Professional Documents
Culture Documents
A. OVERVIEW
Labour law emerged as a subject after WW2 it came out as a CB law, superior to
KOE.
Slave/Master
None/All
None/All
Feudal society
Serf/Lord
Some/Some
Some/Some
Independent
commodity
production
ICP/ICP
All/All
All/All
Capitalism
Servant,
Employee/Ma
ster,
Employer
None/All
means of production centered
in the hands of the few,
majority of people live off their
capacity to sell their labour
B. HISTORICAL DEVELOPMENT
FEUDALISM (TO MASTER AND SERVANT REGIME) 1000-1562
Black Death 1348: killed up to half the English population which meant that
labour was in short supply,
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Effects: gives rise to Master and Servant regime , creates landless and lordless
class of people; diminishes population of labourers, increased bargaining power of
labourers
CANADIAN CONTEXT
Master and Servant Law in Canada
growth of TUs
A movement by workers to establish the 9 hour day. Targeted ER, George Brown
globe publisher prosecuted combination efforts, before resolved led to;
no longer market values that exclusively determine how the legal and political
order will be governed.
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created the following regulations:
State Role : Minimum standards (OHSA), Factory legislation and workers
compensation, ES including working hours.min wage, fairness and safety (formerly Ked);
HR codes, Pay & employment equity .
1.
2.
3.
4.
5.
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Prohibits ER interference with right to freedom of association; powerful
expression of State view
Creator
Administrator
Normative Foundations
Courts
Courts
Minimum
standard
s
Legislatu
re
Administrative
Tribunals,
Arbitrators, Courts
Statutory
CB
Institutional/Liber
al Pluralist
Reconcilable
Differences
regulatory role of govt
to increase overall
efficiency and to
promote fairness in the
market
requires regulation of
markets due to
asymmetry of parties,
high transaction costs,
but not opposed to
market
Conflict
Deviant
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Marxist/Radical
Antithetical
workers heavily dependent on
capital because they cannot
produce for themselves absent sale
of labour power ; owners can pull
out of market, subsist from capital
forced cooperation; no common
interest
owners of capital extract unfair %
of socially produced wealth
Fundamental transformation of
regimes must occur through worker
self-organization
Inherent and Fundamental
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Distribution of
Power
Irrelevant
Ind. K unequal
everyone,
strong & weak
both benefit
from these
exchanges
CB Countervailing
Goals of
Regulation
Preferred
Institutional
Vehicle
Common
Law/Courts
Promote
mutual gains
through
CB & Min
Stans
Legislation/Admin.
Agency
Fundamentally asymmetrical
Limited amelioration;
Transformation
amelioration is a good thing but
within structures of capitalism there
are limits to what amelioration can
be achieved, so transformation is
what is really needed
Worker Self-Organization; Political
Action
CML KOE
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APPLICATION OF CHARTER
SCOPE OF RIGHTS INLABOUR CONTEXT
DOLPHIN DELIVERY: established that the Charter does not apply to
private parties, only to direct state action.
PEPSI: CML OUGHT TODEVELOP IN ACCORDANCE WITH
CHARTER VALUES
(OBITER: CHARTER VALUES INFORM DEVELOPMENT OF
COMMON LAW)
WHAT IS THE SCOPE OF CHARTER RIGHTS?
The Charter applies when:
Private parties in a dispute invoke labour and employment related legislation.
Private parties challenge legislation directly on the ground that it violates
Charter-protected rights
The government is the employer
Statutory authorities are exercising statutory discretion (Slaight
Communications v Davidson)
EQUALITY DUNMORE, THE AGRICULTURAL WORKERS COULD NOT CLAIM
EQUALITY RIGHTS VIOLATION BECAUSE THEY WERE BEING DISCRIMINATED
AGAINST ON THE BASIS OF OCCUPATIONAL STATUS, WHICH IS NOT AN
ENUMERATED/ANALOGOUS GROUND TO S. 15 STATE IS NOT MAKING AN
INHERENT STATEMENT OF YOUR VALUE IN THE DECISION TO DISTINGUSHI
AMONGST WORKER CLASSES. COURTS HAVE REJECTED THE ARGUMENT THAT
IT SHOULD BE AN ANALOGOUS GROUND. (THEREFORE, S 2(D) MOST
OFTEN INVOKED)
FREEDOM OF ASSOCIATION:
Protects organization: the right to form a union, the freedom of
individuals to act in concert with other people
Protects collective bargaining (debatable)
Striking
Labour Trilogy (1987) S 2(d)m protects freedom to form associations, but not
to engage in activities solely on the basis they are foundational to the purpose of
the association, protects exercise in association of constitutional rights and
freedoms
Delisle FUNDAMENTAL FREEDOMS PROTECTED BY S. 2 DO NOT IMPOSE
OBLIGATION FOR THE GOVERNMENT TO PROVIDE A PARTICULAR LEGISLATIVE
SCHEME FOR ITS EMPLOYEES TO EXERCISE THEIR COLLECTIVE RIGHTS.
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Justification of Infringement
FRASER
Hel d Majority; AEPA is consistent w Health Services, is
constitutionally valid, contains duty to consider representations in
good faith, therefore protects FOA
Four judgments 3 uphold, 1 dissent (Abella)
Rothstein & Charron, would have reversed Health Services; one would have
interpreted it out of existence (Deschamps)
Ratio: S2 protects the right to associate to achieve collective goal,
includes a derivativ e right to CB - value of right is somewhat diminished ;
imposes a duty to consult in good faith, vs. duty to bargain in good faith
(BC Health)
Application - 3 Step Analysis
1. Does legislation interfere with collective bargaining?
2. Does the state interference or, absence of state protection protect
CB make it impossibl e for workers to exercise Charter FOA ?
(If absence of state of protection, positive duty is triggered)
3. Section 1 Analysis
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Justification of Infringement
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Only ratifiers of convention can file complaints to ILO governing body
Possible referral to Commission of Inquiry (3 indep. experts); 11 times
from 1919
Commission studies the complaint; issues a public report of its findings,
are advisory, no sanctions follow from a finding of violation or failure of
corrective govt action
Failure of country compliance entitles ILO to take case to ICJ
happened once
IMPACT OF THE ILO IN CANADA
Recent increase of complaints due to more frequent use of laws suspending
the right to strike.
Direct: Complaints and reports of violation receive little publicity; made
long after violation occurs; Governments largely disregard these findings
Indirect: ILO principles have influence on the Canadian courts
(Dunmore ;BC Health) Fraser - SCC chose not to note FOA violation,
caused filing of ILO complaint, SCC and ignored the CFA opinion.
Declaration on Fundamental Principles and Rights at Work (1998)
Freedom of association and effective recognition of the right to collective
bargaining
Elimination of all forms of forced or compulsory labour
Effective abolition of child labour
Elimination of discrimination in respect of employment and occupation
Current Crisis at the ILO stature and authority now questionable
Employers now contesting the legitimacy of Committee of Experts, not a judicial
body, whose findings are not law. Committee no auth to interpret convention
NORTH AMERICAN AGREEMENT ON LABOR COOPERATION (NAALC)
11 Labour Principles the three countries are committed to promote:
1. Freedom of association and
6. Minimum wage; hours of work
protection of the right to
and other labour standard
organize
7. Non-discrimination
2. The right to bargain
8. Equal pay for equal work
collectively
9. Occupational safety and
3. Right to strike
health
4. Protection against forced
10.Workers compensation
labour
11.Protection of migrant work
5. Prohibition of child labour
Soft Law : promotion through commission of labour cooperation;
Hard Law : provides complaint procedure, NOT specific remedies for
workers whose rights are violated; DOES NOT establish
international labour appeals court that can overrule domestic
authorities.
Enforcement
Tier 1 : Complaint to any NAO (National Administrative Organization),
except the NAO of the country where the matter complained of arose
Ministerial consultations can take place on any matter within the
scope of this Agreement. can be initiated by any minister without a
filing of submission
No complaint has ever gone beyond tier one
Tier 2 : Evaluation Committee of Experts; restricted to principles 4-11;
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matter must be trade related and covered by laws in both countries
Tier 3 : Arbitration Panel; restricted to child labour, minimum wages &
OHS; 2 of 3 countries must agree to further DR against 3 rd country and
must allege a persistent pattern of failure by the Party complained
against; matter must be trade related & covered by laws in both
countries; fines can be levied
Takes a govt to push a complaint to tier 2/3, private parties would have
to lobby a government to move the case forward to the ECE stage.
Sanctions: fine for failure to adopt action plan recommended by an
Arbitral Panel ;
Failure to pay fine possible suspension NAFTA tariff benefits for time necessary
to collect fine
Assessment (1994-2008)
35 complaints (Mexico 22; US 11; Canada 2)
declining usage of formal complaint mechanism
Evidence is thin that complaints have had some political impact
Also arguably has stimulated development of transnational labour
cooperation and creation of transnational advocacy networks
(Buchanan & Chaparro, 2008)
BASIC CONCEPTS
Default is ind KOE except occupational health & safety (Other jurisdictions,
CB is default)
Opt-in to cb scheme required primarily through LRA certification or
recognition
Informal voluntary arrangements for voice or bargaininG employee
consultation or informal CB ER can dissolve at any time; unilateral
Statutory Mandates for voice or bargaining
Representation Plans: OHS JHSC; RCMP SRRP;
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Collective Bargaining: Teachers (dont need certification, must become
union members by statute)
Voluntary Recognition under the LRA
ALTERNATIVE OPT IN VOLUNTARY RECOGNITION ( SS7 (3) (16)) OR INFORMAL
ARRANGEMENTS
1. Voluntary Recognition (ss. 7(3), 16) ER voluntary recognizes BU,
same right as certified union, can be decertified if it is challenged
(within first year s 66) by ER or EES who dont want to be
represented requires that the union then establish that they indeed have
majority support
bargaining agent to be a trade union independent of management
influence (SS 1(1), 15)
2. There are also informal arrangements - faculty associations
With current LRA, LRB has exclusive authority to certify a union as
appropriate BU.
