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.

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.

On December 3, 2008, Reach - a lawyer referral organization that helps people with all disabilities - in conjunction with Emond Harnden LLP, is hosting a conference entitled “Put Our Minds to Work: Re-Thinking Mental Health and Illness in the Workplace”. The conference looks to be a very interesting one as it deals with the accommodation of mental health disabilities, an area of accommodation which is often overlooked and misunderstood by employers and unions. The workshop topics for the conference include the legal framework for accommodation, accommodation strategies, overcoming stigma in the workplace, disclosure, and return-to-work programs.

Students can register for the conference for $35.00. It will be held from 7:30 to 3:30 at the Hampton Inn Ottawa Conference Centre. More information can be obtained by reading the conference brochure.

For more information, visit www.reach.ca, call 613.236.6636 (TTY: 613.236.9478) or send an e-mail to reach[at]reach[dot]ca.

As of today, the Canadian Union of Public Employees Local 3093, who represents contract faculty and teaching assistants at York University, has gone on strike. Of interest is that the strike vote was unanimous by all members of the union and that the union has rejected the employer’s offer of submitting their dispute to binding interest arbitration rather than seek a strike or lockout. The union believes that the best way to bring this dispute to an end is over the bargaining table rather than before an interest arbitrator.

All reports indicate that the parties are still far from settlement, suggesting that students at York University could face canceled classes for some time. The last strike at York University lasted for 11 weeks.

For more information on the strike, I recommend reading Professor Doorey’s Blog, which has been following the developments at York University and his detailed posts on the strike, including:

• “And so it begins . . . STRIKE”
• York Strike and the Rules of Picketing

For more discussion on this strike and strikes in the University-sector generally, you can view my earlier posts on this blog:

• York University May Strike
• Windsor University Strike Ends in Successful Ratification Vote

Hopefully, this dispute will resolve quickly and satisfactorily for all parties - students, staff, and the university administration - like the case of the recent strike at the University of Windsor.

Yesterday, Professor Doorey on his blog posted an article indicating that the next University to experience a strike may be York University. Contract Instructors and Teaching Assistants will be in a legal strike position and York University will be in a lockout position as of November 2. York plans to suspend classes during that strike.

Perhaps my question about university staff and essential services will be answered sooner rather than later.

Hat tip to Professor Doorey at Doorey’s Workplace Law Blog.

A recent article from the Ottawa Citizen from last Friday reported that Wal-Mart closed its Tire and Lube Shop at the Maloney Boulevard location in Gatineau, Quebec because of the high price of a collective agreement. Wal-Mart indicated that wages would rise more than 30%, a rise which it claimed was “completely unworkable” in terms of competing with other Tire and Lube shops. As a result of the decision, the United Food and Commercial Workers Union is appealing to the Quebec Government to intervene in the decision.

As in most cases of store closures, the parties are at odds with the union claiming that the closure is a result of anti-union animus and the employer claiming that the closure was because of the unprofitability of the location. Comments from both highlight how divergent their views are. The Citizen quoted and paraphrased the position of the Canadian president of the United Food and Commercial Workers wrote that:

Wal-Mart is telling employees “that if you join a union, they’re going to close your shop,” Wayne Hanley, Canadian president of the United Food and Commercial Workers, said in a telephone interview.

“It’s hard to see how the additional labour costs were going to drive up the price of a cheap oil change, while at the same time they rake in multibillion-dollar profits every year.”

On the other hand, Wal-Mart’s CEO for the Americas, Craig Herkert, was quoted (with some paraphrasing) as saying that:

“Given the fact that our value proposition is everyday low prices,” a contract like this would put us at a “cost basis wildly out of reach of every one of our competitors.”

Like with the Wal-Mart closure in Jonquière, it is likely that an unfair labour practice complaint will be lodged against the employer. Whether the Commission des relations du travail du Québec will conclude, as it did in the case of the Jonquiere closure, that the employees have been terminated  in violation of the Code du travail remains to be seen . . . but it is pretty clear to most that history is likely to repeat itself again.

Yesterday, the Windsor University Faculty Association voted 88% in favor of a new three-year collective agreement. The acceptance of the new agreement ended a 17-day strike which saw 13 days of classes cancelled. Fortunately, because of the relative short duration of the strike, class time will be made up with no serious detriment to students. A previously planned break for the 4 days following Thanksgiving has been cancelled and the semester is extended to December 12th with exams following the end of classes. The strike yielded stronger job security and increased wages for the members of the Union.

Fortunately, in this strike, the result satisfied all parties, including the students. But the question which is on my mind is: what would have happened  had the strike continued longer than 17-days? In such a situation, many students would lose their semesters since there would not be enough time to catch up all the missed class-time. What would come of, for example, the third year law students who would no longer have their degrees completed in time to take bar exams or commence their articling positions? I suppose the real question underlying these concerns is when does the faculty and staff’s right to strike become outweighed by the serious detriment to the students and the public? How can concerns about this delicate balance be solved?

