Legal Update...Legal Update –OMHRA Fall 2019 Conference • Arbitrator found City failed to...

Legal Update – OMHRA Fall 2019 Conference

Legal Update

September 11, 2019

Mark H. Mason I Jessica M. Toldo


Legislative Update


Legislative Update

• Bill 100 - Protecting What Matters Most Act, 2019

• Bill 124 – Protecting a Sustainable Public Sector for

• Future Generations Act, 2019

• Employment Standards Act, 2000 and Overtime

• Averaging Agreements

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Bill 100 – Protecting What Matters Most Act, 2019

• Royal Assent on May 29, 2019

• Introduced changes to:

• Fire Protection and Prevention

Act, 1997

• Municipal Freedom of

Information and Protection of

Privacy Act

• Public Sector Labour Relations

Transition Act, 1997

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• Municipalities

• Local boards established under the

Municipal Act, 2001

• Authorities, boards, commissions,

corporations, offices or organizations,

a majority of whose

members/directors/officers are

appointed by or under the authority

of the council of a municipality

• Government/Crown

agencies

• Universities and

Colleges

• School Boards

• Public hospitals

• Licencees under the

Long Term Care Homes

Act, 2007 (unless

operate for-profit)

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Bill 124 – Protecting a Sustainable Public Sector for Future

Generations Act, 2019

Excluded from Act Within Scope of Act

• Ornge

• Children’s Aid

Societies

• Any not-for-profit

organization that

received at least 1

million in funding

from Ontario

government in 2018


ESA – Overtime Averaging Agreements

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• Proposal to allow unionized parties to

negotiate agreements with higher/no

cap

• Exclusive to unionized context – non-

unionized parties would remain

subject to four week limit

• Government seeking feedback on

proposal

• Comments due August 5, 2019


What’s the Latest Case

Law Scoop?


• Arbitrator found City failed to

accommodate grievor

• Duty to accommodate required examining

how grievor’s existing duties (i.e. 24 hour

suppression) could be modified

• Department failed to engage in

assessment of whether grievor could be

accommodated on 24-hour shift

• Department had two options: 1) accommodate

on 24 hour shifts above complement or 2)

accommodate on days outside suppression

• Arbitrator found costs same for both options

and accommodation outside suppression

“entailed significantly more disruption to

working life of firefighter”

• Required to accommodate on 24 hour shift

without her being counted in complement

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Accommodating Pregnant Firefighters

Windsor (City) v. WPFFA (2010)Corporation of the Town of

Oakville v. OPFA (2016)


Town of Ajax v. Ajax Professional Fire Fighters

Association, Local 1092, 2019 CarswellOnt 12415

• Grievor was female suppression firefighter

• Suppression firefighters scheduled on 24-hour shifts

• Informed Town that she was pregnant and would require accommodations for remainder of pregnancy

• Medical restrictions prevented her from responding to emergency calls

• Normal policy/practice of Town was to assign firefighters who required accommodation for extended periods to day shift

• Grievor was adamant that she be accommodated on 24-hour

Facts:

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• Did the Town meet its procedural and substantive duty to accommodate

when it placed the grievor on modified duties on the day shift?

Issue:

• Arbitrator: evidence demonstrated that Chief and Deputy Chief had met with the grievor to discuss accommodations on multiple occasions

• Met procedural duty to make “serious effort to consider and assess the issue of accommodation in all of the circumstances of the case”

• Evidence showed that half of fire suppression 24 hour shift was emergency response work, which grievor acknowledged she couldn’t perform

• If assigned to shift, grievor not be counted as part of minimum complement and would require Town to staff additional employee

Decision:




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• Arbitrator: Town was not required to assign extra staff to perform the

duties employee seeking accommodation could not do

• Also not required to fundamentally change the nature of the work

that needs to be done

• Arbitrator: grievor’s request would be for “singular objective of

providing the Grievor with duties she could be assigned at that

particular time of the day” and that such an accommodation would

constitute a “make-work assignment”, which the law did not require

the Town to provide

Decision


Objective of procedural duty is to ensure the employer engages in a “serious effort to consider and assess the issue of accommodation in all the circumstances of the case”

Use of policy/practice for accommodation not inconsistent with “serious effort” if applied on individualized basis

Substantive duty to accommodate does not require an employer to up-staff their complement

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Key Takeaways

Legal Update – OMHRA Fall 2019 Conference13

Facts:

City of Toronto and CUPE, Local 79, 2018 CanLII

76445 (ON LA)

• Unionized City employee had been suffering from mental health issues

resulting from stress

• Employee had received appropriate workplace accommodations since

1999 (fewer hours, fewer work days per week, etc.)