Trade-off for unions: give up autonomy to determine bargaining
structure but in turn ERs are under legal obligation to recognize and
bargain with BU certified by LRA
II.
STEP 1: IS THE CLASS OF PERSONS ELIGIBLE UNDER THE LRA? (REFER TO TESTS RE:
EE V ER IN CHAPTER 3)
Applicants must show that they are covered by Statute. Coverage is limited to EEs
or dependent contractors, less those excluded (s. 1(3) lawyers, managers etc.;
s. (3) domestic workers, hunters, trappers and agricultural workers)
QUALIFICATIONS UNDER THE LRA - employees who do not qualify
S. 1(3) LRA: No person shall be deemed to be an EE,
(a)architectural, dental, land surveying, legal or medical profession
entitled to practice in Ontario and employed in a professional capacity, or
NOTE: the assumption is that they have enough market power
individually (or even to arrange amongst themselves to bargain
collectively)
(b)who, in the opinion of the Board, exercises managerial functions or is
employed in a confidential capacity in matters relating to labour
relations
NOTE:
i. Confidential persons may have to be entirely loyal to their ER
and would therefore experience a conflict of interest if they
were part of a union
ii. Managerial exclusion more controversial; at what level should
this kick in?
STEP 2: DOES THE APPLICANT HAVE TRADE UNION STATUS? SS. 1(1), 15, 113
s. 1(1): trade union makes the application for certification, not the EEs.
s.15: the provision that prohibits certain organizations from being trade unions, ie
if the ER has participated in its formation, or if it discriminates on prohibited
grounds to become a bargaining agent for a group of EEs
s. 113: trade union status need only be proved once, and thereafter the Boards
finding of status is prima facie evidence of status in future cases.
STEP 3: IS THE APPLICATION TIMELY?
Generally, application cannot be entertained while the conciliation process is
ongoing or during the currency of an existing collective agreement, except during
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the "open periods" prescribed by the statute (ss. 7(2-6) and 67: "incumbent
unions can seek to be certified only during open periods")
with an incumbent union and a collective agreement 3 years or less in
length, the union can only be challenged by another union during the last 3
months of the collective agreement
Check to see if any of the below provisions apply:
Bargaining rights may also be terminated in following circumstances:
1. EEs apply for termination if a union does not make a CA with ER within 1
year after its certification, s.63
2. Certification obtained fraudulently, s. 64
3. Union fails to give ER notice or bargain, s. 65
4. Termination of bargaining rights after (illicit) voluntary recognition, s. 66
o If TU hasnt been certified but enters into CA with ER, the Board may,
upon application, and within 1 year of the CAs operation (or during
the first year of a voluntary recognition agreement meant to lead to
an eventual CA), declare the TU was not entitled to represent the EEs
in the BU
Prior Unsuccessful Application, ss. 7(9-10(2)), 10(3)
o 7(9.1): If a union withdraws application before representation vote is held,
the board has discretion to bar that union from making another application
in relation to that group of employees for up to one year.
o 7(9.2): If a union withdraws application before representation vote is held,
and that trade union has withdrawn a previous application not more than 6
months earlier, all trade unions are barred from bringing a certification
application in relation to that group of employees until a year has elapsed
from the time the second application was withdrawn.
o 10(3): FOLLOWING A CERTIFICATION VOTE if Board dismisses
application, wont consider an application by any TU as the BA of any EE that
was in the BU involved in the original refused application until 1 year has
elapsed (since the dismissal/refusal)
Application for Certification Section 7
(1)Where no trade union certified and EEs not bound by collective agreement,
TU can apply at any time
(2)Where a TU has been certified as BA and no CA and no declaration by OLRB
that TU no longer represents another TU may apply after the expiration of
one year from the date of certification (open period)
(3)Voluntary Recognition in writing of TU but no CA and no declaration
from OLRB another TU may apply for certification only after 1 year from the
date that the recognition agreement was entered into
(4)CA for a term of not more than 3 years; a TU may apply for certification
only after the commencement of the last 3 months of its operation
(5)CA for more than 3 years; a TU may apply only after the commencement
of the 34th month and before commencement of 37th month AND during the
3 month period immediately preceding the end of each year that the
agreement continues to operate OR after the commencement of the last 3
months of its operation
Application for Certification or Termination Section 67
(1) Where TU has not made CA w/i 1 year and minister appoints conciliation
officer, no application for certification shall be made until
(a) 30 days have elapsed after Minister released the report of conciliation
(b) 30 days after notice from minister that conciliation not available
(c) 6 mnths after minister released report on conciliation that the differences
b/w parties had been settled
(2)Where notice of desire to bargain + minister has appointed a conciliation
officer/mediator, no application for certification shall be made after the date
when the agreement ceased to operate or the date when minister appointed
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conciliation officer [whichever is later] unless no collective agreement has
been made
(a)At least 12 months have elapsed since conciliation officer appoint
(b)30 days after the report
(c) 30 days after minister says not appropriate to appoint conciliator
(3)No application for certification of BA or declaration that union no
longer represents during lawful STRIKE/LOCKOUT until
(a) 6 months after the strike/lockout commenced
(b) 7 months have elapsed since conciliation report or notice from minister
that conciliation not available
Application for Certification by previously unsuccessful applications
Section 7
(9)If TU withdraws application before rep. vote, board may refuse another
application for certification for up to 1 year [7(9.1)]; if this is the second
time the TU did this within 6 months the board shall not consider another
appl. For 1 year [UNLESS 7(9.3a): EE position changed, AND (9.3b): EE
would not have been in the BU of the NEW application had he/she still
occupied the same position
(10) If TU withdraws after rep. vote the board shall not consider another appl.
For 1 year (10.1) unless EE position / BU composition changed
NOTE: these dont apply if the union simply had the application dismissed
for lack of support (votes)
POLICY: UNDERLYING THIS REQUIREMENT IS THE IDEA OF UNION SECURITY WHEN
THERE IS AN INCUMBENT UNION IT IS PROTECTED FROM BEING CHALLENGED BY
ANOTHER UNION OF DISGRUNTLED EES; PROTECTS UNIONS FROM BEING
DECERTIFIED; INTERESTS OF THE ER WHO SHOULDNT BE SUBJECT TO CONSTANT
UNIONIZATION DRIVES
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conciliation officer [whichever is later] unless no collective agreement has
been made
(d)At least 12 months have elapsed since conciliation officer appoint
(e)30 days after the report
(f) 30 days after minister says not appropriate to appoint conciliator
(6)No application for certification of BA or declaration that union no
longer represents during lawful STRIKE/LOCKOUT until
(c) 6 months after the strike/lockout commenced
(d) 7 months have elapsed since conciliation report or notice from minister
that conciliation not available
APPLICATION FOR CERTIFICATION BY PREVIOUSLY UNSUCCESSFUL APPLICATIONS
SECTION 7
(10)
If TU withdraws application before rep. vote, board may refuse
another application for certification for up to 1 year [7(9.1)]; if this is the
second time the TU did this within 6 months the board shall not consider
another appl. For 1 year [UNLESS 7(9.3a): EE position changed, AND
(9.3b): EE would not have been in the BU of the NEW application had he/she
still occupied the same position
(10) If TU withdraws after rep. vote the board shall not consider another appl.
For 1 year (10.1) unless EE position / BU composition changed
NOTE: these dont apply if the union simply had the application dismissed
for lack of support (votes)
POLICY: Underlying this requirement is the idea of union security when
there is an incumbent union it is protected from being challenged by another union
of disgruntled EEs; protects unions from being decertified; interests of the
ER who shouldnt be subject to constant unionization drives.
STEP 4: STAGES OF CERTIFICATION
1. Organizing Phase
Union signs up members of a target group must get 40% members to apply
for certification election.
