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June 12 2018

Is labour law armageddon on the horizon in Ontario?

The big win by Doug Ford and the Conservatives last week has raised concerns that Ontario’s labour law

Photo: CBC

model will soon come under attack.   This concern arises not so much from anything Doug Ford has said, and not because of anything specific found in the Conservative platform, which was notoriously skimpy on details and full of slogans targeting a dumbed down electorate (see “Help is on the way”, “For the People”, and “One Dollar Beer”).   This time, the Conservatives were conspicuously quiet on labour law reform during the campaign, perhaps learning from past election debacles that anti-labour rhetoric as the cornerstone of the campaign is not a successful tactic.

But make no mistake.  A Conservative majority is back, and we should anticipate that labour law eventually will be in their sight lines.  No doubt the public sector will experience significant labour-related battles as the Ford government moves to contract out good paying government jobs.  In this post, I want to focus in on what changes we might see to the Labour Relations Act and the system of private sector collective bargaining in Ontario.  Unions represent only about 16% of private sector workers, but Conservatives nevertheless have a long history of blaming collective bargaining, unions, and labour law for all sorts of economic woes.  I expect the same narrative to begin soon.

There are code words in the Conservative Platform that those of us with long memories instantly recognize.  Doug Ford’s Platform promises reforms that will demonstrate that Ontario is “open for business” and that “cut red tape“.  These promises also sound like overused slogans, but those of us around during the Mike Harris days of the mid 1990s, when the Conservatives last turned their attention to labour law, remember very well what that language meant then.

Behind the Political Slogans:  ”Cutting Red Tape” and “Open for Business” 

Back then, “cutting red tape” meant cutting many public services and protective regulation (remember Walkerton?), and “open for business” meant tax cuts and, importantly for our purposes, labour law reforms that reduced protections for workers and impeded access to collective bargaining.

In 1995, the Conservatives passed Bill 7, which introduced for the first time in Ontario history a two-step union certification process that requires unions to both collect membership cards on behalf of 40% of the bargaining unit employees and then also win a certification vote [known as the mandatory ballot model, as explained in Chapter 39 of The Law of Work].  Bill 7 also repealed: a prohibition on strike replacement workers; blocked automatic access to first contract arbitration; de-combined bargaining units represented by the same union at the same employer that had been combined under the previous labour laws; removed the right of the labour board to reinstate on an interim basis terminated employees alleged to have been terminated for union activities; the successorship provisions that protected contracted service sector workers in the event their employer lost a tender.  It also required employers to inform employees on how to decertify a union.

A couple of years after Bill 7, the Conservatives introduced Bill 31 at the request of Walmart, which was pissed off that its unlawful threats to close a store in Windsor if employees voted for a union led the Labour Board to certify the United Steelworkers.   The “Walmart Bill”, as it became known, repealed the authority of the labour board to certify a union as a remedy for serious illegal acts committed by a company during a union organizing campaign (“remedial certification”).  This law emboldened companies like Brampton’s Baron Metal, which hired violent gang members to roam the factory threatening death or physical harm to workers who voted for the Steelworkers in an upcoming mandatory certification vote.  Since the Conservatives had repealed remedial certification, all that the labour board could do was order another certification vote with some conditions.  Not surprisingly, the union lost that vote.

So in the 1990s, “open for business” in Conservative-speak meant gutting labour law protections designed to facilitate collective bargaining and protect workers from retaliation by employers bent on punishing union supporters.  The presumptive theory was that employers would flock to Ontario to take advantage of laws that impede collective bargaining and make life difficult for  union supporting employees.

When Minister of Labour Elizabeth Witmer explained Bill 7 in the legislature in 1995, her speech was laced with references to the “open for business” slogan and to that other stalwart dragged out by all political parties whenever labour law reform is tackled, which is that the reforms will at long last restore “balance” to the labour law regime that had been too one-sided in favor of either workers and unions or employers:

Conservative Minister of Labour Elizabeth Witmer,with Premier Mike Harris, circa 1995

Conservative Minister of Labour, Elizabeth Witmer in October 1995:

With BALANCE RESTORED, a strong signal will go out to the global community that Ontario is ONCE AGAIN OPEN FOR BUSINESS and jobs. We are prepared to do that. With the introduction of Bill 7 on October 4, we sent out that signal to the global community that Ontario is OPEN FOR BUSINESS. 

Expect to hear this political speak ad nausea in the coming months.  It would not surprise me if the 1995 speeches are repeated almost verbatim [If you want to read those speeches during the Bill 7 debates, follow this link and stroll to the bottom].

Say Good-Bye to the Labour Relations Act Changes in the Liberal’s Bill 148?

The Liberals under Dalton McGuinty and Kathleen Wynn eventually repealed most of the Conservatives’ 1990s anti-collective bargaining agenda.  Remedial certification was re-introduced, as was interim reinstatement of terminated union supporters.  Employers are no longer required (or permitted) to provide information to employees on how to de-certify.  However, the Liberals kept the mandatory vote certification model for all sectors except construction, where the one-step “card check” model was re-introduced.  More recently, in Bill 148, the Liberals expanded the card-check option to the building services, home care, and community services sectors, and to temporary help agencies.

I anticipate that the Conservatives will repeal “card check certification” entirely and reinstate mandatory ballots across the board.  Given their ideological position that votes are the only democratic way to test employee wishes, and their desire to weaken unions and stall the expansion of collective bargaining, it is difficult to see how card-check survives in any sector.  Unions are more successful in winning new members under the one-step card-check model than under the two-step mandatory vote model.

Nor would it be surprising if the Conservatives repeal all of the other changes to the Labour Relations Act found in Bill 148, which were each intended in some manner to make access to collective bargaining easier.  Since the Tories do not want to develop collective bargaining, this law seems to be inconsistent with their ideology.  Indeed, the entire premise of the Liberals Changing Workplaces Review–that the changing labour market requires new types of beefed up protections for precarious workers–conflicts with the standard Conservative view that labour markets should be left to function freely, with only limited government intervention.  Employers barely participated in the consultations during the CWR process and insisted instead that everything was fine or alternatively that protective laws should be weakened, not strengthened.   Therefore, you know that employer groups are already lobbying for repeal of all or some of the Liberal’s expanded statutory protections.  There is little reason to believe the Conservatives will not listen to these cries.

As I described in an earlier post, Bill 148 changes include easier access to remedial certification and to first contract arbitration when a collective agreement is not reached through negotiations. The Conservatives are not interested in expanding the reach of collective bargaining, so why would they support any law that intends to embed collective bargaining against the wishes of an employer.  That is what first contract arbitration does.  Similarly, I expect that Doug Ford’s Conservatives will repeal the Bill 148 power conferred on the labour board to consolidate bargaining units when doing so would “contribute to the development of collective bargaining in an industry”, or at a minimum they will give employers a vito.

