Home|Conferences & Workshops|Atlantic Canada Labour Law Conference - Halifax


Atlantic Canada Labour Law Conference

Halifax • May 26 - 27, 2022
Hotel Halifax


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Thursday, May 26, 2022


Introductory remarks by Co-Chairs 9:00 AM - 9:15 AM  


Panel 1


What's New in '22? Key cases and legislative updates

9:15 AM - 10:30 AM

Judith Begley
Lawyer, Workplace Investigator, and Mediator
Begley Law
Tara Erskine
Employer Counsel
Mathews Dinsdale & Clark
Jason Edwards
Union Counsel
Pink Larkin

Panel Summary

In this panel, seasoned experts will canvass significant legal developments of the past year, discussing key cases, ongoing litigation, and legislative reforms. Topics to be addressed include the Supreme Court of Canada's decision in Northern Regional Health Authority v. Horrocks, 2021 SCC 42 (CanLII), on the jurisdiction of labour arbitrators as opposed to human rights tribunals, recent cases regarding cannabis use in the context of the workplace, new caselaw that may add clarity to the applicable test for family status discrimination, and key human rights cases of the past year. Final selection of topics takes place in the weeks leading up to the conference, ensuring coverage of the latest and most important developments so the panel will equip attendees with up-to-date knowledge of what's new in '22.

Break

10:30 AM - 10:45 AM

Thursday, May 26, 2022


Introductory remarks by Co-Chairs 9:00 AM - 9:15 AM  


Panel 2


Less Fire, More Light: A new approach to resolving grievances quickly and efficiently

10:45 AM - 12:00 PM

Christina Kennedy
Legal Counsel
Newfoundland and Labrador Association of Public and Private Employees
Melissa Pike
Employer Counsel
McInnes Cooper

Panel Summary

Employers, workers, and labour representatives seeking to resolve grievances often find themselves facing procedural hurdles and delays, overly formalistic processes, and unmanageable backlogs, hindering the timely resolution of workplace disputes, impeding access to substantive remedies, and eroding trust between the parties. In this panel, experienced speakers will discuss how to address grievances in new and streamlined ways, discussing options that may be available outside of conventional grievance resolution and adjudication processes, when these alternative approaches may be appropriate or useful, and their advantages and potential pitfalls. At the same time, panellists will canvass how parties can seek to move more efficiently through traditional grievance resolution and adjudication processes and will discuss the impact of COVID-19 on these processes, providing insight into potential trends going forward as parties seek to resolve grievances quickly and efficiently in a post-pandemic world.

Lunch

12:00 PM - 1:00 PM

Thursday, May 26, 2022


Introductory remarks by Co-Chairs 9:00 AM - 9:15 AM  


Panel 3


Targeting Appropriate Remedies: Evolving benchmarks for compensatory, aggravated, and punitive damages

1:00 PM - 2:15 PM

Caroline Spindler
Employer Counsel
Mathews Dinsdale & Clark LLP
Daniel Leger
Union Counsel
Pink Larkin

Panel Summary

As society emerges from a year of evolving social and workplace realities, what impact are these changes having on remedies being awarded by courts, arbitrators, and tribunals for violations of workplace rights and obligations? Are recent trends toward higher-than-usual damages for injury to dignity, aggravated damages, and violation of intrinsic rights likely to continue? What principles are decision-makers applying in calculating and arriving at appropriate damages awards? In this session, a panel of experts will review the recent developments in remedies, and offer their views and practical advice on the following questions:

  • What are the key decisions in which higher-than-usual aggravated and punitive damages, or damages for injury to dignity, have been awarded? Do these decisions have anything in common and/or what factors have influenced the decision-makers in such cases? In which jurisdictions does human rights legislation now impose an upper limit on damages, and what impact might this have on remedial awards overall?
  • What are the implications of the recent Supreme Court of Canada ruling in Northern Regional Health Authority v. Horrocks, 2021 SCC 42 (CanLII), that human rights claims for unionized employees are to be dealt with at arbitration, rather than before human rights tribunals? Will this have an impact on damages awarded by arbitrators?
  • Has there been an increase in arbitrators' willingness to award damages for infringement of a union's or employees' inherent rights under a collective agreement — for example, privacy rights, damage to employees' mental health, or breach of the obligation to consult? If so, how are such non-monetary losses being calculated or quantified?
  • What lessons can be learned from recent very high damage awards – in the tens and hundreds of millions of dollars – for violation of public-sector Charter bargaining rights?
  • Can we expect to see more large-scale systemic claims such as those involving gender discrimination in the Royal Canadian Mounted Police and racial discrimination in the public service? If so, what lessons can be gleaned from recent high monetary awards in systemic claims in other sectors and contexts?

break

2:45 PM - 2:30 PM

Thursday, May 26, 2022


Introductory remarks by Co-Chairs 9:00 AM - 9:15 AM  


Panel 4


Here, There, and Everywhere: Creating hybrid workplace policies that work for everyone

2:30 PM - 3:45 PM

Dr. Arla Day
Industrial/Organizational Psychology
Saint Mary's University
Tanya Tynski
Senior Advisor
MC Advisory
Kyle Rees
Union Counsel
O’Dea Earle

Panel Summary

Neither employers nor employees seem to think that working conditions will be — or should be — the same after the pandemic as they were before. As COVID-19 transitions from a pandemic to an endemic virus, many employers are likely to offer the option to work from home at least part of the time. In this session, experts will discuss legal and practical considerations that must be addressed as working from home ceases to be an emergency measure and becomes a permanent feature of paid work.

