Biometrics: Finger Scan Unacceptable

Posted by Johannes Schenk on January 26th, 2007 — Posted in Employment Law, Human Rights Law, Labour Law

A recent decision of the Ontario Court of Justice, IKO Industries Ltd. v. U.S.W.A., Local 8580, 2006 CarswellOnt 7541 (Ont. S.C.J., upheld an arbitrator’s decision that finger scan technology was not acceptable in the workplace. Compare this to cases cited in a previous post that I entered on this issue.

Random Drug Testing

Posted by Johannes Schenk on January 25th, 2007 — Posted in Employment Law, Human Rights Law, Labour Law

Randomn drug testing in the workplace is one of those issues that continues to provide employers, unions and employees a difficult roadmap to follow. Communications, Energy & Paperworkers Union of Canada, Local 900 v. Imperial Oil Ltd., a decison of Arbitrator Picher, deals with the issue at length and sets out a framework for acceptable practices based on Canadian precedent.

The case discusses the use of oral swabs tro detect marijuana use and rejects random testing even if the swab method could show present drug related impairment.

In particular, the case applies several guidelines in rejecting a blanket random testing approach;

Employees may not be subjected to random, unannounced alcohol or drug testing, except as part of an agreed rehabilitative program.

Employers may require alcohol or drug testing of an employee in the case of reasonable cause .

Management’s rights under a collective agreement include the right to require alcohol or drug testing following a significant incident, accident or near miss.

Drug and alcohol testing is a legitimate part of continuing contracts of employment for individuals found to have alcohol or drug use problems. This is an exceptional circumstance in which protected employee interests in privacy and dignity of the person yield to the interests of safety and rehabilitation, and allow for random and unannounced alcohol or drug testing.

An employee’s refusal or failure to undergo an alcohol or drug test in the three circumstances described above may be viewed as a serious violation of the employer’s drug and alcohol policy, and may be separate grounds for serious discipline.

A very important case to read for those in the HR and LR community.

British Columbia Municipal Prime Contractor Status

Posted by Johannes Schenk on January 24th, 2007 — Posted in Municipal Law

The Britsh Columbia WCB recently had dealt with issue of prime contractor status of the City of Surrey on a road excavation project. The matter concerned an excavation collapse fatality. The case is discussed in Canadian Occupational Health and Safety News (December 11, 2006 Vol. 29, No. 48). The City had failed to take measures to assign prime contractor status according to legislative requirements and was penalized on that basis. I was asked to provide commentary on the matter for the purpose of the article and appreciate very much being asked to do so.

Marine Drive Golf Club Discrimination

Posted by Johannes Schenk on January 23rd, 2007 — Posted in Human Rights Law

The BC Court of Appeal recently rendered a decision dealing with private club discrimination in, Marine Drive Golf Club v. Buntain et al and B.C. Human Rights Tribunal, 2007 BCCA 17.

The case concerns restrictions on female club members’ access to a lounge facility. In a nutshell, the BC Human Rights Act did not apply because the golf club was a private club.

Mr. Justice Thakray had this to say on the relevant section of the Human Rights Act:

[50] While the Code does not specifically exempt “private” enterprises, it provides that there shall not be discrimination with respect to a “service or facility customarily available to the public.” This forms the basis for the concentration in the case at bar on the definitions of “public” and “private.” In my opinion, as I have attempted to illustrate, the Men’s Lounge facility and services therein that are not available to female members are not “customarily available to the public” within the meaning of that phrase as found in section 8 of the Code.

And states further on:

[53] In the case at bar the “particular situation” pertains to the Men’s Lounge facility and the services carried out therein at Marine Drive Golf Club. In my opinion the Code does not “attempt to proscribe” legal sanctions on discrimination that denies access to, and service within, the Men’s Lounge to a class of persons within the membership of the private Golf Club.

[54] The appellants’ case strains to interpret the Code in a manner that would make it applicable to private places and matters over which there is no basis to suggest legislative intention. The appellants would have this Court adopt La Forest J.’s reasoning in Gould as an extension of Berg, but the majority in Gould did not adopt La Forest J.’s reasoning and held that “some relationships will not be subject to scrutiny” under human rights legislation. The relationship in the case at bar is, in my opinion, such a relationship.

[55] I adopt the findings of Boyd J. at paragraph 54 of her reasons:

The Golf Club is a private club. There is a formalized selection process in place under which its members are selected. While the Golf Club lacks direct or indirect control (at least initially) over the choice of the members’ guests or their UDGs or their guests, the relationship between the Golf Club and those persons remains a private one.

[56] I would dismiss the appeal.

The decision is a reminder that human rights legislation and protections extends only so far as a matter can be considered to be of a public nature.

Oops. Vancouver City Penalized for Witholding Documents

Posted by Johannes Schenk on January 17th, 2007 — Posted in Municipal Law

The City of Vancouver was heavily penalzed for witholding documents from the plaintiff during the trial process in Williams v. Vancouver (City of), 2005 BCSC 1900. The matter was heard in front of a jury. The documents in question were not properly identified in the list of documents exchanged by counsel in advance of the trial. They appeared to provide the basis for a damaging cross-examination of one of the plaintiff’s witnesses.

The result of the improper disclosure was costs thrown away and a mis-trial. Oops.