Category Archives: News

On February 19th, 2015, RavenLaw Articling student, Taylor Akin, joined the Ottawa Rape Crisis Centre’s Board of Directors. The ORCC provides support and counseling to women who are survivors of sexual violence. Taylor has been interested in violence against women initiatives since her undergraduate degree and had the opportunity to take classes on gender-based violence in law school. After a year of volunteering with the ORCC, Taylor is very pleased to be the newest member of the Board.

Confidentiality Agreements – Lessons from Jan Wong

Oftentimes, employees will chafe when they are asked to sign confidentiality agreements limiting their ability to talk about a settlement reached regarding the termination of their employment. Many employees feel (perhaps rightly) that doing so allows the employer to avoid a public shaming for its behavior. In the end, most employers insist upon confidentiality as one of the terms of the settlement, and they regularly include recourse for themselves if there is a breach of those terms. Recently an arbitrator and the Divisional Court in Ontario confirmed the importance of complying with the obligations in a settlement agreement.

In her book, Out of the Blue, Jan Wong chronicles her experience with workplace depression. Topics canvassed in the book include her struggle to obtain disability benefits, the termination of her employment and, ultimately, her recovery. After a protracted dispute, Ms. Wong’s union succeeded in securing six months of sick-leave pay and a sizeable lump sum payment, equivalent to two years’ wages. In exchange, Ms. Wong signed an agreement imposing certain obligations on her, including the obligation “not to disclose the terms of this settlement.”

The employer argued that, with the publication of Out of the Blue, Ms. Wong breached the confidentiality agreement. In her book, Ms. Wong disclosed that her employer paid her “a pile of money to go away”. She also wrote about receiving a “big fat cheque” and having a “vastly swollen bank account.” The employer brought the matter back in front of an Arbitrator, who concluded that Ms. Wong breached the conditions of settlement. She was therefore ordered to repay the settlement monies to her employer.

Ms. Wong applied for judicial review of the Arbitrator’s decision, but her application was recently dismissed by the Ontario Divisional Court in Wong v The Globe and Mail, 2014 ONSC 6372 . The Court stated, “The deal under the [settlement agreement] was clear. The Globe and Mail was to pay a large lump sum and the applicant was to stay quiet about the payment.” Justice Nordheimer concluded: “I cannot find any fault in the Arbitrator’s conclusion…in fact, it is hard to see how the Arbitrator could have concluded otherwise.”

The decisions of the Arbitrator and the Divisional Court offer an important lesson to any employee entering a settlement regarding the termination of their employment or a similar legal issue: when signing a settlement agreement, ensure you fully understand your continuing obligations, including an obligation to keep the terms of the settlement confidential. If you are considering a settlement or a severance offer, you should review its terms carefully with an employment lawyer to ensure you know your obligations, and the consequences of breaching those obligations.

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

RavenLaw continues its support for the Workers’ History Museum

For a number of years, Raven, Cameron, Ballantyne & Yazbeck has been an institutional member of the Board of Directors of the Workers’ History Museum. The museum held its annual general meeting on February 23, 2015 and the firm, through one of our partners, David Yazbeck, was confirmed as a Board Member again.

In addition to supporting the museum as a Board Member, David has been granted the title of Patron by the museum in recognition of the work he has done, and continues to do, for the museum.

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.

Court confirms that employers bear the onus to prove just cause for termination

It has long been established in labour arbitration jurisprudence that, when presented with a grievance concerning discipline, the employer bears the onus of demonstrating just cause for that discipline. In order to determine whether there is just cause for termination or another disciplinary sanction, Arbitration Boards will consider several factors which include, not only the factual circumstances, but also any aggravating and mitigating factors.

Recently, an Arbitration Board in Nova Scotia failed to properly apply the onus when considering whether an employer had just cause to terminate a unionized employee. In arriving at its conclusion to dismiss the grievance, the Arbitration Board found as follows:

Having found that the Employer had grounds to discipline the Grievor there remains the question of whether the termination of the Grievor was the appropriate response.

The onus is on the Grievor to show mitigating factors that should be taken into account if the penalty of discharge is to be substituted with another penalty.

The employee’s union, the Public Service Alliance of Canada, was concerned about the latter paragraph which indicated that the Arbitration Board improperly shifted the onus to the employee to prove that termination was not the appropriate penalty. The union applied for judicial review of the Arbitration Board’s decision to the Supreme Court of Nova Scotia. In its decision, Public Service Alliance of Canada v Commissionaires Nova Scotia, 2014 NSSC 286, the Court agreed with the union, holding:

The Board did not engage in the necessary analysis of the grounds for discipline, whether the misconduct was sufficiently serious to warrant a penalty as severe as discharge. The Board did not articulate both mitigating and aggravating factors and weigh these against the seriousness of discharge to determine if the respondent had met its burden.

