Employment and Labour Law Students’ Society Blog

Anyone who has litigated human rights, or who has done research for said litigation, understands the challenges of putting together a claim for discrimination. However, that challenge becomes even more difficult when filing a claim for discrimination on the ground of family status. According to a relatively recent article in Canadian Lawyer Magazine (http://www.canadianlawyermag.com/), human rights tribunals, labour arbitrators and the courts will be faced more and more frequently with cases revolving around issues such as workplace flexibility and discrimination on the basis of family status, as families increasingly find themselves struggling to balance work and personal responsibilities. Unfortunately, the case law has not been very helpful, nor has it been very forgiving to these families.

In a 2004 British Columbia Court of Appeal case, Health Sciences Association of B.C. v. Campbell River and North Island Transition Society, the court held that in order to meet the prima facie threshold for discrimination on the basis of family status, it must be the employer who changes a term of employment resulting in serious interference with a substantial parental or other family obligation. At that point, the employer must prove that the change was a bona fide occupational requirement. However, the article points out that a “serious interference” isn’t required for a finding of discrimination on other grounds.

The Federal Court, and the Federal Court of Appeal, agreed in Hoyt v. Canadian National Railway, that, “The suggestion by the court in Campbell River…that prima facie discrimination will only arise where the employer changes the conditions of employment seems to be…unworkable and, with respect, wrong in law.” Meanwhile, Quebec’s human rights legislation doesn’t protect against discrimination based on family status, meaning that employers in Quebec have no duty to accommodate families hoping for flexibility in the workplace.

The article also suggests that the challenge becomes greater for human rights advocates when employers use the downturn in the economy as a defence for the termination of an employee. It has become easier for employers to argue that accommodation on the basis of family status would involve undue hardship. And, despite the conflicting case law across jurisdictions, the theme in many cases is that it is the responsibility of parents to make external arrangements for child care. In other words: get to work.

Cited from:

Glenn Kauth, “Accomodating for Family Status” (August, 2009) Canadian Lawyer Magazine.

Although traditionally the employee’s physical well-being was the sole criterion by which a “harassment free” environment was analyzed, at the current stage of the law employers are increasingly expected to provide for the employees’ psychological well-being as well. This is especially the case in light of the recent amendments to the Occupational Health and Safety Act (OHSA). In the following paragraphs I provide a brief overview of the law on the subject. I suggest that employers should be more mindful of this ongoing evolution. The reason being: what once was not considered “violence,” “harassment,” or “bullying,” today might be. This shift has implications on the employer’s legal obligations vis-à-vis the injured employee. This is because the employer may be held vicariously liable for actions it did not have to answer in earlier times.

At common law employer liability is based on an implied contractual duty of care. The employer is obligated to provide for the safety of its employees. A number of cases suggest that once harassment reaches a certain level of intensity it will amount to an actionable wrong for which the employer may be held liable. In addition to the traditionally recognized torts of battery and assault, the three areas of the law in which an employee could bring an action against an employer are: the tort of nervous shock; negligence; and, constructive dismissal. The duty applies to management level employees as well as to co-workers. The employer may, therefore, be held liable and be required to compensate for the wrongs of its employed subordinates. Of the two torts, only one relates directly to the psychological suffering of the plaintiff.

A worker is also entitled to benefits for mental stress under the The Workplace Safety and Insurance Act. However, mental stress must be precipitated by “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. The worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.” Jurisprudence from the Workplace Safety Insurance Appeals Tribunal suggests that the circumstances must generally be unexpected, traumatic or represent a potential form of violence.

The Human Rights legislation is more robust and it too provides an avenue through which the employer might be expected to guarantee the psychological safety of those at its employ. According to the federal statute and its provincial counterparts, every employee has the right to “freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap.” The employee is entitled to bring a claim against harassment under the Human Rights regime only on one or more of the abovementioned enumerated grounds.

Arguably the most important shift in the law took place at the end of last year with the Occupational Health and Safety Act (OHSA). Under the already enacted but not yet consolidated OHSA, “workplace harassment” is defined broadly and is bound to receive liberal interpretation in the courts. According to the Act “workplace harassment” means “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” And “workplace violence” is said to encompass (a) “the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker” (b) “an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,” (c) and even “a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.” This shift is significant as it allows casting a wider net on activity that would otherwise not be classified as “harassment,” “violence,” or “bullying.” It also calls for the inclusion of a broader, more unpredictable and less definable form of psychological injury.

