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Friday, February 03, 2017 @ 3:25 PM

UNFAIR LABOUR PRACTICES - By employer - Bargaining in bad faith - Improper communications with employees - Interference with employee’s rights - Intimidation or coercion

Appeal by the employer Health Authorities from a decision allowing the respondent unions’ application for judicial review of a decision of the Labour Relations Board. The unions had alleged that the appellant had engaged in unfair labour practices due to the appellant’s communications campaign during labour negations involving press releases, letters, a website and posters. The unions alleged the appellant violated s. 11(a) of the Trade Union Act (Act) by interfering with and coercing employees in the exercise of their rights under the Act and s. 11(1)(b) by failing to bargain in good faith. The appellant believed that a 2008 amendment to s. 11(1)(a) of the Act had granted an expanded right for employers to communicate facts and opinions to their employees and it exercised that right in the 2008 round of bargaining. The Board held that the 2008 amendment effected what might be called a re-appreciation of the robustness of employees and of how vulnerable they were to intimidation and coercion. The Board dismissed all complaints except a complaint under s. 11(a) for misrepresenting retroactive pay issues. By way of a remedy, the Board enjoined the appellant from further violating the Act. The Board concluded that the appellant had a right to communicate both with health care workers and the public about the status of its bargaining proposals and found that, but for the misleading commentary concerning retroactive pay, the appellant’s communications had not offended the Act. The Chambers judge found several aspects of the Board’s approach to the alleged violations unreasonable and ordered the Board to reconsider its decision except for its finding of the s. 11(a) violation. The appellant argued that the judge erred in applying a more rigorous standard of review than reasonableness and by substituting his own conclusions for those of the Board. ... [read more]

Friday, February 03, 2017 @ 2:58 PM

WRONGFUL DISMISSAL - Dismissal without cause

Appeal by Alberta Investment Management Corporation (AIMCo) from the award to Styles in his wrongful dismissal claim. There was no dispute that Styles was dismissed from his position with AIMCo as an investment manager in 2013 without cause. He received compensation for his dismissal without cause as per the terms of his employment contract. The dispute concerned Styles’ entitlement to bonuses under AIMCo’s Long Term Incentive Plan. The objectives of the Plan were to motivate and reward key employees. No bonuses were payable under the Plan until four years after employment commenced, as it was only at time that the bonus formula could be applied. The Plan contained a statement that only active AIMCo employees were entitled to payment under the Plan. As Styles worked for AIMCo for less than four years, and was no longer an active employee, AIMCo took the position that no compensation pursuant to the Plan was payable to Styles following his dismissal. The Court accepted that AIMCo did not dismiss Styles in order to avoid paying compensation to him according to the Plan. However, the Court found the wording of the Plan inherently contradictory, noting that it made no sense that the Plan was intended to attract top talent, while providing for AIMCo’s right to terminate employment without notice and its entitlement to deny claims to compensation under the Plan in such a circumstance. Since it was AIMCo that created the circumstance under which Style was unable to receive his Plan entitlements, the Court awarded Styles the benefits he would have received under the Plan, prorated based on the actual duration of his employment. ... [read more]

Thursday, February 02, 2017 @ 7:00 PM

Labour Law - Unfair labour practices - By employer - Bargaining in bad faith - Improper communications with employees - Interference with employee’s rights - Intimidation or coercion

Appeal by the employer Health Authorities from a decision allowing the respondent unions’ application for judicial review of a decision of the Labour Relations Board. The unions had alleged that the appellant had engaged in unfair labour practices due to the appellant’s communications campaign during labour negations involving press releases, letters, a website and posters. The unions alleged the appellant violated s. 11(a) of the Trade Union Act (Act) by interfering with and coercing employees in the exercise of their rights under the Act and s. 11(1)(b) by failing to bargain in good faith. The appellant believed that a 2008 amendment to s. 11(1)(a) of the Act had granted an expanded right for employers to communicate facts and opinions to their employees and it exercised that right in the 2008 round of bargaining. The Board held that the 2008 amendment effected what might be called a re-appreciation of the robustness of employees and of how vulnerable they were to intimidation and coercion. The Board dismissed all complaints except a complaint under s. 11(a) for misrepresenting retroactive pay issues. By way of a remedy, the Board enjoined the appellant from further violating the Act. The Board concluded that the appellant had a right to communicate both with health care workers and the public about the status of its bargaining proposals and found that, but for the misleading commentary concerning retroactive pay, the appellant’s communications had not offended the Act. The Chambers judge found several aspects of the Board’s approach to the alleged violations unreasonable and ordered the Board to reconsider its decision except for its finding of the s. 11(a) violation. The appellant argued that the judge erred in applying a more rigorous standard of review than reasonableness and by substituting his own conclusions for those of the Board. ... [read more]

