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 http://www.bchrt.bc.ca/decisions/2008/pdf/oct/376_Senyk_v_WFG_Agency_Network_(No_2)_2008_BCHRT_376.pdf.  Undoubtedly the Supreme Court of Canada ruling in this case will have a significant impact in our province as well.

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.

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)

LRB orders employer to provide information to the union

In  Port Transport Inc and CAW, a decision issued by the LRB on March 23, 2011 Vice Chair Topalian declared that Port Transport Inc had committed an unfair labour practice by refusing to provide the union with the following information:
a)  a current contact list containing the names, addresses, telephone numbers and e-mail addresses of all members of the bargaining unit,
b) specific information on each bargaining unit member including name, date of birth, benefit coverage (single,family, enrolled, not eligible, etc.), wage rate(s), premium(s),job classification(s) and any other form of remuneration including but not limited to vacation entitlement, and any profit-sharing, incentive or bonus plans in effect, and
c)actual data on usage and cost on all areas of any benefit plan for the past three (3) years.

The employer argued that it was not obliged to provide this information without the written consent of each affected employee.   The union argued that it required the information in order to engage in rational discussions at collective bargaining and to properly cost out its proposal in relation to wage rates, premiums and benefits.  It also said that it required the information to be able to communicate with the members of the bargaining unit and discharge its obligations under the Labour Code.  The employer had not provided any sound business concerns for not disclosing the information requested. 

Vice Chair Topalian reviewed the Board's jurisprudence in P.Sun's Enterprises B301/2003 and in The Governor and Company of Adventurers of England Trading into Hudson's Bay, (my favourite case name of all time!) B226/2004, and ordered the employer to provide the information. 

This is a very good decision that unions should take note of and apply as they prepare for collective bargaining.

BC Court of Appeal--standard of review of Human Rights Tribunal Decisions

In Lavender Co-Op Housing the BC Court of Appeal today upheld a lower court's decision that overturned the BC Human Right's tribunal finding of prima facie discrimination on the basis of marital status against the membership rules of a cooperative housing society.. For those interested in the "standard of review" this is a good case on the applicable standard to questions of "mixed law and facts" (and yes, it is correctness).  For the rest of us, the case confirms that prima facie discrimination is established  not by a comparative analysis, but by determining whether the conduct complained of is prohibited under the Human Rights Code by definition. 

First collective agreement--retroactive imposition is okay

In Osprey Care v. HEU issued on March 1, 2011, Vice Chair Ritu Mahil of the BC LRB dismissed Osprey’s application for review of an arbitrator’s decision in which, in the course of imposing a first collective agreement under s.55 of the Code, Arbitrator Vince Ready made the collective agreement retroactive to February 24, 2010 and set out an expedited process by which certain outstanding grievances would be resolved. The employer argued the arbitrator exceeded his jurisdiction.

Prior to the appointment of Vince Ready as binding mediator/arbitrator, a mediator had been appointed under s.74 of the Code and issued non-binding recommendations for a first collective agreement. The union accepted those recommendations on February 24, 2010. The employer rejected the recommendations and Mr. Ready was appointed in March 2010 to mediate/arbitrate the collective bargaining dispute. Mediation failed.

At the arbitration the employer stated it had changed its position; it now accepted the first mediator's recommendations and therefore there was nothing more to arbitrate. HEU did not agree asserting that the arbitrator had authority to deal with the effective date of the collective agreement and with the employment disputes that had arisen between the parties. The Board upheld Mr. Ready’s award,  finding that the Board’s previous decision in Royal City Manor B27/95 established that s.55 arbitrators could impose first contracts retroactively. Further Vice Chair Mahil ruled that a purposive interpretation of s.55 allowed the arbitrator to not only impose a first collective agreement, but to address “seething issues” between the parties in order to aid the “goal of establishing enduring bargaining relationships”. The order that outstanding disputes be resolved by a process of expedited arbitrations was upheld.

One should note that Vince Ready was one of the three members of the Commission appointed by the NDP government in 1991 that recommended revisions to the Labour Code, including the current first collective agreement provisions found in s. 55 of the Code.

Osprey Care is a for profit care facility in Kamloops.

LRB upholds decision to terminate LTD benefits

In Dewell v. BC Public Service Agency  Vice Chair Adam dismissed a grievor’s application for review of the decision of a claims review committee that upheld cutting off her long term disability benefit. Under a number of BC public sector collective agreements (public service and health for example) medical disputes about long term disability are adjudicated by a panel of doctors. The LRB has ruled that such decisions fall within the definition of an arbitration which is reviewable under s.99 of the Code and the usual tests for review apply. In this case the grievor alleged that she had been denied a fair hearing.
An interesting feature of this case is that the union did not participate in the application. While a union has exclusive conduct of a grievance through all of its steps, including arbitration, the Code allows grievors who are unhappy with the results of an arbitration award to bring an application to the LRB independently of the union.

The case also contains a good summary of when an arbitration award may be challenged on the basis of new evidence.  Adam quoted from a previous court decision as follows:

In addition to the requirement that the proposed new evidence go to the heart of the issues to be determined by the arbitration board and that the new evidence could not have been obtained by the exercise of due diligence, the Board may, in its discretion, wish to consider other factors, including:


(a)The public interest.


(b)The nature of the grievance


(c) Motive of the applicant ...


(d)After discovery of the new evidence was the application to adduce that evidence made promptly?


(e)Does the proposed new evidence relate only to a minor or trivial issue?


(f)Have third parties already acted on the basis of the award?


(g)Was the new evidence obtained long after the handing down of the award?


I do not suggest that this list is exhaustive, or that the application of any of these factors should result in the exclusion of the new evidence in this case.