McGill law professors unionized

Almost a year to the day when McGill law professors formally launched proceedings to become recognized as an exclusive bargaining unit for faculty members, the longer than expected legal battle culminated with an unequivocal victory after the Quebec labour board issued granted certification, a first for professors in the university’s 200-year history.

The “slam dunk” decision by the Quebec Administrative Labour Tribunal sets the stage for changes to the labour landscape at McGill, with the new union intending to flex its muscles over a growing inclination towards centralization at the university, safeguard the collegial governance at the faculty level and negotiate a collective agreement that will provide better working conditions and security, according to leaders of the Association of McGill Law Professors (AMPL).

Continue reading “McGill law professors unionized”

McGill law professors seeking to unionize

McGill law professors, hoping to gain greater faculty autonomy while seeking the security of a collective bargaining framework and a collective agreement, are attempting to unionize at the faculty level, a first for professors in the university’s 200-year history.

The Association of McGill Professors of Law (AMPL) petitioned the Quebec Administrative Labour Tribunal to be recognized under the Quebec Labour Code in late November 2021 shortly after the university adopted a controversial COVID-19 vaccination policy, a position that proved to be the “bale of hay that broke the camel’s back,” said Evan Fox-Decent, AMPL’s interim president. A supermajority of the 51 McGill law professors have signed membership cards to allow the AMPL to act as their exclusive bargaining agent. The overwhelming majority of Canadian professors are unionized, with less than a handful not represented by a certified bargaining unit.

“The university is becoming more McGill incorporated than McGill University in recent years,” remarked Fox-Decent, Canada Research Chair in Cosmopolitan Law and Justice. “What really drove the point home to us about how precarious our situation is, was when we were told we were going back to teach in fall, of course we were under a new wave of COVID-19 that was starting up. That was as much as anything what put people on edge and made the majority of the faculty think that we just had to sort of take control over our own house.”

Continue reading “McGill law professors seeking to unionize”

New labour relations legal landscape on the horizon following Appeal Court decision

A new legal landscape governing labour relations may be in the horizon in Quebec following a Court of Appeal decision that found that the provincial Labour Code breached the Canadian and Quebec Charters by prohibiting first-level managers from unionizing.

“It’s a very important decision because it kind of creates a crack in the legislative scheme that we have in Quebec with regards to labour relations,” said Shwan Shaker, a labour and employer senior associate with Borden Ladner Gervais LLP. “It’s kind of opening a breach to allow low level managers to unionize. But it’s important to keep in mind that this is really case-by-case.”

Continue reading “New labour relations legal landscape on the horizon following Appeal Court decision”

Mandatory retirement clauses breach Quebec Charter, rules court

Professional services firms that have mandatory retirement policies and provisions that require partners to divest their ownership shares solely on the basis of age are discriminatory and in breach of the Quebec Charter of human rights and freedoms held Quebec Superior Court in a ruling that has the legal community buzzing over its implications.

In a case that pitted a Montreal municipal and labour and employment law firm against its founder, the decision by Quebec Superior Court Justice Stéphane Lacoste is expected to have wider repercussions than the thorny issue of mandatory retirement, according to legal observers. Following the decision in DHC Avocats inc. c. Dufresne, 2022 QCCS 58, typical arrangements made by professional services firms in succession planning such as “unpartnering” or changing the status of their senior partners while still allowing them to work in the firm may be called into question, added legal experts. Continue reading “Mandatory retirement clauses breach Quebec Charter, rules court”

Legislation that forced government lawyers and notaries back-to-work unconstitutional

A Quebec court ruling that declared unconstitutional a special law that forced provincial government lawyers and notaries to put a halt to the longest Canadian strike by public civil servants may give them much-needed ammunition to persuade the Quebec government to introduce binding arbitration, according to legal experts.

Continue reading “Legislation that forced government lawyers and notaries back-to-work unconstitutional”

Workplace investigations: Elephant in the room

Kenneth Jull has done them. So has Paul Klasios and Philippe Dufort-Langlois. All are or were at one time in-house counsel who have conducted internal investigations, an unpleasant exercise described by a lawyer as being a bit of a dark art that presents unique challenges. Nearly every general counsel too will sooner or later face the need to conduct an internal investigation into events at an organization. At a time of greater scrutiny by regulators, stakeholders and the general public, organizations of all sizes and across all sectors are dealing with growing calls demanding greater disclosure and transparency.

