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.

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.

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.

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.