Friday, July 15, 2016

Where the Wilson v. AECL Dissent Went Wrong

I posted yesterday about the new SCC decision in Wilson v. AECL, finding in favour of the consensus interpretation of the Canada Labour Code, that Division XIV of Part III has the impact of making not-for-cause terminations impermissible in certain cases.

As I explained yesterday, there was a three-judge dissent which found that the adjudicator's decision should be reviewed on the standard of correctness (which makes sense to me), and that the adjudicator's decision was, in fact, incorrect.  This bears some deeper analysis.

As a preliminary remark, I should highlight that the dissent frequently refers to the question as being whether Division XIV has the effect of "prohibiting all dismissals without cause".  Respectfully, that's a drastic oversimplification of the question, which has an important impact on the reasoning.  There is no question that, even for employees that fall within the Division XIV framework, the not-for-cause dismissal framework continues to apply for dismissals arising from a 'lack of work' or 'discontinuance of a function'.

What is Unjust Dismissal?

This question is at the crux of the case.  Non-lawyers will often confuse the term "unjust dismissal" with the similar-sounding term "wrongful dismissal".  Yet whereas "wrongful dismissal" is well-defined at law, meaning a dismissal in contravention of the implied or express contractual terms surrounding dismissal, "unjust dismissal" is quite devoid of definition altogether.  It's a construct that, to my knowledge, only exists under Division XIV of the Canada Labour Code.

The language in the Code is fairly simple:  A non-managerial non-union employee who has been dismissed, after at least 12 months of employment, is entitled to ask for a reason - this differs from the common law, where employers have no free-standing obligation to give a reason for dismissal (though one might argue about how the duty of good faith and fair dealing would apply to such an issue).  If the employee feels that the dismissal is 'unjust', he or she may make a complaint.  Following a brief investigation process, the matter may be referred to an adjudicator; if the adjudicator determines that the dismissal was 'unjust', there's a wide range of remedies available, including lost income damages and reinstatement.

So what does it mean for a dismissal to be 'unjust'?

That is, perhaps, less clear.  There's a clear exclusion for employees dismissed due to lack of work.  I think we can safely assume that a 'just cause' termination generally isn't going to be 'unjust'.  But where exactly is the line to be drawn?

The Wakeling Interpretation

Adjudicator Wakeling, now a Judge on Alberta's Court of Appeal, decided several cases on this issue, and essentially led the movement to the interpretation favoured by the dissent.

In essence, it appears that he viewed Division XIV as creating a statutory procedure for redress, without modifying substantive rights.  Bearing in mind that most employees are entitled to some form of contractual or common law notice, he regarded Division XIV as primarily being a means of redress for the failure to give such notice - thus, "unjust dismissal" is basically indistinguishable from "wrongful dismissal".

As Associate Dean Ross of the University of Alberta put it in Jalbert v. Westcan Bulk Transport Ltd.:
Adjudicator T. Wakeling determined [in Knopp v. Westcan Bulk Transport Ltd.] that for a dismissal to be unjust, there must not only be a lack of just cause, but also a failure to provide the employee with “the more generous of the dismissal packages required by sections 230(1) and 235(1) of the Code and at the common law”... . He was of the view that the Code’s preservation of common law remedies, and its lack of an express provision giving employees a “right to the job” meant that s. 240’s reference to “unjust” dismissal should be interpreted in the manner consistent with common law principles, and not in a manner that would create a “drastically different legal order”.
The role of the reinstatement remedy, on the Wakeling interpretation, is less clear.  It's clear that he neither viewed reinstatement as a right nor presumptive right, and he even periodically had his hand slapped on judicial review for not providing adequate reasons.  He himself once owned criticisms from the opposing camp about some adjudicators denying reinstatement on "flimsy" grounds, acknowledging that despite having found many dismissals to be 'unjust', "I have never ordered a former employer to reinstate a former employee."

The Consensus Interpretation

Wakeling, Ross, and a handful of others were among a small minority who viewed the Code in this light.

