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Atlantic Canada Human Rights & Labour Law Conference

May 9 - 10, 2018
The Delta Halifax


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Wednesday, May 9, 2018


Registration and Breakfast 7:45 AM - 8:40 AM  
Opening Welcome by Elder Geri Musqua-LeBlanc
and Introductory remarks by Co-Chairs
8:40 AM - 9:00 AM  


Panel 1


Major Caselaw and Legislative Update: Family status, privacy, damage awards, and more

9:00 AM - 11:00 AM

Panelists

Scott Sterns
Arbitrator/Mediator

Judith Begley
Union Counsel
Begley Landry
Tara Erskine
Employer Counsel
Mathews, Dinsdale & Clark
Bryna Hatt
Employer Counsel
Barteaux Durnford
James LeMesurier
Employer Counsel
Stewart McKelvey
Ron Pizzo
Union Counsel
Pink Larkin
Kyle Rees
Union Counsel
O'Dea Earle

Panel Summary

Top advocates 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 in the weeks leading up to the conference, ensuring coverage of the latest and most important developments.

BREAK (with refreshments)

11:00 AM - 11:15 AM

Wednesday, May 9, 2018


Registration and Breakfast 7:45 AM - 8:40 AM  
Opening Welcome by Elder Geri Musqua-LeBlanc
and Introductory remarks by Co-Chairs
8:40 AM - 9:00 AM  


Panel 2


Combating Racialization at Work

11:15 AM - 12:30 PM

Panelists

Alicia Arana-Stirling
Solicitor, Department of Justice
Government of Nova Scotia
Lynn Jones
Human Rights and Community Activist

Elder Geri Musqua-LeBlanc
Elder-in-Residence
Dalhousie University
Robert Wright
Social Worker/Sociologist


Panel Summary

The fact that racialized Canadians continue to experience disproportionately high levels of unemployment and earn less income than non-racialized Canadians are just two of the many indicators that racial discrimination is a reality in Canada today. In this session, a panel of experts will discuss the subtle ways in which racial discrimination occurs in workplaces, and explore proactive steps that organizations can take to combat individual and systemic discrimination. Questions to be addressed include:

  • Given that "race" is a social construct, what does it mean to say that human rights legislation prohibits discrimination/harassment on the basis of "race"? What does the term "racialization" signify?
  • How does/should Canada's legacy of institutional racism (e.g. residential schools and racist immigration policies) inform current discussions about racial discrimination in employment?
  • How does racial discrimination/harassment manifest itself in workplaces? What are some of the subtle forms of exclusion and differential treatment racialized workers/job applicants experience?
  • How does racial profiling manifest itself in the employment context?
  • How does discrimination on the basis of "race" intersect with or relate to discrimination on the basis of ethnic origin, ancestry, place of origin, creed, and/or religion? How does/can racial discrimination intersect with other prohibited grounds that have a less direct relationship with "race," such as gender, disability, age, and sexual orientation?
  • What are an employer's obligations and the union's role when racial discrimination/harassment results from comments/actions by customers or clients?
  • What proactive steps should workplace parties take to ensure they are not engaging in, condoning, or allowing racial discrimination or harassment to occur? Should numerical data be collected? What policies/practices/decision-making processes should be reviewed for adverse impact on racialized individuals/groups? What measures should workplace parties take to ensure they are not engaging in racial profiling?
  • What types of training and educational programs (e.g. cultural competency, anti-bias, conflict resolution) should organizations implement to promote diversity, combat discrimination, and remove barriers to the full participation of members of racialized groups? Should organizations take a distinct approach to anti-racism measures for Indigenous peoples?

NETWORKING LUNCH

12:30 PM - 1:30 PM

Wednesday, May 9, 2018


Registration and Breakfast 7:45 AM - 8:40 AM  
Opening Welcome by Elder Geri Musqua-LeBlanc
and Introductory remarks by Co-Chairs
8:40 AM - 9:00 AM  


Panel 3


Elk Valley and Disability-Related Misconduct: Did the Supreme Court get it right?

1:30 PM - 2:45 PM

Panelists

Gordon Forsyth
Union Counsel
Pink Larkin
Chris King
Employer Counsel
McInnes Cooper
Dr. David Martell
Family and Addiction Physician


Panel Summary

Legal and medical experts will explore the Supreme Court of Canada's highly anticipated judgment in Stewart v. Elk Valley Coal Corporation, grappling with the question of whether an employer can dismiss an employee for failing to disclose a substance use disorder prior to a workplace accident. This session will provide a comprehensive examination of the Court's ruling and its implications for the treatment of disability-related misconduct in Canadian workplaces.

