Thoughts from a Management Lawyer

Advancing Human Rights Claims in Court

Mr. Justice Echlin in the recent case of Anderson v. Tasco Distributors (January 10, 2011) considered a motion to strike out certain paragraphs of a statement of claim dealing with the duty to accommodate.  The main basis for the motion was that the Court was without jurisdiction to hear a claim for breach of a provision of the Ontario Human Rights Code. 

The Court dismissed the motion with costs and held that:

Amendments to the Ontario Human Rights Code have now created the right under s. 46.1(1) to claim compensation in a civil proceeding for a breach of Part I of the Code.  The only qualification to this is found in 46.1(2) which prohibits commencement of an action based solely on an infringement of Part I.  In Honda v. Keays, 2008 SCC 39 (CanLII), [2008] 2 S.C.R. 362 at para. 63, Bastarache J., in speaking for the majority, indicated that a plaintiff could advance a breach of the Code as a cause of action in connections with another wrong.  While Seneca College v. Bhadauria, 1981 CanLII 29 (S.C.C.), [1981] 2 S.C.R. 181 was cited, subsequent appellate civil decisions have significantly diminished its impact and modified its ratio decidendi.  Given the recent legislative changes, I am not satisfied that it is of assistance in this instance.

The pleading is was found to be sufficient to found a claim for wrongful dismissal and a claim for a breach of the Code. 

Divisional Court Overturns Human Rights Tribunal Decision

While it's a generalization, it's tough to overturn on judicial review a decision of an administrative tribunal.  That said, it's not impossible to do so as demonstrated by the case of Audmax Inc. v. Ontario Human Rights Tribunal (January 18, 2011, Ont. Div. Ct.) which overturned this decision from the Ontario Human Rights Tribunal.

The adjudicator found that the respondents had discriminated against the applicant in her employment on the basis of her "ethnic origin, creed and sex.  This discrimination occurred indirectly through the enforcement of office dress code and food policies, in the respondents’ disciplinary action and failure to accommodate the applicant’s religious attire, and in the termination of her employment."  

The respondents sought judicial review of this decision on a number of grounds including "procedural unfairness, inadequacy of reasons, and the unreasonableness of the decision itself".   The unanimous Divisional Court overturned the decision and held that:

There are a number of deficiencies in the reasons and in the process employed by the adjudicator.  In my opinion, when these are viewed cumulatively it is not possible to say that this was a fair hearing, nor that the findings of discrimination were reasonable.  The specific issues of concern include the following:

1. the manner in which the adjudicator dealt with the inability of a key witness for the employer to attend the hearing was a denial of procedural fairness;
2. the findings with respect to the microwave policy are flawed by legal errors and lack factual findings to support the legal conclusions reached;
3. the reasons with respect to the dress code policy are inadequate to explain how the policy was discriminatory against Ms. Saadi, either with respect to its content or how it was applied, and fail to address applicable legal issues;
4. the adjudicator unreasonably refused to permit Ms. Telfer to present a photographic image to explain her objection to Ms. Saadi’s clothing, which interfered with the employer’s ability to present its case;
5. the findings with respect to the hijab are unsupportable and flawed by legal errors;
6. the finding that it is discriminatory for a man to be present at a meeting to discuss the style of business dress required of female employees is unsupportable in fact or law;
7. the conclusion that the termination was discriminatory was dependent upon the other findings of discrimination and is not sustainable on its own;
8. the conclusion that the termination was discriminatory was heavily dependent upon drawing an adverse inference with respect to the failure of Mr. Barnett to testify for the employer, which was both unreasonable and legally incorrect and which compounded the procedural unfairness in proceeding with the hearing in his absence; and
9. there is an overall failure to refer to evidence to support critical findings of fact, including findings of credibility that are either conclusory or missing altogether, and the reasons are inadequate to support the conclusions reached or to permit meaningful judicial review. 

This decision is worth a close read.  Not only will the conclusions and result be considered on an application for judicial review, but so too will the manner in which the adjudicator reached the conclusions.  It takes a lot for the Divisional Court to intervene and they will generally default to deference to the administrative body with the expertise and experience for adjudicating specific complaints under a particular statute.  But as this case demonstrates, they will not defer in every case and will step in in the appropriate case..

Leave to Appeal Granted in Overtime Case

According to FP Legal Post CIBC tellers win right to appeal overtime class action.  

In 2009 Justice Lax refused to certify a class and this decision was upheld by the Divisional Court in a 2-1 split decision.  It's not surprising that leave was granted and won't be surprising if the Court of Appeal is not the final word on this important issue.  

