Home|Conferences & Workshops|36th Annual Labour Arbitration and Policy Conference - Calgary


36th Annual Labour Arbitration and Policy Conference

June 7 - 8, 2018
The Westin Calgary


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SPECIAL EARLY BIRD RATE

Register and pay by Friday, March 2, 2018, to save $200 off each regular conference or workshop price!


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CPHR Alberta Continuing Professional Development

CPHR Alberta Continuing Professional Development

CPD hours for this event can be logged online, through your CPHR Alberta member profile.

In association with:
 

Thursday, June 7, 2018


Registration and Evening Cocktail Reception
(hot and cold hors d'oeuvres will be served)
5:00 PM - 7:00 PM  


Evening Plenary


How to Tell Who's Telling the Truth: How do arbitrators assess credibility?

7:00 PM - 9:00 PM

Panelists

James Casey
Arbitrator/Mediator

Anita Christine Knowlton
Arbitrator/Mediator (retired); Clinical Professor of Law & Founding Director of the Center for Negotiation and Dispute Resolution University of California, Hastings College of the Law (retired)

Anne Wallace
Arbitrator/Mediator

Michael Woodworth
Professor, Department of
Psychology, Irving K. Barber
School of Arts and Sciences,
University of British Columbia
– Okanagan



Panel Summary

Assessing credibility is a fundamental part of an adjudicator's work, often determining the outcome of a case. However, this task cannot be reduced to an exact science and the many subjective factors that go into weighing credibility – including demeanour, consistency in testimony, and appearance of bias – mean that triers of fact can reach different conclusions about witness credibility. At the same time, there are strategies for bringing rigour to the process of credibility assessment, with a view to minimizing reliance on stereotypes. In this session, prominent arbitrators and a seasoned psychologist will provide guidance on assessing credibility, discussing problematic areas in eyewitness evidence, as well as various techniques and tools available to avoid the pitfalls in witness credibility assessment.

FIELD LAW SPONSORED ANNUAL KICK-OFF RECEPTION

9:00 PM

Friday, June 8, 2018


Breakfast 7:30 AM - 8:15 AM  
Introductory remarks by Co-Chairs 8:15 AM - 8:30 AM  


Plenary 1


Alberta's Revamped Labour Relations Code: What's in store for arbitration?

8:30 AM - 9:40 AM

Panelists

William Johnson
Chair
Alberta Labour Relations Board
Hugh McPhail
Employer Counsel
McLennan Ross
Kara O'Halloran
Union Counsel
Chivers Carpenter

Panel Summary

In June 2017, Bill 17, the Fair and Family-friendly Workplaces Act, made the most sweeping changes to Alberta’s Labour Relations Code since the 1980s. In this session, leading union and management lawyers will explain how these changes have affected labour arbitration in the year since they were enacted and provide insight into how arbitration in the province will continue to change in response to the new legislative environment in the months and years ahead. Specific issues to be addressed include:

The marshalling provisions:

  • What use has been made of the new marshalling provisions, which are designed to avoid duplication, inefficiency or inconsistency in proceedings?

Time limits:

  • How have arbitrators made use of their new power to provide relief against time limit violations? What can the experience in Saskatchewan, where arbitrators have had this power for some time, tell us about how the use of this power may develop?

Labour board review of arbitration decisions:

  • How has the labour board exercised its new power to review labour arbitration decisions?
  • Is this new procedure for review increasing the number of challenges to labour arbitration decisions? Are review proceedings less complex and more expedient now that they have been taken away from the courts?

Further changes:

  • What additional changes need to be made to the Labour Relations Code?
  • What features differentiate Alberta’s Code from other jurisdictions across Canada?

BREAK (with refreshments)

9:40 AM - 10:00 AM

Friday, June 8, 2018


Breakfast 7:30 AM - 8:15 AM  
Introductory remarks by Co-Chairs 8:15 AM - 8:30 AM  


Plenary 2


From the Coal Mines to the Courts: Exploring Elk Valley and other recent rulings

10:00 AM - 11:10 AM

Panelists

Phyllis Smith
Arbitrator/Mediator

Dwayne Chomyn
Employer Counsel
Neuman Thompson
Patrick Nugent
Union Counsel
Nugent Law Office

Panel Summary

When the Supreme Court speaks, lower courts listen and the law changes. In this session, leading counsel will cover the most important recent developments in the Supreme Court of Canada, including the Court’s decisions in Stewart v. Elk Valley Coal Corporation, which updates the law relating to disability-related misconduct, and Association of Justice Counsel v. Canada, which clarifies the proper approach to determining whether a policy that affects employees is a reasonable exercise of management rights. Other recent court, arbitration, and tribunal decisions that change or clarify the law of the workplace will also be discussed, and important legislative changes will be identified. Final selection of cases for this session will take place a few weeks before the conference to ensure up-to-date coverage of major decisions.

