Welcome to Rights Angle, the ACLRC blog. Here, ACLRC's lawyers and educators seek to provide insight on the human rights and civil liberties issues that are important to Albertans today.
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Case Commented On:Alberta Union of Provincial Employees v Alberta,2018 ABQB 524 (AUPE)
Justice GS Dunlop of the Alberta Court of Queen’s Bench recently heard an application for judicial review of a three-day suspension and termination of a long-standing employee of the Province of Alberta. For just about 30 years, Todd Ross (Ross) was a Correctional Peace Officer (CPO) employed by the Province. He was a member of the Alberta Union of Provincial Employees (AUPE) and was also a union representative (AUPE at para 1). In April 2013, a new Edmonton Remand Centre opened (AUPE at para 2). Ross had been terminated on June 28, 2013 on three grounds:
His communication with management about the new Edmonton Remand Centre in April 2013; Ross wrote and sent two emails to the Executive Director and the Assistant Executive Director of the new Edmonton Remand Centre, which the arbitrator had described Ross as ‘insolent, insubordinate and untruthful’; Ross had also erred when he addressed his comments to the Deputy Minister and the Assistant Deputy Minister;
His actions when he was relieved with pay on April 26, 2013; and
His actions while he was on leave with pay after April 26, 2013; the employer alleged that Ross had induced other CPOs to engage in an illegal strike between April 26 and May 3, 2013—however, the arbitrator held that this allegation was not proven (AUPE at paras 10 and 11).
Case Commented On:In-Line Contracting Partnership v Alberta (Workers’ Compensation Appeals Commission), 2018 ABQB 529.
In-Line Contracting Partnership v Alberta (Workers’ Compensation Appeals Commission) (ILCP) is a decision regarding the proper interpretation of “suitable” permanent modified work in the context of the policies of the Worker’s Compensation Board (“WCB”). On November 3, 2013, Tracy McKnight, who worked as a labourer on a road construction crew, suffered four broken ribs and a soft tissue injury when a co-worker fell on her (ILCP at para 1). Ms. McKnight took time off work, during which time she was compensated by the WCB. By March, the WCB found that Ms. McKnight was able to return to work, and her employer, In-Line Contracting Partnership (“In-Line”), offered her a job as a labourer, which Ms. McKnight rejected. A few months after, the WCB was alerted to the fact that Ms. McKnight had not fully recovered, and is now suffering from a permanent disability. This was communicated to In-Line, who offered Ms. McKnight modified work, which she once again rejected. The Appeals Commission for the WCB found that the job offer for permanent modified employment was not suitable according to the WCB’s guidelines (ILCP at para 3). ILCP is an appeal from the WCB’s Appeals Commission to the Court of Queen’s Bench.
CCase Commented On:Canadian National Railway Company v Teamsters Canada Rail Conference, 2018 ABQB 405 (CanLII) (CNR)
Canadian National Railway (CNR) applied unsuccessfully to the Alberta Court of Queen’s Bench (ABQB) (per Justice W.N. Renke) for a review of the Arbitration Award made under Case No 4510, December 5, 2016 (the Award). Because CNR is a federal undertaking, the applicable legislation includes the Canada Labour Code, RSC 1985 c L-2 (CLC) and the Canadian Human Rights Act, RSC 1985 c H-6 (CHRA).
CNR terminated an employee (Grievor) for innocent absenteeism on January 30, 2015. The Teamsters Canada Rail Conference (Union) submitted a grievance opposing the termination. Because CNR declined the grievance, the matter went to Arbitration (before Arbitrator John Moreau) as provided for in the Memorandum of Agreement between CNR and the Union (CNR at paras 3 and 4). The Grievor was successful at the Arbitration, and Justice Renke upheld the Arbitrator’s decision.
Case Commented On:Aboriginal Peoples Television Network v Alberta (Attorney General), 2018 ABCA 133 (CanLII) (APTN)
In 2011, Casey Armstrong was stabbed to death, leading to the arrest of Wendy Scott and Connie Oakes, a Cree woman. Scott pled guilty to the second-degree murder charge, while Oakes decided to undergo a jury trial, which led to her eventual conviction (APTN, at para 4). During Oakes’ trial, Scott acted as a key witness for the Crown. On cross-examination, Scott was questioned about three videotaped statements she had made to the police following her arrest. To highlight the inconsistencies between Scott’s in-court testimony and the police statements, specific small portions of the videotapes were played to the jury and judge. Although only parts of the tapes were shown, the trial judged marked the videos collectively as “Exhibit F for identification” (APTN, at para 5).
The Canadian Charter of Rights and Freedoms (Charter) provides protection from discrimination in s 15(1). Section 15(2) allows governments to establish programs to ameliorate historical disadvantage of particular minority groups. These programs are sometimes referred to as “affirmative action programs”.
