B.C. EMPLOYMENT AND LABOUR UPDATE

Health Employers Association of British Columbia Annual General Meeting and Conference

Delayne Sartison and Thomas Roper, Q.C.

June 20, 2005Vancouver Resort and Conference Centre, Richmond, B.C.File number, Arial 6 points

2

Ryan Order

British Columbia v. British Columbia Government and Service Employees' Union, 2005 BCCA

• Appeal of arbitration award

• Disclosure of medical records “Ryan Order”

• Appropriate test – Wigmore criteria

• Privacy interests balanced against full disclosure

3

Admissibility of Documents

HEABC Sunset Lodge -and- HEU (Hemstreet -Preliminary Decision), (unreported) February 5, 2005 (Hope, Q.C.)

• Admissibility of investigation documents

• Inquiry into licensing – Allegations of patient abuse

• Not part of disciplinary file

• Admitted as similar fact evidence

4

Definition of Discrimination – Comparator Group

B.C. Government and Service Employees' Union v. British Columbia (PSERC), 2005 BCCA 129

• Appeal of arbitration award

• Expiration of seniority rights after 6 months on LTD if unable to return to work

• Appropriate comparator group all employees who could not return to work after 6 months

• No discrimination

5

Jurisdiction to Award Damages

O.P.S.E.U. v. Seneca College of Applied Arts & Technology (2004), 133 LAC (4th) 193 (Ont. SCJ)

• Appeal of arbitration award declining jurisdiction to award aggravated or punitive damages

• Overturned on judicial review

• Arbitrator had jurisdiction to consider whether it would be appropriate to award aggravated or punitive damages per Weber v. Ontario Hydro

• Remitted to arbitrator

6

Video Surveillance - Personal Information Protection Act

Re Ebco Metal Finishing Ltd. and IABSRI Shopmens' Local 712 (2004), 134 LAC (4th) 372 (Blasina)

• Union policy and discipline grievances

• Work performance concerns on afternoon shift

• Employer chose surreptitious surveillance rather than having supervisors work overtime

• Not reasonable - Contrary to Personal Information Protection Act

• Surveillance evidence not admissible

7

Discrimination - Family Status

Re Greater Victoria Public Library and CUPE, Local 410 (2004), 135 LAC (4th) 38 (Jackson, Q.C.)

• Anti-nepotism policy discriminatory but justified as BFOR

• Policy applied in discriminatory manner

• Insufficient search for comparable employment

• Immediate transfer not necessary

8

Grievance not Moot Despite Settlement

Re Fraser Health Authority (Surrey Memorial Hospital) and BCNU (2004), 134 LAC (4th) 120 (Kinzie); Appeal dismissed B398/2004

• Preliminary award

• Grievances arbitrable despite fact that grievors fully compensated

• Remedy secondary to issue of interpretation

• Section 99 appeal dismissed

9

Qualification Differential - Estoppel

Fraser Health Authority (Surrey Memorial Hospital) -and- BCNU, (unreported) February 28, 2005 (Kinzie)

• Qualification differential for special clinical preparation

• Completion of full program required to qualify

10

Duty to Accommodate

HEABC Royal Columbian Hospital -and- BCNU, (unreported) April 20, 2005 (Sullivan)

• Unable to return to former position due to back injury

• Employer took no steps to determine whether jobs could be adjusted or modified

• Employer failed to take initiative in job search

• Duty to accommodate not met

11

Joint Consultation, Section 53

HEABC, BCLRB No. B393/2004 (Recon. of B415/2003)

• The Board’s preliminary views on s. 53

• Opportunity to engage in discussions before final decisions made

• Regular consultation required (every 2 months)

• Broad interpretation

• Some issues may be kept confidential

• Arbitration or BCLRB application

12

Bad Faith Bargaining

Re Thunderbird Winter Sports Centre, BCLRB No. B164/2004

• Employer requested Union proposals in advance

• Confirmed they would have none of their own

• Employer came to first meeting with 24 new proposals

• Bad faith bargaining

13

Partial Decertification

British Columbia Cancer Agency (Genome Sciences Centre), BLCRB No. B113/2005

• Application to delete Genome Sciences Centre (GSC) from HEU facilities subsector certification

