Number 11– July, 2007
| Number 11– July, 2007 |
Overview of Bill 171: The Health Systems Improvements Act, 2007The Ontario Government recently enacted Bill 171, also known as The Health
Systems Improvements Act (the “Act”). The Government has stated
that the purpose of Bill 171 is to “...make the health care system more
responsive to the needs of Ontarians” by promoting accountability and
promoting public health. It remains to be seen whether these stated purposes
are achieved by the Act, the contents of which we review below. Some of the significant highlights of Bill 171 are as follows: The Ambulance Act
The Regulated Health Professions Act (RHPA) The Act makes a number of important changes to the Regulated Health Professions Act, including:
Four New Regulated Professions
Chase McEachern Act (Heart Defibrillator Civil Liability), 2007
New Physician Billing Review Process
Health Promotion and Protection Act There are two significant amendments made to the Health Promotion and Protection Act: a. Creation of Ontario Agency for Health Protection and Promotion
b. New Powers in event of Outbreak
“Progressive Discipline” ousts “Safe Schools”The Education Amendment Act (Progressive Discipline and School Safety), 2007 will come into force on February 1, 2008. The new legislation is the end result of the so-called “Safe Schools Action Team”, appointed by the McGuinty government in December 2004. The Action Team was tasked with gathering and reviewing data and trends associated with student suspension and expulsion right across the province. The Ministry of Education was interested in discovering the impact of the Harris government’s Safe Schools Act, 2000. As many readers will know, this prior regime focussed on zero-tolerance policies and strict disciplinary measures. Many critics said that it failed to address the causes of anti-social and violent behaviour by students. Legal proceedings were even initiated at the Ontario Human Rights Commission, which viewed the Safe Schools Act as having a disproportional impact on racialized students and students with disabilities. A number of complaints were settled with the Ministry of Education agreeing, in part, to continue this review of the Act. By way of background, during the 2000-2001 academic year, just prior to when the Safe Schools Act was implemented locally, it is reported that 113,778 Ontario students were suspended and a further 106 students were expelled. However, suspensions and expulsions spiked in the first two years after the Act was introduced. By the third year, in 2003-2004, the number of suspended students was 152,626 and the number of expelled students was 1,909. However, when the Ontario government released data on school discipline in November 2005, it also reported that the most recent trend in 2002 to 2003 showed a reduction of eight per cent in the number of suspensions. (1) The Safe Schools Action Team issued a final report in June 2006. The McGuinty
government then introduced Bill 212, An Act to Amend the Education Act
in respect of behaviour, discipline and safety (“Bill 212"), which its first
reading April 17, 2007. Bill 212 received Royal Assent about two months later,
on June 4, 2007. It repeals sections 306 through 311 of the Education Act,
replacing them with new provisions that substantially alter Part XIII of the
Act with respect to the suspension and expulsion of pupils.
Commentary The forthcoming changes to the disciplinary process in schools appear to be responsive to the concerns members have raised over the years, specifically concerning their responsibility and liability in the suspension process, the importance of life skills programming for disciplined students, and the inclusion of bullying as a behaviour that triggers serious consequences. We see the inclusion of bullying as an extremely positive development, especially considering that surveys have documented a growing problem vis-a-vis aggressive, disruptive and violent behaviour against teachers by students. The bullying of teachers, of course, has negative effects on the classroom and as well as adverse personal impact on individual members. We note that bullying is not defined in the Act. It may be further defined by regulation in the very near future. Current bullying-related case law does not require a power imbalance in the assessment of bullying behaviour. Should the definition end up including the concept of power imbalance, it will be under-inclusive of many instances of bullying where students may gang up on a teacher or other administrative employees. The power imbalance criterion, if accepted, may prevent cases from falling into the definition. At the same time, it is hoped that cyber-bullying of teachers on the internet could be caught by the inclusion of “bullying” in s.306, targeting student actions such as manipulation of images and posting of defamatory commentary about teachers on websites like Facebook. This looks to be especially likely considering the language in s.306(1) and s.310(1): the impugned activity does not have to take place at school per se. The activity must merely have “an impact on the school climate”. Finally, we welcome this legislation in light of the fact that teachers will no longer attract risk or legal liability with respect to this kind of discipline. Instead, the power to suspend will shift to the principals and school boards, in accordance with their overall responsibility to manage the schools.