In 2015, the Alberta Human Rights Tribunal (AHRT) found that a private school in Calgary (Webber Academy) had unlawfully discriminated against two Muslim high school students by prohibiting them from performing certain prescribed Sunni prayers on the school campus. The AHRT awarded the students $12,000 and $14,000 respectively as damages for distress, injury and loss of dignity (see 2015 AHRC 8 (CanLII)). The Court of Queen’s Bench of Alberta (per Justice G.H. Poelman) upheld that decision (see 2016 ABQB 442 (CanLII), and see the ABlawg post on this decision). Webber Academy appealed the decision to the Alberta Court of Appeal (ABCA), adding new constitutional issues. The Court of Appeal (per Justices Jack Watson, Patricia Rowbotham, and JD Bruce MacDonald) sent the matter back to the AHRT for re-determination after it has heard appropriate evidence and argument on all the issues. The ABCA held that the AHRT was better placed to make the necessary findings of fact, mixed fact and law, or questions of law alone that were within its jurisdiction. The ABCA noted that there may be remaining discrete issues under the Canadian Charter of Rightsand Freedoms, such as the constitutionality of s 4 of the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA), which prohibits discrimination in services customarily available to the public, including education. The ABCA ordered a new hearing with a new panel of the Tribunal, and the AHRT was ordered to refer any Charter questions by way of a stated case to the Court of Queen’s Bench for resolution. (Webber at para 52).
Campbell involves an appeal from a decision of the Chief Electoral Officer of Alberta to sanction Jarrett Campbell and Jaskaran Sandhu during the provincial election held on May 5, 2015. The Chief Electoral Officer applied to the Court of Queen’s Bench for guidance regarding what should be contained in a Certified Record produced by the Electoral Officer under Alberta’s Elections Act, RSA 2000, c E-1 [Elections Act]. The main issue before the court was whether the Chief Electoral Officer was able to redact information that is confidential and irrelevant to the appeal (Campbell, at para 2).
Clearly, challenges surrounding drug and alcohol testing policies and procedures take up quite a bit of time and energy of companies, unions, arbitrators and eventually, courts. The factual context is very important in these cases. This leads to the courts often deferring to the fact finding and conclusions drawn by tribunals.
The facts in this case were summarized by Madam Justice Ritu Khullar as follows. Grievors Landon Potter and Nolan Vanderkley (“Potter” and “Vanderkley”) were part of a site crew installing transmission towers at a remote location outside of Fort McMurray (CEWA, at para 2). The site was accessed by a narrow road with portions that did not permit two-way travel. A Nodwell, a 65,000-pound vehicle that is 25-feet-long and 13-feet-wide, with restricted visibility on the sides, was at the bottom of the hill on the narrow portion of the road and needed to be moved (CEWA, at para 2). Vanderkley directed Potter to move the Nodwell into the working area, and unbeknownst to Potter, Vanderkley next backed his company Ford truck to the side of the road, into the blind spot of the Nodwell, in order to allow a third vehicle to pass. Potter decided to back the Nodwell up to go into the worksite instead of driving forward, and Vanderkley spotted the Nodwell at the last moment and moved forward, but was unable to completely avoid being hit by the Nodwell, incurring some damage to the Ford truck (CEWA, at para 3). Although Potter had done a circle check to ensure there were no obstructions, he had not used a spotter to help him back up and did not see Vanderkley’s truck (CEWA, at para 4).
Ric Mclver, a member of the Legislative Assembly of Alberta, made comments during Question Period about power companies. His comments were subject to a complaint that he was in conflict of interest as his wife is a sole shareholder and director of a power company. The Ethics Commissioner investigated and determined that he breached the Conflict of Interest Act, RSA 2000, c C-23 [CIA][Any following references to legislative sections are assumed to be to the CIA unless otherwise noted] and eventually sanctioned Mr. McIver. He was ordered to apologize to pay $500 and to apologize to the Legislative Assembly. In an application for judicial review, Mr. McIver challenged the Ethics Commissioner’s decision and argued that she exceeded her jurisdiction in interfering with his free speech.
There has been a great deal of attention in the media lately about allegations of sexual assault and sexual harassment in the workplace. The current “#MeToo Movement” was thought to have started after public accusations of sexual misconduct by former American film producer Harvey Weinstein. The hashtag #MeToo actually developed from the term “Me Too” coined by American civil rights activist, Tarana Burke, who had used the term since 2006 to raise awareness about sexual abuse and sexual assault in. In October 2017, when after allegations were made against Harvey Weinstein, actress Alyssa Milano encouraged social media users to tweet #MeToo (or its equivalent in other languages) widely in order to raise awareness about the prevalence of sexual harassment and sexual assault.
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