Bill 148 includes a new requirement for employers to provide unions with a  list of employees during an organizing campaign.  This requirement makes perfect sense if you believe the law is intended to encourage an informed employee choice on whether collective bargaining is for them.  However if you do not believe in collective bargaining, the law will seem an unwarranted intrusion into employer and employee privacy.

Is the Wagner Model That Has Guided Canadian Labour Law Since the 1940s’ Up For Debate?

Tinkering with the Labour Relations Act to benefit anti-collective bargaining interests seems inevitable.  However, something much grander in scale may also be in the political mix.  The Conservatives may see this majority government as their opportunity at last to revisit the entire labour law model as we have known it for nearly 70 years.

We need only go back to the last election in 2014 to see what the Conservatives might have in mind.  You may recall that, unlike in this campaign, labour law reform was very much front and centre in the Conservative platform of then leader Tim Hudak.  I discussed the Conservative’s platform back then.  Tim Hudak’s ill advised promise to gut “100,000 public sector jobs” received most of the attention, but he had also promised a generational reform of labour law.

At first, he mused about abolishing the “Rand Formula”, which is code for a law that permits unions to

Candidate Tim Hudak Had Hinted at Major Overhaul of Labour Relations Act in 2014

bargain clauses requiring all bargaining unit employees pay union dues to cover the costs of union services such as contract bargaining and administration.   Later in the campaign, he backed off that, conceding that abolishing the Rand Formula wouldn’t “have the scope or the power to fix the issues that are threatening 100% of manufacturing jobs”.   However Hudak concluded that same speech with the ominous and vague threat that the Conservative agenda “is a lot bigger, and lot more ambitious” than just repealing a union dues law.  What could that mean?

A clue emerged around the same time in the form of a private member’s bill, introduced by rogue Conservative MPP Randy Hillier called Bill 64, Defending Employees’ Rights Act (Collective Bargaining and Financial Disclosure by Trade Unions.  This Bill attracted attention during the campaign because Hillier claimed it was backed by the Party, although Hudak never publicly admitted this.  Bill 64 would not have repealed the Rand Formula.  It would have completely re-drawn the boundaries of collective bargaining law in a few quick strokes of a legislator’s pen. Bill 64  would have permitted any employee at a unionized workplace to simply opt out of the collective agreement entirely, while banning mandatory union membership clauses and the use of union dues for political purposes.  The Bill created inconsistencies within the overall scheme of the Labour Relations Act, as Professor Brian Langille and labour lawyer Josh Mandryk explained in this paper and was probably unworkable in practice.

However, Hillier’s Bill should not be dismissed now that the Tories have a majority government, because it may signal a strand of thought that is still supported within the Conservative Party.  The idea of revisiting the two pillars of the Wagner Model of labour law, exclusivity and majoritism, may  be the grander mission Hudak was describing (see Chapter 39 [The Unionization Process] of The Law of Work).  Since the 1940s, Canadian labour law has granted “exclusive” bargaining rights to a single union that can demonstrate majority support in a defined bargaining unit, or grouping of employees of a single employer that makes sense for collective bargaining purposes.  This means that workers who did not support the union are still covered by the collective agreement the union bargains, and usually must pay union dues on the theory that a majority of their coworkers wanted collective bargaining, they receive the benefits the union bargains, and the union is legally required to represent all bargaining unit employees.  This is the deal the Rand Formula endorses.

The Conservatives may intend to challenge this model and fundamentally rewrite the rules of collective bargaining.  If they do so, it is almost certain that the objectives will be threefold:  (1) to weaken unions and impede any expansion of collective bargaining; (2) to restrict collective bargaining and collective agreement to workers who desire it and permit employees who don’t to opt out of some or all of union representation or union dues payment; and (3) to cut off union funding that is used for political purposes, including attacking Conservative policies in public marketing campaigns.

On the first two points, Conservatives will look to models that permit employees to opt out of union membership and union dues.  What that model would look like remains uncertain, but I bet you a nickel that Conservative thinkers and business lobbies are already brainstorming about this. The model could look something like that found in the Hillier Bill, or take some other form entirely.  The Conservatives may look south of the border for some possibilities, perhaps with the idea of moving Ontario labour law more in line with US law as a way of easing concerns by American corporations weary of a Ontario legal model they perceive to be too “union friendly”.  For example, maybe the Conservatives will consider moving away from the “quick vote” certification model and towards the longer campaign periods that characterize the American system, or watering down the job rights of strikers to more closely align with the American model in which it is lawful in many cases to permanently replace strikers.

And, with some irony, the Conservatives might also look to the Supreme Court’s freedom of association jurisprudence.  Unions have poured hundreds of thousands of dollars into Charter litigation hoping to expand the scope of freedom of association, with considerable success.  The Supreme Court has recognized a constitutional right to collective bargaining and to strike.  However, the Court has also been clear it is not constitutionalizing the Wagner model of majoritism and exclusivity and that other forms of collective bargaining are permissible.

There is a lot of room for experiment with different forms of collective representation, many of which provide a lesser ranger of protections for unions and workers than the Wagner Model developed in the Labour Relations Act.  Whatever form it takes, it is certainly possible to imagine a majority Conservative government exploring systems of non-majority collective bargaining that would severally challenge and weaken the labour movement.

On the third point, the path is clearer.  The Hillier Bill and the Harper government already targeted the use of union dues for political purposes.  Hillier’s Bill would have permitted any employee to opt out of a collective agreement and for employees who did not, it required expressed consent by an employee for the deduction of any portion of dues relating to any purpose other than collective bargaining issues.  I expect that, at a minimum, the Conservatives will require Ontario unions to publish expenses included a breakdown of money spent for “political purposes”, however that is defined.  I would not be surprised if a law also permits employees to opt out of paying that portion of dues, similar to the law in the United States.

Conclusion

To circle back to my opening point, none of the changes I have pondered here are based on anything the Conservatives have said they will do, and I have no inside sources.  All I have done in this post is draw on history as an aid to a theory on where a majority Conservative government might go in Ontario in 2018.  It is possible that Doug Ford may elect not to fundamentally overhaul the labour law regime and to avoid open warfare with the labour movement.  He may choose merely to tinker with the Labour Relations Act but not embark on a rewriting of the model.  This more (small c) conservative approach would be consistent with the language of his platform, which does not mention labour law reform expressly.

On the other hand, there are hawks in the Conservative Party that will certainly see this as an opportunity to kick it to unions, which are are perceived as a political foe.  There are also no doubt Conservatives who believe that collective bargaining is bad for the economy and that any law that requires people to be covered by a collective agreement against their wishes should be repealed.

These voices will carry considerable force in the road ahead, and if their wishes translate into policy reforms, we can anticipate a new wave of labour protests like those that filled Ontario’s streets throughout the late 1990s.

