The longest Canadian strike by public civil servants came to an abrupt end after the Quebec government passed a special law that compelled striking government lawyers and notaries back-to-work following a labour conflict that paralyzed the province’s administrative justice system and incapacitated the government’s efforts to pass legislation and enact regulations.
Employment & labour law
-
Quebec administrative justice paralyzed by strike
-
Montreal blue collar union fined $100,000 for contempt of court
Montreal’s blue collar union and its controversial president and executives were sentenced to pay $103,000, the maximum fine allowable, for contempt of court after organizing an illegal one-day strike in spite of an injunction issued by a labour tribunal the previous day.The stern ruling, one of only a handful over the past decade that have found Quebec unions guilty of contempt of court, is intended to send a harsh warning to the labour movement that the courts will not tolerate willful blindness, according to labour lawyers.
-
Quebec government discriminated against jurists on maternity leave, rules appeal court
Quebec government lawyers and notaries, forced back to work after Canada’s longest public sector strike, won a legal battle against the provincial government after the Quebec Court of Appeal held that the government discriminated against jurists on maternity leave.In a nuanced decision that will provide comfort to both employers and labour organizations, the appeal court found that it is not discriminatory if employers under certain circumstances “distinguish” for purposes of compensation between employees who provide services to employers and those who do not such as those in maternity or sick leave. But the appeal court added that it is discriminatory if employers provide different compensation to different groups of employees who do not provide services to employers, if the distinction was based on prohibited grounds.
-
Quebec Human Rights Tribunal awards damages to employee fired because of her health condition
A retirement home has been ordered by the Quebec Human Rights Tribunal to pay more than $11,000 in material, moral and punitive damages to an employee who was fired because of her health condition.The “important” decision reaffirms the wide reach of article 18.1 of the Quebec Charter of human rights and freedoms, which circumscribes information-gathering at the pre-hiring stage, highlights the importance for employers to have thorough pre-employment medical questionnaires that do not breach the Charter, and underscores the need for employers to take immediate action when employees demonstrate bad faith, according to employment and human rights lawyers.
-
No end in sight of strike by Quebec government lawyers and notaries
A general strike by Quebec government lawyers and notaries shows no signs of abating as the provincial government is remaining firm while the bargaining agent has received the approval of the overwhelming majority of its members to shore up its war chest.Without a contract for more than a year, the 1,100 members of the Les avocats et notaires de l’État québécois (LANEQ) have been on strike since late October to push for a change in the negotiation process from the current mediation process. LANEQ is calling for binding arbitration, buoyed by a compensation committee, with a chair chosen and appointed by both parties. The mandate of the compensation committee would include assessing reasonable compensation while taking into the account the provincial government’s capacity to pay. In exchange, the association is willing to give up its right to strike. (Quebec Crown prosecutors are not part of the strike).
-
Supreme Court divided over standard of review for arbitrators
A teacher’s union can call witnesses from an in camera school board meeting to testify about a dismissal ruled the Supreme Court of Canada divided by the kind of judicial standard of review that should apply to an arbitrator’s decision.The ruling opens the door for employees to examine members of a decision-making authority over motives leading to a disciplinary sanction, reaffirms that deference must be shown to arbitrators in order to “preserve the expeditious, effective and specialized dispute settlement method represented by grievance arbitration,” and by the slimmest of margins held that the standard of review applicable to arbitrator’s decisions is not correctness but reasonableness.
-
Employer has the right to fire police officer facing criminal charges, rules appeal court
The dismissal of a former Quebec City police officer was upheld by the Quebec Court of Appeal after it ruled that his employer had the right to fire him while he was the subject of a pending criminal investigation. -
Appeal court provides guidance on workplace investigations
A controversial lower-court ruling that ordered a Montreal lawyer to pay moral damages to a college teacher for pain and suffering after an investigation she had headed into psychological harassment complaints breached the duty of procedural fairness was overturned by the Quebec Court of Appeal in a precedent-setting ruling that provides guidance on workplace investigations.
In a closely-watched ruling by the business and legal community, the Quebec Court of Appeal held that workplace investigations are “intrinsically linked to an employer’s exercise of power in matters of management and discipline,” and therefore do not have to abide by the same procedural fairness standards applied in administrative law.
-
Employers have duties towards employees working abroad
An electrician who launched a $190,000 suit against the scandal-plagued engineering firm SNC-Lavalin for failing to “rapidly and efficiently” evacuate him from Libya while the African nation was in the midst of a civil war lost his court battle after Quebec Superior Court held that the “troubles and inconvenience” he suffered were due to the “insurrection” in the country.
In a ruling that sheds light on the responsibilities employers have towards employees who work abroad, Justice Louis Lacoursière held that while article 51 of the Quebec Act Respecting Occupational Health and Safety (Act) does not apply beyond the borders of Quebec, employers are nevertheless bound under article 2087 of the Civil Code of Québec to take “any measures” to protect the health, safety, and dignity of employees even if they work out of the country.
