On November 14, 2020, Sean McGee was inducted as a Fellow of the College of Labour and Employment Lawyers.
The College was founded in the United States. It is an organization that promotes achievement, advancement and excellence in the practice of labour and employment law, as well as working to establish leadership, high standards of professionalism, and civility among labour and employment lawyers. The College has fellows in the United States and Canada.
On August 19, 2020, Morgan Rowe will present a seminar on returning to work during the COVID-19 pandemic. Morgan will discuss employees’ rights while returning to work, with a specific focus on the disability rights of employees and their family members.
The workshop is presented by Reach Canada. Reach provides educational programs and independent legal referral services that address the rights and interests of persons with disabilities
Pre-registration is required for this videoconference seminar. More information, including on how to register, may be found here.
Ravenlaw gratefully acknowledges the contribution of this post by articling student Claire Michela.
Regulated in Ontario since 1993, midwives are an overwhelmingly female-dominated profession represented by their Association of Midwives (AOM). Regulation was a proud moment for midwives, as it was a public recognition of their contributions to Ontario’s health care system. Recently, the Divisional Court found that the Ministry of Health (MOH)’s decision to raise the wages of midwives slowly, compared to other health care workers, amounts to systemic pay discrimination.
In 1993, the MOH and AOM worked together to develop funding principles to guide midwives’ future pay increases. Based on a third-party assessment, the AOM and MOH decided that doctors working in Community Health Centres (CHCs) had comparable levels of skill, effort, responsibility, and working conditions to Midwives, and the two groups should be paid on par.
But, starting in 2004, midwives’ wages were frozen and negotiations became strained. As similarly situated CHC doctors’ wages continued to increase, midwives’ pay was minimally increased for a number of years. As the pay gap broadened, the AOM filed a human rights complaint for gender discrimination in 2013.
In 2018, the Human Rights Tribunal of Ontario concluded that the MOH’s refusal to negotiate fair pay increases was discriminatory. This finding of discrimination meant that gender was a factor in midwives’ lower pay compared to similarly situated health care workers.
Despite the Tribunal’s decision, the MOH still could not agree on an appropriate amount to compensate midwives for years of discriminatory under-payment. The case returned to the Tribunal, which decided that the MOH must provide a 20% pay increase retroactive to 2011, human rights damages for those who signed on to the complaint, and interest to compensate midwives for lost time.
The MOH was unsatisfied and brought both Tribunal decisions to the Divisional Court for judicial review. At the Divisional Court, the MOH tried to argue that there was no pay discrimination because the midwives’ gender was not a factor in the MOH’s decision to pay midwives less than CHC doctors. However, the Court’s decision reminds the MOH that in human rights cases, intent to discriminate is never required.
The Divisional Court found the MOH’s arguments about why the Tribunal decisions were unreasonable to be “disingenuous” because they “fail to engage with the allegations of adverse gender impacts on midwives and ignore the systemic dimensions of the claim.”
Discrimination is systemic when the policies or practices of organizations result in an adverse impact for a protected group. In this case, the MOH’s pay policies were discriminatory toward midwives because their pay was raised remarkably slowly (an adverse impact) compared to similarly situated health care workers.
Systemic discrimination has been a topic of public debate recently, as the Black Lives Matter movement has gained traction around the world. The case of the pay of midwives in Ontario demonstrates how systemic discrimination is a subtle form of discrimination that can creep in over time and that it may be unintentional. However, as noted by the court, in human rights law, intention is not required for systemic discrimination to exist.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
The implementation of physical distancing measures in the face of the global COVID-19 pandemic has raised a number of issues for workers with family obligations. Many workers are now being asked to work from home on a regular basis. At the same time, schools and childcare institutions have been closed and are only in the process of reopening, with the future success of these efforts remaining uncertain. Other workers face the need to care for sick family members, preventing them from fully meeting their work obligations.
Human Rights law, which has been found to provide certain protections to allow workers to balance their family and work obligations, can play an important role in navigating these issues.
