2011 National Administrative Law, Labour and Employment Conference November 25, 2011 Eric Durnford, Q.C. Hanaa Al Sharief

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1 The Year in Review in Labour & Employment Law 2011 National Administrative Law, Labour and Employment Conference November 25, 2011 Eric Durnford, Q.C. Hanaa Al Sharief

2 Introduction All politics is local. Tip O Neil All labour and employment law is local. Agenda* Key decisions of the Supreme Court of Canada and Federal Court of Appeal; Geographic review of the leading cases/events, provincial and federal; Two particular, arbitrarily-chosen topics: (1) the older worker and (2) employees and their computers; and Wacky Decision of the Year (the WDY ). *Some material and commentary was presented by my colleagues at the annual conference for the Canadian Association of Counsel to Employers in September 2011.

3 THE SUPREME COURT OF CANADA

4 Constitutional Jurisdiction NIL/TU, O Child & Family Services Society v BSGEU, 2010 SCC 45 Native Child & Family Services of Toronto v CEP, 2010 SCC 46

5 Take Away Point ( TAP ) One need primarily ask whether an entity s normal or habitual activities are provincial or federal in character. Only if this functional analysis does not answer the question should a court consider whether provincial regulation of the entity s labour relations would impair the core of the federal head of power at issue.

6 Which Forum, Please? Syndicat de la fonction publique du Québec v Quebec (Attorney General), 2010 SCC 28

7 TAP A labour arbitrator has jurisdiction to apply employment standards dismissal legislation because labour standards is a matter of public order which effectively overrules the typical CA ban to grievances by casuals and probationers (should be limited to Quebec, Nova Scotia, and federal jurisdiction).

8 Workers Compensation British Columbia (Workers' Compensation Board) v Figliola, 2011 SCC 52

9 TAP There should be territorial respect among neighbouring tribunals, including respect for their right to have their own vertical lines of review protected from lateral adjudicative poaching.

10 Trilogy on constitutional right to freedom of association. 1. Dunmore v Ontario (Attorney General), 2001 SCC Health Services and Support - Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC Ontario (Attorney General) v Fraser, 2011 SCC 20

11 TAP Read BC Health Services we said it all there. The Fraser case looks like the third decision of a trilogy but expect there to be a fourth.

12 THE FEDERAL COURT OF APPEAL

13 Federal Court of Appeal Canada (Attorney General) v Mowat, 2009 FCA 309, [2010] 4 FCR 579

14 TAP The Federal Human Rights Tribunal has no authority to award legal costs.

15 CROSS COUNTRY NOTE-UP

16 Federal Jurisdiction Captains & Chiefs Assn v Algoma Central Marine, 2010 CIRB 531

17 TAP Management functions takes a severe hit.

18 Federal Jurisdiction Vilven v Air Canada, 2011 CHRT 10

19 TAP Air Canada s over 60 year-old pilots must retire (maybe).

20 British Columbia Coast Mountain Bus Company v CAW, 2010 BCCA 447

21 TAP 1 from British Columbia A successful attendancemanagement program has to give special treatment to employees with disabilities.

22 British Columbia cont d Waterman v IBM Canada Limited, 2011 BCCA 337 Sylvester v British Columbia, [1997] 2 SCR 315

23 TAP 2 from British Columbia If an employer wants to avoid paying dismissal damages to an employee receiving a pension, it needs to provide for that in the employment contract.

24 Alberta International Assn of Fire Fighters, Local 225 (Calgary Fire Fighters Assn) v Calgary (City), 2011 ABCA 121

25 TAP 1 from Alberta For those who want to continue to defend against claims of promissory estoppel by using the shield, not sword approach, Alberta continues to be your best legal ally.

26 Alberta cont d Globex Foreign Exchange Corporation v Kelcher, 2011 ABCA 240

27 TAP 2 from Alberta There is an issue about the enforceability of an agreed restrictive covenant where an employee is wrongfully dismissed. Make sure your employment contract expressly covers off this point.

28 Saskatchewan CUPE, Local 3967 v Regina Qu'Appelle Health Region, 2010 Carswell Sask 155

29 TAP 1 from Saskatchewan BC Health Services should not deter governments from legislating essential services limitations.

