The Supreme Court has confirmed in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, that the unjust dismissal provisions of the Canada Labour Code (ss. 240 to 246) prevent federal employers from dismissing employees without cause, even where reasonable severance has been paid. The majority rejected the argument that employment can be terminated without cause so long as minimum notice or compensation is given, concluding at para. 67 that to infer that Parliament intended to maintain the common law under the Code regime: creates an anomalous legal environment in which the protections given to employees by statute — reasons, reinstatement, equitable relief — can be superseded by the common law right of employers to dismiss whomever they want for whatever reason they want so long as they give reasonable notice or pay in lieu. This somersaults the accepted understanding of the relationship between the common law and statutes, especially in dealing with employment protections, by assuming the continuity of a more restrictive common law regime notwithstanding the legislative enactment of benefit‑granting provisions to the contrary. For commentary on both sides of the issue see: Supreme Court in Wilson v. Atomic Energy: Federal Employers Need a Reason to Fire Employees – Law of Work Federally Regulated Employers Need Just Cause To Terminate Non-Union Employees – Bennett Jones Dismissing an Employee in the Federal Sector? You Will Need More Than a Severance Package – Ontario Employer Advisor Supreme Court Issues Final Word on Code Protections Against Without Cause Dismissal - McMillan Landmark SCC decision heralded as victory for federally regulated employees- Legal Feeds blog

In Millen et al v Hydro Electric Board (Man) et al, 2016 MBCA 56, the Court of Appeal upheld the motion judge’s decision to stay a court action challenging the constitutionality of Hydro’s tendering policy (requiring contractors’ employees to be members of specific unions designated by collective agreements) on the grounds that the Labour Board, not the court, had exclusive jurisdiction to hear the matter. The court rejected the plaintiffs’ argument that the dispute was a challenge to the government policy that underlies the collective agreements, not a challenge to the agreements themselves, concluding at para. 33 that: The characterization of the dispute, as articulated by the plaintiffs themselves in their re-amended statement of claim, clearly demonstrates that it arises out of the collective agreements, the Act and its interpretation, and issues deeply rooted in labour relations, all of which fall within the purview of the Board and which that entity is specifically authorized to adjudicate.

In Manitoba Association of Health Care Professionals v. Manitoba Labour Board et al., 2016 MBQB 158, the court dismissed MAHCP’s application for judicial review of a representation vote ordered by the Manitoba Labour Board. A 2012 reorganization of the Regional Health Authorities resulted in the intermingling of employees represented by competing unions, and MAHCP, the smaller union, argued that the Board’s decision not to provide personal address information for all of the employees eligible to vote regardless of which union had previously represented them, resulted in an unfair vote. The court dismissed the application for delay, but also commented that success on the merits was unlikely given prior case law on injunctive relief and the advent of privacy legislation.

In Loewen v. The Manitoba Teachers’ Society, 2016 MBQB 142, the court had the difficult task of sorting out the costs payable to a teacher who was ultimately successful in her hotly contested claim to recover future monthly disability payments withheld by her employer. MTS took the position that its obligations to pay such benefits should be reduced by the income loss component of the lump sum settlement from MPI. The applicant’s legal bill totalled $113,670.15, which left her with only $21,329.85 from the amount MTS was ordered to pay. The court declined to order solicitor and client costs against MTS, but did award arbitration costs with respect to MTS’s attempt to seek a second arbitration award on a previously decided issue, which the court described as an “attempt to take a second bite of the cherry.”

In Grant v. Electra Sign Ltd., 2016 MBQB 131, a wrongful dismissal action, the court granted summary judgment to a 63-year-old employee whose employment was terminated without notice after 13.5 years of service. The court found that the employer’s allegations of negligent business practices and sexual harassment by the employee (advanced only after severance negotiations broke down and the employee sued), did not demonstrate the type of egregious and unforgiveable misconduct necessary to establish just cause to terminate the employment contract. Reasonable notice was set at 14 months (including two months for the manner of dismissal), but reduced by four months for the employee’s failure to mitigate.

Federal The federal government introduced Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, on May 17, 2016. It proposes amendments to the Canadian Human Rights Act (to add gender identity and gender expression to the list of prohibited grounds of discrimination) and to the Criminal Code (to extend the protection against hate propaganda to any section of the public that is distinguished by gender identity or expression and to affect sentencing on such crimes). For further information see the legislative summary, departmental information, and the Slaw article Gender Identity and Gender Expression Protection Under the Law. Provincial Bill 7, The Labour Relations Amendment Act, was introduced on June 15, 2016. As indicated in the explanatory note, the Bill amends The Labour Relations Act to make a vote by secret ballot mandatory before a union can be certified as the bargaining agent for a group of employees. The government news release states: “Proposed changes would eliminate the option for the Labour Relations Board to automatically certify a union that has 65 per cent employee support and require all applications that have 40 per cent employee support to be approved by a secret ballot vote.”

