The Ontario Court of Appeal recently heard the appeal brought by the Public Service Alliance of Canada challenging the constitutionality of the Expenditure Restraint Act. This legislation was introduced by the Federal Government in 2009 to cap wage increases in future collective agreements and roll-back increases previously agreed to by the parties in existing collective agreements. The appeal is one of three being heard across the country with respect to this legislation.

PSAC was represented by Andrew Raven and Andrew Astritis of our firm.

On November 25, 2015, Kim Patenaude will be speaking as part of a panel on “Disclosure of Medical and Personal Information: Rights of Employees and Employers” at the 2015 National Healthcare Labour & Employee Relations conference held by Insight. The panel will discuss privacy policy in the healthcare sector, how it stands out from other industries, what information the employer can and cannot request and how to effectively manage business with the presence of strict privacy and information disclosure policies. 

Andrew Astritis recently delivered a guest lecture in an upper-year Labour Law course at the University of Ottawa. The lecture addressed workers’ rights under section 2(d) of the Canadian Charter of Rights and Freedoms, including a discussion of the implications of the Supreme Court of Canada’s recently released trilogy of cases on this issue. Andrew Astritis appeared as co-counsel with Andrew Raven before the Supreme Court of Canada in each of these cases on behalf of the Public Service Alliance of Canada.

RavenLaw was proud to again support the Annual Ottawa Women’s Legal Education and Action Fund (“LEAF”) Persons Day Breakfast. This year’s breakfast, part of LEAF’s 30^th anniversary year, focused on issues of access to affordable housing and the homelessness crisis in Canada.  

LEAF is a charitable non-profit organization that works to advance the equality rights of women and girls in Canada. The annual fundraising breakfast commemorates the Persons Case – the October 18, 1929 decision of the Judicial Committee of the Privy Council that ruled that women were to be considered persons under the law and should be eligible to sit in the Canadian Senate. Proceeds from the Persons Day breakfast support LEAF’s litigation efforts and help to sustain local equality education programs, such as LEAF at Work and Only Yes Means Yes.

Our office will be closed on Friday, December 11th from 1:30 pm  to 5:00 pm. We will return to regular office hours on Monday, December 14th.

On July 21, David Yazbeck will be moderating a Lancaster House Conference on “Minding Your Own Business: Privacy rules on collecting, using, and disclosing employee information” The conference will discuss the potential conflict between employee privacy and employer concerns about the impact employees’ online activity can have on their reputations. The panel will discuss the law related to background checks, including “social media checks”, the latest cases on surveillance and biometric identification technologies, the legal rules with respect to personal information on the employer’s devises, and an employer’s ability to access employees’ medical information.

More information about the conference can be found here.

The story of Kim Davis, a Kentucky county clerk who refused to issue marriage licenses to same-sex couples on the basis of her Christian faith, has made headlines across the US and Canada in recent weeks. On September 3, 2015, United States District Judge David Bunning held Davis in contempt, sending the clerk to jail. The controversy continues after her release – court proceedings are ongoing, and Davis returned to work on September 15, ordering her office to alter the marriage license templates to remove her name and title and substitute “pursuant to federal court order”.

While this story has brought widespread attention to the tension between equality rights and religious freedom, the issue of how to reconcile competing rights claims is not new. Increasingly in the years since the Canadian Charter of Rights and Freedoms came into force, Canadian courts have had to grapple with how to resolve this tension. The Saskatchewan Court of Appeal’s decision in the Marriage Commissioners case provides insight into how a Canadian court would address the Kim Davis case in the context of the Charter.

The Saskatchewan Marriage Commissioners Case

On the heels of legal and political developments that legalized same-sex marriage in Canada, some marriage commissioners in Saskatchewan began refusing to solemnize same-sex marriages on the basis that their religious beliefs prevented them from doing so. The issue led to numerous legal proceedings pursuant to the Saskatchewan Human Rights Code as well as a civil court action. The Saskatchewan government proposed two possible amendments to the provincial Marriage Act that would allow marriage commissioners to opt out of performing same-sex marriages, and asked the Saskatchewan Court of Appeal to give its opinion on whether the amendments were consistent with the Charter.