ULPs important at this point
2 . Application Phase & Post-Application Phase
Union tenders documentary evidence of union membership and proposed BU
category
o LRA 7(11): union must give copy of application to ER according to time
rules made by LRB or, if there are none, the same day application is filed
o LRA 7(12): written description of proposed BU, estimate of # of individuals
in it
o LRA 7(13): evidence = list of members, evidence of their status as union
members (union does not give this info to ER)
o LRA 7(14): If ER disagrees with description of proposed BU, can propose
alternative; must do so within 2 working days of receiving application
LRB determines voting constituency, takes into account description of proposed
BU in application; and description proposed by ER LRA 8(1)
If at least 40% membership in BU, LRB will order representation vote - LRA
8(2)
Unless LRB directs otherwise, representation vote must be held w/in 5 days LRA 8(5)
o Policy: minimize the potential for employer interference in the vote
If ER disagrees with union estimate of # of individuals in unit, can notify Board
within 2 business days (LRA 8.1(1)-(3))
Board then makes a determination pursuant to LRA 8.1(5)((1)-(8))
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3. Election & Post-Election Phase
If no ER objection to BU or estimate: count vote
If employer proposed alternative BU or challenged BU membership, hold postvote hearing to determine issues LRA ss 8.1(1)-(5), 9(2)
o LRB always determines BU definition if it accepts a larger
definition of BU and this means that union did not actually have 40%
membership at time of application, vote will not be counted
o when the election is held within 5 days, ballots from individuals whose
eligibility is unverified are put in a special pile and sorted out afterwards
If union wins majority of votes cast, LRB certifies LRA s 10(1)
If union does not win majority support, LRB must dismiss application; union
barred for 1 yr after the decision from bringing another application for
certification in respect of those EEs LRA ss 10(2) and (3)
If union withdraws a certification application before vote: union
permitted to withdraw its application for certification but then LRB has
discretion to bar union from making another certification application in relation
to that group of employees for up to one year LRA ss 7(8) and (9)
III.
LEGAL FRAMEWORK:
Definition of bargaining unit, s. 1(1): the definition of a bargaining
unit is made by the LRB this means that unions have given up an
element of freedom of association .
Certification cannot occur for multi-employer units (construction
industry is different); can have smaller units (i.e. organizing on plant by
plant basis, or subdivision)
fragmentation is the norm CB doesnt occur at an industry-wide level
Power of the Board, s. 9(1): determines the unit of EES is appropriate
for CB not union or ER
Specific Rules, ss. 9(3)-9(5), 14:. LRB may take EE wishes into account, but
these are not determinative
BU must be at least 2 members, 9(1)
Trade or industry-specific rules:
LRA s 9(3): craft workers BU under a particular ER /particular plant
LRA s 9(4): professional engineers
LRA s 9(5): dependent contractors
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LRA s 73(1): ER cannot CB or enter into a CA with any other TU while TU
while a trade union continues to possess the right to represent the EEs of that
bargaining unit.
LRA s 76: Intimidation and Coercion - ER cannot use intimidation or coercion to
discourage membership. See case law
LRA s 77: LRA Duty of EE/TU not to persuade during WH does not authorize
any person to attempt to persuade an employee to join or refrain from joining a
trade union while at work during working hours
LRA s 87(1) & (2): Any witness testifying for the purposes of this Act is protected
from retribution from the employer and or the trade union
NOTE: While all ULP are equally unlawful, the board held in KMART that a
violation of s 87 must be viewed with the gravest concern, striking as it
does at the very root of the statutory framework.
LRA s 96: Authorizes the OLRB to investigate, report and a devise remedy for any
violations.
96(5): When ER has acted against the EE in relation to their
employment, onus shifts to ER to prove the actions they took were
without an anti-union animus
Just have to show there was no anti-union animus
o Typically do this by satisfying board on BoP that they didnt even
know there was a drive taking place, or if they did know that they had
other unrelated grounds for taking the action
LRA s 104: Makes it clear violations of LRA are an offence
LEGAL FRAMEWORK UNFAIR LABOUR PRACTICES BY UNIONS
LRA s 71: Unions not to interfere with ERs organizations/contribute financial
or other support to an ERs organization
LRA s 73(2): Trade Unions not to interfere with bargaining rights.
No union shall, so long as another trade union continues to be entitled to
represent the employees in a bargaining unit, bargain with or enter into a
collective agreement with an ER or an ERs organization
LRA s 77: Persuasion during working hours.
Nothing in this Act authorizes any person to attend the place at which
an EE works to persuade the EE during working hours to become or
refrain from becoming or continuing to be a member of a trade
union.
LRA s 76: Intimidation and Coercion.
No person, union or ERs organization shall seek by intimidation or coercion
to compel any person to become or refrain from exercising any other rights
or from performing any obligations under LRA
LRA s 104: Makes it clear violations of LRA are an offence
APPLICATION
1. UNION ACCESS TO CONTACT INFORMATION: THE UNION IS
NOT ENTITLED TO GET A LIST OF THE EES FROM THE ER.
THE REFUSAL TO RELEASE THIS INFO IS NOT AN ULP.
INCUMBENT UPON TU TO OBTAIN THIS INFORMATION
R V STEWART INFO IN ITS OWN RIGHT CANNOT BE THE SUBJECT OF THEFT (SECURITY
GUARD TRIES TO BRIBE EE TO GET EE INFORMATION AT A HOTEL).
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before LRB on behalf of the union amounts to a deliberate
attempt to obstruct witnesses from giving evidence.
DISCHARGE and REINSTATE pro-union EEs :
United Steelworkers of America (Applicant) v. Wal-Mart Canada, Inc. [1997]
OLRB --->
ER ECONOMIC PWR CANNOT BE USED AS FORM OF INTIMIDATION TO PREVENT UNIONIZATION;
INCLUDES THREAT OF POTENTIAL SHUTDOWN , BUT SHUTDOWN POST-UNIONIZATION NOT
ABSOLUTELY PROHIBITED, DEPENDS ON FACTS
Facts
Concerns an organizing drive at WM, upper management walked through
stores, constantly approaching EEs and soliciting Qs on the union. This
activity wasnt enough on its own; the key allegation in the unions view
is that the company raised issues of economic and job security with the
employees and then refused to answer questions asked on these matters.
In unions view, companys failure to answer the Q will the store close if
the union is successful led the EEs to conclude that the store would in fact
close if union was successful.
No overt surveillance, but covert surveillance possible
Group meetings? Ok, but have to be used carefully. OK (risk some EES
will denounce)
Individual conversations, ULP here Managers speaking with EES over
course of 6 days to ensure resources available extremely effective
tactic of intimidation or undue influence contrary to s. 70.
INDIVIDUAL MEETINGS THAT WALMART RAN? RISKY RESPONSE HERE, NOT ULP WITHOUT
MORE
Service Employees International Union, Local 204 v. Kennedy Lodge Inc, [1984]
OLRB ---> cannot utilize contractors when doing so will result in
termination of BU EEs
Facts
Nursing home is unionized. Decides to contract out so it can hire contract
employees to do work at lower wage than that agreed to in CA. This resulted in
large numbers of terminations of BU EEs.
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opinion reasonably held about the business, including its relationship
with the EEs, even where such statements cause the union to lose
support . Complaint dismissed.
LRA s 77 Nothing in Act allows EEs to promote/discourage unionization
during WH
(ERs may also challenge the right of EEs to discuss unionization during
NWH ,) if such discussion interferes with its legitimate business
interests.)
Freedom of Capital to Reduce Labour Force - in response to an
economic downturn is a complete answer to the reverse onus to
a ULP termination, unless closure due to anti-union animus (See
Plourde;Accutext).
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LRA S 98 INTERIM RELIEF: LRB EXERCISES POWER ONLY IF ALL OF THESE CONDITIONS
ARE MET
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WHO IS EMPLOYEE?
bright-line distinction between EEs and workers who provide service pursuant to
other contracts (ie independent contracting) is elusive
CML EE TEST (BASELINE WHICH THE STATUTORY DEFINITIONS EITHER SUPPLEMENT OR
MODIFY)
DEPENDS ON THE INFERENCES MADE FROM THE CONDUCT OF THE PARTIES
CML VICARIOUS LIABILITY TEST (MUST SATISFY TEST TO JUSTIFY STRICT LIABILITY
POLICY)
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# Ontario Ltd. V. Sagaz Industries Canada Inc. [2001] 2 SCR 983 ---> test to
distinguish worker as an EE or IC wrt vicarious liability; nonexhaustive and no set formula as to its application; purpose
approach
Held Not an EE; therefore, no VL
Anal
The appellant Sagaz, the competitive supplier, is not vicariously liable for the
y
bribery scheme perpetrated by its consultant. The consultant was not an
employee of the supplier but an independent contractor. The relationship
between an employer and IC does not typically give rise to a claim in
VL.
Purposive approach is it appropriate to impose VL? (no one conclusive test)
SAGAZ TEST: "whether the person who has been engaged to perform the
services is performing them as a person in business on his own
account" [para 47]
CONTROL: not determinative
Whether the man performing the services provides his own equipment,
Whether he hires his own helpers,
The degree of financial risk taken by the worker,
The degree of responsibility for investment and management held by the
worker,
The workers opportunity of profiting from sound management in the
performance of his task
.POLICY REASONS
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5) The intention of the parties, often evidenced by an agency
agreement, employment agreement, contract for service,
contract of service or limited term contract;
6) Business or government records which reflect upon the status of the
parties;
7) The economic or business market;
8) The existence of the same or very similar services supplied to an
employer by a person or persons who are classified as
workers under the Act;
9) Substitute service;
10) Size of the consideration or payments;
11) Degree of integration.
Determination of status
1) whether the agent provided service exclusively to the principal; 2)
whether the agent is subject to the control of the principal, not
only as to what is sold, but to when, where and how it is sold; 3)
whether or not the agent has an investment or interest in the
tools relating to the service; 4) whether the agent has
undertaken any risk or has any expectation of profit distinct
from a fixed commission; and 5) whether the agent is part of the
business organization of the principal
FASKEN MARTINEAU, DUMOULIN 2014 SCC 39 CAN PARTNER BE EE AND PARTNER?
