Significant Decisions 2

Question 1

R. v. Barton-Upon-Irwell (1814)

Answer 1

• Case about master servant law
• Employee was convicted and sentenced for disobeying the master. Master asked for the employee to be released and that they return to work
• Employee was again charged with disobeying the master. Employee argued that the first conviction nulled the previous master servant contract. Courts disagreed
• Until this conviction was over turned in 1857, conviction for misbehaviour or desertion did not bring the employment contract to an end, but rather the worker had to return to worker after imprisonment and could be recommitted again and again until the contract’s term came to an end

Question 2

Turner v. Mason (1845)

Answer 2

• Servant asked to visit her during mother overnight and was denied. She went anyway and was fired. Servant brought a claim to court for not providing notice
• Courts deemed that employee contract was terminated with cause such there was contactual requirement to provide notice of termination
• involves duty of obedience which was narrowed in scope as courts began to suggest that higher skilled workers were only required to obey orders directly related to work

Question 3

Queen v. Cognos Inc. (1993)

Answer 3

Queen was offered a job in Ottawa and left Calgary to accept that job. However, the representative for Cognos Inc. did not inform Queen that the job was dependant on on funding.

Queen was eventually let go after moving their family and working for Cognos inc for 17 months. The supreme court of Canada found that the employer committed the tort of negligent misrepresentation as they failed to disclose important information that was known was known at the time of the job interview (that the funding was not garanteed)

The Supreme Court of Canada confirmed that negligent misrepresentation was now firmly entrenched in in Canadian tort law.

Question 4

Rejdak v. Fight Network Inc. (2008)

Answer 4

Rejdak argued that a verbal job off made by The Fight Network included the salary amount, job title, start data and the requirement that the employer provide “reasonable notice”.

Rejdak quit their job and began work at The Fight Network. During Rejdak’s first day, they were given a new employment contract that allowed him to be terminated without notice during probation. Rejdak was later terminated during the probation period. Rejak argued that the termination without notice during probation was not enforceable as the reasonable notice was verbally agreed to before hand.

The courts ruled in Rejdak’s favour. The verbal contact was enforceable. If an employee signs a contract after verbally agreeing to the job, the contract is considered an amendment and in only enforceable if there is new consideration.

Question 5

Lloyd v. Imperial Parking Ltd. (1996)

Answer 5

Lloyd quit his job after months of verbal abuse and threats by a supervisor. He sued for constructive dismissal.

The employer was found to have committed a fundamental breach of contract as there is an implied duty of decent treatment of employees. The employer failed to put an end of the verbal abuse as well as being dishonest with the employee and offering them money to go away.

This case is one of earliest decisions to explicitly recognize and apply the implied term requiring decency, civility, respect, and dignity

Question 6

Machtinger v. HOJ Industries Ltd. (1992)

Answer 6

Employment contract between Machtinger and HOJ industries permitted HOJ to dismiss Machtinger on giving employee 2 weeks notice or salary in lieu of notice. This is in violation of the Ontario Employment Standards Act which requires that Machtinger receive 4 weeks notice. Machting later sued for wrongful dismissal arguing they were entitled to longer notice.

The supreme court ruled that the illegal clause was void and replaced with the implied terms required by employment standards. The courts admitted that employees sign contracts unaware of their legal rights. This admittion influenced modern interpretations of employment contracts

Question 7

Bardal v. Globe and Mail Ltd. (1960)

Answer 7

Bardal was an advertising manager with 16.5 years of service when is contract was terminated. His employment contact said nothing about notice required. Justice McRuer ruled that one year was reasonable notice considering Bardal’s years of service. This case described factors judges are to consider in the calculation of reasonable notice (the Bardal factors).

Question 8

Bardal factors

Answer 8

Criteria considered by Canadian courts in assessing the length of time required by the implied obligation to provide “reasonable notice” termination of an employment contract. The name comes from the leading decision called Bardal vs. Globe and Mail Ltd. decided in 1960.

There are 4 Bardal factors:

1. Length of Service
2. Age of employee (person who is 21 will be able to find work more easily then someone who is 65)
3. Character of the Employment (Was the employee a manager? Employees in non-manager positions traditionally are granted less notice than managers)
4. Availability of Similar Employment (courts tend to grant shorter notices in economic booms)

Question 9

McKinley v. BC Tel (2001)

Answer 9

McKinley had high blood pressure and their doctor instructed them to take leave from work. The doctor subsequently told McKinley that they could return to work if they took medication. McKinley did not tell their employer about the medication option and asked the employer to accommodate them in a less stressful job. The employer declined to provide an alternative job and terminated McKinley. McKinley sued for wrongful dismissal. The employer later argued that McKinley not disclosing the medication as an option was ground for termination.

