I agree it is an interesting read both for the discussion of the difference between "civil" and "criminal" contempt and the "sanctions" that can be imposed and what sanctions ought to be imposed. The Court noted that:
"This Court must impose a sanction that recognizes the gravity of the contempt, deters this party from continuing contempt and deters others from similar conduct. The BCTF has approximately 38,000 members. It has net assets of more than $30 million. Its collective bargaining defence fund was $14,644,000 as of June 30, 2005. The teachers were offered two opportunities to comply, October 9th, 2005 and October 13th, 2005, yet continued to defy the order and have stated, as recently as October 17th, that they will not obey the order, despite my order of October 13th, enjoining the BCTF and related entities from using their assets to facilitate the breach of the court order including payment of “strike pay."
While contempt proceedings are quite rare as you would hope and expect, the law is pretty well developed. According to the Globe and Mail article, this is "the largest civil contempt-of-court award in Canadian history".
The Ministry of Labour reported yesterday that a Company and Director have been fined ($12,500 and $6000, respectively) as a result of an Ontario Employment Standards Act, 2000 hours of work violation. The Company pleaded guilty to "requiring or permitting" six employees to work hours exceeding the statutory limit imposed by section 17 of the ESA. The Director pleaded guilty to "to authorizing, permitting or acquiescing in the six employees working hours in excess of the limits prescribed by Section 17 of the ESA" contrary to section 137(1) of the ESA.
The Ontario Divisional Court released its decision in Lapointe-Fisher Nursing Home v. United Food and Commercial Worker' International Union, Local 175/633 (I will post a link once available) in which it upheld the arbitration award of Arbitrator Barrett in which she determined that, on the language of the collective agreement before her, the employer was required to pay the Ontario Health Premium. I pointed to this case at Who Pays the Ontario Health Premium?
The Court held that the standard of review of the arbitrator's award in Ontario was "patent unreasonableness" (despite the Supreme Court of Canada case of Voice Construction (an Alberta case)that seemed to "relax" the standard). Patent unreasonableness gives a high degree of judicial deference to arbitrators.
Having regard to that, the Court determined that Arbitrator Barrett's award was "not patently unreasonable". The Court appears to like the approach of Kenneth Swan in Power Workers Union v. Ontario Power Generation Inc. to the effect that you consider "what reasonable parties in the position of the employer and the union must have intended when they negotiated the language into the collective agreement". The Court concluded in the Lapointe-Fisher case that, in the circumstances, and having regard to the negotiating history, the parties "agreed that should future legislation require payment by the individual employees, the employer would again be required to pay for this employee benefit."
Despite the fact that a Court has taken a look at the issue, the decision does not conclusively resolve the matter. I would anticipate (though I don't know) that the employer will try to appeal the decision. In any event, a great deal depends on the language of the collective agreement and the bulk of the awards to date hold that the employer is not required to pay the OHP. So this battle is far from over and "who pays" is still a live issue in each case.
The Ontario Court of Appeal released its reasons in the extremely important human rights case of Losenno v. Ontario Human Rights Commission. This was an appeal of the Divisional Court decision dismissing Losenno's application for judicial review of the Commission's decision not to refer his human rights complaint to a Board of Inquiry under section 36 of the Ontario Human Rights Code because of his refusal to accept his employer's offer which, the Commission found was reasonable.
The Court of Appeal reviews the legislative context and the circumstances and determines, in the end, that "the Commission may take into account an offer to settle from the respondent." The Court then noted that:
"[The Commission] evaluated the employer’s offer and found that it was equivalent to what the appellant could reasonably expect to receive should the case proceed to a board of inquiry.It also found that the offer was reasonable with regard to general, specific and public interest remedies.In his factum and in his submissions to the Commission, appellant’s counsel has closely analyzed the employer’s offer to show that the appellant might well receive a much better result before a board of inquiry.Counsel for the Commission has performed a similar exercise in its factum.I have reviewed those submissions together with the extensive case law referred to by the appellant.I agree with counsel for the Commission that it was open to the Commission to find that many of the claims made by the appellant would not receive compensation.For example, the appellant’s claim for losses arising from the sale of his home after he left [the employer] is arguably too remote to receive compensation."
This is a helpful case for employers who present "reasonable offers". The case also highlights some "watch outs", particularly under the discussion of "privilege".
Schenk & Associates has a good pointer to a must read case called Anderson v. Alberta (2004) ABQB 766 that discusses the principle that "... once the employer puts forward a job that reasonably accommodates the employees disability the employee has a legal obligation to accept it."
A couple of other interesting comments from the case:
While there is a duty to find an accommodating position, I cannot find the duty extends to searching very nook and cranny of the Provincial Public Service. The cases suggest there is no duty to create a position that did not previously exist. (Una v. Royal Alex Hospital  6 WWR 696)
As well, a person is not entitled to a job of their own choice so long as the proferred job is one that is sufficiently inclusive to accommodate the complainant. (Hutchinson v. Canada 4 FC 580 par. 76 and 77) In that case, the Federal Court said if some alternatives proposed by the employer were found to be reasonable by the Human Rights Commission, the question of whether the employer has to go to the point of hardship to find a job that would be the Applicant’s preferred alternative does not arise.
This is a good case for employers and one that emphasizes that accommodation is a shared responsibility and that reasonableness, not perfection, is the standard.
"Imagine a plan in which employees or students encouraged their employer or law school to make the following kind of offer: “We know that many of your days are sedentary, and we take an interest in your long-term health. We also know that most of you are eager to be fit. We invite you voluntarily to subscribe to our health partnership for three years. As a subscriber you will pay $2,000 per year into the plan. At the end of each month if you have met the plan’s goals with respect to weight and perhaps exercise (if it can be monitored, as might visits to particular gyms) for the month, you receive $200, so that someone who always makes the goals earns $400 on the $2,000 investment in the course of the year. Someone who misses the goals in two of the months breaks even. If you never meet the monthly goal, you will lose the $2,000 subscription – and you will have signed on to try again with another $2,000 the next year, because the plan runs in three-year cycles. Weight loss and maintenance is, after all, a long term endeavor.”
I've tried this one on a couple of people, and got the "what are you talking about?" look. I just can't imagine an employer saying to a newly hired employee, "so do you want part of our "healthy-lifestyle-incentive-plan? Your signature and $2000 of your own money gets you in."
Maybe there are other things that employers can do to encourage/reward employees and, by so doing, cutting into the cost of absenteeism?
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