For unions, another round of negotiations has often meant getting back into a familiar pattern: deliver notice to bargain, prepare proposals, have a series of sometimes constructive, sometimes frustrating discussions across the bargaining table, perhaps resort to strike or face a lockout, then arrive at a collective agreement.

We are living in a different world.  Do not assume same-old is the same old.

A union may have a right to a range of information that is relevant to collective bargaining. Unions have a right to receive information about changes an employer is considering that may have a major impact on the bargaining unit.  That is particularly true in response to certain employer positions like a declaration of an inability to pay. They have that right even if they don’t ask, as the obligation to disclose is part of the duty to bargain in good faith.  If they ask, the obligation is probably even more extensive. You can look at a decision called PSAC v. Forintek Canada Corp. for details about how the Ontario Labour Relations Board applied this principle several decades ago.  It is still good law.

Employers may be thinking about a variety of options as COVID-19 remains one of the central features of the economy – from local markets to international trade.  A Union and its members are entitled to know what decisions have been made and what decisions are being considered. To be in the best position to prepare demands, to negotiate for appropriate contract terms and to speak with members about whether a tentative collective agreement is reasonable, it is more important than ever to create a comprehensive request for information and disclosure.

Each request will be different and will depend on the sector of the economy, local conditions, and the relationship between the Union and the employer.  Whatever the circumstances, no union should go into bargaining (or if already there, sign a tentative agreement) without making the request.

The information may be significant, or there may not be much.  It may be that the employer is forthcoming, or it may be necessary to extract it like you were doing dentistry.  In any event, it is much better to have made the request than to be surprised two months after signing the agreement with a reorganization, or a series of layoffs, or some other change that had been in the works for a considerable period of time.

This is one of the obligations the parties have in bargaining. It is more important than ever to make sure the other side lives up to its obligations.

On October 16, 2020, the Supreme Court of Canada upheld a Charter challenge to portions of the RCMP pension plan, which had been applied to prevent employees from buying back periods of service during which they had temporarily reduced hours of work for childcare reasons.

In its decision, the majority of the Supreme Court concluded that the pension law had a disproportionate, negative impact on women due to their sex. Particularly, the majority noted that the evidence demonstrated both that the Appellants themselves had been negatively impacted by the pension scheme due to childcare responsibilities and that, more broadly, women as a group face disadvantages related to balancing work and childcare obligations. The majority also accepted that the specific negative impact in this case perpetuated historical gender biases in pension plans. The majority concluded that the pension law therefore breached the equality rights of women, contrary to section 15 of the Charter.

As the Government could not provide a pressing or substantial reason to justify the negative impact on women, the Court directed the Government to design remedial measures to address the negative impacts on the pensions of the Appellants and others in the same position.

Andrew Astritis and Morgan Rowe from RavenLaw appeared on behalf of the intervener, the Public Service Alliance of Canada, to support the Appellants in their arguments that the pension law discriminates against women and other parents because of their childcare obligations.

On October 20-21, 2020, Sean McGee presented as part of Lancaster House’s annual Ottawa Human Rights and Labour Law Conference. Sean presented as part of the panel “2020 Vision – Key Precedents from an Unprecedented Year,” which reviewed recent, important labour and human rights decisions.

On October 20, 2020, Morgan Rowe presented as part of a professional learning program presented jointly by Lancaster House and the University of Toronto. The multi-day program addressed managing and promoting mental health in the workplace. Morgan spoke as part of a panel on employers’ legal obligations to address workplace stress and other workplace mental health issues.

Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish.

As the Centre for Addiction and Mental Health (CAMH) has noted, the “COVID-19 pandemic has sparked a rise in stigma and discrimination against people who have the virus; people from countries where the virus originated or are considered hot zones; people who have travelled recently; or even those who it is believed have come in contact with someone who has the virus.”

When people face discrimination because of this stigma, what recourse can they hope for in Ontario’s human rights law? The Ontario Human Rights Commission has taken the position that the “Code ground of disability is engaged in relation to COVID-19, as it covers medical conditions or perceived medical conditions that carry significant social stigma.” This means that an employer who fires an employee because the employee is diagnosed with COVID-19 may be held responsible for human rights violations. Further, under the Code, discrimination based on perception of disability is prohibited. So, if an employer believes the employee may have COVID-19, they may also be held responsible for human rights violations.