-
Montreal tax lawyer fights federal whistleblower watchdog
Yacine Agnaou is one of a handful of Canadian lawyers who took on Quebec tax authorities and plead a case so successfully that now others are trying to follow suit. Last year Agnaou won a precedent-setting ruling that condemned Revenue Quebec to pay nearly $4 million, including a staggering $2 million in punitive damages, to a businessman who was forced to shut down his business after it mishandled his case. Lawyers from different firms, evidently emboldened, are now working together to plead a case before the Quebec Court of Appeal to stop Revenue Quebec’s controversial policy of holding companies liable for the tax delinquencies of its suppliers.
Now Agnaou is immersed in another legal battle against another government department, and once again the odds of winning are stacked against him. Agnaou, a former Crown prosecutor, has filed a motion for leave to appeal before the Federal Court of Appeal in a bid to force the federal whistleblower watchdog to investigate his allegations of wrongdoing against the Public Prosecution Service of Canada.
-
Pension battle brewing
Chances are the pension battle is going to get ugly.
A month ago hundreds of Montreal municipal employees protested a proposed law by the Quebec government that would compel unions to renegotiate their pension plans to staunch the province’s $3.9 billion municipal pension plan deficit. At around the same time, 85 Montreal firefighters retired immediately fearing that their pensions would be reduced following negotiations between the city and their union. More recently still, Montreal police have begun wearing red baseball caps and jeans or combat pants, a first step in an escalating series of pressure tactics to protest pension reforms. More protests are likely.
There is little question that municipal pension plans are in dire straits. In Montreal approximately 10.5 per cent of the city’s 2013 budget, or $510.3 million of the $4.9 billion budget, will fund the retirement system, including a fee of $256.3 million to cover the plan’s actuarial deficit for a single year. In Quebec City it’s more of the same, with Mayor Régis Labeaume estimating the city’s pension deficit to be around $800 million. All told, the Union of Quebec Municipalities says that 108 cities and towns across the province have a collective deficit of $5-billion in their defined benefit pension plans.
-
Truth & Consequences: Whistleblowing legislation raises thorny issues
When Edgar Schmidt launched an atypical lawsuit against the Attorney-General of Canada accusing Ottawa of circumventing a legal requirement to properly review the constitutionality of draft legislation, the soft-spoken lawyer was prepared to pay the price for revealing a long-standing practice that strikes at the heart of the federal legislative process.
The riposte was swift. The day after the 61-year old senior lawyer of the federal Department of Justice filed his claim before the Federal Court of Canada in December 2012, he was suspended without pay. Schmidt would have preferred to keep working, but is now retired and living on a reduced pension. While disappointed with the “vengeful attitude” displayed by his former employer and the snub he has felt by some former colleagues, he has no regrets over his actions. “Quite frankly, I don’t think there was anything wrong with I did,” says the former general counsel of the Legislative Services Branch, the group responsible for drafting and examining bills and regulations. “There is nothing wrong in seeking to uphold the rule of law. There is nothing wrong in seeking the court to clarify one’s instructions when the instructions one is getting seems in conflict with the law.”
Schmidt joins a growing list of Canadian whistleblowers who quickly discover that disclosing potential wrongdoing in the workplace almost always leaves them vulnerable. Schmidt’s court case raises thorny issues over the nature of the professional responsibilities and ethical obligations of government lawyers. But it also underscores the tension that exists between the duty of loyalty an employee owes to his employer, freedom of expression as guaranteed by the Canadian Charter of Rights and Freedoms, and federal and provincial whistleblowing legislation that aims to protect whistleblowers from retribution by their employers.
-
Quebec Court of Appeal provides guidance over Anton Piller orders
Litigants who obtain evidence seized through Anton Piller orders, an extraordinary legal measure granted in exceptional circumstances, do not have an “automatic” right to review the material, according to a recent ruling by the Quebec Court of Appeal.
Anton Piller orders, described by the Supreme Court of Canada as a “draconian” measure, are civil search warrants that allow one party (accompanied by a bailiff and independent supervising lawyer) to launch a surprise raid on the business premises or homes of people when there is good reason to believe that one party to a lawsuit is in possession of documents or material that could be concealed or destroyed. It is considered by legal observers to be an intrusive and powerful legal remedy because no notice is given to the party against whom it is issued. Indeed, defendants only find out about the existence of the order when they are served and executed.
-
Tug of war – Canadian labour under seige
When the final tally was counted, the labour movement could be forgiven for heaving a sigh of relief. The Senate this week amended, some say eviscerated, legislation passed by the House of Commons that would have given organized labour another sound reason to believe it is under siege.
This time the Conservative government would have under the auspices of accountability and transparency forced unions to disclose financial information to tax authorities. Other entities that too receive favourable tax treatment were inexplicably exempted from the disclosure obligations. Organized labour could be forgiven for feeling that its capacity to flex its muscle is being thwarted as it helplessly watches the federal government trying to systematically strip elements that once made it a force.
Provincial governments across the country too are following suit. Many have enacted legal obstacles to make life difficult for labour. “It’s the age of conservatism,” told me Ronald Pink of Pink Larkin, a law firm from the Atlantic Canada that actually boasts it pays heed to social justice. “We are turning back the clock 50 years on things we fought to achieve.”
Others see matters differently.
What follows is a look at legal developments that could shape the Canadian labour landscape for years to come.
