This Monday, as occurs the first Monday of every September, Canadians will celebrate Labour Day. The occasion is usually marked across the country by barbecues, get-togethers and marches, uniting families and friends before the official end of summer and the back-to-school rush. The holiday joins Family Day, Victoria Day, and the Civic Holiday, as vaguely-defined holidays with little meaning to most Canadians other than a day off.

In the case of Labour Day, the lack of recognition is perhaps unsurprising given its history. Labour Day was established in 1894, following the publication of the Report from the Royal Commission on the Relations of Labour and Capital in Canada. Among the many proposals, most of which were ignored, the Royal Commission proposed the establishment of a labour day:

“Your Commissioners recommend that one day in each year be set apart by proclamation to be observed throughout the Dominion as a statutory holiday, and that it be known as Labour Day”

As noted by Professor David Frank, there were many important and necessary reforms recommended by the Royal Commission, such as union recognition, workers’ compensation, minimum wages and child labour laws, which were either too difficult or too inconvenient to implement. A statutory holiday, in contrast, was both popular and easy to enact. (See Ontario, Family Day, 2007).

Unfortunately, rather than providing a day of rest and celebration of the labour movement, Labour Day actually has the opposite effect for many of the most vulnerable labourers in the country. Many retail giants use the holiday as an opportunity to increase sales, and major grocery stores often lobby to remain open. Hundreds of thousands of workers employed in restaurants, gas stations, stores and supermarkets will thus be required to work on a statutory holiday meant to celebrate improved working conditions of all workers.

Ways to celebrate this Labour Day

For those interested in celebrating Labour on Labour Day, all is not lost. Across the country, hundreds of thousands of Canadians will be marching on Monday to mark Labour’s contribution to the betterment of working conditions for all workers. In Ottawa, the Labour Day March starts at noon at City Hall (Lisgar Entrance) and a Labour Day Picnic is scheduled at McNabb Park (Gladstone and Bronson) from 1PM-4:30PM.

Canadians could also spend Labour Day reading up on the labour-related issues in the upcoming Federal election. Some parties have proposed increases to the minimum wage and the abolition of unpaid internships. Hundreds of candidates with roots in the Labour movement are running, raising issues affecting workers and making them electoral issues. There are currently several challenges in the courts regarding labour-related legislation that is alleged to be contrary to the Charter of Rights and Freedoms—these issues can all be raised with current Members of Parliament and candidates.

Whatever else, Labour Day can be a day to reflect on the many advances that unions and workers have achieved. Historic achievements of the Labour movement, such as workers’ compensation, maternity leave, and pay equity, are well known and the effects of these gains continue to this day. There are also recent union victories that can be celebrated this Labour Day, such as decisions from the Federal Court and the Federal Court of Appeal protecting workers from discrimination on the grounds of family status, and the Supreme Court’s recent recognition that workers have a Constitutional right to withhold their labour. In addition to these high-profile gains, unions and workers engage in daily challenges to unfair policies in the workplace, wrongful terminations, and fights for fairer wages that benefit all Canadians.

So, this Monday, reflect on the past, present, and future of the Labour movement, and have a safe and happy Labour Day.

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

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

All employees have the right to work in a safe and healthy workplace, free of harassment and violence.  Harassment in the workplace often lead to a toxic working environment filled with stress and anxiety. In some cases, it may even lead to physical violence. All workplace parties, including employees, have a role to play in maintaining a safe and healthy workplace.

What is Harassment?

Workplace harassment is defined in the Occupational Health and Safety Act as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome”. Harassment on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability also violates the Ontario Human Rights Code.

While harassment is usually defined as a series of incidents, one serious incident may be sufficient to meet the definition of harassment. For example, one disrespectful remark about a person’s physical appearance would be considered rude but not necessarily harassment. However, a series of repeated rude and degrading remarks would constitute harassment.