An individual in question cannot be a partner and EE b/c because collectively
partners are the ER, and therefore may be deprived of the protections labour
and employment law offer
Partner was not under genuine control, firm was both run by and for benefit of
partners
Absence of purposive discussion - Complainant argues to achieve purposes
of HR, the term EE should be interpreted expansively to cover as many
HOWEVER The benefits under the ESA are not made available to all employees.
Exemptions - O. Reg. 285/01.
MANAGERIAL EXEMPTION S (managerial and supervisory employees;
not managerial if performining non-managerial work 50% of
the time)
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O. Reg. 285/01
s. 8(b): exemption of managerial and supervisory employees from OT
conditions in ESA
S.4(1): exemption of managers from: s.17 (hrs of work), 18 (hrs free from
work) and 19 (exceptional circumstances) of ESA
ESA ---> WHO IS AN EMPLOYEE ( s 1 definition)
a) A person, including an offi cer of a corporation, who performs
work for an employer for wages
b) A person who supplies services to an employer for wages
c) A person who receives training from a person who is an
employer, as set out in subsection (2), or
d) A person who is a homeworker.
employer includes,
a) An owner, proprietor, manager, superintendent, overseer, receiver or
trustee of an activity, business, work, trade, occupation, profession,
project, or undertaking who has control or direction of, or is directly
or indirectly responsible for, the employment of a person in it, and
b) Any persons treated as one employer under section 4
employment contract includes a collective agreement.
wages means, (ecludes tips, gifts, bonuses, expenses and
travelling allowances)
a) Monetary remuneration payable by an employer to an employee under
the terms of an employment contract, oral or written, expressed or
implied,
b) Any payment required to be made by an employer to an employee
under this Act, and
c) Any allowances for room or board under an employment contract or
prescribed allowances,
EXCLUSIONS
S. 1(2) Persons receiving training an individual receiving training
from a person who is an employer is an employee of that person if
the skill in which the individual is being trained is a skill used by
the persons employees, unless all of the following conditions
are met:
(1) training is similar to that which is given in a vocational school
(2) training is for the benefit of the individual
(3) person providing the training derives little, if any, benefit from the
individual while s/he is being trained
(4) the individual does not displace employees of the person providing
the training
(5) the individual is not accorded a right to become an employee of the
person providing the training
(6) the individual is advised that s/he will receive no remuneration for the
time that s/he spends in training
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S. 5(1): No contracting out. The ESA has to control attempts to evade
responsibility. Merely characterizing the relationship in a certain
way on paper is not determinative in law
The ESA does NOT apply to Contractors (independent or
dependent).
EXCEPTION FOR DEPENDENT CONTRACTORS: homeworkers
Re Becker Milk Co. Ltd. 1973 Whether ESA applies to managerial
staff?
BASED ON COMBINED WEIGHT OF FACTORS
(1) CONTROL; (DEGREE OF SUPERVISIO N, METHOD & TIMING OF WORK,
MANNER OF PAYMENT - LUMP SUM VS. PAYMENTS, EMPLOYS
OTHERS, MANNER OF TERMINATION?)
(2) OWNERSHIP OF THE TOOLS; (WORKER PROVIDING EQUIP & LABOUR?,
RELATES TO CONTROL)
(3) CHANCE OF PROFIT;(4) RISK OF LOSS (PERSON EMPLOYED OR IN
ENTREPRENEURIAL SITUATION - PROFITS DERIVED FROM DOING
BUSINESS?)
(CONTEXTUAL TEST, INVOLVING A PURPOSIVE APPROACH)
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transportation industry as an Owner/Operator (highly significant
factor )
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Service provider serves only one customer?
. What is the opportunity for profit with that ER?
Nature of profit - selling one's own labour or investment of capital/risk
taking
PT or FT?
MANAGERIAL EXCLUSION
(RATIONALE: ALLOWING MANAGERS TO ORGANIZE RESULTS IN CONFLICT OF INTEREST OR
AFFECTS UNION INDEPENDENCE)
Standard exclusions: Craft: non-working foremen ; Industrial:
foremen
Challenges to status quo? Comps w less hierarchical model; low level
managers more vulnerable that union protected workers
Factoring Test: City of Thunder Bay (1981) Manager or EE? Test
Facts: Managers monitor performance of employees and counsel them
Factors that influence where to draw the line between
employee/managerial roles
STEP 1: It is incumbent upon any party seeking to exclude EES from
Act come forward with affi rmative evidence that they exercise
managerial functions
STEP 2: Do EES make decisions which affect the economic lives of
their fellow employees: The right to hire, fire, promote, demote,
grant wage increases or discipline employees are all
manifestations of managerial authority OR Persons making
significant executive or business decisions or
recommendations (indirect authority or influence
STEP 3: Factual determination , the nature of the industry, the nature of
the particular business and the individual ERs organizational
scheme experienced persons will commonly supervise the work
of less experienced not necessarily managerial under section
1(3)(B); therefore, not excluded
Separate Bargaining Units: There has been a suggestion to allow for separate
BUs for managerial and non-managerial members to avoid the possibility that the
managerial EEs would take over the union/run it in line with their own preference.
But this requires legislative amendment [to recognize them in a separate BU].
There are concerns that if managers were allowed to form their own BU,
this would undermine the loyalty they owe to their ER.
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C HILDREN S A ID S OCIETY OF O TTAWA -C ARLETON : FLAT MANAGEMENT , SUPERVIORS
ENGAGED IN PERFORMANCE ASSESSMENT, COULD NOT FORM BU
Court : Here the Court is satisfied that the supervisors in the present case,
despite the less traditional disciplinary style adopted at the
CAS, play at least as significant a role in monitoring EE
performance and initiating disciplinary responses where required
as do foremen. Despite the flat management, the supervisors
are the eyes and ears of the employer.
Result : They were not allowed to form a BU.
Notes : Policy here was that managers may "rise to the top" and this would
defeat the purpose of a union; they would exist at the top of both
the employment chain and the union itself, which would lead to
even greater confusion in terms of ER loyalty
(Pointe Claire)
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Factors should include: selection process, hiring, training, discipline,
evaluation, supervision, assignment of duties, remuneration and
integration into business.
Purpose of statute in question, determines how much weight to accord
to each factor ; provs to be interpreted on basis of their purpose
PARENT-SUBSIDIARY
CB CONTEXT
CS WIND CANADA INC. 2014 CANLII 14887 (ON LRB) (CS WIND CANADA ER FOR
CB)
FACTS: Workers in question were hired by CS Wind Vietnam, a subsidiary
of CS Wind Korea. CS Wind Korea EEs from its Vietnamese operation should
be sent to Ontario to assist in the start-up of CS Wind Canada in Windsor,
ON. Management for CS Wind Canada had no role in setting the
Vietnamese workers T&C of employment .
Application of York test: CSWC has arranged their accommodation;
their transportation to and from the plant; had meals delivered to the
plant for them; paid them various cash allowances; directed their
schedules and work; has made all arrangements for the extension of their
work permits; ... CSWC which will ultimately determine (control) when they
can return to Vietnam. 2 conds of work permit are 1) Vietnamese
Workers must continue to work for CSWC and ii) at the Windsor plant.
SYSCO FINE MEATS : SYSCO WAS CONSIDERED TRUE ER OF TEMP WORKERS. UNION
SOUGHT TO EXCLUDE TEMP WORKERS FROM BU, WAS DENIED. AGENCY HIRED
AND SELECTED, SYSCO TRANSPORT AND PAY
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National Waster Services ESA does not bar Board from holding client as ER
for purposes of LRA) of it is of view that KL exercises most functions of
ER
ESA S 4
ESA: IN CERTAIN SITUATIONS, THE ADJUDICATOR CAN OVERRIDE THE EMPLOYERS ORGANIZATIONAL
ARRANGEMENT FOR THE PURPOSE OF THE STATUTE [ESA S. 4]
Section 4(1) ER and other person or persons shall all be treated as
one ER for the purposes of this act if,
a) Associated or related activities or businesses are or were carried on
by or through an ER and one or more other persons; AND
b) The intent or effect of their doing so is or has been to directly or
indirectly defeat the intent and purpose of this act
NOTE pursuant to 4(4) this will not hold SHs liable nor will it pierce
CV; Bilt-rite
(Refac Industrial Contractors (1990) When a business becomes insolvent
and its owners subsequently engage in the same kind of business as a different
corporation: in these circumstances, it ought to be possible to use s. 4 to
impose on the new business venture the liabilities of the previous ER
Avant Lithographics (1990): where it was determined that a related ER
finding was not warranted as the owners had not withdrawn funds from the old
business to invest in the new
The existence of common investors and officers does NOT automatically lead
to a related ER finding.(Novaquest)
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Common trade name (Re Million Dollar Saloon Inc)
Common ownership (Re Modern Mold Ltd)
Movement of employees between entities (Re Synform Design Group
Inc)
Sharing or transfer of premises/assets (Re Refac Industiral
Contractors Inc)
Common market or customers served by the two or more entities (Re
Refac Industrial)
(4) intent or effect of the arrangement must be to defeat, either directly or
indirectly, ESA purpose
550551 (Bilt-Rite) Ontario Limited (1991) On Gen Div --->
nature of remedial legislation opens up the ruling from Salomon; BUT cant pursue
owners of a corporation via the ESA (no piercing of corporate veil)
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CB CONTEXT
S 1(4) LRA - TO PROTECT TRADE UNION BARGAINING RIGHTS FROM MERE CHANGES IN FORM
RATHER THAN SUBSTANCE, OLRA PROVIDES S THAT ASSOCIATED ERS UNDER COMMON
CONTROL AND DIRECTION MAY BE TREATED AS A SINGLE EMPLOYER FOR COLLECTIVE
BARGAINING PURPOSES
TEST: (1) THE PURPOSE FOR THE ISSUANCE MUST BE A SOUND LABOUR RELATIONS
PURPOSE.
