Labour Law, Winter 2007 (Tucker)

Introduction/History..2 Collective Bargaining Basic Concepts.11 Legal Framework for Certification.....11 Appropriate Bargaining Unit..13 Unfair Labour Practices..15 Union Access to Workers...16 Employer Access....18 Labour Board Remedies.....20 The Employment Relationship....22 Who is an Employee...22 Managerial Exclusion.............................................................................26 Who is the Employer..27 Borrowed Servant...27 Parent/Subsidiary....28 Temp./Tripartite..28 Related Employers..29 Sucessor Employers....32 Fairness in Employment...36 Meiorin Test38 Pay Equity/Employment.............41 Work/Family Policy................................................................................45 Fairness within Collective Bargaining46 Employer/Employee Duties..51 Employer Duties: Duty to Remunerate.51 Hours of Work.54 Duty to Provide Work..55 Employee Obligations Duty to Obey...60 Duty to Exercise Skill and Care..62 Duty of Good Faith and Fidelity.63 Termination...66 With Notice.67 With Cause/By Action of Employee...70 In a Collective Bargaining Context.........................................................74 Insubordination.......................................................................................75 Sexual Harassment..................................................................................76 Off-Duty Conduct...................................................................................77 Collective Action...78 Duty to Bargain in Good Faith...78 Duty to Disclose.79 Individuals in Collective Bargaining..81 Individual Contracts and Strikes and Lockouts..85 Remedies for Untimely Strike/Common Law Controls......87 Injunctions...90 The Charter and Collective Action.91

Introduction: Overview and Historical Perspective

What is essence of the contract of employment? labour in return for remuneration claims against employer to whom you sell your capacity to work employment important in capitalist society Employment: access to resources needed to live Ie: income is received in terms of wages 7% of income in form of investments you transfer of various kinds common law contract of employment employment is access to the $ transfers

Traditional perspectives are being challenges by a few things: Globalization: constraints on national and sub-national schemes of regulation impact on labour market actors prospects for transnational labour regulation The Impact of changes to the labour market the growth of womens labour force participation this has meant that we address discrimination in the workplace as well as to recognize the change in the needs of workers growth in workplace diversity the growth of precarious employment Historical development of Anglo-Canadian Labour Law (1) Unfree Labour (Feudalism) to Master & Servant Regime (1000-1600) Feudalism: Hierarchy of Lords though to Tenants in Chief through to sub-tenants through to serfs. A status relationship into which people are born and remain. Therefore, no labour market you could not enter into contracts with others with respect to ones labour. Ruled by custom, tradition and coercion. This is balanced by the fear of revolt. No pretense of equality a clear hierarchy. Legitimated structurally lords were able to provide some protection, Lords were able to provide some minimal level of sustenance. Also ideologically through religion and custom. The belief that hierarchies are natural and normal. (2) Master & Servant to Liberal Voluntarism (1600-1877) After the Black death there was a shortage of workers. This lead to the establishment of a Master and Servant regime in which your were compelled to work unless you had your own means. Wages were set and labour mobility was limited. This provides some rudimentary labour market. It is still based heavily upon status but there is some statutory regulation now to enforce particular terms and conditions.

Master and Servant in Transition in the early 19th century The disappearance of wage fixing. While the power to fix wages remained it was used less and less frequently. In periods when wages seemed to drop petitions were created to ask for increased wages. This was rarely done. The presumption of yearly hiring defeated. This creates a more flexible arrangement for both parties. This operates in favour of employers though, as they no longer need to apply to magistrates to terminated employment. Worker breach punishable as a criminal offense, increased use of penal sanction and greater harshness. As the 19th century progressed the frequency of severity of Master/Servant enforcement increased. Employment as a domestic relation hierarchical. There was still an idea that the Master held a property interested in their servant (see Blackstone: the property that everyman has in the service of his domestics; acquired by the contract of hiring, and purchased by giving them wages). The Quasiproperty status of servant justifies the quasi-criminal treatment as it represents something akin to theft. Wage recovery established and workers began to use master/servant law to take action for wages. The problem of giving workers a mechanism for recovery wages, enforcing interests will be an on-going theme. Workers Combinations under the Master-Servant Regime Initially treated as criminal conspiracy to violate statutory wage fixing. Worker collective action has always been viewed suspiciously and as a source of danger most importantly, under the Master/servant laws it was illegal as wages were set by JPs and could therefore be seen as a conspiracy to pursue an unlawful purpose. By 19th century the rationale against combinations was that it was a restraint on trade and that therefore a combination was anti-market. They could therefore be seen as civil conspiracies. Within a Canadian Context: There were forms of unfree labour in Canada slavery (both under French regime and English). The economy was not as heavily reliant upon slavery they played a peripheral economic role. In mid-18th century there was an abolitionist movement in England. Late 1700s Canadian statute provided for gradual elimination of slavery. The Master and Servant regime was received with English law. But lots of confusion existed as to what the law was: In 1850, questions were raised as to whether or not this statute applied to early industrial workers. Legislation was enacted which clarified that it did apply. (3) Liberal Voluntarism to Industrial Pluralism (1877-present day) Limited recognition of unions - Trade Union act, 1872 immunity from being prosecuted for criminal conspiracy for act of combining to improve conditions. Didnt state that it wasnt a conspiracy, just prevented them from being prosecuted. Criminal Law Amendment Act, 1872 criminalized means used to advance the goals of combination eg. Watching and besetting (picketing) and Criminal Law Amendments, 1876 peaceful picketing exempted.

Criminal Code, 1892 - exemption omitted: In the aftermath, a number of judges took the view that the omission had the effect of making all picketing criminal. It had seemed to be inadvertent. However, when it was brought to governments attention they refused to exempt picketing until the 1930s. In the absence of legislation, judges continued to view collective action as creating civil liability. Collective agreements were legally unenforceable and agreements between trade union members unenforceable. Union not a separate entity apart from its members cant sue or be sued in its own name, cant hold property or control it. They operated outside of the law. They could register and acquire a limited civil status but few did so. At this point, we have the establishment of liberal voluntarism: Freedom of association is recognized its no longer a crime. But no protections freedom of contract allows employers to fire workers who unionize or ask that workers are asked to sign a contract stating that they wont join a contract Criminal breach of contract of employment limited to circumstances endangering public, 1877 As market economies begin to emerge there is a drive to develop regulations to counter some of the worst consequences from unregulated labour markets. These regulations supplement the Common law/Criminal law regulation of employment with: minimum standards collective bargaining occupational health and safety (not discussed in this class but one of the earliest minimum standards) Occupational Health and Safety: The development of new technologies created a variety of new and dangerous conditions railroads, factories etc. Workers began to sue and take action. Courts were rarely sympathetic and interpreted injuries through a contract lens. Workers should have known of danger bargained for and accepted risk. In effect, workers had created a regime for regulation for health and safety the level of risk would be determined by the market through individual contracting. At this point, women and children began to enter the factories, this created some serious moral and social concerns. Introduction of factory health and safety acts to protect children who had entered the factory, this lead to the regulation of some of the hazards associated with workers in general. There was still the issue of compensation. In 1886, in Ontario, changes were made to the common law to abolish the presumption of voluntary risk and the fellow servant rule. Which returned us to a negligence standard (Was a worker injured due to the negligence of their employer). This involved the courts, in some ways, in creating minimum standards. This regime eventually gave way to the modern no fault workplace insurance scheme in 1914. Fairness: this is something which developed post World War II Human Rights Codes

originally came out of issues of race and religion Ontario Human Rights Code introduced in 1962 o Forces employers to remove barrier to hiring and retention Pay and Employment Equity Female Employees Fair Remuneration Act o Allowed women to be paid equally. o This was passed to protect women and to prevent women from under bidding men for jobs

Collective Bargaining Trade Dispute Legislation 1870s 1890s was passed by a number of provinces. These statutes established mechanisms for 3rd party conciliation of disputes. This was on a purely voluntary basis. In 1900, the Federal government passed the Conciliation Act, which was similar to the provincial dispute legislation. This was due to concerns surround the economic impact of economic unrest. This regime was relatively ineffective. There were a number of large strikes which threatened economic interests. This lead to the enactment of Industrial Disputes Investigation Act in 1907. This subjected workers/employers to a process of conciliation and investigation. Each party selected an individual and then a public official was chosen as chair. Parties which took action outside of this process could face criminal sanctions. The act was of limited application only applied to public utilities: coal fields, railways, communication/transportation. Through this process some industries created a stable system. For example, the Railways this was as a result of conservative trade unions operating in a well regulated environment. It did not work in other areas for example, Coal mines. The coal market was unregulated which led to instability and labour unrest. Toronto Electric Commissioners v. Snider (1925)(PC) Struck down Industrial Disputes Investigation Act, holding that power to legislate for labour fell under Property & Civil Rights (s.92(13) of provinces, not federal POGG or Trade & Commerce power. The federal jurisdiction is narrowly limited to labour relations over which they have substantive jurisdiction such as federal employees or in federally regulated industries There are some issues with provincial legislation and how it affects federally regulated employees in some limited cases provincial legislation may apply in the absence of federal legislation. The SCC has rejected this in subsequent cases: currently, provincial legislation outside of workers comp. will not apply to federal workers. In some cases, the federal government may exercise their POGG powers to jump into federal jurisdiction in cases of national emergency. The SCC upheld the federal governments ability to interfere with provincial legislation in these cases. At this point, unions have started to organize within a single workplace as opposed to organizing rigidly by trade. In response, two pieces of legislation were enacted:

Industrial Standards Acts 1930s o Quebec, Ontario o Applied to entire sector idea being that if you eliminated competition between employers and workers and the stability of the industry would no longer be undermined Freedom of Trade Union Association Acts 1930s o Workers not only have a privilege to join a trade union o They made it an offense to interfere with this right through discrimination or intimidation o This has also become a criminal offense. o Thus we see the transformation of privilege to a protected right enjoyed by workers. Statutory Collective Bargaining - PC1003, 1944 This was Passed during WWII. Workers bargaining power is heightened because of shortages in labour and increased militancy. As a result, Mackenizie King promulgates PC1003 which creates a statutory scheme for collective bargaining (weds the Wagner Act Model of the US with existing Freedom of Trade Union Association legislation in Canada). This allows for: certification of unions and compulsory bargaining for certified unions. It becomes illegal to strike/lockout during the term of the CA. The Charter of Rights and Freedom and Labour It could be argued that individuals should have the freedom not to associate. As a result, the Charter has remained relatively silent on the issue of collective bargaining. There are some recent cases which suggest that the Charter may begin to play a larger role in CB Dunmore (2001)(SCC) Individual farm workers and union organizers challenge the exclusion of agricultural workers from Ontarios statutory labour relations scheme as a violation of their freedom of association and equality rights under the Charter. Is the Agricultural Employees Protection Act, 2002 Constitutional? Does the exclusion of agricultural workers from the OLRA violate S. 2(d) of the Charter (i.e. what is the states responsibility under S. 2(d) of the Charter)? State action can sometimes apply to private actors: The exclusion of agricultural workers from the OLRA violates freedom to associate (S. 2(d)). Prior to Dunmore what was the Courts position on workers and association. See PIPPS (para 14 of Dunmore): 4 part test: 1. S.2d protects the freedom to establish, belong to and maintain an association; 2. S.2d does not protect an activity solely on the ground that activity is a foundational or essential purpose of an association

3. S.2(d) protected the exercise in association of the constitutional Rights and freedoms of individuals. If there are individual protected rights than you are free to engage in that action with others 4. S.2(d) protects the exercise in association of the lawful rights of individuals The exclusion of Agricultural workers from the LRA places them back into a scheme of Liberal Voluntarism. It takes away protections against intimidation or discrimination on the basis of associational activities. Bastarache finds that the 4 part test is missing something. The recognition that some associational activities do not have individual counterparts but, nevertheless, need to be protected. Examples given by Bastarache include: making collective representations, adopting a majority political platform, federating with other unions. This is qualified not all activities fall under s.2(d) (such as the right to CB and to strike) and not all groups are worthy of protection. In Delisle, the court had decided that it was permissible to exclude RCMP officers from CB regime. But in this judgment there was an opening for the possibility that it might impose a positive obligation In order to meet this exception, one must show: o A Charter right must be affected; o Evidence must show that a lack of protection adversely effects enjoyment of Charter right; o Failure to protect against private action can be characterized as state action. Dunmore is an exceptional case in which workers would otherwise be unable to access their Charter 2(b) rights. Workers are unable to gain access to a statutory CB scheme as this is not a Charter right, but rather a statutory right. In Dunmore, the case is distinguished from Dolphin Delivery the concept of state action has matured. As such, they argue that state action (or inaction in this case) licenses discrimination in a sense it enables the violation of 2(b) rights. Para 37 suggests that trade union freedoms lies at the centre of the Charter and should not be withheld from those which need it most. Note the frequent reference to international conventions for example, the International Labour Organizations conventions. Without protection, agricultural workers would be incapable of exercising their freedom. Exclusion reinforces private interference (this represents the state action necessary to justify invoking the Charter). Regarding s.1, the Court says that there a sufficiently important objective: the protection of the family farm and ensuring farm productivity. Court says that there is a tenuous rational connection between the legislation and its goal. Furthermore, it fails minimum impairment test.

What does this mean going forward? In situations where a law is under-inclusive and where workers are vulnerable where, in the absence of positive protection, you will be unable to form an association then you will be able to rely upon Dunmore to associate. What does the government have to do to remedy? They dont have an obligation to eliminate the decision (thereby reverting to the LRA). They instead only need to provide adequate protections to make association possible protect the right to associate, the right to make representations, the right to lawful activities of the association and the right to be free from interference and coercion. Any statute that would have restricted the ability of an agricultural worker to associate would have violated the Charter. Tucker argues that this was true prior to Dunmore. The same goes for representations. The real change is the protection from intimidation or reprisal. This is a significant gain. Current Context: Did the Ontario Government Meet These Requirements with the AEPA? The AEPA seems to meet the minimum standards set out in the Dunmore decision. International Law Influences on Canadian Labour Law Two principal motivations for international labour standards social revolution factor o labour standards may maintain stability social dumping factor o countries with lower labour standards, it could argued, create an unfair competitive environment. It could also lead to a race to the bottom. Two more principal sources in standards in Canada: 1. International Labour Organization (ILO)

The ILO Created at the end of World War I and has approx. 177 member states. 187 conventions (member states only bound if adopted Canada has adopted 30). Compliance with conventions handled by Committee of Experts on the Application of Conventions and Recommendations. In cases of repeat contraventions a Commission of Inquiry is appointed and it issues a public report and recommendations. o Members also bound by the ILO constitution, which includes freedom of association o Committee on Freedom of Association deals with complaints. o In 1998, the ILO passed the Declaration on Fundamental Principles and Rights at Work. Passed and binding on all members. Includes: A. Freedom of association and effective recognition of the right to collectively bargain; B. Elimination of all forms of forced or compulsory labour; C. Effective abolition of child labour; D. Elimination of discrimination in respect of employment and occupation. What does it mean to be bound by the convention? A complaint can be lodged with the ILO that a government is in violation of a convention that has been ratified. The ILO appoints an investigative committee who makes a determination as to whether there

has been a violation, and then it issues its findings. There isnt really a sanction (only that the government is in violation of a convention that has been ratified) What is the efficacy of the ILO in Canada? The committee has investigated a number of alleged violations in Canada. However, by the time the results of an investigation are released, Canadian interest in the matter at issue has often fizzled out or it garners little if any media attention in order to effect change Note: It has little direct impact hasnt stopped violations of conventions ratified in Canada. Since 1998, the ILO has attempted to reassert itself. There was an ILO declaration of fundamental labour principles passed by the organization. It was said to be binding on all members with or without ratification. The declaration included principles such as: (1) freedom of association (collective bargaining), (2) elimination of forced/compulsory labour, (3) abolition of child labour, and (4) elimination of racial discrimination in respect of employment. However, the inability of the organization to enforce such principles over and above the use of moral persuasion make its efficacy questionable at best. Impact of ILO in Canada a. Direct Has not inhibited violations of conventions ratified by Canada; Number of complaints is proliferating: pre-1982 there were 16 complaints; 1982-2005 there were 64 complaint;s Complaints and reports of violation receive little publicity; Findings and recommendations made long after violation occurs. b. Indirect Influence on Courts see Dunmore para 16 and 27; Change in dominant discourse?

2. North American Agreement on Labour Cooperation (NAALC) NAALC is a side deal to NAFTA that codifies 11 labour principles (pg 97) that are reflective of 2 major themes: o Collective bargaining and freedom of association, right to organize, right to bargain, right to strike o Technical labour standards: minimum standards, protection against forced labour, equal pay for equal work, etc. (see list) Note: NAALC does not bind a government to create laws to advance these principles, rather it forces the member countries to ensure the prudent enforcement of the laws that already exist which pertain to these 11 principles. How is the NAALC enforced? Tier 1: complaint to NAO; public hearings, report and recommendations; Ministerial consultation o Beyond Tier 1, parties have no standing and Ministers must take the next step. As a result, no complaint has ever gotten further than Tier 1

Tier 2: Evaluation Committee of Experts; restricted to principles 4 -11; focus is on patterns of practice; matter must be trade related and covered by the laws in both countries; Tier 3: Arbitration Panel: restricted to child labour, minimum wages, and Health and Safety; persistent pattern of failure to enforce; trade related and covered by laws in both countries, fine can be levied. Has the NAALC been effective?
In terms of effectiveness of the scheme and prosecution of wrongs: NO, nothing has even gotten close to third tier of enforcement but the scheme may have indirect effects a scheme for activists to pressure the government. Its a mechanism to try to influence public discourse on what is acceptable and what is not. We have only have two complaints so far McDonalds in Quebec (used to negotiate a settlement) and Rural Mail Carriers (which was rejected). So it may have some ability to push through change but this is very limited.

Collective Bargaining: Basic concepts

Workers must opt in to collective bargaining. This occurs primarily through certification under the LRA (the Wagner Act model). But also includes: o Voluntary recognition (recently aided by neutrality agreements) o Informal arrangements (for example, faculty associations) Effectiveness of Wagner Act Model The spread of collective bargaining is historically uneven. In recent years, overall decline in union density due to changes in employment (growth in union versus non-union jobs) and rate at which nonunion members organized into unions. Collective bargaining is now only used by a small percentage of the workforce (declines have been less than in the US). Changes to modern workplace have driven union rates down: o Growth of service economy o Contracting out and other kinds of restructuring To counter this, unions must be constantly organizing new workplaces. Unions, however, have become largely complacent. Shifts in legislation and administrative law have also had a negative impact, for example, the decline of union card laws and the increase in elections. Could also be due to flaws within the traditional model when placed within the new world of work. Legal Framework for Certification: (Ontario Labour Relations Act) 1. Must show that covered by Statute: Coverage of LRA is limited to employees or dependent contractors, less those excluded (ss.1(3), 3). - s.1 - some exclusions, for example, lawyers, managers etc. - s.3 domestic workers, hunters and trappers, agricultural workers etc. 2. Applicants must have trade union status, ss 1(1), 15 Reasons for non-certification AA If the employer gives financial support or is a part of the organizing AA Or if the Union discriminates against employees on the basis of enumerated grounds 3. Applications must be timely: Rules against repeated organizing attempts (which give rise to periods during which unions cant apply) Timeliness of Application: I. Where there is an incumbent union 1. Wait for open period (ss. 7 (2-6), 67) 1. Union gets a year after certification 2. Once you have a CA in place, can only occur during last 3 months 2. Terminate representation rights through decertification

1. 2. 3. 4.

employees vote to decertify, s.63 certification obtained fraudulently, s.64 union fails to give notice or bargain, s.65 illicit voluntary recognition, s.66

These closed periods are all attempts to give certified unions security. II. Prior Unsuccessful Application, ss.7(9-10.2), 10(3)

If a union withdraws an application: Under s.7(9.1): if the union withdraws an application a second time before a vote the Board may bar a union (any union and all unions) from organizing in that work place for another year If application is withdrawn after vote but before counting of votes than another mandatory one year bar is instituted. If there has been an unsuccessful application then there is another mandatory bar. Stages of the Certification Process: Organizing Phase/Application Phase: Normally someone in workplace contacts union, would union want to assist them? An organizing drive occurs, people who are employed in target group, attempt to sign membership cards and become members of union. When union feels strength with that group, will apply to Ontario Labour Relations Board to be certified. s7(12) of LRA: Application for certification shall include a written description of the proposed bargaining unit including an estimate of the number of individuals in the unit. Post Application Phase: Trade Union provides list of people who have joined and propose to Board the definition of the bargaining unit that seeking to represent (ie. all production employees). Provides employer with copy of application but not membership list. Employer can contest the bargaining unit proposed by the union. If 40% of the constituency has signed union cards, then it will hold a vote within 5 days of application for certification. If there are disputes about the appropriate bargaining unit etc, then the issues are postponed until after the vote. Voter constituency and bargaining unit are separate. B.U. is determined afterwards, and may not include everyone who voted. The Board will order a vote within 5 days of s.8. This limits the time that an employer has to mobilize opposition. Board then has to determine what would be the voting constituency: Must establish through vote that has support of majority of employees of who are in the bargaining unit, includes all those who are in the bargaining unit. Post-election Phase 1. If there is no employer objection to bargaining unit or estimate: count vote

2. If the employer proposes alternatives B.U. or challenges unions estimate: hold vote, seal ballot, hold post-vote hearing to determine issues, ss.8.1, 9(2) determine B.U. determine union membership: if less than 40%, than dont count vote If union wins majority than it is certified. The trade-off for using such a complicated process is the scenarios that exist in the US in which employer interference or turnover may undermine the vote. Appropriate Bargaining Units: Legal framework for deciding Appropriate Bargaining Unit (and its limitations) Definition of bargaining unit s.1(1) (a unit of employees appropriate for collective bargaining) : - employee unit, plant unit, or a subdivision - does not allow for a unit with different employers (an exception is the construction sector) - Board determines what is an appropriate bargaining unit, (s.9.1) - The unit must consist of more than one employee, and the board may conduct a vote (different than the vote to determine a majority support for the union) to ascertain the wishes of the employees in respect of the bargaining unit. (this type of vote doesn't really happen) Specific kinds of rules include craft units, professional engineers, dependent contractors, and security guards (although recent developments have allowed security guards to be mixed in with other employees as determined by the board see ss 9(3) - 9(5), 14). Beyond these specific rules, the Board is given a very broad power when it comes to defining an appropriate bargaining unit. Labour Relations Board policy (and its limitations): Factors: Community of interest among employees: Looks at nature of work performed, conditions of employment, skills, history, functional interdependence. Also look at organizational structure of the employer, concerns regarding about fragmentation, wishes of employer and employee. Standard bargaining units vs flexibility: Standard units (see Sack and Mitchell) often separated office and plant staff (largely a gender structure that excluded women from the collective bargaining unit). The Board has moved away from standard units. Excluded unit often started at the lowest level of management (difficult to determine where managerial positions started). Units have been historically geographically limited (basic production unit and service units were usually in a geographically proximate area. For example, plant by plant for major manufacturers.

