MANITOBA
1. Legislative Update
2. Courts
3. Labour Board
4. Arbitrations
1. Legislative Update
The 3rd Session of the 37th Manitoba
Legislature sat from November 2001 to August 2002. Normally
the House rises in late June, but we understand that the
Opposition Tories were trying to prove a point by forcing
the MLA’s to sit most of the Summer.
During the session, more than 50 Bills were dealt with by
the House, but very few related to labour and employment
issues.
The much loathed Essential Services Act, introduced
by the previous Conservative government, was not repealed
or amended. This was a disappointment to many who view the
legislation as a “ham stringer” for health care
unions in the event of job action.
Many also wanted additional amendments to The Labour
Relations Act. It has already been overhauled
once by the NDP Government of Gary Doer, since he was
elected in the Fall of 1999, but it received no attention
this session.
The two bills concerning working Manitobans that did make
it onto the Order Paper dealt with workplace health and safety.
Bill 5 amended The Workers’ Compensation Act to
create a rebuttable presumption that if a full-time firefighter
is employed for a designated minimum period, and is diagnosed
with a certain kind of cancer, the cause of the disease is
deemed to be “employment”.
Bill 27, The Safer Workplaces Act to amend The
Workplace Safety and Health Act was also passed.
It creates new duties for Employers, including better
supervision, training and ensuring work is only done
by those who are trained to do it, or closely supervised.
It also mandates implementation of written safety and health
programs in workplaces where there are 20 or more employees.
Contractors and supervisors have new duties under the Act,
including prevention of risk, and developing safe practices
for handling biological or chemical substances. Health and
safety information now has to be shared between employers,
contractors, owners and suppliers.
The workplace health and safety committee regime has also
been revised with new duties, including an enhanced role
for the co-chairs. Wages must be paid whenever employees
are participating in committee work, and there are new requirements
for reports and audits be shared with employee representatives.
Discriminatory action is now defined in The WSH Act.
Officers appointed under The Act can now investigate
complaints of discrimination, instead of the Manitoba Labour
Board. The Board will now be the reviewing body, and the
appeal process has been streamlined.
Proceeds from fines are to be used for public education.
There is new a system of administrative penalties for non-compliance
with improvement orders.
2. Courts
a. Certificate Quashed
- Members Lose Collective Agreement after a Year
After a “tie” certification vote at a Sobeys franchise
grocery store in Bird’s Hill, Manitoba (just north-east
of Winnipeg), the Manitoba Labour Board subsequently issued
a discretionary certificate.
The Board made the Order following a hearing of an unfair
labour practice complaint by UFCW 832. Inter alia,
the Board satisfied itself that the Employer had committed
an unfair labour practice, and that the true wishes of the
employees “would not” likely be ascertained from
the ballots, and issued the certificate pursuant to its powers
under section 41 of The Labour Relations Act.
Board Reasons were issued subsequently to the decision and
Order. In its reasons, the Board outlined why it found that
the Employer had an improper motive when he hand- delivered
a flyer to any employee he had a home address for during
the 48 hours preceding the vote. The Board concluded that
the actions of the Employer, in all the surrounding circumstances,
offended The Act.
The Employer filed for a review and reconsideration by the
Board. When that was unsuccessful, he filed for judicial
review. The motion was heard in May, 2002, and the judge
reserved. The main argument of the Employer was that the
flyer was protected by the freedom of speech provisions of The
Act.
In a brief 8 page decision issued at the end of September,
2002, Mr. Justice Hanssen quashed the certificate, just days
before the first collective agreement between the parties
expired.
The Queen’s Bench judge found that the Board asked
itself the wrong question, and therefore committed an error
of law on the face of the record. He cited a passage in the
Board reasons which indicated the Board had reviewed the
contents of the notice, the motivation behind it, and what
effect it “might have” on eligible voters. The
judge held that the Board should have asked what effect it “would
likely have had” on eligible voters. He went further
and commented on the contents of the notice itself, writing
that
“[i]ndeed, it is not even obvious that there was anything
contained in the notice that could be considered employer
interference.”
The judge went on to speculate that “[I]t was possible
if not probable the Board would have come to a different
decision if it had applied the correct test.” However
he quashed the certificate and did not refer the matter back
to the tribunal. The union and the Labour Board are both
appealing the decision.
Emerald Foods Ltd. v. United Food and Commercial Workers
Union et al, 2002 H.J. No. 236 (MBQB)
Counsel for Union: David Lewis (david.lewis@ufcw832.com)
b. Finding of arbitrability of LTD claim
overturned by Manitoba Q.B.
Facts: The Grievor was an employee and member of the union.
He was diagnosed with a disease, and he became disabled and
received LTD benefits pursuant to a plan provided by the
employer and administered by Great West Life Assurance company
(GWL). GWL terminated the grievor’s benefits, claiming
he was no longer disabled. The matter was grieved, and proceeded
to arbitration. The arbitrator ruled the matter was arbitrable,
but dismissed the grievance.
Issue: Was the grievance arbitrable, and if so, what is
the standard of review?
Held: The entitlement to benefits, resting as it did on
a factual issue of disability and how the term was defined
in
the plan, was not an issue of the interpretation of the
collective agreement. The particular expertise of the arbitrator
was not in play, therefore the appropriate standard of review
was correctness. An arbitrator has no jurisdiction over an
insurer. The arbitrator erred in concluding that the dispute
was one which arose out of the collective agreement. The
issue called for an interpretation of the requirements of
the LTD plan, not of the collective agreement. The provisions
of the plan were not incorporated by reference into the agreement.
New Holland Canada Ltd. v. National Automobile, Aerospace,
Transportation and General Workers’ Union of Canada,
Local 2224, 2002 M.J. No. 256 (Q.B.)
3. Labour Board
Not Enough Adjudicators at the Manitoba Labour Board:
Impact on Dates and Case Management Initiative Felt Across
Jurisdiction
It’s tough to get dates at the Manitoba Labour Board.
The problem is a lack of people to chair the hearings. In
the past, the Manitoba Labour Board had:
1 full time (staff) Chair
3 part-time (per diem) vice-chairs.
Then they moved to:
2 full time (staff) positions, chair and vice-chair
1 part-time (per diem) vice-chair.
The part-time vice chairs sit on a “per diem”,
or casual basis. They are not required to sit for a certain
number of days. Therefore the addition of a second full-time
position was a significant increase in Board resources. The
full-time vice chair position was also set up as a job share
between two of the former part-time vice chairs, so the Board
retained experienced adjudicators. The third vice chair continued
to sit on a per diem basis.
According to Board Chairperson, John Korpesho, the goal
with the two full time positions was to allocate approximately
3 days a week to hearings, and 2 days a week to writing,
case management and administrative duties.
The Board initiated a case management system. The Chair
or a vice-chair was to be assigned in the early stages of
a case to work with the parties to “fast track” a
resolution where ever possible. Potentially this could reduce
the number of hearings required.
Now, the case management project has been shelved. The Manitoba
Labour Board has been reduced to just one full-time chair
position, that of the Chairperson.
First the part-time vice chairperson resigned from the Board.
Then, both incumbents in the full-time vice chair position
resigned from the job share. These two individuals are now
sitting as part-time or “per diem” vice chairs,
but only “if and when” their arbitration schedules
allow. Although the Board has been able to recruit two other “per
diem” vice chairs, all four vice chairs have all indicated
that they do not anticipate being available more than a few
days a month.
By contrast, according to Manitoba’s Korpesho, in Saskatchewan
their Board has a full time chair, and two full time vice
chairs, but approximately 1/3 of the caseload.
A significant factor in Manitoba is the remuneration available
to a Labour Board vice chair. The “per diem” rate
is just under $600 a day. By contrast, sitting as arbitrators
in this jurisdiction, the same individuals can bill for preparation
and writing time, and charge between $1000 to $2000 for the
hearing day.
As a result, for the foreseeable future, the case management
project has been shelved. Also, the Board continues to prioritize
cases, but hearing dates are scarce, with non-certification
matters potentially being scheduled five months in the future.
