In the midst of writing this post yesterday, January 6th, I thought back to that day in 2021 when Donald Trump attempted a coup in the United States to seize the presidency despite having lost the 2020 election. This year’s certification of the 2024 election involved no such threat to democracy only because Trump won the election. But it may be because I have the concept of “coup” on my mind that I am tempted to describe West Whitby Landowners Group Inc. v. Elexicon Energy Inc. (Ont. CA) (“West Whitby”) as a “judicial coup”, albeit a coup somewhat more benign than that in America in 2021.

West Whitby was one of two decisions of the Ontario Court of Appeal (“CA” or “the Court”) released within a week of each other, the other being Davis v. Aviva General Insurance Company (Ont. CA) (“Davis”). Read together, they imply a tension among members of the Court in relation to respecting decisions of the Divisional Court and ultimately, the potential for the integrity of administrative decision-making.

In West Whitby, three judges in a motion for leave to appeal heard in writing decided that it was time to revisit the test for leave to appeal in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie (Ont. CA) (“Re Sault Dock”). A week later, a second CA panel in Davis hastened to disabuse litigants and interested observers of the idea that the Ontario Court was doing any such reappraisal: move along, folks, nothing to see here.

In this post, I discuss the two cases and, although neither decision remarks on this point, suggest that the subtext of West Whitby has the potential to impact tribunal decision-making.

First, I briefly outline the test developed in Re Sault Dock, then discuss West Whitby and Davis. I then consider what I believe are the broader intentions underlying West Whitby.

THE JURISPRUDENCE

Re Sault Dock

Re Sault Dock is a short decision by the CA setting out the test for determining when the Court should grant leave to appeal from the Divisional Court.

Sault Dock, which owned land in the City of Sault Ste. Marie, sought a building permit from the City’s building inspector. The inspector refused it on the basis that it was contrary to the City’s official plan and zoning by-law. Sault Dock’s application for an order of mandamus was successful; the City and building inspector’s appeal to the Divisional Court was unsuccessful and they sought leave to appeal to the Court of Appeal.

The Re Sault Dock panel stated that appeals to the CA are “limited by providing that an appeal lies only: a. with leave b. on a question that is not a question of fact alone.” In other words, decisions of the Divisional Court are to be final and appeals to be the exception. This is consistent with section 6(1)(a) of the Courts of Justice Act (“CJA”): “An appeal lies to the Court of Appeal from, (a) an order of the Divisional Court, on a question that is not a question of fact alone, with leave of the Court of Appeal as provided in the rules of court . . . .”

According to Re Sault Dock, the importance of the Divisional Court decision to the litigants is not the operative measure. It is rather the impact which the decision on the question will have on the development of the jurisprudence of Ontario. If the resolution of the question would largely have significance only to the parties and would not settle for the future a question of general interest to the public or a broad segment of the public, the requirements to obtain leave will not have been met. (Re Sault Dock)

The Court of Appeal, said the panel, should therefore grant leave only on a question of mixed fact and law and involving “consideration of matters such as the following”: the interpretation of a Canadian or Ontario statute or regulation “including its constitutionality”; “the interpretation, clarification or propounding of some general rule or principle of law”; or the interpretation of a municipal by-law or agreement “where the point in issue is a question of public importance”. These aspects of a matter can be called “the preliminary step” or “first step of the analysis”. Does the impugned decision raise any of these circumstances, all of which raise questions of law?

These are all matters that are easily identified and transcend the interests of the parties involved in the dispute (except an “agreement”). Depending on the outcome they could have an impact on the development of the law.

However, the panel also identified other “special circumstances” that could justify granting leave because they would mean the issue was of public importance or “would appear to require that in the interest of justice leave should be granted” (examples include the introduction of new evidence, the Divisional Court’s “obvious misapprehension … of the relevant facts” or a “clear departure from the established principles of law resulting in a miscarriage of justice”). While these examples would seem to affect only the parties, they still fall within the public interest criterion because it is not in the public interest to leave unreviewed decisions based on these matters. Notably, an error in the Divisional Court’s decision would not be in itself a reason to grant leave.

All in all, then, it would not be enough that the CA panel deciding whether to grant leave disagrees with the result reached by the Divisional Court on the facts of the case, something that affects only the parties and in this respect, it is irrelevant that it might affect others in the same position as the parties; the decision must in some way raise a matter of public importance and there the scope available to the CA is relatively broad.

Applying these principles to the issue at hand, the panel in Re Sault Dock explained that in determining whether to grant leave, it would have to interpret a municipal by-law. However, even though the case concerned urban planning, it did not raise a matter of public importance; it is concerned with one parcel of land with one landowner: although other landowners or occupiers may have an interest in the interpretation, the number of other landowners or occupants in similar circumstances or their interest in the interpretation was irrelevant. The crux of the matter is that “it cannot be said that the interpretation of this by-law will settle any question which is of general interest to the public of Ontario”. The panel did not grant leave.

West Whitby

Justices Brown, Huscroft and Miller together explain in West Whitby why Re Sault Dock should no longer govern whether the CA should grant leave from Divisional Court decisions. They denigrate Re Sault Dock (or at least its application) in the clearest language possible: “As often happens when certain judicial decisions take on the reputation as eternal pronouncements carved in tablets of stone, two unhealthy features work their way into the resulting jurisprudence.” (West Whitby, para. 8)

The test as applied ignores its flexibility and is applied “by rote” and, the judges imply, the most important part of the test is ignored: “not whether the issue falls into some pigeon-hole on a checklist, but ‘the impact which the decision on the question will have on the development of the jurisprudence of Ontario’.” (West Whitby, paras. 9 and 11, citing Re Sault Dock).

The second unhealthy feature, in the panel’s mind, is the age of Re Sault Dock: “so old, in fact, that it pre-dates the enactment of the Canadian Charter of Rights and Freedoms” (“Charter”), which was enacted in 1982, 42 years ago. Re Sault Dock is older by 10 years, evidently placing its birth in some long ago eon. The problem, the panel explains, is that the Charter may be raised in cases before the Divisional Court. According to the panel, because of Re Sault Dock, the CA would not find it easy to review these decisions. (It is not clear why this would be the case, since the Charter surely constitutes a “general rule or principle of law” or if raised in relation to a statutory provision, would constitute “constitutionality” of the statute.)

The test should be, in the panel’s view, that which the Supreme Court of Canada applies when determining whether to grant leave to appeal: “Is the question on which leave is sought one that, by reason of its public importance, the importance of any issue of law or mixed law and fact involved, or for any other reason is of such a nature or significance that it ought to be decided by the Court of Appeal for Ontario?” (West Whitby, para. 13)

The panel adopts this test from the test under section 40(1) of the Supreme Court Act:

Subject to subsection (3) [not applicable here], an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court. (Emphasis added)

This is a very broad test, which gives the court determining leave a great deal of discretion. It appears that the West Whitby panel wants a simpler test from that in Re Sault Dock that coincidently gives the CA a greater latitude in determining leave applications with the likely result that it would mean the Court would grant leave more often.

West Whitby involved landowners, developers who needed to connect to the provincial electricity grid. The distribution company and the landowners disagreed about the allocation of costs for a substation to make the connection. This issue is covered by the Distribution System Code (“DSC”), which the Ontario Energy Board (“the OEB”) applies under the Ontario Energy Board Act (“OEBA”): “if the substation is characterized as a system ‘expansion’, the Landowners would bear the cost of its construction and connection. If the substation is an ‘enhancement’, … the distribution company… bears the cost” (West Whitby, para. 3).

The OEB’s staff concluded when the landowners sought its opinion that the distribution company had interpreted the relevant provision correctly (that it was an expansion) but subsequently determined there should be a reduction in costs because this wasn’t a “pure” expansion project. The landowners unsuccessfully applied for judicial review to the Divisional Court.

The Divisional Court’s reasons were based on the OEB’s opinion’s not being a statutory power of decision and that the landowners did not have standing to challenge the OEB’s assessment. The Court of Appeal panel took judicial notice that the provincial and federal governments “are pursuing polices to promote much greater use of electricity in the economy” and the Ontario government “is pursuing an aggressive policy to support the construction of more residential accommodation”, including projects such as the one here (West Whitby, para. 15). The panel observed, “Applying an updated and more flexible approach to the leave application before us, the Divisional Court’s decision appears to insulate certain decisions of the Board from judicial review” (West Whitby, para. 16).

In assessing whether they should grant leave to appeal in the case at hand, the panel concluded that given provincial and federal interest in greater electricity usage and more housing, the issue before the OEB was of great public importance and therefore the decision of the Divisional Court should not be immune from judicial review. In the panel’s view, this is a matter of public importance warranting the granting of leave.

The Divisional Court’s decision in West Whitby affords a somewhat more nuanced perspective from that gleaned from the CA’s decision. The OEB provided its opinion because one of the parties requested that it do so in order to help settle their disagreement about the allocation of costs, as per their Offer to Connect Agreement (West Whitby, Div. Ct., para. 10). Justice Favreau, writing for the panel, stated clearly that ‘[t]he parties sought the opinion for the purpose of resolving their private dispute. The fact that they agreed to be bound by the OEB’s opinion does not turn the opinion into a decision of a public character.” (West Whitby, Div. Ct., para. 37)

Furthermore, while the landowners can make a complaint when it is not satisfied with the opinion, the OEBA gives the OEB wide discretion in how to handle a complaint (West Whitby, Div. Ct., para. 42).

The CA panel determining whether to grant leave blew this private matter into something more significant. In the process of doing so, they put a spin on the nature of the opinion and the treatment of the complaint to allow them to grant leave.

Davis

The facts in Davis were that a woman slipped on the ice and fell when “reaching out to unlock her car”. She sought accident benefits from her insurer. The issue was whether she had an “accident” under s. 3(1) of the Statutory Accident Benefits Schedule (“SABS”). The Licence Appeal Tribunal ruled that she did not have an accident caused by the use and operation of her car; it was caused by the ice. However, the Divisional Court held it was an accident because she had her key fob in her hand and was close to the car. (Davis, para. 14) The Divisional Court in fact found that Davis was in the process of opening her car door when the accident occurred (Davis, Div. Ct. para. 84).

The insurer argued in seeking leave to appeal that the Divisional Court misapplied the “causation step” in applying the SABS, that is, that more than the presence of the insured prior to using the vehicle is insufficient, there must be “direct use or operation” of the car in causing the injury (Davis0, para. 15). Justice Sossin found that the “dispute is largely fact-specific, and [the insurer] has not made an arguable case for why the settled test for an ‘accident’ under the SABS should be changed” and he therefore denied leave to appeal (Davis, paras. 16, 17). Applying Re Sault Dock, the matter concerned a dispute between the two parties and did not give rise to a more significant public interest or have an impact on the development of Ontario law.

Justice Sossin made no bones about diminishing the impact of West Whitby. He explained that although normally the CA does not give reasons for its decisions on leave, he was doing so in this case “in order to address a question of uncertainty that has arisen in light of comments made by a panel of this court in granting leave to appeal in West Whitby ….” (Davis, para. 2).

After quoting Re Sault Dock at length, Sossin JA referred to the West Whitby panel’s emphasis on “the importance of assessing the impact of a decision on the jurisprudence of Ontario” and on its criticism of “the undue attention which, in their view, has been placed on the four categories enumerated to illustrate matters on which an arguable question must be established in order to meet the threshold for leave” (Davis, paras. 4, 5).

The West Whitby decision raises the question of whether the test for leave applications has changed. Justice Sossin rejected the notion that the West Whitby panel at least by implication has changed the test. Unlike the panel itself in West Whitby, he maintains that “the approach taken by the panel in West Whitby [fits] squarely within the Sault Dock framework, as that panel interpreted Sault Dock” (para. 10): “it appears that the West Whitby panel intended to highlight rather than change the principles governing leave motions from the Divisional Court to the Court of Appeal.” (Davis, para. 11)

Put another way, Sossin JA told the West Whitby panel that they weren’t doing what they thought they were doing.

In any event, Sossin JA went on, the West Whitby panel couldn’t have intended to change the test because the CA has a process for determining whether to override a precedent and the West Whitby panel did not follow that process (Davis, para. 12). Surely, the implication is, the West Whitby panel wouldn’t have gone rogue and mounted a judicial coup (my inference and words)..

Justice Sossin did throw the West Whitby panel a bone, while at the same time minimizing the decision’s impact, by concluding that the decision should be read as a helpful discussion of the application of Re Sault Dock.

ANALYSIS: SUBTEXT OF WEST WHITBY

The three-judge panel in West Whitby sought to free the CA from what the panel treats as the strictures of Re Sault Dock. Although it does not address this (and nor does Davis), doing so would potentially allow it to wrest the shaping of administrative law at the provincial level from the Divisional Court. This despite the creation of the Divisional Court as specialized court for hearing “statutory appeals from administrative tribunals in the province, and [for serving as] the primary forum for judicial review of government action in Ontario”, as described on the Ontario Courts website (see here) and as recommended by former Chief Justice James McRuer in the McRuer Report (Gerard Kennedy, “Wither the Divisional Court? Looking at the Past, Analyzing the Present, and Querying the Future of Ontario’s Intermediary Appellate Court”, p. 100). Over time, as Kennedy describes, the Divisional Court’s jurisdiction expanded in part to alleviate the Court of Appeal’s caseload (Kennedy, p. 102).

While under section 18(3) of the CJA all judges of the Superior Court of Ontario are judges of the Divisional Court, the Divisional Court has acquired institutional expertise through its decisions (not everyone agrees it has this expertise: see Kennedy, p.114).

As the panel in Re Sault Dock explained, the Divisional Court’s appellate jurisdiction was previously exercised by the Court of Appeal. One might infer that the legislature could not have intended to return that particular jurisdiction to the CA through a more expansive leave to appeal formula. (I note that in proposing the abolition of the Divisional Court, Gerard Kennedy suggests that the Divisional Court’s diverse and broad jurisdiction, now going beyond its jurisdiction in 1972, could be allocated to other courts and would not therefore overly increase the CA’s workload.)

Justice Sossin in Davis sought to tone down the potential impact of West Whitby, no doubt for the reason he gave: to alleviate uncertainty for litigants. However, Davis also not so subtly raps the West Whitby panel across the knuckles for going rogue. In other words: you shouldn’t have tried to do what you did try to do, but you failed anyway, and really, you didn’t change anything. Although Sossin JA suggests the West Whitby panel did not have to take a run at Re Sault Dock to reach the decision it did, it is not clear that is the case.

The situation in West Whitby posits a classic administrative law function: the OEB had to determine a matter within its competence, whether the land development was an “expansion” or an “enhancement”. As far as judicial review of tribunal decisions is concerned, the “limited” scope of review inherent in the preconditions for review under section 6(1) of the CJA and under Re Sault Dock reflects the role of tribunals under administrative law.

Tribunals are specialized, expert adjudicative bodies intended to advance the policy objectives of the legislature, as reflected in their enacting statutes. The Court of Appeal may disagree with their decisions, but absent more, that is not a reason to review the case. It is not for the Court to introduce extraneous circumstances, as did the West Whitby panel, in order to incorporate political considerations into its analysis. In West Whitby, the tribunal had to make a fact-based determination in response to the parties’ agreement and to exercise the wide discretion provided by statute in handling the landowners’ complaint about that opinion.

CONCLUSION

The Court of Appeal panel in West Whitby appears surprisingly eager to throw Re Sault Dock to the wolves, given that it did not follow the Court’s process for reviewing significant precedents. With this knowledge of the process, an innocent reader might ask why the panel was prepared to (evidently) “go rogue”. Did the reason have to do with this specific case and government objectives (which no party apparently raised) or more generally with the approach to administrative law? At the very least, the decision gives rise to speculation that the Court of Appeal intended to intrude to a greater extent into the Divisional Court’s jurisdiction and thereby potentially to undermine deference for specialized tribunals’ decisions.

The post Tension on the Ontario CA: Thwarting a Judicial Coup? appeared first on Slaw.

In August 2024, a New Brunswick labour arbitrator denied the union’s grievance that argued that an employee should have been awarded a job. The union took issue with the employer’s job requirement to have 1,000 hours of experience and stated that it was unreasonable. The arbitrator agreed with the employer that the employer was allowed to stipulate that job applicants for the position of truck driver had 1,000 hours of experience.

What happened?

The employee, a truck driver, had worked with the municipal employer since 2008. In fact, the employer was the only employer that the employee had since high school.

The employee responded to a job ad with the employer as a labourer (a fields and truck driver) with the employer’s parks and grounds and the public work department. The work involved fields and grounds labour, operation of landscape equipment, and supervision of crews.

In the job description, applicants were expected to have graduated from grade 12, have a valid driver’s licence, and understand English. But the other requirements were that applicants have at least 1,000 hours of experience operating the equipment and vehicles. According to the evidence, 1,000 hours amounted to a season of work.

The employee applied to the ad, but he was unsuccessful. The employer explained that he did not have the hours of experience. He had the licence, but he had no experience driving the truck in question. In fact, he felt that it was practically impossible to acquire this kind of experience.

The union commenced a grievance and said that the Collective Agreement was violated. It argued that the need to have 1,000 hours of experience was unreasonable, and the job could be learned during a 40-day trial period on the job. The Collective Agreement already referred to this trial period as an opportunity to acquire the necessary job-related skills.

Moreover, the union asserted that, if the training could be done within the trial period, the candidate with the most seniority should be awarded the position. In this situation, the employee was the one who had the most seniority, so he should be awarded the job.

