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Introductory remarks by Co-Chairs
8:45 a.m. – 9:00 a.m.

TOPICS

Within the last decade there has been a proliferation of legislation across Canada dealing with violence, threats and personal harassment, also known as bullying. This legislation is supposed to protect employees against human "health and safety hazards" and to help ensure "psychologically safe" workplaces, but is it working?  In this session, a panel of experts will compare and contrast legislative and arbitral approaches to workplace bullying and violence, concentrating on approaches in the federal jurisdiction, Ontario and Quebec. Questions to be discussed include:

• Bullying/Personal Harassment: What is "personal harassment"? What is bullying? Are the following included: Foul language? Angry outbursts? Threats? Insults? Deliberate isolation? Unfair distribution of workload or privileges? When will borderline behaviour amount to harassment? Does it matter if there’s a culture of horseplay or physicality at the workplace? What is the difference between personal harassment and harassment prohibited by human rights legislation? Can a single episode or a series of discrete incidents constitute harassment? At what point does the workplace become a poisoned environment?

• Obligations Under Ontario’s Bill 168: How does Bill 168 define harassment? Under what conditions can an employee refuse to work? What steps should employers take to protect workers? Does Bill 168 require employers to take a "zero-tolerance" approach to workplace harassment and violence? What types of warnings are necessary before an employer takes disciplinary action for harassment or abuse? How have adjudicators interpreted and applied Bill 168 in recent decisions?

• Tackling Bullying in the Federal Sector and Beyond: How has federal sector legislation addressed issues of workplace violence and harassment? Should claims by federal public servants for harassment be brought before the Public Service Labour Relations Board or courts? What are other provinces doing to address these problems? How does Quebec’s Labour Standards Act address bullying and harassment? What types of remedies are available under that regime? Can an employee get damages for pain and suffering due to harassment? Punitive damages? Will managerial inaction make an employer liable under this legislation?

• Threats and Violence: Should the discipline imposed for uttering threats vary depending on whether or not the individual who uttered the threats had an intention to actually carry them out? How should workplace parties deal with threats caused by an employee’s mental illness? Does it matter if violence is provoked by racial slurs or other insults? Does it matter if the violence between coworkers is consensual?

• Responding to Harassment: Does an employee have to make a formal harassment complaint before the employer should take steps to address the situation? What obligations does an employer have to investigate a complaint? Is an employer obliged to remove a harassing individual from the work environment, even if he or she is not an employee? What roles should employers and union representatives take in harassment investigations? Can a harassed employee be awarded damages? When will discharge be the appropriate remedy for bullying or harassing conduct? What factors will affect a decision to discharge an employee – refusal to acknowledge the misconduct? Lack of remorse? Repeated misconduct?

• Legislative Remedies: What are the limitations of the remedies available in Ontario, Quebec and the federal jurisdiction? Which legal regime offers the most effective remedies? Which offers the least effective remedies? Do existing statistics indicate the comparative efficacy of the three legal regimes?

TOPICS

In response to the sluggish economy, economic uncertainty and budget deficits, governments across Canada are adopting positions of fiscal restraint. While government austerity measures will have a more direct impact on bargaining in the broader public sector, the current economic climate is certain to affect bargaining in both the private and public sectors in the coming year. The federal government has recently displayed an unprecedented willingness to legislate an end not only to public sector labour disputes but also to private sector labour disputes where it perceives the national economy to be affected. In this session, Lancaster’s experts will discuss how economic uncertainty, fiscal restraint and government legislative intervention are likely to affect collective bargaining in the coming year:

• Economic Uncertainty: How has poor economic performance and global economic uncertainty affected bargaining in the past year? What role will economic uncertainty play in upcoming rounds of negotiation? What pressures in the economy are influencing demands, strategies and tactics at the bargaining table? How are these pressures playing out differently in the private and broader public sectors? Given the current economic climate and forecasts, what are likely to be bargaining priorities for unions and employers in 2012/2013?

• Restraint: What effect will government’s pursuit of deficit and debt reduction have on bargaining? How has the Ontario government’s wage freeze policy affected bargaining in the broader public sector? Has the policy been effective in controlling expenditures on the public service? Have unions been able to make gains within the context of this restraint? What effect have the wage restraint provisions in the federal government’s Expenditure Restraint Act had on bargaining? How have unions responded to this policy? Have they been able to make gains? What does restraint mean for employment equity? What strategies are unions across Canada using to make gains in the context of fiscal restraint?

