WHAT’S HAPPENING?
This column is
designed to provide members with regular information
as to what CALL has been doing as an organization, to
tell you about events that are in the works, and to share
stories about CALL members that you may find interesting
or important.
ANNUAL CALL CONFERENCE
CALL’s annual conference will be held
in Ottawa from May 8 to 11, 2003. As usual, the
reception
will open Thursday evening, May 8 and the conference will run through until
Sunday, May 11, ending around mid-day. The conference hotel is the lovely Chateau
Laurier, right in the heart of Ottawa, steps away from the Rideau canal and
the Byward Market, and across the bridge from Hull, Quebec. Mark your calendars.
More information and registration materials will be sent to CALL members in
the Spring. The local organizing committee is headed up by Michael Gottheil
(mgottheil@ceglaw.com), Judith Allen (jallen@ravenlaw.com) and Stephen Waller
(steve.waller@nelligan.ca).
There is a separate committee in charge of
the agenda for the conference. Craig Flood (cflood@
koskieminsky.com) is the co-chair. If you have ideas or suggestions for the
agenda, or want to participate on the committee, please let Craig know.
INTERNATIONAL AFFAIRS COMMITTEE
Mark Rowlinson and Cynthia Watson attended
a meeting in Pasadena, California organized by the International
Commission on Labour Rights (ICLR) on October 16, 2002.
The ICLR is a very recently created organization, founded
by individuals active with the International Centre for
Trade Union Rights (ICTUR) and the International Association
of Democratic Lawyers (IADL), both based in London, UK.
The inaugural meeting of ICLR was in Geneva in January,
2002. The goals of the organization are to:
i investigate and report on areas where international
labour standards are being systematically violated;
ii provide training for lawyers in international
laobur rights law; and
iii provide assistance to trade unions and
other groups in pursuing international labour claims.
The purpose of the meeting in Pasadena was
to connect international labour activists with ICLR and
to set the groundwork for fulfilling the organization’s
ambitious mandate. Full information on ICLR can be found
at www.labourcommission.org. A report on the conference
from Mark Rowlinson can be found on the CALL website at
www.call-acams.com.
ARBITRATION REVIEW IN ONTARIO
Jeffrey Sack of Sack Goldblatt Mitchell has
received the green light from the CALL executive to reactivate
the CALL Arbitration Review Committee in order to take
advantage of renewed interest in the independence of arbitrators
and the integrity of the process in Ontario. The CUPE/SEIU
v. Ontario(Minister of Labour) (the retired judges case)
is pending before the Supreme Court of Canada and the time
is ripe for
labour to re-open the issue which was stymied with the election of the Harris
government back in 1995. The Ontario Federation of Labour is also interested
in pursuing the initiative.
The CALL executive has authorized Jeffrey
to chair the committee, which will include the Ontario
Vice-Presidents (David Wright and Susan Philpott), and
to take whatever steps are required to review the arbitration
process in Ontario, to explore such initiatives as the
creation of an independent centre for dispute
resolution, to confer with other bodies such as the OFL, and to report to the
CALL Council thereon.
MEMBERSHIP CAMPAIGN
The CALL membership campaign will start soon.
You will receive membership renewal materials early in
the new year. The CALL membership fee structure is as follows:
Individual Members
0-3 years in practice $150.00
4-8 years in practice: $175.00
9+ years in practice: $200.00
law students: $25.00
Group Rates for Firms & Unions
2-5 lawyers designated as members: $500.00
6-10 lawyers designated as members: $750.00
11+ lawyers designated as member: $1,000.00
NEWSLETTER
The CALL/ACAMS newsletter committee has been
hard at work to provide this newsletter. The Committee
members are:
Pierre Brun pbrun@grondinpoudrier.com
Leanne Chahley leannec@worldgate.com
Anne Gregory anne.gregory@ufcw832.com
Nicole Harley nharley@llt.mb.ca
Allison Hudgins ahudgins@attcanada.ca
Norm Jesin njesin@jwm-law.com
Susan Philpott sphilpott@koskieminsky.com
David Roberts droberts@labour-law.com
David Wright dwright@rwbd.com
ALBERTA
1. Labour News, Legislative Update
2. Court Decisions
3. Labour Board
4. Arbitration
1. Labour News, Legislative Update
MLA committee on the Labour Relations
Code
In yet another attempt to review the labour
laws in Alberta, a MLA committee was formed in July 2002
to
determine the need to review the Labour Relations Code. The committee
is chaired by Richard Marz, Olds-Didsbury-Three Hills, and committee members
are Harvey Cenaiko, Calgary Buffalo, and Brent Rathgeber,
Edmonton Calder. The committee plans to prepare a report for the review of
Minister of Human Resources and Employment Clint Dunford in October 2002.
Many Unions, together with the Alberta Federation
of Labour, the Alberta & Northwest Territories Building
Trades Council provided detailed submissions to the committee.
Labour has been careful to ensure that it did not take
merely a defensive position and many of the submissions
seek substantial improvements to the Code. Management
is also making extensive submissions.
In addition, the Alberta Labour Relations
Board is in the process of conducting a health care bargaining
unit review.
2. Court Decisions
a. Government’s
restrictions on an employee’s right to criticize
it violates freedom of expression under the Charter
The Alberta Court of Appeal held in A.U.P.E.
v. Alberta, 2002 ABCA 202 that restrictions
on an employee’s right to criticize the government
violated the guarantee of freedom of expression under
the Charter of Rights and Freedoms. Gibson,
a social worker, had written a letter to a member of
the Opposition expressing concerns about the planned
redesign of Social Services. He sent a copy of the
letter to his own MLA, his department’s Minister,
and the Regional Board responsible for Social Services
in the area. As a result of this letter, the Gibson’s
conduct was investigated by the Department. He received
a letter of reprimand and directions as to what he
could say and to whom he could speak.
Gibson grieved both the letter of reprimand
and the directions. Pursuant to the Collective Agreement,
a Level II Designated Officer heard the grievances and
dismissed both. The union and Gibson brought an application
for judicial review. The chambers judge found that because
the Office was not exercising statutory functions, his
decisions were not subject to judicial review. Nonetheless,
the chambers judge went on to consider whether the Officer’s
decisions were correct in law and whether they
violated the Charter.
