In a recent decision, the Supreme Court of Nova Scotia quashed an arbitrator’s decision concerning employees’ entitlement to vacation leave in the collective agreement between the Public Service Alliance of Canada (“PSAC”) and Sydney Airport Authority. At issue before the arbitrator was whether the agreement provided that employees on ‘sick leave with pay’ continued to accrue vacation credits. The arbitrator found they did not. PSAC challenged this decision and the reviewing court concluded that the arbitrator’s award was unreasonable. The Court explained that the arbitrator failed to undertake a fulsome analysis of the intentions of the parties within the four corners of the agreement and apply the necessary interpretive principles.

PSAC was represented by Andrew Astritis and Michael Fisher.

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.]

On February 19th, 2015, RavenLaw Articling student, Taylor Akin, joined the Ottawa Rape Crisis Centre’s Board of Directors. The ORCC provides support and counseling to women who are survivors of sexual violence. Taylor has been interested in violence against women initiatives since her undergraduate degree and had the opportunity to take classes on gender-based violence in law school. After a year of volunteering with the ORCC, Taylor is very pleased to be the newest member of the Board.

“Clearly the arc bends increasingly towards workplace justice”: The Supreme Court of Canada today released a landmark decision in Saskatchewan Federation of Labour v Saskatchewan, ruling that section 2(d) of the Canadian Charter of Rights and Freedoms protects workers’ right to strike. In bold and sweeping reasons on behalf of the Majority, Justice Abella outlined the historical, international, and jurisprudential foundations for this right, emphasizing that a right to strike is indispensable to meaningful collective bargaining.

The case itself dealt with legislation from Saskatchewan that granted public sector employers the unilateral authority to identify which employees were prohibited from participating in a strike because they performed ‘essential services’. This legislation – which closely resembles amendments subsequently made to federal public sector labour law – departed from the conventional approach to essential services legislation across the country, in which independent labour boards possess the authority to determine what services are essential, and which employees are required to perform those services.

The Supreme Court concluded that Saskatchewan’s legislation violates the right to strike as it significantly interferes with a meaningful process of collective bargaining and that this violation cannot be saved by section 1 of the Charter. The Court explained that there is no justification for granting public employers a unilateral right to limit the right of their employees to strike. The Court further held that the legislation in this case went well beyond what was necessary to provide essential services to the public: for example, the legislation permitted employers to require workers to perform non-essential duties, and it failed to provide an alternate dispute resolution mechanism for those workers who are determined to be essential.

RavenLaw congratulates the appellants and their counsel on this historic victory for workers.

Andrew Raven, Andrew Astritis, and Morgan Rowe from our firm represented the Public Service Alliance of Canada, who appeared as an intervener before the Supreme Court of Canada in support of the right to strike.

On the heels of its recent decision in Mounted Police Association of Ontario,[1] and with more distant roots in its judgments in BC Health Services[2] and Fraser,[3] the Supreme Court of Canada has breathed new life into section 2(d) of the Charter as it relates to the Canadian workplace. The Court’s decision marks a historic moment, not only for workers, but for the continued vitality of the rights protected by the Charter.

In Saskatchewan Federation of Labour v Saskatchewan (“SFL”), the unions challenged legislation granting public employers in the province the unilateral right to declare workers as performing “essential services”, meaning that they could not participate in an otherwise lawful strike. The Supreme Court found that this legislation violated workers’ freedom of association under 2(d) of the Charter: writing for the majority, Justice Rosalie Abella held that the right to strike is an essential part of meaningful collective bargaining and is protected by 2(d), and further held that the essential services regime in Saskatchewan could not be saved under section 1 of the Charter because, among other things, there was no independent check on employers’ unilateral right to prevent workers from striking.

In reaching this conclusion, the Court expressly overruled its prior holding in the Alberta Reference,[4] nearly 30 years earlier, that freedom of association did not protect the right to strike. The analysis of the Court in SFL relies heavily on the dissenting reasons of Chief Justice Dickson in Alberta Reference, adopting his conclusion that “effective constitutional protection of the associational interests of employees in the collective bargaining process requires concomitant protection of their freedom to withdraw collectively their services, subject to s. 1 of the Charter.”

The Court’s wholesale endorsement of Chief Justice Dickson’s dissent shows that the Charter is indeed a “living tree”, and the Court is not afraid to permit it to grow and develop over time. In her majority reasons, Justice Abella writes that, in now including the right to strike, “s. 2(d) has arrived at the destination sought by Dickson C.J. in the Alberta Reference”. This language—likening section 2(d) to a kind of traveller—is a bold affirmation that Charter rights are not stagnant and will be interpreted to give effect to their underlying values, even as our understanding and acceptance of those values evolves over time.

In this way, the judgment in SFL can be seen as further validation of the approach in BC Health Services and Canada (Attorney General) v Bedford:[5] when the Court is faced with compelling arguments supported by a strong evidentiary record, it is prepared to revisit its past conclusions in order to give life to the fundamental rights enshrined in the Charter.

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

[1] Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1

[2] Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27

[3] Health Services, Ontario (Attorney General) v. Fraser, 2011 SCC 20

[4] Alberta Reference (Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313)

[5] Canada (Attorney General) v. Bedford, 2013 SCC 72

The Supreme Court’s recent decision in Saskatchewan Federation of Labour v Saskatchewan (“SFL”) will be remembered primarily for its historic conclusion that freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms includes a protection for workers’ right to strike.

