On November 25, 2015, David Yazbeck will be speaking as part of a panel on “Human Rights Violation at the Healthcare Workplace: How to Handle Harassment, Bullying and Discrimination” at the National Healthcare Labour & Employee Relations 2015 conference. The panel will discuss the legal obligations of employers to protect human rights at the workplace, how to conduct a proper investigation of harassment, bullying or discrimination at the workplace, and the union’s role in the protection of human rights at the workplace. David is also a co-chair of the conference.

On October 29, 2015, Morgan Rowe and Dayna Steinfeld will be presenting a LEAF at Work workshop at the Glebe Collegiate Institute. LEAF at Work is a one-hour workshop for high school students focused on equality rights and issues of discrimination and harassment in the workplace.  

LEAF – the Women’s Legal Education and Action Fund. LEAF is a Canadian non-profit organization, formed in 1985, that works towards advancing the equality of women and girls in Canada through using the Canadian Charter of Rights and Freedoms. LEAF’s work focuses on litigation, law reform efforts and public legal education programs.

The Ontario Court of Appeal recently heard the appeal brought by the Public Service Alliance of Canada challenging the constitutionality of the Expenditure Restraint Act. This legislation was introduced by the Federal Government in 2009 to cap wage increases in future collective agreements and roll-back increases previously agreed to by the parties in existing collective agreements. The appeal is one of three being heard across the country with respect to this legislation.

PSAC was represented by Andrew Raven and Andrew Astritis of our firm.

Andrew Astritis will be speaking at the Ontario Bar Association’s Annual Update on Human Rights, which will take place on Friday, May 29, 2015. Andrew’s presentation will address the Canadian Human Rights Commission’s screening process under the Canadian Human Rights Act, including recent decisions setting out the procedural protections for complainants in this process. For more information on the conference please visit the OBA’s website.

We are very proud to announce that Elyssa Yoo has been awarded this year’s Raven, Cameron, Ballantyne & Yazbeck LLP Prize for achieving the highest standing in the Human Rights Laws in Canada course at the University of Ottawa Faculty of Law, Common Law Section.

Every year, our firm sponsors a prize for the student who achieves the highest standing in the “Human Rights Laws in Canada” course at the law school. Human rights law is a fundamental component of our legal system and a major component of our law practice. It is important to recognize achievements in this area, and to encourage students to pursue human rights law when they practice.

Congratulations Elyssa, and best of luck in your legal career!

In a recent decision, the Federal Court of Appeal revived a pay equity complaint made by the Public Service Alliance of Canada (“PSAC”) on behalf of workers in certain female-dominated groups at Nav Canada. PSAC filed the complaint in 2002, but the Canadian Human Right Commission dismissed the complaint without an investigation in 2012. In its decision of July 28, 2015, the Federal Court of Appeal ruled that the Commission’s decision was unreasonable and sent the complaint against Nav Canada back to the Commission for further proceedings.

The Nav Canada employees received pay equity cheques for the years 1985 – 1996, years when they worked for Transport Canada, but did not receive wage adjustments for the years following the creation of Nav Canada in 1996. This has meant that the Nav Canada workers have lost out on the full benefits of a 1999 pay equity settlement between PSAC and the government. As counsel for PSAC, Andrew Raven of RavenLaw, told the Ottawa Citizen, the Court’s decision “has important implications for all pay equity complainants” and could make it possible for the Nav Canada employees to receive retroactive wage adjustments for the years between 1997 – 2011.

PSAC was represented at the Federal Court of Appeal by Andrew Raven and Amanda Montague-Reinholdt of RavenLaw.

In its decision in Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10, released earlier this year, the Supreme Court of Canada examined the test applicable for cases of constructive dismissal, as well as the defences available to such a claim. The Court’s decision provides new clarity in some areas, while leaving certain questions unanswered.

Background

The Appellant, Mr. Potter, was suspended with pay from his functions as Executive Director of the New Brunswick Legal Aid Services Commission without reasons. The Commission, at the time of the suspension, was seeking the government’s permission to terminate his employment with cause. Mr. Potter filed a suit for constructive dismissal against the Commission. He lost at both the trial and appellate levels, with the lower courts rejecting his claim that the indefinite suspension without pay amounted to constructive dismissal. The Supreme Court allowed the appeal and found in Mr. Potter’s favour, although the majority and minority disagreed on the basis of this result.

Majority’s Decision

The majority held that there are two tests by which a finding of constructive dismissal can be made. In both cases, the burden of proof will be on the employee to establish on an objective basis that the test has been met.

The first test is composed of two parts:

a) Identifying an expressed or implied contractual term that has been unilaterally breached. This is an objective test; if the authority to make the change exists or consent is given, then there will be no breach; and

b) Determining whether the breach was sufficiently serious to constitute constructive dismissal. Typically, issues of compensation, work assignments or place of work are raised. All are questions of degree.

The second test is: Looking at the conduct of the employer, in light of all of the circumstances, and determining whether a reasonable person would conclude that the employer no longer intended to be bound by the terms of the contract. The employee is not required to point to a specific breach of the contract, but rather whether the course of conduct cumulatively amounts to an actual breach.