Under OHSA the employer is expected to prepare a policy dealing with all matters that relate to harassment and discrimination which is to be reviewed at least once a year. The employer is also expected to develop a program in order to implement the policy. Finally, employers are obligated to post the policy in visible places around the workplace. The amended legislation involves an array of additional procedural and administrative nuances that the prudent employer should take a note of.

In sum, “harassment,” “violence,” and “bullying,” are no longer easily definable concepts. As such, it would behoove the employer to be less hasty in brushing off what once could be regarded as mere workplace “disputes” or “humorous conduct.” With the latest shift in the law, employers can expect an increasing number of claims and complaints on issues involving violence and harassment - complaints that would in earlier times have little to no legal bearing at all. To avoid this confusion and to create a safe environment, the employer would be prudent to provide for an elaborate anti-harassment/anti-violence workplace policy. The employer would also do right to reinforce such policies via mandatory educational sessions involving all employees. Failure to take these measures could increase the employer’s risk of liability.

NOTE: This article relied in part on Carla Gonçalves Gouveia’s “From Laissez-faire to Fair Play: Workplace Violence & Psychological Harassment.”

The Employment and Labour Law Students’ Society (“ELLSS”) will be holding its Annual ELLSS Career Fair on the evening of Wednesday, November 18^th.

The Career Fair is the biggest event on the University of Ottawa campus for law students interested in learning more about a career in labour and employment law.  Each year, the ELLSS brings together private and public sector lawyers representing both the management and employee sides. Following a short meet-and-greet, the main part of the event is a moderated panel of 4 speakers practicing in this field who provide information to students on possible career paths, what led them to this area of law, their personal experiences, a general overview of practicing in this field, job possibilities, even topical points of law. The panel discussion is followed by a catered reception attended by representatives from various law firms involved in labour and employment law.

The Career Fair enables law students to learn more about what this exciting area of law has to offer, and to have one-on-one discussions with speakers as well as the many firm representatives who attend the event to meet with students.

This year’s event is sponsored by Sherrard Kuzz LLP, Sack Goldblatt Mitchell LLP, and Emond Harnden LLP.  The panel will be comprised of the following speakers: Lorenzo Lisi (Sherrard Kuzz), Lise Leduc (Sack Goldblatt Mitchell), Raquel Chisholm (Emond Harnden), and Anne Clark-McMunagle (Senior Legal Counsel, Public Service Labour Relations Board).

If you would like to attend the event as a student or firm representative, please RSVP to executive@ellss.ca. Firm guests are welcome (and encouraged) to bring firm promotional materials as there will be space specifically for students to peruse these materials.

When: Wednesday, November 18th 2009 - 4:30pm to 7:30pm

Meet and greet - 4:30pm to 5:00pm

Panel - 5:00pm to 6:15/6:30pm

Reception - 6:15/6:30pm to 7:30pm

Where:  Fauteux Hall Atrium (3rd floor)

While most of us have been busy studying for exams, it’s been a pretty eventful week in labour law.

On April 2nd, the Supreme Court granted leave to appeal from the Ontario Court of Appeal’s decision in Ontario (Attorney General) v. Fraser.

Fraser dealt with the constitutionality of the Agricultural Employees Protection Act. The Act was originally designed to comply with Dunmore , and was upheld by the Superior Court on that basis. But in 2007 the Supreme Court in BC Health Services declared that s.2(d) of the Charter included the right to collective bargaining. As Andrew reported late last year, the Ontario Court of Appeal found that the AEPA violated the workers’ Charter right to collective bargaining and declared it invalid.

In BC Health Services, the Supreme Court said that s. 2(d) protected against “substantial interference” with “the ability of a union to exert meaningful influence over working conditions through a process of collective bargaining conducted in accordance with the duty to bargain in good faith” (para. 90). This was a right to a process, not an outcome, but the court did not specifically define what that guaranteed process consisted of. It was clear that the right did not cover the full scheme of rights provided by the OLRA or any other particular labour relations regime or bargaining method (para. 91).

The AEPA grants employees’ associations the right to make representations (see s. 1(2) & s. 5(1)), and requires employers to listen to them (see s. 5(6)&(7)). Does this “preserve a process of consultation and good faith negotiation” (para. 94) that would satisfy the Charter?

The Court of Appeal was of the opinion that the right to collective bargaining had to include 3 elements:

1. a statutory duty to bargain in good faith;
2. statutory recognition of the principles of exclusivity and majoritarianism; and
3. a statutory mechanism for resolving bargaining impasses and disputes regarding the interpretation or administration of collective agreements. (para. 80)

However, this sounds like the adoption of the particular labour relations regime found commonly in Canadian workplaces, which seems to conflict with BC Health Services.

