eLaw - Labour and Employment Law Update | September 2017 - No. 29

The Law Society of Manitoba
Professional Education and Competence 		The Law Society of Manitoba
eLaw Labour and Employment Law Update September 2017
In This Issue
Apprehension of Bias Must be Reasonable in the Circumstances: MBQB
Bad Blood the Backdrop to Severance Agreement Dispute: MBQB
Legislative Update
Recommended Reading
2017 Isaac Pitblado Lectures
Fall CPD: LSM
MBA Program
Manitoba Labour Law Review 

Apprehension of Bias Must be Reasonable in the Circumstances: MBQB

In Construction and Specialized Workers’ Union, Local 1258 v. Operative Plasterers’ and Cement Masons’ International Association of the United States and Canada, Local 222, 2017 MBQB 140, the court declined to set aside an arbitrator’s decision as to ownership of concrete finishing work on the grounds of a reasonable apprehension of bias. A court may set aside an arbitrator’s award where there is a reasonable apprehension of bias, said the court, but not when the applicant had an opportunity to challenge the arbitrator on those grounds before the award was made and did not do so, as in this case. The evidence did not support the applicant’s assertion that he did not know of the existing business relationship between the arbitrator and the respondent’s business development manager until after the arbitration. In addition, the court found that the evidence as a whole did not support a finding of reasonable apprehension of bias on the part of the arbitrator. Finally, the court found that the applicant had not established an arguable case to appeal the arbitrator’s decision itself.

Bad Blood the Backdrop to Severance Agreement Dispute: MBQB

The court dismissed the plaintiff’s claim against his family’s business and his brother personally for wrongful termination of his seasonal position as a golf course superintendent and breach of their severance agreement in Cerasani v 3148581 Manitoba Ltd. et al, 2017 MBQB 147. The claim (and the counterclaim relating to damages to the golf course property alleged to have been committed by the plaintiff) were part of a larger and ongoing “messy family dispute” which the court said was “ever present and coloured the perspectives and evidence” of the family members who testified. Despite the conflicting and at times disingenuous evidence, the court found that the issues and analysis in the case were straightforward. The court was satisfied that the plaintiff had breached the confidentiality terms of the severance agreement, the main purpose of which was to end his involvement in the “family” business and compensate him for his years of service as a member of the family. Given the breach, the contract was considered to have ended, but the court went on to order that the defendant company could not recover the money already paid under the agreement and their counterclaim was dismissed.

Legislative Update

Bill C-44, Budget Implementation Act, 2017, No. 1, an omnibus bill making significant changes to the Canada Labour Code and the Employment Insurance Act, received royal assent June 22, 2017. When these sections are proclaimed, both acts will be amended to extend parental and maternity leave provisions and to create a caregiving benefit for family members caring for critically ill adults or children. In addition, the Canada Labour Code amendments will expand the jurisdiction of the Canada Industrial Relations Board to adjudicate unjust dismissal claims of non-union employees, complaints relating to reprisals, and penalty appeals related to occupational health and safety and employment standards. For further details see:

Budget Bill Passes, Making Significant Changes to the Canada Labour Code – Hicks Morley

More employee benefits on the horizon – Fasken Martineau DuMoulin LLP

Canada Labour Code Amendments – Lawson Lundell LLP

Recommended Reading

Recent Changes to the Federal Skilled Worker Immigration (FSW) through Express Entry – this Pitblado LLP blog post outlines the June 6, 2017 changes to the express entry program to facilitate applicants’ inclusion and describes the express entry program process in detail.

Canada Labour Code Amendments Re-introduce “Card Check” Certification – this MLT Aikins post discusses the recent enactment of Bill C-4 (reversing Bill C-525 and restoring card-check certification).

Deconstructing the workplace – this Canadian Lawyer article sets out issues for employers to consider when contemplating flexible work arrangements.

Why Employers Should “Future Proof” Term Contracts – this MLT Aikins post discusses an Ontario Court of Appeal decision setting a new high water mark for the standard to be met by termination clauses. 

