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Aside from the social media buzz that the public dispute between Jian Ghomeshi and the CBC has generated, Ghomeshi’s announcement that he will sue his former employer for $50 million, claiming “among other things, breach of confidence and bad faith” raises an interesting legal question:
Do the courts have the jurisdiction to hear Ghomeshi’s claim?
Read moreJim spoke with CBC Radio's Daybreak North program about the Site C Joint Review Panel report. Listen here.
I was legal counsel in a challenge to the introduction of mandatory Voter ID in Canadian federal elections. We argued that the government needed to provide a fail-safe mechanism to protect people’s right to vote. We said that people without the necessary ID should be able to swear a declaration confirming their identity and residence.
Read moreA few days ago, the Supreme Court of Canada handed down a decision confirming a union’s right to personal contact information about the people it represents, in Bernard v. AG of Canada and PIPSC
Under federal legislation, Elizabeth Bernard was able to opt out of membership in the union representing her government service bargaining unit, but she retained the obligation to pay union dues. She was what is called a “Rand formula” employee – union membership is optional, but the union has a duty to represent all the workers, and has the right to collect their dues in return.
Read moreSome of the trickiest situations unions face when representing members facing disciplinary investigations by their employers arise where the same activity has attracted the attention of the police. That is because the rules surrounding police investigations and workplace investigations are incompatible.
One of our most fundamental democratic rights, enshrined in the Canadian Charter of Rights and Freedoms, is freedom from self-incrimination
Read moreThe energy sector is one of the most complex and difficult areas of policy in the world today. Energy policy-makers and regulators face a three-cornered dilemma. The imperatives of each corner tend to defeat the others. The competing objectives are:
1. maintaining sufficient reliable energy supply
2. maintaining affordability and accessibility
3. mitigating climate change and other environmental degradations
Read moreDespite a wave of deregulation which came into vogue in the early 1980’s, many important services and systems we all rely upon are overseen by regulatory agencies and tribunals who set the prices for services, determine minimum service standards, and approve major contracts, projects and capital investments. Here in British Columbia, for example, our electricity and gas utilities are supervised by the BC Utilities Commission, as is the mandatory coverage program of the provincial government’s monopoly automobile insurance provider, the Insurance Corporation of British Columbia.
Read moreBritish Columbia deals with essential service labour disputes differently from most jurisdictions. Rather than the familiar game of industrial “chicken” (where unions press their strike actions as far as they can before government intervenes with back-to-work orders and lopsided arbitration) we have a “controlled strike” mechanism. The Labour Relations Board designates specified levels of services and staffing as essential; the parties are free to strike or lock out so long as the designations are maintained.
Read moreThere is no magic solution to the damage that our use of energy inflicts on the earth’s climate, other than conservation. Every other strategy has its downside of unintended consequences. That includes the use of renewable generation technologies.
There is a growing push from US utilities to flatten out block or multi-tiered electricity rates to buffer themselves from losses from net metering.
Read moreIf your car has ever been towed in Vancouver, because it was parked illegally for example, you will undoubtedly have come into contact with Busters Towing.
And if you're like me you will have wondered whether these folks are unionized. Well it now turns out that they may soon be.
In a decision handed down on April 23, 2013 Busters v. Teamsters Local 31, Associate Chair Matacheski, rejected the first of a number of employer preliminary objections to the application for certification.
Read moreSometimes I come across decisions that while on the surface don't seem to have much to do with labour law, they can have huge consequences for working people. For example, disability benefits and group life benefits are often provided as a result of a collective agreement obligation, but recovering those benefits will involve suing the insurance company in court. In those circumstances, it will be insurance law that applies.
Read moreA brief and clear arbitration decision by Arbitrator Colin Taylor on the rate of pay for a coal mine worker who worked on Christmas Day in December 2011 was issued on November 13, 2012. It reminds us of the importance of negotiating precise collective agreement language, and of the need to make the resolution of disputes through labour arbitration more timely. At least everyone in that bargaining unit will know what rules apply if someone workes this Christmas day.
For those interested in improving the process of labour arbitration, the Labour Law Subsection of the BC Branch of the Canadian Bar Association sponsored several panel discussions at their meetings this fall.
Mackenzie v. Jace Holdings is a decision issued last week where the Human Rights Tribunal upheld a complaint by a former employee of Thrifty's who had suffered from depression most of her life that she had been improperly dismissed because of her disability. This is a case that illustrates that an employer has a duty to inquire into whether an employee's inappropriate behaviour is linked to a mental health issue. Where the employer fails to make such inquiries and proceeds to terminate or otherwise discipline an employee it runs the risk of being found in breach of the Human Rights Act and of failing to accommodate the disabled employee.
In a decision earlier in 2012, Vernon v. BC Liquor Distribution Branch the BC Supreme Court highlighted the importance of fair and impartial investigations into employee misconduct. Although this did not involve a unionized employee, the court's comments are applicable. The court's criticism of the investigation process speaks for itself and starts at paragraph 278 of the decision:
[278] The investigation was flawed from beginning to end. It was neither objective nor fair.
The Supreme Court of Canada just issued its decision in R.v. Cole http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/12615/index.do. Below are the relevant quotes from the decision headnote:
The accused, a high-school teacher, was charged with possession of child pornography and unauthorized use of a computer. He was permitted to use his work-issued laptop computer for incidental personal purposes which he did. While performing maintenance activities, a technician found on the accused’s laptop a hidden folder containing nude and partially nude photographs of an underage female student.
The BC Supreme Court refused to overturn a decision of the LRB dismissing a s.12 complaint against the BCGEU. In Mazerolle v. Labour Relations Board the BCGEU settled a grievance but the grievor changed her mind right after the settlement. BCGEU refused to renege on the settlement and the court found that it wa reasonable for the LRB to conclude that broader labour relations reasons were proper for the BCGEU to consider in deciding not to renege on the settlement with the employer.
There are some good lessons for stewards and union representatives from this case. The most important one is to take good thorough notes of the discussions with grievors throughout the course of settlement negotiation and to keep the grievor informed throughout the whole process.
http://canlii.ca/en/bc/bclrb/doc/2012/2012canlii44734/2012canlii44734.html is the link to a recent LRB decision that provides good guidance on what the law is when a union and an employer settle a grievance and the grievor signs a release. According to the LRB, absent circumstances that prove undue influence or duress, the release signed as part of the settlement will bar a complaint of a breach of duty of fair representation against the union.
In Viking Air v. CAW B87/2012 a reconsideration panel chaired overturned an original decision that had ruled the employer did not have to provide the union with its members' e-mail addresses. In the original decision Vice-Chair Topalian concluded that because the employer had already provided the members' addresses and telephone numbers and because the union could ask its members directly for their e-mail address, the e-mail addresses were not necessary for the union to meet its representational obligations under the Labour Code.
Read moreI'm often asked to explain the doctrine of estoppel and how it applies in the labour relations context. I found this nice quote in University Health Network v. Ontario Nurses Association issued two weeks ago:
54. Both parties referred to the recent Supreme Court of Canada’s recent decision in Nor- Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59 (CanLII), 2011 SCC 59 in which the Supreme Court upheld an arbitrator’s award that had adapted and applied the equitable doctrine of estoppel
Vice Chair Elena Miller's decision in Matson v. Interior Health Authority issued on November 15, 2011 will be of interest to those unions where long term disability claims are adjudicated by a claims review committee. This regime is to be found in the health care collective agreements, the provincial public service and other, primarily, public sector collective agreements where the plan is self-funded but its administration is contracted to one of the usual insurance companies
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