Category Archives: Labour/Employment

“Majoritarian Blind Spot”? Drug Dependence and the Protection Against Employment Discrimination

By: Jennifer Koshan

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Case Commented On: Stewart v Elk Valley Coal Corp., 2017 SCC 30 (CanLII)

The Supreme Court of Canada released its decision in Stewart v Elk Valley Coal Corp., 2017 SCC 30 (CanLII) on June 15, 2017. As noted in earlier ABlawg posts on the case (see here and here), the case involves a long-term employee whose job was terminated when, after a minor workplace accident, he tested positive for cocaine and admitted to having consumed the drug while off work a couple of days prior. Elk Valley Coal, the employer, had a policy providing some lenience for employees who disclosed drug or alcohol addictions and sought treatment, failing which its practice was to automatically terminate employment where an employee tested positive for drugs or alcohol following a workplace accident. Stewart did not avail himself of this policy because he did not realize he had an addiction until after the accident. He alleged that his termination amounted to discrimination on the basis of disability contrary to section 7 of the Alberta Human Rights Act, RSA 2000, c A-25.5, and that he had not been reasonably accommodated by Elk Valley. Stewart’s claim was dismissed by the Alberta Human Rights Tribunal, a decision upheld by the Court of Queen’s Bench and a majority of the Alberta Court of Appeal. A majority of the Supreme Court of Canada (per Chief Justice McLachlin) upheld as reasonable the Tribunal decision that there was no discrimination. Justices Moldaver and Wagner disagreed with this conclusion but concurred in the result, finding that the Tribunal was reasonable in concluding that Elk Valley had fulfilled its duty to accommodate. Justice Gascon dissented, characterizing the Tribunal’s decisions on both discrimination and the duty to accommodate as unreasonable.

I find Justice Gascon’s decision most persuasive and most in keeping with a broad, generous approach to interpreting human rights legislation. His remark (at para 59) that drug-dependent persons can “easily be caught in a majoritarian blind spot in the discrimination discourse” was evident in the decisions of the Tribunal and courts below, and in the reasons of the majority of the Supreme Court, as I will elaborate on in this post. Continue reading →

Recent Developments in Domestic Violence Law and Policy in Alberta

By: Jennifer Koshan

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Legislation and Report Commented On: Bill 2, An Act to Remove Barriers for Survivors of Sexual and Domestic Violence; Family Violence Death Review Committee Annual Report 2015-2016

Statistics Canada’s most recent report on family violence indicates that although the rate of family violence reported to the police was stable across the country overall from 2014 to 2015, Alberta experienced a 2% increase in the rate of family violence during this period (Family violence in Canada: A statistical profile, 2015 at 37). Shelters in Alberta also report an increase in the number of calls to their crisis lines and for shelter space since 2014. At the same time, results from Canada’s 2014 General Social Survey showed that 7/10 self-reported victims of spousal violence did not report the violence to police, often because they viewed the abuse as a “private matter” (Family violence in Canada: A statistical profile, 2014 at 10).

Within this context, two recent developments in Alberta merit discussion. Bill 2, An Act to Remove Barriers for Survivors of Sexual and Domestic Violence, removes the limitation period that would otherwise restrict the time within which civil claims for damages can be commenced in domestic violence and sexual assault cases, and the Family Violence Death Review Committee’s 2015-2016 Annual Report makes several recommendations for changes to Alberta law and policy to better deal with family violence issues. Continue reading →

Update on the Rights of Farm and Ranch Workers in Alberta

By: Jennifer Koshan

PDF Version: Update on the Rights of Farm and Ranch Workers in Alberta

Legislation and Reports Commented on: Bill 6, The Enhanced Protection for Farm and Ranch Workers Act; Report to Ministers – Technical Working Group: Employment Standards Code; Report to Ministers – Technical Working Group: Labour Relations Code

