The Toronto Star has been running an "ongoing series" of stories essentially alleging that police get away with murder, expressly alleging that they are treated differently than civilians doing similar things.
The police in Ontario are subject to scrutiny by the Special Investigations Unit (SIU), a civilian agency which investigates circumstances when police kill or seriously injure others. And the Star reporter - reporters named Henry and Bruser - is saying that they're not doing their jobs right.
Some of the Star's observations are fair. Police are treated differently from civilians. But that's not necessarily surprising. It's natural to suspect that, when a member of the public happens to have a gun and be in a lethal conflict situation, they probably had some responsibility for it - there isn't such an inference to be drawn, usually, when the police are involved. We send the police into harm's way, and can't be surprised when they harm others and claim self-defence or defence of third parties. (Of course, where police misconduct happens, it must be addressed very seriously.)
So let's go through the stories. Bear in mind that I know nothing of these fact patterns aside from what's in the Star's stories: I'm assuming factual accuracy in the reporting (which may not be a fair assumption - I do have some experience with the media), but readers should bear in mind that the Police Association lawyer has alleged that the reporting is inaccurate.
(1) Pedestrian killed by a cruiser
This one raised eyebrows for me at first.
A police officer hit and killed a pedestrian crossing at a crosswalk. No emergency circumstances justifying it, just a defence that 'the sun got in his eyes'. The Star observes that: "Instead of a criminal charge, Quijada-Mancia faced a far less severe form of justice after pleading guilty to discreditable conduct at an internal police disciplinary hearing." He lost a week's pay.
Seems pretty soft: Why shouldn't he have the same standard applied to him as a civilian would? Why wasn't he charged under the Criminal Code or at least the Highway Traffic Act? If I killed a pedestrian, I would certainly be charged, likely with dangerous driving causing death - a serious criminal offence. Of course, under the circumstances the Star describes, I doubt I'd be convicted: The test requires a 'marked departure' from the standard of the reasonably prudent driver. He wasn't going at an excessive speed, and he had what was characterized as a "momentary lapse in judgment". The legal nuances may be lost on Henry and Bruser, but a momentary lapse in judgment does not amount to criminal negligence. That's basically the defence, actually - back in my student legal aid days, I successfully challenged a careless driving charge (which has a lower threshold than dangerous driving) on the basis that the client's conduct was just a "momentary lapse in judgment".
And then, buried near the end of the story, is a little ambiguous reference to another point: He was also charged and convicted under the Highway Traffic Act, paying an additional monetary fine and resulting in demerit points.
Did he have an easier time of things than a civilian under the same circumstances would? Probably. But was his conduct criminal? Should he have gone to jail? On the facts presented by the Star, probably not.
(2) Police officer shoots suspect charging at her with a lawn chair
An officer was dispatched to arrest a suspect. Homeless, mentally unstable. He became aggressive and refused to cooperate. She tried to incapacitate him with pepper spray, but this was ineffective. She didn't have a Taser. It was a radio deadzone - no backup. He became increasingly violent, threatened to kill her, threw a chair at her, then charged at her.
Now, let's evaluate her options at this moment. Pepper spray? We already know it doesn't work. Engage him in hand-to-hand combat? Well, reading between the lines, it sounds like he was bigger than her. If she loses...well, she's probably dead. Even if he doesn't bludgeon her to death, he would then be able to grab her gun. Flee and leave a dangerous enraged guy alone, with the probability that he won't still be there when she finally comes back with backup, and let come what may from the fact that he's on the loose?
She shot him. And this is where she deviated from her training - she shot to wound. The injury still ended up killing him.
Professor Alan Young of Osgoode Hall says that a civilian never would have been able to invoke the doctrine of 'self-defence' under those circumstances. I'm not so sure...if you're packing, and a big guy is coming at you threatening to kill you, even unarmed, then it seems unreasonable to let him pummel you and take your weapon. I could be persuaded that there's an objectively reasonable fear of death in those circumstances.
But more importantly, the civilian right of self-defence comes with all sorts of other baggage like the duty to retreat. The officer was tasked to take this guy into custody, and entitled to use whatever force was reasonably necessary to do so. (Besides, a civvie in the same circumstances would have a hard time explaining how the circumstances arose.)
The guy attacked a police officer who was just trying to do her job. Yes, it's tragic that his mental illness yielded that result, but it's hard to criticize her conduct of the situation.
(3) Officer runs over teens lying in the grass
Two teens stargazing in a park. An officer patrolling the park in a marked cruiser. Runs over them, causing serious injury.
Not charged. The Star rightly points out that a civilian doing the same thing definitely would have been charged.
But there's a reason for that: Civilians aren't supposed to be driving around parks. Some laws - particularly driving-related ones - are relaxed for police in the execution of their duties. Not uncommon to see police patrolling park areas in their vehicles. The Star seems to suggest that there's something inherently wrong with the activity, that police should never drive off the road. I would suggest that there are good reasons to do so, including safety - in a large poorly lit park, a single officer or pair of officers could end up in trouble before even realizing it.
Should this fellow have seen the two teens who were lying in the grass? No, unreasonable to think that he would have. You'd think they'd have heard his engine and paid some attention, even if - as they claim - his headlights were off.
It's a tragic case. It could have been worse. But despite the Star's aspersions, it's hard to say that he actually did anything *wrong*.
(4) Accountant's arm broken during an arrest
Accountant stopped because his sticker's out-of-date. Moreover, the vehicle is registered as a different colour than it actually is. Oh, and he doesn't have his registration in the car, either.
So the police arrest him. It'd be hard to assail that decision. Did they have reasonable and probable grounds to believe that an offence was committed? Absolutely. They thought - quite reasonably - that the car was stolen, but in any event there were a couple of Highway Traffic Act violations going on.
What happened next? Well, all we have is the accountant's side of the story...but even then there are questions. He admits to mouthing off, telling them that they can't arrest him, etc. No word as to whether or not he struggled physically. The Star makes quite a topic out of the accountant's stature, that he's a little guy, etc., the suggestion seeming to be that he couldn't struggle meaningfully. But the story also says such things as that the police "tried to snap handcuffs around his wrists". Tried? With two police officers restraining him, shouldn't cuffing him have been pretty academic if he isn't struggling?
If you're physically resisting police who are lawfully arresting you, a broken arm isn't unexpected. I'm not saying definitively that he was, but this story is too one-sided with too many questions to conclude that the police did anything wrong under the circumstances.
(5) Interrogators break a prisoner's jaw
Fellow being interrogated for a serious crime gets beaten up in the interrogation room. At his trial, the judge found that he had been beaten. The Court of Appeal ultimately determined that the proceedings against him should be 'stayed' - i.e. that he should walk - because of this.
If true, this is serious misconduct. I say "if true", because the interrogator is currently awaiting trial for the assault. It's a higher threshold to prove the assault as against him than it was in the trial of the other fellow.
Interestingly, whereas the Star makes several allegations against the SIU of specific failings in his other stories, all he really says here is that they cleared the officers of misconduct and that the Court of Appeal tore into the SIU. The most specific failing alleged of the SIU by the Court of Appeal, however, is that it failed to reopen its investigation after the trial judge found misconduct. Which it now has.
This story reflects poorly on the officers involved, certainly. But the alleged offender is facing appropriate charges now. The phrase would be "better late than never".
Indeed, it isn't a surprising result. SIU investigators would have to be able to make a case with the potential to prove the assault "beyond a reasonable doubt". They would clear the officer if they don't think that they can do this. When the allegations are made in the context of somebody else's trial, however, it's a much lower threshold, and the judge can find as fact that the assault took place even if it isn't proven beyond a reasonable doubt. Technical, but it's a 'presumption of innocence' thing.
(6) Problem with Police notes
In a remote area, a mentally unstable man becomes violent towards police. According to the police, he pulled a knife, so they shot him.
Pretty academic if you accept their stories. And when nobody else was there, hard not to accept their stories.
In this case, the Star is actually on side with the SIU, in that the SIU took issue with the fact that the officers didn't write their notes until two days after the event, and only after conferring with a lawyer. Yep, that's the problem.
This story even breaks further with the trend, because in all of the other stories the Star is arguing that it's a bad thing that police are being treated differently from civilians. In this one, the argument seems to be that they shouldn't have the procedural protections everyone else has, like the right to counsel, or the right to remain silent.
(7) SIU doesn't ask the right questions
Same old story: Guy 'darts' at a police officer with a knife in hand, gets shot and killed.
Some factual issues - was the pocketknife open or closed? The officer, and witnesses, say it was open. After the fact, it was found closed. The officer says that the deceased's dying act was to close the knife. Yeah, a little odd, but no more so than a guy confronting police with a closed pocketknife.
The SIU gets flamed here for not asking for an indepth definition of the verb "dart".
There are questions here, different versions of the facts, but that's not unusual. It's a common occurrence in trials that you get two very different stories, but neither side is lying. People see things through different lenses, and memory twists the details and context. Here, the inconsistencies are actually pretty minor - one person says they saw something, another says they didn't notice such a thing. Nothing actually inconsistent about that.
And this officer himself admitted that his memory of the events were spotty. Again, not uncommon for high-intensity encounters or other traumatic experiences.
I don't really see what the Star is getting at in this story. The questions raised in it are minor points. The most critical question is this: Was the fellow going at the officer with a knife drawn? There are even corroborating witnesses that say "yes"...in light of this, it seems obscene to suggest that a few open questions and irregularities should result in the officer going to jail for the rest of his life.
Ultimately, this series reeks of 'a mountain of a molehill'. Okay, the interrogator case is bad. But the rest... Yes, police are occasionally going to shoot people. And it's very easy to second-guess their decisions to do so in many cases. In much the same way that it's easy to sit in a recliner and criticize Curtis Joseph for coming too far out of the net.
Now, I'm not suggesting blind acceptance that "the police know best", but we also can't too tightly fetter the ability of police to use lethal force to protect themselves and others against perceived threats.