The Manitoba Labour Board is responsible for matters arising
under The Labour Relations Act, but also statutes
such as The Workplace Safety and Health Act, The
Employment Standards Code, The Essential Services
Act, The Pay Equity Act, The
Public Schools Act, The Elections Act,
and The Victims’ Rights Act.
4. Arbitrations
a. Accident-prone
employee terminated for cause
The grievor was employed with the school division as head
custodian, and dismissed after an accident occurred and a
parent volunteer was severely injured because of the grievor’s
negligence. The grievor promptly reported the incident and
was forthright and direct in accepting responsibility for
the accident. This was considered a “culminating incident” because
the grievor had been injured eleven times in twelve years
of employment due to failure to follow safety procedures.
He was dismissed. The union grieved.
The employer argued that the grievor had been given ample
opportunities to rectify his performance, but he failed to
do so. They characterized the grievor as “an accident
waiting to happen”.
Held: Grievance dismissed. The grievor had been warned that
his future employment was in jeopardy. The accident took
place only three months later. Given the seriousness of the
misconduct and the gravity of the damage resulting from it,
there were prima facie grounds for discharge. Reinstating
the grievor to his previous position or demoting him to another
position presented an unreasonable risk to the employer.
St. Vital School Division No. 6 v. C.U.P.E. Local 3470 [2002]
MGAD No. 22 (Teskey)
Counsel for Union: Kathy McIlroy (kmcilory@cupe.ca)
b. Dismissal not necessary to protect
employer from unsafe employee
The grievor was dismissed for an egregious violation of
safety protocols. He had previously been disciplined for
engaging in unsafe work activities, one of which resulted
in a serious injury to himself. The company had given him
a written warning at the time, in lieu of a suspension, due
to the injury.
The grievor argued that dismissal was too severe a penalty.
The grievor was asked if he did not follow these protocols
normally, and he replied that he did not. The grievor clarified
his reply in a letter several days later.
The grievor was a 26 year employee with a 25 year accident-free
record.
Held: Terminating an employee of 26 years’ service
is a very serious matter. The grievor readily acknowledged
responsibility for the accident. He felt regret and remorse
for his actions. He inadvertenly gave a wrong answer to a
question that had bearing on the decision to dismiss him.
The objectives of the company can be accomplished by dealing
with this individual less harshly. A penalty just short of
dismissal should be imposed, being a six-month suspension
without pay. The grievor reinstated.
Westroc Inc. v. Cement, Lime, Gypsum & Allied Workers
Local D274 [2002] MGAD no. 26 (Freedman)
Counsel for Union: Garth Smorang (gsmorang@myersfirm.com)
and Jennifer Craig (jcraig@myersfirm.com)
c. Casual employee reinstated: has right
to just cause
The grievor was employed on a casual basis for the Province
of Manitoba as a Sheriff. The employer received a harassment
complaint from a fellow employee regarding grievor’s
conduct. The grievor had two previous such complaints. The
Province alleged that notwithstanding its stated reasons
for dismissing the grievor, if the grievor was reinstated,
the Province was in a position to dismiss him without notice,
because the Agreement states that (a) the Province is not
obligated to provide work to casual employees; and (b) a
casual employee can be dismissed without cause where he has
not worked for 45 days.
The Province argued that the arbitrator did not have to consider just cause.
Held: The dismissal was clearly a disciplinary action, not
an exercise of management rights pursuant to the agreement.
As such, the issue of just cause must be considered. The
Province did not have just cause to dismiss. Suspension substituted.
The Province should not be permitted to profit from its own
breach, and as such the 45-day period was ordered not to
take effect until the suspension ended. Compensation ordered
notwithstanding the fact that the province is under no obligation
to give hours to casual employees.
Manitoba v. Manitoba Government Employees’ Union [2002]
MGAD No. 23 (Spivak)
Representing the Union: Bruce Buckley (bruce.buckley@mgeu.mb.ca)
d. Senior disabled employee entitled
to remaining work on return from disability leave
The grievor alleged a breach of the Collective Agreement
regarding layoffs and recall, and requested that he be allowed
to exercise his seniority rights. The question was whether
the grievor could return to his job when he returned from
two years long-term disability. Two positions were initially
in place, but during his leave, the employer had eliminated
one position. The employer said no, and assigned him to a
lower paying job, refusing to move the junior, over-scaled
employee.
Held: “But for” the intervening disability, the
grievor would have retained his position and the junior employee
would have lost his at the time the second position was deleted.
The grievor’s absence on medical leave for two years
does not affect his ability to assert his seniority rights.
Grievor to be restored to his former position. The junior
employee is entitled to maintain his overscaled rate in whatever
position he “bumps” into.
Arctic Co-operatives Ltd. v. United Food & Commercial
Workers’ Union, Local No. 832 [2002] MGAD no. 41 (Hamilton)
Counsel for the Union: David Lewis, david.lewis@ufcw832.com
e. “Shop talk” doesn’t
warrant dismissal, but does warrant 4-month suspension
The grievor was dismissed from his position as evening custodian
at a high school for insubordination and unacceptable behaviour.
The grievor was asked to contact the custodial supervisor
regarding his start time for a shift. In response, he made
a highly inappropriate and insubordinate comment. The employer
relied on a prior written warning to the grievor addressing
the same type of behaviour, as well as other events occurring
at about the same time.
The grievor had ten years’ service. The union’s
position was that this was ‘shop talk’, i.e. a
private conversation among co-workers. The only previous
disciplinary notation was a written warning, and he was promoted
6 months subsequent to that.
Held: The employer had cause to discipline for disparaging,
intemperate and insubordinate comments and for making inappropriate
comments on another occasion. However, far more is required
to justify dismissal.
Suspension of four months’ pay without compensation substituted.
The employer’s nominee, dissenting, believed that the
individuals involved in the incidents cannot reasonably be
expected to work with the grievor any longer, which should
in itself be just cause for termination. Furthermore, the
grievor’s conduct at the hearing was disrespectful to
his former co-workers, and his testimony with respect to
his attempts to mitigate and his own family situation strained
his credibility.
Assiniboine South School Division No. 30 v. CUPE, Local
3469
2002 MGAD no. 49 (Hamilton, Buckley, Parkinson dissenting)
Counsel for the Union: Kathleen McIlroy (kmcilroy@cupe.ca)
f. “Culminating incident” and
KVP tests reviewed and applied
The chief steward, who had also been active in the organizing
drive, was dismissed for numerous alleged infractions, including:
advising employees to spend a full 15 minutes of coffee
break time in the lunchroom, resulting in their being late
returning to their work stations;
placing written instructions on a posting for mandatory
overtime that overtime was not mandatory; and
throwing ice at an employee’s face, in violation of
a well-known and published rule prohibiting horseplay, where
the prescribed penalty is dismissal.
The grievor denied the first and second allegations. And,
while the grievor admitted he tossed snow at an employee’s
shoulder to get the coworker’s attention in a noisy
room, he denied that he threw ice at the coworker’s
face. The Union disputed that there was a well known policy
that mandated automatic termination for horseplay.
The Union argued successfully that the alleged infractions
other than the ice throwing incident were not brought to
the grievor’s attention at the time of their occurrence.
The company cannot create a record for the first time when
it dismisses an employee for a “final” or culminating
incident. The ice incident in and of itself is not grounds
for dismissal. The company admitted that no one spoke to
the grievor about the alleged overtime or coffee break issues
prior to the termination meeting.
Held: The “culminating incident” doctrine is premised
on the condition that there is a ‘record’ consisting
of prior discipline that had been formally recorded and made
known to the employee, and which was either not grieved,
or was grieved and upheld. “It is not the task of an
arbitrator to make a record for the Employer based on prior
events, complaints or problems which the Employer let slip
by at the time.” These events cannot be considered as
basis for discharge.
The KVP test was considered in regard to the company’s
policy regarding horseplay, and the arbitrator was not satisfied
that the policy was brought to the attention of the employees,
enforced consistently nor was he satisfied that the policy
usurped the arbitrator’s ultimate jurisdiction to determine
whether there was just cause for discharge. There was no
just cause in this situation. The employee was reinstated,
but subject to a fifteen day suspension without pay.