But the comprehensive reasons of the majority also offer strong confirmation of the persuasive role that international law and Canada’s international commitments play when interpreting Charter rights.

International Law and the Charter

In determining that the freedom of association protects the right to strike, the Supreme Court gave significant, substantive consideration to the development of the right to strike within international law.

The Court concluded that there is an emerging international consensus that meaningful collective bargaining requires a right to strike and that this consensus, when combined with similar historical and legal developments, required recognition of the right to strike within the Charter.

That international law plays some role in interpreting Charter rights comes as no surprise. The Supreme Court has long recognized that Charter rights should be interpreted consistently with Canada’s international human rights obligations. As the often-cited passage by former Chief Justice Dickson recognized:

…the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.

Without more specific guidance from the Supreme Court, however, the use of international instruments as interpretive tools has often been stalled by practical questions as to how they may be used and by significant resistance from the provincial and federal governments to their use in the first place.

In fact, before the courts in SFL, many of the government interveners argued that little weight should be given to the status of the right to strike internationally. They argued that the Charter does not incorporate Canada’s international commitments and that there is no obligation to constitutionally protect rights recognized in international law. They also suggested that courts should not rely on international instruments to which Canada is not a party.

Impact of the Supreme Court’s Decision

In its reasons, the Court soundly rejected all arguments to limit the persuasiveness or relevance of international law. Instead, the Court confirmed that international law plays a crucial role in interpreting rights under the Charter.

The Court’s reasons also offer a number of broader lessons about the use of international law going forward.

• First, international law, particularly in areas of growing international consensus, can and should play a central role in informing the evolving content of rights under the Charter. Developments in international law over time are, consequently, relevant when assessing whether to recognize rights in Canada. The Saskatchewan Court of Appeal had previously rejected this position.
• Second, courts should give consideration to a wide range of international instruments, even those which do not formally bind Canada. The Supreme Court looked beyond the well-established sources of Canadian legal obligations, such as international treaties which Canada has ratified, and relied on other authorities whose potential interpretive power had previously been unclear, including decisions of the International Labour Organization’s Committee on Freedom of Association, decisions made under the European Convention on Human Rights, and labour legislation and decisions from other countries.
• Finally, the Court recognized that the expertise of certain specialized international bodies will provide their decisions with “considerable persuasive weight.” The Court made this statement particularly with regards to the ILO’s Committee on Freedom of Association, suggesting that its decisions will continue to guide future labour cases under section 2(d).

Conclusion

While some questions may remain in terms of how to practically apply international instruments as interpretive aids, the above principles – and the Supreme Court’s unequivocal support for their application – provide clear and decisive confirmation that international law considerations will form an essential part of Charter claims going forward.

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

On January 30, 2015, James Cameron and RavenLaw articling student Daniel Tucker-Simmons gave a presentation to Health Canada employees on the challenges of facilitating a successful return to work for employees off on disability leave.

The presentation, entitled “Navigating the Return to Work: Disability Deserves Dignity”, charted a roadmap for both managers and employees, beginning with the legal framework governing the duty to accommodate employees with disabilities, through to the process of accommodation itself. Focusing on the topic of mental disability, the talk concluded with a discussion on the necessity of destigmatizing mental disability in order to better welcome returning workers into a supportive workplace.

At the request of Health Canada, the presentation was organized by REACH, a nonprofit organization that advocates for equality for persons with disabilities.

On November 13, 2014, in PSAC v Attorney General of Canada, 2014 FC 1066, the Federal Court considered Part XX of the Canada Occupational Health and Safety Regulations, which imposes a host of obligations on employers to prevent and respond to workplace violence. The Court’s decision affirmed the broad definition of workplace violence under the Regulations, and the mandatory obligations on employers to appoint an impartial person to investigate employee complaints.

The Court clearly held that the definition of workplace violence is broad enough to include harassing conduct that causes mental or psychological harm, stating that “to find otherwise would unduly restrict the definition of work place violence and not give a purposive construction to that definition.” The Court also held that the employer may not act unilaterally as an investigator of workplace violence and that, unless it is plain and obvious on the face of the complaint that it does not relate to workplace violence, the employer is under a mandatory duty to appoint an impartial person to investigate the complaint.

This judgment is an important gain for workers, because it grants access to the mechanisms under Part XX to seek redress for harassment in the workplace. The process under Part XX—particularly, the mandatory appointment of an impartial investigator—is now available for federally regulated workers that experience harassment.

The case was argued by Andrew Raven of our firm. You can read more about this case in on our blog.

On December 1, 2014, the Ottawa and District Labour Council hosted its annual Labour Appreciation Awards to recognize and celebrate the dedicated work of unions, members and activists in advancing workers’ rights.

In total, five awards were presented: Community Activist Award, Labour Pioneer Award, Health and Safety Activist Award, United Way Ottawa Ambassador and Labour Activist Award. We congratulate all the nominees and winners.

Along with the Ottawa and District Labour Council, this event was co-hosted by the Workers’ Health and Safety Centre, United Way Ottawa and Labour Community Services.

Wassim Garzouzi was proud to attend and support this sold out event.

Our office hours during the holidays are as follows:

December 24 – closed at noon

December 25-26 – closed

December 29-30 – opened

December 31 – closed at noon

January 1-2 – closed 

Thank you and Happy Holidays.