CONCURRENT MORNING SESSIONS

11:20 AM

NETWORKING LUNCH

12:30 PM - 1:50 PM

*Choose two concurrent sessions when you register for the conference

Concurrent Sessions (am & pm) - Friday, June 8, 2018


Sexting, Texting and Dissecting: What's admissible in a digital world?

Panelists

Martin Felsky
Vice-President, Electronic Discovery and Information Governance, Fraud Investigation & Dispute Services, Ernst & Young

Clayton Cook
Union Counsel
McGown Cook
Anna Maria Moscardelli
Employer Counsel
Neuman Thompson

Morning Sessions — 11:20 a.m. - 12:30 p.m.
Afternoon Sessions — 1:50 p.m. - 3:00 p.m.

Panel Summary

We live in a world largely defined by digital communications, “smart” devices, and social media, including Twitter, Facebook and Instagram. Most employers, unions and employees have a very limited understanding of how digital information is created, stored, and accessed. In this session, specialists will dissect the law applicable to obtaining and accessing digital information relevant to workplace disputes, paying close attention to evidentiary issues that may arise at arbitration. Specific issues to be addressed include:

  • How, if at all, will the scope of employees’ reasonable expectations of privacy be affected by the Supreme Court of Canada’s recent decisions in R. v. Jones and R. v. Marakah, in which the Court recognized the accused’s reasonable expectation of privacy in text messages that police obtained from the recipient of the messages (rather than from the accused who sent the messages)?
  • How have recent decisions defined the scope of an employee’s reasonable expectation of privacy in various types of digital activity, including emails, text messages, and social media posts? Do employees have a greater expectation of privacy when communicating with union representatives, lawyers, physicians or family members, even if employer technology is used for such communications?
  • What unique considerations apply to preserving, understanding and authenticating digital evidence? What are the risks that information gathered by audits or continuous monitoring of computers will be inaccurate or interpreted incorrectly? What is meta-data? How important is it to gather meta-data associated with digital documents? How can the risks of misinterpreting meta-data be minimized?
  • At arbitration, should parties be permitted to rely on print-outs of inherently digital information such as social media posts and text messages? Are there more sophisticated approaches to digital evidence, i.e. procedures for parties to exchange and rely upon the actual digital information rather than print-outs? If so, should parties be required to use these procedures as they provide the best available evidence?
  • How can workplace parties deal with digital data that is not within the control of the employer – for example, blogs, Twitter, Facebook, personal websites, smart-phones, etc.? What about digital data that is not within the control of the employer, the employee or the union (i.e. the digital data held by telecommunication companies/internet service providers, social media companies, etc.)?

 

Egg Timer Discussion: Leading experts focus on key issues

Panelists

TBA
Speakers TBA


Morning Sessions — 11:20 a.m. - 12:30 p.m.
Afternoon Sessions — 1:50 p.m. - 3:00 p.m.

Panel Summary

In this session, expert panelists will quickly survey a range of current and critical topics affecting the workplace, such as Indigenous issues and sexual harassment in the post-Weinstein era. Speakers will be announced closer to the date of the conference.

 

This Job Makes Me Sick: What to do when the workplace contributes to disability

Panelists

Dr. Perry Sirota
Clinical and Forensic Psychologist

Dan Bokenfohr
Employer Counsel
McLennan Ross
Leanne Chahley
Union Counsel
Blair Chahley

Morning Sessions — 11:20 a.m. - 12:30 p.m.
Afternoon Sessions — 1:50 p.m. - 3:00 p.m.