Granny’s Poultry Co-operative Ltd. v. UFCW, Local 832,
2002 mgad No. 40 (Hamilton)
Counsel for the Union: Anne Gregory, anne.gregory@ufcw832.com
NEW BRUNSWICK
Secondary picketing remains illegal in New Brunswick despite
the decision of the Supreme Court of Canada in Retail,
Wholesale and Department Store Union, Local 558 v. Pepsi-Cola
Canada Beverage (West) Ltd., [2002] S.C.J. No. 7. That
case eliminated the distinction between primary and secondary
picketing at common law and found all picketing to be legal per
se, absent tortious or criminal activity. But the Court
recognized the right of legislatures to control secondary
picketing by statute, subject, of course, to Charter rights,
in particular, freedom of expression.
It didn’t take long for a New Brunswick judge to walk
through that open door. Justice LaVigne heard arguments on
January 17, 2002 (pre-Pepsi), February 4 and 28, 2002
(post-Pepsi) in a case where the constitutionality
of a legislated limit on secondary picketing was put squarely
before the Court (Fraser Papers Inc. (Canada), v. Industrial
Wood & Allied Workers of Canada, [2002] N.B.J. No.
173).
In Fraser Papers, the IWA, was engaged in a legal
strike at Norbord Industries in Juniper, New Brunswick. Striking
members of the Union set up a picket line on December 21,
2001 at Fraser Papers in Plaster Rock. Fraser wasn’t
involved in the strike, but both Fraser Papers and Norbord
are subsidiaries of the same parent company. Members of the
UBCJA Local 2450 employed at Fraser Papers refused, or were
unable, to cross the picket line, resulting in a five-hour
mill shut down and a claimed revenue loss of $17,000. Fraser
Papers sought an injunction in the New Brunswick Court of
Queen’s Bench,
relying on the prohibition against secondary picketing
in Section 104 of the Industrial Relations Act of New Brunswick.
The Union argued the picketing was not secondary picketing
at all because of the corporate relationship between Norbord
and Fraser. Justice LaVigne rejected that argument, finding
that Fraser Papers was not involved in the dispute between
Norbord and the IWA.
On the issue of the constitutionality of s.104, Justice
LaVigne relied on the reasons of the Supreme Court of Canada
in Allsco Building Products Ltd. v. U.F.C.W. Local 1288P,
[1999] 2 S.C.R. 1136 and held that the statutory prohibition
against secondary picketing in New Brunswick was constitutional
as it only prohibited forms of expression that were coercive,
intimidating, threatening or intended to cause undue influence.
Peaceful leafleting was still permissible. Section 104 was
directed against “conventional picketing”.
Justice LaVigne easily distinguished the Pepsi decision.
She found Pepsi did not vary the law in New Brunswick
because the Supreme Court had carefully reserved the right
of legislatures to prohibit secondary picketing.
This is the first case in New Brunswick to test the constitutionality
of s. 104 of The Industrial Relations Act since
the decision in Pepsi Cola. It suggests that whatever
the state of the common law, legislative controls on secondary
picketing will continue to be upheld provided they are applied
against conventional picketing activities, rather than “peaceful
leafleting”
Fraser Papers Inc. (Canada), v. Industrial Wood & Allied
Workers of Canada, [2002] N.B.J. No. 173
Counsel for IWA: David Brown (bms@nbnet.nb.ca)
NEWFOUNDLAND
The Newfoundland and Labrador Court of Appeal has delivered
what should be the final judgment in the long-running, legal
saga that began when Richard Cashin led Newfoundland fishers
and fish plant workers out of the UFCW and into the CAW.
In 1987, Cashin was President of Local 1252 of the UFCW.
He and some members of his Executive became dissatisfied
with the UFCW and decided to join the CAW. At the time, Local
1252 had about 25,000 members in Newfoundland, Prince Edward
Island and Nova Scotia. Before resigning from Local 1252,
Cashin and his Executive transferred the assets of the Local,
about $1,700,000, to a fund set up for the benefit of Newfoundland
fishers and their families. They also took the membership
lists of Local 1252.
The UFCW sued Cashin and Earl McCurdy, Secretary-Treasurer
of the Local, for breach of contract and breach of their
fiduciary duties to Local 1252. The UFCW also sued the newly
created Fishermen, Food and Allied Workers Union. Cashin
and the other defendants counter-claimed.
The final disposition at trial was delayed by a number of
interlocutory proceedings and preliminary rulings. The final
trial court judgment was released in 1996. Cashin and McCurdy
were found to have breached the duties they owed Local 1252
as employees and as fiduciaries. However, the Court found
their fiduciary duties were extinguished by their resignations.
They were ordered to pay $40,000 in damages. The Fishermen,
Food and Allied Workers Union was ordered to pay Local 1252
$38,000 in general damages. The counter-claims were dismissed.
The parties took issue with all major findings at trial
and the case moved to the Newfoundland and Labrador Court
of Appeal. The Appeal decision was released on August 30,
2002: 2002 NFCA 48. The Court dismissed all appeals and cross
appeals.
The Appeal Court observed that this had become the longest
civil proceeding in the history of Newfoundland. The Court
found the trial judge had thoroughly dealt with all matters
before him and had made no errors of law. The Court deferred
to his findings of fact. It noted that one of the central
issues raised by the defendants, the status of Local 1252
to bring the action, had been conclusively answered by the
Supreme Court of Canada in its decision in Berry v. Pulley (2002),
SCC 40.
Neither side has sought leave to appeal to the Supreme Court
of Canada.
Counsel for UFCW – Kevin Stamp – kstamp@mwhslaw.nf.ca
Counsel for FFAWU - Randell Earle – rearle@odeaearle.nf.ca
NOVA SCOTIA
IBEW engaged in tortious conduct by refusing to refer
members to job where they would have to join another union
A case we talked about in the last issue of the Newsletter
has been decided by the Nova Scotia Court of Appeal: Fern
Tardif and IBEW, Local 625 v. Halifax Shipyard et al.,
(2002), NSCA 56.
The case concerned the decision of a local of the IBEW to
refuse to refer its members to work on an oil rig construction
project. The shipyard where the rig was being completed decided
to hire the electricians it needed directly rather than subcontract
the electrical work to unionized contractors. Shipyard employees,
including the electricians, were members of the Marine Workers
Union.
When the IBEW told its members it was not clearing them
to work on the project, the Shipyard and the Marine Workers
obtained an injunction against Local 625 and its business
manager. The trial judge found the respondents had, prima
facie, committed various forms of tortious interference
with contractual and economic relations.
That decision was appealed to the Nova Scotia Court of Appeal.
In a judgment delivered on April 22, 2002, the Court of Appeal
dismissed the injunctions that had been granted in favour
of the Marine Workers and three individual members of Local
625, but upheld the injunction in favour of the Shipyard.
The Court of Appeal found that the trial judge was correct
when he concluded that on a prima facie basis, the
appellants had committed the tort of indirect interference
in the contractual relations between the Shipyard and the
oil rig. That finding rested on the determination that by
refusing to clear members to work on a project where they
would be required to join another union, Local 625 had breached The
Trade Union Act prohibitions against trying to stop
someone from joining a trade union.
The respondents, Fern Tardif and the IBEW, Local 625, have
sought leave to appeal this decision to the Supreme Court
of Canada.
Fern Tardif and IBEW, Local 625 v. Halifax Shipyard et al.,
(2002), NSCA 56.
Counsel for IBEW: Ron Pink (rpink@labour-law.com), Gordon
Forsyth (gforsyth@labour-law.com)
Counsel for the Marine Workers: Ron Pizzo (rpizzo@apmlawyers.com)
Court of Appeal confirms CLAC not a “construction
trade union”
The Nova Scotia Court of Appeal has refused to disturb a
Labour Relations Board decision barring the Christian Labour
Association from being certified in the construction industry
in Nova Scotia: CLAC, Local 154 v. Nova Scotia Labour
Relations Board, [2002] N.S.C.A. 73, May 27, 2002, N.S.C.A.