  • On appeal to the Supreme Court of Canada, why did the majority opinion, written by Chief Justice McLachlin, ultimately uphold the Tribunal's ruling? Has the majority's decision elevated the burden of proving prima facie discrimination in cases of misconduct related to a substance use disorder or other disability?
  • Is the majority's discussion of capacity, choice, and denial consistent with consensus views in the medical community regarding substance use disorders? How do such disabilities affect an employee's choice or control over conduct in the workplace?
  • In his dissenting opinion, why did Justice Gascon find that the Human Rights Tribunal decision, upheld by the Supreme Court majority, confused discriminatory intent with discriminatory effect? Does the Tribunal decision reinforce the stigma surrounding substance use disorders, as Justice Gascon contends?
  • What lessons can be drawn for drafting workplace alcohol and drug policies? From a medical perspective, are there concerns with a policy that requires employees to disclose a substance use disorder prior to a workplace accident in order to receive accommodation?

BREAK (with refreshments)

2:45 PM - 3:00 PM

Wednesday, May 9, 2018


Registration and Breakfast 7:45 AM - 8:40 AM  
Opening Welcome by Elder Geri Musqua-LeBlanc
and Introductory remarks by Co-Chairs
8:40 AM - 9:00 AM  


Panel 4


At the Breaking Point: Practical strategies for dealing with workplace stress

3:00 PM - 4:15 PM

Panelists

Dr. Arla Day
Professor, Industrial/Organizational Psychology, Saint Mary's University;
Director, CN Centre for Occupational Health and Safety
Tracy McPhee
Legal Counsel
Health Association of Nova Scotia
David Wallbridge
Union Counsel
Pink Larkin

Panel Summary

The common refrain "work is killing me" is often an expression of feeling stressed by work, but scientific studies increasingly recognize that workplace stress does indeed adversely affect employees' physical and mental health. In fact, Japanese authorities have identified two types of death which result from overwork, and the Japanese language has a specific word, karoshi, to refer to the phenomenon. In addition to being a health and safety issue, workplace stress can also lead to serious labour relations issues as it may cause employees to become less productive and more likely to leave their jobs. In this session, a leading expert on workplace stress, Professor Arla Day, and experienced labour lawyers will address questions such as the following:

  • Is workplace stress really killing people? How significant is it as a health hazard? Is a failure to address or reduce high levels of stress a breach of an employer's obligation to maintain a safe and healthy workplace?
  • To what degree is workplace stress caused by systemic issues, such as understaffing and the general organization and governance of workplaces, and to what degree is it more of an "individual issue," dependent on individual employees' abilities to cope with stress?
  • Is the legal perspective on workplace stress in Canada changing? Will adjudicators award damages to employees who have suffered stress as a result of unreasonable management decisions? Is stress viewed as a legitimate reason for taking sick leave? Is it a disability that must be accommodated?
  • What are the best practices for preventing or reducing stress, overwork and burnout in the workplace? What role is there for the National Standard of Canada for Psychological Health and Safety in the Workplace?

END OF DAY ONE

4:15 PM

NETWORKING RECEPTION

4:15 PM - 5:15 PM

Thursday, May 10, 2018


Breakfast 8:00 AM - 9:00 AM  


Panel 5


Sick Leave and Return to Work: Tackling credibility, self-reporting, and other thorny issues

9:00 AM - 10:15 AM

Panelists

Dr. Ajantha Jayabarathan
Family Doctor

Geoff Breen
Employer Counsel
Cox & Palmer
Paula Schumph
General Counsel (Acting)
Newfoundland and Labrador Association of Public and Private Employees (NAPE)

Panel Summary

The abuse of sick leave is a serious problem, with some workers mysteriously falling "ill" when a major sporting event, long weekend or holiday is on the horizon. While some employers attempt to curb this misuse by demanding medical notes to substantiate every absence, doctors are pushing back, publicly calling on employers to stop burdening the healthcare system by requesting notes for routine isolated illnesses.

In this session, seasoned counsel will tackle common challenges that arise when managing sick leave, such as requesting appropriate medical information, responding to suspected misuse, and facilitating the return to work process. Topics that will be addressed include:

  • Obtaining medical information: What medical information can employers legally request from employees who take one or two "sick days"? How does the information required to justify longer absences – i.e. those necessitating the use of several weeks of "sick days" or application for short-term or long-term disability benefits – differ from the information required to justify an occasional sick day or two? Is it legitimate for an employee to use a sick day as a "mental health day" or to take care of a sick child? If so, what medical evidence, if any, can substantiate the need for such an absence? What must employers do to protect employee privacy in the context of sick leave?
  • Preventing abuse: How can employers prevent misuse of sick leave without violating employees' privacy rights? If an absent employee is observed playing sports or doing yard work, is this activity evidence of sick leave fraud? When, if ever, is it appropriate for an employer to conduct covert surveillance of an employee suspected of sick leave fraud? What is the potential liability of an employer who unjustly accuses an employee of sick leave or disability benefit fraud? Will arbitrators invariably uphold a termination of an employee who has abused sick leave?
  • Return to work: What are the obligations of the employer, the union, and the insurer (if applicable) to an employee who has been absent from work due to illness for a substantial period? What obligation do any or all of these parties have to contact the employee for updated medical information or to facilitate a return to work? Where is the line between maintaining appropriate contact to receive medical information necessary to assess return to work and accommodation options on the one hand and harassing an employee on the other? What type of medical evidence is needed to facilitate a return to work? What are the key elements of a return to work transition plan?

