On November 14, 2020, Sean McGee was 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.
On September 24, 2020, RavenLaw hosted its fall LTD conference via video conference. The conference focused on long-term disability claims in the context of post-concussion syndrome and brain injuries.
The conference was attended by many union representatives of several federal public sector unions and by non-unionized employees. A neurological physiotherapist, Amaal Mirani of Lifemark Physiotherapy, provided a medical view on the fundamentals of concussions and post-concussion syndrome, their effects on the brain, and available treatments. Two guest speakers also shared their personal stories about dealing with post-concussion syndrome in both private and public sector employment, as well as their experiences pursuing claims against their insurance companies for long-term disability benefits.
Finally, James Cameron, Kim Patenaude, and Anna Lichty of RavenLaw provided a legal perspective on litigating long-term disability claims for clients with post-concussion syndrome and other brain injuries.
For unions, another round of negotiations has often meant getting back into a familiar pattern: deliver notice to bargain, prepare proposals, have a series of sometimes constructive, sometimes frustrating discussions across the bargaining table, perhaps resort to strike or face a lockout, then arrive at a collective agreement.
A union may have a right to a range of information that is relevant to collective bargaining. Unions have a right to receive information about changes an employer is considering that may have a major impact on the bargaining unit. That is particularly true in response to certain employer positions like a declaration of an inability to pay. They have that right even if they don’t ask, as the obligation to disclose is part of the duty to bargain in good faith. If they ask, the obligation is probably even more extensive. You can look at a decision called PSAC v. Forintek Canada Corp. for details about how the Ontario Labour Relations Board applied this principle several decades ago. It is still good law.
Employers may be thinking about a variety of options as COVID-19 remains one of the central features of the economy – from local markets to international trade. A Union and its members are entitled to know what decisions have been made and what decisions are being considered. To be in the best position to prepare demands, to negotiate for appropriate contract terms and to speak with members about whether a tentative collective agreement is reasonable, it is more important than ever to create a comprehensive request for information and disclosure.
Each request will be different and will depend on the sector of the economy, local conditions, and the relationship between the Union and the employer. Whatever the circumstances, no union should go into bargaining (or if already there, sign a tentative agreement) without making the request.
The information may be significant, or there may not be much. It may be that the employer is forthcoming, or it may be necessary to extract it like you were doing dentistry. In any event, it is much better to have made the request than to be surprised two months after signing the agreement with a reorganization, or a series of layoffs, or some other change that had been in the works for a considerable period of time.
This is one of the obligations the parties have in bargaining. It is more important than ever to make sure the other side lives up to its obligations.
On October 16, 2020, the Supreme Court of Canada upheld a Charter challenge to portions of the RCMP pension plan, which had been applied to prevent employees from buying back periods of service during which they had temporarily reduced hours of work for childcare reasons.
In its decision, the majority of the Supreme Court concluded that the pension law had a disproportionate, negative impact on women due to their sex. Particularly, the majority noted that the evidence demonstrated both that the Appellants themselves had been negatively impacted by the pension scheme due to childcare responsibilities and that, more broadly, women as a group face disadvantages related to balancing work and childcare obligations. The majority also accepted that the specific negative impact in this case perpetuated historical gender biases in pension plans. The majority concluded that the pension law therefore breached the equality rights of women, contrary to section 15 of the Charter.
As the Government could not provide a pressing or substantial reason to justify the negative impact on women, the Court directed the Government to design remedial measures to address the negative impacts on the pensions of the Appellants and others in the same position.
Andrew Astritis and Morgan Rowe from RavenLaw appeared on behalf of the intervener, the Public Service Alliance of Canada, to support the Appellants in their arguments that the pension law discriminates against women and other parents because of their childcare obligations.
A recent decision of the Manitoba Court of Queens Bench has found that legislation which purported to cap wage increases for unionized public sector employees infringed the Charter right to freedom of association.
Manitoba’s Progressive Conservative Party was elected in April 2016 and, shortly thereafter, Cabinet recommended adopting wage-freezing legislation modeled on legislation that had previously been used to limit increases to public sector wages in Nova Scotia. The legislation was passed within a year. The Public Service Sustainability Act (PSSA) created what it called a “sustainability period”. This meant that for the first two years following the expiration of a collective agreement no wage increases could be granted or awarded by an arbitrator. In the third year, increases were to be capped at 0.75% and 1.0% in the fourth.
