On September 23, 2022, Morgan Rowe presented on the Labour and Employment Panel at the Kingston & 1000 Islands Legal Conference, hosted by Frotenac Law Association.
Morgan discussed the obligation on employees to cooperate in workplace accommodation processes, including addressing when employees may refuse accommodation options proposed by their employers.
In November 2022, James Cameron will be inducted as a Fellow of the College of Labour and Employment Lawyers.
The College was founded in the United States. It is an organization that promotes achievement, advancement and excellence in the practice of labour and employment law, as well as working to establish leadership, high standards of professionalism, and civility among labour and employment lawyers. The College has fellows in the United States and Canada.
James will be joining Sean McGee, who was inducted as a Fellow of the College in November 2020.
Dayna Steinfeld has recently joined the Executive of the newly established LEAF Winnipeg as Co-Chair and Strategic Initiatives Coordinator.
LEAF Winnipeg is a branch of LEAF, a national feminist organization that works towards ensuring the law guarantees substantive equality for all women, girls, trans, and non-binary people through litigation, law reform and public education using the Canadian Charter of Rights and Freedoms. LEAF focuses on litigation and law reform and public legal education to work to achieve substantive equality, and in its work as a branch, LEAF Winnipeg will actively advance these areas of LEAF’s work.
As Strategic Initiatives Coordinator, Dayna will work to organize and advance initiatives and advocacy in areas of importance to the local branch and to support the efforts of LEAF at a national level.
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.
Did Skip the Dishes terminate your employment? We have a dedicated team of Employment Lawyers ready to help. Severance packages can be confusing, which is why we’re committed to answering all of your questions and helping you through this uncertain time. Email info@ravenlaw.com to schedule an appointment today with one of our experienced Employment Lawyers to review your termination package and ensure you get a fair deal. You can meet with us in person, by video conference or by phone.
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.