In Peel (Regional Municipality) v CUPE, Local 966, (2023)354 L.A.C. (4^th), the Union sought a preliminary order directing the Employer to disclose gender incumbency data.  The Employer had refused to provide the data, arguing that the Pay Equity Act is silent as to what pay equity maintenance duties include.  The Employer further argued that, once pay equity is achieved, the obligation to maintain pay equity is the sole responsibility of the Employer and that the Union is only entitled to information to the extent necessary to demonstrate that pay equity has been achieved and maintained.

CUPE argued that, while the Pay Equity Act is silent on the requirement to disclose pay equity information to a Union, the jurisprudence affirms the Employer’s obligation to disclose pay equity information in the context of the duty to bargain in good faith as well as the pay equity maintenance provisions.  The Union specifically relied on section 7 of the Act (which prohibits an employer or bargaining agent from bargaining for or agreeing to compensation practices that, if adopted, would cause a contravention of the Act) and argued that, because section 14.1 requires an employer to negotiate with the bargaining agent where there is a changed circumstance (e.g., a change in the gender predominance of comparator jobs), the Employer’s refusal to disclose the data potentially prevented the Union from meeting its own obligations to members with regard to pay equity maintenance.

Arbitrator Hayes agreed with the Union and directed the Employer to provide the Union with the requested gender incumbency data for all job classifications listed in the parties’ Pay Equity Maintenance Summary.  If you have questions about pay equity, please contact Samantha Lamb at slamb@jewittmcluckie.ca.

In L.N. v Ray Daniel Salon & Spa, 2024 HRTO 179 (CanLII), the Tribunal dealt with an application alleging discrimination in employment based on sex, sexual harassment, sexual solicitations or advances, citizenship and reprisal.  The applicant was a refugee who had fled Iran after experiencing intimate partner violence and recently arrived in Canada.  She was hired by the respondent who spoke Farsi, the applicant’s primary language.  The Tribunal found that, during the course of her employment, the respondent engaged in repeated sexual harassment of the applicant, including three incidents of egregious sexual assaults and physical assault.  He also took advantage of her precarious immigration status and paid her well below the minimum wage because she lacked permanent citizenship and threatened to report her to the police when she tried to enforce her rights by asking to be paid minimum wage.  The Tribunal also found that the respondent engaged in reprisal against her when he filed a lawsuit against the applicant for bringing forward what he described as a “false claim” to the Tribunal.  In total, the Tribunal ordered the respondent to pay $180,000 in damages for injury to the applicant’s dignity, feelings and self-respect which is reportedly the second highest damages award in the Tribunal’s history.  In addition, the Tribunal ordered mandatory human rights training for the managerial staff in the workplace and required the decision to be posted in the workplace.  The Toronto Star has reported that the respondent intends to appeal the decision.

Randy Slepchik successfully represented CUPE 503 in an “LTD Offset” policy grievance filed against the City of Ottawa.  The Union grieved that the Employer was improperly counting time spent by employees working in accommodated positions as time that would reduce their entitlement to Long Term Disability benefits during their own occupation period.  In the decision, an Arbitration Panel chaired by Arbitrator Brian Keller found that the Employer should not have reduced the “own occupation” period as the employees were actively employed and in receipt of wages.

Ottawa(City) v Canadian Union of Public Employees, Local 503, 2023 CanLII 50239 (ON LA)

Dina Mashayekhi defeated a preliminary motion brought by Carleton University when it tried to argue that Arbitrator Kevin Burkett had no jurisdiction to make a determination about a salary adjustment for members of the Carleton University Academic Staff Association.  Arbitrator Burkett sided with the Union on the basis that section 48(1) of the Ontario Labour Relations Act requires there to be an adjudicative process chaired by a neutral third party and that the procedure followed by the University did not meet that test.

Carleton University v Carleton University Academic Staff Association, 2023 CanLII 12176 (ON LA)

Samantha Lamb and Dina Mashayekhi represented the Carleton University Academic Staff Association in Superior Court in a successful challenge to Bill 124, the Provincial Government’s wage restraint legislation.  In the challenge, CUASA, along with a host of other unions, argued that the Act infringed on their members’ freedom of association, freedom of speech and equality rights under the Canadian Charter of Rights and Freedoms.  Not only were the applicants successful in establishing that the legislation violated their freedom of association under section 2(d) of the Charter but that it was not saved by section 1 of the Charter.  The Government is currently appealing the decision.

