This month, Andrew Astritis and Wassim Garzouzi participated in an upper-year labour arbitration course at the University of Ottawa Law School. Andrew and Wassim enjoyed serving as panelists for the year-end labour arbitration moot and providing students with comments and feedback on their presentations.

On February 23, 2015, Morgan Rowe spoke to the University of Ottawa Law School’s disability law class about issues related to accommodation and inclusion facing young Canadians with disabilities. Morgan’s presentation focused on disability accommodation issues in employment, education and transportation. The presentation also involved discussion of the findings of the study outlined in Morgan’s book, Exploring Disability Identity and Disability Rights Through Narratives, which was co-authored with University of Ottawa Professor Ravi Malhotra.

On March 12, 2015, Morgan Rowe spoke on a panel addressing key and emerging legal issues facing the trans* community. The panel was organized and hosted by OUTLaw, the LGBTQ Law Students’ Association at the University of Ottawa. Morgan spoke on trans* legal issues in the workplace, including discrimination in hiring and termination, workplace harassment, and the problems that arise from a medicalized approach to the duty to accommodate.

David Yazbeck is quoted in “Charter vetting challenge heading to Federal Court”, an article in the January 2015 edition of The Lawyers Weekly magazine. The article discusses the upcoming Federal Court case of Schmidt v A.G. Canada. The Applicant, Edgar Schmidt, a former Department of Justice lawyer, sued the government in 2012. The lawsuit alleges that the Minister of Justice was failing to live up to his responsibilities under s. 4.1 of the Department of Justice Act and s. 3 of the Canadian Bill of Rights to vet all regulations and government bills tabled or presented by a cabinet minister in the House of Commons, and report any inconsistencies with the Canadian Charter of Rights and Freedoms or Canadian Bill of Rights.

David Yazbeck is representing Mr. Schmidt in the Federal Court case.

On March 11, 2015, Andrew Astritis presented a lecture to a class of third year students in Carleton University’s Legal Studies program on Human Rights and Employment Law. The lecture provided a broad introduction to the protections provided by human rights legislation in the employment context, including the obligations on employers to accommodate employees to the point of undue hardship.

On February 19th, 2015, RavenLaw Articling student, Taylor Akin, joined the Ottawa Rape Crisis Centre’s Board of Directors. The ORCC provides support and counseling to women who are survivors of sexual violence. Taylor has been interested in violence against women initiatives since her undergraduate degree and had the opportunity to take classes on gender-based violence in law school. After a year of volunteering with the ORCC, Taylor is very pleased to be the newest member of the Board.

Oftentimes, employees will chafe when they are asked to sign confidentiality agreements limiting their ability to talk about a settlement reached regarding the termination of their employment. Many employees feel (perhaps rightly) that doing so allows the employer to avoid a public shaming for its behavior.  In the end, most employers insist upon confidentiality as one of the terms of the settlement, and they regularly include recourse for themselves if there is a breach of those terms. Recently an arbitrator and the Divisional Court in Ontario confirmed the importance of complying with the obligations in a settlement agreement.

In her book, Out of the Blue, Jan Wong chronicles her experience with workplace depression. Topics canvassed in the book include her struggle to obtain disability benefits, the termination of her employment and, ultimately, her recovery.  After a protracted dispute, Ms. Wong’s union succeeded in securing six months of sick-leave pay and a sizeable lump sum payment, equivalent to two years’ wages.  In exchange, Ms. Wong signed an agreement imposing certain obligations on her, including the obligation “not to disclose the terms of this settlement.”

The employer argued that, with the publication of Out of the Blue, Ms. Wong breached the confidentiality agreement. In her book, Ms. Wong disclosed that her employer paid her “a pile of money to go away”. She also wrote about receiving a “big fat cheque” and having a “vastly swollen bank account.” The employer brought the matter back in front of an Arbitrator, who concluded that Ms. Wong breached the conditions of settlement. She was therefore ordered to repay the settlement monies to her employer.

Ms. Wong applied for judicial review of the Arbitrator’s decision, but her application was recently dismissed by the Ontario Divisional Court in Wong v The Globe and Mail, 2014 ONSC 6372 . The Court stated, “The deal under the [settlement agreement] was clear. The Globe and Mail was to pay a large lump sum and the applicant was to stay quiet about the payment.” Justice Nordheimer concluded: “I cannot find any fault in the Arbitrator’s conclusion…in fact, it is hard to see how the Arbitrator could have concluded otherwise.”

The decisions of the Arbitrator and the Divisional Court offer an important lesson to any employee entering a settlement regarding the termination of their employment or a similar legal issue: when signing a settlement agreement, ensure you fully understand your continuing obligations, including an obligation to keep the terms of the settlement confidential. If you are considering a settlement or a severance offer, you should review its terms carefully with an employment lawyer to ensure you know your obligations, and the consequences of breaching those obligations.