• Continued to be considered a “full-time” employee under the Collective

Agreement and receive full-time benefits

• City changed employee’s status from full-time to part-time

• Union grieved City’s unilateral change of employee status


City of Toronto and CUPE, Local 79, 2018 CanLII

76445 (ON LA)

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• Is it permissible for the City to make this change?

Issue:

• Arbitrator allowed the grievance and restored the employee’s full-time status, ordering compensation for losses

• Arbitrator: employer would normally have the ability to make this reclassification; however, due to the length of the accommodation at full-time status, onus shifts to employer to demonstrate reasonable grounds for change or undue hardship to continue to accommodate.

Decision:


City of Toronto v. Canadian Union of Public

Employees, Local 79, 2019 ONSC 4045

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• Divisional Court: quashed decision concluding that the arbitrator’s decision

was unreasonable and inconsistent with existing legal principles

• Found arbitrator erred in four fundamental ways:

1. The Arbitrator relied on a test that was not put forward by and/or

argued by the parties

2. There was no jurisprudence to support the Arbitrator’s test

3. The Arbitrator inappropriately focused her analysis on the scope of

the duty to accommodate and undue hardship

4. The Arbitrator failed to follow Orillia Soldiers

Decision:


Key Takeaways

No discrimination in failing to provide full-time benefits to person working part-time hours, even if that working part time hours because of a disability

Differential treatment with respect to compensation/benefits due to hours worked, not disability - employer not required to compensate a disabled employee for time not worked

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Facts:

International Brotherhood of Electrical Workers,

Local 1620 v. Lower Churchill Transmission

Construction Employers’ Assn. Inc, 2019 NLSC 48

• Grievor had prescription for medical cannabis and used every evening after work

• Had been actively involved on a project and had reported his cannabis use to his

direct supervisor (who didn’t report it further)

• Grievor was subsequently laid off and when he went to exercise his recall rights to

return to work on the project, he failed his drug and alcohol screen

• Denied a safety-sensitive position on the project

• Grievor challenged this decision and Arbitrator dismissed grievance

• Arbitrator: no way to accurately measure cannabis impairment and as a result,

accommodating the grievor amounted to undue hardship


International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill

Transmission Construction Employers’ Assn. Inc, 2019 NLSC 48

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• Did the employer fail in its duty to accommodate the grievor? Or did the

accommodation of the grievor’s cannabis use amount to undue hardship?

Issue:

• Court: only way grievor could be accommodated was by demonstrating that he “could work in one of the positions in issue, with or without modification, notwithstanding his cannabis use”.

• Evidence indicated that no positions available that were not safety-sensitive and no “other medical or therapy” options available to grievor

• Court: grievor could not be accommodated without undue hardship

Decision:


International Brotherhood of Electrical Workers, Local 1620

v. Lower Churchill Transmission Construction Employers’

Assn. Inc, 2019 NLSC 48

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• Court: Arbitrator properly concluded from the evidence that:

1. Use of marijuana can impair the ability of a worker to function

safely in a safety-sensitive workplace;

2. Impairment can last up to 24 hours after use;

3. Impairing effects may not be known to the user; and

4. There was no available means or method for accurately

testing impairments from cannabis use in the workplace

Decision:


Key Takeaways

The requirement to accommodate a medicinal cannabis user in a safety-sensitive position mayamount to undue hardship

BUT … every accommodation issue is unique and all requests for accommodation must be dealt with on a case-by-case basis

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Facts:

College Employer Council v. OPSEU (CAAT-A

Bargaining Unit), 2019 CanLII 33712 (ON LA)

• In December of 2017 parties bargained an LOU that undertook to negotiate

amendments to the Collective Agreement in light of Bill 148

• Union argued that had adjusted proposals on the basis of the LOU coming

into effect – e.g. they dropped their proposal for equal pay for equal work

• Relied on the fact that the parties had not used language in which they

agreed to negotiate consequential changes arising from ESA “as it may be

amended from time to time”

• Argued LOU was clear, that it specifically referenced Bill 148 and that it

required negotiations on consequential changes arising from it




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• Was the employer required to negotiate consequential adjustments to the

Collective Agreement arising from Bill 148?

