On September 16, 2016, David Yazbeck will present at the Canadian Bar Association’s Critical Advocacy Strategies for Labour and Employment Lawyers program. The program will provide updates and practical strategies for advocating before labour boards, human rights tribunals, arbitrators and the courts.
In a recent court decision, the Federal Court overturned the decision of the Canada Border Service Agency to reject the classification grievances of over 45 management employees. The Court found that CBSA’s decision was unreasonable because it failed to consider portions of the employees’ job description which strongly supported their request for an upward reclassification. Furthermore, the Court found that CBSA had not explained its reasons for reaching a decision that appeared contrary to the evidence.
This is the second time these employees have been successful in overturning CBSA’s decision to reject their grievances. The previous decision of the Federal Court was rendered on July 24, 2014.
The employees were represented in both cases by Andrew Raven and Morgan Rowe of Raven, Cameron, Ballantyne & Yazbeck LLP.
Wassim Garzouzi was elected as Vice-President (Ontario) for the Canadian Association of Labour Lawyers at CALL’s annual conference in St. John’s, Newfoundland from June 2 to 5, 2016. Wassim is thankful for the support he received and looks forward to representing CALL’s Ontario members.
CALL’s mission is to connect union-side labour lawyers across Canada and to advocate for the legal interests of Canadian workers and labour organizations before provincial and federal governments, labour boards, and all levels of court.
On November 4, 2016, Morgan Rowe spoke to the University of Ottawa – Faculty of Common Law’s “Human Rights” class, as part of the class on emerging topics in human rights. This is the fifth year that Morgan has been invited to speak as part of this class. Her presentation focused on topics related to sexual orientation, asexuality, and the regulation of personal relationships.
On June 16, 2016, Wassim Garzouzi spoke as part of Lancaster House’s audio conference on Stopping Sexual Harassers Cold: Optimal practices for complaint procedures, investigations, and survivor support. The program addressed how to identify sexual harassment, best practices for investigating complaints, and internal procedures and outside resources that can help fractured workplaces. The audio conference also covered the factors that arbitrators and human rights tribunals consider when assessing damage awards for harassment.
In a recent decision, the Superior Court of Ontario awarded a dismissed employee punitive damages because of the employer’s conduct in terminating the employee. This judgment sends a clear message to employers that mistreatment of employees upon termination will not be accepted, and can result in additional liability.
Tom Morison’s employment was terminated after approximately 8 years. Mr. Morison brought a claim for wrongful dismissal. In addition to his claim for reasonable notice, he also alleged that the employer had violated its duty of good faith in the termination, including:
In his judgment, Justice Roger agreed that this conduct warranted an award of punitive damages. Justice Roger concluded that such conduct was “reprehensible”. He added that the employer’s actions “exceeds what might be considered as ill-advised. The allegations of cause, made with no reasonable basis, and the significantly delayed payment of statutory amounts were intentional and financially impacted the plaintiff. These actions of the defendant were designed to financially benefit the defendant and the defendant had knowledge of the plaintiff’s precarious financial position. Such a conduct is ‘malicious, oppressive and high-handed’ and ‘a marked departure from ordinary standards of decent behaviour’.”
Justice Roger determined that an award of $50,000 in punitive damages was appropriate in the circumstances.
Important message sent to employers
This decision sets an important precedent and will hopefully give pause to employers who try to exert financial pressure on dismissed employees. Unfortunately, some employers resort to tactics such as delaying payment of ESA notice and severance, or raising allegations of just cause without any reasonable grounds, in an attempt to secure a quicker and less expensive settlement of the termination.
These strategies are reprehensible, and received a well-deserved rebuke from the Court in this judgment. Recently terminated employees are vulnerable and are often prepared to waive their rights for an immediate payout, even if the amount is below what is reasonable or required by law. By delaying payment of the ESA minimums, employers add additional pressure on employees to accept less than desirable settlement agreements. This judgment gives employees and their advocates greater power to defend against these tactics: the prospect of a significant award of punitive damages will hopefully deter other employers from acting in this manner in the future.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
On July 21, 2016, James Cameron spoke to Ottawa Parkinson Canada to provide an information session on applying for LTD benefits and the legal and appeal processes available for challenging decision denying benefits.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
If you have been treated differently by your employer because of your sex, disability, race, sexual orientation, or one of the other protected grounds of discrimination, you may want to consider filing a human rights complaint. One of the first questions you may have, in addition to whether you have been discriminated against at work, is where you should go to file your human rights complaint. There are multiple forums to bring a human rights complaint, each with its advantages and disadvantages.
Human Rights Tribunal
The first, and most obvious, forum for a human rights complaint is the human rights tribunal. For employees in Ontario, this is the Human Rights Tribunal of Ontario, which applies the Human Rights Code. Under the Code, any person who believes his or her rights under the Code have been infringed may bring a complaint (called an Application) to the Tribunal.
The one exception, in terms of who can apply, is employees under federal jurisdiction. Certain types of employers (e.g. airlines, banks, and Canada Post) are federally regulated. If you work for a federally-regulated employer, you must file your human rights complaint with the federal Canadian Human Rights Commission.
Advantages
Disadvantages
Civil Court
It is also possible, in some circumstances, to bring a human rights complaint in civil court. This option is provided under section 46.1 of the Human Rights Code, which gives the courts the power to award monetary compensation and restitution remedies under the Human Rights Code.
This option, however, is not available to everyone: you cannot bring an action in court if the only basis for the claim is an infringement of the Human Rights Code. This means that there must be some additional wrongful act in the court claim (for example, a claim of wrongful dismissal).
Advantages
Disadvantages
Labour Arbitration
Labour arbitrations are an increasingly common forum for the adjudication of human rights complaints. However, this forum is only available to unionized employees. If you are a unionized employee, you should contact your union about your human rights issue, to determine if they will represent you in the grievance arbitration process. If the union chooses not to proceed with a grievance, it may still be possible for you to pursue your human rights complaint in one of the other forums.
Conclusion
The issue of the most appropriate forum to file your human rights complaint is not always straightforward. There may be a dispute about whether your complaint falls under federal or provincial jurisdiction; and, there may be important strategic considerations as to whether you should proceed in court or through the Tribunal. A human rights lawyer can assist you in weighing the pros and cons of the available options and ensuring your rights are protected by following the correct process.
We are here to help: Consult one of our experienced human rights lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering filing a human rights complaint.
On August 18, 2016, David Yazbeck moderated an audio conference for Lancaster House dealing with issues related to autism in the workplace, including how to counter stereotypes regarding autism spectrum disorders and how to accommodate individuals with autism spectrum disorders in their employment.
More information about the audio conference is available here.
On November 5, 2016, RavenLaw proudly supported the Workers’ Bowl, sending a team to the annual fundraiser for the Workers’ Action Centre, a Toronto-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.
The “Ravenclaw” team — Wassim Garzouzi, Michael Fisher, Morgan Rowe and Saranjit Cheema — joined bowlers from unions and union-side labour firms, among other supporters, to help raise funds for these important initiatives.