Although the chambers judge found that the
Officer was not exercising statutory functions and was
therefore not subject to judicial review short of malice
or breach of principles of natural justice, he found that
the Manager’s verbal direction was over-broad and
breached Gibson’s right to freedom of expression.
However, the chambers judge held that because Gibson had
not attempted to have his concerns addressed internally
before publicly criticizing the Government, the chambers
judge rejected the argument that the letter of reprimand
breached the right to freedom of expression. The union
and Gibson and the Government cross-appealed. The Court
of Appeal allowed the union’s and Gibson’s appeal
and dismissed the Government appeal. The Court of Appeal
considered the decision of the Supreme Court of Canada
in Fraser v. Canada (Public Service Staff Relations
Board), [1985] 2 S.C.R. 455. Even though it was not
a Charter case, the Court recognized in Fraser the
need for a balance between the duty of loyalty and freedom
of expression. The balance requires a consideration, among
other factors, of the level within the Government hierarchy
of the individual and the nature and degree of visibility
of the expression.
The Court in Fraser concluded that
a public servant must not engage in sustained and highly
visible attacks on major government policies. The Court
of Appeal in the Gibson case concluded that Gibson had
not engaged in such conduct and had not breached his duty
of fidelity. Rather, the limitations imposed upon him by
his employer breached s. 2(b) of the Charter and
could not be saved by s. 1. The Court of Appeal quashed
the decision of the Level II Designated Officer.
A.U.P.E. v. Alberta, 2002 ABCA 202
The union was represented by Brent Gawne,
firm@gbgawne.com
b. Insurance demutualization
proceeds belong to
employees
In Northern Alberta Institute of Technology
Academic Staff Assn. v. Northern Alberta Institute of
Technology, [2002] A.J. No. 1013 (Q.B.), the Court
of Queen’s Bench held that the proceeds from the
demutualization of an insurance company belong to the
employees. In 1982, the Northern Alberta Institute of
Technology (“NAIT”) obtained a group policy
for members of the Northern Alberta Institute of Technology
Academic Staff Association (“NASA”) for long-term
disability and life insurance from Mutual Life Insurance
Company. A certain portion of the insurance premiums
required to maintain the plan were paid by NAIT, and
a certain portion of the premiums were paid by the employees.
In 1999, Parliament amended the Insurance
Act to permit mutual life insurance companies to
change their ownership structure by converting into a
company with common shares. Following this amendment,
Mutual Life demutualized and issued shares and cash to
existing participating policyholders, including NAIT.
Mutual Life changed its name to Clarica Life Insurance
Company. NAIT elected to sell the shares issued to it
by Clarica. In July of 1999, NAIT received $1,280,573,
as the proceeds of the sale of the shares. In February
2000, the president of NASA wrote to the NAIT administration
to request an accounting of the proceeds and to request
participation in decisions regarding expenditures from
the proceeds. NAIT did not seek the input of NASA on
how the proceeds would be used.
NASA applied to the Court of Queen’s
Bench, claiming its share of the proceeds based on the
contribution of its members. NASA submitted that its members
had a legal and equitable right to the proceeds attributable
to the premiums paid directly by or on behalf of the NASA
members. NAIT’s position was that NAIT was the owner
of the policy in law, and remained so, and was neither
an agent nor a fiduciary. NAIT submitted that it had not
been unjustly enriched. The Court held that although NAIT
was prima facie the owner of the shares and the
proceeds, it held the proceeds on constructive trust for
NASA.
Justice Wilson found that NAIT acted as agent
for members of NASA in relation to payment of premiums.
Justice Wilson noted that “the arrangement for payment
of premiums by members, through NAIT, or their part of
the premiums for insurance means that NAIT was a conduit
for that money, and in the sense that premiums are paid
by an insured to his agent, that NAIT was an agent for
the members” (para. 72). Justice Wilson stated that
he was prepared to find that there was a deemed agency
and that the agency was sufficient to be the foundation
for the fiduciary duty claimed (para. 72).
Justice Wilson then ruled that NAIT held
a portion of the proceeds on constructive trust for NASA
(para. 74). He stated that the money “is for the benefit
of the members who paid the premiums that resulted in the
allocation of the shares on demutualization” (para.
85).
Northern Alberta Institute of Technology
Academic Staff Assn. V. Northern Alberta Institute of Technology,
[2002] A.J. No. 1013 (Q.B.)
The union was represented by Chivers Kanee
Carpenter, Lyle Kanee, lkanee@chiverslaw.com; Ritu Khullar,
rkhullar@chiverslaw.com
c. Arbitrators must examine
evidence of employer effort to accommodate
In United Nurses of Alberta, Local 115
v. Calgary Health Authority, 2002 ABQB No. 859, the
Court of Queen’s Bench quashed the award of the
arbitration board because it failed to inquire as to
the steps taken by the employer to accommodate a pregnant
employee. The grievor, a nurse, was employed as a casual
employee. The employer posted a temporary part-time staff
nurse position. The term of the position was from September
25, 2000 to June 30, 2001. The grievor applied for the
position. The grievor was expecting to go on maternity
leave in early February 2001. The information respecting
the grievor’s maternity leave was communicated to
the Nursing Manager after the competition had closed,
but before the position had been filled. The grievor
was not awarded the position.
The grievor filed a human rights complaint
alleging discrimination on the basis of gender (pregnancy).
In response to the complaint, the employer indicated that
the grievor was not hired because she did not meet the
employer’s expectation with respect to temporary positions
that the successful candidate be available for the term
of the temporary position. In a written response to the
grievance, the employer advised that the successful candidate
for the position was also pregnant, but was hired because
it was expected that she would be available for the term
of the posted position. The successful candidate commenced
maternity leave before the end-date of the term of the
position. The collective agreement provided that temporary
employees are eligible for maternity leave.
The majority of the Arbitration Board dismissed
the grievance. The Court of Queen’s Bench quashed
the award on the following basis:
On either the standard of correctness or
the standard of patent unreasonableness, the Arbitration
Board’s decision should be quashed.
The appropriate standard of review in this
case was correctness: the Board failed to engage the appropriate
legal analysis with respect to human rights law, a matter
outside its expertise.