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o(2)UNLESS the day on which PU hires the EE is more than 13 weeks after the
earlier of his or her last day of employment with the seller and the day of the
sale.
LIABILITIES: Addressing who will be responsible for existing obligations to
employees when an employer sells its business may be controlled by K bt/w
seller and the buyer. Otherwise subject to the ESA.
S. 10 P ART XIX O R EG 287/01: Provision for contracting in of building
services i.e. cleaning services. Special provs regarding protection of
particular group of workers; contracting in of build services, more liability if
successor doesnt hire existing providers
SUCCESSOR EMPLOYER CB
LRA : instrumental , Transfer of bargaining rights to successor is limited to
circumstances involving sale or disposition of a business , not King out &
does not depend on similarity of work functions being performed;
(Bibeault;Parnelle Foods )
TEST: 1) alienation of undertaking must occur (voluntary transfer of
title) by another; 2) undertaking consisting of self-sustaining
org of resources through which specific activities can be
wholly/partly carried on. (3) the alienation establishes a legal
relationship bt/w successive employers.
FAIRNESS IN EMPLOYMENT
CML
SENECA COLLEGE V. BHADURIA No CML tort of discrimination; existing adjudicative regime
to protect right to vindicate discrimination claims. EEs may pursue discrimination claim of
ER is govt (Charter)
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(s. 46.3(1)).Principle of vicarious liability does not apply to harassment and sexual
solicitation
s 36: Tribunal empowered to add parties to sexual harassment cases incl ER
s 45.2: If ER joined to proceeding, Tribunal has power to make prospective orders.
s 45.2(1) Remedies - T has power to issue order directing any party to do anything
party ought to do to promote compliance w / act (incl reinstatement which is rare)
Arbitration- union EES Unionized EEs must pursue claim through grievance
arbitration
OLRA, s 48(12)(j)- Arbitrator has the power "to interpret and apply human rights
and other employment-related statutes, despite any conflict between those statutes
and the terms of the CA
s 45.1: HRT cannot refuse to hear a UEE's claim though may defer complaint if being
pursued through grievance arbitration; may dismiss complain if arbitrator has
appropriately dealt w subject matter
s 45.1 - Claimant barred from re-litigating same issue at HRT that was already
decided thru arbitration
Jurisprudence
Parry Sound Admin Board 2003 SCR - ER & Union cannot contract out of HR & other ER
related statutes. (i.e. implied terms of CA) ;
Baylis-Flanery 2003 HRTO: Compounded experiences (of racialized sexim or patriarchal
racism) in WP may warrant higher amt of gen damages. Mixed race female EE
discriminated against b/c of race & sex
Perez-Moreno 2013 HRTO - The protection of HR codes extends to WP related
internet postings
F: EE's makes FB posting called supervisor "a dirty Mexican". etc
ANALY
research methodology used to formulate test was (1) mostly descriptive by converting average
performance levels into min standards; (2)didn't seem to distinguish bt/w M & F
no evidence prescribed aerobic capacity necessary to M/F performing firefighter work satisfactorily.
Chosen standard should be necessary to safe and efficient performance of job
BEHAVIOUR?
A FACTOR IN
ER'S
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w/o burden on those to whom S/P applies? (D)Alternatives?
GOHM V. DOMTAR INC. (1990) - Union shared ER's duty to accommodate an EE under
HR legislation (Renaud) Held: PL awarded almost 75K in damages. ER and Union
failed to make substantial efforts to accommodate Ms. G
MCGILL UNIVERSITY HEALTH CENTRE [2007] SCC 4.: Termination clause requiring an EE to
return to work w/in a fixed period of time after a leave of absence due to
illness/disability is prima facie discriminatory, and not a BFOR (b/c it impacted
people w/ disabilities)Diss Abella J -. The effect of characterizing these policies as
PF discriminatory, (i) less generous policies, (ii) encourages undertaking of
discrimination claims, iii) discourages ERS from incorporating such provs, iv) encourages
litigation, creates uncertainty in the alw, subverts private ordering
P a g e | 40
was unable to perform the essential duties
F: ER not successful, test showed drug use, not whether EE was impaired.
IOL(2006)
Ratio: Random drug testing (w/o cause) impermissible in a unionized WP in circumstances
where CA contains dignity and respect clause protecting EE privacy. "For cause
testing" allowed pursuant to that clause. F: technology was oral fluid testing
claimed it proved current impairment
KELLOGG BROWN CO. (2007) (ABCA) (UNEQUAL PROTECTION AGAINST DRUG TEST UNION VS
NON UNION EES)
Ratio: A casual drug user, like the claimant, was not a PWD , thus not protected by law;
distinguished Entrop. Ct declined to consider if ER P policy would have been
discriminatory if it had been applied to a drug-addicted individual.
AGE DISCRIMINATION
MANDATORY RETIREMENT SCHEME ABOLISHED IN MOST PROVINCES. ANY SCHEME RE MR - APPLY
MEIORIN TEST
E XCEPTIONS INCL FIREFIGHTERS, PILOTS, JUDGES ETC
POTASH CROP OF SK 2008 SCC 45 (BFOR TEST RE: MR)
ER must show S/P is a legitimate plan, adopted in good faith and not for the
purpose of defeating protected rights (Abella J)(low standard)
Diss McLachlin J (STRICTER) i) purpose of adoptin rationally connected to
operation/sustainability of plan ii) must not impinge on right more than reasonably
necessary for plans O/S
MCCORMICK V FASKEN 2014 SCC 39:
I F HR CODES DO NOT APPLY , SUCH AS
PERMISSIBLE
RACIAL DISCRIMINATION
RACE TEST - TO ESTABLISH A COMPLAINT OF RACE DISCRIMINATION, CLAIMANT MUST SHOW, ON A BOP,
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THAT RACE WAS A FACTOR IN EXPERIENCING ADVERSE AFFECTS ARISING FROM AN EMPLOYMENT
EXPERIENCE
Context
OHRC
3 forms of sex discrimination: sexual coercio n, solicitatio n, gender
harassment broadest form
Sexual Coercion: Unwanted Sexual Attention: solicitation
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Gender Harassment: (broadest) acts (comments, posts) in WP creating an env in
which people of a part gender feel degraded/ subordinated
Sexual Harassment
OHRC
PRINCIPLE OF VICARIOUS LIABILITY DOES NOT APPLY TO
LEAVES - PREGNANCY ,PARENTAL (35 WKS), FAMILY MEDICAL, PERSONAL EMERGENCY, AND OTHERS
RIGHTS OF EE ON LEAVE
Unpaid (EI for those who qualify), continuity of benefits, vacation protection, no
loss of seniority unless on probation, remedies for violations incl
reinstatement though rare
EI - Maternity benefits requisite elements identical to sick leave : 700 hours in the
last 52 weeks
Parental benefits - each of the natural parents of a new-born /adopted child
up to 35 wks of UEI by way of parental leave.
Violations of maternity leave provs: (1) wrongfully forced leave; damages remedy 2)
fi ring due to pregnancy or pregnancy leave; 3) failure to reinstate, without
justifi cation - (2)&3 remedy is reinstatement
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provide care to spouse w disabilities
ER DUTIES
CML ER Duty to Pay Remuneration
PRINCIPLE To be entitled to Kual duty to pay, claimant must establish, (1) an
express or implied K to provide services for remuneration (EK or IC) (2)The existence of a
mutual obligation depends on (3)whether circumstances indicate an express or implied
understanding on both sides, inferred from conduct of parties .
Reeve v Reeve: Verdict for PL Implied terms of EK inferred from conduct of
parties.
PL hired by nephew to look after his farm for board, lodging and clothing. He brings an
action for unpaid wages. D's pleads there was no mention of wages.
Nickerson: No emplt relationship and duty to pay implied in situation where
daughter was living/caring for father for yrs and expectation to inheritance and estate
was disappointed. (Balfour - relationships of love and affection are not binding K)
Historically, CDN courts were loath to find EMPLT relationship & imply a duty to pay where
one fam member was working for another
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hard; arguably promise binds to fund. Diff T&C of EK offer
ENFORCEMENT OF ESA
Complaint mechanism, MOL - Incidence of complaints doesn't reflect incidence of
violations or industry where there are most violations (vulnerable workers, less access,
not sophisticated)
Proactive mechanism , ENFORCEMENT BLITZES SO MOL targets industries where
most violations are found, for .e.g. blitz against hospitality industry over next three
months.
