RavenLaw is proud to sponsor an event on the Public Service Alliance of Canada’s struggle for pay equity, co-hosted by PSAC, the Workers’ History Museum, and the University of Ottawa Human Rights Research and Education Centre. The event will take place on December 10, 2015 at the University of Ottawa Alumni Hall, beginning at 5:30 pm for the English event and 7:30 pm for the French event. The event will tell the story of the PSAC pay equity struggle, with questions and answers, as well as entertainment provided by the Just Voices Choir.

In a recent decision, an adjudicator of the Public Service Labour Relations and Employment Board found that the Parole Board of Canada failed to accommodate an employee’s disability, contrary to the Canadian Human Rights Act.  This decision provides important confirmation that employees with mental health concerns must be accommodated by their employers up to the point of undue hardship.

Background

A grievance was filed by Line Emond, a statistics and data quality manager at the Parole Board of Canada, due to emotional stress caused by her fear of a co-worker. The medical evidence presented at the hearing revealed that the grievor’s fear was real and the emotional stress caused by the co-worker’s presence affected her ability to work. She had requested accommodation from her employer permitting her to work anywhere except in the same building as her co-worker.  While the employer offered to move her to an office on a separate floor with additional security, the grievor’s treating physicians agreed that the employer’s proposal was insufficient as the grievor would continue to feel unsafe. The medical evidence demonstrated that this emotional stress affected her memory, concentration and her ability to function normally.

Board’s Decision

In a decision rendered on January 25, 2016, Adjudicator Linda Gobeil allowed Ms. Emond’s grievance. The Adjudicator found that the grievor suffered from a disability or incapacity: the emotional stress suffered by the employee amounted to a disability that triggered the employer’s duty to accommodate. The Adjudicator further found that the employer failed in its duty to provide reasonable accommodation. The Adjudicator found that the employer’s proposed solution was not a reasonable one, and it was reasonable to expect the employer to be able to locate a workspace in another location for the employee. The employer was ordered to find a workspace in another building for Ms. Emond, and Ms. Emond also received compensation for the lost wages and benefits during her time on long-term disability.

As counsel for the grievor, Kim Patenaude, of RavenLaw, told the Ottawa Citizen, the Adjudicator’s decision “has the potential to broaden an employer’s responsibility to provide accommodation” and is a win for employees with disabilities, especially those with mental health concerns.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

With Parliament officially re-opened following the federal election, everyone is watching to see whether the many campaign promises made by the incoming Government will be kept. One area that was the subject of more than its share of pledges was labour legislation. After nearly a decade in power, the Conservatives left behind a raft of anti-union laws that the incoming Liberals have vowed to clean up. Based on open letters and other public statements issued by the Liberals before and during the campaign, labour lawyers and workers’ advocates expect to see the following key pieces of legislation either reformed or repealed by the incoming Government:

Bill C-377

• What it does: this legislation imposed onerous financial disclosure and reporting obligations on all unions in Canada, well beyond those required of charities or non-profits.
• Campaign promise: As an MP, Justin Trudeau opposed this Bill, going so far as to write to the Senate urging it to reject it. (Notably, the Senate did successfully defeat the legislation once, requiring the Government to ignore the rules of the Senate to finally get it passed.) The Liberals have vowed to repeal this legislation.

Bill C-525

• What it does: this legislation changed the rules for certification of federal public and private sector unions, making it more difficult for workers to certify less difficult to decertify. Rather than allowing labour boards to determine that a union enjoyed the support of the bargaining unit based on membership cards, Bill C-525 required a secret ballot vote, while failing to provide the protections necessary to ensure employers could not apply improper pressure on their workers in the lead up to the vote.
• Campaign promise: Trudeau has promised that the Liberals would repeal this legislation.

Bill C-4

• What it does: Among the many laws amended by this omnibus bill, the Public Service Labour Relations Act was amended to give the Government unilateral authority over essential services: this means the government can prohibit employees from participating in a strike on the basis that they perform essential duties, a determination typically made by an independent labour board. This law closely resembled legislation that the Supreme Court of Canada had struck down earlier this year on the basis that it violated the constitutional right to strike. Bill C-4 also amended the definition of danger in the Canada Labour Code, making it more difficult for workers to refuse to perform dangerous work.
• Campaign promise: In an open letter during the campaign, Trudeau stated that Bill C-4 “stacked the deck against workers” and promised to consult with public sector partners and “revisit” this legislation.

