Case Considered: R. v. Northern Forage Inc., 2009 ABQB 439.

PDF Version: Who is a Farm Worker? And Why Does it Matter?

Alberta marked its 5th annual Farm Workers Day on August 20, 2009. As in previous years, the event provided an opportunity to advocate for equal protection for farm workers under Alberta’s labour and employment laws. Farm workers are currently excluded from the following laws: (1) protections regarding wages, overtime, holidays, and hours of work (see Employment Standards Code, R.S.A. 2000, c.E-9, section 2(4)); (2) mandatory coverage for workers compensation (see Workers’ Compensation Regulation, Alta. Reg. 325/2002, Schedule A); (3) work-related health and safety protections (see Occupational Health and Safety Act, R.S.A. 2000, c. O-2, section 1(s)); and (4) protections related to the unionization of workers (see Labour Relations Code, R.S.A. 2000, c. L-1, section 4(2)(e)). This makes Alberta one of the most lax provinces in Canada in terms of farm worker protection. Groups such as the Alberta Federation of Labour have called for an end to such exclusions, and a recent inquest into the fatality of agricultural worker Kevan Chandler led Judge Peter Barley to recommend that “paid employees on farms should be covered by the Occupational Health and Safety Act…” (at 7). Until the Alberta government amends the relevant legislation, however, questions may arise as to which workers are covered by the exclusions.

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Report considered: Standing Committee on Citizenship and Immigration, Temporary Foreign Workers and Non-Status Workers (May 2009)

PDF version: Canada’s Temporary Immigration System

“If a person is good enough to work here, a person is good enough to stay here.” This was the sentiment expressed in the recently released Report of the Standing Committee on Citizenship and Immigration, entitled Temporary Foreign Workers and Non-Status Workers (40th Parl., 2nd Sess. (May 2009)). Canada’s Temporary Foreign Worker’s Program was established to meet short-term labour shortages in the Canadian economy. Despite this initial goal, it has actually become more of a long-term solution to labour shortages and for immigrants wishing to make Canada their home. Temporary Foreign Workers (TFWs) remain in Canada for longer than the intended period, but maintain their “temporary status” and the limited rights that go along with that.

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Case considered: Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission), 2009 ABQB 241, overturning Donald Luka v. Lockerbie & Hole Industrial Inc. and Syncrude Canada, Alberta Human Rights and Citizenship Commission, February 15, 2008 (Beth Bryant)

PDF version: To Employ or Not to Employ: Is That the Question?

An appeal of a Human Rights Panel (”Panel”) decision brings to the fore an issue that has arisen in many human rights cases. When there is a complaint of discrimination in the area of employment under s. 7 of the Human Rights, Citizenship and Multiculturalism Act, R.S.A 200, c. H-14 (”HRCMA“), who will be considered an “employer”? This is especially pertinent in the current marketplace in Alberta where workers are often contractors or sub-contractors.

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Case Considered: United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 488 v. Bantrel Constructors Co., 2009 ABCA 84

PDF Version: Employee Alcohol and Drug Testing Once Again At Issue

Alcohol and drug testing of employees is a tricky issue from a legal perspective. For example, in an earlier post, I commented on Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, 2007 ABCA 426, where in cases of pre-employment drug testing, there seem to be conflicting court decisions that make it challenging to implement effective policies. (Since the post was written, the Supreme Court of Canada denied the Alberta Human Rights and Citizenship Commission’s application for leave to appeal on May 29, 2008). What about the situation where an employer seeks to implement a new drug testing policy to apply to existing unionized employees as a condition of access to a construction work site?

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Cases Considered: Brewer v. Fraser Milner Casgrain LLP, 2008 ABCA 435;
Baum v. Calgary (City), 2008 ABQB 791

PDF Version:  Disability Discrimination in the Workplace

Two recent Alberta decisions (one from the Court of Queen’s Bench and one from the Court of Appeal) illustrate the significance of the process followed by decision-makers when analyzing whether, under the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14 (”HRCMA“), a person has been discriminated against, and, if so, whether the employer has accommodated the person to the point of undue hardship. As noted by Madam Justice Eidsvik in Baum v. Calgary (City), 2008 ABQB 791 (”Baum“): “Accordingly, the law on the duty to accommodate has become quite well developed however, the initial test [see #1 below] has been sparsely discussed until recently” (at para. 29). These two cases illustrate this observation.

