2021 ends on a victorious note for workers

Here at AQR Law, we’re thrilled to wrap up 2021 with several significant December victories on behalf of workers. Our firm continues to grow and build its capacity to fight the good fight on behalf of unions and their members and we’re looking forward to carrying this momentum into 2022.  

Workers win retroactive wage increase of more than $3.50 per hour  

CUPE Local 7000 SkyTrain members working as Vehicle and Support Shop technicians will get a wage increase of more than $3.50 per hour retroactive to Sept 2019. In the last round of bargaining, the Union and SkyTrain agreed to do a job and wage review of Vehicle and Support Shop Technicians, highly skilled employees who apply a variety of trades backgrounds in a team environment to keep SkyTrain running safely and smoothly. At the hearing, union technicians passionately described how they innovate solutions – at times teaching suppliers how to test and repair their own products – while dealing with technology that includes both brand new and original equipment.  This important victory begins to recognize how valuable these technicians are to our public transit network, particularly as the system continues to expand to meet the needs of the region.  

The Vehicle Technician award comes on the heels of another important victory Local 7000. In an earlier award, all skilled-trades were awarded a 2% trades adjustment in addition to negotiated increases. This was based on the outcome of a process agreed to in bargaining to compare the position and wage rates of Power Technician at Skytrain with the Transit Power Technician at Coast Mountain Bus. Both SkyTrain and Coast Mountain Bus are part of the TransLink organization. According to the agreement, if the comparison indicated that the SkyTrain power techs were underpaid than all skilled trades would get the trades adjustment. Arbitrator Ready found that the SkyTrain power technicians perform the work of not only the Transit Power Technicians, but also the Transit Power Electricians and then some, and were entitled to a higher wage rate.  

It was our firm’s great pleasure to represent CUPE Local 7000 and its members as they strive for just compensation and respect from their Employer. The arbitration awards may be found here and here. 

Workers secure right to be paid out unused vacation 

Until recently, the City of Burnaby had a “use it or lose it” approach to its employees’ vacation—meaning that if a worker did not use all of their annual vacation or defer it into specific deferral banks (which can only take a limited amount of vacation time per year), the vacation was lost. This meant that employees were not getting paid out for their leftover vacation time. This practice was a big problem for members, many of whom were unable to take all of their vacation throughout the year due to their workloads and lost big portions of their vacation entitlements because of it.  

In late 2020, the Burnaby Civic Employees’ Union (CUPE, Local 23) filed a policy grievance about the City’s practice, arguing that it violated the three collective agreements in place between the Union and the City of Burnaby and that it was contrary to the Employment Standards Act. The Union argued that employees should be paid out for their unused and undeferred vacation. On December 14, 2021, after more than a year of the Union advocating hard for its members’ vacation rights, the City of Burnaby agreed that employees should be paid out for their leftover vacation at the end of the year and agreed the make this decision retroactive to 2020.  

Members of the Burnaby Civic Employees’ Union can look forward to receiving a payout in early 2022 reflecting all leftover vacation from 2020 and 2021, and to enjoying this right going forward. We were thrilled to assist the Union in ensuring members get access to all of their hard-earned vacation. 

BC Supreme Court certifies class action against the Pan Pacific Hotel 

On December 10, 2021, BC Supreme Court Justice Matthews issued a decision in which it certified a class action against the Pan Pacific Hotel. The class action was launched by Romuel Escobar, a 25 year hotel employee and member of UNITE HERE Local 40. The lawsuit is on behalf of hotel workers whose hours were dramatically cut or eliminated entirely by the Pan Pacific, without being formally laid off. Pan Pacific sent them messages assuring them COVID-19 was a journey they would “take together” and that the Hotel would “be here for you”. The class action claims workers were unaware that – despite the reassuring messaging – the Pan Pacific had already decided to terminate dozens of them based on a detailed plan intended to minimize the Hotel’s liability for termination pay under the Employment Standards Act. The claim also alleges that, when the Pan Pacific learned workers were organizing with UNITE HERE Local 40, it abandoned its initial detailed plan and terminated workers it believed were union supporters instead.  

