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.

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.

Nowadays most employees spend at least a portion of their workday using a computer, raising important privacy questions of what kinds of computer surveillance employers can implement on their employees’ work computers and under what circumstances.

Questions relating to employer surveillance – when? why? how much is too much? – are long-standing issues in both unionized and non-unionized workplaces. Traditionally, decision-makers have been sharply divided over when employers can implement surreptitious video surveillance over their employees, for example, and then rely on videotape evidence for later discipline.

This division has largely centred on a fundamental disagreement between decision-makers as to whether employees have a right to privacy in the workplace. This same disagreement carried over into the early computer surveillance decisions, where courts and arbitrators routinely found that employees had no expectation of privacy in work computers and upheld discipline and even termination based on non-work computer use.

Protecting the “Biographical Core”: R v Cole

That perception was shaken by a number of cases in the early 2000’s, but none moreso than the Ontario Court of Appeal’s 2011 and the Supreme Court’s 2012 decisions in R v Cole. While Cole dealt with a challenge to the search and seizure of an employee’s work computer by police, the Supreme Court took the opportunity to comment more broadly on employees’ right to privacy in their work computers. The Court found that an expectation of privacy could be inferred where personal computer use was permitted or reasonably expected:

Computers that are reasonably used for personal purposes – whether found in the workplace or the home – contain information that is meaningful, intimate, and touching on the user’s biographical core. Vis-à-vis the state, everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind.

While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely: The nature of the information at stake exposes the likes, interest, thoughts, activities, and searches for information of the individual user.

Implications for Employees: Right to Privacy at Work

While the long-term implications of Cole are not yet clear – particularly given that the Court declined to comment specifically on employer computer surveillance or the ability of an employer to seize and search a work computer – decision-makers have begun to adopt its reasoning to find a breach of employee privacy rights when employers engage in surreptitious, unjustified computer surveillance. For example:

• The British Columbia Information and Privacy Commissioner found an employer internet usage audit to be a breach of privacy where the employee had never attempted to hide his internet usage and had never been approached about it by the employer prior to the audit.
• The Alberta Office of the Information and Privacy Commissioner found that an employer had contravened privacy legislation when it installed keystroke logging software on an employee’s computer to monitor productivity. The Commissioner particularly noted the availability of less intrusive measures and the failure to limit the scope of the employer’s investigation.

These examples aside, however, decision-makers have yet to fully address the question of what Cole will mean for the traditional approaches to employer surveillance. While older cases extended employers a nearly unfettered right to set ethical, professional and operational standards for their workplace, Cole recognized that employer policies and practices may diminish a privacy right but cannot remove it entirely. Whether future decision-makers will accept a robust conception of employee privacy rights or will return to tests largely based on employer reasonableness remains to be seen.

A Right Without A Remedy

In any event, the suggestion in some post-Cole case law that employers ought to undertake less intrusive steps prior to surveilling employee computers raises a separate, perplexing question: what happens if employers don’t?

So far, Privacy Commissioners, in large part because of the nature of their authority, have provided for little in the way of remedy beyond ordering that the surveillance cease. For employees whose privacy was breached or who have been disciplined as a result of this intrusion, this may provide little comfort.

More recently, the New Brunswick Court of Queen’s Bench upheld the decision of a labour arbitrator which relied in part on an employee’s privacy interest in her work computer to reduce a termination for inappropriate email use to a suspension.

Other decision-makers, however, have found that an employer’s violation of privacy rights cannot lessen the seriousness of inappropriate work computer use. In these circumstances, it has been suggested that decision-makers can do no more than recommend that the employer take privacy interests into account in the future.

The decisions in Cole took significant steps towards changing how we discuss employee privacy in relation to work computers. As the trial judge in Cole stated, office computers are much like office desks and personal papers much like personal computer files. However, until decision-makers develop a substantive way to provide remedies for the breach of an employee’s privacy interest in his or her work computer, the change in how we talk about privacy rights at work cannot translate into protection for employees.

[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 13, 2015, Daniel Tucker-Simmons, an articling student at RavenLaw, won a case before the Landlord and Tenant Board on behalf of ACORN (Association of Community Organizations for Reform Now). ACORN has been fighting for years to improve housing conditions in the low – mid income areas in Ottawa for its members and others.

The case involved a landlord’s failure to repair a 150-meter stretch of walkway which had fallen into disrepair, creating a serious safety hazard for residents. Despite years of repair requests by residents, including ACORNmember Mavis Finnamore, prior landlords and the current landlords did not repair the walkway.

After Ms. Finnamore filed an application with the Board, RavenLaw provided Daniel’s services to represent ACORN member Mavis Finnamore at the Board hearing. Daniel’s victory before the Board means that the landlord will have to pay to fix the walkway. The victory is also the latest in a series of big wins for ACORN’s housing justice campaign, which stretches back to 2011 and has helped residents achieve over $200,000 in rent abatements and repair work.

Read more about the case on ACORN’s blog.

One of the questions employment lawyers hear most frequently is whether an employer is allowed to terminate an employee for no reason. The short answer? Yes. Unless your employment contract states otherwise, your employer does not need a good reason, or indeed any reason, to terminate your employment. A termination without a reason is called termination “without cause”.

Termination without a reason—termination with notice

A termination without cause does not mean you have no rights as an employee. Generally speaking, if you are terminated for no reason or “without cause”, then you must be provided with notice of the termination, or payment in lieu of notice. The amount of notice required is determined by the terms of your employment contract, relevant legislation, and common law legal principles. (See “Know Your Rights—Determining the Terms and Conditions of your Employment”  and “What is reasonable notice?”  for more information.)