The courts ruled that the lack of disclosure was not sufficient for summary dismissal. In earlier cases, any dishonestly was causes for summary dismissal, but the courts dismissed this.

The Supreme Court noted that it was applying a “principle of proportionality” that requires the court to find a balance between the misconduct and the punishment. This resulted in the balance of probability test

Question 10

Farber v. Royal Trust Co. (1997)

Answer 10

Farber’s job was eliminated de to restructuring . Farber was offered his old job which was managing a smaller branch and Faber was told that his earnings wold be based on commissions alone. Farber is not report to the new job and quit. Farber’s quitting was deemed be be constructive by courts.

The Supreme Court of Canada noted the demotion warranted a finding of constructive dismissal.

Question 11

Honda Canada Inc. v. Keays (2008)

Answer 11

Keays became ill after working at Honda for 11 years. The employer requested doctors’ notes but were not happy with the letters for Keays doctor. The employer demanded that Keays be looked at by an employer chosen doctor. Keays refused and was dismissed. Keays sued for wrongful dismissal. Keays was wrongfully dismissed as Keays refusal is not cause for summary dismissal.

The courts ruled that Keays was wrongfully dismissed. This case caused the court to reconsider the Wallace approach. Damages would be not awarded by extending the notice period anymore. Courts must access whether the manner of the dismissal actually caused the employee real physical mental harm. if so then the courts assign a dollar amount to the harm.

It reformed the manner in which damages are to be awarded in cases of wrongful dismissal, and
It declared that such awards were not affected by the type of position an employee may have had and replaced the Wallace approach.

Employees now need medical evidence that establishes that employee suffered hard caused by the employers insensitive behaviour rather than the fact of being dismissed

Question 12

McKinney v. University of Guelph (1990)

Answer 12

McKinney was forced to retire at age 65 and he launched a Charter challenge against the university and Ontario’s human rights code. The Supreme Court ruled that the Charter did not apply to the university as it was not government, but it did apply to Ontario’s human rights code.

The Supreme Court of Canada applied the Oakes test ans decided that all parts were satisified and thus the Human Rights Code was premitted to remain and McKinney lost his Charter challenge

The discriminatory definition of age (18-64) remained until 2006 when it was change to 18 years or older

the Supreme Court of Canada case that decided that, for the purpose of determining the application of the Canadian Charter of Rights and Freedoms, universities were not part of government. Therefore, the mandatory retirement age for university teachers did not violate equality rights under section 15 of the Charter. In reaching this holding, the Court refined the scope of the Charter as it applies to government bodies as well as the definition of “law” within the ambit of the Charter.

Question 13

Vriend v. Alberta (1998)

Answer 13

Vriend was fired from an Alberta college after they learned that he was gay. Vriend filed a complaint under the provinces Individual’s Rights Protection Act but could not as Alberta did not prohibit employment descrimination on the basis of sexual orientation. Vriend filed a Charter challenge.

Alberta was found to be violating the Charter as the the Supreme Court has ruled that sexual orientation was a analogous ground to those expressly included in section 15. It was ordered that Alberta read in sexual orientation into the Individual’s Rights Protection Act.

Important Supreme Court of Canada case that determined that a legislative omission can be the subject of a Charter violation. The case involved a dismissal of a teacher because of his sexual orientation and was an issue of great controversy during that period.

Question 14

Public Service Alliance of Canada v. Canada Post Corp. (2011)

Answer 14

The Public Service Alliance of Canada (PSAC) filed a pay equity complaint under section 11 of the Canadian Human Rights Act. It alleged that the femal dominated job class of clerical and regulatory workers were paid less than the male-dominated class of postal operations employees. The Human Rights Tribunal ruled that the female and male jobs were comparable job classes of equal value and that the erical and regulatory workers were paid less than the postal operations employees.

Canada Post apealed the desicion to the Supreme Court of Canada, but the desicion was upheld.

Question 15

Central Alberta Dairy Pool v. Alberta (1990)

Answer 15

Christie was a member of the World Wide Church of God during his time at Central Alberta Dairy Pool. His employer refused to give him Easter Monday off as because employees were required to work that day. When Christie did not show up, he was fired. Alberta’s human rights tribunal found the Central Alberta Dairy Pool violated the statur and ordered the employer to pay back wages.

