Employer Must Take Steps to Assess and Accommodate Attention Deficit Disability
Pink Larkin’s Brenda Comeau successfully represented a worker who had been terminated for breaching the employer’s food safety policies. The employer argued that the safety violations were intentional and the worker simply would not conform to the rules. The worker had informed his supervisor in the past that he had been diagnosed with Attention Deficit Disorder. The arbitrator held that the worker had triggered the duty to accommodate when he told his supervisor of his diagnosis. The duty to explore possible accommodations was also triggered because the employer ought to have known there was potentially an issue due to the nature of the worker’s mistakes. When an otherwise excellent employee apparently chooses to violate important rules, an employer must ask “What is going on? Is there a problem? Is what is happening linked to the/a disorder”. The worker’s psychologist indicated in her report that his condition was connected to the behavior that resulted in his termination. The worker was reinstated to his job with back-pay. You can read the decision here: Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCT), Local 406 v Bonté Foods Limited, 2017 CanLII 12517.
Impact of Aboriginal Rights on Procedural Fairness
Pink Larkin’s Raymond F. Larkin, Q.C. and Balraj Dosanjh successfully represented a First Nation band on an appeal of the Nova Scotia Environment Minister’s decision to uphold the issuance of a permit to operate an underground storage facility for natural gas. While the appeal to the Nova Scotia Supreme Court was based on a breach of procedural fairness and the duty to consult, Justice Hood quashed the decision on the basis of a breach of procedural fairness. Justice Hood concluded that a higher level of procedural fairness was called for where the decision of the Minister was more judicial in nature and because of the importance of the decision to the appellant in the context of The Constitution Act, the Aboriginal rights affected and the expectation of fair treatment of First Nations by the government. You can read the decision here: Sipekne’katik v Nova Scotia (Environment), 2017 NSSC 23.
New Brunswick Public Servants Reinstated Following Termination
Pink Larkin’s Dan Leger and Dominic Caron succesfully represented two non-union employees in arbitration proceedings under the Public Service Labour Relations Act. The Province of New Brunswick, as employer, had terminated the employees and took the position that the only appropriate remedies were those available to the private sector at common law. The arbitrator in each case ordered reinstatement to the workplace. See the article in its entirety here: https://pinklarkin.com/new-brunswick-public-servants-reinstated-following-termination
Nova Scotia Court of Appeal Upholds Adoption Leave Top-Up
In a decision released on February 10, 2016, the Nova Scotia Court of Appeal allowed the appeal of the International Association of Firefighters Local 268, represented by Gordon Forsyth, Q.C., from a decision of a Human Rights Board of Inquiry. The Court concluded that adoption leave EI top-up for adoptive parents under a collective agreement (which was not provided to biological parents) was discriminatory. However, the adoption leave top-up constituted an ameliorative program under the Human Rights Act and was therefore not a violation of the Act. The decision is helpful in setting out the meaning of discrimination in the Act, the standard of review, and what constitutes an ameliorative program. Read the decision here: http://www.courts.ns.ca/Decisions_Of_Courts/documents/2016nsca6.pdf
Successful Advocacy for Changes to Payday Loans
In a decision released on March 30, 2015, the Nova Scotia Utility and Review Board issued new conditions for payday loans under the Consumer Protection Act. David J. Roberts and Jillian Houlihan represented the Consumer Advocate and argued that setting the maximum cost of borrowing at a high level was not beneficial to Nova Scotia customers and did not result in price competition below the maximum. The Board accepted this position and reduced the maximum cost of borrowing from $25 to $22 per $100. The Board also adopted the recommendation of the Consumer Advocate to ask the Minister to place restrictions on repeat and concurrent loans. A copy of the decision can be found here: http://canlii.ca/t/ggvrn
Supreme Court of Canada Case on Mandatory Alcohol Testing
Pink Larkin’s Daniel Leger, David Mombourquette and Joël Michaud successfully argued before the Supreme Court of Canada that an employer policy of mandatory random alcohol testing was an unreasonable exercise of management’s authority. The Court agreed that the uncertain or minimal safety gains to the employer did not warrant the severe impact on employee privacy. A copy of the decision can be found here: http://canlii.ca/t/fz5d5