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Atlantic Canada Human Rights & Labour Law Conference

May 18 - 19, 2017
The Westin Nova Scotian


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Thursday, May 18, 2017


Registration and Breakfast 7:45 AM - 8:45 AM  
Introductory remarks by Co-Chairs 8:45 AM - 9:00 AM  


Panel 1


Current and Critical: Key human rights and labour law decisions

9:00 AM - 10:15 AM

Karen Hollett
Arbitrator/Mediator and Chair, Nova Scotia Labour Board

David Conway
Union Counsel
Registered Nurses' Union of Newfoundland and Labrador
Ian Pickard
Employer Counsel
McInnes Cooper

Panel Summary

Seasoned counsel will review the year's most important cases and legislative developments, and flag significant litigation and legislative reform on the horizon. Final selection of topics will take place a few weeks before the conference, ensuring coverage of late-breaking decisions.

BREAK (with refreshments)

10:15 AM - 10:45 AM

Thursday, May 18, 2017


Registration and Breakfast 7:45 AM - 8:45 AM  
Introductory remarks by Co-Chairs 8:45 AM - 9:00 AM  


Panel 2


Sealing the Deal: Confidentiality clauses, last chance agreements, and other settlement essentials

10:45 AM - 12:00 PM

Augustus Richardson
Arbitrator/Mediator

Susan Coen
Legal and Legislative Representative
Canadian Union of Public Employees
James LeMesurier
Employer Counsel
Stewart McKelvey

Panel Summary

Structuring a binding settlement that pays heed to confidentiality concerns, tax consequences and other considerations requires attention to detail and practical know-how. In this session, Lancaster's experts will provide tips and insights on getting the deal you bargained for, maximizing the settlement amount without additional costs, and avoiding common stumbling blocks. Issues to be addressed include:

  • Creating a binding agreement: At what point in the negotiating process will the parties be considered to have reached a binding agreement? Must the agreement always be in writing? Who should sign the settlement? Is an agreement valid if it is reached by the employee and the employer without the consent of the union? Must a grievor sign a settlement agreement in order for the agreement to be valid?
  • Confidentiality clauses: What are the key components of an effective confidentiality clause? How should the parties address a breach of the confidentiality clause? Are there any obligations on an employee or employer to keep quiet about the content of an agreement where a confidentiality clause is not included?
  • Last chance agreements: What are the essential features of a last chance agreement? When may workplace parties consider negotiating such an agreement? What terms and conditions can be imposed as part of a last chance agreement? How should parties respond to a breach of a last chance agreement? Are last chance agreements enforceable if an employee’s misconduct is related to a substance-use disorder or disability?
  • Releases: What types of claims or obligations should be included as releases in a settlement agreement? What terms go too far? Can third parties who are not parties to a settlement, such as insurers, rely on the releases in the agreement? When is it appropriate for a union to obtain a release from the grievor?
  • Structuring a settlement: What can be done to maximize the settlement amount without additional costs, including income tax and employment insurance repayment? In what circumstances, if any, can settlement funds be characterized as "general damages," "punitive damages" or "bad faith" damages, with the effect of minimizing tax, or must all money received in a settlement be treated as taxable employment income? Is it advisable for a settlement payment to be paid as a lump sum?

NETWORKING LUNCH

12:00 PM - 1:15 PM

Thursday, May 18, 2017


Registration and Breakfast 7:45 AM - 8:45 AM  
Introductory remarks by Co-Chairs 8:45 AM - 9:00 AM  


Panel 3


Changing Families, Changing Rules: The latest cases and best practices on adjusting work schedules and other accommodations

1:15 PM - 2:30 PM

Isabelle French
Employer Counsel
Barteaux Durnford
Kelly McMillan
Human Rights and Employment Lawyer
Nijhawan McMillan Barristers
Randy Slepchik
Union Counsel
Jewitt McLuckie & Associates

Panel Summary

For many Canadian workers, protection against family status discrimination is crucial in balancing work and family care obligations. Despite the importance of this issue for employers, unions and employees, there remains significant uncertainty and conflicting jurisprudence regarding the nature and extent of employers' duty to accommodate family care obligations. Shifting demographic trends and the increasing prevalence of "non-traditional" family models in Canada raise additional questions about the scope of family status accommodation requirements. Join a panel of Lancaster's experts for an in-depth discussion on this rapidly evolving area of law.

