Employers' Advisor

Employers’ Advisor June 2024

Articles:

  1. Employer Sets the Standard for Response to Discriminatory Conduct
  2. Is This Legislation Fare? Court of Appeal Affirms that the TTC Act is Unconstitutional
  3. Employers Strike Out at the Picket Line: Federal and BC Governments Amend Labour Codes in favour of Unions and Employees
  4. Divisional Court Clarifies Employer Duty to Investigate and Address Sexual Harassment

Employer Sets the Standard for Response to Discriminatory Conduct 

Jakob Sanderson

In an April 2024 decision, the B.C. Human Rights Tribunal held that Parq Vancouver – a prominent casino operator in the city – covered all its bases in responding to an incident of discriminatory conduct by one of its employees.

The Complainant worked in the “Cage” – the casino’s cash storage and cashier station – as a shift manager. The Complainant was also the survivor of a serious health condition and related surgery, which left her with a speech impediment. One of her co-workers (another non-managerial employee) allegedly mocked and mimicked the Complainant’s impediment in front of other employees. Under the B.C. Human Rights Code, these allegations – which were substantiated – constituted a prima facie instance of discrimination on the basis of a disability.

The Complainant filed a human rights complaint against both the employee and her employer. However, the complaint was dismissed because the employer was deemed to have already responded appropriately and conclusively to the matter.

The Appropriate Response to Discrimination

The Tribunal laid out the three obligations that an employer must meet in order to demonstrate it responded appropriately in a case such as this:

  1. An employer must take complaints of discrimination in the workplace seriously.
  2. An employer must appropriately address the impact of discrimination on the complainant.
  3. Where necessary, an employer must take appropriate steps to ensure the discrimination does not happen again.

The Human Rights Tribunal found that the employer in this case met all three obligations.

Regarding the first obligation, the employer commenced its investigation within three days of the complaint being filed, and concluded its investigation within a total of two months, which the Tribunal deemed to be reasonable in the circumstances. In addition, the investigation included interviews with all involved parties and material witnesses. Lastly, the discriminatory conduct was met with an appropriate response; the employee who engaged in the discriminatory conduct was disciplined with a final written warning and required to apologize.

With respect to the second obligation, the Tribunal highlighted the employer’s accommodation of the Complainant’s medical leave, offer of access to the employee assistance program, and its disciplinary response to the discriminatory conduct. In addition, the employer offered to settle the human rights complaint prior to the hearing for a modest, but reasonable sum.

Finally, the Tribunal found that the employer met the third obligation by taking appropriate steps to proactively prevent future discrimination. It issued a memorandum to all employees regarding bullying, harassment and discrimination. It updated its existing bullying and harassment prevention policy by adding a section that more specifically defined and prohibited discriminatory conduct. It also warned all employees that discrimination was conduct that would attract disciplinary consequences, and the employer reaffirmed its zero-tolerance policy in this respect. Finally, the employer facilitated mandatory in-person training on the issue.

In sum, the employer’s response, both in the immediate aftermath of the incident and following the completion of its investigation, led the Tribunal to conclude that the employer had taken reasonable and effective steps to address and remedy the alleged discrimination, rending further consideration of the Complaint unnecessary. Accordingly, the Complaint was dismissed.

Takeaways for Employers

In this case, the employer set the standard for other employers to follow when presented with instances of discriminatory conduct by and against its employees: investigate promptly, investigate thoroughly, accommodate and discipline (if necessary), and take proactive measures moving forward.

The employer’s efforts in this case did not begin when the complaint was filed. Working alongside the team at Mathews Dinsdale both before and after the Complaint was filed, the employer developed sound policies and processes, which enabled it to move swiftly and effectively from the outset, making sure it met each of its obligations and mitigating any material liability.

Employers should follow this model, by taking steps today to ensure you are always prepared to respond effectively should such a situation arise. Contact a Mathews Dinsdale Lawyer today, to make sure your policies and practices meet the mark.