If the Board made no actual finding of discrimination,
as the employer had argued, then this would be an error,
or a patently unreasonable decision. The Board’s statement
that the grievor failed to get the position not because
she was pregnant but because she was unavailable constitutes
circular reasoning. In Central Alberta Dairy Pool, Simpsons-Sears,
or Renaud the employer had rules regarding mandatory
availability and in each case the employee was unavailable
to work because of religious beliefs. In each case the
Supreme Court found effects-
based discrimination. Similarly, denying
the grievor the position because of her unavailability
to complete the term amounts to prima facie discrimination
on the basis of sex (pregnancy).
The Board did ultimately consider the possibility
of discrimination and went on to consider the BFOR defence.
However, the Board failed to engage the proper analysis
in relation to assessing whether the employer fulfilled
its duty to accommodate.
The Board also erred in reaching a conclusion
with respect to accommodation without any evidence. The
Board simply assumed undue hardship.
United Nurses of Alberta, Local 115 v. Calgary
Health Authority, 2002 ABQB No. 859(Q.B.)
The union was represented by Chivers Kanee
Carpenter, John Carpenter, jcarpenter@chiverslaw.com; Ritu
Khullar, rkhullar@chiverslaw.com.
d. Substitution of penalty
inappropriate in non-culpable dismissal; remedy is reinstatement
The Alberta Court of Appeal has made clear
in Alberta Union of Provincial Employees v. Lethbridge
Community College, [2002] A.J. No. 695 that where
the conduct of an employee is non-culpable, cause to dismiss
is considered to exist only if the test in Re Edith
Cavell is satisfied.
The required steps, as set out in Re Edith
Cavell Private Hospital and Hospital Employees’ Union,
Local 180 (1982), 6 L.A.C. (3d) 229 at 233 (B.C.,
Hope) are as follows:
An employer who seeks to dismiss an employee
for a non-culpable deficiency in job performance must meet
certain criteria:
The employer must define the level of job
performance required.
The employer must establish that the standard
expected was communication to the employee.
The employer must show that it gave reasonable
supervision and instruction to the employee and afforded
the employee a reasonable opportunity to meet the standard.
The employer must establish an inability
on the part of the employee to meet the requisite standard
to an extent that renders her incapable of performing the
job and that reasonable effort were made to find alternate
employment within the competence of the employee.
The employer must disclose that reasonable
warnings were given to the employee that a failure to meet
the standard could result in dismissal.
Where the employer has not followed the steps
or requirements in Re Edith Cavell, an arbitration
board should reinstate the employee. The Court held that
substitution of penalty does not usually apply to the non-culpable
context; the usual and expected remedy in such context
is reinstatement. Specifically, the Court held that s.
142(2) of the Labour Relations Code does not apply
to a situation of a non-culpable deficiency. The Court
recognized that arbitration boards have broad remedial
power, and that a board may be entitled to craft a different
solution where reinstatement will not achieve a harmonious
and meaningful resolution of an issue. However, such crafting
of different solutions should be only in exceptional circumstances,
where the viability of the employment relationship is totally
destroyed. There are very few cases of “extraordinary
circumstances” where the conduct of the employee was
non-culpable, the Court observed (para. 52).
Also of interest in this decision is the
Court’s consideration of the doctrine of election.
The arbitration board had awarded damages instead of reinstatement.
The employer forwarded a cheque, asserting that acceptance
of the money would, as a matter of law, constitute an election
by the union and the grievor which precluded judicial review.
The union and the grievor disagreed with that position.
Ultimately the parties “agreed to disagree,” and
another cheque was given to the union and grievor, which
was cashed. The Chambers Judge concluded that the doctrine
of election applied, precluding judicial review. The Court
of Appeal disagreed. It set out the test for election:
(1) A person has two or more inconsistent and mutually
exclusive rights, and (2) a person had knowledge of these
rights and unequivocally chose one over the other. The
Court concluded that the clear intention of the union and
the grievor was to pursue judicial review for a larger
award, while accepting payment of the arbitration award.
Alberta Union of Provincial Employees v.
Lethbridge Community College, [2002] A.J. No. 695 (Alta.
C.A.)
The union was represented by Brent Gawne,
firm@gbgawne.com
e. Weber put to the test:
Supreme Court to rule
In Allen v. Alberta (2001), 93 Alta.
L.R. (3d) 213 (Alta.C.A.), leave to appeal to S.C.C. granted
March 14, 2002 [2001] S.C.C.A. No. 487, the Crown had applied
to strike out an originating notice filed by a number of
former Crown employees seeking a declaration of entitlement
to severance pay. The former employees, who performed regulatory
services under the Boilers and Pressure Vessels Act,
were members of the Alberta Union of Provincial Employees
(“AUPE”). A collective agreement existed between
AUPE and the Crown governing the terms and conditions of
employment. One of the articles addressed severance pay.
The Crown had divested itself of the regulatory responsibility
under the Act and had delegated the responsibility to the
Alberta Boiler Safety Association.
The Crown had given notice to AUPE of its
intention to abolish the employees’ positions. The
Crown and AUPE
signed a letter of intent which provided
that if any employee agreed to accept employment with the
Association, the employee would be required to resign employment
with the Crown and would not be entitled to severance pay
pursuant to the collective agreement. The letter of intent
also stated that it did not form part of the collective
agreement, and if concerns arose with respect to its interpretation
or application, they shall be addressed by representatives
of the Parties and not by way of the grievance procedure.
Each of the individuals accepted employment with the Association
and signed a letter of resignation from employment with
the Crown.
Subsequently, they met and compared their
salaries and relative years of service with the severance
entitlement under the collective agreement. They determined
that they had a total cumulative severance claim in the
sum of $441,890.87. Proceedings were commenced by originating
notice requesting a declaration of entitlement to severance
pay. The Crown brought a notice of motion requesting an
order pursuant to Rule 129 of the Alberta Rules of court
striking out the action on the basis of lack of jurisdiction
in the court. The chambers judge stayed the action on the
basis that the jurisdiction to resolve the dispute lay
exclusively within the grievance procedure in the collective
agreement. The Court of Appeal, Justice Côté dissenting,
allowed the appeal.
The Court of Appeal considered Weber v.
Ontario Hydro (1995), 125 D.L.R. (4th)
483 (S.C.C.) and Young Estate v. TransAlta Utilities
Corp. (1997), 209 A.R. 89 (Alta.C.A.). The court
identified the issue as the proper application of Weber criteria
in light of the provisions of the letter of intent. The
court noted that if the individuals pursued the grievance
procedure, they would be met with a jurisdictional argument
that the grievance procedure and arbitration could not
be used to determine any interpretation or application
of the letter of intent. Such a result would leave the
claimants without a forum. The majority held that it
was not beyond doubt that the jurisdiction of the court
was ousted.