The federal government has pledged to give workers in federally regulated sectors the right to formally request flexible work arrangements from their employers and has released a discussion paper which it hopes will set the stage for engagement on this issue with workers, employers, labour and employer organizations, academics, other experts, and other organizations concerned about work-life balance.

Litigation in the Facebook Age: Creative Discovery through Cutting-Edge Internet Research on Parties and Witnesses – this BC CLE paper reviews how social media evidence has been used in various areas of litigation (including labour and employment cases) and considers the privacy and ethical concerns this raises. Accommodating depression – this Lawyers Weekly article explores the problematic outcomes of the Ontario Human Rights Tribunal ruling that miscarriages are a ground of disability under the Human Rights Code of Ontario. Wrongful Dismissal Settlements and Awards: Making and Defending Mitigation Arguments, and Other Creative Solutions – this CLE BC paper discusses classic approaches to mitigation and identifies some lesser used strategies to address the possibility of future mitigation. Mis(class)ified? First-of-its-Kind Class Action Gets the Green Light – this McMillan article discusses Omarali v Just Energy, 2016 ONSC 4094, a recent Ontario decision in which a group of workers who were allegedly misclassified as independent contractors have been certified to proceed with a class action lawsuit against their principal. A comparative guide to non-compete and restrictive covenants in 18 different jurisdictions – this Lexology guide reviews what types of restrictive covenants are recognised and enforceable in 18 countries and identifies special rules on non-competes for particular classes of employee. A guide to wages and working time in 18 different jurisdictions – this Lexology guide summarizes the standards for minimum wage and working hours in 18 countries. Demystifying Canadian employment and labor law – this Dentons article outlines how different provinces and territories and the federal sector regulate workplaces. Are Employers Responsible for Protecting Their Employees on Social Media? “Yes” According to a Recent Decision – the author of this blog post queries whether the workplace now extends into cyberspace following the finding in Toronto Transit Commission and ATU, Local 113 that an employer was liable for failing to protect its workers from harassment and discrimination in customer posts on the employer’s Twitter account. The Supreme Court of Canada Affirms WCAT is Owed Curial Deference – this McMillan article discusses the implications of the recent SCC ruling in British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25, that decisions of the British Columbia Workers' Compensation Appeal Tribunal are owed curial deference.

The 2016 Isaac Pitblado Lectures, Pimohtéwin tati‎ mínowastánowahk (Journey to Reconciliation): Lawyers Called to Action, will examine the Calls to Action issued by the Truth and Reconciliation Commission and explore the role of lawyers in renewing relationships between Indigenous and non-Indigenous people in Canada. The lectures will be held November 4-5, 2016 at the Fort Garry Hotel. Register by September 30, 2016 to take advantage of the early bird rate. To hear from 2016 Isaac Pitblado Lecture Organizing Committee Co-Chair Bradley Regehr about Why should You Attend the 2016 Pitblado Lectures click here.

To Act or Not to Act: A Conflicts Primer and Review of the New Conflicts Rules – Law Society of Manitoba counsel will discuss the fundamental principles of conflicts of interest and review the new conflicts rules at this September 20, 2016 webinar. Discounts are available for group registrations. Plain Language Communication – Learn to communicate more effectively using plain language at this lunch program to be held November 23, 2016 at the Law Society classroom. Registration discounts apply to students and teleconference participants. NEW Language Rights Rule – This program will examine ethical and professional obligations under the new Code of Professional Conduct rule on language rights and offer practical suggestions for both solicitors and litigators to meet those requirements. It will be held at the Law Society classroom on November 24, 2016. You are Not Alone: The Lawyer’s Guide to Dealing with Anxiety – learn how to recognize and manage anxiety at this highly recommended program developed specifically for Manitoba lawyers by the Anxiety Disorders Association of Manitoba. Take advantage of our reduced rate and register to attend on November 29 or 30, 2016, from 12 noon to 1:30 pm.

Hot Topics in Labour Law - Presenter Ken Dolinsky will discuss amendments to The Labour Relations Act, as well as recent cases on unjust dismissal complaints, random drug and alcohol testing policies, and grieving human rights complaints. The program will take place from noon to 1:30 pm on September 21, 2016 at Taylor McCaffrey LLP.

The 17th annual Administrative, Labour and Employment Law Conference will take place November 18-19, 2016 in Ottawa, Ontario. Presenters will review the latest developments in these three areas and appellate court judges from across Canada will offer a views from the Bench.

The 22nd Annual Manitoba Labour Law Review will be held November 8-9, 2016 at the Victoria Inn Hotel & Convention Centre, Winnipeg. Topics to be discussed include: top arbitration and Labour Board decisions, accommodation update, privacy in the workplace, and duty to warn.