 

Is This Legislation Fare? Court of Appeal Affirms that the TTC Act is Unconstitutional

Whitney Miller

In the May 2024 decision of Amalgamated Transit Union, Local 113 v. Ontario, the Court of Appeal for Ontario (“ONCA”) upheld the lower court’s decision striking down the TTC Act – which removed the TTC workers’ right to strike – as unconstitutional. Potential strike activity loomed in the background with the expiration of the TTC and ATU’s collective agreement following just days after this decision. However, a strike was ultimately avoided after the parties reached a last-minute deal in June 2024.

Background

In 2011, the Ontario legislature passed the Toronto Transit Commission Labour Disputes Resolution Act, 2011 (the “TTC Act”). This legislation eliminated the TTC workers’ right to strike and prohibited the TTC from locking out its employees. It required the parties to submit to binding interest arbitration if they were unable to resolve issues through collective bargaining. Four years later, the Supreme Court of Canada released a decision holding that the right to strike is an integral component of the freedom of association protected by section 2(d) of the Canadian Charter of Rights and Freedoms (the “Charter”).

Against this backdrop, the ATU applied to the court for a declaration that the TTC Act violated the Charter and could not be justified under section 1. Though it took nearly seven years to proceed to a hearing, in May 2023, the application judge found the TTC Act unconstitutional and struck it down, effective immediately.

Lower Court’s Decision

Where legislation is found to infringe a Charter right, there is a two-step test to justify infringement under section 1. As a threshold issue, the application judge concluded that the TTC ACT resulted in “substantial interference” with meaningful collective bargaining as protected under section 2(d) of the Charter.

As part of his analysis under section 1, the application judge held that Ontario failed to establish that the TTC is an “essential service” as defined in the caselaw and that the TTC Act did not have a “pressing and substantial” objective. He concluded that the evidence did not support Ontario’s position that the disruption of transit services would have a serious impact on traffic, pollution or health and safety.

The application judge also emphasized that the legislation was not minimally impairing, described it as a “blunt instrument” that completely removed workers’ right to strike. He concluded that the benefits that might be achieved by removing the right to strike did not outweigh the legislation’s negative effects.

Court of Appeal’s Decision

On appeal, the majority of the court agreed with Ontario that the application judge erred in his analysis as to whether the TTC Act had a pressing and substantial objective. However, these errors were “more of form than of substance.” The questions asked by the application judge had to be considered later under the proportionality stage. At the first stage, the proper question was simply whether the harms that the government believed would arise if a TTC strike caused a transit system shutdown were so grave that the legislature’s goal of preventing these harms could be seen as “pressing and substantial.”

The court of appeal ruled that the application judge also erred in his analysis under section 1 because he considered the lack of consultation between the government and the TTC unions prior to the enactment of the legislation under the “rational connection” stage of the test rather than under the “minimal impairment” step of the analysis. Again, however, this error was also “more one of classification than of substance.”

Critically, the application judge did not accept that the harms from a full or partial TTC system shutdown justified imposing a complete prohibition against strikes. Based on the evidence, he was not convinced that a TTC strike would jeopardize public health or safety. The court of appeal concluded that these were factual findings entitled to substantial appellate deference. As a whole, the court of appeal upheld the application judge’s findings that Ontario had not discharged its burden of demonstrating that the harms that would result from a TTC strike outweighed the interference with the Charter freedoms of TTC workers.

Key Takeaways

The court made sure to note that the constitutionality of hypothetical “back-to-work” legislation was not at issue in this appeal. The court of appeal confirmed that the issue of whether legislation requiring striking workers to return to work and submit to binding arbitration is distinct from legislation that prohibits the right to strike from the outset – constitutional questions respecting the former type of legislation will presumably be addressed another day, in the context of another case. In the meantime, the court of appeal’s TTC decision makes clear that the right to strike remains entrenched in section 2(d) of the Charter and that courts will require clear evidence to justify any infringement upon that right.

 

Employers Strike Out at the Picket Line: Federal and BC Governments Amend Labour Codes in favour of Unions and Employees 

Sherry Yu

As we continue to hear more news of increased strike activity from unionized workforces across the country, two new pieces of legislation from the Federal and BC governments add complexity to the area of labour disputes for employers in those jurisdictions.