On the other hand, the employer argued that the Collective Agreement did not prevent the employer from asking for 1,000 hours of experience to do a job. The employer was permitted to have and use its exclusive management right.

The arbitrator confirmed that the employer had the right to require experience for a job:

“There is nothing in the Collective Agreement that prevents the Employer from adding in a posting a requirement for “experience.” The power to impose such a requirement emanates from the Employer’s management right, which is recognized at Article 4.01 of the Collective Agreement. The only limit to this right is that this requirement must be reasonable and have a reasonable relationship to the basic requirements of the posting in question. This standard was acknowledged in two decisions issued in 2022 that opposed these same parties.”

The arbitrator reviewed the relevant cases and concluded without hesitation that it was within the employer’s management right to impose “experience requirements” within a posting as long as these requirements were reasonable, had a reasonable relationship to the basic requirements of the posting in question, and that in assessing the reasonableness of these requirements the employer took into consideration the trial period set out in the Collective Agreement.

The arbitrator explained that the union had to show that the employee met the requirements, or the requirements were unreasonable. The arbitrator went through the evidence submitted by the employer:

• The employer determined that the competency required for this job could not be acquired during the 40-day trial period
• The employer defined the position as a “safety-sensitive position” and added that it would be dangerous to allow someone with no experience in the operation of a “truck with three or more axles” to do so considering the added difficulty of operating a snowplow
• The employer produced a document that indicated that other municipalities also required prior experience ranging from one to two years for the operation of a similar piece of equipment

In response, the union did not challenge this. Its only evidence was from the president of the local, who testified that he had never trained anyone for this position, but that he thought that five days of training would be sufficient to learn how to operate a snowplow and that this could be obtained during the 40-day trial period. He did not give any factual basis for his conclusion.

The arbitrator was not convinced by the union’s submissions and added that arbitrators have been reluctant to interfere with managerial decisions of this kind unless there was evidence of arbitrariness, discrimination, bias, bad faith, or some other indication of unreasonableness. In this case, there were no indications of this.

Therefore, the arbitrator denied the union’s grievance.

What can we take from this case?

As can be seen in the above case, unionized cases are very dependent on the specific governing Collective Agreement. Generally speaking, employers enjoy management rights to exclusively operate the company and make management decisions such as job requirements for a new position. Arbitrators are typically reluctant to interfere with these decisions unless they are in bad faith, biased, or unreasonable in some other way.

When a union wants to start a grievance to argue that an employee should have been awarded a job, the union would have to show with evidence that the employer’s decision to include a job requirement was arbitrary, discriminatory, biased, in bad faith, or unreasonable in some other way.

The post Employer Was Permitted to Require Experience for Job appeared first on Slaw.

On 15 January 2024, the portions of British Columbia’s Family Law Act dealing with the division of property were amended to address pets, the idea being that people have important emotional relationships with pets and post-separation conflict might be reduced if clear guidelines were provided. Prior to these amendments, pets were treated as chattels with the same ontological and legal status as couches, carpets and cars. Claims to possession of a pet were usually determined on the basis of ownership (Who bought the cat in the first place? Whose name was on the registration form?), habitual care (Who was primarily responsible for walking the dog? Who took the hamster to the vet?), or financial responsibility (Who paid for kenneling costs? Who paid for the vet? Who usually bought the kibble?).

Much as some people might have liked it, the courts would not and could not make orders for the shared parenting of a pet, as such would amount to an order providing an alternating right of possession of a couch. The same analysis generally applied to the sharing of the future costs of a pet, which would be the equivalent of an order requiring someone to pay for the ongoing maintenance of the car retained by their former spouse. The new rules don’t actually change this approach.

Definition

First, the animals the act deals with are “companion animals,” not “pets.” These are defined at section 1 as “an animal that is kept primarily for the purposes of companionship.” Section 3.1 exempts guide dogs and service dogs from the definition, as well as animals kept as part of a business or for agricultural purposes, thus ducking clever arguments that someone’s cattle or goats are companion animals rather than assets.

Scope of agreements

Section 92 of the act allows spouses to make agreements providing that: they will jointly own a companion animal; they will share possession of a companion animal; or, just one of them will have exclusive ownership or possession of the animal.

While it’s nice to have language in the legislation expressly permitting people to make agreements about pets, there’s nothing particularly new about the concept. People have always been able to form private contracts dealing with their chattels howsoever they might wish. If spouses wished to agree that they would share their couch on a week-on/week-off basis, nothing but practicality and common sense was stopping them from doing so.

Scope of orders

Under section 97(2), the Supreme Court has the express jurisdiction to make declaratory orders about the ownership and possession of companion animals. There’s nothing new about this either; the Supreme Court has always had the jurisdiction to make orders about the ownership and possession of chattels. However, under section 97(4), the court may also make orders about the ownership and possession pets that qualify as “excluded property” – typically because the property was brought into the relationship or gifted to a spouse during the relationship – which would normally only be permitted in circumstances of “significant unfairness” under section 96.

What is new are the provisions of section 97(4.1) which prescribes a list of factors the court must take into account in making orders about pets. These include how the pet was acquired, who cared for the pet, the presence of family violence, a spouse’s cruelty toward the pet, any relationship between children and the pet, and the ability of the spouses to care for the needs of the pet. While many of these factors are imported from the previous case law on the ownership and possession of pets, it is helpful to have a consolidated list of considerations, especially one which includes family violence and the importance of the pet to any children.

The kicker, however, comes in section 97(4.2), which merely restates the status quo ante. The court may not make orders that spouses “jointly own the companion animal” or “share possession of the companion animal.” In other words, the court still cannot make orders providing an alternating right of possession of a pet. Shared parenting of pets continues to be off the table. In a similar vein, section 97(4.3) sensibly provides that the court may not make orders for the “unequal division” of pets, which I suspect would be unnecessarily messy and significantly diminish their value.

Provincial court

The other genuinely novel change concerns the jurisdiction of the Provincial Court. The British Columbia Provincial Court normally has no authority to make orders concerning family property and excluded property. The amended section 193 expressly allows the court to make orders respecting the ownership and possession of companion animals, on the same terms as the Supreme Court.

Summary

The majority of the amendments to the Family Law Act concerning pets really don’t do a great deal to change how pets were handled prior to those amendments. Spouses can make agreements for the sharing of their pets, as they have always been able. The court can make orders for the exclusive ownership and possession of pets, as it has always been able, and it continues to be unable to make orders for the sharing of the ownership or possession of those pets.

The two important innovations introduced by the amendments are the expansion of the jurisdiction of the Provincial Court, the province’s most accessible court, to make orders about pets, and the addition of the special list of factors the court must consider when making decisions about pets at section 97(4.1).

The post Dealing With Pets Under British Columbia’s Family Law Act appeared first on Slaw.

This case reads like a cautionary tale for employers. In 2024 O.H.R.T.D. No. 862, the Ontario Human Rights Tribunal exposed the danger of adopting an inflexible approach to an employee’s challenging caregiving role at home. In the end, significant damages were awarded for the failure to accommodate and for reprisal. Other employers can avoid the same fate by understanding the rights and obligations at play in this context.

Background

The employee, a national health sales representative since 2011, requested workplace accommodations in August 2020 due to their mother’s cancer treatment and caregiving needs. Initially granted flexible hours, the employee balanced work with caregiving duties, which included transporting their mother to medical appointments and assisting with daily tasks. Their 12-year-old son was also at home for virtual learning due to COVID-19.

On October 21, 2020, the employer required the employee to shift to a head-office-based position starting October 26, despite the employee’s mother having recently broken her wrist. This led to a second accommodation request to continue working from home. The employee argued that the office shift would seriously interfere with their family obligations, especially during the pandemic. Notably, most staff were working from home due to COVID-19 restrictions.

In an October 23 meeting, the employer insisted on office attendance, stating that flexible hours were sufficient accommodation and that business needs required the employee’s presence. The employee cited COVID-19 risks and their mother’s vulnerability due to cancer treatment, but the employer suggested alternative care options for the mother and son.

The employee claimed this change imposed undue hardship and constituted family status discrimination, while the employer argued the employee chose to be the sole caregiver and that office safety protocols mitigated COVID-19 risks.

After the employee requested accommodation, the employer’s behaviour allegedly shifted negatively. The employee received a Performance Improvement Plan shortly after their request, and communication from the general manager and the new sales director significantly decreased. The employer made the employee jump through hoops to get their vacation approved (unlike other employees), excluded the employee from presenting at an international meeting, and refused to cover the registration fee for a virtual conference the employee regularly attended.

In their human rights complaint, the employee alleged both discrimination on the basis of family status, and reprisal.

The Tribunal’s decision

The Tribunal found the employer failed in its duty to accommodate the employee’s family status obligations based on several key legal principles. First, to establish prima facie discrimination, the employee needed to demonstrate membership in a protected group listed in the Ontario Human Rights Code, adverse treatment, and that the ground of discrimination was a factor in this treatment.

In this case, the Tribunal found the employee’s testimony to be consistent and reliable, while the employer’s testimony was contradictory and inconsistent. The enforced change to head-office work was deemed adverse treatment related to family status, particularly since most staff were working from home due to COVID-19. The Tribunal noted that this change would significantly impact the employee’s ability to care for their mother and ensure their son’s well-being, constituting serious interference with family obligations. The Tribunal considered the employee’s decision to continue working from home until termination a form of self-accommodation.

Additionally, the Tribunal found the employer failed to engage in meaningful accommodation discussions when the employee requested to continue working from home. The employer did not propose any compromise or alternate accommodations, only offering the previously extended flexibility for medical appointments. The failure to fully inquire about the employee’s accommodation needs and the decision to cease communication after the employee did not comply with the head-office requirement constituted a failure in both procedural and substantive accommodation under the Human Rights Code.

Lastly, the Tribunal turned to the allegation of reprisal. Proving reprisal requires evidence of an action against the employee, related to enforcing a right under the Human Rights Code, with intent to retaliate. The Tribunal found the employer’s actions, such as reduced communication and work location changes, met the reprisal test. The Tribunal awarded the employee $25,000 in general damages, $7,577.07 for lost salary, $6,621.66 for lost benefits, $51,996.15 for profit-sharing, and $13,612 for performance bonuses, plus interest, recognizing the discriminatory termination’s impact.

Key takeaways

When appropriate, employers should accommodate the caregiving needs of employees who live with vulnerable people to ensure fairness and productivity, up to the point of undue hardship. Failing to do so can lead to family status discrimination, violating human rights principles. Flexibility supports employees balancing work and caregiving responsibilities, fostering loyalty and morale. On the flip side of the coin, when an employer substantially interferes with a major parental or other family obligation, it can land in hot water and be subject to significant damages.

The post Employee Wins Family Status Discrimination Case appeared first on Slaw.

It’s a basic principle that a party needs to know the case being alleged against it to fairly respond to it. The Ontario Superior Court of Justice rendered a decision in 2024 ONSC 2948 where an employment relationship went bad, resulting in a lawsuit. The employer cried foul over the information it received in response to its demand for particulars and brought a motion asking the court to order them. The court disagreed, shedding light on the extent of information a respondent is entitled to receive before examination for discovery.

Background

The civil action underpinning the dispute was brought by the founder and operator of a company who alleged a former employee failed to repay a loan. In response, the former employee filed a statement of defence and counterclaim, alleging that she was subjected to sexual harassment, violations of her human rights and intentional infliction of mental suffering during her employment. These allegations point to a broader conflict involving both financial and personal grievances stemming from their professional relationship.

The court gave an overview of the legal framework around particulars of pleadings and the key role they play in the litigation process. Particulars clarify allegations, define issues and prevent surprises at trial, allowing parties to prepare adequately. According to Rule 25.10, the court may order particulars if they are crucial for the opposing party to frame a response and are not within the demanding party’s knowledge.

The problem sometimes arises when one side wants more particulars than they are entitled to or should require. Jurisprudence shows that the level of detail required does not extend to “the granular level of minutiae” but should provide enough clarity and specificity to meet legal standards. When allegations of misconduct or malice are made, full particulars are required.

The judge raised a key distinction between pleadings and evidence. Pleadings are formal written statements submitted by the parties in a lawsuit, outlining their claims, defenses and the issues in dispute. They set the stage for the litigation by providing a structured framework of the parties’ positions and ensuring that both sides understand the core issues to be addressed. Evidence, on the other hand, consists of the information and material presented during the trial to prove or disprove the claims made in the pleadings. While pleadings require sufficient detail to inform the opposing party of the case they must answer, they should not delve into the level of detail expected of evidence; that is gained through answers to questions posed to a witness during examination for discovery. This means that while pleadings should outline the factual basis of the claims and defenses, the specific details and substantiation of these facts are reserved for the evidentiary phase of the trial. This distinction ensures that pleadings provide a clear and fair summary of the case without overburdening them with the exhaustive details that will be examined through evidence during the trial.

The judge’s decision

The judge denied the motion, determining the request for further particulars was improper due to its excessive specificity and the nature of the demands. She reasoned that the statement of defence and counterclaim was already detailed enough, spanning 18 pages and 105 paragraphs, clearly outlining the former employee’s position. The judge cited specific examples to illustrate the excessive nature of the demands. For instance, demand 17 asked for minute details about how, where and when the former employee’s off-duty conduct was monitored via GPS devices. The judge said it was ridiculous for the moving party to claim ignorance about whether he installed GPS devices, as this information should be within his knowledge. Furthermore, the judge explained that providing more particulars at that stage would delve into evidentiary details, which is inappropriate for pleadings.

Key takeaway

Employers who bring lawsuits should understand how important this matter is. Through their legal counsel they participate in ensuring that pleadings are clear and detailed without delving into exhaustive specifics, reserving such details for the evidentiary phase of the litigation process. So long as allegations are adequately clarified to define the issues and prevent surprises, they are probably sufficient. Requests for further particulars should only be made when necessary and when the facts are not already within the requesting party’s knowledge. When disputes like this occur, courts will assess pleadings as a whole, not in isolated sentences, so seeking further granular details on a line-by-line basis is not likely to impress the court.

Source: Certified Equipment Sales v Iuorio, 2024 ONSC 2948

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The Alberta grievance arbitration decision in 2024 CanLII 38826 (AB GAA) draws a distinction between contracting out and contracting in. The grievance concerned a company’s decision to fill its Tank Farm Project Operator position at its refinery, involving issuing permits for project work, isolations, expansions and tank cleaning. The position typically was filled by a bargaining unit member to promote individual development within the unit.

What happened?

In 2021, the bargaining unit member holding this special assignment left, creating a vacancy. The company had trouble filling the position from within because of the COVID-19 pandemic, so instead of posting it internally, it contracted with another firm to provide a worker to fill the role. The worker performed the duties for about six months and then worked alongside bargaining unit members for approximately two months.

The union filed a grievance arguing that the company had improperly contracted the role into the bargaining unit rather than filling it with a bargaining unit member, as required by the collective agreement. The union cited articles related to union recognition and job postings, arguing the company should have made the position available to bargaining unit members. The company defended itself by citing the challenges posed by the pandemic and claiming that no qualified bargaining unit members were available at the time.

The arbitrator’s decision

The arbitrator’s first point of analysis was to determine if the collective agreement restricted contracting out, requiring an exercise in contract interpretation. The arbitrator explained that generally a restriction on contracting out requires an explicit prohibition in the agreement. In this case, article 9.02 stated: “The Company may use non-bargaining unit employees including contractors to perform work in the Refinery and Chemical Plants, provided it does not result in the layoff of a bargaining unit employee.” This provision was highlighted as specifically restricting contracting out if it led to layoffs within the bargaining unit.

The dispute centered on whether article 9.01 constituted an additional constraint on contracting out beyond what was outlined in 9.02. Article 9.01 stipulated that work for the company by its employees, including union and non-union employees, can be directed by the Company with flexibility to meet business needs.” The arbitrator interpreted article 9.01 as applying solely to “employees,” which was distinct from article 9.02, which encompasses both employees and contractors.

Drawing on the plain meaning of the words used, the arbitrator concluded that article 9.01 did not restrict the company’s right to contract out work, affirming that such restriction would require explicit language in the agreement. In the arbitrator’s view, article 9.01 was aimed more at addressing internal workforce management rather than external contracting practices.

After painting the contractual landscape, the arbitrator determined the employer had improperly contracted the worker into the bargaining unit, despite article 9.01 not restricting the company’s ability to contract out.

Ultimately, the arbitrator determined the worker was brought in to perform bargaining unit work. There were several reasons for this finding: historically, bargaining unit members performed similar tasks; the nature of the work was production-oriented and integral to the refinery’s operations; and the worker’s role was analogous to that of bargaining unit members. The arbitrator emphasized that despite the worker’s temporary status and the involvement of an intermediary, the company exerted significant control over the work, including direction, supervision and integration into daily operations, which aligned the worker closely with a traditional employee rather than an independent contractor. Therefore, the arbitrator found the worker was effectively an employee of the company during his time on the job, constituting impermissible contracting in rather than a valid contracting out scenario under the collective agreement.

As for a remedy, the company was ordered to pay union dues for the period the worker was in the position, reflecting what would have been collected had he been correctly classified. However, the arbitrator declined to grant damages for the company’s failure to consult the union about using a contractor, as article 9.01 did not impose such a duty. Nonetheless, the arbitrator encouraged the company to maintain open dialogue with the union to prevent future disputes and uphold their positive working relationship.

Key takeaway for employers

Bringing workers in to complete bargaining unit work can be a move that is fraught with difficulty, so paying close attention to what is permissible and what isn’t under the collective agreement is a must.

The post Decision Clarifies Contracting Out and Contracting In appeared first on Slaw.

