On October 24, Amarkai Laryea will be presenting at the Lancaster House Ottawa Labour Law Conference. He will be speaking on the panel “Bar None: Removing Systemic Barriers in Recruitment, Promotion and Retention.”
For more information or to register, visit the conference website.
In October 2022, Alison McEwen and Raphaëlle Laframboise-Carignan were in Rankin Inlet, Nunavut. They presented workshops in association with the Law Society of Nunavut and spoke on the topic of preventing workplace harassment.
On November 15, 2022, Dayna Steinfeld will be presenting on a panel at The 28th Annual Manitoba Labour Law Review on the topics of employee duties in the unionized workplace, racial discrimination and sexual harassment in the workplace, and privacy protections and limits for unionized workers. Dayna will be presenting on the panel from the perspective of union-side counsel.
The conference is organized and offered by the Centre for Labour-Management Development (Canada) Inc, an organization that works to keep unions and employers informed and up to date on the law and its impact on unionized workplaces in Canada. More information about the conference is available here.
On October 31, 2022, the Ontario Court of Appeal issued a decision, overturning a mitigation decision in a wrongful dismissal case.
The Superior Court judge had found that the Appellant was wrongfully dismissed from her employment and entitled to eight months’ reasonable notice of termination. However, the judge also concluded that the Appellant had failed to act reasonably in her duty to mitigate her losses and therefore reduced her notice period to six months.
On appeal, the Court of Appeal found that the judge’s decision was based on two errors. First, the judge incorrectly held that the Appellant had taken insufficient mitigation steps because she had not applied for lower-paying positions than the one she was terminated from. The Court of Appeal confirmed that the duty to mitigate only requires an employee to look for employment “that is comparable in status, hours and remuneration to the position held at the time of dismissal.” The Court also found that the judge had placed too much weight on the titles of the positions that the Appellant had applied for, without looking at whether the duties were, in fact, comparable to the Appellant’s former position.
Second, the Court of Appeal found that there was no evidence to support the judge’s assumption that the Appellant would have increased her chances of finding new employment if she had made more efforts. The judge could not rely on such an assumption without some evidence to support it. In addition, the Court highlighted that simply assuming that more efforts would increase an employee’s chances of finding new employment did not complete the mitigation test. The legal test required assessing whether the employer had proven that “if reasonable steps in mitigation had been taken by the appellant, [the appellant] would have found a comparable position during the reasonable notice period.” The judge had therefore not performed the right analysis.
As a result, the Court of Appeal overturned the Superior Court’s decision and directed that the Appellant be paid the full eight month notice period, without a reduction due to mitigation.
The Appellant was represented by Morgan Rowe of RavenLaw and Dorian Persaud of Persaud Employment Law.
On May 18, 2022, the Manitoba Court of Queen’s Bench ruled that the Manitoba government discriminated against First Nations children in Manitoba foster care by denying them the federal Children Special Allowance (“CSA”) to which they are entitled and which is meant to be used exclusively for the care, maintenance, advancement and education of children in care.
In Manitoba, approximately 82% of children in the child welfare system are First Nations. From January 1, 2005 through March 31, 2019, Manitoba required Child and Family Service Agencies to remit all CSA benefits received for children in their care. When Agencies refused, the CSA amounts were clawed back from their Operational and Child Maintenance budgets. In total, Manitoba recovered over $334 million during this period that would otherwise have directly benefited children in care.
In 2020, Manitoba passed legislation (section 231 of The Budget Implementation and Tax Statues Amendments Act, or “BITSA”), which attempted to retroactively authorize its taking of CSA funds. This legislation also sought to absolve Manitoba of all liability for doing so, including by preventing any lawsuits – including already filed and ongoing lawsuits – against Manitoba over its taking of CSA funds.
In 2021, the Assembly of Manitoba chiefs initiated an application against the Manitoba government over its attempt to legislatively prevent children in care from seeking recourse for the denial of the CSA funds.
The Court’s decision found that the Manitoba government discriminated against children in care by taking the CSA funds from them, and that its attempt to absolve itself of liability for the holding back of over $334 million from children and youth in care was unlawful and constitutionally invalid. The Court found that Section 231 of BITSA “overwhelmingly impacts the Indigenous children and disabled children in care. The CSA policy prevented the claimant group from receiving equal benefit of the law resulting in economic and social consequences to Indigenous children in care The Court stated that “over 150 years of colonial policies which removed children from their families and nations is one example of the historical discrimination against [First Nations] children.” It acknowledged the significant disadvantages experienced by Indigenous children in care, which were perpetuated and exacerbated by Manitoba’s treatment of CSA funds.
