New Website

Summary: This blog is no longer being updated, but I encourage you to look at my new website at briangottheil.com

A few months ago, I posted that I would be discontinuing updates on Legal Gateways. I am now excited to announce that I have launched a new website, briangottheil.com, as an Author Site to promote Gateways (the novel) and connect with my readers and potential readers. I have finally confirmed the decision to go ahead with self-publishing the novel, and I am aiming to release it for e-book and other electronic formats by the end of 2014. Please check out the new site!

As for the Legal side of Legal Gateways, it will not be the focus of the new site, but there is a Brian as Lawyer page on the new site which provides a summary and some useful links on my current activity as a lawyer.

Thank you so much for reading Legal Gateways, and I look forward to seeing you at the new site.

Brian

Future of Legal Gateways, and New Article on Hiring Temporary Foreign Workers

Hi everyone,

You may have noticed that Legal Gateways has not been updated in a little while, and I am pleased to finally be able to announce why that is. I have been asked to become the editor of Norton Rose Fulbright’s employment and labour law blog, Global Workplace Insider, for articles from Canada outside of Quebec. Employment and labour law articles by lawyers from our Toronto, Ottawa and Calgary offices, edited by me, will be posted approximately every two weeks … alongside blog posts from employment lawyers across the globe.

I am excited to have posted earlier today the first article under my new tenure, by my colleague Caylee Rieger. It is about recent changes to Canada’s Temporary Foreign Worker Program, and you can read it here.

What does this mean for Legal Gateways? Since I will be focusing my legal blogging efforts on Global Workplace Insider, I will no longer be updating this blog on legal topics (I will still keep this blog active for a few weeks and link to our new articles).

In light of that, I’ve decided that the other side of Legal Gateways — creative writing — is deserving of a separate blog or website, which I will work on establishing over the next little while. Gateways, the novel, has now been through a second round of edits with my professional editor, and within weeks it will be in a final format. I will then need to decide what to do with it: whether to self-publish it, as had been the plan all along, or whether instead to submit it for publication through more traditional routes. In either case, a new website will probably be a key piece of the promotional puzzle, but the timing may be different depending which option I choose. I’ve also started working on a second creative writing project, which is still in very early stages.

Thanks everyone for reading, and please visit the Global Workplace Insider blog!

All Bets Are Off: Free Expression Trumps Privacy in Supreme Court Picketing Case

When we think of picket lines, we don’t usually think of photographs and video surveillance, but these can be essential weapons on both sides of a labour dispute. In a decision released last month, the Supreme Court of Canada recognized the importance of photo and video surveillance on picket lines – and for unions, at least, made it a constitutional right.

All Bets Are Off

The dispute in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 began when several individuals discovered that they had been photographed and videotaped when they crossed a picket line to get to a casino. One of the individuals was the Vice-President of the casino, whose photo was taken by his striking employees and then printed on various union posters, newsletters and leaflets with “captions intended to be humorous.”

(The Supreme Court doesn’t tell us what those captions were, but I like to imagine that they were casino- and strike-related puns – “cash out or all bets are off,” “if you want a full house you’d better up the ante,” “give management the royal flush,” that sort of thing. They were probably much more banal than that, but a boy can dream.)

Anyway, the individuals complained to the Alberta Privacy Commissioner, who administers a law called the Personal Information Protection Act (“PIPA”). PIPA, like similar legislation in B.C., Quebec and the federal jurisdiction, is meant to protect privacy in an age of computers and smartphones, but the Alberta version is particularly broad. Subject to some exceptions and exemptions, PIPA prevents the collection, use and disclosure of any information about an identifiable person, by any organization, for almost any purpose. Videotaping and photographing people who try to cross a picket line is, according to the Privacy Commissioner, right out.

The union challenged the Privacy Commissioner’s decision before the Alberta Court of Queen’s Bench on the basis that PIPA was unconstitutional, because it interfered with the union’s freedom of expression. That was the dispute that worked its way up to the Supreme Court of Canada.

Express Picketing

The first question the Supreme Court had to answer was whether the union’s activities were protected by the constitutional guarantee of freedom of expression. I found it interesting that all of the parties conceded this. It’s not quite as clear to me.

Obviously, picketing is a form of expression. One of the most important purposes of picketing is to raise public awareness of the issues underlying a strike. Another is to convince the public to support the strike and by getting their goods and services elsewhere. These are fundamental parts of free expression. What about taking somebody else’s picture, though? Certainly the uses that the union made of the Vice-President’s photo were expressive, since it became part of the union’s newsletters and leaflets. But why should taking the photo, in and of itself, be protected under freedom of expression? Why should the union have a constitutional right to take photos of the other two complainants, which it apparently never used?