The legislation received royal assent but was not proclaimed into force. Some speculated that the reason for its non-proclamation was to avoid the possibility that it would be held to be unconstitutional. However, the unions that challenged the legislation provided extensive evidence that, despite the non-proclamation of the legislation, the threat of the legislation’s ability to retroactively roll back negotiated wage increases hung over all collective bargaining tables, and was repeatedly adverted to by government and employer negotiators. Nearly all of the unions who were parties to the Charter challenge had concluded collective agreements with wage increases in line with the PSSA but indicated that their acceptance was conditional on the constitutionality of the PSSA and that they were signed “under duress”.
The constitutional challenge relied on the developing jurisprudence around section 2(d) of the Charter which guarantees freedom of association. Freedom of association has developed to include a right to collective bargaining free from substantial government interference and a right to strike. The most recent decisions from the Supreme Court are the 2015 trilogy of Mounted Police Association of Ontario, Meredith, and Saskatchewan Federation of Labour, as well as the Court’s subsequent decision in British Columbia Teachers’ Federation. Those decisions advanced the law of freedom of association significantly in positive directions for unions. However, the Meredith decision found that wage restraint legislation imposed to address economic concerns arising out of the 2008 financial crisis was permissible in the context of the labour relations regime in place at the RCMP. Subsequently, appellate courts across the country dismissed constitutional challenges to that same federal wage restraint legislation.
The Manitoba Federation of Labour case is important. It provides a clear and systematic analytical framework for dealing with legislation which freezes or limits increases on public sector wages achieved through collective bargaining.
The Court’s findings can be broken up into four parts:
In comparing the Manitoba legislation to the Federal legislation in Meredith, the Court noted that a significant difference between the two pieces of legislation was that the federal legislation sought to impose salary increases comparable to those that had been negotiated for comparable bargaining units in the public sector. Also, in this case, the legislation was imposed so as to have an effect on future collective bargaining rather than to provide certainty to bargaining that had been ongoing. The Court found that the enactment of the PSSA had wide-reaching consequences on labour relations and substantially interfered with a meaningful process of collective bargaining and thus infringed section 2(d) of the Charter.
Notably, the Court found that the government had failed to justify the Charter infringement at the first stage of the Oakes test. It emphasized that Courts should look with a large degree of skepticism on “dollars versus rights” controversies. The unions pointed to the fact that the government had introduced tax cuts at the same time as it pled poverty. The court found, upon a detailed review of various budgetary reports, that there was no budgetary crisis that could constitute a pressing and substantial objective. Courts rarely rely on this branch of the Oakes test to find that constitutional infringements cannot be justified. As such, this can be read as a striking indictment of legislating wage restraint for unionized employees for ideological or convenience reasons.
For the sake of completeness, the Court went on to consider the balance of the Oakes test including whether the PSSA minimally impaired the union members’ freedom of association while accomplishing its stated objective of limiting government expenditures. In determining whether the government employed the least-infringing option, the Court looked at the process that led up to the adoption of the legislation. The government had indicated to the unions at all times prior to the passage of the legislation that this was the only option it would consider. The Court suggested that the government could have simply reduced budgets at government-funded employers and allowed bargaining to transpire in that context. The unions had gone so far as to propose less-impairing alternatives prior to the enactment of the legislation but the government had ignored their proposals.
The Court declared that the relevant sections of the PSSA violated the Charter, could not be justified and were thus of no force and effect.
There are significant practical lessons to be had from the unions’ success in this case in how to deal with legislated austerity measures for public sector wages.
First, it appears that the tactic of ratifying collective agreements conditionally with the proviso that it was done “under duress” can support the conclusion that collective bargaining was substantially interfered with and may allow the unions to later challenge the collective agreements, which were concluded under the threat of the legislation.
Second, the unions presented a united front with all affected public-sector unions working together to challenge the legislation fronted by the Manitoba Federation of Labour. This strategy appears to have assisted in presenting robust factual evidence and providing the Court with a complete picture of all facets of the government’s application of its policies under the legislation in negotiations with various bargaining units.