In April 2024, the New Brunswick Labour and Employment Board confirmed the decision of the Director of Employment Standards that an elected municipal councillor with a local government governed by the Local Governance Act was not an employee. He claimed that his six-month suspension was a violation of the Employment Standards Act and that he was owed damages. The Board concluded that the councillor did not meet the definition of “employee.” Therefore, the Board dismissed the councillor’s claim.

What happened?

The councillor had his pay suspended for six months after an issue regarding an alleged Code of Conduct violation.

As a councillor, he was paid monthly (not every 21 days), he was paying income tax and CPP contributions (but not Employment Insurance premiums) and he did not earn wages (he earned the same amount every month).

Additionally, the councillor referred to himself as being hired by the people of the municipality, not the municipality itself. With respect to control, the councillor received tools and supplies to do his work by the municipality (he did not use his own tools and supplies). He also received a T4 and not a T4A. Yet, the municipality lacked the control over the councillor’s work (the work of the councillors was controlled by the Council and not the municipal government).

Furthermore, the Local Governance Act prohibited a member of Council from being employed by the local government. The control of the councillor’s work was in the hands of the Council.

The municipality had four employees (Clerk, Assistant Clerk, Recreation Director and Receptionist), a mayor and eight councillors (representing individual wards). The councillors were elected, had to be a Canadian citizen, and had to be over 18 years old. On the other hand, the employees had to apply to a job posting, and they had to be evaluated by a committee consisting of the Mayor and the Chief Administrative Officer (CAO). The employees were assessed based on their resumes and performance following a job interview.

Further, the councillors passed bylaws and the employees prepared and administered the budget. The Council was the decision-maker. The councillors’ pay was determined pursuant to a remuneration bylaw. The Mayor and councillors did not have employment contracts. The councillors were paid, whereas the employees were paid a salary biweekly.

All of the employees had to work 37.5 hours per week, and the councillors did not have these required hours (they had to attend four meetings per year and had no other requirements on how they spent their time).

The councillors could access the municipality’s office space and received a laptop, but did not receive paid vacation or holidays. Contrastingly, the employees got three week’s paid vacation and paid statutory holidays.

Interestingly, the councillors were subject to discipline according to the Code of Conduct bylaw. By contrast, discipline involving the employees were managed by the CAO, the Mayor and the Deputy Mayor.

What did the Director decide?

The Director conducted an investigation and found that there was no violation of the Employment Standards Act. This was because the councillor was not an employee of the municipality. What’s more, the Director affirmed that it did not have jurisdiction to hear the matter since the Act only applied to provincially regulated employers.

In response, the councillor requested that the Director refer the matter to the Board.

What did the Board decide?

The Board examined the Employment Standards Act and pointed out that an “employee” was defined as a person who performed work for or supplied services to an employer for wages; however, it did not include an independent contractor.

Also, an “employer” was defined as a person, firm, corporation, agent, manager, representative, contractor or subcontractor having control of, direction of, or being directly or indirectly responsible for the employment of one or more persons.

The Board noted that the purpose of the ESA was to provide minimum employment standards to protect employees. Employees have been acknowledged to be in a vulnerable position compared to the employer.

The Board noted that in Ontario, cases have stood for the proposition that a councillor was not an employee and could not allege wrongful dismissal against the municipality. Essentially, it was concluded that a councillor was not hired or fired by the municipality (contrary to employees). It also seemed to the Board that councillors were prohibited from being employees.

When considering the control test (control, ownership of tools, chance of profit and risk of loss), the Board found that the councillor was not an employee given the aspects of the councillor’s work. That is, one of the hallmarks of employment was that there was a lack of independence and the work environment was dictated by the employer. The employer decided who to hire and fire-this was the central factor when thinking about the employment relationship. In this situation, there was no employment relationship since the councillor had a different arrangement.

The councillor was not a subordinate and was a part of the decision concerning the remuneration bylaw. In fact, the councillor enjoyed considerable independence. This was true regardless of the sharing of office space, the T4s and the provision of resources. He was not like a manager who had some autonomy but was still an employee who earned wages.

In fact, there was no difference between the municipality and its Council. The councillor was in business on his own account, and as such, he was not an employee. Consequently, the councillor’s case was dismissed.

What can we take from this decision?

As can be seen from the above analysis, decision-makers examine each aspect of each particular case to understand the context. They look at the control test and other features of the work situation of the person to decide whether the person is an employee or an independent contractor. In this case, it became clear that the councillor was not an employee and could not claim the Employment Standards Act was violated.

The post Elected Municipal Councillor Was Not an Employee: No Violation of Employment Standards appeared first on Slaw.

What is the Council of Europe?

The Council of Europe (CoE) is an international organization founded in 1949 to promote human rights, democracy and the rule of law in Europe. Based in Strasbourg, it includes 46 member states, among them the 27 European Union (EU) member countries. Distinct from EU bodies such as the European Council and the Council of the EU, the CoE is known for its creation of the European Convention on Human Rights (ECHR) and the establishment of the European Court of Human Rights, which oversees the implementation of the ECHR.

Canada was granted official observer status with the Council of Europe’s Committee of Ministers in 1996. In 1997, Canadian parliamentarians were granted official observer status with the Parliamentary Assembly of the Council of Europe. The Deputy Head of Mission of the Mission of Canada to the European Union is Canada’s Permanent Observer to the Council of Europe. In 2019, Canada also joined the Council of Europe’s European Commission for Democracy through Law (the Venice Commission), which supports Canada’s and the EU’s collective efforts to advance democratic principles, human rights and fundamental freedoms across Europe and internationally. Canada has been an observer to the Venice Commission since 1991.

What is AI?

Artificial intelligence (AI) refers to machine-based systems that can make decisions, predictions and recommendations based on input data. These systems influence both physical and virtual environments and are used across various sectors, including public services and private enterprises. AI encompasses a wide range of technologies, from simple algorithms to complex machine learning models.

Moreover, AI is technology that enables computers and machines to simulate human intelligence and problem-solving capabilities.

Why was a treaty necessary?

The development and use of AI pose significant risks to human rights, democracy and the rule of law. Simply put, AI systems can infringe on basic rights such as non-discrimination, freedom of expression, privacy, socioeconomic inequality and access to justice. They can also undermine democratic principles, lead to a lack of transparency for how and why AI comes to its conclusions, creating a lack of explanation for what data AI algorithms use, or why they may make biased or unsafe decisions. AI can lie and lack accountability in many ways, such as: AI can generate fake or misleading content, such as deepfakes, fake news, or fake reviews, that can deceive or manipulate people. Given these potential negative impacts, the Council of Europe recognized the need for a legally binding international treaty to responsibly govern AI and protect these fundamental values.

How does AI relate to people’s rights?

According to Kate Jones, Associate Fellow, International Law Programme at Chatham House,

“Governments and companies are already deploying AI to assist in making decisions that can have major consequences for the lives of individual citizens and societies.

AI offers far-reaching benefits for human development but also presents risks. These include, among others, further division between the privileged and the unprivileged; erosion of individual freedoms through surveillance; and the replacement of independent thought and judgement with automated control.

Human rights are central to what it means to be human. They were drafted and agreed, with worldwide popular support, to define freedoms and entitlements that would allow every human being to live a life of liberty and dignity. AI, its systems and its processes have the potential to alter the human experience fundamentally. But many sets of AI governance principles produced by companies, governments, civil society and international organizations do not mention human rights at all. This is an error that requires urgent correction.” [You can read more on her paper on AI governance and human rights, https://www.chathamhouse.org/2023/01/ai-governance-and-human-rights]

For example, AI can be used to detect social benefits fraud, monitor workplaces and predict criminal behaviour. However, these uses often raise concerns about discrimination, privacy violations, lack of transparency and accountability.

The treaty aims to ensure that AI systems are designed and used in ways that uphold human rights, democracy and the rule of law, providing safeguards and legal remedies for individuals whose rights are affected by AI.

Who is bound by the treaty?

The treaty is legally binding for the Council of Europe member states and other signatories, which include Argentina, Australia, Canada, Costa Rica, the Holy See, Israel, Japan, Mexico, Peru, the United States of America and Uruguay. While the convention is primarily aimed at state parties, it indirectly affects businesses and other private entities. These entities must comply with national laws and regulations enacted by the signatory states to implement the treaty’s provisions. This approach allows flexibility for different legal systems and respects international human rights obligations.

What does the treaty accomplish, and when was it adopted?

AI regulation has been a main focus for dozens of countries, and now the European Union (and many other countries) are creating (or trying to create) more clear-cut measures to manage the rising sophistication of artificial intelligence. Most are trying to regulate the way AI is used, but have no intention to hold back progress in basic technology.

The Framework Convention on Artificial Intelligence and Human Rights, Democracy, and the Rule of Law was adopted on May 17, 2024, and will be opened for signature on September 5, 2024, in Vilnius, Lithuania. The treaty establishes a comprehensive legal framework to ensure AI systems are developed and used in ways that respect human rights, democracy and the rule of law. It includes provisions for transparency, accountability, non-discrimination and privacy protection, requiring states to implement these principles through national legislative and regulatory measures.

How might this relate to organization and employers?

Organizations and employers, particularly those using, or intending and planning to use AI systems, and have a global impact, will be significantly impacted by the treaty. They will need to ensure that their use of AI complies with the national laws and regulations enacted by signatory states to implement the treaty. This means adopting measures for transparency, accountability and non-discrimination in AI applications, such as employee surveillance or automated decision-making processes. Organizations and employers must also be prepared for potential oversight and be ready to provide legal remedies for customers and employees whose rights might be affected by AI systems.

There are many steps businesses can take when integrating AI into their operations. Organizations can develop processes for monitoring algorithms, compiling high-quality data and explaining the findings of AI algorithms. Leaders could even make AI a part of their company culture and routine business discussions, establishing standards to determine acceptable AI technologies.

Takeaways

The Council of Europe’s AI treaty marks a significant step towards regulating artificial intelligence on an international scale. By addressing the lifecycle of AI systems and their potential risks, the treaty aims to balance innovation with the protection of human rights, democracy and the rule of law. As countries begin to adopt and implement this treaty, it will shape the future governance of AI and ensure that its development aligns with the core values of a democratic society.

Stanford University AI researchers Fei-Fei Li and John Etchemendy make this argument in a 2019 blog post that calls for national and global leadership in regulating artificial intelligence:

“The creators of AI must seek the insights, experiences and concerns of people across ethnicities, genders, cultures and socio-economic groups, as well as those from other fields, such as economics, law, medicine, philosophy, history, sociology, communications, human-computer-interaction, psychology, and Science and Technology Studies (STS).”

Mike Thomas, Senior features writer at Built In, in his article, 12 Risks and Dangers of Artificial Intelligence (AI) adds,

“Balancing high-tech innovation with human-centered thinking is an ideal method for producing responsible AI technology and ensuring the future of AI remains hopeful for the next generation. The dangers of artificial intelligence should always be a topic of discussion, so leaders can figure out ways to wield the technology for noble purposes. “

The post Understanding the Council of Europe AI Treaty appeared first on Slaw.

Employers are no stranger to various forms of litigation like grievances, lawsuits and human rights complaints. Sometimes, these complaints proceed to a full hearing and decision, but not unfrequently, matters are settled by the parties without the need for a hearing. Usually, these settlements require the parties to keep the details confidential and not make any disparaging statements about the other party. A 2023 decision of the Human Rights Tribunal of Ontario, HRTO 1138 (CanLII) illustrates a remedy that might be open to the employer if the employee breaches these requirements. As the matter is governed by the rules of contract law, it will come as no surprise that the wording of the settlement agreement is paramount.

Background

The case stems from a sex discrimination complaint that led to mediation between the respondent and the corporate employer, which ended in a settlement agreement. The minutes of settlement included clauses on confidentiality and mutual non-disparagement. Fifteen months later, the respondent made a LinkedIn post announcing the resolution of a Human Rights Complaint against the corporate employer and another individual breaching these clauses, according to the applicants. The statement read, “To all those inquiring, I have come to a resolution in my Human Rights Complaint against [the applicant corporation] and [the individual applicant] for sex discrimination.” The employer said this violated the terms of the agreement, which specified that “Upon inquiry by any person about the resolution of the Application or conclusion of the Applicant’s employment with [the applicant corporation], the Applicant shall simply state that all matters have been resolved.” In the employer’s view, there had been no request, and the posted statements would harm its reputation. Plus, it said the employee’s post went too far.

Despite the applicants’ requests, the respondent initially did not remove the post, arguing it didn’t violate confidentiality, was truthful and fell within the scope of permissible disclosure outlined in the settlement. They believed their post was ambiguous and intended to address potential inquiries while being neutral.

The respondent eventually revised the post but disputed the breach, stating they felt pressured to erase their experience. Whether the breach occurred was a very material fact since, under the contract, if the employee breached their obligations respecting confidentiality and non-disparaging comments, they would be required to repay the settlement money as liquidated damages.

The Tribunal’s decision

The Tribunal began its decision by surveying the legal landscape surrounding the interpretation of a settlement agreement, emphasizing contract law principles, party intentions and the duty of good faith. As to whether the post violated the settlement agreement, key points were said to include analyzing the full agreement, considering the factual context and assessing the post’s impact on the other party’s reputation. The discussion highlights the need to balance contractual obligations, including confidentiality and non-disparagement, with the rights of parties to express themselves within the agreement’s confines.

The tribunal found that the LinkedIn post breached the confidentiality clause because it exceeded the permitted disclosure, which was limited to stating that “all matters have been resolved” upon inquiry. The respondent’s interpretation, allowing broader disclosure, was deemed inconsistent with the agreement’s plain language and would potentially damage the other party’s reputation. By attaching specific details about “sex discrimination” and naming both parties involved, the post went beyond the intended scope of permissible disclosure. This interpretation was also deemed inconsistent with the principle of good faith and the contract’s internal consistency.

It was more of the same with the non-disparagement clause, which was, in the Tribunal’s view, violated because it would be objectively reasonable to foresee the possibility of damage to the other parties’ reputations by publishing such prejudicial allegations on social media.

Lastly, the Tribunal granted the employer a remedy of liquidated damages, as outlined in the settlement agreement. It found liquidated damages to be consistent with the parties’ intentions and explained how they serve to provide certainty in enforcing contractual obligations. The Tribunal rejected arguments of unconscionability, noting the absence of unequal bargaining power and the agreement’s fair terms. Additionally, liquidated damages were deemed appropriate, given the inherent difficulty in quantifying reputational harm and the importance of upholding confidentiality in human rights settlements. Of key importance, the clause was found not to be punitive but rather a mechanism to enforce the settlement’s core requirements.

Elaborating on the point, the Tribunal said punitive clauses aim to penalize rather than compensate, putting the plaintiff in a better position than if the contract were performed. In this case, the liquidated damages were equal to the settlement payment made by the employer to the employee. Enforcing the clause merely restored the applicants to their pre-payment position. Since the damages did not confer an undue benefit and were directly linked to the breach of primary obligations, they were not disproportionate or punitive. For that reason, the Tribunal found the clause enforceable.

Key takeaways

Settlement agreements must use precise language to delineate the permissible scope of disclosure, preventing ambiguity and misinterpretation. By clearly defining the boundaries of confidentiality and non-disparagement, employers can mitigate the risk of breaches and uphold the integrity of the agreement. Clarity of language ensures that all parties understand their obligations and reduces the likelihood of disputes arising from differing interpretations of the contract’s terms, ultimately fostering trust and co-operation between parties. Additionally, specifying liquidated damages in the event of a breach provides a clear consequence, facilitating efficient resolution and discouraging violations.

The post Loose Lips Lead to Lost Cash appeared first on Slaw.

In February 2024, the Supreme Court of Newfoundland and Labrador certified a privacy class action. The representative plaintiffs, on behalf of 260 individuals (first 240 individuals, and second 20 individuals), alleged that their privacy was violated when an employee of the defendant employer (a health authority) accessed the private information of these individuals that was outside the scope of their employment. The employer became aware of the first and second alleged breaches in 2020 and 2021, respectively. The main claim against the employer was that there was a failure to safeguard the plaintiffs’ private and confidential information, and as a result, they suffered distress, humiliation, anger, upset, mental anguish, shock, fear of identify theft, uncertainty and confusion. Their claims sought damages including aggravated, punitive and exemplary damages. The employer delayed filing the defence until the result of this application for certification.

The plaintiffs argued that the privacy breaches were based upon the statutory tort of breach of privacy under the Privacy Act-breach of privacy based upon the common law tort of intrusion upon seclusion, negligence and breach of contract. They relied on the doctrine of vicarious liability (where the employer would be indirectly liable for the actions of its employees) to support their claims.

In order to determine whether to certify the class action, the court examined section 5 of the Class Actions Act. That is, the court decided whether the pleadings disclosed a cause of action, there was an identifiable class, the claims raised a common issue, the class action was the preferrable procedure to resolve the common issues and there was a person who could fairly and adequately represent the members of the class, had produced a plan of the action and did not have an interest that was in conflict with the interests of class members.

The court noted that the plaintiffs had to show these things but did not have to show that they would likely win. It was a lower bar than that, since any review of the merits of the case was properly left to the trial of the matter where evidence could be weighed then.

