Thoughts from a Management Lawyer

Amateur Sports and Human Rights

Believe me, I'll jump at any opportunity (no matter how tenuous) to  write a post that mixes sports with employment law. 

Lisa Stam, who write a super blog called Employment & Human Rights Law in Canada beat me to it.  Check out Lisa's post Discrimination & Gender in Amateur Sport. 

"Kill a Worker Go to Jail" Campaign

In anticipation of the National Day of Mourning on April 28, the Ontario Federation of Labour has implored greater use of Bill C-45 in addressing workplace fatalities.  

Personal Respondents in Human Rights Cases

Being named personally in any legal proceeding is no one's idea of fun.  Being named personally in a human rights case alleging that you are somehow liable (personally) for harassing or discriminatory conduct escalates the anxiety. 

The Ontario Human Rights Tribunal has developed a body of cases that establish principles under which individuals will be removed as respondents to human rights applications. 

Deciding whether or not to remove an individual as a respondent is a case-by-case exercise. The leading case is Persaud v. Toronto District School Board where the following non-exhaustive list of factors was noted as being "helpful in assessing whether a personal respondent should be removed":

1. Is there is a corporate respondent in the proceeding that also is alleged  to be liable for the same conduct?
2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
5. Would any prejudice be caused to any party as a result of removing the personal respondent?

More recently, in Sigrist and Carson v. London District Catholic School Board the Tribunal put the matter as follows:

Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason.

The most recent case to apply these principles is Matthews v. Chrysler Canada where the Tribunal removed three (3) personal respondents from the application.

These are important cases and ones that establish a principled approach to dealing with this important issue.  If there is no purpose to be served by adding individuals as respondents to human rights complaints, the Tribunal appears to be saying that they won't be added "in the absence of some compelling judicial reason". 

National Day of Mourning - April 28

As I was watching the coverage of the memorial service for the 29 coal miners killed in West Virginia, I thought it fitting to mention that April 28 is the National Day of Mourning commemorating workers whose lives have been lost or injured in the workplace.

In 1990, Parliament passed the Workers Mourning Day Act to formally recognize April 28 as a "day of mourning" across Canada.

There were 1,036 workplace deaths in Canada in 2008.  Another 942,478 were injured or become ill. 

The CLC has issues a statement in which they propose:

"It’s time for the federal government and the provincial and territorial governments to appoint special prosecutors to lay charges under the Criminal Code against employers when their actions cause death or serious injury.  More inspectors must be hired to ensure employers comply with the law. Government regulators must be held accountable for this carnage that seems to go unchecked."

It will be interesting to see whether more charges will flow from Bill C-45 which amended the Criminal Code and became law on March 31, 2004 which provides in part:

"Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task."

To date these provisions have been used sparingly.

Striking over daily beer ration?

I can't make that headline up:

Employees at a Carlsberg warehouse on the outskirts of Copenhagen returned to work on Monday, ending a five-day strike over a decision to cut their daily ration of free beer, their union said.

Read more at Carlsberg employee end strike over daily beer ration.

Surveillance Evidence Admitted Even if Improperly Obtained

I'm a little behind on my blog reading, but I did want to thank Dan Michaluk for bringing a helpful case called McKesson Canada Corp. (Birch Grievance) to my attention through his post.  Arbitrator Hood notes in the McKesson case:

"Video evidence, even if improperly obtained, is admissible. As a general rule, subject to circumstances where the Canadian Charter of Rights and Freedom apply, the test for admissibility of evidence in a court of law is relevance and if admissible, the court is not concerned with how the evidence was obtained (see R. v. Wray , [1971] S.C.R. 272)."

This is similar to a comment made by the Arbitrator in a case that I argued:

"Put simply, I agree with arbitrator Bendel that the test for the admissibility of videotape surveillance is relevance. I do not see that the method by which evidence is obtained has any impact on its admissibility before me. It is either relevant evidence in which case I must admit it or it is not. How it was; obtained is of no concern to me. For example, let us assume a situation where a person breaks into a manager's office and while in the office finds a document that is relevant to a question before an arbitrator.  Clearly the action of the person breaking into the office could be pursued criminally and if that person was an employee (bargaining unit member or not) it might be pursued civilly. The illegality of the method by which the document was obtained, however, would not be a consideration in respect of its admissibility before an arbitrator. If evidence that is obtained in a clearly illegal way can be admitted, how is it that evidence that is obtained in a way that offends the sensibilities of many arbitrators but is not illegal is not admissible? The simple answer is that it is admissible."

The Mckesson case is another in a line of cases that have struggled with the underlying bases advanced by union's in support of their claims that video surveillance evidence ought not be admitted at arbitration even where that evidence is relevant to the issues in dispute.

Summary Judgment in Employment Disputes

The Court considered whether to allow partial summary judgment in Cockshutt v. Computer Facility Services.

In this case, the plaintiff sought summary judgment for one aspect of his claim, being damages in lieu of notice, including benefits to which he would be entitled during the period of notice.  The new Rules of Civil Procedure applied to this motion.  The relevant portion of the Rule was:

20.04  

(2)  The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(2.1)  In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

The Court commented on the availability of summary judgment in employment disputes as follows:

Summary judgment is often a suitable route for the determination of a wrongful dismissal action where, as here, there is no issue as to whether the dismissal was for cause.  The calculation of damages typically involves nothing more than the determination of the appropriate notice period based on objective factors including the age and background of the employee, the length of employment, the nature of the position held with the employer and the availability of suitable alternative employment.  In many cases, perhaps even the majority of cases, these factors do not involve any disputed facts.  That is not so in this case.