Issue:

• Arbitrator: parties agreed to arbitrate consequential changes of Bill 148 on a shared understanding that the law was about to change.

• Arbitrator: in agreeing to the LOU clear that parties had anticipated Bill 148 not just becoming the law but staying the law

• Found that parties had agreed to the LOU to ensure that the Collective Agreement was statutorily compliant

Decision:




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“Experience indicates that in agreeing to the letter of understanding they did so to ensure that the collective agreement was statutorily compliant. The law changed when Bill 148 came into effect, and then it changed again one year later. But, as it turned out, no rights vested. If they had – for example by negotiation or arbitration, during the period January 1, 2018 to December 31, 2019 – this would be a completely different case. […]. To now require the College to negotiate an arbitrate repealed entitlements would be an exercise in close to complete futility. […] While giving effect to the agreement of the parties is the primary arbitral interpretive goal, it has to be done in a practical common-sense manner, one that pays attention to the labour relations context.”


Key Takeaways

Employer may not be tethered to Bill 148 commitments incorporated into the Collective Agreement

BUT … case not necessarily binding - Arbitrator will likely look at the specific language of the parties Collective Agreement

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Facts:

Health Sciences North v. CUPE, Local 1623, 2019

CanLII 31098 (ON LA)

• Grievor was terminated for sexual harassment

• Complainant, MC, had reported her allegations of harassment to Union

who she alleged provided little support

• MC subsequently reported the workplace harassment to the employer, who

investigated, substantiated MC’s allegations and terminated the grievor

• MC was now seeking “full party standing” at the grievor’s termination

arbitration – alleged that this was necessary to allow her to “represent her

interests in light of the potential conflict with the union’s interests and the

potential impact of the grievance on her stability of employment”




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• Is a harassment complainant entitled to third party standing in a grievance

arbitration relating to their alleged harasser?

Issue:

• Arbitrator: there are no cases that were referred to where a harassment complainant has been granted third party standing in a grievance arbitration

• Found request went “far beyond the limited right of participation”

• Arbitrator: case law is settled that grievance arbitration is a private process between the union and the employer

Decision:




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• Arbitrator: may grant intervenor status in circumstances where 1) third party

effectively unrepresented and its legal rights stand to be adversely affected or

2) where a failure to grant intervenor status would lead to a parallel hearing with

a potential contradictory result

• Could not find that MC had a legal interest or right that would be adversely

affected and no legal right that would be impacted by outcome of grievance

• Arbitrator: MC had “nothing significant to add to the proceeding as a party that

will not and cannot be advanced by the employer. It seems to be that the

interests of MC will effectively be represented by the employer”.

• Appropriate avenue would be duty of fair representation complaint to OLRB

Decision:


Key Takeaways

No precedent for involving harassment complainant in termination grievance of harasser

Arbitration is private process between employer and union

Third party will only be given standing in exceptionalcircumstances i.e. where legal right being impacted and interests will not be represented by another party

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Facts:

Humber River Hospital and Teamsters, Local 419

(9 May 2019)

• Grievor was a 25-year employee with a clean record

• Had been absent from work on sick leave

• During sick leave, was arrested and went to jail for a few months

• Grievor’s wife contacted the Hospital on behalf and requested LOA

• Wife did not give specific reason for LOA request other than saying that there was an ongoing “legal issue”

• LOA was subsequently denied

• Union did not reveal that grievor had been incarcerated until shortly before hearing



(9 May 2019)

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• CBA provided that “employee shall lose all seniority and shall be deemed

terminated if: (c) employee is absent from scheduled work for a period of three

(3) or more consecutive working days without notifying the Hospital of such

absence and providing a reason satisfactory to the Hospital”

• Arbitrator Slotnick reviewed the law regarding deemed termination cases

• Arbitrator: deemed termination clauses are not disciplinary and onus is on the

Union to establish that the clause does not apply

• If Union does not discharge onus, arbitrator does not have discretion to reinstate

the grievor or to otherwise vary the penalty

Decision:



(9 May 2019)

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• Arbitrator: where clause contains the phrase “reason satisfactory to the

employer”, the employer has more discretion to reject the reasons for absence

than the more objective standard implied in clauses containing the phrase

“satisfactory reason”