See Example of Nova Scotia Michelin Bill: Bill was passed by the Nova Scotia legislature in order to appease the Michelin Corporation and protect the money they had invested in plant expansion. The bill allowed a manufacturer who operated two or more interdependent plants within the province to apply for a determination that the appropriate bargaining unit should be one that must include employees from both interdependent plants. The result of this bill was that it essentially prevented the unionization of either plant because obtaining certification of a unit that spanned two plants with over 200 miles between them proved to be a task that the United Rubber Workers, Canadian Labour Congress, and CAW were unable to achieve. Another issue is PT and FT workers and whether they should be in the same unit or not. Historically, they have been deemed to have separate communities of interest (often this means that PT workers were denied collective bargaining rights) NDP legislation regarding PT and FT employees has been repealed. Now the board takes a flexible approach. The PT sector is currently approx. 13% unionized in the private sector, and 68% in the private United Steelworkers of America v. Burns (1994)(Flexible Approach) Board is cognizant of problems in standard bargaining unit for the purposes of facilitating organizing and for the purpose of creating a structure for determining the unit for the purposes of collective bargaining. The smaller the union, the lower the union density. As greater fragmentation occurs, we see a continual decline in density, as the percentage of employees who work in a large workplace decline. The serving cost, the difficulties in organizing, the shrinking workplace, suggests that the Wagner Act model no longer works. In this case, they took a more flexible approach in defining appropriate bargaining units. They looked at, does the unit which the union seeks to represent encompass a group of employees with a sufficiently close community of interests that they can bargain in a meaningful way without causing undue labour relations problems for employers. This involves degrees of appropriateness. A trade union need not seek to represent the most comprehensive union and as long as the unit it seeks to represent does not create undue hardship for the management, it will be certified as it desires. Decertification Once a trade union has been certified or voluntarily recognized, it is given some security as the exclusive bargaining agent for the unit subject to either a decertification vote or attempts by a subsequent trade union to raid the unit. There are only certain windows of opportunity where employers can opt out (be decertified) or another union can apply to be certified for the same group of employees. Note: Unlike certification, there are no mandatory bars for repeated decertification applications. Important Statutory Sections that apply to the Decertification Process S. 7 When a union can apply to certify: Certification applications cant be considered while the conciliation process is going on or during a CA, except during open periods in the statute (S. 7(7), S. 67) s.62 Termination of Bargaining Rights. States that if a raid is under way and an application is made by the trade union performing the raid, then the union that previously held the bargaining agent position ceases to be the bargaining agent for said bargaining unit

s.63(1) Application for Termination, no agreement. If a trade union does not make a collective agreement with the employer within one year after its certification, any member of the unit may apply to the Board for a declaration that the trade union no longer represents the unit (i.e. Repudiation by employees). s.63(3) the Board may direct a re-representation vote if 40% of the bargaining unit indicate a wish not to be represented by the trade union currently certified. (threshold reduced in 1995 from 45% to 40%) If a majority vote is won then certification is gone s.63(16) the Board may dismiss an application for decertification if the Board is satisfied that the employer or an agent thereof initiated the application or engaged in threats, coercion or intimidation.

Unfair Labour Practices - Organizing

The purpose of the unfair labour provisions is to lend some force to the freedoms expressed in s.5 of the LRA and therefore protect the integrity of the CB process. Unfair labour practices are said to have a chilling effect on the organizing drive in that they deprive employees of the ability to choose freely to be represented by a trade union either in a membership card campaign or in a representation vote. Policy: Industrial Pluralists view: the freedom to associate = the freedom to be punished at hands of you employer (thus not really freedom). Argued for freedom to associate to be meaningful, need to restrict rights and privileges of employers and create legally enforceable rights for workers to organize and exercise their freedom of association. Response: OLRA it creates a protective space for workers to be able to associate. Statutory Sections that apply to Unfair Labour Practices S. 70 S. 70, 72, 73(1) and 76 Unfair Labour Practices by Employers S. 71, 73(2), 76 and 77 Unfair Labour by the Union S. 70 77 Provides the protective space. It prohibits employer interference with employee organizing activities. However it allows the employer freedom of speech but not to interfere with formation, selection, organization of union Regarding Employers: s.70: Employer cannot interfere with the formation, selection or administration of a trade union. The union is still allowed to express itself freely, so long as it is not coercive. s.72: Employer cant discriminate on basis of trade union membership, cannot restrain an employee from becoming a member of a trade union, cannot seek by threat of dismissal (or any other threat, financial penalty etc.) to compel an employee to cease to be part of a union. Note: Any violation of s. 72 is also considered a violation of s. 425 of the Criminal Code and punishable as a summary offense. s.73(1): Employers cannot collectively bargain or enter into a collective agreement with any other trade union while a trade union continues to possess the right to represent the employees of that bargaining unit.

s.76: Employer cannot use intimidation of coercion to discourage membership. s.77: This Act does not authorize any person to attempt to persuade an employee to join or refrain from joining a trade union while at work during working hours s.87(1) & (2) Any witness testifying for the purposes of this act is protected from retribution from the employer and or the trade union s. 96: Authorizes the OLRB to investigate, report and a devise remedy for any violations. Regarding Unions S. 71 Unions not to interfere with employers organizations. No union shall participate in or interfere with the formation or administration of an employers organization or contribute financial or other support to an employers organization S. 73(2) Trade Unions not to interfere with bargaining rights. No union shall, so long as another trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an employers organization on behalf of or purporting, designed or intended to be binding on the employees in the bargaining unit. S. 77 Persuasion during working hours. Nothing in this Act authorizes any person to at the place at which an employee works to use intimidation or coercion to join or refrain from joining a union while at work during working hours. Regarding Both S. 76: Intimidation and Coercion: No person, union or employers organization shall seek by intimidation or coercion to compel any person to become or refrain from exercising any other rights or from performing any obligations under this Act. B) Application of legal framework Union Access vs. Employer Access How does the union or employer get access to the constituent parties in order to get their vote? Employer: Unlimited access to employees (knows their names and contact information) Union: Starts with no access or information (not entitled to get their names or info by law) 1. Union Access i. Non-employee organizers: Can non-employee organizers enter the employment work place for purposes of a certification drive?

No, generally they cannot - subject to the exception articulated in s.13 of the OLRA. An employers right to exclude (property rights) and s. 77 would suggest that a non-employee trade union organizer has no legal right to enter the workplace, however s.13 creates an exception in circumstances where an employee resides in the same place where he/she works. Trade unions may secure a right to access by way of application to the OLRB. Very difficult for unions trying to organize employees to get general information about the people theyre trying to organize Stewart Union tried to organize employees to unionize hotel. Union hired a consultant who tried to bribe an honest employee to get employees names. He was criminally charged for theft of property of the names. Conclusion: not property Cant go onto employer property to talk with voters, have to apply to OLRB for permission. Can go to entrance of employers property as long as theyre not disrupting work. ii. Non-employee organizers and publicly owned private property: Can non-employee organizers enter employer premises that are generally open to the public (i.e. if the store is in a mall)? In Eatons v. RWDSU (1985) the OLRB held that the shopping mall owners property rights, even if exercised in a non-discriminatory manner, were subject to the OLRA and that organizational efforts should be permitted. The mall owner not allowed to exclude have to permit the organizers to access restaurants and other such facilities could only refuse access if it could be proven that trade union activity was interfering with the normal course of business. In Manitoba statutory right to go onto public property, UNLESS business owner can show a legitimate business reason not to let union organizers on the public property. Without a legitimate business reason to exclude they were interfering with union activity. So, it is possible for trade union organizers to have access to third party property as long as their use of said property does interfere with the normal course of business iii. Employee Organizer and Access Can an employer limit access to employee organizers (I.e. In-House Employee Organizations)? Employers may be able to challenge the right of employees to discuss unionization during non-working hours if such discussion interferes with its legitimate business interests United Steel S. 77 specifies that theres nothing in the OLRA that authorizes organizing activity to occur during working hours. Cant use OLRA to argue the right to organize allows the workers to organize during working hours. Workers v. Adams Mine (1982, OLRB): Employees can discuss unionization during non-working hours (unless its disrupts business). Non-Working Hours: Employer who attempts to restrict organizing activities during employees nonworking hours is presumptively unreasonable unless employer can show that this activity is having disruptive effect on business (fairly specific harm - very disruptive effect). Production takes precedence thus if work is disrupted by non-working hour union activity its not allowed. Working Hours: Rules preventing solicitation and distribution of info during working hours are

presumptively valid - union cannot argue this organizing isnt adversely affecting business. 2. Employer Access The Union starts from point where it has no access and uses OLRA to get access. Employer starts with unlimited access, the OLRA is needed to limit the access. Issues centre around the use of surveillance, group meetings, individual meetings etc. K-Mart Canada Limited (Peterborough) (1981, OLRB) Organizing campaign going on secretly by meeting employees at local hotel. K-Mart becomes aware of this and initiates various techniques to get to bottom of organizing drive and defeat it. Management did three things that were anti-union activities: Surveillance, Group meetings, and Individual meetings. Are these things unfair labour practices? The Board decided to certify because of the unfair labour practices by employer. The surveillance of the union organizers, the subjection of employees to repeated small meetings and their continued exposure to the watchful eye of senior management, would reasonably have caused many employee who might otherwise have supported the union to not. K-Mart deprived the employees of the ability to choose freely whether or not they want to be represented by a union. Is surveillance an unfair labour practice?: Normally surveillance of a general nature is permissible in that management can use various less intrusive surveillance techniques to ascertain what is going on in the workplace. However, placing employees under overt surveillance so as to isolate them from their co-workers and intimidate not only the workers subject to the surveillance but others as well is an abuse of the employers access to the employees and goes beyond the normal purpose of trying to maintain business. Covert surveillance attempts have historically been deemed an unfair labour practice Radio Shack Here: Surveillance was to discourage union activity (to isolate the organizer because of union association) not legal (Excessive use of employer access). Are employee meetings an unfair labour practice?: A series of meetings designed to divide employees into smaller groups along with meetings attended by very senior management who argued the employers point of view were deemed to be an unfair use of employer access. Problem with the meetings is their context: Captive audience (could leave but didnt want to draw attention), Intimidating Environment (management present at meetings), Small groups not large groups (improper and coercive), Recurring meetings (more than one meeting). Problems with their content: Implied Threats (if you support the union, things will get worse) These intense meetings and circulation of senior management on daily basis to engage conversations regarding unionization is excessive use of access. Bottom Line: Becomes a form of oppressing the employees using fear and coercion, thus unlimited

access has to be restricted. Therefore, the Board therefore exercised its remedial power under S 79 to restore the union. Wal-Mart Canada Inc. (1997, OLRB) Concerns an organizing drive at a Wal-mart. During organizing individual meetings would take place with upper management who would walk through store. This is a risky thing to do, but it is not enough to constitute a violation on its own. When combined with other factors, such as the decision not to answer specific questions regarding the future of the store and group meetings. Key issue around Wal-Mart is the employers silence on certain issues: The silence with regards to the Passador speech (pro-Wal-mart employee). No alternatives were provided and company did not seek to provide distance. Silence regarding questions of possible sanctions should Wal-Mart unionize. Key would have to be to state we will not close in retaliation but that business realities could dictate. If they were to close store they would have to demonstrate that there was no anti-union animus. There are some protections against this, but the law can ultimately do very little to prevent store closures. Policy Consideration: Employer Economic Power Terry Thomason, Managerial Opposition to Union Certification in Quebec and Ontario (1998). Survey of union organizers in 1992. Their view of effectiveness of employer opposition: Increase in employer resistance reduces the probability of successful certification. Found that small group meetings and use of threats and inducements are most effective techniques. Distribution of anti-union literature was not. Chris Riddell, Union Supression and Certification Success (2001) Linked data study of Unfair Labour Practices and certifications in BC, 1987 1988. Presence of alleged ULPs reduces probability of certification by 21%. Karen Bentham, Employer Resistance to Union certification 2002, Karen Bentham Based on questionnaire sent to employers in 8 Canadian provinces covering 1991-93 found: - 88% of employer respondents limited ability of employees to communicate among themselves or with union; 68% communicated with employees; 29% tightened supervision or monitored employees; 12% engaged in ULP - Training managers and limiting communication were most effective tactics in reducing probability of success - More aggressive tactics, like ULPs, had little effect on certification success, but substantially increased likelihood of first contract bargaining difficult and early decertification The conclusion is that employees can effectively counter union drives through legal practices: small meetings, limited communications etc.

Problems Associated With Delay: Over 4 out of 10 unfair labour practices complaints take over 5 months to be resolved. Of these, most take over 8 months to be resolved. (includes anti-union animus, freeze violations following a certification). Another 3 out of 10 Unfair Labour Practice complaints take between 2 and 3 months to be resolved. Over 40 per cent of certification applications take between 1 to 2 months to be resolved. Obviously, these delays can cause significant problems with organizing drives. Labour Board Remedies: Enforcement of Legislative Provision - S. 96 How does a trade union substantiate an allegation of an unfair labour practice? S. 96(5) Burden of Proof. The employer has the onus to show that their actions werent motivated by anti-union animus To substantiate complaint alleging unfair labour practice, it's sufficient for the trade union to show that the employers actions were in part directed at lawful union activity Barrie Examiner (1975) I.e. there cant be any anti-union animus. Regarding dismissal for union purposes: reversal of onus on employer to establish: (1) the reasons given for discharge (bad employee) are the only reasons and (2) these reasons dont have any antiunion motive. If these are demonstrated then no violation of the act. S. 104, S. 102 Prosecution. The board must consent to prosecution. S. 425 CC its criminal for employer to use threats and intimidation or other coercion. S.96(4): Gives OLRB power to issue: (a) an order directing the employer, employers organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of; (b) an order directing the employer, employers organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of such as orders regarding access or unions may be entitled to a rep at a meeting or a bulletin board compensation may be ordered for employees or for unions, but this are not punitive posting notices (c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers organization, trade union, council of trade unions, employee or other person jointly or severally. Under s.98 the board may make interim orders: These could include an order for reinstatement or make interim orders respecting the terms and conditions of employment of an employee whose employment has not been terminated but whose terms and conditions of employment have been altered or who has been subject to reprisal, penalty or discipline by the employer.

Automatic Certification: The key is whether or not the practices have prevented workers from voluntarily joining a union. The impact must be assessed and there must also be sufficient membership support to justify certification. In short, that there is a chance that the union will be able to establish itself in the long run. In the aftermath of the Wal-Mart case, Bill 31 was introduced, this stripped the OLRB of the ability to issue remedial certifications. In such situations, remedial elections could be ordered. The Liberals have returned this power to the board under s.11 Remedial Certification between 1975 and 1998: approx 100 remedial certifications were given using a random sample of 60 remedial certifications 14 (23%) decertified 46 (77%) involved the successful establishment of collective bargaining relationship Mandatory elections and Card Counts It had been the case in Ontario that for most of the OLRAs history that a union could be certified by signing up 55% of the employees in an appropriate bargaining unit. This was changed to add mandatory elections under the Conservatives in 1995. Argued that elections place limits on coercive mechanisms used by unions: Social exclusion Questions of bias There are arguments against elections: in the case of remedial elections it may be impossible to have a free vote See study of elections by Riddell in BC. Looked at ULPs and found that they had a much higher impact then when there were elections then under a system of card counts. Effects of Mandatory Voting v. Card Count Certifications Sara Slinn (2004) argues that the switch to mandatory voting reduced the likelihood of applications being successful 21%. Also influenced characteristic of applicants: (1) More public sector applications; (2) More applications for large bargaining units, (3) Few applications for part-time units. Chris Riddell (2004) argues that the switch to mandatory elections accounts for virtually all of the decline in union success rates that occurred between 1984 and 1992. Union density has dropped precipitously in Ontario as a result of laws passed during the Conservative regime.

THE EMPLOYMENT RELATIONSHIP 1. The Employment Relationship: Who is an employee?

We apply a paradigmatic test, where we look at a basic and general definition of an employee and see how far an individual falls from that paradigm. Under this model: The employee has a duty to serve, a right to remuneration. They do not have ownership of final product or means of production, they dont have control with respect to planning or control, and they dont have a risk of loss or chance of profit. The employer has a duty to remunerate and a right to service. They have ownership of means and ends of production, they have executive and planning control over the project and they have the chance of profit but bear the risk of loss. No one component of this case is determinative. Instead we must look at it in broad terms. The Common Law Tests Who is an Employee: Why does it matter whether you are an employee or an independent contractor? 1. Doctrine of vicarious liability Operates only with respect to the employment relationship. There is no vicarious liability for tortious actions of independent contractors. 2. Ability to claim employment related benefits and application of minimum standards. Vicarious Liability: POLICY: What is the rationale for having vicarious liability? Risk creator should bear cost when harm materializes Deter future harm Employers given the incentive to supervise employees actions 67122 Ontario v. Sagaz Industries Canada Inc. (2001)(SCC) (Use for General Common Law) Applies a purposive approach is the person in business on their own account? If yes, contract for services. Original supplier (respondent) suffered loss when replaced as Canadian Tires car seat cover supplier. This happened because a bribe was paid by a rival suppliers consultant to the head of Canadian Tire Automotive Division. Is rival automotive supplier (appellant) vicariously liable for the conduct of its consultant who was hired to assist in securing Canadian Tires business? Will only be vicariously liable if consultant was an employee, not an independent contractor. The court held that the rival supplier not vicariously liable for consultant (not employee). This was because the consultant not an employee of the supplier, but an independent contractor. Although there is no universal test to determine whether a person is an employee or an independent contractor, the central question is: Was the consultant in business on his own account? Here the court looks at whether person is performing services on his own account. In order to determine this look at: o level of control employer has over workers activities o whether the worker provides own equipment

o o o o o

whether the worker hires his own helpers degree of financial risk that the worker takes the amount of responsibility for investment and management the worker has did the worker work elsewhere during relationship the opportunity for profit in the performance of their tasks

Note: Organization Test: If worker is Integral Part of Business, then its a contract for services (i.e. an employee)

Common Law Tests of Employment: Ready-Mixed Concrete Review of Common Law Authorities: a) Montreal v Montreal Locomotive, 1947 Applies the four fold test - To determine whether a contract of service applies. Look at four factors: 1. control 2. ownership of tools and materials 3. chance of profit 4. risk of loss

b) US v Silk, 1946 : Applies the Economic Reality Test, outlined as: investment in facilities;
permanency in the relationship; skill required in independent operation; degrees of control; and opportunity of profit or loss. Silk sold coal using two kinds of workers: unloaders and drivers. The unloaders moved coal from railway to bins. They came to the yard when they wanted and were given a wagon to unload it. They provided their own tools and were paid per ton that they unloaded. The issue is whether they employees under the Social Security Act? It was held that the the unloaders were employees, not independent contractors and the drivers were independent contractors. Its the total situation, including the risk undertaken, the control exercised, the opportunity to profit etc. that marks the driver-owners as independent contractors c) Bank voor Handel en Scheepvaart N.V. v. Slatford, 1953 (Lord Denning): Applies the Integration test: Central question: is the person part and parcel of the organization? To what extent is persons actions integrated into organization Application of Test: Ready Mixed Concrete v. Minister of Pensions & Ntl Insurance, 1968 In Ready Mixed Concrete we seem competing factors: Drivers use their own trucks, but there are a number of strings attached; Truck is financed through finance company associated with the enterprise; They must wear Ready Mix Concrete uniforms; Company must approve any major repairs for trucks; Individuals must use companys accountant to do their accounts. But: They are paid by the mile, not the hour; They have some freedom with respect to smaller repairs; They dont have to always drive the truck personally (they can hire someone else to do it). The Court determines that Latimer (the driver in Ready Mixed) was a small business man and not a servant.

Used a three part test, although Montreal Locomotive is key test. The emphasis is on control. Control includes the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done. However, while control is necessary it is not always sufficient depending on the other standards. Access to Statutory Benefits: What is at stake? Entitlement to statutory benefits/liability to pay costs. a) Workers Compensation (Stork Diaper) see pg 206-207 for 11 factor test used by WSIB. b) Employment Standards Act o Application of Act o S.3(1) o S.1(1) Definitions: Employer, Employee, wages o Exclusions o Statutory: ss.1(2), 3(2)-(6) o Regulation: I Reg. 285/01 o No-contracting out: s.5(1) Re: Becker Milk Co. (1973) This provides the basis for tests under the ESA. Focuses on: Control: what was the degree of supervision, the manner of payment, were subordinate employees employed? Tools who provides equipment? Chance of profit and risk of loss can be dealt with at the same time

Control: Managers can hire and fire other employers, but the adjudicator argues that this falls within a greater structure of control (must go through Beckers system). They were able to order inventory, but Beckers monitored this very closely. There were broad powers to terminate managers. Ownership of Tools: Beckers had complete ownership of property and merchandise to be sold. Risk of Loss: The managers had performance bonds of $1,000. But this was found not to be determinative. There was little risk/loss with respect to the general management of the store. The adjudicator finds that the Beckers managers were workers. There is an exemption with respect to managerial staff and maximum hours. It was found, however, that the work of the Beckers employees was not exclusively managerial and therefore was not captured by the exemption in the act Note: this has since changed, to include a job that is in its character managerial and that any supervisory work is limited. Collective Bargaining and Definition of Employee - OLRA

Implicit within the Act is the notion that it only applies to employees. There is no explicit definition of this term, however, other than to state that it includes a dependent contractor (which covers the low end of the independent contractor continuum). See definition in s.1(1) exclusions from employment status s.1(3) exclusions from application of act, s.3

Toronto Drywall (1976) Montreal Locomotive test is applied. In this case, workers provided their own tools, while Toronto Dry Wall supplied materials but deducted a service charge was deducted. There werent any set hours of work, work was inspected but did not involve direct supervision, did not need to provide services exclusively to T.O. Drywall. If they werent available they could be replaced, payment: no deductions for EI or CPP and paid for on a piecemeal rate, deductions made for Workers Comp. Held that while there was not a great deal of control over individual drywall workers there was enough control and combined with lack of independent business activity it was found that they could be found to fit within the category of employees. There is a policy justification for reading the Montreal Locomotive test as broadly as possible as it would allow for the board to cast a wide net when it comes to defining employees and therefore encourage the organization of those who are in vulnerable positions and in an attempt to increase the bargaining power of such workers. Without any further legislative action the Board has the ability to interpret the term employee broadly. Dependant Contractors Legislative response to perceived limits to the legal category of employee. This is defined under s.1(1); also appropriate unit for collective bargaining, s.9(5). Application: Toronto Star (2001)(OLRB)
Newspaper carriers signed contracts identified them as independent contractors. They provided their own vehicles, were charged wholesale prices for papers they delivered and were credited with retail sale price. No uniforms, allowed to use people to deliver for them, could organize their route. Paper had to be delivered by certain hours.

