February 3, 2015
Professor Michael Lynk’s (Western Law) annual “Top Cases of the Year” is a popular feature on the Law of Work Blog. True, we are into February 2015, but better late than never in this case. So, here is Michael’s Top 5 Cases of 2014 in Work Law. Heavy on discrimination cases this year. If you have other suggestions to add to the list, please let us know using the Comment feature on the blog.
Top 5 Workplace Law Decisions in 2014
Only a month into 2015, and the Supreme Court of Canada has already provided several obvious choices for the top workplace law decisions for this year. So, before any more headline decisions get released, let’s assess the top five decisions of the year that has just finished.
There were not as many banner rulings in 2014 as in previous years. My choices have been influenced by the
impact that the decision will likely have on the growth and direction of a particular strand of Canadian workplace law, and on whether the ruling clarified an area that had been unsettled or confused. Most of the decisions that made this year’s shortlist did not create many public headlines, but have nonetheless established some important principles that lawyers and industrial relations parties will be applying for years to come.
So, with no further ado, the drumroll please…
These two companion cases by the Federal Court of Appeal, released together in early May, have settled the principles on the human rights ground of family status for the time being. The rulings were not appealed to the Supreme Court of Canada, and labour arbitrators and human rights tribunals in most of the country have been applying Johnstone and Seeley as the foundational legal source in subsequent rulings.
The two rulings dealt with a growing phenomena within the evolving Canadian workplace: women moving into non-traditional jobs that were previously the preserve of men. (Indeed, family status claims have become a marker for women’s rights at work: the overwhelming majority of family status cases involve female claimants). The Federal Court of Appeal endorsed their claims for family status accommodation, which involved the need to care for young children when faced with either rotating shifts at work (Johnstone) or a forced transfer to a job in another province (Seeley).
Johnstone and Seeley are not the last word on this issue. A more restrictive approach to family status claims – the Campbell River case – remains the governing authority in British Columbia, New Brunswick’s human rights legislation does not include family status, and Quebec arbitrators and tribunals have been slow to interpret the “civil status” (“l’état civil”) ground in its human rights code as expansively as other jurisdictions in Canada.
That said, it is safe to say that Johnstone and Seeley represent the arc of human rights development in Canada. This more liberal approach to family status has already been applied to eldercare cases, and claims will likely doubtlessly be forthcoming that will tell us whether the definition of ‘family’ should be expanded to include familial relationships beyond children and parents. Stay tuned.
2. Boucher v. Wal-Mart, 2014 Ontario Court of Appeal
2014 was not a memorable year for Wal-Mart and its workplace litigation record. In late June 2014, the Supreme Court of Canada restored a labour arbitrator’s ruling that Wal-Mart had breached the Quebec Labour Code when it closed its store in Jonquiere shortly after the United Food and Commercial Workers had been certified to represent the store workers. While this ruling’s impact is largely confined to Quebec (because labour laws in English Canada have already been applied to employers who would close a workplace to avoid unionization), it points out the larger quandary across the country that the only current legal sanction against a determined employer who would rather shutter a factory or store than deal with a union are damages, rather than an order to reopen the workplace. While Wal-Mart faces substantial damages to the out-of-work employees in Jonquiere, the despairing fact is that, in the larger picture, this tactic appears to work: no Wal-Mart store in Canada today is unionized.
However, my choice for the second ranking workplace ruling of 2014 is another Wal-Mart ruling: Boucher v. Wal-Mart, a decision by the Ontario Court of Appeal released in May that awarded more than $400,000 in damages to a female assistant manager because the retail behemoth had in adequately investigated her complaints of harassment. Ms. Boucher had been subjected to repeated abusive behaviour by a supervisor (who publically calling her “stupid”, and complained about her “fucking shit show”). She took her complaints to senior management, who investigated and said that her claims were unsubstantiated and threatened to discipline her for raising them. Ms. Boucher left work and brought a lawsuit. An Ontario jury awarded her more than $1.2 million in damages.
On appeal, the Ontario Court of Appeal upheld the findings against Wal-Mart, while reducing the damages award. The Court of Appeal awarded Ms. Boucher $100,000 for intentional inflection of mental suffering, $200,000 for aggravated damages and $100,000 in punitive damages, all against Wal-Mart, and another $10,000 in punitive damages against the abusive supervisor. As well, Ms. Boucher received 20 weeks of pay in lieu of notice. While a sharp monetary reduction from the jury award, the vital lesson from Boucher stands: employers who inadequately or incompetently investigate credible complaints of abuse and harassment at work stand to pay substantial damages. As well, Boucher (along with Johnstone and Seeley) reminds us that work remains a chilly place for many women, but that Canadian courts and tribunals can be persuaded to invoke a more dynamic application of the law to tackle some of these age-old barriers and customs.
3. WSAIT Decision No. 2157/09 (Ontario Workplace Safety and Insurance Tribunal)
Most labour and employment lawyers do not practice workers’ compensation, and know very little about the area beyond the basic principles. That broader grouping includes me. Rare is the occasion when we pay attention to a workers’ compensation ruling. This past April’s decision by the Ontario Workplace Safety and Insurance Tribunal in this blandly-named ruling, however, caught many people’s attention in the broader Canadian industrial relations community, and reflects an increasing social openness to recognizing the centrality of mental health issues in our personal and work lives.