Three of the seven involve shootings of people acting violently towards police. All three had serious mental issues. The Star plays this up, that these are sympathetic people being shot. Lots of quotations from family members. And yes, it's tragic when a schizophrenic puts himself in a position to get shot by police. It's not necessarily blameworthy conduct, from somebody with that kind of disease. But if a large mentally ill person is coming at me with a knife, then, even though I don't have any ill will to my attacker, I don't want the nearby police officer to reach for his baton.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Thursday, November 4, 2010
Thursday, September 16, 2010
Good reasons not to go to a lawyer to do your will...
Lawyers love online will kits, and the like. Why? Well, a lawyer usually just charges a few hundred dollars for wills, and - with a good will, prepared by a good lawyer - the billing on an average estate file will be fairly modest, too. But when you get an estate file with a bad will, especially if there's animosity between family members...well, that's where estate lawyers make lots of money.
Wills have lots of formal execution requirements. I've seen "wills" with only one witness. In Ontario, that's not a will. In fact, the jurisprudence is pretty clear, so that usually isn't worth litigating - your estate will simply be distributed based on the rules of intestacy, notwithstanding your intentions to the contrary - though occasionally in a sizeable estate you'll still get would-be beneficiaries who think it's worth throwing money at to try to give effect to the intentions of the testator.
I've seen handwritten codicils to wills of which parts are clearly invalid, some parts may be valid, and some parts are simply incoherent. The problem is that even a legal opinion doesn't help...you'll need a judicial interpretation in order to get authorization to deal with the assets of the estate (the banks won't touch you without probate in such a case, and probate itself will be unduly complicated when that sort of issue is going on) and that means significant legal expenses even if there is no conflict. If the family isn't getting along, then you might as well be handing your whole estate directly to the lawyers.
If you end up with ambiguity, or technical deficiencies, this can be a real problem.
Mind you, that isn't to say that lawyers are perfect. It isn't uncommon for some lawyers to misuse the term "per stirpes". Odd word, I know. Latin for "by the stock". It's a measure of distribution which basically means that, if a beneficiary predeceases, his/her children will get his/her share. Mind you, it's a little trickier than that - there's syntax to attend to.
I've seen a will that says "To my son Joe per stirpes." Meaningless. It's a measure of distribution, so when you only have one named beneficiary, it has no substance. Consequence? Well, the anti-lapse provisions of the Succession Law Reform Act basically mean that the testator`s son`s gift will still go to his children on a stirpital basis. Problem, however: Most good wills have a legitimacy clause, designed to disentitle a testator`s unknown children from a fling in Maui. Or more to the point, to give the estate trustees more certainty as to the number and nature of beneficiaries. So a properly framed stirpital clause means that there`s no need to search for unknown illegitimate heirs. No need for your estate trustee to stand up on a chair everywhere you`ve gone and say "Hey, are there any illegitimate children of Joe around here?"
I've also seen wills which fail to account for contingencies. "Give my estate to this person as soon as conditions x, y, and z are satisfied." Okay, but what happens if the conditions are never satisfied?
These are the kinds of issues just asking for expensive litigation. The way out is to go to see a good lawyer to prepare your will in the first place, to protect it from the possibility of litigation.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Wills have lots of formal execution requirements. I've seen "wills" with only one witness. In Ontario, that's not a will. In fact, the jurisprudence is pretty clear, so that usually isn't worth litigating - your estate will simply be distributed based on the rules of intestacy, notwithstanding your intentions to the contrary - though occasionally in a sizeable estate you'll still get would-be beneficiaries who think it's worth throwing money at to try to give effect to the intentions of the testator.
I've seen handwritten codicils to wills of which parts are clearly invalid, some parts may be valid, and some parts are simply incoherent. The problem is that even a legal opinion doesn't help...you'll need a judicial interpretation in order to get authorization to deal with the assets of the estate (the banks won't touch you without probate in such a case, and probate itself will be unduly complicated when that sort of issue is going on) and that means significant legal expenses even if there is no conflict. If the family isn't getting along, then you might as well be handing your whole estate directly to the lawyers.
If you end up with ambiguity, or technical deficiencies, this can be a real problem.
Mind you, that isn't to say that lawyers are perfect. It isn't uncommon for some lawyers to misuse the term "per stirpes". Odd word, I know. Latin for "by the stock". It's a measure of distribution which basically means that, if a beneficiary predeceases, his/her children will get his/her share. Mind you, it's a little trickier than that - there's syntax to attend to.
I've seen a will that says "To my son Joe per stirpes." Meaningless. It's a measure of distribution, so when you only have one named beneficiary, it has no substance. Consequence? Well, the anti-lapse provisions of the Succession Law Reform Act basically mean that the testator`s son`s gift will still go to his children on a stirpital basis. Problem, however: Most good wills have a legitimacy clause, designed to disentitle a testator`s unknown children from a fling in Maui. Or more to the point, to give the estate trustees more certainty as to the number and nature of beneficiaries. So a properly framed stirpital clause means that there`s no need to search for unknown illegitimate heirs. No need for your estate trustee to stand up on a chair everywhere you`ve gone and say "Hey, are there any illegitimate children of Joe around here?"
I've also seen wills which fail to account for contingencies. "Give my estate to this person as soon as conditions x, y, and z are satisfied." Okay, but what happens if the conditions are never satisfied?
These are the kinds of issues just asking for expensive litigation. The way out is to go to see a good lawyer to prepare your will in the first place, to protect it from the possibility of litigation.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Saturday, September 4, 2010
So you've been canned for discriminatory reasons...now what?
The simple answer is: Get a lawyer. If your employer is asking you to sign a release, you want legal advice before you sign anything. If your employer *isn't* asking you to sign anything, it's likely because you're not getting any more than your statutory minimums, and on most not-for-cause terminations, statutory minimums aren't enough, even where there isn't a breach of the Human Rights Code. (If you have been fired "for cause" and paid nothing...the threshold for just cause is high, and you should get legal advice on that point anyways.)
But the point of this post is to discuss a question that I've been pondering for a while now: Now that you can seek a remedy for a Code breach in Court...should you?
THE HISTORY
For many years, litigants were trying to get the Courts to provide a remedy for Code breaches, or recognize a common law tort of discrimination, etc.
In the Bhadauria case in 1981, the Supreme Court of Canada resolved this question with a firm "No". The Code provided a comprehensive system for remedying Code breaches, leaving no jurisdiction for the Courts.
That wasn't the end of it, of course. For many years, the Human Rights system in Ontario was notoriously broken, and so other avenues were sought. In fact, labour arbitrators were found to have jurisdiction to apply the Code, as were other administrative tribunal adjudicators. However, the Courts always held firmly that the Courts should not be burdened with Human Rights matters.
Every so often, somebody would come back to argue that the Courts should recognize a common law tort, or try to characterize a human rights breach differently so as to get the Courts to award damages for it. Most recently - as in, June 27th, 2010, in Honda v. Keays, the Supreme Court again faced an argument in favour of a common law tort of discrimination, and upheld Bhadauria. The more interesting challenge in that case is the fight for punitive damages.
...by way of legal background, let me explain that breach of contract cases (such as wrongful dismissal cases) were not historically considered appropriate for awards of aggravated or punitive damages. A couple of niche exceptions grew around this doctrine, and in a wrongful dismissal case you would need to show a "separate actionable wrong" in order to be able to claim on that basis. (See Vorvis.) Basically, unless you could show that the employer had done something else beyond the wrongful dismissal itself, you couldn't get aggravated or punitive damages.
However, this wasn't too big of a problem for plaintiffs for many years, as the Courts as a matter of course would award "Wallace damages", being increases to damage awards based on employer breaches of its duty of good faith and fair dealing.
Eventually, in 2006, in the Fidler v. Sun Life case, the Supreme Court removed the "separate actionable wrong" analysis from aggravated damages. In Honda, they essentially scrapped Wallace damages, saying that if you can't prove aggravated damages, you can't get anything. And the test for punitive damages is very high in any event.
For punitive damages, however, the lower Courts in Honda (including the Ontario Court of Appeal) found that breaches of the Human Rights Code, even though they couldn't ground a civil Court claim, nonetheless constituted a separate actionable wrong. They found such a breach and awarded hefty punitive damages. (The doctrine is flexible enough that this actually made sense.) The Supreme Court, however, suggested in obiter that it doubted the correctness of this, that in fact Bhadauria was a complete bar to an award of damages by the Courts for a breach of the Code. However, the Supreme Court found that Honda had actually behaved reasonably towards the employee, and that punitive damages simply weren't warranted.
What's really interesting, though, is that amendments to the Code became effective 4 days later, reversing Bhadauria in Ontario. Now, on the express terms of the statute, the Courts have jurisdiction to hear Human Rights complaints which are ancillary to other claims. It seems built for wrongful dismissal cases.
THE OPTIONS
So a wrongfully dismissed employee with a Code dimension to the claim has at least two options, the two most obvious being a civil suit seeking damages reflecting reasonable notice plus human rights damages (including "injury to feelings, dignity, and self-respect"), or going to the Human Rights Tribunal seeking full compensation for the loss of employment, including lost wages.
At the end of the day, from a principled perspective, the monetary values should end up being the same, if successful. While lost wages for a Code breach should have the potential to run much higher than reasonable notice, one would expect the Court to apply the same analysis to it as the Tribunal. The Court power is still too new to know for certain. On the one hand, awarding speculative loss-of-income is nothing new to the Courts, such as in a personal injury context; whereas administrative tribunals tend to cut off damages as at the date of the hearing (which is awfully arbitrary), we might expect to see Courts anticipating further damages past the trial date, in the right factual circumstance. (In any event, it'll take longer to get to Court.) On the other hand, Courts tend to be relatively constrained when awarding damages. If a plaintiff is showing up in Court three years after being fired, still unemployed, the Court is likely to take a pretty long hard look at mitigation efforts, even though mitigation is traditionally a relatively low threshold for a plaintiff to meet.
There are other differences as well.
