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Labour Arbitration and Policy Conference

November 22 - 23, 2017
Hyatt Regency Vancouver


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Wednesday, November 22, 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: Major caselaw and legislative update

9:00 AM - 11:00 AM

Sebastien Anderson
Union Counsel
Labour Rights Law Office
Greg Heywood
Employer Counsel
Roper Greyell
Diane MacDonald
General Counsel
BC Teachers' Federation
Shona Moore
Union Counsel
Moore Edgar Lyster
Keith Murray
Employer Counsel
Mathews, Dinsdale & Clark
Joseph Shaw
Employer Counsel
Harris & Company
Andrea Zappavigna
Union Counsel
HHBG Lawyers
Andrea Zwack
Employer Counsel
Gall Legge Grant Zwack

Panel Summary

In this session, top advocates will review the year's most important cases and legislative developments, including the Supreme Court of Canada's decision in Stewart v. Elk Valley Coal Corporation regarding disability-related misconduct. Additional topics will be added in the weeks leading up to the conference to ensure coverage of the latest and most important developments.

BREAK (with refreshments)

11:00 AM - 11:20 AM

Wednesday, November 22, 2017


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


Keynote Address


Responding to Crisis Situations in the Workplace

11:20 AM - 12:00 PM

Mike Condra
Adjunct Assistant Professor, Department of Psychology
Queen's University

Topics

Crisis situations (such as highly-disturbed behaviour, apparent suicide risk, or risk of violence) can be a source of significant disruption and stress in the workplace. As well, these situations can leave lingering distress, safety concerns, and fear among staff who have been involved, even peripherally. In this keynote address, a leading mental health expert will provide an overview of how employers and unions can respond to crisis situations in a way that ensures the safety and mental health of all employees.

NETWORKING LUNCH

12:00 PM - 12:45 PM

Wednesday, November 22, 2017


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


Panel 2


Reading the Signs in Disability Cases: When does the law impose a "duty to inquire"?

12:45 PM - 1:45 PM

Mike Condra
Adjunct Assistant Professor, Department of Psychology
Queen's University
Jennifer Nuttall
Director, Employee Relations & OHS, Human Resources
BC Liquor Distribution Branch
Sonya Sabet-Rasekh
Union Counsel
McGrady & Company

Panel Summary

Arbitrators and other adjudicators have consistently held that an employer has a "duty to inquire" into an employee's health and possible need for accommodation if an employee displays unusual behaviour that may be indicative of a mental health problem. In some cases a union may also need to inquire into a member's health in order to meet its duty of fair representation. In this session experienced lawyers and a mental health expert will describe the behaviours that may trigger a duty to inquire and provide practical tips on how employers and unions can broach the subject of mental health with workers. Specific issues to be addressed include:

  • How prevalent are mental health conditions in the workplace? What are the signs and symptoms of mental illness that are most likely to manifest themselves in the workplace?
  • In what situations have adjudicators found that an employer had a duty to inquire into an employee's mental health? What factors/signs should employers look for in deciding whether to inquire about mental health issues?
  • What is the extent of the employer's duty to inquire into an employee's health if it suspects that a disability may be impacting his/her attendance? At what stage in the process should such an inquiry be made, and by whom?
  • When will a union need to inquire into an employee's mental health in order to meet its duty of fair representation?
  • When questioning an employee regarding his or her mental health, what constitutes appropriate questioning and how is such questioning to be distinguished from overly intrusive or discriminatory inquiries? What are some practical tips and best practices for raising the potential need for accommodation with an employee? How should employers and unions deal with the issue of denial in the face of evidence that a disability in fact exists?
  • How does the Supreme Court of Canada's decision in Stewart v. Elk Valley Coal alter the duty to inquire? Are employees who engage in misconduct related to a disability now prevented from raising discrimination and accommodation arguments at arbitration if they did not notify the employer before the misconduct occurred? How do mental health disorders affect an employee's choice or control over conduct in the workplace?