The majority applied the first test for constructive dismissal to the facts of an administrative suspension. It held that if the employer is unable to establish that the suspension is justified, then the first branch of the first test is met. The question of whether the suspension is justified includes consideration of: the duration of the suspension, whether pay is continued, whether the decision is made in good faith, and whether there is a legitimate business reason. The Court found that in most cases where the suspension is unauthorized, such a suspension will also amount to a “substantial change” such that the second branch of the first test is also met. Any exceptions would likely be for suspensions that are particularly short in duration.

In Mr. Potter’s case, the majority found that there was an indefinite suspension with no valid business reason to suspend and that it had not been made in good faith. The suspension was therefore not justified and both branches of the first test had been met.

Minority’s Decision

The minority adopted a somewhat different analysis. It noted that the whole of wrongful dismissal law is grounded in broader contract law principles relating to repudiation and anticipatory breach. It stated that constructive dismissal can be shown either by showing a significant breach going to the root of the contract or by conduct which demonstrates the employer no longer intended to be bound by the contract.

The minority found that the trial judge erred by failing to recognize that the employer can repudiate the contract of employment other than by breaching an important term of the contract. Even if the suspension on its own is not sufficiently serious to constitute repudiation, in light of all of the circumstances, the employer’s conduct had manifested an intention not to be bound by the terms of the contract in the future. The surrounding circumstances, taken as a whole, clearly demonstrated intent by the employer to repudiate the contract.

New answers and remaining questions in constructive dismissal

The Supreme Court used this opportunity to reiterate some key concepts, set out some new directions and signal areas that remain in dispute:

• Emphasis on the importance of work: The Court made several comments on the importance of an employee’s work: “The employer does not have an unfettered discretion to withhold work” (para 82). Work is considered to be “one of the most fundamental aspects in a person’s life, providing the individual with the means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his/her sense of identity, self-worth and emotional well-being” (para 83). “No employer is a liberty to withhold work from an employee either in bad faith or without justification” (para 85). As a result, a suspension, even if it is with pay, can constitute constructive dismissal.
• Deduction of pension payments: The Court clarified that an employer is not entitled to deduct pension payments from constructive dismissal damages.
• Disagreement re: evidence not known to employee: The majority and minority differed as to whether an employee can rely on evidence which exists, but is unknown to the employee at the time, to show that the employer intended to repudiate the contract. The majority found that a court must not consider evidence that was neither known to the employee nor reasonably foreseeable. The minority disagreed and found that the trial judge erred by excluding the employer letter seeking the dismissal for cause of Mr. Potter, even though he was unaware of the existence of the letter at the time: “to exclude this evidence from consideration, as I see it, would be to make the employee’s right to claim constructive dismissal depend on whether the employer succeeded in concealing his/her true state of mind. Happily, the authorities do not support that unattractive position” (para 173).
• No answer on resignation issue: The Court declined to deal with the issue of whether an unsuccessful constructive dismissal suit by the employee automatically constitutes a resignation of employment. This question is thus left unanswered for future cases.

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

In Ottawa, many workers believe themselves to be “independent contractors” either because they prefer this characterization or because their employers have described them in those terms. Unfortunately, both might be incorrect and being improperly considered an independent contractor when you are actually an employee can have weighty implications for your annual tax payments and also your legal entitlements if and when the employment relationship ends.

What’s in a name?

Like our dear (albeit impulsive) Juliet, who recognized early on “that which we call a rose by any other name would smell as sweet”, the Ontario courts have long recognized that, when it comes to a potential employer-employee relationship, it is not the title one is assigned, but rather the nature of the relationship that is determinative.

To complicate matters further, the courts have created a third category between employees and independent contractors: these individuals are named “dependent contractors”. Once again, the crucial question is the nature of relationship.

Factors for determining if you are an employee or a contractor

To determine the relationship between the parties, one must first determine whether an employment relationship exists. The leading case on the first step is 671122 Ontario Ltd. V. Sagaz Industries Canada Inc., [2001] 2 SCR 983. According to that case,  the central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. The Court also identified the following (non-exhaustive) factors to consider:

[i] whether the worker provides his or her own equipment,

[ii]whether the worker hires his or her own helpers,

[iii] the degree of financial risk taken by the worker,

[iv] the degree of responsibility for investment and management held by the worker, and

[v] the worker’s opportunity for profit in the performance of his or her tasks.

If those factors signal that the worker is a contractor rather than an employee, the second step in the inquiry is to determine whether the engaged party is an Independent or a Dependent contractor: McKee v. Reid’s Heritage Homes Ltd. 2009 ONCA 916 (CanLII).