On April 6th, the Ontario Superior Court of Justice struck down s. 96 of the Royal Canadian Mounted Police Regulations as a violation of the same Charter right to collective bargaining, in Mounted Police Assn. of Ontario v. Canada (Attorney General).

Mounties are excluded from the PSLRA (see s. 2(1) definition of “employee” and the exclusion under paragraph (d)), and have a separate labour relations regime. The purpose of s. 96 of the RCMPR is to designate a particular association (the Staff Relations Representative Program) as the only one which can represent employee interests.

Members of the SRRP are selected by employee vote (s. 96(2)). Consultation with RCMP members is required by private agreement between the SRRP and management, but final decisions on human resources matters ultimately rest with management (para. 16). Does this “preserve a process of consultation and good faith negotiation” that would satisfy s. 2(d) of the Charter?

Answering in the negative, MacDonnell J. stated that BC Health Services required a process that was more than just consultation (para. 47) and that equality of bargaining power was required (para. 49). He commented: “It is difficult to conceive of as a negotiation, let alone as bargaining, a process in which employees can make no offer to management of a quid pro quo because management can have the quid regardless of whether it surrenders the quo” (para. 47).

What is the role of s. 1 in both of these cases? In industries such as agriculture and law enforcement, to what extent should courts defer to legislative decision making? Both cases have different but compelling arguments against workplace disruptions, but the extent of any disruption would depend on what the procedural requirements of collective bargaining entail.

Last Sunday, Dalton McGuinty introduced back-to-work legislation in a bid to end the strike by teaching assistants and contract faculty that began on November 6. The Legislature is divided on the issue of the bill, which is supported by the Conservatives, but the province’s NDP party is in opposition, saying that the government is giving an advantage to the university and should not interfere in the negotiations. The bill has passed and the students will be returning to class.

The Premier made the decision after the mediator announced at a press conference on Saturday that the two parties were in a deadlock and that legislation would be the only way to go beyond the impasse.

Various student groups including the York Federation of Students are relieved that classes will resume shortly, since the academic year of 50,000 undergraduate students is now in jeopardy at the country’s third largest university.

On Tuesday, February 17th, the Catherine Helen MacLean Memorial Lecture will be held. This year’s lecture is entitled “Human Rights at Work: The Future of Rights in the Workplace”.

The lecture will be given by Michael Lynk, professor of Law at the University of Western Ontario. This promises to be an interesting learning opportunity for ELLSS members or anyone interested in human rights.

It will be held on Tuesday, February 17th, 2009 at 6:00pm in room 147 of Fauteaux Hall at the University of Ottawa. If you would like to attend, please RSVP to sylvie[dot]vanasse[at]nelligan.ca by February 10th.

OC Transpo drivers, dispatchers, and maintenance workers are expected to walk off the job at 12:01am this Wednesday. Last week, members of the Amalgamated Transit Union Local 279 voted overwhelmingly against the City’s offer.

The University of Ottawa has notified all students that the impending strike will have no effect on scheduled exams. It reminds students of its carpooling directory and reduced parking rates for the holiday/exam season. OC Transpo has also issued some advice for getting around town during a strike (although I’m more likely to study from home than to “Consider Cycling as an alternative” in December.)

Little distinguishes this dispute from others: as always, public opinion varies but all hope that a contract can be reached soon.

On Wednesday, November 19th, the ELLSS held its annual Career Fair.

Students were treated to a panel discussion featuring a variety of experienced practitioners. We learned of many more career paths than are traditionally known to students, and welcomed a host of tips for students just getting started, including where to apply and what courses are most valued. Speakers shared their experiences and recounted stories, teaching us that – above all else - a practice in labour and employment law is certainly never boring! Special thanks go out to our speakers: Annie Berthiaume of Heenan Blaikie LLP in Ottawa, Patricia D’Heureux of Cavalluzzo Hayes Shilton McIntyre & Cornish LLP of Toronto, John McLuckie of Jewitt McLuckie & Associates, and Gaston Arsenault of the Public Service Commission of Canada. In addition, attendees were treated to a reception, providing everyone a chance to speak one on one with practitioners from a total of 11 organizations.

The event was made possible by a host of ELLSS volunteers, and our generous sponsors: Heenan Blaikie LLP, Cavalluzzo Hayes Shilton McIntyre & Cornish LLP, Jewitt McLuckie & Associates, and the Common Law Students Society.