These grounds for discrimination will hold true for all areas covered by the Code. For example, a landlord that evicts a tenant because the tenant has, or is perceived to have, COVID-19 could be found liable for the discrimination.

In a case working its way through the British Columbia Human Rights Tribunal, a harm reduction worker in the Vancouver Downtown Eastside and Surrey was evicted due to her landlord’s concern that she had been exposed to COVID-19 because of her work. The landlord argued that her claim should be dismissed because COVID-19 is not a physical disability under the Code and the claim therefore had no prospect of success.

The Tribunal refused to dismiss the complaint because the stigma of COVID-19 is such that even being perceived to have it should be protected under the ground of physical disability. The Tribunal reasoned that “this aspect of the complaint is about the alleged stigma that attaches to Covid-19, quite apart from the virus’ effects on a person who has it. In my view, the issue raised by this aspect of the complaint falls squarely within the ambit of perceived physical disability.”

Once a complainant establishes that they have been the subject of discrimination due to having, or being perceived to have, COVID-19, the burden will shift to respondents to justify the conduct for legitimate health and safety reasons and to show why they could not accommodate the complainant. General concerns about the virus will not be enough to justify discrimination. In the BC case, the Tribunal found the landlord’s arguments regarding his “genuine worries” about health to be insufficient without detailed information about his specific vulnerabilities, his understanding about COVID-19 at the time, his genuine concerns, what information he sought from the tenant, and what options he considered before eviction.

It remains to be seen how much latitude human rights tribunals will grant those who discriminate based on “genuine worries” about the virus. But, if the case from BC is any indication, those who have faced discrimination based on COVID-19 stigma need not assume that concerns related to the virus will always prevail over the right to be free from discrimination.

If you have questions or concerns about the implications of COVID-19 on your employment, please call 613-567-2901 or email info@ravenlaw.com. If you are a member of a union, please contact them directly for assistance in dealing with your workplace issue.

In a recent grievance decision between the Limestone District School Board and CUPE Local 1480, Arbitrator Jesse Nyman found that changing a bargaining unit member’s work location may eliminate a position and create a vacancy, triggering the mandatory posting provisions of a collective agreement.

In 2013, the Employer decided to close two of its secondary schools in Kingston, Ontario and to construct a new secondary school. The grievance began when the Employer announced its intention to unilaterally transfer staff from one of the old schools to the new school when it opened.

At arbitration, the Union argued that, when an old school closes, the positions at that school cease to exist and when the new school opens, vacancies will be created that must be posted and filled in accordance with the posting and seniority provisions of the parties’ collective agreements. The Employer defended its intention to simply transfer staff from one school to another by arguing that there were no vacancies created, only a change in work location, and therefore no provisions of the collective agreements applied.

In his decision, the Arbitrator agreed with the Union’s position that the shutting down of the old schools and opening of the new school was a “school closure” within the meaning of the collective agreement. The Arbitrator also accepted the Union’s argument that the collective agreements prohibited the Employer from unilaterally transferring employees from one work location to another when a school closes. Rather, the posting provisions must be applied. The Arbitrator found that this interpretation was supported by the plain language of the agreements and the parties’ past practice regarding school-to-school transfers. The grievance was therefore allowed and the Board was ordered to post the new positions in accordance with the terms of the collective agreements.

This win for the Union highlights that a change of work location, depending on the language of the collective agreement, may trigger a vacancy that requires a position to be posted. This reinforces the importance of seniority rights for workers, which are almost always a key determinant in filling vacant positions.

The Union was represented by Julia Williams of RavenLaw.

On December 8, 2020, Alison McEwen will be speaking as part of Lancaster House’s annual “Bargaining in the Broader Public Sector” conference. Alison will present as part of a panel on bargaining and negotiation priorities in the post-COVID-19 world. The panel will discuss how the pandemic has caused broader policy shifts and how these shifts are likely to affect bargaining in the public sector.

On September 17, 2020, Andrew Astritis spoke at the Osgoode Hall Professional Development conference on Class Actions: Critical and Emerging Issues. Andrew participated in the panel on “#MeToo Comes to Class Actions”.

Andrew is part of the team at RavenLaw that has been representing current and former members of the Canadian Armed Forces in the class action involving sexual misconduct in the military, which was settled in 2019.

Ravenlaw gratefully acknowledges the contribution of this post by articling student Karen Sisson.