  • Current state of the law on family status discrimination: What is the dominant legal framework for considering family status discrimination in Canada? What legal approach is applied to non-childcare cases, such as care of elderly parents or spouses? What is the status of New Brunswick's Bill 51, which, if passed, would amend the provincial Human Rights Act to add "family status" as a prohibited ground of discrimination? In the absence of statutory protection for family status in New Brunswick, have workplace parties negotiated collective agreement language recognizing family status as a prohibited ground of discrimination?
  • Family status protection and non-traditional families: What is "family" for the purposes of family status discrimination? Does family status discrimination apply to "non-traditional" families, such as blended families, gay and lesbian families, grandparent-headed families or groups such as migrant workers?
  • Exploring accommodation: What sorts of accommodations may be suitable in cases of family-related needs and obligations? Can employers ask about the employees' family obligations or is this an infringement of privacy? What process should be followed by employers and unions when an employee requests accommodation based on family status? How should employers and unions address family accommodation issues which conflict with seniority, scheduling, benefits or other provisions of the collective agreement?
  • Understanding the role of the employee and undue hardship: Do employees have an obligation to "self-accommodate" prior to requesting family status accommodations at work? What types of "reasonable alternative solutions" is an employee expected to pursue before seeking accommodation from his or her employer? When will an employer reach the point of undue hardship in accommodating an employee's family status needs?
  • Crafting workplace policies: What are some best practices for addressing family status protections in workplace policies? Should family status accommodation be dealt with on a case-by-case basis under general accommodation policies or should workplace parties draft a specific policy on this issue?

BREAK (with refreshments)

2:30 PM - 2:45 PM

Thursday, May 18, 2017


Registration and Breakfast 7:45 AM - 8:45 AM  
Introductory remarks by Co-Chairs 8:45 AM - 9:00 AM  


Panel 4


Fitness for Work: Ensuring a safe workplace in an era of marijuana, opioids, and other drugs

2:45 PM - 4:00 PM

Dr. Colleen O'Connell
Physiatrist and Research Chief
Stan Cassidy Centre for Rehabilitation
Patricia Merrigan
Manager, Labour Relations
Marine Atlantic
Daria Strachan
Union Counsel
Shields Hunt Duff

Panel Summary

Last April, the federal government pledged to introduce legislation in spring 2017 which would legalize marijuana for recreational purposes. This development, in conjunction with the increasing prevalence of medical marijuana and other prescription drugs across Canada, makes it crucial for employers and unions to understand the implications of marijuana, opioids and other drugs in the workplace. Employers, unions and employees all share a common interest in maintaining a safe work environment while still respecting privacy and human rights. In this session, medical and legal experts will offer their thoughts on a range of issues relating to this topic, including disclosure requirements, impairment testing, accommodative measures and workplace policies.

  • Common misperceptions: What are some of the common misperceptions surrounding the use of medical marijuana and other prescription drugs at work? Does the medicinal use of marijuana and other drugs necessarily result in impairment? What else can contribute to employee impairment in the workplace? Fatigue? Chronic pain?
  • Impairment testing: What tests are available for employers to measure actual current impairment in the workplace? What advantages does competency-based testing have over traditional drug testing? What possible privacy and/or human rights concerns are raised by impairment testing in the workplace?
  • Disclosure: In what circumstances, if any, are employees required to disclose their use of medical marijuana and other prescription drugs? Can employees be required to disclose recreational use of marijuana or other drugs?
  • Balancing accommodation and safety obligations: Does a prescription for medical marijuana or other drugs entitle an employee to be impaired at work? Does the answer to this question depend on whether the workplace or particular position is safety sensitive? What type of medical information should be requested to determine whether an employee can safely and effectively perform his or her job?
  • Confronting stigma: What negative stereotypes are often associated with the use of medical marijuana and other prescription drugs in the workplace? What best practices can employers and unions adopt to address such stigma?
  • Crafting workplace policies: What elements should be included in a workplace policy dealing with the use of prescription drugs? What about the use of recreational drugs? Should workplace policies require employees to report their use of prescription or recreational drugs during work hours? During off-duty hours? In what circumstances, if any, are zero-tolerance policies permissible?

