Category Archives: News

On September 28, 2016, James Cameron will present at an Optimum Talent Lunch and Learn session titled “Has Terminating an Employee Without Cause Become More Difficult?”. The program will address the recent Supreme Court decision in Wilson v Atomic Energy as well as the proposed amendments to Ontario’s Employment Standard Act regarding the need for “cause” and the possibility of reinstatement for wrongfully terminated employees.

More information about the program can be found here.

Federal Court of Appeal Affirms Tribunal Decision on Discrimination on the Basis of Disability in the Hiring Process

In a decision delivered from the bench on November 8, 2016, the Federal Court of Appeal affirmed a decision of the Canadian Human Rights Tribunal that Transport Canada discriminated against Chris Hughes in a job competition because he was a person with a mental health disability. After attending an oral interview, the hiring panel asked for oral references. Mr. Hughes told the chair of the hiring panel that it was difficult for him to get references from past employers in the federal public service, notwithstanding positive performance appraisals from those employers, because he was a whistleblower who had been involved in litigation with the employers for discrimination on the basis of his disability. Mr. Hughes asked the hiring panel to consider his performance appraisals in lieu of references, and while the panel initially accepted this material from him, it was not satisfied that is was an acceptable substitute for oral references. The Tribunal found, however, that the positive performance appraisals in fact confirmed Mr. Hughes was qualified for the position, and the hiring panel’s knowledge of his disability was a factor in its decision to reject his candidacy.

Transport Canada applied for judicial review of the Tribunal’s decision and, last year, the Federal Court disagreed with the Tribunal’s finding and set the decision aside. In reversing that decision, the Federal Court of Appeal found that the Federal Court re-weighed the evidence before the Tribunal and effectively re-decided the case, even though there was more than ample evidence to support the Tribunal’s key findings. This included evidence that the chair of the hiring panel knew of Mr. Hughes’ disability before deciding he was unqualified for the job, that a document favourable to Mr. Hughes had been altered by the employer, and that the chair of the hiring panel disregarded the accepted human resources practice of considering written material in lieu of reference in favour of verbal references. On that basis, the Federal Court of Appeal concluded the Tribunal’s decision was reasonable.

Mr. Hughes was represented by David Yazbeck and Michael Fisher of RavenLaw.

David Yazbeck Interviewed on Federal Human Rights Reform

David Yazbeck recently spoke with the Canadian Bar Association’s National magazine regarding reform of the Canadian Human Rights Tribunal.

In his interview, David recommended an end to the federal system’s current two-step screening process for dealing with human rights complaints and the creation of a direct access model, like the one used in Ontario. He also commented on the importance of appointing members to the Tribunal who have expertise in and sensitivity to human rights matters.

Morgan Rowe to Present at Council of Canadians with Disabilities Conference

On November 30, 2016, Morgan Rowe will present at the 2nd Annual Council of Canadians with Disabilities Conference. This year’s topic is “Strategies for Competent and Ethical Disability Law Advocacy.” Morgan will be presenting on issues related to inclusive legal services and accommodating clients with disabilities.

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

More information regarding the conference can be found here.

Office Closure for Canada Day

Our office will be closed on Friday, July 1st for Canada Day.

Federal Court of Appeal Confirms that Amounts Earned by a Dismissed Employee are Deductible from a Damages Award due to Mitigation only if they are Referable to the Loss for which the Damages are Awarded

On April 26, 2016, the Federal Court of Appeal rendered its judgment in Bahniuk v Attorney General of Canada, 2016 FCA 127, allowing the appeal from the judgment of the Federal Court and setting aside a portion of a remedial award made by an Adjudicator of the Public Service Labour Relations Board. The appeal related to the Adjudicator’s decision to reduce the award for compensatory damages for unjust termination by all monies earned by the employee, Stanely Bahniuk, between the date of the termination and the date of the Adjudicator’s decision. This reduction was made by the Adjudicator despite the fact that Mr. Bahniuk did not earn income during the 14-month period to which the compensatory damages related.

In its decision, the Court confirmed that amounts set-off from contractual damages on account of mitigation must be referable to the loss for which damages were awarded. The Court was satisfied that the Adjudicator unreasonably set-off the amounts earned by Mr. Bahniuk in the time after the 14-month period for which he received compensatory damages for the unjust termination.

Mr. Bahniuk was represented by Andrew Raven and Amanda Montague-Reinholdt of Raven, Cameron, Ballantyne & Yazbeck LLP.

Kim Patenaude a Feature Volunteer for Reach Canada

Ravenlaw’s Kim Patenaude is honored to be a “Featured Volunteer” on the Reach Canada website. Kim has provided presentations for REACH on various topics such as the Duty to Accommodate and the Respectful Workplace. Kim also provides pro bono legal services through REACH’s lawyer referral service. REACH has provided this service and public education for individuals living with disabilities since 1981. Ravenlaw is a long-term, proud supporter of REACH.

Double Jeopardy: Arbitrator Recognizes that Email Criticising Conduct can Constitute Discipline

It is an established principle in labour law that an employer cannot impose more than one penalty for the same offence – but what constitutes a penalty? That was the issue at the heart of Collège Boréal, an arbitral award released on July 23, 2015, where an employee appeared to receive two sanctions for the same event.

The grievor was tasked with accompanying college students at a hockey tournament in Toronto, where several incidents involving alcohol consumption and on-ice altercations took place. Upon returning to the College, the grievor failed to disclose these events. After meeting with his supervisor, he was advised, by email, that a note would be placed on his employee file due to his lack of judgment. Roughly two weeks later, the grievor was placed on administrative suspension, and terminated shortly thereafter.

During the hearing, the employer argued that the supervisor’s email did not constitute discipline, and therefore, the College was not barred from imposing a subsequent penalty – in this case termination. In assessing whether the email constituted discipline, Arbitrator Kathleen O’Neil applied “an objective interpretation”, without “placing emphasis on the intention” of the supervisor. The email was deemed disciplinary and therefore, the employer was barred from imposing a second disciplinary sanction for the same events. The Arbitrator nonetheless added supplemental discipline for events that were not properly covered by the email.

The grievor was ultimately reinstated.

OPSEU, Local 672, was represented by Wassim Garzouzi of Raven, Cameron, Ballantyne & Yazbeck LLP.

Arbitrator Confirms that Cancellation of Shifts Constitutes a Layoff