Apply a Multi-factor test and cites the Algonquin Tavern case, in which there are a large number factors which are to be taken into consideration. Focus on structure of relationship and whether it produces economic dependence Will also look at the duration of a relationship ongoing relationships would suggest dependence Is there investment of capital or risk taking? The presence of other jobs is discounted as they are only working part-time

Newspaper delivery people were always thought of independent contractors with the establishment of economic dependency, however, they are considered employees entitled to protection of LRA. Status of the Artist Act 1992 This act set out a scheme that applies to professional artists, who would other wise have been independent contractors. This federal legislation applies to professional independent contractors who are authors of artistic works, performers, and contributors to production of performing arts One example is that of Freelance Editors who have sought coverage under this act. Issue is whether editors are authors? Response is sometimes yes, other times no. Administrative tribunal defines sectors and certifies associations most representative of artists in sector. The Act contemplates the creation of sectoral producer associations. Artists and producers bargain for scale agreements (scale agreement is the minimum - people are afraid to negotiate for more than the scale). Bargaining agent has to show that they are the most representative of that group - this is enough to be certified - majority support is not required Managerial Exclusion Standard Exclusions: craft: non-working foremen unions fought to include working foremen, as craft workers are skilled workers and therefore seen as a connection to the employer as opposed to a boss industrial: foremen

Rationale: District of Burnaby (1974) Conflict of interest/loyalty Trade union independence

Given the fact that many managers still have vulnerability in the workplace unions are attractive. They may argue that this would argue in favour of a separate bargaining unit. There has also been a proliferation of mid/low level managers (team leaders, shift managers etc.). Can exclusion of these managers be justified by traditional arguments? As trade unions have spread into nonindustrial environment is often of a more collegial model than traditional industrial settings what kind of an impact does this have? Ultimately, must look at individual scheme and structure in deciding whether exclusion should stand.

City of Thunder Bay (1981) Central Question: Is there an effective authority over the employees? The LRA does not contain a definition of the term "managerial function", nor are there any specified criteria to guide the Board in reaching its opinion. The Board has, over the years, evolved various

general approaches to assist it in its inquiry. In the case of so called "first line" managerial employees, the important question is the extent to which they make decisions which affect the economic lives of their fellow employees thereby raising a potential conflict of interest with them. Thus, the right to hire, fire, promote, demote, grant wage increases or discipline employees are all manifestations of managerial authority, and the exercise of such authority is incompatible with participation in trade union activities as an ordinary member of the bargaining unit. Persons making significant executive or business decisions should be considered a part of the "management team" even though they do not exercise the kind of direct authority over employees which is characteristic of a first line foreman. Childrens Aid Society of Ottawa Carleton (2001) This case involves an application for certification. Bargaining unit constitutes a group of persons who are employed in various positions with CAS but are described as supervisors. Employer challenges claiming that the proposed members of the unit are not employees under the LRA. The employer does not want managements identification in the activities of the employees union. In this case it is reasoned that first-line managerial employees, the question is the extent to which they make decisions affecting the economic lives of their fellow employees potential conflict of interests (e.g. right to hire, fire, promote). In this case, the supervisors play a significant role in performance appraisal which has an impact on employees and are therefore excluded. Note: The status quo has been to treat the supervisors as excluded employees exercising managerial functions. 2. The Employment Relation: Who is the Employer There is a battle between the freedom to organize ones business as they choose. To what degree can labour law regulate and constrain this? There is a second tension regarding the nature of employment. On one hand it is viewed as a fundamentally contractual relationship (and therefore subject to privity). This is contrasted with the notion that employment is a status this can arise through contract or one which you are deemed to have in law given the nature of a particular relationship. Borrowed Servant: McKee v Dumas (CA, 1976) Eddie Forest has a large business and wants to contract out. Eddie enters into a contract with Daoust to provide trucks. Dumas (Eddie employee) is borrowing products from Daoust - driving Daoust trucks. There was a train accident causing damage. The Court of Appeal found Eddie vicariously liable. Held that Eddie is considered the general employer and Daoust is the temporary employer. Dumas is categorized as a borrowed servant. The Court rejects organization test (because Dumas can be found to engaged upon both of their businesses). Court also rejects control test. Instead, courts decision is based on a direct appeal to policy considerations, but still seems to rely on control factors. Even though it is relevant that equipment was owned by Daoust, Eddie put Dumas behind the wheel, maintained control of action Dumas may have taken by reason of his conduct and Eddie paid him. Dumass act was unrelated to any control of Daoust.

The general employer remains vicariously liable for the negligent acts of the borrowed servant unless they can demonstrate that the temporary employer was exercising direct control over the manner in which the work was performed. Court does not restrict the ability of the employer to have another entity do some work. But, unless that entity is exercising control over the borrowed servant, you still remain vicariously liable for any negligent acts of the employee. Parent-Subsidiary Relationships: Peoples Department Store of Marks and Spencer Marks and Spencer Canada Inc. is the parent company. People Department Store is a subsidiary, as are two other companies. Under each subsidiary there are employees. Employees at Peoples are attempting to claim severance on the basis of the size of Marks and Spencer Canada, as Peoples is not large enough to trigger severance pay. In order to control we look to control and other factors and we look to see which owners are in control or which are directly/indirectly responsible for employment. The employment standards test looks at a number of factors: 1. 2. 3. 4. 5. 6. 7. the party exercising direction and control over the employees performing the work; the party bearing the burden of remuneration; the party imposing discipline; the party hiring the employees; the party with the authority to dismiss the employees; the party which is perceived to be the employer of the employees; and the existence of an intention to create the relationship of employer and employee.

see York Condominium Corporation (1977) OLRB (also used in ESA claims) As long as the subsidiary exercise control we will consider it to be the employer. Temporary Help Industry: Pointe Claire v. Quebec (1997, SCC) The city of Pointe Claire hired some employees through a temporary help agency. The employee in question was hired on 2 assignments. The worker was paid by the agency which invoiced the city for the employees services. They were supervised by the city: when they worked, didnt work, took breaks, etc. was dictated by the city. Union claims that the temporary employee is part of its bargaining unit and, therefore, are entitled to the protection and terms of that collective agreement. It was held that the City of PC was the employer for the purposes of the collective bargaining legislation. Rejected the legal subordination test (which was predominant test being used in Quebec). For minimum standards, employer is the agency. The court reasoned based on three factors: (1) performance at work, (2) remuneration and (3) legal subordination (control) of the employee to the employer. Employer is defined according to who the employee is subordinate - who has direct and actual control of the workers. The court rejects legal subordination/control test (because although legal control with the temp agency, actual control was with the city/client) and prefers a comprehensive control test/fundamental control test. Found more control was exhibited by City rather than temp agency.

The comprehensive test elaborates the various elements of control and asks the court to examine its relationship in totality. That is, who has the most control. The application of this comprehensive test determines who was in control of what what was the agency in control of and what was the city in control of. Look at a variety of factors: the selection process, hiring, training, discipline, evaluation, supervision, assignment of duties, remuneration and integration into the business. Note: Concern that if agency is employer, virtually impossible for agency employees to organize effectively (so court didnt want to deny them access to collective bargaining). This decision strikes blow to temporary employment agency since client seen to have control and bear responsibility. New Case: Nike Canada (2006) OLRD 2482 The UFCW attempted to organize Nike warehouse workers in Toronto where Nike employed about 70 part-time and full-time workers The UFCW had signed up enough workers to entitle them to a vote. Nike Canada opposed the application, stating that all employees should be included, including those from a temporary agency. At the time of the application there were more temp workers than non-temp. Applied the factor test and found that Nike is the employer of the temp workers. They exercised control and paid wages (Manpower only got a premium), Nike disciplined. The only factor in favour of ManPower (the agency) was that they had hired the employees. Related Employers Creating Joint Liability Employment Standards Act: Employers can organize their enterprises as they see fit. However, if the reason for the organization is to avoid the ESA, the arrangement has no legal effect. Section 4(1): Subsection (2) applies if, (a) associated or related activities or businesses are or were carried on by or through an employer and one or more other persons; AND (b) the intent or effect of their doing so is or has been to directly or indirectly defeat the intent and purpose of this Act. Activities dont need to be contemporaneous (Section 4(3)) a related employer ruling does not apply with respect to a corporation and an individual who is a shareholder of the corporation unless the individual is a member of a partnership and the shares are held for the purposes of the partnership Section 4(4). Section 4(5) allows for joint liability.

550551 Ontario Limited v. Framingham (1991, Ont. Gen. Div) (AKA Bilt-Rite) The Silvers are majority owners of Biltrite and of the shares of 550551 (there are a number of companies within a consortium associated with the Silvers). Biltrite is the contractual employer of the employees. The Land (where Biltrite operated) is owned by 550551 Ontario Limited.

Biltrite goes bankrupt and employees are left with wages owed to them. Employees try to seek from ESA to get at least the minimum they are entitled to. Biltrite has no assets, so employees want to get the money they are owed from those entities that do have money (i.e. 550551 Ontario Limited) and the shareholders of the corporate entities (Silvers). There is a stretch of time that gives the Silvers time to strip land from 550551 Ontario Limited) and by the time order is issued, they are able to strip $5 million in assets. Test: Are they related employers? AA Is there close functional interdependence between the companies? (more of a stretch to show functional independence of real estate company; here the court finds its activities were closely connected to the business) AA common ownership and control (same owners, yes) AA intent or effect of arrangement to defeat purposes of act. Court says doesnt have to be intent, just effect of arrangements defeats employees from obtaining min standards they are entitled to (purpose) Found that companies are related employers. The courts are unwilling to pierce corporate veil to hold Silver personally responsible: Silver not a related employer, therefore could not be held personally responsible, not intention of legislature to make individuals personally responsible for corps (despite that ESA says can treat individual as one employer) word individual relates to a sole proprietor it wasnt intended to go beyond that. Note: Conservative government argues that shareholders are not liable. Bilt-rite upholds this, stating that the sole proprietorship for shareholder liability. Note: there is a issue here with judicial review they bypass the OLRB (and therefore bypass placing the order amount in trust). The court allows this. Lian J. Crew Group Inc. (Ontario, 2001) Case involves challenge of subcontracting within the garment industry. J. Crew and other clothing lines go through a chain of contractors ultimately culminating in Eliz World, who in turn employ home workers. When it comes time to pay the workers at the bottom, the sub-contractors (the people above them) are out of business. Workers try to challenge this model by arguing that those within the chain of contractors are related and that there is therefore joint liability. P claims shes owed $5000. Claimed Ds breached ESA
and entitled to unpaid wages

Apply test from Biltrite. Find that the companies are part of an integrated industry because they operate through a network of contracts. That however, doesnt make them common or related businesses. Theyre operating at arms length from each other no common contracts. Therefore, notion of related employer doesnt cover vertical integration. Even though S. 12(1) expands meaning of employer to include people who are associated or related to the principal employer when the intent or effect of such an arrangement is to defeat either directly or indirectly the purpose of the Act. The Board won't extend it this far. Novaquest [2006] OESAD No 440

Company goes bankrupt and owes workers significant sums of money. In determining relatedness Board holds that it doesnt matter that a company emerged post-bankruptcy that had control of other related companies. Added condition to 4.1(2)(b) - There must be something in the actions of the employers which specifically prevented the employees from collecting their wages that is connected to the insolvency. This would seem to argue that intent is required. It would seem that post Novaquest, intent is required and not simply the effect. This can be distinguished from Bilt-Rite, however: Bilt-rite involves network of artificially divided companies while Novaquest involves phoenix company which emerges from bankruptcy. Limits of Related Employer Approach in ESA There a number of weakness: (1) relatedness requirement does not reach arms-length sub-contracting; (2) intent or effect requirement read restrictively need to show something more specific than manner of organizing had effect of denying employees protection; (3) cannot be used to pierce the corporate veil and make beneficial owners responsible and (4) ESO lacks power to issue interim orders preserving assets during investigation. What are alternatives? Under the ESA, Part XX, there is an allowance for directors liability for certain violations. Part XXV allows for prosecutions and can therefore go after corporations for remuneration and penalty. Could also make changes to Lien Laws, Bankruptcy reforms or created a Wage Protection Fund.
Related Employers under the OLRA S. 1(4)

To protect trade unions from mere changes in form rather than substance, collective bargaining legislation provides that associated employers under common control and direction may be treated as a single employer for the purposes of collective bargaining. Where in the opinion of the OLRB associated or related activities or business are carried on under common control or direction, the board may treat the companies as the same entity. (s.1(4)) Note: Ellwall and Sons Construction (1978) & John Hayman and Sons (1984) the OLRB emphasized that a sound labour relations purpose must be advanced by the issuance of a declaration under s.1(4) and it will decline to exercise its discretion in circumstances that will serve to weaken the collective bargaining schemes of the Act. Thus, a declaration will be issued when meaningful collective bargaining requires consolidation of employer functions performed by different entities Diamond Taxicab Assn (1995). In order to obtain a declaration under s.1(4) of the OLRA, trade unions must be able to answer the following questions: (1) Is a declaration necessary to protect and preserve established bargaining rights? [Re ONA and Deer Park Villa (1994)] (2) What are the employees wishes? [A&P Co.(1981)]

(3) Has the union acted with due diligence to safeguard its bargaining rights against erosion? [Farquar Construction (1978)] (4) Are the employees of the related employer already represented by another trade union which has had a long and stable relationship with the employer? [Zaph Construction (1977)] (5) Has another trade union applied for certification in respect of the related employers employees? [Zaph Construction (1977)] Common Law: Related Employers: Downtown Eatery C of A, 2001 Business carried on through many companies (similar to Bilt-Rite). The principals are operating a strip club through several companies that they own and control. The employee is employed by one specific entity which is part of these companies. Hes wrongfully dismissed and sues his legal employer and gets judgment (remedy) against the individual employer. When he tries to collect, theres nothing there. Employee seeks to get judgment from all the companies, not just the one with which he had contractual relation. Employee couldnt go after the other companies because no contract between employee and the related employers. Court of Appeal holds that the businesses are related and therefore recognizes the common employer doctrine and in doing so rejects the contract nexus as essential to establish employment relationship. The contractual argument is too narrow upon which to build a Common Law notion of employment. Successor Employers Employment Standards Act & Successor Employers Section 9 Problems of identifying the employer also arises when an employee seeks to rely on statutory protections in situations where the employer sells or contracts out part of its business these matters may or may not be controlled by the contract between the buyer and seller. Under S. 9(1), the ESA treats employees of a business that has been sold as if they never stopped working their length of service continues from the previous employer to the successor employer Note: only if the purchaser hires the existing employees, is there a continuation for the purpose of ESA. Exception: Janitorial Services. When the contract is over, they put the contract back up for bid. If the company that had hired them before wins the bid the rights of the workers follow (i.e. seniority) if the new contractor doesnt keep the old company, theres a cost for not (i.e. severance and termination pay) The OLRA & Successor Employers (Collective Bargaining) The successor rights provisions of the OLRA recognize the necessity of preserving both the bargaining rights and collective agreements in situations where there has been a sale of the business (protect employees). Successor rights only apply if theres a sale of business: The board has to determine whether there has been a sale or not

Issue: is it contracting out or sale of business?

s. 69(2) Successor Employer: Where an employer who is bound by or is a party to a collective agreement with a trade union sells his/her or its business, the person whom the business has been sold is, until the OLRB otherwise declares, bound by the collective agreement. s.69(12) Power of Board to Determine if Sale: The OLRB has the authority to determine if a business has been sold by one employer to another and its decision is final and conclusive for the purposes of the Act. s.69(13): Where a trade union alleges that the sale of a business has occurred, the employer shall adduce at the hearing all facts within their knowledge that are material to the allegation. CUPW v. Muirs Cartage (1992) Difficult to determine if there was a sale of business Discerning between contracting out, sale of a business, and integration of related employers is difficult The OLRB must find both that (1) there was a sale and (2) there was a sale of a business S.69(13) puts the onus of adducing evidence on the employer since they have access to all the material information/evidence What does sale of a business mean? The interpretation of phrase sale of a business depends upon how successor rights are conceptualized. Functional Approach dont need to determine sale of business for successor rights to apply Instrumental Approach have to determine sale of business for successor rights to apply 1. Functional Approach prevalent in Quebec Successor rights can be seen as flowing from the certification of the bargaining agent such that the certification gives workers proprietary right over the work function thus the union may assert this right no matter whos employees perform the work or how the employer came by the work (i.e. the certification attaches to work wherever the work goes certification, CA, follows). Not necessary to determine sale of business or contracting out. Its unionized work and stays that way. 2. Instrumental Approach Successor rights can be seen as attaching to a business such that there must be some disposition of the business in order for successor rights to follow. In Terminus Maritime (1983) the CLRB unanimously agreed that bargaining rights attach to a business and not to a work function (i.e. successor rights follow the business). If business is contracted out, then the CA doesnt follow. If business is sold successor rights follow. Bibeault (1989) S.C.C. Two subcontractors succeeded each other in two agreements given to them by same principal. There was no legal relationship between the subcontractors. Application of Instrumental Approach and therefore it is found that the union didnt have successor rights. Successor rights attach to business and not bargaining unit. The operation of the undertaking by another (i.e. sale) must establish by way of voluntary transfer of rights a legal relationship b/n successive employers. There was no relationship between the subcontractors (the transfer of subcontracting relationship between subcontractors doesnt fall within scope of successor rights provisions)

SCC struck out the functional approach of labour boards. They werent letting the labour boards pursue a broader approach. In order for successor rights to apply, an alienation (sale) of the business must occur. The alienation of the business to another must establish, by voluntary transfer of rights, a legal relationship between successive employers In order for successor rights to apply, the new employing authority must acquire a coherent and severable part of the previous employers economic organization or some essential elements of the undertaking i.e. there must be a sale. Collective bargaining rights do not follow the work function, therefore collective bargaining rights do not attach to work that has been contracted out by an employer Recent Application: Ivanhoe and City of Sept-Iles SCC indicated its willingness to give labour boards more scope to interpret the successor rights provisions of their respective statutes. Court effectively allowed the Quebec Labour Court to use a functional approach. Most boards favour the instrumental approach. UFCW and Parnell Foods Ltd. (1992, OLRB) (instrumentalist approach) A union is not certified in respect of particular employees and there are no proprietary rights in jobs for either the union or the workers thus, there must be a sale of a business for successor rights to apply. Employer controls existence of job. There has been controversy regarding franchising of Canada Post retail services, CUPW has generally been unsuccessful in arguing that collective bargaining rights should follow the work the general rule is that union rights follow the business. Privatization of Public Sector (Crown Corps) and Successor Rights Government is increasingly contracting out to private companies. When government sells to private company, is the company a successor employer (subject to the CA the government had)? Canada Post v. CUPW Sheldon Manly Drugs (1987, CA) - CA followed private business sale to public Canada Post closed an existing outlet and transferred the business to Sheldon/Manly Shoppers Drug Mart, with an exclusive right to provide wicket services in a defined territory The CLRB found Sheldon to be a successor employer Canada Post v CUPW Rideau Pharmacy (1989) - no successor rights after sale of private business Canada Post (government) closed an existing outlet contracted with Rideau Pharmacy to provide wicket services, but did not contract an exclusive right to provide the services The CLRB said no successor rights applied Note: As the case law suggests, there is no clear cut jurisprudence with respect to the privatization of Crown Corps. However, Ontario passed s.23 of the Labour Relations and Employment Law Statute Law Amendment Act in 1995 abolishing successorship rights in such situations ultimately ensuring that the government has maximum freedom to sell off government operations to the private sector.

Fairness in Employment
The common law contract of employment/ liberal voluntarism allows individuals to contract with an employer on any basis and although some would argue that market forces would ultimately cure labour from the ills of discrimination, minimum standards have been introduced in order to ensure that everyone gets a fair shake. In the employment relationship, human rights legislation serves to protect workers, not on the basis of people as workers, but rather on the basis of the distinct characteristics that these people possess.

Human Rights Code Ontario

General Provisions: Equal Treatment (s.5(1)) Every person is entitled to equal treatment with respect to employment regardless of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age (18-65), record of offenses, marital status, family status, or handicap Note: handicap broad definition. Includes mental, learning disorders, physical, people injured in workplace.

Workplace Free From Harassment (S.5(2)) Every employee has the right to freedom from harassment in the workplacebut have to show that the harassment was linked to prohibited ground of discrimination (race, gender, sexual orientation etc.) s.6 Every person is entitled to equal treatment with respect to joining a trade union

Sexual Harassment (ss.7(2) and 7(3)) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer, agent of the employer, or another employee. This includes sexual solicitation and reprisals or threats stemming from such solicitation. s.8 s.10 Everyone has a right to enforce their rights under this Act without reprisal Definitions harassment means vexatious comment or conduct that is known or ought reasonably be known to be unwelcome spouse includes both opposite sex and same sex relationships

s.10(2) The definition of sex includes the right to equal treatment without discrimination because a women is or may become pregnant (i.e. discrimination on the basis of pregnancy is discrimination on the basis of sex) s.11(1) Constructive Discrimination A persons right to freedom from discrimination is violated when a requirement, qualification, or factor exists that is not discriminatory on its face, but results in exclusion, restriction or preference of a group of persons who are identified by a prohibited ground in its application, except when the qualification is a bona fide occupational requirement the Act declares it is not discriminatory s.11(2) Duty to Accommodate The Human Rights Commission shall not find that a requirement is reasonable and bona fide unless it is satisfied that the needs of the group that are discriminated against cannot be accommodated without undue hardship on the part of the employer considering the cost and health and safety considerations. s.17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing the essential duties or requirements because of a handicap. s.17(2) The OLRB will not find a person incapable unless the needs of the person cannot be accommodated without undue hardship on the employer, considering cost, outside funding, health and safety.