The court ultimately decided that the class action could be certified:

• Privacy Act alleged breach claim: The claim disclosed a cause of action against the employer since it was not plain and obvious that this cause of action would be unsuccessful at trial.
• Intrusion upon seclusion claim: The court referred to Jones v Tsige and stated that the tort required intentional intrusion upon the seclusion of another of his private affairs. Here, the court noted that there was a cause of action because it was not clear that it would fail, specifically in regard to the element of intention.
• Negligence claim: The plaintiffs had to show that the employer owed a duty of care to the plaintiffs to protect their private and sensitive information. The duty of care was breached by the employer, the plaintiffs suffered damage and the damage was caused by the employer’s breach. In this case, while the plaintiffs claimed several damages, it was up to the trial judge to decide what remedies were available. At this point, an assessment of damages was not possible, and so it was not plain and obvious that there was no chance of compensable harm to be proven.
• Breach of contract claim: The plaintiffs argued that there was an implied contract in place to not hire people who were not properly trained in patient privacy, to keep their private medical files safe, to keep their personal health information private as required by the Personal Health Information Act, to protect the privacy of their health information given the online statements made in the employer’s policy statements and brochure and to keep their information private as part of a good faith contract. The court noted that the claim was difficult, but not impossible. Thus, it was not plain and obvious that this action would be unsuccessful.
• Class Actions Act claims: The court also decided that there was an identifiable class to support the application for certification, there were indeed common issues that applied to the class, there was a preferrable procedure-judicial economy favoured certification, and the representative plaintiffs could fairly and adequately represent the interests of the class with a workable litigation plan, and no known conflicts with class members.

Therefore, the requirements were met-the plaintiffs’ application for certification could proceed.

What does this mean?

In a nutshell, the plaintiffs met the tests to go ahead with the class action. The judge noted that there would be no costs awarded at this stage. Simply put, depending on the timeline for court dates, this class action will go to trial in the near future. We will keep you posted once the main claims are considered on their merits.

The post Newfoundland and Labrador Privacy Class Action Goes Ahead appeared first on Slaw.

Webber Academy (or “the school”), a private educational institution in Alberta, defined itself as non-denominational: it did not engage in any overt religious practice (with one possible and qualified exception). Yet, after two Alberta Human Rights Commission (AHRC) decisions, two Queen’s Bench (as it then was) (QB) judgements, two Court of Appeal (CA) rulings and two denial of leaves to appeal by the Supreme Court of Canada (SCC), it was held to have discriminated without justification against two Muslim students whom it prohibited from engaging, on school property, in overt prayers. How did this happen? And what does it mean for whether a private school is able to function in accordance with its own beliefs?

There were two complete rounds of litigation in this case. For convenience, they are set out here:

Round One: a complaint to the AHRC by the students’ parents; an appeal from the AHRC’s 2015 decision (Amir and Nazar v. Webber Academy Foundation [AHRC 1]) by Webber Academy to the QB; an appeal from the 2016 QB decision (Webber Academy Foundation v. Alberta (Human Rights Commission) [QB 1]) by Webber Academy to the CA; application for leave to appeal from the 2018 CA decision (Webber Academy Foundation v. Alberta (Human Rights Commission) [CA 1]) to the SCC by the AHRC; denial of leave to appeal on February 28, 2019 by the SCC No. 38273 (Alberta Human Rights Commission (Director), et al. v. Webber Academy Foundation).

Round Two: rehearing by the AHRC; an appeal from the AHRC’s 2020 decision (Amir and Siddique v. Webber Academy Foundation [AHRC 2]) by Webber Academy to the QB; an appeal by Webber Academy to the CA of the QB’s 2021 decision (Webber Academy Foundation v. Alberta (Human Rights Commission) [QB 2]); application for leave to appeal by Webber Academy of the CA’s 2023 decision (Webber Academy Foundation v. Alberta (Human Rights Commission) [CA 2]); denial of leave to appeal on March 21, 2024 by the SCC No. 40907 (Webber Academy Foundation v. Alberta Human Rights Commission (Director), et al.).

This case illustrates how the prohibition against religious discrimination under human rights legislation and the Canadian Charter of Rights and Freedoms (“the Charter”) applies differently to freedom from religion compared to protection for religious belief. And in that regard, Webber Academy illustrates that seeking to maintain a true non-denominational or secular identity will be almost impossible in the face of the guarantees given to religious freedom.

Although the second Court of Appeal decision is the only one that really matters, I am also referring to other decisions in this thread to a give a fuller sense of how the case led almost inevitably to the final conclusion against Webber Academy’s non-denominational identity freedom from religion claim.

BACKGROUND

As described in the first AHRC decision, “Webber Academy was founded in 1997 and has declared its mandate to be a high quality, non-denominational, co-educational, university preparatory, accredited private school.” It enrolled students from kindergarten to grade 12. (AHRC 1, para. 6; my emphasis)

Dr. Patrick Webber, the founder and president of Webber Academy, was the school’s spokesperson and, it appears, the real decision-maker, although there was also a board of directors. Dianne Lever, the director of admissions and Barbara Webber, vice-president of administration, were also involved “communicating” with the parents about praying on school grounds.

The school provided the kind of facilities one would expect in a school, including classrooms and other academic space, washrooms and places to eat, as well as an infirmary and rooms where students experiencing anxiety could do their homework or spend some quiet time. All students had access to these spaces. (AHRC 2, paras. 83, 85) Justice Poelman, in the first QB decision, described these facilities as “educational programs and other supportive services and facilities incidental to those programs” (QB 1, para. 44).

The school had a uniform dress code, which prohibited headwear, but its handbook explained that “head coverings which have a cultural or religious significance are permitted and may be worn” (QB 1, para. 77). It did not provide any religious facilities or undertake any religious activities, although it did put up religiously ambivalent Christmas tree in its lobby every year.

Although Webber Academy described itself as non-denominational in its materials, and although it permitted some deviations from its dress code and clean-shaven requirements, it did not include a statement about its policy on praying or generally on recognition of religious practices. The recognized practices might be characterized as “passive” religious (or cultural) expression. Nowhere, however, was there reference to overt praying. The lack of an express policy on overt praying meant that staff, teachers and most administrators did not actually know what position Webber Academy took on it and they therefore tended to follow their own inclinations when faced with the issue.

In November 2011, Farhat Amir and Dr. Shabnam Nazar, parents of two teenage boys, Sarmad Amir and Naman Siddique, respectively, applied to Webber Academy. As Sunni Muslims, the teenagers were obligated to pray five times a day. Two of the prayer times coincided with the school day. A prayer consists of two sequences of bowing, kneeling and standing, a process that takes between five and ten minutes (throughout, five minutes seems to have been the agreed upon time required, although the second CA decision refers to “5 to 8 minutes” [CA 2, para. 43]). Those praying did so quietly so as not to be heard by those around them.

The parents anticipated that the boys would be able to engage in prayers when at school; they said this had been addressed in a pre-enrollment meeting and subsequently during a tour of the school. Indeed, when school began, staff and teachers helped the students find places they could pray. Ms Lever was somewhat ambiguous when the issue was raised with her. Ms Webber thought it was enough to say the school was non-denominational to know prayer was not allowed (AHRC 1, para. 93).

However, when Dr. Webber discovered the students were praying, he prohibited it, offering the students time out from school to go off school grounds or to pray without the actions involved. He and the parents met to resolve the issue; when that failed, the parents made a complaint under section 4 of the AHRA to the AHRC of denial of services on the basis of religious belief.

Praying off the property meant adverse consequences for the students from weather, feelings of humiliation, among others (AHRC 1, para. 34). Given subsequent events, Dr. Webber advised that since the parents were ignoring the rules, their sons would not be accepted for the next year.

THE ISSUES ADDRESSED IN THE HUMAN RIGHTS CASE

The circumstances in the case raise several interrelated issues:

1. What does “non-denominational” mean and what is its significance?
2. Did the parents/students’ claim fall under the AHRA?
3. What had the parents requested: dedicated or undedicated space to pray?
4. As a non-denominational school, was Webber Academy’s prohibition of overt praying on school property discriminatory and if it was, was it justified?

Together the answers to these questions raise the larger question of whether it is possible to be a non-denominational or secular institution that recognizes multicultural practices and inclusivity but denies overt religious expression?

1. What does “non-denominational” mean and what is its significance?

At the heart of this case is what “non-denominational” means and whether it is a meaningful concept. What kind of activities may effectively result in “losing” the status of being non-denominational?

Dr. Webber defined “non-denominational” as follows:

A “Non-denominational”, in my term, in terms of a non-denominational school is providing students with — with an academic atmosphere that does not include a religious practice. And non-denominational is — is a place where students from any religious background is [sic] welcome to be a part of our — of our academic studies, and it’s — it’s a place where you don’t have students conform to any one belief or prefer one belief over another. (AHRC 1, para. 96)

He was of the view that “’secular and non-denominational essentially mean the same thing: non-denominational means not being affiliated with any particular religion and secular means having no connection with any religion’” (CA 2, para. 13, citing AHRC 2, para 116). Dr. Webber had testified that the goal was to have a school that was “religious neutral” where there was no overt prayer and no religious activities on school property (AHRC 1, para. 87).

In the appeal from the tribunal’s first decision, Poelman J. also indicated Dr. Webber’s understanding of “non-denominational”:

It is a non-denominational school, fostering an atmosphere where those of many faiths and cultures would feel equally at home. This meant that Webber Academy “is not a place where religious activities are to be carried out by members of any religious group on campus.” (QB, para. 6; quoting Dr. Webber)

However, all the adjudicators essentially agreed with the first tribunal’s preferred definition:

The dictionary definition of non-denominational introduced by the director [of the AHRC] is: “not restricted to or associated with a religious denomination.” Principal Schneider of Rundle College captured non-denominational as follows: “(O)ur view of that is that we are not promoting or specifically affiliated with any denomination, and in that sense, we are non-denominational.”

(Rundle College is also a private, non-denominational preparatory school. The students went there after they were not allowed to register at Webber Academy in their second year.)

Dr. Webber believed that if the school were required to permit the prayers on school property, it would be tantamount to asserting that religious observance belongs in a school setting. The first tribunal rejected this view, stating instead,

the Students [sic] requests were not aimed at establishing that their religion, or any religion, “belonged” in a school setting. Rather, in order to fulfill their religion, they were required to pray at designated times. The Students’ physical location was incidental to their religious beliefs. The Students’ requests of Webber Academy were purely a function of being at school during their mandatory prayer times. (AHRC 1, para. 99)

As for state neutrality with respect to religion, which the human rights legislation was meant to reflect, the second tribunal stated,

[T]he AHRA . . . by prohibiting discrimination on the basis of religion and by requiring the accommodation of religious differences, does not in any way promote or discourage one belief or non-belief at the expense of any other. The state does not seek to require Webber Academy to allow religious activities on its campus regardless of the circumstances. (AHRC 2, para. 208; my emphasis)

At the second tribunal, Webber Academy raised its own religious freedom, that is, its right of freedom from religion (AHRC 2, para. 156). The tribunal found that “this is a belief and practice that has a nexus with conscience and religion” (AHRC 2, para. 204).

The school maintained that the AHRA requirement that it allow the prayers contravened its right to freedom from religion under section 2(a) of the Charter. For the first time before the first CA panel, it claimed that it had a right under the Charter to “religious and secular neutrality” and the right of the educational community to a “secular, non-denominational education” (CA 1, para. 34). Webber Academy submitted that “[a]s a private school, Webber Academy has a Charter protected right to offer secular, non-denominational education consistent with the convictions of the parents who choose to send their children to Webber Academy.” (CA 1, para. 38)

The school also argued that to the extent it permits religious prayer and other religious acts in secular schools, the AHRA is inconsistent with the Charter. (A summary of Webber Academy’s Charter arguments in its Notice of Constitutional Question can be found at CA 1, paragraphs 33-39.)

The second CA concluded that it was possible to have religious practices on the school site without interfering with its non-denominational identity because doing so did not mean the school adopted those practices, the curriculum was not affected and the practices did not impinge on parents’ or teachers’ views.

2. Did the parents/students’ claim fall under the AHRA?

Under section 4 of the AHRA,

No person shall

(a) deny to any person or class of persons any goods, services, accommodation or facilities that are customarily available to the public, or

• (b) discriminate against any person or class of persons with respect to any goods, services, accommodation or facilities that are customarily available to the public,

because of the . . . religious beliefs . . . of that person or class of persons or of any other person or class of persons.

The parents’ human rights complaint was reliant on determining the fundamental question of what “services” were “customarily available” at Webber Academy and to whom (that is, who are “the public”?). The latter was easily determined: the public was the student body as the parties agreed (CA 2, para. 33). However, there was a dispute about the nature of the services Webber Academy had been making available to the students.

Webber Academy argued the service at issue is “prayer space”, which was not customarily available to the student body. All adjudicators rejected this position.

The second tribunal said, “if all students, without distinction, have a right to access quiet, private spaces to attend to bodily functions or to remedy feelings of anxiety, those spaces are customarily available to the public, the student body.” Furthermore,

[s]ome of these facilities are specifically related to educational programming and others are related to the needs of the students who are required to be on campus for the entire school day. These services include places to eat, washrooms, an infirmary and places for those who have anxiety and need a quiet place to do homework. (AHRC 2, para. 83)

Justice Poelman described “the services and facilities Webber Academy customarily made available to its public [as] non-denominational educational programs and other supportive services and facilities incidental to those programs”. (ABQB 1, para. 44) The second CA decision defined the services to include “quiet, private spaces”, which is what the students were seeking to perform their prayers (CA 2, para. 42).

Of course, Webber Academy cannot discriminate in providing or allowing access to these facilities on a basis prohibited under the AHRA.

Justice Poelman stated that “to define the services and facilities addressed in section 4 of the Act as proposed by Webber Academy – that is, to define them as identical to the specific “service” requested by the students –would make the provision almost meaningless” (QB 1, para. 46).

Webber Academy had maintained that the students had access to education, which was the service it provided. However, Poelman J. found that they did not have meaningful access to education if they could not pray in a manner consistent with their beliefs and they were being discriminated against in comparison to students who were able to express their religious beliefs in other ways (QB 1, para. 64).

It is not clear that Poelman J.’s analysis is correct, however. One can define “the services customarily available” as the classrooms, washrooms, quiet rooms and so on, all of which have a particular purpose; in other words, the purpose is part of the service. The question then is whether overt praying is one of those purposes. Justice Poelman gives as an illustration a school denying wheelchair access to facilities because it had never done so. But use of a wheelchair is a means by which the services are made available. Praying is not a means by which the services at Webber Academy are made available.

The school argued that religious observance was not the same as washroom or study use and there had never been space for religious observance. Justice Neufeld on appeal from the second tribunal to the QB held, “At best, the Academy has an arguable position to advance for the proposition that prayer space is distinguishable from space for attendance to other personal needs, but an argument is not enough to satisfy the appellate standard of review.“ (QB 2, para. 39) This was the only recognition that Webber Academy’s position had any merit at all among all the adjudicators.

On appeal from Neufeld J.’s decision, Webber Academy continued to argue that the tribunal should have determined the service at issue (praying on campus) and then whether it was customarily available to the public (the student body). If it had done so, the school argued, it would have concluded it did not have jurisdiction to hear the complaint.

The second Court of Appeal panel held otherwise, doing a bit of fancy footwork in considering this question. It did not accept Webber Academy’s position that it had never provided space for prayer on school property because “it is uncontroverted that the Students were able to perform prayers for more than two weeks when they first started attending the school” with the help of teachers and staff (CA 2, para. 44). While this is true, the teachers were not aware prayer was not allowed without Dr. Webber’s approval, a point the CA did not address.

In any event, only after two weeks were the students actually prohibited from using space for prayer (CA 2, para. 44). In addition, Dr. Webber would allow them to use space for prayer “provided they prayed silently without moving their limbs so no observer could know that prayer was occurring” (CA 2, para. 45). Thus the second CA concluded,

. . . it seems that Dr. Webber’s objection was based specifically on the manner of the Students’ prayers because the prayers involved the overt, physical movements of standing, kneeling and bowing. The adverse impact was not because of prayer or religion per se, but because of the type of prayer required by the Students’ religion. (CA 2, para. 45)

Importantly, from identifying generic educational facilities and particular facilities that Webber Academy provided prior to the request to provide space for prayer, the adjudicators elided (non-dedicated) prayer space with these other facilities: space for religious observance was akin to the other places identified as “services available to the public”.

Therefore, the tribunal had jurisdiction to hear the complaint.

3. What had the parents requested: dedicated or undedicated space to pray?

The school maintained that the parents had requested prayer space (this was taken to mean “dedicated” space), while the parents stated that they had requested only that their children be allowed to pray in a space “sufficiently large to allow the children to bow, kneel and stand safely” (AHRC 1, para. 15). The AHRC accepted the parents’ characterization of what they had requested. Justice Poelman found that there was evidence to support the tribunal’s finding that they were not seeking “dedicated prayer space” and that, indeed, “the students were willing to perform their prayers in any private place, such as an unused room or behind a tree outside” (QB 1, para. 38).

In its first decision, the CA noted both the tribunal and Poelman J. had proceeded on the basis that the complainants had not been requesting “prayer space”. However, the students did require space to perform the various actions constituting the prayer, even if this was not “dedicated” space. The Court stated:

Neither the Tribunal nor the chambers judge explained the significance to their analysis if the request was for prayer space. Clearly, the students required space to pray and Webber Academy was being asked to provide space, whether dedicated or not. The Tribunal’s conclusion appears at best confusing, and without further elaboration of its reasons, the conclusion is not reasonable. (CA 1, para. 56)

Because of this and another error relating to contradictory testimony about whether Ms Lever told the parents space was available, both of which Poelman J. had been prepared to overlook because they did not change the final outcome, the CA sent the case back to the AHRC for a rehearing (CA 1, para. 63).