Continue reading “Workplace investigations: Elephant in the room”

Managing workplace sexual harassment

The series of revelations over the past year that sparked a seismic shift in public awareness of sexual misconduct by powerful men has also cast a harsh spotlight on workplace sexual harassment. Emboldened by the groundbreaking #MeToo and #TimesUp movements, growing numbers of women are speaking out — and that’s making organizations skittish, more so because they are under growing pressure to take a zero-tolerance approach to unacceptable comportment in the workplace.

Yet workplace sexual harassment is hardly a new issue. It has been on the legal radar since at least 1989 when the Supreme Court of Canada held in the landmark case of Janzen v. Platy Enterprises that sexual harassment is a form of sex discrimination and violates human rights legislation. Fifteen years later, Quebec became the first jurisdiction in North America to ban non-discriminatory workplace harassment, a move followed by Ontario in 2009, and in the ensuing years other provinces followed suit.

But a series of polls and studies make it plain: workplace sexual transgressions is still one of the most challenging workplace issues employers face. Half of Canadian women say they have been subjected to sexual harassment at work and 28 per cent have experienced non-consensual sexual touching in the workplace – and the overwhelming majority did not report the incidents, according to a survey by the Angus Reid Institute published on February 2018. Just as dismaying is the wide disconnect between employees’ reality and executives’ perceptions about the problem. A staggering 94 per cent of Canadian executives believe that sexual harassment is not a problem at their company, 93 per cent believe they have a corporate culture that prevents sexual harassment, and 69 per cent believe that it’s less of a problem than it was 15 years ago, according to a C-Suite Survey by the Gandalf Group.

“That means all the stuff is buried with organizations,” observed Janice Rubin, a leading employment Toronto lawyer considered to be a pioneer in the field of workplace investigations and co-founder of Rubin Thomlinson LLP. “And what the #MeToo has done is move the dial a little bit. So some of the stuff has become more overt.”

While the jury is still out as to whether workplace sexual harassment has become more prevalent, one thing is clear: employment and labour lawyers are busy, advising employers and employees alike, conducting investigations and training people to conduct investigations, and helping with training. “The calls are still coming,” said Gail Gatchalian, Chair of the Canadian Bar Association of National Labour and Employment section. “I expect this trend to keep happening, and I expect that the #MeToo movement will hit more and more industries. There’s been a bit of a shift culturally in society where women are feeling more supported and society is more willing to listen to a woman’s perspective on the issue.”

Employers, driven in part by apprehension, are now beginning to view workplace sexual harassment not only as a legal liability but also as a serious business and reputational risk. But for the most part they still tend to move forward only after they receive complaints, and not the carrying out the “hard proactive work” of transforming the organization’s culture to address the factors that give rise to abuse of authority, harassment and workplace sexual misconduct, as employment and labour lawyers strongly recommend. A 2007 University of Calgary study that itself analyzed data from 41 studies points out that the single biggest predictor of sexual harassment in the workplace is how permissive an organization is towards this behaviour.

Change begins at the top

Changing workplace culture, to be fair, is easier said than done. It may have become a cliché but the drive to change begins at the top. The struggles faced by the Royal Canadian Mounted Police are instructive. The RCMP has been plagued with workplace harassment, bullying, intimidation and sexual harassment for decades. In the past decade alone over 15 reviews were conducted at the RCMP and its organizational culture, issuing more than 200 recommendations, few of which have been implemented, revealed a toughly-word external review of harassment in the RCMP published last year. Despite repeated calls for action, the report underscored there was a distinct lack of commitment by generations of senior RCMP leaders to undertake the kind of broad-scaled, systemic change required. Instead most initiatives that were introduced were short-lived or ad hoc. “The problem with that is that if the membership is disaffected and feels that it’s not a genuine effort or concern then they are really going to be skeptical about any initiatives that are put in place,” explained Emma Phillips, a labour lawyer with Goldblatt Partners LLP and counsel to the RCMP external review.

At a minimum employers should have a written policy dealing with sexual harassment that has a clear and investigative procedure that requires investigations to be conducted competently, fairly and in a timely fashion. But above all it needs to be anchored by the will to put in place processes that address the well-known barriers that inhibit victims from coming forward such as the fear of reprisal, concern over future job prospects, a lack of confidence in the reporting process, or trepidation over not being believed. Or as Gatchalian, a partner with Pink Larkin LLP, puts it: “What workplaces need to think about is how to change the equation so that the cost of coming forward isn’t perceived to be outweighed by the desire of to make a formal complaint.”