Third, while the decision confirms that pre-legislative consultation is not required for wage restraint legislation, it suggests that such consultation may assist the government in justifying any resulting infringement. It may be advisable for unions facing down impending wage-restraint legislation to make concrete alternative proposals which can be relied on later to show that the legislation was not the least rights-impairing option to address the government’s concerns.
Fourth, the unions brought forward significant amounts of expert evidence from labour relations scholars on a variety of issues including the importance of the leverage gained from being able to negotiate on monetary issues, the effect of these restrictions on the relationships between unions and their members, the impact of such legislation on the ongoing relationships between unions and management, the effect of the legislation on strike leverage, and consequences for government finances. The Court relied extensively on the expert reports provided by the union, demonstrating the importance of developing a significant evidentiary basis on both the section 2(d) and section 1 Charter issues.
This decision will hopefully chill efforts by governments to impose wage restraint through legislation. If not, it provides an effective roadmap for similar constitutional challenges to newly introduced legislation that will curtail bargaining rights.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]
Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish.
When the land border between Canada and the United States closed in March, thousands of people who make the daily commute to work across the border were left in a difficult situation.
United Steelworkers Local 2251 v Algoma Steel Inc. deals with one such person, a machinist apprentice at a steel plant in Sault Ste. Marie, Ontario.
Each day the employee made the approximately 30-minute commute from his home in Chippewa County in Northern Michigan to the plant in Sault Ste. Marie. Because he was crossing the border for employment reasons, he was exempted from the border closure and from the mandatory 14-day period of self-isolation. However, his employer wanted to go further in creating a “Covid free” worksite. It implemented a policy that any of its employees who enter the country must isolate for 14 days before attending work.
This employee has custody of his two young children on the weekends and they would not be entitled to cross the border with him. This made it impossible for him to enter into Canada fourteen days prior to entering the workplace. The Union challenged the application of the self-isolation policy and its impact on this employee.
The arbitrator reasoned that, while this policy would generally be reasonable, it would not be reasonable to apply it without considering obligations under the Human Rights Code to accommodate family status. In this “unusual case,” the policy forced the employee “to make the difficult choice of having access to his two young children or to make a living.” The arbitrator also noted the fairly low rates of COVID-19 in the employee’s home area.
The Arbitrator concluded that the “competing legitimate rights” must be balanced. Instead of the blanket ban on employees crossing the border, the employer could assign him to work separately from other employees, require that he wear PPE, and take extra social distancing and sanitizing protocols. Consulting with the Union, it could consider mandatory testing and even restricting him from travel to designated COVID-19 “hot spots” in the United States.
While governments and employers have taken sweeping and necessary action, this case is a helpful reminder that the approach to fighting the pandemic cannot disregard important worker and human rights protections. Here, a nuanced resolution was possible in a relatively short period of time, highlighting the importance of unions in advocating for their members as we navigate the COVID-19 workplace.
If you have questions or concerns about the implications of COVID-19 on your employment, please call 613-567-2901 or email info@ravenlaw.com. If you are a member of a union, please contact them directly for assistance in dealing with your workplace issue.
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
On September 25, 2020, Jessica Greenwood will speak at the annual Kingston and the 1000 Islands Legal Conference. She will participate in a panel addressing employment litigation issues arising due to the COVID-19 pandemic.
This year’s conference is proceeding virtually. The conference is hosted by the Frontenac Law Association.
On September 10, 2020, Alison McEwen spoke at the Ottawa Six-Minute Employment Lawyer workshop, presented by the County of Carleton Law Association. Alison spoke on trends in the notice periods awarded in wrongful dismissal cases, including increases in notice periods for older workers.
On September 17, 2020, Andrew Astritis spoke at the Osgoode Hall Professional Development conference on Class Actions: Critical and Emerging Issues. Andrew participated in the panel on “#MeToo Comes to Class Actions”.
Andrew is part of the team at RavenLaw that has been representing current and former members of the Canadian Armed Forces in the class action involving sexual misconduct in the military, which was settled in 2019.
Ravenlaw gratefully acknowledges the contribution of this post by articling student Karen Sisson.