The parties submitted an agreed statement of facts at the rehearing (AHRC 2, para. 15). However, the issue of whether the space requested was dedicated space or any space and what the school’s administrators told the students’ mothers and the students on visits to the school remained in dispute. One administrator testified that the term used was “reflection”, not “prayer”, and others indicated that while the matter of prayer was raised, the parents were told that the school was non-denominational and prayer was not permitted. The parents stated they used “prayer” but not “dedicated space” and that the director of admissions did not say that was not acceptable.

Tribunal 2 found, “It is clear that the request was for a place to pray. The request was for a nominal space, a quiet place where the students would be able to stand, kneel, bow and engage in silent recitation.” (AHRC 2, para. 81)

Whatever the initial dispute, however, subsequently, Dr. Nazar, after confirming with religious authorities that there was not an acceptable alternative to the prayers being undertaken as described, wrote to Dr. Webber making a formal request for accommodation in the form of “a nominal space being provided to perform prayers and that the students be excused from class for five minutes per prayer when these prayers coincide with their scheduled classes.” (AHRC 1, para. 36) By “nominal space”, Dr. Nazar did not refer to dedicated prayer space, but anywhere it was possible to perform the prayers, such as the corner of a classroom or office (AHRC, para. 36).

Nevertheless, regardless of whether the parents asked for “prayer space” or “dedicated prayer space”, Dr. Webber was opposed, maintaining that Webber Academy never provided prayer space. The second CA held this was not the case because the students had prayed for two weeks before Dr. Webber discovered they were doing so and prohibited it. It also concluded that the prohibition was discriminatory, not because of religion in itself “but because of the type of prayer required by the Students’ religion”, since Dr. Webber would have allowed praying on campus “provided [the students] silently without moving their limbs so no observer could know that prayer was occurring” (CA 2, para. 45). These actions were the feature distinguishing the students’ overt praying from the passive religious (or cultural) symbolism the school permitted, a distinction the adjudicators glossed over for the most part.

In short, Dr. Webber would have (it appears) allowed prayer if, like the religious symbols already permitted, it was “covert”. Even though the Sunni prayers were performed as innocuously as possible, they were not covert.

4. As a non-denominational school, is Webber Academy’s prohibition of overt praying on school property discriminatory and if so, is it justified?

Once praying, including overt praying, was held to be a “customarily available service” for the student body, it followed that Webber Academy discriminated against the students by not allowing them to perform their prayers on school property. The onus thus fell on the school to establish it was justified in its refusal of the service, that is, the prayer, under section 11 of the AHRA, which provides,

A contravention of this Act shall be deemed not to have occurred if the person who is alleged to have contravened the Act shows that the alleged contravention was reasonable and justifiable in the circumstances.

None of the adjudicators considered allowing the prayers to be an undue hardship for Webber Academy whose only reason for not permitting them related to its identity as non-denominational. There were no cost ramifications or inconveniences for anyone else, the students did not seek curriculum changes and nothing really changed in how Webber Academy operated. Indeed, people did not notice that the students were praying the first two weeks. The second tribunal concluded there was no evidence about how overt praying compromised this identity (AHRC 2, para. 142).

In its second decision, the CA noted,

We would observe that Webber Academy does not appeal the Tribunal’s finding that it prima facially discriminated against the Students by not permitting them to pray on campus. Nor does Webber Academy appeal the Tribunal’s conclusion that it had a duty to accommodate the Students because Webber Academy did not establish that it would suffer undue hardship by accommodating them. (CA 2, para. 26)

Webber Academy had argued that the proper test for its Charter claim was whether its (non-)religious belief was interfered with in a manner that was more than trivial or insubstantial (a Charter test), while the tribunal had applied an undue hardship test (a human rights test). The Court of Appeal said the evidence supported the same conclusion under both tests (CA 2, para. 61).

The second tribunal had concluded that Webber Academy had “a sincere belief respecting religion”. But because the school did not prohibit all forms of religious expression and its witnesses all testified that the praying did not interfere with their religious beliefs or those of their children, the CA at the second hearing concluded that

when the Tribunal conducted the Charter analysis and concluded that Webber Academy did not suffer any undue hardship, it is apparent that the Tribunal was, in effect, finding that Webber Academy’s freedom of religion was not interfered with in a manner that was more than trivial or insubstantial by accommodating the Students’ need to pray on campus. (ABCA 2, para. 61)

The CA observed, “Webber Academy’s non-denominational policy is not affected by providing the Students with access to quiet, private space to pray. In our view, it cannot reasonably be suggested that Webber Academy is endorsing any religion or religious practice, and should not be seen to be doing so, simply by providing such accommodation.” (CA 2, para. 66)

IS IT POSSIBLE TO BE A NON-DENOMINATIONAL OR SECULAR INSTITUTION THAT RECOGNIZES MULTICULTURAL PRACTICES AND INCLUSIVITY BUT DENIES OVERT RELIGIOUS EXPRESSION?

There is no doubt that to some extent the reasons Webber Academy gave to the parents for refusing to let the students pray reflected an outmoded way of viewing things. For example, according to Dr. Nazar, Dr. Webber (presumably) stated during a meeting with the parents and others, “While quiet meditation or other non-descript prayer may be permitted, prayer which requires conspicuous ‘bowing’ and/or ‘kneeling’ is too obvious and may make other students uncomfortable (AHRC 1, para. 36; my emphasis). He apparently also “suggested the Students could pray quietly in their head or quickly make a cross where no one is aware of the prayer and this would be acceptable” (AHRC 1, para. 33).

One of the disadvantages for the school was the lack of a written policy addressing prayer in the school. Rather, the situation was dealt with on an ad hoc basis and by Dr. Webber writing to the parents, explaining the school had never said it had prayer space and that it had received a legal opinion that it did not have to accommodate the students, since it did not accommodate other religious practices: as “a non-denominational school . . . this is an integral part of its character and it is legally entitled to remain so” (AHRC 1, para. 37).

Justice Neufeld pointed out that there are many schools that establish policies or mandates that exclude others: this is the nature of a pluralist society. However, it is important that the mandate be clearly established:

[T]his is simply good governance. The long –and no doubt expensive – history of litigation in this case is demonstrative of that. Clear and early communication of school policy is also fundamentally fair to prospective and existing students and their families. It is a worthwhile goal in itself. (QB 2, para. 69)

Webber Academy itself had also opened the door by allowing the wearing of turbans and other religious-related headwear. As Poelman J. observed,

Webber Academy, to its credit, adopted a public policy of welcoming young people of many faiths and cultures, and to exemplify its policy, published photographs of students with turbans and facial hair even though these practices contravened usual school policies.

For some reason, it drew the line at Sunni prayer rituals, conducted in private, in a place that was convenient to the school and the students from time to time. Its policy thus discriminated against the belief of the complainant Sunni Muslim students as compared, for example, to students who overtly averred their religious affiliation by forms of dress and grooming. There was no demonstrated hardship, let alone undue hardship, motivating this policy. (QB 1, paras. 122-123)

(Although it may not have mattered, the praying was not necessarily private, but could occur in a corner of the library, for example.)

Webber Academy had made a deliberate decision to allow exemptions from the regular uniform policy (or they were part of the policy set out in the handbook) and therefore it is noteworthy that their information said nothing about praying overtly. The CA in its second decision rejected Webber Academy’s effort to distinguish (for example) the wearing of religious headwear and overt praying:

We accept that Webber Academy wishes to establish a campus welcoming of all faiths, believing that religious practice and instruction should be addressed by parents and caregivers of students, outside of the school environment. However, the evidence establishes that Webber Academy’s “culture” currently accommodates religious differences amongst the student body by allowing exemptions to the dress code for Students who wear religious head coverings and facial hair, and allowing prayer provided that the prayer is silent and not overt. With regards to the dress code, Dr. Webber considered these accommodations as being reasonable because the head wear and facial hair is a demonstration of who that student is as a person. We consider such accommodations to be consistent with the goal of Webber Academy to be welcoming of all faiths and cultures.

Religion, for some, is also a demonstration of who they are as a person. Here, one of the Students testified that telling him to stop praying was equivalent to telling him to stop breathing. And both Students provided testimony about how fundamentally important their prayers were to them as people. We consider the provision of a quiet, private space for the Students to pray to be an analogous accommodation [to the passive religious symbols]. (CA 2, paras. 77-78)

Even the Christmas tree, admittedly associated with a Christian season even when placed in the Eaton Centre, but which is in itself a secular object, comes back to bite the school in the second CA decision. Dr. Webber had described the tree as a “Canadian cultural symbol”, not a religious symbol. There had been rare complaints about the tree, but the description of the tree as not religious was accepted. The CA did not accept it, however, because “[s]imply because the [Webber Academy] considers a Christmas tree to have no religious significance does not mean that others hold the same view . . . .” (CA 2, para. 79).

Generally, consideration of religious belief does not entail seeking the opinion of others: “claimants seeking to invoke freedom of religion should not need to prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion” or, presumably as valid by members of other religions (Amselem, para. 43).

Would it have made any difference had the school not permitted turbans or hijabs, for example? After all, Poelman J. referred to a school that had been found to have discriminated under human rights legislation because it justified refusing a Sikh student the right to wear a turban on the basis that it was not consistent with its uniform policy; it did not matter that there were other schools the student could attend (QB 1, para. 121). Yet surely a uniform policy does not rise to the level of a claim to a secular – non-religious – identity.

For the most part, the adjudicators simply did not see non-denominational identity — non-religious belief — as worthy of the same respect as religious belief or affiliation or religious practice. Justice Neufeld was a bit of an outlier in this regard. He said, although the views of the witnesses for Webber Academy did not establish that their religion would be interfered with by allowing the prayers, “[i]t does not follow, however, that the educational philosophy underlying a private school, including its position on the practice of religion within the school, is not relevant or worthy of consideration when an assessment is made under s. 11 of the AHRA as to whether a discriminatory policy is reasonable and justified in the circumstances.” (QB 2, para. 66) Nevertheless, he reached the same conclusion as the other adjudicators.

Given the high reputation of Webber Academy, it is not entirely unreasonable that its concern that the school would attract other applicants who wanted to engage in their overt religious practices during the school day. The first tribunal did acknowledge that “if a very large percentage of a student body sought to fulfill religious beliefs in a very visible way, that may impact a school’s non-denominational identity,” but that is not the case here (AHRC 1, para. 103) The second CA had little time for this “floodgates” argument, referring to it as a concern that the school “will be inundated by a magnitude of similar requests now or in the future”, holding it is not relevant to accommodation for the two students now (CA 2, para. 82). (It is also possible that given the school’s response to the current request and Dr. Webber’s apparent lack of understanding of Sunni prayers, parents would be wary of applying to the school if their children would need to express overt religious beliefs.)

For the adjudicators, there was no difference between the provision of washrooms and the provision of space for anxious students to spend some quiet time and the provision (albeit unallocated) for overt praying. They also saw no difference between allowing students to wear a turban or hijab and putting up an ambivalent Christmas tree, on the one hand, and clearly religious overt praying, on the other. As the second tribunal suggested, “permitting grace before a meal” would also be something that would not interfere with a non-denominational environment (although it is not clear whether this would be undertaken by a student on their own or by the school, it is obviously just “natural” that grace would be acceptable) (AHRC 2, para. 207). lt also stated:

In this case, the legislation requires the respondent to accommodate the complainant’s request for a quiet, private place to pray in the same way it provides such places for persons with anxiety and in the same way that it allows exceptions to its dress code for religious and cultural reasons. (AHRC 2, para. 208)

These determinations were fatal to Webber Academy’s claim that being a non-denominational school meant there should be no overt praying on school property.

The first tribunal did “not accept that being a non-denominational school can reasonably be interpreted as meaning “no prayer or religious practice will be allowed.” (AHRC 1, para. 98) The second CA panel reinforced this position: “Webber Academy’s non-denominational policy is not affected by providing the Students with access to quiet, private space to pray” (CA 2, para. 66).

The answer to the question of whether it is possible to be a non-denominational or secular institution that recognizes multicultural practices and inclusivity but denies overt religious expression is probably it is not possible. As long as space for prayers are equated with the availability of non-religious services, it will follow that accommodation for overt prayers, albeit quiet, is required under human rights legislation. Similarly, once a school allows the wearing of passive religious symbols, which will in any event likely be required under human rights legislation, it will have forfeited any claim to limit its recognition of religion within its own practice of non-denominational identity.

CONCLUSION

Would it have been so terrible had Webber Academy simply allowed the students to pray in relatively unobtrusive places? If it had developed a policy that clearly laid out the circumstances of prayer and other overt religious practices? If it had compromised its own sense of non-religious belief, given what little was being asked of it?

Webber Academy was, of course, expected to compromise its own beliefs because, unless an institution is the government of Quebec, its secular non-religious beliefs are less protected in the broad sense. It or its students are not forced to perform overt prayers (indeed, compulsory prayers in public schools are no longer allowed), but they are forced to accept the performance of acts inconsistent with secularism.

Certainly, in this case, Dr. Webber’s stubbornness and lack of sensitivity contrasted sharply with the picture painted of the adverse impact on the students. In the context of whether the school would suffer undue hardship if it were required to accommodate the students, the first tribunal stated, “[t]he respondent’s standard of ‘no overt prayer or religious practice on campus’ essentially asks these Students to leave their religion ‘at the door’ while other students who do not have religious obligations during school hours are not so required.” (AHRC 1, para. 105)

The first tribunal related that “Dr. Nazar said that her son felt he had to choose religion over school”. And the tribunal, as well as the other adjudicators, described the impact on the students when they had to leave the property: Naman Siddique testified (in the tribunal’s words), “It was winter and so they would often come back to the school really wet and cold. If there was a blizzard outside or if it was too cold to pray Mr. Siddique testified that he and Mr. Amir would find a nook or cranny and pray. He felt that this was humiliating.” (AHRC 1, para. 34)

The reality is, under human rights legislation there is almost no way that a school can maintain a secular identity. Despite the adjudicators’ view that the prayers do not interfere with that identity, do not change the school into a non-denominational institution, they do change the atmosphere from one that does not recognize religious practice as part of its own culture. Furthermore, a school that seeks to present a secular face is almost forced to deny what is the multicultural reality of its students as represented by passive symbols that appear throughout our society if it does not want to be caught in a web of its own making and appear to be inconsistent. Such a denial is neither possible nor desirable, however.

Webber Academy illustrates that the law does not acknowledge that secularism or a non-denominational identity is more complex than allowed by most of the adjudicators in the case. Or, perhaps, the opposite is true: that it is as simple as the law allows religious expression to be: unlike religious adherents and their faith, however, believers in secularism are not free to define their own beliefs and practices.

The post The Lack of Protection for Non-Denominational Identity: The Webber Academy Case appeared first on Slaw.

The Supreme Court of British Columbia rendered a decision (2024 BCSC 55 (CanLII)) on judicial review which looked at the employer’s choice to implement a COVID-19 vaccination policy, and whether, under the Labour Relations Code, it was obligated to enter into discussions with the union first. The case provides employers with insight into the difficulty of overturning a tribunal’s decision.

Background

The workplace was a provincially run rapid transit company. The Court considered a union’s petition for judicial review of a decision by the British Columbia Labour Relations Board regarding the interpretation of s. 54 of the Labour Relations Code in relation to a mandatory vaccination policy implemented by the employer. The dispute centered around whether the policy triggered s. 54 of the LRC, which requires employers to give notice and engage in discussions with the union when introducing measures affecting the terms, conditions, or security of employment of a significant number of employees covered by a collective agreement.

The union argued that the policy affected employment conditions and thus should have triggered s. 54, while the employer contended that the policy was akin to workplace rules and did not require such notice. The original decision by the Board found that s. 54 applied to the policy, but a reconsideration panel later overturned this decision, concluding that the policy did not fall under s. 54.

The Court summarized the arguments of both parties and the original decision, which found that the policy did indeed trigger s. 54 because it required employees to undergo a medical procedure and disclose confidential medical information, leading to organizational changes in the workforce. However, the reconsideration panel, in the majority decision, disagreed and found that the policy was directed toward individual behavior and did not constitute a significant change triggering s. 54. It reasoned that other workplace policies, such as sick leave policies, also require employees to disclose medical information and thus the policy in question was not unique.

In dissent, Associate Chair Matthews interpreted the statute differently, concluding that the policy fell within the class of employer conduct subject to negotiation and thus should have been covered by s. 54.

Overall, the Court reviewed the arguments, the original decision, and the reconsideration decision, ultimately granting deference to the majority decision of the Board, which found that the policy did not trigger s. 54.

The Court’s decision

Justice Devlin began the analysis by stating the applicable standard of review was that of patent unreasonableness. In other words, this highly deferential standard permits the original decision to stand unless it is clearly irrational or suffers from reasoning so flawed it affects the decision as a whole. If, on the other hand, a rational line of reasoning could support the conclusion, or if a defect is a minor one, then the decision must be allowed to stand.

With that standard in mind, the Court dismissed the application for judicial review put forward by the union. The Court addressed two main arguments. First, regarding the Board’s reasoning on the application of s. 54, the union claimed the majority’s decision stemmed from a misunderstanding of the original decision. However, the Court found no merit in this assertion, emphasizing that the majority’s analysis was comprehensive and contextually sound.

Second, concerning the statutory interpretation of s. 54, the union argued the majority failed to conduct a meaningful analysis. Despite this, the Court disagreed, stating the majority engaged in a thorough interpretation consistent with legal principles, having considered the legislative history and applicable jurisprudence. Consequently, the Court concluded the majority’s decision was not patently unreasonable and dismissed the union’s application for judicial review without addressing other arguments.

