RavenLaw gratefully acknowledges the contribution of this post by articling student Marlee Olson

Even before Canada became a nation 150 years ago, workers in Canada were fighting for their rights. Although labour rights activists have had a lot to celebrate over the years, it has been a long and arduous journey. In honour of Labour Day as well as Canada’s 150^th birthday this year, here are some of the highlights of the Canadian labour movement.

In the late 1700s, workers in Canada began congregating to demand fair wages in exchange for their labour. The government responded by putting laws into place making it a criminal offence to participate in trade unions. As a result, unions had no way to enforce contracts with employers to receive what they had been promised. The birth of the nation in 1867 was followed shortly after by the birth of the Canadian Labour Union, a political organization of unions that fought against the criminal sanctions imposed on trade unions. Despite this step forward, unions and employees still had no way to legally oppose employers, who would administer harsh discipline and demand 60-hour work weeks.

Several new laws in the early 1900s helped to ease the path to unionization in Canada, with union membership increasing at the start of WWI. After the war, the labour movement experienced several setbacks, including the violent crackdown on the famous Winnipeg General Strike. Although union membership decreased throughout the Great Depression, the period leading up to WWII saw unionism increase once again. The 1937 strike at General Motors in Oshawa is considered by many to be the birth of industrial unionism in Canada. After this, there was more pressure on the government to give legal protection to union members, but there were still no legal repercussions for employers who refused to cooperate.

Union membership doubled during WWII thanks to increased reliance on the work force. In 1944, the federal government implemented a wartime national labour relations law called PC 1003. This law finally placed obligations on both the employer and the union, and put into place many of the tenets of labour law that we still see today. Although repealed shortly after the end of the war, most provinces passed laws resembling PC 1003, including features like union recognition, the duty to bargain in good faith, and strict regulation of strikes. These rights were later extended to federal public service employees following the 1965 strike of the Canadian Union of Postal Workers.

Although PC 1003 was the first legislation to provide unions and workers with clear legal protection, it has certainly not been the only law to do so. Occupational health and safety legislation started coming to effect across the country in the 1970s. The Canadian Charter of Rights and Freedoms, enacted in 1982, has entrenched the constitutional freedom of association. This right was interpreted by the Supreme Court of Canada in 2007 to include the right of employees to associate to achieve workplace goals without employer interference. The Supreme Court further held in 2015 that the constitutional right to freedom of association also includes the right to strike.

The labour movement in Canada has seen many victories throughout the past two centuries—workers have gone from risking arrest simply for participating in a union to having a constitutionally recognized right to strike. Although labour activists have made great strides, there are still many more hurdles in the path.  As we look back on the accomplishments throughout the years, we must also look forward to the challenges yet to come, as we continue to work towards fair and equitable working conditions for all.

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

In a recent decision, a Board of Inquiry under Nova Scotia’s Human Rights Code found that an employer had violated its duty to accommodate a prospective employee on the basis of disability. This decision provides important confirmation that, like existing employees, prospective new hires also have a right to be free from discrimination, and to be accommodated up to the point of undue hardship.

Background

The Nova Scotia Health Authority offered a job to Melanie Yuille, a registered nurse and single mother. The offer was conditional on her being cleared fit for work. When the employer found out that she had epilepsy, a condition that prevented her from working the night shift on a rotating basis, it rescinded the offer.

A Board of Inquiry under Nova Scotia’s Human Rights Code found that, in rescinding the offer, the employer violated its duty to accommodate Ms. Yuille’s disability. The decision affirmed that employers have a duty to accommodate prospective employees who can perform the essential duties of the job. An employer cannot pass over an applicant with a disability simply because she cannot meet some of the job requirements. The employer must establish that, if the applicant can perform the core function of the job, accommodating the applicant would cause undue hardship.

The employer took the position that working the night shifts was a bona fide occupational requirement. The employer claimed that if it hired Ms. Yuille for day and evening shifts only, other staff may have to work more nights and, in that case, it may incur extra overtime costs. It further claimed that hiring Ms. Yuille could affect staff morale and raised patient safety issues.

In rejecting those arguments, the Board of Inquiry found that the employer’s concerns with employee morale and patient safety were speculative and impressionistic. There was no actual evidence to support either claim. There was similarly no evidence that the cost of accommodating Ms. Yuille would have been unduly burdensome for this large employer. Furthermore, there was no evidence that the employer consulted the union about accommodating the applicant and, in any event, there was nothing in the collective agreement that presented a barrier to accommodating the applicant.

