The group of former military members who launched a class action regarding sexual misconduct in the Armed Forces has now filed a Statement of Claim in the Superior Court of Ontario. Amy Graham, Nadine Schultz-Nielsen, and Larry Beattie filed their full Statement of Claim on December 13, 2016, setting out their personal experiences of sexual assault and harassment, as well as the remedies that they are seeking on behalf of all class members.

The class action covers all current and former members of the Canadian Armed Forces who have experienced sexual assault, sexual harassment and abuse of power in the course of their education, training and service in the military. The Statement of Claim seeks compensation for affected members, as well as declarations and systemic orders against the government to change a system that condones a culture of sexual misconduct and punishes victims instead of perpetrators.

You can read more about the Statement of Claim here:

• CBC News: Sexual-misconduct lawsuit against Armed Forces alleges ‘reckless’ conduct

• Radio-Canada: Les Forces canadiennes visées par un recours collectif de 1 milliard de dollars

• Le Journal de Montréal: Un recours collectif d’un milliard $ contre l’armée

For more information, or if you or your family member may be affected by the class action, you can contact Raven Law at armedforcesclassaction@ravenlaw.com.

On March 22, 2017, RavenLaw sponsored Reach Canada’s Jamming for Justice event. The concert celebrated the opening of Reach’s new headquarters and was emceed by RavenLaw’s own David Yazbeck. Reach Canada is a legal referral organization for persons with disabilities and is dedicated to providing education and information on all matters pertaining to disabilities. RavenLaw was proud to support Reach’s event and to help raise funds for its important work.

It is with great sadness that we announce the passing of our dear friend and colleague, Mary Mackinnon. Mary joined the firm in 2006 and became a partner in 2008. She was a tireless advocate for workers’ rights who was highly respected in the legal community. Her work on behalf of individual employees, human rights claimants and unions is a testament to her deep personal commitment to social justice and equality. Mary was a wonderful colleague and a generous mentor to new lawyers. We will all miss her tremendously.

Donations in Mary’s memory can be made to Kidney Cancer Canada: www.kidneycancercanada.ca

RavenLaw reminds all interested students that applications for the 2017 Human Rights/Social Justice Internship are due this Friday, January 20, 2017. This is the 12^th consecutive year that this paid internship has been sponsored by the firm. This exciting opportunity will provide an excellent and meaningful summer work experience to law students who are particularly interested in issues pertaining to social justice, human rights or equality rights.

This year’s partner organizations are the Economic and Social Council of Ottawa-Carleton (CESOC – le Conseil Économique et Social d’Ottawa Carleton) and the Feminist Alliance for International Action (FAFIA). Interested students from the University of Ottawa’s Faculty of Law (common law) should contact Mélanie Clément at m.clement@uottawa.ca for more information on the internship or directions on how to submit their application.

In a recent decision, the Public Service Labour Relations and Employment Board allowed a complaint filed by the Public Service Alliance of Canada, alleging that the government had interfered with the union’s administration and its representation of members during collective bargaining. The complaint was filed after Treasury Board refused to permit a union negotiator to conduct walkthroughs of various worksites, and hold on-site meetings with members to discuss bargaining issues.

PSAC had filed a similar complaint in the last round of collective bargaining, which was also allowed by the Board. The Board had found the employer’s refusal to grant the union access to the worksite to violate the Public Service Labour Relations Act, and the Board ordered the employer to cease denying access in the absence of a compelling and justifiable business purpose.

In the more recent complaint, PSAC complained again that the employer was denying access to the worksite without any business justification; instead, the employer was simply relying on its property rights, and the limited rights of the union to enter the employer’s premises in the Collective Agreement. The union argued that the employer’s position showed a blatant disregard for the final and binding decision in the previous case.

In its decision, dated September 14, 2016, the Board again found in favour of the union. The Board held that the union had a legitimate interest in the negotiator viewing the worksite, and that the employer had not presented any compelling or justifiable reasons to deny access. The Board therefore allowed the complaint, and ordered the employer to cease denying access in the absence of compelling and justifiable business reasons that such access might undermine its legitimate workplace interests.

This is a significant victory for unions in the federal public service, and provides important affirmation of the union’s interest in gaining a better understanding of working conditions on the ground and meeting with members during collective bargaining.

