March 2, 2023

In this webinar, panelists will examine evolving management duties of good faith and honest performance in contractual relationships. Topics to be addressed include:

  • Is an employer in a unionized workplace required to exercise its right to manage in a fashion that is reasonable and fair, and to act honestly and in good faith, in the absence of express language to that effect in the collective agreement? How does the Supreme Court of Canada’s recent decision in Bhasin v. Hrynew, and subsequent caselaw, factor into this analysis?
  • How has the “duty of honest performance” been interpreted and applied in cases concerning unionized work environments? Will the duty be breached only where one workplace party lies to another, or do omissions and other misleading conduct qualify? Does the duty extend beyond “day-to-day” workplace matters to capture conduct in bargaining and arbitration?
  • Does a duty to act honestly and in good faith apply in non-unionized workplaces?
  • Where the collective agreement provides an employer with discretion, how have arbitrators responded to the exercise of that discretion? For instance, when will an arbitrator consider an employer to have exercised its discretion unreasonably, unfairly, or in bad faith?
  • How have these principles been applied in recent caselaw dealing with COVID-19-related workplace measures? In cases addressing promotions, discipline, and performance management?
  • Applying these principles, how should employers approach policies or decisions regarding remote work, in the absence of human rights considerations?