Nonunionized employees can go through OHRC. If a common law construction when suing for wrongful dismissal Collateral issue - discrimination can be raised. After Keays v. Honda, however, it should be possible to bring an independent action. If related to Unionized EEs: Grievance arbitration Parry Sound holds that labour arbitrator has jurisdiction and is required to address the issue. If go to OHRC s. 34(1)(a) - However, if union ignoring then may go to Commission cannot be automatic refusal. Issue of Enforcement Disposition of Human Rights Complaints, Employment (OHRC 2000-1) Under s.34 the OHRC has the power to refuse complaints for various reasons. (15% of complaints refused at first stage). Under s.33, the OHRC can accept the complaint - Can accept complaint resolve and settle (56% resolved and settled) Under s.36(2): After investigation , refer to board or inquiry (4%) or dismiss after investigation (11%). 14% withdrawn from complainant no evidence provided. Can be lengthy process delay in processing complaints. Bill 107 Possible Reform This would split in functions: Tribunal and Commission. Complaints go to Tribunal - it has broad powers on award, no monetary limit; make orders on systemic change. One of the critiques of the change is that it is privatizing the claims process - now requires own resources. Proposed to start Human Rights legal Support Centre provision of services including legal to complainants however, there has been no indication of funding. Blencoe (2000): Issues over delay. Accused argues that the time delay between when complaint was made to when it was actually litigated violates their Charter rights by causing harm by having these allegations hang over them. SCC: S.11(b) of the Charter which states that an individual charged with an offense must be tried within a reasonable time only applies to criminal court proceedings and not proceedings held under the auspices of the Human Rights Tribunal. The court also stated that ones right to fundamental justice (s.7 of the Charter) could be prejudiced by delay but the one claiming the breach would have to show actual harm on the facts. The court in this case found that the harm associated with the complaint came not from the delay of the processing of the complaint, but rather from the existence of the claim itself therefore s. 7 of the Charter was not breached. Direct vs. Adverse (Constructive) Discrimination Direct discrimination is discrimination in a policy on its face (i.e. only hire men) while indirect discrimination is discrimination as a result of an application of a policy that on its face is not discriminatory (i.e. only hire people who are 6 foot 5 and over 200 pounds. On its face is neutral but has an adverse affect on women).

BC (PSERC) v. BCGSEU (the Meiorin Test) (1999, SCC) Meiorin abolishes the distinction between direct and adverse effect discrimination and develops unified approach 3 step test. Government applied a set of minimum physical fitness standards for its forest fighters. Meiorin, a female firefighter, who had performed past work satisfactorily failed to meet the aerobic standard after 4 attempts and was dismissed. Her union brought a grievance on her behalf. Court must determine whether aerobic standard was discrimination since most women have lower aerobic capacity than men and whether fitness test is a bona fide occupational requirement? (BFOR) The SCC allows the appeal - the employer had the burden of showing that adopting a less stringent physical testing standard would cause undue hardship. It did not do that on the facts of this case. The conventional approach of categorizing discrimination as indirect or direct should be replaced by a unified approach. A three step test should be adopted for determining whether an employer has established on a balance of probabilities that a prima facie discriminatory standard is a bona fide occupational requirement. The BFOR must be: (1) Rationally connected to the performance of the job; (2) Adopted in honest and good faith as necessary to fulfilling the job; and (3) Reasonably necessary to the accomplishment of that work-related purpose. It must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship. Step 1: Must identify the general purpose of the impugned standard and determine whether it is rationally connected to the performance of the job. Must demonstrate a rational connection between standard and objective. Step 2: Subjective element must be an honest and good faith belief that it was necessary. Step 3: Is the standard reasonably necessary to achieve the legitimate purpose for which youve adopted? Reasonably necessary requires accommodation to the point of Undue Hardship undue infers that some hardship is acceptable, it is only undue hardship that satisfies this test. Among the relevant factors are the financial costs. In the context of BC Forest Fires Case, the BC government failed at step 3. The medical evidence (needing the aerobic capacity) was unconvincing/inadequate and they didnt show that it would cause undue hardship and a less significant impact on women; There are some exclusions:

Under s.24, there are provisions regarding special employment they allow for discrimination to occur. For example, if you are employing people for personal/medical care grounds, religious groups, etc. Affirmative action provision s.14 allows employers to enact programs to relieve economic hardship. These plans cant be challenged if proven valid.

Human Rights Issues - Drug and Alcohol Testing:

Canadian Human Rights Act (1985) Applies to all federal entities including businesses which fall under fed. Powers Section 25: definition of disability includes any previous or existing dependence on alcohol or drugs Sections 7, 8 and 10 allows federal employee to file complaint of discrimination on basis of disability; so one who has been disciplined for testing positive in a drug test can complain

Entrop v. Imperial oil Ltd. 2000 Ont. C.A. Imperial Oil established a comprehensive alcohol and drug testing policy. Entrop had earlier alcohol problem but was sober and worked in a safety sensitive area. Policy had disclosure requirements. Entrop was reassigned. The policy targets safety-sensitive employees and provides that there must be no presence of drugs in the body or a blood alcohol level beyond a certain level, random urine tests administered and breathalyser tests, any positive test results in immediate dismissal, mandatory disclosure of past problem resulting in reassignment of which a 2 year rehabilitation programme and 5 years of abstinence before reinstatement. Also all applicants would be tested after: near miss or accident, and pre-employment testing for all employees. A progressive discipline program would be used for these employees. Court holds that the drug testing is discriminatory (highly invasive and not necessarily tied to safety) while the alcohol testing is BFOR where linked to job performance/safety (can test on spot with breathalyzer). Court holds that substance abusers are handicapped and entitled to protection under the act. Although not all users are abusers Imperial Oil perceives them as such and so this falls under the act. 1) Drug and Alcohol testing is rationally connected to the performance of the job. 2) They were adopted in good faith. (safety reasons) 3) Reasonable and Necessary? Yes, but questionable whether undue hardship. The 3rd step of the Meorion test: It will fail the third prong if it is too broad, arbitrary or strict. Drug testing cannot reasonably measure impairment with any type of accuracy. The sanction of immediate termination is too severe and not sufficiently sensitive to the individual. There is no accommodation to the point of undue hardship. However, alcohol testing is reasonable as it is accurate. However, there is still a need to accommodate. To maintain random alcohol testing as a BFOR accommodation should include sanctions less severe than dismissal. Drug testing after near accidents or for cause is permissible if it forms part of a larger assessment of drug use. Disclosure of current/past substance abuse and Reassignment fail the third step because no limit on past disclosure. The cut off point should be around 5 years. Automatic reassignment is not appropriate. Two years and rehabilitation and 5 years of abstinence is not reasonable to accommodate for past problems. Racial Discrimination Only 43% of racially based claims are settled compared to 56% of claims in general. A higher proportion of race discrimination cases are dismissed after investigation (21% of race cases dismissed compared with 11% of general).

Bhadauria South Asian teacher applied for vice-principal 39 times. Claimed that his culture valued hierarchy and this caused him to be quiet the authority conducting the interview. Also claimed that criteria such as warmth and openness, sense of humour and 'articulateness' worked against him Dismissed complaint. However, recommended that the interview process be changed. Shows that discrimination is hard to prove. Sexual Harassment It was only until the 1970s that sex harassment was given a name and considered unacceptable form of discrimination in the workplace. An employer can be held responsible for failing to provide a workplace free from harassment, or for the sexual harassment caused by a foreman who functions as part of the employer corporations directing mind Kotyk v. CEIC, Olarte v. Commodore Business Machines, Potapczyk v. McBain. Over an average females life, 77% of women will experience one form of sexual harassment 1/3 reported negative effects in the workplace including increased stress and reduced productivity while 15% stated it affected their lives outside the workplace nearly half of those who experienced sex harassment dealt with it head on. Problems associated with the handling of claims is that the process is complaint driven and often decisions come down to assessments of credibility. S. 7(2) Right to freedom from harassment. Every employee has a right to freedom from harassment in the workplace because of sex by their employer or another employee. Robichaud v. R. An employer can be held vicariously liable under Federal Code for harassing behaviour of the employee. Sexual harassment by the supervisor in a federal sector employment setting. R filed complaint against her supervisor for sexual harassment. R is claiming against the employer who hired the harasser not the harasser who did it. Adopted view that the HRC should be read purposively and broadly thus the spirit of the Code allowed the court to hold the employer vicariously liable for the employees acts. A discriminatory practice by an employee is considered a discriminatory practice by the employer even if the employer didnt authorize it. Court in effect says that there is a burden on the employer to take proactive steps in the workplace to both try to prevent harassment from occurring and to have a mechanism to respond to these events if they do occur. If they do take such measures, it will not relieve the employers liability. However, it will be taken into account when the Board of Inquiry is attempting to administer a proper order to remedy the situation Pay Equity The Wage Gap The wage gap is slowly narrowing:

 In 1880s women were making 50% of what men were. In 1967, women were making 58% of what men were making, in 1997 that percentage has changed to 75% Some people benefit more from the closing of the gendered wage gap: o The gap is less for single women it decrease with education the gap is also smaller among unionized women (i.e. unions have + effect on decreasing the wage gap) however the gap increases with age it is argued that the perceived decrease in the wage gap over the years is a result of the male wage remaining stagnant (mens wages stay the same or fall (from 1975-1996) while womens wages have been increasing) Explanations for the Wage Gap Historic social devaluation of what has historically been classified as womens work Familial responsibilities that take away from a females commitment to the workplace Barriers to education (lower human capital of women) because of familial responsibilities Less unionization Segmented labour markets o Women usually relegated to secondary due to historic undervaluation of womens work Labour market segregation o Horizontal segregation men and women in different occupations (men traditionally in managerial and professional occupations, while women are in clerical positions) o The industries in which women are concentrated lower pay, small employers and part time work (clerical) while men are in high paid industries (manufacturing, construction) o Vertical Segregation even when men and women are in the same occupations and industries theyre not equally distributed within those industries. Women are crowded into the lower income quartile Prevailing societal attitudes which include the notion of the family wage and the main bread earner Pay Equity and the Employment Standards Act S.42(1)Equal Pay for Equal Work - No employer shall differentiate between male and female employees by paying a female less than a male if (a) they perform substantially the same kind of work in the same establishment (b) the performance requires substantially the same skill, effort and responsibility and (c) their work is done under similar conditions S. 42(2) Exceptions S. 42(1) doesnt apply when the difference in the rate of pay is made on basis of (a) a seniority system (b) a merit system (c) piece work system (d) differentiation based on something other than sex

Note: if work substantially similar then men and women have to be paid the same There can be differences in wages due to other factors (seniority a man whos more meritorious than a woman can be paid more) s.32(3) - No employer shall lower the pay of an employee to comply with s.1.

Problems with Equal Pay for Equal Work 1. Need a male comparator: It depends on male occupying the same or similar position as female which doesnt address positions that are held exclusively by women 2. Complaint-based: It depends on female plaintiff filing complaint against employer for wage discrimination Work of Equal Pay for Work of Equal Value Can compare different jobs (primarily female) with other jobs (primarily male) Work of equal value should be paid the same Have to determine the value to the organization of a certain job that is occupied by a female worker and make sure that other jobs of equal value to the organization occupied by males receive the same pay Advantage: Jobs of different work function can be compared for pay purposes Problem: This system cant be used if there are no male occupied jobs in the firm that can be compared with those occupied by females and complaint based. The Pay Equity Act (1990)(Ontario) s.4(2) systemic discrimination shall be identified by comparisons between each female job class in an establishment and the male job classes in the establishment in terms of compensation and value of work performed s.11(1) This Act applies to all employers in the public sector, all employers in the private sector who have at least 10 employees. Establishment means all employees of an employer in a geographical division or in such divisions as are agreed upon under S. 14 & 15 female job class a job where 60% or more of the members are female male job class a job where 70% or more of the members are male job class means those positions in an establishment that have similar duties, qualifications, filled by similar procedures, same pay Weaknesses: If there are 2 male job classes with the same value but 2 different rates of pay, the employer is only obligated to pay the female the lesser of the two rates Employers are only obligated to use up to 1% of their total payroll costs to address pay equity issues.

Pay equity cant look at inter-employer or inter-industry inequities, can only look at intraestablishment gendered pay discrimination associated with horizontal segregation I.e. Men in garbage collection and women in office job can compare the men and women if in the same firm. Under the Ontario approach, employers are/were obligated to create pay equity plans it was not a complaint based procedure, it was pro-active. 2 Models of Equal Pay for Work of Equal Value Schemes: A) Complaint Based System: eg. is in Canadian Human Rights Act Canada Human Rights Act s.11(1) CHRA - discriminatory for employer to establish differences in wages between men and women employed in the same establishment who are performing work of equal value s11 (2)CHRA - value of work means the skill, effort and responsibility required in performance of work and conditions under which work is performed problem is that if your workforce is mainly women anyway, no men to compare the job to System requires employer to engage in following process: 1. conduct gender neutral evaluation of work performed by employees see if female work is undervalued compared to male work 2. if evaluation shows that men are paid more for equal or lesser value work than women, law requires to raise the wages of women so that they are equal to that of mens wages of equal value system under the HRA only applies to federal public sector and federally regulated employers (eg. Bell Canada) Bell Canada Case (1998) (Federal) Pay equity complaint involving telephone operators large number of female operators. When Bell realized they were going to lose the litigation, they fired many women operators and contracted out the work. Canadian Human Rights Commission (2001) called on the Fed government to issue proactive legislation. B) Proactive Scheme (Provincial) the Ontario scheme is based on a proactive approach employers are required to review their hiring practices and make changes even if complaints are not made the Ontario Pay Equity Act applies to both private and public sector employers, although private sector employers with fewer than 10 employees are excluded employers are required to define job classes within the firm and compare pay rates of male and female job classes Steps in Doing Pay Equity: 1) Create pay equity within an establishment - all of employees of an employer in a geographic division (might be problematic because a workplace might be fragmented in different locations) 2) Establish job classes - job classes - positions in establishment that have similar duties and responsibilities and require similar qualificationssimilar salary

3) Establish gender composition of the job classes compare female with male job classes female job classes are those where 60% or more of the members are female male job classes are those where 70% or more of the members are male If an employee does not fall into one of these classes, they are out of the pay equity system entirely. 4) Calculate pay rate for each of the job classes The job rate means the highest rate of compensation for a job class 5) Calculate job value using gender-neutral job evaluation system - To value work, look at skill, effort and responsibility normally required in performance of work and conditions under which is normally performed (s. 5) Pay equity is achieved when the job rate for the female job class is at least equal to the job rate for a male class in the same establishment where the work performed is of equal or comparable value. If there is a difference between job classes, the female job class is entitled to the same rate of pay as the male job class. Pay equity cannot be achieved by reducing the wages of male job classes. Differences between male and female job classes are said to be permissible e.g. if based on a formal non-discriminatory seniority system or a skills shortage. All public sector and large private sector employers must create a pay equity plan. A separate pay equity plan is required for each bargaining unit. Where no union present, no requirement to have worker participation in preparation of pay equity plan. Where there is a union present, plan must be negotiated between union and Employer. Pay equity plans are supposed to be self-managed. Job evaluation systems are the most contentious issue Proportional value compares male and female job classes in the same establishment by using a graph to plot job classes and wage lines. The proxy method is used when there are no male job comparators within the organization. It allows outside comparators to be used if they are within the same geographic location. Employers must be prepared to justify pay differences and prove that they are not the result of gender bias. Employers will not be required to make pay equity adjustments that exceed 1% of the annual payroll for the previous year. Private sector employers with between 10 and 100 employees are not required to prepare a detailed pay equity plan but are still expected to make all necessary wage adjustments. Criticisms of Pay Equity one weakness is the vagueness of the Ontario program much of the important issues are left up to interpretations of the Pay Equity Tribunal funding for the review of Pay Equity was slashed by the Ontario government the system is very complex the question of who the employer is often arises (Barrie Public Library Board; HaldimandNorfolk) the availability of job evaluation systems is a problem most are generated by management consultants another issue is who actually pays for achieving pay equity (e.g. workers, employers, customers, etc.) nothing prevents an employer from red-circling a job (lowering the rate for future

incumbents yet maintaining it for incumbents) the self-managed process only works within an organized setting lacks oversight in nonunion settings.

Reforms of Pay Equity In 1993, NDP statute introduced 2 new methods of pay equity: 1) Proportional value method applies to public and large private sector employers with more than 100 employees construct a male wage line (graph) and a female wage line so that you dont have to find the job class with the same value, you just bring female jobs up to male job trend line. 2) Proxy evaluation Could only be used in public sector. Allowed you to look outside establishment and look at male job comparators in other establishments. Evaluating the Pay Equity Scheme Public servants have fared the best; received a 15% pay raise for 30,000 jobs Private sectors have benefited less; less than 1% increase in salary to achieve pay equity Work-Family Policy ESA address protecting workers during leaves of absence (pregnancy etc) Leave relating to Family Issues: PART 14 Leaves of Absence Pregnancy - Part 14 of ESA 2000: s46, 47 - pregnancy leave if employed for 13 weeks prior to the leave, leave may begin max 17 weeks before pregnancy, linked to employment insurance standards (certain guarantee about reinstatement when return) (employer does not pay but rather employment insurance standards). Can then apply for EI. Parental Leave : s.48,49 - all parents entitled to within 1st yr of child coming into the home (birth or adoption), not just to traditional families but broad definition of spouse; includes same sex partner; allows parent to take additional 35-37 weeks away from work (no requirement for employer to pay for this, but rather parental benefits under employment insurance acts etc) Emergency Leave in new ESA : s.50 - employees with workplaces of 50 employees or more allowed to claim this; provides that employees allowed to take up to 10 days per year of unpaid leave to deal with personal injuries, death etc (flexibility to take some time off when emergencies, although it is unpaid); nothing like this in previous provisions. Rights During Leave s.51-53 Continuity of benefit plans; accumulation of seniority; right to reinstatement. Employment Equity Employment equity is another way of trying to redress discrimination or unfair treatment in the labour market. It tries to overcome labour market segregation and overcome segregation within firms of jobs.

Employment equity exists federally. We had it for 2 years in Ontario (NDP government). What it essentially does is identifies 4 designated groups which are designated as marginalized: women, visible minorities, people with disabilities, and aboriginal people. Employment equity applies to federally regulated employers and Federal Contractor Compliance Program any institution that does business with the government is required to have an employment equity plan to qualify to have that relationship with the government. Only employers who fall under the contract compliance aspect of the Federal Employment Equity Act are required to keep workplace data regarding the representation of equity groups, and to make efforts to ride their establishments of discriminatory employment practices. What it requires of employers is: employer must conduct a survey of its workforce to identify the representation of the 4 targeted groups in its workforce must compare the representation of those groups with some relevant outside comparator (within the relevant labour force) then, employers must conduct a survey of their employment systems and try to identify any barriers that may be preventing these members of the groups from gaining employment within that workplace then you prepare an employment equity plan identifying the barriers and steps you will take to remove them, steps that will be taken to correct the inequities and identify numerical goals and timetables for achieving them. Where there are unions, they must participate in the preparation of the plan. Overall, in Ontario, it had zero impact wasnt in place long enough (was repealed)

Fairness in the Collective Bargaining Scheme Application of anti-discrimination law to collective agreements (see s.54 of the the LRA) Protection of individual rights in trade union context Forced exclusions exclusive bargaining agency for workers union security clauses Closed shop: must be a member to be hired Union Shop: must join upon being hired and remain a member Dues Shop/Rand Forumla: membership not required, but union dues paid by all members of the bargaining unit. Forced inclusions: conscientious objection negative freedom of association

Application of Anti-Discrimination Law to Collective Agreements

This is a straight forward issue: no discriminatory clause in a CA will be upheld. No discrimination in the collective agreement, CBA must comply with OHRC and Charter - s54 OLRA. No certification if discrimination by union - s15 OLRA Also see OHRC, s.6, OLRA, ss. 74 (duty of fair representation), 15, 51(2) Protection of Individual Rights in a Trade Union Context: T. Barbisen and Sons v. Operative Plasterers and Cement (OLRB) Union demand that discriminatory practice be included in CA violate HRC (Thus HRC applies to CB). Union proposed agreement not to employ more than 50% of employees of Italian origin. Thus deemed not to be a CA for purposes of the Act because it would violate the HRC. This was found this to be bargaining in bad faith - cannot be said to fulfill duty to bargain in good faith by imposing as condition to entering agreement that other party enter agreement which by its terms must be deemed not to be CA for purposes of the Act. Ontario Hydro (1978 OLRB) An employee of Ontario Hydro was forced to retire at age 70 pursuant to a management policy on the subject. The employee did not want to retire. He was still in excellent health and was able to perform his employment duties. The matter went to arbitration and it was argued that the employer had no authority under the collective agreement to force personnel to retire. One clause in the agreement stated that there could be no discharge or discipline without just cause. The griever argued that the employer had to show just cause for the discharge. He sought damages and reinstatement. Is there anything in the agreement to limit managers rights? 1. Is there an Express Limitation - specific language in agreement that limits managers rights? Such as not having mandatory retirement policy etc although specific prohibition against termination without just cause, too narrow to deal with mandatory retirement, therefore no limit on managers right to mandatory retirement policies by specific language 2. Is there an Implied limitation on managers rights (to implement mandatory retirement)? by implication, manager rights restricted by general duty to act fairly: cannot act arbitrary, discriminatory or unreasonable exercise of power Reasonableness: relates to prevailing standards of retirement (age 65 and this policy is 70, therefore reasonable) Discrimination: policy applied equally to all 70 year olds? Are all 70 forced to retire? Yes, therefore no discrimination. Arbitrariness: was there adequate notice of the policy yes 3. Statutory Restriction on exercise of management rights? Such as HR or ESA against mandatory retirment? Ontario Human Rights Code: no violation at age 70 (age protected until 65) Charter argument - does not specify which age group it protects, so helpful for 70 year olds Cases at SCC said it was discrimination but upper ages (65-70), mandatory retirement are demonstrably justified.

Application Dismissed. It was found not to be unfair or unreasonable or discriminatory. Steinbergs Limited (1971, OLRB) Unions constitution restricted membership so that members of a communist, fascist or similar political organization could not join. Another competing union used this term of the constitution to challenge that unions application for certification on the basis that the union discriminated on the basis of creed. The court said creed should be given a narrow meaning relating to religious beliefs and not political beliefs. Therefore, the union can be certified no discrimination on a prohibited ground. Problems Associated with Collective Bargaining and Employee Rights: 1. Exclusion of Individual Workers Against there Will (i.e. not allowed in unless member of union) This effects democracy as they cant participate in CB and job security because if excluded from the union cant be hired under the Rand form of security (S. 51(1)(a) OLRA as a condition of employment (Rand), membership in the union. 2. Forced Association Against their Will (i.e. Closed Shop) must join union to be an employee Different levels of forced association: 1. Union Representation have to abide by CA even if rather have an individual contract of employment, see Orenda 2. Pay Dues to Union 3. Membership (have to become a members to be able to work or remain employed (union shop)) R. v. Advance Cutting 1. Forced Association Against Their Will Can an employee be forced to become a member of a union or face dismissal (due to closed shop term in CA)? Religious Objection (s52.1) Where the OLRB is satisfied that an employee, because of his or her religious conviction or belief: (a) objects to joining a trade union, or (b) objects to paying of dues or other fees to a trade union The OLRB may order that the provisions of the collective agreement do not apply to the employee and that the employee is not required to join the trade union or to pay any dues provided that equal amounts that would have gone to dues go to a charitable organization. Tough questions occur like when an employees opposition to the pro-choice stance of its union is not religious but rather political in nature. Orenda Union cant compel employer to terminate employee because union membership taken away due to union activity. Union revoked persons membership but employer failed to discharge the person. Union wanted employer to fire the employee for not being member of the union.