  • How could permanent remote or hybrid working arrangements benefit employees, employers, and unions? What would the drawbacks be?
  • What policies and practices need to be implemented to address concerns that hybrid work will detrimentally affect intangible aspects of successful organizations, such as creativity, teamwork, a sense of belonging, and/or organizational commitment?
  • What must unions do to maintain effective union representation and cohesion among union members in bargaining units where remote or hybrid work is common?
  • What are shaping up to be the key union and employer demands and concerns as the parties negotiate and litigate hybrid work policies? Which demands are the most contentious?
  • What aspects of work-from-home or hybrid work arrangements should be specifically addressed in policies or collective agreement provisions?
  • What occupational health and safety obligations extend into an employee's home workspace? What balance should be struck between employees' control over their own home and employers' duty to ensure workplace safety?
  • Are hybrid work arrangements a boon to equity-seeking groups, e.g. employees with disabilities or childcare responsibilities (particularly women), or must workplace parties carefully craft policies and practices to ensure that such arrangements do more good than harm?
  • What must workplace parties do to counter hybrid work's tendency to exacerbate work–life conflict? Must workers have a "right to disconnect?" If so, what policies and practices are necessary to make that right meaningful?
  • What policies and practices can mitigate the possibility that hybrid arrangements may perpetuate, rather than alleviate, discrimination against equity-seeking employees, including women, who disproportionately bear the burden of childcare, and employees with mental health disabilities, whose conditions may be aggravated by isolation or, according to recent research, may have challenges in maintaining productivity?

End of day 1

3:45 PM

Friday, May 27, 2022


Introductory remarks by Co-Chairs 9:00 AM - 9:05 AM  


Panel 5


Moving Out of the Pandemic's Shadow (Part 1): The latest on vaccination, masking, and other COVID-related policies

9:10 AM - 10:25 AM

James Green
Employer Counsel
Cox and Palmer
Mary Rolf
Union Counsel
Pink Larkin

Panel Summary

The COVID-19 pandemic has altered working conditions in a way few would have thought possible just two years ago. Masking requirements and mandatory vaccination policies, once primarily the concern of the health care sector, have become widespread in workplaces of all types. Workers providing essential services have had to do so despite the risk of a becoming infected with a serious virus. All workers have been impacted by increased isolation as a result of public health measures and by the collective trauma of the pandemic itself, resulting in an "echo pandemic" of burnout and mental health concerns.

In Part 1 of this two-part session, experienced labour lawyers will discuss the developing caselaw assessing the reasonableness of workplace vaccination and masking policies as well as other employer policies instituted to protect workplace health and safety in the face of a contagious virus. Speakers will also provide guidance on ensuring that such policies respect human rights obligations. Questions to be addressed include the following:

  • In what contexts have arbitrators upheld mandatory vaccination policies as reasonable exercises of management rights? Are such policies dependent on public health orders or regulations requiring vaccination in certain workplaces? Must employers demonstrate that measures short of a vaccination policy are insufficient to protect workplace health and safety?
  • Can vaccination policies provide for the dismissal of employees who refuse to be vaccinated? Should such employees be placed on unpaid leave instead? If so, must their status as employees be maintained indefinitely?
  • Who should pay for self-isolation leave?
  • When, if ever, should vaccination policies offer COVID-19 testing as an alternative to vaccination? Who should bear the cost of the test? Should workers be compensated for the time spent administering a test or reporting the results?
  • What documentation must employees provide to be exempted from vaccine mandates on the basis of disability? Does limiting the eligibility for such exemptions to employees with a handful of specific medical conditions violate the duty to accommodate?
  • What information should employees be required to provide to obtain an exemption from mandatory vaccination on the basis of their religious beliefs? Must objections be based on the tenets of an established religion, or do objections based on an individual's deeply held personal beliefs or convictions qualify?
  • Are arbitrators adopting a harder line for violations of safety protocols, such as masking requirements, imposing more severe disciplinary penalties than might be assessed for other infractions?
  • Going forward, what COVID-related policies will be necessary to meet statutory obligations to ensure workplace health and safety? What additional reasonable measures may be advisable? How will the answers to these questions evolve in response to changing public health advice?
  • What measures should be put in place to protect private information collected in connection with policies requiring vaccination, testing, or reporting of contact with individuals infected with COVID-19?

break

10:25 AM - 10:40 AM

Friday, May 27, 2022


Introductory remarks by Co-Chairs 9:00 AM - 9:05 AM  


Panel 6


Moving Out of the Pandemic's Shadow (Part 2): Addressing mental health, burnout, and other workplace challenges

