In a recent decision, the Public Service Labour Relations and Employment Board allowed a complaint filed by the Public Service Alliance of Canada, alleging that the government had interfered with the union’s administration and its representation of members during collective bargaining. The complaint was filed after Treasury Board refused to permit a union negotiator to conduct walkthroughs of various worksites, and hold on-site meetings with members to discuss bargaining issues.

PSAC had filed a similar complaint in the last round of collective bargaining, which was also allowed by the Board. The Board had found the employer’s refusal to grant the union access to the worksite to violate the Public Service Labour Relations Act, and the Board ordered the employer to cease denying access in the absence of a compelling and justifiable business purpose.

In the more recent complaint, PSAC complained again that the employer was denying access to the worksite without any business justification; instead, the employer was simply relying on its property rights, and the limited rights of the union to enter the employer’s premises in the Collective Agreement. The union argued that the employer’s position showed a blatant disregard for the final and binding decision in the previous case.

In its decision, dated September 14, 2016, the Board again found in favour of the union. The Board held that the union had a legitimate interest in the negotiator viewing the worksite, and that the employer had not presented any compelling or justifiable reasons to deny access. The Board therefore allowed the complaint, and ordered the employer to cease denying access in the absence of compelling and justifiable business reasons that such access might undermine its legitimate workplace interests.

This is a significant victory for unions in the federal public service, and provides important affirmation of the union’s interest in gaining a better understanding of working conditions on the ground and meeting with members during collective bargaining.

The union was represented in the complaint by Amanda Montague-Reinholdt of RavenLaw.

Several media outlets have reported on the class action lawsuit filed on Monday by members of It’s Just 700, a Canada-wide online resource and peer support group for survivors of Military Sexual Trauma (MST). The representative plaintiffs, Amy Graham, Nadine Schultz-Nielsen, and Larry Beattie, have given interviews about their experiences in the Canadian military and the reasons they have decided to come forward and pursue justice on behalf of victims of sexual assault and sexual harassment in the Canadian Armed Forces.

You can read more about the lawsuit here:

CBC News: Ex military members go to court alleging sexual assaults, misconduct

CTV News: Class-action lawsuit launched against military over alleged sexual misconduct

iHeart Radio: Military & Veterans Group Filing Class Action over Sex Assaults

L’actualité: Agressions sexuelles dans l’armée : la résistance s’organise

Radio-Canada: Agressions sexuelles : recours collectif contre l’armée canadienne

Ottawa Now with Evan Solomon: LISTEN: Military Veterans launching lawsuit against Feds after Sex Assaults while on duty

CTV News: Former Armed Forces member shares tale of alleged sexual assault

If you or a family member are a current or former member of the Canadian Armed Forces who has experienced sexual assault or sexual harassment in the military, you can contact our firm at armedforcesclassaction@ravenlaw.com. 

For media inquiries, please contact Andrew Raven at 613-567-2902 or araven@ravenlaw.com.

Please note our office will be closed from December 24, 2016 until January 2, 2017. We will reopen for regular business hours on Tuesday, January 3, 2017 at 8:30 am.

Warmest wishes for a happy holiday season and a wonderful new year.

In a recent judgment, the Federal Court overturned a decision of the Canadian Human Rights Commission, and delivered a strong rebuke of the Commission’s continued mishandling of a human rights complaint. This judgment affirms the importance of a complainant’s right to be heard, and calls upon the Commission to improve its procedures.

Background

The complainant, Michele Bergeron, had filed two human rights complaints with the Canadian Human Rights Commission. First, she had complained that her employer failed to accommodate her on the basis of her disability. Later, she complained that the employer retaliated against her for filing the first complaint. Both complaints were initially dismissed by the Commission. However, the Federal Court overturned the dismissal of the retaliation complaint, because of a glaring error in the Commission’s procedure. The Commission typically prepares an investigation report regarding a human rights complaint, which is submitted, along with the parties’ comments, to the Commissioner for a decision. In this case, the Commission had prepared two separate reports, one for each complaint. However, the Commission’s decision dismissing the retaliation complaint quoted from the report for the first complaint.