Arbitrator finds that Union must provide particulars to show expulsion from union has occurred in proper way the employer cannot be compelled to terminate unless proper procedures were followed. The union has to: i. Give notice to the company that the person was kicked out of union, ii. Give particulars that would allow the company to prove that its duty to dismiss was for a proper cause under the unions constitution and by-laws - but by and large, courts have tried not to get involved in these cases, and generally only in cases of procedural fairness. Constitutional Ways to Deal with Forced Union Membership Lavigne v. OPSEU (1991, SCC) Payment of union dues doesnt breach freedom not to associate. Lavigne was worried that part of his dues are being used for political objectives that the union supported but he personally did not (i.e. used to support a political party etc.). Lavigne wasnt challenging the use of the union dues for the narrow purposes (collective bargaining) just the broader purposes. He claimed it violated his freedom. Found these objectionable. Does Rand Forumla violate the negative freedom of association (freedom not to associate?) Court finds paying union dues doesnt breach freedom not to associate, because not forced to adopt the views of the union. 1. Does Charter apply here: Problem is that there isnt state involvement - Dolphin Delivery Case in many ways, this was just about what the union did with money it received however, majority said there was enough state involvement because public employer and statutory provisions included. 2. What is scope of freedom of association? The Court is Split - 4/3. Majority held that freedom of association includes the right not to associate. Because it was about individuals, should protect them from being compelled to join with others (i.e. right of individuals not right of association individual not forced to associate). Minority said not a right to negative freedom of association. Its about protecting people who wish to join into groups. 3. Does compelled payment of dues violate negative freedom of association (to not associate)? Majority no it doesnt violate the negative freedom of association - fact that you pay dues does not compel you to associate with them or adopt the views of the organization - does not make you associate with them, doesnt violate liberty interest. Minority said it did, especially if money going to ideas that you did not support 4. If it does violate freedom not to associate, is this justifiable under S. 1? Rand Formula was demonstrably justified formula, because allows the trade unions to participate in broader social debates, this is to be encouraged, etc. There is still some scope left to challenge after this - but as in most other cases where CB laws challenged, in most instances courts have come to conclusion that the existing laws are acceptable Advance Cutting and Coring (SCC, Quebec Case) Compulsory membership violates freedom of association but is saved by S. 1

Turmoil in construction industry. Unions were recognized as having a place in construction workers get to vote for who they want to represent them. However in order to vote had to be a qualified construction worker and in order to be qualified had to join one of the five recognized unions and become a member (compulsory association at membership level Lavigne distinguished because it dealt with dues). Whats the scope of the negative freedom of association and does compulsory membership violate it? Scheme upheld 4/4 with LHereux Dube arguing against any right to not associate, as a result it is found that it did violate freedom not to associate but it was saved under S. 1 Court: 1. Freedom of association includes freedom not to associate (Lavigne) 2. Scheme violated the negative freedom of association because compulsory membership of union lead to ideological conformity 3. The violation is justified by S. 1 Note: the question in determining whether it violates freedom not to associate is does the compulsory act (membership dues) impose ideological conformity (i.e. money being used for other purposes besides CB etc.)

Employer/Employee Rights and Duties

Essence of common law contract of employment is provision of services for remuneration. Payment required where contract of employment exists (oral, written). Where terms are not explicit, terms of the contract will be implied. Courts have not automatically found a duty to pay. Employer Duties Duty to Pay Remuneration Reeve v. Reeve An uncle was managing his nephews farm. He got room and board and a clothing allowance. Was the uncle also entitled to wages? the nephew disputed this. Court finds that you cannot say you are entitled to remuneration simply on the basis that services were rendered as they arent always employment relationships. There must be a bargain. Here there was a mutual understanding that remuneration would be paid. Spraig and White v. Nickerson (older Ontario case) Daughter takes care of father on farm with the expectation of inheritance; when he dies he leaves his property to his son. Court says she is not entitled to wages for taking care of father and says that this undermines whole notion of family (as typical role that daughter should perform). Problems: Re amount of wages enforceability of promise to pay more Stylk v. Myrick (1809) A voyage was taken where the sailors agreed to a fixed sum to be paid upon completion. When they completed the first leg of the journey, some of the sailors deserted leaving the ship short staffed. To induce the remaining sailors to stay on and do the extra work, the master promised they would be paid the wages of the deserting sailors divided amongst the remaining sailors. When they arrived back in England, the captain refused to pay and the sailors sue. The court holds there was no obligation to pay the additional wages as there was no fresh consideration. The sailors were already under an obligation to perform the work. In effect, the promise by the captain to pay them more money was a gratuitous promise. Quantum Meruit on principles of unjust enrichment be unjust to allow person who received benefit of those services not to pay court may step in absent contract and require party to pay. Minimum Wages Common law No common law that would regulate the amount of wages that can be established in a contract of employment. Must look to statutory mechanisms. Growth of wage polarization in Canada: 1967: high wage: 36.9%; med wage: 26.8%; low wage; 36.4% 1986: high wage: 39.4%; med wage: 21.5%; low wage 39.1% Rising labour market poverty: - 3.6% of labour force paid minimum wage (64% of whom are women; 60% adults) - 13% paid less than $8.00 an hour (60% women) - 25% paid less than $9.25 an hour (or less than 2/3 the median wage) - Growth in low wage employment = growth in labour market economy - Poverty extremely high with single female family

- Concern over existence of this kind of low wage employment Policy Instruments in Dealing with Low Wages: Employment Standards Act (Part IX) - Most min. wage dealt with in regulation - Not everyone is entitled to minimum wages - exclusions - Specific exclusions (s.7 ESA reg 285) - No link between cost of living adjustments or link to industrial wage just left to government of the day Issue of Enforcement of a Minimum Wage: - Generally low enforcement Complaints under employment standards: - Only made by people who have lost their job - People working unlikely to come forward - No proactive enforcement by government of minimum wage laws Concerns About Raising Minimum Wages: May cause unemployment will get rid of some of the work force if minimum wage is raised. Economists/researchers actually believe that marginal increases have very small knock off effects. May actually have positive effects on economy cause employers to become more efficient. Minimum wages never intended to deal with whole problem of low wage work How do governments determine what the minimum wage should be? Set by regulation: This is done by politics. This reflects what the government of the day decides they want to do. As a result, in our day and age, governments have not been likely to increase minimum wages. Over time, the actual value has been decreasing. General Problems with ESA - Enforcement of ESA 2000 Non-union employees (employees not covered by a collective agreement) go to the Employment Standards Branch, unless they want an order of more then $10,000, then they go to the Superior Court (see ESA ss. 97, 98, 103(4)). Prior to ESA 2000, one could pursue complaint through both a civil action and a complaint through the Ministry of Labour. This is no longer possible worker must choose one or the other. Ontario Auditor Generals Report, 2004 Employees only claim after they leave employment (90% of claims) does not protect rights while employed 70% of claims upheld, but individual complaint rarely led to investigation 2003/04: 151 proactive inspections, over 300,000 workplaces Inspections uncovered violations in 40% to 90% of cases, depending on business type Employers found to be in violation of the ESA rarely prosecuted or fined Only 30% of employers against whom order are issued pay voluntarily Private collections agencies (to which unpaid orders are sent) only collected 12.4% of amount of outstanding orders in 2004. The Ministry of Labour was previously able to collect 22%.

Duty to Pay Remuneration in Specific Circumstances

Illness: When an employee becomes ill, is the employee entitled to be paid? Where you have an individual contract for employment, the parties can agree to just about anything. Where there are standard jobs, often there are set procedures to deal with sickness you get a certain amount of sick days a month or year. With better jobs there are also negotiated terms for disability benefits. In bad jobs and nonstandard employment shorter term relationships with employers, these kinds of benefits are not expressly provided for in the contract of employment. At common law, if the contract is silent, what is a court likely to imply as being the common understanding between parties. We get a sense of the older common law in: Dartmouth Ferry Commissioners v. Marks A ship captain was hired on a monthly basis with a provision that either party could terminate the contract by giving a months notice. The employee became ill in December and died in July having never come back to work. His wife sued and said she was entitled to wages owing in period of sickness up until date of death. Is the widow entitled to wages for the period of sickness of her husband? The jury found that the illness was a temporary illness and therefore the widow was able to recover. Temporary vs. Permanent Illness: Permanent: allowed employer to put the contract to an end on the basis that it would become impossible for the employee to perform his duties thereby relieving duty of employer to pay wages (terminates the employment contract) Temporary: Judgement of Davies. One may say that even if it is a temporary interest the obligation to pay is suspended until the employee recovers. Davies rejects this on the principle that it is simply a matter of common humanity to recover wages during temporary illness. Note: Is Dartmouth still good law? It was a contract of entirety, which are not common now. Circumstances where one might raise Dartmouth must be similar one where very similar facts. Difficult today to convince common law courts using Dartmouth that there is a common law right to sick leave and sick pay. People likely dependent on statutory entitlements OR collective bargaining agreements have sick leave or pay worked into them. Note: Can terminate contract of employment by frustration or by reasonable notice or without notice for cause - but illness is not cause. Statutory Provisions: ESA No entitlement to sick leave (paid or unpaid) under current ESA matter is decided at common law and individual bargaining employer may terminate if absent due to illness (but will have to pay because illness is not cause) ESA - emergency leave provisions in larger work places (nothing before this) Canada Labour Code - Unpaid sick leave provisions Employer cant lay off employee if: . employee at least 3 consecutive months of employment . absence not more than 12 weeks . doctors note provided within 15 days of return

Teachers: have statutory entitlement to sick pay. If cause of disability is work related, entitled to sick leave and provisions that protect your job. If not work related, most employees can claim sickness pay under Employment Insurance scheme i. worked for at least past 52 weeks ii. pays to max of 15 weeks iii. but no guarantee of re-employment - but one can look to Human Rights Code for discrimination on illness but, definition of disability does not include usually transitory illness such as flu. (Ouimette v Lily Cups)

It is possible, therefore, that a human rights adjudicator may make a finding that sickness falls under disability. McGill University Health Centre 2007, SCC 4: Impact on automatic termination clauses in collective agreements. Case involved worker who had to take time off (2 years) after car accident. Court held that individual who was off work for sickness/disability lost entitlements under CA after 36 months. The CA also allowed for periods of rehabilitation, where they could be allowed back for modified duties or part-time work. Held that automatic termination clauses of the kind in this case were prima facie discriminatory. There was a duty to accommodate on an individual basis. Arbitrator was allowed to look at CA when determining what was reasonable accommodation. The decision was upheld and found that the arbitrator had not applied the rule in a mechanical way and that they had accommodated to the point of undue hardship. In this case the protection provided to sick/disabled employers was more generous than other areas of business. Ultimately, this must be determined on a case by case basis. The amount of protection that has been granted to workers with illnesses and disability seems to be growing in human rights law. On the other hand, statutory protections seem to be out of line with current equality law. Employers cannot rely upon minimum standards provisions and assume that these are sufficient. They are open to challenge as an individual has the right to be accommodated to the point of undue hardship. Hours of Work Decline in the standard work week (35-40 hours). In 1976, 70% of workforce working between 35-40 hours a week, in 1993, only 60% doing so. Employers wanting greater flexibility to adjust hours of work depending on demands of work. Employees want flexibility relating to balance of work obligations and home obligations. What the labour market looks like in terms of distribution of hours: The largest chunk of people have moved into short hours. In 1997, nearly 25% of the workforce was working less than 35 hours a week. What this means is that there has been an enormous growth in parttime work. There are now a small number of people working longer hours and a large number of people working shorter hours - polarization of the labour force. For some people this is voluntary, but for other people they just cant find full time work and are forced to work part time.

Legal regulation of Hours of Work and Overtime At common law there are no regulations on hours of work. Statute ESA 2000 (Progressive Conservative Law) o Allowed employer to extend working day from 8 hours to 13 hours without requiring employee consent. S.17 read in conjunction with s. 18-11 consecutive hours free a day) o 48 hour working week can be extended to 60 with employee consent (no ministry approval required) o Must be given 24 consecutive hours off every 7 days or 48 hours every 2 weeks o Provision for overtime averaging over 4 weeks with employee consent must work more than 176 hours over 4 week period before entitled to overtime pay o Can substitute 2 eating periods equaling 30 minutes with employee consent Note: In unionized workplaces, union gives consent controversial allows significantly greater number of hours of work, removal of permit oversight function and overtime averaging. Liberal changes to ESA 2000 (March 1, 2005) No change re: 13 hour days Also retains ability of individual employees to agree to work more than 48 hours a week and average entitlement to overtime over 4 weeks But it now requires that employers: o Give employees an information sheet regarding hours of work (ss. 17(5), 21.1) and o Obtain an approval from the director for long hours of work (s.17(3)(b) and overtime averaging s.22(2)(b) o Note the legislation specifies what the Director must consider in issuing an approval for long hours (s.17.1(7-8)) or overtime averaging (s.221(6-7)).

Duty to Provide Work: Common Law The basic question is: Whether the employer can suspend the contract of employment temporarily by laying off workers and not paying them? Common Law: At common law, there is no obligation for employers to provide work during the duration of the contract. There are certain circumstances where there may be a duty to provide work. Collier 1940 - Rule: in general, there is no duty to provide work but there is a duty to continue to pay even though no work is being provided. Worker can be terminated, where: 1) Frustration of contract

2) Periodic hiring (contract of a year and contract ends) 3) Employee breach of contract (just cause) 4) Notice (reasonable notice from an indefinite hiring 2 weeks notice and cant avoid a paid notice) Temporary Suspension of Employment Contract: What if the employer doesnt want to permanently terminate an employee but wants rather to suspend the contract temporarily?
Devonald v. Rosser & Sons

The employee was paid on the basis of piece work. There was a written contract of employment with some unusual features - can only be terminated by either party by giving 28 days of notice, on the first of the month (month to month contract of employment that is automatically renewed for a further month unless the appropriate notice is given). The employer decided on July 20 that because business was slow to suspend the contract of employment and lay off the employee. On the first of the month (August 1), they gave them the 28 days notice. There are 2 time periods to look at: July 20-31 and August 1-28. Does the employer have the right to unilaterally suspend the contract of employment and not provide work or pay? Look to terms of employment contract that speaks to this issue. In the absence of such, look to implied terms of contract. Implied Terms of Contract of Employment: Court looks at Moorcock Case: Business efficacy test that they have relied upon for implied terms of contract. In looking at the contract you view it from the presumed intentions of the parties. Claims that there is no distinction between piece and wages per time. The employer bears the risk of layoffs under this kind of contract and cannot escape the obligation to pay unless the risk of a shutdown is something that the worker and the employer both have control over and share. A custom may create an exception to the general rule, but only if the custom is notorious, certain, and reasonable. Trial judge held that employer is not under obligation to provide work everyday. Has to be mutuality between parties. Employer cannot unilaterally suspend contract of employment and not pay. July 20 Aug 1 = must pay. Limitations on restricting unilateral suspending contract without pay: 1) Paid by Piece: Makes no difference 2) Break down of machinery caused shortage of work employer should plan for ups and downs in business cycle. Employer shouldnt have to suffer, yet unforseeable events might be cause where no duty to pay. Break down of machinery is to be mutually shared by employee. If matter unforeseeable (machinery breakdown), risk is shared, therefore no duty to pay if cant give work If matter foreseeable (not in control of party), risks not shared and is duty to pay if no work 3) Custom (Notion of customary practice) - Common law applies generally, but if custom is to suspend without pay, then courts respect that. Person that is claiming customary practice must prove: a) Custom is notorious in trade b) Custom was certain c) Custom was reasonable (look at bigger picture)

It would be unreasonable to suspend employees without wages at a moments notice. Employers cannot unilaterally lay-off employees without having to pay them. Common Law in Canada: Stolze v. Addario (1997 Ont CoA) A senior employee received a letter that purported to be a temporary lay-off notice. The employee, Stolze, claimed he had been terminated and that he was entitled to termination and severance pay (breach of contract so should be treated as constructive dismissal). In his employment standards case, the ruling was that he had been temporarily laid off and not entitled to claim termination and severance pay. This was appealed. Whether the employer had a right to put the worker on temporary lay-off or suspension of contract. This type of case depends upon whether something is a temporary or permanent termination (or lay off). Here they took the view that it was permanent. He was constructively dismissed. In the absence of established practice that an employer has the right under the contract to temporarily layoff employees, the attempt by the employer to do so constitutes a fundamental repudiation of the employment contract itself. Unless there is an implied right established through practice, there is no right to temporarily lay-off. Temporary lay off constitutes a constructive termination; so at common law, an employee can treat such a lay-off as termination and claim associated benefits. Therefore: Although there is no common law duty to provide work, employers do not have the right to unilaterally, temporarily suspend work. So why dont more people claim constructive dismissal? The benefits of termination pay and finding another job do not outweigh the benefit of having their job to come back to in the future so they accept temporary termination Is there a duty to pay if no work is provided? At common law, the courts have taken the view that in the absence of a customary practice to the contrary, there is a duty to pay until termination unless the result of the disruption is a shared risk. (Devonald) Cabiakman [2004, SCC] Case base on civil code in Quebec. Involves situation in which termination is not shortage of work, but rather an employee who is charged with an unrelated criminal offense. Certain criteria must be met must act in good faith, must have legitimate business interest, but (except in exceptional circumstances) they must be paid. Upheld right to suspend worker, but company required to provide payment. Cannot act unilaterally. It is unclear how this would apply outside of the civil code. Duty to Provide Work: Collective Bargaining Re: James Howden and Parsons The employer unilaterally decided that it wouldnt open for a half day on December 24 and 31. They told people not to come in during those days and the employees wouldnt get paid for those days. The union said this was a breach of the collective bargaining agreement. There is no implied duty on an employer to provide employees with work for the duration of a contract.

Union doesnt even make the claim that restriction that under common law they have a duty to pay (Devonald) Instead union argues duty to pay or provide work instead on basis that normal work: 8 hours in workday and 40 hours per work (defintion of hours clause)

Definition of a working week does not guarantee that the workweek will be provided this way - rejected interpretation of the 8hour/40 hour. So if want protection against temporary layoffs, will have to have specific clauses about that, not just rely on the definition of hours clause. If unions want protection against layoffs, will have to bargain for more and not on the basis of working hours. In some cases, unions have gone back to negotiate no layoffs in collective agreements. But as one can imagine, employer would disagrees due such restriction. More likely is a Procedure layoff clause: layoffs will be done on the basis of seniority. Another likely provision is for layoff benefits. Due to these procedural safeguards when a layoff occurs, one issue has arisen on a number of occasions and has caused problems is the issue as to what exactly constitutes a layoff that triggers these safeguards. Northern Electric (1971, UK) What is a layoff that would trigger layoff protections within a collective bargaining unit? Here, two kinds of protection have been negotiated: 1) procedural must lay people off in accord with a particular procedure. 2) Lay off allowance certain monetary payments must be paid to workers who are laid off. Northern Electric had 2 bargaining units, office employees and a bargaining unit of the production employees. The production unit goes on strike and as a result the office workers are laid off. They decided that there wasnt enough work for everyone they did this without following the lay-off procedures and without paying the lay-off allowance. Arbitrator defines lay-off as follows: a temporary severance relationshipfor the purposes of reducing the working force in order to meet the demands of the employer. Any reduction of a regular working period potentially constitutes a lay off for which the provisions regarding a lay-off would have to kick in. Arbitrator says as long as suspension for purpose of meeting staffing requirements it is a layoff - regardless of cause due to economic downturn or that your other staff are on strike. Note: Harry Arthurs argues for a broader interpretation: a layoff must be regarded any period which the employee has to cease working; eg. even a 15 minute cessation of work before the end of the working day constitutes a layoff ; so any interruption in the normal working period constitutes a lay off. Other Scenarios: General Reduction of Working Hours in the Bargaining Unit Air-Care Ltd. v. United Steelworker of America Employer unilaterally decides it will provide all workers with reduced working day. In CBA, says lay off shall be by seniority.

Arbitrator says it is a layoff. SCC reverses this - looked at terms of the collective agreement and found not layoff. SCC says that the reduction in the hours of work doesnt constitute a lay-off and therefore that provision doesnt kick in. It is for management to decide how they will meet the shortage. They can either choose to let some people go and follow Article 10 or shorten hours across the board and this wouldnt constitute a lay off. The SCC is preserving the management rights to schedule. Note: If union wants protection in shortening everyones work week, after Air Care, onus is on union to negotiate rights in CBA. Other Scenarios: Unequal Reductions: Battlefords v RWDSU Some employees hours reduced more than other - did not follow seniority clause. Significant reduction of hours and people singled out. Arbitrator decides the reduction was equivalent to a constructive lay-off. SCC accepts the arbitrators decision. Rights of seniority should not be undermined. Fundamental principle that courts should be quick to defend. Canada Safeway Constructive lay-off if reduction in actual hours/quantum of hours - not if disruption in distribution of those hours. Employee received reduced regular scheduled working hours, but able to pick up call-in hours resulting in same number of total working hours. Employees bumped out of those regular hours in unequal ways. Huge quality of life issue. Instead of knowing when you are going to work, you could be called in to work any shift. Arbitrator finds for the employee: even though no loss in hours, change or disruption in normal working hours and interrupts seniority rights and entitled to a remedy. The SCC repeats willingness to accept that in some cases principle of constructive layoff is valid. The court says cannot argue constructive layoff because no reduction in total number of working hours; say as well that disruption can amount to layoff but has to involve cessation of work and that other kinds of disruption such as this one is not enough to constitute a layoff even though it is a disruption. Therefore the issue seems to be quantity of hours and not quality. This narrows the scope of what a constructive lay-off amounts to. Other schedule alterations are unlikely to be construed as constructive lay-offs.