10:40 AM - 12:00 PM

Tracy McPhee
Legal Counsel Labour Relations & Compensation Analysis
Health Association Nova Scotia
Wally Fiander
Executive Staff Officer, Member Services,
Nova Scotia Teachers Union
Abraham Rudnick
Professor, Department of Psychiatry, School of Occupational Therapy
Dalhousie University

Panel Summary

In part 2 of this two-part session, experienced labour relations professionals will discuss the pandemic's effect on mental health, also reviewing psychological health and safety policies and practices that minimize mental distress and burnout, as well as the duty to accommodate employees who develop mental health disabilities as a result of the pandemic. Questions to be addressed include the following:

  • How have the pandemic and pandemic-induced changes to working conditions affected employees' mental health? Why do over a third of workers report being burned out?
  • What are burnout- and/or pandemic-related stress disabilities that trigger the duty to accommodate?
  • Has the general duty under occupational health and safety legislation to take every precaution reasonable in the circumstances for the protection of a worker evolved to include a duty to prevent mental harms such as stress and burnout?
  • Legal obligations aside, is it a good idea to address the organizational factors — including pandemic-induced changes to working conditions — that contribute to stress and burnout?
  • In the current circumstances, what practical steps can employers and unions take to prevent stress and burnout?
  • To what degree will the pandemic result in long-term mental health impacts that will affect recruitment, retention, productivity, benefit claims, and requests for accommodation even after COVID-19 is classified as endemic? What groundwork should be laid now to deal with these issues as they arise?

Lunch

12:00 PM - 1:00 PM

Friday, May 27, 2022


Introductory remarks by Co-Chairs 9:00 AM - 9:05 AM  


Keynote Addresses


Symptoms May Include Labour Organizing

1:00 PM - 1:30 PM

Ainsley Hawthorn
PhD Author, Cultural Historian, and Multidisciplinary Artist


Panel Summary

COVID-19 isn't the only pandemic to have had a profound effect on working conditions. Europe's first labour movements were sparked by one of history's direst epidemics: the Black Death. When the plague swept across Eurasia in the mid-fourteenth century, it decimated the lower classes. More than half of England's peasants died, compared to 27 percent of landowners. The resulting labour shortage fundamentally altered the balance of power, giving labourers the leverage to set their own terms of employment and begin advocating for their rights.

Reset for Keynote 2

1:30 PM - 1:35 PM

Friday, May 27, 2022


Introductory remarks by Co-Chairs 9:00 AM - 9:05 AM  


Keynote Addresses


No Neutral Ground: Taking a stance against racism in the workplace

1:35 PM - 2:05 PM

Manju Varma
New Brunswick Commissioner on Systemic Racism


Panel Summary

This talk will explain the difference between overt racism and systemic racism, the role of bias in the workplace, and how the way we understand difference impacts our decision-making processes around diversity and inclusion strategies.

Break

2:05 PM - 2:20 PM

Friday, May 27, 2022


Introductory remarks by Co-Chairs 9:00 AM - 9:05 AM  


Panel 7


EDI Front and Centre: New approaches to redressing discrimination and fostering a respectful workplace

2:20 PM - 3:35 PM

April Howe
Founder/Advisory
Crayon Strategies Inc.
Tracey Jones-Grant
Managing Director, Diversity & Inclusion, African Nova Scotian Affairs Integration Office,
Halifax Regional Municipality
Lynn Jones
Human Rights
Community and Labour Activist
Janet Hazelton
President
Nova Scotia Nurses' Union (NSNU)

Panel Summary

Widespread recognition of the moral imperative and practical advantages of workplace equity and diversity are sparking new initiatives to tackle the age-old problem of systemic discrimination in Canadian workplaces. As concepts of equality, diversity, and inclusion at work evolve, and the need to reflect these ideals in workplace policies and practices gains widespread recognition, organizations have begun to look beyond conventional programs to take additional steps to foster and achieve equity and diversity in their workplaces. In this session, experts will discuss new strategies and initiatives across Canadian workplaces to overcome the barriers of systemic discrimination and advance the goals of workplace diversity and inclusion. Topics to be discussed will include the following:

  • What strategies, policies, and programs can employers adopt to identify and combat the effects of systemic discrimination in the workplace?
  • Can a focus on retention, mentorship, promotion, workplace culture, and accountability lead to greater achievement of employment equity? What other strategies can be adopted to achieve the still elusive goal of employment equity in Canadian workplaces?
  • What is the relationship between pay equity and employment equity?
  • What role can employers and unions play in reflecting changing societal attitudes, re-energizing and modernizing employment equity, and combatting the effects of systemic racism?
  • What types of collective agreement language are currently being negotiated to foster equity and diversity and create a respectful, inclusive workplace culture?
  • How might emerging initiatives and ideas about equity, diversity, and inclusion within businesses and organizations be used to inform modern legislative reforms? Can these initiatives be adapted to breathe new life into old strategies and methods for redressing systemic discrimination?

End of day 2

3:35 PM

Keynote Speakers


CPD


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