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.

American College of Trial LawyersFounded 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.

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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.

WAA – Full Media Release (PDF)

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.

This case involved a constitutional challenge to The Public Services Sustainability Act (“PSSA”), brought on behalf of a labour coalition comprised of the Manitoba Federation of Labour (“MFL”) and 28 plaintiff unions. The claim alleged that the PSSA violated the plaintiffs’ right to freedom of association under s. 2(d) of the Canadian Charter of Rights and Freedoms (the “Charter”)

The PSSA imposed a four-year “sustainability period” on more than 110,000 public sector workers, during which wages and additional remuneration increases were frozen for the first two years and capped at 0.75% and 1% in years three and four. Upon proclamation, the PSSA would take retroactive effect, invalidating previous collective agreements and clawing back wages beyond its limits.

On June 11, 2020, Madam Justice McKelvey issued her decision, concluding that the PSSA has significantly impacted the associational rights and protections of public sector employees and that such infringement could not be demonstrably justified in a free and democratic society.

As such, the parties will appear before Justice McKelvey again, at a future date, for specific remedies and damages to be determined.

The Status of the PSSA

The PSSA became law in June 2017 but has never been proclaimed into force.

As such, the Government argued that the legislation was not ripe for a constitutionality review, and that all collective bargaining that had taken place since the enactment of the PSSA had simply been undertaken in accordance with Government mandates and policies and not as a consequence of the PSSA.

Justice McKelvey rejected the Government’s argument, as she was satisfied, based on the plaintiffs’ significant evidence regarding collective bargaining, that the Government and other public sector employers funded by government had proceeded as if the PSSA had been proclaimed and was in effect, and that the PSSA had played a significant and substantial role in labour relations in Manitoba. She stated: “It is disingenuous to suggest that Government’s negotiating mandates and policies are simply that and not the PSSA sword of Damocles hanging over the unions with respect to wage restraint and the retroactivity claw back provisions” (para. 276).

The Duty to Pre-Legislative Consultation / Pre-Legislative Collective Bargaining

One of the issues in the case was whether a consultative process that took place between the Government, the MFL, and 10 of the plaintiff unions in the 2 months before the PSSA was introduced in the Legislature was meaningful and done in good faith, and also whether a pre-legislative consultation process can even be a constitutionally adequate substitute for a bargaining process between unions and employers. The plaintiffs argued that the consultation process was not done in good faith and is not a substitute for the Charter protected bargaining process in any event.

Justice McKelvey found that while Government said that it wished to consult with unions before legislation was enacted, it was never prepared to consider any options other than wage restraint legislation. Nor was even a varied content of that legislation likely possible. Instead, as early as 6 months before the “consultation” process began, Government was pursuing a public service sustainability model similar to unproclaimed legislation in Nova Scotia. The consultation was accordingly not meaningful. Further, she found that the government had no duty to consult or engage in collective bargaining prior to enacting the legislation.

The Constitutionality of the PSSA

Justice McKelvey was satisfied that the PSSA, even in its unproclaimed state, substantially interfered with the freedom of association and violated s. 2(d) of the Charter, based upon a contextual and fact-driven analysis of the extensive trial evidence submitted by the plaintiffs, including their labour relations expert, Dr. Hebdon.

First, Justice McKelvey found that the PSSA prevents meaningful collective bargaining on monetary terms or benefits – an area central to the freedom of association and the capacity of unions to achieve a very significant common goal.

Next, Justice McKelvey determined that the overall impact of the PSSA on the process of meaningful, good faith collective bargaining rose to the level of substantial interference. She held that “[t]he PSSA operates as a draconian measure that has inhibited and dramatically reduced the unions’ bargaining power” (para. 426). In particular, the legislation removes monetary issues from the bargaining table, and thereby inhibits the unions’ ability to trade-off monetary terms and benefits for non-monetary enhancements, such as job security. In this way, the right to meaningfully associate in pursuit of important workplace goals was denied.

Justice McKelvey found that the collective agreements that had been concluded since the passage of the PSSA reflected only minor improvements, which demonstrated a minor degree of bargaining power. While the results of collective bargaining are not determinative in a s. 2(d) analysis, Justice McKelvey accepted that these outcomes illustrated the impact on associational activity caused by the PSSA. Moreover, she accepted that most of these agreements were achieved under duress and the threat of the PSSA’s claw back provisions, and had been conditionally ratified, subject to the PSSA’s constitutional status (an unusual process).

Justice McKelvey found the Government’s utilization of wage restraint legislation particularly troubling in light of the evidence of bargaining history in the Manitoba public sector, which demonstrated that wage freezes had been collectively bargained with substantially the entire public service in the aftermath of the 2008 global financial crisis, albeit with trade-offs, such as layoff protection. Justice McKelvey found that it was precisely these trade-offs that Government wished to avoid through the PSSA, by taking a “strident, inflexible and rigid approach to labour negotiations” (para. 334).

Section 1

Justice McKelvey accepted the plaintiffs’ argument that the Government did not meet even the first component of the Oakes test under s. 1 of the Charter, in that the statutory objectives of deficit reduction and fiscal stability were insufficient to establish a free-standing pressing and substantial objective. Applying case law that indicates that budgetary considerations alone, in the absence of a fiscal emergency, will be insufficient to justify an infringement of a Charter right, Justice McKelvey noted that neither of the financial experts who gave evidence in this case opined that Manitoba was in a situation of financial crisis. Manitoba’s state of affairs was very different than the global economic recession that provided the backdrop to the Expenditure Restraint Act cases (which she distinguished).

Justice McKelvey accepted that the Government is entitled to make policy choices, but noted that those choices, including reducing income taxes and lowering the PST, served to substantially reduce the amount of revenue available to service the Manitoba deficit.

With respect to minimal impairment, Justice McKelvey accepted the unions’ submission that the Government did not meaningfully consider any alternatives other than legislation. Before “consultation” with unions commenced, the Government had already drafted legislation, which included the two-year wage freeze. Additionally, the Government was not forthcoming with information sought by unions during the purported consultation process, which negated the unions’ ability to participate in meaningful consultation, even of the proposed legislation. Justice McKelvey concluded that Government, at no time, considered a “blank slate” of options with respect to public sector cost control, and, in particular, would not consider free collective bargaining, despite that wages freezes had been negotiated in the past. All of the evidence denoted early acceptance and pursuit of a Nova Scotia-like legislative wage restraint model: the “die was cast” (para. 404).

At the final “balancing” stage of the Oakes analysis, Justice McKelvey accepted that the evidence established that the PSSA affected the relationships between the unions and their members, as well as between the unions and employers. She held that the Government’s actions will have a long-term effect and potentially create a chilling of relationships in future rounds of collective bargaining. Justice McKelvey concluded: “The Government is facilitating popular tax revenue reduction measures on the backs of public sector workers. Proportionality does not exist.”

Conclusion

This powerful decision is a credit to the MFL and the Manitoba unions who united to defend the right to meaningful collective bargaining on behalf of their members and makes a significant contribution to the increasing recognition of workers’ rights and the importance of those rights in Charter jurisprudence.

The Myers LLP Labour Department is pleased to announce that the Manitoba Court of Queen’s Bench has declared The Public Services Sustainability Act unconstitutional. In the court ruling, Queen’s Bench Justice Joan McKelvey wrote, “I have concluded that the (bill) operates as a draconian measure that has inhibited and dramatically reduced the unions’ bargaining power and violates (charter) associational rights.”
 
Congratulations to the Manitoba Federation of Labour and our 28 public-sector union clients, and thanks for letting us represent you!
View the full ruling here.