The Manitoba Court of Appeal upheld a $19.4-million Charter damages award compensating University of Manitoba professors, following the government’s unsuccessful appeal. The compensation addresses lost earnings, interest, and strike costs due to the province’s secret intervention in contract negotiations that led to a 2016 campus strike. Myers LLP successfully argued that the University of Manitoba Faculty Association’s right to association under the Charter had been breached. This precedent-setting case opens the door to further Charter damages remedies and may have implications beyond labor and employment issues. The government has until the end of September to request a follow-up appeal to the Supreme Court of Canada.
Congratulations to Andrew E. Fenwick and Nikolai Bola for receiving their Call to the Bar in Manitoba on June 15. Further congratulations to Nikolai for being awarded the A. Montague Israel’s QC Prize, awarded to a student who has demonstrated all-around excellence and who is seen to possess the scholarship, character, skill and breadth of interest that Mr. Israels valued and exemplified in his life! We are thrilled to have both of you continue to work with us as associates.
Winnipeg, Manitoba, March 11, 2022 – JOSH WEINSTEIN has become a Fellow of the American College of Trial Lawyers, one of the premier legal associations in North America.
The induction ceremony at which Josh Weinstein became a Fellow took place recently before an audience of over 600 people during the recent Spring Meeting of the College in Coronado, California.
Founded in 1950, the College is composed of the best of the trial bar from the United States, Canada, and Puerto Rico. Fellowship in the College is extended by invitation only and only after careful investigation, to those experienced trial lawyers of diverse backgrounds, who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility, and collegiality. Lawyers must have a minimum of fifteen years of trial experience before being considered for Fellowship.
Membership in the College cannot exceed one percent of the total lawyer population of any state or province. There are currently approximately 5,800 members in the United States, Canada, and Puerto Rico, including active Fellows, Emeritus Fellows, Judicial Fellows (those who ascended to the bench after their induction) and Honorary Fellows. The College maintains and seeks to improve the standards of trial practice, professionalism, ethics, and the administration of justice through education and public statements on the independence of the judiciary, trial by jury, respect for the rule of law, access to justice, and fair and just representation of all parties to legal proceedings. The College is thus able to speak with a balanced voice on important issues affecting the legal profession and the administration of justice.
Josh is a partner at Myers LLP and has been practicing at the firm for 25 years in the areas of Criminal Defence, Administrative Law, and Professional Discipline. Josh is an alumnus of The Robson Hall School of Law at the University of Manitoba, a Past President of the Manitoba Bar Association, Past Chair of the Canadian Bar Association’s Criminal Justice Section, and a previous recipient of the CBA’s Douglas Miller Award.
Myers LLP is pleased to announce that Michael Clark has been appointed a Judge of The Provincial Court of Manitoba. Michael has been a partner since 2015 and has practiced in the areas of Child Protection and Civil Litigation.
Myers LLP is honoured to have been named one of Canada’s Best Law Firms for 2022 by the Globe & Mail’s Report on Business in the field of Labour and Employment Law.
By Cleyton Rückl
The Supreme Court of Canada recently issued its decision in Northern Regional Health Authority v. Horrocks, 2021 SCC 42, ruling that disputes involving human rights complaints from unionized workers fall within the exclusive jurisdiction of labour arbitrators.
This dispute concerns the employer’s response to Ms. Horrocks’ attendance at work under the influence of alcohol – requiring that she sign an abstinence agreement, and terminating her employment for breaching the agreement. Ms. Horrocks filed a complaint with the Manitoba Human Rights Commission, and the issue was whether an adjudicator has jurisdiction to hear complaints from unionized workplaces.
Writing for the majority, Justice Brown explained that where the legislation includes a mandatory dispute resolution clause, an arbitrator empowered under that clause has jurisdiction to decide all disputes arising from the collective agreement, subject to clearly expressed legislative intent to the contrary.
The Labour Relations Act requires every collective agreement to include a provision for final settlement of all disputes about the meaning, application, or violation of the agreement – the mandatory arbitration clause. And while The Human Rights Code gives broad jurisdiction to the Commission to receive, investigate and refer complaints to adjudication, there are no provisions that expressly displace the exclusive jurisdiction of a labour arbitrator established by the mandatory arbitration clause. As a result, only labour arbitrators have jurisdiction to hear human rights complaints from unionized workplaces.
Due to health concerns arising from the recent spread of the COVID-19 virus, which continue to evolve on a daily basis, the lawyers at Myers LLP have decided to schedule the 20th Annual Mel Myers Labour Conference to March 17-18, 2022, at the Victoria Inn Hotel and Convention Centre. Registration and more information regarding the program and registration will be available in the coming months.
To access the Workplace Privacy Presentation that was held on Wednesday, November 17th, please click here: WORKPLACE PRIVACY PRESENTATION.
If you have any questions, please contact Elena Gagliardi at elena@plannersplus.ca or by phone at 204-995-8997.
The Mel Myers 20th Annual Labour Conference has been rescheduled to November 17 and 18, 2021, at the Victoria Inn Hotel and Convention Centre.