Most adjudicators would find that, subject to the exceptions indicated above, most not-for-cause dismissals were 'unjust', and reinstatement was a presumptive remedy.  When it went to court on judicial review (before the Wilson case, of course), while there was a great deal of deference to adjudicators, the courts tended to side against the Wakeling interpretation.  For instance, in AECL v. Sheikholeslami in 1998, Justice Letourneau remarked:
It is true that reinstatement is not a right even after a finding of unjust dismissal, but, as I. Christie et al. properly point out, the exception to reinstatement should be applied very cautiously otherwise the risk exists that an unjustly dismissed employee will be penalized by losing his job. Indeed, a finding of unjust dismissal is a finding that the work relationship should not have been severed in the first place. In such cases, the presumption is, in my view, clearly in favour of reinstatement unless there is clear evidence to the contrary.
So there are a number of cases where reinstatement isn't ordered, sometimes because the relationships involved are just too strained to have a productive relationship moving forward, but it's available in many cases, and it's an onerous remedy to impose on employers.

It has led to a number of interesting cases, where employers have tried to avail themselves of the Wakeling logic by providing a generous package in lieu of notice, to argue that this cures any 'unjust' nature of the dismissal, immunizing them against reinstatement.  The argument usually failed.

(This slightly reminds me of something my articling principal said in my first week of work, many years ago, that a dismissal can't contravene the Human Rights Code if it's accompanied by an offer of a generous package.  That seemed strange to me at the time, and I have no hesitation now in saying that she was wrong.  Practically speaking, that's something that happens often enough - employers dismissing employees for highly questionable reasons, but offering them enough money that the employee would rather just take the payout and sign the release rather than trying to litigate.  Every release has its price.  But that shouldn't be confused with saying that the package makes it legal.)

The Intellectual Basis for the Wakeling Interpretation

In many ways, the Wakeling Interpretation is the more intellectually rigourous one.  I respect the approach, even if I disagree with its conclusions.

Essentially, the argument advanced by the Wilson dissent hinges significantly on the issue of 'concurrent jurisdiction':  Division XIV expressly leaves intact the civil action in wrongful dismissal, giving employees the option of pursuing the issue through the statutory mechanism, or through the courts.

But a civil action in wrongful dismissal is premised on a breach of contract, of the employer being required to give employees 'reasonable notice' of dismissal.  If the Code has the effect of displacing the common law, to the extent that an employer simply cannot terminate on reasonable notice, then it is incoherent to say that the employee still has a civil action for a termination without reasonable notice.

I very frequently have to explain to employee clients, "Yes, your employer is entitled to fire you without any reason at all; they just have to give you notice."  That's the entire basis of the wrongful dismissal regime, and if the employer is not entitled to dismiss in the first place in certain Federal contexts, the intellectual basis for wrongful dismissal appears to fall apart.

Why That's Wrong:
The Existence of a Reinstatement Regime Doesn't Preclude Contractual Notice Requirements

The majority has a number of good reasons to infer a Parliamentary intention to create new substantive rights - for instance, the Hansard actually indicates an intention to protect employees against arbitrary dismissals - and the dissent's response to these, that the Hansard shows they didn't want to give exactly the same protections as to unionized employees, is unsatisfying.

Similarly, the dissent argues that the provision directing the adjudicator to "consider" whether the dismissal was unjust seems to be at odds with a contention that all not-for-cause dismissals are inherently unjust.  This is a particularly weak argument:  One can fairly assume that, if the dismissal were legitimately for cause, the adjudicator would not 'consider' the dismissal to be unjust.

But the 'concurrent jurisdiction' issue is trickier, more compelling on its face, so I'll focus on that.

The Trites Trap:  Reading Employment Standards as Permissive

To oversimplify the point a little, employment standards provisions don't so much displace the common law as get superimposed on top of it.  When courts start referring to employment standards legislation as actually displacing the common law, we start getting whacky decisions like Trites v. Renin Corp.  (Yes, that is, fundamentally, where the misinterpretation started:  "Renin relies on Elsegood in support of the proposition that statutes enacted by the legislature displace the common law.")

