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.

In a recent decision, the Supreme Court of Nova Scotia quashed an arbitrator’s decision concerning employees’ entitlement to vacation leave in the collective agreement between the Public Service Alliance of Canada (“PSAC”) and Sydney Airport Authority. At issue before the arbitrator was whether the agreement provided that employees on ‘sick leave with pay’ continued to accrue vacation credits. The arbitrator found they did not. PSAC challenged this decision and the reviewing court concluded that the arbitrator’s award was unreasonable. The Court explained that the arbitrator failed to undertake a fulsome analysis of the intentions of the parties within the four corners of the agreement and apply the necessary interpretive principles.

PSAC was represented by Andrew Astritis and Michael Fisher.

On February 10, 2015, Andrew Raven and Andrew Astritis wrote a guest blog post for the Broadbent Institute on the Supreme Court of Canada’s recent decision confirming the right to strike in Saskatchewan Federation of Labour v Saskatchewan. The blog post, available here, provides a summary of the Court’s decision and its broader implications for the labour movement.

This week, David Yazbeck is participating in the Canada Industrial Relations Board (“CIRB”) Consultation Committee as the Canadian Association of Labour Lawyers (“CALL”) nominee. The Consultation Committee is an ongoing dialogue and consultation process between the CIRB and the labour community, established for the purpose of canvassing labour and management sides with respect to their expectations regarding industrial relations issues that concern them. The Consultation Committee includes members from CALL, the Canadian Labour Congress, Confédération des syndicats nationaux, the Canadian Association of Counsel to Employers, and Federally Regulated Employers in Transportation and Communications Organization, as well as the Chairperson and representatives from the CIRB.

On February 13, 2015, Wassim Garzouzi spoke at the Network of Persons with Disabilities, organised by Reach Canada on the topic of “Duty to accommodate: Family Status.” The bilingual event was attended by over 250 participants from across the country.

Reach Canada has offered lawyer referrals and public education for individuals living with disabilities since 1981. Our firm is a long-term, proud supporter of REACH and its mission to improve the quality of life for citizens with disabilities.

On February 23 and 24, 2015, artists across Canada overwhelmingly voted to ratify Canada’s first scale agreement for visual artists at the National Gallery of Canada. As the Canadian Artists’ Representation/Le Front des artistes canadiens (CARFAC), explains

Major gains have been advanced for artists through this agreement, which sets out mandatory minimum fees and working conditions offered to artists by the gallery. Artists remain free to negotiate above these minimums, but they can never be offered less.

The agreement between the National Gallery and CARFAC and the Regroupement des artistes visuels du Québec (RAAV) will be in place for three years.

The ability of CARFAC/RAAV to reach this historic agreement is due in large part to the Supreme Court of Canada’s decision in Canadian Artists’ Representation v National Gallery of Canada in June, 2014. CARFAC/RAAV were represented by David Yazbeck, Michael Fisher and Wassim Garzouzi from RavenLaw in this successful appeal to the Supreme Court.