Duty to Provide Work: ESA By implication recognizes right of employer to temporarily lay-off without pay but protects employees against abuse of temporary lay-off provision to avoid notice and severance pay obligations. Draws a sharp distinction between a temporary lay-off and a permanent lay-off when determining whether or not to pay termination and severance pay.

see part 15 of act what constitutes termination, one of the definitions is anything longer than a temporary lay-off (s.56.2 defines temporary lay-offs, most basic of which is 13 weeks in any 20 consecutive weeks) also, some protection against avoidance of obligations through reduction in work week if taken to far then a short week of work will be taken to be a layoff if you are making less than of regular week

Employee Obligations To what extent have the duties of the employee changed since the master and servant days: o Duty to obey o Duty to exercise skill and care o Duty to provide fidelity and good faith 1. Note: The first two duties exist during the time of employment and not after the contract is over, however, the last duty could plausibly extend beyond the length of the employment contract Duty to Obey: Common Law Laws v. London Chronicle There is a meeting and there is bad blood one manager gets into a dispute with the general manager. The supervisor stands up and orders his subordinates to come with him and leave and the boss, the general manager tells them to stay. The employees follow their supervisor. The employee comes back the next day and gets fired. If the employee does not obey, there is the ability to terminate the contract immediately no requirement of notice as this constitutes a breach of the contract by the employee. This duty is derived from the old days of master/ servant relationship where it was a status relation and not a contract hierarchical relation between 2 parties servant under duty to obey master. The plaintiff was unlawfully dismissed because the one act of disobedience which had committed was not sufficiently grave to justify her dismissal. In order to justify dismissal the employee must be repudiating the contract by disregarding/breaching an essential condition of the contract. However, the disobedience in this case was one time and not severe enough to justify the summary dismissal. What constitutes a disobedience it has to be willful defiance. So in conflicting orders you cannot say it is disobedience if you fail to obey two orders at the same time and therefore it was not disobedience in the present case. What limits exist on the obligation of the employee to obey orders of the employer and what limitations does law place on the employer? The employer cannot order the employee to do something that is unlawful and if they do the employee does not have to obey Health and safety limitation recognized in common law and now embedded in statute Common law the employee could refuse to be placed in a position of being unsafe or killed Now, statutory right, OHSA : the employee can refuse to put themselves or others at risk

Collective Bargaining: Ford Motor Case (American case) The employer gives an order inconsistent with the collective agreement. Is there a duty to obey? Why is it the employers interpretation of the collective agreement that is followed? In this case the work must continue on. This case firmly establishes the rule that: you must work now and grieve later. The employee has two options for a (seemingly) unreasonable order: AA Obey now, grieve later. Preferred because there is no downside for the employee, I just do something I didnt think I had to do. AA You get an employee who doesnt want to be bossed around refuses. The employee bears the burden of any punishment until grievance arbitration. At the grievance arbitration, the employer must establish that the disobedience was willful (grounds for the discipline was reasonable). Then, must establish that the discipline itself was reasonable. Kimberly Clark of Canada (1973) L.A.C. The employer had several plants and one of them was on strike. In order to make up for lost production, it wanted to increase its production at another one of its plants that wasnt on strike. The people understood that the overtime they were asked to do was undermining the bargaining unit on strike and therefore they refused the order which resulted in the suspending of some of the employees. In the absence of anything to the contrary (in collective agreement), the employer can work you as they see fit. Employer has right to lengthen or shorten work day. You must bargain otherwise (this is different from the CL). However, it was an unlawful order. Was this order to work overtime a lawful order in accord with the Employment Standards Act? Here, it wasnt. Needed to get a permit from the MoL to enforce overtime, the employer did not have such a permit and as a result extra hours were illegal, therefore it was an unlawful order. The employer extended the hours in excess of the ESA. If an order is unlawful, it is an exception to the rule and employees therefore do not have to obey now and grieve later. When can employees refuse to obey and not suffer discipline (union employee) 1) Unlawful Order: See Kimberly Clark Case: Where the order was in contradiction to a statutory duty imposed on the worker. 2) Occupational Health and Safety Concern: If the employee has a reasonable belief that he would put himself or others in a dangerous situation, they have the right to refuse work. 3) Union Officials: Employers giving orders to trade union officials to carry out their duties that would pose harm to the employees or where it would seriously interfere with their duty to carry on their duties as officials. 4) Personal Appearance: If the employers orders seem to unduly interfere with a personal right with respect to personal appearance or personal privacy, arbitrators have often said that workers can refuse those orders. 5) Personal Privacy: I.e. discharge of employee for refusing to subject themselves to a search that has been held to be unjustified. 6) Reasonable Personal Excuses: For example, religious beliefs

Difference Relating to Enforcing the Obedience: 1. Individual Contract of Employment - fire employee for disobedience and only redress is action for wrongful dismissal or ESA claim that not entitled to be charged without notice 2. Collective Bargaining Agreements - cannot go to court, employer has broader range of remedies: discipline short of discharge - suspension without pay, letters on their file, firing them - progressive discipline; if want to challenge the discharge, go before grievance arbitrator has more options than judge has in similar situation, such as moderating the discipline or if discharged order that reinstated with/without pay, depending on breach of the duties Duty to Exercise Skill and Care At Common Law: Previously (Harmer v Cornelius, 1885): employee failure to exercise adequate skill and care meant dismiss without notice; on basis that by accepting employment meant had skill needed. Now, reasonable refusal or lack of adequate skill by employee who is trying best does not amount to breach. Can only dismiss without notice for breach of duty of skill and care where willful incompetence/gross incompetence such that it seems one is doing it on purpose. Statute: ESA reflects this attitude: s57(10)(c ) employer relieved of providing termination notice when there is this kind of willful misconduct. Unless willful misconduct, employees entitled to ESA notice. O.Reg. 288/01, s.2(1) Exclusion of those who were willfully negligent or who committed willful misconduct are exempt from notice/termination provisions

Collective Bargaining: CB: can terminate without notice if there is just cause. Incompetence may be just cause. Job security an advantage to union because arbitrator can order reinstatement if person was terminated without just cause (whereas ESA can terminate with notice even where was no just cause) Employer must establish just cause for termination without notice and the reasonableness of the discipline (how reasonable is it for the employer to have that requirement?) Re: Aro Canada (1975) (Number 1) Female employee in a warehouse, which was unusual in 1975. Periodically, the job required lifting of an 85 pound box and carrying it down a ladder. Employee has to do this periodically and asks for help each time. The employer says he isnt prepared to have someone assist you with that part of the work and since you cant do it without assistance and therefore you are fired. The union grieved this and therefore it went to arbitration. Held that cant fire her for lack of competence - was not a ground for discharge. In collective bargaining situations, there is seniority which gives you a variety of rights within the workforce. One right is the right to bump into other jobs. If you are no longer able to perform your job, if you have seniority, you can try to bump into another job in the bargaining unit performed by someone with less seniority.

Could they remove her from this job and force her to exercise her bumping rights to perform another job by a less senior employer? It is clear that there is a duty to exercise skill and care and an employee can be removed for failing to adequately perform that job. How do they determine if the employer had the right to remove the individual from that job? Must look at the job qualifications the employer, to defend their action, must establish first what the job qualifications are. There must be some notion that they are reasonable and not unduly high. Management has the right to alter job qualifications unilaterally during the life of a collective agreement but employer must be reasonable in forming job qualifications - i.e. unreasonable to expect her to carry the boxes. Evaluating the performance of the employee individual in question. Who conducts the evaluation? It is part of management rights unless expressed otherwise. Management is not entitled to expect perfection it is a reasonable ability or the ability of a reasonably able, skillful and efficient employee of the same classification) The problem here is that they didnt establish that her standard of performance fell below the standard that was required for getting the job done as her asking someone else to assist was an interruption the operation of business). Therefore, the employee is reinstated in her old job in the warehouse. Re Aro Canada (1988)(Number 2) Same worker swears at supervisor and is suspended without pay for 3 days. Board finds that swearing never permissible; however, reduced her 3 day termination without pay to one day since language was common around the warehouse and regarding her prior good work history. Duty of Good Faith and Fidelity At Common Law this duty doesnt have to be expressly provided for in contracts for employment, it is implied in common law that the employee will serve their employer honestly and faithfully and not against employers economic interests. There is no reciprocal duty on the employer to do the same. Operates after hours and beyond the contract term Dishonesty: almost always a ground for dismissal so if an employee cheats/robs their employer (etc.) this is clearly a situation where termination is justified. Hivac Limited v. Park Royal Scientific Instruments Ltd. (1946) The employer produces a specialized product (midget valves for hearing aids) and has a virtual monopoly. A rival firm sets up and one of the engineers goes to work for the competitor and gives them information about the Plaintiffs processes and gets a number of the skilled employees to moonlight for the competitor. The plaintiff learns about this and seeks an injunction from the competitor from hiring their employees. With respect to production employees, there are no restrictive covenants when they are hired. They were working on their own time, etc. There is no evidence that they were disclosing confidential information to a competitor or using the information obtained to benefit them although they have special skills and make these valves for Hivac.

The court doesnt want to say that your skill is the equipment of the employer and that they own it and therefore essentially own you. They therefore say that your skill is portable, it is your equipment and you can move with it. You are not allowed to engage in activities that are harmful to your employers business and business interest and this includes working for your competitor. Note: The employer is not under a reciprocal duty of good faith and fidelity not to use its capital not to engage in activities that would be detrimental to the employees. Wessex Dairies, 1935 KB Employee solicits his employers customers on milk delivery the employer found out. This was clearly a breach of the employers good faith and fidelity, if for no other reason than he was working for his own interests on employers time. Merk v. International Association... Local 771 [2005] 3 SCR 425 Common law duty may also cover whistle blowing. Arbitrators held that one should go up the ladder within company (although in this case allowed employee to approach other lawful authority. SCC held that employee should follow internal complaint mechanism first. Polyresins Ltd. V. Stein Hall Ltd. (1971) Employees jump to a new company and bring with them knowledge of confidential processes. The new company becomes more competitive. The plaintiff company asks for an injunction. The court asks that the plaintiffs make submissions regarding damages. Fiduciary Duty RBC Dominion v. Merrill Lynch This case looks at senior management there is a fiduciary duty but only in those cases of very special workers. In this case, no duty and worker was a branch manager. Client information can take lists of clients (contacts and names), but specific information such as records etc. cant be taken. Restrictive Covenants: Restraints of trade are invalid unless they are reasonable from the point of view of both contracting parties and the public. They must have the characteristics of: Protecting a legitimate proprietary interest of the employer Being reasonable in terms of a) temporal length b) spatial area covered c) nature of activities prohibited d) overall fairness The terms of restraint being clear, certain and not vague Being reasonable in terms of public interest. Note: To be upheld, the restraining clause must be concerned with a protectable interest. Whether or not the information sought to be protected is of the protectable kind also depends on the circumstances. One example provided, its an older case. SCC 1935. McGuire v. Norfalin Drug. Involves a druggist hired in Flin Flon in 1928. After hired, employer requires that he execute a restrictive covenant that he will not work for any other druggist for 5 years after end of employment within a 25 mile radius. Found to be unreasonable.

Duty of Good Faith and Fidelity: Collective Bargaining Nippissing Hotel Ltd. v. H.R.E.B.I.U. (1963 - Ont. H.C.) A hotel and the union (recently certified) were negotiating a 1st collective agreement. They were at an impasse. Instead of being on a lawful strike, the union organized the employees to picket the employers after work. The SCC allows peaceful picketing. The employees are still getting paid then, but still putting big financial pressure on the employer. The employer could have said that this was a breach of s. 17 of the OLRA (duty to bargain in good faith) and then filed an ULP complaint at which time (1963) the only remedy would have been to prosecute the breacher in civil court. This is time consuming. The employer argued here that the employees were in breach of the duty of good faith and fidelity by picketing and ruining their good name (not during a strike). Here, the judge finds a breach of the duty of good faith and an injunction for breach of contract. Johnstone is liable for inducing the breach. They can bargain, but during the bargaining, they cannot engage in activities that the court considers to be potentially injurious to the employers interests. Off-hours picketing will probably be allowed now, as it has become a common tactic, but Tucker is unaware of any specific cases which would show this Working on the Employers Time: Re United Brewers Workers, Local 304 and Pepsi Cola (1967) Good faith is so intrinsic that it doesnt even need to be spelled out in the collective agreement. It is just part of it. The duty of good faith is there to protect the employers commercial interests. In this case, the employee is working for themselves on the employers time directly against the employers commercial interest and profit. This is not allowed. Labour Relations Information: DeHavilland Aircraft of Canada (1972) An employee comes across a sealed envelope with labour relations info inside. The employee published the information of management deliberations in union newspaper and receives a 2 day punishment. The union grieves. There is no written rule to say that documents could not be removed from company premises and used for fair comment on possible violations of the collective agreement. Court writes: I am satisfied that such a restrictionis intrinsic in the duty of fidelity between an employee and an employer.particularly in an industry such as this. This does not need to be expressly stated or posted. Reasoning cites Pepsi Cola.

Termination of the Employment Contract

Faultless Termination Without Notice Completion of the Contract: An employee who is not renewed at the conclusion of a fixed term is not dismissed or terminated; rather her employment simply ceases in accordance with the terms of the contract

Fixed Term Contracts: Ceccol v. Ontario Gymnastic Federation (2001: Worker had been employed by the federation for over 15 years on a series of one-year contracts when she was advised that her contract was not being renewed. Was she entitled to notice for termination of a contract of indefinite duration? It is held that the contract was not for a fixed term but rather should span the whole term of employment. Employers should not be able to evade the traditional protection of the ESA and the common law by resorting the label of fixed term contract when the underlying reality of the employment relationship is something quite different, namely continuous service by the employee for many years coupled with verbal representations and conduct on the part of the employer that clearly signal an indefinite term relationship. Frustration: Frustration: the occurrence of an unforeseen event which renders the contract incapable or impossible of performance - s.57(10)(d) of ESA - thus exempted from notice under both common law and the ESA. Temporary illness is generally not regarded as sufficient enough to amount to frustration whereas a more serious illness which would prevent the employee from performing the contract may amount to frustration at a certain point. Death: As the contract of employment is a personal one, the death of either party terminates the contract. Death does not extinguish the parties rights which had vested to that point such as, say, the right to wages. Bankruptcy: Common law has often treated this as a frustrating event you can dismiss employees without notice. Employees are not secured creditors, banks are. What about the ESA? This issue was resolved in court in 1995 in: Rizzo Shoes (1995) The SCC held that there was entitlement to termination pay on bankruptcy. The ESA s. 57(2.1) & 58(1.1) states specifically that employer shall be deemed to have terminated employee if employee terminated by law operating in regards to bankruptcy no mention of similar provisions in ESA 2000. Presumably decision of SCC in Rizzo is law. In the event of bankruptcy employee entitled to notice pay under ESA. In reality, there is nothing for employees to collect unless they go after directors. Termination by Notice: At Common Law: An employment contract can be terminated by either parties provided that reasonable notice is given. Reasonable Notice: Lazurus 1961 Ont CA: reasonableness based on intent of parties, based on what would have agreed upon if the parties had discussed this situation prior to the breach; what would have been decided.

Bardal v Globe & Mail (Ont C of A) 1960 A Factor test in calculating appropriate notice (more contextual) : Reasonableness of notice must be decided with reference to each: character of the employment; length of service of the servant, age of the servant and availability of similar employment; having regard to experience, training and qualifications of employee. Assumption: senior level employees have more difficulty finding alternative employment, so those who have higher job status got longer notice periods than a junior or semi-skilled employee. Cronk v. Canadian General Insurance Company 1994 CA A full-time clerk for almost 35 years, called the logic that senior employees get a longer notice period into question. She was a very junior employee. She was 55 and living in a region where there was an economic recession. Is status an independent factor, or should it be subsumed under reasonable alternative employment? 12 months notice was given by the CA (reduced from 20 months given at trial/company offered 9). Status is an independent factor. The 20 month award has the potential for disrupting the practices of the commercial and industrial world, wherein employers have to predict with reasonable certainty the cost of downsizing or increasing their operations, particularly in difficult economic times. As well, we need certainty (Lacourciere JA) The issue of lower status employees was commented upon by the Ontario Court of Appeal in Minnot Minnot: Worker was 43 when first hired. Had little formal education and limited skills. Let go after 11 years with no grounds for cause. Held that 13 months was appropriate. Even though 13 months was a lot given his low status, the other Bardal factors (age when fired, lack of formal education and skills and the availability of jobs in his industry when he was dismissed) were all taken into consideration to determine that it was reasonable. No upper limit for lower status employees. Status of the employment is an appropriate factor that will be taken into account, however all Bardal factors have to be looked at. This was decided just before Cronk was appealed. Dealing with the CA decision in Cronk it was clear in the judgment that they were not happy with the Cronk decision. The judge in Cronk discussed the idea of predictability and certainty. Here, the court said that this was an admirable goal - however, these are best achieved by careful weighing and blending of the Bardal factors - not going to let the idea of consistency override the flexibility that the common law approach provides the courts with. Furthermore, they address the idea of the ceiling on notice periods for each class of employees. We should not regard the limit set by the CA in Cronk as a universal standard for all lower class status employees - limited to the particular facts of that case at a maximum. Court focuses on the prospects of re-employability - given all the circumstances, this 13 months, while it might be high, is within the range of reasonable notice. Appeal courts should only interfere when it outside the reasonable range or faulty in law application.

Aside: Economic Conditions Economic Downturns: There must be a balance between the employee having trouble getting new employment in a depressed economy as affecting amount of damages, and the employers right to reduce its work force at a reasonable cost in the same economy. When there is high unemployment it is harder to find other jobs. Jurisprudence: Weight to give to economic climate? Minot relied on difficult economic climate as a reason to justify lengthy notice period. Ballpark Justice No Longer Applied: if the employer made an offer not accepted by the employee but subsequently found by the court to be reasonable (even if not the most reasonable amount of notice) the court would not increase the offer made by the employer and would penalize the employee for not accepting that offer in costs (based on unnecessary litigation, etc.). Effect of this approach: gave an incentive to employers to make a low-ball offer (at lowest end of what is deemed to within the realm of reason) and put the employee in the position of either taking the lower amount or trying to convince the court that it was unreasonable. But, in most jurisdictions, the courts have shied away from taking this approach saying unreasonable. Near Cause: Another argument by employers to reduce notice. Even if there wasnt just cause, should take into account the injustice of the employee in calculating notice period. This has been rejected, but courts have left it open as a possibility in certain circumstances. Other Limits to General Rule Requiring Notice: Parties may specify the notice period but they cannot contract for less than statutory notice period. There is no duty to have regard to other partys interests. (Cornell Engineering) In the absence of agreement will not attempt to read in parties intent. If period has not been agreed to then, courts use Bardal factors for calculating appropriate notice. Scapillati role for custom, construction workers were laid off routinely without any notice, court agrees, no notice required as per custom Employer Conduct in the Dismissal Process Aggravated and Punitive Damages: Traditionally, courts held that employees could not claim additional compensation because the employer had behaved badly in dismissing the employee - i.e. embarrassing, no opportunity to address concerns, etc. Recent case law seems to be changing this. Aggravated and punitive damages as additional basis for giving more compensation for wrongful dismissal. Courts resistant in expanding heads of damages. Vorvis v. Insurance Corporation of BC. (SCC) Damages must be for a separate actionable legal wrong. In very limited circumstances, wrongfully dismissed employees could claim:

Aggravated damages: for intangible injuries like mental distress or humiliation, but only available where the acts of the employer were independently actionable (tortuous in their own right); and Punitive damages: available for vindictive and reprehensible conduct but this must also be independently actionable Note: this is a mixed decision - says these are available, but the conditions under which available are severely restricted - hard to claim Wallace v. United Grain Growers (1997) This case involved a top sales person for many years who was terminated without notice and without explanation as to why he was being terminated. He sued for wrongful dismissal. The employer said there was cause for the dismissal but subsequently withdrew this defense. The employee suffered distress and was in psychiatric care. SCC: Need separate actionable legal wrong to receive punitive damages [Vorvis is still good law]. However, bad faith conduct on the part of the employer in dismissing the employee doesnt have to be dealt with thru aggravated or punitive damages, but rather is a factor in calculating the notice period. An employer who acts in bad faith must give a longer notice period than if they had conducted the dismissal in a more honest and humane way. It doesnt matter whether or not the conduct causes tangible or intangible damage. They have set-up a duty of good faith upon the employer and this will be taken into account by the court in calculating the period of notice. The end result is that they have constructed a duty of good faith in the dismissal of employees and if this is breached, the court can consider these incidents in determining the proper period of notice. Duty to Mitigate: As in all contract cases, employee has a duty to mitigate. The Onus is on employer to show that employee has breached that duty. Mifsud: It is not necessarily a failure to mitigate if one is offered altered terms and refuses them. The courts have not applied a uniform approach. In some circumstances the failure to take that position may be a breach of duty to mitigate. This will depend on the particular circumstances what is the salary differential, working conditions, are personal relationships acrimonious or is alternative employment with firm realistic? The same can happen in the case of transfers? Does the employee have to take the transfer or risk a breach of duty to mitigate. Statutory Notice: 3 kinds of notice: Individual termination; Mass termination; Severance Pay. Individual Termination: S.57 ESA Entitled to notice period of 1 to 8 weeks, based on length of employment O.Reg.288/01 s.2 Exemptions who aren't due notice or termination pay

Mass Termination: S.58 If terminating 50 or more employees in 4 weeks notice increases with the number of people terminated. Duty to provide information to Ministry of Labour Regulations narrow now requires employer to give notice of number of employees, name of trade union representing, economic circumstances surrounding termination. Severance Pay: Severance Pay (s. 63-66) - Employer can never require you to work through this ; in addition to mass termination notice; s63 definition; s64 entitlements - entitled to severance pay if (1) work 5 yrs for employer, AND (2) either let 50 people go on permanent basis or if employer has $2.5M payroll. In such a scenario can get another week per year up to 26 weeks. ESA Limits Section 64 of the ESA - claimant must elect to pursue claim under ESA or common law (Cant elect to go to court AND minimum standards of the ESA) have within 2 weeks of filing the ESA complaint to change to court option An employee is not entitled to commence civil action for wrongful dismissal if he files an ESA complaint alleging entitlement to termination or severance pay relating to the same termination of the employment (can no longer use ESA as way of surviving until the court date). There is also a $10K cap for awards under ESA s65(1.3). Under the ESA there is 6-month limitation period to bring a claim (ESA s82.3) unless actions are continuing in which cause one year from last action. If under collective bargaining, must go to grievance arbitration, no choice of civil suit Termination by Action of the Employee Employees Obligation to Give Notice: Employees who wish to terminate their contracts of employment also must do so by providing reasonable notice. Where reasonable notice has not been provided, the employer may sue for damages it suffers as a result of this failure.