The Board seems to have assumed the seriousness of the conduct warranted the penalty of discharge and then looked to the appellant to show why anything but discharge should be considered.

This is not the appellant’s burden. The Board has failed to discuss the substitution of the lower penalty by reviewing any mitigating factors, except long service. The Board did not weigh other factors in evidence, such as a previously clear discipline record or evidence of good character. Had the Board performed this analysis they may well have still concluded that no lesser penalty was appropriate, particularly in light of the grievor’s outright denial and lack of remorse.

The burden of proof on the employer in discipline and discharge cases is important: the relevant information regarding why the employee was terminated usually resides almost exclusively in the hands of the employer. Moreover, in the unionized context, where employees may only be terminated with just cause, employers must be held to their onus of proving that just cause existed when the union challenges the basis for the termination.

While one might assume that the onus in discipline cases is well established, and Arbitration Boards will properly apply the burden of proof, the judgment of the Supreme Court of Nova Scotia in this case affirms that the courts are willing to intervene on judicial review to ensure that arbitrators do, in fact, approach disciplinary grievances in the appropriate fashion.

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

Workplace Privacy and Electronic Surveillance – A Right Still Looking for a Remedy

Nowadays most employees spend at least a portion of their workday using a computer, raising important privacy questions of what kinds of computer surveillance employers can implement on their employees’ work computers and under what circumstances.

Questions relating to employer surveillance – when? why? how much is too much? – are long-standing issues in both unionized and non-unionized workplaces. Traditionally, decision-makers have been sharply divided over when employers can implement surreptitious video surveillance over their employees, for example, and then rely on videotape evidence for later discipline.

This division has largely centred on a fundamental disagreement between decision-makers as to whether employees have a right to privacy in the workplace. This same disagreement carried over into the early computer surveillance decisions, where courts and arbitrators routinely found that employees had no expectation of privacy in work computers and upheld discipline and even termination based on non-work computer use.

Protecting the “Biographical Core”: R v Cole

That perception was shaken by a number of cases in the early 2000’s, but none moreso than the Ontario Court of Appeal’s 2011 and the Supreme Court’s 2012 decisions in R v Cole. While Cole dealt with a challenge to the search and seizure of an employee’s work computer by police, the Supreme Court took the opportunity to comment more broadly on employees’ right to privacy in their work computers. The Court found that an expectation of privacy could be inferred where personal computer use was permitted or reasonably expected:

Computers that are reasonably used for personal purposes – whether found in the workplace or the home – contain information that is meaningful, intimate, and touching on the user’s biographical core. Vis-à-vis the state, everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind.

While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely: The nature of the information at stake exposes the likes, interest, thoughts, activities, and searches for information of the individual user.

Implications for Employees: Right to Privacy at Work

While the long-term implications of Cole are not yet clear – particularly given that the Court declined to comment specifically on employer computer surveillance or the ability of an employer to seize and search a work computer – decision-makers have begun to adopt its reasoning to find a breach of employee privacy rights when employers engage in surreptitious, unjustified computer surveillance. For example:

The British Columbia Information and Privacy Commissioner found an employer internet usage audit to be a breach of privacy where the employee had never attempted to hide his internet usage and had never been approached about it by the employer prior to the audit.
The Alberta Office of the Information and Privacy Commissioner found that an employer had contravened privacy legislation when it installed keystroke logging software on an employee’s computer to monitor productivity. The Commissioner particularly noted the availability of less intrusive measures and the failure to limit the scope of the employer’s investigation.

These examples aside, however, decision-makers have yet to fully address the question of what Cole will mean for the traditional approaches to employer surveillance. While older cases extended employers a nearly unfettered right to set ethical, professional and operational standards for their workplace, Cole recognized that employer policies and practices may diminish a privacy right but cannot remove it entirely. Whether future decision-makers will accept a robust conception of employee privacy rights or will return to tests largely based on employer reasonableness remains to be seen.

A Right Without A Remedy

In any event, the suggestion in some post-Cole case law that employers ought to undertake less intrusive steps prior to surveilling employee computers raises a separate, perplexing question: what happens if employers don’t?

So far, Privacy Commissioners, in large part because of the nature of their authority, have provided for little in the way of remedy beyond ordering that the surveillance cease. For employees whose privacy was breached or who have been disciplined as a result of this intrusion, this may provide little comfort.

More recently, the New Brunswick Court of Queen’s Bench upheld the decision of a labour arbitrator which relied in part on an employee’s privacy interest in her work computer to reduce a termination for inappropriate email use to a suspension.

Other decision-makers, however, have found that an employer’s violation of privacy rights cannot lessen the seriousness of inappropriate work computer use. In these circumstances, it has been suggested that decision-makers can do no more than recommend that the employer take privacy interests into account in the future.

