On January 7 and 8, 2015, Andrew Astritis appeared in the Supreme Court of Nova Scotia to argue a judicial review application. The application seeks to overturn a decision of an arbitrator on the right of employees to accumulate vacation credits.

The Supreme Court’s recent decision in Saskatchewan Federation of Labour v Saskatchewan (“SFL”) will be remembered primarily for its historic conclusion that freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms includes a protection for workers’ right to strike.

But the comprehensive reasons of the majority also offer strong confirmation of the persuasive role that international law and Canada’s international commitments play when interpreting Charter rights.

International Law and the Charter

In determining that the freedom of association protects the right to strike, the Supreme Court gave significant, substantive consideration to the development of the right to strike within international law.

The Court concluded that there is an emerging international consensus that meaningful collective bargaining requires a right to strike and that this consensus, when combined with similar historical and legal developments, required recognition of the right to strike within the Charter.

That international law plays some role in interpreting Charter rights comes as no surprise. The Supreme Court has long recognized that Charter rights should be interpreted consistently with Canada’s international human rights obligations. As the often-cited passage by former Chief Justice Dickson recognized:

…the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.

Without more specific guidance from the Supreme Court, however, the use of international instruments as interpretive tools has often been stalled by practical questions as to how they may be used and by significant resistance from the provincial and federal governments to their use in the first place.

In fact, before the courts in SFL, many of the government interveners argued that little weight should be given to the status of the right to strike internationally. They argued that the Charter does not incorporate Canada’s international commitments and that there is no obligation to constitutionally protect rights recognized in international law. They also suggested that courts should not rely on international instruments to which Canada is not a party.

Impact of the Supreme Court’s Decision

In its reasons, the Court soundly rejected all arguments to limit the persuasiveness or relevance of international law. Instead, the Court confirmed that international law plays a crucial role in interpreting rights under the Charter.

The Court’s reasons also offer a number of broader lessons about the use of international law going forward.

• First, international law, particularly in areas of growing international consensus, can and should play a central role in informing the evolving content of rights under the Charter. Developments in international law over time are, consequently, relevant when assessing whether to recognize rights in Canada. The Saskatchewan Court of Appeal had previously rejected this position.
• Second, courts should give consideration to a wide range of international instruments, even those which do not formally bind Canada. The Supreme Court looked beyond the well-established sources of Canadian legal obligations, such as international treaties which Canada has ratified, and relied on other authorities whose potential interpretive power had previously been unclear, including decisions of the International Labour Organization’s Committee on Freedom of Association, decisions made under the European Convention on Human Rights, and labour legislation and decisions from other countries.
• Finally, the Court recognized that the expertise of certain specialized international bodies will provide their decisions with “considerable persuasive weight.” The Court made this statement particularly with regards to the ILO’s Committee on Freedom of Association, suggesting that its decisions will continue to guide future labour cases under section 2(d).

Conclusion

While some questions may remain in terms of how to practically apply international instruments as interpretive aids, the above principles – and the Supreme Court’s unequivocal support for their application – provide clear and decisive confirmation that international law considerations will form an essential part of Charter claims going forward.

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

Our firm is renewing its partnership with the University of Ottawa and continues its commitment and funding to the Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l. Human Rights/Social Justice Internship. This exciting opportunity provides an excellent and meaningful summer work experience to students who are particularly interested in issues pertaining to social justice, human rights or equality rights. This is the 10th consecutive year that this paid internship has been sponsored by RavenLaw.

This is a program that we are very proud of as it gives students excellent experience in these areas but also provides legal support to social justice organizations. This year, the host organizations include the Workers History Museum.

Students seeking information about the internship should contact Chelsea Paradis. If your organization works in the areas of social justice and human rights and you are interested in having an intern in the future, please contact David Yazbeck at 613-567-2901.

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.]

