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Statement of Claim filed in Canadian Armed Forces sexual misconduct class action

The group of former military members who launched a class action regarding sexual misconduct in the Armed Forces has now filed a Statement of Claim in the Superior Court of Ontario. Amy Graham, Nadine Schultz-Nielsen, and Larry Beattie filed their full Statement of Claim on December 13, 2016, setting out their personal experiences of sexual assault and harassment, as well as the remedies that they are seeking on behalf of all class members.

The class action covers all current and former members of the Canadian Armed Forces who have experienced sexual assault, sexual harassment and abuse of power in the course of their education, training and service in the military. The Statement of Claim seeks compensation for affected members, as well as declarations and systemic orders against the government to change a system that condones a culture of sexual misconduct and punishes victims instead of perpetrators.

You can read more about the Statement of Claim here:

• CBC News: Sexual-misconduct lawsuit against Armed Forces alleges ‘reckless’ conduct

• Radio-Canada: Les Forces canadiennes visées par un recours collectif de 1 milliard de dollars

• Le Journal de Montréal: Un recours collectif d’un milliard $ contre l’armée

For more information, or if you or your family member may be affected by the class action, you can contact Raven Law at armedforcesclassaction@ravenlaw.com.

 

Human Rights/Social Justice Internship

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 12th 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.

 

Federal Court issues Interim Order in Phoenix Pay System case

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.

Wilson v Atomic Energy of Canada Ltd: The victory for workers that almost wasn’t

Last month, the Supreme Court of Canada delivered the latest in a recent line of landmark victories for workers’ rights. In Wilson v Atomic Energy of Canada Ltd, the Court restored the decision of a Canada Labour Code adjudicator that non-unionized employees under federal jurisdiction cannot be dismissed from their employment without just cause. After the opposite conclusion was reached by both lower courts, and by a minority of the Supreme Court, it is worth reflecting on how close federally regulated employees came to losing such a significant right.

Background

Joseph Wilson was terminated from his employment with Atomic Energy of Canada Ltd. in 2009. The employer did not purport to have just cause for the termination, but rather stated that the reason for dismissal was “on a non-cause basis” with “a generous dismissal package”. Mr. Wilson filed an unjust dismissal complaint pursuant to the Canada Labour Code. The adjudicator found that employers under this regime cannot make a termination “just” by offering severance packages; rather, an employee can only be terminated if there is just cause.

The employer applied for judicial review of this decision to the Federal Court. The Court allowed the application, finding that nothing in the Code prevented employers from dismissing non-unionized employees on a without-cause basis and offering a severance package. The Federal Court of Appeal agreed.

Supreme Court’s judgment

In a 6-3 split decision, the Supreme Court allowed the appeal and restored the adjudicator’s decision. There were four separate sets of reasons in the judgment, with the majority of the Court concurring with the reasons of Justice Abella on the merits of the appeal.

Justice Abella held that the standard of review for this decision was reasonableness, and that deference was owed to the expertise of labour adjudicators under the Code. She held that the adjudicator’s decision in this case was reasonable, and was consistent with the purpose of the scheme under the Code, which was intended to provide non-unionized employees with similar protections available to unionized employees, as confirmed by statements from the Minister of Labour when the legislation as introduced. She further found that the adjudicator’s approach was consistent with the overwhelming majority of past adjudications since this regime was enacted.

The dissenting judges of the Court held that the standard of review was correctness. They found that the unjust dismissal regime under the Code was simply a procedural option for federal employees, and did not alter the common law approach to dismissal of non-unionized employees. They concluded that a dismissal without cause is not unjust per se, if adequate notice is provided.

Discussion

Wilson is a remarkable decision for a number of reasons: it affirmed the deference owed to administrative decision-makers interpreting their home statutes; it sparked a lively debate among the Supreme Court bench as to whether or not the standard of review analysis from Dunsmuir needs to be re-examined; and it restored likely the most significant employment right for non-unionized employees in any jurisdiction in Canada. Perhaps the most remarkable aspect of the Wilson judgment is how close we came to the opposite result.

