Thursday, December 18, 2014

Discrimination on the basis of family status

This blog post also available Quail Worth & Allevato law blog

I had occasion to participate on a panel at the Bargaining in the Broader Public Sector 2014 Conference organized by Lancaster House. The panel, “What’s on the Bargaining Table: Emerging Issues, Creative Solutions”, canvassed a number of topics including pensions, health and welfare benefits and work-life balance. The obligation to accommodate employees on the basis of family status came up under the topic of work-life balance. The leading case in British Columbia is Health Sciences Association v.Campbell River and North Island Transition Society available on Canlii at: http://www.canlii.org/en/bc/bcca/doc/2004/2004bcca260/2004bcca260.pdf .

In that case the court ruled that “a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee”.

The test in Campbell River has been rejected by the Federal Court of Appeal in CNR v. Seeley also available at http://www.canlii.org/en/ca/fca/doc/2014/2014fca111/2014fca111.pdf .

In Seeley, the court found that, “in order to make out a prima facie case where an alleged workplace discrimination on the prohibited ground of family status resulting from a childcare obligation is alleged, the individual advancing the claim must show:
(i) that a child is under his or her care and supervision;
(ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;
(iii) that he or she has made reasonable efforts to meet that childcare obligation through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
(iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.”

Note that the approach is not limited to childcare obligations, but any obligation to any family member to whom there is a legal responsibility.

British Columbia is an outlier when it comes to protection from discrimination on the basis of family status and sooner or later the issue will make its way again to the Court of Appeal. There a panel of five judges can reverse a previous decision. If not, the issue is sure to end up at the Supreme Court of Canada. Regardless of the state of the law, accommodating family obligations, no matter how substantial or “trivial”, is an important issue in the workplace that both employers and unions are required to try to address in a progressive and effective manner at the bargaining table.

Thursday, November 6, 2014

I've joined Quail Worth & Allevato

Please check our firm's blog at Quail Worth & Allevato for commentaries and updates.

Monday, May 12, 2014

LNG and provincial taxes

Taxing LNG Exports

Energy lawyer Jim Quail of Quail & Worth argues that the provincial government will not be able to tax liquefied natural gas exports in a blog post at http://qwlaw.ca/qw-law-blog.  An interesting read.

Tuesday, April 22, 2014

Quail & Worth--- new law firm

Check out Quail & Worth, Barristers & Solicitors   the best new labour and regulatory law firm in Vancouver !
 

Monday, February 10, 2014

Utilities Regulation and the law

Jim Quail, the Legal and Regulatory Director of COPE 378 the union representing employees of regulated utilities in our province, has written a two blog-posting primer on the regulation of utilities and the energy sector.  As energy is one of the prominent policy issues facing us today, his postings are a good read. 

Sunday, February 9, 2014

Discipline Investigations--when the police is also involved

COPE 378's Legal and Regulatory Director  Jim Quail has an informative post on issues that arise when the employer is investigating a member  for misconduct that might also give rise to a police investigation.
http://jimquail.com/2014/02/09/employers_and_police/
 

Saturday, February 8, 2014

No violation of privacy and no violation of s.2(d) of the Charter--Supreme Court of Canada rules


The Supreme Court of Canada handed down the Bernard v. AG of Canada and PIPSC decision on Friday.
 
Elizabeth Bernard complained that her employer the Federal Government should not provide her home contact information to the union that represented employees in the bargaining unit in which she was a member. 
Under federal legislation Bernard could opt out of union membership but was required to be a member of the bargaining unit for which the union has exclusive bargaining agency with the right to union representation and the obligation to pay union dues. This is what is referred to a “Rand formula” employee.

Bernard argued that by disclosing her home contact information the employer violated her privacy as she did not consent to the disclosure.  She further argued that the disclosure amounted to forced association with the union contrary to s.2(d) of the Charter of Rights and Freedoms.

The Supreme Court of Canada disagreed with her.  First, privacy rights were not violated because the disclosure was consistent with the purpose for which the information was initially collected, i.e. for the purpose of being contacted about terms and conditions of employment.  Second, and to me most importantly, the Court ruled that the provision of the information  did not engage her s.2(d)  of the Charter associational rights.

The court confirmed that “a cornerstone of labour relations law in this country” is the principle of majoritarian exclusivity, i.e.  that the union has the exclusive right to bargain on behalf of all employees in a given bargaining unit, including Rand employees.  It went on to find that, “the compelled disclosure of home contact information in order to allow a union to carry out is representational obligations to all bargaining unit members does not engage Ms. Bernard’s freedom not to associate with the union.” (para 37)