Human Rights law seeks to protect people from adverse consequences flowing from the fact that they exhibit one of the protected characteristics enumerated by the legislation. In this case, the protected characteristic is called “family status”.
The protection from discrimination on the basis of family status has been interpreted to protect people from adverse consequences in their employment flowing from their family care obligations. What is protected, however, may depend on whether your employer is federally or provincially regulated.
In Ontario, it is generally enough to show that the employer’s rule has a substantial negative effect on the parent/child or family care relationship and the responsibilities that attach to it. In assessing whether there a prima facie case of discrimination has been made out, the decision maker can look at the supports available to the claimant, but the claimant is not required to exhaust all options in attempting to self-accommodate.
Case law from the Human Rights Tribunal of Ontario provides a helpful foundation for parents juggling work and family obligations, including the obligation to assist their children with e-learning and other activities meant to replace school while schools are closed in response to COVID-19. Parents will be expected to make reasonable efforts to meet all of their obligations, but employers will also be expected to make reasonable concessions and allow for accommodations that will help parents to meet their obligations.
Employees who are federally regulated may have a more onerous test to meet. The Federal Court of Appeal has stated that an employer is only obligated to accommodate a family obligation when it arises from a “legal obligation”, as opposed to a “personal choice”. The implications of this requirement in the COVID-19 context remain to be seen, particularly given decisions from arbitrators and human rights tribunals, such as the arbitration award in SMS Equipment, indicating that additional requirements in the family status context are not appropriate.
Arbitrator Jesin recently dealt with a COVID-19-related family status grievance. The grievor, who works in Sault-St. Marie and lives in Michigan, had a unique situation brought on by COVID-19. While he was not required to self-isolate for fourteen days after entering Canada due to an exemption in the regulations, the employer had a rule that required it, effectively making it impossible to both work and see his young children.
Arbitrator Jesin held that it was unreasonable for the employer to apply its policy without accommodating the grievor’s family status. He suggested that the employer adapt the policy to fit better with the grievor’s circumstances and that it might consider other precautions such as increased PPE or restricting him from going to COVID-19 “hot spots” in the US.
This decision is notable for the fact that it does not consider the issue of whether it was the grievor’s choice to maintain his custody arrangement or take up residence in Canada. The duty to accommodate was taken as a given. The decision is an example of Ontario arbitrators’ willingness to go straight to the question of accommodation where an employee has experienced adverse consequences as a result of a work rule and their family realities.
If you are having difficulty keeping up with both work and childcare obligations, you can ask your employer to accommodate you. This may mean a later start time, more reduced hours, or other accommodation measures that may be necessary in the circumstances. If the employer refuses to provide any accommodation, though not necessarily the requested accommodation, it will have to show that not only does the requested accommodation would interfere with a bona fide occupational requirement and that it would experience undue hardship if forced to accommodate.
If you have any questions about these issues or your employer has refused to provide an accommodation it may be time to contact an employment lawyer or your union.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]
A recent decision of the Manitoba Court of Queens Bench has found that legislation which purported to cap wage increases for unionized public sector employees infringed the Charter right to freedom of association.
Manitoba’s Progressive Conservative Party was elected in April 2016 and, shortly thereafter, Cabinet recommended adopting wage-freezing legislation modeled on legislation that had previously been used to limit increases to public sector wages in Nova Scotia. The legislation was passed within a year. The Public Service Sustainability Act (PSSA) created what it called a “sustainability period”. This meant that for the first two years following the expiration of a collective agreement no wage increases could be granted or awarded by an arbitrator. In the third year, increases were to be capped at 0.75% and 1.0% in the fourth.
The legislation received royal assent but was not proclaimed into force. Some speculated that the reason for its non-proclamation was to avoid the possibility that it would be held to be unconstitutional. However, the unions that challenged the legislation provided extensive evidence that, despite the non-proclamation of the legislation, the threat of the legislation’s ability to retroactively roll back negotiated wage increases hung over all collective bargaining tables, and was repeatedly adverted to by government and employer negotiators. Nearly all of the unions who were parties to the Charter challenge had concluded collective agreements with wage increases in line with the PSSA but indicated that their acceptance was conditional on the constitutionality of the PSSA and that they were signed “under duress”.