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May 29 2018

The U.S. Supreme Court ruled this week in an important decision that mandatory arbitration clauses inserted by employers into employment contracts block employees from joining a class action lawsuit against the employer for wage theft or other violations of labor standards.  The case is called Epic Systems Corp. v. Lewis. The decision has attracted considerable attention south of the border.  The lead majority decision was written by President Trump’s recent appointee to the bench, Justice Gorsuch.

There are two important work law themes that arise in the decision.  Firstly, the case deals with the ubiquitous

U.S. Supreme Court: Mandatory Arbitration Clauses Block Class Actions

‘mandatory arbitration clauses’ that force contract disputes to an arbitrator and foreclose an employee’s access to the courts.  The narrow issue in the Epic case is whether arbitration clauses block access to class action lawsuits for failure of an employer to comply with employment standards laws.  Secondly, the case deals with a particular aspect of American labor law which has no parallel in Canada.  It considers whether the American statutory right of nonunion employees to engage in “concerted actions” guarantees a right of employees to participate in class action lawsuits against their employer even if they have signed an arbitration clause.

Here’s a quick run down of the decision.

Mandatory Arbitration Clauses and Access to Justice

The majority decision rules that an arbitration clause is clear and binding and therefore that it blocks the class action lawsuit.   Summing up, Justice Gorsuch wrote:  ”The policy may be debatable but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written.”

The “policy” debate he is referring to relates to the reality that employers, owing to their superior power that permits then to in most cases dictate terms of employment contracts, can avoid class action lawsuits simply by inserting an arbitration clause into every contract.  The majority brushes that concern away.  The opening sentence of the decision sets the tone:  ”Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration?”  This language paints a picture of employer and employee voluntarily agreeing to refer their disputes to arbitration, and then one party (the employee) later rescinding on this agreement and trying to bypass arbitration.   It is the Court’s role to hold the parties to their agreement and enforce the Arbitration Act, which requires arbitration agreements to be enforced.

The dissent, written by Justice Ginsburg, tells a very different story.   It screams a reminder that employment and labor law is based on an awareness that employment contracts are the product of coercive relationship in which the employee due to economic necessity almost always takes the contract terms as presented by the employer.   Ginsberg calls the majority ruling “egregiously wrong”, and emphasizes the vulnerability of individual employees and their need to be able to band together to meet the employer’s power:

In the NLRA and its forerunner, the Norris-LaGuardia Act (NLGA), Congress acted on an acute awareness: For workers striving to gain from their employers decent terms and conditions of employment, there is strength in numbers. A single employee, Congress understood, is disarmed in dealing with an employer. See NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 33–34 (1937). The Court today subordinates employee-protective labor legislation to the Arbitration Act. In so doing, the Court forgets the labor market imbalance that gave rise to the NLGA and the NLRA, and ignores the destructive consequences of diminishing the right of employees “to band together in confronting an employer.” NLRB v. City Disposal Systems, Inc., 465 U. S. 822, 835 (1984).

The ability to bring a class action lawsuit for group violations of labor standards is one way that employees can band together.  But Epic Systems confirms that employers can easily avoid that mechanism simply by writing into all of their standard employment contracts a mandatory arbitration clause.

Concerted Activities

Another way that employees can band together to meet their employer’s gaze is through collective, concerted action.  Unionization and collective bargaining are the most obvious manifestation of the exercise of collective action, and since the 1930s, American labor law has protected a limited right of workers to combine and to engage not only in formal collective bargaining through a union, but also to engage in “other concerted activities for the purpose of …mutual aid or protection”.

In Epic, the plaintiffs argued that the statutory right to engage in concerted activities is effectively blocked by a ruling that prevents class action lawsuits and requires instead litigation of individual complaints via a private arbitration mechanism.   In other words, the plaintiffs argued that the labor relations statute (the NLRA) prohibited mandatory arbitration clauses insofar as they blocked the right of workers to join together in bringing a class action lawsuit against their employer for labor rights violations.  That argument was dismissed by the majority, which ruled that the NLRA was not intended to prohibit employers and employees from agreeing to refer their disputes to arbitration.  Rather, the NLRA protection of concerted activities is primarily concerned with collective bargaining and “self-organizing”.

Epic Systems Through a Canadian Lens 

The Epic Systems decision raises some interesting comparative law questions for us north of the border. Let’s begin with the basic question of whether an arbitration clause could prevent Canadian employees from bringing a class action lawsuit against their employer for labour violations.  Mandatory arbitration clauses in employment contracts are less common in Canada.  But they do exist, and may become more common, and Canadian courts have enforced them.

I have only looked at Ontario cases.  See for example Morrison v Ericsson Canada 2016 ONSC 3908 (CanLII), where the court stayed a constructive dismissal lawsuit filed by an employee because the contract required arbitration in Texas.  Also Robert v. Markandu, where the court stayed a wrongful dismissal lawsuit because the contract required arbitration of contract disputes.

The recent Canadian case most similar to Epic Systems is Heller v. Uber Technologies decided earlier this year.  In that case, the plaintiff filed a class action lawsuit on behalf of Uber drivers alleging multiple violations of the Ontario Employment Standards Act.  The contract the driver signed with Uber included an arbitration clause requiring contractual disputes to be heard by an arbitrator in Amsterdam.   The plaintiff argued that Uber drivers were employees and therefore covered by employment standards legislation.

Justice Perell of the Ontario Superior Court stayed the action, ruling that the arbitration clause must be enforced, even in the case of alleged violations of employment standards legislation and even though he acknowledged that employees “have no bargaining power” and therefore that the employer can effectively impose mandatory arbitration clauses on employees.  Perell ruled essentially that it was up to the government to legislatively block mandatory arbitration clauses for public policy reasons, which in the case of the ESA, the government had not.  The arbitrator in Amsterdam could decide whether or not an Uber driver was an employee and therefore covered by the Ontario ESA.  Therefore the class action lawsuit was stayed.

More so than in the US, I think it reasonable to expect that Canadian governments (especially a Liberal or NDP government) will be open to legislating a ban on forced arbitration clauses in contracts of adhesion, including employment contracts.

Canadian nonunion employees would have an even weaker freedom of association argument than the plaintiffs in Epic.  That’s because Canadian labour law does not protect a stand alone right to engage in “concerted activities”.   A group of nonunion employees who engage in collective actions related to work but who do so on their own, without any union involvement or aspirations, are not protected by labour relations legislation.

You can see why this matters by looking at some American cases.   This post by Professor Ben Sachs & Sharon Block on OnLabor describes several cases involving nonunion workers who engaged in collective action and were protected by the NLRA right to engage in “concerted activity”.  One involved 18 employees fired for participating in pro-immigration protests.  Another involved a group of nonunion workers who created a YouTube video criticizing their employer for safety issues.  Twitter or other social media campaigns by nonunion American workers designed to pressure for better working conditions would also be protected concerted activity in the US.  The classic example is Washington Aluminum, where nonunion employees walked off the job to protest the temperature in the factory.