Ms. Yuille was awarded general damages of $15,000, compensation for financial losses incurred, and the opportunity to accept the next available nursing position with the employer.

Discussion

This is one of the few cases to address the duty to accommodate prospective employees. As the Board of Inquiry recognized, it is difficult for claimants like Ms. Yuille, a self-represented litigant, to enforce her human rights. Claimants in her situation are usually unable to afford legal counsel. The employer had experienced counsel to represent its interests and, while the provincial human rights commission was a party to the case, it did not act as the complainant’s advocate.

Ms. Yuille did, however, have one significant advantage over many other claimants, if not the vast majority, in her situation: the employer was transparent about its reasons for refusing to give her the job. There is rarely such direct evidence of discrimination in the hiring process — or, for that matter, in any discrimination complaint. Claimants must rely upon circumstantial evidence to prove their case, a daunting proposition for unrepresented litigants without knowledge of human rights jurisprudence or the law of evidence.

This case is a positive reminder that, despite those systemic barriers, in order to be effective, human rights legislation must protect persons with a disability from discrimination in employment, whether they are already in the workplace or are seeking to join it.

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

RavenLaw was proud to support the Annual Ottawa Women’s Legal Education and Action Fund (LEAF) Persons Day Breakfast, held on October 13, 2017. This year’s breakfast focused on the experiences of Indigenous and racialized women in Canada and the importance of their place in the feminist movement.

LEAF is a charitable non-profit organization that works to advance the equality rights of women and girls in Canada. The annual fundraising breakfast commemorates the Persons Case – the October 18, 1929 decision of the Judicial Committee of the Privy Council that ruled that women were to be considered persons under the law and should be eligible to sit in the Canadian Senate. Proceeds from the Persons Day breakfast contribute to LEAF’s litigation efforts and help to sustain equality education programs such as LEAF at Work, the Only Yes Means Yes Campaign, and the Reproductive Justice Campaign.

David Yazbeck has recently been retained as a Canadian Expert Panelist for the European Commission, as part of a study examining whistleblower protection laws and empirical evidence of such protections. The Panel is conducting its whistleblower study so that the Commission can learn what is working and what is not working in terms of whistleblower protection in many jurisdictions.

The larger study aims to:

• Map the existing rules on whistleblower protection in the EU-28 and gather empirical evidence on their effectiveness;

• Assess the need for further measures at the EU level to strengthen whistleblower protection across the EU, and;

• Assess the key impacts (economic, social and on fundamental rights) of potential EU measures to strengthen whistleblower protection across the EU.

David has extensive experience in whistleblower law and has argued many of the leading cases in the Federal jurisdiction in Canada.

On October 11, 2017, Morgan Rowe spoke to University of Ottawa students as part of the “Introduction to the Study of Law” class. She presented on issues related to the life of an employment contract, from formation to termination, as well as workers’ rights during employment. Morgan specifically addressed issues that arise when employment contracts conflict with the Employment Standards Act.

Megan Fultz, one of RavenLaw’s 2017 Human Rights/Social Justice interns, is co-author of a ground-breaking report on the legalization of cannabis which was published by the Global Strategy Lab of the uOttawa Centre for Health Law, Policy and Ethics.  The report titled “Reconciling Canada’s Legalization of Non-Medical Cannabis with the UN Drug Control Treaties”, identifies the legal barriers the government will face with the legalization of cannabis and proposes innovative solutions.   The report was cited by the New York Times upon the introduction of legislation by the Canadian government to legalize the recreational use of cannabis. Congratulations Megan!

On November 30, 2017, Morgan Rowe will present at the 3rd Annual Council of Canadians with Disabilities Conference. This year, the conference will be addressing the duty to accommodate. Morgan will be presenting on issues related to accommodating disabilities in education.

CCD is a national human rights organization of people with disabilities working for an inclusive and accessible Canada.

For more information or to register, please visit the conference’s event page.

RavenLaw gratefully acknowledges the contribution of this post by summer student Emily Cumbaa

A recent case before the Ontario Divisional Court examined ODSP’s reimbursement rate for medical travel. After many years of receiving reimbursement that only covered their operational travel costs, Ontarians who are on disability support can now seek reimbursement at a rate that covers both operational and ownership costs associated with their travel for medical treatments, such as appointments with out-of-town specialists. The case and the subsequent policy changes reveal that advancements in disability rights are slow, uneven, and hard-won.

