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 The Court concluded that these cases were “no longer valid,” cementing the right of employees to bring forward grievances in these circumstances and for public service adjudicators to determine whether a revocation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.

On October 31, 2017, RavenLaw appeared before the Supreme Court of Canada to argue in support of a Charter challenge to certain restrictive portions of Québec’s pay equity legislation.

In particular, in 2009, the Québec government made changes to its pay equity law which required employers to review their wage rates every five years to determine whether changes to wages had resulted in wage discrimination. However, the 2009 amendments to the Pay Equity Act also prevented affected employees from claiming any remedy for discrimination that occurred in between the five-year reviews.

Before the Supreme Court, unions, workers, and pay equity and women’s organizations joined together to argue that these amendments resulted in ongoing discrimination against women and breached their Charter rights.

Andrew Raven, Andrew Astritis, and Morgan Rowe from RavenLaw appeared on behalf of the intervener, the Public Service Alliance of Canada.

For the second time, a decision of the Canadian Human Rights Commission to dismiss a complaint regarding discrimination related to medicinal marijuana has been set aside by the courts. In McIlvenna v Bank of Nova Scotia, the Federal Court found that the Commission breached its duty of fairness and ignored obviously crucial evidence supporting a complaint that Scotiabank had called in a mortgage because of the presence of medicinal marijuana on the mortgaged property.

Background

The Applicant, 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 Canadian Human Rights Commission initially rejected the complaint without an investigation. That decision was overturned by the Federal Court of Appeal, which found it unreasonable for the Commission to refuse to investigate, when there was a live factual dispute between the parties as to whether the Bank made its decision on discriminatory grounds. (See the Federal Court of Appeal’s decision here.)

The complaint was returned to the Commission for investigation. Following its investigation, the Commission again dismissed the complaint, finding that further inquiry into the complaint was not warranted. Mr. McIlvenna again sought judicial review of the decision in Federal Court. Among his arguments, he raised the fact that there were internal Bank emails in the Commission’s investigation file, which clearly supported the McIlvennas’ allegation that the mortgage was called in because of the presence of medicinal marijuana.

Judgment of the Federal Court 

In his judgment, dated July 19, 2017, Justice Boswell of the Federal Court allowed the Application for judicial review. He found that the Commission failed to investigate obviously crucial evidence before it—specifically, the internal Bank emails. The Court held:

“The content of these two emails, in particular the email sent July 15, 2010, is obviously crucial evidence given the relevant allegations in the Applicant’s human rights complaint and the contradictory statements by the Applicant and his son. A reasonable person would agree that this evidence was crucial because it lends credence to the Applicant’s position that his son’s growing of medical marijuana may have been a factor in the Bank’s decision to call in the mortgage. Although the July 15, 2010 email is certainly not conclusive of exactly what was said during the July 15th meeting, at the very least it tends to corroborate the Applicant’s claim that Ms. Joliat discussed the Bank’s policy on grow-ops during their meeting and is crucial in determining the merits of the Applicant’s claim.”

Justice Boswell found that the Investigator “glossed over this evidence”, and failed to investigate the Bank’s policy on marijuana “grow-ops” in determining whether the Bank had a reasonable, non-discriminatory explanation for calling in the mortgage. The Court went on to find the ultimate decision unreasonable, because the Commission’s analysis “essentially ignores the evidence contained in Ms. Joliat’s two emails”, despite the fact that these emails supported the McIlvennas’ version of events. The complaint was referred back to the Commission for re-determination and, if necessary, further investigation.

The Applicant was represented in the Federal Court by Andrew Astritis and Amanda Montague-Reinholdt of RavenLaw.

On November 4, 2017, RavenLaw participated in the 6^th annual Workers’ Bowl, an annual fundraiser in Toronto for the Workers’ Action Centre, a worker-based organization that advocates for fair working conditions for vulnerable workers. The Workers’ Action Centre has a Workers’ Rights Info Line that workers can call for support, offers workshops on workers’ rights and is part of the campaign to raise the minimum wage to $15.

The bowling tournament is hosted by the Ontario Employment Education & Research Centre (OEERC), a non-profit that works with community partners such as the Workers’ Action Centre to educate workers on their rights and provide supports to workers whose rights have been violated.

This is the second year that the RavenLaw team – Wassim Garzouzi, Morgan Rowe, Anna Lichty, and Marlee Olson – has joined bowlers from unions and union-side labour firms, among other supporters, to help raise funds for these important initiatives.

Morgan Rowe recently delivered a guest lecture in the University of Ottawa’s Labour Law I course. The lecture addressed the rules governing the relationship between unions and their members, union security provisions, and the evolving role of unions in society.

On February 28, 2017, Morgan Rowe presented a webinar for the Canadian Association of Occupational Therapists on disability rights and advocacy. The presentation focused on the duty to accommodate disability, the legal and non-legal ways that people with disabilities can advocate for accommodation, and the role of medical professionals in accommodation processes.

On November 5, 2016, Jacob Saltiel participated as a judge in the University of Ottawa Law’s moot court competition for first-year students. Jacob judged two groups of students who presented arguments based on the Ontario Court of Appeal’s decision in Spence v BMO Trust Company. Jacob provided commentary and guidance to the impressive participants on their oral advocacy and presentation.

David Yazbeck has recently been appointed as a member of the Advisory Committee for the Queen’s Centre for Law in the Contemporary Workplace. This committee is composed of leaders in the field of workplace law. It is a tremendous resource for the Centre, providing advice on emerging issues, on research and conference activity and linking the Centre and its work to diverse professional communities with an interest in workplace law. Launched in 2010, the mission of the Centre is to advance law and policy in the contemporary workplace. Its vision is to be a leading force for innovation and law, policy and dialogue in the contemporary workplace.

Amanda Montague-Reinholdt has been elected to the Board of Directors for the Magnetic North Theatre Festival. Amanda has also been elected to serve as Secretary on the Board’s Executive Committee.

Magnetic North is Canada’s only national theatre festival, showcasing the very best of contemporary Canadian theatre. It has its home base in Ottawa, which hosts the festival every second year. The festival also has a unique travelling mandate, hosting the festival in a different community across Canada in alternate years, including the incredibly successful 2016 festival in Whitehorse. The next festival will take place in Ottawa in June 2017, coinciding with the celebrations of Canada’s 150^th anniversary.