The union was represented in the complaint by Amanda Montague-Reinholdt of RavenLaw.

On December 22, 2016, the Federal Court issued an interim Order in response to an application filed by 14 federal public service unions regarding the pay problems faced by their members since the implementation of the Government’s new pay system, known as Phoenix, in early 2016.

The order outlines a number of steps that the federal government must take to resolve the pay issues. These include sharing information in an open and transparent manner through the Union Management Consultation Committee, making Phoenix experts available to the Committee, maintaining a dedicated team of compensation advisors to address pay disruptions related to disability, maternity, and paternity leaves, and ensuring that individuals in these situations are not denied access to emergency replacement pay on the basis that they are on a period of leave. The interim Order provides additional protections to employees advancing individual claims for compensation and is without prejudice to the rights of the Unions should it become necessary to address the application on the merits.

The unions were represented in this application by Andrew Raven, Andrew Astritis, and Morgan Rowe of RavenLaw.

Ravenlaw is pleased to welcome Kim Patenaude and Wassim Garzouzi into the partnership, effective January 1, 2017. Both Kim and Wassim began their careers with Ravenlaw and have made significant contributions to the firm.

Kim is fluently bilingual and provides practical advice and representation to individual clients on issues such as wrongful dismissal, constructive dismissal, severance packages, employment contracts, non-compete clauses, long term disability benefit claims, WSIB/Workers’ compensation, discrimination, harassment, and accommodation. Kim has acted in matters before federal and provincial courts, boards, tribunals, and arbitrators on behalf of public and private sector unions, and employees.

Wassim maintains a robust bilingual practice dedicated exclusively to the representation of unions and their members in all areas of labour relations. Wassim specialises in arbitration proceedings and regularly appears before labour and arbitration boards across the country. He was elected by his peers to serve as Regional Vice-President for the Canadian Association of Labour Lawyers and is a Part-Time Professor at the University of Ottawa’s Faculty of Law, where he teaches the advanced Labour Law course.

We thank Kim and Wassim for their important work in advancing union and worker rights, and congratulate them on becoming partners.

In a recent decision, the Federal Court quashed a decision on behalf of the Minister of Labour, in which the Minister had refused to investigate the work refusal of a federal public service employee.

The Applicant employee had notified her employer that she was refusing to work for health and safety reasons in February 2015. On May 13, 2015, the Labour Affairs Officer assigned to the Applicant’s case completed a memorandum recommending a finding of dangerous work. Nonetheless, on July 13, 2015, the Applicant was advised that the Minister was declining to investigate her work refusal on the basis that her concerns were better addressed through a grievance.

In its January 31, 2017 decision, the Federal Court held that the Minister’s decision was unreasonable. The Court found that the decision-maker had offered no transparent or justifiable explanation for rejecting the Labour Affairs Officer’s recommendation or for concluding that the grievance process was a more appropriate way to address the Applicant’s concerns.

In reaching its conclusion, the Court also highlighted the importance of ensuring that refusals of unsafe work are dealt with in a timely manner, through the specialized process established under the Canada Labour Code, noting that it found the Applicant’s submissions on these points persuasive.

The Applicant was represented in this application by Andrew Raven and Morgan Rowe of RavenLaw.

A group of former members of the Canadian Armed Forces, represented by Raven, Cameron, Ballantyne & Yazbeck LLP have launched a class action lawsuit on behalf of women and men who experienced sexual assault or sexual harassment in their service with the Canadian military. The lawsuit was initiated on Monday, November 28, 2016, when a Notice of Action was filed in Ontario Superior Court.

The plaintiffs, Amy Graham, Nadine Schultz-Nielsen, and Larry Beattie, are members of It’s Just 700, a Canada-wide online resource and peer support group for survivors of Military Sexual Trauma (MST). The group decided to bring a class action against the Canadian Armed Forces, in an effort to change a system that condones sexual misconduct and punishes victims instead of perpetrators. The claim alleges that the Armed Forces have systemically failed to prevent and protect against sexual assault and sexual harassment, including by discouraging victims from reporting, failing to investigate reported incidents, and retaliating against members who come forward.