A separate class action has also been launched against the Pan Pacific Hotel for eliminating workers’ entitlement to benefits by converting them from regular workers to casual workers.  

Hotel workers were hit hard by the consequences of the pandemic and this decision sets the course for some redress while their union works hard to bargain a fair first collective agreement.  

LRB rules in favour of UNITE HERE Local 40  

The Labour Relations Board handed down two important decisions in favour of Local 40 in December. In 2021 BCLRB 197, the LRB found that Pan Pacific had committed an unfair labour practice when it changed the terms of employment during the freeze period after certification contrary to s. 45 of the Code. In a separate decision, 2021 BCLRB 194, also involving the Pan Pacific, the Board found that the Pan Pacific had committed an unfair labour practice when it refused to give the union the telephone numbers of members, taking the position that email addresses were enough. The employer also took the position that it didn’t have to provide telephone numbers of a group of members, the on-call employees, because it didn’t consider them to be part of the bargaining unit. The Board found that on-call employees are part of the bargaining unit and dismissed the employer’s complaint that the union was bargaining in bad faith because it was pursuing a demand for recall rights for on -call employees.  

Onward to 2022!  

We are excited to share these victories with you as we close out 2021. We hope they inspire you in your continued struggles for justice as they do for us here at AQR Law as we look forward to the new year.  

Remembering Joe Arvay

Joe Arvay was certainly the most remarkable lawyer I have known in over forty years of practicing law. Brilliant, creative, diligent and highly skilled; his profound understanding of the law – especially Canada’s constitution – was unmatched. He weaponized his immense talents as an instrument for justice for oppressed Canadians, smashed through so many barriers, left so many areas of law transformed, extracted so many breakthroughs for people’s rights from a legal system that is inherently conservative.

Hearing Joe lucidly explain to judges how the Charter works was like listening to poetry. Always patient, always gracious, always even-tempered, always able to find the turn of phrase that crystalized a contentious point.

 When the BC government gutted health sector workers’ collective agreements and barred them from re-negotiating them, I was the Legal Director of the Hospital Employees Union. In league with the BC Nurses Union and BC Government and Service Employees’ Union, we retained Joe and his amazing associate, Cathy Boies-Parker, to lead the project and present our case before the Courts. It was an audacious project, too – seeking to reverse decades of Supreme Court of Canada rulings that shut trade unionism out of the Charter. Several prominent labour lawyers from eastern Canada lobbied the unions to abandon the litigation, arguing that we had no chance of winning and would only reinforce the heavy load of adverse jurisprudence.

But we all believed in Joe and Cathy and the unions stuck it out, all the way to the Supreme Court, where they delivered a crushing victory for Canadian workers, solidly grounding the right to engage in collective bargaining in the Charter, and laying the groundwork for a series of follow-up victories, including constitutional protection of the right to strike. The old “labour trilogy” of Supreme Court decisions was left behind in the trash heap. Canadian democracy gained a whole new dimension.

 Joe’s sudden death was an enormous loss, not only as a great lawyer but as a friend.

-Jim Quail

One thing I admired greatly about Joe was his complete lack of any arrogance about his work, which came from his single-minded focus on the work itself. He was not an activist; he was a legal problem-solver. He told me that he ended up doing Charter litigation more or less by accident. He had studied American constitutional and civil rights law during his LLM at Harvard, and then ended up working for the BC Attorney General in the 1980s. When the Charter was enacted, no one really knew what to do with it - suddenly that bit of knowledge from the American context made him the expert. He found that he had a talent and passion for solving legal problems in this brand-new context, and that was what he went on to do for nearly 40 more years.

Joe was a “visiting clinical fellow” at Osgoode briefly when I was there, and he was invited to a luncheon with students from all of Osgoode’s clinical programs to talk about clinical legal education. We students, dressed smartly to impress this famous lawyer, went around the table singing the praises of the clinical programs we worked in. (Osgoode does have very good clinical programs.) When it was Joe’s turn, the Dean asked him for his thoughts about the future of clinical legal education. He shrugged off the question, claiming to really know nothing about clinical legal education, and then went on a long rant about the problem of access to justice in medical malpractice litigation. He was supremely uninterested in the trappings and institutions of the Canadian legal community, and obsessed with the legal problems facing vulnerable people. It was such an inconsequential moment but so perfectly Joe, in my mind. All he wanted to do was litigate and all he wanted to talk about was the law.

