Sunday, October 30, 2011

Canada Human Rights Tribunal has no authority to award legal costs, SCC rules

On October 28, 2011 the Supreme Court of Canada issued a decision in Canadian Human Rights Commission and Donna Mowat v. Canada (AG) in which it ruled that the Canada Human Rights Tribunal has no jurisdiction to award compensation for legal costs incurred by human rights complainants.  The Court found that s. 53(2) of the Canada Human Rights Act, the provision that contains the authority compensate for "any expenses incurred by the victim as a result of the discriminatory practice” does not include compensation for legal costs incurred to prosecute a complaint.

The BC Human Rights Act contains a similar provision at s. 37(2)(d) and the BC Human Rights Tribunal has also awarded legal costs to complainants in particularly egregious cases.  See for example  Undoubtedly the Supreme Court of Canada ruling in this case will have a significant impact in our province as well.

Thursday, October 20, 2011

Employer who exposed workers to asbestos found guilty of contempt

"Arthur Moore exposes his workers to asbestos, a deadly substance, without protection and upon forged hazardous-material reports that conceal the danger. He exploits young recovering addicts as his workforce."  So begins WCB v Moore a unanimous judgment issued to-day by the  BC Court of Appeal.  After several unsuccessful attempts to have Moore stop this practice, the Workers' Compensation Board obtained a court injuction.   But Moore continued and WCB made an application to the BC Supreme Court citing Moore "doing business as AM Environmental" for contempt of the injunction. 
The BC Supreme Court judge refused to make the contempt order on the basis that the  reference to "doing business as AM Environmental" created an ambiguity or confusion.  WCB appealed to the Court of Appeal.

Writing on behalf f the court, Mr. Justice Donald reviewed the law relating to contempt:
             16] A concise and most helpful summary of the principles applicable to the interpretation of an order in contempt proceedings is found in R. (Mark Dean Harris) v. The Official Solicitor to the Supreme Court, [2001] EWHC Admin 798 (Q.B.D.), wherein Mr. Justice Munby stated (at para. 68):

(i) No order will be enforced by committal unless it is expressed in clear, certain and unambiguous language. So far as this is possible, the person affected should know with complete precision what it is that he is required to do or to abstain from doing.
(ii) It is impossible to read implied terms into an injunction.
(iii) An order should not require the person to whom it is addressed to cross-refer to other material in order to ascertain his precise obligation. Looking only at the order the party enjoined must be able to find out from the four walls of it exactly what it is that he must not do.
(iv) It follows from this that, as Jenkins J said in Redwing Ltd v. Redwing Forest Products Ltd (1947), 177 LT 387 at p. 390,
a Defendant cannot be committed for contempt on the ground that upon one of two possible constructions of an undertaking being given he has broken that undertaking. For the purpose of relief of this character I think the undertaking must be clear and the breach must be clear beyond all question.

He then went on to find that in the case before him, the terms of the injuction, i.e. the conduct that was proscribed,  were very clear.  As to the name, he concluded that "doing business as AM Environmental" was surplus as AM Environmental was not a legal entity separate from Moore.  The judge also pointed out that Moore did not plead confusion, nor did he appear at the injuction hearing or at the appeal.  It was also clear on the record that Moore was at all times aware that WCB had issued an injuction.
The judge found:
I would, in conclusion, find Mr. Moore guilty of contempt. His misconduct grievously endangered workers under his direction. Unless he can in some way mitigate his indifference to the lives and safety of his workers and his open defiance of the injunction, his misconduct requires a severe response.
A warrant was issued for Moore's arrest and the matter was referred back to the lower court to assess a penalty.

Wednesday, October 12, 2011

Variation of a certification--common and not-so common objections

In the recent decision Canadian Corps of Commissionaire v. PSAC  , Vice Chair Bruce Wilkins dismissed the employer's objections to PSAC's application to vary its multi-site certification to include alarm response drivers who worked out of the Commissionaires' headquarters in Victoria and ordere that the votes be counted.
The employer had three objections to the application to vary.  The first was an uncommon objection.  The employer argued that there was a clause in the collective agreement that provided these employees would be excluded and could not be organized.  Although the Board ruled that the provision did not mean what the employer suggested, Vice Chair Wilkins went on to comment that  the right of employees to access collective bargaining takes precedence over collective agreement provisions.   
The second objection was that the unit sought to be varied into the existing certification was not appropriate as it did not include other employees in the response centre.  In dismissing this objection the Vice Chair applied the test in Island Medical Labs B308/93.  This decision is a nice and clear application of  what is often a counfounding and elusive test.
The final objection had to do with the number of employees who cast their vote in the variation.  The employer argued that because less than 50% of employees had turned out to vote, the results would not represent the will of a majority of the employees and a new vote should be ordered.  Vice Chair Wilkins reviewed the applicable law that indicates that a low voter turnout is not enough.  There must be other factors present, such as lack of adequate notice, in order to satisfy the test for the ordering of a new vote.
The Board ordered that the ballot box be unsealed and the vote be counted. (Note:  when there is an objection to a certification or variation of a certification this is usually heard after the vote has been held)