• Intervention: How has the federal government’s unprecedented use of back-to-work legislation in the private and public sectors affected bargaining? Does the potential for such legislation to be introduced encourage parties to reach agreements quickly or does it merely polarize parties in their positions? Does it provide an incentive to bargain in bad faith? In light of the Supreme Court’s decision in B.C. Health Services, is back to work legislation, such as the act that ended the postal work stoppage, constitutional? Was it unconstitutional to legislate a wage that was less than what free bargaining had produced? In the wake of the Supreme Court’s decision in Fraser, is it constitutional for the government to impose restrictive criteria on interest arbitration as it did on in the Canada post dispute? What are Fraser's implications for ongoing Charter litigation in provincial and federal sectors? How have they fared so far? What cases underway in other parts of Canada raise the issue of a constitutional right to strike? How would the recognition of such a right affect bargaining?

Lieutenant-Colonel Stéphane Grenier suffered from post-traumatic stress disorder, but he resisted treatment for years because of the stigma surrounding mental illness. Finally, a sympathetic commander pulled him aside and gave him the social support he needed to accept help to recover from the trauma he experienced during a tour of duty in Rwanda. Lt.-Col. Grenier’s experience led him to develop a successful peer support program for other soldiers with occupational stress injuries. In this special presentation, he will discuss his program and the importance of peer support in dealing with occupational stress.

TOPICS

It often seems that lawyers and health professionals speak different languages. Obtaining the information necessary to provide appropriate accommodation to employees is difficult because health care providers, union representatives and management representatives may all have different ideas of what information is private and what is necessary. It is also often difficult to frame requests in a way that elicits the necessary information but does not cause alarm by seemingly asking for too much information. In this session, lawyers and health care providers will offer guidance on asking the right questions to receive the information you need and are entitled to obtain.

• Necessary Information: What obligation does an employee have to alert the employer that accommodation is necessary? Must the employee alert the employer at the beginning of the employment relationship if the need is known at that time? When will arbitrators impute to employers "constructive knowledge" of a disability? What information may an employer legally request (and what must an employee provide) in order to assess appropriate accommodation? Is the employer entitled to the employee’s diagnosis, prognosis, or information on the employee’s treatment? What health-related questions are impermissible because they intrude upon an employee’s privacy? Can the employer or its agent consult the employee’s health care provider without the employee’s consent? Once the employer is in possession of health information, what steps does provincial law require the employer to take to shield that information? What steps does federal law require?

• Requesting the Necessary Information: What is the most effective way of requesting the information you need? How should unions and employers request information from physicians? Are standardized forms helpful? If so, what should and should not be on standardized forms? How specific should they be in their requests? What questions are likely to prompt physicians to provide useful information? What types of questions are likely to result in physicians providing vague information? What are some examples of doctors’ notes that are too vague? If you receive a vague response, how should you request more specific information? How much time should employers give employees to get the medical information they have requested?

• GPs, Specialists and Other Health Professionals: Is medical information from an employee’s treating GP sufficient for accommodation purposes? When do you need information from a specialist physician? How should employers treat information from health care professionals who are not physicians, for example, psychologists? For mental health issues, is information from a GP sufficient? Or should you seek medical information from a psychiatrist? How should parties treat information from licensed counselors and psychologists? When is an independent medical exam appropriate? When can the employer ask an employee to see a physician of its choice or to undergo an independent medical evaluation (IME)? Are there particular types of questions that general practitioners are ill-equipped or reluctant to answer? What guidelines and/or professional rules guide physicians and psychologists in providing information to employers and unions?

TOPICS

More than a decade ago, Scott McNealy, co-founder of technology giant Sun Microsystems, famously pronounced, "You have zero-privacy anyway. Get over it." Some have accepted this statement as truth. Some believe it is becoming true. Others hear the statement as a call to arms. The Assistant Privacy Commissioner of Canada, for one, has proclaimed, "Privacy is not dead. On the contrary, research shows that people do value their privacy as a fundamental right and, if anything, are more and more concerned about the power of new information technology to intrude upon it." This interactive session will present factual scenarios drawn from real-life cases in which technology and employee expectations of privacy collide. Experienced counsel will argue the merits of the case from both union and management perspectives, and conference participants will be given an opportunity to discuss the case and voice their opinions. Issues to be addressed may include:

• Social Media: Are employers legally permitted to make hiring decisions based on information gained through online searches, blogs and social media websites? Can employers rely on information from searches, blogs and social media sites to make other employment decisions (e.g. discipline, termination)? Are employers permitted to circumvent privacy settings to access such information? What is the risk of such information being false or inaccurate? What liability do employers face for relying on false or inaccurate information in making hiring decisions?