Key takeaway

It’s really hard to overturn a decision for being patently unreasonable, particularly when the decision maker lays out their thinking in a way that makes rational sense and aligns with the law. This case shows how parties’ reasonable perspectives may differ, but overturning a tribunal’s decision often takes more than a different point of view.

The post Missing Discussions at Center of Union COVID Dispute appeared first on Slaw.

In January 2024, a British Columbia labour arbitrator had no hesitation concluding that an employee, who was the grievor accusing a female colleague of sexual harassment in this case, was actually the one who was sexually harassing the female colleague. Simply put, the arbitrator found that the grievor’s evidence was not credible, the female colleague’s account was credible and consistent with the evidence, and the female colleague did not do what the employee accused her of. As a result, the labour arbitrator agreed with the employer that the grievor filed a knowingly false complaint against the female colleague and the employer had just cause for discipline. The grievor’s termination grievance was dismissed.

What happened?

The employee was a regular full-time faculty member with the employer. He filed a sexual harassment complaint against a female colleague, accusing her of doing things that allegedly happened two years earlier. More specifically, the employee argued that the female colleague propositioned him for sex, tried to kiss him while they were in the car, brushed her breast against his arm and then finally kissed him on the mouth without consent.

The female colleague was a new employee. She denied all of the accusations against her and told a different story where she was made to feel uncomfortable around the employee, and the employee’s conduct was so upsetting that she asked to be relocated from the office they shared on campus to another location.

The employer hired a third-party to investigate the matter. Afterwards, the employer accepted the findings in the report and terminated the employee since his accusations were found to be false, made in bad faith and made in a distorted manner.

The labour arbitrator asked whether the employer had met its onus of showing just cause for the termination. This was made challenging since there were diverging accounts of the six months of interactions between the employee and his female colleague.

The arbitrator noted that, according to the employee, the female colleague called him cute, commented on his clothing saying they were sexy, and called him vagina bait. He also said that she tried to kiss him when they were in her car, brushed against him and eventually planted a non-consensual kiss on his mouth. In his complaint, he stated that he was not looking for retribution; he just wanted the situation put on record because he wanted to safeguard his career. He pointed out that the female colleague was part of a hatefest against him.

Contrastingly, the female colleague stated that nothing that the employee argued was true. She wanted to make a good impression as a new faculty member with the employer so that she could secure a permanent role. She was stressed, and the employee called her cute, the relationship was weird, his comments were over the top and she felt manipulated by him. The employee was not well-liked in the department, and he made her feel uncomfortable. She did not say anything to her employer right away because she did not want to make any waves as a new employee. Also, she did not have anything tangible yet to bring to the employer. She did not like that he asked her personal questions such as asking about her oral hygiene, which she thought was disturbing. She asked for advice from people who could help her (this was confirmed by Email records). Ultimately, she felt that she had no choice but to ask for a relocation to another place on the campus.

According to the employer, the female colleague gave testimony that was credible-unlike the employee’s evidence. In fact, the employer relied on her evidence when deciding to terminate the employee. Further, the employer argued that, regardless of the reasons why the employee fabricated the story, the employee persisted with the false story and his bad faith allegations without remorse or regard for the negative impact on the female colleague.

What did the labour arbitrator decide?

The arbitrator found the following:

• The employee’s testimony was not credible given his inconsistencies and embellishments, and also his verbose modifications during cross-examinations. The employee was evasive during questioning and he gave convoluted responses.
• The female colleagues’ evidence was genuine and forthright, which was reasonable in the circumstances. She gave clear and concise explanations and answered questions directly.
• It was more likely than not that it was the employee who initiated conversations that were sexualized-not the female colleague
• Whether we are talking about what transpired in the office or the car, it was clear that the employee’s evidence was inconsistent and implausible. Taking a holistic view of the evidence, I find it more likely than not that the nature of the relationship between the [female colleague] and the [employee] was not that of a female colleague engaging in sexually suggestive conduct and kissing the [employee] without his consent, as alleged in the Complaint. I find the [employee’s] evidence, and his allegations against the [female colleague] place too great a strain on one’s sense of the realities of life and clash with the preponderance of probabilities disclosed by the surrounding circumstances.

Accordingly, the employer could show that the employee filed a knowingly false complaint against the female colleague and it had just cause for discipline. To that end, the employee’s grievance was dismissed.

What can we take from this case?

As can be seen in this case, it will eventually come out via investigations and hearings that an employee made up a sexual harassment complaint. Employers are recommended to address this issue of employees creating fictitious claims against coworkers in their anti-discrimination and anti-harassment policies. Along those lines, the issue should also be addressed during training sessions with employees so that it is clear that making up complaints in a dishonest manner will not be tolerated, and the policy will be enforced against employees with discipline up to and including termination.

Source: 2024 CarswellBC 211.

The post Blaming Victim of Sexual Harassment Not a Good Defence appeared first on Slaw.

The appellants own a royalty interest in a coal mine. In 2014 they acquired royalty interests in the Genesee coal mine. This coal fuels the Genesee power plant in Alberta.
By 2012 federal performance standards, the end of life of the three coal-fired plants was determined to be 2039, 2044 and 2055 (para 3).

They claim their interest was constructively expropriated (paras 2 and 5) when the government of Canada amended the regulations to require the performance standard for coal-fired plants to be met no later than 2030 and the government of Alberta introduced its Climate Leadership Plan to phase out coal-fired electricity generation emissions by 2030 (para 4).

“In 2018, the appellants filed a statement of claim against the respondents, Canada and Alberta, alleging they had constructively expropriated their royalty interest without compensation.” (para 5)

The application was summarily dismissed; see: Altius Royalty Corporation v Alberta, 2021 ABQB 3 (CanLII).

That decision was upheld on appeal to a chambers judge; see: Altius Royalty Corporation v Her Majesty the Queen in Right of Alberta, 2022 ABQB 255 (CanLII).

“At issue in this appeal is the first requirement in the CPR/Annapolis test: an acquisition of a beneficial interest in the property or flowing from it, or as stated in Annapolis, an acquisition of an advantage in respect of private property. Here, the appellants assert the advantage flowing to governments is “avoided healthcare and environmental expenses”. They seem to say that because the governments assigned a dollar figure to the healthcare and environmental benefits, the alleged advantage is a proprietary one.” (Appeal, para 29)

Ultimately, the Court of Appeal upheld the lower courts’ decisions, stating:
“Like Canada, Alberta received no advantage flowing from the appellants’ property. The appellants submit Alberta received benefits of the sort described in Canada’s Regulatory Impact Analysis Statement. But for the same reasons set out above, such public benefits do not satisfy the requirement that the Crown in right of Alberta acquired an advantage resulting from its actions.” (para 40).

Ecojustice was party to the appeal and has commentary explaining the trial decision and the appeal decision.

They also note that another “constructive expropriation” case is awaiting a ruling from the Supreme Court of Canada brought forward by the Lynch family of Newfoundland on a water regulation matter:
City of St. John’s v Wallace Lynch, et al (judgement reserved or rendered with reasons to follow, 16 November 2023, 40302).

The post Environmental Regulation Is Not “Constructive Expropriation” appeared first on Slaw.

The interim decision of Caroline Sand, Member of the Human Rights Tribunal of Ontario in 2024 HRTO 233 (CanLII) shows what can happen when a party is invited to participate but decides not to. As it turns out, the technique of putting one’s head in the sand works for ostriches but not for employers who seek to avoid liability for human rights complaints.

Background

The matter arose out of a sex-based human rights complaint by an employee against her former employer, a social club. The employer had numerous opportunities to participate but consistently chose not to engage. It initially responded to the application with a Form 2 filing (Response) but failed to participate further. Despite mediation attempts and multiple communications from the Tribunal, including reminders and invitations to case management conferences, the respondents did not respond. Even after its counsel indicated they were no longer representing them, the respondents remained unresponsive to communications from the Tribunal. Despite clear warnings and final notices offering them a chance to participate, the respondents did not reply. Their lack of engagement ultimately led to a default situation in the proceedings.

The Tribunal’s decision

Satisfied the employer received all relevant documents and notices, the Tribunal was left little choice but to conclude the employer’s absence was of its own choosing. This, in turn, led to a three-pronged ruling: the employer was deemed to have accepted the allegations made against it, it waived its right to participate, and it would receive no further notice respecting the application.

As this was an interim decision, the Tribunal scheduled a subsequent one-day hearing to consider the merits of the application.

Key takeaways

Parties’ participatory rights before administrative tribunals exist for good reason: they ensure procedural fairness by giving everyone involved a chance to be heard. With that opportunity comes risk, particularly if the respondent remains silent and fails to engage. In those situations, depending on the legislation and the Tribunal’s rules of procedure, the respondent could be deemed to have accepted the complaint, greatly lessening the applicant’s burden.

While no one is forced to play, the odds are stacked against the party who ignores the Tribunal’s invitation.

The post The Perils of Remaining Silent appeared first on Slaw.

A Broken System

I would have loved to have sat in during Minister Miller’s initial debrief in the summer of 2023 to review the Study Permit system. I can only imagine how that meeting unfolded. Perhaps he was unacquainted with the relevant procedures and he asked a step-by-step explanation how a student abroad applies for a Study Permit and comes to Canada. During that initial debrief, he may have learned about:

• “Puppy mill” schools that may be completely dependent on international student tuition;
• The rampant use of unregulated, nefarious agents who guarantee results at exorbitant prices that lead families (and communities) into crippling debt;
• The completely ineffective use of past warnings;
• The widespread use of fake & fraudulent supporting documents;
• The unbridled growth of private colleges whose existence is based on recruiting international students;
• Criminal investigations by CBSA that reveal 100s of victims every year;
• The systemic use of Chinook and other tools to process Study Permit applications as quickly as possible; and,
• The schemes and scams to bring spouses on open work permits so the students can forego classes altogether.

From my limited access to Minister Miller, I imagine he left that meeting with an extreme level of frustration and a strong commitment to find solutions. To be clear, all the above points are true, to an extent. I have seen how thousands of students have been victimized and misled.

Ontario’s auditor general published a comprehensive report in 2021 that confirms many points above. As noted in the report, annual tuition average for domestic student in 2020/21: $3,228.  Annual tuition average for international student: $14,306. Also, The Fifth Estate did an amazing investigation “Sold a lie” where they travel to India and catch many agents peddling lies. It’s no wonder colleges are focused on courting students from abroad!

There are certainly many “low-hanging fruit” problems that can easily be fixed. Over the past months, we have seen many changes to the system. I will outline these changes and suggest additional recommendations. To an extent, these changes have been improvements; however, they have also caused significant uncertainty and anxiety.

Improving the Study Permit system

Over the past few months, IRCC has been slowly announcing changes to address the issues above:

• A taskforce with CBSA to identify victims of fraud;
• Study Permit cap of 360k for 2024;
• Increase financial requirements;
• Limit access to Open Spousal Work Permits;
• Restrict access to Post Graduation Work Permits (PGWP);
• New PAL requirements, adding responsibility on the shoulders of the provinces;
• Warnings to private colleges.

I remember the press conference when Minister Miller compared Canadian colleges to “puppy mills that are just churning out diplomas.” His frustration was palpable and it is clear that he is focused on improving this situation.

Again, many of the changes have been “low-hanging fruit” problems. IRCC issued ~300k Study Permits in 2020 so the cap is largely just getting back to pre-pandemic levels. The new PAL continues the trend of downloading immigration responsibility to the provinces. Changes to the OSWP and the PGWP fix known loopholes.

These changes do not ease the current requirements that may include:

• The extremely subjective bona fide student analysis;
• The Officer must be satisfied the applicant must leave Canada at the end of the study period;
• Financial documents must be credible and cover both tuition and costs of living;
• Permission by foreign employers they can come to Canada to study; and,
• Recent transcripts and proof of academic performance.

To be clear, the citations above often refer to Federal Court cases where a judge has reversed or taken issue with the Officer’s decision. The point is to highlight that, despite these decisions, Officers continue to refuse Study Permit applications on these grounds.

The key word above is “may”, of course, as Visa Officers have broad discretionary authority to focus on particular issues while ignoring others. They also know that most applicants do not have the financial means to challenge IRCC refusals in Federal Court. I have published my thoughts in detail on this last point in a previous post on Slaw.

Prof Christian has also highlighted the inconsistent jurisprudence on financial requirements on Slaw. 

Recommendations

1. Ban agents from receiving kickbacks from colleges (DLIs)

In Canada, Designated Learning Institutions (DLIs) may pay agents or “sub-agents” to recruit international students. Consultants may receive significant payments or kickbacks from these colleges, often paid as a % of 1^st year tuition, and the consultants may also receive fees from the students. Yes, these agents are getting paid from both sides of the transaction. This post suggests agents get 10% to 15% of the tuition paid by the student to the DLI.

For example:

Mr Bonito charged his client $3,000 for a Study Permit (before he lost his CICC licence).

If he got also got 10% of the average tuition, that would lead to an extra kickback of $1,430 from the DLI

Total fees paid to the agent: $4,430.

The above example is hypothetical. I could not find any cases involving agents who disclosed their commissions from DLIs.

To be clear, the average fees paid to an immigration lawyer for a Study Permit is between $3,000 to $3,500. Lawyers cannot get these extra payments from the DLI as we are bound, correctly, by Rules that prohibit these types of fees. Consultants and agents do not have such rules. For a Study Permit, they can charge the student a fee for the application and then, for the same student, they can get a commission from the private college or public university. Representing both sides of the process is a direct conflict of interest, of course. Neither CICC nor IRCC bans this conduct.

I spoke with an immigration consultant who does not accept kickbacks from DLIs. She was, however, approached by a few private colleges that offered between $700 to $2000 per student. She did not feel right about the offer so she did not accept. She knows other consultants whose businesses focus on this market. There is significant $$$ involved. She asked to remain anonymous.

Another source stated, “Some consultants ‘buy’ whole classrooms and then fill them with students making huge commissions.”

From my perspective, this is a huge issue and I believe most folks in Canada are completely unaware. I was describing this situation to a friend who pointed out that Canadian universities have limited spots for students. Each spot given to an international student through a shady agent leads to one fewer spot for a student in Canada.

2. Publish black-listed agents

IRCC has published blanket warnings against using agents abroad. News agencies report story after story after story of the rampant corruption. As the Honourable Miller put it, the system “has become so lucrative that it has opened a path for its abuse.” The current warnings are not enough.

When I meet with victims of scams, I would love to be able to show them an IRCC website that lists shady agents, with their personal information. This would not be difficult. I have spoken with CBSA Investigators who are constantly tracking down shady agents and their victims.

On the business side, IRCC currently publishes a page of employers who have abused workers and violated immigration laws. I have referred to this IRCC website when I give presentations to employers regarding potential issues of non-compliance. It can be quite effective.

3. Encourage the use of lawyers licenced in Canada

I hesitate to add this recommendation as it is, of course, in my own self-interest. I cannot ignore, however the merit of the recommendation. The fact is that many immigration consultants falsely advertise themselves as “lawyers”. Many agents, unfortunately, lie to their clients and put themselves out as lawyers. I cannot count the number of times I have spoken with a prospective client who describes incompetence by their “lawyer” only for me to find out they never retained a lawyer.

IRCC does the opposite. They do not distinguish between representatives and they actively discourage applicants from hiring professionals. On the government website, it states that representatives could be:

• citizenship or immigration consultants
• lawyers
• friends
• family members or
• other third parties

I have to admit, I am mildly insulted they include consultants at the top of the list. They also include this warning:

“You should be able to fill out the forms and submit them yourself.” That’s rich. I would suggest the writer of the above spend more time with applicants and listen to the high level of frustration out there. I suppose, along the same lines, we should all be able to file and submit our taxes by ourselves. When my life was simpler, I took the time and did the research to file my own taxes. I hire a professional.

If IRCC provided sufficient support to applicants and they provided guides that were clear & comprehensive, then I could see Officers discouraging the use of representatives. The fact is the government does not provide adequate support. Clients who call the IRCC Call Centre may wait 2 to 3 hours on hold, or they may not get through at all.

4. Prioritize applications submitted via Authorized Paid Representatives’ Portal (APR Portal)

IRCC needs to find better ways to curb the firehose of applications to Officers. At the end of 2023, they have made it more difficult to request an update or to provide additional information through the Case Specific Enquiry (CSE/ Webform). I spoke with an Officer who advised the number of CSE requests has skyrocketed over the past few years and many are simply ignored. Many self-represented applications are sent back due to missing information or other issues. This wastes Officers’ time and leads to delays and unnecessary refusals.

One possible remedy would be to prioritize applications submitted through the APR Portal, available to all licenced lawyers and all licenced consultants. This could increase the quality of the applications submitted to IRCC and potentially increase efficiency.

The critique of this recommendation is that it could create a hierarchy of applicants and raise fairness issues. Giving high priority to applications through the APR Portal may lead to longer processing of applications submitted by self-represented applicants. Two steps forward, one step back?

Potential clients often ask, “if I hire you, will I get a faster result?” I answer, “if you submit an application without any mistakes that is done properly and includes all the supporting documentation to address any potential issue, then it will be processed just as fast as if we were to submit on your behalf.”

Uncertainty and Expectations

I hope I have adequately conveyed the serious nature of this problem. I could probably write a book on this topic. This is only scratching the surface.