On November 26, 2014, the Federal Court rendered its judgment overturning a decision of a grievance adjudicator under the Public Service Labour Relations Act. The Applicants were a group of employees who alleged they had been denied overtime opportunities contrary to their Collective Agreement. The adjudicator of their grievances rejected the arguments presented by the employer, but nonetheless dismissed the grievances on grounds that had never been argued or discussed during the hearing.

In its judgment (2014 FC 1136), the Federal Court held that the adjudicator had violated the Applicants’ rights to procedural fairness by denying them an opportunity to present evidence and arguments on the issue that formed the ultimate basis for the adjudicator’s decision. This decision confirms that, where an administrative decision-maker wishes to depart from the case as argued by the parties and render a decision on the basis of a new issue or argument, the decision-maker is obligated to give the parties an opportunity to make submissions on that new issue.

The Applicants were represented on the judicial review by Amanda Montague-Reinholdt of our firm.

Morgan Rowe spoke on November 21, 2014 to the University of Ottawa law school’s human rights law course on emerging areas in human rights law.

On November 12, 2014, Andrew Astritis spoke to a labour law class at the University of Ottawa law school about three cases in which Raven, Cameron, Ballantyne & Yazbeck appeared as an intervener before the Supreme Court: Mounted Police Association of Ontario v Attorney General of Canada, Robert Meredith v Attorney General of Canada, and Saskatchewan Federation of Labour v Her Majesty the Queen, in Right of the Province of Saskatchewan. Decisions in these cases, which involve labour rights and freedom of association, are currently pending from the Supreme Court.

On December 10, 2014, Andrew Astritis will be presenting at the 3rd Annual Human Rights Summit hosted by the Law Society of Upper Canada.  Andrew will be speaking on his recent, May 2, 2014, Federal Court of Appeal decision in Johnstone v. Canada Border Services Agency decision on family status accommodation. In this decision Justice Mainville  recognized that there “[t]here should be no hierarchy of human rights” and provided that “protection from discrimination for childcare obligations flows from family status in the same manner that protection against discrimination on the basis of pregnancy flows from the sex of the individual.  In both cases, the individual would not require accommodation were it not for the underlying ground (family status or sex) on which they were adversely affected.”  For additional information or registration, please go to the Law Society of Upper Canada’s website.

One of the questions employment lawyers hear most frequently is whether an employer is allowed to terminate an employee for no reason. The short answer? Yes. Unless your employment contract states otherwise, your employer does not need a good reason, or indeed any reason, to terminate your employment. A termination without a reason is called termination “without cause”.

Termination without a reason—termination with notice

A termination without cause does not mean you have no rights as an employee. Generally speaking, if you are terminated for no reason or “without cause”, then you must be provided with notice of the termination, or payment in lieu of notice. The amount of notice required is determined by the terms of your employment contract, relevant legislation, and common law legal principles. (See “Know Your Rights—Determining the Terms and Conditions of your Employment”  and “What is reasonable notice?”  for more information.)

Termination with a reason—termination for just cause

There are circumstances where an employer fires an employee for good reason, and as a result does not provide any notice to the employee. This is called a termination “for cause” or “with just cause”—if the employer has just cause to terminate the employee, the employer is not required to give notice of the termination. (See “What is just cause for termination?”  for more information.)

One reason the employer cannot terminate you—a discriminatory reason

There is an important exception to the rule that you can be fired for any reason: the employer cannot fire you for a discriminatory reason. For example, your employer cannot terminate you because of your sex, race, sexual orientation, age, or disability, because that would violate human rights legislation. You should consult an employment lawyer if you have reason to believe you have been fired for discriminatory reasons.

Conclusion

Absent any discrimination, your employer can terminate you without cause, but with notice; or it can terminate you with just cause, and without notice. If you believe you have been terminated without just cause, and without adequate notice, you may have a case of wrongful dismissal, and you should seek advice from an employment lawyer.

We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for wrongful dismissal. 