In dissent, Justice Côté held
that the claim was fundamentally based on the Master Collective
Agreement provision for severance pay. Based on the jurisprudence
including Weber v. Ontario Hydro, the collective
agreement provided the exclusive method to settle the dispute.
If the letter of intent was a collective agreement, ss.
133 and 134 of the Labour Code applied, and it must
have its own scheme to settle differences. The provision
of the letter of intent that concerns “shall be addressed
by representatives of the Parties.” According to Justice
Côté, this might not produce a settlement and
therefore did not satisfy the requirement of s. 133 that
every collective agreement shall contain a method for the
settlement of differences. Therefore s. 134 (the model
grievance and arbitration provisions) applied. Justice
Côté was of the view that a lack of recourse
for the claimants (since the time limits for filing a grievance
had passed) nonetheless did not give the courts jurisdiction.
The Supreme Court granted the Crown’s
application for leave to appeal to that court. The appeal
has not yet been scheduled for hearing.
Allen v. Alberta (2001), 93 Alta.
L.R. (3d) 213 (Alta.C.A.), leave to appeal to S.C.C. granted
March 14, 2002 [2001] S.C.C.A. No. 487
The union was represented by Brent Gawne,
firm@gbgawne.com
f. Use of employee lists
by union organizers
The conflict between the Canadian Union of
Public
Employees, Alberta Division, and the Alberta Union of Provincial
Employees has resulted in a lawsuit that may have some serious
ramifications on union organizing in Alberta.
In early January, 2002, AUPE commenced an
organizing drive of hospital employees represented by CUPE
Local 41. Almost immediately, CUPE Local 41 commenced an
organizing drive of hospital employees represented by AUPE.
Shortly after CUPE Local 41’s organizing commenced,
someone provided CUPE Local 41 with a phone and address
listing of all those employees in the bargaining unit represented
by AUPE. This was done in the grand, traditional style
of the brown envelope slipped under the door.
CUPE Local 41 of course seized the opportunity
and conducted a mailout of CUPE information to the employees
represented by AUPE. AUPE responded by suing CUPE, CUPE
Local 41, John Doe and two former employees of AUPE, one
of whom AUPE alleged was the person who provided the list
to CUPE Local 41, seeking not only recovery of the list
but substantial damages. CUPE Local 41’s response
was to admit the receipt of the employee list and the fact
it had been used to conduct one mailout and to return the
list, via counsel, to AUPE.
The Statement of Claim not only alleges breach
of the fiduciary and fidelity duties and the duty of confidence
against the former employee alleged to have provided CUPE
Local 41 with the employee list, but also sues CUPE Local
41 and other defendants for conspiracy to breach and inducement
to breach those duties and claims that the CUPE local are “trustees
of any confidential information of AUPE…”.
The CUPE made an application for summary
dismissal, which was dismissed by the Court. The grounds
for the summary dismissal application included the argument
that the matter involved union organizing and rights under
the Labour Relations Code and therefore should fall within
the exclusive jurisdiction of the Labour Relation Board.
The Court was provided with evidence that unions typically
received lists of employee names in organizing drives and
that the only use to which the employee list was put by
CUPE Local 41 was to conduct the mailout as part of the
organizing. The applicants argued that so long as the only
purpose to which those lists were put was to
pursue rights under the Labour Code, then
the jurisdiction of the Labour Board should prevail.
The Plaintiff, AUPE, is currently proceeding
with the lawsuit and the parties are scheduling Discoveries.
AUPE v. CUPE, et.al., Court of Queen’s
Bench
CUPE and the Defendants are represented by
Yessy E. Byl, yessy@worldgate.ca; AUPE is represented by
Simon Renouf, renouf@shawcable.com.
3. Labour Board
a. Union entitled to
list of employees: FIPPA not applicable
In UFCW, Local 401 v. Economic Development
Edmonton, [2002] Alta. L.R.B.R. 161 (Casey, Vice-Chair,
May 17, 2002), the Board ordered the employer to provide
the union with a list of employees in the bargaining
unit at the Shaw Conference Centre. Collective bargaining
for a first collective agreement had taken place over
15 months. The union sought the list to communicate with
employees about the status of collective bargaining.
The employer refused to provide the list without the
written consent of each employee, arguing that the provision
of the Freedom of Information and Protection of Privacy
Act (“FOIPP Act”) prohibited it from releasing
the information without consent.
Relying on its power to issue interim directives
under s. 12(2)(e) of the Code, the Board directed
the employer to provide the list. The Board found that
release of the information was permitted under a number
of different subsections of s. 40(1) of the FOIPP Act.
In UFCW, Local 401 v. Economic Development
Edmonton, [2002] Alta. L.R.B.R. 186 (Casey, Vice-Chair,
June 4, 2002), the Board directed the employer to provide
the union with an updated list of names. The Board rejected
the employer’s application for a stay pending judicial
review of the earlier decision. In Economic Development
Edmonton v. UFCW, Local 401, [2002] Alta. L.R.B.R.
193 (Q.B.), the Court of Queen’s Bench rejected
the employer’s application for a stay of the Board’s
June 4 decision pending the judicial review of the May
17 and the June 4 decision. The Court held that release
of the information would not cause the employer irreparable
harm. Further, granting the stay would cause the union
more harm that not granting it would cause to the employer.
The Court noted that the FOIPP Act permitted the employer
to disclose the employee information. As of the date
of the preparation of this update, the employer has not
proceeded with the judicial review of the Board decisions.
The union was represented by Chivers Kanee,
John Carpenter, jcarpenter@chiverslaw.com.
b. Suspension of dues
section of the Code is constitutional
A challenge under the Charter of Rights
and Freedoms to the section of the Code permitting
the Board to suspend the deduction and remittance of
union dues (formerly s. 112, now s.114) was rejected
by the Board in A.U.P.E. v. Provincial Health Authorities
of Alberta, Asbell, Chair, 3 September 2002.