Yesterday, I met a student from Lebanon in my office. She is taking a 1 year study program and she has dreams of becoming a pharmacist. She applied for a work permit and it was refused. She was told by her agent in Beirut that getting PR in Canada was “easy” and Manitoba (MPNP) has the easiest path to PR status. Indeed, under the system in 2021, the agent was not wrong. Under the current system, it will be very difficult for this Lebanese student to realize her dreams.

UPDATE

Since this post was published, a Ukrainian friend shared her experience. She worked for an agent in Europe. That agent received significant commissions from DLIs in Canada and he also charged the student. He got “at least $2,000 commission per student” and there were DLIs who would also pay commissions for both the 1st and 2nd year tuitions. They would push students to the DLIs that were paying the highest commission. And then charge the student for the Study Permit.

The post Study Permits & Uncertainty appeared first on Slaw.

In December 2023, the Vice-Chairperson of the New Brunswick Labour and Employment Board (Board) confirmed that the employer discriminated against an employee when the employer terminated his employment following an injury. The Board also concluded that the employer bullied, harassed and belittled the employee. Consequently, the Board awarded $10,000 as general damages, which included damages for injury to the employee’s dignity, feelings, self-respect and self-worth. Further, the employer was required to participate in a one-day human rights training course on the duty to accommodate.

What happened?

The employer was a roofing company. The employee was a roofer who installed roofing products on residential and commercial buildings since 2004. This arrangement went on without conflicts for years.

The employee was hired each spring to early winter every year. One day, the employee fell 16 feet from a ladder and landed on his back onto cement, and he struck his head. This caused the employee to injure his spine and get a concussion. He was therefore prescribed to be off work by his doctor.

The employee applied for workers’ compensation benefits at WorkSafeNB, and the application was accepted. The employee was diagnosed with soft tissue injury to the thoracic and lumbar spine with chronic back problems and completed physiotherapy, occupational therapy, pain management, use of a lumbosacral corset and medications.

The Case Manager at WorkSafeNB drafted an appropriate return-to-work plan and the employee returned to work with modified duties. At the meeting (the employer never attended), the employee was told to return to work and work four hours at a time-and he was not to climb ladders or be on a roof.

When he returned, the employee faced some unexpected things, namely yelling from the employer in front of coworkers: “I should have never hired you in the first place, “you are useless,” “you are burying my company,” “you should be up on a ladder,” “you are ruining me,” and “you can climb the ladder.” This went on for weeks.

The employee felt sick to his stomach and felt anxiety, depression and sleeplessness because of the bullying, humiliation, harassment and demeaning comments made by the employer. He was starting to feel hopeless.

After returning to work, the employee experienced a crush type injury to his left thumb; this meant that he had a nondisplaced fracture of the thumb with soft tissue swelling. The employee was again prescribed to be off work by his doctor and his workers’ compensation claim was accepted. He went through hand therapy, splinting and medications.

The employee then had a surgical procedure and began a gradual return to work. He was on light duties, and again heard the employer’s comments: “why aren’t you up on a roof yet,” “how much longer do I have to put up with you,” and “you are useless to me.”

The employee was laid off at the end of the season as usual and anticipated returning to work in the spring.

However, when the employee met the Case Manager from WorkSafeNB (again the employer did not attend) to discuss the return to work, he was told that there was no work available to him because the employer did not want him back at the workplace. That is, even though the employee was able and willing to work, he could not go back to the employer.

The employee was shocked by the employer’s unwillingness to get him back to work. He loved his job and respected his coworkers.

As a result of what transpired, the Human Rights Commission referred the employee’s complaint to the Board. The employee argued that the employer discriminated against him on the basis of physical disability contrary to the New Brunswick Human Rights Act.

What did the Board decide?

The Board cited the well-known three-part test regarding discrimination:

• Does the complainant have a characteristic protected from discrimination under the Act?
• Has the complainant experienced adverse impact?
• Was the protected character a factor in the adverse impact?

The Board accepted the employee’s evidence as sincere, reasonable and credible in the circumstances. It also found that the employer’s evidence was vague, non-specific and uncorroborated. In fact, the employer’s evidence was refuted by the documentation and WorkSafeNB witnesses’ testimony.

Most importantly, the Board noted that the employer knew that the employee had a disability and tried to make it intolerable for him, until the employee was terminated. Simply put, the Board stated, “There is no doubt that the reason for the termination of [the employee] was his physical health issues.”

The Board concluded:

• The employee had a physical disability.
• The employee was adversely treated because of the hostile and unacceptable acts of the employer.
• The disability was a factor in the adverse treatment, which included the termination and the bullying, harassment, humiliation and belittling.

Though the employee could make out a prima facie case of discrimination, the employer had nothing to offer to rebut it. As a result, the Board awarded the employee $10,000 for general damages, which included damages for injury to the employee’s dignity, feelings, self-respect and self-worth. The employer also had to participate in a one-day human rights training course on the duty to accommodate.

What can we take from this case?

As can be seen in this case, employers will pay the price for inappropriately treating employees with physical disabilities.

Employers are recommended to brush up on applicable human rights legislation and know the obligations that they must meet. It is completely unacceptable to discriminate against an employee-employers are clearly not allowed to bully their employees who are recovering and gradually returning to work.

The post Discrimination Based on Physical Disability Costly for New Brunswick Employer appeared first on Slaw.

In a succinct interim decision, 2024 HRTO 225 (CanLII), the Human Rights Tribunal of Ontario (Tribunal) explained when it might grant an application to expand the list of respondents to a human rights complaint. It’s not as simple as one might think. In this case, the complainant sought to add a former employer as a respondent in his individual, personal capacity, to her sex discrimination complaint. The targeted individual was a majority shareholder and director of the employer.

Unsurprisingly, the Tribunal explained the result fundamentally turns on the issue of fairness and the complainant’s underlying rationale for wanting the person added. After all, such tribunals exist for the purpose of providing a fair result within a reasonable timeframe, and the more parties that participate, the more complex things can become, which takes more time. For that reason, when a request to add a party comes before it, the Tribunal will ask three questions to help it decide.

First, could the allegations support a finding the proposed respondent violated the Ontario Human Rights Code? Second, does an individual need to be added if an organization is already a respondent? And third, would it be fair to add them?

Additionally, the Ontario jurisprudence points to the impact of paragraph 45(1) of the Human Rights Code, the vicarious liability provision, which says a corporation is deemed liable for anything done or omitted by an employee, agent, official or officer in the course of their employment. The Tribunal has previously said that when this provision applies and there’s no doubt about the employer’s ability to respond to the complaint, there is a strong presumption against adding the individual respondent. The situation could be different, however, if the individual’s actions are a central issue, as opposed to them merely following company policy. The former would be an example of a “compelling juridical reason” to add them.

Applying these points to the matter before it, the Tribunal decided not to expand the respondent list. It was a clear case of vicarious liability where the named corporate respondent had the ability to respond and, potentially, remedy any Human Rights Code violation, so there was no compelling reason to add the individual director.

Takeaways

The result of a complainant’s request to add a respondent is not a foregone conclusion. Various factors apply, but fundamentally, in its gatekeeper role, human rights tribunals are concerned with unduly complicating the matters that come before it. If the already-named parties are capable of guiding the tribunal to a fair and expeditious result, chances are the targeted individual respondent won’t be added.

The post Ontario Human Rights Tribunal Keeps Gate Closed to Individual Respondent appeared first on Slaw.

The Supreme Court of Canada recently decided in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) that the public is not entitled to see the mandate letters that the Premier of Ontario issued to his cabinet ministers in 2018. The SCC disagreed with the Ontario Information and Privacy Commissioner (IPC), the unanimous Ontario Divisional Court and the majority of the Court of Appeal for Ontario, all of whom concluded that the cabinet records exemption under the Ontario Freedom of Information and Protection of Privacy Act (FIPPA) did not apply to the letters.

In this post, I do not undertake a complete analysis of the SCC’s decision or those of the lower courts and of the IPC. Rather, I compare how the IPC and the judges view the nature of the mandate letters, how they fit into the process of policy-making and the application of FIPPA’s purpose.

A CBC journalist sought release of the mandate letters Premier Doug Ford had issued to his ministers in 2018. The Cabinet Office rejected the request, invoking section 12(1) of FIPPA. On appeal, the IPC ordered the letters released, the Divisional Court dismissed the government’s application for judicial review and the majority of the Court of Appeal dismissed the government’s appeal. The Supreme Court allowed the Attorney General’s appeal from the Court of Appeal’s decision.

(In fact, Global News published the 2018 letters in September of last year, having received them “from a source not authorized to release them”.)

Freedom of information and privacy (that is, cabinet confidentiality in this case) are both pillars of our democratic system of government. As the SCC explained,

Freedom of information (FOI) legislation strikes a balance between the public’s need to know and the confidentiality the executive requires to govern effectively. Both are crucial to the proper functioning of our democracy. This appeal concerns the balance between these two foundational principles. (SCC, para. 1)

In my view, the Supreme Court nudged the balance in the wrong direction.

Underlying the IPC’s analysis and conclusion is the view that the mandate letters would not reveal substantial cabinet discussions in the past or future. The Divisional Court and the majority of the Court of Appeal found the IPC’s interpretation reasonable. However, the dissent in the Court of Appeal considered it unreasonable and the SCC determined that its own interpretation of the application of FIPPA to the letters was the only reasonable one. (All adjudicators except Madam Justice Côté applied a reasonableness standard; Côté J. concurred in the result, but would have applied a correctness standard.)

The difference in conclusions about the publication of the mandate letters can be explained, I suggest, less by how the IPC and the judges assessed FIPPA than by how they view the “place” and “role” of the letters in the democratic process, as well as how they view the democratic process itself.

FIPPA: PROVISIONS AND ANALYSIS

The purpose of FIPPA and the treatment of exemptions are set out in section 1:

(a) to provide a right of access to information under the control of institutions in accordance with the principles that,

(i) information should be available to the public,

(ii) necessary exemptions from the right of access should be limited and specific…. (my emphasis)

Section 12 of FIPPA provides the circumstances under which a cabinet record should not be disclosed:

12 (1) A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees, including,

(a) an agenda, minute or other record of the deliberations or decisions of the Executive Council or its committees;

(b) a record containing policy options or recommendations submitted, or prepared for submission, to the Executive Council or its committees;

(c) a record that does not contain policy options or recommendations referred to in clause (b) and that does contain background explanations or analyses of problems submitted, or prepared for submission, to the Executive Council or its committees for their consideration in making decisions, before those decisions are made and implemented;

(d) a record used for or reflecting consultation among ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;

(e) a record prepared to brief a minister of the Crown in relation to matters that are before or are proposed to be brought before the Executive Council or its committees, or are the subject of consultations among ministers relating to government decisions or the formulation of government policy; and

(f) draft legislation or regulations.

Accordingly, cabinet records are not automatically exempted by virtue of being cabinet records, but only “where the disclosure would reveal the substance of [cabinet] deliberations”. The list following the opening words identified cabinet records that must not be disclosed when they “would reveal the substance of [cabinet] deliberations”. However, because of the word “including”, there may be other records that are not listed and that are similar to those in the list that may also be excluded if they satisfy the opening words of section 12(1).

There was disagreement about how to interpret the relationship between the opening words of section 12(1) and the list.

The IPC focused on the opening words, since Cabinet Office relied on the opening words only, not claiming that the mandate letters fit any of the categories of records listed:

…[T]he opening words of section 12(1) are not intended to encompass the outcome of the deliberative process in the formulation of government policy – i.e., the policy initiatives themselves. Section 12(1) is designed to protect deliberative communications occurring within the process by which the policies of Cabinet or its committees (and by extension, in this case, the Premier) are formulated. (IPO, para. 104)

(Despite the Cabinet Office’s reliance on the opening words, the dissent in the Court of Appeal observed, “It is no stretch to apply [the] words [in ss. 12(1)(d) and (e)] to the mandate letters” (CA, dissent, para. 186).)

The IPC noted, “The use of the term ‘including” in the introductory wording of section 12(1) signifies that any record that would reveal the substance of deliberations of the Executive Council (Cabinet) or its committees, . . . qualifies for an exemption under section 12(1)” (IPO, para. 9). Even so, what appears to be a very broad exemption is somewhat narrowed, states the IPC, by the requirement that “the institution must provide sufficient evidence to establish a linkage between the content of the record and the actual substance of Cabinet deliberations” (IPO, para. 11).

The SCC’s dissatisfaction with the IPO rests in part on his exclusion of “outcomes” from section 12(1). This is not quite what the IPC did. He would exclude outcomes if they could be linked to a cabinet deliberation. As the Divisional Court said,

The characterization of something as an “outcome” should not be understood necessarily to mean that disclosure of the thing cannot be revelatory of the “substance of deliberations.” All the IPC concluded in this Decision, however, is that the “outcome” of the Premier’s Letters did not, as a matter of fact based on the evidence in this case, disclose the substance of any deliberations of the Premier or of Cabinet. (Divisional Ct, para. 25)

On this point, the SCC accepts that the IPC did not apply the requirement to link the record to actual deliberations test (SCC, majority, para. 54).

The adjudicators also viewed the mandate letters differently.

Importantly — crucially, in my view — the SCC sees the mandate letters as the beginning of the process: “The priorities communicated to ministers by the Premier at the outset of governance are the initiation of Cabinet’s deliberative process, and are subject to change.” (SCC, majority, para. 52)

The IPC quoted the CBC’s submission with approval: “‘The mandate letters are not presented to Ministers in order to kick off a debate about whether they should be adopted, or amended or rejected. They are orders – job descriptions if you like.'” (IPO, para. 79)

The IPC’s determination that the letters were the “end point” of consideration by the premier misses the point, in the SCC’s view, since “[d]isclosure of the Premier’s initial priorities, when compared against later announcements of government policy and what government actually accomplished, would reveal the substance of what happened during Cabinet’s deliberative process.” (SCC, majority, para. 53)

BALANCING CABINET CONFIDENTIALITY AND PUBLIC ACCESS TO INFORMATION

What really differentiates the SCC analysis from that of the IPC, the Divisional Court and the majority of the Court of Appeal is the SCC’s top-heavy emphasis on the importance of cabinet confidentiality, with little regard for the public’s right to information. This reflects the dissent in the Court of Appeal’s tour through the development of executive authority.

Thus the SCC writes,

…[The IPC] did not engage meaningfully with the legal and factual context against which s. 12(1) operates — in particular, constitutional conventions and traditions surrounding Cabinet confidentiality and Cabinet’s decision-making process, including the role of the Premier within that process. Cabinet confidentiality creates conditions necessary to ensure an effective government. The Commissioner did not consider a key rationale underlying the convention: promoting the efficiency of the collective decision-making process. His failure to grapple with the broader constitutional dimension of Cabinet confidentiality led him to an overly narrow interpretation of s. 12(1). He excluded “outcomes” of the deliberative process, without regard for the impact that premature disclosure of policy priorities at an early stage of the process may have on the efficient workings of government.” (SCC, majority, para. 7)

In particular, the IPC failed to consider two conventions: “the nature of the Cabinet decision-making process and the Premier’s role as head of Cabinet within that process” (SCC, majority, para. 45).

The SCC also maintains that the IPC did not appreciate or take sufficiently into account the connection between the premier and cabinet. Again, this is not quite accurate, as the SCC itself notes:

The IPC ostensibly recognized the role of the Premier in Cabinet’s decision-making process, citing past IPC precedent which recognized that “by virtue of the Premier’s unique role in setting the priorities and supervising the policy making, legislative and administrative agendas of Cabinet, the deliberations of the Premier . . . cannot be separated from the deliberations of the Cabinet as a whole”. (SCC, majority, para. 50 [citation omitted]

The SCC continued, “The communication of the Premier’s initial views to other members of Cabinet are part of Cabinet’s decision-making process, and will be revealing of the substance of Cabinet deliberations when compared against subsequent government action. This context is crucial.” (SCC, majority, para. 57) As the SCC notes, “cabinet deliberations” occur in a fluid way, not merely in the cabinet room, but also in informal and ad hoc conversations.

The SCC stated that cases about cabinet confidentiality, which plays a “key role in the proper functioning of our Westminster system of government” are important in relation to “the stability and legitimacy of our democracy”. “Cabinet confidentiality both enables the proper functioning of responsible government by promoting collective ministerial accountability to the legislature and affords the executive the operational space it needs to function effectively”. (SCC, majority, para. 60; citations omitted].

In short, in the SCC’s view,

… “[D]eliberations” understood purposively can include outcomes or decisions of Cabinet’s deliberative process, topics of deliberation, and priorities identified by the Premier, even if they do not ultimately result in government action. And decision makers should always be attentive to what even generally phrased records could reveal about those deliberations to a sophisticated reader when placed in the broader context. (SCC, majority, para. 62)

The Supreme Court placed more or less all of its eggs in the cabinet confidentiality basket. Put another way, it centred its analysis on the exemption clause rather than the presumption clause.

However, one of the principles of FIPPA is that “information should be available to the public” (emphasis added); we can call this the presumption underlying the Act. Another principles is that exemptions should be “necessary” and “limited and specific” (FIPPA, s.1). Section 12(1) falls under “Exemptions” and “Cabinet Records”. Not all cabinet records are to be disclosed, although the list under section 12(1) is extensive and broad. This reflects the importance of cabinet confidentiality in our system of government. All adjudicators involved in this case appreciate that cabinet confidentiality is a cornerstone of responsible government, permitting discussions that are open and possibly argumentative. But exemptions must be viewed in the context of the entire purpose of the legislation.

HOW DO MANDATE LETTERS FIT INTO ALL OF THIS?