Counting the "regularly employed" under the Ontario OHSA

The Ontario Court of Appeal yesterday released an important decision interpreting the Ontario Occupational Health and Safety Act.  The case, Ontario (Labour) v. United Independent Operators Limited considered whether independent contractors are to be counted when determining whether an employer must establish and maintain a joint health and safety committee under section 9(2)(a) of the Act.  

Section 9(2) provides that:

(2) A joint health and safety committee is required,

(a) at a workplace at which twenty or more workers are regularly employed;
(b) at a workplace with respect to which an order to an employer is in effect under section 33; or
(c) at a workplace, other than a construction project where fewer than twenty workers are regularly employed, with respect to which a regulation concerning designated substances applies.

The lower court interpreted the words "regularly employed" narrowly such that independent contractors were not "regularly employed" for purposes of section 9(2)(a) of the Act.  The Court of Appeal held that the lower court was in error and that:

In excluding the truck drivers due to the nature of their employment relationship, the words “regularly employed” were interpreted in a narrow fashion, one that is inconsistent with the objectives, purpose and legislative scheme of the OHSA. 

The Court of Appeal relied upon Ontario (Ministry of Labour) v. Hamilton (City):

When interpreting [the OHSA], it is important to bear in mind certain guiding principles.  Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and the objectives of the legislative scheme.  Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature’s public welfare objectives are to be avoided.

When interpreting legislation, the Court observed that it must examine "the language of the provision, the context in which it is used, and the purpose of the legislation".  When looking at these matters, the Court concluded that the truck drivers, despite being independent contractors, "must be counted when determining whether the threshold requirement in s. 9(2)(a) has been met".

This is a significant decision and worth a close read.  It is arguably, at odds with what is commonly thought of as "regularly employed".  This may well not be the last word we hear on this subject.

Costs in Labour Arbitration

One party seeking its costs in labour arbitration under a collective agreement is a rare occurrence.  That's not to say that it doesn't happen, it just doesn't happen all that often.  

The general rule was succinctly stated in the leading text by  Brown & Beatty Canadian Labour Arbitration (4th) at paragraph 2:1430:

Collective agreements customarily provide that the costs of the arbitrator and the arbitration proceeding are to be borne equally by the parties.  Counsel fees and legal costs, however, are rarely, if ever, dealt with by the collective agreement and the general view is that an arbitrator has no jurisdiction, in the absence of an express provision in the agreement, to order that such costs be paid by the losing party.  Rather, arbitrators have assumed that, in view of the long-standing practice of each party bearing its own costs , an express provision granting the arbitrator such a power would be required to support making such an order. [Emphasis added]

An excellent recent review of the law of costs in arbitration is found in Weeneebayko Health Ahtuskaywin (a case where the Canada Labour Code applied). The following basic principles were expressed and accepted by the parties to the arbitration:

1. Normally, the costs of an arbitration hearing are borne equally by the Union and Employer;
2. Costs of a labour arbitration proceeding are not ordered to follow the cause;
3. Costs will not be ordered in a labour arbitration matter as a punitive measure;
4. Costs may be ordered in granting an adjournment, as the exercise of arbitral authority to control the process;
5. It is generally accepted arbitral thought that only exceptional circumstances will give rise to an order for costs; and
6. Arbitral discretion to award costs have been exercised rarely, and only in cases in which it appears that the party seeking the adjournment had reasonable control over the circumstance that caused the need to adjourn. (As, for example, in Hawker Siddeley Canada Inc. And I.A.M. Lodge 1922, [1989] O.L.A.A. No. 67, 7 L.A.C. (4th) 172, (Gorsky), in which an employer had ability to alter the vacation schedule of key witnesses, and assure their availability for hearing).

After reviewing the governing legislation (the Canada Labour Code) the arbitrator noted:

The Code specifies the elements of the authority of the board of arbitration to control its own procedure. Unlike the related provision of the Ontario Labour Relations Act, R.S.O., c. 228, s.45, (which only requires that the parties share equally the cost of the arbitrator when appointed by the Minister), the Code requires that regardless of the manner of appointment, each party shall bear its own costs, and shall pay the fees and expenses of the arbitration board, unless the collective agreement provides otherwise.

In this case, neither the Canada Labour Code nor the collective agreement conferred jurisdiction upon the arbitrator  to award costs and the arbitrator refused to do so.

The case is instructive on the (limited) circumstances in which costs will be awarded and the policy reasons for a restrictive approach.

What's a prima facie case of discrimination?

The Ontario Human Rights Tribunal recently considered when an applicant in a human rights case has shown a prima facie case of discrimination on a prohibited ground under the Human Rights Code. The case is Race v. General Motors of Canada: Race v. Canadian Auto Workers.  

The Tribunal quoted extensively from Jagait v. IN TECH Risk Management, which, it held, set out the appropriate test for determining whether an applicant has established a prima facie case:

The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent: see Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), 1985 CanLII 18 (S.C.C.), at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory. 