• Fact that an employee does not intend to abandon his/her job not relevant

• Where reason for absence given before termination, employer must assess in

good faith

• Arbitrator: no reason for absence provided to employer before termination and

dismissed grievance

Decision:


Facts:

English v. Manulife Financial Corporation, 2019

ONCA 612

• In 2015 Manulife announced converting to a new computer system

• Plaintiff was in mid-60s and did not want to work with the conversion

• In September 2016 voluntarily gave her retirement notice (in writing)

• Met with supervisor who told her that she could rescind or reconsider her resignation

• Manulife subsequently suspended the conversion and Plaintiff advised supervisor that

she wished to rescind the retirement notice

• Notice of retirement still processed and Plaintiff sued for common law damages

• Court: dismissed action on basis that clear offer and acceptance of the retirement

notice, that the Plaintiff hadn’t been coerced into retiring and that there had been no

acceptance of her request to resile from it.


English v. Manulife Financial Corporation, 2019

ONCA 612

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• Did the Plaintiff clearly and unequivocally resign from her employment with

Manulife?

Issue:

• Court: facts demonstrate that Plaintiff was equivocal when giving her resignation notice and that his equivocation was condoned by Manulife

• When Manulife cancelled the conversion the basis for the Plaintiff’s resignation disappeared and Plaintiff promptly informed Manulife that she did not intend to continue with retirement

• Manulife acknowledged decision and did not tell her it was a problem

• Court: Manulife bound by promise to Plaintiff that she could change her mind

Decision:


Key Takeaways

Providing an employee with an option to “change their mind” can undermine the “clear and unequivocal” nature of a resignation

Where an employee attempts to rescind a retirement an employer must be clear in articulating that will not be accepted

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Facts:

Resource Development Trades Council of Newfoundland

and Labrador v. Muskrat Falls Employers’ Assn. Inc, 2019

NLSC 68

• Worksite was safety sensitive hydroelectric dam

• Policy provided that “the odour of drugs or alcohol detected on or in the

vicinity of the Worker” was reasonable grounds for testing

• Sniffer dog found drugs located in seat pocket of car next to Grievor

Employer demanded Grievor undergo urinalysis test

• Final results showed presence of drugs

• Grievor was placed on administrative leave without pay and grieved

• Arbitrator: employer policy was reasonable exercise of management rights


Resource Development Trades Council of Newfoundland and Labrador

v. Muskrat Falls Employers’ Assn. Inc, 2019 NLSC 68

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• Was the employer’s “Drug and Alcohol Standard” reasonable?

Issue:

• Court: Arbitrator considered issues raised in Grievance and determined that standard was reasonable as applied to facts before him – decision was within the range of reasonable outcomes raised by facts of case

• Employer rule cannot be used to ground discipline unless the employees have notice of the rule and potential consequences for breaching it

• Arbitrator accepted that no evidence workers given notice of rule or potential consequences but “common sense” would lead employee to conclude that reasonable grounds includes presence of drugs in his vicinity

Decision:


Resource Development Trades Council of Newfoundland

and Labrador v. Muskrat Falls Employers’ Assn. Inc, 2019

NLSC 68

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“ […] the Arbitrator referred to previous arbitral awards that found it to be disingenuous for an employee to rely on lack of notice that the employer would

demand a drug test when the employee attends at work impaired. The conclusion that common sense would dictate that an employee who shows up for work with signs of impairment might be subject to a drug test demand with potential disciplinary consequences seems unassailable. In my view, the conclusion that the same can be said about being found merely in the vicinity is not as obvious. However, the Arbitrator so found, and he did so after reviewing the relevant facts. Decisions of this nature fall squarely within the expertise of labour arbitrators and within the jurisdiction accorded to them in furtherance of the goal of expeditious resolution of disputes under a collective agreement.”


Key Takeaways

In safety sensitive positions, reasonable grounds to search may include where “the odour of drugs or alcohol is detected in the vicinity of the Worker”

Notice of potential drug testing or fact that testing could end in discipline not a block to testing in “common sense” circumstances

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Facts:

OPSEU v. The Crown in Right of Ontario (Ministry of

Community Safety and Correctional Services), 2019 ONSC

2952

• Union filed a grievance alleging that the employer had violated the grievor’s rights pursuant to a collective agreement that guaranteed a “harassment free work environment”

• Arbitrator agreed with union but found that he could not award the grievor damages for mental stress suffered

• Arbitrator: “the ‘medical condition’ of the grievor was such as to be properly considered an insured condition/injury pursuant to the Workers Safety and Insurance Act of Ontario”

• The Union brought an application for judicial review on the basis that the arbitrator had unreasonably applied the WSIA’s “employment function” mental stress exclusion


OPSEU v. The Crown in Right of Ontario (Ministry of Community

Safety and Correctional Services), 2019 ONSC 2952

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• Was the arbitrator’s application of the WSIA “employment function” mental stress

exclusion reasonable?