The refusal to grant the time off was seen as indirect discrimination and was contrary to the Alberta Individual’s Right Protection Act. The Supreme Court of Canada ruled as such. In this case the rule requiring employees to work Mondays was rationally connected to the job, but the employee failed to demonstrate that it would cause undue hardship by allowing the employee time off.

The Court expanded on the concept of accommodation up to undue hardship first established in Ontario (Human Rights Commission) v Simpsons-Sears and provided a set of factors to consider when evaluating undue hardship.

Question 16

British Columbia v. BCGSEU (“Meiorin”) (1999)

Answer 16

Meiorin was hired as a firefighter by the British Columbia Ministry of Forests and worked for them for several years. The government intorduced a new fitness standards test. Meiorin pass 3 of out of the 4 tests, but was 49 seconds late on the last. She was fired and she filed a grievance with her union and argued that the standard is discriminatory as women as less likely to meet the standard.

The Supreme Court agreed that the standard was discriminatory on the basis of sex. Until this decision, the BFOR defense was only availbile in BC in case of direct discrimination. This meant the old test was no longer useable. The Supreme Court introduced a new test which became know as the Meiorin test.

Question 17

Entrop v. Imperial Oil Ltd. (2000)

Answer 17

Entrop has an drinking problem 7 years ago. Imperial Oil ltd introduced a new drug policy that required workers to in safety-sensitive jobs to disclose past substanceabuse problem and take random drug tests. Entrop disclosed his problems and was transfered, but was reinstated to his former position but Entrop had to agree to several terms including random drug testing. Entrop filed a human right complaint alleging discrimination based on disability.

Ontario Court of Appeal confirmed that drug and alcohol addiction are disabilities. The employers testing punishes anyone who tests postive, and not all who test postives are addicts. The drug and alcohol policy was prima facie discriminatory. The first two parts of the Meiorin test were satisifed, but the third was not. The policy was not reasonably necessary to identify impaired workers as it did not measure current impairment. Automatic termination was deemed to extreme.

Question 18

Ontario Human Rights Commission v. Simpsons-Sears (“O’Malley”) (1985)

Answer 18

Simpsons-Sears store were O’Malley work was open 7 days a week. O’Malley joined the Seventh-day Adventist Church and they observed the Sabbath which was from sundown on Friday to sundown on Saturday. O’Malley’s managers would not allow them to take the Sabbath off as Friday and Saturday are mandatory work days. The employer reassignment O’Malley as a part time employee which reduced hours, income, and benefits. O’Malley filed a human rights complaint and appealed to the Supreme Court

The employer was required to accomodate and Simpsons-Sears had discriminated against O’Malley. The Supreme Court allowed O’Malley’s appeal, stating that the doctrine of indirect or non-intentional discrimination was now part of Canadian law, and thus the employer was violating the Ontario Human Rights code. The Supreme Court also ruled that employers had the duty to accomodate.

Is a leading Supreme Court of Canada decision where the Court first acknowledged the existence of indirect discrimination through conduct that creates prejudicial effect.

Question 19

Central Okanagan School District No. 23 v. Renaud (1992)

Answer 19

Renaud was a unionized employee and they request Friday evenings off as their faith prevented them from working. The only shift that could accomodate would violate part of the collective agreement and would give them a preferred shift without the seniority. The union threatened to file a grievance if the employee was given the spot, so the employer filed them. The employee filed a religious discrimination complaint under the BC Human Rights Act against.

The Supreme Court ruled that the duty to accomodate sometimes requires the violation of a collective agreement and the union is obligated by the duty to participate in the accomodation process. The collective agreement cannot absolve that parties from the duty to accomodate. Therefore the term that stands as an obstacle must be wavied. Accomodation is everyone’s business and it elaborated on the content of duty.

Is a leading Supreme Court of Canada decision where the Court found that an employer was under a duty to accommodate the religious beliefs of employees to the point of undue hardship.

The SupremeCourt explained that unions can breach their accommodation duty in one of two ways, (1) by signing a collective agreement that contains a discriminatory provision (2) by standing in the way of a reasonable accommodation proposal

Question 20

Eastmond v. Canadian Pacific Railway (2004)

Answer 20

Canadian Pacific Railway installed cameras in the mechanical facility in the rail yard as a response to vandalism. The Privacy Commissoner found the security benefited the employer was outweighted by the intrusion into employees privacy. This was becaus there was an absence of statistics to show a demonstrable need for the cameras and that cameras could have an adverse psychological effects on employees.