In May 2000, auxiliary nursing members of
A.U.P.E. engaged in a 2-day illegal strike. The Court of
Queen’s Bench found the union and its president in
contempt of court and fined them $400,000. (The Court of
Appeal subsequently reduced the fine to $200,0000, [2002]
A.J. No. 746.) The employers applied to the Board for an
order suspending the deduction and remittance of dues for
a period of 6 months. The Labour Board held that a 2-month
suspension was warranted, but subject to consideration
of the unions’ arguments that s. 112/114 breached
s. 2(d) of the Charter (freedom of association)
and s. 11(h) of the Charter (right not to receive
double punishment).
The Board held that freedom of association
does not include constitutional protection for certain
activities of unions such as engaging in strikes contrary
to the legis
lative framework. The Board also held that s. 112/114 does not violate the Charter because
the section is directed at the union, not the individual employee. The Board
then held that if s. 112 did violate s. 2(d) of the Charter, the infringement
was justified under s. 1 of the Charter. The Board rejected the argument
of the unions that s. 112 of the Code infringes the rule against double
jeopardy (s. 11(h) of the Charter). An application for judicial review
of this decision has been filed.
AUPE was represented by Brent Gawne, firm@gbgawne.com;
, J. Robert W. Blair, bobb@worldgate.ca, appeared for HSAA;
Barrie Chivers, bchivers@chiverslaw.com, and Ritu Khullar,
rkhullar@chiverslaw.com, appeared for the Alberta Federation
of Labour; Lyle Kanee, lkanee@chiverslaw.com appeared for
UNA.
c. Closing the open period
early
The Board has recently confirmed that a union
may bargain a new collective agreement to close the open
period before it opens. CUPE had a two year collective
agreement which expired on June 30, 2004. It bargained
a replacement collective agreement with the employer which
was ratified on January 16, 2002 and had a term from January
17, 2002 to June 30, 2004. AUPE applied for certification
of the unit of auxiliary nurses represented by CUPE on
May 3, 2002 which would have been in the statutory open
period for the collective agreement if the renewal did
not close the open period.
The Board confirmed its earlier decisions
on this issue and held that the new collective agreement
was a renewal of the earlier agreement, not merely an amendment
or extension of it based upon its terms – at least
one substantial term took effect immediately. The renewal
was ratified by a large majority of the employees who voted
at ratification. The Board reiterated its earlier decisions
that allowing early renewal of a collective
agreement which effectively closes the open
period is consistent with the intent of the legislature.
AUPE has sought reconsideration of this decision.
AUPE v. CUPE Local 875 and St. Joseph’s
Auxiliary Hospital (July 2, 2002, ALRB)
Appearing for CUPE Local 875 was John Malthouse,
jmalthouse@cupe.ca and Linda Huebscher, lhuebscher@cupe.ca
is appearing on the reconsideration hearing, counsel for
AUPE was Lyle Kanee, lkanee@chiverslaw.com.
4. Arbitration
a. Board sets out process
for an employer seeking repayment of overpayment
In Capital Health Authority v. United
Nurses of Alberta, Local 85 (Hawgood Grievance),
[2002] A.G.A.A. No. 85 (Sims, Chair), a board of arbitration
has set out the steps an employer must follow if employees
are inadvertently overpaid.
Over the course of a year, the Sturgeon Hospital
inadvertently overpaid three nurses. One of them discovered
the overpayment and brought it to the employer’s
attention. The employer later proposed some repayment
options, but could not get the employees to agree to
any particular repayment plan. The employer then began
deducting from the employees’ paycheques at a pace
roughly equivalent to the pace at which the overpayment
had accumulated. The union grieved on behalf of the employees
on the basis that, among other things, the employer had
deducted sums of money from pay without consultation
or authorization, contrary to the Collective Agreement
and the Employment Standards Code.
At arbitration, the employer raised a preliminary
objection that the board had no jurisdiction to decide
the issue; the essence of the dispute was whether the Employment
Standards Code barred the deductions made, and the
Collective Agreement was silent on the question. The board
dismissed the preliminary objection, holding (based on Weber
v. Ontario Hydro, New Brunswick v. O’Leary,
and Regina Police Ass’n. v. Regina Police Commission)
that the essential character of the dispute arose expressly
or inferentially under the terms of the Collective Agreement.
The essence of the dispute was that the employees had not
received the pay they were entitled to receive under the
terms of the Collective Agreement.
On the merits of the grievance, after a careful
review of the jurisprudence, the unanimous board found
that the Employer breached the Collective Agreement by
failing to pay the grievors the wages due over the periods
when deductions were made unilaterally. The board held
that the Employer was not entitled to unilaterally deduct
alleged claims for overpayments. The board also found that
the grievors had been overpaid and the decision of the
board established the Employer’s right to recover
those sums. The damages due to the grievors were set-off
by the Employer’s entitlement.
The board set out the process involved and
legal rules that apply in circumstances of inadvertent
overpayment by an employer:
If an Employer believes an overpayment occurred
during an earlier pay period, it may approach the employee,
explain the overpayment and seek the employee’s consent
to a repayment arrangement. Consents must be in writing
before deductions can be made.
An Employer is not entitled to set-off an
unproven claim for an overpayment against current wages
without consent because of s. 12 of the Employment Standards
Code.
In the event of a difference over the validity
or amount of any overpayment the parties should attempt
to resolve the difference informally and, if an overpayment
occurred, resolve the matter by giving written consent
to a reasonable repayment arrangement.
If a genuine dispute remains unresolved,
it is to be resolved through grievance and arbitration
procedures. Such matters are not solely about the Employment
Standards legislation nor is it a matter falling solely
for resolution under the enforcement provisions of that
Act.
An employee from whom deductions are made
without consent (the situation here) may grieve the non-payment
of wages.
Disputes about overpayments can be resolved
through the grievance and arbitration process. They involve
a difference about the agreement outstanding between the
Employer and the employee concerned, even if there is no
breach of the agreement alleged.
The Employer claiming a right to set-off
may grieve and if necessary have its claim adjudicated.
An arbitration decision upholding the right to recover
the overpayment entitles the Employer to make deductions
from wages without being barred by s. 12 of the Employment
Standards Code.
The right of set-off, if valid, is not defeated
by s. 12. That section only serves to prevent Employer
self-help until adjudication, after which the proven rights
to the set-off can be exercised.
The board noted that in this particular case,
the Collective Agreement provided no mechanism for such
a grievance by the Employer, a time limit. The board held
that the Labour Relations Code provisions supplement
that deficiency. The dispute could in any event be dealt
with in the context of the Employer’s reply to the
employees’ grievance.
