Soon to be specialists and recent graduates of specialized surgical programs in Canada are facing dim job prospects as the effects of the end of mandatory retirement and reduced hiring become apparent. The Royal College of Physicians and Surgeons of Canada has recently launched a study on the issue. If you're a young surgeon who is challenged in finding permanent employment, contact me as I'd like to interview you for a more extensive article on this subject.
Friday, February 25, 2011
Wednesday, February 23, 2011
There isn't a lot written about the intersection of social media and the impact on contemporary employment law in Canada. This is surprising given the ubiquitous nature of Facebook, Twitter, and Myspace in Canadian workplaces. It may well be that lawyers aren't that comfortable writing about a technology they don't fully comprehend yet or that it wasn't taken seriously until a month ago. Given the impact of social media on young people it's an area of research that calls out for attention considering how it cuts across the areas of employment, labour, human rights, and privacy law.
Towards this end I've culled various online resources about contemporary workplace law in relation to social media and the growing body of case law in Canada. This post doesn't fully capture the complexity of intersection of social media and the law. It does however pull together many of the key decisions that are emerging from arbitrators and the Courts in relation to disciplining employee for improper use of social media and highlights some interesting cases that could be used in the context of employment litigation.
There doesn't appear to be a Canadian case explicitly addressing the role of social media in relation to a termination in a non-unionized setting, a growing body of case law from arbitrators exists. The basis of the law is rooted in the principles related to off-duty conduct, in both a unionized and non-unionized setting. Off-duty conduct is a concept that essentially allows employers to discipline employees for actions that take place outside the workplace after hours and can range from criminality to drug use to sexual harassment at Christmas parties.
Key cases from a unionized context addressing discipline for misuse of social media include: Re Wasaya Airways LP and Air Line Pilots Association, International (Wyndels), (2010), 195 L.A.C. (4th); Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518, 2010 CanLII 62482 (B.C. L.R.B.); EV Logistics v. Retail Wholesale Union, Local 580,  B.C.C.A.A.A. No. 20 (Laing); and Alberta v. Alberta Union of Provincial Employees  A.G.A.A. No. 20 (Ponak). Reviewing these cases will give one a good sense of where the law stands in a unionized context and what arbitrators feel is just cause for a termination.
From the non-unionized context Kelly v. Linamar Corporation, 2005 CanLII 42287 (ON S.C.) deals with a situation where an employee was terminated with cause after being charged with possession of child pornography. Some additional cases from outside the employment law include: Pridgen v. University of Calgary, 2010 ABQB 644 (CanLII) deals with the right to freedom of expression in relation to Facebook; Leduc v. Roman, 2009 CanLII 6838 (ON S.C.) which is about the Plaintiff's obligation to produce their Facebook pages; Terry v. Mullowney & Terry v. Sinclair, 2009 NLTD 56 (CanLII) is where the Defendants counsel successfully used Facebook printouts to impeach the Plaintiff's credibility during cross-examination; and, Spark v. Dube, 2011 NBQB 40 where the Court issued an ex parte order to the Plaintiff to ensure the preservation of the contents of her Facebook pages - Dan Michaluk has written a great summary.
What employees and employers can take away from the current state of the contemporary workplace law in Canada in relation to social media is the following: (1) the law is in a state of flux and is unsettled; (2) there is a need to be extremely careful when posting personal information online; (3) that for young employees there are numerous barriers to contesting a wrongful dismissal over comments made on social media, such as: risk, cost, time, and stress; (4) proactive organizations should adopt social media policies that explicitly tells employees what behaviours are condone and what aren't; and, (5) that the millennial generation increasingly views social media is a must have in the workplace and is oblivious to the many key considerations when it comes to privacy.
For previous articles on social media, see: here, here, and here. Take a look at what management side law firms are saying about social media in workplaces: Rubin Thomlinson LLP's Social Networking: What Employers Need to Know; Ogilvy Renault's Inappropriate Facebook Use Leads to Termination of Employees; and, Old wine in digital bottles from Heenan Blaikie LLP. If you have any comments about social media in the workplace send me an email.