Federal Bill C-58

First introduced in the House of Commons on November 9, 2023, Bill C-58 makes several amendments to the Canada Labour Code (the “CLC”), including an expanded prohibition against the use of replacement workers during a strike.

Previously, section 94(2.1) of the CLC prohibited employers from using replacement workers “for the demonstrated purpose of undermining a trade union’s representational capacity rather than the pursuit of legitimate bargaining objectives” – the focus of that provision was on the intent behind the employer’s use of replacement labour, and did not impose any blanket restrictions on an employer’s ability to engage alternative service providers in the case of a strike.

However, Bill C-58 repeals section 94(2.1) and amends the CLC to add a new subsection to 94, as follows:

Prohibition relating to replacement workers

(4) Subject to subsection (7), during a strike or lockout not prohibited by this Part, no employer or person acting on behalf of an employer shall use the services of any of the following persons to perform all or part of the duties of an employee who is in the bargaining unit on strike or locked out:

(a) any employee or any person who performs management functions or who is employed in a confidential capacity in matters related to industrial relations, if that employee or person is hired after the day on which notice to bargain collectively is given;

(b) any contractor, other than a dependent contractor, or any employee of another employer;

(c) any employee whose normal workplace is a workplace other than that at which the strike or lockout is taking place or who was transferred to the workplace at which the strike or lockout is taking place after the day on which notice to bargain collectively is given;

(d) any volunteer, student or member of the public.

Subsection (7) carves out narrow exceptions to the general prohibition: where the use of replacement workers is necessary to deal with situations that present imminent or serious threat to life, health, or safety; destruction or serious damage to property; or serious environmental damage.

The amendment is a significant expansion of the prohibition on replacement workers, as it removes any requirement for a union to show an unlawful intent behind an employer’s use of such workers and instead imposes essentially blanket restrictions on the use of specified categories of persons, which severely curtails employers’ ability to utilize replacement workers to maintain their operations in the event of a strike.

Bill C-58 received Royal Assent on June 20, 2024, and will come into force 12 months after that date.

British Columbia’s Bill 9

Bill 9 received royal assent and became law on April 25, 2024, amending the definition of “strike” under the BC Labour Relations Code (the “Code”) to exclude the act of refusing to cross the picket line of employees regulated not only by BC but any other jurisdiction in Canada.

Previously, the Code’s characterization of strike, and by extension what constitutes an illegal strike, was already uniquely narrow in Canada in that it excluded from the definition of “strike”, “a cessation, refusal, omission or act of an employee that occurs as the direct result of and for no other reason than picketing that is permitted under this Code.”  This meant that if there was a picket line set up outside a unionized employee’s place of work in furtherance of a lawful strike under the Code, but the strike was unrelated to the employee’s own bargaining unit, the employee’s refusal to cross said line would not be considered an act of striking.

Now, Bill 9 expands the scope of excluded picketing activities under the definition of “strike” to include “picketing conducted by employees in respect of whom collective bargaining is regulated by the laws of Canada or another province who are locked out or on strike.”  This will allow, for example, unionized workers in BC to refuse to cross the picket line of any striking employees of a federally regulated employer – despite the fact that such federal regulated activities fall outside of the province’s legislative jurisdiction.  

Conclusion

Both the federal and BC amendments introduce significant changes to the labour relations regime in their respective jurisdictions, and have important effects upon the delicate balancing of power in bargaining relationships – specifically, effects that may increase the collective bargaining power of unions by enhancing their ability to detrimentally impact employers’ operations through strike activity.

If you are federally regulated or conduct business in BC and have questions about how either of these amendments might affect your operations, please do not hesitate to reach out to a Mathews Dinsdale lawyer.

 

Divisional Court Clarifies Employer Duty to Investigate and Address Sexual Harassment 

Liam Billings

In February 2024, the Ontario Divisional Court released its decision in Metrolinx v. ATU, Local 1587, a judicial review of a labour arbitration award ordering the reinstatement of five grievors (the “Grievors”) who had been terminated for cause. The decision was overturned on review. In its reasons, the Court outlined the breadth of an employer’s duty to investigate sexual harassment in the workplace, including harassment that takes place online or outside of normal working hours.