Wednesday, November 22, 2017


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


Panel 3


Overcoming Delay: Crafting an effective expedited arbitration process

1:50 PM - 2:50 PM

Wendy Lund
Labour Relations Specialist
Canada Post
Erin Collins
Grievance Officer
Canadian Union of Postal Workers, Vancouver Local 846

Panel Summary

Originally, labour arbitration was intended to be a mechanism through which disputes could be resolved, on their merits, in a timely and cost-effective manner. However, in recent years, the increasingly litigious nature and expanded scope of labour arbitration have contributed to high costs, long delays, and growing frustration among workplace parties. In response, some unions and employers have opted to design their own procedure for expedited grievance arbitration. In this panel, experts will discuss this and other strategies for tackling delay within labour arbitration, including:

  • Weighing the options: Why have some workplace parties chosen to negotiate an expedited arbitration process to resolve disputes arising under their collective agreement? How do expedited arbitration models seek to overcome the problems associated with conventional labour arbitration? Have they been effective?
  • Making the grievance process more effective: How can parties structure the grievance process to support the resolution of disputes before they reach arbitration? What strategies and best practices should workplace parties adopt to maximize the chances of resolving an issue within the grievance procedure? What types of alternative dispute resolution mechanisms have parties used successfully as part of this process?
  • Developing an expedited arbitration process: What are some of the options workplaces parties have negotiated for expedited arbitration? Under what circumstances should an expedited arbitration process be triggered? Should different types of grievances (e.g. policy disputes, disciplinary matters, human rights complaints) be subject to different rules under an expedited model of arbitration? How should arbitrators be selected within this process? Should decisions reached under an expedited arbitration process have precedential value for the parties? What are the advantages of requiring an agreed statement of facts, will-say statements, or a joint statement of issues at the outset? Why do some models of expedited arbitration place limits on written submissions, the use of counsel, and caselaw relied upon at arbitration?
  • Responding to delays in arbitration: What strategies can parties adopt in response to delays within conventional labour arbitration? What provisions exist under the Canada Labour Code and British Columbia's Labour Relations Code for accelerating the arbitration process? In advance of arbitration dates, what can management and union representatives do to ensure an efficient hearing process? How should parties apply the principle of "proportionality" to arbitration?

BREAK (with refreshments)

2:50 PM - 3:10 PM

Wednesday, November 22, 2017


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


Panel 4


Family Status Update: Practical solutions for childcare and eldercare problems

3:10 PM - 4:15 PM

Jennifer Berdahl
Professor of Leadership Studies,
Gender and Diversity

University of British Columbia
Kaity Cooper
Union Counsel
Hospital Employees' Union
Donovan Plomp
Employer Counsel
McCarthy Tétrault

Panel Summary

By 2031, Statistics Canada estimates that nearly one in four Canadians will be over 65. This demographic shift, in conjunction with childcare responsibilities, requires many working-age Canadians to take on a dual role of employee and caregiver. As a result, protection against family status discrimination has become a crucial right for Canadian workers, allowing for a balance of work and family care obligations. In this panel, seasoned professionals will explore the duty to accommodate family care obligations and provide an update on this evolving area of law, including:

  • Defining family status: What is the meaning of "family" for the purposes of family status discrimination? Does family status discrimination apply to "non-traditional" families, such as blended families, grandparent-headed families, or groups such as migrant workers?
  • Reviewing the current state of the law: What legal framework is applied in British Columbia and other jurisdictions regarding family status discrimination? Can the restrictive approach of the B.C. Court of Appeal in Campbell River be reconciled with the broader approaches adopted by tribunals and courts in other Canadian jurisdictions?
  • Exploring accommodation: What process should be followed by employers and unions when an employee requests, or appears to require, accommodation based on family status? Do employees have an obligation to find "reasonable alternative solutions" before seeking accommodation from their employer? If so, what is considered reasonable? What statutory leaves of absence are available to employees to accommodate periods of family illness or emergency? What creative solutions have workplace parties implemented to accommodate family status obligations?
  • Reaching undue hardship: When will an employer reach the point of undue hardship in accommodating an employee's family status needs? Under what circumstances will interference with seniority, scheduling, benefits, or other provisions of the collective agreement constitute undue hardship?
  • Crafting policies: What are some best practices for addressing family status protections in workplace policies? How should workplace policies provide for the adjustment of family status accommodation over time?

END OF DAY ONE

4:15 PM

NETWORKING RECEPTION

4:15 PM - 5:15 PM

Thursday, November 23, 2017


Breakfast 8:00 AM - 9:00 AM  


Panel 5


Spotlight on Workplace Investigations: Top recent cases

9:00 AM - 10:15 AM

Paula Butler
Lawyer and Workplace Investigator
Butler Workplace Solutions
Rick Edgar
Union Counsel
Moore Edgar Lyster
Jennifer Wiegele
Employer Counsel
Miller Titerle

Panel Summary

Following a complaint or incident of misconduct in the workplace, conducting a fair and effective investigation is of vital importance. Common mistakes committed in the investigation process can result in irreparable harm and significant liability for workplace parties. In this session, leading counsel will review top recent workplace investigation caselaw and discuss best practices for initiating an investigation, appointing an investigator, and ensuring procedural fairness throughout the process. Topics to be addressed include:

  • Conducting fair and adequate investigations: What lessons can be drawn from recent cases about an employer’s duty to investigate misconduct and the essential elements of fair and adequate investigations? What do recent cases say about 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? What steps must a union take in investigating employee grievances in order to satisfy its duty of fair representation?
  • Permissible searches and surveillance: 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?
  • Disability-related misconduct: Does an employer have an obligation to investigate whether disability played a role in an employee's misconduct prior to imposing discipline?
  • Impact of honesty: How will an employee’s dishonesty during an investigation impact discipline and/or reinstatement?
  • Reprisal: In what circumstances have employer investigations been found to constitute reprisal? When will termination of an employee following an investigation constitute retaliation?
  • Disclosing investigation reports: Under what circumstances will adjudicators order that investigation reports be disclosed during litigation?
  • Liability for failure to investigate: What level of damages do recent cases award for an employer’s failure to properly investigate human rights allegations? Does the failure to investigate employee’s concerns play a role in cases where higher than usual damages have been awarded?

BREAK (with refreshments)

10:15 AM - 10:45 AM

Thursday, November 23, 2017


Breakfast 8:00 AM - 9:00 AM  


Panel 6


Trends and Turf Wars: Rising damage awards and choice of forum issues

10:45 AM - 12:00 PM

Craig Bavis
Union Counsel
Victory Square Law Office
James D. Kondopulos
Employer Counsel
Roper Greyell

Panel Summary

The amount of damages adjudicators are awarding for violations of workplace rights appears to be rising across Canada, especially in cases involving human rights violations and breaches of the duty to act in good faith. At the same time questions have arisen regarding the jurisdiction of arbitrators and courts to award damages for mental distress resulting from workplace events, given the bar on lawsuits in workers' compensation legislation. In this session, experienced advocates will highlight emerging remedial trends, explain the varying jurisdictions of courts, tribunals and arbitrators, and offer guidance on preventing behaviour that results in significant damage awards.

Reinstatement and damages in lieu:

  • Are awards of damages in lieu of reinstatement becoming more common at arbitration? What is the most appropriate method of calculating the amount of damages to compensate an employee for loss of unionized employment?
  • Following the Supreme Court of Canada's decision in Wilson v. Atomic Energy of Canada Limited, finding that non-unionized employees in federally regulated industries cannot be dismissed without cause, and 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, will reinstatement become more common in cases involving non-unionized employees?

Damages for injury to dignity:

  • Are there common features – either in terms of the type of conduct sanctioned or the harms suffered – that distinguish cases in which abnormally high damages for injury to dignity have been awarded? Or are such cases simply the vanguard of a general trend towards higher injury to dignity damage awards?
  • Are human rights tribunals influenced by the large injury to dignity damage awards ordered by Ontario courts, which have jurisdiction to award human rights damages in wrongful dismissal cases?
  • Are arbitrators awarding damages for injury to dignity that are consistent with those awarded by human rights tribunals?

Damages for mental distress, aggravated damages, and punitive damages:

  • What trends can be discerned from recent decisions awarding aggravated and mental distress damages? Is some form of offensive or high-handed conduct a necessary prerequisite to an award of aggravated or mental distress damages? Is a diagnosis of a recognized mental disorder required? In what circumstances will a claim for damages for mental distress be barred by workers" compensation legislation?
  • What type of evidence is required to establish "mental distress" that warrants compensation?
  • In what circumstances will courts and arbitrators award punitive damages? Are arbitrators awarding punitive damages that are consistent with awards of punitive damages made by courts?

Review of arbitral awards:

  • When should parties seek review of an arbitral decision in the B.C. Court of Appeal, as opposed to the Labour Relations Board, on the basis that the decision involves a "matter or issue of general law" rather than being "inconsistent with the principles expressed or implied" in the Labour Relations Code?

NETWORKING LUNCH

12:00 PM - 12:45 PM

Thursday, November 23, 2017


Breakfast 8:00 AM - 9:00 AM  


Panel 7


Lunch and Working Session with the Arbitrators: Discussing true-to-life cases with the adjudicators

12:45 PM - 1:55 PM

James Dorsey
Arbitrator/Mediator

Sylvia Skratek
Arbitrator/Mediator


Panel Summary

In this session attendees will gain insight into how arbitrators approach cases involving two perennially vexing issues: (1) estoppel, the legal doctrine that is invoked to hold a party to its past practice or promises despite its rights under the collective agreement, and (2) employee social media conduct that goes viral. In small groups led by arbitrators, attendees will work through realistic scenarios and learn to identify the evidentiary and substantive issues arbitrators consider key to deciding these types of cases.