Dalton McGuinty's Liberals (with the support of Tim Hudak's Progressive Conservatives and while Andrea Horwath's NDP are taking a curious wait and see approach) have introduced Bill 150 Toronto Transit Commission Labour Disputes Resolution Act, 2011 which is essential service legislation denying unionized TTC workers the right to strike at the behest of City of Toronto Mayor Rob Ford. This legislation is reactionary politics of worst sort that betrays the fears of the Liberals about losing the upcoming provincial election and exposes the lack of any sort of wider strategic policy agenda outside of maintaining power. While the situation at the TTC isn't explicitly an youth issue, it does have widespread ramifications about how labour relations is addressed in Ontario and highlights wider shifts in Canadian society during the era of globalization where citizens identify themselves more as consumers (ie. customer service) rather than along class lines (ie. diminished class consciousness). I've culled various articles below debating this issue from various blogs and media outlets.
David Doorey's blog has excellent ongoing coverage. Here's a discussion about the flawed economic basis behind the essential services argument and how the $50 million a day cost to Toronto in the event of strike is a highly suspect figure with little basis in reality. The ramifications under the Charter in the wake of B.C. Health Services and international labour law are discussed here. Here's a discussion about some of the strategic legal considerations the government is grappling with. The fundamental human rights considerations are discussed here with commentary from John O'Grady here. Finally, here's a post on why allowing the right to strike is the cheaper option.
In terms of media coverage the following caught my eye. This article discusses concerns about whether this is the first step in a wider assault on collective bargaining. Here is some coverage that includes video of Labour Minister Charles Sousa answering questions about Bill 150. Adam Radwanski's commentary is interesting, but doesn't consider whether it's good public policy to allow a highly questionable transit strategy to proceed. This article discusses how the essential services argument failed at the Canadian Industrial Relations Board when Ottawa was in the midst of an OC Transpo strike, remember that due to OC Transpo's inter-provincial operations it's a federal undertaking and subject to the Canada Labour Code so a different legal framework than the one the TTC is subject to.
That's the extent of what I've found in terms of essential services discussion. One last interesting fact I learned in reading about this issue that paramedics in Toronto are not covered by essential services legislation, rather they are deemed designated workers under the Ambulance Services Collective Bargaining Act and as such only a segment of the paramedics are deemed essential. Strategically, economically, and politically it would have made more sense for Rob Ford to push for this model over the essential services one for a host of reasons; however, this would have required a nuanced understanding of labour relations, something that the bright lights in the Ford administration do not possess. If anyone has any ideas or comments to share with me please send me an email.
Monday, February 21, 2011
Professors Brian Langille and David Doorey have both written fascinating blog posts examining the legality of political strikes by unionized workers in the Canada. Turns out that Canadian labour law prohibits political actions of the sort recently seen in Tunisia and Egypt. Head over to U of T's law faculty blog for Langille's discussion and Doorey's Workplace Law Blog for his thoughts.
I recently wrote a case comment about the Supreme Court of Canada's decision in Janzen v. Platy Enterprises Ltd. (read LEAF's factum here). I argued that the Supreme Court erred when it failed to position the sex discrimination faced by the two young women within the context of gender based violence and that young women were particularly susceptible to gender based violence in the workplace due to their social location. These are ideas that I explored in my discussion about the lawsuit launched by Jamie Laskis against Osler, Hoskin and Harcourt LLP. When thinking about sex discrimination it's important to position it within the historical context and identify the conditions in which it is perpetuated.
Sex discrimination against young women was highlighted this week in two incidents from Toronto area universities. Osgoode Hall Law School was thrust into the news when Constable Michael Sanguinetti of the Toronto Police Service told a group of students that they could avoid sexual assaults by not dressing like "sluts". He quickly apologized, but the damage was already done. The University of Waterloo recently experienced posters (second one: here) and a fake email being circulated attacking women. The university's response was to close two centres devoted to female and queer students, a perplexing course of action and probably what the perpetrator desire. Incredibly, Dan Anderson, the Director of the University of Waterloo Police Service, stated that the posters (and presumably the email) "do not reach the standard of a criminal offense". Now I'm not a police officer, but s. 403(1)(c) of the Criminal Code which addresses identity fraud seems to capture the situation of a fraudulent email purporting to be from the university president and if there was a successful prosecution certainly s. 718.2(a)(i) which addresses sentencing principles when a crime is "motivated by bias, prejudice, or hate" could be utilized by the Crown Attorney to argue for a harsher sentence.
