The Federal Court of Appeal has overturned a decision of the Canadian Human Rights Commission, in which the Commission rejected a human rights complaint against the Bank of Nova Scotia at the pre-investigation stage. The Appellant, Robert McIlvenna, had a mortgage with the Bank, and had applied for an additional line of credit to perform renovations on the mortgaged house, which was occupied by his son and daughter-in-law. The Bank refused the line of credit and called in Mr. McIlvenna’s mortgage, and he alleged the Bank took this action because it had learned that medicinal marijuana was being grown in the home under a Health Canada license. The Bank maintained that the reason for its actions was a violation of the terms of the mortgage. 

The Commission rejected the complaint under section 41 of the Canadian Human Rights Act, which authorizes the Commission to refuse to deal with a  complaint without an investigation in certain circumstances. In its unanimous decision granting the appeal, the Court held that it was unreasonable for the Commission to have dismissed the complaint without an investigation, because there was a live contest between Mr. McIlvenna and the Bank as to whether the Bank made its decision on discriminatory grounds. Justice Stratas wrote on behalf of the Court: 

“At this point in its process, the Commission cannot acceptably or defensibly resolve the live contest between Mr. McIlvenna and the report of the Bank’s in-house counsel in favour of the latter, at least until it investigates further under section 43. But here, nonetheless, it purported to do so. In so doing, it must have engaged in some sort of weighing process that led it to favour the report of the Bank’s in-house counsel. This it cannot do. During the section 41 stage, a weighing process of the sort conducted here is no part of its task.”

This decision provides important clarification of the proper scope of the Commission’s decisions at the section 41 stage of its process, and confirms its duty to investigate when there is a live dispute regarding the material facts of the human rights complaint.  

Mr. McIlvenna was represented by Andrew Astritis and Amanda Montague-Reinholdt from our firm. A copy of the Court’s reasons for judgment can be found here.

On November 27, 2014, Arbitrator Frederick von Veh issued a decision reinstating a Canada Post motorized letter carrier after he was terminated for working with an expired driver’s license. The Arbitrator found that the employee had not acted deliberately and that he had simply forgotten to renew his license – “he made a mistake”.  Arbitrator von Veh concluded that inadvertent errors do not constitute “major misconduct”, a term often used by employers to justify discipline. As a result, the employee was reinstated.

At the hearing, the employee was represented by his union representative, Don Foreman of the Canadian Union of Postal Workers (“CUPW”), and Wassim Garzouzi and Dayna Steinfeld from our firm.

The right to work in a safe and healthy environment is a cornerstone of modern employment rights. One of the ways that governments ensure and promote the health and safety of workers is through legislation. For employees who work in federally regulated workplaces, the applicable legislation is the Canada Labour Code. The purpose of the occupational health and safety provisions of the Code is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment.

On October 31, 2014, changes to the occupational health and safety provisions of the Code took effect. These changes have the potential to erode some of the key rights that workers had under the old version of the Code and may work against the Code’s stated purpose of preventing accidents and injury to health.

Application of the Canada Labour Code

The provisions of the Code apply to workers who are employed in federally regulated industries, including banks, railways, highway and air transport, radio and television broadcasting,  and (for some purposes) employees of the federal government as well as Crown corporations and agencies.

Occupational Health and Safety under the Canada Labour Code

The occupational health and safety provisions are contained in Part II of the Code. These provisions impose duties on employers and employees to ensure the health and safety of everyone in the workplace. The Code establishes three basic health and safety rights for employees:

1. The right to know about hazards in the workplace and information that will help protect employees’ health and safety;
2. The right to participate in health and safety processes in the workplace; and
3. The right to refuse unsafe work.

Amendments to the Canada Labour Code

The recent Code amendments contain a number of significant changes to the health and safety provisions. Perhaps the most significant changes are those which limit an employee’s ability to refuse unsafe work.

Definition of a workplace “danger” amended

The definition of danger is significant for accessing many of the rights contained in the Code, including the right to refuse unsafe work. Previously, “danger” extended to situations involving exposures that could result in chronic illness, disease or damage to the reproductive system. Under the new definition, for a situation to be a “danger”, there must be serious or imminent risk to life or health.

Increased powers to Minister to investigate, dismiss work refusals

Previously, if an employer investigated a work refusal and determined that there was a danger, it was mandatory for a health and safety officer to investigate the matter in the presence of the employee. The amendments create two significant changes to this process: first, it is now the Minister of Labour or the Minister’s delegate that performs the investigation. Second, and perhaps more significantly, the investigation is not mandatory—rather, the Minister can dismiss complaints without investigating if he or she is of the view that the matter can be dealt with under another procedure of the Code. The Minister can also dismiss a complaint without investigation if he or she is of the view that the matter is trivial, frivolous or vexatious or if the refusal to work is made in bad faith. If the Minister does not proceed with an investigation, the employee can no longer refuse to work.

The amendments may erode the right of workers to refuse unsafe work

The new provisions of the Code only recently came into effect and it is difficult to say exactly how workers will be affected. It remains to be determined whether the changes to the definition of danger will limit the circumstances in which workers can refuse work on the basis of a dangerous situation in the workplace, or whether courts will interpret “danger” in essentially the same way as under the old definition. While the implications of the change to the definition of danger are uncertain at this point in time, it does seem clear that the new powers of the Minister to dismiss complaints without investigation bestow wide-ranging discretion on the Minister. As an employee cannot continue to refuse to work if the Minister does not proceed with an investigation, the Minister’s ability to dismiss complaints without investigation could result in workers returning to unsafe conditions.  Worker advocates will be closely following how these amendments are interpreted and applied by employers and the courts.

[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.]

On December 9, David Yazbeck will be appearing in Federal Court on a judicial review of a decision of the Public Sector Integrity Commissioner. In the decision under review, the Commissioner dismissed a complaint by Charbel El-Helou that the Courts Administration Service took reprisals against him after he made protected disclosures of wrongdoing, pursuant to the Public Servants Disclosure Protection Act (“PSDPA”).

Our firm is arguing on behalf of Mr. El-Helou that the decision of the Commissioner should be set aside because Mr. El-Helou was treated unfairly in the process. The judicial review also raises important questions involving the proper legal framework for determining if reprisals were taken against a whistleblower after making a protected disclosure under the PSDPA.