Process and Costs
First of all, the Human Rights Tribunal process is easier, more user-friendly, cheaper, and there are free legal resources (namely, the Human Rights Legal Support Centre) available to access it. There is no jurisdiction at the HRTO to award a successful party a contribution to costs (unlike the Courts), but a smart Applicant shouldn't incur much in the way of costs to get there.
That being said, I don't have any data regarding the HRLSC's effectiveness. The Centre is only a little over two years old, and I did see some figures regarding volume of work, etc, after the first year - the numbers suggested a particularly overwhelming volume of service requests in South-Western Ontario - but I don't know how they're faring today. I've sent a few prospective clients their way. I haven't heard any complaints yet, for what that's worth.
And while you've seen me go on about self-represented litigants before, the HRTO process is far easier to navigate than the Courts. If the HRLSC weren't there, I'd instead have told some of those above-noted prospective clients that they might consider handling the matters themselves.
Finally, the HRTO is faster. Their target time to deal with a matter is under 1 year. In my experience, the administrative side of the Tribunal is pretty close to being on top of that. They'll schedule hearings in a pretty timely manner. However, I have found that the adjudicative side of the Tribunal can be slow. The consequence of that is that the expediency of the process can be derailed by Requests for Orders during Proceedings, seeking anything from disclosure of documents to addition or removal of Respondents (or, in one case I worked on, addition of Applicants) or the raising of other jurisdictional or procedural issues...the matter can't proceed substantively until the RFOP is dealt with, and the RFOP can take quite a few months.
(Essentially, you make a Request and the other side gets to respond. After this, the Tribunal has to decide how to handle the Request. On some occasions, it can look at the Request and Response and deal with it summarily. Even in this kind of summary disposal of the request, I've seen it take over three and a half months from the filing of the Request to the release of a decision. In other cases, the Tribunal decides it needs more elaborate written submissions, or needs an in-person hearing. Occasionally, the more elaborate written submissions, once received, make it clear that an in-person hearing of the issue is necessary. A back-and-forth between the adjudicative branch of the Tribunal and the parties can easily lengthen the process.)
Even then, though, it looks like a longer Tribunal process is on par with a shorter Court process.
Differences in Jurisdiction
Both the Tribunal and the Courts can remedy a violation of the Code. However, they do have differences in what they can do. First of all, the Courts can only provide a remedy if the claim based on a Code breach is ancillary to another civil claim. Not too difficult - when dealing with wrongful dismissal, it will be a rare case where you can't make out a civil claim, but can make out a Code breach.
The converse is also true. And this is a bigger issue: The Tribunal can not order a remedy unless a Code breach is established, even if there are other clear civil entitlements.
Suppose I'm wrongfully dismissed, and my reasonable notice period would be 6 months, but I'm unemployed for 12 months. If I go to the Tribunal arguing that my termination was in violation of the Code, and am unsuccessful on that issue, then the Tribunal will give me nothing, even though it is clear that I'm entitled to 6 months' wages.
Being at the Tribunal changes the whole nature of the issues in contention: At Court, discrimination only affects quantum of damages. If a Plaintiff loses on that, he gets less. At the Tribunal, the question of discrimination/harassment is a jurisdictional question. If an Applicant loses on that, she gets nothing.
Other differences include that the Tribunal cannot award punitive damages, and the Courts can...though usually won't.
Unlike the Court, the Tribunal cannot remedy other peripheral non-Code breaches. If an employer didn't pay overtime, as a matter of practice, but should have, then usually you will not be able to tack on an overtime pay claim to an HRTO Application; you'd have to make a separate complaint to the Ministry of Labour. (NB: Do *not* claim termination pay at the Ministry of Labour without first getting legal advice. If you do so, you will lose your entitlement to sue in Court for wrongful dismissal. It may leave open the possibility of an HRTO Application...but you have to be careful on that. Get legal advice first.)
The Tribunal has an express power to order public interest remedies - ordering future compliance with the Code. This is actually a potent threat in some circumstances which encourages settlement; no business wants the Tribunal looking over its shoulder on a moving-forward basis. The Courts do not have this jurisdiction (though in some narrow circumstances they might be able to draw similar powers from their equitable jurisdiction...never mind - legal abstraction).
Now this is important: You can not do both. If you make a claim based on a Code breach at Court, you cannot subsequently make an Application to the HRTO based on the same allegations. The converse is also true. It's one or the other.
...well, sort of. It is possible to have your cake and eat it too, but extremely tricky, and you wouldn't want to do it without a skilled employment lawyer at the helm.
Essentially, if you can bifurcate the issues in the dispute between human rights-related and non-human rights-related, it's possible to claim relief for the Code breaches at the HRTO, and seek relief for other civil wrongs at Court. So I could sue for wrongful dismissal without raising the allegations of Code breaches, and go on to make the Code-based allegations at the Tribunal.
There are a few difficulties with this:
(1) If I'm suing, I want to throw everything including the kitchen sink at my employer. To not raise the Code breaches and accuse my employer of misconduct takes restraint...and for good reason: If the allegations are well-founded, it's good ammunition, and makes the Court less sympathetic to the employer.
(2) If the employer has breached its duty of good faith and fair dealing in other non-Code-related ways, for which I suffered mental health type injuries, I can't really claim for those in Court under this circumstance. Trouble is that, if I frame it to avoid depriving either body of jurisdiction, it will create a causation problem: I'm telling the Tribunal that my injuries are the consequence of the human rights abuses, and I'm telling the Court that my injuries are the consequences of non-Code-based matters. So I can't claim for aggravated damages on that basis at Court, so if I don't prove the Code breaches...well, I lose out. (Also, there's the possibility of a bold employer going to the Tribunal saying "The injuries weren't the consequence of Code breaches; they were the consequence of this myriad other ways in which we treated the employee unfairly.")
(3) The natural sequence would be to go first at the HRTO, and second at Court. Under most circumstances, an HRTO win in this scenario would make most of the Court issues moot. By contrast, a Court win likely wouldn't have the same effect of making the Human Rights Application moot. However, the Courts don't really have a deferral process, and after a certain degree of delay litigants have to start jumping through hoops to start justifying why the litigation isn't moving forward. By contrast, the Tribunal does tend to defer where necessary to avoid inconsistent adjudicated decisions. There's a good argument to be made that, if the pleadings have been carefully drafted, deferral would be inappropriate...but there's also a good chance that the argument would have to be made, which brings us to the next point...
(4) This approach is just asking for motions and Requests for Orders seeking dismissal or deferral of one or the other proceeding. This compromises the expediency advantage of going to the Tribunal...and given that I'd be loathe to advise a client to use two separate lawyers for the separate proceedings, and the HRLSC would not help with a civil wrongful dismissal action, it undermines the cost advantage (and actually backfires in that regard).
CONCLUSION
Going back to the original question: Now that you can seek a human rights remedy at Court, should you? The answer is that it depends. Weaker human rights complaints should definitely be built into a civil claim: You don't want to risk your whole civil remedy by going to the Tribunal for a tenuous discrimination argument. (Whether that will colour how the Courts deal with it, that they end up seeing the weaker discrimination arguments, should be interesting to watch.)
But where there's a stronger discrimination argument, and/or a relatively limited standalone civil remedy, the HRTO might be the way to go. It's a tricky and risky question to be asked on a case-by-case basis.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
But the point of this post is to discuss a question that I've been pondering for a while now: Now that you can seek a remedy for a Code breach in Court...should you?
THE HISTORY
For many years, litigants were trying to get the Courts to provide a remedy for Code breaches, or recognize a common law tort of discrimination, etc.
In the Bhadauria case in 1981, the Supreme Court of Canada resolved this question with a firm "No". The Code provided a comprehensive system for remedying Code breaches, leaving no jurisdiction for the Courts.
That wasn't the end of it, of course. For many years, the Human Rights system in Ontario was notoriously broken, and so other avenues were sought. In fact, labour arbitrators were found to have jurisdiction to apply the Code, as were other administrative tribunal adjudicators. However, the Courts always held firmly that the Courts should not be burdened with Human Rights matters.
Every so often, somebody would come back to argue that the Courts should recognize a common law tort, or try to characterize a human rights breach differently so as to get the Courts to award damages for it. Most recently - as in, June 27th, 2010, in Honda v. Keays, the Supreme Court again faced an argument in favour of a common law tort of discrimination, and upheld Bhadauria. The more interesting challenge in that case is the fight for punitive damages.
...by way of legal background, let me explain that breach of contract cases (such as wrongful dismissal cases) were not historically considered appropriate for awards of aggravated or punitive damages. A couple of niche exceptions grew around this doctrine, and in a wrongful dismissal case you would need to show a "separate actionable wrong" in order to be able to claim on that basis. (See Vorvis.) Basically, unless you could show that the employer had done something else beyond the wrongful dismissal itself, you couldn't get aggravated or punitive damages.
However, this wasn't too big of a problem for plaintiffs for many years, as the Courts as a matter of course would award "Wallace damages", being increases to damage awards based on employer breaches of its duty of good faith and fair dealing.
Eventually, in 2006, in the Fidler v. Sun Life case, the Supreme Court removed the "separate actionable wrong" analysis from aggravated damages. In Honda, they essentially scrapped Wallace damages, saying that if you can't prove aggravated damages, you can't get anything. And the test for punitive damages is very high in any event.
For punitive damages, however, the lower Courts in Honda (including the Ontario Court of Appeal) found that breaches of the Human Rights Code, even though they couldn't ground a civil Court claim, nonetheless constituted a separate actionable wrong. They found such a breach and awarded hefty punitive damages. (The doctrine is flexible enough that this actually made sense.) The Supreme Court, however, suggested in obiter that it doubted the correctness of this, that in fact Bhadauria was a complete bar to an award of damages by the Courts for a breach of the Code. However, the Supreme Court found that Honda had actually behaved reasonably towards the employee, and that punitive damages simply weren't warranted.
What's really interesting, though, is that amendments to the Code became effective 4 days later, reversing Bhadauria in Ontario. Now, on the express terms of the statute, the Courts have jurisdiction to hear Human Rights complaints which are ancillary to other claims. It seems built for wrongful dismissal cases.