The decisions in Cole took significant steps towards changing how we discuss employee privacy in relation to work computers. As the trial judge in Cole stated, office computers are much like office desks and personal papers much like personal computer files. However, until decision-makers develop a substantive way to provide remedies for the breach of an employee’s privacy interest in his or her work computer, the change in how we talk about privacy rights at work cannot translate into protection for employees.

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

RavenLaw Articling Student Daniel Tucker-Simmons Wins Housing Justice Case

On January 13, 2015, Daniel Tucker-Simmons, an articling student at RavenLaw, won a case before the Landlord and Tenant Board on behalf of ACORN (Association of Community Organizations for Reform Now). ACORN has been fighting for years to improve housing conditions in the low – mid income areas in Ottawa for its members and others.

The case involved a landlord’s failure to repair a 150-meter stretch of walkway which had fallen into disrepair, creating a serious safety hazard for residents. Despite years of repair requests by residents, including ACORNmember Mavis Finnamore, prior landlords and the current landlords did not repair the walkway.

After Ms. Finnamore filed an application with the Board, RavenLaw provided Daniel’s services to represent ACORN member Mavis Finnamore at the Board hearing. Daniel’s victory before the Board means that the landlord will have to pay to fix the walkway. The victory is also the latest in a series of big wins for ACORN’s housing justice campaign, which stretches back to 2011 and has helped residents achieve over $200,000 in rent abatements and repair work.

Read more about the case on ACORN’s blog.

The Federal Court Endorses a Robust Approach to Protection against Workplace Violence

On November 13, 2014, in PSAC v Attorney General of Canada, 2014 FC 1066, the Federal Court considered Part XX of the Canada Occupational Health and Safety Regulations, which imposes a host of obligations on employers to prevent and respond to workplace violence. The Court’s decision affirmed the broad definition of workplace violence under the Regulations, and the mandatory obligations on employers to appoint an impartial person to investigate employee complaints.

The Court clearly held that the definition of workplace violence is broad enough to include harassing conduct that causes mental or psychological harm, stating that “to find otherwise would unduly restrict the definition of work place violence and not give a purposive construction to that definition.” The Court also held that the employer may not act unilaterally as an investigator of workplace violence and that, unless it is plain and obvious on the face of the complaint that it does not relate to workplace violence, the employer is under a mandatory duty to appoint an impartial person to investigate the complaint.

This judgment is an important gain for workers, because it grants access to the mechanisms under Part XX to seek redress for harassment in the workplace. The process under Part XX—particularly, the mandatory appointment of an impartial investigator—is now available for federally regulated workers that experience harassment.

The case was argued by Andrew Raven of our firm. You can read more about this case in on our blog.

Supreme Court of Canada affirms collective bargaining rights of RCMP members

In Mounted Police Association of Ontario v Attorney General of Canada, the Supreme Court of Canada today ruled that all workers have a constitutional right to be represented in collective bargaining by an association of their choosing that is independent of the employer.

Members of the Royal Canadian Mounted Police (RCMP) are excluded from the Public Service Labour Relations Act. Instead, they are required to address labour relations issues through the Staff Relations Representative Program (SRRP), an internal process lacking independence from the employer. The Court ruled that both the exclusion from the Act and the imposition of the SRRP violate the freedom of association protected under section 2(d) of the Charter, and that this violation is not a justifiable limitation under section 1 of the Charter.

The Court’s reasons emphasize the crucial role that collective bargaining plays in empowering workers:

“[o]nly by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can [workers] meaningfully pursue their workplace goals”. […] Just as a ban on employee association impairs freedom of association, so does a labour relations process that substantially interferes with the possibility of having meaningful collective negotiations on workplace matters”.

The Court clarified its previous ruling on the constitutional right to collective bargaining, confirming that the test for a section 2(d) violation remains “substantial interference” with meaningful collective bargaining, rather than “effective impossibility”. The Court also rejected the Government’s interpretation of the “derivative” nature of the right to collectively bargain, reiterating that “collective bargaining is a necessary precondition to the meaningful exercise of the constitutional guarantee of freedom of association”.

The Court’s decision in this case confirms what unions and workers’ rights advocates have long maintained: a representative process under the control or influence of the employer is directly contrary to the freedom of association and the constitutional right to collective bargaining. This ruling sets the stage for the Supreme Court’s highly anticipated decision in the Saskatchewan Federation of Labour case, which will determine whether the freedom of association also includes the right to strike.

Andrew Raven, Andrew Astritis and Morgan Rowe of our firm represented the Public Service Alliance of Canada, which appeared as intervener before the Supreme Court of Canada in support of the appeal.

Labour Appreciation Awards a huge success!