Yes, the language of 'displacement' is strictly correct, but they don't purport to displace the common law in any comprehensive way.  This is an important nuance, because the common law has evolved in a way that gives employees a number of face-value rights and protections in the first place, and employment standards laws usually leave those protections in place, quite expressly, while creating additional protections for employees that exist in parallel.

Employment standards laws typically create a bare minimum entitlement to notice and/or termination pay and/or severance pay.  Under Ontario's ESA, an employer can provide notice or termination pay.  At common law, the default obligation is notice - and failure to give appropriate notice is usually a breach of contract.  These aren't inconsistent.  An employer can comply with its statutory obligations, but still breach its contractual obligations, and then be held liable for breaching its contractual obligations.  Or common law doctrines might allow a 'just cause' dismissal without notice, under circumstances where statutory termination pay is still required because the statutory test for such misconduct is slightly different.

These different regimes co-exist simultaneously.

Part III of the Canada Labour Code is no different.  Section 168(1) specifies that the Part doesn't affect any rights or benefits more favourable to the employee; section 261 specifies that no civil remedy of an employee is affected by the Part.  This is the combination of factors that exists in every Canadian employment standards legislation I've read, that prevents us from ever reading an employment standard as being permissive on the employer - which is, in part, why Trites v. Renin Corp was so wrong, concluding that the ESA created a free-standing right for employers permitting them to implement temporary layoffs, regardless of what express or implied terms might be in the contract.

When interpreting the provisions of the Code that guarantee minimum notice and severance, sections 230 and 235, the dissent falls into the Trites trap of reading the provisions as being permissive:
Therefore, as a baseline, Part III of the Code permits federally regulated employers to dismiss their employees without cause. To conclude otherwise would ignore the text of ss. 230 and 235 of the Code.
Part III of the Code does no such thing.  Period.  It presupposes that there are circumstances where employees can be dismissed without cause (and nobody's saying there aren't), and guarantees minimum entitlements in such cases.  It does not stand, on its own, as authority permitting a dismissal without cause in any particular class of cases.

That is, perhaps, not a critical error in this case.  But falling into the Trites trap appears to have led the dissent down the wrong path, in failing to appreciate the quintessentially typical interplay between reinstatement regimes and traditional wrongful dismissal remedies.

Reinstatement Regimes Coexisting with the Wrongful Dismissal Framework

Many employment statutes, from many different Canadian jurisdictions, have express or implied reinstatement remedies.  Ontario's ESA has its own reinstatement remedies, albeit expressly narrower than those in the Canada Labour Code:  Section 104 of the ESA specifies that reinstatement is available where an employee was dismissed in contravention of the provisions dealing with employer reprisals, among other things.  This, too, co-exists with the contractual requirement to give reasonable notice of dismissal.

As do the provisions in the Labour Relations Act, Human Rights Code, and Occupational Health and Safety Act, which prohibit dismissal for certain reasons, and allow for reinstatement as a result of such terminations.  (I refer to such dismissals as being 'unlawful' - prohibited by statute - as distinct from merely 'wrongful'.)

These all impose limitations on the employer's contractual right to dismiss on notice, but none of them actually fully displace it.  The right to dismiss on notice is residual:  In circumstances where dismissal isn't unlawful, you may still dismiss on notice.

And it is NOT a defence to a wrongful dismissal action to say that the dismissal was, in fact, unlawful.

If, for example, a Federally regulated employer dismissed an employee for a reason which contravenes the Canadian Human Rights Act, and the employee sued in wrongful dismissal seeking pay in lieu of notice (NB: not human rights damages), the employer could not defend the action on the basis that the unlawful nature of the termination somehow undermined the employee's contractual entitlements that would have flowed from a lawful termination.  That's simply not an argument that makes any sense whatsoever.  Yet it's fundamentally the same logic that grounds the Wakeling Interpretation.

And this is where we see the importance of the preliminary note I made earlier:  The Code most certainly does not prohibit all dismissals without cause.  On the consensus interpretation, it creates a much wider scope of 'unlawful' termination than exist in most statutory regimes, but it still leaves the traditional wrongful dismissal framework as having residual application in cases where, for example, the dismissal is due to a lack of work or discontinuance of a function.