30 Saskatchewan cont d Duguay v Mudjatik Thyssen Mining Joint Venture, 2010 SKPC 183

31 TAP 2 from Saskatchewan Employers should be careful if they want to rely upon a general employee handbook or manual to define the terms of termination, particularly when they want employment standards to be their severance obligations. Continued employment is not valid consideration for amended terms.

32 Manitoba Manitoba Association of Health Care Professionals v Nor-Man Regional Health Authority Inc., 2010 MBCA 55

33 TAP 1 from Manitoba Estoppel remains a limited vehicle.

34 Manitoba cont d Carson International Inc. v Biggar et al., 2010 MBQB 198

35 TAP 2 from Manitoba Fiduciary employees are few and far between.

36 Ontario Blue Mountain Resorts Limited v Ontario, 2011 ONSC 3057

37 Ontario cont d Brito v Canac Kitchens, 2011 ONSC 1011

38 TAPs from Ontario The Ontario Health and Safety Act needs to be amended. One of Justice Randall Echlin s last decisions reminds us of the make whole nature of wrongful dismissal damages.

39 Quebec SCFP local 2808 c Journal de Quebec, division de Corp Sun Media, 2008 QCCRT 0534

40 Quebec cont d Houle c St-Basile-le Grand (Ville), 2010 QCCRT 0390

41 TAPs from Quebec Expect the Quebec Labour Code s antistrikebreaker provisions to be amended to offset the decision in Journal de Quebec. Management employees are expected to know their employer s policies. Systemic use of an employer s computer for personal activities can cost you your job.

42 New Brunswick Irving Pulp & Paper Ltd v CEP, Local 30, 2011 NBCA 58

43 New Brunswick cont d Doucet v Spielo Manufacturing Inc, 2011 NBCA 44

44 TAPs from New Brunswick We need the Supreme Court of Canada to give us a definitive ruling on the never-ending debate on random alcohol testing. In dismissing employees, be wary of employment standards statutes overriding common law principles.

45 Nova Scotia Canadian Union of Public Employees, Local 108 v. Halifax (Regional Municipality), 2011 NSCA 41

46 TAP 1 from Nova Scotia Arbitrators have no authority to change the essence of cases submitted to them.

47 Nova Scotia cont d Carrigan v Berkshire Securities Inc, 2010 NSSC 373

48 TAP 2 from Nova Scotia When dealing with a constructive dismissal situation, employers can avoid wrongful dismissal damages by providing reasonable compensation for changes to an employee s position.

49 Prince Edward Island PEI (Department of Health and Wellness) and PEIUPSE, 2010 CLB 35106

50 TAP 1 from PEI When making a case in an interest arbitration, aim for the zone of acceptability.

51 Prince Edward Island cont d Nilsson et al. v The University of Prince Edward Island, 2010 Carswell PEI 51

52 TAP 2 from PEI Mandatory retirement may be on its way out.

53 Newfoundland and Labrador NLNU v Newfoundland & Labrador (Treasury Board), 2010 NLCA 13

54 Newfoundland and Labrador cont d Burke v NLAPPE, 2010 NLCA 12

55 Newfoundland and Labrador cont d Leonard v Newfoundland and Labrador (Human Rights Commission), 2011 NLTD 48

56 TAP from Newfoundland and Labrador The Supreme Court will soon put meat on the bones of the phrase justification, transparency and intelligibility in the decision-making process.

57 Nunavut Nunavut v Nunavut Employees Union, 2011 NUCJ 24

58 TAP from Nunavut Arbitrators have jurisdiction over situations where constructive dismissal is alleged.

59 Northwest Territories del Valle v Northwest Territories, 2011 NWTCA 3

60 TAP from Northwest Territories Individual unionized employees have very limited ability to challenge arbitration decisions.

61 Yukon Yukon Teachers Assn v Yukon, 2011 YKCA 4

62 TAP from Yukon Another useful case on mootness.

63 FOCUSSED AREAS

64 The Older Worker and Discrimination Mandatory retirement age discrimination unless 1. if it is based upon a bona fide qualification; 2. if it is based upon a bona fide occupational requirement ( BFOR ); and 3. if not doing so would prevent, on account of age, the operation of a bona fide pension plan or bona fide group or employee insurance plan.