The constitutional challenge relied on the developing jurisprudence around section 2(d) of the Charter which guarantees freedom of association. Freedom of association has developed to include a right to collective bargaining free from substantial government interference and a right to strike. The most recent decisions from the Supreme Court are the 2015 trilogy of Mounted Police Association of Ontario, Meredith, and Saskatchewan Federation of Labour, as well as the Court’s subsequent decision in British Columbia Teachers’ Federation. Those decisions advanced the law of freedom of association significantly in positive directions for unions. However, the Meredith decision found that wage restraint legislation imposed to address economic concerns arising out of the 2008 financial crisis was permissible in the context of the labour relations regime in place at the RCMP. Subsequently, appellate courts across the country dismissed constitutional challenges to that same federal wage restraint legislation.
The Manitoba Federation of Labour case is important. It provides a clear and systematic analytical framework for dealing with legislation which freezes or limits increases on public sector wages achieved through collective bargaining.
The Court’s findings can be broken up into four parts:
In comparing the Manitoba legislation to the Federal legislation in Meredith, the Court noted that a significant difference between the two pieces of legislation was that the federal legislation sought to impose salary increases comparable to those that had been negotiated for comparable bargaining units in the public sector. Also, in this case, the legislation was imposed so as to have an effect on future collective bargaining rather than to provide certainty to bargaining that had been ongoing. The Court found that the enactment of the PSSA had wide-reaching consequences on labour relations and substantially interfered with a meaningful process of collective bargaining and thus infringed section 2(d) of the Charter.
Notably, the Court found that the government had failed to justify the Charter infringement at the first stage of the Oakes test. It emphasized that Courts should look with a large degree of skepticism on “dollars versus rights” controversies. The unions pointed to the fact that the government had introduced tax cuts at the same time as it pled poverty. The court found, upon a detailed review of various budgetary reports, that there was no budgetary crisis that could constitute a pressing and substantial objective. Courts rarely rely on this branch of the Oakes test to find that constitutional infringements cannot be justified. As such, this can be read as a striking indictment of legislating wage restraint for unionized employees for ideological or convenience reasons.
For the sake of completeness, the Court went on to consider the balance of the Oakes test including whether the PSSA minimally impaired the union members’ freedom of association while accomplishing its stated objective of limiting government expenditures. In determining whether the government employed the least-infringing option, the Court looked at the process that led up to the adoption of the legislation. The government had indicated to the unions at all times prior to the passage of the legislation that this was the only option it would consider. The Court suggested that the government could have simply reduced budgets at government-funded employers and allowed bargaining to transpire in that context. The unions had gone so far as to propose less-impairing alternatives prior to the enactment of the legislation but the government had ignored their proposals.
The Court declared that the relevant sections of the PSSA violated the Charter, could not be justified and were thus of no force and effect.
There are significant practical lessons to be had from the unions’ success in this case in how to deal with legislated austerity measures for public sector wages.
First, it appears that the tactic of ratifying collective agreements conditionally with the proviso that it was done “under duress” can support the conclusion that collective bargaining was substantially interfered with and may allow the unions to later challenge the collective agreements, which were concluded under the threat of the legislation.
Second, the unions presented a united front with all affected public-sector unions working together to challenge the legislation fronted by the Manitoba Federation of Labour. This strategy appears to have assisted in presenting robust factual evidence and providing the Court with a complete picture of all facets of the government’s application of its policies under the legislation in negotiations with various bargaining units.
Third, while the decision confirms that pre-legislative consultation is not required for wage restraint legislation, it suggests that such consultation may assist the government in justifying any resulting infringement. It may be advisable for unions facing down impending wage-restraint legislation to make concrete alternative proposals which can be relied on later to show that the legislation was not the least rights-impairing option to address the government’s concerns.