In other words, the consensus interpretation doesn't imply a right not to be fired, so as to be fundamentally inconsistent with an express or implied obligation to give notice of termination in the way argued by the dissent.  An employee's job is still in jeopardy in circumstances of good faith restructuring, and in those cases the employee will be contractually entitled to notice, per the 'usual' case.

Other Problems with the Wakeling Interpretation

There are, in my view, two key things that tell us that this isn't just a procedural option for enforcing existing common law rights.  Firstly, at common law, reinstatement simply doesn't exist.  A regime where employers are entitled to terminate is fundamentally inconsistent with a reinstatement regime.

Secondly, the dissent's belief that the purpose of Division XIV is to "provide a low cost, efficient, and effective procedural mechanism" is simply irreconcilable with the differential treatment between 'lack of work' dismissals and other dismissals.

Reinstatement Does Not Exist At Common Law

The fact that Adjudicator Wakeling admittedly never ordered reinstatement, and was sparse and 'flimsy' in his reasons for doing so, is telling, and is where the intellectual rigour of the approach fails.  Any reasonable interpretation of Division XIV simply must include some circumstance in which reinstatement would be an appropriate remedy.

The dissent argues, in what I believe is the only semi-cogent way of delineating such a test, that the reinstatement remedy is reserved for cases where the dismissal was "discriminatory or retaliatory" - and points to the fact that Provincial employment standards statutes do have reinstatement regimes in such cases.  Yes, they do.  Quite expressly, and very specifically and narrowly.  It is rather self-defeating that the dissent tried to make this argument right after arguing that Nova Scotia and Quebec, in creating 'only just cause' regimes, did so "expressly".

But let's be clear, we're still talking about the creation of a substantive right and remedy.  For all the dissent's discussion of there needing to be an express intention to displace the common law, etc., there's no read possible read here which doesn't do so.  Reinstatement is only a viable remedy in the face of an 'unlawful' termination.  Full stop.  The dissent's claim is simply that the scope of the unlawful terminations created and remedied by Division XIV is narrower than the consensus interpretation, limited only to cases where there's discrimination or retaliation.  Or maybe certain bad faith cases?

'Discriminatory' is tricky, because while labour adjudicators aren't "wholly without jurisdiction" to apply the Canadian Human Rights Act, that's not a simple analysis.  Creating a structure within the Canada Labour Code to address a wrong under the CHRA needs a bit more guidance than that.

Furthermore, given the already restricted range of cases to which Division XIV applies in the first place (non-managerial, employed for 12 months or more, not dismissed for lack of work), it's strange that they would put the reinstatement remedy into that quasi-wrongful-dismissal process, instead of the other processes available to everyone...

...except, to a very limited extent, they actually did.

As it happens, the anti-reprisal provisions in Part III are actually pretty thin.  There's no guarantee of non-reprisal, but there's an offence designated for certain narrow classes of reprisal:  If you dismiss somebody for testifying in an inquiry under Part III, or for giving information to the Minister or an inspector regarding wages, hours of work, annual vacation, or working conditions, then that's an offence under s.256, and s.258 requires that, on conviction, there will be an order to reinstate the employee in question.

Ultimately, creating a reinstatement power, with zero direction as to how it is to be used, seems deeply inconsistent with a contention that it's only to be applied in a narrow range of cases, and it seems very weird to create a substantive anti-reprisal remedy and then only apply it to a portion of your employees.

And perhaps most importantly, the Wakeling Interpretation simply provides no cogent reason for drawing the line there.  Given that this point absolutely requires a concession that Division XIV creates substantive rights and remedies, you need some rational basis for assigning which circumstances will call for the reinstatement remedy.  The consensus interpretation says, presumptively, all terminations of non-managerial employees with 12 months or more of service that aren't for cause or for lack of work or discontinuance of a work function.  That's pretty well grounded on a face value reading of the statute.  When you start moving away from that, and trying to add additional qualifiers on what makes a dismissal 'unjust'...well, then you're just making stuff up that Parliament didn't put in.

