Raven, Cameron, Ballantyne and Yazbeck LLP is pleased to announce its association with Peggy Smith LLP. Peggy has been serving union and individual clients in the Kingston area for more than 30 years in the fields of labour, employment and human rights. Together, we look forward to serving unions and individuals in the Kingston area.
On November 28, 2017, RavenLaw appeared before the Supreme Court of Canada to argue in support of a challenge under the Canadian Human Rights Act to discriminatory provisions of the Indian Act registration scheme.
RavenLaw appeared on behalf of the intervener, the Public Service Alliance of Canada, one of 14 organizations that intervened to argue in favour of a broad and purposive approach to interpreting human rights laws. Particularly, PSAC intervened to argue that the Canadian Human Rights Act should allow individuals to bring human rights challenges against government programs and benefits schemes, even where the discrimination in the program or benefit arises because of legislation.
Andrew Raven, Andrew Astritis, and Morgan Rowe from RavenLaw appeared on behalf of PSAC.
We are thrilled to announce that Jessica Greenwood is joining Ravenlaw!
Jessica has been successfully advocating on behalf of unions and employees her entire career. She is a proud Kingstonian and Queen’s alumni. Before joining our firm, Jessica worked at one of the largest trade unions in the country where she regularly appeared before labour arbitration boards. She brings talent, results and experience.
Jessica will be leading our Kingston office where she will continue advocating on behalf of workers and unions.
In addition, Peggy Smith, who has been working in association with our firm since January 1, 2018, will continue to service Kingston area clients.
Welcome Jessica!
Ravenlaw gratefully acknowledges the contribution of this post by articling student Megan Fultz
Cannabis is set to be legalized in Canada on October 17, 2018, but the Federal Government has continued to stress that, until that time, the law will be enforced. In the meantime, numerous marijuana dispensaries are operating, only a small portion of them legal and licensed by Health Canada.
Workers at these unlicensed dispensaries have rightfully questioned what legal rights they have while the sale of cannabis remains illegal. This post will consider the various sources of a worker’s rights, and whether those rights extend to employees of an illegal enterprise.
Statutory employment rights
Workers in Ontario have rights under several employment-related statutes, including in areas of health and safety, human rights, and minimum employment standards. None of these statutes exclude employees on the basis that they work for an illegal enterprise, and therefore should apply equally to employees of an unlicensed cannabis dispensary.
This is consistent with the position the previous Ontario government took on this issue. Janet Deline, spokesperson for the former Ontario Ministry of Labour, stated in a Toronto Star article last year that all workers are entitled to certain government protections, even those working in unlicensed businesses. She was quoted saying, “When a Ministry of Labour Health and Safety inspector conducts an investigation, the focus is on the possible hazard and the health and safety of workers in the workplace, not whether or not the company is licensed.”
Therefore, a worker at a dispensary could likely enforce his or her rights under the Employment Standards Act, the Occupational Health and Safety Act, and the Human Rights Code.
Statutory labour rights
Workers in Ontario also have the right to join a union under the Labour Relations Act. That right, too, is not contingent on whether the employer is operating within the bounds of the law, meaning workers at a dispensary could exercise those rights and join a union.
In 2017, forty employees of a “Canna Clinic” unionized under Unifor. Katha Fortier, Unifor’s Assistant to the President, believes this is a first in Canada. These workers at Canna Clinic are primarily concerned with staff training and a safe work environment, issues that will continue to be relevant even after legalization. In response to this development, Janet Deline from the Ministry of Labour confirmed that, “Law enforcement and labour relations are totally separate areas in government.”
Rights under an employment contract
In addition to statutory rights, employees have rights under their employment contract, whether or not the contract is in writing. These rights can be enforced through a claim in court. It is unclear whether a court would enforce an employment contract in an unlicensed dispensary.
There is a long-standing, general principle of contract law which prohibits the enforcement of contracts that contemplate committing an illegal act. As this principle has evolved, courts have moved away from implementing a hard line of unenforceability for all illegal contracts. Courts consider: the serious consequences of invalidating the contract, the social utility of those consequences and a determination of the class of persons for whom the prohibition was enacted. There are certainly strong policy reasons not to apply this principle to an employment contract, particularly in light of the unequal bargaining between employers and employees. A strict application of this principle would ultimately benefit the employer—i.e. the entity operating the illegal enterprise—by permitting the employer to avoid its obligations to the employee.
While not a court ruling, a 2016 decision of the Ontario Workplace Safety and Insurance Appeals Tribunal discussed how the doctrine of illegality applied in the context of undocumented workers. The Tribunal held:
The doctrine of illegality does not exist to give one party to an illegal contract…an advantage over the other party… There is a public interest not in prohibiting employment arrangements but instead in ensuring that such arrangements comply with the employment laws of the province and that rights under these arrangements be enforceable. The potential for exploitation of individual workers would be considerable if employment laws were not enforceable.
However, the Tribunal was careful to distinguish employment contracts that violated labour laws from contracts in pursuit of an “illegal objective” such as “theft, gambling, prostitution or smuggling, etc.” Based on this distinction, it is possible courts would not enforce employment contracts in unlicensed marijuana dispensaries, as the ‘objective’ of those contracts is itself illegal.
