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November 29, 2006 |
Issue No. 1 |
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— CONTENT— |
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EMERGENCY LEAVE PROVISIONS OF EMPLOYMENT STANDARDS ACT APPLIED EVEN THOUGH EMPLOYEE DID NOT SPECIFICALLY REFERENCE THE ACT, ARBITRATOR RULES An Ontario arbitrator ordered reinstatement of a worker who resigned her employment when she was denied a leave of absence, ruling that the employer ought to have granted the worker a leave of absence pursuant to the emergency leave provisions of the Ontario Employment Standards Act. In the arbitrator's opinion, the worker's written request for a leave of absence obligated the employer to consider the application of the Act, and the ten days of emergency leave provided under the Act would have been sufficient to cover the period in dispute. Details below. NOVA SCOTIA'S SUNDAY SHOPPING BAN NO MORE: REGULATIONS PROHIBITING SUNDAY SHOPPING RULED INVALID BY JUDGE A Nova Scotia judge has ruled that regulations prohibiting grocery stores with a retail area greater than 4,000 square feet from opening on Sundays were not valid, because Cabinet had exceeded its statutorily delegated regulation-making power. The regulations in dispute prohibited stores from converting their corporate structures into small businesses sharing the same premises in order to avoid the effect of the regulations. Details below. See also section 22.2.1 in Leading Cases on Labour Arbitration. |
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— DETAILED REPORTS — |
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EMERGENCY LEAVE PROVISIONS OF EMPLOYMENT STANDARDS ACT APPLIED EVEN THOUGH EMPLOYEE DID NOT SPECIFICALLY REFERENCE THE ACT, ARBITRATOR RULES The Facts: In the fall of 2005 Claire Uttley's sister became critically ill and required home care. On November 24 Uttley, a part-time health care aide at Temiskaming Lodge in Ontario, approached Elizabeth Brownlee, the Lodge Administrator, and inquired about a leave of absence in order to care for her sister. Uttley needed to commence her leave on December 8. Brownlee informed Uttley that she would have to put her request in writing. On November 28 Uttley presented Brownlee with a letter outlining her situation and requesting information on how to obtain a leave of absence. Meetings were held on November 28 and December 1 during which the parties discussed various options. Under the collective agreement, an employee had to provide one month's notice of a leave of absence, unless it was impossible to do so. The employer said that it could grant a leave effective January 1. Uttley became convinced that the employer was not willing to grant a leave starting December 8 and therefore she presented the employer with her written resignation at the end of a meeting on December 1. The union filed a grievance alleging that Uttley was unreasonably denied a leave of absence and forced to resign. The Arguments: The union argued that the employer acted unreasonably and denied the grievor's request for a leave of absence contrary to the collective agreement. Furthermore, the employer ought to have raised the possibility of using the emergency leave provisions in s.50 of the Ontario Employment Standards Act (ESA), which allows an employee to take an unpaid leave of absence because of illness, injury or medical emergency of the employee or a relative of the employee. An employee is allowed up to ten days of leave, which would have covered the period from December 8 until January 1. The union asserted that, in circumstances where an employee has specifically sought the employer's assistance in arranging a leave of absence, the employer has a duty to be aware of the provisions of the Act, to raise them in the discussions and to provide same. The employer argued that the grievor voluntarily quit and therefore the grievance regarding the alleged denial of leave was moot and inarbitrable. In the employer's submission, there was no onus on an employer to trigger the provisions of the ESA; indeed, s.50(3) specifically contemplated the employee 'advising the employer.' The Decision: Arbitrator Dana Randall allowed the grievance, ruling that the grievor invoked s.50 of the ESA and that the employer's failure to provide ten days' emergency leave rendered the grievor's resignation null and void. Randall noted that "[a] quit is effective when the employee has first resolved to quit (the subjective element) and then has done something (objectively) to carry this resolution into effect." In Randall's opinion, the grievor's actions in tendering her resignation and not retracting it were sufficient evidence of both her subjective and objective intent to quit. Furthermore, the circumstances of the case did not meet the "high" standard of proof necessary to show that her resignation was not voluntary due to duress, coercion, depression or mental disorder. Randall found that the employer had not made a final decision to deny the grievor's leave of absence and therefore her resignation was "precipitous and premature." However, Randall held that the application of the ESA altered the analysis. In determining whether or not the emergency leave provisions applied in the circumstances, Randall noted that "no 'magic words' need be uttered to invoke the entitlement [under s.50]. As the Provincial minimum, it is not one that can be avoided on the basis of ignorance of the law ... While the scheme in ss.