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Labour & Employment

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Friday, April 07, 2017 @ 8:57 AM

WORKERS’ COMPENSATION - Benefits - Payment of benefits - Reduction of usual benefits - Compensability of injuries - Aggravation of pre-existing condition - Legislation - Interpretation - Civil procedure - Pleadings

Appeal by Castrillo from an order striking his statement of claim without leave to amend as disclosing no cause of action. Castrillo sought to represent a class of injured workers alleged to have been wrongfully denied the full extent of benefits to which they were entitled under the Workplace Safety and Insurance Act by the Workplace Safety and Insurance Board (WSIB) in a class proceeding. The action was pleaded in misfeasance of public office, bad faith and negligence. For his part, Castrillo sustained a shoulder injury while working as a concrete finisher and pipe layer, in October 2011. He applied for and received economic loss benefits (NEL). He qualified for an NEL award because he suffered a permanent impairment leaving him with less than a full range of motion in his shoulder. The lump sum award of six per cent was reduced by 50 per cent because of his pre-existing osteoarthritis in the injured shoulder. Castrillo appealed administratively, on the basis that the WSIB was wrong to reduce the NEL award, given that his osteoarthritis was asymptomatic prior to the work-related injury and had never before affected his shoulder’s functionality. An Appeal Resolution Officer allowed Castrillo’s appeal and restored the full NEL award without reduction. Castrillo later learned about other injured workers whose NEL awards were similarly reduced, discovering that the reductions were the result of the implementation of an internal WSIB document in which reducing costs were mandated. He commenced the present action on behalf of all workers whose NEL awards were reduced due to pre-existing conditions that were not impairments negatively impacting on their pre-accident functioning, and who had incurred expenses pursuing administrative appeals of the WSIB’s decision to reduce their NEL awards. The judge allowed the WSIB’s motion to strike the pleadings in their entirety, ruling that he had no jurisdiction over the subject matter of the action. ... [read more]

Thursday, April 06, 2017 @ 11:50 AM

Stewart McKelvey's Machum elected vice-chair of Telefilm Canada board

Grant Machum, a partner in Stewart McKelvey’s Halifax office, has recently been elected as the Telefilm Canada board of directors vice-chair. ... [read more]

Thursday, April 06, 2017 @ 8:43 AM

Human rights update: The duty to inquire about employee mental illness

If an employer has concerns about an employee’s performance or behaviour and thinks it might be caused by a mental illness, can or must the employer ask the employee? ... [read more]

Wednesday, April 05, 2017 @ 11:04 AM

DISCIPLINE AND DISCHARGE - Progressive discipline - Available sanctions - Suspension - Grounds - Insubordination

Appeal by Bergey from dismissal of application for judicial review of an adjudicator's decision dismissing her grievances against her employer, the Royal Canadian Mounted Police (RCMP). The appellant was a civilian RCMP member. Over the period from 2001 to 2004, RCMP management noted deficiencies in Bergey’s performance and attitude. She was insubordinate and rude toward managers and others with whom she worked. In addition, she was believed to have temporarily removed documents from RCMP files, to have failed to perform important tasks and to have lied to co-workers and supervisors. RCMP management spoke to the appellant about the issues, and when there was no improvement, it levied a three and then a 10-day suspension. Bergey’s reliability status, the lowest level of security status required of federal government employees, was revoked primarily for the workplace incidents for which she had already been disciplined or for which no disciplinary action had been taken. As a result of the revocation of her reliability status, her employment with the RCMP was terminated for cause. The appellant filed a number of grievances, seven of which were referred to adjudication. The adjudicator dismissed all seven grievances, finding that there was cause for the suspension, that she lacked jurisdiction to hear grievances challenging Bergey’s suspension from employment and the revocation of her reliability status, and that there had been no violation of Bergey’s rights to union representation. The adjudicator concluded that management’s decision to review the appellant’s eligibility for reliability status and the decision to revoke that status were not disguised acts of discipline and had not been made in bad faith or in violation of Bergey’s rights to procedural fairness. Bergey applied for judicial review of the adjudicator’s decision. The Federal Court dismissed her application finding that the adjudicator's conclusions were reasonable. The appellant appealed. ... [read more]

Wednesday, April 05, 2017 @ 8:19 AM

Fasken Martineau survey tracks OHS compliance in Canada

How compliant is your organization with Occupational Health and Safety (OHS) regulations? Although an OHS program is required by law, 40 per cent of Canadian companies fail to follow the rules. In addition, half of employers are non-compliant with OHS legislation requiring them to take steps to prevent harassment or violence in the workplace. ... [read more]

Wednesday, April 05, 2017 @ 8:10 AM

Court upholds TTC's drug testing policy Inna Koldorf

Random drug testing on TTC employees will begin later this month after a judge dismissed an application from the transit workers’ union for an injunction against an amendment to its “Fitness for Duty Policy” during arbitration. The policy implements drug and alcohol testing of employees in safety sensitive, specified management and designated executive positions. ... [read more]

Tuesday, April 04, 2017 @ 2:30 PM

Justice Abella to speak at Brandeis commencement

Supreme Court of Canada Justice Rosalie Silberman Abella will address graduating students at Brandeis University’s 66th commencement ceremonies on May 21 in Waltham, Mass. ... [read more]

Monday, April 03, 2017 @ 12:55 PM

Koldorf starts own labour law firm

Inna Koldorf  has launched a new firm, Koldorf Workplace Law focusing on assisting employers with labour, employment and human rights law. It also provides third-party workplace investigation services. ... [read more]

Monday, April 03, 2017 @ 8:44 AM

Access to Justice: Let’s give the Bonkalo report a chance | Thomas Cromwell

I wish that we didn’t have a large and growing legal services gap. But we do. Just look at the never-ending waves of self-represented litigants in our courts. Most of them wish they had a lawyer; some started out with one, but ran out of money along the way. And, sadly, the unmet need for legal services for these people is only the tip of the unmet legal needs iceberg. ... [read more]

Friday, March 31, 2017 @ 8:55 AM

WORKPLACE HEALTH AND SAFETY - Offences and enforcement - Defences - Due diligence - Offences - Failure to ensure health and safety of workers

Application by the Crown for leave to appeal a Summary Conviction Appeal Judge (appeal judge) decision setting aside the respondent’s convictions under the Occupational Health and Safety Act for failing to ensure the safety of its workers. In December 2010, a team of the respondent’s employees were removing an oil drill string from a well. During the process, the drilling pipe suddenly spun out of control while two employees were in the rotary table danger zone. Part of the apparatus struck one of the floorhands, who died of his injuries. The driller, who might have been in the best position to testify as to what occurred, did not testify as he was working in the US. At trial, there was competing evidence about what caused the drill string to spin. The trial judge concluded that the Crown proved the actus reus more broadly than required by the prima facie breach approach, so that the defence needed to satisfy him that they had taken all reasonable steps to avoid the present type of accident. The appeal judge held that the trial judge erred by finding that the Crown proved the offence merely by proving that the accident occurred. The appeal judge found that the accused met all industry standards and regulations. She held the trial judge erred by failing to assess due diligence with reference to industry standards and the absence of any specific safety standard, which would govern what a reasonable drilling company would have done in the circumstances. The Crown argued the appeal judge erred by requiring the Crown, as part of the actus reus of the offence, to negate due diligence or prove negligence and erred in law in her interpretation and application of the due diligence test. ... [read more]