The Case

Wayne Corrigan is a recipient of benefits under the Ontario Disability Support Program (“ODSP”), Ontario’s program providing income and other financial supports for individuals with a disability. Mr. Corrigan frequently travels between Oshawa and Toronto for specialized medical treatments.

A Regulation under the Ontario Disability Support Program Act states that benefits will be paid for “the cost of transportation that is reasonably required in any month for medical treatment for members of the benefit unit… if the cost of that transportation in the month is $15 or more” (O. Reg. 222/98, s. 44(1)1(iii.1)).  Under ODSP policy, Mr. Corrigan could only be reimbursed for his medical travel at the rate of $0.18 per kilometre. However, Mr. Corrigan estimated that his actual travel costs were $0.45 per kilometre.

Mr. Corrigan asked ODSP to review its rate and reimburse him at the rate of $0.45 per kilometre. ODSP denied that request, and also denied an internal review. Mr. Corrigan then appealed to the Social Benefits Tribunal. The Tribunal denied Mr. Corrigan’s appeal.

The Tribunal relied on its reasoning from an earlier decision, which also denied extra reimbursement, distinguishing between operational and ownership costs associated with a vehicle. The Tribunal found that the phrase “cost of transportation” in the legislation included only operational, and not ownership costs.

Mr. Corrigan appealed the Tribunal’s decision to the Ontario Divisional Court. In October 2016, the Court ruled that limiting reimbursement for medical travel to only “operational” expenses was unreasonable. The Court sent the matter back to the Tribunal “for redetermination of the reasonable costs of transportation,” and emphasized both operational and ownership costs can be included in costs of transportation.

A quick note for everyone who is interested in administrative law: the Court found that the appropriate standard of review was reasonableness, despite both parties agreeing that correctness was the appropriate standard. The Court’s finding reinforces that administrative tribunals are owed substantial deference, even on a statutory appeal as opposed to an application for judicial review.

The Government’s Response

In January 2017, the Ontario government increased the mileage rate for medical travel to $0.41 per kilometre in the North and Northeast Regions of Ontario, and $0.40 per kilometre everywhere else in the province. This represents an increase of more than 220%. The medical travel mileage rates are retroactive to October 1, 2016.

The new rates also apply for self-employed persons on ODSP if they use their personal car for business travel to generate income. The business travel rates are not retroactive, and therefore came into effect on January 9, 2017.

The Takeaway

This case and the subsequent policy changes highlight that advancements in disability rights are:

1. slow;
2. uneven; and
3. hard-won.

Advancements are slow. When the new increases were announced, the rates for medical travel had not changed in 17 years. In that time, the cost of driving had increased substantially, largely driven by gas prices. The Social Benefits Tribunal had more than once denied an increase to the rate for medical travel.

Advancements are uneven. The Divisional Court noted that other programs paid higher rates for medical travel than ODSP. The rate increase also applies to Ontario Works recipients. But before the increase took effect, every municipality in the province was responsible for setting their own rate, creating differences across the province.

Advancements are hard-won. ODSP and the Tribunal were both reluctant to review and increase the medical travel rate.  It is not surprising, therefore, that the Income Advocacy Support Centre reported that the rate increases were the result of years of advocacy work. This work included legal supports, a letter to the Minister, and collaboration between community and advocacy groups.

Thankfully for people on ODSP who must travel with their car for medical reasons, they can now be reimbursed at a rate that reflects their actual travel costs.

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

In a recent decision, the Federal Court of Appeal conclusively determined that federal public service adjudicators may hear and decide on cases where the Federal Government revokes an employee’s reliability status and then terminates her for the loss of that status.

The adjudicator in the case at hand had found that the employer did not have a legitimate concern that the Grievor posed a security risk when it decided to revoke her reliability status and then terminate her. He therefore found that the Grievor’s termination had been without cause and ordered her reinstatement.

Before the Federal Court of Appeal, the Government argued that this decision should be overturned. The Government took the position that federal public service adjudicators could only consider whether an employee was terminated for cause and did not have the power to consider whether the Government’s decision to revoke an employee’s reliability status was justified.

The Federal Court of Appeal squarely rejected this claim, finding that the adjudicator’s approach was “the only reasonable approach to be taken.” In doing so, the Court overturned a number of cases which had limited employees’ right to grieve where they were terminated due to the loss of reliability status. The Court concluded that these cases were “no longer valid,” cementing the right of employees to bring forward grievances in these circumstances and for public service adjudicators to determine whether a revocation leading to termination is, in fact, justified.

The employee was represented by Andrew Raven of RavenLaw.