Panel Summary

Pressures such as demanding workloads and interpersonal conflicts can contribute to mental conditions such as anxiety and depression and cause physical symptoms such as nausea, hypertension, and insomnia. However, it can be difficult to differentiate between ordinary stress and a medical condition that attracts legal protection. Does the duty to accommodate arise only in cases where there is a medical diagnosis? What measures can be put in place to help reduce stress, anxiety and depression in the workplace? How should an employer respond when an employee claims that bullying, harassing or threatening behaviour has resulted in stress?

This session will examine issues that arise when the workplace contributes to disability, including:

  • What are some of the symptoms of stress, anxiety and depression, and how do they impact on behaviour in the workplace?
  • How do you distinguish between an employee struggling with normal job-related stress and an employee with a disability requiring accommodation?
  • What measures should an employer and union consider in order to accommodate an employee with a disability related to stress, anxiety or depression? What types of measures would constitute undue hardship? Would changing an employee’s supervisor amount to undue hardship where the supervisor is a source of stress for an employee?

 

Tips on Arbitration Practice: Experts field the crucial questions

Panelists

Tom Hesse
Executive Director of Labour Relations
United Food and Commercial Workers Canada (UFCW) 401
Leah Schatz
Employer Counsel
MLT Aikins

Morning Sessions — 11:20 a.m. - 12:30 p.m.
Afternoon Sessions — 1:50 p.m. - 3:00 p.m.

Panel Summary

Excelling at advocacy requires more than knowing the facts and understanding the law – it requires skill and know-how gleaned from years of experience. When should you settle and when should you arbitrate? Can you be truly candid in mediation-arbitration? In this interactive session, seasoned counsel will provide critical insights into arbitration practice and process, and attendees will have an opportunity to have their key questions answered. Issues to be addressed include:

  • How should you decide whether to proceed to arbitration or not in any given case? Who calls the shots?
  • How do you tell your principal or the grievor that the case is likely a loser and that the grievance should be withdrawn or settled?
  • How should unions handle the threat of a duty of fair representation (DFR) complaint? When, if ever, is it better to go to arbitration knowing you will lose than to fight a DFR?
  • What is the process of choosing an arbitrator? What should you look for in selecting one?
  • Does the amount of time it takes to get from a grievance filing to an arbitration hearing bother you, and if so, what can be done to expedite the process?
  • What steps can the client/grievor take to help prepare for an arbitration hearing?
  • What are the most difficult types of cases to take to arbitration?
  • Are you comfortable when the arbitrator wants to attempt to mediate a settlement? Can you be truly candid with the arbitrator knowing that you will have to go to arbitration if the mediation doesn’t result in a settlement?

 

Friday, June 8, 2018


Breakfast 7:30 AM - 8:15 AM  
Introductory remarks by Co-Chairs 8:15 AM - 8:30 AM  


Plenary 3


Sober Second Thought: Experts debate the future of workplace drug testing

3:15 PM - 4:30 PM

Panelists

Tom Hodges
Arbitrator/Mediator

Loretta Bouwmeester
Employer Counsel
Mathews, Dinsdale & Clark
Dan Scott
Union Counsel
Seveny Scott

Panel Summary

Court decisions dealing with workplace drug testing have been big news recently. In Alberta, the ongoing saga at Suncor has resulted in a controversial court of appeal decision that has been appealed to the Supreme Court of Canada and a decision from the Court of Queen’s Bench enjoining random drug testing at Suncor until a new arbitrator reaches a decision on whether such testing would be reasonable. Nationally, the legalization of recreational marijuana, and the Supreme Court of Canada’s decision to uphold the dismissal of an employee for failing to disclose his drug addiction, have led to a vigorous renewal of the contentious debate over whether drug testing is necessary to ensure workplace safety. In this session, a prominent arbitrator and leading labour lawyers will debate the pros and cons of workplace drug testing and the future of the law in this area, addressing issues such as:

  • After the Alberta Court of Appeal’s September 2017 decision in Suncor, which held that evidence of a general problem with substance abuse in the workplace could justify random drug testing, is it now easier for employers in Alberta to justify random drug testing? Is the law in this area converging with or diverging from the law in the rest of Canada?
  • Why did the Alberta Court of Queen’s Bench in Unifor, Local 707A v. Suncor Energy Inc., and the Ontario Superior Court in Amalgamated Transit Union, Local 113 v. Toronto Transit Commission reach opposite conclusions as to whether the harm done to employees by random drug testing is irreparable? What, if anything, do these competing decisions suggest about the development of the law in this area?
  • When is the Supreme Court of Canada likely to provide guidance on the permissibility of random drug testing in the workplace? Will the Supreme Court err on the side of safety or privacy? How will the legalization of recreational cannabis influence its decision?