Background

In April 2020, the Employer was informed by an employee that the Grievors were engaged in a text messaging group chat on their personal cellphones that contained negative, derogatory and sexist comments about a female employee (“Ms. A”). The Employer’s Workplace Harassment and Discrimination Policy (the “Policy”) required it to take “every reasonable step to…identify and eliminate workplace harassment and discrimination in a timely manner”. The Policy also expressly recognized that harassment included “offensive behaviour arising from the use of electronic media, devices and systems.”

The Employer initiated an internal investigation. In the course of the investigation, the investigator interviewed Ms. A, who indicated that she had not filed a formal complaint because she did not want other employees to know she had complained.

Upon completion of the investigation, the Employer determined that the conduct of the Grievors amount to workplace harassment. Accordingly, the Grievors were terminated for cause.

The Arbitration Award

The Arbitrator allowed the grievances and ordered reinstatement of the Grievors. There were several reasons for the decision. However, the focus of the Court’s review of the award was the arbitrator’s determination that the Employer should not have investigated the matter in the absence of a formal complaint.

Under the Policy, investigations were to be “initiated by a complaint”. The Arbitrator held that, when Ms. A declined to file a complaint, and no other employee complained on her behalf, “that also should have been the end of the matter.”

The Arbitrator further held that the Employer violated the reasonable expectation of privacy of the Grievors as the messages were sent between personal devices.

The Decision of the Ontario Divisional Court

The Court quashed the award, holding that the Arbitrator’s decision was unreasonable. The primary basis for this determination was that the Employer’s duty to investigate an “incident” of workplace harassment under the Ontario Occupational Health and Safety Act (“OHSA”) was not limited to only investigating formal complaints. In this regard, section 32.07 of the OHSA imposes specific duties on Employers regarding investigations into workplace harassment:

32.07(1) To protect a worker from workplace harassment, an employer shall ensure that,

(a) an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances.

As is evident from the above excerpt, the OHSA obligates employers to investigate both “complaints” and “incidents” of harassment. Accordingly, while the Employer’s Policy stated that an investigation is initiated by a “complaint”, that Policy could not limit the Employer’s obligations under the OHSA to conduct investigations into “incidents” of harassment. The Court held that the Arbitrator’s erroneous determination to the contrary permeated the Arbitrator’s reasoning throughout the award, rendering the entire award unreasonable.

Crucially, the Arbitrator’s reasoning failed to account for the substantial body of jurisprudence warning adjudicators that it is an error to rely on a victim’s reluctance to report or complain about assault or harassment to infer that the harassment did not occur in the first place. A victim’s reluctance to report or complain about sexual harassment may be caused by many factors: embarrassment, fear of reprisal, prospects of further humiliation, or the hope that, if ignored, the demeaning comments or behaviours will stop.

Additionally, the Court held that it was appropriate to consider the messages despite the fact that they were sent in a private group chat. Whatever the Grievors had intended, the reality was that the messages were liable to be forwarded to other employees and did in fact find their way to Ms. A.

The matter was remitted back to a different Arbitrator for reconsideration in accordance with the reasons of the Court. The Court held that the issue of whether termination was the appropriate penalty remained outstanding.

Key Takeaway for Employers

This decision confirms the breadth of the Employer duty to investigate harassment in the workplace. Whether there is a formal complaint or not, employers are statutorily obligated to investigate workplace harassment where there is a reasonable basis to suspect such harassment is occurring. Moreover, this duty to investigate can cover potential harassment that occurred in private messages, online, over social media or outside working hours as long as there is a nexus to the workplace relationship.

The duty to investigate can be viewed as an extension of the Employer obligation under section 25(2)(h) of the OHSA to take every precaution reasonable in the circumstances for the protection of its workers. This obligation applies to every health and safety risk inherent in the workplace, including harassment.

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This newsletter is not intended as legal advice.  Any employer or organization seeking assistance should feel free to contact a Mathews Dinsdale lawyer for assistance.

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