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Labour & Employment

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Thursday, December 01, 2016 @ 7:00 PM

Lawyers top up war chest to face prolonged strike

A general strike by lawyers and notaries who work for the Quebec government shows no signs of abating as the province is remaining firm while the union has received the approval of the overwhelming majority of its members to shore up its war chest and prolong the work stoppage at least until the end of the year ... [read more]

Thursday, November 24, 2016 @ 7:00 PM

Employment Law - Wrongful dismissal - Civil procedure

Appeal by Concept Plastics from orders granting summary judgment to the respondent employees, Gounder and Singh. In 2014, the appellant decided to relocate its plant from Mississauga to Brantford. Gounder, age 50, had 20 years of service with the appellant. Singh, age 51, was employed by the appellant for 24 years. In November 2013, each respondent received a letter advising of the proposed relocation. They were advised that they could continue their employment at the new location, or could regard the letter as notice of termination. Each respondent continued working at the Mississauga plant until its closure in June 2014. Thereafter, they commenced wrongful dismissal actions under the simplified procedure and brought motions for summary judgment. The appellant took the position that genuine issues for trial existed related to constructive dismissal and mitigation. The appellant submitted that the simplified procedure precluded it from putting its best foot forward on a summary judgment motion. The motion judge found that the November 2013 letter constituted termination without cause, which was subsequently extended in confusing piecemeal fashion until the plant closure. The judge awarded Gounder 18 months’ notice and Singh 20 months’ notice, with no failure to mitigate losses. Concept Plastics appealed. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Workplace Health, Safety & Compensation Law - Workers’ compensation - Appeals and judicial review - Natural justice - Procedural fairness - Boards and tribunals - Powers

Appeal by Schulte from a decision dismissing his motion for judicial review of decisions of the Workers’ Compensation Appeals Commission (Appeals Commission) refusing reconsideration of an earlier decision respecting the appropriate rate of compensation. The appellant was dissatisfied with the compensation he received as a result of a 1987 and a 2006 accident. He argued that various orders of the Workers Compensation Board in 1995, 2005 and 2012 relating to cost of living adjustments were inconsistent with the Charter and that it was not within the competence of the Legislature under the Administrative Procedures and Jurisdiction Act to allow the Board to address division of powers issues under the Constitution, but not issues under the Charter. He also argued there was a reasonable apprehension of bias on the part of the Appeals Commission, either institutionally or specifically. ... [read more]

Thursday, October 27, 2016 @ 8:00 PM

Labour Arbitration - Arbitrators - Jurisdiction

Appeal by the Hotel Employees & Restaurant Employees International Union, Local 779 (Union) from a decision of an application judge setting aside an arbitrator’s award. Sodexo Canada Limited (Sodexo) was an accommodations and catering contractor. The arbitrator held that Sodexo was engaged in the industrial, commercial and institutional sector of the construction industry (ICI sector) and bound by a provincial collective agreement negotiated by the Union with the Construction Labour Relations Association (CLRA), a statutorily recognized body under the Labour Relations Act. CLRA held the bargaining rights for all employers certified by the Labour Relations Board (LRB) in the ICI sector to negotiate collective agreements with construction trade unions representing workers in the ICI sector. A grievance respecting Sodexo’s compliance with the collective agreement arose, and the parties agreed to select a single arbitrator to resolve it. He ruled that the Union was providing its services at a construction project site, which was within the ICI sector of the provincial construction industry. He found that Sodexo was bound by the existing province-wide collective agreement governing employees engaged in catering and accommodations services at the site. On Sodexo’s application for judicial review, the application judge concluded that the arbitrator had no jurisdiction to decide the issue, and set aside the award. The Union submitted that the applications judge erred in law in concluding that exclusive jurisdiction over the matter resided with the LRB, and erred in fact by disregarding the agreement of the parties to proceed with a consensual arbitration process. ... [read more]

