We are a decade into century already, which makes it a good time to reflect on the past ten years in labour and employment law. Professor Michael Lynk, U. of Western Ontario Law School, suggested to me the idea of asking academics and practitioners to reflect on the past decade and identity what they think are the 5 most important labour and employment law cases. This is a great idea, and so I challenged Michael to start the ball rolling. Michael’s list below includes some expected gems, but also at least one case that may surprise, from the B.C. Labour Relations Board. This is great stuff, Michael.
I will now do my part to try and get others to send a long their own lists. The sort of detailed description done by Michael is not necessary if time does not permit. But a list of cases you think are most significant, and maybe a short sentence on why you think so, would be great. I will contact some leading law firms directly, but if you are a reader, and have an opinion, send it along.
Here is Michael’s excellent contribution:
This wasn’t as easy a task as I initially thought. When I look back at the 1990s, I realize that the difficulty for that decade would have been to narrow the list to five top choices, with 7 or 8 cases as strong competitors (i.e., Central Alberta Dairy Pool, Meiorin, Renaud, Wallace , Machtinger, Weber, Lavigne, Grismer, etc.). For this past decade, the decisions that should be placed at the top have been a little less obvious.
In deciding on the top five workplace cases, I used the following criteria:
(i) importance of the case as a statement on Canadian labour law; and
(ii) influence or likely influence on the development of labour law.
The envelope, please:
1. B.C. Health Services (SCC 2007). It took the Supreme Court of Canada 25 years to issue a strong majority judgement supporting freedom of association (Dunmore offered a start, but it also left an ambiguous state of affairs on the right to organize, evidenced by the arguments on the fundamentals of FoA at the SCC in Fraser in December 2009), but BC Health Services has put the constitutionalization of Canadian labour law squarely back on the agenda, for better or for worse. The decision has placed the 1987 Labour Trilogy on life-support, it is one of the strongest SCC statements yet about utilizing international human rights and labour law standards when reading the Charter, it has further encouraged legal scholarship on the Charter and the workplace, the decision has caught the attention of the ILO and labour scholars abroad, and it has caused governments to re-think about when they can push the automatic re-set button for back-to-work legislation during public sector strikes (i.e, OC Transpo strike in Ottawa and the York University strike).
The quality of the reasoning in BC Health Services has been criticized (such as Brian Langille and Eric Tucker), but not so seriously as to diminish its primacy. Whether BC Health Services has legs remains to be seen (see Fraser, ibid.), but debates on labour law and the Charter, from now on, will be thought of as belonging to pre-BC Health and post-BC Health eras.
2. Parry Sound (SCC 2003). The Supreme Court of Canada in this decision endorsed a broad approach to the jurisdiction of labour arbitrators to hear human rights issues, and also re-affirmed the centrality of human rights law in the workplace. Parry Sound did not start the ball rolling on the importance of human rights in the unionized workplace (that was done by a long list of cases in the 1990s, such as Central Alberta Dairy Pool and Meiorin), but it did solidify human rights as arguably the single most important workplace law issue today. Partly as a result of Parry Sound, more human rights issues are litigated in front of labour arbitrators than before, and a wider range of significant human rights decisions are issued by labour arbitrators. Because of this trend, the labour arbitration forum has become at least as important a human rights legal venue as human rights tribunals in Canada.
3. Keays v. Honda Canada (SCC 2008). The most important employment law decision issued in the Naughties. The Supreme Court of Canada altered, but did not do away with, the confusing damages-for-wrongful-dismissal paradigm that it created in Wallace (1997). Employers and management-side employment lawyers everywhere heaved an enormous sign of relief when Court rejected both the enormous punitive damage award that the Ontario Superior Court had originally awarded Mr. Keays ($500,000) and the more modest, but still substantial, damage award that the Ontario Court of Appeal had settled on ($100,000). Human rights advocates were disappointed that the Supreme Court in Keays did not refine or settle the particular disability accommodation legal issues in the non-unionized workplace, which still leaves the courts as providing an inferior legal venue for accommodation issues that are tied to a wrongful dismissal. As well, Keays and two other recent Supreme Court of Canada decisions — McGill University (2007) and Hydro-Quebec (2008) — are emblematic of the rise in importance of
mental illness/psychological disability cases in the workplace, although, in each of these cases, the claimant lost.
4. Dunsmuir v. New Brunswick (SCC 2008). One of the most important administrative law decisions in recent times, and one with a potentially significant impact on workplace law. Dunsmuir re-calibrated the judicial standard of review for decisions from administrative tribunals, reducing the three levels (patently unreasonable, reasonableness simpliciter and
> correctness) to two levels (reasonableness and correctness). The decision caused a concern among the labour law community that the courts would now have permission to intervene more frequently in labour arbitration and labour relations board decisions because of a potentially lower standard of overall deference, but a clear pattern is not yet identifiable. While labour lawyers would applaud any effective attempt to reduce the mystery around judicial review, it is not evident that taking away the “patently unreasonableness”standard for the review of most labour decisions was a step forward. Nonetheless, every application for the judicial review of a labour decision since 2008 begins with Dunsmuir.
5. Fraser Lake Sawmills (BCLRB 2002). Perhaps the most perplexing accommodation issue facing labour arbitrators over the past decade has been those discipline and discharge cases where a mental illness or an addiction has played a contributing role to the employee’s behaviour. In the face of human rights obligations to accommodate, and the orthodox industrial relations standards on assessing culpable acts, Canadian arbitrators have grappled with the appropriate approach. The British Columbia Labour Relations Board decision in Fraser Lake Sawmills has been extremely influential in shaping the “hybrid” approach to these cases, where arbitrators are directed to use a mixture of accommodation and discipline principles when determining the outcome of a grievance. A string of subsequent decisions from British Columbia — Fording Coal, Health Services Association, Kemess Mines — has built upon Fraser Lake Sawmills, solidifying the hybrid approach in that province and shaping arbitration decisions in the rest of the country.