Both of these incidents highlight the continuing problem of sex discrimination and a reluctance by the state to address this problem through the police, the courts, or by utilizing other public policy instruments. Particularly disturbing is that there apparently hasn't been a lot of change on how the police address gender based violence, this of course is when the police aren't allegedly perpetrating gender based violence themselves (see David Tanovich's analysis of the Stacy Bonds case). In the article Jane Doe states "In 2007, I was paid by the Toronto Police Services Board to monitor their sexual assault training for two weeks and the course is riddled with sexist and racist myths and attitudes about rape. I produced an assessment for them and it quickly disappeared." The systemic problems that exist within government institutions act as barriers to addressing gender based violence and perpetuates inequality and oppression in Canada. Governments within in Canada would should be taking a more proactive stance towards addressing gender based violence and seek to rapidly modernize the ways in which police respond to gender based violence in all forms.
Thursday, February 17, 2011
With a provincial election happening in Ontario and a Federal election possible it's a good time address the lack of attention from politicians on issues relating to millennials. Consider the following: the youth unemployment rate stands at 14.4 percent; underemployment is skyrocketing among post-secondary graduates, think about how many of your friends work dead-end jobs in the service industry; or the disappearance of good jobs for young people. These are all very complex issues that have been ignored by all the major political parties.
Over the next six months we will be analyzing the discourse surrounding the elections through the lens of youth and identifying what is being left unaddressed by the candidates. A range of issues will be covered whether it's the excessive pandering by politicians to the baby boomers or the lack of action on affordable child care. To do this a holistic analysis of the various platforms will be conducted with an eye towards real solutions for developing livable communities, a sustainable economy, and a infrastructure that works.
It's fine to complain about the situation that young people are facing, but eventually solutions have to be developed, even if imperfect. With that in mind, if you have an issue that should be covered or an innovative idea to share send me an email. Also, if you feel strongly about an issue email the leaders: Dalton McGuinty of the Liberals, Tim Hudak of the Progressive Conservatives, Andrea Horwath of the NDP, and Mike Schreiner of the Green Party. As we saw recently on the streets of Egypt or last summer during the G20 protests in Toronto, there is an unease felt by young people about the direction that society is heading. It's up to us to address the inadequacies and move towards a more equitable future.
Tuesday, February 15, 2011
Jamie Laskis is a young Mergers & Acquisitions lawyer in New York City at the centre of a sex discrimination lawsuit against Toronto legal juggernaut Osler, Hoskin and Harcourt LLP. While the allegations are disturbing, for seasoned observers of legal culture they aren't unexpected given the rampant sexism that exists in the legal profession in Toronto (take a look here and here). Ms. Laskis makes an excellent point in the Toronto Star article that broke the story open, observing that "I was certainly not alone in this kind of scenario. But I was in a position (that) a lot of other women, who have kids, may not be." What she is referring is the fact that she had the monetary resources and time available to launch a legal action.
As I've previously discussed women who are pregnant or who have young children aren't in the best positions to sue former employers. Beyond the sex discrimination angle, young people as a group in society generally face systemic and structural barriers in attempting to access recourse through the legal system for breaches of contemporary workplace law. When thinking about human rights issues it's important to consider both the social location of the affected individual or group and the intersectionality of the discrimination they are facing, this is especially crucial when considering issues related to the labour market.
As part of the continuing series on how contemporary workplace law in Ontario discriminates against young people I've identified some examples below of illegal internships that are currently being advertised in Toronto. Before you start reading take a look at the test set out in the Employment Standards Act, 2000 ("ESA") regarding what constitutes an employee in Ontario.