Sexual harassment training can help, and can be a critical component to encourage change in workplace culture, affirm employment and labour lawyers.  Or it can hinder, and actually reinforce gender stereotypes. Inexpensive, off-the-shelf training videos, online software, or worse still, PowerPoint presentations (some subjected to it referred to it as “Death by PowerPoint”), can have a regressive effect as it becomes an object of ridicule. There’s no way around it. It may sound dreary and technical, said Phillips, but the most effective training is conducted by a “high-quality” person, is interactive and adapted to the particular workplace.

Bystander training

Making inroads is so-called bystander training. Traditionally used in emergency situations, bystander training has been adopted by the Canadian Armed Forces and is being taught at a growing number of colleges and universities. Research by the Australian Human Rights Commission reveals that bystanders were more likely than those preyed on to take action against sexual harassment. It seeks to encourage individuals to act less as “passive” bystanders and to be more active. Bystander training empowers individuals to recognize inappropriate conduct and trains them to intervene, sometimes discreetly and diplomatically and other times more assertively. In a word, sexual harassment becomes everyone’s business. “It can be a really effective way of reinforcing respectful workplace policies and culture, and also supporting individuals in the workplace when things do happen so that they feel there is a supportive network for them,” noted Phillips, who acted as counsel to the External Review on Sexual Misconduct and Sexual Harassment in the Armed Forces, and to an independent review commissioned by the UN on sexual abuse by peacekeepers. Rubin adds that bystanders are an underutilized resource, “and considering the fact that most of this stuff goes underground, bystanders can help bring sunshine into these situations.”

Other avenues that are being explored include implementing a whistleblower hotline to encourage co-workers to report sexual misconduct, said Marianne Plamondon, a Montreal employment lawyer with Langlois lawyers. The use of audits, or assessments, to determine the health or toxicity of the workplace is another area recourse that employers are exploring, added Plamondon. The U.S. Equal Employment Opportunity Commission has suggested rewarding supervisors if harassment complaints increase, at least initially, because “if employees are filing complaints of harassment, that means the employees have faith in the system.”

Workplace investigations

It seems, at least anecdotally, that employers are getting the message that once they become aware of a complaint they need to act promptly. In Ontario at least, that involves conducting investigations, something that employment and labour lawyers encourage employers to do regardless if they are legally obligated to do it or not.

But here again, caution is the word. Many investigations conducted internally or by a third party are poorly done. “That then is adding insult to injury,” remarked Rubin. “So you already have somebody coming forward and complained, which is a difficult thing to do, and the organization doesn’t do an adequate job of it.” Rubin knows that which she speaks of. She led the independent investigation of the Canadian Broadcasting Corporation following the dismissal of radio host Jian Ghomeshi, and her law firm was hired late last year to probe allegations of inappropriate behaviour within the Prime Minister’s Office. More recently still, Rubin Thomlinson was mandated by the City of London to review its harassment policies and develop an interim reporting system and investigation process after dozens of employees claimed they felt reports of harassment were not taken seriously.

There can be a price to pay from poorly conducted investigation into complaints of sexual harassment. In Smith v Vauxhall Co-Op Petroleum Limited, a wrongful dismissal case, the court held that an internal investigation that concluded that the plaintiff had committed sexual harassment and sexual assault against a subordinate was inadequate and its findings were incorrect. The court dismissed the claim, finding the plaintiff’s dishonesty regarding his relationship with his subordinate and his personal harassment were enough to justify a with cause termination. But the court found the allegations of sexual harassment were unfounded. It turns out the investigator did not interview witnesses, did not ask for specific details of the incidents, and it was not clear whether the investigator had the discussed the allegations with the plaintiff. Interestingly, the court left the door open for an adverse costs award. In another case, Joshi v. National Bank of Canada, the Ontario Superior Court of Justice concluded that a failure to provide an employee with an opportunity to respond to allegations made against him could amount to a breach of the employer’s duty of good faith.

“You want to have somebody who knows what they are doing and who knows from a process perspective but also understands substantively the area of law, and right now, you don’t always have both,” said Rubin. “Case law informs our work and deepens our understanding of what is fair and appropriate in the circumstances, as well as what legal decision makers do when they are reviewing workplace investigation processes.”