A recent decision of the Ontario Arbitration Board affirms the employee’s right to a hearing for grievances related to systemic issues in the workplace, even where the issue may appear to be moot.
In the 2020 CAS v CUPE[1] decision, the employer had made a motion to dismiss an employee’s 2016 grievances, which alleged an incident of workplace harassment as well as a failure to meet obligations under the Collective Agreement pertaining to accommodation.
The Grievor in this matter had made an allegation of harassment against a supervisor. The incident was alleged to have occurred during discussions about the Grievor’s accommodated return to work plan. Following the filing of the grievance in 2016, a workplace remedy was applied wherein the employer agreed that the Grievor would no longer be supervised by that particular supervisor. The employer also agreed to review expectations with respect to return to work planning with all supervisors.
The Grievor and the employer continued to engage in negotiations for a return to work plan, but no plan was ever agreed to. The Grievor filed an additional grievance, alleging that the employer had failed to meet their accommodation obligations under the Collective Agreement. Both grievances were filed in 2016. At the time of the Hearing in 2020, there were no new reports or concerns with respect to harassment, and the Grievor had successfully returned to their full-time position.
The employer brought a motion to dismiss the employee’s grievances, relying on the fact that they had already engaged an adequate remedy, and the grievance was thus out of scope of the Arbitration Board. There had been no further issues raised since the grievances were filed in 2016. The employer argued that the “fact specific” nature of the grievances meant that the issues were now moot, and there was no benefit to the ongoing relationship of the parties to pursue further resolution. The employer alleged that a hearing on the grievances would “dredge up controversy and conflict at great expense”, potentially having a detrimental impact on ongoing labour relations, and on the Grievor.
In reply, the Union highlighted that an allegation of harassment in the workplace is a live issue which requires a formal resolution. The passage of time should not be relied on to “wash away” the fact of the allegation. Furthermore, a resolution of the grievance alleging a failure to accommodate the Grievor would assist the parties in their application of the Collective Agreement. The Union also highlighted that the Grievor may be entitled to damages to compensate for the harm they suffered because of the alleged harassment.
In its decision, the Arbitration Board explicitly stated that the doctrine of mootness applied in the context of criminal and civil matters is not applicable in the same manner to labour relations. Citing a prior decision in the analysis, Sherbrooke Community Society v SUN Local 22[2], the Board stressed that “The parties before an arbitrator, by definition, must continue to live together in a work relationship under a collective agreement… once a systemic issue is raised by a particular grievor, it does not simply disappear, due to a change in that particular person’s individual circumstance”.
The Board declined to follow earlier decisions where the doctrine of mootness had been applied, distinguishing the grievances in this matter on the grounds that these grievances raised more complex issues than those raised in the prior decisions. The Board also emphasized the significant evolution in the last 15 years regarding damages involving harassment and/or violations of the Human Rights Code. While the Grievor had successfully returned to work since the grievance had been filed, the question of whether the accommodation plans were adequate, or adequately adhered to in the workplace, remained a live issue.
With respect to the allegation of harassment, the Board unequivocally found that the efforts of the employer to remedy the issue in the workplace did not resolve the grievance. Actions taken by the employer in response to the allegation were relevant to quantifying potential damages, but they did not adequately meet the labour relations purposes served via a hearing on the issue. A hearing on the issue would provide instruction to the parties about how similar situations can or should be dealt with in the future.
Given these observations, the Board found that “The underlying questions about the substance of the Grievor’s allegations remain alive and require resolution, for her sake and for the sake of the parties’ understanding of their rights under the Code and the Collective Agreement”. Absent a mutual agreement with the consent of both parties, the case was not one where it would be appropriate to halt the proceedings.
This decision is significant for its recognition that an employee’s right to remedy for potential breaches of the Human Rights Code cannot be said to have disappeared via the passage of time. The resolution of systemic issues is a vital component of labour relations, and an employer can not escape the potential application of a remedy via a hearing by the Arbitration Board on such matters.
[1] The children’s Aid Society of Toronto and The Canadian Union of Public Employees and its local 2316, 2020 CanLII 34509 (ON LA).
[2] Sherbrooke Community Society v SUN Local 22, 2 L.A.C. (3d) 97 (Norman).