eLaw - Labour and Employment Law Update

December 2014 - No. 15

ISSN 1916-3916

In This Issue

Principle of Good Faith and Duty of Honesty Will Enhance Commercial Certainty: SCC

Denying Parental Leave Top-Ups to Recipients of Pregnancy Benefits Discriminatory: SCC

Leave Granted in Employment and Income Assistance Appeal: MBCA

Court Approves MTS Pension Plan Implementation Agreement: MBQB

Teacher Entitled to Pay While Suspended Awaiting Criminal Trial: MBLA

Civil Cause of Action Exists for Overtime Wage Claim: MBQB

Recommended Reading

Continuing Professional Development: LSM

2015 MBA Mid-Winter Conference

Principle of Good Faith and Duty of Honesty Will Enhance Commercial Certainty: SCC

There is a general organizing principle of good faith that underlies many facets of contract law and a duty to act honestly in the performance of contractual obligations, said the Supreme Court of Canada in Bhasin v. Hrynew, 2014 SCC 71. The case is being hailed as a landmark decision that will enhance commercial certainty by making the common law more coherent, just, and in accord with the reasonable expectations of commercial parties. As noted in these commentaries, it's unclear how the duty will apply, especially in the employment context:

Denying Parental Leave Top-Ups to Recipients of Pregnancy Benefits Discriminatory: SCC

In an oral judgment released November 12, 2014, the Supreme Court of Canada restored an arbitrator's ruling that a school board's denial of parental leave benefits to birth mothers under their collective agreement violated both the Charter and the Human Rights Code of BC. The arbitrator found that birth mothers denied parental leave because they had already received pregnancy benefits were subject to unequal treatment, but the BCCA disagreed. The Supreme Court found that the BCCA had "erred in failing to give deference to the arbitrator's interpretation of the collective agreement and in failing to recognize the different purposes of pregnancy benefits and parental benefits."

Leave Granted in Employment and Income Assistance Appeal: MBCA

The court granted leave to appeal in Murray v. Director, Employment and Income Assistance, Seven Oaks, 2014 MBCA 110 on the question of whether the Social Services Appeal Board erred in law in its interpretation of s. 5(5) of The Employment Income Assistance Act and, in particular, in improperly fettering its discretion by relying on department Policy to determine whether the applicant (a young single mother living with her boyfriend in his parents' home) was "cohabiting in a conjugal relationship."

Court Approves MTS Pension Plan Implementation Agreement: MBQB

In Telecommunications Employees Association of Manitoba Inc. et al. v. Manitoba Telecom Services Inc. et al., 2014 MBQB 236, the court formally approved the Pension Plan Surplus and Implementation Agreement reached by MTS and its unions and retirees on September 24, 2014, after years of litigation and in accordance with directives of the MBQB and the SCC. After addressing concerns raised by those opposed to implementation, the court concluded that the Implementation Agreement complied with "the intention of the trial judgment and with the additional directives imposed by the Supreme Court of Canada." This CBA article discusses the history of the case and details the terms of the Agreement.

Teacher Entitled to Pay While Suspended Awaiting Criminal Trial: MBLA

A teacher suspended without pay while awaiting criminal trial on charges he sexually assaulted a former co-worker lost his bid for reinstatement but was awarded pay retroactive to the suspension pending determination of the criminal charge in St James-Assiniboia School Division v St James-Assiniboia Teachers' Association, 2014 CanLII 49983 (MB LA). The arbitrator agreed with the Division's argument that its reputation would suffer serious potential harm if it retained the grievor in a teaching position with regular student contact, but noted that this was not a universal rule. In determining the pay issue, the arbitrator weighed the competing legitimate interests of the employer (in maintaining confidence in the public school system) and the grievor (in preserving his livelihood while defending himself in the criminal justice process), and concluded that the employer had not met the onus of proving that its interests could only be protected by withholding pay.