THE OPTIONS
So a wrongfully dismissed employee with a Code dimension to the claim has at least two options, the two most obvious being a civil suit seeking damages reflecting reasonable notice plus human rights damages (including "injury to feelings, dignity, and self-respect"), or going to the Human Rights Tribunal seeking full compensation for the loss of employment, including lost wages.
At the end of the day, from a principled perspective, the monetary values should end up being the same, if successful. While lost wages for a Code breach should have the potential to run much higher than reasonable notice, one would expect the Court to apply the same analysis to it as the Tribunal. The Court power is still too new to know for certain. On the one hand, awarding speculative loss-of-income is nothing new to the Courts, such as in a personal injury context; whereas administrative tribunals tend to cut off damages as at the date of the hearing (which is awfully arbitrary), we might expect to see Courts anticipating further damages past the trial date, in the right factual circumstance. (In any event, it'll take longer to get to Court.) On the other hand, Courts tend to be relatively constrained when awarding damages. If a plaintiff is showing up in Court three years after being fired, still unemployed, the Court is likely to take a pretty long hard look at mitigation efforts, even though mitigation is traditionally a relatively low threshold for a plaintiff to meet.
There are other differences as well.
Process and Costs
First of all, the Human Rights Tribunal process is easier, more user-friendly, cheaper, and there are free legal resources (namely, the Human Rights Legal Support Centre) available to access it. There is no jurisdiction at the HRTO to award a successful party a contribution to costs (unlike the Courts), but a smart Applicant shouldn't incur much in the way of costs to get there.
That being said, I don't have any data regarding the HRLSC's effectiveness. The Centre is only a little over two years old, and I did see some figures regarding volume of work, etc, after the first year - the numbers suggested a particularly overwhelming volume of service requests in South-Western Ontario - but I don't know how they're faring today. I've sent a few prospective clients their way. I haven't heard any complaints yet, for what that's worth.
And while you've seen me go on about self-represented litigants before, the HRTO process is far easier to navigate than the Courts. If the HRLSC weren't there, I'd instead have told some of those above-noted prospective clients that they might consider handling the matters themselves.
Finally, the HRTO is faster. Their target time to deal with a matter is under 1 year. In my experience, the administrative side of the Tribunal is pretty close to being on top of that. They'll schedule hearings in a pretty timely manner. However, I have found that the adjudicative side of the Tribunal can be slow. The consequence of that is that the expediency of the process can be derailed by Requests for Orders during Proceedings, seeking anything from disclosure of documents to addition or removal of Respondents (or, in one case I worked on, addition of Applicants) or the raising of other jurisdictional or procedural issues...the matter can't proceed substantively until the RFOP is dealt with, and the RFOP can take quite a few months.
(Essentially, you make a Request and the other side gets to respond. After this, the Tribunal has to decide how to handle the Request. On some occasions, it can look at the Request and Response and deal with it summarily. Even in this kind of summary disposal of the request, I've seen it take over three and a half months from the filing of the Request to the release of a decision. In other cases, the Tribunal decides it needs more elaborate written submissions, or needs an in-person hearing. Occasionally, the more elaborate written submissions, once received, make it clear that an in-person hearing of the issue is necessary. A back-and-forth between the adjudicative branch of the Tribunal and the parties can easily lengthen the process.)
Even then, though, it looks like a longer Tribunal process is on par with a shorter Court process.
Differences in Jurisdiction
Both the Tribunal and the Courts can remedy a violation of the Code. However, they do have differences in what they can do. First of all, the Courts can only provide a remedy if the claim based on a Code breach is ancillary to another civil claim. Not too difficult - when dealing with wrongful dismissal, it will be a rare case where you can't make out a civil claim, but can make out a Code breach.
The converse is also true. And this is a bigger issue: The Tribunal can not order a remedy unless a Code breach is established, even if there are other clear civil entitlements.
Suppose I'm wrongfully dismissed, and my reasonable notice period would be 6 months, but I'm unemployed for 12 months. If I go to the Tribunal arguing that my termination was in violation of the Code, and am unsuccessful on that issue, then the Tribunal will give me nothing, even though it is clear that I'm entitled to 6 months' wages.
Being at the Tribunal changes the whole nature of the issues in contention: At Court, discrimination only affects quantum of damages. If a Plaintiff loses on that, he gets less. At the Tribunal, the question of discrimination/harassment is a jurisdictional question. If an Applicant loses on that, she gets nothing.
Other differences include that the Tribunal cannot award punitive damages, and the Courts can...though usually won't.
Unlike the Court, the Tribunal cannot remedy other peripheral non-Code breaches. If an employer didn't pay overtime, as a matter of practice, but should have, then usually you will not be able to tack on an overtime pay claim to an HRTO Application; you'd have to make a separate complaint to the Ministry of Labour. (NB: Do *not* claim termination pay at the Ministry of Labour without first getting legal advice. If you do so, you will lose your entitlement to sue in Court for wrongful dismissal. It may leave open the possibility of an HRTO Application...but you have to be careful on that. Get legal advice first.)
The Tribunal has an express power to order public interest remedies - ordering future compliance with the Code. This is actually a potent threat in some circumstances which encourages settlement; no business wants the Tribunal looking over its shoulder on a moving-forward basis. The Courts do not have this jurisdiction (though in some narrow circumstances they might be able to draw similar powers from their equitable jurisdiction...never mind - legal abstraction).
Now this is important: You can not do both. If you make a claim based on a Code breach at Court, you cannot subsequently make an Application to the HRTO based on the same allegations. The converse is also true. It's one or the other.
...well, sort of. It is possible to have your cake and eat it too, but extremely tricky, and you wouldn't want to do it without a skilled employment lawyer at the helm.
Essentially, if you can bifurcate the issues in the dispute between human rights-related and non-human rights-related, it's possible to claim relief for the Code breaches at the HRTO, and seek relief for other civil wrongs at Court. So I could sue for wrongful dismissal without raising the allegations of Code breaches, and go on to make the Code-based allegations at the Tribunal.
There are a few difficulties with this:
(1) If I'm suing, I want to throw everything including the kitchen sink at my employer. To not raise the Code breaches and accuse my employer of misconduct takes restraint...and for good reason: If the allegations are well-founded, it's good ammunition, and makes the Court less sympathetic to the employer.
(2) If the employer has breached its duty of good faith and fair dealing in other non-Code-related ways, for which I suffered mental health type injuries, I can't really claim for those in Court under this circumstance. Trouble is that, if I frame it to avoid depriving either body of jurisdiction, it will create a causation problem: I'm telling the Tribunal that my injuries are the consequence of the human rights abuses, and I'm telling the Court that my injuries are the consequences of non-Code-based matters. So I can't claim for aggravated damages on that basis at Court, so if I don't prove the Code breaches...well, I lose out. (Also, there's the possibility of a bold employer going to the Tribunal saying "The injuries weren't the consequence of Code breaches; they were the consequence of this myriad other ways in which we treated the employee unfairly.")
(3) The natural sequence would be to go first at the HRTO, and second at Court. Under most circumstances, an HRTO win in this scenario would make most of the Court issues moot. By contrast, a Court win likely wouldn't have the same effect of making the Human Rights Application moot. However, the Courts don't really have a deferral process, and after a certain degree of delay litigants have to start jumping through hoops to start justifying why the litigation isn't moving forward. By contrast, the Tribunal does tend to defer where necessary to avoid inconsistent adjudicated decisions. There's a good argument to be made that, if the pleadings have been carefully drafted, deferral would be inappropriate...but there's also a good chance that the argument would have to be made, which brings us to the next point...
(4) This approach is just asking for motions and Requests for Orders seeking dismissal or deferral of one or the other proceeding. This compromises the expediency advantage of going to the Tribunal...and given that I'd be loathe to advise a client to use two separate lawyers for the separate proceedings, and the HRLSC would not help with a civil wrongful dismissal action, it undermines the cost advantage (and actually backfires in that regard).
CONCLUSION
Going back to the original question: Now that you can seek a human rights remedy at Court, should you? The answer is that it depends. Weaker human rights complaints should definitely be built into a civil claim: You don't want to risk your whole civil remedy by going to the Tribunal for a tenuous discrimination argument. (Whether that will colour how the Courts deal with it, that they end up seeing the weaker discrimination arguments, should be interesting to watch.)
But where there's a stronger discrimination argument, and/or a relatively limited standalone civil remedy, the HRTO might be the way to go. It's a tricky and risky question to be asked on a case-by-case basis.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Saturday, August 21, 2010
Unconstructive Dismissal
Let's talk about two concepts: Constructive dismissal, and the duty to mitigate.
What is Constructive Dismissal?
Most people have heard of constructive dismissal. They have some vague idea that it means that, if they're mistreated, they can quit and still seek a payout. That understanding is pretty simplistic, overstated at the water cooler, but underclaimed in practice.
Essentially, the doctrine of constructive dismissal arises from the legal principle that the employer is not permitted to unilaterally make substantial changes to essential terms of the employment contract.
Unilateral is simple enough to understand: If you agree to a change in your contractual terms, it's not unilateral, and not constructive dismissal.
But what of the rest? Understand that employers naturally have significant discretion in controlling the workplace. They can assign new duties to employees, they can implement new policies, they can even modify compensation packages. If you're hired to do payroll, and you're asked to take on some tasks from accounts payable, answering "That's not in my job description" would be insubordination under most circumstances. The employer can rewrite your job description at will, within limits. And the limits are shown in that, if you're hired to do payroll, and your boss reassigns you to a janitorial role, that likely will be constructive dismissal. Demotions and changes which significantly reduce the prestige of a role are often constructive dismissal.
Likewise, what changes to remuneration are acceptable is entirely a matter of scale. I once saw a presentation by Matthew Certosimo in which he reviewed the jurisprudence and proposed a general principle that changes in remuneration of less than 10% will not be regarded as fundamental changes to the employment contract, reductions of greater than 15% will be, and anything between...are in a grey area, and would be fact-specific.
Constructive dismissal can also result from harassment and other ill treatment, but again, it's a matter of scale.