As the ELLSS grows, so do our events! If you are a student interested in helping to organize future ELLSS events, or if your firm would like to get involved, please contact us at executive[at]ellss[dot]ca.

This week was a busy week in the newspapers for labour relations. Many newspapers ran articles on how unions and employees who are now in the process of bargaining renewal agreements are reacting in light of the oncoming (or some might say present) economic situation. Here’s a few of the exciting - and thought provoking - articles written this past week:

• A tale of two contracts: public service and Canada Post, The Ottawa Citizen. Speaks about the recent settlement between Treasury Board and Public Service Alliance of Canada (PSAC) as well as the current strike of PSAC workers at Canada Post
• Strike ban proposal ‘atrocious,’ unions say, The Ottawa Citizen. Discusses the proposal by the government to introduce a strike ban, roll back wages, and cap future wage increases
• Pay cuts won’t fix sick auto industry, CAW say, The Globe and Mail. Discusses the need of unions and auto manufacturers to work together to help turnaround the auto industry at the Big 3 manufacturers
• Farm workers’ inability to bargain violates Charter: OCA, The Lawyer’ Weekly. Discusses the Ontario Court of Appeal’s recent finding that Farm Workers in Ontario are being denied their right to collective bargaining under s.2(d) of the Canadian Charter of Rights and Freedoms.

These articles raise important questions about the role of unions in difficult economic times, the balancing of management interests, union interests, and the public interest, and of course the rights of unions under the newly expanded s.2(d) freedom of association rights of the Canadian Charter of Rights and Freedoms. It will be interesting to see in the next few weeks how all these issues play out, and where labour relations will go in the new year.

“Employment standards legislation” and “class-action” are two phrases not commonly associated with one another - until very recently. An often ignored right to overtime pay united the two, and together the three are becoming a unique force to be reckoned with in Canada.

CIBC is both the first and now the most recent Canadian corporation to be dragged into the foray of class action law suits founded on an employment standards right to overtime pay. In June 2007, CIBC was hit with a $600-million suit from a group of its bank tellers and then, just a few weeks ago, was hit again by a $360-million suit from a group of its financial professionals comprised of stock analysts, investment bankers and financial advisors.

In between the two CIBC actions, KPMG, Scotiabank and CN Rail were presented with class action claims based on unpaid overtime. CIBC has stated it will be vigorously defending both claims but KPMG has reached a settlement with its employees.

The above cases have numerous features in common. The most intriguing common element is the combination of employment standards and class action. The less apparent but equally unique and interesting common feature is the type of employee involved. A brief look at these common features illustrates the novelty and thus the importance of this line of cases.

The underlying issue in these suits is the same: a misunderstanding of employment standards legislation. The CN Rail situation involves allegations of the misapplication of positions as “management” as it relates to eligibility for overtime pay. The KPMG case stemmed from a misconception that salaried employees do not have a right to overtime pay.

The format of the suits is the same: class action. Class action brings to employment standards legislation the power of numbers. With single employment standards claims the settlement amount can be minimal relative to the cost of altering policies, leaving little incentive for change. Not so when numerous claims are made - or where they have the ability to be made - simultaneously.

Most employment law cases are brought by previous employees. The problem current employees face is that neither employment standards legislation nor the common law is seen as conducive to solving issues in ongoing employment relationships. Many of the individuals in these class action overtime cases are still employed and intend to continue to be employed by their employers.

A further issue common to the above cases but unusual to employment standards, is the type of workers involved. The employees claiming their rights are “white-collar”, quasi-professional individuals. Historically, employment standards legislation has been used to create a floor of rights for “blue–collar” workers to maintain basic minimum levels of living.

The novelty of these cases speaks to their importance to employment law and employment lawyers:

• class-action coupled with employment standards legislation;
• current rather than former employees bringing actions; and,
• “white–collar” workers utilizing employment standards legislation.

Although the effect these actions will have on the employment landscape is yet unknown, conjecture is inviting. Some impact seems quite certain, some a little more speculative.

For a glimpse into the heart of an employment standards legislation class-action suit from inception to resolution, see Justice Perells’ reasons for accepting the KPMG settlement. For a cautionary word on class action and employment standards from an employment lawyer, see Daniel A. Lublin’s article on his blog, Toronto Employment Lawyer.

Update: The National Post ran a detailed article on Sunday about the class certification hearing which began on Monday, December 8.