In all these cases, the fact that the nonunion workers acted in concert for a purpose related to their jobs meant they were protected from reprisals by the NLRA.  None of these direct employee actions would be covered by Canadian labour relations statutes’ protection of “union activities”.   And certainly there is no argument to be made that a group of workers bringing a class action lawsuit against their employer are protected by labour relations legislation.

In the US, where private sector union density is around 6 percent, the NLRA’s protection of “concerted activities” is considered to be a crucial legal tool in the fight to improve working conditions.  Sachs and Block explain: 

… the scope of NLRA § 7’s protections is critically important to workers’ collective action in the contemporary labor market, and so the Court’s future direction on this subject matters enormously.  Indeed, for the vast majority of workers who are not currently in a traditional union, and who may never have the opportunity to join one, the scope of § 7 activity outside the union and collective bargaining context is all that matters.  Thus, a definition of “concerted activity” limited to traditional union organizing and bargaining would leave all of those workers with no protection when they try to stand up for themselves.

This is an important observation for the Canadian context.  During the recent review of labour laws in Ontario, a number of organizations and scholars (including me) argued that the Liberals should introduce a Canadian version of Section 7 of the NLRA, that protects the right of workers to engage in “concerted activities” in aid of better working conditions.   That idea was dismissed by the two commissioners hired to propose changes and by the Liberals.

As Canadian private sector union density continues its decline, this question of whether nonunion workers should have a right to protected “concerted activity” separate from the right to engage in “union activities”, will become more important.  American labor law scholars expressed relief that the Epic case did not directly attack the idea that “concerted activity” includes more than just the right to unionize and engage in collective bargaining.   Yet fears remain that a right wing Supreme Court may move in this direction in the coming years.  Most Americans are not aware that Canadian law does not protect a general right to “concerted activities” for private sector workers.   If the US Supreme Court does move to narrow the scope of “concerted activities”, by ruling that it really only protects collective bargaining and union rights, then we would witness an unusual  example of American labor law mimicking a less expansive Canadian model.

This is definitely something to keep our eyes on.

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May 7 2018

The Liberals finally delivered York University what it wanted all along: interest arbitration.  It took two months from the commencement of a bitter strike.  Here is a Toronto Star story describing the move by the Liberals, end the NDP’s refusal to vote for the legislation.

Here is the Bill [Bill 70 An Act to resolve labour disputes between York University and Canadian Union of Public Employees, Local 3903].   I haven’t had a chance to read it closely yet to see if it is unique in any way.

Back to work legislation seemed like a forgone conclusion after Industrial Inquiry Commissioner Kaplan recommended it in his final report last week.  That recommendation gives the Liberals ammunition to defend a possible Charter challenge by CUPE 3093.

The Ontario NDP has a long tradition of stalling back to work legislation in solidarity with unions who do not want the

The NDP does not always oppose back to work legislation

legislation.  Usually, the Liberals and Conservatives have enough members to enact the legislation, so the NDP can only delay the inevitable a few days.  That’s what will probably happen here.  Expect the legislation to be in effect early next week if not sooner.

It is worth noting that in the case of long strikes or lockouts, it is often the union that wants the government to intervene and impose interest arbitration.   In fact, an unusual aspect of the York situation is that the union was resisting interest arbitration even as the stoppage dragged on, while the employer was proposing it.   When it is the union that wants binding interest arbitration, you are likely to find the NDP taking a different position.  For example, do you remember the 2 year long strike at Crown Holdings?

In that case, NDP leader Andrea Horwath criticized Labour Minister Kevin Flynn and the Liberals for not enacting binding interest arbitration.  The Liberals responded that they prefer to let the parties bargain their own contract without government intervention unless that is impossible.  Here’s an exchange in the legislation from 2015 in which Horwath asks Minister Flynn when the Liberals will act to protect workers by enacting back to work legislation.

Andrea Horwath Questions Minister Flynn on Long Crown Strike - YouTube

Its all situational.

Unions have been very active pursuing Charter challenges against legislation that impedes collective bargaining and the right to strike.  It is important to pay close attention to the facts of those cases, and it would be wrong to believe that unions are always opposed to government intervention in a strike to force interest arbitration.

Issues for Discussion

Do you think that the Liberals have acted fairly in stepping in now to enact back to work legislation, or is this an unjust intervention in free collective bargaining?

Should CUPE file a Charter challenge, following the lead of OPSEU, which has launched a lawsuit against the Liberals for back to work legislation in the colleges strike?

Imagine that OPSUE and CUPE file Charter challenges against the Liberals intervention in their strikes and the cases make it to the Supreme Court of Canada.  Do you think it would be in the interest of the labour movement and working people for the Court to rule that all back to work legislation violates the Charter (and is therefore unlawful) except in the case of “true” essential services, such as doctors, police, firefighters?

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The special Industrial Inquiry Commissioner, William Kaplan, has issued his final report.  For reasons that are not clear to me, the government does not appear to release these Industrial Inquiry reports to the public.  However in this case, both York University and CUPE published the report.

Here it is.  It is a relatively succinct and informative read.  If you are interested in industrial relations and labour law, I recommend you read it.   Ultimately, Kaplan concludes that the parties are too far apart to reach a deal through collective bargaining and he therefore recommends that the parties “voluntarily” agree to refer the dispute to interest arbitration.  According to Kaplan, the parties “have completely different world views that are informed by completely different academic and institutional aspirations. This delta precludes meaningful collective bargaining.”

The government quickly issued a press release encouraging the parties to agree to interest arbitration “as quickly as possible”.   Almost as quickly, CUPE 3093 issued its own release rejecting the recommendation for interest arbitration.  

And so here we are.

Kaplan recommended back to work legislation if CUPE refused to agree to “consensual” interest arbitration.  As of today (May 7), I have not heard anything from the Liberals about legislation.   York’s President, Rhonda Lenton, took to Twitter yesterday to plead for legislators to act before the summer recess:

Notably, Kaplan also recommends that the provincial government establish a task force to study precarious employment in post-secondary institutions, recognizing that much of the underlying tensions at York exist throughout the province and have to do with systemic issues.  The idea of a task force is an excellent one, but we will no doubt have to wait until after the upcoming election to see if it ever sees the light of day.

Much of Kaplan’s report is about specific details of the conflicting proposals and the troubled history between CUPE 3093 and York.   He notes that in the last 21 years, there has only been one strike at York that did not involve CUPE3093.  There have been four lengthly CUPE3093 strikes in the past seven rounds of bargaining.