Thursday, October 13, 2016 @ 8:00 PM

Labour Arbitration - Appeals and judicial review - Intervenors

Application by several employer organizations for leave to intervene in an appeal by a union from a decision setting aside an arbitration award. The applicants were all involved in promoting work site safety in the industrial construction, mining, electrical and upstream oil and gas industries, in which dangerous and safety sensitive work environments existed. The appeal was from a judicial review of the Random Alcohol and Drug Testing Policy Grievance Arbitration. Suncor, involved in oil sands operations, had instituted a random drug and alcohol testing policy due to its concern about safety hazards posed by alcohol and drug use within the workplace. The majority arbitration decision concluded that the random drug testing policy was unreasonable, lacked clarity, and was not unequivocal. The application judge determined that the majority decision was unreasonable. The applicants argued that the appeal raised substantive questions of legal policy concerning the ability of employers operating in inherently dangerous industries to implement random alcohol and drug testing. They argued that the outcome of the appeal would have a significant effect on the ability of their respective industries to implement random testing plans at their workplaces, which implicated the safety and security of those workplaces. ... [read more]

Thursday, September 29, 2016 @ 8:00 PM

Labour Arbitration - Employee rights and benefits - Remuneration - Wage rates

Appeal by two unions representing 88 per cent of unionized employees in the federal public service from the dismissal of their application for declarations that the provisions of the Expenditure Restraint Act (Act) limited their members’ freedom of association and unjustifiably interfered with their right to a meaningful collective bargaining process. In response to the global economic crisis in 2008, the government implemented the Act to set wage increase limits for public servants. The effect of the Act was to partially roll back wage increases that had already been negotiated and awards that exceeded the limits, and to preclude wage increases and awards in future agreements that exceeded the limits. Many collective agreements were completed in the days leading up to the enactment of the Act. The application judge found that agreements negotiated while the government was contemplating the Act reflected the economic circumstances and contained significant improvements in some areas of concern to union members. He rejected the argument that meaningful negotiations did not take place. He noted the temporary effect of the Act and its allowances for other means to compensate union members in cases where their wages were rolled back. ... [read more]

Thursday, September 22, 2016 @ 8:00 PM

Protection from reprisals

Employees in Ontario have various statutory protections if they try to assert their rights in the workplace. However, despite these protections, when I meet with an employee for the first time, the employee often fears that if she complains about a co-worker, boss or company policy, she will face some form of retribution. ... [read more]

Thursday, September 22, 2016 @ 8:00 PM

When contesting claims, time is of the essence

In 2014, according to the most recent statistical data available, Quebec employers paid more than $2.5 billion in employer contributions to the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST), the Quebec governmental body responsible for the administration of workers’ compensation claims. ... [read more]

Thursday, September 22, 2016 @ 8:00 PM

Employment Law - Wrongful dismissal - Dismissal without cause - Reasonable notice period or wages in lieu

Appeal by the Ontario Teachers’ Pension Plan Board from a decision allowing Lin’s action for wrongful dismissal. Lin was employed by the Board as an investment professional. In 2011, Lin’s employment was terminated allegedly for cause after he emailed a copy of a private placement memorandum (PPM) to a personal friend who was in the investment industry. Lin’s action for damages for wrongful dismissal was allowed. The trial judge concluded that Lin’s employment was terminated without legal cause and that the appropriate notice period was 15 months. He fixed damages at $1,002,905, after mitigation. The Board submitted that the trial judge erred in his interpretation of the Teachers’ Code of Business Conduct and in fixing a period of 15 months’ reasonable notice. ... [read more]

Thursday, September 22, 2016 @ 8:00 PM

Labour Law - Labour relations boards - Procedure

Appeals by United Food and Commercial Workers, Local 1400 (UFCW) and Saskatoon Co-operative Association Limited (Co-op) from a decision dismissing two applications to quash a decision of the Saskatchewan Labour Relations Board (Board). A grocery store began operating as a Co-op store (Circle Store). The Circle Store had been operated by Canada Safeway Ltd. whose unionized employees were covered by a certification order with the Saskatchewan Joint Board, Retail, Wholesale and Department Store Union (RWDSU). The unionized employees of Co-op, however, were part of a certification order held by UFCW. To resolve the question as to who would represent the employees at the Circle Store, RWDSU applied to the Board and UFCW and Co-op responded. The Board determined that Co-op was the successor to Safeway and that an order should issue amending RWDSU’s order to name Co-op as the employer with respect to the Circle Store in place of Safeway. The Board determined it would not exercise its discretion under s. 37(1) of The Trade Union Act to otherwise order that the successorship not apply. The chambers judge found the Board’s subsequent review of the RWDSU website did not result in any change to its approach. UFCW and Co-op challenged the Board’s decision on the basis that it breached procedural fairness by conducting ex parte research following its oral decision. ... [read more]