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

For a number of years, Raven, Cameron, Ballantyne & Yazbeck has been an institutional member of the Board of Directors of the Workers’ History Museum. The museum held its annual general meeting on February 23, 2015 and the firm, through one of our partners, David Yazbeck, was confirmed as a Board Member again.

In addition to supporting the museum as a Board Member, David has been granted the title of Patron by the museum in recognition of the work he has done, and continues to do, for the museum.

The Workers’ History Museum was founded in 2011 with the goal of developing and preserving workers’ history, heritage and culture in the National Capital Region and Ottawa Valley.

It has long been established in labour arbitration jurisprudence that, when presented with a grievance concerning discipline, the employer bears the onus of demonstrating just cause for that discipline. In order to determine whether there is just cause for termination or another disciplinary sanction, Arbitration Boards will consider several factors which include, not only the factual circumstances, but also any aggravating and mitigating factors.

Recently, an Arbitration Board in Nova Scotia failed to properly apply the onus when considering whether an employer had just cause to terminate a unionized employee. In arriving at its conclusion to dismiss the grievance, the Arbitration Board found as follows:

Having found that the Employer had grounds to discipline the Grievor there remains the question of whether the termination of the Grievor was the appropriate response.

The onus is on the Grievor to show mitigating factors that should be taken into account if the penalty of discharge is to be substituted with another penalty.

The employee’s union, the Public Service Alliance of Canada, was concerned about the latter paragraph which indicated that the Arbitration Board improperly shifted the onus to the employee to prove that termination was not the appropriate penalty. The union applied for judicial review of the Arbitration Board’s decision to the Supreme Court of Nova Scotia. In its decision, Public Service Alliance of Canada v Commissionaires Nova Scotia, 2014 NSSC 286, the Court agreed with the union, holding:

The Board did not engage in the necessary analysis of the grounds for discipline, whether the misconduct was sufficiently serious to warrant a penalty as severe as discharge. The Board did not articulate both mitigating and aggravating factors and weigh these against the seriousness of discharge to determine if the respondent had met its burden.

The Board seems to have assumed the seriousness of the conduct warranted the penalty of discharge and then looked to the appellant to show why anything but discharge should be considered.

This is not the appellant’s burden. The Board has failed to discuss the substitution of the lower penalty by reviewing any mitigating factors, except long service. The Board did not weigh other factors in evidence, such as a previously clear discipline record or evidence of good character. Had the Board performed this analysis they may well have still concluded that no lesser penalty was appropriate, particularly in light of the grievor’s outright denial and lack of remorse.

The burden of proof on the employer in discipline and discharge cases is important: the relevant information regarding why the employee was terminated usually resides almost exclusively in the hands of the employer. Moreover, in the unionized context, where employees may only be terminated with just cause, employers must be held to their onus of proving that just cause existed when the union challenges the basis for the termination.

While one might assume that the onus in discipline cases is well established, and Arbitration Boards will properly apply the burden of proof, the judgment of the Supreme Court of Nova Scotia in this case affirms that the courts are willing to intervene on judicial review to ensure that arbitrators do, in fact, approach disciplinary grievances in the appropriate fashion.

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

On January 30, 2015, Adjudicator François Bastien, appointed pursuant to the Canada Labour Code, issued an important decision impacting all employees with supervisory duties working in federally regulated sectors.

Generally, employees who are unjustly dismissed can bring a complaint and have their grievance heard by an adjudicator appointed under the Canada Labour Code. Managers cannot avail themselves of this process.

In Timiskaming First Nation, the Employer brought a preliminary objection alleging that the employee, who worked as the Director General of the First Nation Government, was a manager. The Employer asked the Board to dismiss the complaint.

In dismissing the employer’s objection, the Board confirmed that “it is important to keep in mind that underlying it, is the notion underscored by the Federal Court […], that while undefined in the Code, ‘manager’ is a term that ought to be narrowly construed under that Code.” The Board further endorsed the fact that a broader interpretation of the term “manager” could exclude many employees from the benefits of the unjust dismissal provisions of the Code.

This decision underscores the importance of reviewing the particular context of every workplace before making a determination as to whether an employee can properly be characterized as a “manager” under the Code. The Board fully recognized that the employee in question performed many functions at a high level – but nonetheless dismissed the Employer’s objection on the basis that her role fell short of the test of independent action over a significant range of matters.

Through this decision, the Board provides all employees with supervisory duties working in federally regulated sectors much needed clarity with respect to their rights under the Code.

The employee in this case was represented by Wassim Garzouzi of Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l.