Thursday, February 02, 2017 @ 7:00 PM

Employment Law - Wrongful dismissal - Dismissal without cause

Appeal by Alberta Investment Management Corporation (AIMCo) from the award to Styles in his wrongful dismissal claim. There was no dispute that Styles was dismissed from his position with AIMCo as an investment manager in 2013 without cause. He received compensation for his dismissal without cause as per the terms of his employment contract. The dispute concerned Styles’ entitlement to bonuses under AIMCo’s Long Term Incentive Plan. The objectives of the Plan were to motivate and reward key employees. No bonuses were payable under the Plan until four years after employment commenced, as it was only at time that the bonus formula could be applied. The Plan contained a statement that only active AIMCo employees were entitled to payment under the Plan. As Styles worked for AIMCo for less than four years, and was no longer an active employee, AIMCo took the position that no compensation pursuant to the Plan was payable to Styles following his dismissal. The Court accepted that AIMCo did not dismiss Styles in order to avoid paying compensation to him according to the Plan. However, the Court found the wording of the Plan inherently contradictory, noting that it made no sense that the Plan was intended to attract top talent, while providing for AIMCo’s right to terminate employment without notice and its entitlement to deny claims to compensation under the Plan in such a circumstance. Since it was AIMCo that created the circumstance under which Style was unable to receive his Plan entitlements, the Court awarded Styles the benefits he would have received under the Plan, prorated based on the actual duration of his employment. ... [read more]

Thursday, February 02, 2017 @ 2:37 PM

Stikeman Elliott welcomes two new partners

As of the new year, Jeff Hershenfield is a partner in Stikeman Elliott's Toronto office and Stephanie Weschler is a partner in its Montreal office. ... [read more]

Wednesday, February 01, 2017 @ 2:06 PM

In a self-represented world, judges must be the gatekeepers | Gary Joseph

Our adversarial system operates on the premise of passive adjudication.  By this I mean the role of our judges is predominately reflexive as they hear evidence, weigh it and determine disputes based upon what has been presented to them.    Unlike some jurisdictions where judges play an investigative role, our judges must not search out evidence outside of what is presented in court to them by the parties to the dispute.   ... [read more]

Tuesday, January 31, 2017 @ 1:16 PM

Ontario class action launched against Uber

A class action against the ride-sharing company Uber has been filed in Toronto. ... [read more]

Thursday, January 26, 2017 @ 7:00 PM

Workplace Health, Safety & Compensation Law - Workers’ compensation - Legislation - Interpretation - Offences and enforcement

Appeal by West Fraser Mills (West Fraser) from the dismissal of its application for judicial review of a decision by the Workers’ Compensation Appeal Tribunal. E was fatally injured in the course of his employment as a tree faller, while working within the area of a forest licence held by West Fraser. E was not a West Fraser employee. He was hired by a company engaged by West Fraser to conduct a process by way of which trees were to be felled to attract fir beetles and trap them. E had been working many hours and was not performing his duties with due care on the date that a rotten tree fell on him, causing injuries that led to his death. West Fraser was the owner of the workplace for the purpose of the Workers Compensation Act. The Board investigated the accidents and found West Fraser had failed to fulfill its obligations as owner of a forestry operation. Specifically, West Fraser had failed to devise an adequate plan for felling the trap trees, failed to assess the workmanship of the company it hired, and failed to evaluate the hazards present and to devise a plan to deal with them. The Board was also concerned with the emergency procedures in place at the West Fraser site. It imposed a $75,000 administrative penalty on West Fraser under section 196 of the Act. West Fraser was unsuccessful in its application for review of the Board’s decision and in its appeal to the Appeal Tribunal. Its application for judicial review of the Tribunal’s decision was dismissed. ... [read more]

Thursday, January 19, 2017 @ 7:00 PM

Court overturns denial of pension to soldier with PTSD

A self-represented Afghanistan war veteran with severe post-traumatic stress disorder (PTSD) has won a key court victory in his bid for a higher pension. ... [read more]

Thursday, January 12, 2017 @ 7:00 PM

Striving for a more inclusive workplace

Many lawyers find a safe haven from the stresses of a demanding job with their colleagues and in their workplace. For transgender individuals, however, that refuge is not assured and many law firms are endeavouring to create work environments where everyone is comfortable and accepted. ... [read more]