END OF DAY ONE

4:00 PM

NETWORKING RECEPTION

4:00 PM - 5:00 PM

Friday, May 19, 2017


Breakfast 8:00 AM - 9:00 AM  


Panel 5


Rooting Out Bad Apples: Recent cases on bullying and harassment

9:00 AM - 10:15 AM

Judith Begley
Lawyer, Mediator and Workplace Investigator
Begley Landry
Alison Bird
Employer Counsel
Cox & Palmer
Ian Patey
Union Counsel
O’Dea Earle

Panel Summary

While legal definitions of harassment are explicitly set out in human rights and occupational health and safety legislation, knowing when behaviour crosses the line is not an easy task. In this session, experienced advocates will discuss the latest cases on workplace bullying/harassment, identifying the types of behaviour to which parties must respond.

  • What do recent cases say about the types of behaviour that will be found to constitute personal harassment or harassment contrary to human rights legislation, and those that will not?
  • In what circumstances will arbitrators find that off-duty or off-site conduct is prohibited harassment?
  • Do recent decisions treat cyberbullying differently than other forms of bullying and harassment?
  • What are the latest significant cases on workplace sexual harassment?
  • What special considerations should be kept in mind when conducting workplace investigations into complaints of bullying or harassment?

BREAK (with refreshments)

10:15 AM - 10:45 AM

Friday, May 19, 2017


Breakfast 8:00 AM - 9:00 AM  


Panel 6


Damages and Dignity: Remedial trends in human rights and labour law cases

10:45 AM - 12:00 PM

Douglas Ruck
Arbitrator/Mediator

Myrna Gillis
Employer Counsel
Gillis & Associates
Matthew Letson
Complainant/Union Counsel
Lawson Creamer

Panel Summary

A series of ground-breaking remedial awards have been released in human rights and labour law cases across Canada in recent months. In this session, experienced advocates will highlight emerging trends expanding the range of remedies and quantum of damages awarded to victims of harassment and discrimination. Our panelists will also offer advice on avoiding the behaviour that leads to hard-hitting damages awards.

  • Damages for injury to dignity: What are the key recent decisions in which higher-than-usual damages for injury to dignity have been awarded? Are there any common features present in these cases – either in terms of the type of conduct sanctioned, or the harms suffered by the individuals compensated – that may shed light on the damages awarded? What role, if any, does the failure to investigate employees' concerns play in cases where hard-hitting damages are awarded? What about a failure to maintain a psychologically or physically safe workplace?
  • Aggravated and punitive damages: Are aggravated and/or punitive damages awards on the rise as an arbitral and/or judicial remedy for human rights violations? What about damages for mental distress? Which recent cases have awarded these remedies?
  • Reinstatement: Will the Ontario Court of Appeal's decision in Fair v. Hamilton-Wentworth District School Board, upholding a tribunal decision to reinstate an employee nine years after termination, signal a new trend towards reinstatement at human rights tribunals? Why is reinstatement far more common in arbitration than in human rights tribunal or court proceedings?
  • Lessons for the future: What lessons emerge from recent awards? What conduct should employers avoid in order to lessen the risk of becoming the subject of a hard-hitting damages award? What proactive steps or policies should be put in place to prevent the behaviour that leads to hard-hitting awards?

NETWORKING LUNCH

12:00 PM - 1:00 PM

Friday, May 19, 2017


Breakfast 8:00 AM - 9:00 AM  


Keynote Address


Bringing Truth and Reconciliation to the Workplace

1:00 PM - 1:30 PM

Naiomi Metallic
Chancellor's Chair in Aboriginal Law and Policy and Assistant Professor, Schulich School of Law, Dalhousie University


Topics

For more than 100 years, the Canadian government forcibly removed Aboriginal children from their families and sent them to government-funded, church-run institutions called residential schools for the purpose of eradicating Aboriginal culture. The Truth and Reconciliation Commission of Canada was established to tell the truth about the injustices and deep pain experienced by Aboriginal peoples as a result of the Indian residential school system, and to educate non-Indigenous Canadians about its devastating legacy of unresolved trauma on generations of Indigenous Canadians. According to the Commission, its "focus on truth determination was intended to lay the foundation for the important question of reconciliation. Now that we know about residential schools and their legacy, what do we do about it?"