The Effect of Exclusion on Interpretation

The dissent ultimately concludes that Division XIV is really quite simple and minimalistic, creating a simpler and easier-access road to adjudication of wrongful dismissal disputes.

For some people.

An administrative tribunal capable of determining common law dismissal entitlements is, arguably, a good idea.  Professor David Doorey has argued that the processes under Ontario's ESA should be interpreted as including an adjudication of common law pay in lieu of notice.  (To be clear, they aren't presently, and I disagree with his argument on the point.)

But to exclude people dismissed, on a good faith basis, for lack of work or discontinuance of a function, from such a framework, would be completely nonsensical.  All other things being equal, these cases are simpler and easier in every way (and more suitable to summary adjudication in an administrative tribunal context) by contrast to the 'lack of fit' or 'alleged cause' cases.  To send these employees to the longer, more expensive, more drawn out court process to claim their entitlements flowing from dismissal, and to give a more accessible process to the employees with more complex claims, would be frankly bizarre and completely irrational.

Likewise with the exclusion of employees who have not completed 12 months of service.  Such employees will usually have entitlements, but, all other things being equal, they'll tend to be lower-value claims, more in need of a cost-effective accessible administrative process.

If the dissent were right, that Parliament's intention was simply to create a process that improves access to justice, these exclusions would be roughly the opposite of what we would expect to see.  Typically, an expeditious process with less rigourous procedural protections, relaxed rules of evidence, etc., is more suited to claims that are simpler and lower-value in nature, and less suited to high-value complex claims (such as long-service employees who have been dismissed for contentious reasons).

On the other hand, if we're looking at creating substantive protections against not-for-cause termination, then this is exactly what we would expect to see:  Something that gives greater protection to employees who have been there for longer, but which doesn't constrain employers against making legitimate and good faith changes to their business model.


Ultimately, I continue to be of the view that the dissent got the 'standard of review' question 100% right:  The standard should be correctness, for a question like this.

But, at the end of the day, in my view, the consensus interpretation is the correct one.  So, all things considered, I think the case was resolved correctly, if for the wrong reasons.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

Thursday, July 14, 2016

Wilson v. AECL: Supreme Court Allows Appeal by Unjustly Dismissed Employee

This is a case that's been generating waves in the Labour and Employment bar across the country, and the Supreme Court just shot down what had been a bit of an earth-shattering decision by the Federal Court of Appeal.

First off, some mandatory constitutional law for context:  The vast majority of employment relationships in the country are regulated by the Provincial governments.  So when you see me writing about Ontario's Employment Standards Act, that's why.

However, organizations that fall under a Federal regulatory mandate, such as telecommunications, banking, and some finance, instead have their employment relationships governed by the Federal Canada Labour Code.  This is a relatively comprehensive statute, covering matters such as employment standards, labour relations, occupational health and safety, and others.

There are several differences between the Code and the various Provincial employment laws, but few differences are more stark than 'reinstatement' provisions in the Code.

Reinstatement Remedies versus the Entitlement to Fire

Outside of the non-union context, it's exceptionally rare that employees can get reinstatement remedies in Provincially regulated environments.  As the Ontario Court of Appeal recently upheld in Fair (I haven't posted a commentary on that decision yet, but I did when it came out of the Divisional Court), the Human Rights Tribunal of Ontario can reinstate an employee dismissed for reasons which contravene the Human Rights Code.  It's also well established that the Ontario Labour Relations Board can order reinstatement where employees were dismissed because of their union activities, and there are a handful of other 'statutory' reasons why termination is prohibited and reinstatement is available.

But those are the exception.  Outside of those few specific 'bad reasons' to fire an employee, at common law, you don't even need a reason to dismiss an employee.  I could walk into my office one morning and say to my employees, "Leafs lost; that means that you have to draw straws to see which one of you gets fired."  As an employer, I'm totally entitled to do that.  If I don't give the employee adequate notice of dismissal, it becomes a "wrongful" dismissal, and I'll be liable to provide the employee with pay in lieu of notice, but that doesn't detract from the fact that I'm entitled to terminate the employment relationship.