When asked why he didn’t enter politics and pursue social change more broadly, Joe said: “I love what I do. I like the fact that governments behave badly. That gives me something to do.” He was above all else a practitioner of the law. He didn’t seek status or achievement. He applied the law to solve problems, day in and day out, and he transformed Canada along the way.

-Susanna Quail

Celebrating the long-overdue end to the "Safe Third Country Agreement"

Justice McDonald of Canada’s Federal Court issued a judgment this morning that struck down Canada’s ironically-named “Safe Third Country ” agreement with the US, under which refugees who travel through the US to seek asylum in Canada are turned back from our border. Under this arrangement, Canada pretends that the United States has a system of justice that conforms with international standards, and willingly participates in abuses that must offend any normal standard of decency.

We encourage you to read the judgment. Justice McDonald found that the agreement violates section 7 of the Canadian Charter of Rights and Freedoms, which guarantees “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The decision addressed three cases that were heard together, brought by people who left horrific conditions in different parts of the world and came to Canada via the US (a country with little interest in accepting refugees). Canada summarily handed them back to the Americans. The evidence of their treatment in their home countries and in the US is shocking.

As the evidence showed, when the US gets its hands on the refugees we send back under the agreement, they are imprisoned under the sub-human conditions we have all heard about under Donald Trump’s regime. They are punished (in violation of international law) for having sought refuge in Canada.

We trust that you share our sense of shame that our country willingly participated in this program, and our gratitude to Madam Justice McDonald for putting a stop to it. We hope and trust that our federal government will not seek to overturn this result on appeal.

by Jim Quail

The imbalance of the UCP's Bill 32

by Andrew Tarver

On July 7, 2020 Alberta’s United Conservative Party government introduced Bill 32, a broad-ranging piece of legislation that eliminates important employment standard protections and attacks the ability of unions to represent their members and achieve better working conditions.  The legislation is designed to ease the “regulatory burden on employers”.  Limits on child labour, requirements to pay out severance or overtime are some of the things that the legislation takes aim at.  When it comes to unions, the Bill includes new restrictions limiting a union’s ability to briefly stop picket line breakers (aka scabs) and engage in secondary site picketing.  The Bill also seeks to cripple the ability of unions to advocate on social justice, political and other issues, in a disturbing echo of the failed Bill C-377 which Stephen Harper’s government introduced in 2015 and anti-union legislation popular in some parts of the United States. Unions have been key critics of the UCP’s lurch to the right since its election and this measure is seen as an attempt to muzzle criticism of their far-right agenda. 

Bill 32 will require unions to report spending on “political activities and other causes” including “general social causes or issues” and “any activities prescribed by the regulations”. Spending on any of these issues will be subject to an American-style opt-in system. Presumably the UCP hopes “political activities” includes opposition to slashing health and safety protections during a global pandemic and that “general social causes” captures protests against cuts to already-overworked front-line health care staff.

Despite claims of “balance” Bill 32 contains no similar obligations on companies. There is no requirement that employers identify to shareholders what portion of their annual budget is focused on anti-worker advocacy and no right for shareholders to withdraw their capital from promoting the UCP’s privatization agenda. Corporations remain unimpeded in their advocacy and, similarly there is no option for members of the public to opt out of paying UCP political staff salaries while they spin narratives on twitter.

That the UCP felt it was time to institute Bill 32 just as it uses the shadow of a global pandemic to move fast on its most aggressive policy moves comes as no surprise. While public attention is focused on how to deal with COVID19, the government moves to weaken its critics, weaken workers’ rights and strengthen the hand of corporate employers with fewer workplace regulations.  Polling indicates that Albertans are not happy with how Jason Kenney and his government have handled the response to COVID19.  In introducing the Bill, UCP ministers and staffers repeated tired clichés of “big union bosses”, seeking to undermine the voice of workers engaged in participatory democracy.