The Supreme Court’s answer was that one of primary purposes in taking the photos and videos was to persuade people not to cross the picket line. Since it was meant to persuade, it was expressive activity. The Supreme Court seems to be saying that since picketing itself is expressive, tactics that make the picket line more effective – by deterring people from crossing it – will also be expressive.

I have to admit I have an issue with that reasoning. I would have thought that the activity itself, taking the photograph or video, would need to be expressive in order to be protected. At least it would need to be essential to expressive activity like picketing, not just something that makes picketing more effective. But since none of the parties disputed it, and the Supreme Court accepted it, let’s move on.

A Fine Balance

The fundamental question that the Court grappled with was how to balance the picketers’ right to free expression against the privacy rights of individuals who crossed the picket line. The Court recognized the important benefits of PIPA, but ultimately found that they were trumped by free expression.

The Court seems to have focused on just how extremely broad PIPA is in general, rather than on the narrow issue of photographing and videotaping. “What is of the utmost significance in our view,” the Court found, “is that PIPA prohibits the collection, use, or disclosure of personal information for many legitimate, expressive purposes related to labour relations.” No doubt that is true. PIPA would have prohibited not just the collection of people’s images (i.e. the taking of photographs and videos), but also their use in ways that are both expressive and important to picketing: among other things, the newsletters and leaflets already discussed; raising awareness of the picketing online; and persuading police, the public, and if necessary the courts that no improper behaviour took place.

The Court, however, keeps going back to the importance to a picket line of persuading people not to cross it. That is where I still find the decision a bit problematic. Not that I am against picketing – it’s essential to our labour law system – and not that I am against unions trying to persuade people not to cross a picket line, which is important to their ability to mount an effective strike. But here we are weighing other rights in the balance. If privacy violations were necessary in order for unions to picket at all, that would be one thing, but it’s quite different to say that privacy rights should be outweighed merely because the union wishes to use a particular tactic that helps to make picketing somewhat more effective.

What About Employers?

The fact is, employers use picket line surveillance far more often than unions do. The primary purposes on the employer side are to deter violence and property damage and to collect evidence that can be used in legal proceedings, such as injunction proceedings to stop or limit picketing. Despite the pro-surveillance outcome of the case, though, employers will not have much to get excited about. Since the Supreme Court’s main concern was the importance of photographs and videotapes to picketing, the decision is unlikely to assist employers who wish to photograph and videotape picket lines in order to limit picketing.

The Bottom Line

As much as I’ve criticized the Court’s decision here, I actually believe that unions and employers should be permitted to photograph and videotape picket lines. Picket lines are tense, emotions run high, and it is important for both parties to be able to collect the best evidence of what has happened there in the event of a legal challenge. People who march on a picket line, let alone people who cross one, should know that they are in a public place where their privacy can’t be guaranteed. Furthermore, a lot of the union’s reasons for taking photos and videos, which the Supreme Court summarized, are legitimate and probably do make good labour relations sense.

What I’m not certain about is whether this should be a constitutional right, as the Supreme Court found. I’m not certain that a government that chooses for policy reasons to put privacy rights first in this situation should be unable to do so, even if it’s not the policy choice I would personally make.

Ultimately, the Supreme Court struck down PIPA but allowed it to remain in force for 12 months to give the Alberta government an opportunity to amend it. Hopefully, the government will be able to strike an appropriate balance between privacy, labour rights and freedom of expression going forward.

“Your Honour, the Cow Precedent Has Been Reversed by the Cow Precedent Reversal Act!”: The Common Law, Part 3

In the first two installments of this series, we talked about the common law, the way judges create law by requiring future judges to decide similar cases the same way. Judges are far from the only people who make law, though. We also have legislatures, which are full of folks whom we have, for better or for worse, actually elected. Surely they have some role to play in our legal system.

Actually, they have quite an important role, but it’s not the exclusive role that many think. Legislatures can overrule judges, but judges can interpret legislation, leading to a back-and-forth – a conversation – that explains how our laws really evolve and develop.

Open Season on Bovine Thievery

“Parliamentary supremacy” has been a fundamental feature of British-inspired legal systems for centuries. Now that those Parliaments are actually elected (well, the House of Commons is – Parliament also includes the unelected Senate and the Queen, but it’s the elected House where most of the power lies), the rationale is even more compelling. In a democracy, elected officials should generally be able to overrule unelected judges.