Kaplan also voices a rather strong opinion about CUPE3093′s collective bargaining strategy, which students of industrial relations should think about.   CUPE advised the employer at the outset that it had adopted an “open bargaining” and “bargaining from below” strategy.  I don’t know the details of this strategy, and I’d be happy to learn them, but this strategy appeared to include among other things member participation in negotiations and live Tweeting of negotiations designed I presume to improve transparency and democratic participation by CUPE members.

Kaplan makes the point that, however laudable principles of democracy and transparency are in the abstract, they can also pose a barrier to a negotiated settlement:

No comment need be made about the union’s bargaining parameters and culture other than to say that it is not normative. From an experienced perspective it is easy to understand how it might not enhance collective bargaining, however laudable the values – democracy, transparency, social justice, to list three – that are said to inspire and inform it, at least in part. Given its track record in successfully negotiating collective agreements, the union might usefully reconsider its general approach. “Open bargaining” “bargaining from below,” and no deal with one unit unless there is a deal with them all, appears to be a recipe for one thing: position polarization and a succession of lengthy labour disputes.

These comments no doubt will anger CUPE members and their bargaining team, who have argued all along that it was York’s bargaining strategy, including its desire from the outset to have the matter decided by arbitration, that has prevented a negotiated settlement.

I remember thinking when I first saw live Tweeting by CUPE members of negotiations how different this was from negotiations and settlement discussions I have been involved in over the years.  If you have been around labour relations for any length of time, you will have seen lots of deals worked out through frank, tough exchanges of views in the bargaining room, or in hallways, or hotel rooms, or over drinks or late night phone calls with the key representatives of the parties.   The rank and file members are rarely privy to those discussions, although the ultimate outcome of the verbal exchanges are eventually put to them in a union meeting where the workers get to express their views.  Sometimes they express their views with feet, which is what happened during the last CUPE3093, when the bargaining team brought back a proposed deal to an angry membership who voted it down.   I suspect that experience might have something to do with why CUPE this time adopted an “open bargaining” strategy.

In the theory of collective bargaining  in the world I grew up in, it was assumed that negotiators should be given space to make a deal without having to report back to constituents on every single discussion.  The policy justification for the “settlement privilege” in evidence law operates on the same basis.  The idea is that in order to encourage a free flowing exchange of ideas, the parties should not be held to everything they propose or say to one another in settlement negotiations.   The knock against live Tweeting of bargaining discussions would be that it discourages the sort of open, exploratory, often frank exchange of ideas that can sometimes create the foundation for a settlement.  If a spokesperson knows that everything they say will be broadcast live to the world, they will be less likely to say things that veer from a tightly controlled script and to exchange in exploratory “what ifs…”.    Mr. Kaplan seems to suggest that CUPE may want to re-examine its “open bargaining” approach to negotiations.

Issues for Discussion

What do you think of Mr. Kaplan’s report?  Does it fairly describe the causes and possible options for resolution of this dispute?

Do you think the Liberal government will act quickly to impose interest arbitration, as Mr. Kaplan proposes?

Do you think that the shadow of an impending back to work order will provoke an 11th hour settlement by the parties?

Finally, what do you think of Mr. Kaplan’s conclusion that CUPE’s “open bargaining” strategy should be reconsidered?

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May 2 2018

Professor Alison Braley-Rattai of Brock University’s Department of Labour Studies is the recipient of the inaugural Law of Work Best Paper Award for her paper entitled “Canada’s Statutory Strike Models and the New Constitutional Landscape“.  I will be in Montreal this week at the annual conference of the Canadian Industrial Relations Association in Montreal to hand out the award, which includes a $500 honorarium.   The award is presented annually to the top paper dealing with subject matter related to labour and employment law.   Here is the abstract for Alison’s paper:

In 2015, in a case known as SFL v Saskatchewan [SFL] the Supreme Court of Canada (SCC) ruled that the right to strike was included within the Charter of Rights and Freedoms’ guarantee of freedom of association, 2(d). In arriving at this decision, the Court relied heavily upon the pronouncements of the International Labour Organization and its various committees.

Prior to SFL, the parameters of the right to strike were within the exclusive purview of legislatures to determine. To that end, legislatures developed various statutes to regulate strike activity by unionized workers. In their well-known, comprehensive review of strike legislation, Adell, Grant and Ponak categorized these statutes into various models. In view of the decision in SFL, however, it is unclear how well these models can withstand constitutional scrutiny: portions of Québec’s labour code were recently determined to violate the Charter, so too was back-to-work legislation passed by the federal government, in a retroactive Charter challenge. And unions have indicated their intention to challenge other legislation.

My purpose in this article is to examine the constitutionality of these strike models particularly regarding the ways in which Canadian courts are likely to diverge from international labour standards despite the Supreme Court’s clear reliance upon them as a guide to its own Charter jurisprudence. Of course, it is legislation – and not the models per se – that would ever be the subject of a Charter challenge. Nonetheless, an examination of the ways in which these models are typically applied as against the principles that have emerged regarding the right to strike, will clarify the legislative space government actors have, to pass laws that curtail strike action.

Congratulations to Alison.

If you are in Montreal this week, please say hello.  I’m also looking forward to seeing and hearing recently retired Chief Justice Beverly Mclachlan and Justice Louis Lebel, who are receiving the Freedom of Association Award presented by Professor Roy Adams.

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April 13 2018

The long road to a resolution of the six week long bitter strike of contract faculty at York University took a new twist today as the province appointed an Industrial Inquiry Commission to look into the dispute.   Here is the province’s formal announcement.

Well respected senior arbitrator and mediator, William Kaplan, has been appointed as a single commissioner to meet with the parties and examine the strike and assess the possibility of a resolution.

What Is an Industrial Inquiry Commission?

The power to appoint an Industrial Inquiry Commission is found in Section 37 of the Labour Relations Act.  That section read as follows:

37 (1) The Minister may establish an industrial inquiry commission to inquire into and report to the Minister on any industrial matter or dispute that the Minister considers advisable.

Composition and powers
(2) The industrial inquiry commission shall consist of one or more members appointed by the Minister and the commission shall have all the powers of a conciliation board under section 33.

Remuneration and expenses
(3) The chair and members of the commission shall be paid remuneration and expenses at the same rate as is payable to a chair and members of a conciliation board under this Act.

Section 33 of the Act grants Mr. Kaplan the authority to receive evidence and subpoena witnesses and generally to investigate and fact find as he deems necessary.

William Kaplan has been appointed to lead an Industrial Inquiry Commission into the York Strike

Industrial commissions date way back to the earliest labour relations legislation in Canada.  Students of labour history will know that MacKenzie King was the strongest advocate of government intervention in the form of mandatory conciliation and industrial disputes investigations.   The basic machinery of the modern day conciliation, mediation and investigation mechanism in collective bargaining legislation date to the early Railway Labour Disputes Act of 1903 and the Industrial Disputes Investigation Act of 1907.