Ontario Court of Appeal Applies Settled Law on Constructive Dismissal and Signals Change on the Duty to Mitigate – this Miller Thomson article discusses Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402, a constructive dismissal decision dealing with demotion, mitigation and treatment of income earned during the notice period.

Supreme Court Upholds Termination for Violation of Anti-Drug Policy – this Labour Pains post discusses the Supreme Court’s decision in Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (upholding a termination of employment on the basis that the employee had breached the company’s anti-alcohol and drugs policy) and its takeaways for employees and employers.

Say What You Need to Say: Employers not Liable in Defamation for Negative Employee References – this MLT Aikins article summarizes two recent Ontario cases dealing with liability in defamation for employers who give negative employee references.

Bullying and Harassment Can Lead to Unforeseen Consequences; Damages and the Importance of Conducting Proper Workplace Investigations; and Five Reasons to Retain External Legal Counsel to Conduct Workplace Investigations – these Thompson Dorfman Sweatman LLP articles discuss the sometimes unforeseen consequences of workplace bullying and harassment and why employers facing allegations of such employee misconduct are well advised to hire independent investigators.

2 Winnipeg women suing car dealership over alleged 'sexually toxic workplace' – this CBC article refers to two lawsuits against a Winnipeg dealership alleged to have ignored a “sexually toxic workplace.”

The Supreme Court's Pronouncement On Mental Injury: Implications For Moral Damages In Employment Law – this MacDonald & Associates article examines the Supreme Court’s analysis in Saadati v. Moorhead, 2017 SCC 28, and its implications for the evidence required for an award of moral damages.

Contemplating marijuana in the workplace – this Canadian Lawyer article is one of many speculating on how the legalization of recreational marijuana will affect the workplace.

2017 Isaac Pitblado Lectures

The 2017 Isaac Pitblado Lectures, #140Down – Now What? The Future of Lawyering is Here, will be held November 3, 2017 (the one day format is new this year) at the Grand Ballroom, Fort Garry Place. The lectures will explore the future of the legal profession, examining such topics as the future of adjudication, client centred service, and the role of technology in practice. Hear why Tracey Epp, Pitblado LLP and others are excited to be attending the upcoming Pitblado Lectures. The early bird discount ends September 29, 2017, so register soon to reserve your spot.

Registrants will also receive a copy of Keynote Speaker - Jordan Furlong's 2017 book, Law is a Buyer's Market: Building a Client First Law Firm. Follow us on twitter @pitbladolecture for the most up-to-date information.

Fall CPD: LSM

Utmost Good Faith: Yesterday and Today  - the legal principles (duty to disclose and utmost good faith) outlined 250 years ago in Carter v Boehm remain relevant today, even beyond their original insurance law context. Len French will discuss how the case has been applied over the years and its implications for general contract law at this November 8, 2017 lunch program. Students and webinar participants are eligible for registration discounts.

MBA Program

Preparing for and Conducting Labour Arbitrations – presenters The Honourable Martin Freedman, Q.C., Grant Mitchell Q.C. and Susan Dawes will share their expertise and advice on preparing for and conducting successful labour arbitrations at this lunch program, to be held at the Law Society classroom on October 10, 2017.

Manitoba Labour Law Review 

The 23rd annual Manitoba Labour Law Review will be held November 1-2, 2017 at the Victoria Inn, Winnipeg. Topics to be discussed include: criminal employees, correcting poor performance, sexual misconduct by employees, progressive discipline mistakes, and updates on the labour board, labour arbitration, and accommodation. For further details see the conference brochure. 

CBA Administrative Law, Labour and Employment Law Conference

The 18th annual joint conference of the CBA National Administrative Law and Labour & Employment Law sections will be held November 17-18, 2017 in Ottawa. Highlights include plenary session on the 35th anniversary of the Charter and a pan-Canadian ‘year-in-review”, as well as breakout sessions on judicial review of executive orders and the duty to consult. For further details see the conference agenda.

 

ISSN 1916-3916

 

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