On May 18, 2022, the Manitoba Court of Queen’s Bench ruled that the Manitoba government discriminated against First Nations children in Manitoba foster care by denying them the federal Children Special Allowance (“CSA”) to which they are entitled and which is meant to be used exclusively for the care, maintenance, advancement and education of children in care.
In Manitoba, approximately 82% of children in the child welfare system are First Nations. From January 1, 2005 through March 31, 2019, Manitoba required Child and Family Service Agencies to remit all CSA benefits received for children in their care. When Agencies refused, the CSA amounts were clawed back from their Operational and Child Maintenance budgets. In total, Manitoba recovered over $334 million during this period that would otherwise have directly benefited children in care.
In 2020, Manitoba passed legislation (section 231 of The Budget Implementation and Tax Statues Amendments Act, or “BITSA”), which attempted to retroactively authorize its taking of CSA funds. This legislation also sought to absolve Manitoba of all liability for doing so, including by preventing any lawsuits – including already filed and ongoing lawsuits – against Manitoba over its taking of CSA funds.
In 2021, the Assembly of Manitoba chiefs initiated an application against the Manitoba government over its attempt to legislatively prevent children in care from seeking recourse for the denial of the CSA funds.
The Court’s decision found that the Manitoba government discriminated against children in care by taking the CSA funds from them, and that its attempt to absolve itself of liability for the holding back of over $334 million from children and youth in care was unlawful and constitutionally invalid. The Court found that Section 231 of BITSA “overwhelmingly impacts the Indigenous children and disabled children in care. The CSA policy prevented the claimant group from receiving equal benefit of the law resulting in economic and social consequences to Indigenous children in care The Court stated that “over 150 years of colonial policies which removed children from their families and nations is one example of the historical discrimination against [First Nations] children.” It acknowledged the significant disadvantages experienced by Indigenous children in care, which were perpetuated and exacerbated by Manitoba’s treatment of CSA funds.
The Court found that Manitoba discriminated against First Nations children on the basis of race, ethnic origin, disability, and family status contrary to section 15 of the Charter. In particular, the Court’s finding of discrimination on the basis of family status is notable and precedent-setting as the family status of a child in care had not previously been recognized by courts as a basis for grounding a claim of discrimination. This recognizes, as AMC argued before the Court, that the targeted discrimination of First Nations children in care by Manitoba could not be fully understood and remedied without recognizing family status as a ground of discrimination.
The Court concluded that it [was] a violation of s. 15(1) [of the Charter] by Manitoba to preclude children in care from receiving the CSA Benefits and then enacting s. 231 of BITSA to make the CSA Policy law in Manitoba.” The Court declared section 231 of BITSA to be invalid and of no force or effect. The Assembly of Manitoba Chiefs was represented by Byron Williams and Chris Klassen of the Public Interest Law Centre of Legal Aid Manitoba, with the support of many other lawyers and students at PILC, and Dayna Steinfeld of RavenLaw, with assistance from Anna Rotman.
Dayna Steinfeld is the 2022 recipient of The David Stockwood Memorial Prize. The prize is awarded to an advocacy-related written article, judged for its merit by a panel.
Dayna’s winning submission, “”Finding a Balance – Navigating the Advocacy Challenge for Union Side Labour Lawyers in Cases Involving Allegations of Member on Member Sexual Violence” examines the challenge for union-side lawyers of cross-examining a union member called as an employer witness in a case involving an allegation of sexual assault in the workplace. The article suggests that the union-side advocate can be guided by the legal principles of the law of consent to fulfil their role as an advocate for their client while balancing broader ethical obligations and being sensitive to the union’s equity-seeking goals and duties owed to all of its members.
Dayna’s article will be published in the Fall 2022 issue of The Advocates’ Journal.
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.
By Amanda Montague-Reinholdt
If your employment has been terminated without cause, one of the first questions an employment lawyer will ask you is whether you have a written employment contract. If you do, the employment lawyer will review it to determine if the contract sets out your entitlements when your employment is terminated without cause. Many employment contracts state that employees will only receive the minimum notice and severance entitlements under the Employment Standards Act (ESA). If that clause is properly drafted, it may deprive an employee of their right to a longer notice period under the common law.
In a judgment rendered last year, the Ontario Superior Court identified a different basis for employees to argue that this type of contract provision cannot be applied to limit their entitlements. The Court held that an employer’s bad faith conduct can amount to a repudiation of the employment contract and invalidate the contract’s termination clause. If this judgment is followed in future cases, a termination clause that, on its face, complies with the law could still be invalidated, based on the employer’s conduct.
In Humphrey v Mene, the plaintiff had helped to create a new start-up company and was subsequently appointed as its Chief Operating Officer. She later signed an employment agreement that contained a termination clause limiting her rights to the minimum entitlements under the ESA. As a relatively short service employee, she was only entitled to two weeks’ notice under the ESA. However, the Court ruled that Mene could not rely on the termination clause in Ms. Humphrey’s employment contract.
First, the Court held that the employment agreement was void because Mene gave Ms. Humphrey no additional consideration for signing it. She was, under the law, already an employee before signing the contract, and received no additional compensation or benefit under the agreement. Therefore, the terms in that agreement were not valid or enforceable.
The Court went on to hold that, even if the employment agreement was valid, the termination clause still did not apply. The Court noted, in passing, that the termination clause did not expressly apply to the circumstances in which Ms. Humphrey was terminated (a constructive dismissal based on a toxic workplace). However, the main basis for the Court’s conclusion was that the employer’s overall conduct amounted to a repudiation of the employment agreement and therefore the employer could not rely on the provision limiting Ms. Humphrey’s entitlement when terminated without cause.
To justify this conclusion, the Court’s judgment recounts numerous examples of the employer’s reprehensible conduct, including:
Ms. Humphrey was awarded significant damages as a result of the employer’s breach of her contract, including a notice period of 11 months, as well as aggravated and punitive damages.
This judgment has potential significance for many employees who are badly mistreated by their employers. The standard to be met to invalidate an employment contract is clearly very high; however, in cases where the employer engages in serious bad faith conduct, employees can avoid the application of a contract provision that harshly limits their entitlements on termination without cause. It remains to be seen whether other judges endorse this approach in future cases.
If you have experienced bad faith conduct, harassment, or mistreatment by your employer, and wish to review your employment contract and the circumstances of your employment, contact one of our experienced employment lawyers here.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
On May 9, 2022, Dayna Steinfeld will be presenting on a panel hosted by the Manitoba Bar Association’s Alternative Dispute Resolution, Labour & Employment Law, and Legal Research sections. Dayna will discuss legal research and practice tips for mediations and informal proceedings in labour and employment law.
For more information or to register for this lunch-hour session, please visit the MBA website.