King, the architect of that legislation, strongly believed that a full investigation into a labour dispute by a neutral third party appointed by the state and the subsequent public reporting of that investigation’s findings of the causes and possible ways to resolve the dispute would push the parties towards reasonable compromises and settlements.  Crucial to this theory was the requirement for the investigator’s report to be made public because King believed that the weight of public opinion (and anger) would be brought to bear on any party that was perceived to be acting unreasonably.

Parenthetically, lots has been written about this history, but the classic by my York colleagues Eric Tucker and Judge Fudge (Judy is now in England) called Labour Before the Law is a definite must read, as is An Impartial Umpire: Industrial Relations and the Canadian State: 1900-1911 by Paul Craven, yet another York colleague. 

Over time, MacKenzie King’s confidence in the power of public opinion to influence collective bargaining behaviour through reports of independent investigation inquiries made public wained.  Unlike in the old legislation, today’s Labour Relations Act does not require the Commission’s report to be made public, just that it be delivered to the Minister of Labour and the parties.

The Industrial Inquiry Commission is seldom used.  It was last used in Ontario in  2015 in the ugly strike at Crown Metal Packaging which had dragged on for 18 months.  Commissioner Morton Mitchnick submitted a report to the Minister which I do not believe was ever made public (if I am wrong about that, please let me know).   Before that, a Commission was last appointed in 2007.  This is an unusual move by the government, but one that allows it to say it is doing something without actually intervening to end the strike through Constitutionally suspect back to work legislation. 

Mr. Kaplan will begin by meeting with the parties, probably separately, at least at first, to develop a full understanding of the issues.   Although his job is to investigate and report on the York dispute, he will no doubt also look for opportunities to mediate and steer the parties toward a settlement if he thinks that is possible.

At the end of his investigation, Mr. Kaplan will issue a report to the Minister of Labour.  The statute gives him an initial 30 day window from the first meeting but also permits an extension of that time limit. Mr. Kaplan can make observations and findings of fact.  However, importantly, an  Industrial Inquiry Commission does not have powers to order the parties to settle or to make bargaining concessions.  Nor is he an arbitrator; he cannot draft a collective agreement and impose it on the parties.  The Commissioner’s powers are limited to investigation and reporting back to the Minister.

York responded to the appointment of Mr. Kaplan by calling on CUPE to return to work pending the investigation.   York is free to make that request, however no law requires CUPE or CUPE members to return to work.  The appointment of an Industrial Inquiry Commission does not terminate the strike.

The appointment of Mr. Kaplan could be useful in the sense of adding an experienced and fresh set of eyes to the problem.  He doesn’t have formal powers to order the parties to change their positions, but he does demand a level of respect and he can make his views clear if he believes one side or there other or both are acting unreasonably.   He can, as Premier McGuinty once phrased it, use his authority to figuratively “bang some heads together”.

So we watch, and we wait.

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April 13 2018

Professor Ruth Dukes of University of Glasgow School of Law

Professor Ruth Dukes of Glasgow School of Law, my good friend and international labour law star (and co-teacher with me in Osgoode’s LLM upcoming program in labour and employment law), sends along a great  job opportunity that may be of interest to Canadian and American academics working in the area of precarious work, law, and the ‘gig’ economy.

This a two year research job (ending August 2020) at the University of Glasgow. The closing date for applications is April 23.  The job ad is here.

Here is the job description:

Job Purpose

To make a leading contribution to the ERC funded project: Work on Demand: Contracting for Work in a Changing Economy (‘WorkOD’). The WorkOD project seeks to investigate the ever-evolving nature of contracts and contracting behaviour in the world of work – not only contracts of employment, but also those of casual, ‘zero-hours’, and self-employed workers. A particular point of focus is the emerging ‘gig’ or ‘on demand’ economy, in which consumers order a range of services, or delivery of a range of goods, online or via smart phone apps. The project has a strong comparative dimension, and will analyse differences in forms of contract and contracting behaviour across jurisdictions and over the course of several decades.

A key innovation is the characterisation of contracting for work as an instance of economic, social and legal behaviour. With the aim of developing a new methodology for the study of work contracts, the project seeks to synthesise elements of economic sociology, sociology of law, and political economy into a new ‘economic sociology of labour law’. The relevance of this work will extend beyond the field of labour law into other legal disciplines and branches of social science.

The project is motivated by a normative and empirical concern with the continued viability of systems of labour law that are, broadly-speaking, protective of workers’ interests. It builds on previous research conducted by the Principal Investigator, Professor Ruth Dukes, into traditional and more recent market-based approaches to the study of labour law.

Specifically, the job requires expert knowledge of current trends and debates in the fields of labour law and the organization of working relationships. The post-holder will also be required to make a leading contribution to the formulation and submission of research publications as well as make a significant contribution to the management and direction of this complex and challenging project as opportunities allow.

For appointment at Grade 8, the post-holder will work independently, playing a leading role in developing the research, and make a significant contribution to the management and direction of the complex and challenging project as opportunities allow.

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 April 9 2018

Striking CUPE3093 members at York University have soundly rejected York University’s proposed collective agreement.

The Vote Results

The results of the vote, which was ordered after York exercised its one time statutory right to request that the

government order a ratification vote on the last offer put to CUPE, could not be clearer.

Those results were as follows:

Unit 1: No: 1279 Yes: 210 (86% No)

Unit 2: No: 653-108 (86% No)

Unit 3: 43-1 (98% No)

I’ve attached photos of the official OLRB vote results to show you what they l0ok like.

What Happened Here?

There are a couple of explanations of what happened here.  One is that York very badly misjudged the mood of the bargaining unit, perhaps believing that there was a silent majority in favour of the employer’s offer.   Remember that all York needed was 50% plus one of the bargaining unit employees to vote in favour of its offer.  It did not come close to that figure in any of the three CUPE units.

I predicted in a blog entry posted at the beginning of the strike that it was unlikely the strike would end as a result of a final offer vote.   I based that prediction on my sense of the mood of the place, but also on history:  in 2015, the CUPE3093 bargaining team took an employer offer back to the membership, and recommended it, and yet the membership in 2 of the 3 units still rejected the offer.  That result demonstrated that the membership is determined, angry, and independent thinking.  This time, the CUPE bargaining team strongly encouraged rejection of the employer’s offer.

A second possible explanation is that York figured there was little downside to asking for the vote.  If it won, then the strike is over.  If it lost, even by a wide margin, this result would then support its claim that bargaining has reached an impassable deadlock and therefore that the only possible resolution is through interest arbitration imposed through back to work legislation.