There were a number of factual disputes in this case including:

1. One factor that is considered in determining the period of reasonable notice is the "character of employment".  The parties disagreed on where the plaintiff fit into the organization and the "character of his employment".  The Court noted that "The character of the plaintiff’s employment is an influential factor in determining the appropriate period of notice.  A factual dispute on this point is a major obstacle to the availability of summary judgment."
2. There was an issue of the enforceability of a written employment agreement.

The Court ordered that the matter proceed to trial and dismissed the motion for summary judgment.

I'd previously discussed the availability of summary judgment in employment disputes under the old Rules of Civil Procedure.

An Expansive view of Dismissing Cases for "Abuse of Process"

There's an interesting case out of the Ontario Human Rights Tribunal that anyone responding to a human rights complaint ought to read.  It is one in a long line of cases, but it does highlight an important concept when seeking to have applications dismissed in a unionized environment. 

The case, Manhas v. A.O. Smith Enterprises, considered whether to permit the employee to proceed with his human rights application following the dismissal of his discharge grievance by an arbitrator. 

There were two issues before the Tribunal:

1. Did section 45.1 of the Human Rights Code apply?  Section 45.1 authorizes the Tribunal to dismiss the application, in whole or in part, "if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
2. Whether allowing the application to continue in the face of the decision of the arbitrator was an "abuse of process" under the Statutory Powers Procedures Act?

As will be seen, arguing these in the alternative was the way to go. 

Section 45.1 of the Code

In deciding whether or not to dismiss an application under section 45.1 of the Code:

"... the Tribunal looks at whether the application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was essentially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding."

In this case, the human rights complaint arose out of the same facts that were considered in the arbitration proceeding, However, there were no allegations of discrimination on the basis of a disability before the arbitrator.   Accordingly, the arbitrator never considered whether the discharge was discriminatory and contrary to the Code or collective agreement and the Tribunal could not conclude that the arbitrator had "appropriately dealt with the substance of the application” before the Tribunal.  As such, section 45.1 didn't result in the dismissal of the application.

Abuse of Process

The Tribunal discussed the rationale behind dismissing complaints as an abuse of process and considered the Supreme Court of Canada case of Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), 2001 SCC 44 (Can Lll):

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled one bite at the cherry … An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue cost, and inconclusive proceedings are to be avoided.

The Tribunal went on to look at the arbitrator's decision and concluded that:

The arbitration process in this case thoroughly explored and decided the issue of the applicant’s termination from employment.  The arbitrator found that the breach of the workplace policies and rules supported the employer’s decision to terminate the applicant.  The facts about the applicant’s status as an injured worker requiring accommodation were before the arbitrator.  The applicant, however, did not raise any allegations of discrimination in relation to those facts.

Although I cannot conclude that the arbitrator dealt with any claims of discrimination under section 45.1, I am satisfied that there were no facts set out in this Application that were not put before the arbitrator and that there was a full inquiry into all the relevant facts.  Therefore, allowing the Application to proceed would necessarily involve the re-litigation of the issue decided by the arbitrator.  In my view, to do so would violate the principles of judicial economy and the integrity of the administration of justice and amount to an abuse of process. [emphasis added]

The fact that the arbitrator did not consider the issue before the Tribunal was not fatal so far as the "abuse of process" argument was concerned despite the fact that it was fatal to the section 45.1 argument.

Delay is a Problem When Reviewing Labour Board Decisions

The Ontario Divisional Court considered, in part, the impact that delay would have on an application for judicial review of a decision of the Ontario Labour Relations Board ("OLRB"). 

The case involved an application to review two decisions of the OLRB dated February 6, 2008 and April 28, 2008.  The employee also sought to "set aside" a memorandum of settlement entered into between the employer, union and the employee.  The Court concluded that it had no jurisdiction to "set aside" the memorandum of settlement, but then went on to consider the application for judicial review and the issue of delay.

The Court observed that:

There was a delay of eleven months after the [Memorandum of Settlement] was executed in bringing the application and a further seven months delay before it was perfected.   This Court has held that applications for judicial review are to be commenced expeditiously and has exercised the power to dismiss an application on the basis of undue delay:

“…the Divisional Court has held on numerous occasions that delay on the part of an applicant of six or more months in the commencement of an application and/or twelve months in the perfection of an application could be serious enough alone to warrant the dismissal of the application”.  (Bettes v. Boeing Canada/Dehavilland, [2000] O.J. No. 5413 (Div. Ct.) at para.7).

The length of delay in this case well exceeds any reasonable limit.  Furthermore, the record discloses no evidence of any reasonable explanation for the delay and in particular, as I have stated, no medical evidence of incapacity or impairment.  Moreover, this Court has stated that judicial review of OLRB decisions should proceed expeditiously because certainty is particularly important in labour disputes (see Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers v. International Union of Bricklayers and Allied Craftworkers 2003 CanLII 34378 (ON S.C.D.C.), (2003), 172 O.A.C. 156 (Div. Ct.) at para. 10).

In the circumstances, the application was dismissed.

Increase in Minimum Wage in Ontario

On March 31, 2010, the general minimum wage in Ontario increased from $9.50 per hour to $10.25 per hour.  More information can be found in the Ministry of Labour's publication on Minimum Wage.  This wage increase will impact many sectors, including hospitality and food services among others. 

Have a read of some of the opinions on what the increase in minimum wage will mean including "How to Kill Jobs", Restaurateurs cry foul, servers fret as Ont. minimum wage goes up 8 per cent and A reason to celebrate: The lowest paid in Ontario just got a raise