The case law however surrounding workplace investigations is emerging and barely existed some 15 years ago. Phillips says it will likely be a burgeoning area, particularly in Ontario, with the passage of Bill 132 which imposes a positive duty on employers to investigate allegations of workplace harassment. Under Bill 132, employers are required to take an investigation that is “appropriate in the circumstances.” “It’s not entirely clear what appropriate and circumstances mean,” noted Phillips. “It’s not defined. That legislation is very new so we don’t really know how it’s going to be interpreted.” Though early days, Phillips is also exploring with labour organizations whether it is possible to negotiate with employers a protocol for some sort of minimum procedural fairness framework within workplace investigations.

Case law surrounding sexual harassment too is evolving, albeit slowly. In large part that’s because relatively limited cases wind up before the courts. Few victims of workplace sexual misconduct are inclined or have the means to bring a civil action. Indeed, most employees “just want to be able to go to work, retain their employment and have a safe workplace to go to,” remarked Gatchalian. Still, arbitrators and Human Rights Tribunals, an avenue victims are expected to resort to increasingly, have been handing higher awards than ever before. In a recent case, the Ontario Human Rights Tribunal ordered a shoe-store owner and landlord to pay $200,000 as compensation to a woman for sexual harassment and assaults she suffered at his hand. “Human Rights Tribunals are showing that they are very concerned about these issues and they are taking the damages to the individuals who experienced them very seriously,” said Phillips. Plamondon believes that while jurisprudence has not changed much over the past few years, that may change. “We can expect judges to be less tolerant with inappropriate behaviour at the workplace following the wave of denunciations,” said Plamondon.

The same could be said of legislative developments, according to employment and labour experts. Besides Ontario, there have been statutory changes in British Columbia and in Manitoba, pointed out Rubin. Quebec introduced a draft bill that will amend the Act respecting labour standards that compels employers to adopt and make available to employees a psychological harassment prevention and complaint processing policy.

But all of it is slow moving, and so much more needs to be done, said Gatchalian.

“We need to look at the factors and workplace cultures that are allowing sexual harassment to occur,” said Gatchalian. “I’m not so sure how people are committed to implementing systemic cultural changes. If a workplace was really committed to implementing these cultural changes by for example increasing representation of women in leadership roles, then it would happen sooner. But I’m not sure how committed people are.”

This story originally appeared in Canadian Lawyer.

Court awards former Quebec paramedics $1.2M over subway scare

Montreal’s transit authority has been ordered by Quebec Superior Court to pay two former paramedics more than $1.2 million for a scare that left them unable to work in their profession.

The ruling highlights one of the singular situations where an injured worker can bring a civil suit even though one of the cardinal principles behind Quebec’s occupational health and safety regime is that workers cannot bring a civil liability suit against their employer because of the injury.

“This is an interesting ruling because civil actions for damages to recuperate losses that exceeds the benefits received under the Act are very rare,” remarked Laurence Bourgeois-Hatto, a Montreal labour and employment lawyer specializing occupational health and safety matters.

Under the Quebec Act respecting Industrial Accidents and Occupational Diseases (AIAOD), injured workers are indemnified regardless of who, if anyone, was at fault – unless the accident was caused by the worker’s gross and willful negligence. In exchange, as part of the social compromise or pact, the employer of a worker who suffers an employment injury enjoys absolute immunity from claims for moral and punitive damages as well as financial harm and bodily injury. In other words, injured workers cannot launch a civil liability suit against their employer due to the injury.

But there are exceptions. Under article 441 of the Act, workers can bring a civil suit against any other person other than the worker’s employer, another employer subject to the act or a co-worker. Third parties cannot claim immunity. On top of that, under article 44 a worker who does bring a civil action is entitled to recover from the person liable the amount by which the loss sustained exceeds the benefit.

That’s what happened in this case. In March 2012, two paramedics working for the organization Urgences-santé were tending to a death on the tracks of a Montreal subway station. While they were trying to remove the body from underneath the subway car, a transit employee who was attempting to repair a broken windshield accidently sounded a horn twice within the space of six seconds. Upon hearing the horn, both Yolande Poisson and Jean Langlois were “convinced” that it was a warning that the subway car was about to move. That impression was buttressed when they saw boots belonging to Montreal police officers scampering away from the tracks after they heard the horns.

