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.

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 conference, entitled “Beyond the Horizon: The Expanding and Overlapping Jurisdiction of Arbitrators & Tribunals” brings an exciting lineup of speakers to Ottawa, from high court Justices, to prominent lawyers, and respected academics. In light of the recent changes in this area of law, this conference will be an invaluable learning experience for everyone involved.

Seven ELLSS members will be attending this conference. Please check this blog regularly for our comments on this conference, updates of future conferences and other exciting opportunities.

If you know of another conference related to labour and employment law and would like to request to work with the ELLSS to attend with a group of members, please contact gwhit024 AT uottawa.ca.

Students are invited to attend an upcoming conference, “Solidarity: Migrant Workers”, a fantastic opportunity to learn more about a current issue in union-side labour law. The Federal Government’s move to open up the Temporary Foreign Worker Program raises longstanding questions about the barriers to unionization faced by migrant workers. Various discussions and workshops will be held from both academic and practical points of view.

The Conference will be held from October 24th to 26th at the University of Ottawa. The registration fee for students is only $50, but there is also a need for students to volunteer as notetakers. Volunteers can attend free of charge.

Further details and registration information for this exciting event can be found at Jewitt McLuckie’s Website under Events. If you would like to volunteer, please contact Samantha Lamb at SLamb AT jewittmcluckie.ca or Samar Musallam at smusallam AT jewittmcluckie.ca. To register, please send your completed registration form to Solange Ashe at sashe AT jewittmcluckie.ca or by fax at 613-594-5156.

On Wednesday October 29th, ELLSS members are invited to tour three downtown firms, specializing in labour and employment law. They are: Hicks Morley LLP, Sack Goldblatt Mitchell LLP, and Nelligan O’Brien Payne LLP. For students interested in getting a first-hand picture of how these firms operate from the inside, this event is not to be missed!

We will be leaving Fauteux at 12:30 sharp, so please arrive early. The Tours end at 3:45. For more details, or to RSVP, please contact btarn061 AT uottawa.ca.

Each year, ELLSS brings together lawyers representing both management and employees in the private and public sectors. Following a short meet-and-greet, speakers discuss career paths, day-to-day responsibilities, and what it is like to practice this exciting area of law. The event is followed by a catered reception where students can have one-on-one discussions with speakers and other firm representatives.

The Annual ELLSS Career Fair is the biggest event on campus for students interested in learning about career opportunities in labour and employment law. Mark your calendars early, as this year’s event will be held on Wednesday November 19th from 4:00pm to 7:00pm in the Fauteux Atrium.

For more information, please contact cwara032 AT uottawa.ca!

On Thursday October 9, 2008, the Supreme Court of Canada delivered its judgment in RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc. In this case, the manager of an RBC branch coordinated a mass departure of nearly all investment advisors to a competitor.  None of the departing employees gave RBC any notice, leaving the branch “all but collapsed” (para. 1).

The trial judge awarded huge damages including:

• Compensatory damages for failure to give notice: profits that would have been earned by each of the departing employees during the 2.5 week notice period;
• Punitive damages against all defendants: $5000 each for regular employees, $10,000 each for the branch managers at both RBC and Merrill Lynch, and $250,000 against Merrill Lynch;
• Compensatory damages for unfair competition: $225,000 against all defendants jointly and severally; and
• Compensatory damages for breach of duty of good faith: nearly $1.5 million against the branch manager.

The B.C. Court of Appeal affirmed the damages for failure to give notice, as well as the punitive damages, but overturned the trial judge’s findings on unfair competition and breach of duty of good faith.  The case was appealed to the Supreme Court.

According to the trial judge, the employees remained subject to their duty of fidelity during the notice period, and were in breach of that duty by working for a competitor (para. 15).  The Supreme Court disagreed: the contract of employment ends on termination (para. 19).  In other words, the employees were free to work for Merrill Lynch as soon as they left RBC.

The branch manager failed to perform his duties in good faith, specifically the managerial duty to attempt to retain employees, which is an implied term of his employment contract.  The Court of Appeal overturned the damages for this breach on the basis that they did not meet the proximity test set out in Hadley v. Baxendale. But the Supreme Court said that analysis was erroneous.  Rather than asking whether the breach was foreseeable at the time of the contract, one must ask whether the damages would have been foreseeable at the time of the contract had the parties turned their minds to the possibility of the particular breach (para. 12).  Based on this test, the Court upheld the trial judge’s conclusion.