Responding to the “Cyberbullying” of Teachers on FacebookStories relating to the pitfalls of the internet site “Facebook”, particularly for teachers, have recently exploded in the media. In particular, as has been repeatedly reported over the last several months, students are using Facebook to post defamatory comments and otherwise engage in “cyberbullying” of teachers. While teachers and their representatives can take a variety of actions in response to Facebook cyberbullying, it is hoped that the provincial government’s introduction of amendments to the Education Act will provide one effective avenue to address this burgeoning problem. Facebook allows internet users to establish their own personal “profile”, that is, a personal web page on which the user can post personal information, commentary, messages, and photos. In addition to a host of other functions, users can exchange messages with other users (like e-mail), grant other users access to their profiles and post messages on another user’s profile (once access has been granted). A student, therefore, can post defamatory comments or lewd photo manipulations of teachers and publish these for the access of all of his or her friends and acquaintances. In Toronto, the granting of Facebook access rights to friends and acquaintances has wide-ranging implications. Toronto has one of the largest number of Facebook users of any city in the world. Anecdotally, almost every high school student in Toronto has a Facebook account. This means that the information a student posts on Facebook can have an audience of an entire high school and more. In addition, while the news media stories have for the most part focussed on students or groups of students who have been identified for inappropriate Facebook use, one of the real dangers of Facebook is that defamatory material can be posted anonymously. That is, the information a user provides to establish a Facebook profile can be entirely fictional such that there is no public accountability for the student. There are a variety of courses of action that teachers and their representatives can take in response to cyberbullying on Facebook, from insisting on the imposition of discipline at the school board level to various types of legal action grounded in defamation. However, one benefit of the recent surge of attention to Facebook is that it has coincided with the provincial government’s introduction of Bill 212, An Act to Amend the Education Act in respect of behaviour, discipline and safety. Bill 212 received Royal Assent on June 4, 2007 and is scheduled to come into force on February 1, 2008. While the Bill does not specifically address cyberbullying, it does introduce “bullying” as an activity which may lead to a student’s suspension (s. 306(1)). It also provides that conduct which takes place outside of school but which impacts on the school climate may lead to suspension or expulsion (s. 306(1)). Finally, suspended students must be provided with programs containing academic and non-academic elements (s. 306(5)). Partly due to recent incidents, legislators and teachers’ representatives have examined Bill 212 in the context of Facebook issues. Teachers’ representatives have had the opportunity to lobby the government regarding cyberbullying and the Minister of Education has recently described Bill 212 as specifically intended to address cyberbullying. In addition, Bill 212's requirement of programs for suspended students may provide an opportunity for educational programs and policies aimed at cyberbullying. For example, it is hoped that students could be required to complete modules on defamation and harassment during a suspension for cyberbullying. Once implemented, then, Bill 212 may be a means to discipline students for
cyberbullying and to educate students with respect to this problem. It is hoped
that the implementation of this legislation, together with other actions by
teachers and their representatives, will help curb the harmful uses of Facebook. Employee Prevented from Suing Employer for Sexual Harassment where Collective Agreement contains Harassment ProvisionIn Oliver v. Severance et al., 2007 PESCAD 02 (C.A.), a Court in PEI recently dismissed an action for harassment and sexual harassment in the workplace, holding that the complaint arose under the collective agreement. As such, the Appeals Court found that it had no jurisdiction to hear the case. Although the collective agreement only dealt with sexual harassment, the Court found that the employer had a duty under the collective agreement to provide a safe and healthy workplace, which covered general harassment complaints. In June 2007, the Supreme Court of Canada denied leave to appeal in this case. The Facts The Plaintiff, Ms Oliver, was employed as a curator at the P.E.I. Museum and Heritage Foundation (the “Foundation”), a provincial Crown corporation. She alleged that the executive director, Mr. Severance, harassed her by making demeaning, lewd, and offensive over a three year period. Oliver claimed to have suffered psychological and psychiatric issues as a result of this ongoing harassment. Oliver had to cease her employment as a result of these difficulties in August 1995 and ultimately obtained a severance package from the employer in 1999. Oliver sued Severance in 2001 and alleged that the Foundation Board of Directors (or the Minister responsible for the Foundation) knew or ought to have known about the alleged harassment. She claimed that Severance abused his power and authority over her by humiliating her through the ongoing harassment and, as a result, that she was entitled to general, special and punitive damages. The defendants brought a motion to strike out the cause of action, claiming that the dispute arose under the collective agreement and, therefore, the Court did not have jurisdiction. The motions judge refused to strike out the action and the defendants appealed to the Appeals Division of the PEI Supreme Court. All versions of the collective agreements between the employer and the union since 1990 contained grievance and arbitration procedures, and included an employee’s right not to be discriminated against on the ground of sex. Each agreement also contained provisions barring harassment. Until 1998, the relevant Article barred sexual harassment only, but after this date it was broadened to prohibit harassment generally. The collective agreement also contained a provision that employees wishing to pursue a concern arising from sexual harassment or harassment may submit a grievance to the final level in the grievance process. The Arguments Oliver claimed that Severance’s conduct amounted to separate, actionable torts for assault and sexual harassment, and breach of fiduciary duty. As such, Severance’s conduct went beyond sexual harassment to include general harassment and abusive conduct, which were not covered by the collective agreement. Therefore, it was her view that the grievance procedure outlined in the collective agreement did not apply and the Court had jurisdiction to hear her complaint. The defendants’ position was that the complaint arose under the collective agreement and/or the relevant workplace policy. As such, the jurisdiction of the Court was ousted and the matter should have been brought in a grievance under the procedure outlined in the collective agreement. The defendants’ argued that the grievance procedure was the exclusive process for any complaints of sexual harassment, general harassment or verbal abuse. The Decision The majority of the Court held that the Court did not have the jurisdiction to hear an action for sexual harassment arising from the workplace when harassment is covered by a collective agreement. The motion to dismiss Oliver’s claim was upheld. In determining whether the Court had jurisdiction, the majority applied the test set out in the Supreme Court of Canada decision Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, specifically that the binding arbitration provisions contained in labour relations legislation give arbitrators exclusive jurisdiction if the essential character of the dispute arises from the interpretation, application, administration, or violation of a collective agreement. Applying the test in this case, the Court held that the allegation was that Severance, as Oliver’s supervisor, abused his power and authority. All of the alleged incidents occurred at work. The majority rejected the trial judge’s view that the conduct was not work-related because it “served no legitimate workplace purpose”. The Appeals Court held that harassment never served a legitimate purpose and that Oliver’s allegation that the employer was vicariously liable only made sense if the misconduct was related to the workplace. Justice McQuaid, for the majority, found that:
And further:
Having found that the dispute arose in the workplace, the majority then had to determine, as per Weber, whether the dispute was explicitly or implicitly within the collective agreement. In this case, it was found that it came under both Article 5 (sexual harassment) and Article 26 (grievance procedure) of the collective agreement. Justice McQuaid found that the relevant provisions of the collective agreement governed the harassment in this case, even though the policy dealing with non-sexual harassment was not incorporated into the collective agreement until 1998. He found that the definition of sexual harassment under the collective agreements prior to 1998 was broad enough so as to include “all forms of vexatious conduct, verbal abuse, physical abuse and harassment”. He also noted Article 29.01, which stated that:
Justice McQuaid found that harassing and/or abusive conduct that let to an employee’s emotional breakdown, such as occurred in this case, would also be a violation of the employer’s obligation to provide a safe workplace. As such, the Court held that:
Conclusion While these cases will largely turn on the exact language of the relevant
collective agreement provisions, unionized employees who are the targets of
harassment (whether sexual or general in nature) and/or abusive conduct at
the workplace will want to involve his/her union representative to assist in
determining whether a remedy is best pursued through the grievance arbitration
system or through other legal proceedings. This further application of the
test set out in the Supreme Court of Canada decision in Weber demonstrates
that courts may no longer have or assume the jurisdiction to deal with these
matters. As such, harassment issues arising from workplace disputes such as
may need to be pursued through a grievance under the collective agreement rather
than through civil proceedings. Link to CHSMC’s Summary of Landmark Decision Protecting Collective Bargaining Under the CharterOn Friday 8 June 2007, the Supreme Court of Canada released a landmark decision on freedom of association ruling for the first time that collective bargaining is protected under s.2(d) of the Canadian Charter of Rights and Freedoms. The Court's decision expressly overturns its 1987 freedom of association trilogy and extends Charter protection beyond the right to unionize that was recognized in its 2001 decision in Dunmore. The decision in Health Services and Support-Facilities Subsector Bargaining
Association v. British Columbia, 2007 SCC 27, marks a significant victory for
the labour movement and establishes a new platform for analysing the right
to freedom of association under the Charter. The decision will have significant
implications for protecting collective action by union members. While the decision
deals specifically with laws that affect collective bargaining and actions
by the government as employer the decision is significant for workers in both
the public and private sectors.
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