Voluntary Quit and Constructive Dismissal: Employee who has voluntarily quit is not entitled to notice. In law, quitting requires both subjective intent and objective behaviour. Dowling Red & White There is a dispute at work and in the heat of the moment, the employee walks out. What happens if they show up the next day and the employer says, What are you doing here, You quit? Does this constitute resignation? The general approach is that: There must be 2 elements to protect employees from forfeiting rights during a heat of the moment argument: subjective expression of intent objective behaviour confirming that that was the real intent of the employee

In this case, the employee did not come back to work - rather tried to claim for lack of notice under ESA. This failure to return to work met the objective part of test - considered it to be a resignation Sharpes Corner Drug Store Employee walks off and doesnt show up afterwards. Went to doctors and got a medical note for stress leave but never gave it to the employer. Employer sends out a letter stating that we understand that youve resigned and weve got someone to take your place. Employer could have sent a registered letter saying that unless you return by a specified time, then we will understand that you have resigned. There is a certain protective impulse to keep workers in workplace Constructive Dismissal or Quitting for Cause: Where one party to a contract demonstrates an intention to no longer be barred by it, that party commits a fundamental breach that results in its termination (Faber v. Royal Trust) I: What constitutes a fundamental breach? Farber v. Royal Trust (1997) SCC A real estate agent working for Royal Trust who was restructuring was offered a new position as a manager of a single office in one of their branches. There are some provisions made to provide some protection of the reduction of salary but would diminish over time. The employee therefore claimed constructive dismissal regional manager to branch manager. SCC: They said that this was right in this case. The terms and conditions were great enough to treat this as a constructive dismissal. (change in conditions was significantly great to constitute constructive dismissal). Note: The onus is on party alleging constructive dismissal to establish it on a balance of probabilities. The onus is on the employer to show a duty to mitigate. As long as the new job isnt acrimonious and/or demeaning. What constitutes such a fundamental breach? Demotion in occupational rank; Change in compensation (at the time of the offer) etc. Must also look to customs of the industry. Relocation is a tougher argument. Was relocation reasonable? distance, relocation charges etc. Look for express provisions or implied terms that you are obliged to except a contract. What happens if the employer offers a lower paying, lower status job and the employee accepts the offer and then decides a week or two later that they dont accept it? Look at terms could it be argued that employee was just testing things out? It would seem to be punitive to punish an employee who tries accommodations but is unable to do it. One would think that this would be allowable. Termination for Cause Procedural and Remedial Matters: Onus is on employer to show that he had just cause to terminate without notice (on a balance of probabilities). s.57(10)(c)ESA: willful misconduct or disobedience or willful neglect of duty Entitled to introduce evidence of matters unknown or not thought of at time of dismissal

Obligation of good faith and fair dealing in termination (Wallace) Courts have not specified this right to be heard but argument could be made in a specified case. Courts can give pay in lieu of notice

Performance Reviews: Marlot and Ashbrands (BC SC) Have to conduct a fair, bona fide performance review if going to rely on for part of basis for cause. 1. Common Law Substantive Issues: Probationary Employees : There must be an express provision that probation applies. New employees can have assessment of job performance and be let go during or at end of that period. Probationary employees are protected in some ways. Standard employer has to meet is lower with respect to reason for termination Some recognition of just cause protection but standard is quite low. Very short-term employees are rarely given lengthy notice period. They are entitled to one day notice unless the employer can establish that the employee has failed to meet the minimum standards of employment (reasonable set of expectations) that they have failed their probation.

Note: If under ESA then there is no entitlement to severance pay if you have been employed for less than 3 month. Misconduct: How serious does the misconduct have to be to terminate without notice? McKinley v. BC Tel. (2002 SCC) McKinley was employed as an accountant by BC Tel for seventeen years. In 1993, he experienced high blood pressure and took a leave of absence on Doctor's advice. Indicated he wished to return to work but at a less stressful job. BC Tel indicated willingness to accommodate him but then fired him. McKinley rejected severance offer and sued for wrongful dismissal. BC Tel claimed they had just cause for summary dismissal, alleging McKinley was dishonest about his medical condition and treatments available. Whether this justified summary dismissal? Contextual and Proportional Approach must be used in assessing misconduct. The test is whether the employees dishonesty gave rise to a breakdown in the employment relationship. Test can be expressed in different ways. Just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employees obligations to his/her employer. The Principle of Proportionality An effective balance must be struck between the severity of an employees misconduct and the sanction imposed. Look at what happened in broader picture context of entire employment relationship (length of service; history; past performance) Note: Can an employer impose a disciplinary suspension? Shelbar, McKinley

Look for an express or applied agreement? What are the default rules in the absence of an agreement? Should the court imply as a matter of law that there is a right to impose disciplinary sanctions (see Shelbar) In Shelbar, the C of A was reluctant to impose disciplinary sanctions court is unsure as to giving employers too much discretion. What would the options be for an employee being disciplined in a common law context? They would have difficulty challenging the discipline. There are signals coming from the SCC that there may be a willingness to apply the right to discipline See McKinley, para 52, where Iaccobucci seems to assume that there is a right to discipline this is in obiter though

Sexual Harassment: Bannister v. GM Canada Ltd. Issue of summary dismissal for sexual harassment summary dismissal justified here. But, Xerox Canada Ltd v. Ontario where an adjudicator held that the sexual harassment in question did not constitute willful misconduct for the purposes of depriving the employee of his statutory entitlement to notice. Off-Duty Conduct: Can be grounds for dismissal. Criminal conduct does not necessarily constitute grounds for dismissal. Plinussen v. UWO Plinussen had contracted to lecture part-time and pleaded guilty to charges of fraud on insurance claims for stolen watch. Court found that potential damage to Universitys reputation justified the dismissal. Heyman v. Frito Lay Heyman worked for a long time for Frito Lay. He was sentenced to 4 months in jail and was unable to show up for work and was dismissed by his employer on grounds of the employers position that they had just cause based on misconduct (this is an individual employment case). Court of Appeal: It was not just cause for termination. They could hire a substitute driver for the period of imprisonment without any inconvenience. Therefore, there was no misconduct on the part of the employee justifying summary dismissal. The court also took into account the long year of employment and his employment record was spotless. The dismissal was not warranted. The burden falls on the employer that the off-duty conduct will have some sort of impact upon the employers business and that such an impact would be sufficiently serious. Collective Bargaining Context: Because of principle of no discharge or discipline without just cause, just cause has a broader meaning in collective bargaining and grievance arbitration than it has in common law. It includes: Disciplinary terminations (no notice required) Non-disciplinary terminations eg: frustration, workforce reductions etc. Notice may be required per collective agreement)

Under collective bargaining, an employer can only terminate an employee with just cause. Otherwise, an employee can be reinstated. An advantage of collective bargaining regime, more job security. Unionized employees do not have access to common law remedies. Instead, must deal with grievance arbitration. The union is in a sense the grievor since it files on behalf of the employee. In respect of termination cases, burden on employer to show on a balance of probabilities that there was just cause for the termination. Just Cause in Grievance Arbitration When people compare collective bargaining and individual contract of employment, they look to the grievance arbitration that provides employees with a stronger set of entitlement than that available at common law. George W. Adams, Grievance Arbitration of Discharge Cases page 610 Adams compares collective bargaining and the individual contract of employment (master and servant relationship) where he characterized the regime of master and servant as a single minded pursuit of the employers interests and it has utterly failed to take into account the interests of employees in its determinations. However, even from what we have seen in older law, we have seen that common law courts have taken into account interests of employees i.e. with respect to sickness (continuing duty to pay, duty to provide work, etc.). However, there has been some cross fertilization common law has picked up some of the themes of grievance arbitrators Comparative Analysis: In collective bargaining, the union has carriage of the grievance whether or not the grievance may go forward. The union must establish that the griever was employed and either terminated or disciplined and then the onus shifts to the employer to establish just cause (parallel to the common law where the employer must show just cause). Where as in the common law employers are allowed to raise matters that came to their attention after the discharge occurred, in grievance arbitration, only factors which they were aware of prior to the discipline may be raised. Procedural and Remedial Issues: Used to be no ability of employer to rely on matters unknown at time of action now exceptions to that principle. In general, management under a duty to exercise its rights fairly and reasonably negotiated grievance procedures apply. Negotiated process for handling disciplinary measures which gives employees right to be heard. Employers have right to impose disciplinary measures short of termination including suspensions Arbitrators have right to issue reinstatement or moderate the discipline Probationary Employees: This only exists as expressly provided for in the contract. Once you have a classification as a probationary employee, the parties may expressly define what the incidents of probation are. It

may say for example, that the employee is not protected during the probationary period from discharge or discipline for just cause. This is permissible now whereas previously it wasnt. You cannot however deprive probationary employees access/right to the grievance proceeding. This is because there is a section of the OLRA, section 48(1) and (2) that says all collective agreements must have a provision that provides for the resolution of disputes through grievance arbitration. You cannot have a provision in the agreement therefore saying that a matter may not go to arbitration. You cannot strip them from access.

Misconduct - Examples of Cause: Insubordination: Gardiner v. Denver This case involves a situation where an employee is ordered by the supervisor to load a compressor where it was clear to the employee that the compressor should not be loaded onto the truck and becomes verbally abusive to the employer. He was therefore discharged. Work now/grieve later is limited by the fact that the order must be reasonable. Therefore one cannot discipline for this, but he could be disciplined for insolence, but the arbitrator moderates to a 5 day suspension. In order to discipline, it must be reasonable. Note: Between this and the common law, we can see in a rough way the notion that not every kind or act of misconduct will justify discharge - similar to the fact that not every act will justify summary dismissal in Common Law. The arbitrator and common law courts will look to factors to determine whether there was cause, the difference really lies in the Remedial Powers: Arbitrators can adjust the harshness of the punishment - thus allows for greater flexibility so that the punishment fits the act (allowance for near cause idea); important feature of arbitration, unlike judges, have a larger range of remedies. Can impose alternative remedies. Judges on the other hand, if they dont find just cause, only have the power to award damages. That is, can only find right to notice and award with equivalent damages. Fraser Valley Library and CUPE Employee broke into her bosses e-mail. Was caught and was dismissed. Is employment relationship capable of being restored? Discharge upheld as the arbitrators find that relationship has disintegrated. Arbitrators should pose 3 distinct questions in the typical discharge grievance: 1) Has the employee given just and reasonable cause for some form of discipline by the employer; 2) If so, was the employers decision to dismiss the employee an excessive response in all of the circumstances of the case; 3) If the arbitrator does consider the discharge excessive, what alternative measures should be substituted as just and equitable? If they can show that they have not been fairly evaluated then that is something which can challenged. Sexual Harassment: Context of these cases are a bit different. This is probably because of the nature of the complaint most unions are quite clear on sexual harassment policies, but in the case of termination cases unions still have a duty to represent and defend.

CUPE and Office and Professional Employees International Union (1982) Activity of supervisor directed to employee. After employee complained that the difficult working conditions were retaliation for not conforming which supervisors requests to engage in sexual behaviour. Employee who was discharged grieves (even though she was the harassed not the harasser) This is an unusual case an employee discharged by employer is now complaining of being treated badly (sexually harassed). Harassed employee, not the harasser, is grieving wrongful termination. It is held that this was not sexual harassment but difficult working conditions that caused tension between supervisor and employee. Find that there might have been harassment, but not sexual, or that it was just reflective of the sexual structure of our society - thus grievor failed to satisfy that they have been victimized by these actions Re City of Nanticoke This case involves harassment at an ice arena. The harasser was ultimately terminated and the union grieves. The arbitrator reinstates the employee/harasser on the grounds that there was more than one employee involved in the harassment (apparently common behaviour and this employee was singled out) and only one was disciplined and therefore unfair treatment of similar employees. The employer seemed to have condoned the behaviour (didnt do anything to deter it) and there was a lack of discipline. There was also a lack of progressive discipline whereby unless the behaviour in the first instance is extremely harmful, in most cases, there are a series of steps which should be taken prior to termination. Note: This an odd case. The failure of management to adequately protect the victim in the past allows the employee to be reinstated after discharge which in turn further fails to protect the employee due to managements lack of action. Community Living South Muskoka Male employee was accused of inappropriately touching a number of different women. There is no question of sexual harassment and he is terminated. The question becomes as to whether the response of the employer was justified. The employee had not been informed that he was harassing individuals and when he was informed he stopped, the employer didnt have a policy against harassment. In this case they hold that the worker did not deserve to be terminated given lack of warning and policy, but the board also concludes that it is impossible to reinstate the worker given the impact of his actions (see para 32). The board assesses a 6 months suspension and then provide him with damages in the amount of a years wages. Off-duty conduct: Must be some connection between conduct and inability to do job harmed reputation of company, other employees unwilling to work with individual, rendered unable to perform etc. B.C. Telephone Co Employee convicted of dealing in small quantities of drugs and drunken driving. It is held that the arbitration board recapitulated the criteria used in earlier cases to decide whether discharge for conduct outside the workplace is justified. These are: 1) The conduct of the grievor harms the companys reputation or conduct.

2) The greivors behaviour renders him unable to perform his duties satisfactorily. 3) The greivors behaviour leads to refusal, reluctance or inability of the other employees to work with him. 4) The greivor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the co. and its employees. 5) The greivors conduct places difficulty in the way of the company properly carrying out its function of efficiently directing its working forces. The Board noted that it is not necessary to prove all these factors in order to sustain discharge. In this case, though the Board found some evidence of 2 and 5, It also made reference to a yet earlier arbitration award concerning another employee of the same company, in which were involved a larger quantity of drugs for trafficking, theft of company. property, and a longer sentence. The Board stated that it would be invidious to uphold this discharge when the more serious criminal conduct of the earlier greivor, had resulted in reinstatement. Philips Cable Ltd (1974) Can a suspension be handed out where an employee has been charged, but not convicted, with a criminal offence. How does the charge effect relationship between employee and employer. The employer has duty to investigate the charge and determine whether or not employee is guilty) In CB context, if you are able to suspend the individual you are normally relieved of obligation to pay. Note: differences from Cabiakman, which is an individual case.

Collective Action
Areas of focus: negotiation of collective agreements position of individuals in the system regulation of industrial conflict

Theme: Tension between voluntarism and coercion in industrial pluralism.

Liberal voluntarism: criminal prohibition on combination was repealed so that it was no longer a crime to combine for the purpose of increasing their wages. At the same time though there was closer criminal control on the means of achieving combination. Otherwise though, it left employers and workers to come to whatever arrangements they could come to within a regime of freedom of contract didnt have to deal with anyone that they didnt want to deal with. Industrial pluralism: modifications to liberal voluntarism, as the parameters of industrial conflict increased and needed to action to deal with collective arrangements. Industrial Disputes Investigations Act requires compulsory conciliation. Workers couldnt strike and employers couldnt lock out until certain point. Developments in the common law aimed at industrial conflict development of economic torts. This placed further restrictions on the ability of unions to use certain kinds of tactics and gave employers access the judicial remedy of injunction. Employers could apply to the court through a summary process for an injunction prohibiting behaviour and if workers disobeyed they were liable for a variety of different sanctions. Pure Liberal Voluntarism lasted until WWII and after which we got the regime which we currently have. It is now a right to join a union and employers may not interfere with the rights of employees to join a union of their choosing. In most provinces, the common law regulating picketing and other kinds of strike related activities are what govern those activities. A few provinces deal with these issues by statute but for the most part it is through the common law. Duty to Bargain in Good Faith Recognition of a union would have little meaning if there were no duty to bargain in good faith. There is also the issue of avoiding labour unrest and promoting dispute settlement. It is hard, however, to distinguish between surface bargaining and hard self-interested bargaining. The requirement to bargain in good faith gives meaning to the compulsory recognition of unions [OLRA s. 17] Every reasonable effort must be made to reach an agreement, but there is no obligation to actually reach an agreement The parties are only obligated to engage in a process of negotiation in good faith Collective bargaining is still based on the underlying notion of voluntarism Purpose of duty: Gives effect to recognition of union as exclusive bargaining agent promotes dispute settlement General content of duty: Goal is to provide process of negotiation, but not to require settlement on any particular terms.

The Labour Board And the Duty to Bargain in Good Faith: There is no duty to reach an agreement - just a duty to bargain in good faith. Simply requires the parties to engage in the process - to see if the parties have participated in a process of negotiations in good faith with willingness to enter into CA if the terms are acceptable. We compel negotiation and compel bargaining in good faith, but no compelled decision making - this would interfere with normal business market. United Electrical, Radio and Machine Workers of America v. De Vilbiss (Canada) (1976)

Facts that give rise to suspicion of bad faith bargaining: 1) Union recently certified in face of strenuous employer opposition; 2) Conduct of Employer in negotiating session: Cutting short negotiations to move for conciliation; Walking out of conciliation and failing to attend another session; 3) Unilateral alteration of terms and conditions of employment; 4) Treatment of members of negotiating committee; 5) Failure to provide job class and wage rate information (employer refuses to provide basic info to union which precludes union to formulate a proposal and negotiate over terms and conditions. It is held that all of the dirty tactics led the Board to decide that the employer had no intention to enter into a collective agreement and was not bargaining in good faith. From the evidence, the OLRB concluded that the company had not entered the negotiations in good faith and had no intention of concluding a collective agreement. Court holds: (1) s.14- The duty described in s.14 has at least two principle functions. The duty reinforces the obligation of an employer to recognize the bargaining agent and the duty is intended to foster rational, informed discussion thereby minimizing the potential for industrial conflict. (2) the section imposes an obligation on both unions and employers to enter into serious discussions with the shared intent to enter a collective agreement. Once a trade union is certified the employer must accept that status. It cannot enter into negotiations with a view to ridding itself of the trade union. Common objective the parties must have is to enter into an agreement. However, this is not to say that they are obliged to agree to the content of that agreement. It is still based on the notion Union wanted Board to compel employer to enter into agreement; Board cannot do this because it would be inconsistent with voluntarism; can just order them to go back and bargain; some coercion to make voluntarism work. Note: Boards concerned with a process - exchange of rational discussion. Focus is not on the substance of position that the parties have taken.; if focus on substance, more of a direct regulation on outcomes. The Duty to Disclose: Do employers have to disclose to the union during the period of collective bargaining, any plans they have about workplace modification, etc. Labour Relations Board have had to struggle with this issue. Consolidated Bathurst Case CBA entered, but shortly thereafter the employer decided to shut down. The employer did not discuss the plans that they were considering at the time the CBA reached. The union had not made any inquiries as to plans but makes allegation of bad faith bargaining. Board holds that there is no duty to disclose plans that are not final decisions but the board makes an inference on the ground that the employer shut down shortly after CBA reached that the employer made the decision to shutdown at the time of CBA reached. Rebutable presumption that decisions announced in period after signing of CBA were made earlier and ought to have been disclosed.

Canadian Pacific Forest Products Ltd. Extends Consolidated Bathurst to not only shutting down but also technology that will have impact on employees. There was a technology change and they needed to decide whether to keep the old turbine in operation. It is not appropriate for the board to direct the employer to put the old technology back in to operation (the board will not tell the employer how to run its operations, will not tell the employer not to shut down or to not put in new technology). The Board orders them to go back and negotiate over the impact of the decision to put in new technology. If they failed in these negotiations, the union has no right to strike because there is a collective agreement in place and cannot strike during the period of the Collective Agreement. Westinghouse Canada Limited Collective bargaining takes place, an agreement is settled and then 3 months later it says it is revoking parts of its operations in certain cities. A complaint is filed that the employer failed to expose plans and therefore deprived the union of the opportunity to negotiate with the employer the effect of these plans upon the employees and the workplace. Had they known about it, it would have been on the top of the negotiation list and they would have done something to protect their members. The Board finds a duty to disclose decisions that have already been determined at the time the negotiation took place. The union failed to ask. The union, however, still won on different grounds. Breakthrough case in defining the issue of disclosure. Two employer duties are established: 1. Duty to disclose decisions that have been already made At the time that the negotiations are occurring decision has already been made employer must disclose to union. I.e. if employer had during course of bargaining decided it was closing the plant it would have been under obligation to disclose these plans to the union even if not asked by union 2. Duty to Respond Honestly Employer has to respond honestly when asked about plans under consideration. I.e. if union had asked employer if they were contemplating relocation as part of plan, employer has to answer honestly even it hadnt yet taken a final position on it But there is no obligation on employer on its own initiative to disclose initiatives that are under consideration but about which no firm decision has been made. Dont have to voluntarily disclose matters under consideration and not required to disclose plans that havent crystallized Legislative Responses Mandated Terms S.45-52 foundational elements (eg recognition, no strike/lockout, grievance arbitration S.47: mandatory Rand (1980) Mandatory just cause (NDP 1993, repealed PC 1995) First contract arbitration (1986) This was an attempt to resolve some of the problems seen in establishing a

first contract

Royal Oak Mines v. Canada (Labour Relations Board) [1996] There was an extremely bitter strike at the Royal Oak mines in Northwest Territories. They used replacement workers (hadnt been done in a number of years). Here, there was a bombing someone set a bomb off through the mine and 9 of the replacement workers were killed. One mine worker was convicted for murder. The employer was bent on breaking on the union had no intention to come to an agreement. The union filed a complaint based on failure to bargain in good faith which exists even during a strike. They based this on a number of grounds: They found breach of the duty to bargain in good faith and made the employer put on the table an offer that had been previously rejected by the striking workers and that they agree to an agreement for workers that had been dismissed during picketing. The employer sought judicial review and the case made its way to the SCC. SCC: There are 2 Elements in the Duty to Bargain in Good Faith 1) Subjective both parties need subjective intent to participate in the negotiation process in good faith; and 2) Objective duty to make reasonable efforts to reach a collective agreement look at standards in the industry (assessed objectively). Suggests that the refusal to agree to a term that is a standard in the industry is almost per se bad faith bargaining unreasonable if did not negotiate a term that others in the industry have accepted The court seems to articulate a group of per se rules: to insist upon excluding a clause which other employers in your industry have include is unreasonable to put an offer on the table which you know will be rejected is unreasonable the court backs away a bit and states that it is reasonable for a board to make an inference that there has been a breach of the duty to bargain in good faith where the employer adopts one of the above proposals. Individuals in the Collective Bargaining System The Duty of Fair Representation This arises out of the fact that unions gain power as exclusive bargaining agents, and, as a result of being a party to the agreement they are the party which controls the arbitration process. Therefore, they make decisions in negotiating CAs and in grievances that have an enormous impact upon individuals. Since the union is the majority it is important to provide safeguards and protections for individual workers in order to preserve their rights, dignity and interests are not violated. The OHRC applies to trade unions and would cover discrimination by a union. The LRA

s.15 prohibits certification of unions that discriminate s.54 prohibits CAs from discriminating s.51(2) limits the consequences of expulsion from the membership s.74 imposes a duty of fair representation not act in a manner that is arbitrary or discriminatory.