• Off-Duty/Off-Site Internet Activity: Can an employee be disciplined for views offensive to the employer expressed on Facebook, blogs and other internet sites if the employee does not use work time or the employer's computers to make the internet postings? Does it matter whether the postings are available to the general public or to a select group of people? Do employers have a duty to respond when an employee complains about other employees harassing him or her online during off-duty hours? Can comments employees post about each other online while off duty create a poisoned workplace?

• Privacy Rights vs. Property Rights: Do employees have a reasonable expectation of privacy in relation to e-mail messages, text messages, and personal files, such as bank statements, stored on employer-owned computers or phones? Does it matter if the information is otherwise protected by a legally-recognized privilege? Will personal information employees store on smart phones, laptops or other devices they are expected to take home attract greater protection than information stored on computers that do not leave the workplace?  

• Monitoring: When is monitoring of employees permitted and when is it prohibited? What information should be provided to employees concerning the scope of monitoring of employees’ use of technology? Is consent required? In what circumstances can an employer justify its use of monitoring technology to assess the productivity of its employees? Can an employer record some, or all, of an employee's phone conversations?

• Surveillance: In what circumstances are employers justified in conducting overt video surveillance of the workplace? When, if ever, are employers entitled to conduct surreptitious video surveillance of the workplace? To what uses can video surveillance be put? Can it be used to deter theft? Ensure safety? Monitor performance? When are employers entitled to conduct video surveillance of employees outside the workplace?

TOPICS

Deciding where to take a workplace dispute for resolution is not always an easy task. The overlapping jurisdictions of courts and different workplace tribunals can raise a host of legal and strategic questions. This panel will discuss recent decisions in both the provincial and federal jurisdictions, paying attention not only to legal considerations but also to practical considerations in choosing a forum that can grant the remedy you seek or in opposing a forum you regard as inappropriate. Questions to be addressed include:

• Federal/Provincial Jurisdictional Issues: Which workplaces fall under federal jurisdiction? Which fall under provincial jurisdiction? How will courts apply the "functional test" to determine the proper jurisdiction? Will a provincial enterprise ever fall within federal labour jurisdiction? What if a business engages in a "federal undertaking", but only operates in one province? Do national trade unions, as employers, fall under provincial jurisdiction?

• Types of Forums: What types of complaints should be brought to a labour relations board? A human rights tribunal? The Superior Court? Arbitration? What if one party wants to raise a constitutional issue? Can a dispute arising under the collective agreement ever be brought before a court, or is it exclusively in the arbitrator’s jurisdiction? What about pre-employment disputes? Do specialized tribunals for discipline grievances deprive a collective agreement arbitrator of jurisdiction to consider the matter?

• Forum Choice: What factors should be considered in choosing a forum when there is overlapping or concurrent jurisdiction? How will adjudicators decide which forum is the "best fit"? How do factors such as procedural requirements, remedies available, expertise of adjudicators, time and cost influence the choice of forum? What strategic considerations are relevant when choosing a forum?

• Dismissals: When will a decision-maker dismiss an application on the ground that another proceeding has appropriately dealt with the substance of the application? When will an adjudicator take jurisdiction on the ground that no other proceeding is likely to deal appropriately with the application? Is it an abuse of process to bring an application where another adjudicative body has decided the same issues between the same parties?

Prominent counsel will review recent legislative changes and important decisions delivered in the past year by Canadian courts, arbitrators and federal and provincial labour boards and human rights tribunals. In particular, they discuss what trends can be discerned from recent case law and legislation dealing with critical issues in labour, human rights and privacy law. The selection of cases for this session takes place a few weeks before the conference, ensuring up-to-the-minute coverage of late-breaking decisions.

CONFERENCE ENDS
12:00 p.m.

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