On March 12, 2015, Morgan Rowe spoke on a panel addressing key and emerging legal issues facing the trans* community. The panel was organized and hosted by OUTLaw, the LGBTQ Law Students’ Association at the University of Ottawa. Morgan spoke on trans* legal issues in the workplace, including discrimination in hiring and termination, workplace harassment, and the problems that arise from a medicalized approach to the duty to accommodate.
On Sunday, March 8, 2015, the Ottawa and District Labour Council hosted its annual International Women’s Day Dinner. The sold out event was attended by community and labour activists who gathered to celebrate and reflect on women’s roles in both the labour movement and the workplace.
Keynote speaker, Cindy Oliver, President of the Federation of Post-Secondary Educators of British Columbia, gave a rousing presentation on the importance of ensuring that all work environments, especially trades, are accessible and safe for women, while highlighting the work that still needs to be done to achieve true gender equality.
The theme of the evening was “Sisters Sharing Hope Vision Solidarity” and was sponsored by the Ottawa District Labour Council Women’s Committee.
Wassim Garzouzi from our firm attended the successful event.
On March 3, 2015, Kim Patenaude presented a workshop at Industry Canada on “The Respectful Workplace”. The bilingual workshop was organized by Reach Canada and attended by over 30 employees in the National Capital Region.
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.
David Yazbeck has been confirmed as a speaker for Funding Democracy, an international summit being held in Ottawa on June 16 – 17, 2015. The event will bring together some of the brightest, most progressive minds from around the world to discuss issues of austerity, tax reform and funding public services. The summit is designed to unite workers, employers and industry representatives from across the world to find practical, achievable and sustainable legislative alternatives to austerity measures during this global economic crisis. David will be speaking on the topic of whistleblowing.
This week, David Yazbeck is participating in the Canada Industrial Relations Board (“CIRB”) Consultation Committee as the Canadian Association of Labour Lawyers (“CALL”) nominee. The Consultation Committee is an ongoing dialogue and consultation process between the CIRB and the labour community, established for the purpose of canvassing labour and management sides with respect to their expectations regarding industrial relations issues that concern them. The Consultation Committee includes members from CALL, the Canadian Labour Congress, Confédération des syndicats nationaux, the Canadian Association of Counsel to Employers, and Federally Regulated Employers in Transportation and Communications Organization, as well as the Chairperson and representatives from the CIRB.
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.
On January 30, 2015, Adjudicator François Bastien, appointed pursuant to the Canada Labour Code, issued an important decision impacting all employees with supervisory duties working in federally regulated sectors.
Generally, employees who are unjustly dismissed can bring a complaint and have their grievance heard by an adjudicator appointed under the Canada Labour Code. Managers cannot avail themselves of this process.
In Timiskaming First Nation, the Employer brought a preliminary objection alleging that the employee, who worked as the Director General of the First Nation Government, was a manager. The Employer asked the Board to dismiss the complaint.
In dismissing the employer’s objection, the Board confirmed that “it is important to keep in mind that underlying it, is the notion underscored by the Federal Court […], that while undefined in the Code, ‘manager’ is a term that ought to be narrowly construed under that Code.” The Board further endorsed the fact that a broader interpretation of the term “manager” could exclude many employees from the benefits of the unjust dismissal provisions of the Code.
This decision underscores the importance of reviewing the particular context of every workplace before making a determination as to whether an employee can properly be characterized as a “manager” under the Code. The Board fully recognized that the employee in question performed many functions at a high level – but nonetheless dismissed the Employer’s objection on the basis that her role fell short of the test of independent action over a significant range of matters.
Through this decision, the Board provides all employees with supervisory duties working in federally regulated sectors much needed clarity with respect to their rights under the Code.
The employee in this case was represented by Wassim Garzouzi of Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l.
On February 23 and 24, 2015, artists across Canada overwhelmingly voted to ratify Canada’s first scale agreement for visual artists at the National Gallery of Canada. As the Canadian Artists’ Representation/Le Front des artistes canadiens (CARFAC), explains
Major gains have been advanced for artists through this agreement, which sets out mandatory minimum fees and working conditions offered to artists by the gallery. Artists remain free to negotiate above these minimums, but they can never be offered less.
The agreement between the National Gallery and CARFAC and the Regroupement des artistes visuels du Québec (RAAV) will be in place for three years.
The ability of CARFAC/RAAV to reach this historic agreement is due in large part to the Supreme Court of Canada’s decision in Canadian Artists’ Representation v National Gallery of Canada in June, 2014. CARFAC/RAAV were represented by David Yazbeck, Michael Fisher and Wassim Garzouzi from RavenLaw in this successful appeal to the Supreme Court.
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.
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.]
David Yazbeck recently celebrated his 10th year anniversary as the host of the Thursday Morning Special Blend on CKCU FM. The Thursday Morning Special Blend focuses on local arts and rights issues, with plenty of live local music and interesting interviews. David regularly has representatives from the local music community, GCTC, Amnesty International, Rod Phillips on wine, and more. David started the show in 2004, inspired by his passions for music, other arts, and progressive politics. To celebrate the 10 year anniversary, David hosted a special live show on December 18 at the West End Well Café. You can listen to the 10th anniversary show here.