Ontario English Catholic Teachers Assoc. v. His Majesty, 2022, 2022 ONSC 6658 (CanLII)

On Thursday, October 26^th John McLuckie will be one of the moderators for the Lancaster House Panel discussion addressing trends and changes to worker’s compensation law.

Jewitt McLuckie is proud to announce that University of Ottawa Law Student Samarah Arafat will be joining us for the 2021-2022 articling term.

Samarah’s background includes research into minimum wage policy in the Asian garment industry, volunteering with Women at the CentrE, where she focused on the intersection between the criminal justice system and women’s rights, as well as advocacy as a caseworker at the University of Ottawa Legal Clinic. Samarah also placed as a semi-finalist in the Nelligan O’Brien Payne Moot Competition.

We hope you’ll join us in warmly welcoming Samarah to Jewitt McLuckie!

Photo by Belinda Fewings on Unsplash

A bus driver from Oakville, Ontario has recently won a workplace discrimination case against the province. Ms. Di Cienzo is a cancer survivor who lost her right eye due to the disease. Ms. Di Cienzo was a bus driver for Oakville transit, and her position required she hold a Class-C driver’s license. A requirement for someone to hold a valid Class-C driver’s license is that the licensee must have vision in both eyes. As a result of this, the province revoked her Class-C driver’s license, and Ms. Di Cienzo subsequently lost her job.

In Di Cienzo v. Attorney General of Ontario, Ontario’s Superior Court held that the provincial vision regulations regarding Class-C drivers licenses were unconstitutional. The court found that the regulations perpetuate a stereotype about the abilities of monocular individuals to safely drive commercial vehicles, including buses. The court further highlighted that the regulations, which were enacted under the auspices of safety, are arbitrary and have no connection to safety.

The province highlighted that the prohibition against commercial bus drivers obtaining a Class-C driver’s license was reasonable due to the safety risks involved. The court reviewed expert evidence from both sides of the argument and ultimately found that “the expert evidence and studies reviewed overall do not support, and in some cases contradict, the supposition that there would be a reasonable level of correspondence with the safe-driving capacities” of monocular individuals.

Many other provinces allow individuals to undergo special assessments to determine their fitness to drive, instead of Ontario’s blanket ban on monocular commercial drivers. The court points out that Ontario is not entitled to be out of step with other provinces “when its divergent choice violates constitutional rights.” The court highlighted that there is no evidence to suggest that the other Canadian provinces do not have high standards of road safety.

Based on their analysis, the court found the regulations regarding class-C drivers licenses were a violation of Ms. Di Cienzo’s charter rights. The court further ruled that the charter infringement was not demonstrably justified. Because of this, the court decided that the regulations were unconstitutional, and gave the province one year to establish new regulations that uphold road safety in the province, while not infringing the charter rights of Ontarians.

This case brings to mind a similar case from 2009 in which Ontario’s Divisional Court dismissed an arbitrator’s decision regarding a paramedic’s vision accommodation. In Corporation of Simcoe County v OPSU Local 911, a paramedic developed vision issues that interfered with the requirement that all paramedics hold a valid class-F driver’s license. In that case, the court ruled that the vision requirement was an essential element of the job and that accommodating this disability could not be done without undue hardship to the employer. As a result of this recent Di Cienzo decision, cases involving vision accommodations in the workplace may soon see differing results. The court has ruled that if the charter rights of an individual are infringed, and that infringement is not justified, the regulation will not stand.

Reference: Di Cienzo v. Attorney General of Ontario, 2020 ONSC 4347 (CanLII), Di Cienzo v. Attorney General of Ontario

Article by Cole Boucher

Image credit: Reflection in the side mirror of bus.  Road trip by Marco Verch Professional Photographer and Speaker via Flickr under Creative Commons Licence

UPDATE:

Dear friends and clients,

In an effort to minimize community spread of the COVID-19 virus in Ottawa, the partners have made the decision to close our office, but we continue to provide legal services remotely.

Voicemails left at 613-594-5100 will be checked remotely, so please feel free to leave us a message or send an email.  Check the Team page to look up emails.  We thank you for your patience and cooperation as we all take what steps we can to self isolate and wish everyone safety, good health and serenity as we work together to overcome this health emergency.

Sincerely,

The JMA Team

Photo by Benjaminrobyn Jespersen on Unsplash