Arbitral Standards of Review

Posted by Johannes Schenk on September 18th, 2005 — Posted in Labour Law

The Supreme Court of Canada spoke recently on the standard of review to be applied to a labour arbitrator. In two Alberta cases, Voice Construction and Lethbridge Community College, the Supreme Court held that the standard of review was reasonableness as opposed to a patently unreasonable threshold.

This position outlined in Voice and Lethbridge has been considered by the Ontario Court of Appeal in, Lakeport Brewing Corp.v. Teamsters Local Union 938, 2005 CanLII 29339 (ON. C.A.). Justice Laskin distiguishes the Alberta cases and finds that the standard of review to be applied to a labour arbitrator in Ontario remains as patently unreasonable.

Justice Laskin distinguished the Alberta cases on the language in the Alberta Labour Code providing a weaker privitive clause than the equivalent Ontario provisions. In addition, the Alberta statute provided a more direct route to judicial review than would occur in Ontario.

B.C. stands in a unique position having legislated standards of review under the Administrative Tribunals Act. That Act has blunted the B.C. debate concerning standards of review to be applied to B.C. administrative tribunals including labour arbitrators. Having said that, it can be expected that the arguments outlined in Lakeport will continue to be made by B.C. lawyers dealing with Federal labour matters and administrative bodies.

Illegal Picketing: Picketing Employee Residences

Posted by Johannes Schenk on September 15th, 2005 — Posted in Labour Law

The Pepsi Cola case expanded allowable types of picketing. In a recent B.C. case, Telus v. T.W.U. et al., 2005 BCSC 1236, the Court made it clear that picketing at an employee’s residence was unlawful conduct and enjoined that activity. The resulting order also enjoined picketing from temporary residences such as hotel accommodation.

The Court held that the picketing was a nuisance and that this form of expression would not prevail over the right of an individual to be free from the negative consequences of the impugned conduct.

Car Allowance During the Reasonable Notice Period

Posted by Johannes Schenk on September 14th, 2005 — Posted in Employment Law

Employees are entitled to resonable notice upon dismissal without cause. The parties, perhaps with the assistance of a Judge, are faced with determining what reasonable notice is for that employee. The answer to that question flows from an analysis of various matters including the employee’s age, job, job responsibilities, future employment possibilities and a host of other factors.

The issue then turns to what earnings should be applied to the notice period. This obviously would include straight wages and may include items such as earned commissions or bonuses.

The parties will then put their minds to non-wage related items that contribute to the employee’s total compensation package. In B.C. an employee’s entitlement will typically turn on whether the item can be characterized as remuneration for an employment expense. These non-wage related items can form a considerable part of a an employee’s total package and here is where the parties rarely see eye to eye.

Car alowance is one such benefit and the B.C. Courts are reluctant to award it to employees. This was, however, not the case in McDonald v. GBC Canada Inc., 2004 BCSC 1029, where the Court found that the plaintiff’s car allowance was a taxable benefit and remuneration. The Plaintiff was awarded car allowance for the notice period.

Dismissal: Substance Abuse

Posted by Johannes Schenk on September 13th, 2005 — Posted in Labour Law

The issue of dismissal for employment related substance abuse is a continuing and evolving workplace theme. In a recent B.C. arbitration, International Forest Products Ltd. (Hammond Cedar Division) v. United Steelworkers of America Local 1-3567 (Sall Grievance), [2005] B.C.C.A.A.A. No. 184, the employer’s decision to dismiss the worker for alcohol abuse and breach of return to work conditions was upheld. The case provides a useful summary of the state of B.C. arbitral law on substance abuse by workers in safety sensitive positions and the extent of an employer’s duty to accommodate the worker. A more detailed discussion on the case will follow.

Mandatory Retirement

Posted by Johannes Schenk on September 12th, 2005 — Posted in Labour Law

Our workforce is aging and you can bet that mandatory retirement is an issue that employers and unions will be frequently dealing with over the next few years.

The basic legal framework for mandatory retirement was laid out by the Supreme Court of Canada in a series of cases over the last decade and a half. Having said that the law is fluid and that framework is open to change. As an example Ontario has recently changed its legislation with respect to mandatory retirement and it will be interesting to see if there is a ripple effect on the other legislatures. In addition, individual arbitrators who are faced with these issues on a daily basis can strike down a policy in the right circumstance. All it takes is a sympathetic worker, the right contractual language and some creative legal argument and reasoning.

The matter of mandatory retirement was recently examined in Lehigh Northwest Cement Ltd. v. Boilermakers’ Lodge D-277 (Soh Grievance), [2005] B.C.C.A.A.A. No. 169. Arbitrator Taylor gives a thorough review of the current state of the law in this area and upholds the employer’s right to maintain retirement at the age of 65.

An interesting and complex area of law that will no doubt evolve as members of an aging workforce consider their options.