In April, 2000, CLAC applied to the Construction Industry
Panel of the Labour Relations Board of Nova Scotia to represent
bargaining units of labourers, operating engineers, and all
employees of Ledcor Inc. The Construction Industry Panel
determined that CLAC was not a “construction trade union” as
defined by Section 92 of The Trade Union Act of
Nova Scotia. The Panel held that because CLAC had never represented
employees or negotiated a collective agreement on behalf
of construction employees in Nova Scotia before, CLAC was
not a construction trade union and therefore lacked status
to file an application for certification to represent employees
in the construction industry in Nova Scotia. CLAC applied
to the Nova Scotia Supreme Court for an application in the
nature of certiorari to quash the decision of the
Construction Industry Panel. The Nova Scotia Supreme Court
upheld the decision of the Construction Industry Panel. CLAC
appealed to the Nova Scotia Court of Appeal.
By an oral judgment on May 22, 2002, the Nova Scotia Court
of Appeal dismissed CLAC’s appeal and affirmed the ruling
of the Construction Industry Panel. The effect of the ruling
of the Nova Scotia Court of Appeal means that, in Nova Scotia,
the only unions permitted to represent construction employees
are the 14 building trades unions originally recognized in
the 1976 accreditation order.
CLAC, Local 154 v. Nova Scotia Labour Relations Board, [2002]
N.S.C.A. 73, May 27, 2002, N.S.C.A.
Counsel for the Intervenor, Mainland Building Trades: Ron
Pink (rpink@labour-law.com), Gordon Forsyth (gforsyth@labour-law.com)
Counsel for CLAC: Scott Sterns (scott@jameisonsterns.com)
Labour Board Chair and Vice-Chair not compellable on
questions about private arbitration practice
The Nova Supreme Court has refused to allow the applicant
in a judicial review proceeding to compel testimony from
the Chair and Vice-Chair of the Labour Relations Board: Courtesy
Chrysler v. Nova Scotia Labour Relations Board, [N.S.J.
No. 592], December 5, 2001, written reasons May 14, 2002.
The case concerned an allegation that a reasonable apprehension
of bias arose because the Vice-Chair heading a panel of the
Board also obtained income as a grievance arbitrator. In
a decision dated September 5, 2001, the Nova Scotia Labour
Relations Board found that Courtesy Chrysler, a car dealership
in Halifax, was guilty of an unfair labour practice when
it failed to bargain in good faith with the International
Association of Machinists and Aerospace Workers, Local 1763.
The employer filed an application in the nature of certiorari to
quash the decision of the Board. Pursuant to the application,
the employer served notices of examination for discovery
on the Chair and Vice-Chairs of the Labour Relations Board
to obtain evidence in support of one of the grounds of judicial
review, namely, that a reasonable apprehension of bias was
created because the Vice-Chair of the Board also acted as
a consensual arbitrator in labour disputes involving other
trade unions represented by the same law firm that had appeared
for the Union before the Board. The employer alleged that
the Board Chair may appear to show favouritism to the Union
clients of the law firm in Board matters so as to attract
future appointments as a consensual arbitrator.
The Union and the Labour Relations Board filed
an application for an order striking out the notices of
examination. The issue was whether the Chair and Vice-Chairs of the Labour
Relations Board were compellable
witnesses in the judicial review proceeding with respect
to their outside activities as consensual arbitrators of
labour disputes.
The Nova Scotia Supreme Court allowed the application to
strike the notices of examination because The Trade
Union Act provided statutory immunity in favour
of the Labour Relations Board Chairs. Questions related to
the Chairs’ outside activities would inevitably cross
over to the possible impact of such outside activities on
their decision making as Board members. This would violate
their statutory immunity.
Courtesy Chrysler v. Nova Scotia Labour Relations Board, [N.S.J.
No. 592], December 5, 2001, written reasons May 14, 2002.
Counsel for IAM Local 1763: Gordon Forsyth
(gforsyth@labour-law.com
NORTHWEST TERRITORIES
CIRB upholds pre-certification collection of membership
dues by employer
The complainant, Balmer, alleged that the employer and the
association both violated section 94 (1) (a) and (b) of the Canada
Labour Code by putting in place the collection of membership
dues through payroll deductions before the association received
certification. The CIRB expressed concern at this practice,
but found there was no violation of section 94. The Board
looked at the problem under section 25 as well, and came
to the same conclusion.
A little background is necessary.
The employer operates a diamond mine 300 kilometres north
of Yellowknife. Except for several weeks in winter when the
ice road is in operation, access to the plant is by air.
The workers live in camp on a two week in/two week off rotation
with 12 hour work days. The work force is predominantly aboriginal.
Because aboriginals were seen as not favouring unions, a
group of employees who wanted to negotiate better terms of
employment formed an employees’ association to bargain
with the employer.
The CAW had first looked at organizing the work force, but
decided not to proceed. After this, in 1999, the association
was incorporated. By 2000, the association and the USWA were
both involved in organizing drives. The USWA withdrew. The
association filed an application for certification.
The complainant had been a supporter of the association
at one time, but stopped his support in 2000 and along with
some other workers, he decided to solicit other unions. Ultimately
he decided to support PSAC. In the spring of 2001, PSAC began
an organizing a drive at the mine.
Tight finances led the association to
ask the employer to deduct membership dues from pay cheques.
The employer agreed. On the application for certification,
the Board paid particular attention to this unusual arrangement.
The Board concluded that the bargaining unit the association
proposed and the employer saw as acceptable was appropriate,
but the Board decided that in the circumstances a representation
vote should be held. Voting took place in May, 2001. The
Board ordered that the ballots be sealed until Balmer’s
complaint could be heard.
The complainant sought a declaration that
the employer and the association had violated the Code and
he requested that the certification application be dismissed.
As an alternative, he asked for a second representation vote.
The complainant argued that the arrangement for deduction
of dues interfered with the formation and
administration of the association because collecting membership fees assisted
the association with its organiz
ing campaign. The association used the membership
information later to support its certification application. The complainant
further argued that the free services the employer provided in collecting dues
amounted to financial support. In the complainant’s submission, there
did not have to be an anti-union animus or intent to interfere. Allowing an
employee to be free of employer influence, no matter how such influence came
about, was the object of the Code.
The complainant argued that the association had colluded
with the employer. By providing the names of members, the
association acted on the employer’s behalf and violated
the Code.
The employer argued that it took a hands-off approach in
its dealings with the association and the other unions. The
employer had reservations about assisting with collection
of dues, but went along with the exercise because the association
wanted this and needed the money to get off the ground.
The association argued that there was nothing wrong with
the procedure because the members did not object. The association
supported the employer in arguing that the two were at arms-length
from each other. While the deduction of dues might not have
reflected the best judgment on how to collect dues, there
was no harm done to anyone. The association and the employer
both urged the Board to understand the complaint as a plank
in PSAC’s efforts to organize the workers.
The Board’s analysis turns largely on findings of fact.
The Board found that the employer did not have a hand in
creating the association. Nor did the employer treat the
association differently from any other union. The Board concluded
that the deductions were not a “participation or interference” in
collective bargaining in the sense that the employer had
not telegraphed in any way a favouring of the association
that would tell workers they should join.
The Board found no evidence that employees felt they were
interfered with. The Board would not infer that employees
recognized any irregularity, or interpreted the situation
as collusion.
The Board then turned to the problem it saw as much more
serious. Providing a membership list to the employer destroys
the confidentiality that is essential to a safe collective
bargaining regime. At paragraph 112, the Board said:
The confidentiality of membership evidence is essential
to stable labour relations, and any breach of that confidentiality
requires a thorough examination, reading liberally the Code’s
prohibition against interference to insure protection of
this right.
On the second branch of the complaint, that the employer
contributed financially to the association, the Board concluded
that the collection procedure was a cooperative effort between
the two parties that was within the limits of appropriate
relations.
On the facts found, the Board concluded there was no employer
domination that contravened section 25.
