Union Interests Trump Privacy Rights Again

A Public Service Labour Relations Board decision requiring an employer to provide home contact information to the union about bargaining unit members (including those declining union membership) was reasonable according to the Supreme Court in Bernard v. Canada (Attorney General), 2014 SCC 13, because the union needed the information to carry out its representational duties. "At the same time, however, the union must ensure that the information is kept secure and is used only for representational purposes," said the court. This article from The Court analyzes the decision.

Utilization of MTS Pension Surplus to be Negotiated: SCC

The "new" MTS employee pension plan (put in place when MTS was privatized in 1997) contravened the Act and memorandum of agreement governing the privatization according to the Supreme Court in Telecommunications Employees Association of Manitoba Inc. v. Manitoba Telecom Services Inc., 2014 SCC 11, by violating the s.15(2) requirement that any new plan must provide equivalent "value" (which the court interpreted to include both in the benefits paid to plan members and in the funding mechanism used to produce the benefits). The 43 million dollar plan surplus, which had been funded solely by employees, was no longer accessible to members under the new plan, and this violated the equivalency requirement. The court reinstated the trial judge's remedial order for the parties to negotiate utilization of the funds and arrive at a mutually agreeable implementation process.

Retirement Savings Not Intended to Subsidize Wrongful Dismissal: SCC

Employee pension payments should generally not reduce the damages otherwise payable for wrongful dismissal according to a majority of the Supreme Court in IBM Canada Limited v. Waterman, 2013 SCC 70. They are a form of deferred compensation for the employee's service, not an indemnity for wage loss due to termination, said the court. Although the court doesn't expressly rule out employment contracts which provide for pension plan deductions, employers will find it tricky to draft and enforce such provisions following this decision. This Inhouse article discusses the decision.

Avoiding Undue Interference in the Operations of International Organizations: SCC

In Amaratunga v. Northwest Atlantic Fisheries Organization, 2013 SCC 66, the Supreme Court found that an international organization was immune from the wrongful dismissal claim of a long time senior employee. The fact that the appellant was left with no forum in which to air his grievances and seek a remedy was unfortunate, said the court, but "to allow employment-related claims of senior officials to proceed in Canadian courts would constitute undue interference with NAFO's autonomy in performing its functions and would amount to submitting its managerial operations to the oversight of its host state's institutions." (paras. 63 and 57)

Civil Action to Recover Holiday Pay Dismissed: MBQB

Extrinsic Evidence Limited on Judicial Review: MBQB

The court overturned a master's decision ordering the Manitoba Human Rights Commission to produce its investigator's file concerning a workplace sexual harassment claim in Jewish Community Campus of Winnipeg Inc. v. Metaser et al., 2013 MBQB 303. The court found that on a judicial review of a specialized tribunal, evidence extrinsic to the record of the proceeding may be introduced only in very limited situations, such as where necessary to prove error going to jurisdiction which cannot be proved on the record or where the record is inadequate to establish procedural unfairness. In this case, the employer was unable to identify any documents which would prove its wide ranging claims of bias, procedural unfairness and errors of law amounting to loss of jurisdiction.

Recommended Reading

• Alcohol and Drug Testing: Where Are We Now? - this Davis LLP paper examines the current scope of alcohol and drug testing in Canada and provides a broad overview of the approaches taken in these cases. It concludes with a summary of what factors make for fair policy implementation.

• Employment and labour update: A year in review - this booklet from Norton Rose Fulbright provides a comprehensive overview of last year's employment and labour law landscape and discusses what's on the horizon for 2014.

• These recent articles also review the most significant labour and employment developments of 2013:

• Top 10 Employment And Labour Law Cases In 2013 - Cassels Brock

• Top Employment Law Developments In 2013 - Torys LLP

• Five Big Developments In Employment Law In 2013 - Levitt and Grosman LLP

• Top Ten Must-Haves For Employment Agreements≠ - this Minden Gross LLP article is a checklist of the items all employment agreements should address.

• Employment Reference Letters Required in Quebec? - this Slaw post discusses the case law concerning the obligation on employers to provide reference letters to departing employees.

• U.S. Labour Laws More Protective Than Canadian? - this Slaw post references a US decision which highlights the difference in Canadian and US labour law on the issue of reinstatement. The US court ordered reinstatement of several employees who had been fired for criticizing their employer on Facebook, something the author argues would not happen in Canada.
• Employment Law Updates for 2014 - this Slaw post discusses proposed amendments to the Ontario Employment Standards Act (Bill 21, at third reading and Bill 146, introduced in December). Some of the changes are intended to bring the provincial legislation in line with changes made last year to the federal Employment Insurance Act and the Canada Labour Code.

• Supreme Court of Canada overturns test regarding summary judgments - Takeaway for employers and What does it mean for employment law? Supreme Court of Canada rewrites test for summary judgment - these blog posts discuss how the Supreme Court's endorsement of an expanded approach to summary judgment and focus on access to justice in Hryniak v. Mauldin, 2014 SCC 7 will play out in the employment law context.

Spring CPD: LSM

In the next session in the Leadership Skills series, Generational Diversity: Maximize Performance Throughout Your Organization, participants will explore ways to re-frame perceptions about generational differences and learn how to adapt their leadership styles to maximize organizational performance. It takes place March 14, 2014, from 9:00 a.m. to 3:00 p.m. at the Law Society classroom. Presenter Judy Mathieson will also host the final session in the series, Presenting With Confidence on May 29, 2014. Register for more than one session and save money.

New Manitoba Private Sector Privacy Legislation (Bill 211) - On September 13, 2013, Bill 211, The Personal Information Protection and Identity Theft Prevention Act (PIPITPA) received royal assent, making Manitoba the fourth Canadian province to enact general private sector privacy protection legislation. Subject to specified exemptions, Bill 211 will apply to all organizations that operate in Manitoba and that collect, use and disclose personal information (including personal employee information). Join privacy law expert Brian Bowman at this webinar presentation on March 27, 2014, for a practical discussion of what you need to know about the new regime.

Things you Need to Know About Wrongful Dismissal - Join Robin Kersey and Jeff Palamar for a lively webinar discussion on what you need to know to advise employers and employees in wrongful dismissal cases. The webinar takes place from 12:00 noon to 1:00 p.m. on April 8, 2014. Discounts are available for group registrants.