So far, the Liberals have said they do not want to get involved.  They have an election to worry about and then know from experience that back to work legislation is almost certain to result it having to defend yet another complaint under the Charter of Rights and Freedoms.  However, if York can build a factual record that bargaining will not resolve the strike, and that students’ academic year is in peril, pressure will build on the Liberals to intervene.  Pay attention in the coming days to whether the Liberals start raising the possibility of intervening, and if so, whether the vote results play into their argument as to why government intervention might be necessary.

Indeed, in a press release issued just moments ago, York again reiterated its desire to send the dispute to interest arbitration:

Interest Arbitration could End this strike today

Since the first day of bargaining we have asked CUPE 3903 to refer key areas of disagreement to arbitration where an independent third party can make a binding decision fair to both parties.  If CUPE 3903 agrees, the strike can end immediately for everyone.

As I noted in the earlier post, whether collective bargaining parties support interest arbitration depends on what they hope to get out of the bargaining.  This time York thinks it would benefit from arbitration whereas CUPE3093 does not. In past bargaining rounds, York has argued strenuously against interest arbitration, arguing that: “Engaging in arbitration on these issues is tantamount to allowing an outsider who has no continuing interest in, or commitment to, the University to have the authority to decide academic priorities for the institution.”  So you should always take claims by employers and unions that interest arbitration is the preferred route with a royal grain of salt.

Remember that just a few months ago, the Liberals enacted back to work legislation to end the college instructor strike.   The Liberals moved only after the teachers rejected a final offer vote put to them by a margin of about 87 percent, which pretty much parallels what happened today in the York/CUPE3093 vote.  If you want to see what York back to work legislation might look like, take a gander here at the Colleges of Applied Arts and Technology Labour Dispute Resolution Act, 2017.   Note especially this paragraph in the Preamble of that legislation:

A vote of the members of the bargaining unit in respect of the Council’s last offer was conducted by the Ontario Labour Relations Board. That offer was rejected by the members of the bargaining unit. Negotiations have reached an impasse and the parties are deadlocked….  For a significant number of students, the completion of their academic studies and the successful achievement of the program learning outcomes required for job readiness may be at serious risk.

Boom.  If you want back to work legislation at an educational institution in the post Saskatchewan Federation of Labour (i.e. Charter protected right to strike), you need to demonstrate that the academic year is in peril AND that negotiations are “deadlocked”, and a good way to show the latter apparently is for the employer to get its ass kicked in a “final offer vote” debacle.  Therefore, it may be that York’s plan is proceeding on schedule.  By the way, the colleges back to work legislation is now subject to a Charter challenge filed by the union OPSEU.  If back to work legislation is introduced at York, CUPE might be able to get its Charter challenges joined up with the OPSEU case.

So now that the distraction of the “final offer vote” is behind us, we will have to see if the parties are able to return to collective bargaining.  Personally, I am skeptical at this point that a bargained solution will end this strike, but I am not at the table and I do not all the details.  Certainly York’s failed gambit has done nothing to move the parties closer together and, if anything, it has only increased the hostility between the negotiating teams.  This may play right into York’s hand.

Question for Discussion

Do you think that York badly misjudged the mood of the bargaining units when it decided to have its offer put to a vote? 

What do y0u think of the possibility that the vote results help York’s argument that the government should intervene and order interest arbitration to end the strike?

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March 28 2018

Instructors represented by CUPE 3093 have been on strike since March 5.  This past week there were a couple of notable legal developments which have escalated the conflict.

Final Offer Vote on Employer’s Last Proposal

Firstly, the employer has exercised its legal right to have its last proposal put to the

The York Strike Has Escalated as Parties File Competing Unfair Labour Practice Complaints (Photo Credit: Toronto Star)

CUPE membership in a “final offer vote“. I explained that process in this post yesterday.   If a majority of votes in of CUPE 3093′s three bargaining units accept the employer’s offer, that unit’s strike will end.   A rejected vote means the strike continues.  CUPE 3093 has recommended that the membership reject the employer’s offer.

Battling Unfair Labour Practice Complaints:  The Pleadings 

Secondly, both parties filed unfair labour practice complaints against each other.

Here are the pleadings filed by both parties.

Here is CUPE 3093′s Schedule A (statement of alleged facts and the arguments) in support of the unfair labour practice.

Here is York University’s Response to CUPE’s complaint and also its particulars in support of its own unfair labour practice complaint against CUPE.

These pleadings are a great source of background information about the collective bargaining issues and history and the strike.  They also demonstrate the complexity of the issues involved and the large gap between the perspectives of the parties which helps explain the ongoing industrial conflict that colours this relationship.

The CUPE 3093 Complaint

CUPE 3093 filed an unfair labour practice on March 21 against York that alleged three separate violations of the Labour Relations Act.  

Two of the complaints relate to alleged public misrepresentations by York of CUPE’s positions in bargaining which CUPE alleges constitute bad faith bargaining (in violation of Section 17 of the Labour Relations Act) and Sections 70 and 73, which prevent employer interference with the administration of the union and the union’s representation of its membership.

The third complaint is that the employer violated Section 70 of the LRA (interference in the administration of a union) when it or someone acting on behalf of York purchased the domain name “CUPE3093.com” and then created a redirect from that URL to York’s strike website.   I discussed this curious event and how it could be the basis for an unfair labour practice if York was involved in a post about a week before the complaint was filed.   It will be interesting to see who is responsible for creating the redirect through CUPE3093.com.   The domain host GoDaddy is named in the complaint and we should expect to learn the identify of the secret purchaser of “CUPE3093.com” soon.

York has denied any involvement.  If York is not involved, then presumably it was someone sympathetic to York who went through the effort of buying the domain name and creating the redirect during the last strike and the current one.   Your guess is as good as mine why someone would bother doing this.

The York University Complaint

In an interesting twist, York has counter-filed its own bad faith bargaining complaint against CUPE 3093 in addition to responding that CUPE’s complaints are meritless.

York argues that CUPE is engaged in bad faith bargaining by bargaining to impasse an attempt to bring back guaranteed funding for “incoming Masters’ students” and have those graduate students treated as York employees as was the practice in the past.  York changed the model so that graduate funding was not tied to a job, with the result that many graduate students no longer have jobs at York.  Because these students are no longer employees of York, York argues that CUPE’s attempt to bargain them back into the bargaining unit constitutes an attempt to unlawfully extend the scope of the unit by striking.

The labour board has found in the past that it is a violation of the duty to bargain in good faith to “bargain to impasse” an extension of the bargaining unit.  York argues that this is what is happening in relation to CUPE’s attempt to bargain protections for masters’ students who are not York employees.