BREAK (with refreshments)

10:15 AM - 10:45 AM

Thursday, May 10, 2018


Breakfast 8:00 AM - 9:00 AM  


Panel 6


Recent Discharge Cases: Cause, incompetence, and undue hardship

10:45 AM - 12:00 PM

Panelists

Robert Breen
Arbitrator/Mediator

Judith Begley
Union Counsel
Begley Landry
Noella Martin
Employer Counsel
Wickwire Holm

Panel Summary

As former Chief Justice Dickson observed, "Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society." Thus, terminating the employment relationship, whether for just cause or for innocent incapacity, is a serious step to take, and one that is very likely to be challenged through the grievance procedure or human rights proceedings. This update on the law of dismissal will ensure that you have the knowledge you need to make critical decisions regarding the viability of employment. Experienced counsel will address questions such as:

  • Are arbitral views of the severity of certain offences changing? For example, have arbitrators moved away from the position that relatively minor theft, especially in retail environments, constitutes just cause for dismissal? In light of recent high profile sexual harassment allegations and the #metoo movement, is any incident of sexual harassment just cause for dismissal?
  • How critical is employee remorse in arbitrators' decisions regarding reinstatement? Does the emphasis on remorse effectively deprive grievors of their right to vigorously challenge allegations made against them? When, if ever, will a union be able to win reinstatement for a grievor who has not shown remorse?
  • In response to increasing availability of information regarding employees' off-duty activities (through pictures or videos posted on social media), are arbitrators more or less willing to uphold discharge for off-duty misconduct?
  • When can an employer defending its decision to dismiss an employee for just cause also present the alternative argument that dismissal should be upheld on the basis of innocent incapacity? How does the progressive discipline process differ from the steps an employer must take before dismissing an employee for innocent incapacity?
  • What evidence is required to establish that continuing to employ a grievor would constitute undue hardship? What essential factors must be considered? What procedural steps must be taken? Are arbitral attitudes changing with regard to when interference with seniority rights will constitute undue hardship?

NETWORKING LUNCH

12:00 PM - 1:30 PM

Thursday, May 10, 2018


Breakfast 8:00 AM - 9:00 AM  


Panel 7


Experts Clear the Smoke: Interactive session on cannabis in the workplace

1:30 PM - 2:30 PM

Panelists

The Hon. A. Anne McLellan
Chancellor, Dalhousie University; Chair, Task Force on Cannabis Legalization and Regulation

Dr. Melanie Kelly
Professor, Departments of Pharmacology, Anesthesia and Pain Management,
Dalhousie University; Executive Director, International Cannabinoid Research Society

Panel Summary

With the increasing popularity of medical cannabis as an option to treat symptoms ranging from chronic pain to PTSD, as well as the impending legalization of cannabis for recreational use, it is critical for employers and unions to assess and address the workplace implications of cannabis use. In this interactive session, the Hon. Anne McLellan, Chair of the Task Force on Cannabis Legalization and Regulation, and Dr. Melanie Kelly, Executive Director of the International Cannabinoid Research Society, will provide insight into the workplace impact of the growing acceptance of cannabis. Ms. McLellan and Dr. Kelly will be available to answer your questions on what legalization means for employers and unions as it relates to workplace safety.

BREAK (with refreshments)

2:30 PM - 2:45 PM

Thursday, May 10, 2018


Breakfast 8:00 AM - 9:00 AM  


Panel 8


How Do Arbitrators Decide Cases? A concrete demonstration

2:45 PM - 4:00 PM

Panelists

George Filliter
Arbitrator/Mediator;
Chair, New Brunswick Labour and Employment Board
Karen Hollett
Arbitrator/Mediator;
Chair, Nova Scotia Labour Board

Panel Summary

In labour arbitration, parties who understand the reasoning behind arbitral decision-making have a critical advantage. 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. Using realistic scenarios, attendees will learn to identify the evidentiary and substantive issues arbitrators consider key to deciding these types of cases.

CONFERENCE ENDS

4:00 PM

Keynote Speakers


Tuesday, May 8, 2018



Advocacy at Arbitration: Thoroughly preparing and effectively presenting cases

9:00 AM - 4:00 PM

Workshop Leaders

Augustus Richardson
Arbitrator/Mediator

Eric Slone
Arbitrator/Mediator

Ron Pizzo
Union Counsel
Pink Larkin
Eric Durnford
Employer Counsel
Barteaux Durnford

Workshop Summary

This workshop will provide participants with the knowledge and skillset required to conduct a grievance arbitration case or give maximum assistance to counsel/advocates who are doing so. Seasoned arbitrators 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



CPD


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