The group filed the lawsuit on the same day that Statistics Canada revealed the results of its survey on sexual misconduct in the Armed Forces. The survey found that 1.7% of regular force and 2.6% of reserve force members had reported experiencing sexual assault in the past 12 months. More than one quarter of female members reported experiencing sexual assault at some point in their military career. Because the survey excluded any members who were on courses or had been released, and because of the continued stigma associated with reporting, there is good reason to believe the actual rates of sexual misconduct are much higher than found in the survey.

Watch for further updates on the class action lawsuit on the Raven Law website.

If you or a family member are a current or former member of the Canadian Armed Forces who has experienced sexual assault or sexual harassment in the military, you can contact our firm at armedforcesclassaction@ravenlaw.com. 

For media inquiries, please contact Andrew Raven at 613-567-2902 or araven@ravenlaw.com.

notice-of-action-16-70743-cp-issued-november-28-2016

In a recent judgment, the Federal Court overturned a decision of the Canadian Human Rights Commission, and delivered a strong rebuke of the Commission’s continued mishandling of a human rights complaint. This judgment affirms the importance of a complainant’s right to be heard, and calls upon the Commission to improve its procedures.

Background

The complainant, Michele Bergeron, had filed two human rights complaints with the Canadian Human Rights Commission. First, she had complained that her employer failed to accommodate her on the basis of her disability. Later, she complained that the employer retaliated against her for filing the first complaint. Both complaints were initially dismissed by the Commission. However, the Federal Court overturned the dismissal of the retaliation complaint, because of a glaring error in the Commission’s procedure. The Commission typically prepares an investigation report regarding a human rights complaint, which is submitted, along with the parties’ comments, to the Commissioner for a decision. In this case, the Commission had prepared two separate reports, one for each complaint. However, the Commission’s decision dismissing the retaliation complaint quoted from the report for the first complaint.

The Federal Court found that the decision, relying on reasons related to a completely separate complaint, could not stand. The retaliation complaint was therefore returned to the Commission, where it was dismissed a second time. Ms. Bergeron filed a second application for judicial review to the Federal Court, alleging that, once again, the Commission had committed significant procedural errors in her case. 

Federal Court judgment

In Bergeron v Canada (Attorney General), the Federal Court once again struck down the Commission’s decision, on the basis that the Commission had committed multiple serious breaches of procedural fairness. First, the Court found that the Commission rendered its decision based on an inaccurate record: the Commission had included in the record the Applicant’s submissions from the first complaint, rather than her submissions regarding the retaliation complaint. The Court found this to be a clear breach of fairness: “one may with considerable confidence say that little if anything is more fundamental in administrative law than the requirement that a decision-maker hear both sides of a dispute. Yet here the Commission breached this fundamental rule of natural justice.”

Second, the Court found that the Commission had also failed to review a final set of submissions filed by the Applicant, because those submissions had expressly identified the error in the record. The Court noted that, if the Commission had reviewed the Applicant’s final submissions, “it is inconceivable that, in such circumstances, the Commission would continue to consider – let alone decide – this case without first obtaining the Applicant’s missing submissions on the case.” On the basis of these fundamental errors, the complaint was sent back to the Commission for reconsideration.

Canadian Human Rights Commission criticized

In his judgment, the Honourable Justice Brown had some strong words for the Commission regarding its overall handling of Ms. Bergeron’s complaint. He noted the uncontested evidence that a member of the Commission’s staff had told Ms. Bergeron, when the complaint was referred back to the Commission, that the Commission would simply be correcting a “cut and paste” error. He found that “these comments do not describe conduct I would expect from staff of the Commission”, and stated: “Commission staff should avoid appearing dismissive as was the case here.”

Justice Brown also emphasized that the Commission’s decision regarding this complaint has now been struck down twice for procedural unfairness, noting: “It appears to me, with all due respect, that there is room for improvement in the Commission’s Early Resolution procedures”. Regarding the third consideration of the complaint, he admonished the Commission: “It should be done properly this time.” This judgment provides an important reminder that the Commission’s gate-keeping role impacts complainants’ fundamental rights, and therefore the Commission must perform that role with diligence and care.

The Applicant was represented in this application by Amanda Montague-Reinholdt of RavenLaw.