Matters of scale leave large grey areas, and lots of uncertainty. In constructive dismissal, uncertainty is deadly. If you think you're entitled to quit your job and seek a payout, and you do so, but the Court disagrees, you get nothing. You'll have your own legal fees, and likely have to contribute to the employer's legal fees as well. There you are, unemployed, mistreated, with no entitlements, and massive legal debts.
And there's another hitch too which is growing in the jurisprudence.
Mitigating Losses
When somebody breaches a contract or commits a tort, the innocent party has an obligation to mitigate his losses - that is, to take reasonable steps to prevent additional damages from occurring. If I contract to purchase 100 widgets from you at $10 each, and the market price drops to $8 each before the transaction is complete, then I might back out of the contract since I feel I'm overpaying. Let's suppose you wait an additional year before trying to sell the widgets, and by that time the market has completely fallen out and the market price is only $1 each.
What are your damages for my refusal to close the transaction? Well, the compensation principle says that you're entitled to be put into the same position you would be in but for my breach. If I hadn't breached, you would have had $1000. Following my breach, you only realized $100 from the widgets. So your damages are $900, right?
Not necessarily: the mitigation principle kicks in here, and says that you should have liquidated the widgets promptly so as to avoid incurring further loss. You had only lost $200 - not $900 - when I breached, and you could have and should have sold then. To the extent that you took a risk and didn't, why should I bear the burden of that risk?
That's what mitigation means. Put into the employment context, it means that an employee who has been terminated without sufficient notice needs to try to find a new job. That is, he or she should take reasonable steps to procure equivalent replacement employment. A high-powered executive doesn't need to take a job flipping burgers to mitigate, but should be checking out other executive-level positions in the area.
Essentially, the point of mitigation is that a wronged party cannot recover for a loss which he could have avoided. So if you fail to mitigate, then your recovery will be limited.
How Do You Mitigate Constructive Dismissal?
The answer in many cases seems to be: Don't quit.
This isn't a new proposition. In 1989, the Ontario Court of Appeal ruled in the Mifsud case that the plaintiff employee was constructively dismissed by a demotion, but...
Next up, Evans v. Teamsters, in which Mr. Evans was terminated, but the company offered him his job back on a contract basis up to the end of the notice period he was claiming. The Supreme Court of Canada followed Mifsud and concluded that it was unreasonable for him not to have accepted the job back.
And that's the way the jurisprudence is going now. See Loehle v. Purolator, which has similar facts to Mifsud: An employee was constructively dismissed by a demotion, refused the demotion and left, and the Court found that this was unreasonable - he should have kept the old job until he found a new one.
My Thoughts
I'm going up against some pretty tall authorities here (though even the Evans decision wasn't unanimous), but I think there is a big problem with this approach: When you can find that an employee has been constructively dismissed - as in, the employer has unilaterally made such a substantial change to the terms of the contract that it can be said to have fundamentally repudiated the contract - but the employee should keep the new job anyways, there's a disconnect. It becomes a right without a remedy. An obligation on the employer without recourse for its breach. Completely meaningless.
The standard for mitigation has traditionally been quite low. The employee is usually afforded a great deal of discretion. The employee is not expected to accept the first job that comes along. The employee is entitled to search for something equivalent to the old job. Aside from these "employment with the same employer" cases, I know of no authority which has ever suggested that an employee is obligated to mitigate by taking a lesser job on a temporary basis while searching for an equivalent job. So why are these cases any different? Why are the Courts in this narrow niche of cases telling employees, "Yes, you're entitled to treat the contract as repudiated, but you still have to stick it out until you find something new"?
In fact, I know of no principled reason why the standard for equivalency of employment for mitigation should be any different from the standard for equivalency in changing terms of the employment contract...and if there were a difference, I would think that the standard for mitigation would be easier to satisfy.
This is my proposal in a nutshell: If I am demoted in such a way that the demotion would meet the test for constructive dismissal, then the resulting job offer (i.e. of the lower position) prima facie fails to meet the standard of equivalent replacement employment, such that there is no obligation on the employee to accept it in mitigation.
Ultimately there is only one question here: Is the employee entitled to quit and seek reasonable notice? There is no reason whatsoever to need to apply both a constructive dismissal framework and a different mitigation framework to it. These should be consistent and lead to consistent results, rather than have inconsistent results rendering the other analysis meaningless.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
What is Constructive Dismissal?
Most people have heard of constructive dismissal. They have some vague idea that it means that, if they're mistreated, they can quit and still seek a payout. That understanding is pretty simplistic, overstated at the water cooler, but underclaimed in practice.
Essentially, the doctrine of constructive dismissal arises from the legal principle that the employer is not permitted to unilaterally make substantial changes to essential terms of the employment contract.
Unilateral is simple enough to understand: If you agree to a change in your contractual terms, it's not unilateral, and not constructive dismissal.
But what of the rest? Understand that employers naturally have significant discretion in controlling the workplace. They can assign new duties to employees, they can implement new policies, they can even modify compensation packages. If you're hired to do payroll, and you're asked to take on some tasks from accounts payable, answering "That's not in my job description" would be insubordination under most circumstances. The employer can rewrite your job description at will, within limits. And the limits are shown in that, if you're hired to do payroll, and your boss reassigns you to a janitorial role, that likely will be constructive dismissal. Demotions and changes which significantly reduce the prestige of a role are often constructive dismissal.
Likewise, what changes to remuneration are acceptable is entirely a matter of scale. I once saw a presentation by Matthew Certosimo in which he reviewed the jurisprudence and proposed a general principle that changes in remuneration of less than 10% will not be regarded as fundamental changes to the employment contract, reductions of greater than 15% will be, and anything between...are in a grey area, and would be fact-specific.
Constructive dismissal can also result from harassment and other ill treatment, but again, it's a matter of scale.
Matters of scale leave large grey areas, and lots of uncertainty. In constructive dismissal, uncertainty is deadly. If you think you're entitled to quit your job and seek a payout, and you do so, but the Court disagrees, you get nothing. You'll have your own legal fees, and likely have to contribute to the employer's legal fees as well. There you are, unemployed, mistreated, with no entitlements, and massive legal debts.
And there's another hitch too which is growing in the jurisprudence.
Mitigating Losses
When somebody breaches a contract or commits a tort, the innocent party has an obligation to mitigate his losses - that is, to take reasonable steps to prevent additional damages from occurring. If I contract to purchase 100 widgets from you at $10 each, and the market price drops to $8 each before the transaction is complete, then I might back out of the contract since I feel I'm overpaying. Let's suppose you wait an additional year before trying to sell the widgets, and by that time the market has completely fallen out and the market price is only $1 each.
What are your damages for my refusal to close the transaction? Well, the compensation principle says that you're entitled to be put into the same position you would be in but for my breach. If I hadn't breached, you would have had $1000. Following my breach, you only realized $100 from the widgets. So your damages are $900, right?
Not necessarily: the mitigation principle kicks in here, and says that you should have liquidated the widgets promptly so as to avoid incurring further loss. You had only lost $200 - not $900 - when I breached, and you could have and should have sold then. To the extent that you took a risk and didn't, why should I bear the burden of that risk?
That's what mitigation means. Put into the employment context, it means that an employee who has been terminated without sufficient notice needs to try to find a new job. That is, he or she should take reasonable steps to procure equivalent replacement employment. A high-powered executive doesn't need to take a job flipping burgers to mitigate, but should be checking out other executive-level positions in the area.
Essentially, the point of mitigation is that a wronged party cannot recover for a loss which he could have avoided. So if you fail to mitigate, then your recovery will be limited.
How Do You Mitigate Constructive Dismissal?
The answer in many cases seems to be: Don't quit.
This isn't a new proposition. In 1989, the Ontario Court of Appeal ruled in the Mifsud case that the plaintiff employee was constructively dismissed by a demotion, but...
"Where the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships involved are not acrimonious (as in this case) it is reasonable to expect the employee to accept the position offered in mitigation of damages during a reasonable notice period, or until he finds acceptable employment elsewhere."In other words, he was constructively dismissed, but it was nonetheless unreasonable for him to quit his job, and accordingly he could not recover.
Next up, Evans v. Teamsters, in which Mr. Evans was terminated, but the company offered him his job back on a contract basis up to the end of the notice period he was claiming. The Supreme Court of Canada followed Mifsud and concluded that it was unreasonable for him not to have accepted the job back.
And that's the way the jurisprudence is going now. See Loehle v. Purolator, which has similar facts to Mifsud: An employee was constructively dismissed by a demotion, refused the demotion and left, and the Court found that this was unreasonable - he should have kept the old job until he found a new one.
My Thoughts
I'm going up against some pretty tall authorities here (though even the Evans decision wasn't unanimous), but I think there is a big problem with this approach: When you can find that an employee has been constructively dismissed - as in, the employer has unilaterally made such a substantial change to the terms of the contract that it can be said to have fundamentally repudiated the contract - but the employee should keep the new job anyways, there's a disconnect. It becomes a right without a remedy. An obligation on the employer without recourse for its breach. Completely meaningless.
The standard for mitigation has traditionally been quite low. The employee is usually afforded a great deal of discretion. The employee is not expected to accept the first job that comes along. The employee is entitled to search for something equivalent to the old job. Aside from these "employment with the same employer" cases, I know of no authority which has ever suggested that an employee is obligated to mitigate by taking a lesser job on a temporary basis while searching for an equivalent job. So why are these cases any different? Why are the Courts in this narrow niche of cases telling employees, "Yes, you're entitled to treat the contract as repudiated, but you still have to stick it out until you find something new"?
In fact, I know of no principled reason why the standard for equivalency of employment for mitigation should be any different from the standard for equivalency in changing terms of the employment contract...and if there were a difference, I would think that the standard for mitigation would be easier to satisfy.
This is my proposal in a nutshell: If I am demoted in such a way that the demotion would meet the test for constructive dismissal, then the resulting job offer (i.e. of the lower position) prima facie fails to meet the standard of equivalent replacement employment, such that there is no obligation on the employee to accept it in mitigation.