The Federal Court disagreed with the Privacy Commissoner and found that a reasonable person would consider the use of cameras appropriate after vandalism. The Court made this decision because the footage was deleted after 96 hours and collection of person information was not continious. Employees’ consent was not requiredto record theirimages because the exception for personal information “without consent or knowledge” in a section of PIPEDA applied. That section elimated the need for an employer to seek consent when doing so “would compromise the availibility oraccuracy of the information and the collection is reasonable for the purposes related to investigatice a breach of contract.”

Question 21

Jones v. Tsige (2012)

Answer 21

Tsige was in a common law relationship with the with Jones’ former husband. Tsige reviewed Jones’ banking records at least 174 times over four years. Tsige claimed she access the bank records in order to determine if Tsige’s partner was paying child support. Tsige was disciplined by the bank.

The court recoginzed as new common law tortfor breach of privacy and called it a right of action for “intrusion upon seclusion.” In its analysis and consideration of the right to privacy, the court found that Charter jurisprudence afforded constitutional protection to the right to privacy and characterized privacy as a Charter value.

Question 22

Jones v. Tsige (2012)

Who is the plaintiff and who is the defendant?

Answer 22

plaintiff: Jones
defendant: Tsige

Question 23

Dunmore v. Ontario (2001)

Answer 23

In 1994, the Ontario government under the New Democratic Party of Ontario passed the Agricultural Labour Relations Act which gave trade union and collective bargaining rights to Ontario’s agricultural workers. The following year, the Conservatives were elected into power and subsequently passed the Labour Relations and Employment Statute Law Amendment Act (LRESLAA), which repealed the 1994 Act and terminated any collective agreements made under that Act.

Tom Dunmore, Salame Abdulhamid, Walter Lumsden and Michael Doyle with support from the United Food and Commercial Workers brought an application on behalf of the agricultural workers of Ontario to challenge the LRESLAA as a violation of their right to freedom of association and equality rights under sections 2(d) and 15(1) of the Charter respectively.

a leading Supreme Court of Canada decision on the constitutional right to freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms (“Charter”). The Court held that the lack of a positive framework that protected farm workers from employer reprisals for exercising their associational rights under the Charter constituted a “substantial interference” of their right to freedom of association. The Ontario government responded with the Agricultural Employees Protection Act, which extended only to agricultural workers and prohibited employer reprisals against employees exercising their rights under section 2(d) of the Charter.

Question 24

Ford Motor Company v. United Automobile Workers Union (1946)

Answer 24

Unionized workers began a stike at the Ford Motor Company as they were not able to come to a collective agreement. The two main issues were that the union wanted (1) require the employer to deduct union dues from each employee and remit the money to the union (2) require all employees covered by the collective bargaining to become union members.

Justice Ivan Rand split the difference. He did not require all workers to join the union but did require them to pay union dues and such dues should be “checked off” by the employer and remitted to the union.

Check off clauses soon appeared in collective agreements acrossing Canada. Provinces enacted laws that effecticly requiring mandatory union dues checkedoff.

Question 25

Health Services and Support v. British Columbia (BC Health Services) (2007)

Answer 25

Unionized health care wokers brought a Charter challenger against a new law (Health and Social Serives Delivery Improvement Act) that suspended collective bargaining in the health sector, unilaterally imposed new collective agreement terms and cancelled others and prohibited unions from bargaining topics.

According to the government, the Act was adopted to deal with a crisis in raltion to the high medical costs in the province. The Supreme Court ruled that Freedom of assoication protects a right to collective bargaining and the government voilated section 2(d) by passing legislation tbat negated terms of previous collective agreements and imposed other terms without consulting or bargaining with the affected workers. The right to collective bargain includes an obligation on employers to consider collective representatives from employee assoication in good faith and to engage in a meaning dialogue with the association about those reps

Question 26

RWDSU Local 558 v. Pepsi-Cola Canada Beverages (2002)

Answer 26

Employees picketed in frontof the employers factory, but then also established picket lines at some managers’ homes, at a hotel where replacement workers were staying, andat various retail outlets that sold Pepsi. The employer applied to the courts seeking a injunction to restrain picketing. The lower court issued the injunction and stop the tortious AND secondary picketing. The ruling was appealed.

