David Yazbeck has joined the Board of Directors for CARFAC, Canadian Artists’ Representation/Le Front des Artistes Canadiens. CARFAC is a certified association representing visual artists across Canada.
David Yazbeck was recently re-elected as an Institutional Board Member for the Workers’ History Museum. David’s re-election continues RavenLaw’s long-standing support for the Workers’ History Museum. In addition to David’s role as a Board Member, RavenLaw has been an institutional member of the Board of Directors for a number of years.
The Workers’ History Museum was founded in 2011 with the goal of developing and preserving workers’ history, heritage and culture in the National Capital Region and Ottawa Valley.
Our office will be closed on Friday, July 1st for Canada Day.
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.
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.
In a decision rendered on March 14, 2016, the Human Rights Tribunal of Ontario rejected an employer’s request to have a Human Rights Code complaint dismissed on the basis that the employee had failed to establish the existence of a disability.
The adjudicator found that there was no requirement that medical conditions be permanent or persistent in order to qualify as disabilities within the meaning of the Code, specifically declining to follow prior case law from the Human Rights Tribunal which had established these requirements. The adjudicator also rejected the employer’s argument that a disability had to be ongoing at the time of the adverse treatment in order to be considered discrimination. Instead, the adjudicator observed: “The protections under the Code would have little meaning if an employer could terminate an employee because of disability-related absences provided the disability no longer exists at the time of termination.”
The employee was represented by Morgan Rowe of RavenLaw.
In its annual list of the top cases from the preceding year, Law Times News named Mounted Police Association of Ontario v Canada (Attorney General), Meredith v Canada (Attorney General), Saskatchewan Federation of Labour v Saskatchewan as three of 2015’s big cases. RavenLaw appeared before the Supreme Court of Canada in all three of these cases, representing the Public Service Alliance of Canada as an intervener in the cases.
In a landmark ruling, the Canadian Human Rights Tribunal has found that the federal government discriminates against First Nations children by chronically underfunding child and family services on reserve. The First Nations Child and Family Caring Society decision has significant implications, both for First Nations children and communities, and for broader human rights principles.
Background
The First Nations Child and Family Services Program is intended to provide culturally appropriate child welfare services to families on reserve that are reasonably comparable to the services available off reserve. This Program is managed by Aboriginal Affairs and Northern Development Canada (recently renamed Indigenous and Northern Affairs Canada). The non-profit First Nations Child and Family Caring Society and the Assembly of First Nations filed the complaint under section 5 of the Canadian Human Rights Act. Section 5 prohibits discrimination in the provision of services customarily available to the public. To succeed, the complainants had to prove: that the federal program was a service; that First Nations were adversely impacted by the program; and that race and national or ethnic origin were a factor in the adverse impacts.
Tribunal’s Decision
In its decision rendered on January 26, 2016, the Tribunal upheld the complaint. According to the Tribunal, the Program fails to ensure First Nations child welfare agencies who deliver the services receive sufficient funding to meet provincial standards, which focus on keeping families together, or specific community needs. By providing insufficient funding for preventative measures, the program has, in effect, created an incentive for the agencies to remove children from their families.
The Tribunal further found that the department had known for years that the Program denied adequate services to many First Nations, but neglected to enact reforms. Far from achieving its goals, the Program has reinforced the intergenerational trauma of the Residential School system. As the Tribunal explained, “the fate and future of many First Nations children is still being determined by the government, whether it is through the application of restrictive and inadequate funding formulas or through bilateral agreements with the provinces.”
Aboriginal Affairs argued the Tribunal had no jurisdiction to hear the complaint, because child welfare services are a provincial responsibility and, in its view, the federal involvement in program funding was simply a social policy decision and not out of obligation. Rejecting those arguments, the Tribunal found that Aboriginal Affairs provides a service under the Act by funding child and family services on reserve. In doing so, the federal government exerts significant control over the provision of these services on reserve, even if it does not deliver the services.
Furthermore, Aboriginal Affairs can hardly minimize its role in the provision of child welfare services on reserve in light of the federal government’s constitutional responsibility towards aboriginal peoples. Instead of legislating in this area, the federal government has opted for a programming and funding approach. Aboriginal Affairs “should not be allowed to evade its responsibility to First Nations children and families residing on reserve by delegating the implementation of child and family services” to First Nations agencies or provincial governments.
The Tribunal found that race and national or ethnic origin were a factor in the adverse impacts of the Program. This was unsurprising since the service targeted First Nations on reserve. In providing the service, Aboriginal Affairs was, to say the least, obliged to ensure it did not perpetuate the historical disadvantages suffered by First Nations, the legacy of colonialism and the country’s attempt to assimilate indigenous peoples.
Discussion
Filed in 2007, this complaint has had a long history. In 2011, the former chairperson of the Tribunal dismissed the complaint on the basis that there needed to be a comparator group and, as the federal government provided child welfare to no other groups, there was no chance of success. The Tribunal’s decision was set aside by the Federal Court, which found that a comparator group was not a prerequisite for a finding of discrimination. Upholding that judgment, the Federal Court of Appeal affirmed that the focus of the Tribunal’s inquiry should not have been whether there were comparators, but rather simply whether there was discrimination.