• LRB concluded GSC employees would not constitute an appropriate unit

• IML factors

• Job descriptions and wages set by Provincial Health Services Authority benchmarks

14

Contracting Out

Re Renfrew Care Centre Partnership, BCLRB No. B72/2005

• Preliminary ruling on arbitrator’s jurisdiction to determine contracting out

• Health and Social Services Delivery Improvement Act

• General policy of deferral to arbitration

• Arbitrator had authority to determine his/her own jurisdiction

15

Freedom of Expression and Political Strikes

HEABC et al, BCLRB No. B395/2004 (Recon. B64/2004 and B92/2004)

• Different reasons from each of Associate Chair Fleming, Registrar and Vice Chair Brown, and Chair Mullin

• Overall result was that definition of strike valid and applicable

• Associate Vice Chair Fleming - definition of strike contrary to Charter - conduct of HEU not peaceful - conduct of BCTF should be protected

16

Freedom of Expression, continued

• Vice Chair Brown - definition of strike saved by s. 1 of the Charter - clarity in Board policy required

• Chair Mullin - no jurisdiction to declare strike unconstitutional - HEU activities not protected by Charter - BCTF activities not protected by Charter because government action did not trigger need for Charter protection

17

Application for Variance

Certain Biomedical Engineering Technologists (HEABC), BCLRB No. B126/2005

• Biomedical Engineering Technologists applied to be included in paramedical professional bargaining unit

• Agreed that BMET’s included in paramedical professional unit

• Covered by Paramedical Professional Bargaining Association agreement

• BMET’s to be members of HSA not HEU

18

Aggravated, Punitive and Wallace Damages

Keays v. Honda Canada Inc., [2005] O.J. No. 1145 (SCJ)

• Plaintiff suffered from Chronic Fatigue Syndrome

• Refusal to meet with company physician was not just cause for dismissal

• Forcing Plaintiff to meet with company physician and insensitive manner of dismissal merited Wallace award

• 15 months notice plus 9 months for Wallace damages

• Punitive damages $500,000 - conspiracy of intimidation

19

Employment for Life

Foreman v. 818329 Ontario Ltd., [2003] O.J. No. 3327 (CA)

• Bingo hall manager’s employment contract provided that employer “shall not dismiss Anne Marie”

• Plaintiff argued intent was to provide employment to age 65

• Trial court awarded 33 years lost wages to age 65

• Overturned on appeal

• Contract for life would require clear language

• Minority judgment dismissed the appeal

20

Guaranteed Notice Period

Martell v. Ewos Canada Ltd., [2005] BCJ No. 60 (SC)

• Senior executive of fish farm

• Contract provided 12 months salary on termination “without prejudice” to right to seek additional notice at common law

• Court concluded that this meant a guarantee of 12 months in addition to common law notice

• 16 months common law notice plus 12 months under contract

21

Bad Faith Negotiating

Cain v. Clarica Life Insurance Company, [2004] A.J. No. 837 (QB)

• Settlement agreement negotiated on termination

• Agreement set aside due to bad faith

• Employer’s first offer was not within the range of reasonable notice

• Employer opened with an offer of 7 months notice

• Plaintiff would have been entitled to between 20 - 24 months - low offer was bad faith negotiation

22

Enforceability of Salary Continuance

Tull v. Norske Skog Canada Ltd., [2004] BCJ No. 1691 (SC)

• Employer offered Plaintiff the choice on termination of lump sum or salary continuance

• Plaintiff chose neither and defaulted to salary continuance

• Court concluded that salary continuance may be endorsed by the court where the amount was reasonable but lump sum was established principle

23

HEU Appeal of Charter Challenge

Health Services and Support Facilities Subsector Bargaining Assn. v. British Columbia, [2004] SCCA No. 587

• Leave to appeal to the Supreme Court of Canada granted

• [2003] BCJ No. 2107 determined Health and Social Services Delivery Improvement Act not in violation of the Charter

24

Duty to Accommodate

Gordy v. Painter’s Lodge (No. 2), 2004 BCHRT 225

• Second decision of HRT

• Duty to accommodate fishing guide’s mental disability

• Detailed roadmap

• Employers must investigate less discriminatory alternatives and show the process undertaken in the investigate

• Nine contextual factors considered

• Oak Bay did not adequately investigate alternatives