York also argues that CUPE has violated Section 76 of the Labour Relations Act which prohibits unions and union supporters from using intimidation or coercion to compel people to refrain from exercising their legal rights.  York alleges that union officials and people acting on behalf of the union have engaged in a “campaign of public intimidation and harassment” that violates the Act, including through Twitter posts which are attached as an exhibit to the Employer’s response.  The main complaint seems to be comments made about “scabs”, which in this case would be instructors in CUPE’s bargaining units who are crossing the picket line to continue teaching their courses.

Conclusion

Often complaints filed during a strike never in fact get litigated, because once the strike is resolved there is often no point in going further with the litigation.  Hopefully the strike will be resolved soon, although the tone of these complaints demonstrates that the parties have some serious labour relations tensions to deal with.

If these complaints do get litigated, they will make for some interesting law.   I think it is fair to say that some of the issues and arguments being made are complex and it is not obvious to me what way they would be decided.

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March 28 2018

A curious little case out of British Columbia recently made international news.  I first read about the case in The Guardian from England, and later saw a story in the Washington Post.  Pretty amazing for a short little nonsuit motion heard at the B.C. Human Rights Tribunal!

Here is the decision called Rey v. Milestones Grill and Bar.

The case engages material in my Law of Work text found in Chapter 26 (Putting Human Rights to Work), 27 (What Are the Prohibited Grounds of Discrimination?), and 28 (The Bona Fide Occupational Requirement and Other Discrimination Defences).

Facts

Rey had worked as a server at a Milestones in Vancouver since 2015.   He is from France.   The restaurant made employees sign an anti-harassment and bullying “Workplace Policy” and a letter that acknowledged that “intentionally speaking to a Guest or Associate in a rude or unfriendly manner” could be grounds for dismissal.  The employer agreed that Rey was a good server.   At times, the employer talked to Rey about his behaviour towards co-workers and Rey claimed that on more than one occasion the General Manager had said that it might be because of Rey’s “culture” that other workers find him “aggressive”.

A performance review dated April 6 2017 indicated that Rey had received excellent customer feedback and that he was very professional with this tables, but also noted that Rey can be “combative and aggressive” and that he has a temper.  In July 2017, Rey was given a Corrective Action Form after he had a disagreement with a coworker and member of management.  At some point after this, Rey was temporally suspended from work (which might have been grounds for constructive dismissal), but that incident was not fully explained.

The event that led to Rey’s termination occurred on August 14 2017.  Rey  instructed a fellow server to finish his tasks.  That server went to the office to complain about Rey harassing him.  Rey showed up at the office  and is alleged by the employer to have been aggressive and rude with the server and a manager.  On August 16, the employer terminated Rey for being “aggressive, rude, and disrespectful” to the manager and the coworker, behaviour about which Rey had been warned before.  In the termination meeting and a follow-up email, Rey argued that he was being fired for his French culture, which he argued is “more direct and expressive”.

The Human Rights Complaint

Rey filed a human rights complaint, arguing that he was terminated for reasons related to his culture contrary to Section 13(1) of the B.C. Human Rights Code, which prohibits discrimination in employment based on, among other grounds, ancestry and place of origin.  An exception exists where the discrimination is “based on a bona fide occupational requirement” (Section 13(4)).  The employer applied to the Tribunal asking it to dismiss the case on the basis that it had no reasonable basis of success.

The Decision

Not surprisingly I think, the Tribunal dismissed the employer’s application.  The burden is on the employer to establish that there is no possible basis for a complaint.   At a hearing, Rey would need to show that his termination was related in some way to his French ancestry.  At this preliminary stage, the Tribunal does not hear evidence or make findings of fact, but rather looks at the information submitted in the pleadings.

The Tribunal ruled that there was very little information to go on, but certainly Rey had included sufficient evidence which if true would bring the complaint into the realm of discrimination based on ancestry.  The Tribunal summarized its decision like this:

I am denying the Restaurant’s application because it bears the burden at this stage of persuading me to dismiss Mr. Rey’s complaint without a hearing. The threshold for a complaint to proceed to a hearing is low – it must be taken out of the realm of conjecture. Given that there is at least some evidence supporting an inference that Mr. Rey’s ancestry was a factor in the termination, and given how little other information I have about what happened, I cannot find that the Restaurant has met its burden on this application. A Tribunal Member will have to hear the evidence and make factual determinations about what happened in Mr. Rey’s employment, and whether stereotype operated to hold him to an unjustifiably higher standard than his colleagues. At a hearing, Mr. Rey will have to lead evidence about what exactly the stereotype is with respect to people from France. In that regard, a Tribunal Member will be unlikely to accept, without evidence, that French people are perceived as aggressive in Canadian workplaces. Mr. Rey will have to explain what it is about his French heritage that would result in behaviour that people misinterpret as a violation of workplace standards of acceptable conduct.

Therefore, the case can proceed to a hearing.

As the Tribunal notes, at the hearing Rey will need to present evidence that demonstrates that there is a stereotype that French people are aggressive in the work setting.  What do you think that evidence could be?  A quick Google search of “French stereotype” led me to this story in The Telegraph entitled “The Truth Behind French Stereotypes:  From Its Surly Waiters to its Lousy Music.”     Curiously, that article was published on August 15 2017, one day before Rey was fired.  The author lists “French Waiters are Rude” as the number one stereotype:

The cliché: French waiters are surly, and this is a bad thing. As recently as June last year, French foreign minister Laurent Fabius claimed that France was suffering from a “welcome deficit” which meant overseas visitors perceived the country as unfriendly. Including its waiters. “Even City Hall is telling us to be more smiley,” Bernard Migneau, head waiter at Paris bistro Le Petit Machon told The Wall Street Journal. “We are all experiencing real pressure from L’Office de Tourisme to be cheerier and chattier – more American. But it isn’t going to happen tomorrow.”

There you go.   Do you think the Tribunal will accept newspaper articles like this as evidence?  Should Rey start searching for a sociology professor with expertise is social stereotypes to give expert evidence?

Personally, I prefer the French stereotype encaptured by Pepi Le Pew – “heeey, a lady feminine female skuunk ..  in the spring, a young man’s thoughts turn to thoughts of fancy..”   If Rey had been fired for sexual harassment, maybe we’d have seen the classic “Pepi Le Pew Defense”!  To dream.

Questions for Discussion:   What is the Employer’s Defence?

Seriously though, let’s assume that Rey can make out his case because there is smoking gun evidence (as he alleges) that managers had remarked in the past about how his French background explains his attitude at work, which is the source of the employer’s concern.   Here is a good employment law practice question:

Would the employer nevertheless have a valid defence?   The employer would no doubt argue the bona fide occupational requirement defence found in Section 13.   That requires application of the so-called Meiorin decision (see Box 28.2 in The Law of Work).   Do you think that the employer could satisfy the requirements of the Meorin Test?  What is the “standard” or rule that is being challenged in this case?  Do you think that standard or rule would meet the “reasonably necessary” component of the test?

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