Thursday, November 23, 2017


Breakfast 8:00 AM - 9:00 AM  


Panel 8


High Ho, It's Off to Work We Go: Responding to the challenges of legal drug use

2:00 PM - 3:15 PM

M-J Milloy
Research Scientist, BC Centre
on Substance Use; Assistant
Professor, Department of Medicine, University of British Columbia


Theodore Arsenault
Union Counsel
Arsenault Aaron               
Carolyn MacEachern
Employer Counsel
Young Anderson

Panel Summary

In spring 2017, the federal government introduced Bill C-45 to legalize and regulate recreational cannabis use. As a result of this legislative development, in conjunction with the increasing prevalence of medical cannabis and prescription drugs across Canada, many unions and employers are reassessing their approach to cannabis and other legal drugs in the workplace. In this session, medical and legal specialists will offer their thoughts on a range of issues relating to the intersection of work and legal drugs, including disclosure requirements, accommodative measures, drug testing, and benefit coverage.

  • The legal framework: What is the current framework in Canada for regulating medicinal cannabis use? How do Bills C-45 and C-46 propose to legalize and regulate the recreational use of cannabis?
  • The health effects: In what circumstances might a healthcare practitioner authorize medicinal cannabis for a patient? What are the potential physical and mental health effects of cannabis consumption? Does the drug have addictive properties? How, if at all, might an individual's off-duty cannabis use impact their work performance? Does the medicinal use of cannabis or prescription drugs necessarily result in impairment at work?
  • Disclosure: In what circumstances, if any, are employees required to disclose their use of medical cannabis or prescription drugs? What about recreational cannabis use? Following the Supreme Court of Canada's decision in Elk Valley, can employees be required to disclose substance dependence or addiction prior to a work-related incident?
  • Balancing accommodation and safety obligations: What is the extent of an employer's duty to accommodate an employee’s medical cannabis or prescription drug use? Does medical cannabis authorization or a prescription for other drugs entitle an employee to be impaired at work? What type of medical information should be requested to determine whether an employee can safely and effectively perform his or her job? Why is testing for cannabis impairment currently considered more complex than testing for alcohol impairment? What are some best practices for managing safety risks when substance abuse is suspected? Is it discriminatory for employee benefit plans to refuse coverage for medical cannabis?
  • Drafting workplace policies: What elements should be included in a workplace policy dealing with the use of medicinal cannabis or prescription drugs? What about the use of legal recreational drugs? In what circumstances, if any, are zero-tolerance policies permissible?

BREAK (with refreshments)

3:15 PM - 3:30 PM

Thursday, November 23, 2017


Breakfast 8:00 AM - 9:00 AM  


Panel 9


Lightning Law: Arbitrators give quick rulings on real cases

3:30 PM - 4:30 PM

Nicholas Glass
Arbitrator/Mediator

John McConchie
Arbitrator/Mediator


Panel Summary

In labour arbitration, parties who understand the reasoning behind arbitral decision-making have a critical advantage. In this session, attendees will have the unique opportunity to hear a panel of seasoned arbitrators discuss key issues and provide rapid rulings on actual cases relating to member-on-member harassment, attendance management, disability-related misconduct, and fraudulent sick leave.

CONFERENCE ENDS

4:30 PM

Keynote Speakers


Tuesday, November 21, 2017


Breakfast 8:00 AM - 9:00 AM  

Recognizing and Accommodating Employees with Mental Health Disabilities

9:00 AM - 4:15 PM

Megan Ashbury
Coordinator of Advocacy
British Columbia Government and Service Employees' Union (BCGEU)
Mike Condra
Adjunct Assistant Professor, Department of Psychology
Queen's University
Amanda Rogers
Union Counsel
Amanda Rogers Law Corporation
Frances Kerstiens
Disability Advisor
District of West Vancouver
Marino Sveinson
Employer Counsel
Norton Rose Fulbright

Workshop Summary

Mental illness is a leading cause of disability in Canada, yet many people living with mental illness want to continue working and are able to do so with appropriate support and accommodation. Participants in this workshop will learn to recognize the signs of mental health problems, respond appropriately to mental health emergencies and fulfil the legal duty to accommodate such employees so that they can engage in meaningful and productive work. Participants will work through realistic scenarios with the guidance of experienced lawyers and a mental health expert and will develop the skills and knowledge necessary to:

  • Recognize the signs that someone in the workplace is developing a mental health problem
  • Be aware of the impact of the most common mental health problems on workplace behaviour
  • Identify common indicators of suicide risk
  • Use supportive communication skills to discuss mental health issues in the workplace
  • Understand and combat stigma
  • Obtain necessary medical information and plan effective workplace accommodations

VIEW THE WORKSHOP AGENDA



Tuesday, November 21, 2017


Breakfast 8:00 AM - 9:00 AM  

Update on Legal Issues in Bargaining: An interactive session

9:00 AM - 4:00 PM

Jacquie de Aguayo
Acting Chair
Labour Relations Board and Employment Standards Tribunal
Allan Black
Union Counsel
Black Gropper
Gavin Hume
Employer Counsel
Harris & Company

Workshop Summary

In order to be successful in collective bargaining, it is essential for workplace parties to understand the latest caselaw on issues such as bad faith bargaining, the statutory freeze period, disclosure requirements, and unfair labour practices. During this comprehensive workshop, experienced counsel and negotiators will discuss recent caselaw on issues critical to collective bargaining and provide tips and best practices for addressing these concerns during negotiations. Working through interactive exercises and realistic scenarios, workshop participants will gain the skills and knowledge to:

  • Appreciate and fulfill the duty to bargain in good faith
  • Request and provide appropriate disclosure during collective bargaining
  • Adhere to statutory freeze requirements
  • Recognize and avoid unfair labour practices
  • Understand the limits placed on management and union communications over the course of bargaining
  • Satisfy the duty of fair representation in the context of collective bargaining

VIEW THE WORKSHOP AGENDA



Friday, November 24, 2017


Breakfast 8:00 AM - 9:00 AM  

Smart Bargaining: Optimizing outcomes through advanced research methods

9:00 AM - 4:00 PM

Katie Fitzmaurice
Advisor, Information & Advisory Services, Regional Employers Services
Metro Vancouver
Jacquie Griffiths
Director, Regional Employers Services
Metro Vancouver
Jordana Feist
Research Representative
Canadian Union of Public Employees (CUPE)
Bill Pegler
National Representative
Canadian Union of Public Employees (CUPE)

Workshop Summary

Good negotiators come to the table aware of all the data and arguments that support their demands as well as the data and arguments that may be used to resist their demands. Given the broad range of potential subjects of bargaining as well as the importance of external factors, such as generally prevailing economic and/or political conditions, negotiating teams may feel such comprehensive preparation is unmanageable and jump into negotiations without adequate awareness of various factors affecting bargaining. In this session, Lancaster’s experts will identify key external challenges to bargaining that are often overlooked and introduce participants to sources of information and research methods that will allow them to fully prepare for bargaining.

Participants will learn to:

  • Assemble and analyze data regarding internal and external factors that influence bargaining
  • Determine the true priorities of bargaining unit members/employees and how both unions and employers can leverage their knowledge of these priorities
  • Anticipate and prepare responses to the other side's demands
  • Obtain information necessary for costing proposals
  • Find relevant and reliable information on general economic conditions and factor this information into their bargaining strategy
  • Identify external political or social factors that should be taken into account
  • Locate collective agreement language, settlement agreements and awards that will bolster their own demands (including identifying appropriate comparator organizations or enterprises)

Workshop attendees will receive free trial access to Lancaster House's Contract Clauses Online, Canada's leading text on collective agreement language, with authoritative commentary and actual contract clauses from current collective agreements negotiated across Canada.

VIEW THE WORKSHOP AGENDA



Friday, November 24, 2017


Breakfast 8:00 AM - 9:00 AM  

Conducting Fair and Effective Disciplinary Investigations: A hands-on workshop

9:00 AM - 4:00 PM

Jason Copping
Principal
Copping Consulting
Stephanie Drake
Union Counsel
Victory Square Law Office
Heather Hettiarachchi
Employer Counsel
Integritas Workplace Law Corporation

Workshop Summary

Allegations or incidents of misconduct can have a serious impact on workplace culture and morale. In such instances, it is essential that an objective, balanced, and thorough disciplinary investigation is conducted. Employers, employees, and unions all have an important role in the investigative process to ensure that it is impartial and effective. In this workshop, experienced investigators and legal counsel will review tips and strategies for conducting fair and comprehensive disciplinary investigations. Working through interactive exercises and realistic scenarios, workshop participants will gain the skills and knowledge to:

  • Understand when the duty to investigate is triggered
  • Develop a fair and effective process for investigating allegations or incidents of misconduct
  • Gather reliable evidence and witness statements
  • Appreciate the role of the union and employees within a disciplinary investigation
  • Draft and respond appropriately to workplace investigation reports

VIEW THE WORKSHOP AGENDA



CPD


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