In Federally regulated environments, however, there's an additional framework - that of "unjust" dismissal:  The consensus view for a long time has been that, for non-managerial and non-union employers, termination by a Federally regulated employer must either be because of a lack of work or elimination of the position, or for 'cause' (which is similar, if not identical, to the high standard of 'just cause').

Procedural History

Mr. Wilson was hired by Atomic Energy of Canada Limited (AECL) in 2005.  He worked for over four years before he was dismissed, without cause, in 2009.  He filed an Unjust Dismissal complaint, and when the Ministry investigated, the employer took the position that he had been offered a "generous dismissal package", and therefore its obligations under the Code were satisfied.

Wilson also claimed that the dismissal was motivated by a reprisal - a whistleblower issue, of sorts.  This is not material to the case as it's currently before the courts, as the matter proceeded on the preliminary issue as to whether or not a 'without cause' dismissal, accompanied by a severance package, could be a 'just' one.

Stanley Schiff, a Professor Emeritus from the University of Toronto's Faculty of Law, was appointed to hear and determine the preliminary issue, and he concluded that a severance package simply could not render just an otherwise unjust dismissal - this being the consensus position among labour arbitrators up to that point, having been upheld at times at the Federal Court.

The employer brought an Application for Judicial Review to the Federal Court.  The Federal Court concluded that the adjudicator's decision was 'unreasonable', and the Federal Court of Appeal agreed.

With four sets of reasons (one of which, by Justices Moldaver, Cote, and Brown, dissented in the result), this turns out to be a complicated case, more about certain principles of administrative law than about substantive labour and employment law.

The case turns out to be about 'standard of review':  Should adjudicators such as Professor Schiff be afforded deference so long as their decisions are 'reasonable'?  Or, for decisions of this nature, must he be held to a standard of correctness?

Put more simply, is it enough to warrant judicial intervention that a judge might disagree with his conclusion, or must the conclusion be unreasonable on its face?

The dissenting judges regard the 'unjust dismissal' provisions of the Code as only creating a procedural option, without changing the substantive rights or obligations of the parties to the employment relationship.  I could spend a great deal of time parsing this argument, and examining its consequences, starting with the question of what rights it would protect, if we regarded it in those terms.

The standard of review, according to the dissent, should be correctness:  The question appears to be strictly one of law, of interpretation of the terms of the Canada Labour Code, and the dissent is deeply concerned about a trend toward deference to administrative decision-makers when interpreting their own governing statutes, undermining the principles of certainty and predictability - because adjudicators are left to their own devices in interpreting the Code, Federally regulated employers can't really know their own substantive rights and obligations, because it kind of depends on what adjudicator they draw...

There's a certain appeal to the dissent's viewpoint on the 'standard of review' question.  Yet I think they're overstating the uncertainty, to an extent.  There was a consensus viewpoint.  Yes, certain adjudicators might go another way, but they're a small minority - a tiny handful of adjudicators that have disagreed with the consensus over the course of decades.

The other six judges, however, considered the appropriate standard of review to be 'reasonableness' - and they considered the adjudicator's decision to be reasonable.  They reviewed the legislative history of the provisions in question, and Parliament's Hansard, showing clear indicia that the provisions were intended to bring in job security protections comparable (though not identical) to those of unionized employees.

The tendency of labour arbitrators to apply union-esque philosophies, in a modified way, is therefore consistent with Parliament's intention, and not unreasonable.

However, there's another split.  Justice Abella proposed that the 'correctness' standard be done away with altogether - that the standard of 'reasonableness' be applied in all cases, with due regard to the circumstances of the decision.

Justice Cromwell, while agreeing with Justice Abella's disposition of the case, rejected this approach.  He argued that the existing framework is fundamentally sound and simply needs some fine-tuning, rather than a full overhaul.