Prosecution: rarely occurs, ERS are usually prosecuted for failure to comply with issued
orders
UEE - G RIEVANCE A RBITRATION - Union brings a grievance to enforce ESA rights (s
99, ESA). ; NO INDIVIDUAL RIGHTS FOR UEE
N ON -U NIONIZED EE S may enforce ESA rights via: Administrative Process Ministry of
Labour, Employment Standards Branch or Court (usually where claim exceeds $10,000
or class actions)
CONDITIONS FOR MAKING COMPLAINT TO MOL
Complaint must be timely (ss. 111, 96(3), 114)
wage recovery, up to 6 months prior to complaint date s. 111(1)
Vacation pay recovery, 12 months prior to complaint date, s. 111(3.1)
Where repeat contravention of the same provision against EE extended to 12
months, s. 111(4)
Where fraudulent concealment may be extended (policy manual)
Other claims (i.e. not wage recovery or vacation) 2 years (s. 96(3))
SELF-HELP CONDITION REQUISITE TO MAKE COMPLAINTS96.1(2)(3)
Steps required before complaint assigned
96.1 (1) The Director shall not assign a complaint to an ESO for investigation unless the complainant has taken
the steps specified by the Director to facilitate the investigation of the complaint
Exception
Despite subsec (1), the Director may assign a complaint to an ESO for investigation even though C has not take
specified steps.
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communicating in lang spoken by ER, has a disability that makes it difficult to contact ER.
OUTCOMES OF COMPLAINTS
Voluntary settlements, ss. 101.1 (ESO assisted), 112
Issue order: (if ER does not agree to settlement)
Wages, s. 103 ($10,000 cap 103(4)) plus admin. costs
Where violation of leave provisions, reprisals, etc., compensation/reinstatement, s. 104 (not
monetary limit) plus admin. costs
Director Liability, s. 105 (not addressing here)
Compliance orders, s. 108
Notice of Contravention (Fines like parking tickets), s. 113 - (only issued where ESO deems
appropriate to sanction ER)
$250 per affected employee for 1st offence ; Can increase for 2nd and subsequent offences.
Tickets (Provincial Offences Act, Par IProsecutions ((Provincial Offences Act, Part )))
Challenging ESO Orders (or failure to issue order) , Apply to OLRB, Part XXIII, s 115.1 et seq.;
Board has same powers as ESO
Courts: EE not required to fulfill conds, like settling, of admin remedy when using courts to
enforce rights
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under HRC & to stretch the Code to include it as a temporary illness would trivialize the
legislation.
LEGAL REGULATION OF WORK HRS & OT
OT Principl e: OT entitlement triggers at 44 hours / week at 1.5 X wage rate
(provs for averaging over 2 weeks)
CURRENT LAW TIME WORKED IS TIME PAID, EVEN IF K REQUIRES ER AUTH TO WORK - REG 285/01, S 6
S 17(1) Maximum number of hours Up to 8 hours per day
Ss 17/18 Extended Working Day 8-13 hours without consent If you took job with these
terms, with : (1) written consent of EE / union consent , info sheet provided; (2) Director
approval
S 17: Extended Working Week 48 hours, extended to 60 with written approval from
EE, director approval and info sheet given to EE
S 22& 22(6) OT over 44 hours per week requires OT pay. but may agree to OT
averaging over 2 or more weeks unlimited period can be agreed to as long as ER has EE
and director approval, may not be revoked before it expires unless both sides agree
S 22(4)unrepresented, not exceeding 2 yrs; is renewable S 22(4)
Exemption for exceptional circumstances s. 19 - emergency, urgent repair, to
prevent interruption of continuous processes/seasonal operations, to ensure delivery of
public services
Exempt job classes, incl (IT) professionals - Reg 285/01
S. 8(B): EXEMPTION OF MANAGERIAL AND SUPERVISORY EMPLOYEES FROM OT CONDITIONS IN ESA
S.4(1): EXEMPTION OF MANAGERS FROM: S.17 (HRS OF WORK), 18 (HRS FREE FROM WORK) AND 19
(EXCEPTIONAL CIRCUMSTANCES) OF ESA
Eating Periods, s.20
Vacation Pay, s 33(1) minimum two weeks annual vacation every 12 months
Union OT after 44 hrs ; EE may agree to overtime averaging over 2 + weeks S 1(3)requires (1) EE's written consent or agent (union); (2) Director approval
CLASS ACTIONS (NEW ENFORCEMENT TOOL) CERTIFICATION TEST FOR MISAPPLICATION: Is there a
basis in fact for holding, class members perform similar jobs to render inquiry
into individual facts unnecessary?
McCracken 2012 ONCA. Ct did not certify. Supervisor positions at CN were not suffi ciently
similar to determine that individual Front line supervisors were managerial w/o
inquiring into ind facts
BMO Nesbit Burns 2013 ONSC - investment advisors were certified
Bank of NS, 20102 ONCA: Certified. All class members sales workers, so determination of
whether one was managerial would resolve status of all members. Leave to appeal
was denied.
CIBC 2012 ONCA Ceritifed. bank-wide policies & practices prevented EES from receiving
owed OT pay.
CB CONTEXT , ESA APPLIES (UNION AGENT FOR PURPOSES OF GIVING CONSENT), CONFLICTING
VIEWS
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she would be entitled to payment. Here D had an express duty to provide
work, & PL was awarded damages for BOK
PRINCIPLE
COURTS WILL READ IN TERMS RAISED FROM PRESUMED INTENTION OF PARTIES, THAT GIVE BUSINESS EFFICACY TO
K AND ARE REASONABLE WHEN LOOKED AT POV OF ER AND EE
Duty to provide work by Custom - must be notorious and reasonable to displace
ER duty to pay
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An employee is considered to be laid off for a week if:
(3.1) s/he has a regular work week and s/he earns less then the amount s/he would
earn at his or her reg. rate AND the weeks is not an excluded week
(3.3) s/he does not have a regular work week but for more than 13 weeks of the 20
week time he is paid less than the average he would get paid in the 12 weeks
that preceded the 20 week period.
(3) excluded week means a week during which, for one or more days, the employee is not
able to work, is not available for work, is subject to a disciplinary suspension or is not
provided with work because of a strike or lock-out occurring at his or her place of
employment or elsewhere
Section 57: minimum periods of notice increase with the length of time a worker has been
employed
Section 58: Despite s.57, ER shall give notice of termination in the prescribed manner and
for the prescribed period if the ER terminates the employment of 50+ EEs at ERs
establishment in same 4-week period
Section 63: In addition to notice or pay in lieu thereof, the increasing incidence of plant
closures led to the provision of severance pay.
All of these protections are aimed at the situation where the K is terminated, not
suspended (temporary layoff).
Duty to treat EE with a min level of decency ; abusive and unfair treatment is
Constructive dismissal abusive treatment (damages issue)
Duty to act in good faith and fairly in dismissa l (damages issue) (mental injury
damages for this BOD); does not extend to course of employment relationship
(Piresferreira)
MINIMUM STANDARDS, STATUTORY GOOD FAITH DUTIES (RESTRICTIONS ON MISTREATMENT EES CAN
SUFFER)
OHRC harassment on prohibited grounds (race, sex, gender). Liability for HR claim
OHSA WP violence & harassment. Remedy can be sought through arbitration WP
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has no policy
FACTS : P worked as Bell Mobility account manager for 10 yrs, began to receive
negative performance reviews from A (her supervisor), became increasingly abusive,
particularly towards P. A pushed her during a dispute. A required that M subsequently
report her daily activities. M lodged formal complaint, went on sick leave & never
returned. She experiences mental distress before dismissal, while employed
Analysis , No DOC held due to policy considerations
(i) legislature should create such a tort, (ii) resolution of tort would be an unnecessary
& undesirable intrusion by crts into WP, iii) double recovery concern, damages already
available for reasonable notice, iv) DOC so broad that it could apply indeterminately,
unduly restrict ER to maximize on purchase of their labour power
Ratio: There is no freestanding CML tort for negligent infliction of mental suffering. ER
does not have a duty to take care to shield an EE during course of her EMPLT from
acts in WP that may cause mental suffering. Good faith duy does not extend to
mistreatment during the employment relation
TORT LIABILITY - MENTAL INJURY CASE LAW , ROLE TO PLAY: ASSAULT, INTENTIONAL INFLICTION
OF MENTAL DISTRESS
Prinzo (2002) ONCA : Test for intentional tort of infliction of mental distress: 1) flagrant
or outrageous conduct; 2) calculated to produce harms; and 3) resulting in a visible
and provable illness. In Pieresfierra TJ overturned that 1 st element had been
met
Colwell (2008)ONS C: ER held liable for secretly placing camera in EE's offi ce, could not
provide valid explanation, and amounted to breach of implied ER GF duty/Courts
implied term in mutual duty of good faith/fair treatment through existence of K, as
well as during termination.
Jones v Tsige 2012 ONCA: recognizes tort for violation of privacy that amount to
intrusion upon seclusion. Elements: an intentional invasion, without
lawful justification, of the PL's private affairs, where a RP would regard
the invasion as highly offensive causing distress, humiliation or anguish
R v Cole 2012 ONSC: A teacher had a reasonable expectation to privacy, though PC
was ppty of school. Admin was informed that teacher's laptop had inappropriate
photos of one of the students. Case was decided on basis that admin had a stat
duty to report.
