Looking Back, Looking Forward: What’s happened recently – and what lies ahead?

In this session, Lancaster’s panel of experts will review the most important decisions in workplace law of 2014 and explain how the key legal principles enunciated in those decisions should guide the actions and policies of workplace parties in the coming year. Our experts will also bring you up-to-date on significant legislative and policy developments over the past year, and highlight the key labour and employment cases currently pending before the Supreme Court. Major legislative or jurisprudential developments taking place between the posting of this program and the air date of the audio will also be addressed. Significant time will be devoted to participants’ questions, and participants are encouraged to e-mail questions in advance. Specific cases and legislative developments to be discussed include:

Impact of Major Cases Decided Recently

Freedom of Association

• Canada (Attorney General) v. Meredith; Mounted Police Association of Ontario v. Canada (Supreme Court of Canada): What did the Supreme Court of Canada hold in Canada (Attorney General) v. Meredith and Mounted Police Association of Ontario v. Canada? What are the implications of the Supreme Court’s rulings in these decisions for the constitutional status of collective bargaining in Canada?

Meeting the duty to accommodate childcare responsibilities

• Canada (Attorney General) v. Johnstone; Canada (Attorney General) v. Johnstone (Federal Court of Appeal): What will be the effect of the Federal Court of Appeal’s ruling that family status protection includes childcare obligations that cannot be neglected without incurring legal liability? How will the decisions impact employers’ responses to accommodation requests based on childcare or other family care needs such as eldercare? Will the Johnstone/Seeley approach be applied by appellate courts in other jurisdictions? Will the federal approach replace the more restrictive approach of the British Columbia Court of Appeal in Campbell River? What legal test will be applied in non-childcare cases, such as care of elderly parents or spouses?

Avoiding discrimination in pregnancy/parental benefits

• British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Association (Supreme Court of Canada): In light of the Supreme Court’s decision upholding an arbitrator’s ruling that a collective agreement provision granting a single top-up parental benefit to birth fathers, adoptive parents, and birth mothers was discriminatory, how should employers and unions structure pregnancy/parental benefits in the future? What are the key takeaways from this ruling in terms of pregnancy/parental leave benefits under collective agreements or otherwise? What guiding principles emerge with respect to when differential treatment in the provision of benefits will be considered discriminatory? What is the significance of the Supreme Court’s finding that the Court of Appeal erred in failing to give deference to the arbitrator’s interpretation of the collective agreement, and specifically the arbitrator’s finding as to the purposes of the benefits?

Understanding the duty of good faith and honesty in contract law

• Bhasin v. Hrynew (Supreme Court of Canada): What did the Supreme Court say in this case about good faith and the duty of honest performance in the law of contracts? How will the Court’s recognition of an underlying “organizing principle” of good faith in the performance of contractual duties affect contracts of employment? How will the new duty of honesty recognized by the top court be applied in future employment law cases? Following Bhasin, does an employer’s duty of good faith and honesty apply only to the manner of dismissal (as the Supreme Court held in the 1997 Wallace case), or should it apply to other/all aspects of the employment relationship? How should workplace parties govern themselves in light of the top court’s ruling?

Assessing damages for harassment

• Boucher v. Wal-Mart (Ontario Court of Appeal): Does the Ontario Court of Appeal’s approval of punitive and aggravated damages totaling $310,000 to an assistant manager who was abusively harassed by her superior reflect a growing trend to award significant damages to employees who suffer harassment and abuse? Is the result in this case consistent with recent awards in other cases, including arbitral, tribunal, and court cases? What lessons can be learned from the awards in these cases?

Seeking compensation for mental stress under workers’ compensation legislation

• WSIAT Decision No. 2157/09 (Ontario Workplace Safety and Insurance Appeals Tribunal): What are the short-term and long-term implications of the Tribunal’s recent ruling that provisions of the Workplace Safety and Insurance Act and the Board’s policy on traumatic mental stress, which impose tougher eligibility criteria for workers’ compensation benefits for work-related mental stress, violate the Charter? How might this decision affect individuals’ entitlement to benefits for mental stress through workers’ compensation and through other benefit schemes? What other significant legislative or policy developments have occurred in this area in the past year across Canada?

Wal-Mart’s closing of unionized store breached Labour Code

• United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp. (Supreme Court of Canada): What is the significance of the Supreme Court’s decision finding that Wal-Mart’s closing of a unionized store breached the Quebec Labour Code? Is the prospect of having to pay damage awards to laid off employees likely to make a difference to an employer who is prepared to close a unionized store that is performing well? Is the impact of the Court’s decision limited to Quebec, or does it have broader implications across the country?

Key Cases Pending before the Supreme Court

• Saskatchewan v. Saskatchewan Federation of Labour: Will the Supreme Court recognize a constitutional right to strike in the Saskatchewan Federation of Labour case? If it does, what is likely to be the scope of that right?

Major Legislative and Policy Developments

• Significant changes to federal union certification and decertification regime: What changes were made to existing federal union certification and decertification processes by Bill C-525, Employees’ Voting Rights Act, which received Royal Assent on December 16, 2014? Has the automatic card check certification process been abolished or reformed? When do the amendments come into force?
• Senate moves forward with private member’s bill requiring union financial disclosure: What is the current status of Bill C-377, An Act to amend the Income Tax Act (requirements for labour organizations), which would require unions to report every expenditure over $5,000? Are there plans by government to bring the bill to a final vote? If so, when? Is the Bill likely to face a constitutional challenge?
• Alberta introduces pension legislation allowing single employer target benefit plans: What new changes to Alberta’s Employment Pension Plans Act and Employment Pension Plans Regulation regarding target benefit plans came into effect in September 2014? Do Alberta’s new rules permit the conversion of a traditional defined benefit plan to a target benefit plan on a retroactive basis? Which provinces have enacted, or are set to enact, similar amendments to their pension legislation? Do the new rules vary by province, and if so, how?
• Ontario passes legislation to increase the minimum wage: With its recent amendments to the Employment Standards Act, is Ontario the only province to tie future increases in minimum wages to the Consumer Price Index? What other changes were made under The Stronger Workplaces for a Stronger Economy Act, 2014?
• Federal changes to public service collective bargaining: What changes to federal public service labour laws were put in place under the federal Economic Action Plan 2013 Act, No. 2? How does the new legislation impact a union’s choice of dispute resolution? What process is put in place for designating which services are essential? Does the legislation change the previous process under which the government and union were required to negotiate the number of employees considered essential in the event of a strike? What factors are federal mediators, conciliators, and arbitrators now required to consider when making an award at interest arbitration? Will a Charter challenge, launched by the Public Service Alliance of Canada, be successful?
• Changes to the temporary foreign worker program: What changes were made to the temporary foreign worker program in 2014? Are they justified? Are they sufficient? Are future reforms anticipated? If so, which ones?
• Amendments to the live-in caregiver program: What changes were made to the federal live-in caregiver program in 2014? How have stakeholders and the public reacted to the changes?
• Action on unpaid interns: What action has been taken across Canada regarding unpaid internships in 2014? Have provincial labour ministries cracked down on unpaid internships? Which companies have cancelled their internship programs as a result of the increasing scrutiny and backlash against using unpaid workers? Are legislative changes to regulate the practice of using unpaid interns anticipated? Are any legal challenges to unpaid internships underway or expected?