Whether the UCP will be successful in pushing their message out is uncertain. What is certain is that Bill 32 will lock the Alberta government up in yet more Charter litigation against working people. All this at a time when the focus should be squarely on ensuring the needs of all Albertans are being met.

This post is for general information only and does not comprise legal advice.

Calling for Card Check during the COVID Crisis

The COVID-19 pandemic has created serious obstacles for union organizing. Last month, we wrote to Minister of Labour Harry Bains asking the government to implement card check to facilitate workers’ access to unionization during this critical time. You can read our letter here.

COVID-19--Stop employers from demanding doctor’s notes

A few days ago, one of the unions we represent contacted us with a problem: a major employer was continuing to demand that employees get notes from their doctors to take sick leave. They exempted employees with COVID-19 from this (the Employment Standards Act now bans note requirements in those cases anyway). Aside from the difficulties and risk of virus exposure for an employee going to a medical clinic just to satisfy an unreasonable employer, this was wasting precious medical resources that we all need available to help save victims of the coronavirus

We filed a complaint at the Labour Relations Board on Thursday afternoon, and with effective assistance from the Board we succeeded in obtaining the employer’s agreement late on Friday to suspend this practice and to cancel all outstanding demands for doctor’s notes issued in the past several weeks.

Here is a brief excerpt from our submission to the LRB:

In effect, the employers have decided that enforcement of their attendance management strategies to prevent instances of malingering have priority over urgent public needs in the allocation of medical services, when elective surgeries and other procedures have been cancelled en masse to clear the decks for the onslaught that is believed to be imminent. Organ transplants, hip replacements and colonoscopies have been postponed, but an employee suffering from a back ache must waste a physician’s time to satisfy the employer’s sick leave policy.

Employee compliance with the policy would entail attendance at a medical clinic, increasing the risk of spread of the virus, and divert the time, efforts and resources of a physician or other medical professionals away from the public health emergency, for purposes that are trivial in this context. Compliance would be an act of social irresponsibility and undermine pandemic strategies.

All of us have a role in helping our medical service providers and all of our essential workers to get us through the pandemic. Our own little role in that collective effort made for a very satisfying Saturday afternoon, when this was all wrapped up.

Stay healthy, everyone! We can beat this together.

This post contains information of a general nature. It is not intended as legal advice. For more information and legal advice please feel free to contact us

CORONAVIRUS -- Staying safe at work in non-essential workplaces

Last week we blogged about the provincial government’s decision to declare a state of emergency. Further to that declaration, today MLA Mike Farnworth (Minister of Public Safety and Solicitor General) made a series of orders aimed at securing supply chains, preventing hoarding and enforcing social distancing. 

The Province also released a list of essential services (click on the link and scroll down to the second Backgrounder). In the future it’s possible that this list could be used to order certain businesses to close. Currently the Province’s direction is that non-essential businesses may stay open if workplaces can be adapted to the orders and recommendations of the Provincial Health Officer.

As non-essential workplaces continue to operate at the discretion of employers, workers should be prepared to assert their right to safe work environments.

In general employees have an obligation to follow the instructions of their employers. However, in rare circumstances employees do have the right to refuse unsafe work where they have reasonable cause to believe the work presents an undue hazard to health and safety of themselves or others.

COVID-19 is not automatically “an undue hazard.” This latest direction from the Province will help workers establish undue hazard in situations where workplaces are not compliant with the provincial health orders or directions for employers and workers. For example, if you cannot keep two meters space between you and your coworkers, you can raise a health and safety concern with your employer.

If you believe you are being directed to perform unsafe work you should immediately report the circumstances of the unsafe condition to your employer. Your employer will then be obligated to investigate and either provide a safe option or tell you that they believe the work is safe. If you continue to disagree you can seek direction from WorkSafeBC.  Read more about refusing unsafe work here.

It’s a good idea to raise your concerns before you get to the point of having to refuse work, here are some practical tips:

• If you have a union, call your union first

• Bring your concerns to your joint health and safety committee, if you have one

• If possible, come up with specific proposals on how work could be done more safely and connect your concerns to the province’s directions or orders ; for example: could shifts be alternated to avoid overlap? Could break times be changed to limit crowding?

