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Transportation

Human resources director allowed to attend Examination for Discovery of COO, provide instructions to lawyer

Jurisdiction: - British Columbia
Sector: - Transportation

At issue in Oates v. Williams Moving & Storage (B.C.), 2009 BCSC 1628, was which employer representatives could attend an Examination for Discovery ("Examination") in a wrongful dismissal lawsuit.

An Examination is a proceeding that allows each party to question the other party under oath about the issues in dispute prior to the trial.  The transcripts from the Examination can then be used by the parties at the trial to assist in arguing their case. 

Background

The employer had initially taken the position that its Director of Human and Organizational Capital (the "Director") was the appropriate corporate representative to be examined by the former employee.

The former employee, however, chose to examine the employer's Chief Operating Officer ("COO"). The employee had the right to make this request under Rule 27(4) of the BC Supreme Court Rules.  read more »

Majority of Supreme Court of Canada rules that national freight forwarder is provincially regulated

Jurisdiction: - Alberta - Canada/Federal
Sector: - Transportation

In Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, the majority of the Supreme Court of Canada ruled that a national freight forwarder is provincially regulated.

Postscript:

Change in circumstances was transfer of business, not termination; no severance owing under Canada Labour Code

Jurisdiction: - Canada/Federal

Group 4 Falck (Canada) Ltd. and Abdulla (Re) (October 13, 2009, Canada, T. Hodges)

Air Canada Pilots Association applies for judicial review of CHRT decision on mandatory retirement

The Air Canada Pilots Association (ACPA) issued a news release today announcing that they have applied to the Federal Court for judicial review of the Canadian Human Rights Tribunal (CHRT) decision in Vilven v. Air Canada, 2009 CHRT 24, which called into question the retirement age provision of the pilots' collective agreement with Air Canada.

Canadian Human Rights Tribunal decision may signal death knell for mandatory retirement in federal sector

On July 1, 2009, Nova Scotia amended its human rights legislation in order to prohibit mandatory retirement in most cases.  This means that every province and territory in Canada has now either prohibited mandatory retirement outright, or only allows it if it is based on bona fide retirement or pension plans, or a bona fide occupational requirement.

The same cannot be said for federally regulated employers in Canada.

Section 15(1)(c) of the Canadian Human Rights Act (the "Act") still permits employers in the federal sector to impose mandatory retirement policies on their employees if they have reached "the normal age of retirement for employees working in positions similar to the position of that individual".

Sections 15(1)(a) and 15(2) of the Act provide that mandatory retirement policies are not discriminatory if they are based on a bona fide occupational requirement.  read more »

"Employee Super-Priority Under the WEPPA and the BIA: Comments on Ted LeRoy Trucking Ltd. and 383838 B.C. Ltd."

Jurisdiction: - Canada/Federal
Sector: - Transportation

Vancouver lawyers Mary I.A. Buttery and Cindy Cheuk prepared a paper entitled "Employee Super-Priority Under the WEPPA and the BIA: Comments on Ted LeRoy Trucking Ltd. and 383838 B.C. Ltd. (Re)" for the May 29, 2009 Bankruptcy and Insolvency CLE.

The paper sets out the implications of the 2008 Wage Earner Protection Program Act "on insolvency practice and provides a brief analysis of Ted LeRoy Trucking Ltd. and 383838 B.C. Ltd. (Re), 2009 BCSC 41, the only reported decision regarding the WEPPA (as at the date of this paper) since the legislation came into force."

(Update: the BC Court of Appeal upheld the trial judge's decision in 2010 BCCA 223).

Court finds that Attendence Management Program does not amount to systemic discrimination

Jurisdiction: - British Columbia
Sector: - Transportation

In a decision issued a few weeks ago - Coast Mountain Bus v. CAW-Canada, 2009 BCSC 396 - the BC Supreme Court found that Coast Mountain Bus' Attendance Management Program (AMP) did not amount to systemic discrimination and that the monitoring of absences of employees who are regularly off work is a bona fide occupational requirement (BFOR). In doing so, the court overturned much of the BC Human Rights Tribunal's February 2008 decision on the matter.

Coast Mountain's predecessor company had first introduced the AMP in 1997. It applied to all of the company's employees, including its approximately 3,000 unionized transit operators.

The AMP had previously been the subject of a labour arbitration in 2000. Subsequent to the arbitrator's award - which allowed certain aspects of the grievance - the union filed a complaint with the BC Human Rights Tribunal (BCHRT).  read more »

BC Court of Appeal further defines standard of review for arbitrations under the Canada Labour Code

Jurisdiction: - Canada/Federal
Sector: - Transportation

In a case handed down last week, the BC Court of Appeal further defined the standard of review that applies to a labour arbitrator's decision, in light of the Supreme Court of Canada's (SCC's) decision in Dunsmuir v. New Brunswick, 2008 SCC 9.

The employer in this case was a federally regulated trucking company, meaning that the Canada Labour Code was the governing legislation.

In response to a judicial reveiw application, the BC Supreme Court had set aside the arbitrator's decision as it related to the scope of the grievance, and remitted the matter back to the arbitrator.

On appeal by the employer, the BC Court of Appeal noted that in Dunsmuir the SCC had concluded that there were now only two standards of review: correctness and reasonableness. The SCC further noted that, based on the jurisprudence, the reasonableness standard applies where:  read more »

BC Maritime Employers Association and Int'l Longshoremen and Warehouse Union Local 514 ratify collective agreement

Jurisdiction: - Canada/Federal
Sector: - Transportation

The BC Maritime Employers Association and the International Longshoremen and Warehouse Union Local 514 have ratified a new collective agreement, according to a story in today's Globe and Mail.

The dispute involved 450 ship and dock foremen who had been without a contract since March 2007. Local 514 had set a strike date of January 2, 2009, but had stayed on the job as negotiations continued.

The agreement was reached on February 13, 2009 with the assistance of two conciliation officers appointed from the Federal Mediation and Conciliation Service pursuant to section 72 of the Canada Labour Code.

The Union held its ratification vote on February 24, 2009 and accepted mail-in ballots until March 5, 2009.  read more »