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Cases Considered: Magnan v. Brandt Tractor Ltd., 2008 ABCA 345

PDF Version:    Mandatory Retirement and Wrongful Dismissal: An Age Old Question of Compensation for Discrimination

It has long been a legal principle in Canada that there is no recognized tort of discrimination; people should be pursuing remedies for discrimination from human rights tribunals: Board of Governors of Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181. This basic principle is supported by another principle: there is no recognized cause of action for breach of a statute, especially in negligence: Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. These principles were considered earlier this year in Honda Canada Inc. v. Keays, 2008 SCC 39, where the Supreme Court held that breach of a human rights code does not amount to an independent actionable wrong. However, a recent decision of the Alberta Court of Appeal confirms that these legal principles can be blurred when it comes to remedying wrongful dismissal that contains an element of discrimination.

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Cases Considered: Lethbridge College Board of Governors v. Lethbridge College Faculty, 2008 ABQB 316

PDF Version:  Important Lessons from Lethbridge College

A recent matter at Lethbridge College carries some important lessons. A psychology professor with 12 years of service was fired after the College discovered he had sexual relationships with three of his undergraduate students. In each case, the relationship had begun shortly after the students had taken his course, although the flirtation had begun during the term. Each of the relationships was consensual, two of the students were relatively close in age to the professor, and he had known two of the women prior to their becoming his students. These relationships were discovered by College administration when the third relationship ended unhappily and the student filed a complaint with the dean. In her complaint, she alleged that the professor had taken advantage of his position as her instructor to inveigle his way into her affections. Based on the complaint, the College searched the professor’s emails and discovered the previous two relationships. In both those cases, the (now former) students remained on friendly terms with the professor and had taken subsequent courses from the professor, without disclosure of the previous relationship either by the professor or the students.

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Cases Considered: Walsh v. Mobil Oil Canada, 2008 ABCA 268

PDF Version:  Court of Appeal Rules in Walsh Case: End of a Seventeen Year Journey?

People often cite the length of time it takes to resolve human rights complaints as a deterrent to making such complaints. Delorie Walsh’s case may be cited as an extreme example. And, if the respondents appeal the current decision to the Supreme Court of Canada, the case might not be over yet.

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Cases Considered: Director of the Alberta Human Rights and Citzenship Commission, et al. v. Kellogg Brown & Root (Canada) Company, 2007 ABCA 426

In the May 29, 2008 version of his S.C.C. L@wletter Eugene Meehan reports that the Supreme Court of Canada has dismissed the application of the Director of the Alberta Human Rights and Citizenship Commission for leave to appeal in the case of Kellogg Brown & Root (Canada) Company (at the time of writing the SCC’s decision on leave to appeal is not yet available on its website). For posts on the Alberta Court of Appeal’s decision in this case, see Linda McKay Panos, “Court of Appeal Sends Court of Queen’s Bench Decision to Rehab” and David Corry, “Drug Testing: A Wake-up Call to the Courts”. Linda and David disagreed about the correctness of the Alberta Court of Appeal’s approach, which overturned the decision of Madam Justice Sheilah Martin and upheld the position of the employer. It is unfortunate that the Supreme Court will not take advantage of the opportunity to clarify the law in this area. This leaves it uncertain for employers, employees and human rights tribunals whether perceived addiction to alcohol and drugs is covered by human rights legislation, and in what circumstances employers are entitled to implement drug and alcohol testing policies without running afoul of human rights legislation.

Cases Considered: United Nurses of Alberta, Local 33 v. Capital Health Authority (Royal Alexandra), 2008 ABQB 126

PDF Version: Employment and Disability: Some of the Challenges

The recent decision of Justice D.A. Sulyma in United Nurses of Alberta, Local 33 v. Capital Health Authority (Royal Alexandra) provides insight into the challenges faced by both an employer and an employee in accommodating a disability in the workplace. The employer seeks information about the disability and how it should be accommodated, while the employee seeks to protect his or her privacy, in addition to an accommodation of the disability. The court must sort these issues out while also determining whether the employee has a disability.

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