65 The Older Worker and Discrimination cont d New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan SCC 45

66 TAP A pension plan is bona fide if it is a legitimate plan, adopted in good faith, and is not adopted for the purpose of defeating protected rights Registration of a pension plan under the Pension Benefits Act is an indication of a bona fide pension plan.

67 The Older Worker and Discrimination cont d Theriault v. Conseil Scolaire Acadien Provincial (CSAP) (NSBI, 2009)

68 TAP A pension plan must clearly provide for a mandatory retirement age. If the pension plan allows for the employee to work past the normal retirement age, then the pension plan does not allow for mandatory retirement and the exception does not apply.

69 The Older Worker and Discrimination cont d Ontario Nurses Association (O.N.A.) and Municipality of Chatham- Kent CLB 33134

70 TAP Age-based distinctions in the provision of benefits remain valid despite the elimination of mandatory retirement. Result consistent with earlier decisions. Biedermann v. Canada Safeway Ltd. (1985), 6 C.H.R.R. D/3011 (BCHRT) LTD benefits which ceased at age 60 terminated when the full pension benefit became available; no discrimination because the BC Human Rights Code allowed discrimination on the basis of age in pension plans.

71 The Older Worker and Discrimination cont d Québec (Commission de la santé & de la sécurité du travail) c Québec, 2011 QCCS 610

72 TAP Reducing income replacement benefits for injured workers after age 65 did not breach the Quebec Charter of Human Rights and Freedom or the Canadian Charter. There was no proof of a general disadvantage for those aged 64/65 or older. Motion for appeal granted but decision not yet rendered.

73 The Older Worker and Discrimination cont d Withler v. Canada, 2011 SCC 12

74 TAP SCC confirmed that reducing pension entitlement on the basis of age is not discriminatory. Pension benefits schemes must balance different claimants interests; the supplementary death benefits are not intended to be a long-term stream of income for older surviving spouses which is attained through other benefits.

75 The Older Worker and Discrimination cont d Gill v Canada, 2009 FCA 56

76 TAP Section 12.1 of Public Service Superannuation Regulations which prohibits employees from contributing it to pension plans after reaching age 71 is valid and does not result in age discrimination.

77 The Older Worker and Discrimination cont d Black & McDonald Ltd. v. I.B.E.W., Local 353, 2010 CLB (O. L.R.B.)

78 TAP This is an example of a case where employees receiving preferential treatment as they got older was found to violate the Human Rights legislation whereas the flip side, a loss of benefits, is not found to violate the Code in most cases.

79 The Older Worker and Discrimination: Pension Benefits v Collective Agreement British Columbia Government and Service Employees Union v. Peace River South School District No CLB 25477

80 TAP The abolishment of mandatory retirement does not override the contractual agreement between parties.

81 The Older Worker and Discrimination: Pension Benefits v Collective Agreement cont d London Civil Employees, Local 107 v. London (City) [2010] L.V.I

82 TAP The language used in the collective agreement takes precedent over that used in the benefit plan. Unionized employers have to ensure that they purchase benefit plans that are consistent with and do not contravene the language used in the collective agreement.

83 EMPLOYEES AND COMPUTERS

84 Employees and Computers R v Cole, 2011 ONCA 218

85 TAP Make sure your workplace computer use policy is clear and unequivocal on what constitutes abuse and the consequences that will flow therefrom. Privacy and computers usually do not mix.

86 THE WACKY DECISION OF THE YEAR

87 The Wacky Decision of the Year Andrews v Canada, 2011 PSLRB 100

88 TAP My employer didn t give me anything better to do.

Individual Taxation Tax Planning Guide

Individual Taxation Tax Planning Guide Taxable Income TABLE I1 ONTARIO (2014) TAX TABLE Tax Effective Marginal Rate Federal Ontario Total Rate Federal Ontario Total $ $ $ $ 10,000-17 17 0.2 0.0 5.0 5.0 11,000-67 67 0.6 12.9 5.1 18.0 12,000