Termination with a reason—termination for just cause

There are circumstances where an employer fires an employee for good reason, and as a result does not provide any notice to the employee. This is called a termination “for cause” or “with just cause”—if the employer has just cause to terminate the employee, the employer is not required to give notice of the termination. (See “What is just cause for termination?”  for more information.)

One reason the employer cannot terminate you—a discriminatory reason

There is an important exception to the rule that you can be fired for any reason: the employer cannot fire you for a discriminatory reason. For example, your employer cannot terminate you because of your sex, race, sexual orientation, age, or disability, because that would violate human rights legislation. You should consult an employment lawyer if you have reason to believe you have been fired for discriminatory reasons.

Conclusion

Absent any discrimination, your employer can terminate you without cause, but with notice; or it can terminate you with just cause, and without notice. If you believe you have been terminated without just cause, and without adequate notice, you may have a case of wrongful dismissal, and you should seek advice from an employment lawyer.

We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for wrongful dismissal. 

[The following information applies to non-unionized employees. This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

The Federal Court of Appeal has overturned a decision of the Canadian Human Rights Commission, in which the Commission rejected a human rights complaint against the Bank of Nova Scotia at the pre-investigation stage. The Appellant, Robert McIlvenna, had a mortgage with the Bank, and had applied for an additional line of credit to perform renovations on the mortgaged house, which was occupied by his son and daughter-in-law. The Bank refused the line of credit and called in Mr. McIlvenna’s mortgage, and he alleged the Bank took this action because it had learned that medicinal marijuana was being grown in the home under a Health Canada license. The Bank maintained that the reason for its actions was a violation of the terms of the mortgage. 

The Commission rejected the complaint under section 41 of the Canadian Human Rights Act, which authorizes the Commission to refuse to deal with a  complaint without an investigation in certain circumstances. In its unanimous decision granting the appeal, the Court held that it was unreasonable for the Commission to have dismissed the complaint without an investigation, because there was a live contest between Mr. McIlvenna and the Bank as to whether the Bank made its decision on discriminatory grounds. Justice Stratas wrote on behalf of the Court: 

“At this point in its process, the Commission cannot acceptably or defensibly resolve the live contest between Mr. McIlvenna and the report of the Bank’s in-house counsel in favour of the latter, at least until it investigates further under section 43. But here, nonetheless, it purported to do so. In so doing, it must have engaged in some sort of weighing process that led it to favour the report of the Bank’s in-house counsel. This it cannot do. During the section 41 stage, a weighing process of the sort conducted here is no part of its task.”

This decision provides important clarification of the proper scope of the Commission’s decisions at the section 41 stage of its process, and confirms its duty to investigate when there is a live dispute regarding the material facts of the human rights complaint.  

Mr. McIlvenna was represented by Andrew Astritis and Amanda Montague-Reinholdt from our firm. A copy of the Court’s reasons for judgment can be found here.

The process for successfully claiming long-term disability (“LTD”) insurance benefits can be complex and lengthy (See our article on “Navigating your Claim for Long-Term Disability (LTD) Insurance”). Unfortunately, part of that process often includes responding to a denial of your claim by the insurance company. This article summarizes the key steps to take if your disability claim has been denied.

When are you likely to be turned down for LTD insurance benefits? 

LTD policies usually have two different kinds of coverage.  For the first two years, the coverage provided is commonly known as “own occupation” coverage, meaning that if you can’t do the primary functions of your job, you are entitled to benefits.  After this period, the coverage often changes to “any occupation” coverage, meaning you will only continue to receive benefits if you cannot perform any job for which you are suited because of your background and not just your old job.  Claims for LTD benefits can be denied either before coverage starts, or after two years, when the definition changes.

Key Tips for Responding to a Denial of a Claim for LTD insurance benefits:

1. Don’t give up!

Many people are discouraged when they are turned down for LTD benefits.  They should not take it personally.  Refusals are often a part of the process, and are not necessarily an indication of whether your claim for LTD benefits will ultimately be determined.

2. Internal Appeals

It is possible to appeal internally to the insurance company.  The insurance company may alter its decision and provide LTD benefits, if new medical evidence is provided.  Unfortunately, in many cases, the internal appeal does not change the initial refusal.

3. Suing the insurance company for your LTD benefits

Often the only way to obtain benefits from an insurance company after your disability claim has been refused is to sue.  For many people, the prospect of litigating with an insurance company, particularly when you are disabled and without income, seems impossible.  We recommend that disabled people seek good advice from competent, experienced lawyers, who can properly advise you on your rights.  With the help of good counsel, you can enforce your rights and obtain the benefits for which you have paid.

Counsel work either on an hourly basis, or on a contingency basis (a percentage of the amount recovered).  Many people prefer to hire counsel on a contingency basis, because there is no payment of legal fees unless and until there is recovery from the insurance company.

In all cases, it is strongly advised that you seek advice as quickly as possible after benefits are refused, as there are time limits which may cause you to lose the right to sue the insurance company.

4.  Opportunities for Mediation

Although it may be necessary to start legal proceedings to enforce your legal rights, it is important to know that most cases settle at mediation.   Mediation is a negotiation session conducted by an experienced neutral facilitator.  The mediator will explore with the parties whether it is in their best interests to settle the claim for a lump sum or by reinstating the insured worker’s benefits.  The mediator will have the parties explore the risks and costs of litigation and help them to determine whether a settlement is preferable to carrying on to Trial.

Conclusion

If you have been turned down for LTD benefits, please do not give up.  If you retain good, experienced counsel and follow their advice, you stand a good chance of obtaining a satisfactory solution.

We are here to help navigate the LTD application process. Consult one of our experienced Long Term Disability lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for disability benefits or if your claim for benefits has been denied. 

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