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Guest Blog: Professor Michael Lynk’s Top 5 Labour & Employment Law Cases from 2013

Professor Michael Lynk (UWO, Faculty of Law) has been a regular contributor to Law of Work blog over the years, and his occasional Top 5 Most Important Cases lists are always highly read.  Here’s his Top 5 Most Influential Employment & Labour Law Cases (2000-2010, for example.

In what I hope now will be an annual event, here is Professor Lynk’s Top 5 Most Important Labour & Employment Law Cases from 2013.

The Five Top Labour Law Decisions of 2013

                                                                                                                        Michael Lynk

Professor Michael Lynk (Western)

Professor Michael Lynk (Western)

Creating a list like this – just like choosing the top books, top songs or top movies of the year – is both a stimulating and a subjective exercise.  Using the calendar year as a measuring stick to reflect on the new developments in labour law, and speculating on where we might be heading, is animating. Such a list also invites discussion, debate and disagreement: put three labour lawyers in a room, give them a common test to decide the leading cases, and see three quite different lists emerge.

Let me be forthright on my criteria. I have selected decisions released in 2013 that I think will likely have a significant impact on shaping labour law into the foreseeable future.  The areas of labour law that have garnered particular attention in recent years are human rights and accommodation cases, privacy issues and remedies.  In these areas, the law is moving steadily to clarify confusing areas in the law, or to enlarge various workplace rights.

And the envelope, please…

1.     C.E.P., Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34 (14 June)

The Supreme Court of Canada’s judgement in Irving Pulp & Paper was its first opportunity to provide direction to the industrial relations community on the legal boundaries respecting random alcohol testing in the workplace. In its ruling, the Court endorsed the “balance of interests” approach adopted by many labour arbitrators on substance testing issues, which weighs the importance of the employer’s risk factors against the employee’s privacy rights. Finding that Irving Pulp & Paper had not demonstrated that its plant in Saint John, New Brunswick was plagued with significant safety concerns, the Court upheld an arbitrator’s decision that had struck down the employer’s unilaterally-introduced universal random alcohol testing program.

Irving Pulp & Paper will likely create legal ripples well beyond random alcohol testing policies. Not only will it almost certainly be used to assess workplace drug testing policies, the ruling may also set the tone for future decisions on a wider range of employment privacy issues, such as video surveillance, computer and social media monitoring, and GPS surveillance tracking. An early indication of Irving Pulp & Paper’s impact can be found in Mechanical Contractors Association Sarnia (2013 CanLII 54951), where Arbitrator George Surdykowski relied upon the Court’s judgement to rule against an employer’s pre-access drug and alcohol testing policy at an oil refining plant’s construction site.

2.     A.G. (Canada) v. Johnstone, 2013 FC 113 (31 January) and Canadian National Railway v. Seeley, 2013 FC 117 (2 February).

For the moment, Johnstone and Seeley – companion cases released within a couple of days of each other by the Federal Court of Canada, and authored by the same judge – are the leading cases on family status accommodation. This rapidly growing area of workplace human rights law has seen three distinct approaches adopted by various courts, human rights tribunals and labour arbitrators over the past nine years. The Federal Court rulings have provided clarity on the appropriate test to apply, and clearly favour a liberal approach towards workplace family status issues.

Both unions and employers can find solace in the Johnstone and Seeley judgements. In Seeley, the Court imposed a significant threshold on employers by requiring them to be open, responsive and accommodating to the childcare and family needs of their employees. While Johnstone also found for the employee-complainant, the Federal Court erected a self-help threshold that requires employees to first search for their own solutions to their family care concerns before seeking an accommodation from their employers.  The dust won’t settle on the issue for several years yet, but the Federal Court rulings have probably pointed the way forward, as can be seen in a thoughtful Alberta arbitration award by Lyle Kanee released in late October: C.E.P., Local 707 v. SMS Equipment Inc. (2013 CanLII 68986).

3.     Alberta (Information and Privacy Commissioner) v. UFCW, Local 401, 2013 SCC 62 (15 November). 

In Alberta, the Supreme Court of Canada struck down a ruling by the Alberta Information and Privacy Commissioner that a union which was video-taping individuals crossing a legal picket line at an casino had breached the province’s Personal Information and Privacy Act. In doing so, the Court endorsed two important workplace principles that should resonate in labour law circles for some time to come.

First, it stated that the legislation breached the union’s expressive rights under s. 2(b) of the Charter of Rights, and the breach was not justified via a s. 1 analysis. The SCC stated that freedom of expression is important as a means to “further common workplace goals” of associational freedoms under s. 2(d), including “redressing the presumptive imbalance between” employers and employees. Given that the Supreme Court will be hearing two significant Charter challenges in 2014 on the meaning of s. 2(d) – RCMP Staff Members and Saskatchewan Federation of Labour – the ruling in Alberta (Information and Privacy Commissioner) could likely play an influential role in the upcoming constitutional arguments.