Some Thoughts

This judgment imposes a fairness obligation on employees, similar to the one already imposed on employers.  While employers may not act in bad faith in the manner of dismissal (see Wallace v. United Grain Growers), employees (such as the branch manager) may not to act in bad faith in the manner of departure.  However, the potential liability varies greatly.  In this case, the branch manager was liable for huge losses in profit; but if the tables were turned, the employer would have been liable for mental distress damages (see Leanna Dejneka’s earlier post in Honda v. Keays).  Loss of profits may greatly exceed damages given to employees for mental distress.   As such, employers acting in bad faith likely have less damages to worry about than employees such as the manager in the RBC case.

Despite this difference, I don’t disagree with this decision.  The branch manager should have known the potential loss he was causing when he orchestrated the departure.  If this disparity in potential liability contributes to the power imbalance between employees and employers, that imbalance is properly dealt with when notice periods are awarded in subsequent cases.  What are your thoughts?

Justice Abella, in dissent, took a different view of the facts, contending that the branch manager was entitled to plan for future employment opportunities and to discuss those opportunities with coworkers (para. 57).  She felt that the majority decision inappropriately created a new quasi-fiduciary duty for a non-fiduciary manager (para. 51).

Do you agree?  Or were the manager’s actions, as the majority contends, a breach of the duty of good faith already owed by employees to employers (para. 22)?

How far-reaching is an employer’s duty to accommodate?  This question has been continuously debated in labour and employment jurisprudence for many years.  In the recent decision of Hydro-Quebec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ)  (“Hydro-Quebec”), however, the Supreme Court of Canada has clarified the outer limits of this duty. 

Specifically, the Supreme Court addressed the extent of an employer’s duty to accommodate in light of the test set out in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. (“Meiorin”). As per Meiorin, an employer can justify a standard or actions which would otherwise be discriminatory if 3 steps are met. The third step involves demonstrating that it is “impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer”. It is the correct interpretation of this requirement which was addressed by the Supreme Court in Hydro-Quebec. 

The case involved an employee who was plagued by various physical and mental problems, particularly a personality disorder which resulted in deficient coping mechanisms.  This led to a high absence rate as well as difficult relationships with co-workers and supervisors. The situation persisted over several years despite a number of adjustments by the employer to her conditions of work. Eventually, and after receiving a psychiatric assessment which indicated that the employee would not have regular and continuous attendance in the future, the employer dismissed her.

The union challenged her termination. It suggested that the employer could have completely changed her work environment to eliminate the stressors which caused her inability to work in a satisfactory manner. The arbitrator found in favour of the employer, holding that this proposed accommodation, which would require continuous, periodic changes to the employee’s work environment and colleagues, would constitute undue hardship. The Superior Court agreed with the arbitrator’s assessment, but on appeal to the Quebec Court of Appeal the decision was reversed on the grounds that the threshold of impossibility had not been met by the employer. The employer launched an appeal to the Supreme Court.

The Supreme Court needed to assess what the scope of the duty to accommodate was, as per the ruling in Meiorin, and whether or not the employee had been properly accommodated within it.

Even though the Supreme Court emphasized that the goal of accommodation is to ensure that if an employee is able to work they are not unfairly excluded or prevented from doing so, it also concluded that the duty to accommodate, as per the approach articulated in Meiorin, has certain boundaries:

• It does not mean that the employer has to prove it was impossible to accommodate the employee;
• It does mean that the employer has to prove that accommodating the employee would cause undue hardship;
• The employer does not have a duty to change working conditions in a “fundamental way” ;
• The duty to accommodate does not extend to a complete alteration of the “essence” of the employment contract: the performance of work in exchange for remuneration;
• If the nature of an illness is such that the proper operation of the business is excessively hampered or the employee remains unable to perform the work for the reasonably foreseeable future even though the employer has made attempts to accommodate, undue hardship will be met.

The Supreme Court upheld the original decision of the arbitrator and overturned the decision of the Court of Appeal. The test for undue hardship had been met because the employer had tried for a number of years to adjust the employee’s working conditions and attempted to accommodate, but the employee was still unable to work for the reasonably foreseeable future.

In our opinion, this case, while dealing with a situation arising from the labour context, will also have important implications for non-unionized employees and employers. The Supreme Court has clarified several legal points about the duty to accommodate, as well as rejected an interpretation of the Meiorin test which could be the subject of debate in the adjudication of these types of disputes.

Furthermore, it must be recognized that assessing whether or not an employer has met its duty to accommodate obligations to their employee can be a difficult, complicated, and completely fact-driven inquiry. Indeed, the Supreme Court itself in this case recognized that “what is really required is … proof of undue hardship, which can take as many forms as there are circumstances.” While the waters are still (and probably always will be) murky as to what is legally required to satisfy the duty to accommodate to the point of undue hardship, the Supreme Court has, at minimum, clarified what it does not involve.

Authored by:  Heather Robson and Cheryl Waram, ELLSS