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The Canadian Human Rights Tribunal recently released its groundbreaking decision in Johnstone v. Canada Border Services Agency. In its ruling, the Tribunal held that Fiona Johnstone’s employer failed to accommodate her family status obligations and, in particular, her need to provide child care for her children.

Fiona Johnstone, a Border Service Officer with the Canada Border Services Agency (CBSA), requested a fixed shift schedule to allow her to arrange child care for her child. Like her husband, who also works at CBSA, Mrs Johnstone worked an irregular rotating shift schedule – 24 hours a day, seven days a week – which made it impossible to find a child care provider. The employer stated that it would provide a static shift for Mrs Johnstone, but forced her into part-time status.

Mrs Johnstone presented a complaint in 2004 under theCanadian Human Rights Act, which was ultimately referred to the Canadian Human Rights Tribunal for a hearing. Mrs Johnstone was supported throughout this process by her union, the Public Service Alliance of Canada.

In its defence, the employer argued that the test for family status discrimination should be higher than that of other grounds of discrimination. In particular, the employer argued that family status discrimination should only be found where there is a “serious interference” with a “substantial parental obligation.” Mrs Johnstone, with legal representation from our firm, maintained that the threshold for demonstrating discrimination in a family status case should be no different than for any other ground of discrimination. The Tribunal agreed with Mrs Johnstone, stating that “an individual should not have to tolerate some amount of discrimination to a certain unknown level before being afforded the protection of theAct.” The Tribunal found that Mrs Johnstone had established aprima facie case of discrimination.

The Tribunal also rejected the employer’s argument that it would suffer undue hardship if it was required to accommodate Mrs Johnstone. In particular, the Tribunal rejected the employer’s submission that there would be health and safety concerns associated with Mrs Johnstone working 13-hour shifts and also rejected the expert evidence tendered by the employer that providing accommodation to Mrs Johnstone would open the floodgates to other requests for family status accommodation at CBSA. The Tribunal noted that, other than the expert report that was prepared for litigation and expressly rejected by the Tribunal, the employer had undertaken no analysis or consultations concerning the possibility of accommodating Mrs Johnstone’s child care needs.

The Tribunal ruled that CBSA’s conduct was willful and reckless in depriving Mrs Johnstone of her employment opportunities. The Tribunal ordered CBSA to pay Mrs Johnstone for lost wages and pension benefits, as well as damages totalling $35,000.

The full text of the Tribunal’s decision is available here.

Ravenlaw Sponsors Jim Bryson and The Weakerthans Band at the Ottawa Folk Festival

Raven, Cameron, Ballantyne & Yazbeck was a proud sponsor of the Ottawa Folk Festival again this year. In particular, we were delighted to support Jim Bryson and The Weakerthans, who performed as part of an exciting Saturday night line-up on the Main Stage and participated in several workshops during the festival.

Acclaimed Ottawa singer-songwriter Jim Bryson teamed up with iconic Winnipeg band The Weakerthans, who took their name from a line in the well-known union anthem Solidarity Forever: “yet what force on earth is weaker than the feeble strength of one.” Given our work with employees and unions in labour and human rights matters, it was a pleasure support artists who share our passion for and commitment to social justice and equality.

Being part of the Ottawa Folk Festival was a wonderful experience — and one we hope to continue in the future!

RCBY Represents Donna Mowat before the Supreme Court of Canada

Raven, Cameron, Ballantyne and Yazbeck is representing Donna Mowat before the Supreme Court of Canada, challenging the Federal Court of Appeal’s decision which held that successful complainants are not entitled to compensation for legal costs under the Canadian Human Rights Act.

Ms Mowat, who had substantiated a claim of sexual harassment before the Canadian Human Rights Tribunal, was awarded $47,000 in legal costs by the Tribunal. In quashing this decision, the Federal Court of Appeal held that the Tribunal’s authority to order compensation for “expenses” incurred as a result of discrimination did not include legal expenses. Ms Mowat maintains that legal expenses fall within the definition of expenses given the broad and liberal interpretation to be accorded to human rights legislation, the broader legislative context which supports this interpretation, and the underlying purpose of the Act, which is the eradication of discrimination.

The Appeal will be heard by the Supreme Court on December 13, 2010.

2010 Raven, Cameron, Ballantyne & Yazbeck Human Rights/Social Justice Intern Selected

The partners at Raven, Cameron, Ballantyne & Yazbeck are pleased to announce the selection of the successful candidate for the firm’s 2010 Human Rights/Social Justice Internship.

Raphaëlle Laframboise Carignan is a second-year law student in the Programme de droit canadien (LL.B. and LL.L.) at the University of Ottawa. Raphaëlle has had a varied interest in social justice or human rights initiatives, particularly through her work with the University of Ottawa Community Legal Clinic and with the Organization of American States (as an intern in their Cultural Program Department program with an MME). Among other things, Raphaëlle worked with the OAS to promote Latin American arts and also participated as an international electoral observer during the 2007 electoral process in Guatemala. Congratulations Raphaëlle!