Civil Cause of Action Exists for Overtime Wage Claim: MBQB

An employee's claim for unpaid wages will proceed following the court's decision in Hutlet v. 4093887 Canada Ltd. and 4093879 Canada Ltd., 2014 MBQB 223 that a civil cause of action exists to enforce the overtime provisions of The Employment Standards Code. The employer argued that the claim should be struck because overtime wage claims are based on a statutory right and can only be heard through the administrative complaints process established under the Code. The court began by acknowledging that there is conflicting case law on this issue, likely due to subtle differences in the legislative schemes involved. Reading Manitoba's legislation as a whole, and with a view to an interpretation which encourages compliance by employers, the court concluded that the Legislature intended that employees would be able to enforce the overtime provisions of the Code either through the complaints process in the Code or through civil action. Moreover, if the Legislature had intended to restrict an employee to recovering six months' wages, clearer language would have been used and the change in policy would have been highlighted when the Code was introduced, said the court (para. 52).

Recommended Reading

A novel approach to non-competition clauses - this Fillmore Riley article highlights a recent BC case in which the Court of Appeal upheld a non-competition clause which it found was prima facie in restraint of trade, but was nonetheless enforceable because the payments were unambiguous and calculated to recoup the investment the business had made in the employee.
The theme of the November 2014 edition of the CBA's Perspectives newsletter is "recent decisions on just cause." It includes articles on just cause terminations, proportionality and just cause, termination for sexual misconduct, harassment by an employee, proving just cause, insubordination, and just cause and dependent contractors.
What federally regulated employers need to know about recent amendments to the Canada Labour Code - this RT blog post discusses what policies and programs federally regulated employers need to revise to comply with the occupational health and safety amendments to the Canada Labour Code, which came into force October 31, 2014.
Employment Law, Jurisdictional Immunity, and Access to Justice: Amaratunga v Northwest Atlantic Fisheries Organization - this article from The Court discusses the implications of last year's SCC decision in Amaratunga v Northwest Atlantic Fisheries Organization, 2013 SCC 66, in which the court dismissed an employee's wrongful dismissal claim against an international organization due to an immunity order.
A face for radio? Employment law lessons from the Jian Ghomeshi scandal - there's no shortage of articles on the lessons to be learned from the Jian Ghomeshi affair, including this post from HR Hero and this Blaney McMurtry publication.
Legitimate, long-term absences and the employer's duty to accommodate - this Fillmore Riley article discusses the factors to consider in determining whether an employee can be legally dismissed for non-culpable absenteeism due to a mental or physical disability.

Continuing Professional Development: LSM

Winter CPD Replays - Spend the colder months catching up on popular cpd programming by viewing video replays of past LSM programs, including the most recent Annual Accommodation in the Workplace program scheduled for replay January 5, 2015 from 1:00 to 4:00 pm. Refreshments are not included at the replays, but you are welcome to bring your own.

Everyday Ethics Series - Register for multiple sessions in this 6 month series of lectures on ethics issues featuring Allan Fineblit, Q.C., and save money as you learn what you need to know to practise responsibly. Upcoming sessions include Privilege and Confidentiality on January 9, 2015 and Mobility 101 on February 11, 2015. You can also register to attend one or more of the first three sessions in the series, which will be shown in video replay on January 6, 2015.

Dealing with Expert Opinion Evidence - counsel of all experience levels encounter challenges when working with expert witnesses. Experienced litigators Steve Vincent and Jeff Baigrie will walk you through what you need to know about expert opinion evidence at this lunch hour program on February 20, 2015. Register now to attend either in person or by tele-presentation.

2015 MBA Mid-Winter Conference

The Manitoba Bar Association's Mid-Winter Conference will be held January 22-24, 2015 at the Fairmont Hotel, with continuing professional development sessions scheduled all day Thursday and Friday. The Labour and Employment Law section is sponsoring a program on Restrictive Covenants on Thursday afternoon and there are also programs on Privacy Law and Social Media. For further details see the brochure or registration form.

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