On February 23, 2015, Morgan Rowe spoke to the University of Ottawa Law School’s disability law class about issues related to accommodation and inclusion facing young Canadians with disabilities. Morgan’s presentation focused on disability accommodation issues in employment, education and transportation. The presentation also involved discussion of the findings of the study outlined in Morgan’s book, Exploring Disability Identity and Disability Rights Through Narratives, which was co-authored with University of Ottawa Professor Ravi Malhotra.

The partners of Raven, Cameron, Ballantyne & Yazbeck are pleased to announce the selection of the successful 2015 Raven, Cameron, Ballantyne & Yazbeck Human Rights/Social Justice Internship candidate, Jacob Saltiel. Jacob is in his second year of studies at the University of Ottawa, Faculty of Law. Jacob has had excellent experience in Access to Justice issues as well as issues concerning refugee rights. He currently serves as Vice-Chair of the Canadian Association of Refugee Lawyers, uOttawa Chapter and is an assistant editor with the Ottawa Law Review. We congratulate Jacob on his achievement and look forward to working with him this summer when the internship takes place.

This is the tenth consecutive year that our firm has offered this Human Rights/Social Justice internship. Every summer, we provide paid employment to a student from the University of Ottawa Law School with placements in our firm and two social justice or human rights organizations. This year, Jacob will be working with the Workers History Museum and with the Broadbent Institute. Previous placements for our internship have included the International Development Research Centre, EGALE Canada, Amnesty International, the Ottawa Coalition to End Violence Against Women, the Council of Canadians, REACH Canada, and many other organizations which provide significant contributions in the areas of social justice and human rights.

On February 11, 2015, Arbitrator Randi Abramsky issued a decision interpreting the job posting provisions under the central agreement between Ontario Hospitals and the Ontario Council of Hospital Unions/CUPE. Specifically, Arbitrator Abramsky found that postings, whether electronic or paper, must be accessible to ensure that the purpose of these provisions – which is to ensure that Unions and employees are aware of available bargaining unit openings so they may apply for them and exercise their seniority rights – is met.

For over thirty years, the practice at the Health Sciences North (“Hospital”) was to post job opportunities on a physical bulletin board. In 2013, the Hospital unilaterally ended this practice and began posting job opportunities exclusively through a web portal that it had developed. The new system was complex and required employees to follow several steps before being able to access the job postings. The Canadian Union of Public Employees (“CUPE”), Local 1623, challenged the Hospital’s decision as many of its members were unable to access the new system.

Arbitrator Abramsky concluded that there was “evidence that some senior employees’ ability to exercise their seniority to apply for job postings has been diminished by the new online posting system.  The system utilized requires at least a minimal level of computer-use knowledge to access job postings. It is far less accessible […]”

The arbitrator ordered the Hospital to use a posting system that employees are able to access and consequently, “for the time being and until a more accessible electronic system is devised, the Employer must continue to post job openings on the physical bulletin board, in addition to posting them online.”

CUPE, Local 1623 was represented by its President, Dave Shelefontiuk, and Wassim Garzouzi from our firm.

On February 13, 2015, Wassim Garzouzi spoke at the Network of Persons with Disabilities, organised by Reach Canada on the topic of “Duty to accommodate: Family Status.” The bilingual event was attended by over 250 participants from across the country.

Reach Canada has offered lawyer referrals and public education for individuals living with disabilities since 1981. Our firm is a long-term, proud supporter of REACH and its mission to improve the quality of life for citizens with disabilities.

On November 20, 2014, the Stronger Workplaces for a Stronger Economy Act, 2014 (formerly Bill 18), received royal assent in Ontario, but some of the enacted changes to the Employment Standards Act were delayed coming into force. Tomorrow, February 20, 2015, important changes to employment law legislation will take effect.

Elimination of the $10,000 cap on recovery for unpaid wages

Previously, there was a $10,000 maximum cap on orders for unpaid wages to an employee under the Employment Standards Act. Pursuant to the changes in Bill 18, there is no longer a monetary limit on employment standards officers’ orders for wages, and employees will no longer be forced to pursue larger claims through the courts.

Increase to time limits to bring complaints for unpaid wages or vacation pay

Additionally, the amendments in Bill 18 that are about to come into force will increase the time limits on when an employee can file a complaint to recover unpaid wages to two years from the previous six month limitation period. The time limit within which vacation pay can be recovered under the Act has also been increased to 12 months from six months. These changes are subject to a two-year transition period regarding claims that arose before these amendments came into effect.

Contact us about using the Employment Standards Act complaint mechanism

If you believe you may have a claim for unpaid wages or vacation pay, you should consult the employment law lawyers at Raven, Cameron, Ballantyne & Yazbeck LLP to determine the best means of recourse, recognizing that these legislative changes may allow for a practical and effective means of recovery by bringing a complaint under the amended Employment Standards Act regime.

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

On February 10, 2015, Andrew Raven and Andrew Astritis wrote a guest blog post for the Broadbent Institute on the Supreme Court of Canada’s recent decision confirming the right to strike in Saskatchewan Federation of Labour v Saskatchewan. The blog post, available here, provides a summary of the Court’s decision and its broader implications for the labour movement.

It has long been established in labour arbitration jurisprudence that, when presented with a grievance concerning discipline, the employer bears the onus of demonstrating just cause for that discipline. In order to determine whether there is just cause for termination or another disciplinary sanction, Arbitration Boards will consider several factors which include, not only the factual circumstances, but also any aggravating and mitigating factors.