A recent decision of the Ontario Arbitration Board affirms the employee’s right to a hearing for grievances related to systemic issues in the workplace, even where the issue may appear to be moot.

In the 2020 CAS v CUPE[1] decision, the employer had made a motion to dismiss an employee’s 2016 grievances, which alleged an incident of workplace harassment as well as a failure to meet obligations under the Collective Agreement pertaining to accommodation.

The Grievor in this matter had made an allegation of harassment against a supervisor. The incident was alleged to have occurred during discussions about the Grievor’s accommodated return to work plan. Following the filing of the grievance in 2016, a workplace remedy was applied wherein the employer agreed that the Grievor would no longer be supervised by that particular supervisor. The employer also agreed to review expectations with respect to return to work planning with all supervisors.

The Grievor and the employer continued to engage in negotiations for a return to work plan, but no plan was ever agreed to. The Grievor filed an additional grievance, alleging that the employer had failed to meet their accommodation obligations under the Collective Agreement.  Both grievances were filed in 2016. At the time of the Hearing in 2020, there were no new reports or concerns with respect to harassment, and the Grievor had successfully returned to their full-time position.

The employer brought a motion to dismiss the employee’s grievances, relying on the fact that they had already engaged an adequate remedy, and the grievance was thus out of scope of the Arbitration Board. There had been no further issues raised since the grievances were filed in 2016.  The employer argued that the “fact specific” nature of the grievances meant that the issues were now moot, and there was no benefit to the ongoing relationship of the parties to pursue further resolution. The employer alleged that a hearing on the grievances would “dredge up controversy and conflict at great expense”, potentially having a detrimental impact on ongoing labour relations, and on the Grievor.

In reply, the Union highlighted that an allegation of harassment in the workplace is a live issue which requires a formal resolution.  The passage of time should not be relied on to “wash away” the fact of the allegation.  Furthermore, a resolution of the grievance alleging a failure to accommodate the Grievor would assist the parties in their application of the Collective Agreement. The Union also highlighted that the Grievor may be entitled to damages to compensate for the harm they suffered because of the alleged harassment.

In its decision, the Arbitration Board explicitly stated that the doctrine of mootness applied in the context of criminal and civil matters is not applicable in the same manner to labour relations. Citing a prior decision in the analysis, Sherbrooke Community Society v SUN Local 22[2], the Board stressed that “The parties before an arbitrator, by definition, must continue to live together in a work relationship under a collective agreement… once a systemic issue is raised by a particular grievor, it does not simply disappear, due to a change in that particular person’s individual circumstance”.

The Board declined to follow earlier decisions where the doctrine of mootness had been applied, distinguishing the grievances in this matter on the grounds that these grievances raised more complex issues than those raised in the prior decisions. The Board also emphasized the significant evolution in the last 15 years regarding damages involving harassment and/or violations of the Human Rights Code.  While the Grievor had successfully returned to work since the grievance had been filed, the question of whether the accommodation plans were adequate, or adequately adhered to in the workplace, remained a live issue.

With respect to the allegation of harassment, the Board unequivocally found that the efforts of the employer to remedy the issue in the workplace did not resolve the grievance. Actions taken by the employer in response to the allegation were relevant to quantifying potential damages, but they did not adequately meet the labour relations purposes served via a hearing on the issue. A hearing on the issue would provide instruction to the parties about how similar situations can or should be dealt with in the future.

Given these observations, the Board found that “The underlying questions about the substance of the Grievor’s allegations remain alive and require resolution, for her sake and for the sake of the parties’ understanding of their rights under the Code and the Collective Agreement”. Absent a mutual agreement with the consent of both parties, the case was not one where it would be appropriate to halt the proceedings.

This decision is significant for its recognition that an employee’s right to remedy for potential breaches of the Human Rights Code cannot be said to have disappeared via the passage of time.  The resolution of systemic issues is a vital component of labour relations, and an employer can not escape the potential application of a remedy via a hearing by the Arbitration Board on such matters.

[1] The children’s Aid Society of Toronto and The Canadian Union of Public Employees and its local 2316, 2020 CanLII 34509 (ON LA).

[2] Sherbrooke Community Society v SUN Local 22, 2 L.A.C. (3d) 97 (Norman).

Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish.

