Arbitrators have wide leeway in applying legal doctrines, Supreme Court declares
Posted December 5, 2011

On Friday, December 2, the Supreme Court granted an appeal from the Manitoba Court of Appeal, determining that an arbitral award applying common law or equitable remedies deserves deference, and should be reviewed on a standard of reasonableness rather than correctness. Holding that labour arbitrators are not legally bound to apply equitable and common law principles, including estoppel, in the same manner as courts of law, and that they have a broad mandate to craft appropriate remedial doctrines when the need arises, the Supreme Court held that the arbitrator acted reasonably in deciding that a union was estopped, i.e. precluded, from enforcing the strict terms of a collective agreement, based on its long-standing failure to object to the employer's practice. (more)

Three whistleblower scientists fired by federal government for failure to complete work assignments – discharge of two upheld by adjudicator, one reinstated
Posted November 2, 2011

In July 2004, the federal government fired three scientists (Drs. Chopra, Haydon and Lambert) for alleged insubordination in failing to complete work assignments, shortly after suspending them for, among other things, publicly accusing Health Canada of succumbing to industry pressure by approving drugs of questionable safety. All three filed grievances against both the suspensions and the discharges. Seven years later, on August 4, 2011, after 150 days of hearing, Adjudicator Ian Mackenzie of the Public Service Labour Relations Board upheld the suspensions of the three grievors, and dismissed the termination grievances of Dr. Chopra and Dr. Haydon. In his view, they had deliberately underperformed, and this conduct, combined with their previous suspensions, which he also upheld, showed a lack of respect for the employer which made the employment relationship "unsalvageable." However, the grievance against the termination of Dr. Lambert was allowed and reinstatement was ordered because, in his case, the alleged failure to complete assigned work had not been established. On September 2, 2011 an application was filed for judicial review. (more)

Federal government rollback of RCMP wage increases breached Charter right of Mounties to freedom of association, judge rules
Posted September 15, 2011

A Federal Court of Canada judge has ruled that the federal government breached the freedom of association of employees under s.2(d) of the Canadian Charter of Rights and Freedoms when it unilaterally rolled back RCMP wage increases without engaging in a long-established consultation process involving a Pay Council which included representatives of RCMP officers. Following the Supreme Court of Canada's decision in B.C. Health Services, as explained in its more recent ruling in Fraser, the judge held that the government's unilateral action violated the right of employees under the Charter to make collective representations to their employer and to have those representations considered in good faith. On July 21, 2011, the federal government appealed the ruling in this case to the Federal Court of Appeal. An opposite conclusion was reached by a B.C. judge in Federal Government Dockyard Trades and Labour Council v. Canada (Attorney General), [2011] B.C.J. No. 1697 (QL). The Council which represents the dockyard workers is also appealing the ruling in that case. (more)

The Marco Biagi Award is an annual award for the best paper on comparative or international labor law by a young scholar. The award is sponsored by the International Association of Labour Law Journals (IALLJ), a consortium of 21 of the leading labor law journals from around the world. The award is named for Marco Biagi, a founder of the IALLJ and one of the world’s most prominent labor law scholars, when he was assassinated in 2002 by the Red Brigade for his prominent role in labor law reform in Italy. Please feel free to contact Steven Willborn, President of the International Association of Labour Law Journals, with any questions.

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Disability and Accommodation

• Ontario government's new regulation setting accessibility standards for disabled people now in effect
• Teacher with multiple chemical sensitivity entitled to damages for school's failure to accommodate

• Kosher food inspector an employee, not "holder of religious office," Board rules
• Poor weather and shipping delays not "unforeseen": employer cannot rely on "exceptional circumstances" provisions in Employment Standards Act to avoid overtime

• B.C. Human Rights Tribunal must give reasons, court rules
• B.C. Human Rights Tribunal awards lawyer more than $100,000

• Appeals Commission of Alberta's Workers' Compensation Board cannot ignore WCB's delay in requesting reconsideration, Court holds
• Workers' Compensation Appeal Tribunal should have granted worker's request for oral hearing and adjournment, court rules

• Settlement reached after 23-year human rights battle by native Canadians against racial discrimination in Ontario prison system
• British Columbia residents to get new statutory holiday, government announces

• City employee intended to retire, not quit, and was entitled to early retirement benefits, arbitrator finds
• City and three managers failed to accommodate ailing employee, Rights Tribunal finds

• Shafted spy brought in from the cold by Labour Board
• Public servant's excessive personal use of employer's computer was serious misconduct, but not time theft, adjudicator finds

• Wrongfully dismissed employee's pension benefits cannot be deducted from damages in lieu of notice, appeal court rules
• Firing of union official upon termination of her employment was not wrongful dismissal, judge rules

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