Remember the Cow Precedent, the fictional case which says that stealing someone else’s cow is a criminal offence? Let’s say that our elected representatives were not happy with that. Perhaps they are appalled at the concept of private cattle ownership. Perhaps they believe that the criminal system is too harsh to enforce laws about livestock. Or perhaps the Cattle Rustlers’ Association have a strong lobby and it’s an election year.

Whatever the reason, there is nothing stopping Parliament from passing a law which declares that cow-taking is no longer a criminal offence. They are absolutely free to reverse the Cow Precedent and declare open season on bovine thievery. They may even call the new law the Cow Precedent Reversal Act! (If that sounds far-fetched, consider that the Ontario legislature once passed a law called the Amendments Because of the Supreme Court of Canada Decision in M. v. H. Act. Any guesses which Premier oversaw that wording? That’s right, it was Mike Harris, the same one whose government passed the Fairness is a Two-Way Street Act).

But that’s not the end of the story, because guess what will happen the first time someone is charged with theft, and claims innocence because the stolen property was a cow? The case is going to end up in a court, and the Cow Precedent Reversal Act is going to need to be interpreted . . . by a judge.

Taking the Bull by the Horns

Let’s say you stole a bull.

At your trial, your lawyer holds up the Cow Precedent Reversal Act. Is that enough to get you off? It’s not necessarily an easy question.

On the one hand, everybody knows that a bull is different from a cow. The starting point, whenever you’re interpreting a statute, is the plain meaning of the words.

On the other hand, the starting point is not always the ending point. You could certainly argue that when Parliament allowed cows to be stolen, it must have intended to include the male of the same species. After all, the Interpretation Act – yes, there actually is a law which is all about how to interpret other laws – says that words which refer to female persons include male persons, and vice versa. Why couldn’t the same be true of female and male bovines?

For this example, it doesn’t really matter which way the judge decides. Let’s say the judge declares that stealing bulls is still illegal. Guess what that decision is? A precedent! That interpretation of the Cow Precedent Reversal Act must be followed by future judges. And as more and more judges weigh in about what the word “cow” includes (A calf? A side of beef?), an entire series of precedents might start to develop – a common law of how to interpret the legislation.

To make this point in a less silly way, let’s look at one of the statutes that I deal with all the time, the Labour Relations Act, 1995. It’s 168 sections long, and in some places very detailed, but there’s still a lot of room to develop a robust set of precedents, an entire body of labour law.

For example, section 69 of the Act says that if there’s a sale of a business, any union bargaining rights and collective agreements binding on the seller become binding on the purchaser. The purpose is to ensure that unions don’t lose all their rights just because of a technical change in ownership. But what is a sale? The Act helpfully tells us that it “includes leases, transfers and any other manner of disposition,” but that still leaves a lot of room for manoeuvring. And what is a business? The only definition in the Act says that a business includes part of a business, which really doesn’t get us anywhere. What does get us somewhere is the extensive series of Ontario Labour Relations Board decisions that do define these terms, and that show us how they apply (or don’t apply) in different situations.

The fact is, most legislation is extremely general. It has to be, because it has to apply widely. Governments do their best to anticipate different circumstances and address them, but it’s impossible to anticipate every situation where a law might apply. In the common law system, it’s judges who interpret laws in individual cases, and by doing so, build up a system of rules that can be applied to other cases. It’s the judges who – pun intended – put the meat on the bones.

And if Parliament doesn’t like what the judges are doing? They are still elected; they still have Parliamentary supremacy. It’s open to them to say to the judges, “That’s bull!”, and amend the Cow Precedent Reversal Act to say that bulls can be stolen after all. It’s a back-and-forth. As naive as it may sound, it is a conversation.

But Wait, There’s More

Parliamentary supremacy does, of course, have a limit. That limit is the Constitution. As the basic law of the country, the Constitution can never be violated, even by someone who we’ve voted for. How do the common law and legislation fit in here? I’m not committed to writing a Part 4, but if there is interest, that is a place I can explore next.

On Remembrance and Sacrifice

In the weeks leading up to Remembrance Day (Veterans Day in the United States), the traditional debates have begun cropping up online. They tend to centre on whether we should wear the red poppy in remembrance, but beneath fashion choices lies the deeper question: can we commemorate veterans, without venerating war?

To me, perhaps because of my upbringing or my leanings as a historian, Remembrance Day has never carried with it the celebration of war that so many attribute to it, for a simple (and probably too simplistic) reason. Remembrance Day originated to mark the anniversary of the armistice agreement which ended the most horrific war in human history, World War I. The armistice came into effect at 11:00 a.m. on November 11, 1918.  To me, Remembrance Day — and its indelible symbol, the red poppy — have always been about exploring the vantage point of a war just ending, when we finally have the opportunity to pause and take stock of all that has happened. If there is any celebration at all in the day, it is in the bloodshed having ended, in the hope for peace for future generations. Those hopes are tempered, of course, by the horror of war that can only truly hit us once it is over — by mourning all those who sacrificed, military and civilian alike.