The Federal Court found that the decision, relying on reasons related to a completely separate complaint, could not stand. The retaliation complaint was therefore returned to the Commission, where it was dismissed a second time. Ms. Bergeron filed a second application for judicial review to the Federal Court, alleging that, once again, the Commission had committed significant procedural errors in her case. 

Federal Court judgment

In Bergeron v Canada (Attorney General), the Federal Court once again struck down the Commission’s decision, on the basis that the Commission had committed multiple serious breaches of procedural fairness. First, the Court found that the Commission rendered its decision based on an inaccurate record: the Commission had included in the record the Applicant’s submissions from the first complaint, rather than her submissions regarding the retaliation complaint. The Court found this to be a clear breach of fairness: “one may with considerable confidence say that little if anything is more fundamental in administrative law than the requirement that a decision-maker hear both sides of a dispute. Yet here the Commission breached this fundamental rule of natural justice.”

Second, the Court found that the Commission had also failed to review a final set of submissions filed by the Applicant, because those submissions had expressly identified the error in the record. The Court noted that, if the Commission had reviewed the Applicant’s final submissions, “it is inconceivable that, in such circumstances, the Commission would continue to consider – let alone decide – this case without first obtaining the Applicant’s missing submissions on the case.” On the basis of these fundamental errors, the complaint was sent back to the Commission for reconsideration.

Canadian Human Rights Commission criticized

In his judgment, the Honourable Justice Brown had some strong words for the Commission regarding its overall handling of Ms. Bergeron’s complaint. He noted the uncontested evidence that a member of the Commission’s staff had told Ms. Bergeron, when the complaint was referred back to the Commission, that the Commission would simply be correcting a “cut and paste” error. He found that “these comments do not describe conduct I would expect from staff of the Commission”, and stated: “Commission staff should avoid appearing dismissive as was the case here.”

Justice Brown also emphasized that the Commission’s decision regarding this complaint has now been struck down twice for procedural unfairness, noting: “It appears to me, with all due respect, that there is room for improvement in the Commission’s Early Resolution procedures”. Regarding the third consideration of the complaint, he admonished the Commission: “It should be done properly this time.” This judgment provides an important reminder that the Commission’s gate-keeping role impacts complainants’ fundamental rights, and therefore the Commission must perform that role with diligence and care.

The Applicant was represented in this application by Amanda Montague-Reinholdt of RavenLaw.

On December 22, 2016, the Federal Court issued an interim Order in response to an application filed by 14 federal public service unions regarding the pay problems faced by their members since the implementation of the Government’s new pay system, known as Phoenix, in early 2016.

The order outlines a number of steps that the federal government must take to resolve the pay issues. These include sharing information in an open and transparent manner through the Union Management Consultation Committee, making Phoenix experts available to the Committee, maintaining a dedicated team of compensation advisors to address pay disruptions related to disability, maternity, and paternity leaves, and ensuring that individuals in these situations are not denied access to emergency replacement pay on the basis that they are on a period of leave. The interim Order provides additional protections to employees advancing individual claims for compensation and is without prejudice to the rights of the Unions should it become necessary to address the application on the merits.

The unions were represented in this application by Andrew Raven, Andrew Astritis, and Morgan Rowe of RavenLaw.

In a recent decision, the Federal Court quashed a decision on behalf of the Minister of Labour, in which the Minister had refused to investigate the work refusal of a federal public service employee.

The Applicant employee had notified her employer that she was refusing to work for health and safety reasons in February 2015. On May 13, 2015, the Labour Affairs Officer assigned to the Applicant’s case completed a memorandum recommending a finding of dangerous work. Nonetheless, on July 13, 2015, the Applicant was advised that the Minister was declining to investigate her work refusal on the basis that her concerns were better addressed through a grievance.

