On August 18, 2016, David Yazbeck moderated an audio conference for Lancaster House dealing with issues related to autism in the workplace, including how to counter stereotypes regarding autism spectrum disorders and how to accommodate individuals with autism spectrum disorders in their employment.
More information about the audio conference is available here.
On November 5, 2016, RavenLaw proudly supported the Workers’ Bowl, sending a team to the annual fundraiser for the Workers’ Action Centre, a Toronto-based organization that advocates for fair working conditions for vulnerable workers. The Workers’ Action Centre has a Workers’ Rights Info Line that workers can call for support, offers workshops on workers’ rights and is part of the campaign to raise the minimum wage to $15.
The bowling tournament is hosted by the Ontario Employment Education & Research Centre (OEERC), a non-profit that works with community partners such as the Workers’ Action Centre to educate workers on their rights and provide supports to workers whose rights have been violated.
The “Ravenclaw” team — Wassim Garzouzi, Michael Fisher, Morgan Rowe and Saranjit Cheema — joined bowlers from unions and union-side labour firms, among other supporters, to help raise funds for these important initiatives.
On September 28, 2016, James Cameron will present at an Optimum Talent Lunch and Learn session titled “Has Terminating an Employee Without Cause Become More Difficult?”. The program will address the recent Supreme Court decision in Wilson v Atomic Energy as well as the proposed amendments to Ontario’s Employment Standard Act regarding the need for “cause” and the possibility of reinstatement for wrongfully terminated employees.
More information about the program can be found here.
In a decision delivered from the bench on November 8, 2016, the Federal Court of Appeal affirmed a decision of the Canadian Human Rights Tribunal that Transport Canada discriminated against Chris Hughes in a job competition because he was a person with a mental health disability. After attending an oral interview, the hiring panel asked for oral references. Mr. Hughes told the chair of the hiring panel that it was difficult for him to get references from past employers in the federal public service, notwithstanding positive performance appraisals from those employers, because he was a whistleblower who had been involved in litigation with the employers for discrimination on the basis of his disability. Mr. Hughes asked the hiring panel to consider his performance appraisals in lieu of references, and while the panel initially accepted this material from him, it was not satisfied that is was an acceptable substitute for oral references. The Tribunal found, however, that the positive performance appraisals in fact confirmed Mr. Hughes was qualified for the position, and the hiring panel’s knowledge of his disability was a factor in its decision to reject his candidacy.
Transport Canada applied for judicial review of the Tribunal’s decision and, last year, the Federal Court disagreed with the Tribunal’s finding and set the decision aside. In reversing that decision, the Federal Court of Appeal found that the Federal Court re-weighed the evidence before the Tribunal and effectively re-decided the case, even though there was more than ample evidence to support the Tribunal’s key findings. This included evidence that the chair of the hiring panel knew of Mr. Hughes’ disability before deciding he was unqualified for the job, that a document favourable to Mr. Hughes had been altered by the employer, and that the chair of the hiring panel disregarded the accepted human resources practice of considering written material in lieu of reference in favour of verbal references. On that basis, the Federal Court of Appeal concluded the Tribunal’s decision was reasonable.
Mr. Hughes was represented by David Yazbeck and Michael Fisher of RavenLaw.
David Yazbeck recently spoke with the Canadian Bar Association’s National magazine regarding reform of the Canadian Human Rights Tribunal.
In his interview, David recommended an end to the federal system’s current two-step screening process for dealing with human rights complaints and the creation of a direct access model, like the one used in Ontario. He also commented on the importance of appointing members to the Tribunal who have expertise in and sensitivity to human rights matters.
On November 30, 2016, Morgan Rowe will present at the 2nd Annual Council of Canadians with Disabilities Conference. This year’s topic is “Strategies for Competent and Ethical Disability Law Advocacy.” Morgan will be presenting on issues related to inclusive legal services and accommodating clients with disabilities.
CCD is a national human rights organization of people with disabilities working for an inclusive and accessible Canada.
More information regarding the conference can be found here.
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!
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.
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.]
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.
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.
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.
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:
[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]
On October 12, 2016, Morgan Rowe spoke to University of Ottawa students as part of the “Introduction to the Study of Law” class. She presented on issues related to the life of an employment contract, from formation to termination, as well as workers’ rights during employment.