (connected to the Ottawa Congress Centre). Tel: Fax: CANCELLATION AND REFUND POLICY: Refunds will be given for cancellations received in writing by March 6, 2007subject to an administration fee of $ plus $12.00 GST for a total of $ If your fees have not been paid and you are cancelling, you are still liable for the cancellation fees of $ plus $12.00 GST for a total of $ Please note that if you register for the conference and do not attend, you are liable for the full registration fee unless you cancel within the period stated above. If you register after March 6, 2007, your order is firm. A refund will not be given; however a delegate substitution is welcome at any time. SPECIAL OFFER: Send 4 people for the price of 3! Register 3 delegates for the main conference at regular price at the same time and you re entitled to register a fourth person from your organization at no charge. To take advantage of this special offer, payment for all delegates must be made with one cheque or credit card charge. PRIVACY POLICY: You may receive by mail, telephone, facsimile or information regarding products and services from either Insight Information or third parties with whom we partner. If you do not wish to receive such information from either Insight Information or third parties, please inform us by at [email protected] or by telephone at and we will take the necessary action to fulfill your request. We occasionally mail to selected lists which cannot be cross-checked against our files. If you receive another copy of this brochure, please pass it along to an interested associate. INSIGHT reserves the right to change program date, meeting place or content without further notice and assumes no liability for these changes. Company: Business Address: City: Province: Postal Code: Telephone: [ ] Fax: [ ] Type of Business: Registrant s Signature Required: Signature Date #of Employees: REGISTRATION FEE: (Includes meals, documentation and, fully searchable online access to this conference s papers*) Please check your choice: [ ] Early Bird Special $1, GST ($95.70) = $1, (Register and pay before January 19, 2007) [ ] Regular Conference Price: $1, GST ($107.70) = $1, [ ] Workshop A [ ] or B [ ] $ GST ($36.00) = $ [ ] Combine Conference and Workshop(s) and Save $ per workshop [ ] Workshop A [ ] or B [ ] [ ] Both Workshops A and B [ ] I would like to order an extra copy of the conference binder (1 conference binder is included in the registration fee) $ % GST [ ] Payment enclosed. [ ] Payment to follow. (GST Reg. # RT0001) [ ] Charge to my [ ] VISA [ ] AMEX [ ] MasterCard Card Number: Card Holder s Name: Signature: Expiry Date: Date: PLEASE NOTE: Full payment is required in advance of conference dates. Please make all cheques payable to Insight Information. * Please allow 4-6 weeks after conference for activation of login and password Insight Information