On June 2, 2015, the Commission released its final report, which includes 94 Calls to Action for promoting reconciliation between Indigenous and non-Indigenous Canadians. During this keynote presentation, professor Naiomi Metallic will focus on the Calls to Action that relate to workplaces in Canada. What responsibility do employers, unions, and employees have for working towards reconciliation? What can workplace parties do to help create a new relationship with Indigenous Canadians based on mutual understanding and respect? Professor Metallic will offer answers to these questions and provide practical suggestions for implementing those Calls to Action that impact the workplace.

Friday, May 19, 2017


Breakfast 8:00 AM - 9:00 AM  


Panel 7


Accommodating Competing Interests: Striking a principled balance between human rights, seniority, and other collective agreement claims

1:30 PM - 2:45 PM

John McEvoy
Arbitrator/Mediator; Vice-Chair, New Brunswick Labour and Employment Board; and Professor, Faculty of Law, University of New Brunswick

Geoff Breen
Employer Counsel
Cox & Palmer
Christina Kennedy
Employee Relations Officer
Newfoundland & Labrador Association of Public and Private Employees

Panel Summary

Competing rights situations, in which one party's human rights claim conflicts with another party's legally protected rights, can present a complex challenge for employers and unions. For example, how should employers and unions address an employee's request for disability or family status accommodation that conflicts with another employee's seniority rights? This session will use real-life scenarios to explore the appropriate process for assessing, handling, and resolving competing rights claims, and provide an update on recent legal decisions in this area.

  • Legal principles and framework: What are the main legal principles that should be considered when competing rights situations arise in the workplace? What type of analysis or framework should be used to address competing rights claims? Does the Ontario Human Rights Commission's framework present a workable or helpful approach in practice? Should employers have a competing rights policy in place?
  • Human rights and fundamental freedoms: What steps should be taken if a worker expresses religious beliefs or requests a religious accommodation that appears to infringe upon the human rights of other employees, such as the right to be free from sex discrimination in the workplace, or the right to be free from unwelcome religious pressure?
  • Human rights and collective agreement entitlements: How should employers and unions address an employee's request for disability or family status accommodation that conflicts with another employee's rights under the collective agreement, such as seniority rights? In what circumstances will an accommodation measure that interferes with collective agreement rights be found to constitute undue hardship?
  • Competing accommodation requests: What steps should be taken by workplace parties in cases of conflict between accommodation requests from different employees?

BREAK (with refreshments)

2:45 PM - 3:00 PM

Friday, May 19, 2017


Breakfast 8:00 AM - 9:00 AM  


Panel 8


Conduct Gone Viral: Offensive behaviour, public reaction, and workplace consequences

3:00 PM - 4:15 PM

Andrew Nielsen
Union Counsel
Pink Larkin
Dillon Trider
Employer Counsel
Wickwire Holm

Panel Summary

The ever-rising levels of social media engagement in Canada and recent cases of employee misconduct online raise a host of legal questions regarding issues such as an employer's ability to discipline or discharge employees for off-duty behaviour. In this session, leading labour and employment law experts will explain the legal principles applicable to the workplace consequences of private employee conduct that garners public attention. Questions to be addressed include:

  • Reviewing foundational principles: When can employees be disciplined or discharged for off-duty misconduct? Must the misconduct be connected to the employee's job to warrant discipline? Are different considerations applicable in unionized versus non-unionized workplaces? What type of evidence is required to establish that off-duty conduct has harmed an employer's business interests, including its reputation? Is objective proof of harm required? Are certain types of off-duty conduct, such as fraud or sexual harassment, more likely to be found to have irreparably damaged the employment relationship, justifying discharge? What mitigating factors are given significant weight by arbitrators?
  • Evaluating online posts and videos: How will decision-makers assess whether public statements made off-duty and outside the workplace, including tweets, Facebook posts, or YouTube videos, harm an employer's reputation or damage the employment relationship? Does it matter if the comments were intended to be private? Must the posts or videos be offensive to an employer's clientele or discriminatory in order to justify termination? In what circumstances can an employee be disciplined for publicly criticizing his or her employer? How far do the constitutional principles of freedom of expression and freedom of association extend in protecting online communications by union members?
  • Assessing harassment and violence: What unique considerations apply where an employee's conduct gone viral involves violence or harassment? Will the need to deter and denounce such conduct justify dismissal? Can inappropriate jokes or pranks which occur off-duty be considered workplace bullying/harassment? Where such behaviour has attracted public scrutiny, will the employer's desire to distance itself from the misconduct warrant discharge?
  • Considering criminal charges and convictions: Can employers discipline or discharge employees charged with a criminal offence on the basis that the criminal charges will adversely affect the employer's reputation or on any other basis? Can employers suspend employees pending final disposition of the charges? If suspension pending trial is found to be justified, but the employee is ultimately acquitted of criminal charges, is he or she entitled to back pay? In what circumstances can an employee be discharged for a criminal conviction related to off-duty misconduct?

CONFERENCE ENDS

4:15 PM

Keynote Speakers


Wednesday, May 17, 2017


Conducting Fair and Effective Investigations: A hands-on workshop

9:00 AM - 4:00 PM

Judith Begley
Lawyer, Mediator and Workplace Investigator
Begley Landry
Daniel Leger
Union Counsel
Pink Larkin
Krista Smith
Employer Counsel
Barteaux Durnford

Workshop Summary

Workplace investigations, whether they are investigations into complaints of harassment or into employee misconduct, require fair and impartial investigators and procedures. In this workshop, Lancaster's experts will guide you through the steps of conducting fair and comprehensive investigations, addressing issues such as searches, confidentiality protections, union representation, and the release of the investigative report. Issues to be addressed include the following:

The Legal Framework:

  • What legislation and seminal arbitration decisions establish the ground rules for workplace investigations? How does the answer differ depending on whether the investigation is a disciplinary investigation or an investigation into allegations of harassment, discrimination or violence?
  • What triggers an employer's duty to investigate misconduct? In what circumstances, if any, can an employer respond to misconduct (including harassment or violence) without conducting an investigation?

Investigation Essentials:

  • What are the essential qualities or qualifications of an investigator? When should an external investigator be retained? In cases of workplace violence and harassment can employees effectively veto an employer's choice of investigator?
  • Are employees required to cooperate with an employer's investigation?
  • What protections should be put in place to protect the employee subject to investigation?
  • What measures and procedures should be put in place to protect witnesses (and complainants) against reprisal or harassment during an investigation?
  • What types of electronic searches, such as cell phone record searches and e-mail searches, can be conducted as part of the investigation? When can employers use video surveillance as part of their investigations?
  • Do employees being interviewed during an investigation have the right to union representation? If so, what is the proper scope of that representation?

Investigation Reports:

  • Who is entitled to the investigation report, investigator's notes and other documents relied upon in the investigation? Who is entitled to access complaints and witness statements? Are complaints and witness statements privileged so that they cannot be used as evidence against the authors? Who is entitled to access these statements?
  • What role, if any, do investigator recommendations play in determining an appropriate response to misconduct? Can the employer ignore these recommendations? Modify them?
  • In what circumstances will arbitrators order investigation reports disclosed at arbitration? How far will such disclosure orders go? Will they include the investigator's notes?


CPD


Click here to find out more information regarding CPD and the hour requirements in your province.

Conference Sessions

  • Members of the Law Society of Saskatchewan should contact their Law Society regarding CPD Approval.
  • Members of the Nova Scotia Barristers Society may count this program for 10.5 Continuing Professional Development hours.
  • This program has been approved by the Law Society of New Brunswick for 10.5 Continuing Professional Development hours.
  • CPD for Members of the Law Society of Upper Canada: 10.5 Substantive Hours; 0 Professionalism Hours.

Workshops

  • Members of the Law Society of Saskatchewan should contact their Law Society regarding CPD Approval.
  • Members of the Nova Scotia Barristers Society may count this program for 5.5 Continuing Professional Development hours.
  • This program has been approved by the Law Society of New Brunswick for 5.5 Continuing Professional Development hours.
  • CPD for Members of the Law Society of Upper Canada: 5.5 Substantive Hours; 0 Professionalism Hours.