Although the Board dismissed the complaint, the Board’s
discomfort is evident. At pages 42 and 43, under the heading “Disapproval
of Method Employed by Association”, the Board goes into
this in some detail. The Board’s sentiments can be seen
in the following passage in paragraph 139:
The Board, however, wishes to take this opportunity to stress
that allowing the employer both access to confidential membership
information and the opportunity to take part, in any manner,
in the organization and certification process can indicate
wrongful
conduct. The Board will always examine with heightened scrutiny and suspicion
any situation in which the employer becomes involved in the certification process.
Had the Board found a violation, it seems the remedy would
have been innocuous. Once again, the facts are important.
Because the employees were not bothered by the practice,
and the representation vote had been held already, there
was no remedial purpose that could be achieved. An opportunity
for the employees to choose the bargaining agent of their
choice had been provided, and that in the Board’s view
was all that mattered.
Chris Buchanan appeared for the complainant, Kim G. Thorne
appeared for the employer and Paul N. K. Smith appeared for
the association.
Gerry Balmer v. BHP Billiton Diamonds Inc. and BHP Employees
Association
CIRB # 192, September 27, 2002.
Judge rejects employee’s claim for layoff package
In June 1997, the defendant’s Department of Health
began a re-organization that went into effect the following
September. The plaintiff held a senior position in the department.
He received notice that his position would be eliminated.
Almost immediately, functions began going to others who would
take on the parts of his position that would remain.
The defendant had a layoff policy which provided for 3 month’s
notice to an employee who would be laid off. The options
available to the employee included a severance payout of
two weeks’ pay for every year of service. The plaintiff
had nine years of service as a senior health administrator
with the defendant, and a long career in health prior to
that.
The policy included a procedure for identifying reasonable
alternative job opportunities within the government. If nothing
was available, the layoff notice would issue.
The department discussed some alternatives with the plaintiff,
but nothing appropriate to his position and future career
was available. About a week before the new
organization would take effect, the deputy minister met with the plaintiff
to look at a two year secondment into a position with another agency. The job
was not comparable to the plaintiff’s position and at the end of the two
years he would be laid off.
The plaintiff understood this option would allow him to
access the layoff benefits anytime over the two years if
he chose to leave. He went to work at the agency office.
When he received the secondment agreement some six weeks
later, he sought legal advice. He then advised the department
that he wanted the secondment agreement to state that he
could access the layoff benefit at any time.
While this was going on, the plaintiff was looking for a
new position in the south. As events unfolded, he received
an offer at about the same time that he communicated his
position to the department on the secondment agreement. He
accepted an offer and he gave the department written notice
that he would be leaving. He asked for his layoff package.
The deputy minister was not happy. He thought he had a two-year
deal with the plaintiff, which in his mind he had gone to
some lengths to arrange. He told the plaintiff the agency
position was a reasonable alternative. He was not willing
to let the plaintiff have the severance package. As he had
not issued a layoff notice, the plaintiff was out of luck.
Once the dispute crystalized, the department added another
element to the picture. The department demanded that the
plaintiff submit a resignation. If the plaintiff did this,
he would get the severance benefit for resignations
worth one quarter of the layoff package. If he would not
do this, the department would record him as having abandoned
his position.
The plaintiff saw this as an attempt to force him to give
up his rights. He did not submit to it. The deputy minister
issued the notice of abandonment.
The plaintiff sued. Against the government, he claimed the
layoff benefits as damages for breach of contract. The plaintiff
believed he had an agreement protecting his access to the
layoff benefit under the secondment. He sued the deputy minister
for interfering with his contractual rights.
The department denied any agreement on access to the layoff
package. Because there was no agreement, the plaintiff could
only claim damages for wrongful dismissal. He had mitigated
these by finding a new job. Because he abandoned his position,
he lost out on the resignation benefit too.
In their defence, the defendants made a notable admission.
They admitted that the plaintiff would have been entitled
to the layoff package on September 1, if only he had asked
for it.
Justice J. Z Vertes dismissed the plaintiff’s action.
He rejected the notion that the June notice of the re-organization
triggered the layoff policy. In his view, the department
had been endeavouring to find a suitable alternative to a
valuable senior employee. The judge found there was no agreement
reached on the terms of the secondment. From there, the judge
found that the plaintiff simply continued as an employee.
Because the department never issued a layoff notice, he was
not entitled to the benefits. The judge found in favour of
the defendants on the abandonment issue as well.
The plaintiff put emphasis on the department’s delay
in presenting the secondment agreement to him. The plaintiff
argued that the implied term of good faith and fair dealing
in a contract of employment set out in Wallace v. United
Grain Growers required the employer to be clear with
the plaintiff about his choices before the re-organization
date came and went. The plaintiff could not make a fully
informed decision until he had the agreement and an opportunity
to get some advice on his situation. The judge distinguished Wallace,
saying it applied to wrongful dismissal cases and that was
not what had happened here. As to the department’s delay
in presenting the agreement, the judge was content to say
he could not understand why this took so long, and leave
it at that.
The judge seemed more troubled by the admission in the pleadings.
The judge pressed the defendant’s counsel
for submissions on how he should deal with this. Counsel
kept saying the admission meant what it said. The judge wanted
to know what he could do. Eventually, the lawyer said it
shouldn’t matter because the plaintiff pre-empted the
government from doing anything when he took another job.
The judge accepted this.
Thus, a plaintiff who was entitled to a layoff benefit when
his job was eliminated, if he had only asked for it, lost
the benefit because several months later he pre-empted the
department from finding him another position when he advised
he would be leaving.
An appeal is under consideration.
Hatlevik v. Government of the Northwest Territories
Counsel for the plaintiff: Austin Marshall (amarshall@marshall.yk.com)
and James Mahon.
Counsel for the government: Sheldon Toner and Brad Patzer.
ONTARIO
A. CASES
1. Security Order Must be Disclosed,
on Terms
An employee of Ontario Power Generation (“OPG”)
at the Darlington Nuclear Power Plant was discharged because
he had been denied security clearance in accordance with
the security policy of OPG that was in place in the Fall
of 2001. His grievance was referred to the Ontario Labour
Relations Board (the “Board” or the “OLRB”)
under section 133 of Ontario’s Labour Relations Act (“The
Act”). One of the issues before the Board was
the relationship between OPG’s security policy and a
new Security Order issued by the Canadian Nuclear Safety
Commission in October 2001. The union sought disclosure of
the Security Order. OPG refused on the basis that it was
prevented from making the disclosure by reason of The
Security of Information Act and The Nuclear
Safety and Control Act. The Board was satisfied that
section 21(1) of the General Nuclear Safety and Control Regulations
permitted OPG to disclose the information when “legally
required to do so”. The Board directed production of
the Security Order to union counsel, but prohibited counsel
from showing the Security Order to any
person and from making any copies. It further directed counsel
to return the copy of the Security Order to OPG at the conclusion
of each day of hearing.
Universal Workers Union, LIUNA Local 183 v. Ontario
Power Generation Inc, unreported OLRB
Decision dated September 24, 2002 (Harry Freedman, Vice-Chair)
Counsel: Mark J. Lewis (General Counsel LIUNA Local 183
(local183@sympatico.ca) for the applicant
2. OLRB Grants Substantive Interim Relief
The OLRB has granted substantive interim relief under The
Statutory Powers Procedure Act (“SPPA”)
for the first time since the interim order provisions
of The Act were amended in 1998.
In OPSEU v. The Crown in Right of Ontario (Board
No. 0107-02-OH), the OLRB was seized of a reprisal complaint
under The Occupational Health and Safety Act (“OHSA”)
during the public service strike. The union alleged that
the employer had violated the OHSA by failing
to conduct a stage 1 investigation following a work refusal
and by failing to pay the refusing workers pending completion
of that investigation. The employer asserted that it had
no knowledge that the workers’ refusal, had a health
and safety rationale, and it denied that the failure to pay
wages was an unlawful reprisal.
On the basis of the pleadings and the representations of
counsel, and pursuant to section 16.1 of the SPPA,
the OLRB directed the employer to meet with the refusing
workers and conduct the investigation required under the OHSA.
