On November 8, 2017, Michael Fisher spoke as part of the panel “Fitness to Work: Ensuring a Safe Work Environment in an Era of Marijuana, Opioids, and Other Drugs,” at Lancaster House’s Human Rights and Labour Law Conference in Ottawa. The panel focused on the common misperceptions on the use of medical marijuana and other drugs, impairment testing in safety sensitive workplaces, an employee’s duty to disclose their use of medical marijuana and other prescription drugs, and balancing accommodation and safety obligations.

In a pair of recent decisions, the Federal Public Sector Labour Relations and Employment Board confirmed the broad and purposive approach to the statutory freeze on terms and conditions of employment during collective bargaining. In Public Service Alliance of Canada v Treasury Board (Correctional Service Canada) and Public Service Alliance of Canada v Canada Revenue Agency, the Board found that the employer had violated the freeze by altering terms and conditions of employment without the union’s consent.

The Federal Public Sector Labour Relations Act, like labour law in most jurisdictions, contains a prohibition on altering the terms and conditions of employment while a union and employer are engaged in collective bargaining. The provision states that, unless the parties otherwise agree, “each term and condition of employment applicable to the employees in the bargaining unit to which the notice relates that may be included in a collective agreement, and that is in force on the day on which the notice is given, is continued in force and must be observed by the employer, the bargaining agent for the bargaining unit and the employees in the bargaining unit” until either a collective agreement is reached or a strike could be commenced. This is referred to as a “freeze” on terms and conditions of employment. The purpose of the statutory freeze is to maintain the status quo, and provide stability during the collective bargaining process.

In the Correctional Service Canada case, the Union argued that the employer had violated the freeze by reducing the hours of work of full-time term employees to four days per week, contrary to its longstanding practice. The Board agreed, finding that there was “no evidence that the respondent had made any reductions to the hours of work of the affected employees before the freeze period”, and therefore there was an established pattern of full-time employment for term employees, which created a reasonable expectation that hours would not be reduced during the freeze period.

In the Canada Revenue Agency case, the Union argued that the employer violated the freeze by eliminating the ability of employees to select variable and flexible work hours commencing before 8:00 a.m. The Board agreed, holding: “It was demonstrated that before September 2014, employees had been able to request flexible and super-compressed work schedules for years and that their requests had been approved. Thus, a pattern had been established. Once notice to bargain was given, it was reasonable for the employees to expect that it would continue.”

Both decisions endorse the “business as before” approach to statutory freeze complaints, which requires consideration of the entire pattern of the employment relationship prior to the freeze, in order to determine whether there was a violation. The Board rejected the narrower approach advocated by the employer in both cases, and also rejected the claim that the employer retained discretion to modify hours of work pursuant to legislation. As the Board stated in Canada Revenue Agency, to accept that argument “would render the protection conferred under the statutory freeze provision meaningless and it could lead to an absurd interpretation of the Act.”

The Public Service Alliance of Canada was represented in both cases by Amanda Montague-Reinholdt of RavenLaw.

Morgan Rowe is honored to be a “Featured Volunteer” on the REACH Canada website.  Morgan has volunteered with REACH as part of its pilot project providing legal information clinics to individuals with disabilities in Ottawa.  Morgan also provides pro bono legal services through REACH’s lawyer referral service.  REACH has provided this service and public education for individuals living with disabilities since 1981. RavenLaw is a long-term, proud supporter of REACH.

On October 18, 2017, James Cameron will present at the Canadian Institute’s Disability Insurance Conference. James will be discussing litigation strategies in LTD benefit claims, specifically addressing strategies for streamlining the litigation process and how to present your case to achieve best outcomes in a timely and cost-effective manner.

For more information or to register for the conference, please visit the Canadian Institute’s conference website.

Please note our office will be closed from December 23, 2017 until January 1, 2018. We will reopen for regular business hours on Tuesday, January 2, 2018 at 8:30 am.

Warmest wishes for a happy holiday season and a wonderful new year.

We are delighted to announce the opening of our Kingston office, enabling us to better serve our existing and future labour and employment clients.

Kingston will now have access to an exclusively employee side law firm, with substantial experience in all aspects of labour, employment, long term disability and human rights.

For further information on how to reach the Kingston office, click here.

RavenLaw gratefully acknowledges the contribution of this post by articling student Marlee Olson

Even before Canada became a nation 150 years ago, workers in Canada were fighting for their rights. Although labour rights activists have had a lot to celebrate over the years, it has been a long and arduous journey. In honour of Labour Day as well as Canada’s 150^th birthday this year, here are some of the highlights of the Canadian labour movement.

In the late 1700s, workers in Canada began congregating to demand fair wages in exchange for their labour. The government responded by putting laws into place making it a criminal offence to participate in trade unions. As a result, unions had no way to enforce contracts with employers to receive what they had been promised. The birth of the nation in 1867 was followed shortly after by the birth of the Canadian Labour Union, a political organization of unions that fought against the criminal sanctions imposed on trade unions. Despite this step forward, unions and employees still had no way to legally oppose employers, who would administer harsh discipline and demand 60-hour work weeks.

Several new laws in the early 1900s helped to ease the path to unionization in Canada, with union membership increasing at the start of WWI. After the war, the labour movement experienced several setbacks, including the violent crackdown on the famous Winnipeg General Strike. Although union membership decreased throughout the Great Depression, the period leading up to WWII saw unionism increase once again. The 1937 strike at General Motors in Oshawa is considered by many to be the birth of industrial unionism in Canada. After this, there was more pressure on the government to give legal protection to union members, but there were still no legal repercussions for employers who refused to cooperate.

