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Friday, January 8, 2016
Friday, January 30, 2015
Right to Strike Protected by the Charter
Today the Supreme Court of Canada issued the decision in the Saskatchewan Federation of Labour case on the right to strike---and yes, it is constitutionally protected.
The case can be found at the SCC website at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14610/index.do.
My favourite quote from the majority 7 to 2 decision written by Madam Justice Abella is this:
[3] The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations. As Otto Kahn-Freund and Bob Hepple recognized:
The case can be found at the SCC website at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14610/index.do.
My favourite quote from the majority 7 to 2 decision written by Madam Justice Abella is this:
[3] The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations. As Otto Kahn-Freund and Bob Hepple recognized:
The power to withdraw their labour is for the workers what for management is its power to shut down production, to switch it to different purposes, to transfer it to different places. A legal system which suppresses that freedom to strike puts the workers at the mercy of their employers. This — in all its simplicity — is the essence of the matter.
(Laws Against Strikes (1972), at p. 8)
The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction. (my emphasis).
With this decision the 1987 Trilogy of labour cases decided just 5 years after the Charter has been completely overturned. The late former Chief Justice Dickson's eloquent dissent in that case has been vindicated.
Thursday, December 18, 2014
Discrimination on the basis of family status
This blog post also available Quail Worth & Allevato law blog
I had occasion to participate on a panel at the Bargaining in the Broader Public Sector 2014 Conference organized by Lancaster House. The panel, “What’s on the Bargaining Table: Emerging Issues, Creative Solutions”, canvassed a number of topics including pensions, health and welfare benefits and work-life balance. The obligation to accommodate employees on the basis of family status came up under the topic of work-life balance. The leading case in British Columbia is Health Sciences Association v.Campbell River and North Island Transition Society available on Canlii at: http://www.canlii.org/en/bc/bcca/doc/2004/2004bcca260/2004bcca260.pdf .
I had occasion to participate on a panel at the Bargaining in the Broader Public Sector 2014 Conference organized by Lancaster House. The panel, “What’s on the Bargaining Table: Emerging Issues, Creative Solutions”, canvassed a number of topics including pensions, health and welfare benefits and work-life balance. The obligation to accommodate employees on the basis of family status came up under the topic of work-life balance. The leading case in British Columbia is Health Sciences Association v.Campbell River and North Island Transition Society available on Canlii at: http://www.canlii.org/en/bc/bcca/doc/2004/2004bcca260/2004bcca260.pdf .
In that case the court ruled that “a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee”.
The test in Campbell River has been rejected by the Federal Court of Appeal in CNR v. Seeley also available at http://www.canlii.org/en/ca/fca/doc/2014/2014fca111/2014fca111.pdf .
In Seeley, the court found that, “in order to make out a prima facie case where an alleged workplace discrimination on the prohibited ground of family status resulting from a childcare obligation is alleged, the individual advancing the claim must show:
(i) that a child is under his or her care and supervision;
(ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
(iii) that he or she has made reasonable efforts to meet that childcare obligation through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
(iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.”
Note that the approach is not limited to childcare obligations, but any obligation to any family member to whom there is a legal responsibility.
British Columbia is an outlier when it comes to protection from discrimination on the basis of family status and sooner or later the issue will make its way again to the Court of Appeal. There a panel of five judges can reverse a previous decision. If not, the issue is sure to end up at the Supreme Court of Canada. Regardless of the state of the law, accommodating family obligations, no matter how substantial or “trivial”, is an important issue in the workplace that both employers and unions are required to try to address in a progressive and effective manner at the bargaining table.
The test in Campbell River has been rejected by the Federal Court of Appeal in CNR v. Seeley also available at http://www.canlii.org/en/ca/fca/doc/2014/2014fca111/2014fca111.pdf .
In Seeley, the court found that, “in order to make out a prima facie case where an alleged workplace discrimination on the prohibited ground of family status resulting from a childcare obligation is alleged, the individual advancing the claim must show:
(i) that a child is under his or her care and supervision;
(ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
(iii) that he or she has made reasonable efforts to meet that childcare obligation through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
(iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.”
Note that the approach is not limited to childcare obligations, but any obligation to any family member to whom there is a legal responsibility.
British Columbia is an outlier when it comes to protection from discrimination on the basis of family status and sooner or later the issue will make its way again to the Court of Appeal. There a panel of five judges can reverse a previous decision. If not, the issue is sure to end up at the Supreme Court of Canada. Regardless of the state of the law, accommodating family obligations, no matter how substantial or “trivial”, is an important issue in the workplace that both employers and unions are required to try to address in a progressive and effective manner at the bargaining table.
Thursday, November 6, 2014
I've joined Quail Worth & Allevato
Please check our firm's blog at Quail Worth & Allevato for commentaries and updates.
Monday, May 12, 2014
LNG and provincial taxes
Taxing LNG Exports
Energy lawyer Jim Quail of Quail & Worth argues that the provincial government will not be able to tax liquefied natural gas exports in a blog post at http://qwlaw.ca/qw-law-blog. An interesting read.
Energy lawyer Jim Quail of Quail & Worth argues that the provincial government will not be able to tax liquefied natural gas exports in a blog post at http://qwlaw.ca/qw-law-blog. An interesting read.
Tuesday, April 22, 2014
Quail & Worth--- new law firm
Check out Quail & Worth, Barristers & Solicitors the best new labour and regulatory law firm in Vancouver !
Monday, February 10, 2014
Utilities Regulation and the law
Jim Quail, the Legal and Regulatory Director of COPE 378 the union representing employees of regulated utilities in our province, has written a two blog-posting primer on the regulation of utilities and the energy sector. As energy is one of the prominent policy issues facing us today, his postings are a good read.
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