We will be in touch with you again as further information becomes available. Registrants who are unable to attend the rescheduled Conference will be entitled to a full refund. If you have any questions please contact Elena Gagliardi at elena@plannersplus.ca or by phone at 204-255-7006.
Winnipeg Airports Authority is pleased to announce the re-appointment of Brita Chell as Chair of its Board of Directors for 2021 and the appointment of Susan Dawes as Vice Chair.
Brita joined the Board of Directors six years ago and became the first female Chair in the history of WAA in January 2020. She is a business leader who has held a number of senior positions in the
private sector and recently retired as Chief Financial Officer of G3 Canada Limited. Brita has been active in the community, and in addition to her role at WAA is also a member of the St. Amant Board.
“I am excited to continue working with the entire WAA team to overcome the unprecedented impact the COVID-19 pandemic is having on our industry and keep our community connected,” said Brita. “I’d like to thank the board for their continued support and congratulate Susan Dawes on being appointed to the role of Vice Chair.”
Susan has been part of the Board of Directors since January 2018. She was appointed to the Board by WAA and currently serves on the Governance Committee. Susan is a partner at Myers LLP and a member of the Canadian Association of Labour Lawyers, where she previously served as Vice President. She is also part of the Manitoba Bar Association and Canadian Bar Association.
In addition to the appointments of Chair and Vice Chair, WAA is pleased to welcome a new member to its Board of Directors. Adam Kilfoyle is the Managing Partner at Heartland CPAs and was nominated by the Assiniboia Chamber of Commerce. “I’d like to welcome Adam to the WAA Board of Directors and also extend thanks to outgoing board member Gerry Glatz for his nine years of dedicated service,” said Brita.
2021 Board of Directors
The WAA Board of Directors is comprised of 15 members — eleven nominated by government and community partners and four appointed by the WAA Board. Please visit waa.ca for the complete list of Board of Directors for 2021.
By Nichole Mirwaldt and Jeff Smorang
Since March 2020, many Canadian workers have been unable to work for reasons related to COVID-19. In response, the Canadian government implemented the Canada Emergency Response Benefit (“CERB”), which provided for $2,000 per month to employed and self-employed Canadians directly affected by the pandemic. This program has been in place since March 15, 2020 and ended on September 26, 2020. Information regarding the CERB program can be found on the Government of Canada CERB page.
The Canadian government recognizes the need to continue to support workers that are impacted by the pandemic. Accordingly, the government intends to transition from the CERB to increased Employment Insurance (“EI”) and new recovery benefits.
Modified Employment Insurance
On September 25, 2020, the Canadian Government announced changes to make the EI program more flexible. The entire news release can be found here. The transition from CERB to modified EI will begin on September 27, 2020. EI will now be available to more Canadians who would not have qualified in the past. Canadian workers receiving EI are eligible for a taxable benefit at a rate of at least $500 per week, or $300 per week for extended parental benefits. Canadian workers claiming EI for job loss would be eligible for at least 26 weeks.
Under the flexible EI program, claimants may be permitted to keep part of their EI benefits while continuing to receive earnings from work. This will be governed by the Government of Canada, Working While on Claim rules.
The news release states that the majority of Canadians still receiving the CERB through Service Canada who are eligible for EI will be automatically transitioned. Workers can expect to be contacted by Service Canada to confirm whether they need to apply or are being transitioned automatically. Alternatively, workers can also verify the status of their claim in their My Service Canada Account.
EI payments become available to workers at the end of the two weeks that they are out of work. This will continue even where workers were receiving CERB. Workers that are currently receiving CERB and are switching to EI effective September 27, 2020, will be eligible for their first EI payment as of October 11.
For workers who are not eligible for EI, they may be able to receive support under the three new temporary recovery benefits (outlined below) to support Canadians who are unable to work for reasons related to COVID-19. These benefits have been proposed under new legislation that has not yet been passed.
Temporary Recovery Benefits
Bill C-2, An Act relating to economic recovery in response to COVID-19, was introduced on September 24, 2020. Bill C-2 introduces three new benefits that are intended to support Canadians during the pandemic. Subject to this legislation receiving Royal Assent, the new Benefits will become be effective beginning on September 27, 2020 and end on September 25, 2021. Specifically, the legislation includes:
A Canada Recovery Benefit (CRB)
The CRB will provide $500 per week for up to 26 weeks, to workers who are self-employed or are not eligible for EI and who still require income support. This is a taxable benefit that is provided in two-week periods beginning on September 27, 2020.
To be eligible for the CRB, applicants must attest to the following:
- They are at least 15 years old at the time of first application and have a valid Social Insurance Number (SIN);
- They were resident and present in Canada during the period they have applied for;
- They had income of at least $5,000 in 2019 (if applying for 2020) or in 2020 (if applying for 2021);
- Income may come from employment income, self-employment, benefits paid under the Employment Insurance Act, allowances or money paid to a person under a provincial plan for pregnancy or child care.
