Category Archives: Resources

RavenLaw mourns the passing of Mary Mackinnon

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

Mary MacKinnon

Congratulations to Nick Continelli, recipient of the 2015-2016 Raven, Cameron, Ballantyne & Yazbeck Prize in Human Rights Law

RavenLaw is pleased to congratulate University of Ottawa student Nick Continelli on being awarded the 2015-2016 Raven, Cameron, Ballantyne & Yazbeck Prize in Human Rights Law. The prize is awarded to the student who achieves the highest standing in the Human Rights Law in Canada course in the Common Law section. We congratulate Nick for this significant achievement!

 

Recognizing invisible disabilities during Mental Illness Awareness Week

By: James Cameron and Morgan Rowe

“You look fine!” “It’s all in your head.” For individuals with invisible disabilities, comments like these are a fundamental reality. As Pain Awareness Month draws to a close and we look ahead to the beginning of Mental Illness Awareness Week on October 2, it is important to take time to recognize the specific societal and attitudinal barriers that individuals with invisible disabilities experience in everyday life.

The term “invisible disabilities” refers to symptoms and functional limitations which are not always obvious to an observer. Many of our clients, for instance, have post-concussion syndrome, fibromyalgia, depression, chronic pain, bi-polar disorder, etc., none of which may be apparent from the outside.

Ravenlaw Invisible Disabilities

While Canadian society is improving at recognizing and accommodating “visible” disabilities, people with invisible disabilities still often experience added difficulties due to the invisible nature of their symptoms. This can lead to problems in the workplace and with LTD insurers.

As the Ontario Human Rights Commission has recognized, for example, individuals with certain kinds of invisible disabilities, particularly mental health and addiction issues, continue to experience significant levels of stigmatization and social exclusion, despite the fact that almost one in five Canadian adults will experience these conditions at some point in their lives. In addition, people with psychosocial disabilities are more likely to have low incomes than people without psychosocial disabilities.

As we take time next week to recognize the struggles for inclusion which still face individuals with mental health issues and work to build more general awareness regarding the experiences of individuals living with invisible disabilities, I want to highlight the recent Ottawa Citizen article regarding a local artist, May Mutter, with post-concussion syndrome herself, who is making the invisible spectacularly visible through body art. Her project, called A Caged Mind, uses body painting to provide visual interpretations of what a concussion is. Her moving video and fantastic art can both be viewed here.

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

Wilson v Atomic Energy of Canada Ltd: The victory for workers that almost wasn’t

Last month, the Supreme Court of Canada delivered the latest in a recent line of landmark victories for workers’ rights. In Wilson v Atomic Energy of Canada Ltd, the Court restored the decision of a Canada Labour Code adjudicator that non-unionized employees under federal jurisdiction cannot be dismissed from their employment without just cause. After the opposite conclusion was reached by both lower courts, and by a minority of the Supreme Court, it is worth reflecting on how close federally regulated employees came to losing such a significant right.

Background

Joseph Wilson was terminated from his employment with Atomic Energy of Canada Ltd. in 2009. The employer did not purport to have just cause for the termination, but rather stated that the reason for dismissal was “on a non-cause basis” with “a generous dismissal package”. Mr. Wilson filed an unjust dismissal complaint pursuant to the Canada Labour Code. The adjudicator found that employers under this regime cannot make a termination “just” by offering severance packages; rather, an employee can only be terminated if there is just cause.

The employer applied for judicial review of this decision to the Federal Court. The Court allowed the application, finding that nothing in the Code prevented employers from dismissing non-unionized employees on a without-cause basis and offering a severance package. The Federal Court of Appeal agreed.

Supreme Court’s judgment

In a 6-3 split decision, the Supreme Court allowed the appeal and restored the adjudicator’s decision. There were four separate sets of reasons in the judgment, with the majority of the Court concurring with the reasons of Justice Abella on the merits of the appeal.

Justice Abella held that the standard of review for this decision was reasonableness, and that deference was owed to the expertise of labour adjudicators under the Code. She held that the adjudicator’s decision in this case was reasonable, and was consistent with the purpose of the scheme under the Code, which was intended to provide non-unionized employees with similar protections available to unionized employees, as confirmed by statements from the Minister of Labour when the legislation as introduced. She further found that the adjudicator’s approach was consistent with the overwhelming majority of past adjudications since this regime was enacted.