• You can call the WorkSafeBC Prevention Information Line to report unsafe work conditions, request a worksite inspection consultation or for more information about workplace health and safety
  Phone: 604.276.3100 (Lower Mainland)
  Toll-free: 1.888.621.7233 (1.888.621.SAFE) (Canada)

This post contains information of a general nature.  It is not intended as legal advice.  For more information and legal advice please feel free to contact us

COVID-19 Emergency Response Act

On March 25, 2020 after all-night negotiations among the four parties, Canada’s Parliament passed the COVID-19 Emergency Response Act.  The Act gives the federal government sweeping powers until December 20, 2020 to respond to the pandemic.   

Included in this legislation is the  Canada Emergency Response Benefit Act which provides income support payments to workers.  The government anticipates that workers will be able to apply starting April 6.  There are still regulations to be issued.  

To be entitled to the benefit, workers will need to be at least 15 years old, a Canadian resident, and have a total income of at least $5,000 (or potentially higher as determined by regulation) from employment, self employment or pregnancy/parental leave.

Workers must also have ceased working for reasons related to COVID-19 for at least 14 consecutive days within a four-week period, and during those 14 days they must be without income.   “Ceased working” does not include quitting.     Given British Columbia’s job-protected leave now applies to workers that need to take time off to care for children if school or day-care is cancelled due to COVID-19, it is unclear how this exclusion will apply to these workers.

The benefit is projected to be $2000 per month for a maximum of 16 weeks.  But the amount can be varied and the period can be extended by regulation.   

If a mistake is made by government in providing a benefit to someone who is not entitled to it the government can require the individual to repay that amount and use normal government debt collection mechanisms to enforce repayment. 

Employment Insurance Act – Amendments

One important amendment is that until September 30, 2020  a medical certificate is not required to qualify for Employment Insurance sickness benefits. The government has also been given power to make interim orders for new EI benefits or other changes to the program to respond to COVID-19.  

No changes have been made to EI regular benefits.  These continue to last between 14 and 45 weeks, depending on the area you live in and your hours worked/claims history. EI sickness benefits last up to 15 weeks.  

Other Benefits 

The federal government has announced additional benefits available to individuals depending on particular circumstances, including for those that qualify for the GST/HST tax credit or the Canada Child Benefit, a wage subsidy for small employers, and the suspension of Canada Student Loan repayment. 

The Government of British Columbia has also indicated that residents of BC will receive a one-time, tax-free, $1,000 benefit if they are eligible for Employment Insurance or the Canada Emergency Response Benefit. According to Minister of Finance Carole James, this benefit should be open to applications by May.

This post contains information of a general nature.  It is not intended as legal advice.  For more information and legal advice please feel free to contact us. 

Provincial and City emergency declarations to deal with COVID-19 pandemic-- what do they mean?

A couple of days ago I blogged about the federal government’s abilty to declare a Public Welfare Emergency.   At that time federal government ministers were hinting at some of the broad powers available under that legislation.  So far there has not been a federal declaration of emergency.

A number of provinces, however, have gone ahead and declared a state of emergency within their own borders.  

On Tuesday March 17 2020 British Colombia’s provincial health officer Dr.  Bonnie Henry declared a public health emergency. This authority under the Public Health Act has been invoked only once before, to declare a public health emergency in response to the opioid overdose crisis in April 2016. Through the declaration of emergency in 2016 the province dramatically expanded its ability to collect and share health data related to overdoses.

On March 18 2020, our provincial government declared a provincial state of emergency. The last time the province declared a state of emergency was in 2018 during the wildfire season. 

Under the Emergency Program Act the provincial government can declare a state of emergency that allows the Minister of Public Safety and Solicitor General (MLA Mike Farnworth) to “do all acts and implement the procedures that the minister considers necessary to prevent, respond to or alleviate the effects of an emergency or a disaster”. 

The Minister has the power to require any person to render assistance to respond to the emergency, to control or prohibit travel to or from any area of British Columbia, provide for the distribution of essential supplies, control prices and ration food or medical supplies.   Section 10 of the Act sets out the powers and I’ve reproduced at the bottom of this post.  