Issue:

• Divisional Court: remedy claimed by the union flowed from employer’s “decisions or actions related to the worker’s employment”.

• Arbitrator found remedy claimed by grievor flowed from conduct that fell within employment function mental stress exclusion but at the same time determined that the WSIA was the appropriate form

• Divisional Court: decision was unreasonable and internally inconsistent

• Allowed application for judicial review and remitted matter back to Arbitrator

Decision:


Facts:

Blake v. Blake, 2019 ONSC 4062

• Summary judgment motion on an estate litigation matter

• Decision directly on point (and adverse to the respondent’s interests) had been written about in a blog published by the respondent counsel’s firm

• Case was not presented at hearing by respondent counsel

• Court found the case through their own research


Blake v. Blake, 2019 ONSC 4062

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• Ordered the respondent to pay substantial indemnity costs

• Determined that respondent’s counsel had purposely not brought

the decision to the attention of the court

• Court: counsel has a positive duty to make full disclosure of all

binding authorities relevant to a case regardless of whether they

support or undermine the position being urged upon the court and

even if opposing counsel has not cited such authority

Decision:


Key Takeaways

Where lawyer knows of a relevant authority failure to inform the court of that authority could be seen as an attempt to mislead the court

Where lawyer does not know about authority, ignorance may still be no excuse

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And Some Interesting

Developments …


Theft of Drugs by Nurses

Regional Municipality of Waterloo (Sunnyside Home) v.

ONA (2019)

• Grievor’s behavior consistent with substance use disorder

• Discriminatory intent by employer not required to demonstrate prima faciediscrimination

• Employer failed to consider how grievor could be accommodated

ONA v. Royal Victoria Regional Health Centre (2019)

• Decision of Arbitrator upholding termination was unreasonable

• Rejected Arbitrator’s reliance on fact that grievor acknowledged mens rea for purposes of criminal proceeding

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Key Takeaways

Elk Valley = guiding principles; Gooding = bad law

Discriminatory intent by employer not required to demonstrate prima facie discrimination

Requirement to establish “compulsion” to steal not part of Elk Valley test

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Facts:

The Brockville Mental Health Centre v. The Ontario

Ministry of Labour, 2019 ONSC 3805 (CanLII)

• The Hospital was charged with multiple offences related to workplace violence

following a series of assaults and attempted assaults on workers at the Hospital by

same patient

• Convicted of count of “failing, as an employer, to reassess the risks of workplace

violence and ensure the related policy and programs continued to protect workers

from workplace violence”

• Trial judge imposed sentence of $75,000 plus victim surcharge of 20%

• Trial judge found that fines imposed for convictions under the OHSA should not differ

between public not-for-profit companies and private companies

• The Hospital appealed this finding


The Brockville Mental Health Centre v. The Ontario Ministry

of Labour, 2019 ONSC 3805 (CanLII)

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• Is the non-for-profit status of an organization relevant in determining the

appropriate fine for a failure to provide a safe workplace?

Issue:

• Court: noted that in determining penalty the expectation is the court “find an amount that ‘without being harsh [is] substantial enough to warn others that the offence will not be tolerated. It must not appear to be a mere licence fee for illegal activity”

• Legislation does not distinguish between not-for-profit institutions and private companies

• Trial judge concluded that fact that hospital publicly-funded institution was neutral factor

• Court: “Absent any legislative pronouncement or binding case law on this issue, I find that it was not an error in principle for the trial judge to decide the hospital’s status was a neutral factor”.

Decision:


And Finally This …


Seguin (Township) v. Hamer, 2014 ONCA 108

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Legal Update

September 11, 2019

Mark H. Mason I Jessica M. Toldo

Legal Update...Legal Update –OMHRA Fall 2019 Conference • Arbitrator found City failed to...

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Transcript of Legal Update...Legal Update –OMHRA Fall 2019 Conference • Arbitrator found City failed to...