The Court’s Decision

The Court acknowledged that the purpose of the proposed amendments was to accommodate the religious beliefs of marriage commissioners. However, a law can violate section 15 guarantee of equality if the effect of the law is to deny equal protection or benefit. In this regard, the Court held that the effect of the proposed amendments would be to draw a distinction on the ground of sexual orientation – same-sex couples contacting a marriage commissioner to have their marriage solemnized may be denied where a heterosexual couple would not. The Court found that this distinction was contrary to the Charter and that the distinction could not be justified, even though the issue involved the Charter-protected religious freedom of marriage commissioners.

The Kim Davis case through a Canadian lens

The Court’s commentary in the Marriage Commissioners decision provides a good indication of how a Canadian court would deal with a situation similar to the Kim Davis case in Canada. The Court emphasized the fact that marriage commissioners are public office holders and do not act as private citizens when they discharge their official duties. Those duties involve performing secular civil marriage ceremonies. Indeed, a ceremony performed by a marriage commissioner was the only form of non-religious marriage solemnization available in Saskatchewan. As the state must provide services on an impartial and non-discriminatory basis, individuals who voluntarily become public office holders must carry out their duties in line with that basic principle, as opposed to shaping their duties to reflect their personal beliefs.

A court considering the Kim Davis case in Canada would likely emphasize that she is a public office holder, similar to secular marriage commissioners. Her duties therefore include issuing marriage licences in accordance with the law, which now extends marriage equality to same-sex couples. Thus, the court would likely conclude that Davis cannot act upon her religious beliefs in denying marriage licenses, if that act discriminates against the public on the basis of sexual orientation. In essence, the competing rights claim is less of a competition where one side is filling a public and secular role. Although Canadians are free to hold personal religious beliefs, that right does not necessarily extend into the public realm, particularly where significant equality rights are at stake.

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

We are very proud to announce that Elyssa Yoo has been awarded this year’s Raven, Cameron, Ballantyne & Yazbeck LLP Prize for achieving the highest standing in the Human Rights Laws in Canada course at the University of Ottawa Faculty of Law, Common Law Section.

Every year, our firm sponsors a prize for the student who achieves the highest standing in the “Human Rights Laws in Canada” course at the law school. Human rights law is a fundamental component of our legal system and a major component of our law practice. It is important to recognize achievements in this area, and to encourage students to pursue human rights law when they practice.

Congratulations Elyssa, and best of luck in your legal career!

RavenLaw’s commitment to the University of Ottawa has been recognized through an invitation by the University to become a member of the Doric Pillar within the University’s philanthropic leaders association, known as the Tabaret Society. The Doric Pillar recognizes the crucial support offered by annual donors to the University.

The Tabaret Society is named after Father Joseph-Henri Tabaret, who is widely considered to be the “builder” of the University of Ottawa. The Society honours those whose philanthropic leadership plays a vital role in forging the leaders of tomorrow.

The 2015 Tabaret Society members will be honoured at a reception at the University of Ottawa on September 30, 2015.

In a recent decision, the Federal Court of Appeal revived a pay equity complaint made by the Public Service Alliance of Canada (“PSAC”) on behalf of workers in certain female-dominated groups at Nav Canada. PSAC filed the complaint in 2002, but the Canadian Human Right Commission dismissed the complaint without an investigation in 2012. In its decision of July 28, 2015, the Federal Court of Appeal ruled that the Commission’s decision was unreasonable and sent the complaint against Nav Canada back to the Commission for further proceedings.

The Nav Canada employees received pay equity cheques for the years 1985 – 1996, years when they worked for Transport Canada, but did not receive wage adjustments for the years following the creation of Nav Canada in 1996. This has meant that the Nav Canada workers have lost out on the full benefits of a 1999 pay equity settlement between PSAC and the government. As counsel for PSAC, Andrew Raven of RavenLaw, told the Ottawa Citizen, the Court’s decision “has important implications for all pay equity complainants” and could make it possible for the Nav Canada employees to receive retroactive wage adjustments for the years between 1997 – 2011.

PSAC was represented at the Federal Court of Appeal by Andrew Raven and Amanda Montague-Reinholdt of RavenLaw.