Each year, our firm provides funding for a student from the Faculty of Law at the University of Ottawa to work full time over the summer as an intern in the areas of social justice and human rights. 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 organizations that often are unable to afford this. This year, the host organizations which will benefit from the internship are the Canadian Artists’ Representation/le Front des artistes canadiens (CARFAC) and l’Association des enseignantes et des enseignants franco-ontariens (AEFO).

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.

RCBY Represents CARFAC and RAAV before the CAPPRT

Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l. is proud to represent the Canadian Artists Representation (CARFAC) and the Regroupement des artistes en arts visuels du Québec (RAAV) pro bono before the Canadian Artists and Producers Professional Relations Tribunal.

CARFAC and RAAV, which represent visual artists in Canada and Québec, have filed a complaint of bad faith bargaining against the National Gallery of Canada (NGC). The complaint was filed after the NGC refused to discuss minimum exhibition and reproduction fees for visual artists, following five years of ongoing negotiations. CARFAC and RAAV are seeking to ensure that Canadian visual artists receive minimum fees for the exhibition and reproduction of their works by the NGC.

The Complaint was heard initially on October 26-27, 2010, and the hearing is scheduled to resume at 8:30 on December 2-3, 2010 at the Competition Tribunal hearing room. David Yazbeck and Erin O’Hara are counsel. Argument is expected to start Friday morning.

Tax System Undermines Pay Equity Settlement

Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l. is currently representing the Public Service Alliance of Canada (“PSAC”) and Cathy Murphy before the Federal Court in an application for judicial review of a decision of the Canadian Human Rights Tribunal.

The Tribunal dismissed the human rights complaint filed by the PSAC and Ms Murphy that alleged that the Canada Revenue Agency (“CRA”) discriminated against individuals who had received lump-sum pay equity payments in the year 2000 and were taxed on the full amount that same year. Consequently, most individuals who received lump-sum awards paid more taxes than individuals who received their wages in the years they were earned.

Provisions in the Income Tax Act allowed individuals to spread the lump-sum award over past years but triggered the CRA to charge compound interest on the amounts that would have been paid, thus reducing the actual value of the payment ordered. The effect of CRA’s actions was to undermine full pay equity for thousands of PSAC members.

The application was heard on January 11, 2011 at the Federal Court. David Yazbeck is counsel. Justice Michel Beaudry reserved judgment.

In the Ottawa Citizen: Feds, public service union battle over pay equity back taxes

RCBY wins Abuse of Authority case at Federal Court of Appeal

The Federal Court of Appeal recently released its decision in Kane v. Attorney General of Canada, the first case before that Court involving a decision of the Public Service Staffing Tribunal. In its ruling, the Court of Appeal overturned the Tribunal’s decision, which had rejected Robert Kane’s argument that his employer had committed an abuse of authority in failing appoint him to his reclassified position.

In allowing Mr Kane’s appeal, the Federal Court of Appeal concluded that the Tribunal had acted unreasonably in finding that it was irrelevant whether the position in question was a new or reclassified position, given that this distinction served as the basis for the employer’s decision to proceed by way of an advertised appointment process. Importantly, the Federal Court of Appeal also rejected the narrow test for abuse of authority proposed by the Attorney General of Canada, ruling that this test was at odds with the ordinary meaning of the provision and the purpose of the legislation.

Mr Kane, a member of the Public Service Alliance of Canada (“PSAC”) was represented by Andrew Raven and Andrew Astritis. The full text of the Federal Court of Appeal’s decision is available here.

RCBY challenging Policy excluding employees with Type 1 Diabetes

Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l. represented Bronwyn Cruden, a Canadian International Development Agency (“CIDA”) aid worker and member of the Public Service Alliance of Canada (“PSAC”) before the Canadian Human Rights Tribunal.

Ms Cruden filed a complaint with the Tribunal in 2008 against CIDA and Health Canada after being denied a field posting in Afghanistan because she had Type 1 Diabetes. Despite her status as a “rising star” within CIDA and having successfully completed physical examinations and independent specialized medical assessments deeming her fit for posting, Health Canada refused to recommend her for medical clearance. CIDA, which has the authority to overrule Health Canada recommendations, refused to post her to Afghanistan or to provide suitable accommodation. Health Canada’s policy prohibits federal government employees with Type 1 diabetes from being posted to Afghanistan and other regions deemed to be “hostile”. Ms Cruden seeks to change the policy and receive compensation for lost wages and opportunities.

The hearing was held from January 17 to February 3, 2011. Bronwyn Cruden was represented by Alison Dewar and Erin O’Hara.

FCA Confirms Adjudicator’s Right to Enforce Settlement Agreements