Now for the exciting part and some current examples of illegal internships. Eye Weekly runs afoul of the ESA under the 'What kind of jobs would I be doing?' section as Eye Weekly is deriving benefit from the tasks assigned to the interns and in not having to pay an employee to do them. For Luminato (alt. link) all of the internships listed on their website are illegal and breach the ESA on multiple grounds. Now Magazine is also in on the illegal intern action by offering the princely sum of $50.00 per week, one might also wonder about what learning they have in mind for someone with clerical and administrative experience. Ouat Media Distribution, which is owned by Channel Zero Inc., is hiring an Acquisitions Intern who will receive a small honourarium and will fulfill key priorities in managing the film acquisition process, carrying out administrative duties, and representing Ouat Media at film festivals.
As one can imagine this is just the tip of the iceberg for this very complex issue. It's becoming quite clear that misclassification of employees as interns is systemic problem within the labour market and a structural problem in relation to contemporary workplace law. For my previous thoughts on internships take a look here, here, and here.
Monday, February 14, 2011
Just a short post about a couple interesting things I've come across as of late. One is the website, Interns Anonymous, it's entirely devoted to exploring unpaid internships in the United Kingdom. Two, take a look at this article from Maclean's about the growing backlash against unpaid internships. Three, I'm currently writing a paper on the legal status of interns for a course I'm taking as part of the LL.M. program in Labour Relations and Employment Law at Osgoode. If anyone has any stories they would like to share with me about being an intern, please drop me a line.
Sunday, February 6, 2011
As part of the series about how contemporary employment law in Ontario discriminates against young people we are going to examine how pregnancy discrimination is a problem that disproportionately impacts on young women and their families. It's a hidden issue that hasn't been properly addressed by government, the legal system, or employers. Every year thousands of women are discriminated against in workplaces, when interviewing for jobs, and in being terminated from their employment.
When a women faces a termination that involves perceived pregnancy discrimination in Ontario they have three choices in where to contest it: through the Courts (either the Superior Court of Justice or Small Claims Court ) under the Common Law (you can assert a human rights claim as well); through a complaint to the Ministry of Labour under the Employment Standards Act, 2000; or through the Human Rights Tribunal of Ontario under section 5.(1) of the Human Rights Code. All of these processes take a considerable amount of time and energy. On top of this there is the financial barrier that women face. If they want to use a private lawyer, often they will have to pay an upfront retainer fee, then an hourly fee going forward, and the risk and uncertainties that litigation brings. Considering the high cost of pregnancy and caring for newborn, women and their families face the possibility of being put under considerable financial strain if they wish to contest their termination. This is an access to justice issue that isn't well understood or acknowledged by the legal community.
Public policy and contemporary workplace law in Ontario inserts an unsettling high amount of economic risk into young families who face pregnancy discrimination. This isn't good for the health of the mother, child, or their partners. Pregnancy discrimination can also put relationships under strain at a time when families are undergoing changes from having to welcome a baby into the world. There are deeper structural issues that are impacted by pregnancy discrimination, which affects: demographics through affecting the population replacement rate; public health through forcing women to have children at an older age and increased health care costs; and forcing women into the welfare system after they lose the economic support from employment.
Another effect of the law could be viewed as stealth control by the Ontario Government of women's reproductive rights as there isn't an effective mechanism to enforce existing prohibitions on pregnancy discrimination. If women felt secure in their employment and in the labour market they wouldn't worry about losing their main means of economic support. This might change the low birthrate that presently exists in Ontario. Consider the other ways that government doesn't encourage citizens having children: an absence of a national childcare policy; prohibitive costs for post-secondary education that saddles young people with high debt levels; and making home ownership more expensive through tightening up mortgage rules.
For more information about this issue take a look at the following: the Ontario Human Rights Commission's Policy on Discrimination Because of Pregnancy and Breastfeeding; this great blog post on pregnancy discrimination by Donna Seale; and, the Ministry of Labour's website about Pregnancy and Parental Leave. For help related to pregnancy discrimination in the workplace contact the Human Rights Legal Support Centre or the Law Society of Upper Canada's Lawyer Referral Service.