All the other judges - both in the concurring and dissenting reasons - said they "appreciate" Justice Abella's efforts to stimulate a discussion on the point, but consider unnecessary to redefine standard of review in the context of this particular case.


The takeaway here is actually fairly simple:  The consensus view, limiting Federal not-for-cause terminations, has been endorsed as reasonable by a majority of the Supreme Court of Canada, so Federally regulated employers should proceed very cautiously with not-for-cause dismissals moving forward.  Period.

But as to the finer legal points, there's more to be said.  There's a superficial appeal to Justice Abella's proposal to eliminate the 'correctness' standard.  Put all 'deference' issues on the sliding scale of reasonableness.

But, superficial appeal aside, I would have significant reservations about that approach.  I'm something of a legal intellectual purist:  I believe that all strictly legal questions should have one correct answer, based on consistent sets of common law principles and statutory interpretation principles.  Facts quickly muddy up the waters of any such discussions, but the law itself should be objective.

And this is what the 'correctness' standard is typically reserved for:  Questions of pure law.

Accordingly, I think the dissenting 'standard of review' analysis is solid:  The question "Does the Code prevent terminations on a without cause basis" is one that should have a fixed answer.  It's a legal question, a question of statutory interpretation, and there should be a right answer to it.  Not "It depends on which adjudicator you get".  Mind you, I'm not sure I agree with their substantive answer - I find it difficult to reconcile the availability of a reinstatement remedy with an unconstrained management right to fire - but I think that it's a question that the court can and should answer determinatively, rather than kicking it over to administrative decision-makers.

On a personal note, congratulations to my friend and colleague Lauren Wihak, whose 2014 paper "Whither the Correctness Standard of Review" was cited by both Justice Abella and the dissent.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

Monday, July 4, 2016

Fact-Check: Did Maternity Leave Really Arise Out Of A Postal Strike?

With the prospect of a postal strike on the horizon, I've been seeing increasing amounts of propaganda on social media, including this graphic (which appears to have been proliferated in connection with the 2011 strike):

Seems to make sense, no?  I mean, we're well accustomed to the idea that certain benefits, like the five-day work week and occupational health and safety protections, are the result of pressures by trade unions, so there's nothing unbelievable about the idea that mat leave might have arisen from labour disputes.

Except that this particular claim is totally and completely false.

Let's parse the post for a moment:  If you read all the fine print (you might have to zoom in a little), then it looks like the claim here is that the 1981 postal strike started the move toward what we now know as EI maternity/parental benefits.

It didn't.  In fact, EI first introduced maternity benefits in 1971, offering 15 weeks of benefits to qualifying mothers.  In 1990, additional parental benefits (available to fathers or mothers) were added, and expanded in 2000.

The union's push in 1981 didn't have anything to do with any of that.  The relevant issue, for our purposes, was that the EI (well, UI, at the time) benefits weren't enough:  Only 55% of insurable earnings.  So they negotiated a supplementary benefit from the employer (who in this case happens to be a Crown corporation) - getting more money over top of the EI benefit.

Okay, so the literal reading of this graphic's claim...isn't what happened.  But maybe the postal workers started a movement to improve the scale of EI benefits?  Nope, 35 years later, they're basically unchanged.

Or maybe they can take credit for starting a trend of employer-paid supplementary benefits, that might have percolated down to the general public?  No, not really that either.  As of 2008, only about 20% of new mothers were entitled to supplementary employer-paid maternity benefits.  Most of those were in the public sector, with about half of new mothers in the public sector being entitled to supplementary benefits for, on average, about 22 weeks.  In the private sector, it's quite rare to get any such benefits, and it's for a much shorter period of time.  (It's not even true that the postal workers were the first to get such benefits, but it clearly isn't something that's translated into the wider workplace like the five day work week.)

In other words, if you're one of the 20% of women who get some form of supplementary maternity benefit from your employer, then you can look at the 1981 strike as at least pushing on that issue a little.  If you're not such a person, however, then none of your mat leave rights trace back to the 1981 strike in any way.

I first saw the graphic because it was shared by a labour lawyer friend of mine...and so I feel that the occasion calls for this:


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.