Bill 6, The Enhanced Protection for Farm and Ranch Workers Act, made amendments removing the exclusion of farm and ranch workers from Alberta’s labour and employment legislation in January 2016, with varying timelines for implementation (for earlier posts on Bill 6 see here and here). Some of those timelines allowed for a consultation process to work through the details for including these workers in the relevant legislation. Technical working groups (TWGs) were established to make recommendations regarding the inclusion of farm and ranch workers in the Employment Standards Code, RSA 2000, c E-9, Labour Relations Code, RSA 2000, c L-1, and Occupational Health and Safety Act, RSA 2000, c O-2. Two of the TWGs have now reported, and this post will provide a brief summary of those reports, as well as the current state of inclusion / exclusion of farm and ranch workers in the legislation.

As a result of Bill 6, farm and ranch workers are now included in the Workers’ Compensation Act, RSA 2000, c W-15 (WCA), when they do paid work for farm or ranch employers. Unpaid workers, family members and children are not covered under the WCA unless their employer opts in. Recent statistics show that since Bill 6 came into force, 763 claims for workers compensation from agricultural workers have been processed, including 407 that involved a disabling injury. Continue reading →

The Enhanced Protection for Farm and Ranch Workers Act One Year Later

By: Jennifer Koshan

PDF Version: The Enhanced Protection for Farm and Ranch Workers Act One Year Later

Legislation Commented on: Bill 6, Enhanced Protection for Farm and Ranch Workers Act, 29th Legislature, 1st Session (2015-2016)

It has been exactly one year since the government introduced Bill 6, the Enhanced Protection for Farm and Ranch Workers Act, in the Alberta Legislature. The Bill made amendments removing the exclusion of farm and ranch workers from Alberta’s labour and employment legislation, and eventually passed in December 2015 after heated debate (for an earlier post on Bill 6 see here). The Bill went through some amendments during legislative debates, notably exempting family members and unpaid farm and ranch workers from inclusion in the Occupational Health and Safety Act, RSA 2000, c O-2 and Workers’ Compensation Act, RSA 2000, c W-15. The government also constituted broad-based working groups to make recommendations on implementing Bill 6, and the inclusion of farm and ranch workers in employment standards, labour relations and occupational health and safety legislation was suspended pending these consultations. In spite of these concessions, the Wildrose party – which vociferously argued against the Bill – reiterated its intent to “kill Bill 6” at its convention in Red Deer in late October. Continue reading →

Age Discrimination in Long Term Disability Plans: Reasonableness Not Required in Alberta

By: Linda McKay-Panos

PDF Version: Age Discrimination in Long Term Disability Plans: Reasonableness Not Required in Alberta

Case Commented On: International Brotherhood of Electrical Workers, Local 1007 v Epcor Utilities Inc, 2016 ABQB 574 (CanLII) (IBEW ABQB)

This case demonstrates grievance arbitration panels’ shared jurisdiction with the Alberta Human Rights Commission on human rights issues. It also shows one of the fairly rare circumstances when individuals (or their employers) can effectively contract out of human rights protection. The International Brotherhood of Electrical Workers (IBEW) Local 1007 represented Darrell McGowan in a grievance wherein he asserted that he was forced to resign and access his pension instead of being able to access his long term disability (LTD) benefits. The LTD Policy negotiated between McGowan’s employer (Epcor) and its third party benefits provider (Sun Life) expressly excluded access to LTD benefits for people “who retire or those who are eligible to retire with a full pension” (Re Epcor Utilities Inc. and IBEW, Local 1007 (McGowan), 2015 CarswellAlta 1657 (IBEW Arbitration) at 2).

McGowan had worked for Epcor for 36 years and had been receiving LTD payments for about a year when his payments ceased as he reached pensionable age. McGowan’s Union argued that the provision in the LTD Policy constituted discrimination against McGowan on the basis of age and/or disability. The Union reasoned that the policy was discriminatory because those who are disabled and thus eligible for LTD benefits, but who intend to and are potentially able to return to work, or who may recover from a disability and be accommodated by the employer, are not eligible to receive LTD benefits (IBEW Arbitration at 2). Continue reading →