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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On January 4, 2019, Madam Justice Dawn Pentelechuk found that Mr. Ryan Prystay’s lengthy stay in administrative segregation at the Edmonton Remand Centre breached section 12 of the Charter. Consequently, she granted him enhanced credit of 3.75 days for each day spent in administrative segregation.
In the wake of the #MeToo movement, mainstream awareness surrounding workplace harassment and bullying has expanded beyond the borders of Hollywood. One such workplace that has seen increased awareness of harassment has been the RCMP. While RCMP employees have been coming forward about the harassment and abuse they experienced in the workplace for many years, the past few years have seen not only an increase in the number of RCMP members coming forward and public awareness and interest in the issue, but also government and institutional response.
In 1899, Treaty 8 was negotiated with several First Nations groups in Northern Alberta—North East Saskatchewan, Southwest parts of the Northwest Territories and later Eastern British Columbia—resulting in land surrender to the Crown. However, members of the Lubicon Lake Band were left out of the negotiations. This launched several decades of claims and disputes between Lubicon people and the federal and provincial governments. While the Lubicons continued to live in their traditional ways, the province of Alberta leased areas of the disputed lands for oil and gas development and provided permits for harvesting lumber using clear cut methods. These activities had negative impacts on the Lubicon people. The dispute became known across Canada and the world when Amnesty International and the United Nations became involved.
The Appellant, Her Majesty the Queen, appealed a Rowbotham order granted by Justice DRG Thomas on March 11, 2016, which directed the Alberta government to pay Mr. Vader’s (the Respondent’s) legal fees for work previously completed. The order also allowed a publication ban, a sealing order and an in camera hearing of the Rowbotham application.
LL sued her former employer Canadian Natural Resources Ltd (CNRL) for damages for its failure to protect her (as her employer) from ongoing sexual harassment and abuse. LL also claimed damages for constructive dismissal. CNRL applied to have the actions summarily dismissed or for an order to have portions of LL’s claims struck (at paras 1-3).
CNRL employed LL for approximately four years (2010 to 2014) as a Testing Technician. LL alleged that beginning on her first day of work (on Shift A), she experienced verbal, emotional and sexual harassment, discrimination and abuse from her male colleagues and the male team lead (at para 4). The types of harassment and abuse included (at para 5):
Inappropriate and discriminatory comments against Aboriginal people;
Inappropriate and discriminatory comments against women;
Inappropriate sexual comments;
Inappropriate and unwanted sexual contact;
Breaches of her privacy when her supervisor illegally obtained her home address and visited her home uninvited;
Her supervisor stalking her by telephone and in person;
Unlawful coercion of the Respondent into a sexual relationship with her supervisor under threat of being fired; and
Belittling and demeaning treatment of the Respondent in the presence of other team members.
Recently, there has been much discussion of the use of the notwithstanding clause, which is section 33(1) of the Canadian Charter of Rights and Freedoms (Charter). Section 33(1) reads:
Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15.
Section 33(3) provides that a declaration made under section 33(1) shall cease to have effect after five years and section 33(4) states that a declaration may be re-enacted by Parliament or the legislatures.
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.
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