One solution would be to declare the University and College Sector an essential service and follow the approach taken in the hospital sector. The hospital sector is governed by the  Hospital Labour Disputes Arbitration Act which requires, rather than allow strikes or lockouts, that the parties submit their dispute to a third party for a resolution when they would ordinarily be in a strike or lockout position. The problem with such legislation is that it may skew the rights too far in favor of the public by denying faculty and staff unions from exercising their economic power through a strike. The same argument lies for universities and colleges. The power dynamic between the parties would be unduly tipped and could result in a situation where the parties could never achieve a resolution comparable to that which they would have obtained had there been access to regular collective bargaining procedures. This is even more of a concern in a situation like that of Windsor where the strike did not cause any serious or lasting harms to students and where it resulted in a beneficial agreement which may not have been achieved without a strike.

Another approach is to have the provincial government introduce ad hoc back to work legislation when it becomes clear that the parties will not resolve their differences in enough time to prevent the lasting harm to students. This was the solution taken, for example,  by the Ontario Tory government in the Fall of 1998 in response to the Ontario English Catholic Teachers Association strikes and lockouts. Although this may appear to balance the interests of both unions, employers, and the public, it requires a high reliance on political motivation since such legislation is enacted only when a dispute occurs. There is a potential for there being not enough political will to act if the real harms being caused by a strike or a lockout are not perceived by the entire legislature. The other side of that coin is that there is a real chance for abuse of such procedures if enacting such legislation becomes a regular occurrence to deal with strikes and if the decision is taken before serious harm is a real possibility.

I would suggest a third solution which may offer a compromise between these two approaches. The machinery of back-to-work power should be incorporated into legislation governing the sector. This would protect against the heavy reliance on political will and replace it with reliance on the Minister of Labour. In such a situation, the Minister would be permitted to order the parties back to work and to pursue mandatory interest arbitration if, in his or her opinion, there is significant harm being caused to the public. Objective criteria would need to be established to make such a determination and to prevent the undue removal of the fundamental role of the strike and lockout in labour disputes and overuse of the power. What criteria would be appropriate is certainly a large, unanswered question, but one worth pursuing. Perhaps the exploration of such a solution will find a balance between employee, union, employer, student, and public rights if followed through to fruition.

Nevertheless, many of these questions and the crux of this debate will remain unanswered and unaddressed because of the satisfactory resolution of the Windsor strike. But the debate will no doubt open up once again when labour unrest “strikes” another University.

Yesterday, CanLII announced 25 new databases of labour board and tribunal cases. It includes both federal and provincial labour board decisions as well as labour arbitration cases and pay equity, workplace health and safety, and employment standards tribunal decisions for various provinces. This addition includes over 130,000 cases.

This should go a long way to helping pave the way to making labour law more accessible to everyone. And of course to helping students conduct the most complete research possible when combining it with the other sources available to us.

Hat tip to Library Boy.

Discrimination in the hiring process has been a contentious area of both labour and employment law and human rights law. It becomes even more difficult when certain employers are regulated by statute and are required by law to look for and consider qualifications in applicants. The Supreme Court in Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse) (“Montreal”) has addressed this very issue and has attempted to clarify the interaction of s.18.2 of the Quebec Charter of human rights and freedoms (“Charter“) and whether an employer can consider the absence of a criminal past as a bona fide occupational requirement.

In Montreal, S.N. applied for a job as a police officer with the Service de police de la Communauté urbaine de Montréal (”SPCUM”). She was rejected at the initial stage of the selection process because she did not have the qualification of having “good moral character” required under the Police Act and its by-laws. In 1991 at the age of 21, S.N. had pleaded guilty to a shoplifting theft charge and received a conditional discharge, which the employer used to determine her lack of “good moral character”. S.N. challenged this decision on the grounds that she had been pardoned for the offence, as per the Criminal Records Act (“CRA”) which grants an automatic pardon after three years for a conditional discharge, but the SPCUM stood by its position. S.N. then launched a human rights complaint, alleging that the SPCUM had violated s.18.2 of the Quebec Charter which prohibited the refusal to hire “owing to the mere fact” an individual had been convicted of a criminal offence “if the person has obtained a pardon for the offence.”

Among its arguments, the SPCUM took the position that S.N. had not been rejected based on her criminal record, but due to the “good moral character” criterion. It further submitted that its actions were justified under s.20 of the Charter which provides that exclusions or distinctions based on aptitudes and qualifications required for an employment are non-discriminatory.

The issue progressed and reached the Supreme Court, with all lower courts and tribunals finding in favor of S.N.