Ultimately there is only one question here: Is the employee entitled to quit and seek reasonable notice? There is no reason whatsoever to need to apply both a constructive dismissal framework and a different mitigation framework to it. These should be consistent and lead to consistent results, rather than have inconsistent results rendering the other analysis meaningless.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Thursday, August 12, 2010
Between a rock and a Concrete place
Beneff Concrete Ltd. is a Tillsonburg-based concrete company, with a labour force which is unionized through the Labourers International Union of North America (LIUNA) Local 1059.
Construction industry unions have their own statutory framework, and it's pretty complicated.
Most of us understand a union in the "factory floor" sense, where the factory staff unionize, the union steps in and gets to negotiate on behalf of all non-managerial employees in the factory. These workers get job stability, etc.
Construction Industry Unions
In construction, though, there is no such thing as job stability. Construction workforces are, by their very nature, unstable, and workers get picked up on a day-by-day or project-by-project basis. So in the construction industry, the unionization goes along different lines, and with different dimensions. Essentially, a union will become the certified bargaining agent of all employees of an employer doing a certain type of work (i.e. concrete formwork, electrical, carpentry, masonry, general labour, etc.) in certain types of projects (residential or ICI - Industrial-Commercial-Institutional) in a certain geographical region.
The geographical region is frequently defined by "Board Areas", set by the Ontario Labour Relations Board. Here's a Provincial map of the Board Areas.
It gets more complicated, too, because you get Province-wide collective agreements affecting multiple employers, etc., but that gets a little bit beyond the scope of what I'm talking about here.
I encourage you to look at that map, and specifically at Areas 3 and 4. Area 3 is pretty large: Bruce, Huron, Perth, Middlesex, Oxford, and Elgin counties. Area 4, on the other hand, is just Norfolk and Brant. (The map still labels "Haldimand-Norfolk", but Haldimand and Niagara are nonetheless Area 5.)
Now note where Tillsonburg is: In Oxford, but barely. It's in Area 3, but not far from Area 4.
Follow me so far?
Now, when LIUNA became the certified bargaining unit for Beneff, it became the certified bargaining agent for all of Beneff's "construction employees engaged in concrete forming and finishing construction on all construction projects within the counties of Middlesex, Bruce, Elgin, Oxford, Perth, and Huron, save and except non-working foremen and persons above the rank of non‑working foremen, office, clerical and engineering staff."
In other words, Board Area 3.
Trouble is that Beneff does a great deal of work in Norfolk. Technically, the certificate doesn't affect work being done in Norfolk. So Norfolk projects shouldn't be considered union work, the work and wages shouldn't be bound to the collective agreement, and no union dues should be remitted.
Actually, no, the trouble is that it appears that Beneff did so anyways. Maintained the applicability of the collective agreement, paid union dues, etc., relating to Norfolk projects.
No problem, right? Just stop. LIUNA's not entitled to it, right? Well, that might not work. You see, the way that labour law works in Ontario, when you voluntarily give a union something, it can be very difficult to take it back afterwards. For example, let's say you have a collective agreement requiring union representation for disciplinary meetings, but not investigative meetings. When you're holding an investigative meeting, the union rep will insist that union representation is required. The manager, who may or may not be aware of that specific aspect of the collective agreement off the top of his head, probably doesn't know the definition of "disciplinary meeting", and certainly doesn't want to be spending half his time trying to sort through the collective agreement every time he deals with the Union, will often just decide it isn't worth the fight and let the union rep in.
After that's happened a few times, it has become a "past practice", and the employer has a hard time reversing it. So even though the collective agreement doesn't give the union the right, they've built the right through the employer practice.
This is a little different...but in a context like this, it is open for the union to claim that they've been voluntarily recognized as having bargaining rights in Norfolk.
Anger v. LIUNA
This case is interesting.
Mr. Anger has brought an OLRB Application to terminate LIUNA's bargaining rights. As it happens, on the day that he brought the Application, the only projects where work was happening were in Port Dover and LaSalette. Because of the fluid nature of the industry, only people working on the day of the Application are considered for the purpose of a vote for certification or decertification. It's an arbitrary rule, but one the Board sticks to firmly, thinking it better than any of the alternatives. So...nobody was working for Beneff in Board Area 3 on that day.
The Union therefore quite cleverly answers, "Hey, look at the definition of our bargaining unit. There was nobody in the bargaining unit that day, and therefore the Application should be dismissed." It also argues that Mr. Anger was incited to bring the Application by the employer - if there's even a whiff of a scent of employer influence on a decertification Application, the Application is toast. (Makes it very difficult for decertification Applications to work. The OLRB has a very complicated set of rules and a complex process under an extremely sophisticated legal regime. Lay people find the process hard to stomach, and an individual union member will find legal fees hard to afford. And the employer can't help, and the union won't.
Of course, once the decertification Application is brought, the employer is entitled to intervene and make its own submissions. So Beneff's counsel - not identified by any of the decisions, but clearly a skilled labour lawyer - says, "Okay, that's fine, if the Union takes the position that the bargaining unit doesn't include Norfolk projects, then clearly they're right, the Application should be dismissed. But let's be real clear on this: If the Union takes that position, it will be stuck with it, and won't be able to fight us when we accordingly take the position that the collective agreement doesn' apply to Norfolk projects, we don't have to use union members for such projects, we don't have to pay them in accordance with the collective agreement if we do, and we don't have to remit union dues to the union for them."
For greater clarity, the question has been raised as to whether or not any of LIUNA's affiliates would claim to have bargaining rights in Norfolk. The Union is fighting this one tooth and nail, but without much success so far.
So the Union is faced with a tricky decision: Either they take the position that Norfolk is part of the bargaining unit, in which case the decertification Application can proceed, and they risk losing Beneff entirely, or they can cut their losses, say "Okay, fine, Norfolk projects aren't subject to the collective agreement", and accordingly lose Beneff's Norfolk projects for certain.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Construction industry unions have their own statutory framework, and it's pretty complicated.
Most of us understand a union in the "factory floor" sense, where the factory staff unionize, the union steps in and gets to negotiate on behalf of all non-managerial employees in the factory. These workers get job stability, etc.
Construction Industry Unions
In construction, though, there is no such thing as job stability. Construction workforces are, by their very nature, unstable, and workers get picked up on a day-by-day or project-by-project basis. So in the construction industry, the unionization goes along different lines, and with different dimensions. Essentially, a union will become the certified bargaining agent of all employees of an employer doing a certain type of work (i.e. concrete formwork, electrical, carpentry, masonry, general labour, etc.) in certain types of projects (residential or ICI - Industrial-Commercial-Institutional) in a certain geographical region.
The geographical region is frequently defined by "Board Areas", set by the Ontario Labour Relations Board. Here's a Provincial map of the Board Areas.
It gets more complicated, too, because you get Province-wide collective agreements affecting multiple employers, etc., but that gets a little bit beyond the scope of what I'm talking about here.
I encourage you to look at that map, and specifically at Areas 3 and 4. Area 3 is pretty large: Bruce, Huron, Perth, Middlesex, Oxford, and Elgin counties. Area 4, on the other hand, is just Norfolk and Brant. (The map still labels "Haldimand-Norfolk", but Haldimand and Niagara are nonetheless Area 5.)
Now note where Tillsonburg is: In Oxford, but barely. It's in Area 3, but not far from Area 4.
Follow me so far?
Now, when LIUNA became the certified bargaining unit for Beneff, it became the certified bargaining agent for all of Beneff's "construction employees engaged in concrete forming and finishing construction on all construction projects within the counties of Middlesex, Bruce, Elgin, Oxford, Perth, and Huron, save and except non-working foremen and persons above the rank of non‑working foremen, office, clerical and engineering staff."
In other words, Board Area 3.
Trouble is that Beneff does a great deal of work in Norfolk. Technically, the certificate doesn't affect work being done in Norfolk. So Norfolk projects shouldn't be considered union work, the work and wages shouldn't be bound to the collective agreement, and no union dues should be remitted.
Actually, no, the trouble is that it appears that Beneff did so anyways. Maintained the applicability of the collective agreement, paid union dues, etc., relating to Norfolk projects.
No problem, right? Just stop. LIUNA's not entitled to it, right? Well, that might not work. You see, the way that labour law works in Ontario, when you voluntarily give a union something, it can be very difficult to take it back afterwards. For example, let's say you have a collective agreement requiring union representation for disciplinary meetings, but not investigative meetings. When you're holding an investigative meeting, the union rep will insist that union representation is required. The manager, who may or may not be aware of that specific aspect of the collective agreement off the top of his head, probably doesn't know the definition of "disciplinary meeting", and certainly doesn't want to be spending half his time trying to sort through the collective agreement every time he deals with the Union, will often just decide it isn't worth the fight and let the union rep in.
After that's happened a few times, it has become a "past practice", and the employer has a hard time reversing it. So even though the collective agreement doesn't give the union the right, they've built the right through the employer practice.
This is a little different...but in a context like this, it is open for the union to claim that they've been voluntarily recognized as having bargaining rights in Norfolk.
Anger v. LIUNA
This case is interesting.
Mr. Anger has brought an OLRB Application to terminate LIUNA's bargaining rights. As it happens, on the day that he brought the Application, the only projects where work was happening were in Port Dover and LaSalette. Because of the fluid nature of the industry, only people working on the day of the Application are considered for the purpose of a vote for certification or decertification. It's an arbitrary rule, but one the Board sticks to firmly, thinking it better than any of the alternatives. So...nobody was working for Beneff in Board Area 3 on that day.
The Union therefore quite cleverly answers, "Hey, look at the definition of our bargaining unit. There was nobody in the bargaining unit that day, and therefore the Application should be dismissed." It also argues that Mr. Anger was incited to bring the Application by the employer - if there's even a whiff of a scent of employer influence on a decertification Application, the Application is toast. (Makes it very difficult for decertification Applications to work. The OLRB has a very complicated set of rules and a complex process under an extremely sophisticated legal regime. Lay people find the process hard to stomach, and an individual union member will find legal fees hard to afford. And the employer can't help, and the union won't.