(3) contemplates the employee advising the employer of her intent to take the leave days, ss.(4) points to the broad entitlement contemplated; it sanctions the taking of the leave without any notice whatsoever." In the result, Arbitrator Randall held that the grievor's note of November 28, in which she requested the employer's assistance in obtaining a leave of absence, invoked s.50. Had the employer recognized its duty under s.50, the grievor would not have resigned her employment. Accordingly, reinstatement was ordered. Comment: This case demonstrates that an arbitrator will apply the emergency leave provisions of the Employment Standards Act, even where the employee does not explicitly inform the employer that he or she intends to exercise his or her rights under the Act. According to Randall, notwithstanding section 50(3), which states that "[a]n employee who wishes to take leave under this section shall advise his or her employer that he or she will be doing so," any indication to the employer that an employee needs a leave of absence is enough to trigger the application of s.50. If the employee meets the requirements under s.50(1), the employer has a duty to inform the employee of his or her entitlement and allow the employee to take the leave. In Randall's view, this interpretation is in line with the "broad purpose and intent" of s.50, which is to allow employees to take leave in situations where they may not have adequate time to inform their employer of the need for such leave. Case Name: Canadian Union of Public Employees, Local 3866 (Uttley Grievance) v. Temiskaming Lodge Limited |
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NOVA SCOTIA'S SUNDAY SHOPPING BAN NO MORE: REGULATIONS PROHIBITING SUNDAY SHOPPING RULED INVALID BY JUDGE The Facts: As of mid-2006, Nova Scotia was the only Canadian province to have a year-round ban on Sunday shopping. [Editors' Note: As in Nova Scotia, Sunday closing provisions continue to exist in Manitoba, New Brunswick and Prince Edward Island, but the legislation in these provinces is significantly less restrictive, allowing Sunday shopping in peak periods, or where a business is regularly closed on another day of the week for religious or other reasons.] In particular, Nova Scotia's Retail Business Uniform Closing Day Act contains a general prohibition against the carrying on of a retail business on Sundays, subject only to certain limited exemptions. As originally passed in 1985, the Act empowered municipalities to enact by-laws creating further exemptions based on the class or size of a business. However, several years later the legislature decided it was desirable to have uniformity across the province, and in 1989 amended the Act to remove the exemption-granting power from municipalities and add it to the regulation-making power of the Governor in Council (or Cabinet), under s.8 of the Act, "respecting any matter necessary or advisable to carry out effectively the intent and purpose of the Act." Cabinet used its new powers to pass regulations exempting grocery stores with a retail space under 4,000 square feet from the general prohibition against Sunday shopping. In order to avoid the effect of this regulation, some supermarkets came up with the plan of reconfiguring their stores into separate businesses, each small enough to qualify under the exemption. In 1999, a grocery store called "Pete's Frootique" was charged with breach of the regulations, but was eventually acquitted. Following the acquittal, many stores, including the applicant, Sobeys, followed suit and rearranged their corporate structures. In June 2006, Cabinet responded by amending the regulations to provide that "2 or more stores that are owned, occupied or operated by related persons are deemed to be one store if they are (a) in the same building; or (b) adjacent or in close proximity to each other." At the same time, the Province announced a new bill that would amend the Labour Standards Code to give employees the right to refuse to work on a uniform closing day, and Cabinet was empowered to make regulations under the Labour Standards Code. Sobeys applied to the Nova Scotia Supreme Court for a declaration that the Cabinet regulation exceeded the regulation-making powers given to Cabinet by s.8 of the Act, and that it unlawfully discriminated against the applicant. The Arguments: Sobeys argued that, by attempting to regulate the size and corporate structure of stores subject to the exemption, Cabinet was acting as if its regulation-making powers were as broad as those formerly given to municipalities when, in fact, the scope given to Cabinet by s.8 was much narrower than the scope of the former provision. The Province took the position that, since the Act was modeled after Ontario's Retail Business Holidays Act, the Supreme Court of Canada's decision in Edwards Books and Art Ltd. v. the Queen, [1986] 2 S.C.R. 713, which upheld that legislation, was binding. An additional argument made by the Province was