In October 2022, Alison McEwen and Raphaëlle Laframboise-Carignan were in Rankin Inlet, Nunavut. They presented workshops in association with the Law Society of Nunavut and spoke on the topic of preventing workplace harassment.
On November 15, 2022, Dayna Steinfeld will be presenting on a panel at The 28th Annual Manitoba Labour Law Review on the topics of employee duties in the unionized workplace, racial discrimination and sexual harassment in the workplace, and privacy protections and limits for unionized workers. Dayna will be presenting on the panel from the perspective of union-side counsel.
The conference is organized and offered by the Centre for Labour-Management Development (Canada) Inc, an organization that works to keep unions and employers informed and up to date on the law and its impact on unionized workplaces in Canada. More information about the conference is available here.
On October 31, 2022, the Ontario Court of Appeal issued a decision, overturning a mitigation decision in a wrongful dismissal case.
The Superior Court judge had found that the Appellant was wrongfully dismissed from her employment and entitled to eight months’ reasonable notice of termination. However, the judge also concluded that the Appellant had failed to act reasonably in her duty to mitigate her losses and therefore reduced her notice period to six months.
On appeal, the Court of Appeal found that the judge’s decision was based on two errors. First, the judge incorrectly held that the Appellant had taken insufficient mitigation steps because she had not applied for lower-paying positions than the one she was terminated from. The Court of Appeal confirmed that the duty to mitigate only requires an employee to look for employment “that is comparable in status, hours and remuneration to the position held at the time of dismissal.” The Court also found that the judge had placed too much weight on the titles of the positions that the Appellant had applied for, without looking at whether the duties were, in fact, comparable to the Appellant’s former position.
Second, the Court of Appeal found that there was no evidence to support the judge’s assumption that the Appellant would have increased her chances of finding new employment if she had made more efforts. The judge could not rely on such an assumption without some evidence to support it. In addition, the Court highlighted that simply assuming that more efforts would increase an employee’s chances of finding new employment did not complete the mitigation test. The legal test required assessing whether the employer had proven that “if reasonable steps in mitigation had been taken by the appellant, [the appellant] would have found a comparable position during the reasonable notice period.” The judge had therefore not performed the right analysis.
As a result, the Court of Appeal overturned the Superior Court’s decision and directed that the Appellant be paid the full eight month notice period, without a reduction due to mitigation.
The Appellant was represented by Morgan Rowe of RavenLaw and Dorian Persaud of Persaud Employment Law.
Did Skip the Dishes terminate your employment? We have a dedicated team of Employment Lawyers ready to help. Severance packages can be confusing, which is why we’re committed to answering all of your questions and helping you through this uncertain time. Email info@ravenlaw.com to schedule an appointment today with one of our experienced Employment Lawyers to review your termination package and ensure you get a fair deal. You can meet with us in person, by video conference or by phone.
On October 12, 2022, Alison McEwen will be presenting at the 23rd Employment Law Summit, presented by the Law Society of Ontario. She will be speaking on the topic of return to the physical workplace, the challenges that arise with this return, and if there is a way to continue working from home.
For more information or to register for the Summit, visit the Law Society’s website.
On September 26, 2022, Morgan Rowe spoke to the University of Ottawa – Faculty of Common Law’s “Human Rights” class, as part of the class on emerging topics in human rights. Her presentation focused on topics related to sexual orientation, asexuality, and the regulation of personal relationships.
On September 23, 2022, Morgan Rowe presented on the Labour and Employment Panel at the Kingston & 1000 Islands Legal Conference, hosted by Frotenac Law Association.
Morgan discussed the obligation on employees to cooperate in workplace accommodation processes, including addressing when employees may refuse accommodation options proposed by their employers.
In November 2022, James Cameron will be inducted as a Fellow of the College of Labour and Employment Lawyers.
The College was founded in the United States. It is an organization that promotes achievement, advancement and excellence in the practice of labour and employment law, as well as working to establish leadership, high standards of professionalism, and civility among labour and employment lawyers. The College has fellows in the United States and Canada.
James will be joining Sean McGee, who was inducted as a Fellow of the College in November 2020.
In a recent decision, the Federal Court overturned a decision by a delegate of the Minister of Labour, which had refused to investigate the health and safety complaint of a Canada Border Service Agency employee.
The employee had filed a complaint with the Minister under the Canada Labour Code when CBSA had refused to appoint an impartial investigator to investigate his harassment concerns. CBSA had taken the position that it did not have to investigate the concerns because the employee was off-duty at the time of the alleged harassment, even though the incident took place within the workplace and the alleged harasser was the employee’s supervisor. When considering the employee’s Code complaint, the Minister of Labour’s Delegate refused to investigate the complaint, finding instead that the employee should file a human rights complaint because he was off-duty at the time of the incident.
In its decision, the Court found that the Minister’s Delegate did not have the option to refuse to investigate the employee’s complaint. Instead, the Court found that investigation was a mandatory obligation on the Delegate for this type of complaint, and the Delegate therefore committed an error by refusing to investigate.
In addition, the Court strongly questioned whether it was appropriate to deny the employee harassment protections under the Code because he was off-duty at the time of the incident. As the Court stated:
“While the Applicant was in fact off-duty when the incident occurred… it remains that the Applicant was still in his place of work and the agent of the alleged harassment and violence was the Applicant’s supervisor. Therefore, it becomes difficult to disregard the employee-employer connection in this incident, and the fact that the effects of the incident are evidently different for the Applicant than for a regular traveller who is not employed by the CBSA. Since the place, the tone, and the circumstances of the incident are indicative of the existence of a nexus between the incident of violence and the work place, the issue becomes whether or not the incident itself constitutes harassment and violence. The Respondent’s submissions seem to suggest that if an employee acts within the requirements of their job, as provided for by their work policy or statute, their actions against an off-duty employee while in the place of work cannot constitute harassment or work place violence. I agree with the Applicant that this could set a concerning precedent…”
Based on its analysis, the Court set aside the Minister’s Delegate’s decision and referred the matter back for a new decision.
The Applicant was represented by Morgan Rowe of RavenLaw.
During the week of June 20, 2022, RavenLaw presented as part of multiple panels during the Canadian Association of Labour Lawyers’ annual conference.
On June 24, 2022, Sean McGee presented as part of a panel exploring the opportunities and challenges of remote work post-COVID. In the afternoon, Wassim Garzouzi moderated a panel with two guest speakers from the United States, which discussed unionizing workplaces like Amazon and the need to reform labour laws.
On June 25, 2022, Amarkai Laryea presented on a panel addressing the impacts that current grievance arbitration models have on racialized workers and ways to practice labour law in an actively anti-racist manner.