Fourth, the unions brought forward significant amounts of expert evidence from labour relations scholars on a variety of issues including the importance of the leverage gained from being able to negotiate on monetary issues, the effect of these restrictions on the relationships between unions and their members, the impact of such legislation on the ongoing relationships between unions and management, the effect of the legislation on strike leverage, and consequences for government finances. The Court relied extensively on the expert reports provided by the union, demonstrating the importance of developing a significant evidentiary basis on both the section 2(d) and section 1 Charter issues.
This decision will hopefully chill efforts by governments to impose wage restraint through legislation. If not, it provides an effective roadmap for similar constitutional challenges to newly introduced legislation that will curtail bargaining rights.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]
Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish.
When the land border between Canada and the United States closed in March, thousands of people who make the daily commute to work across the border were left in a difficult situation.
United Steelworkers Local 2251 v Algoma Steel Inc. deals with one such person, a machinist apprentice at a steel plant in Sault Ste. Marie, Ontario.
Each day the employee made the approximately 30-minute commute from his home in Chippewa County in Northern Michigan to the plant in Sault Ste. Marie. Because he was crossing the border for employment reasons, he was exempted from the border closure and from the mandatory 14-day period of self-isolation. However, his employer wanted to go further in creating a “Covid free” worksite. It implemented a policy that any of its employees who enter the country must isolate for 14 days before attending work.
This employee has custody of his two young children on the weekends and they would not be entitled to cross the border with him. This made it impossible for him to enter into Canada fourteen days prior to entering the workplace. The Union challenged the application of the self-isolation policy and its impact on this employee.
The arbitrator reasoned that, while this policy would generally be reasonable, it would not be reasonable to apply it without considering obligations under the Human Rights Code to accommodate family status. In this “unusual case,” the policy forced the employee “to make the difficult choice of having access to his two young children or to make a living.” The arbitrator also noted the fairly low rates of COVID-19 in the employee’s home area.
The Arbitrator concluded that the “competing legitimate rights” must be balanced. Instead of the blanket ban on employees crossing the border, the employer could assign him to work separately from other employees, require that he wear PPE, and take extra social distancing and sanitizing protocols. Consulting with the Union, it could consider mandatory testing and even restricting him from travel to designated COVID-19 “hot spots” in the United States.
While governments and employers have taken sweeping and necessary action, this case is a helpful reminder that the approach to fighting the pandemic cannot disregard important worker and human rights protections. Here, a nuanced resolution was possible in a relatively short period of time, highlighting the importance of unions in advocating for their members as we navigate the COVID-19 workplace.
If you have questions or concerns about the implications of COVID-19 on your employment, please call 613-567-2901 or email info@ravenlaw.com. If you are a member of a union, please contact them directly for assistance in dealing with your workplace issue.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
On September 25, 2020, Jessica Greenwood will speak at the annual Kingston and the 1000 Islands Legal Conference. She will participate in a panel addressing employment litigation issues arising due to the COVID-19 pandemic.
This year’s conference is proceeding virtually. The conference is hosted by the Frontenac Law Association.
On September 10, 2020, Alison McEwen spoke at the Ottawa Six-Minute Employment Lawyer workshop, presented by the County of Carleton Law Association. Alison spoke on trends in the notice periods awarded in wrongful dismissal cases, including increases in notice periods for older workers.
On September 17, 2020, Andrew Astritis spoke at the Osgoode Hall Professional Development conference on Class Actions: Critical and Emerging Issues. Andrew participated in the panel on “#MeToo Comes to Class Actions”.
Andrew is part of the team at RavenLaw that has been representing current and former members of the Canadian Armed Forces in the class action involving sexual misconduct in the military, which was settled in 2019.
Ravenlaw gratefully acknowledges the contribution of this post by articling student Karen Sisson.
A recent decision of the Ontario Arbitration Board affirms the employee’s right to a hearing for grievances related to systemic issues in the workplace, even where the issue may appear to be moot.
