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 Although repealed shortly after the end of the war, most provinces passed laws resembling PC 1003, including features like union recognition, the duty to bargain in good faith,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.

In a recent decision, the Public Service Labour Relations and Employment Board allowed a complaint filed by the Public Service Alliance of Canada, alleging that the government had interfered with the union’s administration and its representation of members during collective bargaining. The complaint was filed after Treasury Board refused to permit a union negotiator to conduct walkthroughs of various worksites, and hold on-site meetings with members to discuss bargaining issues.

PSAC had filed a similar complaint in the last round of collective bargaining, which was also allowed by the Board. The Board had found the employer’s refusal to grant the union access to the worksite to violate the Public Service Labour Relations Act, and the Board ordered the employer to cease denying access in the absence of a compelling and justifiable business purpose.

In the more recent complaint, PSAC complained again that the employer was denying access to the worksite without any business justification; instead, the employer was simply relying on its property rights, and the limited rights of the union to enter the employer’s premises in the Collective Agreement. The union argued that the employer’s position showed a blatant disregard for the final and binding decision in the previous case.

In its decision, dated September 14, 2016, the Board again found in favour of the union. The Board held that the union had a legitimate interest in the negotiator viewing the worksite, and that the employer had not presented any compelling or justifiable reasons to deny access. The Board therefore allowed the complaint, and ordered the employer to cease denying access in the absence of compelling and justifiable business reasons that such access might undermine its legitimate workplace interests.

This is a significant victory for unions in the federal public service, and provides important affirmation of the union’s interest in gaining a better understanding of working conditions on the ground and meeting with members during collective bargaining.

The union was represented in the complaint by Amanda Montague-Reinholdt of RavenLaw.

On December 22, 2016, the Federal Court issued an interim Order in response to an application filed by 14 federal public service unions regarding the pay problems faced by their members since the implementation of the Government’s new pay system, known as Phoenix, in early 2016.

The order outlines a number of steps that the federal government must take to resolve the pay issues. These include sharing information in an open and transparent manner through the Union Management Consultation Committee, making Phoenix experts available to the Committee, maintaining a dedicated team of compensation advisors to address pay disruptions related to disability, maternity, and paternity leaves, and ensuring that individuals in these situations are not denied access to emergency replacement pay on the basis that they are on a period of leave. The interim Order provides additional protections to employees advancing individual claims for compensation and is without prejudice to the rights of the Unions should it become necessary to address the application on the merits.

The unions were represented in this application by Andrew Raven, Andrew Astritis, and Morgan Rowe of RavenLaw.

Ravenlaw is pleased to welcome Kim Patenaude and Wassim Garzouzi into the partnership, effective January 1, 2017. Both Kim and Wassim began their careers with Ravenlaw and have made significant contributions to the firm.

Kim is fluently bilingual and provides practical advice and representation to individual clients on issues such as wrongful dismissal, constructive dismissal, severance packages, employment contracts, non-compete clauses, long term disability benefit claims, WSIB/Workers’ compensation, discrimination, harassment, and accommodation. Kim has acted in matters before federal and provincial courts, boards, tribunals, and arbitrators on behalf of public and private sector unions, and employees.

Wassim maintains a robust bilingual practice dedicated exclusively to the representation of unions and their members in all areas of labour relations. Wassim specialises in arbitration proceedings and regularly appears before labour and arbitration boards across the country. He was elected by his peers to serve as Regional Vice-President for the Canadian Association of Labour Lawyers and is a Part-Time Professor at the University of Ottawa’s Faculty of Law, where he teaches the advanced Labour Law course.

We thank Kim and Wassim for their important work in advancing union and worker rights, and congratulate them on becoming partners.

In a recent decision, the Federal Court quashed a decision on behalf of the Minister of Labour, in which the Minister had refused to investigate the work refusal of a federal public service employee.

The Applicant employee had notified her employer that she was refusing to work for health and safety reasons in February 2015. On May 13, 2015, the Labour Affairs Officer assigned to the Applicant’s case completed a memorandum recommending a finding of dangerous work. Nonetheless, on July 13, 2015, the Applicant was advised that the Minister was declining to investigate her work refusal on the basis that her concerns were better addressed through a grievance.

In its January 31, 2017 decision, the Federal Court held that the Minister’s decision was unreasonable. The Court found that the decision-maker had offered no transparent or justifiable explanation for rejecting the Labour Affairs Officer’s recommendation or for concluding that the grievance process was a more appropriate way to address the Applicant’s concerns.

In reaching its conclusion, the Court also highlighted the importance of ensuring that refusals of unsafe work are dealt with in a timely manner, through the specialized process established under the Canada Labour Code, noting that it found the Applicant’s submissions on these points persuasive.

The Applicant was represented in this application by Andrew Raven and Morgan Rowe of RavenLaw.