A nurse who had experienced years of harassment at work filed a claim for mental stress benefits under the Ontario workers’ compensation legislation and policy statements by the Ontario Workplace Safety and Insurance Board. The legislation stipulated that, to successfully claim mental stress benefits, an employee had to suffer “an acute reaction to a sudden and unexpected traumatic event.” Consequently, the Board rejected her claim. The nurse challenged the Board’s decision at the Tribunal, arguing that the narrow grounds for allowing mental stress claims – particularly when compared to the less demanding criteria for physical injuries – violated the equality provisions (s. 15) of the Charter of Rights and Freedoms.
The Tribunal agreed with the nurse and, in a 78 page decision, declined to apply the higher eligibility requirements for mental stress claims using its powers under the Charter. It could find no meaningful justification for the differential treatment in the workers’ compensation statute between mental and physical injuries, stating that the distinction “perpetuates the view that persons with mental disabilities are less worthy of recognition or value as human beings or as members of Canadian society than persons with physical injuries.” The Ontario government did not subsequently seek to have the WSIAT ruling reviewed by the courts.
While the Tribunal’s ruling technically applies only to this specific case, workers’ compensation specialists already regard 2157/09 as a significant precedent. Some have argued that it will likely transform the stance of provincial governments and workers’ compensation boards towards a more liberal approach towards workplace mental health issues.
4. Balikama v. Khaira Enterprises Ltd, 2014 BCHRT 107
Workplace racial discrimination cases have not occupied a prominent place in the Canadian human rights legal landscape. The Supreme Court of Canada has never decided a workplace race discrimination case in the Charter era (although that will end soon, as it heard arguments in Bombardier Inc. v. Commission des droits de la personne et des droits de la jeunesse in late January 2015, involving Bombardier’s refusal to admit a pilot of Pakistani origin into a flight training program). As well, most racial discrimination cases involve instances of direct discrimination and low damages.
A case that might be a harbinger of the future direction of race discrimination cases is Balikama, issued by the British Columbia Human Rights Tribunal this past May. The ruling illustrates both the subterranean nature of the foreign worker labour market in Canada, as well as the difficulties that workers in precarious industries have in enforcing protective laws, and securing remedies when they do win.
In the ruling, the Tribunal ordered the largest cumulative human rights award ever issued in Canada on racial discrimination. Approximately 55 immigrant workers from Africa complained that their employer, a tree planting enterprise in eastern British Columbia, had breached both the Employment Standards Act and the Human Rights Code in its withholding of pay, its denial of food and clean water, its provision of shoddy living and working conditions, the erection of substandard toilets, and its tolerance of sexual harassment and racist conduct. The Tribunal agreed with them. Specifically, it held that the immigrant workers had endured particularly offensive racist slurs, verbal abuse and regular harassment by their supervisors. As well, the employers had regularly favoured their South Asian and Caucasian workers by paying them their wages, while ignoring and abusing the African workforce.
After an exhaustive ruling – over 600 paragraphs long – the Tribunal proceeded to issue substantive remedial damages amounting to more than $600,000. Each of the 55 workers was awarded basic damages of $10,000 for injury to dignity. In addition, each complainant was granted at least $1,000 for every 30 days that he or she worked for the employer within the specific time period in 2010 when the most egregious conduct occurred. A separate determination by the B.C. Director of Employment Standards was made in favour of the complainants for their unpaid wages. However, it is not clear whether the workers will ever receive their human rights damages, as the employer filed for bankruptcy, and had not even paid the $100,000 in fees that it still owed to the British Columbia government for previous employment standards violations.
Discrimination against older workers is both a widely acknowledged employment phenomena (see the remarks by Mr. Justice LaForest back in 1990 in McKinney v. University of Guelph) and a human rights ground with very little legal traction. The Supreme Court of Canada has decided eight age employment discrimination cases in the Charter era, and the plaintiff has lost every one. This futility has been mirrored in tribunal and lower court decisions throughout Canada, where age employment cases involving direct discrimination are sometimes successful, while more complex and subtle claims of indirect and systemic age discrimination at work invariably fail.
McCormick is the latest exhibit A. The plaintiff was an equity partner in the Vancouver office of a national law firm. (Ironically, Fasken is now the largest labour law firm – it practices on the management side – in the country, after welcoming a number of lawyers from Heenan Blaikie early in 2014 following that firm’s collapse). The law firm inserted a provision in its partnership agreement that required equity partners to retire when they turned 65. As his 65th birthday approached, Mr. McCormick filed a complaint with the British Columbia Human Rights Tribunal, arguing that the provision violated the Human Rights Code. In its defence, Faskens argued that the Tribunal did not have jurisdiction to hear Mr. McCormick’s complaint, since he was not an “employee”.
The Supreme Court accepted Fasken’s preliminary argument, and dismissed Mr. McCormick’s complaint. This case ultimately focuses on the definition of “employee”, and consequently on the deeper meaning of control and power at work. The Court’s assumption – that an individual equity partner in a large national law firm had equivalent power to his partners in shaping the rules of work and the rewards and risks of partnership, and therefore was not vulnerable to its control – betrays a troubling understanding of work relations and an inability to look behind the formal contractual relations. Although the Court emphasized that the control/dependency test was applicable, and form should not triumph over substance, the ruling’s analysis did not suggest an incisive application of those factors. Although the case turned on this preliminary issue, the reasoning is closely tied to the assumptions about older workers who are in senior positions.
Ironically, the United Kingdom Supreme Court, in a ruling issued the same week as McCormick, adopted a broader approach to the control/dependency test. In Clyde & Co. v. Bates van Winklehof,  UKSC 32, the Court ruled that a chief executive of a firm, who was also the controlling shareholder in the company, could effectively be his own boss and still be an employee for the purposes of protective employment legislation.