Court of Appeal Reaffirms Concurrent Jurisdiction of the Nova Scotia Human Rights Commission
The Nova Scotia Court of Appeal confirmed the Nova Scotia Human Rights Commission’s jurisdiction over human rights complaints arising in a unionized workplace, maintaining a valuable avenue of redress for unionized employees facing discrimination at work. Previously, there was uncertainty about whether such employees could address their concerns through the Commission or were limited to the grievance process under their workplace’s collective agreement. With this clarification, unionized workers now have the option to seek resolution through the Commission’s dispute resolution process, maintaining access to the Commission for protection of their fundamental human rights and redress when their rights are violated. George Franklin and Annalise Benoit acted for the eight Union intervenors: Nova Scotia (Human Rights Commission) v. Nova Scotia (Attorney General), 2023 NSCA 66.
Conseil scolaire francophone de la Colombie-Britannique c. Colombie-Britannique
En juin 2020, la Cour suprême du Canada a rendu une décision phare en matière des droits linguistiques en situation minoritaire dans l’affaire Conseil scolaire francophone de la Colombie-Britannique c Colombie-Britannique, 2020 ACS no 13.
Maître Dominic Caron de Pink Larkin qui représentait la SANB et la FCÉNB dans cette affaire, résume l’affaire ainsi : « La Cour suprême du Canada confirme qu’une affectation “juste et rationnelle de fonds publics limités” n’est pas une justification à une violation de droits linguistiques fondamentaux. Nous pouvons célébrer aujourd’hui le courage et la persévérance de la communauté franco-colombienne dans cette affaire ».
Court of Appeal Can Compel Production in a Constitutional Reference
In a Reference under the Constitutional Questions Act about the constitutionality of wage restraint legislation, the Union intervenors made a motion to compel the Attorney General to add certain Cabinet documents to the record. In a preliminary decision, the Nova Scotia Court of Appeal accepted the position advanced by Gail L. Gatchalian, Q.C. and Jillian Houlihan on behalf of the Unions and held it had the authority to order production. The full decision is available here: Reference re Public Services Sustainability (2015) Act, 2020 NSCA 53
Consultation with First Nations Requires Engagement with Aboriginal Title and Treaty Rights
The Nova Scotia Supreme Court found the Minister of the Environment erred in concluding there was an appropriate level of consultation with the Sipekne’katik First Nation about the development of underground caverns to store natural gas. While there had been consultations regarding the potential environmental impacts, the core issues of Aboriginal title and treaty rights were never specifically engaged. The Court directed the Province to resume consultations. Raymond F. Larkin, Q.C., Balraj Dosanjh and Jaime Burnet acted for Sipekne’katik in this successful appeal: Sipekne’katik v. Alton Natural Gas Storage LP, 2020 NSSC 11
Statements by Management to Union in Collective Bargaining Not Subject to Privilege
The Nova Scotia Court of Appeal held that a Deputy Minister’s threat of wage restraint legislation in collective bargaining was not protected by settlement or case-by-case privilege. The Court also agreed with the Union that certain Cabinet documents regarding Bill 148 were relevant to the Union’s Charter litigation. Gail L. Gatchalian, Q.C. and Jillian Houlihan successfully represented the Union: Nova Scotia (Attorney General) v. Nova Scotia Teachers Union, 2020 NSCA 17
Employer Cannot Discipline Employee for Statements Made in College Investigation
An employee cannot be disciplined for providing a witness statement in proceedings initiated by their employer against another employee. In Nova Scotia Government and General Employees Union v Nova Scotia Health Authority, 2019 CanLII 32171 (NS LA), the arbitrator agreed with the Union that the employee’s statement to the College of Registered Nurses of Nova Scotia was protected by absolute immunity. The employee was entitled to give the statement even if it disclosed private or confidential patient information. Pink Larkin’s David Wallbridge represented the grievor on behalf of the Union.
Union Certification of Car Dealership Upheld on Judicial Review
The Nova Scotia Supreme Court upheld a union’s certification and affirmed the Labour Board’s finding that a unit of automotive service technicians at a car dealership was appropriate for collective bargaining. The union, represented by Pink Larkin’s Ron Pizzo and Dan Wilband, was not required to include additional personnel that the employer wanted included in the bargaining unit. The court decision released October 22, 2019 is available here: Portland Street Honda Inc. v. Unifor, 2019 NSSC 316.
Court of Appeal Upholds Utility and Review Board Decision: Consultation with Mi’kmaq on Tusket Falls was Inadequate
The Nova Scotia Court of Appeal dismissed an appeal from a decision of the Nova Scotia Utility and Review Board (UARB) where the UARB found Mi’kmaq were not properly consulted on the Tusket Falls Dam refurbishment project. The Court of Appeal confirmed that the UARB has jurisdiction to consider whether the Crown has discharged its duty to consult. Approval of the project could potentially impact pre-contact Mi’kmaq archeological artifacts and a continuing Aboriginal fishery. Crown consultation on the project was inadequate. Pink Larkin’s Raymond F. Larkin, Q.C., and Balraj Dosanjh made submissions on behalf of the Intervenor Sipekne’katik First Nation. Read the decision here: Nova Scotia (Attorney General) v. Nova Scotia (Utility and Review Board), 2019 NSCA 66.
Court of Appeal Restores Arbitrator’s Damage Award for Employer Failure to Hire Union Members
The Nova Scotia Court of Appeal restored an arbitration award where an employer in the construction industry was found to have violated a collective agreement by continuing to employ non-union labour. Pink Larkin’s Gordon N. Forsyth, Q.C. and Bettina Quisgaard represented the union. The correct standard of review of the arbitration award on judicial review was reasonableness. It was reasonable for the arbitrator to award the union damages in the amount union members would have earned had they been hired, as provided for in the collective agreement. Find the Court of Appeal decision here: Labourers International Union of North America, Local 615 v. Stavco Construction Limited, 2019 NSCA 53.
Reduced Payday Loans Fees
The Nova Scotia Utility and Review Board lowered the maximum borrowing fee for a payday loan from $22 to $19 per $100. Acting as the Consumer Advocate, David Roberts successfully argued that the maximum borrowing fee should be reduced to align with fees charged in other jurisdictions. The Board also adopted Roberts’ recommendation that an extended repayment period be accessible for persons with multiple loans. The decision, released November 27, 2018 is here.
Benefit plans now able to set coverage on the basis of financial ability, members’ needs and overall health of the plan
Successful representation of 12 health and welfare funds to provide benefits that are affordable and non-discriminatory. In this instance, the Court found that non-coverage of medical marijuana did not form any basis of discrimination because its non-coverage was a result of the Board of Trustees’ decision not to provide coverage for drugs that had not been approved by Health Canada.
Pink Larkin acted as counsel to 12 intervenors with the team including Ronald A. Pink, Q.C. and Jillian Houlihan. The decision can be viewed here: Canadian Elevator Industry Welfare Trust Fund v. Skinner, 2018 NSCA 31.
Deference in Disposition of Grievances
A union’s right to deference in how it deals with grievances has been affirmed. This was the finding of the Supreme Court of Canada that denied leave to appeal in a decision of the PEI Court of Appeal. The Court of Appeal found that a staff officer of the PEI Teachers’ Federation performed a thorough investigation and reached a logical and rational reason to decline to proceed with a grievance. The Union, represented by David Wallbridge, therefore met its duty of fair representation.
More on this decision is here: E. Jo-Anne Lanigan v. Prince Edward Island Teachers’ Federation, 2018 CanLII 4679 (SCC) and the Court of Appeal here: Lanigan v. PEITF, 2017 PECA 3.
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
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