After the complaint was returned to the Tribunal, it was amended to include an allegation of retaliation by Aboriginal Affairs against the Caring Society’s Executive Director for having filed the complaint. A newly composed panel of the Tribunal substantiated the allegation in a separate decision.
The Tribunal’s decision in First Nations Child and Family Caring Society on the merits of the complaint may have implications on human rights jurisprudence more generally. Relying upon Charter equality jurisprudence and Canada’s international legal commitments, the Tribunal effectively imposed a positive obligation on the federal government to reform its First Nations child welfare program to ensure substantive equality for First Nations children and families living on reserve. In other words, the Tribunal has required the federal government to ensure its social program actually fulfills its ameliorative purpose or, at the very least, does not make things worse for the recipients of the benefit.
More specifically, the case may have broader application where the federal government is similarly involved in the provision of other services to First Nations communities. For example, Public Safety Canada provides significant funding to First Nations police services under its First Nations Policing Program. First Nations police services have reportedly struggled to provide adequate services to their communities due to insufficient funding, an issue identified in the Ontario Ipperwash Inquiry, which found that self-administered police services were drastically underfunded. This issue was also addressed in a recent award by an Ontario arbitrator. Time will tell whether the Tribunal’s analysis in the First Nations Child and Family Caring Society decision is applied to these other contexts.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
On February 2, 2016, James Cameron will be speaking at the Ontario Bar Association’s INSTITUTE conference on Privacy and the Workplace: The Scope and Limitations of Employee Privacy on the topic of “To what degree are employees entitled to privacy outside of business hours?”. The conference will explore where privacy fits in the employment relationship today, examining the implications of technology advancements on employee privacy and whether and how employers can take steps to mitigate employee conduct that takes away from business activities. More information about the conference is available here.
Employment lawyers are frequently asked to predict the length of reasonable notice that a court would award to an employee who has been terminated without cause. There is no set formula that applies to all cases, but lawyers have historically relied on the fact that, barring exceptional circumstances, courts generally don’t award more than 24 months’ notice. However, in Keenan v Canac Kitchens Ltd, the Ontario Court of Appeal recently cast doubt on that assumption by upholding an award of 26 months of reasonable notice, in a case without any identified exceptional circumstances.
Background
This was a claim by two very long-service employees. Mr. Keenan worked for Canac Kitchens since 1976, and his wife joined him in that work in 1983. Both plaintiffs performed supervisory roles for many years, and were the “face” of the company, acting as Canac’s representatives. From the start of their employment until 2007, they worked exclusively for Canac. As work slowed down, in 2007, they began to also perform work for a competitor. In 2009, they were both let go.
There were two key issues in the action for wrongful dismissal: whether the Keenans were dependent or independent contractors, and, if they were dependent contractors, what period of reasonable notice were they entitled to upon termination. On the first issue, the trial judge found that the Keenans met all the criteria to be considered dependent contractors, and were therefore entitled to reasonable notice. (For more information on dependent contractors, see: “Are you an employee, independent contractor or dependent contractor?”) On the second issue, the trial judge held that 26 months’ notice was reasonable in the circumstances, and therefore awarded $125,000 to the Keenans. Canac Kitchens appealed on both issues.
Ontario Court of Appeal’s Judgment
In its judgment rendered on January 26, 2016, the Ontario Court of Appeal upheld both aspects of the trial judgment. Regarding the length of reasonable notice, the Court held that there was no basis to interfere with the trial judge’s award, given the relevant factors for calculating reasonable notice:
Lawrence Keenan and Marilyn Keenan worked for Canac for approximately 32 and 25 years respectively. Together, their average length of service was 28.5 years. They were 63 and 61 years of age at the time of termination. They held supervisory, responsible positions in which they oversaw the installation of Canac’s products and met with Canac’s customers as its representatives. For over a generation, they were Canac’s public face to the outside world. Over a period of approximately thirty years – the entirety of their working lives – the Keenans’ income had come from Canac and they relied on that income to support themselves and their family. Even during the approximately two years that they provided some services to Cartier, a “substantial majority” of the Keenans’ work continued to be done for Canac. These circumstances justify an award in excess of 24 months and I see nothing wrong in the trial judge’s finding that 26 months’ notice was reasonable.
Opening the door for longer periods of reasonable notice?
Conventional wisdom in employment law has long been that employees are unlikely to receive awards of reasonable notice in excess of 24 months. By upholding a judgment of 26 months’ notice, the Court of Appeal has arguably opened the door for larger awards in wrongful dismissals involving older, long-service employees. This judgment could have significant implications for future cases, particularly in light of the aging workforce in Canada. Employees whose circumstances support it can now potentially pursue claims beyond what was previously thought to be a ‘ceiling’ of 24 months’ notice. Employment lawyers and workers’ advocates will closely watch this development in future cases, to determine whether this is part of a larger trend towards longer notice periods.
For more information about calculating reasonable notice, see: “What is reasonable notice?”
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]