The Supreme Court of Canada ruled the common law should evolvein a manner condidtent with Chartervalues. Picketing is an expressive activity and therefore “engags one of the highest constition freedoms: freedom of expression.” Ths Court introduced a new “wrongful action model”: all labour picktering is lawful unless it is done in manner that constites a tort or voilates some other law. No crime was commited by the picketers at the retail stores selling Pepsi, thus were entitled to picket

Question 27

Saskatchewan Federation of Labour v. Saskatchewan (2015)

Answer 27

Saskatchewan enacted the Public Services Essential Services Act which prohibited “essential service employees” from striking. It defined “essential services” broadly and granted the employer unilateral right to determine whichand how many employees were “essential”. The legistlation did not Provide for a neutral substitute mechanism for disputes in the event of an impasse. The Saskatchewan Federation of Labour challenge the legislation as a voilation of section 2 (d).

The Supreme Courtof Canada ruled that the “freedom of association” protects the right to strike. Striking is a “power house” of collective bargaining that promotes equality.

A law the explicitly bans the right of workers to strike or that renders the right to stirke effectivly meaningless voilates section 2 (d)

Question 28

Weber v. Ontario Hydro (1995)

Answer 28

Weber was an unionized employee of Ontario Hydro and suffered from a back disability that left him unable to work and they received sickness benefits provided for in collective agreement. OH suspected the Weber was lying and hired a private investigator who used deception to gain access to Weber’s home. Relying on the investigators report, OH suspended Weber. Weber filed a grievance challenging the suspendsion. the greivence as settled but Weber also filed a lawsuit against OH.

The Supreme Court of Canada adopted whit is call the “exclusive jurisdiction model”. If the nature of the dispute can be said to arise under a collective agreement, then labour arbitration is the exclusive forum that must hear and resolve the dispute. The Supreme Court ruled that labour arbitrators have broad remedial authority, including the right to find breaches of the Charter and to order damages for Charter voilation as well as to order common law damages for tortious harm

Question 29

International Woodworkers of America Local 2–69 v. Consolidated Bathurst (1983)

Answer 29

International Woodworkers of America and Consolidated Bathurst Packaging finished a collective agreement in early 1983. One of items that was put forward by the union wasto give employees greater benefits in the case that the plant closed, put the union dropped it. Consolidated Bathurst had considered closing but did not inform the union. Soon after the agreement came into effect, Consolidated Bathurst announced they were closing the planet. The union filed a bad-faith bargaining complaint argueing that the employer knew they were going to close during bargaining despite the employer stating otherwise.

The employer was found to be bargaining in bad faith as they had a legal duty to disclose. The employer must answer the union’s questions truthfully, and the employer must disclose on its own inititative decisions that have already been made and that “will have a signifcantimpact on terms of employment”, such as discontinuing the workplace.

The court could not force the employer to reopen asthey had sold most of equipment. Instead they were forced to pay damages to the union and employees

Question 30

Retail, Wholesale & Department Store Union v. T. Eaton Company (1985)

Answer 30

T. Eaton became unionized in the 1980’s. The OLRBcerified separate bargaining units for full-time and part-time employees, which was normal at the time. This resulting in over a dozen bargaining units. The union proposed that there would be one mast collective agreement thatwould apply to all stores but Eaton refused. They insisted on separate negotiations for each unit. This meant that bargaining would drag on for months. The employer refused to pay unionized workers more than than workers at non-unionized stores. The union decided to strike at all six stores. The union filed a complaint alleging the employer was bargaining in bad faith.

The OLRB ruled that Eaton had not bargained in bad faith as this was a caseof “hard bargaining”. There is nothing improper in Eaton’s use of bargaining power.

Question 31

Lumber and Sawmill Workers Union v. KVP Co. Ltd. (1965)

Answer 31

Resulted in the KVP test
A rule unilaterally intorduced by a company, and not subsequently agreed to by the union, must satisfy thefollowing requisites
1. It must not be inconsistent with the collective agreement
2. It must not be unreasonable
3. It must be clear and unequivocal
4. It must bebrought to the attention of the employee affected before the company can act on it
5. The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is sed as a foundation for discharge
6. Such rule should have been consistently enforced by the companyform the time it was introduced

Question 32

Coca Cola Bottling v. UFCW (1994)

Answer 32

An employee claim LTD but was denied by the insurance company Coca-Cola Bottling has contracted. The union filed a grievance under the collective agreement allegin that the employers were responsible forpaying for benefits. The employer objected to jurisdiction of the arbitrator to hear the gievance arguing that its only obligated to pay the premiums on the insurance contract that offered the benefits required by the collective agreement, which it had done. The dispute is with the insurer not the employer.