It is well-established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the employer may have knowledge of facts or possess evidence of discrimination that is not accessible to an employee whose employment is terminated, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. On the other hand, where the applicant has failed to establish a prima facie case, it is neither legally correct nor, in my view, fair, just and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions. In the case at hand, I am not satisfied, after hearing the applicant’s evidence, that she has established a prima facie case of discrimination.

The Tribunal must be satisfied both that:

• the applicant experienced adverse treatment in relation to others, and 
• the adverse treatment was  based on a ground enumerated in the Code.

In the Race applications: 

The focus of the applicant’s complaint in this case was the volume of the radio near her work station. She asked the employer and union to address this concern. She alleges that the employer and union failed to take appropriate steps to investigate and resolve her complaint and her co-workers harassed her because she complained.

The Tribunal dismissed the applications as the applicant was unable to get over the prima facie threshold.  

 

Technology and Union Organizing

The Word on Employment Law draws our attention to the subject  of technology and union organizing (Union Uses Blog to Organize Manufacturing Plant).  Not surprisingly, these organizing techniques are being used with increased frequency.  

Have a read of Organizing 2.0 Savvy Online Campaign Yields Victory for N.Y. Can Plant Workers:

"So organizers got crafty and set up a special blog strictly for the 164 employees to debate, strategize, air concerns and ultimately come together for victory, all while avoiding many of the union-busting tactics so common in most campaigns."

According to the article, the employer set up its own site "but it lacked two-way communication, only plugged the company’s talking points and fell flat with the work force".  

These are interesting times and technology is increasingly becoming part of the organizing landscape. In the end, its about getting your message out (whether your the union or the employer).  

 

Limitation Periods in Wrongful Dismissal Cases

The Ontario Superior Court provides a good overview of the Ontario Limitation Act in wrongful dismissal cases.  

Section 4 of the Act provides that:

Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered

Section 5(1) of that Act identifies the criteria to apply in ascertaining when a claim is discovered, and section 5(2) presumes that a person with a claim knew of the matters referred to in s. 5(1)(a) on the day the act on which the claim is based took place, unless the contrary is proved.

The Court observed that:

In wrongful dismissal claims the cause of action usually arises when the contract was breached – i.e. when the employer dismissed the employee without reasonable notice: Jones v. Friedman, 2006 CanLII 580 (ON C.A.), 2006 CanLII 580 (ON C.A.), paras. 3 and 4.  Facts unique to a case may call into question that general principle and point to a later date as the one on which the claim was discovered:  Webster v. Almore Trading & Manufacturing Company Ltd., 2010 ONSC 3854 (CanLII), 2010 ONSC 3854 (CanLII).

The Court in Webster made a number of points:

• Ignorance of the limitation period does not relieve the plaintiff from its operation (Paragraph 9)
• The limitation period starts running the moment the plaintiff “discovered” the potential claim (i.e., knew or by reasonable diligence could have known of the material facts upon which to found suit), not when the plaintiff had assessed the probability of its success (Paragraph 9)
• Discoverability is largely a question of fact that hinges on the circumstances of the case as to when the plaintiff actually or ought to have found out about the material facts to ground a cause of action. (Paragraph 11)

The Court in Webster noted:

Wrongful dismissal, in my view, raises a particularly difficult issue in the limitation context since it is not a dismissal per se that is actionable but rather dismissal without reasonable notice or salary in lieu of such notice, that is actionable. Accordingly, the limitation period for an action for wrongful dismissal does not necessarily run from the date of actual dismissal. It is activated when the cause of action is discovered – that is, the date that the terminated employee knew or ought to have known that he was discharged without cause and without notice or pay in lieu of notice and that a proceeding would be an appropriate way to get redress. The date of discovery may be later than the date of dismissal. [Emphasis added]    

The facts are of course critical in these cases.  

In the case, the Court in the most recent case concluded that the plaintiff's action was statute barred as it had been commenced more than 2 years after she discovered her claims.

One Year Limitation under the Ontario Human Rights Code

Another recent interim decision on the one year limitation under the Ontario Human Rights Code.  Section 34 of the Code provides that:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2, 

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series. 

(2)  A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

The Tribunal in the Cashin decision held that:

In order to satisfy the Tribunal that the delay was incurred in good faith an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner.  The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). [Emphasis added]

A leading case is Miller v. Prudential Lifestyles Real Estate where the Tribunal made a number of observations: 

• Where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith.  Otherwise, there would be little meaning to the statutory limitation period. (Paragraph 24)
• The Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim. (Paragraph 24)
• In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). (Paragraph 25)
• A delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong. (Paragraph 25)