- That they were not employed or self-employed for reasons relating to COVID-19, or that they are working but their average weekly income has been reduced by at least 50% relative to their average weekly income in 2019, 2020, or the 12-month period preceding the day of making the application;
- They are not eligible for EI;
- They have not quit their job voluntarily, unless it was reasonable to do so;
- They have not failed to return to their employment or self-employment when it was reasonable to do so and have not declined a reasonable offer to work for the application period;
- They are not receiving the Canada Recovery Sickness Benefit, Canada Recovery Caregiving Benefit or allowances/money under a provincial plan because of pregnancy or child care, during the same period they are seeking to receive the CRB; and
- That they have sought work during the application period and that they did not place undue restrictions on their availability for work whether as an employee or in self-employment.
Claimants must apply for CRB after every two-week period for which they are seeking income support and must attest that they continue to meet the above eligibility requirements. Applications must be made within 60 days of the two-week period to which the benefit relates. For example, if an employee is claiming for the period of October 1, 2020 – October 15, 2020, applications must be made within 60 days of October 15, 2020.
Claimants may be able to earn income from employment and/or self-employment while receiving the benefit, as long as they continue to meet the other requirements. However, claimants may be required to repay some, or all, of the amount they received under CRB. A claimant whose income is more than $38,000 for 2020 or 2021 is required to pay an amount equal to 50 cents for every dollar of income earned in that year above $38,000, up to and including the amount of CRB received by them in that year.
A Canada Recovery Sickness Benefit (CRSB)
The Canada Recovery Sickness Benefit (CRSB) provides $500 per week (for a maximum of 2 weeks) to workers who are unable to work because they are sick or they must self-isolate due to Covid-19. This is a taxable benefit that is provided in one-week periods beginning on September 27, 2020. The benefit would be available to claimants who attest to the following:
- They are at least 15 years of age and have a valid Social Insurance Number (SIN);
- Were resident and present in Canada for the time period they are applying for the CRSB;
- They were employed or self-employed at the time of the application
- They had income of at least $5,000 in 2019 (if applying for 2020) or in 2020 (if applying for 2021);
- Income may come from employment income, self-employment, benefits paid under the Employment Insurance Act, allowances or money paid to a person under a provincial plan for pregnancy or child care.
- They have been unable to work for at least 50% of the time they would have otherwise worked within the week, or they have as a self-employed person reduced the time devoted to their work by at least 50% of the time they would have otherwise worked in the week;
- They are not receiving the CRB, Canada recovery caregiving benefit or allowances/money under a provincial plan because of pregnancy or child care, during the same period they are seeking to receive the CRSB; and
- That they have not been granted paid leave or been paid under a sickness benefit plan for the period they are claiming the CRSB.
Applications must be made within 60 days of the end date of the week to which the application relates.
A medical certificate is not required to qualify for the benefit. The legislation is not clear on whether an employee/employer could elect to take CRSB instead of available banked sick leave. The only restriction is that workers cannot claim CRSB and collect other paid sick leave for the same benefit period. Arguably, an employee could apply for CRSB despite having available sick time. We will continue to monitor this issue as more information becomes available.
A Canada Recovery Caregiving Benefit (CRCB)
The CRCB is available to claimants of $500 per week for up to 26 weeks per household, for eligible Canadians unable to work because they must care for a child under the age of 12 or family member because schools, day-cares or care facilities are closed due to COVID-19 or because the child or family member is sick and/or required to quarantine. This is a taxable benefit that is provided in one-week periods beginning on September 27, 2020. To be eligible, the claimant must attest to the following:
- They are at least 15 years of age and have a valid Social Insurance Number (SIN);
- Were resident and present in Canada for the time period they are applying for the CRCB;
- They had income of at least $5,000 in 2019 (if applying for 2020) or in 2020 (if applying for 2021);
- Income may come from employment income, self-employment, benefits paid under the Employment Insurance Act, allowances or money paid to a person under a provincial plan for pregnancy or child care.
- They have been unable to work for at least 50% of the time they would have otherwise worked within the week, or they have as a self-employed person reduced the time devoted to their work by at least 50% of the time they would have otherwise worked in the week because they cared for a child under 12 years of age (on the first day of the week for which the benefit is being claimed) or a family member who requires supervised care:
- because the child or family member contracted or might have contracted COVID-19 or was in isolation for reasons related to COVID-19;
- because their school or daycare, or their day program or care facility, is closed or operating under an alternative schedule for reasons related to COVID-19;
- who cannot attend their school or daycare, or their day program or care facility, under the advice of a medical professional due to being at high risk if they contract COVID-19; or
- because the caregiver who usually provides care is not available for reasons related to COVID-19;
- That they are not receiving the CRB, CRSB or allowances/money under a provincial plan because of pregnancy or child care, during the same period they are seeking to receive the CRSB; and
- That they have not been granted paid leave or been paid under a plan that provided for payment for the care or support of another person during the period they are claiming CRCB.
Applications must be submitted within 60 days after the end of each week to which the benefits relate. The benefit is available for a maximum of 26 weeks per household. If two or more persons reside in the same household, only one of them may be paid a Canada Recovery Caregiving Benefit for any particular week.
Should you have any questions about your benefits, we recommend that you reach out to a member of our Employment and Labour Group.
