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.

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.

David Yazbeck recently celebrated his 10^th 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 10^th anniversary show here.

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.

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.

The Supreme Court of Canada’s recent decision in Mounted Police Association of Ontario v Attorney General of Canada (“MPAO“) reboots the Court’s case law on freedom of association. This landmark ruling has significant potential implications for the development of the law and for workers’ rights.

Legal impact of MPAO

For labour and constitutional lawyers, the most significant outcome of the case is the Court’s rejection of the “effective impossibility” test and the confirmation that workers seeking to make their case under section 2(d) of the Charter need only demonstrate that government action has substantially interfered with their right to collective bargaining. The Court also clarified the relationship between collective bargaining and freedom of association, explaining that the freedom of association always requires that workers enjoy a meaningful right to collectively bargain.

Impact on RCMP members

MPAO’s immediate impact for RCMP members is profound. It confirms that RCMP members have a constitutionally protected right to collectively bargain through an independent association of their choosing. While RCMP members are not necessarily entitled to be included in the Public Service Labour Relations Act (“PSLRA”), the Court ruled that their exclusion from this Act violates the freedom of association, noting the RCMP’s long-standing hostility to unionization of the force, including the imposition of the unconstitutional Staff Relations Representative Program. On its face, this would appear to require the Government to provide a statutory regime to protect certain basic rights for RCMP members. While the Court’s previous ruling in Attorney General of Canada v Fraser highlights the limits of this requirement, the decision in MPAO nonetheless underscores the seriousness with which the Court viewed the Government’s approach to associational activity within the RCMP.

Impact on workers’ rights 

This decision has broad potential implications for other workers, although the precise impact in circumstances beyond the RCMP is uncertain. For example, the judgment could open the door for other groups of workers to challenge their exclusion from statutory collective bargaining regimes. Vulnerable workers who have been historically excluded, such as students and casual employees who work for the federal public service, could potentially rely on MPAO to argue that, like RCMP members, the purpose of their exclusion from the PSLRA was to prevent them from engaging in collective bargaining, and therefore that exclusion should be struck down.

Alternatively, these workers could argue that, although they fall outside a statutory bargaining regime, the Government is nonetheless required to bargain with the chosen representatives of these workers, or the representatives of a subgroup of these workers, otherwise known as a minority union. The Court explained in MPAO that it is permissible for the Government to impose a statutory model of representation based on majoritarianism and exclusivity. These groups can argue, however, that there is no reason why such a model would automatically apply where Parliament has not imposed it. Requiring the Government to bargain with subgroups of excluded workers would recognize the constitutional rights of all employees to a process of collective bargaining while respecting Parliament’s right to impose a particular statutory regime if it so chooses.

MPAO further implies that workers who have been excluded from collective bargaining because of the perceived sensitive nature of their work – such as members of management in the federal public service or non-civilian members of the Canadian Armed Forces – are also entitled to a process of meaningful collective bargaining. Although the Government could try to justify certain restrictions to this right under section 1 of the Charter, it cannot simply presume such limits exist. Nor can it avoid providing these workers with the right to be represented through an independent association of their choosing simply because the Government has decided to develop a less adversarial bargaining process.  

Conclusion

MPAO revitalizes the role of the Court as a protector of basic workers’ rights. The significance of this development will depend at least in part on the Court’s pending decision on the right to strike in the Saskatchewan Federation of Labour case, which is scheduled to be released this Friday.

[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 22, 2015, the Ottawa Legal Information Centre officially opened its doors to the community with a hugely successful launch event that gathered hundreds of residents of Ottawa, from all walks of life.

The Centre provides free legal information and referral services on a confidential basis, with or without an appointment, to all residents of the Ottawa region, regardless of income. Conveniently located in downtown Ottawa, the Centre offers services in English and in French.

Members of RavenLaw worked with the Centre prior to its opening to provide resources in the areas of human rights and employment law.

Wassim Garzouzi and Raphaëlle Laframboise-Carignan attended the launch event on behalf of RavenLaw.

The Toronto Star reports that 10,000 current and former Canada Post employees have received pay equity cheques from the Crown Corporation. The payouts are the result of almost three decades of human rights litigation and a landmark victory at the Supreme Court of Canada. The complaint was first filed in 1983 by the Public Service Alliance of Canada (PSAC) on behalf of 2300 clerical workers.

Canada Post has stated that it has now paid out to everyone for whom it has contact information. However, thousands more individuals could still be eligible. Canada Post is working with the Canada Revenue Agency to reach out to other individuals on its behalf, and is also planning on placing a series of newspaper ads to alert potential recipients. More information about the Canada Post pay equity payment process can be found here.

PSAC was represented by RavenLaw lawyers throughout the pay equity case, including Andrew Raven, James Cameron, David Yazbeck and Andrew Astritis at the Supreme Court of Canada, where the Court ruled unanimously in favour of PSAC in a rare oral ruling from the bench.

In Mounted Police Association of Ontario v Attorney General of Canada, the Supreme Court of Canada today ruled that all workers have a constitutional right to be represented in collective bargaining by an association of their choosing that is independent of the employer.

Members of the Royal Canadian Mounted Police (RCMP) are excluded from the Public Service Labour Relations Act. Instead, they are required to address labour relations issues through the Staff Relations Representative Program (SRRP), an internal process lacking independence from the employer. The Court ruled that both the exclusion from the Act and the imposition of the SRRP violate the freedom of association protected under section 2(d) of the Charter, and that this violation is not a justifiable limitation under section 1 of the Charter.

The Court’s reasons emphasize the crucial role that collective bargaining plays in empowering workers:

“[o]nly by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can [workers] meaningfully pursue their workplace goals”. […] Just as a ban on employee association impairs freedom of association, so does a labour relations process that substantially interferes with the possibility of having meaningful collective negotiations on workplace matters”.

The Court clarified its previous ruling on the constitutional right to collective bargaining, confirming that the test for a section 2(d) violation remains “substantial interference” with meaningful collective bargaining, rather than “effective impossibility”. The Court also rejected the Government’s interpretation of the “derivative” nature of the right to collectively bargain, reiterating that “collective bargaining is a necessary precondition to the meaningful exercise of the constitutional guarantee of freedom of association”.

The Court’s decision in this case confirms what unions and workers’ rights advocates have long maintained: a representative process under the control or influence of the employer is directly contrary to the freedom of association and the constitutional right to collective bargaining. This ruling sets the stage for the Supreme Court’s highly anticipated decision in the Saskatchewan Federation of Labour case, which will determine whether the freedom of association also includes the right to strike.

Andrew Raven, Andrew Astritis and Morgan Rowe of our firm represented the Public Service Alliance of Canada, which appeared as intervener before the Supreme Court of Canada in support of the appeal.