The union was represented by Murray Billett,
UNA mbillett@una.ab.ca.
BRITISH COLUMBIA
1. Labour News
2. Legislation/Policy Update
3. Arbitration Awards
4. Board Decisions
5. Court Decisions
1. Labour News
The provincial government is slowly continuing
to merge the Employment Standards Tribunal with the Labour
Relations Board. The Chair of the LRB, Brent Mullins, has
now been appointed the Chair of the EST. As well, other
executives of the LRB have assumed responsibilities regarding
the EST. Finally, the large cut to the LRB’s budget
is beginning to have a tangible impact on the functioning
and responsiveness of the LRB.
Unions have launched a number of important
legal challenges to various labour legislation passed by
the government over the past year, such as the government’s
gutting of collective agreements and whether the definition
of “strike” in the Labour Relations Code is
unconstitutional. Many of these challenges will be heard
over the next several months.
2. Legislation/Policy Update
The past year has brought some significant
changes to labour legislation and policy in British Columbia.
Among the newsworthy changes are the reintroduction of
mandatory representation votes and the designation of education
as an essential service. The recent appointment of a new,
full-time Chair of the BC Labour Relations Board also deserves
notice. Brent Mullin served as Vice-Chair of the Board
from 1992 to 1998, and recently practised labour, employment
and human rights law with Fasken Martineau DuMoulin in
Vancouver. Mullin’s five year term took effect January
6, 2002. He was preceded by Steve Kelleher, who was serving
on a part-time basis for a one-year temporary term.
3. Arbitration Awards
The Liberal government has continued to pass
legislation that substantially alters labour relations
in this province. In May 2002, the Liberal Government passed
Bill 42, Labour Relations Code Amendment Act, 2002.
Sections 2 to 8 of the Act came into effect July 30, 2002
and section 1 of the Act came into effect on September
1, 2002. As well, the Liberal Government has also passed
bills regarding the Workers Compensation Act and
the Employment Standards Act that effects both unionized
and non-unionized workers in this province.
Bill 42 – Labour Relations
Code Amendment Act, 2002
Bill 42, the Labour Relations Code Amendment
Act, 2002, has substantially altered the Labour
Relations Code.
Section 1 previously was a straightforward purposes section
that the Board examined in interpreting and applying the Code.
Now, section 2 imposes restrictions on the Board, arbitrators,
and employers on how they exercise their powers and duties
arising from the Code. Furthermore, the Government
has included in section 2, an obligation that the Board,
arbitrators, unions and employers must exercise their duties
in a manner that “fosters the employment of workers
in economically viable businesses.” These changes to
the purposes of the Code have the potential to change
the Board’s approach to the various substantive provisions
of the Code, to the benefit of employers and the detriment
of employees and their unions. As well, the Bill 42 amendments
open the door to unprecedented state intervention in free
collective bargaining and the internal affairs of unions
in the name of encouraging economic viability of businesses.
The Government has enacted a so-called free
speech provision that demonstrates that Government’s
desire to enter into an American style campaign previously
avoided in Canada. Previously the employer had the freedom
to make statements of reasonably held beliefs about its
business. Under the new section, employers may have more
freedom to express opinions, no matter how unreasonable,
on any matters, including matters relating to unions. Consequently,
an employer may now have much more latitude to engage in
an active campaign against a union during an organizing
drive. Furthermore, the Government is in the process of
enacting mandatory Board supervised meetings of the employees
as soon as an application for certification is received.
The Government plans to permit an employer or a union to
apply to the Board, and to pay for, this mandatory meeting
of the employees to discuss, presumably, the pros and cons
of certifying. The regulations with respect to such meetings
are expected shortly.
4. Board Decisions
Board orders new arbitration hearing years
later because of grievor’s dissociative fugue
medical condition
In this case, the grievor, who had a history
of alcohol abuse, was dismissed following an extended absence
from
work. During his shift, the grievor took
some belongings from his locker, placed his boots and jacket
in a dumpster, and left the worksite. The Employer feared
that the grievor had committed suicide, and launched an
extensive search of the worksite. Approximately one week
later, the Employer dismissed the grievor for neglect of
duty and for being absent without leave.
At arbitration, Arbitrator Kelleher upheld
the Employer’s decision to dismiss the grievor. The
Arbitrator rejected the Union’s submission that the
grievor needed to be accommodated because was suffering
from alcoholism and concluded that alcoholism was not associated
with the grievor’s decision to leave work unexpectedly.
Four years after the award was issued, the
Union came into possession of a psychological report, which
contained an opinion concerning the grievor’s psychological
condition at the time of his dismissal. During the course
of psychological treatment for an unrelated issue, a psychologist
came to the conclusion that the grievor had been suffering
from an involuntary dissociative state known as “Dissociative
Fugue” at the time of his dismissal, which would explain
his abandonment of his job. The Union applied for a s.
99 review of the Arbitrator’s decision, arguing that
in light of the newly discovered medical evidence, the
grievor’s conduct could be considered non-culpable,
thus undercutting the premise of the Arbitrator’s
award.
Applying the Foremost Foods test for
the introduction of new evidence, the Panel allowed the
Union’s application and remitted the matter back to
the Arbitrator to consider the new evidence. The Panel
concluded that the Union, the grievor and his physicians
could not have discovered the evidence any earlier than
they did, and that there previously “… was no
reason for them to be looking for another cause [of the
grievor’s behaviour] given the prevailing and therefore
masking condition of alcoholism”. On the issue of
whether a delay of four years was an unreasonable and therefore
disqualifying delay, the Panel determined that this was
a unique and exceptional case that should be remitted to
the Arbitrator, despite the passage of four years from
the date the original Award was made. The Board was careful
to state that it was “not setting a new high water
mark for the first factor in Foremost Foods”,
and that the “reasonableness of time for discovering
and presenting new evidence will continue to be measured
in days and weeks, not in months and years”.
The employer has applied for leave for reconsideration
of this decision.
CITIC B.C. Inc. and Power Consolidated (China)
Pulp Inc., BCLRB No. B82/2002
Counsel for the Union: Gina Fiorillo (fiorillo@axion.net)
Board Refines Distinction between Leafleting
and Picketing
In this case, Overwaitea, a major retail
grocery store operator in British Columbia, asked the Labour
Relations Board to restrain the Union, its members, persons
unknown and one named individual from engaging in what
it said was picketing during the Union’s leafleting
campaign at its retail stores.