Here are some examples of harassment:

• Making rude, degrading or offensive remarks
• Yelling at an employee or co-worker
• Excluding someone from social gatherings, isolating a person
• Withholding information
• Spreading rumors, gossip
• Requesting the performance of a task inferior to a person’s competencies that is demeaning or belittling

Here are examples of conduct that, under normal circumstances, are not harassment:

• Normal exercise of supervisory responsibilities including performance reviews, performance improvement plans, feedback, direction, counselling, provided they are conducted in a respectful manner
• A friendly gesture (i.e. a pat on the back)
• Workplace conflict

The context or circumstances in which the conduct occurred will be extremely important in determining whether the conduct is considered to be harassment.

Employer Responsibilities

Employers have a legal obligation under the Occupational Health and Safety Act to protect the health and safety of employees, including an obligation to take every reasonable precaution to protect workers from workplace violence. Specifically, the employer must establish and implement policies and procedures to help supervisors and employees recognize inappropriate behaviors and to inform them about their rights and responsibilities. The employer must also establish measures and procedures to allow employees to report incidents of workplace harassment or bullying. Reported incidents must be investigated and dealt with in a timely fashion and in accordance with the workplace harassment policy.

Employee’s Responsibilities

Employees should not engage in intimidating or harassing behavior. If they are the target of such behavior, they have a responsibility to speak up either by asking the person to stop or by reporting the incident or behavior in accordance with the procedures established by the employer. Co-workers also have a duty to report incidents of harassment in the workplace as they are a potential hazard which may lead to workplace violence.

How to Foster a Respectful Workplace

A safe and healthy workplace is a respectful workplace. When workers treat each other with respect, there are fewer negative interactions.   Employers may implement a number of strategies to foster a respectful workplace including:

• Discussions about key organizational and human values
• Training
• Policy review
• Encouraging communication
• Establishing clear consequences
• Leaders must be role models

Employees and co-workers also have a role to play in fostering a respectful workplace. They should:

• Not engage in workplace harassment or bullying
• Speak up
• Tell the person the behavior is unwanted/unacceptable
• Ask the person to stop
• Co-workers should intervene if appropriate and if they feel comfortable doing so
• Identify and report incidents to supervisors in accordance with the workplace procedures
• Support co-workers by listening
• Document details of events with detailed information in the event of an investigation including dates, times, details, names of witnesses
• DO NOT RETALIATE

Conclusion

The key to preventing harassment in the workplace is early intervention. Ignoring problems will not make them go away and often will only make them worse. Employees should not hesitate to speak up and report incidents of harassment when they occur as early and informal intervention may resolve the issue. Employees who feel intimidated or are afraid to speak up may seek assistance from co-workers, from their union or from outside legal counsel. 

We are here to help. Consult one of our experienced Employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you have been terminated from your employment.

Morgan Rowe will be celebrating a Toronto launch for the paperback edition of her book, Exploring Disability Identity and Disability Rights through Narratives: Finding a Voice of Their Own, on September 9, 2015. The book explores the relationship between disability, human rights, and personal identity in the lives of Canadians with disabilities. The book launch is being hosted by Caversham Booksellers. More details about the event can be found here.

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.

In its decision in Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10, released earlier this year, the Supreme Court of Canada examined the test applicable for cases of constructive dismissal, as well as the defences available to such a claim. The Court’s decision provides new clarity in some areas, while leaving certain questions unanswered.

Background

The Appellant, Mr. Potter, was suspended with pay from his functions as Executive Director of the New Brunswick Legal Aid Services Commission without reasons. The Commission, at the time of the suspension, was seeking the government’s permission to terminate his employment with cause. Mr. Potter filed a suit for constructive dismissal against the Commission. He lost at both the trial and appellate levels, with the lower courts rejecting his claim that the indefinite suspension without pay amounted to constructive dismissal. The Supreme Court allowed the appeal and found in Mr. Potter’s favour, although the majority and minority disagreed on the basis of this result.