[The following information applies to non-unionized employees. This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On November 24, 2014, the Canadian Artists’ Representation/Le Front des artistes canadiens (CARFAC) and the Regroupement des artistes visuels du Québec (RAAV) reached a tentative agreement with the National Gallery of Canada on the terms and conditions for the exhibition and reproduction of works of art, as well as the provision of professional services by living Canadian artists at the National Gallery. As CARFAC/RAAV explain, “The parties are proud to have reached this ground-breaking agreement to remunerate living Canadian artists, a historic milestone that will undoubtedly contribute to the long-term sustainability of the visual arts in Canada.” The agreement will now proceed to a ratification vote by members.

The ability of CARFAC/RAAV to reach this historic agreement is due in large part to the Supreme Court of Canada’s decision in Canadian Artists’ Representation v National Gallery of Canada in June of this year. CARFAC/RAAV were represented by David Yazbeck, Michael Fisher and Wassim Garzouzi from RavenLaw in this successful appeal to the Supreme Court.

If your employer terminates you without just cause (see: “Can my employer fire me for no reason?” ), they are required to provide you with notice of the termination. That notice can be given in two possible forms: “working notice” or “pay in lieu of notice”.

 “Working notice” is when you are given advance notice that your employment is going to end, but you continue to work and receive your regular compensation for the length of the notice period. Once the notice period is up, your employment ends, and the employer has no further obligations. The theory is that the employer has given you sufficient advance notice that your employment will be ending, to permit you to look for other work.  During the notice period, you will be required not only to look for other employment, but also to perform your usual tasks at the usual standard.  Failure to do so could result in termination for just cause .  The employer should provide reasonable time off to attend job.

“Pay in lieu of notice” is the more typical form of notice received when an employee is terminated without cause. In this case, you stops work on the day of termination, but receive payment equal to what you would have received if you had continued working through the notice period.

Length of Notice

Whether notice is given to you as working notice or pay in lieu of notice, the important question becomes: what amount of notice is reasonable notice?

Much like an employee’s general terms and conditions of employment (see: “Know Your Rights—Determining the Terms and Conditions of your Employment” ), there are three main places to look when calculating your notice period: legislation, your employment contract, and the law as developed through legal decisions.

In Ontario, the Employment Standards Act sets out a notice period based on an employee’s length of employment. This is the minimum amount that most employees in Ontario are entitled to. The basic entitlements under the Act are:

Your contract may also contain terms which specify the notice period that will apply if you are terminated without cause. If your contract contains a notice period term, this calculation will apply in most – but not all – circumstances, unless it is inconsistent with the minimums outlined in the Employment Standards Act.

Where there is no provision in your contract, however, you are not restricted to the minimum notice periods set out in the Employment Standards Act. Instead, you are entitled to “reasonable notice,” which is calculated based on the law as it has been developed through legal decisions.

Determining a reasonable notice period requires a review of your individual circumstances with the aim of estimating how long you will take to find a new, comparable job. The main factors that are considered are age, length of service, character of employment (for instance, an employee’s level of responsibility), and the availability of similar employment. In special circumstances, other factors can be considered, such as whether you were induced to leave a previous position by the employer.

A very general rule is that you are entitled to one month per year of service with the employer, up to a maximum of 24 months. This general rule is modified by the criteria listed above, as well as your duty to mitigate and other factors (see Mitigation ). Individual cases are very fact-dependent, and require legal advice.

Conclusion

You are entitled to notice of termination, usually in the form of a working notice period or pay in lieu of that working notice period. Notice periods may be set out in your contract or by reference to the Employment Standards Act. Where no notice period is set by contract, you are entitled to reasonable notice. Because reasonable notice is calculated through an individualized, case-by-case assessment, you should consult an employment lawyer for assistance estimating what a reasonable notice period would be in your circumstances.

We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for wrongful dismissal. 

[The following information applies to non-unionized employees. This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]