The Board was also satisfied that the refusing workers had
a prima facie entitlement to be paid, at least as
of the date that the OHSA application was filed. It ordered
the employer to pay all wages lost between the application
filing date and the date of the stage 1 investigation, provided
the workers authorized the employer to recover the payments
should the Board later determine that they were not entitled
to be paid.
The Board had never before made an interim order requiring
the payment of lost wages.
Prior to the 1998 amendments to The Act, the
OLRB issued dozens of substantive interim orders, including
orders reinstating discharged employees, restraining lay-offs,
and granting unions interim exclusive bargaining agency status.
Those orders usually issued very quickly in response to a
variety of labour relations problems. The amended Act now
limits the OLRB to making interim orders regarding procedural
matters only and the substantive interim order provisions
of the SPPA do not apply. Nevertheless, as
this decision demonstrates, the OLRB continues to have the
power to make substantive interim orders in cases under the
various other statutes that it administers, including the OHSA, The
Employment Standards Act, and The Public Sector
Labour Relations Transition Act. It remains to be
seen whether the Board has the appetite to exercise its interim
order jurisdiction in other cases when invited to do so.
OPSEU v. The Crown in Right of Ontario, [2002]
O.L.R.D. No. 1338 (Decision datedApril 30, 2002) Harry Freedman,
Vice Chair
Counsel: Ronald Davis (rdavis@koskieminsky.com) for the
Applicants
3. Accommodation Duty Not Breached
in Terminations for Refusal to Work Sabbath
Two employees working for Ford became members of the Worldwide
Church of God. The tenets of their religion prohibited them
from working on the Sabbath, which is sunset Friday until
sunset on Saturday. At the time they were employed on alternate
two weeks days/two weeks afternoons. As such, this shift
schedule included work on Friday afternoons. The employees
suggested several ways to have the Friday afternoon shifts
covered but none was acceptable to the employer for a variety
of reasons. Moreover, the union (the Canadian Auto Workers)
took the position that any accommodation could not override
seniority insofar as it related to shift preference, which
was based on seniority. In this regard, the two employees
did not have enough seniority to warrant such a request.
The employees request for accommodation was denied. The
employees refused to work Friday afternoons. Progressive
discipline was applied and eventually both employees were
terminated. The employees filed a complainant pursuant to
Ontario’s Human Rights Code alleging they
were not accommodated as required, to the point of undue
hardship. The hearings lasted 71 days and took 5 years to
complete. The Board of Inquiry held that the Company did
what it could in the circumstances and that no further duty
was owed. This decision was appealed to Divisional Court.
The Divisional Court (of the Ontario Superior Court) split
2-1, on the question of whether Ford Motor Company could
have accommodated workers who refused to work on the Sabbath.
The majority held that even though there was a prima facie case
made out, Ford could not have accommodated the complainants
without undue hardship based on the impact of cost, safety,
quality and the detrimental effect on morale.
The majority also held that the Union had an obligation
to all of its members and as such had not failed in its duty
to the complainants by not advocating for accommodation in
this case. In this regard the Court said, “I find that
the Union’s unwillingness to advocate for accommodations
which significantly prejudiced other workers was not unreasonable.”
The Ontario Human Rights Commission has served Notice of
Motion for leave to appeal.
Ontario Human Rights Commission v. Ford Motor Co.
and CAW, Local 707 [2002] O.J. No. 3688 Ontario
Superior Court of Justice (Divisional Court), Judgment:
September 19, 2002.
Counsel: Steven Barrett (stevenbarrett@sgmlaw.com) and Vanessa
Payne (vanessapayne@sgmlaw.com) for the respondent CAW Local
707.
4. Anti-American Comments Warrant Discipline
An employee made anti-American comments in the presence
of employees of a customer after hearing the news of the
September 11th terrorist attack on the World Trade
Centre. The employee stated that “the Americans got
what they deserved” and that “more of them should
have been [killed]”.
The OLRB held that the comments amounted to a “statement
of hatred against a group on the basis of their nationality
or country of origin. That sort of statement is inappropriate
in the workplace at any time…” Nevertheless, it
was held that the employee should not have been dismissed.
While the comments were grounds for discipline, the Board
stated, they did not warrant dismissal. The Board found that
there was no lasting or substantive damage to the employer’s
reputation as a result of the comments. Moreover, while the
events of September 11th had a devastating impact
on most people, those events in and of themselves should
not be used “to measure the employer’s conduct
against” as a contextual justification for the termination.
International Union of Operating Engineers, Local
793 v. All Canada Crane Rental Corporation [2002]
O.L.R.D. No. 2740 (OLRB) (Cummings), August 19, 2002
Counsel: Paul Cavalluzzo (pcavalluzzo@cavalluzzo.com), for
the applicant.
5. Labour Board Revisits Deferral to
Arbitration Policy
The Board has re-visited its deferral to arbitration policy
and arrived at a (perhaps) surprising conclusion. Notwithstanding
s. 114 of The Labour Relations Act (which provides
that the Board has exclusive jurisdiction to exercise the
powers conferred on it under The Act) the Board,
in this “who is the employer” case, announced that
it “will defer to the parties’ grievance arbitration
procedure unless there are compelling reasons to do otherwise”.
The Board should only assume jurisdiction, wrote the Alternate
Chair, where “there is some characteristic to the problem,
some over-riding public policy or remedial opportunity, that
makes the Board more appropriate than resort to the private
dispute resolution processes the parties have committed to
under their collective agreement.” The Board’s
approach seems motivated more by its current level of understaffing
rather than by any discernable labour relations policy considerations.
In this case, the Board declined to hear the dispute as presented
by the union because, in its view, “the Board should
guard its resources and where there is an appropriate opportunity
to defer to the arbitration procedure, should do so.”
Public Health Sciences Corporation v. CUPE Local 794
et al., OLRB decision dated October 15, 2002
(Cummings)
6. Replacement Workers’ Votes Don’t
Count in Termination Application
The Labour Board issued a landmark decision on December
19, 2002, in a termination application involving replacement
workers. The Union challenged whether ballots cast by replacement
workers should count in determining an application to terminate
the bargaining rights of the Union. The bottom line decision
of the Board says “no.”
The Employer is an American owned for-profit residential
health care provider. Its employees voted to become unionized
in September 2001. Since April 2002 the IWA has been on strike
against ResCare’s Niagara-on-the-Lake operations to
obtain a first collective agreement.
In October employees who continued to work despite the strike,
as well as replacement workers hired by ResCare, brought
an application to terminate the Union’s bargaining rights.
A secret ballot indicated that the majority of the strikers
still supported the Union, but that the replacement workers
wanted to get rid of the Union. The Labour Board ruled that
it would not count the ballots of the replacement workers
in determining employee support and dismissed the termination
application.
If the Board had counted the ballots cast by the replacement
workers, the Union would have lost the vote and without the
protection of the Union, the striking employees would have
had no right to return to work.
The decision may also have major implications for other
votes held under the Labour Relations Act, 1995. Although
the Board’s reasons have not yet been released, it is
expected that they will be broadly applied, and that replacement
workers will not be allowed to vote in final offer votes
or in ratifying collective agreement at the end of strikes.
The additional result of the Board’s decision in the
case is that the collective agreement negotiated by the IWA
and ResCare in the shadow of the termination application,
has now been approved by the Board and the strike is now
over.
Melinda Johnston v. I.W.A. Canada v. ResCare Premier
Canada Inc., Graham Williamson of Koskie Minsky
for the IWA (gwilliamson@koskieminsky.com)
7. Government’s Appeal of Hydro
One
Case Dismissed
In the “Hydro One case”, Justice Gans had
held that the government lacked statutory authority to sell
shares of the Crown Corporation, which is responsible for
the transmission of electrical power in the Province. The
Respondents were opposed to the privatization of public assets
and had successfully challenged the proposed sale by the
Province. In response, the Province introduced legislation,
which amends the Electricity Act permitting the Minister
to issue and dispose of shares of Hydro One.