Conclusion
Employees in unlicensed dispensaries appear to be entitled to the same statutory protections as other workers, as well as the same opportunity to unionize. It is less clear whether these employees could pursue a claim in court for breach of their employment contracts. All things considered, workers in unlicensed dispensaries remain incredibly vulnerable. These establishments are regular targets of police raids and robberies, while frontline workers continue to face the possibility of criminal charges themselves.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
On October 9, 2018, James Cameron will present as part of a panel discussing terminations in the federal public service. The panel will tackle how employees are terminated in the public service and when those terminations can be successfully challenged.
For more information or to register, please contact the event organizer.
On September 20, 2018, James Cameron and Morgan Rowe presented as part of the Union of Postal Communications Employees’ National Education Session. James and Morgan’s presentation addressed how to assist union members in successfully filing long-term disability applications and strategies for effective LTD benefit appeals and litigation.
On September 19, 2018, Morgan Rowe presented as part of the Union of Postal Communications Employees’ National Education Session. Morgan’s presentations addressed the most effective ways to represent union members in cases involving the duty to accommodate for human rights reasons and in harassment complaints.
Ravenlaw gratefully acknowledges the contribution of this post by articling student Megan Fultz
Recent estimates indicate that about 6 million people in Canada (approximately 19% of our population) experience some form of chronic pain. Because chronic pain is experienced differently by each individual, and can present itself in many different forms, it is difficult to diagnose. Individuals living with chronic pain often face significant barriers to appropriate treatment and accommodation in all aspects of life, including the workplace. Chronic pain can make it difficult or impossible to continue working, leading to a claim for long-term disability (LTD) benefits. The LTD claims process is challenging for those with chronic pain, because it can be hard to prove that the individual meets the requirements for LTD benefits due to his or her chronic pain.
Chronic pain is hard to define because pain itself is experienced at such an individual level. Pain for one person resulting from an injury or condition may be manageable, whereas pain from that same injury or condition may be totally disabling for another. Chronic pain is often defined as pain lasting longer than the average timeline for healing. When the pain someone experiences has outlived the expected time period for healing affected tissues, the pain has become chronic and the individual is experiencing Chronic Pain Syndrome (CPS). Unlike acute pain that is associated with a specific injury, chronic pain is long-lasting and persistent, and sometimes does not respond to medical treatments.
Chronic pain can stem from many causes. Sometimes people experience chronic pain as a symptom of another existing or acquired condition. Other times, Chronic Pain Syndrome is the condition, developing out of an injury or other physically traumatic event.
Fibromyalgia is a condition characterized by chronic, widespread muscular-skeletal pain and other associated symptoms, including fatigue, difficulty concentrating, memory problems, and mood fluctuation. Fibromyalgia is an example of a prevalent, but difficult to diagnose, chronic pain condition. Many of the characteristics of Fibromyalgia will not show up in a medical test or scan and yet the condition itself can be incredibly debilitating.
In order to make a successful claim for long-term disability benefits on the basis of chronic pain, it is important to work closely with your doctor in discussing possible causes of the pain and potential treatment options. If your chronic pain results from an injury or condition known to cause pain, it may be easier to identify and confirm this through medical testing. If you are living with Fibromyalgia, Chronic Pain Syndrome or another condition that is difficult to diagnose through medical testing, it may be more challenging to succeed in your claim. Either way, it is vital to demonstrate that you are pursuing any options available to you and following the treatment plan recommended to you by your doctor.
It is important throughout the LTD claims process to be diligent in keeping records of the pain you have experienced and the treatments you have undergone and their intended/actual effect. Especially if the cause of your pain is hard to identify and confirm, it is crucial that you are recording how it has progressed, so that any possible patterns may be identified and/or correlations with other factors (environment, sleep, diet, activity level, etc.) In all cases, it is very important to be honest and candid about your pain levels, and to keep lines of communication open with your doctors.
Throughout the LTD claims process, you and your doctor will need to be able to comment on several important areas: your symptoms, their impact on you (the limitations and restrictions they create in your life), any progress or regression you experience, any treatment accessed and its impact, and future plans to manage your condition.
While chronic pain is primarily physical in nature, it can also have a substantial effect on an individual’s mental health and wellbeing. Living with pain for long periods of time – and sometimes for the entirety of a person’s life – can take a significant toll on an individual’s psychological state. When the cause of pain is unknown, but the symptoms persist, it can be even more frustrating and stressful for the affected individual. It is important to be aware of the effects of chronic pain on mental health, to document any mental health symptoms you are experiencing, and to work with your doctors to manage these symptoms as well.
Chronic pain affects millions of Canadians and continues to be a very challenging condition to manage. In order to successfully apply for LTD benefits for chronic pain and related conditions, it is important to document as much information as possible about your daily symptoms and treatments, and remain in open communication with your doctors throughout the process.
[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, 2018, Morgan Rowe will present as part of a CCLA panel on “Effectively Collaborating with, and Representing, Persons with Disabilities”. The panel will discuss issues which arise for lawyers relating to professionalism, disability identity and perception, and how to ensure greater inclusivity for people with disabilities when providing legal services.
For more information or to register, please visit the conference’s event page.
On September 28, 2018, RavenLaw will be hosting a conference at the CUPE 1974 Union Hall (680 Innovation Drive in Kingston’s east end). The conference will focus on successfully assisting individuals and union members in their applications for long-term disability benefits. Featured speakers include highly experienced legal professionals; Dr. Finestone, a pain specialist; and Chantal Pullen, an Occupational Therapist.
The conference is free to attend and will be followed in the new year with a conference on assisting workers in appealing decisions denying LTD benefits.
For more information on how to register, please go to: