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On June 30, 2008, Ontario’s new human rights enforcement regime comes into force. Bill 107, An Act to Amend the Human Rights Code, transforms how human rights are enforced in the province. The new direct access reformed human rights system will consist of three pillars: the Ontario Human Rights Commission, the Human Rights Tribunal of Ontarioand the new Human Rights Legal Support Centre. The Bill significantly changes the existing roles of the Commission and Tribunal to introduce a "direct access" model of enforcement. This Human Rights Update provides a series of practical and strategic guides that Cavalluzzo Hayes Shilton McIntyre & Cornish LLP has prepared to assist parties in navigating the new human rights regime. Part I provides an overview of the key changes implemented by Bill 107 (click here); Part II reviews the new Tribunal Rules that apply to new applications filed with the Tribunal beginning on 30 June 2008 (click here); and Part III reviews the Rules that apply to existing complaints that are transferred from the Commission to the Tribunal after June 30, 2008 (click here). The complete three part series is available online at www.cavalluzzo.com. Part IV (forthcoming) will provide an analysis of strategic consideration that are of particular interest to trade unions. The series was put together by Mary Cornish, Fay Faraday and Jo-Anne Pickel.
Justices of the Peace Score Significant Legal Victory: Mandatory
Retirement Age Struck Down as Unconstitutional Lexpert’s Guide to the Leading 500 Lawyers in Canada recognizes Cavalluzzo Hayes as top labour and pensions firm For the second year running the Lexpert/ALM Guide to the Leading 500 Lawyers in Canada. has rated Cavalluzzo Hayes Shilton McIntyre & Cornish as Toronto’s leading labour relations and pensions law firm, placing our firm at the centre of a “bulls-eye” chart setting out the results of a survey among Canadian lawyers. In addition, three of our lawyers, among a total of only six working in the field of union side labour law, have been recognized as being among the top 500 lawyers in Canada. Coroner's
Inquest Makes Significant Recommendations on Workplace Violence
Arising out of Murder of Lori Dupont Teamsters Local Union 847 and the CAIR-CAN file complaint of religious discrimination on behalf of female Muslim airport worker The Teamsters Local Union 847, represented by James Robbins and Jo-Anne Pickel, and the Canadian Council on American-Islamic Relations (CAIR-CAN) have filed a human rights complaint challenging discrimination against a female Muslim airport screener who was suspended without pay for wearing a skirt longer than the one supplied with her company’s uniform. The Teamsters Union and Garda World Security Corp. have agreed on an interim solution until the Canadian Air Transport Security Authority (CATSA) evaluates its policy on uniforms to bring it into compliance with its human rights obligations. CATSA, a federal agency, sets the regulations for to screeners’ uniforms and objected to the longer skirt which the employee wore for religious reasons. Click on the following links to read press coverage of the case: http://www.canada.com/nationalpost/news/story.html?id=dfb5c4ae-1601-4af0-9c43-c9037e292516 http://www.thestar.com/News/GTA/article/278596 http://www.thestar.com/article/277882 http://www.thestar.com/article/277286 For additional information, contact James Robbins or Jo-Anne Pickel. Liz McIntyre admitted to American College of Trial Lawyers Congratulations to partner, Elizabeth McIntyre on becoming a Fellow of the American College of Trial Lawyers, one of the premier legal associations in North America. The induction ceremony at which Elizabeth McIntyre became a Fellow took place recently before an audience of approximately 730 persons during the recent 2007 Annual Meeting of the College in Denver, Colorado. Founded in 1950, the College is composed of the best of the trial bar from the United States and Canada. Fellowship in the College is extended by invitation only and only after investigation, to those experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. Lawyers must have a minimum of fifteen years trial experience before they can be considered for Fellowship. Membership in the College cannot exceed one per cent of the total lawyer population of any state or province. There are currently approximately 5,661 members in the United States and Canada, including active Fellows, Emeritus Fellows, Judicial Fellows (those who ascended to the bench after their induction) and Honorary Fellows. Elizabeth McIntyre is a partner in the firm of Cavalluzzo Hayes Shilton McIntyre & Cornish LLP and has been practising for twenty-nine years. She is an alumna of the University of Toronto Law School. SETTLEMENT
REACHED IN RIM DERIVATIVE LITIGATION Ontario Federation of Labour Releases CHSMC Long Term Care Legal Opinion and Calls on Party Leaders to Rectify Inadequate Continence Care A legal opinion drafted by Mary Cornish and Jo-Anne Pickel was released to the public by the OFL on October 4, 2007. The opinion reviews the validity of continence care policies and practices in long term care homes. It outlines a variety of possible legal strategies to protect the rights of elderly nursing home residents to proper sufficient and dignified care and the rights of health care workers to receive support and proper working conditions for providing such quality care. The OFL has sent the opinion along with a letter to party leaders running for election asking for a commitment, before the October 10 election, that they will immediately address the appalling situation affecting over 75,000 vulnerable elderly Ontarians who are residents in long term care facilities. The OFL's press release and supporting materials are available on its website at www.ofl.ca Click on the following links to read the Executive Summary of the Legal Opinion or the full Legal Opinion Re: Validity of Continence Care Policies and Practices in Long Term Care Homes. Click the following to read the Toronto Star Article "Neglect of Aged an Outrage". The Equal Pay Coalition Launches Campaign to Bring Pay Equity To All Ontario Women Ontario's 2007 election campaign takes place as Ontario moves towards
the 20th Anniversary of the Pay Equity Act on January 1, 2008. Women
in Ontario, on average, still earn 29% less than men. The pay gap affects
women in all occupations, all education levels and across all communities.
It affects women in all parts of the province, regardless of where
they work in the economy, the size of their workplace or the precariousness
of their work. The gap is even larger racial minority women, aboriginal
women, older women and women with disabilities. Two-thirds of workers
earning minimum wage are women. Women are twice as likely to earn minimum
wages as men. The Equal Pay Coalition is calling upon the Ontario government
to support, strengthen and revitalize pay equity by: Liz McIntyre and Janina Fogels to represent
the Ontario Nurses' Association in Dupont/Daniel Inquest Ex-Halifax Police Officer and 9/11 Hero Permitted to Sue Employer for Malicious Prosecution and Abuse of Power Shortly after 9/11, James Symington, a Halifax police officer, voluntarily went to New York City to assist in rescue efforts at Ground Zero. Mr. Symington is credited with having located the last survivor of the attack. His employer, the Halifax Regional Police, did not approve of the rescue mission. At the time, Mr. Symington was on a workplace related stress leave. Mr. Symington alleges that, on his return to Halifax, his employer initiated immediate criminal and disciplinary proceedings against him, alleging that he was fraudulently taking sick leave. All of these proceedings were either dropped or resolved in his favour. Mr. Symington then sued his employer for malicious prosecution, abuse of power, and negligent investigation. The employer alleged that Mr. Symington was not allowed to bring an action in court because, as a member of a union, he had to file grievances over the employer's actions. The employer also argued that Symington had exhausted his avenues of redress when he defended its actions against him. In a unanimous decision, the Nova Scotia Court of Appeal ruled that the majority of Symington's claims were in the right forum and that he can proceed with his lawsuit. The Court did strike out claims related to the employer's use of its disciplinary mechanisms against Symington. The decision is reported here James Symington is represented by Michael Wright and Stephen Moreau. Ontario Justices of the Peace challenge
discriminatory mandatory retirement law
Labour Relations Board Protects Labour Relations Stability in Health Services Restructuring In the first decision to be issued under the newly amended Public Sector Labour Relations Transition Act, 1997 (PSLRTA), the Board ruled that there is “no doubt” that PSLRTA is intended to apply to restructuring in the health sector. Kevin Whitaker, writing for the Board, broadly interpreted the application of this Act to restructuring in the health services sector in general, and to restructuring under the Local Health Services Integration Act in particular. This decision will help to protect heath sector workers’ rights during the major upheaval that Ontario’s health services system is undergoing. The Board recognized that “there are significant labour relations consequences inherent ... in this class of transactions. These consequences require some process by which the effects on unions, employees and employers can be rationally managed and resolved, by the provision of labour relations stability and to the benefit of all.” The Board also recognized that without the application of PSLRTA to local health service integrations, there would be no mechanism to manage the transition of bargaining units and their rights in an orderly and predictable fashion. Liz McIntyre argued the case on behalf of the Ontario Nurses’ Association. For a copy of the decision, please click here. The
Association of Justices of the Peace of Ontario obtain a breakthrough
report from the Fourth Justices of the Peace Remuneration Commission The Commission
recommends the following: This represents a total increase of 23.14% over the three years from the current salary of $88,511. The Government proposed 2.0%,2.25% and 2.5% resulting in a salary of $94,620.00 as of April 1, 2007. Salary Indexing: IAI (Industrial Aggregate Wage) Adjustment annually commencing April 1, 2008. (Note: IAI adjustment for April 1, 2006 was 2.5% (Ont.) And 3.1% (Federal). The Government opposed an IAI adjustment on the grounds that the Justices were already well compensated. Vacation: One extra week vacation. The Government opposed any change to the vacation entitlement. Costs: Recovery of all reasonable costs incurred by the Association for experts and legal counsel. The Government opposed payment of such costs. Pension: The Justices are entitled to a constitutionally valid pension with a spectrum of issues from form, type and provisions deferred to the next Commission. The Government opposed any change to the Pension on grounds that the current pension is more than adequate. Benefits: No other changes - Government proposed mix of additions and cutbacks to benefits. Judicial Allowance: Increase from $500 to $750. The Government opposed any change. Roll over Lump Sum
Payment - Granted subject to meeting statutory tax requirements.
Cavalluzzo Hayes Hits the Lexpert Bulls-Eye In Lexpert’s 2007 guide to the leading lawyers in Canada, Cavalluzzo Hayes is shown at the “bulls-eye” of a chart analyzing Toronto employment and labour law firms. The target chart below represents the results of a review survey among Canadian lawyers identifying the leaders in employment and labour law.
Reprinted with permission from the 2007 Canadian Legal Lexpert® Directory. © Thomson Carswell. Landmark Supreme Court of Canada decision protects collective bargaining under the Charter On 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. To see our Human Rights Update newsletter reviewing this decision click here. To view a copy of the Supreme Court of Canada decision, click here. Paul Cavalluzzo and Fay Faraday were counsel to UFCW Canada which intervened before the Supreme Court of Canada on this appeal. For further information about the case and its implications, please contact Paul or Fay. Paul
Cavalluzzo and Veena
Verma have been retained to represent the Lieutenant Governor of
Ontario, the Hon. James K. Bartleman, at the Air India Inquiry Stephen
Moreau featured in Lawyers Weekly in professional misconduct case
involving removal of opposing counsel The decision on removing solicitor of record is found here. Come Celebrate the Launch of Elizabeth Shilton’s new book, Redefining Retirement: New Realities for Boomer Women Our founding partner Elizabeth Shilton, who retired in 2004, has published a new book on women and retirement. Co-authored with Dr. Margret Hovanec, Redefining Retirement: New Realities for Boomer Women looks at retirement from a uniquely female perspective, addressing the different issues women face in retirement, including money, work, physical health, and relationships and emotional health. Come join us in celebrating Elizabeth’s book launch on Thursday 10 May 2007, from 5:30 p.m. to 7:30 p.m., at David Mirvish Books, 596 Markham St. in Toronto. For further information on the book, please click here. Congratulations to firm partner, Maureen Forestell, on her appointment to the Ontario Superior Court of Justice On January 29, 2007 the Honourable Rob Nicholson, Q.C., Minister of Justice and Attorney General of Canada, announced the appointment of our partner, Maureen Forestell, to the Ontario Superior Court of Justice. We are very pleased and proud to announce Maureen’s appointment to the bench. We will of course very much miss having her as a colleague, but our loss is the gain of all Ontarians, who we know will be well-served by Maureen in her new role. The announcement
on the Department of Justice website reads as follows: Madam Justice Forestell
received a Bachelor of Laws in 1984 and a Bachelor of Arts in 1981 from
York University and was admitted to the Bar of Ontario in 1986. She
received the prestigious Harold Fox Memorial Scholarship which permitted
her to take up a pupillage at the Middle Temple, London ( England) in
1986-1987. Madam Justice Forestell’s practice expertise is in
the areas of criminal law, professional regulation (prosecutions and
defence), administrative law, and constitutional law. She practised
with the Department of Justice in the area of criminal prosecutions
(1984-1986) before moving to private practice in 1987. She has acted
as Counsel and Alternate Chair for the Ontario and Nunavut Review Boards
and as a Member of the Forensic Mental Health Advisory Committee. Ontario Court Upholds Payment of Overtime Pay for Part-Time Nurses The Ontario Divisional Court has upheld an arbitrator’s award in which he held that part-time nurses scheduled to work week-end shifts have a right to overtime pay. The case sets an important precedent as it expands upon caselaw that has upheld a right to overtime for full-time employees who are required to work hours that fall outside of an employer’s regular work schedule. Until now, no decision had made a similar finding with respect to part-time employees. Facts and Arbitrator’s Award Part-time public health nurses employed by the City of Hamilton filed grievances seeking overtime pay for week-end shifts. Their collective agreement provided a right to overtime pay for hours worked “beyond the nurse’s normal work day, normal work week and on holidays”. The collective agreement also included a clause defining standard working hours for nurses to be thirty-five hours per week and defining the normal work week as extending from Monday to Friday. The arbitrator in the case held that the part-time nurses had a right to over time pay for any week-end shift, even if they did not work the standard thirty-five hours per week worked by full-time nurses. Divisional Court Upholds Arbitrator’s Award In Ontario Nurses Association v. City of Hamilton, the Ontario Divisional Court upheld the arbitrator’s award. The Court concluded that the arbitrator did not err by interpreting the words “beyond the normal work week” to mean “outside of” rather than “in addition to” the normal work week. In other words, the arbitrator appropriately concluded that the collective agreement provided a right to overtime pay for all hours worked outside of the standard thirty-five hour/ Monday to Friday work week set out in the agreement, regardless of the number of hours a nurse had worked in any particular week. Precedent Set for Part-Time Employees Arbitrators in a number of previous cases had concluded that, where a collective agreement specifies regular work hours/days, employers are required to pay overtime for work scheduled outside of these hours/days. However, previous cases have involved full-time employees. Therefore, the ONA v. CIty of Hamilton case sets a precedent by accepting that the same principle may apply to part-time employees. The case was argued
by Liz McIntyre and the
factum was written by Jo-Anne Pickel.
For a copy of the decision, please click here. Ontario Court Confirms Power of Interest Arbitrators Under HLDAA to Issue Supplemental Awards The Ontario Divisional Court has concluded that interest arbitrators appointed under the Hospital Labour Disputes Arbitration Act (HLDAA) may issue supplemental awards if they are necessary to effect an agreement between the parties. The case is significant because it is the first case to explicitly address the extent of an arbitrator’s authority to issue supplemental awards in the HLDAA context. Facts The case involved an interest arbitration award issued by a Board of Arbitration appointed under HLDAA. The Board concluded a collective agreement between the Ontario Public Service Employees’ Union and Brockville Psychiatric Hospital which included a provision dealing with long-term disability (LTD) benefits. Following the award, a dispute arose between the parties as to whether employees were required to pay benefit premiums while on LTD. The Union sought a clarification of the award from the Board of Arbitration and the Board issued a supplemental award clarifying that the LTD clause in its initial award did not require employees to pay benefit premiums while on LTD. The employer challenged the Arbitration Board’s authority to issue the supplemental award on the basis of the doctrine of functus officio. The doctrine of functus officio provides that, once an adjudicator has issued a decision, its authority over the matter has ended. Absent exceptional circumstances, the adjudicator does not have a power to re-open or alter its original award. The employer in this case argued that the Arbitration Board was functus officio and, therefore, that it did not have the authority to issue its supplemental award. Court Upholds Arbitration Board’s Supplemental Award In OPSEU v. Brockville Psychiatric Hospital, the Divisional Court upheld both the Arbitration Board’s authority to issue the supplemental award as well as the substance of the award. Significantly, the Court held that the principle of functus officio must be taken to apply differently in the HLDAA context due to the considerable powers granted to Arbitration Boards under the statute. In particular, the statute grants arbitration boards the power to remain seized of all matters in dispute between the parties until a collective agreement is finalized. In light of these broad statutory powers, the Court concluded that the Arbitration Board was correct to find that it had the authority to issue the supplemental award in order “to comply with its statutory duty to finish the job of crafting the terms of a collective agreement between the parties.” In addition, the Court held that the substance of the supplemental award was not patently unreasonable as the Arbitration Board considered all relevant factors and the award was consistent with the objectives stated in the original award. Precedent Set Regarding Power to Issue Supplemental Awards The judgment is significant as it the first to explicitly deal with the application of the doctrine of functus officio in the HLDAA context. As a practical matter, the judgment recognizes the authority of Arbitration Boards appointed under HLDAA to issue supplemental awards if these awards are necessary to fulfil their task of completing a collective agreement between the parties. The case was argued by Liz McIntyre and the factum was written by Jo-Anne Pickel. For a copy of the decision, please click here. Veena Verma will be travelling with Avocats Sans Frontières/Lawyers Without Borders Québec and France on a Human Rights Mission to Nigeria. Avocats Sans Frontières/Lawyers
Without Borders Quebec is a non-governmental organization established
in 2002. ASF/LWB is the Canadian branch of the Avocats Sans Frontières
international movement. The organization’s fundamental purpose
is to strengthen the capacity of lawyers in developing countries to
defend human rights. ASF/LWB's work is entirely based on pro bono participation
of lawyers to carry out missions abroad. The Ontario Divisional Court has upheld a novel interim order of Arbitrator Owen Shime Q.C. awarding ex-gratia payments. The Divisional Court found that Arbtirator Owen ShimeQ. C. was not patently unreasonable in finding that he had jurisdiction to award ex -gratia payments to a member of the Society of Energy Professionals who had his sick benefits cut off by Ontario Power Generation. For a copy of the decision, please click here. The case was argued by John Stout and the factum was written by Jo-Anne Pickel. Court of Appeal issues decision in UFCW, Local 175/633 & Lapointe-Fisher Nursing Home, upholding employer’s obligation to pay the Ontario Health Premium The United Food and Commercial Workers International Union, Local 175/633 has successfully defended an appeal of the Divisional Court decision upholding Arbitrator Anne Barrett’s decision requiring an employer, Lapointe-Fisher Nursing Home, to pay the Ontario Health Premium on behalf of employees, in the context of a collective agreement provision requiring the employer to "pay... OHIP premiums". This is the lead decision of the Court of Appeal involving arbitration awards and the controversial Ontario Health Premium and the obligations of employers with collective agreements that maintain payment obligations referring to the old Ontario Health Insurance Premium. The Court of Appeal's unanimous decision confirms that the patent unreasonableness standard applies to such decisions. The UFCW Local 175/633 were represented by Paul Cavalluzzo and John Stout with the assistance of Amanda Pask who wrote the factum. To read a copy of the reasons for the decisions, click here. Congratulations to our student Michelle Dagnino, named as one of Canada's Top 100 Women Congratulations to Michelle Dagnino who has been named by the Women's Executive Network one of Canada's Top 100 Women in the "Future Leaders" Category for her work as the Executive Director of the Youth Action Network. Human
Rights Update - CHSM&C Launches its new Newsletter 2. The End of Mandatory Retirement in Ontario: What Will This Mean in Reality for the Workplace? 3. Maintaining Pay Equity: Commission Audits Put Pay Equity Back in the Spotlight 4. Significant Human Rights Decision Upheld at Court of Appeal: Keays v. Honda 5. Recognizing Internationally Trained Professionals: Does Ontario’s Fair Access to Regulated Professions Bill Measure Up? 6. Federal Cuts Will Affect Advocacy on Equality and Women’s Rights To view a copy of the full newsletter, click here. Ontario Government Retirees Class Action Settlement Approved On September 14, 2006, Justice Cullity of the Superior Court of Justice approved the settlement in the class action commenced as a result of changes in 2002 to the health and welfare benefits of retirees of the Ontario government. He held that the settlement amount of $20 million was within “an acceptable range of reasonableness” and that the settlement recognized the risks inherent in this novel litigation. At the same time Justice Cullity approved the fee requested by class counsel. In making this order, Justice Cullity wrote, “From my involvement with the proceedings since its inception, I am satisfied that class counsel applied a very high degree of competence and diligence throughout its course." Click here for a copy of the decision. Class Counsel has established a website solely for Class Members at www.retireesclassaction.com. The website includes a summary of the Settlement Agreement, the text of the entire Settlement Agreement, and affidavits explaining the settlement and supporting its terms. Class Counsel are Michael Wright, Hugh O'Reilly, Shaun O'Brien and Stephen Moreau. Mary Cornish and Fay Faraday call for reforms to Bill 107 to achieve goal of effectively reforming Ontario human rights system. In an article “Will Ontario’s Human Rights Reforms Achieve Reductions in Inequalities”, in the July 7, 2006 issue of Lawyers Weekly, Mary Cornish and Fay Faraday highlight the need for the upcoming Bill 107 Legislative Committee hearings to address a number of critical issuesto bridge the gaps between the Ontario Government's reform promises and the current wording of Bill 107. In addressing these concerns, the authors note that the real measure of success for a human rights system as a whole is whether it can achieve significant and ongoing reductions in the equalities facing those protected by the Human Rights Code and whether it can secure a culture of proactive human rights compliance. The article highlights concerns which need to be addressed with respect to all three “pillars” of the new system - the Ontario Human Rights Commission, the Human Rights Tribunal of Ontario and the new “Human Rights Legal Support Centre”, including the need for sufficient funding and independence. The article raises a particular concern about the lack of entrenched protections in the area of complainant services. As well, the article notes that the human rights system to be effective in reducing inequalities must also move beyond complaints to set up institutions and policies which will secure pro-active compliance by employers, service providers, accommodation providers and governments without complaints. As Bill 107 moves to Committee hearings in August and the Fall, 2006 with the Government promising to “improve” the Bill, the authors note the importance of all parties working in a non-partisan fashion to bring forward the necessary amendments to Bill 107. For a fuller discussion ot these issues, see "Responding to Bill 107, Some Issues to Consider” by the same authors. New Equality Rights Book co-edited by Fay Faraday Now Available! Making Equality Rights Real: Securing Substantive Equality Under the Charter is a new collection of articles by leading Canadian equality rights academics and practitioners. Co-edited by Fay Faraday, the book was published by Irwin Law Inc. in June 2006. Making Equality Rights Real critically reviews the state of equality rights law in Canada and examines avenues for future analyses and litigation strategies to secure substantive equality. The papers examine many interconnecting themes relating to
The book includes chapters by well-recognized legal scholars and legal practitioners with extensive experience in equality and human rights theory and practice, including a preface by former Supreme Court of Canada Justice the Honourable Claire L’Heureux-Dubé. For more information on the book, please click on this link. New publication on our website: "An Overview of the Quality of Care Information Protection Act" Liz McIntyre and Sharan Basran recently prepared and delivered a paper to a Canadian Institute conference on the Personal Health Information Protection Act, titled An Overview of the Quality of Care Information Protection Act. The full text of the paper is now available in the publications section of our website. Click on the link above to be taken directly to the paper. Liz
McIntyre awarded the Law Society’s Top Honour - The Law Society
Medal Here is the text of the citation:
Responding to Bill 107, Ontario's Proposed Human Rights Reform On June 6, 2006, Bill 107, the Human Rights Code Amendment Act, 2006 passed Second Reading in the Ontario Legislature. Bill 107 proposes to make significant changes to how human rights are enforced in the province. The government has promised that it will hold province-wide public Legislative Committee hearings on the Bill and that it will establish an Implementation Advisory Committee as part of this process. "Responding to Bill 107(2nd Reading – Some Issues to Consider" (PDF) (Word) (WordPerfect) authored by Fay Faraday and Mary Cornish sets out background information, a review of the proposed reform as well as raises some issues and questions for equality-seeking groups to consider. The following additional documents have been posted on this website, or linked to, in order to provide additional resources for those seeking to respond to Bill 107 as the Bill proceeds toward Committee hearings:
For information on the Ontario Human Rights Commission, current enforcement procedures and the text of the current Code see www.ohrc.on.ca. For information on the Human Rights Tribunal of Ontario, see www.hrto.ca. For information from the Ministry of the Attorney General on Bill 107, see www.attorneygeneral.jus.gov.on.ca For information concerning the progress of the Bill in the Legislature and Hansard, see www.ontla.on.ca. For further information, please contact Mary Cornish, Fay Faraday or Jo-Anne Pickel. Court Finds Teacher Justified in Seeking Peace Bond against Harassing Parent A recent decision of the Toronto Small Claims Court provides some comfort and support to teachers who face harassing parents. McKenna v. Boland (April 28, 2006, court file no: TO 81578/03) involved a claim by a parent that the teacher, Ms Boland, had “maliciously prosecuted” him. Shaun O’Brien of CHSMC represented Ms Boland and was successful in having the claim for malicious prosecution dismissed. By way of background, Ms Boland had had unpleasant encounters with the parent, Mr. McKenna, in the past. When she was teaching his son, he stormed out of a parent-teacher interview she was conducting. At the end of that school year, Mr. McKenna insisted with the school that Ms Boland have no contact with his son whatsoever. The following year, there was an incident which lead to Ms Boland seeking a peace bond. Ms Boland had taken a ball from a student who was bouncing it in the hallway. Unbeknownst to Ms Boland, the ball actually belonged to Mr. McKenna’s son. Mr. McKenna appeared at Ms Boland’s classroom door after hours, without checking in first with the office. Ms Boland was alone and Mr. McKenna knocked loudly at her door, then loomed in her doorway, demanding she return the ball. When she stepped out of the office, he followed her closely down the hall. She eventually fled to the principal’s office. Mr. McKenna was a large, intimidating and loud person and Ms Boland was frightened. After this incident, Mr. McKenna tried to report Ms Boland to the police for assault because, he claimed, she tried to shut her classroom door on his foot (when he put his foot in the door to prevent her from closing it), and because she swiped at him with some papers she was holding (when he was in her space and pointing his fingers in her face). The police would not lay assault charges. The principal sent a warning letter to Mr. McKenna under the Safe Schools Act advising him to have no contact with Ms Boland. Ms Boland also decided to apply for a peace bond so that Mr. McKenna would be precluded from having any contact with her, whether in the school or off school premises. However, Ms Boland was unsuccessful in obtaining a peace bond. The judge at the peace bond proceedings thought she did not have sufficient grounds to fear for her safety. He made comments to suggest that Ms Boland had sought the peace bond, not to protect herself, but to “teach [Mr. McKenna] a lesson”. However, the judge hearing the claim for malicious prosecution disagreed. He found that Mr. McKenna had not met two of the requirements for proving malicious prosecution: (1) that the peace bond proceedings have been brought in the absence of reasonable and probable cause; and (2) that the peace bond proceedings were brought out of malice. The judge said that Ms Boland “was justified in proceeding for the peace bond”. Her “motivation was consistent with the desire for whatever protection a peace bond can offer because she feared the plaintiff”. He disagreed with the peace bond judge that Ms Boland was motivated to teach Mr. McKenna a lesson. Rather, he thought that Mr. McKenna was intimidating and that Ms Boland was truly scared. Mr. McKenna argued at trial that he had complied with the warning letter sent by the school and there was no reason to take the further step of seeking the peace bond. The trial judge also disagreed with this argument, saying that Ms Boland was justified in seeking the further protection of the peace bond. Mr. McKenna had also argued that Ms Boland only brought the peace bond proceedings some time after the incident, and after she learned that he had reported her to the police. In other words, she sought the peace bond to strike back at Mr. McKenna. The trial judge rejected this argument, too, saying that Ms Boland had only waited two weeks, which was not an undue delay, and that she had used the time to consult with the school, her union and a police officer about her options. In this decision,
in spite of the earlier comments of the judge at the peace bond proceeding,
the trial judge affirmed the teacher’s rights in the face of a
harassing parent. This was a parent who was clearly aggressive and intimidating
and had caused previous problems, not only to this teacher, but to other
staff and the principal. The trial judge recognized that a teacher can
and should be able to take steps to protect herself from this type of
parent. Moreover, she is not limited to the steps a principal takes
on her behalf. Here, she properly consulted with her bargaining agent,
as well as with a police officer, and was perfectly justified in taking
the further, independent step of seeking legal protection through a
peace bond. This decision should provide encouragement to other teachers
who feel they have limited options in the face of a harassing parent. CHSMC’s Guide to the Local Health System Integration Act, 2005 (Bill 36) has now been updated and is available on this website On March 1, 2006 the provincial government passed Bill 36 - the Local Health System Integration Act, 2005. In brief, the legislation continues and establishes fourteen Local Health Integration Networks, commonly known as LHINs, and sets out their role in the reform of the delivery of health care in Ontario. The Bill also provides that an amended version of the Public Sector Labour Relations Transition Act, 1997 is to apply to the resulting restructuring of Ontario’s health care sector. CHSMC’s Guide to Bill 36 focuses on the concerns of health care workers and their unions. Appendix A to the Guide lists government powers in legislation prior to Bill 36. Appendix B to the Guide is a Working Guide to the Public Section Labour Relations Transition Act, 1997 revised to reflect Bill 36 amendments. For CHSMC's review and analysis of the Act, please follow this link to the Guide. The materials are also available directly on our publications page. For further information please contact Elizabeth McIntyre, Amanda Pask or Jeffrey Andrew or Jo-Anne Pickel. OLRB upholds jurisdictional claim of Iron Workers Local 721 over shroud installation. On 16 February 2006, the OLRB issued a decision upholding the jurisdictional claim of Iron Workers Local 721 and Millwrights Local 2309 to installation of conveyor shrouds and drip pans, and dismissing a complaint over the assignment by the Sheet Metal Workers Local 30. The Board based its decision largely on the Iron Workers' evidence and submissions concerning employer practice. The Iron Workers were represented by James Robbins. To read a copy of the decision click here Open captioned films now being shown in a Canadian mainstream theatre for the first time as a result of the efforts in a human rights case of three deaf complainants represented by Mary Cornish. Rainbow Cinemas has taken the leadership in an important equality case and started as of November 6, 2005 to experiment with showing its films where available in open captioned format to provide access for the deaf and hard of hearing to the movie experience. Open captioning will also help seniors and persons with English as a second language enjoy films. Universal Studios is currently supplying the open captioned prints. The complainants are Gary Malkowski, Scott Simser and Nancy Barker. Rainbow is one of 7 respondents in the case which also includes Cineplex Galaxy, AMC Entertainment International Inc., Famous Players, a Division of Viacom Canada Inc., Universal Studios Canada Inc. Paramount Pictures Canada Distribution Inc. and Alliance Atlantis Cinemas, The case is supported by the Captioned Movies Now Coalition which is a broad-based Canada-wide coalition of equality seeking groups. Cornish on behalf of the complainants is arguing before the Human Rights Tribunal that the movie distributors and exhibitors each have a pro-active obligation under Ontarios Human Rights Code to: a) design their movie services, including the distributing and exhibiting of movies to ensure that their service standards are inclusive of the deaf, allowing for the equal participation of all those who want to experience movies; and b) to take the necessary steps to ensure that movies are provided in an accessible format to the deaf, ie with captioning, and on the same terms as such movie sound information is provided to hearing movie goers. In carrying out their pro-active equality obligations, the complainants take the position that the exhibitors and distributors should be given: a) the flexibility to provide the form of captioning they wish so long as the form provided ensures equality of accessibility and is provide in a dignified and respectful manner and b) a reasonable time frame to comply with the requirement for full captioning.
Seven
years of legal proceedings come to a close for Sick Kids Nurses UFCW, Locals 175 & 633 Obtains Significant Contempt Order Against Employer The United Food and Commercial Workers Union, Locals 175 and 633 has obtained a significant decision from the Superior Court of Justice holding an employer in contempt of court for his repeated violations of a collective agreement entered into with the union. The decision is designed to serve as a deterrent against this type of behaviour by employers in the future. The UFCW, Locals 175 & 633 was a party to a collective agreement with the Rainy Lake Hotel in Fort Frances, Ontario. Over several years, the hotel failed, among other things, to remit union dues, pay employee insurance premiums, pay employees, and produce T4 slips for its employees. The union grieved these failures and obtained numerous arbitration orders against the hotel, including orders that the hotel comply with the collective agreement in the future. Several of the arbitration orders were filed with the Superior Court. As the hotel continued to violate the collective agreement and disobey these arbitration orders, the union brought a motion seeking to hold the hotel in contempt of court. It also sought to hold the numbered company managing the hotel in contempt along with this numbered company’s President. In a recent ruling by Justice G.P. Smith, the Court declared that the hotel, the numbered company, and the President were in contempt of court. More significantly, the Court determined that the employer’s actions deserved punishment and the strongest condemnation of the Court. The Court held that the primary function of contempt here was to deter this employer and other employers who repeatedly violate collective agreements and arbitration awards. In his ruling, Justice Smith agreed with the union that a process of enforcing collective agreements was paramount, otherwise the entire foundation of labour relations would crumble. He ordered that the hotel’s President be sentenced immediately to 30 days imprisonment. He also ordered a large, increasing fine and costs. The UFCW, Locals 175 & 633 were represented by John Evans and Stephen Moreau. To read a copy of
the reasons for decision, click
here Ontario nurses are granted the right to sue the province of Ontario for negligence in their contraction of SARS. Justice Cullity of the Superior Court of Justice recently granted 53 Ontario nurses and their families the green light to sue the provincial government for negligence relating to SARS. The nurses’ action, which charges the government for oversights in directing and enforcing safe working conditions during SARS, was commenced by CHSMC on behalf of the Ontario Nurses’ Association in 2004. In the spring of 2005 the government brought a motion to strike out the action on the basis that it could not be held legally responsible for the nurses’ contraction of SARS. The motion was successfully defended by Liz McIntyre and Stephen Moreau of Cavalluzzo Hayes Shilton McIntyre & Cornish. Each of the nurses contracted SARS during the course of her duties at work and has been severely affected by SARS, both in terms of the harm to their health, as well as the impact on their working, family and social lives. One of the nurses died as a result of contracting SARS. The nurses claim that the Ontario government is responsible for their contraction of SARS in that the government instituted workplace safety precautions which were inadequate and did not properly protect the nurses from SARS. The government also lifted the safety precautions too quickly, thereby causing a second SARS outbreak in May, 2003. The nurses also claim that the Ontario government failed to properly enforce occupational health and safety standards in hospitals, as required by the Occupational Health and Safety Act. As a result of this failure, the hospitals were not forced to maintain proper standards once SARS was in the hospitals. The nurses claim as well that the government breached their s. 7 Charter rights to life, liberty and security of the person because of the harm to their health. The government’s conduct was not in accordance with the principles of fundamental justice (as required by s. 7) in that the government prematurely lifted the precautions for improper reasons, such as tourism concerns. The nurses and their family members claim general damages for pain and suffering of $7,500,000, as well as punitive damages of $10,000,000. The nurses’ family members claim compensation of $1,000,000. Justice Cullity’s decision on the government’s motion to strike allows the nurses to pursue all of their major allegations in the action and was a substantial victory for the nurses. To review Justice Cullity’s Reasons for Decision dated August 22, 2005, please click here. To review press releases of the Ontario Nurses’ Association, please click here and here CHSMC Lawyers Jim Hayes John Stout Mary Cornish and Crystal Stewart call for labour justice at Wal-Mart In June 2005, Mary Cornish chaired a panel at the Canadian Association of Labour Lawyers Montreal Conference who shared their experiences both in Canada, the US and worldwide of trying to enforce international labour standards against Wal-Mart and other transnational corporations. Mary Cornish and Crystal Stewart summarized their experiences in an article they co-authored "Wal-Mart and the Struggle for Global Labour Justice" in the July 22, 2005 edition of Lawyers Weekly. On July 13, 2005, Jim Hayes and John Stout attended Ontario Labour Relations Board hearings in Toronto on behalf of the United Food and Commercial Workers Canada which is the Union which has been working across Canada for the unionization of Wal-Mart Workers. Ontario Divisional Court Overturns Arbitrator’s Decision Ordering Nurse to Submit to a Psychiatric Examination
Liz McIntyre and Fay Faraday represented the Ontario Nurses’ Association (“ONA”) in this judicial review. To view a copy of the decision in Ontario Nurses’ Association v. St. Joseph’s Health Centre, click here. Joy Campbell, a registered nurse and a member of ONA, took a medical leave of absence in January 2001 from her position with St. Joseph’s Health Centre in Toronto to undergo necessary surgery. When she applied to return to work, St. Joseph’s required her to fill out a specific form and to disclose private health information including the diagnosis and the details of the treatment. She refused, citing her right to privacy, and then grieved St. Joseph’s refusal to put her back to work. The matter proceeded to arbitration. Arbitrator Keller held that the employer could not require Ms Campbell to complete the specific form it used, nor could it require a diagnosis. He ruled that she could return to work “by having her physician respond” to five specific questions. Ms Campbell’s surgeon provide a detailed letter in response. Despite this letter, St. Joseph’s refused to return Ms Campbell to work and asserted that she was required to answer two of the five questions more fully. Both of these questions related to Ms Campbell’s mental, and not her physical, health, which Ms Campbell’s doctor did not have the expertise to answer. The matter returned to Arbitrator Keller. He held that, even though the information required by the employer was beyond the expertise of Ms Campbell’s treating physician, she was still obliged to have these two remaining questions answered. The effect of this decision was to require Ms Campbell “to subm |
