Appealing employment tribunal decisions may be easier

by Joanna M. Carvalho

A recent decision by the Supreme Court of Canada may make it easier for employees and employers to appeal decisions of administrative agencies to the courts.

In Canada, and from an HR perspective, such agencies include labor boards, labor arbitrators, human rights tribunals, pay equity tribunals, and employment standards adjudicators.

Imagine an employee files a human rights complaint. The employee claims that he was denied a promotion because of his race. Imagine that your company fights the case before the human rights tribunal . . . and wins!! Imagine that before you can even put down your celebratory cocktail(s), the employee appeals the decision to the courts.

You thought the decision was final and that the matter was put to rest. In a panic, you immediately call your labor and employment lawyer and ask:

• I thought we weren’t in court. How can they appeal to a court now?
• Is the employee likely to win in court?
• How will the court decide whether the tribunal came to the right conclusion?
• Should a court be able to overturn the decision of the human rights tribunal?
• How can a judge, who deals with all kinds of matters, like contract disputes, divorces, or criminal prosecutions, be in a better position to decide whether the employee’s human rights were violated?
• Shouldn’t the human right tribunal members who have years of expertise in human rights law be in the best position to decide?
• And, of course, what is this going to cost me?

These are the questions that have plagued courts and lawyers for some time in “administrative law,” the body of case law that governs the activities of administrative agencies.

Traditional thinking is that courts are in the best position to decide questions of general law, and specialized administrative agencies are in the best position to decide factual questions and specialized legal issues related to their specialty.

For example, an employee alleges that a supervisor sexually harassed him or her. The case goes before the human rights tribunal. All the members of the human rights tribunal hearing the case must have several years of experience in human rights law. In this case, the tribunal is probably in a better position than a court to decide whether the employee was sexually harassed.

In contrast, take the example of an employee who alleges that the employer violated a term of the employment agreement, such as a stock option plan. In this case, a court is arguably in as good or better position to decide whether a breach of contract occurred than a tribunal because the courts are accustomed to interpreting contracts.

The following factors have been applied to determine the extent that a court should intervene in an administrative tribunal’s decision:

• whether the law governing the tribunal expressly provides a right of  appeal to a court;
• the purpose of the administrative agency (for example, is the primary purpose to educate the public or to resolve disputes?);
• the nature of the question at issue; and
• the expertise of the administrative agency.

And then there were two
Until recently, Canadian courts used those four factors to decide which of three “standards of review” should be applied to the decisions of administrative tribunals: (1) “correctness,” (2) “reasonableness,” or (3) “patent unreasonableness.”

The courts would look at the four factors to decide whether they should be more ready to intervene based on the “correctness” standard; more reluctant to intervene based on the “reasonableness” standard, or most reluctant to intervene based on the “patent unreasonableness” standard.

The recent decision by the Supreme Court of Canada changes this. In Dunsmuir v. New Brunswick, the court eliminated the “patently unreasonable” standard of review. From now on, decisions of administrative tribunals will be reviewed to determine simply whether they are “correct” or “reasonable.”

How does this impact you?
While it remains to be seen what the practical outcome of this decision will be, there is speculation that lower courts may see this change as a reason to give less deference to administrative agencies. Indeed, a court no longer has to find that the administrative tribunal’s decision was “patently unreasonable” to intervene and reverse a decision.

The bad news? Employees who were unsuccessful before an administrative tribunal may be more likely to give it “another kick at the can” as the standard to overturn such a decision may now not be as high.

The good news? In the same manner, employers who were unsuccessful before an administrative tribunal may also benefit from having a greater right to take the tribunal’s decision to court to be reviewed.

So put down your glasses and pick up your pens (and your Canadian lawyer will grab his or her robe). It may be time to go to court!

Don’t let ‘enhanced’ severance be a surprise during terminations

by Rosalie Cress

Since the concept of at-will employment isn’t recognized in Canada, U.S. employers need to understand how terminations are handled in their operations north of the border. Are you confident that your termination decisions are in line with Canadian law? And what about the “enhanced” severance known as “Wallace damages”? Are you clear on that concept?

Here’s a key difference between United States and Canadian employment laws: In Canada, unless termination is for just cause, employees are entitled to notice or payment in lieu of that notice. Also, unless an employment agreement expressly provides otherwise, the courts may allow a terminated employee notice or payment of an amount that the court considers reasonable.

This “reasonable” notice or pay is based on the employee’s age, position, length of service, and the availability of alternative employment. Such notice is usually more than the statutory minimum. Plus, the courts can award extra notice or pay if the employee has been treated unfairly during termination. So it’s important that you understand what you’re up against when letting employees go. (more…)

When can you terminate a disabled unionized employee in Canada?

by Marie-Hélène Maheu

Canadian discrimination laws, like those in the United States, generally require employers to make accommodations for employees with disabilities. By law, employers must accommodate to the point of “undue hardship,” but undue hardship is difficult to define and is assessed on a case-by-case basis.

What happens when employee rights come up against your rights as an employer under a union agreement to terminate an absent employee after a specified period? Just how far must you go in accommodating an employee who is considered totally disabled and unable to work for the foreseeable future? (more…)

Collective bargaining - now it’s constitutionally protected

by Donovan Plomp

In a landmark decision, the Supreme Court of Canada has decided collective bargaining is a right protected in the national constitution.

The court’s extension of “freedom of association” under the Charter of Rights and Freedoms to include a right to collective bargaining is a reversal of previous Supreme Court decisions. (more…)

Canada’s top court signals tougher days ahead on accessibility

by Tara McPhail

Canadian human rights laws require employers to accommodate employees and customers with disabilities up to a point. What point? The point at which the accommodation would constitute “undue hardship” on the employer. But what makes an undue hardship? A recent Supreme Court of Canada decision appears to set a high threshold for the undue hardship defense.

The court upheld a federal regulatory order forcing Canada’s primary passenger railway operator, VIA Rail, to spend tens of millions of dollars to provide better access to passengers in wheelchairs.

The decision (Council of Canadians with Disabilities v. VIA Rail Canada Inc.) has a major impact on transport services including airlines and interprovincial bus companies. More broadly, the decision also influences the way Canadian courts and human rights tribunals are going to approach the issue of how far employers must go to accommodate employees and customers with disabilities. (more…)