eLaw - Labour and Employment Law Update | February 2018 - No. 31

The Law Society of Manitoba
Professional Education and Competence 		The Law Society of Manitoba
eLaw Labour and Employment Law Update February 2018
In This Issue
Expanding the Scope of the Prohibition Against Workplace Discrimination: SCC
Reasonable Notice and Compensation for Manner of Dismissal: MBCA
Conduct Decision Unreasonable: MBCA
Reduced Duty of Fairness Applies to Investigatory Bodies: MBCA
Adding New Breach of Contract Claim in CNR Pension Dispute: MBQB
Legislative Update
Recommended Reading
Upcoming MBA Programs
2018 Accommodation Law Conference

Expanding the Scope of the Prohibition Against Workplace Discrimination: SCC

The scope of the prohibition against discrimination “regarding employment” under s. 13(1)(b) of the BC Human Rights Code is not limited to protecting employees solely from discriminatory harassment by their superiors in the workplace, according to a majority of the Supreme Court in British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62. “Rather, its protection extends to all employees who suffer discrimination with a sufficient connection to their employment context…and (t)his may include discrimination by their co-workers, even when those co-workers have a different employer.” (para. 3) In this case, the complainant, a civil engineer employed by a firm hired to supervise a road improvement project, was harassed by a foreman of the primary construction contractor. In determining whether the discriminatory conduct had a sufficient nexus with the employment context, the majority applied a contextual approach that considered: (1) whether the respondent was integral to the complainant’s workplace; (2) whether the impugned conduct occurred in the complainant’s workplace; and (3) whether the complainant’s work performance or work environment was negatively affected. These articles discuss the takeaways from the case:

Reasonable Notice and Compensation for Manner of Dismissal: MBCA

In Grant v Electra Sign Ltd, 2018 MBCA 5, the Court of Appeal affirmed the motion judge’s decision to award 12 months’ notice plus the unpaid portion of a yearly bonus to a 62-year-old wrongfully dismissed 13½ -year employee of a sign company, but set aside the award of two months’ pay in lieu of notice (as compensation for the manner of dismissal) and the award reducing the period of reasonable notice by four months (as compensation for the employee’s failure to mitigate his loss). In making its determination on the issue of reasonable notice, the court affirmed their earlier finding that there is not an inflexible cap on notice awards in Manitoba, despite the “admonition of restraint” adopted in previous cases and the employer’s argument that Manitoba courts have adopted a policy of granting two-thirds of a month for each year of employment. In this case, the 12 month award was “not so clearly wrong as to amount to an injustice,” said the court. The judge did err, however, in compensating for the manner of dismissal by extending the notice period by two months, contrary to Keays. The appeal court went on to find that there was insufficient evidence (medical or otherwise) to award damages for the manner of dismissal. On the issue of just cause for dismissal, the court affirmed that the mere fact that cause is alleged, but not ultimately proven, does not automatically support the granting of compensation for the manner of dismissal. In addition, the fact that the employer reneged on a settlement offer after receiving evidence from other employees supporting a just cause defence (which was ultimately not successful) “does not constitute conduct that meets the standard of being high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.” (para. 60)

Conduct Decision Unreasonable: MBCA

The court set aside a finding of misconduct and an 18 month suspension imposed on a male nurse accused of sexually assaulting a patient in the course of providing care in Ahmed v College of Registered Nurses, 2017 MBCA 121, finding that the discipline committee decision was unreasonable given fundamental flaws in its credibility findings.  Specifically, the committee erred in failing to consider the reliability of the complainant’s evidence when it assessed her credibility (given numerous inconsistencies in her evidence and a multitude of signs that she may not have been able to accurately observe, recall and recount what was occurring); and in using her evidence of her prior consistent statements for an improper purpose, namely, as evidence of the truth of her in-hearing testimony. 

Reduced Duty of Fairness Applies to Investigatory Bodies: MBCA

In Kuny v College of Registered Nurses of Manitoba, 2017 MBCA 111, the Court of Appeal dismissed a registered nurse’s appeal from a discipline committee decision that he had committed professional misconduct by failing to cooperate with the College’s investigation into the reasons for his two workplace suspensions and ultimate termination from the WRHA. The appellant argued that he was given insufficient disclosure during the investigation by the College, raising the issue of the degree of disclosure owed to a member of a professional body in an investigation as compared to a disciplinary hearing. According to the court, the duty of fairness at the investigation stage requires the disclosure of the substance of the allegations such that the member will be able to respond to the allegations in a meaningful way. The appellant was entitled to and received disclosure of the substance (but not necessarily all of the details) of the allegations so that he could meaningfully respond, but refused to participate in further interviews unless he received additional documents that either did not exist or were not in the possession of the College. The discipline committee was correct in finding that his failure to cooperate with the investigation was professional misconduct, said the court, even though it had nothing to do with his competence or dealings with patients.

Adding New Breach of Contract Claim in CNR Pension Dispute: MBQB

In Hall et al v Canadian National Railway, 2018 MBQB 10, only one of fifteen plaintiffs was successful in a motion to amend their statement of claim to include a breach of contract claim against their former employer in addition to the original claim of breach of fiduciary duty (concerning CNN’s decision to no longer consent to unreduced early retirement pension payouts for employees retiring before age 55).  The court rejected the plaintiffs’ argument that the breach of contract amendments were not a new cause of action and found that the limitation period to bring the breach of contract claim had expired for all but one of the defendants.

Legislative Update

Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1, introduced November 7, 2017, had second reading and was referred to committee on January 29, 2018. It amends the Canada Labour Code to strengthen the existing framework for the prevention of harassment and violence, including sexual harassment and sexual violence, in the workplace. For further information see the legislative summary, news release, backgrounder and the following articles:

Recommended Reading

Several themes emerge in this month’s articles: looking back and forward; EI and other changes; respectful workplaces; and how legalization of marijuana will affect the workplace.

For articles reviewing developments in employment and labour law in 2017 and predicting changes in 2018 see:
For articles discussing the impact of changes to EI benefits see:
For a legal take on the impact of the #MeToo movement in workplaces see:
Marijuana legalization continues as a topic of interest in legal blogs, including the Stikeman Elliott article Weed in the Workplace, a Primer for Employer Action.

Is My Business Accessible? – this MLT Aikins post discusses what Manitoba businesses and employers need to know about accessibility standards (existing and proposed) under regulations to The Accessibility for Manitobans Act.  

Class Actions In Canada – Part 2: Developments In Employment Class Actions – this Torys LLP article discusses the types and causes of employment class actions; composition of certified classes; discovery; damages; and settlements. 

Upcoming MBA Programs

Restrictive Covenants in an Employment and Corporate Transaction Context – the CCCA is hosting this lunch program dealing with non-competition, non-solicitation and confidentiality covenants and non-disparagement and “morals” clauses. The program will be held in the Aikins boardroom on February 6, 2018.

Labour Abuses and Supply Chain Management – Toronto lawyer Kevin Coon will discuss trends in regulation of labour abuses and market practices in supply chain management policies and certifications at this CCCA dinner meeting on March 15, 2018. The meeting will be held from 6:00 -10:00 pm at the Canadian Museum for Human Rights.

2018 Accommodation Law Conference

Save the date for the Centre for Labour-Management Development’s 2018 Accommodation Law Conference, which will take place on May 8 and 9, 2018 in Winnipeg. The theme of the conference is new legal breakthroughs in the duty to accommodate and their impact on union and employer representatives in Canada.


ISSN 1916-3916

 

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