The Union’s members were leafleting
those stores because they objected to Overwaitea transferring
its
warehouse business from a unionized operator to another Operator. The Union
concurrently had common employer and true employer applications before the
Labour Relations Board. Overwaitea took no objection to the contents of the
leaflets used, but objected to the conduct of those distributing the leaflets
and the use of placards and signs in addition to traditional leaflets.
The evidence before the Board ran the full “spectrum” of
possible communications with consumers. On some occasions,
union members carried signs that said “nON STRIKE”.
However, on most occasions the leafleters handed out leaflets,
wore sandwich boards or held signs that said “Please
don’t shop at Overwaitea/Save-On Foods” or similar
wording. There were also signs placed on parked cars in
the parking lot of several stores, as well as large banners
with the words “Don’t shop
at Overwaitea/Save-On Foods”.
The issue was whether, after the decisions
of the Supreme Court of Canada in K-Mart [1999]
2 5CR 1083 and Pepsi-Cola, 2002 S.C.C. 8, such
conduct was prohibited when the wording on the placards
and signs was the same as that of the leaflets being handed
out by the union members.
The Board noted that the decision of the
Supreme Court of Canada in K-Mart struck down the
definition of “picketing” in the BC Labour
Relations Code. That invalidity had been suspended
for six months, but the BC legislature had not seen fit
to enact a new definition of picketing conforming with
the Charter. Therefore, the Board found that it
was left to the Board itself to articulate what was considered “‘picketing” on
a case-by-case basis.
In determining what would be picketing in
a given context, the Board accepted that it was required
to heed the comments of the Supreme Court of Canada in Pepsi-Cola that “… as
labour speech engages the core charter value of freedom
of expression, restrictions on it should not be lightly
countenanced”. The Board also noted that it should “… take
into account the caution the Court expressed to assess
carefully the ‘signal effect’ and not to
extend it to all forms of union expression.”
The Board found that placards which carried
the same message as a leaflet would not be considered picketing.
However, the Board found that the placards which carried
the words “nON STRIKE” or similar wording would
be considered picketing because they could confuse consumers
as to whether a strike or lockout was actually occurring.
Secondly, if the leafleters walked back and
forth with placards so as to simulate a picket line, that
conduct could also be considered to be illegal picketing.
If, however, the message of the leaflet was “carried
on a stick alone”, this would not change the conduct
from lawful leafleting to illegal picketing. Thus, the
placards which carried the same message as the leaflets
being handed out by the leafleters did not amount to illegal
picketing.
The Board also considered the signs posted
on parked cars in the parking lot and a large sign left
in the parking lot. The Board found that the absence of
leafleters in the area of the signs meant that the conduct
could not be considered “attending” within the
meaning of a definition of picketing. Therefore leaving
signs on parked cars or in the parking lot could not be
considered to be illegal picketing.
The Board went further, however, and held
that even if there were union members beside the signs,
that by itself would not make the conduct illegal, as long
as access or egress to the premises was not impeded. The
Board also noted that in R v. Guignard, 2002 S.C.C.
14, the Supreme Court of Canada had recognized that the
posting of signs to convey a protest message is a form
of expression and that the restrictions on the use of signs
to certain designated places was not justifiable under
the Charter.
With respect to the manner of leafleting,
the Board noted that the number of leafleters was not so
high so as to create an “atmosphere of intimidation” such
that the character of the conduct could be considered picketing.
The Board noted that “intimidation” in the sense
used by the Court in K-Mart was something other
than mere “confrontation”.
In the end, the Board did issue an order
prohibiting “picketing” but given the Board’s
restrictive view of what constituted picketing, the union’s
members were permitted to continue
with their campaign as it had been
previously conducted.
Overwaitea Food Group -and- United Food and
Commercial Workers International Union, Local 1518, October
8. 2002, Decision BCLRB No. B322/2002
Union Counsel: Don Bobert (don@shorttco.com)
Board denies successorship application
in Private-Public Partnership arrangement
This case deals with successorship applications
in the context of contracting out parts of a business.
It arose from a previous decision of the panel dismissing
CUPE, Local 622’s application for a declaration that
the District of Maple Ridge’s arrangement with RG
Properties to build and operate a new ice arena constituted
a successorship.
In this reconsideration application, Local
622 argued, among other things, that the original panel
erred by “reformulating” its application. The
Union had characterized the District’s business as “the
operation of the [ice arena] facility”. The original
panel characterized the District’s business as the
provision of ice surface for the use of the subsidized
community user groups, and concluded it remained in that
business with its new arrangements with RG Properties.
The Reconsideration Panel rejected the Union’s argument
and found that the Board may accept or reject the applicant’s
characterization of an employer’s business in determining
whether a business or part of it has been disposed of.
The Reconsideration Panel also held a successorship
did not occur because the District remained actively involved
in the provision of the services. It did not matter that
the District dramatically altered the manner by which it
provided the services to the public. A different result
may have occurred if the District did not have a continuing
involvement in the provision of ice surface for use of
the subsidized community user groups. Finally, the Reconsideration
Panel held that the District remains in the principal business
it was in, while, in effect, contracting out ancillary
tasks, (to sell snacks and rent equipment, and the collection
of admissions and maintenance of the facility). Thus, the
Panel determined that no part of the business was transferred,
and the Union’s application was dismissed.
Corporation of the District of
Maple Ridge, BCLRB No. B37/2002 (Leave for Reconsideration
of BCLRB No. 481/2000)
Counsel for the Union: John Baigent (jbaigent@sunwave.net)
Board finds that dovetailing preferred
remedy for suc-cessorship but union under no obligation
to merge seniority lists in this manner
This case involved a section 12 complaint
that CLAC breached its duty of fair representation when,
after a successorship occurred when Northwest acquired
McRae Waste Management Ltd, it permitted the bargaining
unit to vote to endtail the McRae employees seniority list.
As a result, the endtailed employees were laid off. In
part, the Complainants relied on s.35(2) of the Labour
Relations Code as a basis for their s.12 complaint.
Following a series of reconsideration decisions
and a judicial review, the Board ultimately concluded that
CLAC did not breach its s.12 obligations by failing to
dovetail the seniority of the former McRae employees. The
Board held that s.35(2) does not transfer obligations between
unions, as seniority is fundamentally a contractual right
and not
a statutory right. The Board stated that
statutory preservation of the Complainants’ seniority
from one employer to the next in a successorship is confined
to the predecessor employer’s collective agreement.
