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Public Administration

Judge declines to award special costs in case where unionized employee sued employer in court

The BC Supreme Court judge in Johnston v. Surrey (City), 2009 BCSC 1520, refused to award special costs in a case where a unionized employee filed a lawsuit in court against his employer alleging constructive dismissal.


The long term employee filed a lawsuit in spring 2008 against the defendant employer (and a named individual) alleging that he was constructively dismissed.

Upon receipt of the Statement of Claim, the employer advised the employee of its position that:

  1. the circumstances giving rise to the constructive dismissal - a layoff -  occurred in 1995 and 1996 and thus were time barred by the limitation period set out in the BC Limitation Act; and
  2. the employee was a unionized employee and therefore the claim was not within the jurisdiction of the court.

The employee further requested that the Claim be withdrawn failing which the employer would bring an application to strike the Claim pursuant to Rule 19(24) and seek special costs  read more »

BC court rules that employer permitted to reduce post-retirement group benefits, dismissses class action

Topics: - Benefits - Class Actions
Jurisdiction: - British Columbia

In Bennett v. British Columbia, 2009 BCSC 1358, the BC Supreme Court ruled that the employer  - the provincial government - was permitted to reduce post-retirement group benefits, and thus dismissed a class action.  There were approximately 27,000 people in the impacted class.

Law firm Heenan Blaikie has written a summary of the case: "Reduction in Retiree Benefits Sanctioned in British Columbia" (October 7, 2009).

Courts will not enforce fines that unions impose on members who cross picket lines

Jurisdiction: - Alberta - Ontario - Saskatchewan

By dismissing two leave to appeal applications on May 7, 2009 - one from Ontario and the other from Alberta - the Supreme Court of Canada has stipulated that the courts in Canada (save for in Saskatchewan) will not enforce fines that unions impose on their members who cross legal picket lines.

In the Ontario case  - Union of Taxation Employees Local 70030 v. Jeffrey Birch et al. - the employees worked for Canada Revenue Agency and were members of the Union of Taxation Employees Local 70030, a component of the Public Sector Alliance of Canada.

During a legal strike in 2004, the employees crossed the picket law on three days so that they could continue to work. Pursuant to the provisions in its constitution and by-laws, the union suspended the employees' union memberships for three years and also fined them each $476, which was equivalent to the total of the employees' gross salary for the three days.

The employees refused to pay their fines, resulting in the union filing a lawsuit against them in Small Claims Court.  The case was subsequently elevated to the Ontario Superior Court as a test case.  read more »

Birth father must begin parental leave within 52 weeks after child's birth, not complete it within 52 weeks

The issue in British Columbia Securities Commission v. Burke, 2008 BCSC 1244 was whether:

  • a birth father's parental leave must be completed within 52 weeks after the child's birth, or
  • the leave only needs to begin within 52 weeks after the child's birth.

Section 51(1)(c) of the BC Employment Standards Act provides:

An employee who requests parental leave under this section is entitled to:

- - -

for a birth father, up to 37 consecutive weeks of unpaid leave beginning after the child's birth and within 52 weeks after that event.

The Employment Standards Tribunal had determined that the latter interpretation noted above was the correct one. On judicial review, the Court upheld the Tribunal's decision.  read more »

Tribunal finds that no-free standing right to accommodation under the Canadian Human Rights Act

Jurisdiction: - Canada/Federal

In Moore v. Canada Post Corporation, 2007 CHRT 31, the complainant alleged that his employer discriminated against him by failing to accommodate his disability.

On this point, the Canadian Human Rights Tribunal stated:

...I cannot emphasize enough that "failure to accommodate" is neither a prohibited ground of discrimination nor a discriminatory practise under the CHRA. There is no free-standing right to accommodation under the CHRA.

The duty to accommodate only arises in the context of s. 15(2) of the CHRA and only when a respondent raises a bona fide justification by way of defense to an allegation of discrimination. For Mr. Moore to show a prima facie case, he must rely on something other that the failure of CPC to accommodate him (paras. 86-87)