Government policies or prospective policies will be revealed at different points in the political cycle. Political parties issue platforms meant to convince voters to support them. When a party successfully forms government, it releases a speech from the throne and a budget, both of which identify its priorities in some detail. In all cases, the public is encouraged to think that the policies, ideas and directions forming the platform, the speech from the throne and the budget (which may resemble each other to a great degree or not particularly) is what the government will do and how it will govern.

How do mandate letters fit into this process? The premiers of several provinces release mandate letters. I use Manitoba and Alberta as examples of how the release of mandate letters fit into the various ways governments announce their policies. There is no prescribed order.

With respect to the letters at issue in this case, the Progressive Conservative Party of Ontario released its election platform on May 30, 2018. The election was held on June 7th; the throne speech was on July 12th and Premier Ford issued his mandate letters that month. The budget speech did not take place until April 11, 2019.

Following the Ontario election on June 12, 2014, Premier Kathleen Wynne held the budget speech on June 14th (this was the same budget she had introduced that had resulted in the election). The throne speech was on July 3rd and she released letters publicly on September 25th.

The last Manitoba election was held on October 3, 2023; the NDP had released its platform on September 28th. The premier released mandate letters on different dates, October 26th, 30th and 31st, that is, before the throne speech on November 21st. The government will release its first budget in March 2024. The current Alberta premier also released her mandate letters at different times during July and early August, 2023 before the throne speech (October 30th 2023), following the election on May 29th and the budget will be released in February 2024.

The freedom of information and privacy legislation in Alberta and in Manitoba exempt cabinet documents on much the same basis as does Ontario’s legislation. Manitoba’s statute contains much the same list of specific exemptions as Ontario’s.

Cabinet Office asserted that mandate letters from other governments were high level, while those of the Ford government were detailed and directed at each minister (IPO, para. 49). Current mandate letters from other jurisdictions are actually similar to the 2018 Ford letters: general comments and specific instructions. (For one commentator’s cynical view of the value of the current Trudeau government’s mandate letters, at least, compared to mandate letters of years ago that were not public, see Eugene Lang, “Ministerial mandate letters: another nail in the coffin of cabinet government”.)

Those opposed to releasing mandate letters suggest, as does the dissent in the Court of Appeal, that requiring the release of the letters will have negative effects: “draft[ing] mandate letters for purely public consumption as others have done; t[ying] mandate letters even closely to the Cabinet decision-making; or giv[ing] up drafting mandate letters altogether.” (CA, dissent, para. 100) The reality in other jurisdictions does not appear to support these prognostications.

While mandate letters are prepared for ministers (and sometimes other government entities), they also provide a means by which the public can assess the government. This does not mean all the objectives will be met; there are many reasons why they might not be, including external factors, but the letters are the government’s own statements about what the government hopes to achieve. The public is entitled to know what the government hopes to achieve and to assess it on then government’s own statement of priorities. The public also has a right to know whether the premier’s instructions align with the government’s election promises, their public statement of intentions in the throne speech and how they are allocating taxes as revealed in the budget.

As the majority in the Court of Appeal observed, the IPC “recognized that s. 12(1) itself strikes a balance between a citizen’s right to know what government is doing and a government’s right to consider what it might do behind closed doors” (CA, majority, para. 82; emphasis in original).

CONCLUSION

Freedom of information and privacy legislation is meant to balance the public’s right to know about government activities and the ability of government to function effectively. Democracy can work only if the public has the knowledge required to make decisions about decision-makers and to assess their effectiveness, their ethics and their adherence to basic democratic and constitutional principles. And yes, democracy also means that government is able to function effectively, not immune from what is sometimes in the words quoted by the dissent in the Court of Appeal,

“[The premature disclosure of Cabinet confidences] would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind.” (CA, dissent, para. 164; citation omitted)

Not everyone believes that the public has a right to engage with government with respect to what the government says it will do. Cabinet Office cited the SCC that Cabinet confidentiality serves “to avoid ‘creat[ing] or fan[ning] ill-informed or captious public or political criticism’”. (IPO, para. 21, citing Babcock v. Canada (Attorney General) (dealing with disclosure under the Canada Evidence Act in the course of litigation), in turn citing Carey v. Ontario).

The Supreme Court’s concern that uninsulated “[s]pheres of confidentiality” are at risk from “‘undue external interference'” (SCC, majority, para. 60) does not consider that transparency might actually reveal whether the government’s announced intentions have been subverted by “undue external interference”.

One might conclude that the exemption of cabinet confidentiality outweighs the right of the public to information about government activity. But it is not reasonable to do so without giving proper consideration of the right of the public to know how well what the government says it will do accords with what it does. Public criticism, whether one agrees with it or not, is a fundamental element of a democratic system. And while much of government activity does need to remain secret, at least in the early stages, the public requires the knowledge to determine whether changes in government intentions raise concerns.

Governments eager to promise the public the moon when they are running for office and happy to explain their plans in the Throne speech once they are elected have an obligation when things get real and the premier gives his or her ministers their marching orders to be open about their actual intentions. Mandnate letters are more akin to the various ways governments disclose their plans than they are to the documents listed in section 12(1). Even if that is not the case, however, an analysis that fails to give proper weight to the presumption of freedom of information under FIPPA is not reassuring about the judicial commitment to democracy.

The post The Law and Democracy: The Example of Mandate Letters appeared first on Slaw.

For clients (or counsel) who reach a high level of frustration, the remedies to encourage or compel IRCC to make a decision on their applications are limited. One remedy is to request an Order of mandamus by the Federal Court of Canada. The legal test to obtain a positive decision from a Federal Court judge is onerous, as it is designed to be. The Court’s role to oversee decisions by IRCC Officers is extremely narrow. In those cases, however, where IRCC Officers have crossed that line and the legal test for the mandamus is met, the Court may also punish IRCC and award costs. It seems, the Court increasingly has an appetite to award costs, thus sending a clear message to the federal government and its Officers.

High Cost of Litigation

Access to justice has plagued the legal profession. You may have read other pieces in this space that refer to potential solutions, including contingency fee billing. In immigration, IRCC made the decision many years ago to allow Immigration Consultants to represent applicants, thus opening up the market beyond members of the Bar. Many consultants, however, use shady business practices, and their clients often become victims. These victims, or the ones who have learned a lesson, will then find counsel to fix the mess. In some cases, the result is that counsel has no other remedy than to go to Federal Court to request judicial review.

Even among immigration lawyers, the vast majority of counsel avoid Federal Court litigation. The high amount of work involved, the strict and draconian Rules of the Court and the high level of stress involved in these files leads to many counsel to avoid taking on these matters. For those of us who fight these battles, we are acutely aware of the gross imbalance between the resources of private counsel and the resources at the Department of Justice (DOJ).

In my office, we will often have a staff meeting before we agree to do this work. Everyone on staff needs to be prepared if we have to do an emergency Stay Motion or if CBSA issues a Deportation Order on a Friday afternoon while we are winding down. Many immigration boutiques simply do not have the extra bandwidth to take on this work.

Backlogs and Staffing

Another root cause of the long processing times is the significant backlogs across the system. Canada is often reported as a top destination country in the world. The number of candidates in the various queues, including the Express Entry pool, the provincial nominee pools, or the stacks of applications at Visa Offices has created a Sisyphean workload at IRCC.

Recently, here in Manitoba, the MPNP program announced that staff shortages in 2023 led to more than 2,000 nomination certificates not being issued to applicants – completely wasted. 2023 was highly unusual for the MPNP program. As I stated to CBC News, in previous years, the MPNP program has used all its certificates and, in fact, the high demand in Manitoba has led the MPNP to take and use certificates from other provinces.

I remember back in 2016, the newly appointed Premier of Manitoba promised to eliminate the backlog. Clearly, he did not have an advisor who was well-informed prior to making this promise.

As reported by the Immigration Advisory Council (I gave testimony to the IAC), the MPNP was issued 6,275 certificates in 2021 (100% allocated) and 6,367 in 2022 (100% allocated). The 9500 certificates issued in 2023 was a huge increase by IRCC to the MPNP program and, therefore, the fact that staff at MPNP were not able to process the high number is not surprising. I would argue that the fact that MPNP processed 7,348 in 2023 – almost 1,000 more applications than the previous year is a testament to good management.

Remedies

The question becomes: when an application is dragging on and on, what remedies are available to counsel? Good immigration lawyers, in my view, are very reluctant to start mandamus proceedings. Even without these applications, the Court is dealing with a flood of Applications for Leave and Judicial Review (ALJR) based on the high numbers of refusals by Officers or by IRB Members. In contrast to situations that may lead to an Order of mandamus, these refusals are matters that have been decided. The individuals likely have no other remedy. The Mandamus process adds further work for the Court to urge Officers to simply do their job.

From the above, you can probably imagine that I am reluctant to proceed with Mandamus proceedings. Typically, I try to talk potential clients out of taking this action. If they insist and I can see merit, then we will help.

In my practice, typically our Mandamus files do not end up at a hearing. In 2023, every one of our Mandamus files was resolved with the assistance of the Department of Justice (DOJ), communicating the situation with their client (IRCC), and that was sufficient to get our client’s application back on track. This is likely the result of sympathetic and reasonable lawyers in the Prairie Regional Office of the DOJ as much as the facts.

Of course, many Mandamus proceedings end up before a Federal Court judge. They are then forced to spend the time to review the application history, review the 8-step legal test set out in Apotex and make a decision re the duty to perform.

Costs & Special Reasons

Increasingly, I believe Federal Court justices are expressing their frustration with the Officers at IRCC by increasing the number of decisions where costs are ordered against the government. I remember when I started in 2008, getting costs was extremely rare. Keep in mind, this is purely my anecdotal experience. If any readers are aware of any data regarding the frequency of Federal Court justices awarding costs, please add this information in the comments below.

In 2021, Steven Meurrens provided a summary of some past cases at the Court where costs were awarded or where a judge considered a costs award. For me, the He decision in 2021 from Justice Sadrehashemi stands out. This was an ALJR of a woman who was applying to work as a caregiver for two (2) children in Vancouver. The Service Canada Officer had already granted the LMIA (this is often the most difficult step) and when the matter was before the IRCC Officer, the case dragged on for more than three (3) years. To be clear, one of the children who needed care aged from 10 to 13 while they were waiting for a decision. Costs of $1,500 were awarded against IRCC.

Recently, Justice Heneghan in the Al-Mashtouli decision also awarded $3,500 to the Applicants as well as an Order of mandamus. In this decision from 2024, the Court ordered IRCC to process the application within 120 days of the judgment. Kudos to Barb Jackman (my former immigration law professor from Queen’s) and all the work done by her office to get this judgment!

Trends for 2024

In 2023, IRCC Minister Marc Miller inherited a mess and he has been making difficult decisions. From my point of view, much more work is necessary to add clarity and consistency within the immigration system. Previous efforts to publish “average” processing times and “progress bars” online have added even more confusion. I have spoken with applicants whose “progress bar” shows 99% complete for months and they have no idea what they need to do to finalize the application. I expect IRCC will be making more difficult decisions to address the high level of frustration.

On the Court side, I also expect more orders for costs to Applicants. I believe judges at the Court are also frustrated with the high level of immigration files and this is one way for them to send a message to IRCC.

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In 2023 CanLII 111663 (BC LA), a British Columbia successive employer learned that it couldn’t take over with a totally clean slate. It ran into a roadblock when it tried to implement its plan to fire some incapacitated workers who were unlikely to ever return. While legal, perhaps, it ran up against the principle of estoppel, making it unfair to proceed as it wished. The case is a cautionary tale to unionized employers looking to change course on important issues.

Background

For more than 20 years, the employer did not formally request medical updates from employees receiving LTD benefits, nor did it fire the employees simply by virtue of the benefit period stretching past two years. The evidence showed that no matter the length of absence, the workers’ jobs were secure. Then, following a round of negotiations, the employer determined it would change its practice, cutting loose six employees at the two-year mark, and three more who had been absent for nine, eight and three years, respectively. Not surprisingly, the union took umbrage, filing a grievance claiming the employer was estopped from terminating the employees. Estoppel is a legal doctrine that prevents someone from asserting a right or claim that is contrary to their previous actions or statements. In the context of employment and labour law, estoppel can play a significant role in holding employers accountable for their actions or promises made to employees.

The arbitrator’s decision

The arbitrator in this case accepted the Union’s argument that past practices and other types of extrinsic evidence could help interpret the intent of the parties regarding certain clauses in the agreement. However, the arbitrator also considered other interpretive rules, such as the importance of clearly expressing significant promises and the presumption that parties are aware of relevant legal precedents, as outlined in the Pacific Press case, a 1996 BC arbitration decision appealed to the Court of Appeal for British Columbia. The key issue at hand in our successor employer case involved the eligibility language in article 10.1 of the collective agreement, specifically in relation to an employer’s right to dismiss for non-culpable causes related to long-term absences. The arbitrator argued that a reasonable interpretation, considering the law on non-culpable discharge and the rule about important promises being clearly expressed, suggested that the clause intended to exclude employees not scheduled to work at least 20 hours per week. The eligibility for benefits was seen to extend to those on leave, in line with being “customarily scheduled. It didn’t apply, however, to those who had no reasonable likelihood of return. That, said the arbitrator, would be a major concession by the employer; it would have to be clearly stated. Despite the employer’s past practice of not terminating employees on LTD and continuing benefit coverage, the arbitrator maintained that the term “employee” was crucial, subject to dismissal for cause, including non-culpable cause. The arbitrator emphasized that a promise to relinquish the right to terminate for well-established grounds of non-culpable cause would be considered a very important promise and needed to be clearly expressed. The arbitrator trained his keen analytical eye to the question of estoppel, citing the essential elements outlined in the case law. Basically, the modern estoppel doctrine aims to prevent unfair harm by requiring three conditions: clear representation by one party that it won’t rely on legal rights, reliance by the second party and real harm if the first party changes its position. The arbitrator acknowledged the employer’s contention that the elements of estoppel were not met. The employer argued that there was no meaningful past practice, but the arbitrator disagreed, pointing to the agreed statement of facts indicating the employer’s practice since 2001 of not terminating employees on LTD. The employer’s objections to the relevance of past practice to the collective agreement and the weight of past practice for a successor employer were also addressed. The arbitrator held the claimed estoppel related to a specific and important benefit provision, article 10.2, and that past practice did not amount to indulgences or gratuitous benefits. Regarding the employer’s assertion that any past practice before its acquisition of the operation was unknown, the arbitrator sided with the union, suggesting that the employer should have been aware or, at the very least, ought to have known at a senior level. Ultimately, the arbitrator found that the employer’s active maintenance of the practice of retaining long-term absent LTD recipients and providing them access to the benefit package constituted an unequivocal representation. The arbitrator concluded there had been detrimental reliance by the union and the affected employees, estopping the employer from changing this practice until the union had the opportunity to negotiate in the next bargaining round.

Key takeaways

First, the case highlights that even after a change in ownership, a successive employer may not start with a clean slate and can be estopped from altering established practices, cautioning unionized employers against abrupt shifts in crucial policies. The arbitrator’s decision underscores the significance of clear expressions in employment agreements and the potential impact of estoppel, which can arise by the parties’ conduct, even when they are silent.

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Background

The grievor worked as a court clerk and registrar. The job entailed working closely with a judge, endorsing information, and tracking and securing exhibits. Essentially, whenever the judge was in the courtroom, the clerk was also expected to be there. Should an emergency arise, the clerk had the responsibility of pushing a panic button and calling 911. Clearly, there was a strong safety component to the clerk’s presence. On the day in question, the clerk had a personal matter to attend to at 1 p.m., his normal lunch time. But court schedules can be unpredictable, and this day, a matter was to be brought into court at 1 p.m. for a brief period. This created a problem for the employee, who, unbeknownst to anyone else, was dead-set on leaving at 1 p.m. for his errand. Against policy requiring notice as early as possible, he hadn’t bothered to notify his supervisor that morning or make any arrangements for coverage during his absence. Then, just minutes before 1 p.m., he sent his supervisor word that he needed to be relieved. While court was in session, he got up and was on his way out when the judge asked him if he was being replaced. He lied and assured her he would be, leaving the judge to do the clerk’s tasks. Then he went to his supervisor’s office and created a ruckus, yelling, flailing his arms and blocking the door. For this behaviour, he was suspended for seven days, prompting him to file a grievance.

The Board’s decision

Despite some differences in the witnesses’ accounts, there was enough basis for the Board to find the employee’s behaviour was inconsistent with the employer’s respectful workplace policy. It was also insubordinate. Furthermore, the significant mitigating factor of 13 years on the job without incident were not enough to offset the severity of his one-time misconduct. The Board focused on arbitral direction not to fine-tune an employer’s choice of discipline if the measure is within the range of reasonableness. Here, the Board said it fell within the range, but it might have been reduced had the grievor taken any responsibility for what happened instead of shifting the blame onto his supervisor.

Key takeaways

It’s surprising to read of a grievor who so brazenly flouts workplace rules, takes no responsibility for their actions and seeks to overturn the discipline that was imposed. The crucial lesson here is that a combination of dishonesty, blame-shifting and a lack of remorse can significantly undermine an employee’s ability to challenge disciplinary measures. In this case, the employee’s absence without notice and disruptive behaviour led to a justifiable seven-day suspension. The takeaway for employers is the importance of consistent enforcement of workplace policies, especially when safety considerations are involved. Additionally, when meting out disciplinary measures, employers should remain within the range of reasonableness for a given offence based on its unique factual matrix, including any aggravating and mitigating factors.

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