The declaration is valid for 14 days and can be extended for further 14-day periods. 

It is clear that the province has authority to respond as vigorously as is required to keep British Columbians safe. For example, during wildfires in 2018 the Province used this power to control and prohibit travel to or from certain areas of British Columbia to prevent return to areas under mandatory evacuation order.  

On the same day as the province’s declaration, Vancouver City Council voted unanimously enact a by-law to declare a state of emergency in Vancouver.  The By-law became effectively immediately and empowers the City Manager, Deputy City Manager and Fire Chief to:

a. acquire or use any land or personal property considered necessary to prevent, respond to or alleviate the effects of the emergency, including the use of buildings to assist with the increased demands for healthcare, shelter and childcare;

b. procure on a first priority basis any clothing, equipment, medical supplies or other essential supplies required to cope with the emergency, for the duration of the emergency; and

c. restrict, limit or prohibit through the issuance of written orders, the use or occupancy of any premises within the City of Vancouver.

Details of how these powers will be used and coordinated between each entity are still developing. There may be clarification following the return of the B.C. Legislature on Monday March 23 2020. Further, we anticipate MLAs will debate and pass changes to employment-standards legislation on Monday. We will continue to post updates as changes to the legal landscape emerge.

The list of powers from section 10 of the Emergency Program Act is reproduced below:

(a)implement a Provincial emergency plan or any Provincial emergency measures;

(b)authorize a local authority to implement a local emergency plan or emergency measures for all or any part of the jurisdictional area for which the local authority has responsibility;

(c)require a local authority for a municipality or an electoral area to implement a local emergency plan or emergency measures for all or any part of the municipality or electoral area for which the local authority has responsibility;

(d)acquire or use any land or personal property considered necessary to prevent, respond to or alleviate the effects of an emergency or disaster;

(e)authorize or require any person to render assistance of a type that the person is qualified to provide or that otherwise is or may be required to prevent, respond to or alleviate the effects of an emergency or disaster;

(f)control or prohibit travel to or from any area of British Columbia;

(g)provide for the restoration of essential facilities and the distribution of essential supplies and provide, maintain and coordinate emergency medical, welfare and other essential services in any part of British Columbia;

(h)cause the evacuation of persons and the removal of livestock, animals and personal property from any area of British Columbia that is or may be affected by an emergency or a disaster and make arrangements for the adequate care and protection of those persons, livestock, animals and personal property;

(i)authorize the entry into any building or on any land, without warrant, by any person in the course of implementing an emergency plan or program or if otherwise considered by the minister to be necessary to prevent, respond to or alleviate the effects of an emergency or disaster;

(j)cause the demolition or removal of any trees, structures or crops if the demolition or removal is considered by the minister to be necessary or appropriate in order to prevent, respond to or alleviate the effects of an emergency or disaster;

(k)construct works considered by the minister to be necessary or appropriate to prevent, respond to or alleviate the effects of an emergency or disaster;

(l)procure, fix prices for or ration food, clothing, fuel, equipment, medical supplies or other essential supplies and the use of any property, services, resources or equipment within any part of British Columbia for the duration of the state of emergency.

 As usual, this post contains information of a general nature. It is not intended as legal advice. For more information and specific advice feel free to contact our office.

Coronovirus and what Canada’s Government can do

At today’s Federal Government briefing on the coronavirus pandemic, the Deputy Prime Minister made some comments about the Emergencies Act.  I recalled the introduction of the War Measures Act in the 70’s when civil liberties were suspended in response to the FLQ crisis in Quebec.  So I thought it would be useful to see how emergency powers legislation has been updated since that time, and in light of the 1982  Charter of Rights and Freedoms.