The second important principle emerging from Alberta is the SCC’s endorsement of the significance of privacy rights in our society. The Court ruled that privacy legislation is “quasi-constitutional”, and the protection of the privacy value “in a vibrant democracy cannot be overstated.” These comments will likely become centrepiece arguments in upcoming arbitral and judicial cases on workplace privacy conflicts.

4.     Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440 (14 March).

In a ruling that may herald a more expansive approach by human rights tribunals and arbitrators on remedies, the Human Rights Tribunal of Ontario awarded a terminated school board employee nine years of back pay and benefits, $30,000 in human rights damages, reinstatement and up to six months of training. The Tribunal had earlier ruled (2012 HRTO 350) that the employer had failed to appropriately accommodate the employee’s anxiety disorder from April 2003, and had wrongfully fired her in July 2004.   

While Fair broke no new remedial ground, its significance may lie in encouraging tribunals and arbitrators to be more liberal in the range and size of remedies awarded in human rights cases. Unlike arbitrators, human rights tribunals rarely award reinstatement as a remedy, either because complainants do not commonly ask to be return to a non-unionized workplace or because tribunals themselves doubt the efficacy sending a successful complainant back to a job where there is no union.  Conversely, arbitrators are more reluctant than tribunals to award a wider range of other types of human rights remedies, perhaps because these other remedies – such as orders for employment equity programs, human rights training or large non-compensatory human rights damage awards – are beyond the orthodox industrial relations remedies that arbitrators have traditionally granted.

The Hamilton-Wentworth school board has sought judicial review of Fair, with a decision expected in 2014.

5.       Bombardier Inc. (Bombardier Aerospace Training Center) c. Commission des droits de la personne et des droits de la jeunesse (2013 J.Q. no. 12486) (24 September); General Motors of Canada Limited v. Johnson (2013 ONCA 502) (31 July); Peel Law Association v. Pieters (2013 ONCA 396) (13 June).

One of the great mysteries of modern Canadian human rights law is the virtual absence of any significant rulings on workplace racial discrimination. To the best of my knowledge, the Supreme Court of Canada has never ruled on a race discrimination case involving the workplace, and there have been very few decisions by the lower courts, human rights tribunals or labour arbitrators that have employed the tools of indirect and systemic discrimination analysis on this issue. This is surprising for three reasons: (i) Canada probably has the leading human rights legal culture in the world; (ii) race is consistently the second or third most frequently cited ground in human rights complaints filed with commissions and tribunals right across the country; and (iii) statistics on income earnings and employment representation repeatedly demonstrate that the Canadian workplace is not so kind to visible minorities.

These three decisions – all decided by appellate courts – are emblematic of the dissonance in race discrimination analysis in Canada. The Quebec Court of Appeal in Bombardier overturned a ruling by the Quebec Human Rights Tribunal that had ordered the aircraft manufacturer to pay $319,000 to Canadian pilot of Pakistani origin because it had barred him from flight training after the United States deemed him a security threat. In General Motors, the Ontario Court of Appeal overturned a 2012 decision of the Superior Court that had upheld a constructive dismissal suit by a black production supervisor, who had claimed that he had been racially discriminated against by his employer. And in Pieters, the Ontario Court of Appeal restored a ruling by the Human Rights Tribunal – which had been quashed by the Divisional Court – that had found in favour of a black lawyer who had been singled out for attention by a court librarian in a lawyers’ lounge in a Toronto area courtroom.

The most direct lesson from these three appellate rulings is that the human rights legal analysis of race discrimination cases arising out of the workplace is no further ahead. Whether Pieters represents an anomaly, or the beginning of a new approach towards an important human rights ground, remains to be seen.

*******

Excellent, as always Michael.  Can’t quarrel with any of these.  Michael’s cases are human rights heavy.  I could add one collective labour law footnote. It could  be that a very short SCC decision from February 2013 sends an ominous warning that the end of effective public sector collective bargaining is in our future.  Here’s the SCC decision:

DISMISSED WITH COSTS / REJETÉES AVEC DÉPENS:  Association of Justice Counsel v. Attorney General of Canada (Ont.) (Civil) (By Leave) (35027) Coram: Fish / Rothstein / Moldaver

With that, the Ontario Court of Appeal’s decision stands, which ruled that as long as a government employer engages in collective bargaining with a public sector union, once that bargaining reaches an impasse, the government can just prohibit strikes, bypass interest arbitration, and directly legislate a collective agreement according to the employer’s proposals.  This decision draws a road map for governments to legislatively impose their will on public sector employees.  The Alberta government’s recent Bill 46, which blocks access to interest arbitration and legislatively imposes the employer’s proposal, follows that map perfectly.  It may be the beginning of a revolution of sorts against public sector collective bargaining.

Would you any other cases to the list of the most important of 2013?

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