January 30, 2020

Seasoned counsel will review the most important labour and human rights decisions from the past year and explain how they will affect you in the coming year. The panel will also flag significant ongoing litigation. Final selection of topics will take place a few weeks before the audio conference in order to ensure up-to-date coverage of the most important developments. Cases that will be discussed include the following:

Assessment of disciplinary penalty

  • Calgary (City) v. Canadian Union of Public Employees, Local 37 (Alberta Court of Appeal): What factors should arbitrators consider when determining whether to reinstate an employee who committed sexual assault? Is an absence of remorse a significant factor when determining whether reinstatement is justified in a case of sexual harassment? What about a lack of distress on the part of the complainant?

Disability-related misconduct

  • EH v. University Appeal Board (Saskatchewan Court of Appeal): What information and/or medical evidence is necessary to trigger an employer’s duty to accommodate in cases in which an employee alleges that misconduct was related to a disability? Is a specific diagnosis required? When and to what extent must an employer take into account medical evidence indicating that recidivism or relapse is a feature of the employee’s medical condition?
  • Ontario Nurses’ Association v. Cambridge Memorial Hospital (Ontario Superior Court); Ontario Nurses’ Association v. Royal Victoria Regional Health Centre (Ontario Superior Court); Teamsters Canada Rail Conference v. Canadian Pacific Railway (federal labour arbitration); Union of Northern Workers v. Government of the Northwest Territories (Northwest Territories labour arbitration): What do the latest cases on disability-related misconduct tell us about the duty to accommodate an employee with substance use disorder?

Workplace accommodations

  • Maude v. NOV Enerflow ULC (Alberta Human Rights Tribunal): Can an employer insist that an employee attend a residential drug treatment program as part of its substance use policy?
  • City of Toronto v. Canadian Union of Public Employees (Ontario Divisional Court); Carter v. Human Rights Tribunal of Ontario (Ontario Divisional Court): Is it discriminatory to transfer an employee with a disability to a part-time bargaining unit? What about accommodating an employee with a disability in a temporary position?
  • KS v. Halifax Regional Municipality (Halifax Regional Fire and Emergency) (Nova Scotia Human Rights Commission): Will a delay in finding a suitable position for an employee with a disability be considered a breach of an employer’s duty to accommodate?

Remedial orders

  • Facey v. Bantrel Management Services Co. (Alberta Human Rights Tribunal); Yaniv v. Various Waxing Salons (British Columbia Human Rights Tribunal): When is it appropriate for a human rights tribunal to make a costs award against a complainant?
  • Hughes v. Canada (Attorney General) (Federal Court); Haseeb v. Imperial Oil Limited (Ontario Human Rights Tribunal): Where discrimination occurs in the hiring or promotion process, what evidence is required to establish that the failure to obtain the position was due to discriminatory considerations? When will it be appropriate for a human rights tribunal to order reinstatement as a remedy? What principles should guide the determination of damages for loss of income where reinstatement is not ordered?

Assessing credibility

  • Joe Singer Shoes Limited v. A.B. (Ontario Divisional Court): How much weight should be placed on a witness’s demeanour when assessing credibility? What is the role of expert evidence in assessing credibility and making factual findings? To what extent can expert evidence be relied upon to “corroborate” a complainant’s version of events?