In the 2020 CAS v CUPE[1] decision, the employer had made a motion to dismiss an employee’s 2016 grievances, which alleged an incident of workplace harassment as well as a failure to meet obligations under the Collective Agreement pertaining to accommodation.
The Grievor in this matter had made an allegation of harassment against a supervisor. The incident was alleged to have occurred during discussions about the Grievor’s accommodated return to work plan. Following the filing of the grievance in 2016, a workplace remedy was applied wherein the employer agreed that the Grievor would no longer be supervised by that particular supervisor. The employer also agreed to review expectations with respect to return to work planning with all supervisors.
The Grievor and the employer continued to engage in negotiations for a return to work plan, but no plan was ever agreed to. The Grievor filed an additional grievance, alleging that the employer had failed to meet their accommodation obligations under the Collective Agreement. Both grievances were filed in 2016. At the time of the Hearing in 2020, there were no new reports or concerns with respect to harassment, and the Grievor had successfully returned to their full-time position.
The employer brought a motion to dismiss the employee’s grievances, relying on the fact that they had already engaged an adequate remedy, and the grievance was thus out of scope of the Arbitration Board. There had been no further issues raised since the grievances were filed in 2016. The employer argued that the “fact specific” nature of the grievances meant that the issues were now moot, and there was no benefit to the ongoing relationship of the parties to pursue further resolution. The employer alleged that a hearing on the grievances would “dredge up controversy and conflict at great expense”, potentially having a detrimental impact on ongoing labour relations, and on the Grievor.
In reply, the Union highlighted that an allegation of harassment in the workplace is a live issue which requires a formal resolution. The passage of time should not be relied on to “wash away” the fact of the allegation. Furthermore, a resolution of the grievance alleging a failure to accommodate the Grievor would assist the parties in their application of the Collective Agreement. The Union also highlighted that the Grievor may be entitled to damages to compensate for the harm they suffered because of the alleged harassment.
In its decision, the Arbitration Board explicitly stated that the doctrine of mootness applied in the context of criminal and civil matters is not applicable in the same manner to labour relations. Citing a prior decision in the analysis, Sherbrooke Community Society v SUN Local 22[2], the Board stressed that “The parties before an arbitrator, by definition, must continue to live together in a work relationship under a collective agreement… once a systemic issue is raised by a particular grievor, it does not simply disappear, due to a change in that particular person’s individual circumstance”.
The Board declined to follow earlier decisions where the doctrine of mootness had been applied, distinguishing the grievances in this matter on the grounds that these grievances raised more complex issues than those raised in the prior decisions. The Board also emphasized the significant evolution in the last 15 years regarding damages involving harassment and/or violations of the Human Rights Code. While the Grievor had successfully returned to work since the grievance had been filed, the question of whether the accommodation plans were adequate, or adequately adhered to in the workplace, remained a live issue.
With respect to the allegation of harassment, the Board unequivocally found that the efforts of the employer to remedy the issue in the workplace did not resolve the grievance. Actions taken by the employer in response to the allegation were relevant to quantifying potential damages, but they did not adequately meet the labour relations purposes served via a hearing on the issue. A hearing on the issue would provide instruction to the parties about how similar situations can or should be dealt with in the future.
Given these observations, the Board found that “The underlying questions about the substance of the Grievor’s allegations remain alive and require resolution, for her sake and for the sake of the parties’ understanding of their rights under the Code and the Collective Agreement”. Absent a mutual agreement with the consent of both parties, the case was not one where it would be appropriate to halt the proceedings.
This decision is significant for its recognition that an employee’s right to remedy for potential breaches of the Human Rights Code cannot be said to have disappeared via the passage of time. The resolution of systemic issues is a vital component of labour relations, and an employer can not escape the potential application of a remedy via a hearing by the Arbitration Board on such matters.
[1] The children’s Aid Society of Toronto and The Canadian Union of Public Employees and its local 2316, 2020 CanLII 34509 (ON LA).
[2] Sherbrooke Community Society v SUN Local 22, 2 L.A.C. (3d) 97 (Norman).