Bill C-59

• What it does: Bill C-59 gave the Government the unilateral authority to extinguish employee sick leave banks from collective agreements and replace them with a short-term disability program. These powers allowed the Government to effectively ignore the collective bargaining process and ensure that it succeeded in securing its primary objective in this round of bargaining. The Conservative Government went as far as to preemptively “book” $900 million in savings in the 2015-2016 fiscal year on account of this change, demonstrating its contempt for the collective bargaining process.
• Campaign promise: The Liberals have publicly opposed implementing a new sick leave regime through legislation, and have expressed their commitment to bargaining with the unions in good faith.

Workers and unions will be watching to see whether the Liberal Government follows through on these campaign promises, and to see what form the more abstract commitments will take. For example, will “revisiting” Bill C-4 mean simply restoring the former essential services regime, or will the Liberals develop a new regime in consultation with workers’ representatives?

Beyond formal legislation, the Government has also promised a more positive approach to labour relations generally. This raises its own host of questions, including:

• Will the new Government depart from the Conservatives’ eagerness to interfere in labour relations through back-to-work legislation:
• Will the Liberals take steps to establish a proactive pay equity regime in line with the 2004 recommendations of the federal Pay Equity Task Force?
• Will the Government protect the right of public service employees to do their work free from political interference?

It will take years to fully assess the Government’s ability to restore trust and respect to federal labour relations. In the meantime, workers will look for early signs that the Government will follow through on the clear commitments it made in its efforts to get elected.

[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 decision rendered on January 25, 2016, adjudicator Linda Gobeil of the Public Service Labour Relations Board concluded that the Parole Board of Canada failed to accommodate a grievor suffering from “emotional stress” in a manner consistent with the requirements of Canadian Human Rights Act.

The adjudicator found that the emotional stress suffered by the employee as a result of her proximity to a particular co-worker amounted to a disability that triggered the employer’s duty to provide reasonable accommodation. The employer was ordered to find workspace for the grievor in another building and to compensate her for lost wages and benefits during the relevant time frame.

The grievor was represented by Kim Patenaude of RavenLaw, who told the Ottawa Citizen that the Adjudicator’s decision “has the potential to broaden an employer’s responsibility to provide accommodation” and is a win for employees with disabilities, especially those with mental health concerns.  For more information, click here.

Our office hours during the holidays are as follows:

December 24 – closed at noon

December 25-28 – closed

December 29-30 – opened

December 31 – closed at noon

January 1 – closed 

Thank you and Happy Holidays.

On October 27, 2015, David Yazbeck will be speaking as part of a panel on “Tribunal Trends and an In-Depth Look at the Administrative Tribunals Support Service of Canada” at the Canadian Institute’s 15^th Annual Advanced Administrative Law & Practice conference in Ottawa. David’s panel will focus on how the ATSSC is working nearly one year after the rollout. In particular, the panel will discuss concerns over the impact of the ATSSC on institutional and judicial independence of tribunals, whether there are any proceedings challenging the ATSSC, and practice tips for the ATSSC environment. 

More information about the conference is available here.

On November 7, 2015, Michael Fisher, Amanda Montague-Reinholdt, Dayna Steinfeld and Morgan Rowe participated in the moot court for first-year law students at the University of Ottawa. Our lawyers enjoyed the opportunity to support the moot by serving as judges in the competition and by providing students with feedback and comments. They were impressed by the high level of preparation displayed by all the participants and extend congratulations to the students who advanced to the playoff rounds.

On November 25, 2015, David Yazbeck will be speaking as part of a panel on “Human Rights Violation at the Healthcare Workplace: How to Handle Harassment, Bullying and Discrimination” at the National Healthcare Labour & Employee Relations 2015 conference. The panel will discuss the legal obligations of employers to protect human rights at the workplace, how to conduct a proper investigation of harassment, bullying or discrimination at the workplace, and the union’s role in the protection of human rights at the workplace. David is also a co-chair of the conference.

Dayna Steinfeld has been appointed to the National Board of the Women’s Legal Mentorship Program (“WLMP”). The WLMP is a not-for-profit that works in partnership with Canadian universities to provide a comprehensive feminist legal mentorship program through its university level and WLMP Alumna Chapter. The goal of the WLMP is to help women develop a support system that will help them throughout their legal careers from the classroom to the courtroom and beyond. The program facilitates peer mentorship, student-lawyer mentorship and professional development and leadership events.

On October 29, 2015, Morgan Rowe and Dayna Steinfeld will be presenting a LEAF at Work workshop at the Glebe Collegiate Institute. LEAF at Work is a one-hour workshop for high school students focused on equality rights and issues of discrimination and harassment in the workplace.  

LEAF – the Women’s Legal Education and Action Fund. LEAF is a Canadian non-profit organization, formed in 1985, that works towards advancing the equality of women and girls in Canada through using the Canadian Charter of Rights and Freedoms. LEAF’s work focuses on litigation, law reform efforts and public legal education programs.