Labour adjudicators have been ruling on unjust dismissal complaints under the Code for nearly forty years. As we learned from the Supreme Court’s judgment, there have been more than 1740 adjudications and decisions under this regime. Of those, only 18 decisions departed from the approach adopted by the adjudicator in Mr. Wilson’s case, and held that employees could be dismissed without just cause.

One would think that this number was so low, it could be easily dismissed as an outlier position. And yet, on the strength of essentially 1% of the decisions rendered on this issue, the entire unjust dismissal regime was nearly upended. The Federal Court held that the conclusion that employees could only be terminated for just cause was unreasonable. The Federal Court of Appeal held that, because there was such a deep jurisprudential conflict on this issue, the Court must intervene and pronounce upon the correct interpretation. Its chosen interpretation sided with the 18 decisions out of 1740.

Justice Abella flatly rejected the notion that this amounted to a conflict in the case law: “What we have here is a drop in the bucket which is being elevated to a jurisprudential parting of the waters.” Moreover, she unequivocally endorsed the approach of the adjudicator in Mr. Wilson’s case, finding not only that it was reasonable, but that the opposite approach was unreasonable and contrary to the purpose of the Code’s protections.

However, even at the Supreme Court level, three of the nine judges held that the correct approach under this scheme permitted non-unionized employees to be dismissed without cause. In other words, if two members of the Supreme Court had gone the other way, the right of tens of thousands of employees across Canada not to be dismissed without just cause would have been permanently lost.

Other than simply breathing a sigh of relief that the right result was reached, what should workers’ advocates take away from this case? Here are three thoughts:

  • First, when lobbying for employment rights in legislation, emphasize clarity. If the Code expressly stated that employees can only be dismissed for just cause, this litigation would have been unnecessary.
  • Second, even rights that appear solid and longstanding can never be taken for granted. Forty years of case law can be overturned by one well-placed application for judicial review.
  • Third, and related to the second, rights need to be actively protected, which requires good advocacy and resources. All federally regulated employees and their advocates should think about the consequences if Mr. Wilson, and those representing and supporting him, had not taken this case all the way.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

Wassim Garzouzi Elected as Vice-President for the Canadian Association of Labour Lawyers

Wassim Garzouzi was elected as Vice-President (Ontario) for the Canadian Association of Labour Lawyers at CALL’s annual conference in St. John’s, Newfoundland from June 2 to 5, 2016. Wassim is thankful for the support he received and looks forward to representing CALL’s Ontario members.

CALL’s mission is to connect union-side labour lawyers across Canada and to advocate for the legal interests of Canadian workers and labour organizations before provincial and federal governments, labour boards, and all levels of court.

Wassim Garzouzi Presented on Stopping Sexual Harassment

On June 16, 2016, Wassim Garzouzi spoke as part of Lancaster House’s audio conference on Stopping Sexual Harassers Cold: Optimal practices for complaint procedures, investigations, and survivor support. The program addressed how to identify sexual harassment, best practices for investigating complaints, and internal procedures and outside resources that can help fractured workplaces. The audio conference also covered the factors that arbitrators and human rights tribunals consider when assessing damage awards for harassment.

 

David Yazbeck Interviewed on Federal Human Rights Reform

David Yazbeck recently spoke with the Canadian Bar Association’s National magazine regarding reform of the Canadian Human Rights Tribunal.

In his interview, David recommended an end to the federal system’s current two-step screening process for dealing with human rights complaints and the creation of a direct access model, like the one used in Ontario. He also commented on the importance of appointing members to the Tribunal who have expertise in and sensitivity to human rights matters.

Morgan Rowe to Present at Council of Canadians with Disabilities Conference

On November 30, 2016, Morgan Rowe will present at the 2nd Annual Council of Canadians with Disabilities Conference. This year’s topic is “Strategies for Competent and Ethical Disability Law Advocacy.” Morgan will be presenting on issues related to inclusive legal services and accommodating clients with disabilities.

CCD is a national human rights organization of people with disabilities working for an inclusive and accessible Canada.

More information regarding the conference can be found here.