In view of the foregoing, the Court of Appeal considered
the matter moot and dismissed the Ontario Government’s
appeal in the Hydro One case.
Payne v. Ontario (Minister of Energy, Science and
Technology [2002] O.J. No. 2566; Ontario Court
of Appeal (O’Connor A.C.J.O., Doherty and Armstrong
JJ.A) (July 4, 2002); on appeal from the judgment of
Gans, J. dated April 19, 2002, reported at [2002] O.J.
No. 1450.
Counsel: Sean Dewart (seandewart@sgmlaw.com), L.A. Richmond
(lornerichmond@sgmlaw.com) and Steven Shrybman (shrybman@sgmlaw.com),
for the respondents.
Richard P. Stephenson, (richard.stephenson@paliareroland.com)
for the intervenor.
8. Court of Appeal Orders New Trial
on Liability and Damages: Trial Judge Erred in Finding
Employer 25% Responsible for Drunk Employee’s Damages
After an office party during the Christmas season, which
included free liquor, an employee of the appellant was involved
in a devastating car accident. The employee, Ms Hunt, was
employed as a secretary and receptionist with Sutton Realty
Inc., had attended the party in the afternoon, and afterwards
went to a bar consuming two more drinks there. Ms Hunt’s
blood alcohol level registered at 149mg/100ml. As such, she
was convicted of driving with a blood alcohol level in excess
of the legal limit of 80mg/100ml.
Ms Hunt subsequently sued Sutton Realty and the bar. At
trial the judge discharged the jury on the grounds of “complexity
and publicity”. Sutton Realty and the bar were found
jointly and severally liable for 25% of Ms Hunt’s damages.
The Ontario Court of Appeal ordered a new trial on liability
and damages. The Court held that a trial by jury is “a
substantial, statutory right.” Thus, the trial judge
erred in law by discharging the jury in the circumstances
of this case.
Hunt (Litigation Guardian of) v. Sutton Group Incentive
Realty Inc. [2002] O.J. No. 3109 (Court of Appeal:
Austin, Simmons and Gillese JJ.A.) (August 14, 2002);
on appeal from the judgment of Justice Claire Marchand
of the Superior Court of Justice dated February 5, 2001,
reported at 52 O.R. (3d) 425.
Counsel: Earl A. Cherniak, Q.C. and Kirk F. Stevens, for
the appellant Sutton Group Incentive Realty Inc. Roger G.
Oatley and J. Daniel Dooley, for the respondents
9. Time Limits Set Aside Where Employer
Engages in “Fraudulent Concealment”
An employer who terminates an employee is under a legal
obligation to provide accurate information about the employee’s
statutory rights. In a recent decision, the Ontario Court
of Appeal held that to do otherwise is an “abuse” of
the “special relationship” between an employer
and employee in such circumstances.
In Halloran v. Crown Cork and Seal Canada Inc., an
employee delayed more than 5 years before making a claim
for severance pay under the ESA. At the time, the ESA contained
a two-year limitation period. (The limitation period is now
only 6 months.) An Employment Standards Officer and, later,
a Referee under the ESA held that the claim was statute-barred
because it was filed too late. However, the Divisional Court
and, now, the Court of Appeal for Ontario disagreed.
The Court of Appeal found that the employee had delayed
filing his claim because he relied on his employer’s
categorical representation that its severance package “exceeded
provincial requirements”. But that representation, it
turns out, was wrong. The employee eventually filed his claim
years later only after learning of a court decision involving
his former employer’s obligation to pay severance pay
to some other employees. The Court of Appeal ruled that it
was “unconscionable” for the company to invoke
the ESA’s limitation period to deny the employee’s
claim when the employer was responsible for his delay in
filing the claim. As a result, applying the doctrine of “fraudulent
concealment”, the Court determined that the limitation
period in the ESA did not apply.
Since 1996, alleged violations of the ESA that take place
in a unionized setting may only be pursued under the grievance
arbitration provisions in a collective agreement – where
time limits are usually measured in days, rather than months.
The potential affect of this decision on the application
of those time limits remains to be seen.
Halloran v. Sargeant [2002] O.J. No. 3248
(Court of Appeal) (McMurtry C.J.O., Weiler and Armstrong
JJ.A.) (August 27, 2002); on appeal from the order of the
Divisional Court (Meehan and Cosgrove JJ. concurring and
O’Leary J. dissenting) dated January 29, 2001, reported
at (2001) 142 O.A.C. 286.
Counsel: Ronald Lebi (rlebi@koskieminsky.com),
for the respondent, Timothy W. Sargeant
10. Supreme Court Reserves Judgement
on Ontario Minister of Labour’s Appoint-ment of Retired
Arbitrators in the Hos-pital Sector
An earlier ruling by the Ontario Court of Appeal quashing
the Minister of Labour’s decision to deviate from the
long established practice of mutual consent by the parties
with respect to the appointment of chairs in interest arbitration
boards was appealed by the provincial government to the Supreme
Court of Canada. Arguments were heard on October 8, 2002.
Law forbids hospital workers to strike and disputes concerning
the negotiation of collective agreements must be submitted
to arbitration. In June of 1997, the Ontario government introduced The
Public Sector Transition Stability Act, 1997, which
in part proposed to replace the system of arbitration with
a permanent Dispute Resolution Commission. In the past, chairs
were chosen from a list of experienced labour arbitrators
mutually acceptable to all parties. The Minister unilaterally
decided to appoint retired judges instead.
The Court of Appeal held that such action on the part of
the Government amounted to an exclusion of unions from the
bargaining process and an unwarranted and inappropriate intrusion
into a process which saw the wholesale replacement of a roster
of “mutually acceptable arbitrators” by “a
class of persons seen to be inimical to the interests of
labour.”
The Court of Appeal further stated, “the unilateral
adoption by the Minister of a practice of personally selecting
retired judges … gives rise to a reasonable apprehension
of bias and gives the appearance of interference with the
institutional independence and the institutional impartiality
of the boards of arbitration established under the Hospital
Labour Disputes Arbitration Act.”
The Supreme Court heard submissions in support of the Court
of Appeal’s decision from the unions, and interveners
the Canadian Bar Association and the National Academy of
Arbitrators. The full bench heard the appeal; the decision
is on reserve.
The Minister of Labour for Ontario v Canadian Union
of Public Employees et al (Ont.) (Civil) (By
Leave) (28396)
Counsel: Howard Goldblatt (howardgoldblatt@sgmlaw.com),
Steven Barrett (stevenbarrett@sgmlaw.com) and Vanessa Payne
(vanessapayne@sgmlaw.com) for the Respondents CUPE and SEIU
Susan Philpott (sphilpott@koskieminsky.com), Graham Williamson
(gwilliamson@koskieminsky.com), Greg Richards and Jeff Cowan
for the Intervener, Canadian Bar Association
Michel Picher for the Intervener National Academy of Arbitrators
11. Rights of Labour Act No Longer a
Bar
to Trade Union Civil Action
Hot off the press: a very significant decision from the
Ontario Court of Appeal on trade union rights was released
on December 18, 2002. The Court unanimously (per Goudge,
Gillese and Simmons JJ.A) held that s.3(2) of The Rights
of Labour Act is effectively no longer a bar to trade
unions bringing a civil action in their own name against
an employer – even trade unions subject to the Ontario
labour regime. This case involves six trade unions suing
the federal government for legislating away the surplus in
the federal public service pension plan, and prohibiting
the Public Service Alliance of Canada from bargaining pension
rights.
The Court relied principally on Berry v. Pulley,
and its expansive reasoning is reflected in the following paragraph:
Although it is not necessary to decide in this case, the
answer I have given to the application of s. 3(2) of the
RLA might well be different for unions governed by the OLRA,
something which could force them to attempt to access the
courts using the antiquated and uncertain vehicle of the
representative action described by Osler J. in Seafarers’,
supra. Such a result would seem inconsistent with the broad,
principled approach to the legal status of unions found in Berry.
That approach reflects the reality that, across the country,
unions share a common history and, speaking generically,
perform common functions, and are governed by common legislative
provisions. Viewed against this commonality, if s. 3(2) creates
an anomalous result for some unions in a single province,
it may be time, after more than 50 years, that it be revisited
for possible revision.