I realize that is not what the red poppy means to everybody, and that some find it difficult to see the poppy, or Remembrance Day itself, as a symbol of peace. To be fair, both the symbol and the day have elements of praise and honour for the soldier, which implicitly include honour for what the soldier does. But even that, for me, is far from sufficient to make us turn our backs on the day, or on the poppy. War is terrible, but I have never been able to deny the crucial role that a soldier can play. Perhaps it is the classically overused example, but remembering my grandparents’ experience in the Holocaust is all the proof I need that war, though horrific, can be necessary.

Not, of course, that any of the Allied powers fought World War II to save Jews, just like the Vietnamese didn’t really invade Pol Pot’s Cambodia to save the Cambodians, and the North didn’t really fight the American Civil War to free slaves. But I find it hard to deny that war can have just results, in the right circumstances.

Against those examples are wars like Vietnam and Iraq, but it’s easy for us as Canadians to feel self-righteous about those, since our elected leaders were wise enough to keep us out of them. How might we feel if our fathers or our friends had fought there? The better example is the one that started Remembrance Day in the first place, World War I. It was, without a doubt, the most senseless waste of human life in history, 10 million military and 7 million civilian dead for no reason beyond nationalism and colonial ambition. It’s staggering, mind-numbing, to believe that humans ever descended to it. What’s more, it’s not even like the collective horror of the bloodshed shocked Europe into ensuring that it wouldn’t be repeated. Indeed, the French Marshall Ferdinand Foch was disturbingly prophetic when he derided the treaty that ended the Great War as nothing more than a 20-year armistice. The Treaty of Versailles, of course, was signed in 1919, exactly 20 years before Nazi Germany invaded Poland to launch World War II.

That senseless horror has always fascinated me about World War I, that question of how human beings were able to kill so many for so little reason. It’s why, as I sat down to write an alternate-world novel, I decided to set it during a World War I-style conflict. My book is told from the point of view of a pacifist politician trying to end the war, and neither Deugan nor Brealand, the fictional countries who are the main combatants, can be said to be the “bad guys” in the story. The true antagonist is the war itself, and all of the forces on both sides that conspire to keep people fighting. It’s a different perspective from most war stories, and to me, World War I is the quintessential war in which to tell it.

Yet I still don’t find the answers easy. Despite the enormous costs of war, peace too has a price, and that is what my novel explores. As early as the third chapter, the hero asks one of her country’s most respected generals whether peace is one of his values. He replies that it is not: while he certainly wants peace, “some things are worth fighting for.” Thus begins one of the conflicts that drives the story. As it continues, our hero’s idealism is tested, and we see just how much she is prepared to sacrifice for the cause of peace.

That, ultimately, is what Remembrance Day and the poppy are about: the sacrifices that have been made, for better or for worse, in the hopes that peace will follow. It is a commemoration of peace, not war. It is a day we should not celebrate, but we should commemorate. We should remember it, mourn it, and, if at all possible, learn from it.

Asleep at the Switch: Can you fire a worker for sleeping on the job?

Can a unionized employer – a municipal government, say – fire a worker for sleeping on the job?

Not the City of Toronto worker. This stock photo is from http://www.sxc.hu/photo/656292

Not the City of Toronto worker. This stock photo is from http://www.sxc.hu/photo/656292

 

Public Displays of Exhaustion

As you probably already know if you live in Toronto, a few weeks ago a city employee was found head down on desk, office door wide open, fast asleep.

The reason you already know this is that a city councillor, Georgio Mammoliti, decided that it would be a good idea to send a photograph of the sleeping worker directly to the press. This is not, I hasten to add, what my field refers to as a human resources solution.

Mayor Rob Ford has also weighed inpun intended – with the opinion that not only should the worker be fired for sleeping on the job, but that his or her supervisor should be, too.

I can’t give advice the City of Toronto on any particular case, of course, and in this particular case, there are far too many unknowns to even try. But surely I can say that a worker in any industry who is photographed sleeping on the job deserves to be fired, right?

Well . . . maybe not.

Premeditated Sleeping

Judging by the volume of case law on the subject, sleeping on the job happens surprisingly often in Canadian workplaces. Indeed, there are so many cases that an exhaustive survey would be impossible, even though I am limiting my review to labour arbitration cases from unionized workplaces rather than drifting off into the non-union world. For the purposes of this post, however, I’ll just run through a few decisions, to make sure your eyes aren’t closed to the legal principles involved.