CB & DUTY
OF
FAIRNESS
limited to 3 circumstances (Palmer & Snyder): (1) ER has duty not to exercise
discretionary powers in an arbitrary/discriminatory bad faith manner . (2)ER duty to
act reasonably when adopting rules with disciplinary consequences. (3) ER has duty
to must exercise their discretion reasonably when to do so unreasonably would
undermine rights conferred by another prov of CA
Duty of fair K administration : most arbitrators reluctant to find this gen duty
Some CA impose duty on managerial auth to act reasonably & in good faith. (In
MB, imposed by stat)
Individual grievances for mistreatmentcrts will limit broad arbitral
interpretations
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Stelco Inc 1994 17 OR: Management decision made in good faith can be struck down as
unreasonable simply b/c it has the effect of undermining some other right in CA
St Joseph's Hospital 1997 ONCA :
No ER duty to provide clear reasons when exercising mgmt rights to alter long standing
practices
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general meeting, is a bit intoxicated, and begins a dispute w general manager. EE,
despite being given order to say, refuses by leaves meeting with AM that hired her.
Next day, EE terminated w/o notice 3 weeks after starting for act of disobedience.
EE sues for wrongful dismissal
Application: (Misfired attempt) She followed her immediate superior who walked
out and asked her to follow. Conduct did not amount to deliberate disregard for
conds of service amounting to a repudiation. Order not related to her duties as an
ad rep
WALKER V BOOTH FISHERIES 1922
Holding : EE's conduct did not amount to wilful disobedience / He was obeying
the spirit of his instruction. He cashed a client's bad cheque after
consulting with person that ER sent to assist him. ER suffered no losses
b/c client eventually paid for goods ER company shipped.
BOUZOUROU/CHAKARIAN 1930 PC 9 (ACT OF DISOBEDIENCE DID NOT AFFECT EES SAFETY)
Ratio: EE may refuse an order to work where it affects his or her safety
Bouzourou: ER's order threatened physical safety of EE; Chakarian, Court held
that EE's excuse for refusing to go to Mersina did not involve eminent
danger, i.e. unfavourable attitude of Turkish auths
CB DUTY TO OBE Y
GENERAL PRINCIPLE - EE HAS A DUTY TO CARRY OUT AN ER'S ORDER, & SHOULD
GRIEVE ORDERS THAT SHE BELIEVES VIOLATES THE CA.
EXCEPTIONS IF NOT EXCEPTION , REFUSAL TO OBEY = SUBORDINATION SUBJECT TO
DISCIPLINE
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Ford Motor Co 1976 (Work now, grieve later)
INDUSTRIAL PLANT IS NOT A DEBATING SOCIETY. ITS OBJECT ITS PRODUCTION. WHEN CONTROVERSY
ARISES, PRODUCTION MUST GO ON AND SHOULD NOT BE STOPPED UNTIL CONTROVERSY IS
SETTLED. AUTH IS VESTED IN SUPERVISION
General Motors Kimberly- EES NOT LIABLE FOR INSUBORDINATION REFUSAL
TO WORK OT , UNLAWFUL ORDER TO WORK OT W / O PERMIT
F: ER instituted longer working hours, and EEs walked off during extended shift,
and ER disciplined EES through suspension for disobeying a lawful instruction.
Union argues EEs entitled to refuse immediately. ER had no permit
Rules: (1)If CA is silent on requiring that EEs work OT, the company has
an implied right assign compulsory OT, which is consistent with the OT
references and rates of pay for such work as set out in the CA.
Decision: EES were not liable for insubordination b/c ER was acting unlawfully by
instituting OT hours w/o a permit under ESA
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OF SANCTION
TO COVER
EES?
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WHAT CONSTITUTES A BREACH?
Dishonesty (eg. theft, fraud, etc) ; Solicitation of ER's clients (during work or
leisure time) (Wessex - milkman soliciting ER's clients on paid time)
Post - employment
Disclosure of confidential business info -(excl publicly accessible info)
(Faccenda)
Manager organizing mass departure of EEs (RBC v Dominion)
Working for a competitor during time off depends, ER must demonstrate
act gives rise suffi cient to constitute as a breach
(if ER is a monopoly; If competitor is a startup; technology/innovation, EE's
level of skill/expertise, access to confidential information) (Hivac)
Limits
Not breaches post-employment use of knowledge & skill acquired while in
service to ER
OR Lesser forms of dishonesty (depends)
Post-Employment? : (following are not within scope of GF duty, not breaches)
(1) Taking list of clients upon departure, unless client data or files (RBC)
(2) Acceptance of other EMPLT offers while employed OR informing ER of offer
terms,subject to K expiration OR duty to give notice .
(3) Establishment of same business as ER unless clients solicited before
depature
(4) TO compete or not to solicit clients post-employment (RBC)
REMEDIES ; DAMAGES OR DISMISSAL FOR BREACH OF DUTY OF GOOD FAITH AND FIDELITY
CASES
Hivac [1946] ER CA
F: P made midget valves for hearing aids, believe they had monopoly on prod.5
manual workers of Hivac work for D comp in their spare time. P seek injunction
against EEs working against comp. TJ refused .
Ratio : Scope of duty of fidelity is a factual determination and depends on
the nature of the employment (like law clerk working for another
lawyer) and the timing of impugned acts (leisure time or spare
time)
Decision: Injunction granted (1) Conduct of EES morally reprehensible & did not
disclose (2) very skilled manual labour that assisted D comp in business
start-up (3) D benefiting from technology improvements that PL comp
uses through EEs (4) EEs will not experience hardship if cannot work for
D comp
Barton Insurance Brokers, 1999 BCCA Absent express non solicitation clause
or EE is a manager or senior director in a situation of manifest
unfairness, an investment advisor owed no duty to refrain from doing.
Public interest in FOC required that courts are careful to impose duty.
RBC Dominion 2007, BCCA v Merrill Lynch Canada ; Held There was a
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limited breach of confidence due to removing of various documents,
excluding communication w clients
F: ML and its local manager induced sev RBC EES to leave ER to joint ML and take client info. RBC man
orchestrated departure. RBC sued ML/former EES & partially successful.
RESTRICTIVE COVENANTS
KRG Insurance Brokers, [2009] SCR - : Courts may allow "blue-penci l, but
not notiona l severance to save a RC for policy reasons (LOOK to right if
necessary)
(Globex Forein Exchange 2011 ABCA) RC may be unenforceable if
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ambiguous, lacks additional consideration for RCs signed by existing
EES, or enforced against wrongfully dismissed EE
Creston Veterinary Clinic Ltd., 2014 BCCA - RC characterized as
unenforceable as an unenforceable RC b/c language "setting up a
veterinary practice was ambigious", . RC held EE liable for liquidated
damages if breach
Facts : Dr entered into K w/ vet clinic after graduating from vet college &
obtaining license to practice; also agreed that if she set up a practice
w/in a 25 mile radius of the clinics place of business she would pay
$150k w/in 1 year of termination of K, 2 yrs - 120K, 3 yrs - 90K
ANALYSIS: (1) IS ACT IN QUESTION A BREACH OF DUTY OF GOOD FAITH AND FIDELITY?
(2) IF YES, WHAT IS THE CONSEQUENCE OR LIABILITY THAT ATTACHES TO THE
IMPUGNED ACT?
MERK 2005 SCC - PRIVATE SECTOR)
Rati o: EE may be justified in breaching duty of loyalty by publicly exposing
ER's wrongdoing IF (1) they first try to resolve the matter internally ,
"up the ladder" approach
Facts: Respondent trade union seeking to narrow EE protection given to EEs under by whistleblower leg
in s 74 of Labour Standards Act. Merk blew whistle on financial abuses committed by by superior U
members. Bus manager was double charging expenses to his ER credit card despite having already
received advances. M terminated, and wrote to president directly of union.
FRASER , 1985 SCC PUBLIC EES TEST FOR WHETHER BREACH IS JUSTIFIED
A public servant's duty of loyalty trumps FOE right unless statements were
(1) a public interest exception (health & safety dangers)or (2) do not hinder
ability of EE to perform duties (like damaging relations with superior by
revealing impartial policy implementation )
DUTY OF GOOD FAITH AND FIDELITY CB CONTEXT
(CB Context) Test for determining whether discipline for breach of a rule was
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warranted?
Whether the imposition of discipline for a breach of rule must be reasonable/for
just causer; (2) Rule relied upon must be consistent w CA, clear, known
to EE, and reasonable
Re Gray's Department Stores
Retail EE who sold men's clothing was dismissed for setting up a competing
business b/c he was in conflict with obligation to sell for ER.
Arbitrator found breach warranted discipline not dismissal. No
defence he that he had not solicited ER's customers.
Tolko 2013 BCLA - A union official's breach of duty of good faith is not justified
when act of insubordination committed in relation to pursuing a conflict issue
F: EE, union official was suspended for 1 day for saying "This is bullshit" during a heated discussion
about ER's unilateral adoption of a new drug policy and UO contesting the implementation process.