Recently, an Arbitration Board in Nova Scotia failed to properly apply the onus when considering whether an employer had just cause to terminate a unionized employee. In arriving at its conclusion to dismiss the grievance, the Arbitration Board found as follows:

Having found that the Employer had grounds to discipline the Grievor there remains the question of whether the termination of the Grievor was the appropriate response.

The onus is on the Grievor to show mitigating factors that should be taken into account if the penalty of discharge is to be substituted with another penalty.

The employee’s union, the Public Service Alliance of Canada, was concerned about the latter paragraph which indicated that the Arbitration Board improperly shifted the onus to the employee to prove that termination was not the appropriate penalty. The union applied for judicial review of the Arbitration Board’s decision to the Supreme Court of Nova Scotia. In its decision, Public Service Alliance of Canada v Commissionaires Nova Scotia, 2014 NSSC 286, the Court agreed with the union, holding:

The Board did not engage in the necessary analysis of the grounds for discipline, whether the misconduct was sufficiently serious to warrant a penalty as severe as discharge. The Board did not articulate both mitigating and aggravating factors and weigh these against the seriousness of discharge to determine if the respondent had met its burden.

The Board seems to have assumed the seriousness of the conduct warranted the penalty of discharge and then looked to the appellant to show why anything but discharge should be considered.

This is not the appellant’s burden. The Board has failed to discuss the substitution of the lower penalty by reviewing any mitigating factors, except long service. The Board did not weigh other factors in evidence, such as a previously clear discipline record or evidence of good character. Had the Board performed this analysis they may well have still concluded that no lesser penalty was appropriate, particularly in light of the grievor’s outright denial and lack of remorse.

The burden of proof on the employer in discipline and discharge cases is important: the relevant information regarding why the employee was terminated usually resides almost exclusively in the hands of the employer. Moreover, in the unionized context, where employees may only be terminated with just cause, employers must be held to their onus of proving that just cause existed when the union challenges the basis for the termination.

While one might assume that the onus in discipline cases is well established, and Arbitration Boards will properly apply the burden of proof, the judgment of the Supreme Court of Nova Scotia in this case affirms that the courts are willing to intervene on judicial review to ensure that arbitrators do, in fact, approach disciplinary grievances in the appropriate fashion.

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

For a number of years, Raven, Cameron, Ballantyne & Yazbeck has been an institutional member of the Board of Directors of the Workers’ History Museum. The museum held its annual general meeting on February 23, 2015 and the firm, through one of our partners, David Yazbeck, was confirmed as a Board Member again.

In addition to supporting the museum as a Board Member, David has been granted the title of Patron by the museum in recognition of the work he has done, and continues to do, for the museum.

The Workers’ History Museum was founded in 2011 with the goal of developing and preserving workers’ history, heritage and culture in the National Capital Region and Ottawa Valley.

Oftentimes, employees will chafe when they are asked to sign confidentiality agreements limiting their ability to talk about a settlement reached regarding the termination of their employment. Many employees feel (perhaps rightly) that doing so allows the employer to avoid a public shaming for its behavior.  In the end, most employers insist upon confidentiality as one of the terms of the settlement, and they regularly include recourse for themselves if there is a breach of those terms. Recently an arbitrator and the Divisional Court in Ontario confirmed the importance of complying with the obligations in a settlement agreement.

In her book, Out of the Blue, Jan Wong chronicles her experience with workplace depression. Topics canvassed in the book include her struggle to obtain disability benefits, the termination of her employment and, ultimately, her recovery.  After a protracted dispute, Ms. Wong’s union succeeded in securing six months of sick-leave pay and a sizeable lump sum payment, equivalent to two years’ wages.  In exchange, Ms. Wong signed an agreement imposing certain obligations on her, including the obligation “not to disclose the terms of this settlement.”

The employer argued that, with the publication of Out of the Blue, Ms. Wong breached the confidentiality agreement. In her book, Ms. Wong disclosed that her employer paid her “a pile of money to go away”. She also wrote about receiving a “big fat cheque” and having a “vastly swollen bank account.” The employer brought the matter back in front of an Arbitrator, who concluded that Ms. Wong breached the conditions of settlement. She was therefore ordered to repay the settlement monies to her employer.

Ms. Wong applied for judicial review of the Arbitrator’s decision, but her application was recently dismissed by the Ontario Divisional Court in Wong v The Globe and Mail, 2014 ONSC 6372 . The Court stated, “The deal under the [settlement agreement] was clear. The Globe and Mail was to pay a large lump sum and the applicant was to stay quiet about the payment.” Justice Nordheimer concluded: “I cannot find any fault in the Arbitrator’s conclusion…in fact, it is hard to see how the Arbitrator could have concluded otherwise.”

The decisions of the Arbitrator and the Divisional Court offer an important lesson to any employee entering a settlement regarding the termination of their employment or a similar legal issue: when signing a settlement agreement, ensure you fully understand your continuing obligations, including an obligation to keep the terms of the settlement confidential. If you are considering a settlement or a severance offer, you should review its terms carefully with an employment lawyer to ensure you know your obligations, and the consequences of breaching those obligations.

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

On March 11, 2015, Andrew Astritis presented a lecture to a class of third year students in Carleton University’s Legal Studies program on Human Rights and Employment Law. The lecture provided a broad introduction to the protections provided by human rights legislation in the employment context, including the obligations on employers to accommodate employees to the point of undue hardship.