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.

Employment legislation has a huge impact on workers’ rights. However, employment lawyers know all too well that well-meaning legislation often fails to translate into better conditions for workers, because some workers are excluded from its protection, or it is difficult to enforce.

Tomorrow, the Ontario government is set to pass Bill 18, a sweeping bill intended to strengthen existing labour and employment laws. While many of the proposed changes are to be welcomed, the proposals fail to address the problems with enforcing employees’ existing rights.

Ontario’s Bill 18: Stronger Workplaces for a Stronger Economy Act

Bill 18, which passed Second Reading in the Ontario legislature on October 29, is what is known as an ‘omnibus’ bill: it includes amendments to several existing statutes affecting labour, employment, workers’ compensation and health and safety. Some of the highlights include:

• Enhancing the protections for temporary foreign workers in Ontario;
• Requiring employers to provide employees with information regarding their rights under the Employment Standards Act;
• Removing the $10,000 cap on recovery for unpaid wages through a Ministry of Labour order to pay, and extending the time limit to recover wages;
• Amending the definition of “worker” in the Occupational Health and Safety Act to extend coverage to co-op students, trainees and other unpaid workers;
• Indexing minimum wage to the rate of inflation.

Motion for time allocation passed, limiting debate

The Liberals brought a motion on Monday, October 27 for “time allocation”, limiting debate of Bill 18 and expediting its passage. The government justified this move as following through on the strong mandate the Liberals received in the last provincial election to end the delays in passing important legislation.

Opposition members questioned this rationale for limiting debate, and emphasized that Bill 18 is incredibly important to workers across Ontario, meaning all affected parties, including precarious workers and interest groups, should have an opportunity to be heard. Peggy Sattler, an NDP MPP who has tabled her own private member’s bill seeking to improve rights for unpaid interns, pointed out that a curtailed debate will prevent discussion of the shortcomings of Bill 18, including the fact that enforcement of employment rights remains difficult for vulnerable employees, such as unpaid interns and migrant workers, because it is dependent on employee complaints.

Important rights may go unrealized

On the whole, Bill 18 is to be lauded for extending certain protections to various groups of vulnerable workers, who are currently excluded from employment regulations. These changes are encouraging as they appear to reflect a genuine desire to increase workers’ access to rights such as redress for unpaid wages, workers’ compensation, and health and safety. However, without a robust method of enforcing these rights, they may go unrealized for many workers.

Existing enforcement mechanisms based on employee complaints are problematic, because they depend on workers, who are often in a vulnerable position, knowing their rights and coming forward. Many workers may be unwilling to bring a complaint for fear of negative consequences in their employment. Our firm’s social justice intern last year, Daniel Tucker-Simmons, wrote a comprehensive report  on the problems with the current enforcement model for the Broadbent Institute.

As discussed in that report, an important step to improve the enforcement of employment standards legislation would be to repeal provisions enacted by the 2010 Open for Business Act that require employees to raise an alleged violation of the Employment Standards Act with their employer before being allowed to file a complaint with the Ministry of Labour. That amendment was widely criticized at the time, as most workers would be unwilling to directly confront their employers about violations of their rights. Repealing this requirement would improve the chances that the proposed new rights will be adequately enforced. Unfortunately, the limited debate of Bill 18 will prevent these and other issues from being the subject of appropriate discussion and review.

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

Ravenlaw is delighted to announce that the Supreme Court of Canada has ruled that pensioners at Manitoba Telecom Services (MTS) are entitled to compensation for the $43 million of surplus pension contributions made to MTS prior to its privatization.  This ruling, worth well over $100 million with interest, ends a long legal battle for these workers and their unions.

Congratulations to Brian Meronek, Kris Saxberg and Tomas Masi of D’Arcy & Deacon. James Cameron and Andrew Astritis appeared as co-counsel in the appeal.

Full text of the decision can be found here.

On March 21, 2013, James Cameron participated on a panel on persons with high-conflict personalities and how to deal with them in the workplace.

People who have a pattern of creating or increasing conflict with others can be characterized as people with ‘high-conflict personalities.’ With these individuals, the issue in dispute doesn’t cause the tension; rather, the individual’s personality causes the tension. People with high conflict personalities may have underlying personality disorders, or traits of a personality disorder. In this session experts will identify high conflict patterns of behaviour, provide information on common personality disorders, and discuss legal considerations and dispute resolution techniques relevant to dealing with conflict in the workplace.

For further information, please visit the Lancaster House website.

David Yazbeck will co-chair the Lancaster House Ottawa Labour Law Conference, on May 16-17 at the Ottawa Conference Centre.