Majority’s Decision

The majority held that there are two tests by which a finding of constructive dismissal can be made. In both cases, the burden of proof will be on the employee to establish on an objective basis that the test has been met.

The first test is composed of two parts:

a) Identifying an expressed or implied contractual term that has been unilaterally breached. This is an objective test; if the authority to make the change exists or consent is given, then there will be no breach; and

b) Determining whether the breach was sufficiently serious to constitute constructive dismissal. Typically, issues of compensation, work assignments or place of work are raised. All are questions of degree.

The second test is: Looking at the conduct of the employer, in light of all of the circumstances, and determining whether a reasonable person would conclude that the employer no longer intended to be bound by the terms of the contract. The employee is not required to point to a specific breach of the contract, but rather whether the course of conduct cumulatively amounts to an actual breach.

The majority applied the first test for constructive dismissal to the facts of an administrative suspension. It held that if the employer is unable to establish that the suspension is justified, then the first branch of the first test is met. The question of whether the suspension is justified includes consideration of: the duration of the suspension, whether pay is continued, whether the decision is made in good faith, and whether there is a legitimate business reason. The Court found that in most cases where the suspension is unauthorized, such a suspension will also amount to a “substantial change” such that the second branch of the first test is also met. Any exceptions would likely be for suspensions that are particularly short in duration.

In Mr. Potter’s case, the majority found that there was an indefinite suspension with no valid business reason to suspend and that it had not been made in good faith. The suspension was therefore not justified and both branches of the first test had been met.

Minority’s Decision

The minority adopted a somewhat different analysis. It noted that the whole of wrongful dismissal law is grounded in broader contract law principles relating to repudiation and anticipatory breach. It stated that constructive dismissal can be shown either by showing a significant breach going to the root of the contract or by conduct which demonstrates the employer no longer intended to be bound by the contract.

The minority found that the trial judge erred by failing to recognize that the employer can repudiate the contract of employment other than by breaching an important term of the contract. Even if the suspension on its own is not sufficiently serious to constitute repudiation, in light of all of the circumstances, the employer’s conduct had manifested an intention not to be bound by the terms of the contract in the future. The surrounding circumstances, taken as a whole, clearly demonstrated intent by the employer to repudiate the contract.

New answers and remaining questions in constructive dismissal

The Supreme Court used this opportunity to reiterate some key concepts, set out some new directions and signal areas that remain in dispute:

• Emphasis on the importance of work: The Court made several comments on the importance of an employee’s work: “The employer does not have an unfettered discretion to withhold work” (para 82). Work is considered to be “one of the most fundamental aspects in a person’s life, providing the individual with the means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his/her sense of identity, self-worth and emotional well-being” (para 83). “No employer is a liberty to withhold work from an employee either in bad faith or without justification” (para 85). As a result, a suspension, even if it is with pay, can constitute constructive dismissal.
• Deduction of pension payments: The Court clarified that an employer is not entitled to deduct pension payments from constructive dismissal damages.
• Disagreement re: evidence not known to employee: The majority and minority differed as to whether an employee can rely on evidence which exists, but is unknown to the employee at the time, to show that the employer intended to repudiate the contract. The majority found that a court must not consider evidence that was neither known to the employee nor reasonably foreseeable. The minority disagreed and found that the trial judge erred by excluding the employer letter seeking the dismissal for cause of Mr. Potter, even though he was unaware of the existence of the letter at the time: “to exclude this evidence from consideration, as I see it, would be to make the employee’s right to claim constructive dismissal depend on whether the employer succeeded in concealing his/her true state of mind. Happily, the authorities do not support that unattractive position” (para 173).
• No answer on resignation issue: The Court declined to deal with the issue of whether an unsuccessful constructive dismissal suit by the employee automatically constitutes a resignation of employment. This question is thus left unanswered for future cases.

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

On May 12, 2015, Wassim Garzouzi presented on Human Rights at the Workplace. The panel presentation was hosted by the North Bay Chapter of the Human Resources Professional Association and included counsel from both labour and management side firms.