Both Poisson and Langlois testified that transit officials never told them what happened. The two former paramedics later discovered that the horn was accidently triggered and that it was a false alarm. Both Poisson and Langlois then sued the Montreal transit authority for damages. Both were diagnosed with post-traumatic stress disorder following the incident, and both have been unable to work as paramedics. Poisson now works as part-time kitchen assistance while Langlois is a handyman.

In Poisson c. Société de transport de Montréal 2017 QCCS 5423, Quebec Superior Court Justice Suzanne Courchesne found that the transit employee who accidently elicited the horn was not fault. However Justice Courchesne did hold the transit incident manager was at fault under article 1457 of the Civil Code of Quebec. Under article 1457, every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another. Moreover, when the person fails in this duty, he is liable.

Justice Courchesne found that it was reasonable to believe that when the horn was set off, “two times at that,” that the paramedics would have felt “intense fear.” As a result, it was incumbent on the transit authority to act without delay to reassure the paramedics. By failing to do so, the incident manager committed a fault. Justice Courchesne ordered the Montreal transit authority to pay Poisson $624,000 and Langlois $645,000.

“If they were reassured without delay that their safety was not threatened, taking into consideration the evidence and testimony by the paramedics, the Court is convinced that on the balance of probabilities that their damages would have been considerably less if inexistent,” said Justice Courchesne in the 15-age ruling.

Thierry Saliba, a Quebec City labour lawyer specializing in health and safety, said that the ruling underscores the broad nature of fault under Quebec civil law.

“The ruling highlights that even if the original incident was not found to be a fault, one could be held responsible for actions taken after the incident,” said Saliba. “In this case it was not the person who triggered the horn that was held to be at fault but rather the reaction of the transit employer in charge of the scene.”

According to Bourgeois-Hatto, “it will be interesting to see if this ruling will open a breach in the future for other similar cases.”

The Montreal transit authority is considering appealing the decision.

Quebec government expected to impose labour agreement on its lawyers and notaries

The Quebec government is expected to impose a labour agreement on government lawyers and notaries that will give them the lowest salary hike of all Quebec public civil servants after months of negotiations with a mediator failed to find common ground.

Without a collective agreement since March 2015, Quebec ‘s 1,100 government lawyers and notaries held the longest Canadian strike by public civil servants, from October 2016 to March 1, 2017, before it was forced to back to work after the government passed an unusual back-to-work decree.

The special law called for the provincial government and Les avocats et notaires de l’État québécois (LANEQ) to return to the negotiating table to bargain “in good faith” with the help of a mediator whose recommendations are non-binding. Under the back-to-work decree, if an agreement is not reached within 105 days following the passage of Bill 127, the provincial government will impose a labour agreement that calls for a 5.25 per cent salary increase over five years compared to the 9.15 per cent increase Quebec’s 450,000 public sector workers received.

“Unfortunately it was not possible to lead the parties to conclude an agreement on all or parts of the elements in dispute between the parties,” said the government-appointed mediator René Beaupré in a brief one-page report.

Since the back-to-work decree, the two parties have held 13 bargaining sessions, including five with a mediator. Before the decree, there were more than 18 bargaining sessions and five sittings with the mediator – all of them unsuccessful.

“I regret that LANEQ was unable to reach an agreement with the government, while 510,000 public and parapublic sector employees were able to do so,” said Quebec Treasury Board president Pierre Moreau.

After initially demanding for binding arbitration overseen by a compensation committee with a chair and chosen and appointed by both parties, LANEQ watered down its stance and sought a special status within the Quebec civil service that is on par with Crown prosecutors – an issue that is not addressed in the back-to-work legislation and one that proved to be the main stumbling block between the parties. LANEQ also sought a salary increase in line with Crown prosecutors – that is, 10 per cent over four years.

“The government has said from the beginning of its negotiations that it will not budge on either special status or salary increases,” noted Jean Denis, LANEQ’s president. “They say they must treat us as they do all public servants yet they have just given provincial police officers a 17.5 per cent salary hike and as far as I know they are government employees.”

Denis said that he is still open and hopeful that more negotiations will take place. But if that fails, LANEQ will turn to the Tribunal administratif du travail (TAT) which presides over labour matters. As it stands, TAT is already scheduled to hear the parties this fall. If the matter goes before the tribunal, LANEQ says it will sue the government for $37 million for conducting negotiations in bad faith, said Denis.

“Our members are disappointed, disappointed by its employer, disappointed that their employer treats them like this,” said Denis. “It’s important for employers to recognize the efforts of its employees. So the mood of our members could be better.”