Of course, once the decertification Application is brought, the employer is entitled to intervene and make its own submissions. So Beneff's counsel - not identified by any of the decisions, but clearly a skilled labour lawyer - says, "Okay, that's fine, if the Union takes the position that the bargaining unit doesn't include Norfolk projects, then clearly they're right, the Application should be dismissed. But let's be real clear on this: If the Union takes that position, it will be stuck with it, and won't be able to fight us when we accordingly take the position that the collective agreement doesn' apply to Norfolk projects, we don't have to use union members for such projects, we don't have to pay them in accordance with the collective agreement if we do, and we don't have to remit union dues to the union for them."
For greater clarity, the question has been raised as to whether or not any of LIUNA's affiliates would claim to have bargaining rights in Norfolk. The Union is fighting this one tooth and nail, but without much success so far.
So the Union is faced with a tricky decision: Either they take the position that Norfolk is part of the bargaining unit, in which case the decertification Application can proceed, and they risk losing Beneff entirely, or they can cut their losses, say "Okay, fine, Norfolk projects aren't subject to the collective agreement", and accordingly lose Beneff's Norfolk projects for certain.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Wednesday, August 4, 2010
And on the other hand...
I once heard a joke that everyone wants a one-handed lawyer, because legal advice is so often qualified by "...but on the other hand..."
Last night I posted about the Human Rights Tribunal finding that, where a Union had settled a grievance on behalf of an employee (without the employee's consent and, in one case, over the employee's objections), the employee is bound by the settlement and can't subsequently initiate a Human Rights proceeding.
Today a new decision was published on CanLII in a different case, Parliament v. Metro Ontario (think 'grocery store' Metro).
Ms. Parliament alleged that the employer turned her down for a promotion because of her physical limitations. She filed a grievance.
For non-Union readers, you should understand that grievance processes usually have a series internal steps in which employer representatives will hear the case and determine whether or not the employer wants to accept the grievance. If the employer decides to reject the grievance, then the Union has the option of referring the dispute to arbitration.
This grievance was rejected by the employer, and the Union decided to accept the employer's decision and declined to refer the grievance to arbitration.
Ms. Parliament, however, didn't accept this, so she made an Application to the HRTO. Metro took the position that (a) the subject matter of the proceeding had been appropriately dealt with in the grievance and (b) in the alternative, the Application should be deferred until a final disposition of the grievance.
As the Tribunal points out, the positions are contradictory. Either the grievance process is done or it isn't. (It's kind of like defending a criminal proceeding by making an identity defence and an affirmative defence. "You're Honour, my client has an alibi, and was in Cuba at the time of the offence; in the alternative, in case that you don't believe the alibi witness, I'll be leading evidence to establish that the victim was charging at my client with a knife at the time. Even though my client was 4000km away.") Still, I kind of see the logic: There isn't a formal end to grievance processes if you stop short of arbitration without a settlement. There are time frames within which the matter needs to proceed, but arbitrators have jurisdiction to relieve against these time limits. So it isn't certain that the proceeding is dead. But, by choosing not to refer to arbitration within the timeframes, or even thereafter, the Union has abandoned the grievance, making the Human Rights Application an abuse of process.
I see the logic. I don't agree with it, but I could make that pitch.
The HRTO ruled that the failure to refer the grievance to arbitration didn't mean that the subject matter of the proceeding has been appropriately dealt with, for the following reason:
(I should also note that unilateral withdrawal by a Union from OLRB proceedings following after a Board mediation are usually held to be "with prejudice", meaning that the matter can't be raised again. Not particularly relevant, but an interesting side note in context.)
Let me cast it in this light:
You and I both grieve allegedly discriminatory treatment. Your grievance has real merit; mine has no merit whatsoever. The Union lacks the will and resources to fight either case, and so simply walks away from mine, and manages to extract a small settlement for your case (because the Employer recognizes the merits of your case), but one that does not nearly approach your entitlements or create a meaningful remedy to the discrimination. You rigourously object to the Union settling your grievance on this basis, but the Union persists.
What's the result? I get to go to the HRTO because my grievance was simply abandoned. You don't get to go to the HRTO because the employer saw enough merit in yours to offer money. I call that an incoherent result, where the meritorious claim gets killed but the nonsense one goes forward.
This is a conflict in the HRTO jurisprudence which will have to be worked out. Either Unions have the authority to raise and dispose of Human Rights disputes on behalf of the bargaining unit members, or they don't. It's that simple. In fact, it's simpler than that in my mind, because if it were the former it would undermine the purposes of the Code. So the answer ought to be that they don't. If the employee can't be said to have voluntarily agreed to dispose of a potential human rights claim, then they shouldn't be blocked by that purported settlement from making an Application to the Tribunal.
But that's my opinion, and clearly it's at odds with the opinions of the HRTO adjudicators, whose opinions are far more important than mine in this sort of thing. (I might be interested in hearing what the opinion would be of the judges of the Divisional Court, given the right fact pattern, though.)
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Last night I posted about the Human Rights Tribunal finding that, where a Union had settled a grievance on behalf of an employee (without the employee's consent and, in one case, over the employee's objections), the employee is bound by the settlement and can't subsequently initiate a Human Rights proceeding.
Today a new decision was published on CanLII in a different case, Parliament v. Metro Ontario (think 'grocery store' Metro).
Ms. Parliament alleged that the employer turned her down for a promotion because of her physical limitations. She filed a grievance.
For non-Union readers, you should understand that grievance processes usually have a series internal steps in which employer representatives will hear the case and determine whether or not the employer wants to accept the grievance. If the employer decides to reject the grievance, then the Union has the option of referring the dispute to arbitration.
This grievance was rejected by the employer, and the Union decided to accept the employer's decision and declined to refer the grievance to arbitration.
Ms. Parliament, however, didn't accept this, so she made an Application to the HRTO. Metro took the position that (a) the subject matter of the proceeding had been appropriately dealt with in the grievance and (b) in the alternative, the Application should be deferred until a final disposition of the grievance.
As the Tribunal points out, the positions are contradictory. Either the grievance process is done or it isn't. (It's kind of like defending a criminal proceeding by making an identity defence and an affirmative defence. "You're Honour, my client has an alibi, and was in Cuba at the time of the offence; in the alternative, in case that you don't believe the alibi witness, I'll be leading evidence to establish that the victim was charging at my client with a knife at the time. Even though my client was 4000km away.") Still, I kind of see the logic: There isn't a formal end to grievance processes if you stop short of arbitration without a settlement. There are time frames within which the matter needs to proceed, but arbitrators have jurisdiction to relieve against these time limits. So it isn't certain that the proceeding is dead. But, by choosing not to refer to arbitration within the timeframes, or even thereafter, the Union has abandoned the grievance, making the Human Rights Application an abuse of process.
I see the logic. I don't agree with it, but I could make that pitch.
The HRTO ruled that the failure to refer the grievance to arbitration didn't mean that the subject matter of the proceeding has been appropriately dealt with, for the following reason:
There is no information before me suggesting that the parties reached a settlement, that the applicant had any role to play in the Union’s decision-making, or that the applicant understood and agreed that her concerns had been appropriately dealt with through the grievance process.So how do the 'settled without grievor participation' cases fit into this framework? Well, they're distinguishable from this case, in that money was paid, there was a settlement, which might tend to move it more towards the class of grievances 'settled by the parties'...but with the grievor not being involved in the settlement, it still seems more akin to a unilateral move by the union - unilateral in at least one of the relevant senses, in that the grievor is not a participant.
This Tribunal has generally accepted that where a grievance dealing with substantially the same subject matter as an application has been settled by the parties, section 45.1 may apply to bar all or part of an application. Conversely, the Tribunal has held that the requirements of section 45.1 are not met where a grievance has been withdrawn unilaterally by a union....
(I should also note that unilateral withdrawal by a Union from OLRB proceedings following after a Board mediation are usually held to be "with prejudice", meaning that the matter can't be raised again. Not particularly relevant, but an interesting side note in context.)
Let me cast it in this light:
You and I both grieve allegedly discriminatory treatment. Your grievance has real merit; mine has no merit whatsoever. The Union lacks the will and resources to fight either case, and so simply walks away from mine, and manages to extract a small settlement for your case (because the Employer recognizes the merits of your case), but one that does not nearly approach your entitlements or create a meaningful remedy to the discrimination. You rigourously object to the Union settling your grievance on this basis, but the Union persists.
What's the result? I get to go to the HRTO because my grievance was simply abandoned. You don't get to go to the HRTO because the employer saw enough merit in yours to offer money. I call that an incoherent result, where the meritorious claim gets killed but the nonsense one goes forward.
This is a conflict in the HRTO jurisprudence which will have to be worked out. Either Unions have the authority to raise and dispose of Human Rights disputes on behalf of the bargaining unit members, or they don't. It's that simple. In fact, it's simpler than that in my mind, because if it were the former it would undermine the purposes of the Code. So the answer ought to be that they don't. If the employee can't be said to have voluntarily agreed to dispose of a potential human rights claim, then they shouldn't be blocked by that purported settlement from making an Application to the Tribunal.
But that's my opinion, and clearly it's at odds with the opinions of the HRTO adjudicators, whose opinions are far more important than mine in this sort of thing. (I might be interested in hearing what the opinion would be of the judges of the Divisional Court, given the right fact pattern, though.)
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Tuesday, August 3, 2010
Can your Union give away your Human Rights?
When a Union is certified as your collective bargaining agent, that displaces the common law freedom of contract. You can no longer deal with your employer on a one-on-one basis. You can't sue your employer in Court. Rather, the Union and the Employer will (and must) put together a collective agreement with an arbitration clause. Disputes prior to that stage, or other limited types of disputes, end up going to the Ontario Labour Relations Board. Only the Union or the Employer can refer disputes to arbitration; individual employees cannot.
