In this decision, the Union successfully argued that automatic exclusion of employees on methadone from a safety-sensitive workplace is discriminatory. The Employer refused to allow the Grievor to work because he was undergoing methadone maintenance therapy for opioid addiction. Richard L Edgar and Janna Crown represented the Union and argued that an individualized assessment of the Grievor’s abilities was required. The arbitrator agreed with the Union and struck down the Employer’s blanket rule of not allowing employees to work while undergoing methadone maintenance therapy. Expert evidence adduced at the hearing established that at least some individuals are able to work in safety-sensitive environments while undergoing methadone maintenance therapy, and there was evidence that the Grievor had safely worked for another employer in a similar safety-sensitive environment while undergoing methadone maintenance therapy.
The Parent obo the Child v. The School District, 2020 BCCA 333
Lindsay A. Waddell and Sara Hanson successfully represented the Respondent, the Parent obo the Child, in upholding the chamber judge’s decision which found that the BC Human Rights Tribunal erred by applying the incorrect legal test for determining whether the Parent could rely on lawyer advice error to allow his late-filed complaint to proceed in the public interest under s. 22(3) of the BC Human Rights Code. The Court of Appeal further agreed with the Parent’s submission that the incorrect legal test was an extricable error of law that rendered the decision as a whole patently unreasonable as defined in section 59(4) of the Administrative Tribunals Act.
Providence Health Care (St. Paul's Hospital) and Health Sciences Association, unreported
Lindsay A. Waddell and Natasha L. Edgar successfully represented the Union in this grievance. The Employer had prevented the grievor from changing her vacation leave to union leave in order to attend a union training course. In denying the leave, the Employer had failed to follow the union leave requirements in the Collective Agreement. The Arbitrator agreed with the Union that union leave is an important right that had been bargained for, the Employer had not properly complied with the union leave provisions of the Collective Agreement, and granted the grievance.
Read the decision here.
Vancouver Shipyards Co. Ltd. v. CMAW, Local 506 Marine and Shipbuilders (“J.S.” Grievance) (unreported)
The Union successfully argued that the Employer was not justified in conducting post-incident testing of the grievor. The arbitrator held that slowly driving a forklift to within 3-5 feet of another person before stopping and alerting them was not a “significant incident”. In any event, the Employer had failed to sufficiently investigate the incident.
Read the decision here.
College of Midwives of British Columbia v. MaryMoon, 2020 BCCA 224
In College of Midwives of British Columbia v. MaryMoon, 2020 BCCA 224, the BC Court of Appeal upheld a prohibition on the use of occupational titles reserved to members of health professions colleges to describe a person’s work as a justified limitation on freedom of expression.
Lindsay Waddell and Daniel McBain of Moore Edgar Lyster LLP represented the intervenor, the College of Speech and Hearing Health Professionals of British Columbia (“CSHBC”). CSHBC argued that the prohibition was necessary to enable members of the public to identify who is, and who is not, a regulated professional, and that this was particularly important to newly regulated professions that do not have the benefit of widespread public recognition. Without a restriction on title usage, newly regulated professions would not be able to build the necessary public awareness and health care consumers would be vulnerable to unqualified and unregulated individuals.
Read the decision here.
Vancouver Drydock Co. Ltd. v. Marine Workers and Boilermakers Industrial Union, Local 1, 2020 CanLII 75896
The arbitrator agreed with the union that the results of drug testing that was ruled to be improper, including any evidence that flowed directly from the testing (referral to an IME doctor, monitoring, etc), was not admissible in the proceeding. To admit the evidence would tacitly condone improper drug testing. In doing so the arbitrator disagreed with an approach found in some Alberta cases, including ATCO Electric [2017] A.G.A.A. No. 7, a case which employer’s typically rely upon to seek to admit such evidence.
Read the case here.
Association of Professional Engineers and Geoscientists of the Province of British Columbia v. Heringa (unreported)
The Association successfully argued that the Member’s failure to provide information it requested during a complaint investigation was serious professional misconduct that thwarted the Association’s ability to conduct its investigation efficiently and undermined its public interest mandate. The penalty sought by the Association was ordered.
Read the determination on liability here.
Read the determination on penalty and costs here.
Vancouver Drydock Co. Ltd v. Marine Workers and Boilermakers Industrial Union, Local 1, 2020 CanLII 75896
The Union successfully argued that the Employer did not have the right to require the greivor to take a urine test pursuant to its substance use policy. The Arbitrator agreed with the Union that the Employer did not have reasonable grounds to insist on a urine test, including because there were no signs of impairment. The Arbitrator further agreed with the Union that whether it has grounds to demand a breath test (for alcohol), a urine test (for drug use), or both, must be considered by the Employer and it is not automatic that just because the Employer had reasonable grounds to demand a breath test, that it had grounds to demand a urine test.
View the case here.
Lafarge Canada v International Brotherhood of Boilermakers, Lodge D385 (Aguilar - Hours of Work Grievance)
The Employer unilaterally created an afternoon shift that had not been negotiated with the Union and assigned an employee to it. All shifts in the agreement had traditionally been negotiated. The Arbitrator agreed with the Union that the Employer could not create a non negotiated shift (except for abnormal or emergency circumstances) and allowed the grievance.
The take away is that when parties negotiate specific shifts and hours for employees those must be respected and cannot be unilaterally changed pursuant to “management rights”.
The case can be read here.
Canada Post Corporation v. Canadian Union of Postal Workers, 2020 BCSC 503
Tamara Ramusovic and Natasha Edgar, on behalf of the Union, successfully defended a judicial review petition seeking to overturn a labour arbitrator’s decision. The BC Supreme Court dismissed the employer’s petition for reason of undue delay in filing the petition with the Court. Although there were no applicable statutory timeframes for the filing of the petition, we successfully argued that in the circumstances of the case, the employer’s delay in seeing judicial relief was unreasonable and undermined the proper functioning of labour dispute resolution in general, and the parties’ contractual choices about how to resolve their disputes under their collective agreement.