On Thursday, December 11, 2014, Wassim Garzouzi was invited to give a presentation entitled “Introduction to Effective Labour Representation” to the members of the Local Executive Committee of the Ontario Public Service Employees Union, Local 415.

The Discussion dealt with a review of the Colleges Collective Bargaining Act, the CAAT-A Collective Agreement, as well as the roles and obligations of Union Stewards towards their membership.

On December 10, 2014, the Canada Industrial Relations Board (“CIRB”) released its decision finding that an employer, the Listuguj Mi’gmaq First Nation Council, breached its duty to bargain in good faith when it failed to communicate to the union its reasons for deciding not to ratify a first collective agreement.

The employer and the union, the Public Service Alliance of Canada, reached a tentative agreement on a first collective agreement on December 2, 2010. However, by February of 2011, the employer had not yet held the Council meeting needed to decide whether to ratify the tentative collective agreement. After the union filed a bad faith bargaining complaint, the Council meeting was held, and on March 17, 2011, the employer advised the union that it had decided not to ratify the tentative agreement. The employer did not communicate the reasons for its decision and did not do so until March 27, 2012, when evidence was given on the issue at the oral hearing into the bad faith bargaining complaint before the CIRB.

The CIRB held that the employer had an obligation to communicate more than simply the decision not to ratify. In the circumstances of the case, the employer also had an obligation to communicate the reasons for its decision not to ratify. Although employer did ultimately communicate the reasons for its decision, it was not until it was compelled to give evidence in a hearing before the CIRB. The communication was therefore not made in a timely matter. The CIRB concluded that the employer was in breach of the obligation under section 50(a) of the Canada Labour Code to make every reasonable effort to enter into a collective agreement.

The CIRB granted extensive remedies for the employer’s failure to bargain in good faith.

The Public Service Alliance of Canada was represented by Andrew Raven, Michael Fisher and Mary Mackinnon of our firm.

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.

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.

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.

“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.

Our firm is renewing its partnership with the University of Ottawa and continues its commitment and funding to the Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l. Human Rights/Social Justice Internship. This exciting opportunity provides an excellent and meaningful summer work experience to students who are particularly interested in issues pertaining to social justice, human rights or equality rights. This is the 10th consecutive year that this paid internship has been sponsored by RavenLaw.

This is a program that we are very proud of as it gives students excellent experience in these areas but also provides legal support to social justice organizations. This year, the host organizations include the Workers History Museum.

Students seeking information about the internship should contact Chelsea Paradis. If your organization works in the areas of social justice and human rights and you are interested in having an intern in the future, please contact David Yazbeck at 613-567-2901.

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

On Tuesday, January 6, 2015, Wassim Garzouzi participated on a Labour Law Panel at the University of Ottawa alongside co-panelists Graham Clarke of the Canada Industrial Relations Board (“CIRB”) and George Vuicic, of Hicks Morley. Following an arbitration simulation, the panel discussed the practice of labour law and answered questions from students.

The event was organized by Professor Suzanne Bouclin as part of the Dispute Resolution course at the Law Faculty of the University of Ottawa.

On January 7 and 8, 2015, Andrew Astritis appeared in the Supreme Court of Nova Scotia to argue a judicial review application. The application seeks to overturn a decision of an arbitrator on the right of employees to accumulate vacation credits.