Union membership doubled during WWII thanks to increased reliance on the work force. In 1944, the federal government implemented a wartime national labour relations law called PC 1003. This law finally placed obligations on both the employer and the union, and put into place many of the tenets of labour law that we still see today. Although repealed shortly after the end of the war, most provinces passed laws resembling PC 1003, including features like union recognition, the duty to bargain in good faith, and strict regulation of strikes. These rights were later extended to federal public service employees following the 1965 strike of the Canadian Union of Postal Workers.

Although PC 1003 was the first legislation to provide unions and workers with clear legal protection, it has certainly not been the only law to do so. Occupational health and safety legislation started coming to effect across the country in the 1970s. The Canadian Charter of Rights and Freedoms, enacted in 1982, has entrenched the constitutional freedom of association. This right was interpreted by the Supreme Court of Canada in 2007 to include the right of employees to associate to achieve workplace goals without employer interference. The Supreme Court further held in 2015 that the constitutional right to freedom of association also includes the right to strike.

The labour movement in Canada has seen many victories throughout the past two centuries—workers have gone from risking arrest simply for participating in a union to having a constitutionally recognized right to strike. Although labour activists have made great strides, there are still many more hurdles in the path.  As we look back on the accomplishments throughout the years, we must also look forward to the challenges yet to come, as we continue to work towards fair and equitable working conditions for all.

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

In a recent decision, a Board of Inquiry under Nova Scotia’s Human Rights Code found that an employer had violated its duty to accommodate a prospective employee on the basis of disability. This decision provides important confirmation that, like existing employees, prospective new hires also have a right to be free from discrimination, and to be accommodated up to the point of undue hardship.

Background

The Nova Scotia Health Authority offered a job to Melanie Yuille, a registered nurse and single mother. The offer was conditional on her being cleared fit for work. When the employer found out that she had epilepsy, a condition that prevented her from working the night shift on a rotating basis, it rescinded the offer.

A Board of Inquiry under Nova Scotia’s Human Rights Code found that, in rescinding the offer, the employer violated its duty to accommodate Ms. Yuille’s disability. The decision affirmed that employers have a duty to accommodate prospective employees who can perform the essential duties of the job. An employer cannot pass over an applicant with a disability simply because she cannot meet some of the job requirements. The employer must establish that, if the applicant can perform the core function of the job, accommodating the applicant would cause undue hardship.

The employer took the position that working the night shifts was a bona fide occupational requirement. The employer claimed that if it hired Ms. Yuille for day and evening shifts only, other staff may have to work more nights and, in that case, it may incur extra overtime costs. It further claimed that hiring Ms. Yuille could affect staff morale and raised patient safety issues.

In rejecting those arguments, the Board of Inquiry found that the employer’s concerns with employee morale and patient safety were speculative and impressionistic. There was no actual evidence to support either claim. There was similarly no evidence that the cost of accommodating Ms. Yuille would have been unduly burdensome for this large employer. Furthermore, there was no evidence that the employer consulted the union about accommodating the applicant and, in any event, there was nothing in the collective agreement that presented a barrier to accommodating the applicant.

Ms. Yuille was awarded general damages of $15,000, compensation for financial losses incurred, and the opportunity to accept the next available nursing position with the employer.

Discussion

This is one of the few cases to address the duty to accommodate prospective employees. As the Board of Inquiry recognized, it is difficult for claimants like Ms. Yuille, a self-represented litigant, to enforce her human rights. Claimants in her situation are usually unable to afford legal counsel. The employer had experienced counsel to represent its interests and, while the provincial human rights commission was a party to the case, it did not act as the complainant’s advocate.

Ms. Yuille did, however, have one significant advantage over many other claimants, if not the vast majority, in her situation: the employer was transparent about its reasons for refusing to give her the job. There is rarely such direct evidence of discrimination in the hiring process — or, for that matter, in any discrimination complaint. Claimants must rely upon circumstantial evidence to prove their case, a daunting proposition for unrepresented litigants without knowledge of human rights jurisprudence or the law of evidence.

This case is a positive reminder that, despite those systemic barriers, in order to be effective, human rights legislation must protect persons with a disability from discrimination in employment, whether they are already in the workplace or are seeking to join it.

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

RavenLaw was proud to support the Annual Ottawa Women’s Legal Education and Action Fund (LEAF) Persons Day Breakfast, held on October 13, 2017. This year’s breakfast focused on the experiences of Indigenous and racialized women in Canada and the importance of their place in the feminist movement.

LEAF is a charitable non-profit organization that works to advance the equality rights of women and girls in Canada. The annual fundraising breakfast commemorates the Persons Case – the October 18, 1929 decision of the Judicial Committee of the Privy Council that ruled that women were to be considered persons under the law and should be eligible to sit in the Canadian Senate. Proceeds from the Persons Day breakfast contribute to LEAF’s litigation efforts and help to sustain equality education programs such as LEAF at Work, the Only Yes Means Yes Campaign, and the Reproductive Justice Campaign.

David Yazbeck has recently been retained as a Canadian Expert Panelist for the European Commission, as part of a study examining whistleblower protection laws and empirical evidence of such protections. The Panel is conducting its whistleblower study so that the Commission can learn what is working and what is not working in terms of whistleblower protection in many jurisdictions.

The larger study aims to:

• Map the existing rules on whistleblower protection in the EU-28 and gather empirical evidence on their effectiveness;

• Assess the need for further measures at the EU level to strengthen whistleblower protection across the EU, and;

• Assess the key impacts (economic, social and on fundamental rights) of potential EU measures to strengthen whistleblower protection across the EU.

David has extensive experience in whistleblower law and has argued many of the leading cases in the Federal jurisdiction in Canada.