The Union owes a duty of fair representation to the bargaining unit members, but they're given a lot of latitude in deciding how best to fulfill that duty. So if I complain to my union rep about being passed over for overtime, and the union brass figure that it's better for the whole bargaining unit (including me) not to stir up conflict with the employer over it, then there isn't likely much that I can do about that. (The one exception is with discharge grievances: If I've been fired, it doesn't do me any good whatsoever that the union wants to maintain positive relations with the employer, so the union can't refuse to advance my grievance.)
What if I'm suffering discrimination at the hands of my employer on the basis of, say, race? And my union rep says that stirring up racial tensions in the work place isn't worth the trouble, so they won't help me with my grievance...then what?
Well, the Human Rights Tribunal is one of the few places where you can go directly against your employer, bypassing the Union entirely. In times long past, there has been litigation about whether or not the collective agreement can contract out of human rights legislation...and the answer is not only that you can't contract out of human rights legislation, but that ensuring human rights compliance is the responsbility of both the Union and the Employer. So if a person needs an accommodated schedule for reasons of disability, then the fact that somebody of higher seniority may be put out by it won't ground a grievance. You can't absolve yourself of the duty to accommodate on the basis that the specific accommodation would breach the collective agreement.
It goes a step further, or at least it did: Let's say you grieve your discharge, and enter into a monetary settlement. Then you make a complaint that your employer discriminated against you in firing you, and try to get a human rights process going. The fact of the settlement won't necessarily block the proceeding. This is one of the reasons that the traditional full and final release has language expressly stating that any human rights claims are satisfied. You can't enter into a contract not to stand on your human rights, and if a release doesn't clearly set out that your human rights are satisfied, then adjudicators were prepared to say that it wouldn't block the human rights proceeding.
This is a very special place that Human Rights had in the law. Or at least, it was. Recent jurisprudence from the Human Rights Tribunal of Ontario suggests that this is changing. In particular, they're finding that grievance settlements can bar subsequent human rights proceedings even if the grievor didn't authorize or sign the settlement.
In Park v. Waterloo, it's a bit of a less clear case: The employee had a grievance and a complaint with the Commission going forward at the same time in 2008, but the Commission complaint was never acted on, and the employer never became aware of it. The union settled the grievance, money was paid to Ms. Park, and then in June 2009 she tried to continue to advance the human rights proceeding. This was the first time the employer became aware that she wasn't happy with the settlement.
So maybe Ms. Park isn't all that sympathetic.
But I'm deeply concerned about Rysinski v. Aecon Industrial:
Rysinski is physically disabled, and was fired by Aecon when it decided that they couldn't accommodate his disability anymore. Rysinski grieved the termination through his union, IBEW.
IBEW settled the grievance on Rysinski's behalf, and was entitled to do so under the terms of the collective agreement. The settlement was for the sum of $10,000. Rysinski didn't approve the settlement or sign a release. He did cash the cheque, but characterized it as "partial damages". He believed that he was entitled to something more in the ballpark of $65,000. (The 'partial damages' argument is somewhat coherent, actually: I'd more expressly do it under protest, but if I'm taking the position that you owe me $2, and you give me $1, what is the more reasonable thing for me to do? Pocket the loonie and ask for another one? Or throw it back at you and demand a toonie? Some doctrines would lead to the notion that refusing a partial payment waives the same. If I had a client bring in a cheque, I'd send a letter acknowledging receipt of the money, saying "This money will be deposited into my firm's trust account pending resolution of the outstanding issues", and expressly stating that the deposit of the cheque was without prejudice to my client's right to further pursue said issues.)
Rysinski then applied to the OLRB, accusing IBEW of failing in its duty of fair representation. However, the test requires some evidence that the Union acted in a manner which was "arbitrary, discriminatory, or in bad faith", and, when the only thing to go on was Rysinski's belief that he was short-changed, the OLRB found that he hadn't made a prima facie case.
Which brings us to the above-noted HRTO decision. Rysinski's next step was to bring an Application against the employer at the HRTO. So the question becomes whether or not the existing settlement gets in the way.
In the old days, the question would have been whether or not Rysinski understood and voluntarily accepted that the settlement was in satisfaction of any human rights-based claims. On these facts, the answer would have been a clear-cut "No"; the settlement wouldn't have bound him - not only did he not agree to it voluntarily; he never agreed to it at all!
But the HRTO went the other way on this. It found that the grievance procedure had appropriately dealt with the substance matter of the Application, through the settlement entered into by the Union on the grievor's behalf.
(There was also an Application against the Union for discrimination...this was more clearly estopped, given that he had already argued that unsuccessfully before the OLRB. The OLRB decided that there had been nothing discriminatory about the Union's actions, so the HRTO wasn't going to revisit the question. Neither here nor there.)
This is worrying to me. Recourse for breach of human rights was always an exception to the Union's exclusive right of representation. They couldn't contract out of the process (or the substantive rights), and they couldn't prevent a bargaining unit member from going to the HRTO. But now they can block a HRTO Application, and, so long as their actions aren't obviously capricious or in bad faith, the employee may find himself without any recourse as against either the Employer or the Union.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
The Union owes a duty of fair representation to the bargaining unit members, but they're given a lot of latitude in deciding how best to fulfill that duty. So if I complain to my union rep about being passed over for overtime, and the union brass figure that it's better for the whole bargaining unit (including me) not to stir up conflict with the employer over it, then there isn't likely much that I can do about that. (The one exception is with discharge grievances: If I've been fired, it doesn't do me any good whatsoever that the union wants to maintain positive relations with the employer, so the union can't refuse to advance my grievance.)
What if I'm suffering discrimination at the hands of my employer on the basis of, say, race? And my union rep says that stirring up racial tensions in the work place isn't worth the trouble, so they won't help me with my grievance...then what?
Well, the Human Rights Tribunal is one of the few places where you can go directly against your employer, bypassing the Union entirely. In times long past, there has been litigation about whether or not the collective agreement can contract out of human rights legislation...and the answer is not only that you can't contract out of human rights legislation, but that ensuring human rights compliance is the responsbility of both the Union and the Employer. So if a person needs an accommodated schedule for reasons of disability, then the fact that somebody of higher seniority may be put out by it won't ground a grievance. You can't absolve yourself of the duty to accommodate on the basis that the specific accommodation would breach the collective agreement.
It goes a step further, or at least it did: Let's say you grieve your discharge, and enter into a monetary settlement. Then you make a complaint that your employer discriminated against you in firing you, and try to get a human rights process going. The fact of the settlement won't necessarily block the proceeding. This is one of the reasons that the traditional full and final release has language expressly stating that any human rights claims are satisfied. You can't enter into a contract not to stand on your human rights, and if a release doesn't clearly set out that your human rights are satisfied, then adjudicators were prepared to say that it wouldn't block the human rights proceeding.
This is a very special place that Human Rights had in the law. Or at least, it was. Recent jurisprudence from the Human Rights Tribunal of Ontario suggests that this is changing. In particular, they're finding that grievance settlements can bar subsequent human rights proceedings even if the grievor didn't authorize or sign the settlement.
In Park v. Waterloo, it's a bit of a less clear case: The employee had a grievance and a complaint with the Commission going forward at the same time in 2008, but the Commission complaint was never acted on, and the employer never became aware of it. The union settled the grievance, money was paid to Ms. Park, and then in June 2009 she tried to continue to advance the human rights proceeding. This was the first time the employer became aware that she wasn't happy with the settlement.
So maybe Ms. Park isn't all that sympathetic.
But I'm deeply concerned about Rysinski v. Aecon Industrial:
Rysinski is physically disabled, and was fired by Aecon when it decided that they couldn't accommodate his disability anymore. Rysinski grieved the termination through his union, IBEW.
IBEW settled the grievance on Rysinski's behalf, and was entitled to do so under the terms of the collective agreement. The settlement was for the sum of $10,000. Rysinski didn't approve the settlement or sign a release. He did cash the cheque, but characterized it as "partial damages". He believed that he was entitled to something more in the ballpark of $65,000. (The 'partial damages' argument is somewhat coherent, actually: I'd more expressly do it under protest, but if I'm taking the position that you owe me $2, and you give me $1, what is the more reasonable thing for me to do? Pocket the loonie and ask for another one? Or throw it back at you and demand a toonie? Some doctrines would lead to the notion that refusing a partial payment waives the same. If I had a client bring in a cheque, I'd send a letter acknowledging receipt of the money, saying "This money will be deposited into my firm's trust account pending resolution of the outstanding issues", and expressly stating that the deposit of the cheque was without prejudice to my client's right to further pursue said issues.)
Rysinski then applied to the OLRB, accusing IBEW of failing in its duty of fair representation. However, the test requires some evidence that the Union acted in a manner which was "arbitrary, discriminatory, or in bad faith", and, when the only thing to go on was Rysinski's belief that he was short-changed, the OLRB found that he hadn't made a prima facie case.
Which brings us to the above-noted HRTO decision. Rysinski's next step was to bring an Application against the employer at the HRTO. So the question becomes whether or not the existing settlement gets in the way.
In the old days, the question would have been whether or not Rysinski understood and voluntarily accepted that the settlement was in satisfaction of any human rights-based claims. On these facts, the answer would have been a clear-cut "No"; the settlement wouldn't have bound him - not only did he not agree to it voluntarily; he never agreed to it at all!
But the HRTO went the other way on this. It found that the grievance procedure had appropriately dealt with the substance matter of the Application, through the settlement entered into by the Union on the grievor's behalf.
(There was also an Application against the Union for discrimination...this was more clearly estopped, given that he had already argued that unsuccessfully before the OLRB. The OLRB decided that there had been nothing discriminatory about the Union's actions, so the HRTO wasn't going to revisit the question. Neither here nor there.)
This is worrying to me. Recourse for breach of human rights was always an exception to the Union's exclusive right of representation. They couldn't contract out of the process (or the substantive rights), and they couldn't prevent a bargaining unit member from going to the HRTO. But now they can block a HRTO Application, and, so long as their actions aren't obviously capricious or in bad faith, the employee may find himself without any recourse as against either the Employer or the Union.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Subscribe to:
Posts (Atom)