B. LEGISLATION
1. The Agricultural Employees Protection
Act
On October 7, 2002, the Eves government introduced The Agricultural
Employees Protection Act, 2002 (Bill 187) which purports
to satisfy the remedial requirements of the decision of the
Supreme Court of Canada in Dunmore v. Ontario (Attorney General)
[summarized CALL Newsletter February 2002].
In Dunmore the Supreme Court ruled that the section of the
Ontario Labour Relations Act, 1995,which excludes agricultural
workers from the ambit of the Act, was unconstitutional as
a violation of the section 2(d) [Freedom of Association]
Charter rights of agricultural workers. While the Court stated
that section 2(d) of the Charter does not extend to protecting
the right to strike or collectively bargain, it held that
freedom of association does extend
to protect “certain union activities – making
collective representations to an employer, adopting a majority
political platform, federating with other trade unions.” The
Court then gave the legislature 18 months to remedy the unconstitutionality
of the legislation.
Bill 187 is the attempt of the Eves government to meet the
requirements of the Dunmore decision, while extending the
minimum possible rights to agricultural workers.
Bill 187 expressly provides that the Labour Relations Act,
1995 does not apply to employees or employers in agricultural
(section 18). Instead, it sets up a parallel – and decidedly
inferior – regime to govern the collective activity
of agricultural workers.
Section 1(2) gives agricultural workers the right: to form
or join an employee’s association; to participate in
the lawful activities of that association, to assemble; to
make “representations” through an association to
their employers respecting terms and conditions of employment;
and to be free from interference, coercion and discrimination
in exercising their rights.
Section 2 defines “employee association” to mean “an
association of employees formed for the purpose of acting
in concert”. It is open to question as to whether a
trade union which also represents non-agricultural employees
would meet this definition. There are no certification provisions
which govern how a group of employees can select an association
to act for them and there is no mechanism for an association
to be the exclusive representative of a group of employees.
Section 5 requires an employer to give an employee association “a
reasonable opportunity” to make representations respecting
terms and conditions of employment orally or in writing.
These representations can be made through a person who is
not a member of the association. The employer is only required
to listen to or read the representations (section 5(6)).
There is no obligation to even respond to these representations,
let alone to enter into any kind of bargaining, to bargain
in good faith or to enter into a collective agreement.
The question of what is a “reasonable opportunity” to
make representations in determined in the context of the
timing of the representations in comparision to matters such
as planting and harvesting times and “weather, animal
health and safety and plant health”.
Section 7 provides an association with a right of access
to an employer’s property where employees reside on
the property. This right can only be accessed on application
to the Agricultural and Rural Affairs Tribunal (discussed
below) after a hearing. The Tribunal cannot order access
unless such order is “necessary to effectively communicate
with employees for the purposes of forming an association
or recruiting members”. The rigfht of access is not
available for any purposes respecting the representation
of the association members.
Sections 6, 8, 9 and 10 recreate the unfair labour practice
provisions found in sections 70, 72, 74 and 76 of the Labour
Relations Act, 1995 (with the exception that there is no
bar on an employer contributing financial or other support
to an association).
Sections 11, 13, 14 and 17 are enforcement provisions allowing
complaints to the Agricultural and Rural Affairs Tribunal
which are similar to section 96 of the Labour Relations Act,
1995
The Agricultural and Rural Affairs Tribunal is a body established
under the Ministry of Agriculture, Food and Rural Affairs
Act which deals with complaints under legislation such as
the Milk Act, the Farm Products Marketing Act, the Crop Insurance
Act and the Drainage Act. It has no employment or labour
relations role.
Section 19 of Bill 187 sets out a procedural code for proceedings
under this Bill before the Tribunal. That section attempts
to address the fact that the Tribunal has no labour relations
or employment expertise by requiring that at least two of
the people appointed to the Tribunal be specifically appointed
to hear matters under Bill 187. Only those members of the
Tribunal with such special appointments are to conduct hearings
and exercise the powers of the Tribunal under Bill 187.
Early indications are that the United Food and Commercial
Workers, the union which brought the Dunmore case intends
to challenge the constitutionality of Bill 187 if enacted.
Stay tuned!
2. BILL 198 – “Keeping the
Promise for a Stronger Economy Act”
On November 8, 2002 the Eves Government tabled an Omnibus
Budget Bill, hidden in the depths of which were sweeping
and draconian changes to the Pension Benefits Act. The Government
had consulted with stakeholders last fall, and again in this
past summer (when no one was around) about proposed changes
to the pension surplus provisions of the Act. Then, with
little notice, those changes and much much more were included
in the Budget Bill that the Government was intent to pass
quickly without debate or committee process.
The good news (great actually) is that thanks to the labour
movement and the pensioner lobby taking quick and strong
political action, the Government pulled all of the proposed
pension changes.
Ontario has had a “surplus sharing” regime since
1990. Employers cannot take surplus out of pension plans
unless they have the consent of the members. That regime
was introduced along with general pension reform of the late
1980’s, following the pension stripping cases, the most
prominent of which was “Dominion Stores”. In that
case, Conrad Black tried to get away with a $40 million surplus
withdrawal out of the Dominion Stores pension plan. He
didn’t, and the regime was changed to prevent other
employers from trying the same thing.
The changes introduced by Bill 198 would have put employers
in the same position as Conrad Black in the 1980’s.
They would have been able to apply to the regulator (the
Superintendent) and upon satisfaction of the conditions in
as yet unspecified regulations, could take surplus without
members’ consent. The proposed changes also would have
made irrelevant a decision of the Court of Appeal (Monsanto)
which was pending when the legislation was introduced (and
which was released a few weeks after – in favour of
members, allowing member access to surplus upon partial pension
plan wind up).
The Government completely withdrew the proposed pension
legislation on December 4, 2002 after a barrage of complaints
and much outcry among pensioners, affected pension plan members,
and the labour movement.
PRINCE EDWARD ISLAND
Remedial certification upheld
The Prince Edward Island Supreme Court recently upheld the
decision of the Labour Relations Board (Prince Edward Island)
to grant remedial certification in answer to a complaint
of unfair labour practices, despite the fact that the Board
had no express power to order such a remedy:
Evidence before the Board showed that when the UFCW began
organizing employees of a food processing plant in Summerside,
the company declared war. It laid off union activists and
hired new employees. It held captive meetings where employees
were warned the plant would not operate with a union and
would be closed if one was certified. It cancelled a raise
that had been planned for some time, and, as a foretaste
of what would happen if the union was certified, it diverted
product to other plants it owned.
In the face of this onslaught, the Union did not apply for
certification. Instead, it made a number of unfair labour
practice complaints and asked the Labour Board to issue an
automatic certification as a remedy.
The Board found the range of unfair labour practices committed
by Polar Foods was “the most far reaching” it had
ever seen. It found the company had used coercion, intimidation,
threats and undue influence to achieve
purposes prohibited by The Labour Act. In granting the automatic
certification, the Board relied on its general power in a case of unfair labour
practices to make an order it considered just and necessary in the circumstances.
Polar Foods sought judicial review of that decision, arguing the Board had
exceeded its jurisdiction in certifying the Union.
The Prince Edward Island Supreme Court found that The
Labour Act gave the Board the power to order
automatic certification in an appropriate case, but was
subject to review on a standard of correctness. The Court
then found that the Board had been correct in its interpretation
of its remedial authority.
The Court rejected the argument that the extraordinary remedy
of automatic certification was only available where it was
explicitly authorized by statute. It found the Board’s
conclusion, that the remedy of automatic certification was
available to it in the appropriate case, was consistent with
the underlying purposes of The Labour Act,
to promote industrial peace and harmonious industrial relations.
Polar Foods has filed an appeal of the decision with the
Prince Edward Island Court of Appeal.
UFCW, Local 864 v. Polar Foods International, 2002 PESCTD
56.
Counsel for UFCW Local 864 – Eugene Rossiter (erossiter@smss.com |