The dissenting judges of the Court held that the standard of review was correctness. They found that the unjust dismissal regime under the Code was simply a procedural option for federal employees, and did not alter the common law approach to dismissal of non-unionized employees. They concluded that a dismissal without cause is not unjust per se, if adequate notice is provided.

Discussion

Wilson is a remarkable decision for a number of reasons: it affirmed the deference owed to administrative decision-makers interpreting their home statutes; it sparked a lively debate among the Supreme Court bench as to whether or not the standard of review analysis from Dunsmuir needs to be re-examined; and it restored likely the most significant employment right for non-unionized employees in any jurisdiction in Canada. Perhaps the most remarkable aspect of the Wilson judgment is how close we came to the opposite result.

Labour adjudicators have been ruling on unjust dismissal complaints under the Code for nearly forty years. As we learned from the Supreme Court’s judgment, there have been more than 1740 adjudications and decisions under this regime. Of those, only 18 decisions departed from the approach adopted by the adjudicator in Mr. Wilson’s case, and held that employees could be dismissed without just cause.

One would think that this number was so low, it could be easily dismissed as an outlier position. And yet, on the strength of essentially 1% of the decisions rendered on this issue, the entire unjust dismissal regime was nearly upended. The Federal Court held that the conclusion that employees could only be terminated for just cause was unreasonable. The Federal Court of Appeal held that, because there was such a deep jurisprudential conflict on this issue, the Court must intervene and pronounce upon the correct interpretation. Its chosen interpretation sided with the 18 decisions out of 1740.

Justice Abella flatly rejected the notion that this amounted to a conflict in the case law: “What we have here is a drop in the bucket which is being elevated to a jurisprudential parting of the waters.” Moreover, she unequivocally endorsed the approach of the adjudicator in Mr. Wilson’s case, finding not only that it was reasonable, but that the opposite approach was unreasonable and contrary to the purpose of the Code’s protections.

However, even at the Supreme Court level, three of the nine judges held that the correct approach under this scheme permitted non-unionized employees to be dismissed without cause. In other words, if two members of the Supreme Court had gone the other way, the right of tens of thousands of employees across Canada not to be dismissed without just cause would have been permanently lost.

Other than simply breathing a sigh of relief that the right result was reached, what should workers’ advocates take away from this case? Here are three thoughts:

  • First, when lobbying for employment rights in legislation, emphasize clarity. If the Code expressly stated that employees can only be dismissed for just cause, this litigation would have been unnecessary.
  • Second, even rights that appear solid and longstanding can never be taken for granted. Forty years of case law can be overturned by one well-placed application for judicial review.
  • Third, and related to the second, rights need to be actively protected, which requires good advocacy and resources. All federally regulated employees and their advocates should think about the consequences if Mr. Wilson, and those representing and supporting him, had not taken this case all the way.

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

RavenLaw Supports Annual LEAF Persons Day Breakfast

RavenLaw was proud to support the Annual Ottawa Women’s Legal Education and Action Fund (“LEAF”) Persons Day Breakfast. This year’s breakfast focused on the Inquiry into Missing and Murdered Indigenous Women in Canada.

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 our equality education programs such as LEAF at Work, the Only Yes Means Yes Campaign, and the Reproductive Justice Campaign.

 

Federal Court Overturns Classification Decision for a Second Time

In a recent court decision, the Federal Court overturned the decision of the Canada Border Service Agency to reject the classification grievances of over 45 management employees. The Court found that CBSA’s decision was unreasonable because it failed to consider portions of the employees’ job description which strongly supported their request for an upward reclassification. Furthermore, the Court found that CBSA had not explained its reasons for reaching a decision that appeared contrary to the evidence.

This is the second time these employees have been successful in overturning CBSA’s decision to reject their grievances. The previous decision of the Federal Court was rendered on July 24, 2014.

The employees were represented in both cases by Andrew Raven and Morgan Rowe of Raven, Cameron, Ballantyne & Yazbeck LLP.

Wassim Garzouzi Elected as Vice-President for the Canadian Association of Labour Lawyers

Wassim Garzouzi was elected as Vice-President (Ontario) for the Canadian Association of Labour Lawyers at CALL’s annual conference in St. John’s, Newfoundland from June 2 to 5, 2016. Wassim is thankful for the support he received and looks forward to representing CALL’s Ontario members.

CALL’s mission is to connect union-side labour lawyers across Canada and to advocate for the legal interests of Canadian workers and labour organizations before provincial and federal governments, labour boards, and all levels of court.