In McKee, the Ontario Court of Appeal noted, “the dependent contractor category arises as a ‘carve-out’ from the non-employment category and does not affect the range of the employment category.” The Court held that the most significant factor for identifying a dependent contractor is an exclusive relationship (i.e. the contractor provides his or her services only to one business or enterprise). The Court noted that this factor is also relevant at the first stage of the test:

[T]he proper initial step is to determine whether a worker is a contractor or an employee… Under that analysis, the exclusivity of the worker is listed as a factor weighing in favour of the employee category (Belton’s first principle). The next step, required only if the first step results in a contractor conclusion, determines whether the contractor is independent or dependent, for which a worker’s exclusivity is determinative, as it demonstrates economic dependence. Therefore, exclusivity might be a “hallmark” of the dependent contractor category vis-à-vis the broader category of contractors. However, it continues also as a factor in determining whether the worker is not a contractor at all, but rather an employee, in the first-step analysis.

Implications of being an employee vs contractor

The taxation implications if CRA deems you to be an employee are significant, as are the implications to the employer, who will be then obligated to provide you with employment benefits as per the Employment Standards Act, 2000, as well as make the necessary EI and CPP contributions. If you are not an employee under the law, there may still be important consequences, depending on whether you are characterized as independent vs dependent. The most important consequence is that a “dependent contractor” is owed some form of reasonable notice of termination of employment. Click here  to read more about reasonable notice.

When entering into any employment or contractual agreement, individuals are well advised to obtain independent legal advice in order to fully understand the implications of the agreement they are entering into.

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

RavenLaw’s commitment to the University of Ottawa has been recognized through an invitation by the University to become a member of the Doric Pillar within the University’s philanthropic leaders association, known as the Tabaret Society. The Doric Pillar recognizes the crucial support offered by annual donors to the University.

The Tabaret Society is named after Father Joseph-Henri Tabaret, who is widely considered to be the “builder” of the University of Ottawa. The Society honours those whose philanthropic leadership plays a vital role in forging the leaders of tomorrow.

The 2015 Tabaret Society members will be honoured at a reception at the University of Ottawa on September 30, 2015.

The story of Kim Davis, a Kentucky county clerk who refused to issue marriage licenses to same-sex couples on the basis of her Christian faith, has made headlines across the US and Canada in recent weeks. On September 3, 2015, United States District Judge David Bunning held Davis in contempt, sending the clerk to jail. The controversy continues after her release – court proceedings are ongoing, and Davis returned to work on September 15, ordering her office to alter the marriage license templates to remove her name and title and substitute “pursuant to federal court order”.

While this story has brought widespread attention to the tension between equality rights and religious freedom, the issue of how to reconcile competing rights claims is not new. Increasingly in the years since the Canadian Charter of Rights and Freedoms came into force, Canadian courts have had to grapple with how to resolve this tension. The Saskatchewan Court of Appeal’s decision in the Marriage Commissioners case provides insight into how a Canadian court would address the Kim Davis case in the context of the Charter.

The Saskatchewan Marriage Commissioners Case

On the heels of legal and political developments that legalized same-sex marriage in Canada, some marriage commissioners in Saskatchewan began refusing to solemnize same-sex marriages on the basis that their religious beliefs prevented them from doing so. The issue led to numerous legal proceedings pursuant to the Saskatchewan Human Rights Code as well as a civil court action. The Saskatchewan government proposed two possible amendments to the provincial Marriage Act that would allow marriage commissioners to opt out of performing same-sex marriages, and asked the Saskatchewan Court of Appeal to give its opinion on whether the amendments were consistent with the Charter.

The Court’s Decision

The Court acknowledged that the purpose of the proposed amendments was to accommodate the religious beliefs of marriage commissioners. However, a law can violate section 15 guarantee of equality if the effect of the law is to deny equal protection or benefit. In this regard, the Court held that the effect of the proposed amendments would be to draw a distinction on the ground of sexual orientation – same-sex couples contacting a marriage commissioner to have their marriage solemnized may be denied where a heterosexual couple would not. The Court found that this distinction was contrary to the Charter and that the distinction could not be justified, even though the issue involved the Charter-protected religious freedom of marriage commissioners.

The Kim Davis case through a Canadian lens

The Court’s commentary in the Marriage Commissioners decision provides a good indication of how a Canadian court would deal with a situation similar to the Kim Davis case in Canada. The Court emphasized the fact that marriage commissioners are public office holders and do not act as private citizens when they discharge their official duties. Those duties involve performing secular civil marriage ceremonies. Indeed, a ceremony performed by a marriage commissioner was the only form of non-religious marriage solemnization available in Saskatchewan. As the state must provide services on an impartial and non-discriminatory basis, individuals who voluntarily become public office holders must carry out their duties in line with that basic principle, as opposed to shaping their duties to reflect their personal beliefs.

A court considering the Kim Davis case in Canada would likely emphasize that she is a public office holder, similar to secular marriage commissioners. Her duties therefore include issuing marriage licences in accordance with the law, which now extends marriage equality to same-sex couples. Thus, the court would likely conclude that Davis cannot act upon her religious beliefs in denying marriage licenses, if that act discriminates against the public on the basis of sexual orientation. In essence, the competing rights claim is less of a competition where one side is filling a public and secular role. Although Canadians are free to hold personal religious beliefs, that right does not necessarily extend into the public realm, particularly where significant equality rights are at stake.

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