that the purpose of the legislation and regulations was to provide a "day of rest" to vulnerable, non-union employees. Sobeys responded by arguing that the Act was silent on the issue of employees, and that its sole purpose was to regulate business. Sobeys supported this submission by pointing to the amendments to the Labour Standards Code, which did have the purpose of protecting employees. The Decision: Judge Peter Richard allowed Sobey's application. He defined the issue narrowly as whether the impugned regulations exceeded the regulation-making power granted to the Cabinet, adding: "It is not about any social or political consideration respecting the appropriateness of Sunday shopping; nor is it about the constitutional authority of the legislature to enact legislation dealing with Sunday shopping; nor is it about the protection of vulnerable retail employees being required to work on Sundays. This application is simply about the scope of the authority or power granted to the Governor in Council (Cabinet) to make regulations pursuant to the Act." The Province's argument that Edwards Books was binding was rejected by Judge Richard. He pointed out that the provisions upheld by the Supreme Court in Edwards Books were in the Act itself, not its regulations. Since the appropriateness of the regulations was not an issue in Edwards Books, Judge Richard found the case to be of no assistance in determining the validity of regulations made pursuant to the Nova Scotia Act. Addressing the key issue, Judge Richard determined that the regulations exceeded the regulation-making powers delegated to Cabinet: "Objectively considered, these regulations do not give to Cabinet the power to discriminate in the manner which it did in this case. Cabinet cannot discriminate either as to the size of the retail outlet or the corporate structure of it without the requisite regulatory power. Such power is neither express nor implied in Section 8 of the Act. It logically follows that the impugned regulations are ultra vires the Governor in Council (Cabinet) and of no force and effect." Judge Richard supported his ruling by comparing the language granting regulation-making power in the Retail Business Uniform Closing Act with the amendments made to the Labour Standards Code. The former defined the power as "respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act," while the latter empowered the Governor General to "make any matter or thing which appears to him necessary or advisable for the effectual working of this Act". Quoting from Driedger's well-known text Construction of Statutes, which noted that when subjective language is used, as in the Labour Standards Code, wider authority to make regulations is conferred, Judge Richard observed that the delegated power in the Retail Business Uniform Closing Act "could have been greatly enhanced by the use of subjective discretionary provisions such as those found in the Labour Standards Code." Comment: The question of Sunday shopping has been contentious in Canadian courts since the early 1980s when the first Charter challenges were launched. In 1985, the Supreme Court of Canada held in R. v. Big M Drug Mart, [1985] 1 S.C.R. 295 that, by forcing all Canadians to observe the Christian Sabbath, the federal Lord's Day Act violated the guarantee of freedom of religion in s.2(a) of the Charter. The provinces responded by enacting Sunday observance legislation with the secular purpose of providing a uniform day of rest. In Edwards Books, cited above, Chief Justice Dickson upheld such legislation, stating that it was "absolutely essential that the government now attempt to preserve at least one uniform day each week as a pause day, before it is too late". However, further court challenges and public pressure during the 1990s caused most provinces to make their Sunday shopping legislation more permissive, with the majority opting for complete deregulation. By 2006, only Manitoba, New Brunswick, Nova Scotia and Prince Edward Island still maintained some form of Sunday closing legislation, with Nova Scotia being the most restrictive. After the release of Judge Richard's ruling, Premier Rodney MacDonald announced that Nova Scotia would not be appealing the ruling, clearing the way for Sunday shopping in that province. Although Sobeys' application was quite technical, and did not pose a challenge to the political, social or religious implications of Sunday shopping bans, it appears that it has nonetheless had the effect of bringing Sunday shopping to Canada's last hold-out province. While absolute prohibitions on Sunday shopping have nearly completely disappeared from Canadian law, all the provinces and territories provide for at least 24 consecutive hours rest per week in their employment standards legislation, and most specify that the day of rest should be Sunday, where possible. Several provinces also have legislation protecting an employee's right to refuse to work on Sundays. For further discussion of hours of work and rest days, see section 22.2.1 in Mitchnick & Etherington, Leading Cases on Labour Arbitration (Lancaster House, online edition). Case Name: Sobeys Group v. Nova Scotia (Attorney General) |
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