In its January 31, 2017 decision, the Federal Court held that the Minister’s decision was unreasonable. The Court found that the decision-maker had offered no transparent or justifiable explanation for rejecting the Labour Affairs Officer’s recommendation or for concluding that the grievance process was a more appropriate way to address the Applicant’s concerns.

In reaching its conclusion, the Court also highlighted the importance of ensuring that refusals of unsafe work are dealt with in a timely manner, through the specialized process established under the Canada Labour Code, noting that it found the Applicant’s submissions on these points persuasive.

The Applicant was represented in this application by Andrew Raven and Morgan Rowe of RavenLaw.

RavenLaw reminds all interested students that applications for the 2017 Human Rights/Social Justice Internship are due this Friday, January 20, 2017. This is the 12^th consecutive year that this paid internship has been sponsored by the firm. This exciting opportunity will provide an excellent and meaningful summer work experience to law students who are particularly interested in issues pertaining to social justice, human rights or equality rights.

This year’s partner organizations are the Economic and Social Council of Ottawa-Carleton (CESOC – le Conseil Économique et Social d’Ottawa Carleton) and the Feminist Alliance for International Action (FAFIA). Interested students from the University of Ottawa’s Faculty of Law (common law) should contact Mélanie Clément at m.clement@uottawa.ca for more information on the internship or directions on how to submit their application.

In a recent judgment from the Federal Court of Appeal, the Court has provided some needed clarification regarding the interpretation of the Public Servants Disclosure Protection Act. Sylvie Therrien was a whistleblower who went public with information regarding the use of quotas in order to reduce employment insurance costs. Eventually, Ms. Therrien was suspended, had her reliability status revoked, and was terminated. Ms. Therrien filed grievances against those three actions which proceeded before an adjudicator from the Public Service Labour Relations and Employment Board. None of the grievances alleged reprisal, however.

Ms. Therrien filed a complaint with the Public Sector Integrity Commissioner alleging that each of these actions also represented reprisal for her public disclosure. Upon receipt of the complaint, the Commissioner’s Office refused to assess it on the basis that it was being dealt with as part of the grievance process.

In its January 17, 2017 decision, the Court of Appeal set aside the Commissioner’s decision. The Court made two important rulings. First, the Court said that the Commissioner could not refuse to deal with a complaint simply because the actions in the complaint are referred to in some other proceeding. Rather, the Commissioner has an obligation to determine whether that other proceeding would actually deal with the reprisal allegations on their merits.

Second, the Commissioner’s Office had advised Ms. Therrien’s counsel that it would be assessing the admissibility of the complaint on the basis of one section of the Act but then decided not to deal with the complaint on the basis of another section of the Act. The Court found that this was procedurally unfair.

Although the matter has been sent back to the Commissioner’s Office to be dealt with, the Commissioner has decided to hold the complaint in abeyance pending the outcome of Ms. Therrien’s adjudication proceedings.

Ms. Therrien is represented by David Yazbeck of RavenLaw, in both the reprisal complaint and the grievances.

On February 28, 2017, Morgan Rowe presented a webinar for the Canadian Association of Occupational Therapists on disability rights and advocacy. The presentation focused on the duty to accommodate disability, the legal and non-legal ways that people with disabilities can advocate for accommodation, and the role of medical professionals in accommodation processes.

David Yazbeck has recently been appointed as a member of the Advisory Committee for the Queen’s Centre for Law in the Contemporary Workplace. This committee is composed of leaders in the field of workplace law. It is a tremendous resource for the Centre, providing advice on emerging issues, on research and conference activity and linking the Centre and its work to diverse professional communities with an interest in workplace law. Launched in 2010, the mission of the Centre is to advance law and policy in the contemporary workplace. Its vision is to be a leading force for innovation and law, policy and dialogue in the contemporary workplace.