The Court found that Manitoba discriminated against First Nations children on the basis of race, ethnic origin, disability, and family status contrary to section 15 of the Charter. In particular, the Court’s finding of discrimination on the basis of family status is notable and precedent-setting as the family status of a child in care had not previously been recognized by courts as a basis for grounding a claim of discrimination. This recognizes, as AMC argued before the Court, that the targeted discrimination of First Nations children in care by Manitoba could not be fully understood and remedied without recognizing family status as a ground of discrimination.
The Court concluded that it [was] a violation of s. 15(1) [of the Charter] by Manitoba to preclude children in care from receiving the CSA Benefits and then enacting s. 231 of BITSA to make the CSA Policy law in Manitoba.” The Court declared section 231 of BITSA to be invalid and of no force or effect. The Assembly of Manitoba Chiefs was represented by Byron Williams and Chris Klassen of the Public Interest Law Centre of Legal Aid Manitoba, with the support of many other lawyers and students at PILC, and Dayna Steinfeld of RavenLaw, with assistance from Anna Rotman.
Dayna Steinfeld is the 2022 recipient of The David Stockwood Memorial Prize. The prize is awarded to an advocacy-related written article, judged for its merit by a panel.
Dayna’s winning submission, “”Finding a Balance – Navigating the Advocacy Challenge for Union Side Labour Lawyers in Cases Involving Allegations of Member on Member Sexual Violence” examines the challenge for union-side lawyers of cross-examining a union member called as an employer witness in a case involving an allegation of sexual assault in the workplace. The article suggests that the union-side advocate can be guided by the legal principles of the law of consent to fulfil their role as an advocate for their client while balancing broader ethical obligations and being sensitive to the union’s equity-seeking goals and duties owed to all of its members.
Dayna’s article will be published in the Fall 2022 issue of The Advocates’ Journal.
In a recent decision, the Federal Court overturned a decision by a delegate of the Minister of Labour, which had refused to investigate the health and safety complaint of a Canada Border Service Agency employee.
The employee had filed a complaint with the Minister under the Canada Labour Code when CBSA had refused to appoint an impartial investigator to investigate his harassment concerns. CBSA had taken the position that it did not have to investigate the concerns because the employee was off-duty at the time of the alleged harassment, even though the incident took place within the workplace and the alleged harasser was the employee’s supervisor. When considering the employee’s Code complaint, the Minister of Labour’s Delegate refused to investigate the complaint, finding instead that the employee should file a human rights complaint because he was off-duty at the time of the incident.
In its decision, the Court found that the Minister’s Delegate did not have the option to refuse to investigate the employee’s complaint. Instead, the Court found that investigation was a mandatory obligation on the Delegate for this type of complaint, and the Delegate therefore committed an error by refusing to investigate.
In addition, the Court strongly questioned whether it was appropriate to deny the employee harassment protections under the Code because he was off-duty at the time of the incident. As the Court stated:
“While the Applicant was in fact off-duty when the incident occurred… it remains that the Applicant was still in his place of work and the agent of the alleged harassment and violence was the Applicant’s supervisor. Therefore, it becomes difficult to disregard the employee-employer connection in this incident, and the fact that the effects of the incident are evidently different for the Applicant than for a regular traveller who is not employed by the CBSA. Since the place, the tone, and the circumstances of the incident are indicative of the existence of a nexus between the incident of violence and the work place, the issue becomes whether or not the incident itself constitutes harassment and violence. The Respondent’s submissions seem to suggest that if an employee acts within the requirements of their job, as provided for by their work policy or statute, their actions against an off-duty employee while in the place of work cannot constitute harassment or work place violence. I agree with the Applicant that this could set a concerning precedent…”
Based on its analysis, the Court set aside the Minister’s Delegate’s decision and referred the matter back for a new decision.
The Applicant was represented by Morgan Rowe of RavenLaw.
During the week of June 20, 2022, RavenLaw presented as part of multiple panels during the Canadian Association of Labour Lawyers’ annual conference.
On June 24, 2022, Sean McGee presented as part of a panel exploring the opportunities and challenges of remote work post-COVID. In the afternoon, Wassim Garzouzi moderated a panel with two guest speakers from the United States, which discussed unionizing workplaces like Amazon and the need to reform labour laws.
On June 25, 2022, Amarkai Laryea presented on a panel addressing the impacts that current grievance arbitration models have on racialized workers and ways to practice labour law in an actively anti-racist manner.