CONFERENCE ENDS

4:30 PM

Keynote Speakers


Thursday, June 7, 2018



Winning Cases at Grievance Arbitration: Essential guidance for new advocates

9:00 AM - 4:00 PM

Workshop Leaders

Cheryl Yingst Bartel
Arbitrator/Mediator

John Carpenter
Union Counsel
Chivers Carpenter
Thomas Gollan
Labour Relations Specialist
Canada Post

Workshop Summary

This workshop will provide participants with the knowledge and skillset required to thoroughly prepare and effectively conduct a grievance arbitration case. A seasoned arbitrator and top union and employer counsel will lead participants in exploring best practices and developing strategies relating to grievance arbitration advocacy. Participants will also have the opportunity to hone their advocacy skills by working through simulation exercises in small groups, while receiving invaluable guidance and feedback from workshop leaders.

Participants will practice the following skills:

  • Identifying the key issues, strengths and weaknesses of a case
  • Making persuasive opening and closing statements
  • Preparing, examining and cross-examining witnesses
  • Effectively gathering and presenting evidence and caselaw

VIEW THE WORKSHOP AGENDA



Thursday, June 7, 2018



Discipline Versus Accommodation: A roadmap to dealing with disability-related misconduct

9:00 AM - 4:00 PM

Workshop Leaders

Roger Gunn
Arbitrator/Mediator

Kelli Lemon
Union Counsel
Seveny Scott
Mike Vos
Employer Counsel
Mathews, Dinsdale & Clark

Workshop Summary

While it can be difficult for workplace parties to identify and implement suitable accommodations for a disabled employee at the best of times, the issue becomes even more challenging when the disability contributes to misconduct. Should an employee with a substance use disorder be disciplined following a workplace incident, or will accommodations be required? What if an employee’s psychological condition causes disruption in the workplace, or the employee threatens or harasses others? How can employers and unions address the employee’s behaviour while at the same time meeting their obligations to others who are entitled to a safe workplace? This interactive workshop will explore a range of legal issues in this area and provide practical guidance to employer and union representatives who must respond to disability-related misconduct. Special attention will be paid to the Supreme Court of Canada’s recent decision in the Elk Valley case and what it means for the treatment of disability-related misconduct in Canadian workplaces.

Work through realistic scenarios with the guidance of seasoned experts and gain the skills and knowledge necessary to:

  • Recognize behaviours or warning signs that will give rise to the duty to inquire
  • Identify suitable accommodations for disabilities that might give rise to misconduct
  • Determine whether an accommodative measure constitutes an undue hardship
  • Evaluate the role of last chance agreements in establishing undue hardship
  • Understand how to apply the hybrid approach in order to differentiate between culpable and non-culpable conduct

VIEW THE WORKSHOP AGENDA



Thursday, June 7, 2018



Conducting Harassment Investigations: Practical guidance for employers and unions

9:00 AM - 4:00 PM

Workshop Leaders

Deborah M. Howes
Arbitrator/Mediator

Ben Aberant
Employer Counsel
McCarthy Tétrault
Tami Friesen
Union Counsel
Nugent Law Office

Workshop Summary

Recent high-profile reports on sexual harassment in the Canadian Forces, the Royal Canadian Mounted Police and the CBC raise vital concerns about organizational responses to sexual harassment and highlight the importance of fair and effective harassment investigations. In this interactive session, experts will guide participants through the key steps and essential considerations in conducting effective investigations that comply with legal obligations and respect employee rights.

Working through scenarios based on real-life situations, participants will leave the workshop with the knowledge and skills necessary to:

  • Understand employer, union, and employee legal rights and responsibilities
  • Determine who should conduct the investigation
  • Address issues regarding confidentiality and privilege
  • Ensure procedural fairness
  • Conduct effective interviews
  • Assess credibility and evidence
  • Deal with reluctant and absent witnesses
  • Draft investigation reports

VIEW THE WORKSHOP AGENDA



CPD


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