A group of former members of the Canadian Armed Forces, represented by Raven, Cameron, Ballantyne & Yazbeck LLP have launched a class action lawsuit on behalf of women and men who experienced sexual assault or sexual harassment in their service with the Canadian military. The lawsuit was initiated on Monday, November 28, 2016, when a Notice of Action was filed in Ontario Superior Court.

The plaintiffs, Amy Graham, Nadine Schultz-Nielsen, and Larry Beattie, are members of It’s Just 700, a Canada-wide online resource and peer support group for survivors of Military Sexual Trauma (MST). The group decided to bring a class action against the Canadian Armed Forces, in an effort to change a system that condones sexual misconduct and punishes victims instead of perpetrators. The claim alleges that the Armed Forces have systemically failed to prevent and protect against sexual assault and sexual harassment, including by discouraging victims from reporting, failing to investigate reported incidents, and retaliating against members who come forward.

The group filed the lawsuit on the same day that Statistics Canada revealed the results of its survey on sexual misconduct in the Armed Forces. The survey found that 1.7% of regular force and 2.6% of reserve force members had reported experiencing sexual assault in the past 12 months. More than one quarter of female members reported experiencing sexual assault at some point in their military career. Because the survey excluded any members who were on courses or had been released, and because of the continued stigma associated with reporting, there is good reason to believe the actual rates of sexual misconduct are much higher than found in the survey.

Watch for further updates on the class action lawsuit on the Raven Law website.

If you or a family member are a current or former member of the Canadian Armed Forces who has experienced sexual assault or sexual harassment in the military, you can contact our firm at armedforcesclassaction@ravenlaw.com. 

For media inquiries, please contact Andrew Raven at 613-567-2902 or araven@ravenlaw.com.

notice-of-action-16-70743-cp-issued-november-28-2016

In a recent judgment, the Federal Court overturned a decision of the Canadian Human Rights Commission, and delivered a strong rebuke of the Commission’s continued mishandling of a human rights complaint. This judgment affirms the importance of a complainant’s right to be heard, and calls upon the Commission to improve its procedures.

Background

The complainant, Michele Bergeron, had filed two human rights complaints with the Canadian Human Rights Commission. First, she had complained that her employer failed to accommodate her on the basis of her disability. Later, she complained that the employer retaliated against her for filing the first complaint. Both complaints were initially dismissed by the Commission. However, the Federal Court overturned the dismissal of the retaliation complaint, because of a glaring error in the Commission’s procedure. The Commission typically prepares an investigation report regarding a human rights complaint, which is submitted, along with the parties’ comments, to the Commissioner for a decision. In this case, the Commission had prepared two separate reports, one for each complaint. However, the Commission’s decision dismissing the retaliation complaint quoted from the report for the first complaint.

The Federal Court found that the decision, relying on reasons related to a completely separate complaint, could not stand. The retaliation complaint was therefore returned to the Commission, where it was dismissed a second time. Ms. Bergeron filed a second application for judicial review to the Federal Court, alleging that, once again, the Commission had committed significant procedural errors in her case. 

Federal Court judgment

In Bergeron v Canada (Attorney General), the Federal Court once again struck down the Commission’s decision, on the basis that the Commission had committed multiple serious breaches of procedural fairness. First, the Court found that the Commission rendered its decision based on an inaccurate record: the Commission had included in the record the Applicant’s submissions from the first complaint, rather than her submissions regarding the retaliation complaint. The Court found this to be a clear breach of fairness: “one may with considerable confidence say that little if anything is more fundamental in administrative law than the requirement that a decision-maker hear both sides of a dispute. Yet here the Commission breached this fundamental rule of natural justice.”

Second, the Court found that the Commission had also failed to review a final set of submissions filed by the Applicant, because those submissions had expressly identified the error in the record. The Court noted that, if the Commission had reviewed the Applicant’s final submissions, “it is inconceivable that, in such circumstances, the Commission would continue to consider – let alone decide – this case without first obtaining the Applicant’s missing submissions on the case.” On the basis of these fundamental errors, the complaint was sent back to the Commission for reconsideration.

Canadian Human Rights Commission criticized

In his judgment, the Honourable Justice Brown had some strong words for the Commission regarding its overall handling of Ms. Bergeron’s complaint. He noted the uncontested evidence that a member of the Commission’s staff had told Ms. Bergeron, when the complaint was referred back to the Commission, that the Commission would simply be correcting a “cut and paste” error. He found that “these comments do not describe conduct I would expect from staff of the Commission”, and stated: “Commission staff should avoid appearing dismissive as was the case here.”

Justice Brown also emphasized that the Commission’s decision regarding this complaint has now been struck down twice for procedural unfairness, noting: “It appears to me, with all due respect, that there is room for improvement in the Commission’s Early Resolution procedures”. Regarding the third consideration of the complaint, he admonished the Commission: “It should be done properly this time.” This judgment provides an important reminder that the Commission’s gate-keeping role impacts complainants’ fundamental rights, and therefore the Commission must perform that role with diligence and care.

The Applicant was represented in this application by Amanda Montague-Reinholdt of RavenLaw.