B.C. EMPLOYMENT AND LABOUR
UPDATE
Health Employers Association of British
Columbia Annual General Meeting and
Conference
Delayne Sartison and Thomas Roper, Q.C.
June 20, 2005
Vancouver Resort and Conference Centre,
Richmond,
B.C.
File number, Arial 6 points
Ryan Order
British Columbia v. British Columbia Government
and Service Employees' Union, 2005 BCCA
• Appeal of arbitration award
• Disclosure of medical records “Ryan Order”
• Appropriate test – Wigmore criteria
• Privacy interests balanced against full disclosure
2
Admissibility of Documents
HEABC Sunset Lodge -and- HEU (Hemstreet Preliminary Decision), (unreported) February 5,
2005 (Hope, Q.C.)
• Admissibility of investigation documents
• Inquiry into licensing – Allegations of patient abuse
• Not part of disciplinary file
• Admitted as similar fact evidence
3
Definition of Discrimination –
Comparator Group
B.C. Government and Service Employees' Union v.
British Columbia (PSERC), 2005 BCCA 129
• Appeal of arbitration award
• Expiration of seniority rights after 6 months on LTD if
unable to return to work
• Appropriate comparator group all employees who
could not return to work after 6 months
• No discrimination
4
Jurisdiction to Award Damages
O.P.S.E.U. v. Seneca College of Applied Arts &
Technology (2004), 133 LAC (4th) 193 (Ont. SCJ)
• Appeal of arbitration award declining jurisdiction to
award aggravated or punitive damages
• Overturned on judicial review
• Arbitrator had jurisdiction to consider whether it would
be appropriate to award aggravated or punitive
damages per Weber v. Ontario Hydro
• Remitted to arbitrator
5
Video Surveillance - Personal
Information Protection Act
Re Ebco Metal Finishing Ltd. and IABSRI
Shopmens' Local 712 (2004), 134 LAC (4th) 372
(Blasina)
• Union policy and discipline grievances
• Work performance concerns on afternoon shift
• Employer chose surreptitious surveillance rather than
having supervisors work overtime
• Not reasonable - Contrary to Personal Information
Protection Act
• Surveillance evidence not admissible
6
Discrimination - Family Status
Re Greater Victoria Public Library and CUPE, Local
410 (2004), 135 LAC (4th) 38 (Jackson, Q.C.)
• Anti-nepotism policy discriminatory but justified as
BFOR
• Policy applied in discriminatory manner
• Insufficient search for comparable employment
• Immediate transfer not necessary
7
Grievance not Moot Despite
Settlement
Re Fraser Health Authority (Surrey Memorial
Hospital) and BCNU (2004), 134 LAC (4th) 120
(Kinzie); Appeal dismissed B398/2004
• Preliminary award
• Grievances arbitrable despite fact that grievors fully
compensated
• Remedy secondary to issue of interpretation
• Section 99 appeal dismissed
8
Qualification Differential - Estoppel
Fraser Health Authority (Surrey Memorial Hospital)
-and- BCNU, (unreported) February 28, 2005
(Kinzie)
• Qualification differential for special clinical preparation
• Completion of full program required to qualify
9
Duty to Accommodate
HEABC Royal Columbian Hospital -and- BCNU,
(unreported) April 20, 2005 (Sullivan)
• Unable to return to former position due to back injury
• Employer took no steps to determine whether jobs
could be adjusted or modified
• Employer failed to take initiative in job search
• Duty to accommodate not met
10
Joint Consultation, Section 53
HEABC, BCLRB No. B393/2004 (Recon. of
B415/2003)
• The Board’s preliminary views on s. 53
• Opportunity to engage in discussions before final
decisions made
• Regular consultation required (every 2 months)
• Broad interpretation
• Some issues may be kept confidential
• Arbitration or BCLRB application
11
Bad Faith Bargaining
Re Thunderbird Winter Sports Centre, BCLRB No.
B164/2004
• Employer requested Union proposals in advance
• Confirmed they would have none of their own
• Employer came to first meeting with 24 new proposals
• Bad faith bargaining
12
Partial Decertification
British Columbia Cancer Agency (Genome
Sciences Centre), BLCRB No. B113/2005
• Application to delete Genome Sciences Centre (GSC)
from HEU facilities subsector certification
• LRB concluded GSC employees would not constitute
an appropriate unit
• IML factors
• Job descriptions and wages set by Provincial Health
Services Authority benchmarks
13
Contracting Out
Re Renfrew Care Centre Partnership, BCLRB No.
B72/2005
• Preliminary ruling on arbitrator’s jurisdiction to
determine contracting out
• Health and Social Services Delivery Improvement Act
• General policy of deferral to arbitration
• Arbitrator had authority to determine his/her own
jurisdiction
14
Freedom of Expression and Political
Strikes
HEABC et al, BCLRB No. B395/2004 (Recon.
B64/2004 and B92/2004)
• Different reasons from each of Associate Chair
Fleming, Registrar and Vice Chair Brown, and Chair
Mullin
• Overall result was that definition of strike valid and
applicable
• Associate Vice Chair Fleming - definition of strike
contrary to Charter - conduct of HEU not peaceful conduct of BCTF should be protected
15
Freedom of Expression, continued
• Vice Chair Brown - definition of strike saved by s. 1 of
the Charter - clarity in Board policy required
• Chair Mullin - no jurisdiction to declare strike
unconstitutional - HEU activities not protected by
Charter - BCTF activities not protected by Charter
because government action did not trigger need for
Charter protection
16
Application for Variance
Certain Biomedical Engineering Technologists
(HEABC), BCLRB No. B126/2005
• Biomedical Engineering Technologists applied to be
included in paramedical professional bargaining unit
• Agreed that BMET’s included in paramedical
professional unit
• Covered by Paramedical Professional Bargaining
Association agreement
• BMET’s to be members of HSA not HEU
17
Aggravated, Punitive and Wallace
Damages
Keays v. Honda Canada Inc., [2005] O.J. No. 1145
(SCJ)
• Plaintiff suffered from Chronic Fatigue Syndrome
• Refusal to meet with company physician was not just
cause for dismissal
• Forcing Plaintiff to meet with company physician and
insensitive manner of dismissal merited Wallace award
• 15 months notice plus 9 months for Wallace damages
• Punitive damages $500,000 - conspiracy of
intimidation
18
Employment for Life
Foreman v. 818329 Ontario Ltd., [2003] O.J. No.
3327 (CA)
• Bingo hall manager’s employment contract provided
that employer “shall not dismiss Anne Marie”
• Plaintiff argued intent was to provide employment to
age 65
• Trial court awarded 33 years lost wages to age 65
• Overturned on appeal
• Contract for life would require clear language
• Minority judgment dismissed the appeal
19
Guaranteed Notice Period
Martell v. Ewos Canada Ltd., [2005] BCJ No. 60
(SC)
• Senior executive of fish farm
• Contract provided 12 months salary on termination
“without prejudice” to right to seek additional notice at
common law
• Court concluded that this meant a guarantee of 12
months in addition to common law notice
• 16 months common law notice plus 12 months under
contract
20
Bad Faith Negotiating
Cain v. Clarica Life Insurance Company, [2004] A.J.
No. 837 (QB)
• Settlement agreement negotiated on termination
• Agreement set aside due to bad faith
• Employer’s first offer was not within the range of
reasonable notice
• Employer opened with an offer of 7 months notice
• Plaintiff would have been entitled to between 20 - 24
months - low offer was bad faith negotiation
21
Enforceability of Salary Continuance
Tull v. Norske Skog Canada Ltd., [2004] BCJ No.
1691 (SC)
• Employer offered Plaintiff the choice on termination of
lump sum or salary continuance
• Plaintiff chose neither and defaulted to salary
continuance
• Court concluded that salary continuance may be
endorsed by the court where the amount was
reasonable but lump sum was established principle
22
HEU Appeal of Charter Challenge
Health Services and Support Facilities Subsector
Bargaining Assn. v. British Columbia, [2004] SCCA
No. 587
• Leave to appeal to the Supreme Court of Canada
granted
• [2003] BCJ No. 2107 determined Health and Social
Services Delivery Improvement Act not in violation of
the Charter
23
Duty to Accommodate
Gordy v. Painter’s Lodge (No. 2), 2004 BCHRT 225
• Second decision of HRT
• Duty to accommodate fishing guide’s mental disability
• Detailed roadmap
• Employers must investigate less discriminatory
alternatives and show the process undertaken in the
investigate
• Nine contextual factors considered
• Oak Bay did not adequately investigate alternatives
24