Thus, the Complainants’ seniority was preserved by
s.35(2) after the point of successorship, but only under
the McRae collective agreement to which Northwest became
bound. That seniority did not transfer into the CLAC collective
agreement.
Moreover, the Board found that since CLAC
was not bound by the McRae collective agreement, it owed
no duty of fair representation to the Complainants. The
fact that the Operating Engineers unilaterally withdrew
from the workplace did not transfer their rights and responsibilities
under the McRae collective agreement to CLAC. Ultimately,
CLAC was not required to assume any obligations to the
employees represented by the Operating Engineers, except
on terms consistent with the CLAC collective agreement.
Although the Board recognized that the dovetailing of seniority
lists was the preferred remedy in successorships, CLAC
was under no obligation to merge the seniority lists in
this manner.
Dan Atkinson, Trevor Towell, Rob White, BCLRB
No. B202/2002
Counsel for the Complainants: Charles Gordon
(cgordon@axion.net)
Board holds that exchanges during grievance
pro-cedure, including written responses, privileged unless
falls within a noted exception
The USWA, Local 2952 applied under Section
99 for review of two arbitration awards. The issue was
whether an employer’s written response to a grievance
is admissible at arbitration. The Panel found that exchanges
during a grievance procedure generally fall within a class
of privileged communication. The privilege is not limited
to settlement proposals, and extends to any statements
which relate generally to the subject-matter of the grievance.
There is no reason to distinguish between oral and written
communications, provided they are made and delivered within
the framework of the grievance procedure.
The Panel found that there are limits or
exceptions to the general rule. Privilege will give way
where the effect of not admitting certain evidence would
deny one party a fair hearing (e.g. where the union alleges
the employer has altered the basis for discipline, or where
either party asserts the grievance has been settled). An
exception may also be made where a grievance is founded
on conduct during an earlier grievance process. Nonetheless,
in any given case, the party seeking to introduce the evidence
must show why the communication is not privileged and should
be admitted as an exception to the general rule.
Pirelli Cables & Systems Inc./Cables
et Systemes Pirelli Inc., BCLRB No. B256/2002
Counsel for Union: Casey McCabe (ecmccabe@intergate.ca)
5. Court Decisions
Court rules that union official immunity
is a principle implied in the Code:
The Union had grieved the suspension of its
member for failing to follow a direct order on the basis
that the grievor was a union official and acting on the
instructions of the Union. The Arbitrator ruled that the
limited immunity of a union official did not extend to
the situation in question and the Union took the matter
to the Board.
The Board remitted the matter back to the
arbitrator on the grounds that he made an error of law
on union official immunity. The matter was appealed and
the chambers judge quashed the decision of the Board on
the ground that the principle of union official immunity
was not a principle implied in the Code. The union
appealed the Chamber Judge’s decision.
The Court of Appeal ruled that union official
immunity is a principle that limits just and reasonable
cause. It does not depend on specific provisions of the
particular collective agreements although no doubt the
agreements form part of the context in each case. It is
linked to the Code by the explicit reference to
just and reasonable cause in section 84. Consequently it
is part of the Board’s jurisdiction mandated by the Code.
This view is confirmed by the Court of Appeal’s judgment
which held that the appropriate standard of proof for a
determination of just and reasonable cause was a matter
within the jurisdiction of the Board (Sunshine Coast
School District No. 46 v. Sunshine Coast Teachers Association (1997)).
The appeal was allowed.
Graphic Communications International Union,
Local 25-C v.
Pacific Press, a Division of Southam Inc. [2002] B.C.J. No. 1044 (BCCA)
Counsel for Union: Casey McCabe (ecmccabe@intergate.ca)
Secondary Picketing and the Pepsi-Cola decision – B.C
Courts continue to unduly restrict picketing
This decision involved an application for
an interlocutory injunction to prohibit pickets at the
plaintiff’s operation in Prince Rupert.
The plaintiff operates a grain terminal in
Prince Rupert. The GWU is certified under the Federal labour
legislation as the bargaining agent for a bargaining unit
which consists of operations employees of the plaintiff.
Vancouver has five grain terminals operated by five companies
in the Port of Vancouver, and the companies are all members
of the same organization (the “Association”).
The GWU is certified as bargaining agent for the
employees of those terminals and the Association
is the bargaining agent on behalf of the employers.
The plaintiff was a member of the Association
for many years but had withdrawn from membership, and gave
notice to the GWU to bargain a separate collective agreement.
The GWU had filed an application with the
Canadian Industrial Labour Relations Board for a declaration
that the plaintiff and the Association were one employer.
The application was dismissed and the GWU was seeking reconsideration.
At the time of this application, the GWU was locked out
of the five grain terminals in the Port of Vancouver.
This application was brought after a number
of individuals set up pickets at the plaintiff’s operations
in Prince Rupert. The individuals were handing out flyers
stating that the intention of those participating was to
shut down the flow of grain from the west coast to force
the companies back to the negotiating table.
The Court reviewed the recent decision of
the Supreme Court of Canada on third party picketing in Pepsi-Cola, and
stated that the fundamental issue was whether or not the
picketing constituted the tort of interference with contractual
relations.
The Court stated that “simply put: is
the plaintiff an independent third party, completely removed
from the disputes in Vancouver, or is there a sufficient
connection or nexus between the employers in the Port of
Vancouver and the plaintiff such that the conduct could
not be said to amount to the tort of interference with
contractual relations?”
The Court distinguished the facts in Pepsi-Cola by
finding that in the Pepsi-Cola case the pickets
were intended to try to persuade third parties not to purchase
the products of the struck employer while the case at bar
the wheat product is being shipped by the Canada Wheat
Board and no attempt is being made to prevent the plaintiff
from dealing with or accepting goods or products owned
by the five employers in Vancouver. The Court then relied
on secondary picketing cases from B.C. and found that there
was not an appropriate connection in the case at bar to
allow secondary picketing. The Court ordered the injunction.
Prince Rupert Grain Ltd. v. Grain Workers
Union, Local 333 [2002] B.C.J. No. 2129 (BCSC)
Counsel for Union: P.R. Burton (prburton@shaw.ca)
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