Held: Union offi cial had been insubordinate to order not to pursue further.
the appropriate forum for pursuing ER-EE conflicts was through CB
or a policy grievance, rather than at an information meeting
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FRUSTRATION ESA
O. Reg 288/01 s. 2(1)4: EEs whose employment Ks are frustrated by
fortuitous or unforeseen events are not entitled to minimum notice
periods . This exemption does not apply in mass terminations (50 or more
EEs)
Also, s. 2(3) provides that the doctrine of frustration does not apply
where illness or injury prevents an EE from working temporarily
[illness = notice]
BY
BY
BY
DEATH OF EITHER PARTY TERMINATES THE K BUT DOES NOT EXTINGUISH PARTIES RIGHTS
WHICH HAD VESTED TO THAT POINT (E.G. ACCRUED WAGES)
EXCEPTIONS
(reasonable) customary practices operating in lieu of giving notice
for termination (Scapillati ), like construction workers, also excluded
from ESA
Parties may specify the notice period, not less than ESA, or will be
of no force and effect - Machtinger
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CONSIDER:
Ballpark justice largely rejected as ground for penalizing workers in costs;
EE is penalized for costs of he rejects a settlement offer w/in range of
reasonableness
Near cause not a considered factor in calculating (reduced) notice periods
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REQUIREMENT TO PAY FOR DAMAGES IN LIEU OF NOTICE SUBJECT TO CML
DUTY TO MITIGATE (EVANS)
applies to both constructively dismissed and wrongfully
TERMINATION BY ACTION OF EE
VOLUNTARY QUIT NOT ENTITLED TO NOTICE BUT MUST GENERALLY PROVIDE ER W
REASONABLE NOTICE , OTHERWISE LIABLE IN LAW, CUSTOMARILY IS 2 WEEKS ,
REQUIRES SUBJECTIVE INTENT & CLEAR UNEQUIVOCAL BEHAVIOUR
Dowling Red & White - ambiguous resignation, conduct like walking out in
the heat of the moment is not usually suffi cient evidence to
demonstrate intent
CONSTRUCTIVE DISMISSAL OR QUITTING FOR CAUSE
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dismissal .
Mckinley: same scenario, but case of dishonesty. EE suffered a medical
WOULD INCLUDE DISCIPLINARY AND NON-DISCIPLINARY LAYOFFS FOR REASONS THAT ARE ACCEPTED IN
THE SCHEME
ESA - WHERE THERE IS DISMISSAL FOR JUST CAUSE, THIS DISQUALIFIES EES FROM
STATUTORY ENTITLEMENT REG 288/01 LIST OF EES NOT ENTITLED TO NOTICE
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UNLAWFUL TERMINATION TAKE PLACE IN CONTRAVENTION OF STATUTE FOR E.G.
REPRISAL CONTRARY TO STAT DUTIES OF ER; COMPENSATORY DAMAGES OR
REINSTATEMENT CAN BE ORDERED BUT RARE
LRA: MEET WITHIN 15 DAYS OF GIVING NOTICE UNLESS PARTIES AGREE TO A DIFFERENT
TIME
Good faith and make every reasonable effort: NOT A DUTY TO AGREE
No obligation to compromise each party can pursue its own
vision of what is best for themselves.
CB is a procedural, not substantive right. Each party can pursue
their vision in a hard-headed manner. Failure to agree
conciliation process.
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(i.e. sometimes voluntarism breaks down).
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Purpose is irrelevant to the definition [they are going to get caught as a
strike even if for pol. Purpose; could be directed towards
government ].
Unions in Ontario attempted to persuade OLRB that work stoppages called
to protest against Con. Government of Mike Harris in 1995 and
1996 were protected (Days of Action, not strikes). They were
unsuccessful (GM Canada and TTC)
LOCKOUT: includes the closing of a place of employment, a suspension of
work or a refusal by an employer to continue to employ a number of
employees, with a view to compel or induce the employees ,OR to aid
another employer to compel or induce that employers employees,
to refrain from exercising any rights or privileges under this Act OR
to agree to provisions or changes in provisions respecting terms or
conditions of employment or the rights, privileges or duties of the employer,
an employers organization
Purpose is critical it is only a lockout if the aim is to compel or
induce an EE to agree to a term / condition. Means that ERs
could easily engage in capital strikes for the purpose of
influencing government policy because this is not included in
the def'n of a lockout.
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POLICY : stopping unlawful strike activity is a very high priority, this
was always a goal of post WWII CB regime
REMEDIES FOR UNTIMELY STRIKES
Grievance Arbitration:
Individuals can be disciplined
Union can be held responsible offi cials under strict obligation to
prevent untimely strikes
Compensatory damages available
Statutory Remedies
Declaration of unlawful strike/lockout, s. 100
Declaration can have status of court order: defiance=contempt, s.
102
Damages, s. 103
Provincial offence, s. 104 (consent of OLRB required, s. 109)
SECTION 78: REGULATING EMPLOYER TACTICS
a) Prohibition on the use of professional strikebreakers : a person
who is not involved in a dispute whose primary object, in the Boards
opinion, is to interfere with, obstruct, prevent, restrain, or disrupt the
exercise of any right under this Act in anticipation of, or during a
lawful strike /lockout
b) this goes back to the common practice where ERs would hire ppl to
come in and break strikes up
c) Prohibition on strike-related misconduct: means a course of
conduct of incitement, intimidation, coercion, undue influence,
provocation, infiltration, surveillance, or any other like course of
conduct intended to interfere with, obstruct, prevent, restrain or
disrupt the exercise of any right under this Act in anticipation of, or
during a lawful strike or lock-out
d) Cruder tactics
e) Replacement workers permitted in most jurisdictions: Some
jurisdictions will allow employers to hire replacement workers while
their workers are on strike or locked-out. Quebec and BC have a ban
on the use of replacement workers. It is allowed in ON.
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Direct inducement of BOK Requirements
LABOUR INJUNCTIONS
POLICY: THESE REFORMS LIMITED JUDICIAL INTERVENTION IN PICKETING SITUATIONS COULDNT IMPOSE AN INJUNCTION JUST FOR THE TORT OF SECONDARY
PICKETING.
COURTS DEVELOPED A REPUTATION FOR GRANTING INJUNCTIONS IN LABOUR DISPUTES AT
THE DROP OF A HAT - THIS GOT SO BAD THAT A COMMISSION INQUIRY LED BY
IVAN RAND IN THE 60S CALLED FOR A RESTRICTION ON JUDGES ABILITY TO
GRANT INJUNCTIONS IN LABOUR DISPUTES SO LAW AMENDED UNDER COURTS OF
JUSTICE ACT.
COURTS OF JUSTICE ACT S 102, CONDITIONS FOR GRANTING
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MUST BE SATISFIED THAT REASONABLE EFFORTS TO OBTAIN POLICE ASSISTANCE TO
PREVENT DAMAGE TO PROPERTY, INJURY TO PERSONS OR OBSTRUCTION HAVE BEEN
UNSUCCESSFUL S. 102(3)
AFFIDAVIT EVIDENCE RESTRICTED TO FACTS WITHIN PERSONAL KNOWLEDGE S. 102(4)
TIMELY NOTICE OF MOTION (2 DAYS UNLESS EMERGENCY , EX PARTE IF IRREPARABLE
DAMAGE ETC.) MUST BE GIVEN IN SPECIFIED FORM, UNLESS EMERGENCY S. 102 (6-8)
Ratio
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STRIKE SITUATION:
In the 1987 Labour Trilogy protects the right to form associations, not
the form of activities the associations were engaged in
BC Health Services SCC overruled this Trilogy and held that Freedom
of Association protects right to CB BUT not the right to strike
Ex: the decision to legislate Canada Post workers back to work in the
summer is now subject to a Charter challenge
i) The right to picket?
DOLPHIN DELIVERY (1986) SCC ---> Charter doesnt apply to private
litigation between parties relying on CL; courts are seen as neutral
arbitrators, not a part of the govt
Facts
BCSC granted injunction to prevent union from seeking declaration that
Dolphin Delivery was an ally of primary ER in dispute. Union challenges
as a violation to FOE.
-Union appealed the granting of injunction, calling it an unjust
interference with its freedom of expression
Analysi Picketing is expressive, important, but restraints are demonstrably
s
justified
HOWEVER, the judiciary ought to apply and develop common law principles in
manner that is consistent with Charter values.
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Held - Secondary picketing is legal so long as it is not tortious (on some other
basis, for example where threats were being made, or blocking is
evidenced) or criminal in nature)
Ratio
Begin with the proposition that secondary picketing is prima facie
legal, then impose such limitation as may be justified in the interests
of protecting third parties all picketing is allowed, whether primary
or secondary, unless it involves tortious or criminal conduct
(25)our society has come to see it as justified by the higher goal
of achieving resolution of employer-employee disputes and the
maintenance of economic and social peace. The legally limited use
of economic pressure and the infliction of economic harm in a labour
dispute has come to be accepted as a legitimate price to pay to
encourage the parties to resolve their differences in a way that both can
live with
ALBERTA INFO PRIVACY COMM (2013 SCC 62) ---> SCCS MOST
RECENT
ITERATION; AFFIRMS LANGUAGE OF PEPSI CASE IN THE CONTEXT OF PRIVACY/FOE
BALANCE
COMMON LAW:
WORKERS ENJOY BROAD FREEDOM TO STRIKE, SUBJECT TO LEGAL DUTY NOT TO ENGAGE
IN TORTIOUS OR CRIMINAL BEHAVIOUR, BUT NO RIGHT TO STRIKE
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