The Emergencies Act was adopted in 1988.  Its preamble reads:

WHEREAS the safety and security of the individual, the protection of the values of the body politic and the preservation of the sovereignty, security and territorial integrity of the state are fundamental obligations of government;

AND WHEREAS the fulfilment of those obligations in Canada may be seriously threatened by a national emergency and, in order to ensure safety and security during such an emergency, the Governor in Council should be authorized, subject to the supervision of Parliament, to take special temporary measures that may not be appropriate in normal times;

AND WHEREAS the Governor in Council, in taking such special temporary measures, would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must have regard to the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency;

Key points to note from this preamble:  “national emergency” must “seriously threaten” the fundamental obligation by government to protect the safety and security of the individual; measures must be special and temporary and not appropriate in normal times; measures are subject to the Charter and International law and that there are rights not to be limited or abridged even in a national emergency.  The latter would include the right to vote and  the right to be protected from unlawful arrest, for example. 

“National emergency” is defined in the Act itself, as something that not only endangers the lives, health, safety and security of Canadians, but it must be of such proportions and nature as to be beyond the capacity or authority of a province to deal with it.

The Federal Government has authority to declare and address four types of emergencies: Public Welfare Emergency, Public Order Emergency, International Emergency and War Emergency. 

These declarations have to be approved by Parliament and there must be consultation with the provinces, or the affected province, prior to issuing the declaration of emergency.  Within 7 “sitting days” of issuing the declaration, there must be a motion of confirmation before Parliament and each of the provincial legislatures.   The consultation process is set out in s. 58 of the Act. Section 14 of the Act specifically requires prior consultation with the provinces or the affected province regarding a Public Welfare Emergency.   That’s why the Deputy Prime Minister said that Parliament was being reconvened.  Presumably all the provinces will do the same. 

The powers available to the Federal Government on a declaration of a Public Welfare Emergency are broad and they are set out in s. 8(1) of the Act as follows:  

 (a) the regulation or prohibition of travel to, from or within any specified area, where necessary for the protection of the health or safety of individuals;

(b) the evacuation of persons and the removal of personal property from any specified area and the making of arrangements for the adequate care and protection of the persons and property;

(c) the requisition, use or disposition of property;

(d) the authorization of or direction to any person, or any person of a class of persons, to render essential services of a type that that person, or a person of that class, is competent to provide and the provision of reasonable compensation in respect of services so rendered;

(e) the regulation of the distribution and availability of essential goods, services and resources;

(f) the authorization and making of emergency payments;

(g) the establishment of emergency shelters and hospitals;

(h) the assessment of damage to any works or undertakings and the repair, replacement or restoration thereof;

(i) the assessment of damage to the environment and the elimination or alleviation of the damage; and

(j) the imposition

(i) on summary conviction, of a fine not exceeding five hundred dollars or imprisonment not exceeding six months or both that fine and imprisonment, or

(ii) on indictment, of a fine not exceeding five thousand dollars or imprisonment not exceeding five years or both that fine and imprisonment,

for contravention of any order or regulation made under this section.

Section 3 of the Act specifies that the emergency powers must be exercised with a view to achieving to the extent possible concerted action with the provinces and which doesn’t unduly interfere with provincial responses to the emergency.

Of interest to the labour movement is section 3(b) which clearly states that these powers:  

b) shall not be exercised or performed for the purpose of terminating a strike or lock-out or imposing a settlement in a labour dispute.

In the meantime, as we await the declaration of a national Public Welfare Emergency we should all heed the recommendations of public health officers: wash your hands, stay home, don’t hoard, check in with your neighbours (by phone or email of course), self-isolate and work from home. And don’t forget to thank front line health care providers and all other working people who are delivering mail, working in grocery and drug stores, delivering take out or still looking after guests in hotels and making our municipal services run. Elected leaders like Adrian Dix, our provincial Minister of Health who has been advocating for more stringent border measures to keep British Columbians safe should also get a nod.

There must be immediate financial assistance for workers facing layoffs. In the coming days unions will be called upon to ensure that their members are protected not only in terms of their health and safety, but also with respect with sick benefits, layoff protection under the Labour Code and benefit and pay continuance, to name a few. Union should also be watching for provincial and federal initiatives that may be of help.

As usual, this post contains information of a general nature. It is not intended as legal advice. For more information and specific advice feel free to contact our office.

BCPFFA Western Regional Conference

We are thrilled to be a sponsor for the BC Professional Fire Fighters Association Western Regional Conference on February 10-13. Rachel Roy will be teaching a workshop on campaign law.

Click here for more information on this invaluable conference!