First, the case law draws an important distinction between deliberate and accidental sleeping. No, I am not making that up. Take it from the respected labour arbitrator William Marcotte in the 2006 decision of Lecours Lumber Co.:

As can be seen from the above cases, an important consideration for purposes of determining the appropriateness of disciplinary discharge is whether or not the employee deliberately intended to sleep on the job. Where there is found to be such intention, “arbitrators tend to regard situations where employees are found to be deliberately sleeping as justifying discharge.” . . . Certain circumstances surrounding an incident of sleeping on the job have led arbitrators to find that the act was premeditated.

That’s right. Sleeping on the job won’t necessarily get you fired, but my new favourite phrase –  “premeditated sleeping” – probably will.

What are the circumstances that will give rise to a finding of “premeditated sleeping”? Arbitrator Grey’s 1999 decision in Stelco gives a particularly vivid description:

When Mr. MacDonald arrived at CO13 at about 4:30 a.m., much of the area was in darkness. Messrs. Gilkinson and Kennedy were in a workshop next to the lunchroom. The lights in the workshop were turned off. Mr. Gilkinson was lying prone on an inflated air mattress positioned on top of a picnic table, asleep. His boots were off. His head was on the pillow portion of the mattress. Mr. Kennedy was also asleep, lying prone on a chaise lounge liner laid out on top of a workbench. His boots were off. His head was on a pillow of rags. Mr. Earle was in the lunch room adjoining the workshop where Messrs. Gilkinson and Kennedy were sleeping. He was asleep, lying prone directly on a picnic bench. He was wearing his boots. The lights in the lunchroom room were off.

There was an alarm clock in that room set for 5:50 a.m. (Those who relieve night shift electricians would arrive between 6:15 a.m. and 6:30 a.m.) Mr. Van Mol was in an office down the hall from the area where the others were sleeping, the office where the drive files and computer terminal were located. He was asleep, lying or reclining on top of a desk, covered with a winter coat. His boots were off. The office lights were turned off. The office door was locked. Mr. MacDonald found him there when he used his key to enter the office to consult the drive files and use the computer terminal.

Ironically, the fact that our City of Toronto worker was photographed, head down on desk, makes it less likely that he or she can be fired for it. If this had been a case of premeditated sleeping, the worker probably would have found a more comfortable position, or at least closed the door.

Accidentally in Slumber

 

Of course, employers are still entitled to sound an alarm when an employee is sleeping on the job accidentally. That is especially true when the employee’s job requires alertness for safety reasons, such as a crisis counsellor at a women’s shelter in one 1996 case, or another 1996 case in which the job title of the sleeping employee was – again, I am not making this up – Awake Night Staff. Arbitrators agree that workers who are found sleeping on the job deserve discipline. The question is whether they deserve to be fired.

The answer to that question will depend on a number of different factors. These include the employee’s seniority, past disciplinary record, explanation for sleeping (an employee who is taking medication that causes drowsiness might be treated very differently than an employee who simply stayed out too late at the bar the night before), whether the employee acknowledged wrongdoing and showed remorse, and whether the employee’s behaviour actually resulted in harm to the employer’s operations or reputation.

Thus, termination was upheld for the crisis counsellor at the women’s shelter, in light of the risks if he could not be trusted to remain alert. Termination was also upheld where an employee with two previous suspensions displayed a “lack of candour” and a “failure to acknowledge fault.” On the other hand, an arbitrator overturned a termination of employment for an employee with a clear disciplinary record who had taken active steps after the incident to make it less likely to be repeated. Another employee got to save his job since the sleeping incident was related to his diabetes and he clearly showed remorse.

Perchance to Dream

The fact is, we just don’t know any of these things about the city worker who has Councillor Mammoliti and Mayor Ford so wired up. That’s why it’s not appropriate for us to lie back and guess at whether this particular worker deserves to be fired – and why it’s not appropriate for city councillors to leak photographs of their own employees to the media before going through the internal investigation that would actually be required to put this issue to bed.

When it comes to the worker’s supervisor, chances are that he or she is not unionized, so the city could fire that person whenever it wanted. But the city would have to provide reasonable notice or pay in lieu, which, depending on the supervisor’s years of service, could add up to quite a large sum.

And if the Mayor believes that he can fire a supervisor for cause, and avoid paying him anything, just because one subordinate, on one occasion, was (literally) caught napping?

All I can say is, dream on.