The majority decision of the Supreme Court, written by Justice Deschamps, dismissed the appeal. In doing so, it applied its reasoning from Therrien (Re) which held that s. 18.2 is engaged when 4 criteria are met:

1. A dismissal, a refusal to hire or any kind of penalty,
2. decided on in relation to the person’s employment,
3. owing to the mere fact that the person was convicted of a penal or criminal offence, and
4. either the offence must be in no way connected with the employment or the person must have obtained a pardon for the offence.

Looking particularly to the third and fourth factors, the Supreme Court found that the pardon under the CRA creates a presumption that the person has recovered his or her moral integrity. The Supreme Court also noted that having a “good moral character” was a required qualification for being a police offer, but it highlighted that as per the statutory provisions dealing with hiring, criminal record and “good moral character” were two separate criteria to be considered. As such, Justice Deschamps held that the SPCUM was entitled to consider the facts surrounding and giving rise to the finding of guilt but that it must also consider the pardon in determining moral character. A decision about moral character could not be based just on the mere fact of a finding of guilt, but could be countered by adducing additional evidence which, when considered in light of the circumstnaces in which the person committed the crime, supported the conclusion that the person is unfit for the job. These points were explained at paragraph 26, 27, and 28:

An employer is therefore entitled to consider the facts that resulted in a finding of guilt in assessing whether a candidate has the qualifications required for a job.  Those facts are inevitably part of the candidate’s past.  However, the employer must also consider the fact that the person has been pardoned.

The Court also noted that the positive effect of a pardon as it reflects on a person’s character may be countered by adducing evidence of delinquent behaviour or of facts indicating a lack of probity, although this evidence cannot be limited solely to the finding of guilt. The employer must show that the decision was not based on the mere fact of the finding of guilt. Justice Deschamps concluded that the decision was made soley on the conviction and not the facts surrounding it and the employer was not entitled to rely on it.

One issue I find with the majority decision is that it creates a certain degree of confusion as to what can and should be considered in rejecting an application for lack of “good moral character”. Although it permits the employer to consider the facts and circumstances in which a person committed a pardoned crime, an employer cannot rely on the mere finding of guilt itself. The tension here is that the facts leading up to the conviction are essentially what results in the eventual finding of guilt. For example, the fact that a person shoplifted is inseparable from the stigma of dishonesty and dubiousness of the act. As such, although the majority reasons on its face seem to suggest that so long as the decision is not made solely on the conviction you can rely on the dishonesty surrounding it, it is difficult to see how all conclusions drawn around it are not inexorably linked to the conviction itself and would contravene s.18.2.

It’s even harder to try and pin down the line between discrimination and bona fide occupational requirements Justice Deschamps was trying to draw. Because Justice Deschamps held that s.18.2 is a self-contained provision, she noted that s.20 of the Charter which essentially provides a bona fide occupational requirement does not apply. The issue with this conclusion is that SPCUM would never be able to argue that “good moral character” includes the bona fide occupational requirement that the candidate have never committed a criminal offence. Although this is less of a concern for candidates with minor offences like S.N., it raises questions about individuals who receive pardons for much more serious offences, particularly where those pardons were automatic by operation of statute. Such a dilemma could be better evaluated under a case-by-case basis of accommodation under s.20 rather than the all-or-nothing approach suggested by the majority reasons. This was explicitly addressed in the dissent by Justice Charron who would have applied the Meiorin test for bona fide occupational requirements and have found the SPCUM’s decision was reasonable under that test.

It is unclear the significance this decision will have on hiring, particularly outside of Quebec and outside of the stautory requirement of “good moral character”. In Quebec, the analysis of Justice Deschamps clearly indicates that if any employer wants to use a criminal conviction to refuse to hire because of a lack of moral character, it will require something more for it to be justified than just the pardoned criminal conviction. It may also stand for the principle that the bona fide occupational requirement will never be accessible to Quebec employers in cases of a pardoned offence under s.18.2, leading to difficulties with anyone who wishes to refuse to hire because of a past conviction for a serious offence which has received a pardon, particuarlly automatic administrative pardons. Likely, in other jurisdictions, the proper test will be continue to be Meiorin since no other province has a self-contained provision like 18.2.

Yesterday, Premier Dalton McGuinty performed a cabinet shuffle including appointing a new Minister to the Ministry of Labour. Peter Fonesca was appointed the new Minister of Labor, replacing Brad Duguid who was moved to Aboriginal Affairs. Fonesca was previously Minister of Tourism, but brings a substantial amount of experience in employment and labour relations to his new position. For more information on his experience, see his biography on the Ministry of Labour’s website. It remains to be seen how his mandate will be fulfilled in light of Ontario’s current economic situation.