Negotiation of CAs Great reluctance to find violation, taking into account need of the union to make internal trade-offs in bargaining objectives and desire not to impede unions objectives and desire not to impede unions willingness to compromise to reach deal exemplified in Tremblay [2002] 2 SCR 627 Tremblay [2002] Tremblay involved agreement over bargaining with municipality. Go on strike and strike is settled with a CA that has a retroactive provision. In negotiating the retroactive clause, the union agrees to a condition that says that if someone has left a bargaining unit before settlement will not get access to money. On the question of the duty to fairly represent, the SCC said that in such circumstances the union has an obligation to take the interest of members who had left during negotiations into account. The problem is to say that what the plaintiff wants would impose a positive obligation to achieve a particular bargaining outcome which would achieve this individuals interests, the Court finds that this is inappropriate. More willingness to consider fairness of process for formulating contract objectives. Grievance Handling: Why Boards are hesitant to intervene (Ford Motor Company) Factors Boards should be considering as it attempts to flush out this duty of fair representation: Levels of trade union officials expertise and experience varies (lay people making decisions should be given some leeway). Unions need to be able to reconsider implication for grievance for bargaining unit as a whole. Dont want to make unions risk averse to setting grievances. Dont want to undermine union authority to settle disputes conclusively. Must allow for some finality and unions should be able to make these decisions without fear of individuals getting these decisions overturned. The trade union should still be given a fair degree of leeway since there are many reasons why the may not take grievances all the way to arbitration. Standard of Care Walter Princesdomu It draws some line about things that may have caused unions to fail at their duty to bargain fairly. (Whether union is guilty):

1. Subjective ill will motivation to particular individual or group within union is a ground for breach of fair representation (prohibited to negotiate terms that discriminate between union and non-union members.) 2. In regard to discrimination, if the unions decision making is based on prohibited grounds, it is a violation of the Human Rights Code and the duty of fair representation under s.74. 3. Arbitrary Action: We dont only have to find subjective ill will, there may be other conduct by the union that may be characterized as arbitrary. The mere fact that a union though may have made an error in judgement or may have been negligent in the way they processed the claim, doesnt mean that it is a breach of the duty of fair representation. But, at a certain point, the Labour Relations Board is justified in drawing an inference that the way the union handled the matter was so unsatisfactory and uncaring of individual concerns that it constitutes arbitrary conduct. They dont hold them to a high standard conduct, but if they give so little attention to the matter, at some point the Board will be justified to draw an inference that they failed in their duty. Note: There is no right to have grievance taken to arbitration, even if meritorious; AND no liability for mere mere errors of judgment, mistakes, negligence and unbecoming laxness. What would need to be established: that the union failed to put its mind to the merits or lack of rational decision making which would seem to be an exceedingly high standard. Flagrant errors in processing may fit within the test.There has been some evidence that these complaints can have an impact upon unions. Individual Contract of Employment Two Theories: 1. Incorporation: employees can sue on theory that the terms of the collective agreement are incorporated into subsisting individual contracts of employment (provided courts not required to interpret the collective agreement) This theory had been rejected by the Privy Council in 1931. The remedies available are to bargain or to take economic action (strike etc.). On the other hand there was a second approach (this is similar to Laskins sentiments in Peterborough Lock). 2. New world: when parties enter into the new world of collective bargaining, the old world of individual contracts of employment has ceased to exist; union does not literally act as agent for members but is independent contracting party. For the most part, the second theory has gained the most substantial support. McGavigan Toastmaster (1975) In this case, there was an illegal strike by union members to protest an announcement that the employer was closing down. The company responds by closing down immediately and refusing to pay severance pay owed under the CA. Employer argues that individual contracts had been repudiated by the illegal strike and therefore were not entitled to severance. But, Laskin argues no individual contracts of employment to speak of here so

employer cannot rely on breaches of individual contracts of employment as grounds to say that they have effectively quit.

Laskin vindicates views expressed in Peterborough Lock o Individual relationship have meaning only at stage of hiring o Common law as it applies to individual contract of employment is no longer relevant to collective bargaining employment relationship. Isidore Garon Ltee [2006] The issue has recently gotten interesting treatment in Isidore. If the individual contract has no role to play in the CB context, from whence came employee duties. The issues in this case are what are the reasonable notice provisions of the civil code and could they be used in the collective agreement? Notice was given and union grieved as providing for greater notice periods available under the civil code. Employer immediately objects and argues that the arbitrator has no place important the civil code. The arbitrator says that they have jurisdiction and up holds civil code. This is upheld by the Quebec CA. Two lines of jurisprudence are applied (1) the McGavigan Toastmaster and (2) the notion that arbitrators have the ability to apply general law (such as human rights codes and statutes). The union argues that this should therefore include the right to import the civil code. The answer they provide is interesting: individual contracts are not completely abolished in context of collective bargaining (para 27) General rules that are not incompatible with the collective bargaining system are incorporated into the collective agreement (para 24) In this case, it is found that individual notice is incompatible with the CA It therefore doesnt change anything in terms of the result, but it opens up a whole new conceptual framework. Tuckers sense, is that given this conceptualization that common law and collective bargaining system are to be integrated except where incompatible.

The issue of compatibility is yet to be constructed it will have to be determined on a case by case basis. This could come up in issues of suspension, notice etc. As opposed to the McGavigan Toastmaster approach (which states Its a different world, the two dont interact) this opens up the possibility of broader consideration of issues. Weber v. Ontario Hydro A unionized employee took sick for which he was entitled to do so under the statute. An investigator was able to gain access to Webers home under false pretenses and demonstrated that Weber was no longer sick. The union launched a grievance and Weber launched civil action alleging a number of torts and charter violations. Ontario Hydro moved to have the case struck stating that it was a matter over which the

arbitrator had exclusive jurisdiction. The SCC accepted the notion that we work within exclusive jurisdictions. Therefore, that there is no concurrent jurisdiction. You can either go one way or the other. How do we determine whether or not a matter is within the exclusive jurisdiction of a grievance arbitrator. Need to ask oneself whether the dispute arise expressly or inferentially out of the collective agreement. Must look at the essential character of the dispute by examining: the nature of the dispute; and the ambit of the collective agreement

The court finds that arbitrators have jurisdiction to hear Charter issues, although there is less deference given to them as they are not held up as experts in this field. The effect of this judgment has been to narrowly restrict the ability of union workers to get there disputes outside of a grievance jurisdiction. This is similar to components of the ESA which state that disputes must choose one route or the other. This also applies to issues which are principally matters before the labour relations board. If the essential nature of the dispute is before the labour board then it needs to go there even where it involves torts. Individual Contracts and Strikes and Lockouts 1) After CBA expires, but before a union is in a strike position, what governs the relationship? After a collective agreement expires the union may strike. What is the relationship between the employer and the unionized work force when the collective agreement expires? The individual contracts of employment or collective agreement continue to operate notwithstanding the fact that it has expired. s.86 LRA statutory freeze on any terms of CBA s.86(3) during this period there is also arbitration over any differences that arise over the meaning of the statutory freeze. 2) Union is in a strike position but no strike - neither party has resorted to their economic weapon so that employees are still working. What is the legal relationship? Statutory freeze position of s.86 will only last until the parties get to a legal strike and lockout position. Does this mean the employer can now start negotiating individually with employees? This will depend on the facts of the case, but even when the parties have reached this point, certain things remain true: if the union is the bargaining agent, the employer cant go behind the back of the union and negotiate separately and there is still the duty to bargain in good faith. If the employer unilaterally alters the terms of the agreement this would be a breach of the duty to bargain in good faith. DeVilbiss not per se illegal to alter terms at this time but it may be raised as pattern of breach of duty to bargain in good faith. 3) During Legal Strike or Lockout?

LRA s.1(2): during strike or lockout, those workers are still employees. They are still by law employees for the purposes of the Labour Relations Act. LRA s.80 striking workers are entitled to be reinstated within 6 months. Outside of the 6 months, dont have statutory right to be reinstated. Any employee who wants to come back is entitled to do so within 6 months subject to the employers staffing and issues of that sort. Cannot treat employees differently because theyve been on strike. s.80 preserves a right for employees to get their jobs back and gives them a priority over replacement workers. Once you get beyond 6 months, the issue is cloudy and there are no per se rights Difficult question as to at what point do they cease to be employees. Statutory Controls LRA Strike: legislation broadly defines a strike to encompass any kind of collective action by workers which involves stoppage of work or restriction of output and is a strike regardless of the purpose of using this collective action individuals who walk out as individuals are not on strike. There must be the element of concerted action. Not concerned with the purpose of the strike. As long as you have acted in concert to limit/restrict output, it doesnt matter why (or what your purpose is). See strike as a political protest in General Motors Canada Ltd. [1996] lock out closing or suspension of work with a view to compel or induce employees to agree to terms of employment - therefore, if these have other purposes, ie. to influence the government or improve bottom line, this is not a lockout and therefore not subject to the restrictions of the OLRA Timeliness of strikes No strikes during the life of a collective bargaining agreement, ss.46, 79(1). This is a mandatory term in every CBA. Must first go through process of bargaining and conciliation s.79(2). Goes to conciliation, should conciliation be unable to be reached then a no-board report will be issued. 7 days later an employer/employee will be in a legal strike/lockout position. The one catch for employees is the requirement of a strike vote s.79(3). S.79(6) employees cannot threaten an unlawful strike (same for lockouts) Note: also prohibitions aimed at union officials on authorizing, threatening, counseling, procuring, or doing anything that reasonably know will cause unlawful (untimely) strikes or lockouts. (ss81-83) Traditionally, arbitrators have held union officials to a very high standard in terms of preventing strikes. Hamilton Terminal Operators Ltd (1966) At meeting of union, there was a resolution to call a strike. The union leaders all spoke against it, voted against it but the members voted to go on illegal strike. The union was held responsible for the unlawful strike. Union has to take active steps to prevent it and not in any way be seen to condone it. Cant participate in vote of unlawful strike. Argued that the union should have done more to prevent this merely speaking out against it and voting against it was not sufficient - should not have held meetings, etc.

Standard of conduct of union officials is very high cant just stand up and say go back to work have to actively bring strike to an end. Note: Individuals who participate in illegal strike can be subject to discipline can be discharged Remedy for Untimely Industrial Action Grievance arbitration: union can be held responsible, heavy duty on officials to prevent untimely strike activity, compensatory damages available. 1) Grievance Arbitration: If there is a collective agreement in force, then an unlawful strike or lockout is a breach of the terms of the collective agreement so the parties can seek arbitration in order to get a remedy. Arbitrators have the power to award damages against trade union officials and the trade union itself unless they took every effort to prevent the strike from happening. Trade union officials have been held to a very high standard. Employee members can also be held liable since they are in violation of the collective agreement by striking: disciplinary discharge 2) Labour Relations Act: To go before the Labour Relations Board. s.100 of the Labour Relations Act allows employers to get a declaration from the board that a strike is unlawful and order a cease and desist order. There is also a similar remedy for unlawful lockouts. Once you have the order from the Board, under s.102 you can file it in court and the order will have the same effect as a judicial decision and can be enforced as using court mechanisms such as contempt of court (therefore subject to fines and potentially imprisonment). Common Law Controls: The LRA is largely a question of timeliness that is, the statue tells you when you cannot strike. Presumably there are times when you can strike. Beyond statutory controls, in most jurisdictions, strike activity comes under the common law. There is this whole other layer of regulations governing collective action by workers. Therefore, both timely and untimely strikes will be subject to both the common law and statute. Even where a strike activity is permissible under the statute, it may well offend the common law. Inducing a breach of contract: direct Direct inducement (elements): o o o o intent to injure knowledge of the existence of a contract between plaintiff and a third party use of lawful means to induce breach by a third party breach of contract results

o economic injury to the plaintiff results Typically involves a union placing pressure on a third party who is contracting with the employer in question. If it is indirect inducement the means must also be unlawful. Example: where a union sets up a picket of a business and the employees of that business refuse cross picket lines and therefore do not work. Analysis of Inducement Claim: Hersees of Woodstock Ltd. v. Goldstein (1963) In Hersees, the union is picketing the third party, Hersees. Its not the employer that the union is picketing thus indirect inducement. This was first time the action was presented in this form - Hersees is plaintiff claiming that the union induced them to breach contract. It goes to the Court of A Aylsworth finds that there was the tort of breach of a contract. There are a number of problems with decision: the C of A overrules the finding of no contract (but this is a finding of fact), furthermore, theyve got the wrong plaintiff it is the party (Hersees) that was induced to breach that is the plaintiff in this case. Deacon should be the plaintiff, as they are the ones that have suffered damages. Court says union should be prohibited from putting pressure to breach relationship with Deacon. But there is no contract between Deacon (employer) and Hersees (supplier) - trial court found no contract and thus union not pressuring them to breach a current contract How is this direct inducement? the union is trying to convince customers not to purchase goods from Hersees that are manufactured by Deacon Bros. this does not fit well with the direct inducement model - appears to be more indirect whats the significance of the distinction between indirect and direct inducement - where theres indirect inducement, there is an additional requirement that unlawful means are being used So perhaps Hersees fits a bit better under indirect. But it still doesnt fit the picketing is not unlawful nor does this solve the lack of a contract (there was no contract between the customers who saw the picket and Hersees). Aylsworth attempts to argue that it is criminal besetting and therefore unlawful and concludes that secondary picketing is per se unlawful. Conspiracy to Injure Conspiracy to injure unlawful purpose - need a combination - intent to cause injury and injury results - predominant motive not being recognized by the court as a legitimate one. Conspiracy to Injure by Unlawful Means - Combination - Intent to cause injury and injury results - Use of unlawful means no defense that dominant motive is legitimate.

In the Hersees case, the concurrent decision relies on unlawful conspiracy. - argues that combination - there is an intent to injure - The concurrent decision sates that predominant motive is not self interest (as they argue that there is not benefit which the union could have reaped from pickets). Aylsworth seems to create his own doctrine arguing that there is a lawful right to engage in business. The secondary right to picket must give way to the right to trade. This results in all secondary picketing becoming tortious. This is until the SCC decision in Pepsi which was made recently. International Brotherhood of Teamsters v. Therien City construction company has collective agreement with Teamsters regarding their own employers and also a contract with someone else, Therien (independent contractor of the city) to supply drivers and trucks (getting their labour in 2 ways). Teamsters take the view that their collective agreement says that all drivers must be part of the union and that they must join the Teamsters. Therien, who supplies the drivers says he cant join since he is the employer. Business agent for Teamsters is not happy with that goes to the city and says that if continue to do business with Therien they will picket. Company severs relationship with Therien and he sues. Was this inducement of breach of contract? It would have been but the City did not breach any contract there was no ongoing relationship to which a contract existed for. Therien does not have an ongoing contract, but rather has a series of contracts. This is not a breach, but rather a discontinuance at the end of a contract. Was this conspiracy to injure? Where is the conspiracy? The business agent went to the City and threatened, said if you dont stop doing business well threaten but based on the evidence, there is no evidence/proof of conspiracy - only one individual acting on own. What about breach of statute? - this would have been an unlawful strike because union and City had a binding Collective Agreement, however, from torts, courts generally take the view that there is no independent tort for breach of statute - unless the courts find that the legislature intended it that way and there is something else showing intent to breach. How did Therien win?: They developed the Therien tort. They intended to injury Therien by threatening to use unlawful means and this committed a tort. Therien Tort: Many scholars believe that court invented a new tort wrongful interference with economic relations in the absence of a breach of contract. The unlawful means here is the breach of a statute (LRA). Because they had intended to injure Therien by threatening to use unlawful means, a tort had been committed. Note: As each new situation presents itself, the courts have been prepared to exercise all their creativity to find a remedy for the situation. Gagnon v. Foundation Marine The union sought voluntary recognition from its employer. The employer refused. The unions response was to erect a picket line and shut-down the business of the employer.

Held that picketing unlawful in this case. The court was unable to classify the conduct as otherwise being tortious, so it was held that the strike was unlawful. A recognition strike amounts to a civil conspiracy to injure by unlawful means. Court looked at both conspiracies to injure issues: Is picketing per se intimidation? - Was there a civil conspiracy to injure? o Unlawful purpose? No, seeking recognition. o Unlawful means? o Yes, Recognition strikes held to be prohibited by statute. o Breach of LRA provides unlawful means to support economic tort Labour Injunctions Ontario Courts of Justice Act - s.102: Sets out substantive and procedural requirements for obtaining an injunction in the context of labour disputes. s.102(1) what constitutes labour dispute (definition). It must be unlawful or tortious in some way, otherwise, it cant be brought. As that is the foundation of the injunction. The most important restriction is s.102(3) - In order to get an injunction, the applicant must show that they have made reasonable attempts to get police assistance and supervisor to ensure no damage to property, harm to people or breach of the peace. It is necessary to show that they were unsuccessful in obtaining police assistance in dealing with these situations. Other Provisions: s.102(4) Affidavit evidence re injunction restricted to facts within personal knowledge s.102(4) s.102(6-8) Timely notice of motion must be given in specified form, unless emergency. Defintion of a labour dispute s.102(1) Domtar Inc. v. Lampi, Leronwowich, etc. There was a lawful strike between the union and BoiseCascade. The union can picket their place of business as long as there was no violence, obstruction, etc. and BC cannot get an injunction to stop it. Boise had a business relationship with Domtar which is a separate company. From Domtar, they get inputs for production process. In the normal course of events, Boise employees go onto Domtars grounds to assist in the preparation of materials. During the strike, Domtar hired and independent contractor to do work that was formerly done by Boise workers who were currently on strike. The union put up a picket line in front of Domtar - says they involved themselves in the dispute, actively assisting Boise by hiring people to do struck work. Domtar goes for an injunction because Domtars employees refuse to cross the picket lines and they have to shut down. It is held that s.102 does not apply to secondary action. But at what point is action considered secondary? The court applies the Allied Employer Doctrine - if you are a third party, we will protect you against secondary picketing, but at a certain point if you become involved, you will lose this status and lose the protection. There are two ways you can lose this protection: (1) The third party has become the alter ego of the employer

(2) Where the third partys premises have in effect become a place of business of the struck employer. Domtar is not alter ego and their premises is not in effect place of business of struck employer. Domtar gets a common law injunction. Note: Here, the court draws the line allowing Domtar to assist Boise while enabling them to maintain the protection as a third party. If work is being done on Domtars premises that was formerly done by Boise workers, isnt this then becoming ground for Boise work? At what point do we draw the line where enough of the activity of the struck employer is going on on third party premises to draw them in? When have reasonable efforts to obtain police assistance been unsuccessful? Industrial Hardwood Distinction between property damage/personal injury situation and obstruction situation. In later, some toleration of inconveniences; court takes into account degree of obstruction and duration. The employer would need to show that obstruction/duration has passed threshold laid out by the court. Legal Restrictions on Employer Tactics - Prohibition on use of professional strike breakers, s.78 - Prohibition on strike-related misconduct, as defined in s.78 - Replacement workers permitted in most jurisdictions Charter Application Collective Action Dolphin Delivery (1986) Purolator has locked out its unionized employees. Purolator has contractual relationships with Dolphin Delivery. After the lockout, Dolphin Delivery makes deliveries for a company called Super Courier. It is claimed that Super Courier is really Purolator and Purolator is doing strike work. They made an appeal for a declaration that Super Courier is an ally of Purolator. Secondary picketing of Super Courier injunction issued. The union challenged this as it wanted to use the Charter. It is held that the Charter does not apply to common law based on private action even where there is a court order such as an injunction. However, judiciary ought to apply and develop common law principles in a manner that is consistent with Charter values.

Hill v. Church of Scientology (1995) Charter values should be weighed against general principles that underlie common law. Far-reaching changes to common law should be left to legislature. Party alleging inconsistency bears onus of proving common law fails to comply with Charter values and that, when Charter values and common law principles weighed, common law should be changed. Are restrictions on Picketing Demonstrably Justified Infringement? Dolphin Delivery (secondary picketing) In Dolphin it is held that picketing is protected form of expression, but social cost of industrial conflict is great; may be tolerated but only as inevitable corollary to collective bargaining process; reasonable to

restrain picketing so that it will not escalate beyond the parties; it should not be permitted to harm others. BCGEU (Primary Site Picketing) Judge initiated injunction himself. State initiated injunction Charter applied. Section 1 analysis: Dont view picketing as benign attempt to do something they have lawful right to do. Picketing much more than simple exercise of workers freedom of expression; ipso facto impedes access; like a signal effect causing Pavlonian response for people not to cross picket lines. Picketing is coercive (even if no individual tort committed). In this case, say it threatens access to justice. UFCW v. K-Mart (Leafleting on secondary site) Unionized employees at K-mart were on strike and locked out of certain stores. The union decides to conduct a leafleting campaign in front of other stores recommending they take their business elsewhere. In BC, there is a statutory scheme regulating strike activity. Under that, there is an absolute probation on any action. They are able to get an order preventing the leafleting. The court finds that picket lines are formidable barrier. Coercive effect rather than persuasive force: May be applied to employer, but may not be permissible against neutral 3rd party. But leafleting is distinguished from picketing and is permitted at secondary sites, provided not otherwise tortious. Leafleting form of expression which promotes rational discourse. It persuades through rational discourse in contrast to picketing. RWDSU v. Pepsi A New Approach RWDSU was involved in a lawful strike against Pepsi and also put up picket lines at a hotel where Pepsi was housing employees brought in to assist during strike as well as many retail outlets. Pepsi got and injunction against secondary picketing. Test for application of Charter to common law context of private litigation remains as stated in Hill. But case establishes precedent for judicial alteration of common law rules. Result arguably narrows the significance of Dolphin Delivery. Contrary to earlier decisions that seemingly denied the need to assess the competing value of picketing and third-party rights, Pepsi puts this exercise front and centre because of the more positive assessment of role of picketing: o strike activity legitimate in industrial pluralism, para 25 o as expressive activity action engages one of the highest constitutional values Freedom of Expression, para 32 o redresses imbalance of power that are inherent in employment relation, para 34 o reinforces important role played by unions in social debate, para 35. But must weigh competing value of protecting innocent third parties against undue harm, para 45. The SCC overturns Hersees regarding the legality of secondary picketing. On a balance, the tort of secondary picketing is unjustified infringement of freedom of expression. Picketing is Charter protected, curtailment must be justified, par. 67 Primary/secondary distinction puts undue emphasis on location and hard to operationalize (par. 75-79). Protection against economic harm is important value, but not pre-eminent, (par. 72) and the right to trade is not fundamental (para. 89).

There is a reassessment of the signalling effect of picketing, par. 93-100. The signalling effect should be carefully assessed, more likely to happen in specific contexts. Wrongful action approach will provide adequate protection against undue economic harm (para. 92, 103). Ultimately adopt the wrongful approach picketing can only be barred where the person seeking cessation are able to prove that it was unlawful. Uncertain Areas After Pepsi: Can legislatures ban secondary picketing (eg. BC Labour Code)? Para. 86 of Pepsi seems to leave it open for legislature to ban. As long as it is within Charter then legislatures are free to craft limits. Can other torts be challenged as inconsistent with Charter values? Can new torts be developed to protect third party interests in the absence of a tort of secondary picketing? par. 106-07 Is There a General Right to Strike? Common Law: Workers enjoy partial privilege to strike, subject to legal duty not to engage in tortious or criminal behaviour. Post WW II Statutory collective bargaining schemes: For most workers, dual movement:Partial rights (eg. preservation of employment status, limited right to reinstatement, Further limitations on privilege (eg. timeliness requirements. For others, prohibitions (eg. government employees) In 1960s: Extension of collective bargaining rights to public employees (with or without the right to strike). In the 1970s and 80s: Limitations: wage controls; expansion of essential service designations; ad hoc back to work legislation. Charter challenges to these limitations: Labour Trilogy (1987) The SCC puts forward a limited notion of freedom of association. Freedom of association does not extend to protect activities taken by association in pursuit of its objectives. Collective bargaining rights are modern rights, not fundamental rights and freedoms. Involves examination of legislative policy for which court not well suited. Dunmore may change this but its impact is still unclear and is awaiting further litigation.