Although we may live and work in “unprecedented” times, your rights to unionize your workplace have not changed. In several cases across the country, labour relations boards have rejected employers’ claims that the COVID-19 pandemic is no time to unionize. Even where it is unsafe to hold an in-person vote, the staff was laid off, or the employer is facing economic difficulties, boards have been clear that employees’ rights to collective bargaining are not on hold.

a) You can unionize even though it isn’t safe to hold an in-person certification vote

The Ontario Labour Relations Board has repeatedly ruled that the danger of in-person voting during the COVID-19 pandemic does not mean that certification votes should be delayed. In one case, the employer, a waste management company, argued that the Board should hold an in-person vote at its premises, over a single polling period of three hours. It claimed that its employees might not have the technology or skills to vote electronically. It suggested that if the Board was concerned about the safety of an in-person vote, the vote should be delayed until it is safe.

The Board rejected these arguments. While it found that an in-person vote would be unsafe and violate regulations, there was no reason not to hold an electronic vote because “employees have a right to determine whether or not they wish to be represented in their employment and to do so as soon as the electronic vote can be arranged.” Further, the electronic vote was not too difficult for employees to access and could be done by phone or computer.

In a similar case, the OLRB reasoned that delaying the vote until after the state of emergency is lifted could delay certification by months, “which would be prejudicial to the applicant and the affected employees.”

b) You may be able to unionize even though you and your coworkers were laid off

In a case from British Columbia, a theatre company argued that its employees could not unionize because it had laid them all off due to the pandemic.

The Board noted that, generally, employees who were laid off after an application can vote and those who were laid off before cannot. However, these are exceptional circumstances. The theatre had three categories of workers: regular full-time, regular part-time, and casual employees. The Board held that the test for whether employees who have been laid off can vote is whether they have a “sufficient continuing interest in the bargaining unit.”

The Board found that the regular full-time employees and regular part-time employees did have that connection and had not been laid off until after the application. Because of the timing of the layoff, they were eligible to vote.

Most of the regular part-time workers had been laid off before the application. Nonetheless, the Board found that they had a sufficient continuing interest in the bargaining unit. The Employer had emailed staff, committing to bringing as many people as possible back, as soon as possible. Although the Employer was not able to predict when it would reopen, it had not indicated that it would be ceasing operations. Because the closure was temporary, the Board found that “there is a continuing, tangible, felt relationship between the part-time employees and the Employer and a reasonable expectation of recall.”

However, the Board found that “the casual employees’ connection to the Employer was more tenuous.” They worked on an on-call basis and the Employer would only call them if their particular skill set would be useful for a production. They didn’t have the “reasonable expectation of recall” necessary to show that they had a sufficient continuing interest in the bargaining unit, and so were not eligible to vote.

Unfortunately for the employees, the fact that the casual employees were not eligible to vote meant that they didn’t have the support required to go forward with the application.

c) You can unionize even though your employer is experiencing economic uncertainty

In a case from the Alberta Labour Relations Board, an Employer in the not-for-profit childcare sector argued that the Board should not certify a bargaining agent during the COVID-19 pandemic due to the “business uncertainty” facing the Employer. It argued that unionization would increase its “administrative and financial burden” and set the collective bargaining process up to fail.

The Board soundly rejected this argument, finding no legal authority for the proposition that certification can be refused because of the employer’s economic circumstances. It rejected the Employer’s suggestion that we are in a “historically unique” situation. It found no precedent for refusing certification, despite the fact “the COVID-19 pandemic is not the first time in Alberta’s history when employers have faced significant, even existential, economic uncertainty.”

The Board noted that “the Code is clear: certification under the Code is an employee choice.” The Board concluded that, “put bluntly, the suggestion the Board should refuse to permit certification at times when an employer faces economic uncertainty is anathema to the purpose of the Code and its certification sections.” The Employer’s argument went against the basic principles of labour relations: “to ask why the Board would ‘bother’ with a certification in economic circumstances where that bargaining may be difficult takes a dim view of labour relations indeed.”

The Board reasoned that the Code creates a process for employees to freely select their bargaining agents in order to satisfy the constitutional requirements of “meaningful collective bargaining.” Nothing in the process asks whether the employer favours certification. It noted that while employers face difficult choices, so too do employees and “those uncertainties may well be a factor in employees making the choice, through the certification process, to pursue workplace goals through a bargaining agent at that time.”

In other words, while employers are facing difficult times, so are workers. And workers’ rights to unionize have not changed, even in these “unprecedented” times. Now, more than ever, may be a good time to unionize your workplace and face those uncertainties together.