Wednesday, February 2, 2011
Below is an article that I wrote for the current issue of Labour and Employment Law Perspective, the newsletter of the Canadian Bar Association's National Labour and Employment Law Section, the topic of this month's edition is progressive discipline. My article addresses the situation at the University of Manitoba involving Dr. Gabor Lukacs, the math professor who is challenging the decision to award a Ph.D. to a student who received accommodations for extreme exam anxiety. It's a complex set of facts that cuts across administrative, human rights, privacy, and labour law. If anyone has comments they wish to share with me, email me here.
Pitfalls and Nightmares
Progressive discipline can be a thorny issue fraught with pitfalls at the best of times, but what happens when a case appears on your desk that doesn’t fall into traditional categories and is already embroiled in litigation in multiple forums. A situation has arisen at the University of Manitoba (“the university”), which stands at the intersection of labour, privacy, human rights, and administrative law.
Dr. Gabor Lukacs, a young professor in the Department of Mathematics, is the central player in this matter and is currently serving a three-month suspension without pay due to his objections about the manner university administrators handled a request for accommodations from a Ph.D. student who had been diagnosed with extreme exam anxiety.
In March 2009 the student failed the candidacy examination for the second time. This would normally require a student to withdraw from the program. On June 26, 2009 the student filed an appeal with John Doering, the Dean of the Faculty of Graduate Studies, requesting accommodation for his disability. On July 16, 2009, Doering granted the request.
What followed were discussions between Doering and Dr. Joseph Williams, Acting Chair of the department, about what form the accommodations will take. Dr. Williams suggested that the student be given double time to write the exam and that it be staggered over two days, Doering countered that an oral exam should be given to the student. No agreement was reached and on September 29, 2009, Doering announced he was waiving the requirement that the student pass any sort of examination.
Prior to this, Lukacs had been not privy to any information relating to the student’s request for accommodations. On October 29, 2009, Lukacs was elected to a committee overseeing graduate studies in math. Lukacs was briefed on the matter and over November and December challenged Doering’s jurisdiction and decisions regarding the appeal and accommodations through various avenues, arguing that internal regulations required that an internal panel decide the student’s appeal.
The university disciplined Lukacs on December 15, 2009, for allegedly violating the student’s privacy and engaging in harassment. The university demanded that Lukacs cease pursuing the matter any further. Later the University of Manitoba Faculty Association responded by filing a grievance.
From January to August 2010, Lukacs was on leave. In late August the department became aware that the student hadn’t completed all of the requisite coursework normally required for a Ph.D. to be awarded. In a meeting on August 30, 2010, Doering took the position that the student shouldn’t have to complete any further coursework and that previous undergraduate coursework should be upgraded to the graduate level to satisfy any outstanding requirements. Subsequent to this meeting, Doering approved the upgrade, which cleared the way for the student to graduate.
Lukacs returned from leave in September and continued to challenge the decisions, but was rebuffed by various internal decision makers. On September 23, 2010, Lukacs filed an application for judicial review with the Court of Queen’s Bench of Manitoba requesting an injunction to block the university from granting a Ph.D to the students and various other remedies.
On October 6, 2010, Lukacs received a letter from Dr. David Barnard, President of the University of Manitoba, which stated he was being suspended for three months without pay due to: violating the “University’s policies on FIPPA and PHIA in your September 21 2010 submission to the Alumni Association; in your September 23 2010 Notice of Application filed in the Court of Queen’s Bench; and in your 27 September 2010 Affidavit filed in support of your Application”; for being “insubordinate in continuing to reference a student’s personal and personal health information contrary to the instructions given to you by your Dean; and for having “engaged in a pattern of behavior” which the “University considers to be harassment”.
The faculty association has filed a grievance over the suspension with dates scheduled for arbitration early next summer; additionally, Lukacs’ Application will be argued early next year with a hearing scheduled for January 20, 2011. On November 29, 2010, Lukacs was summoned for a meeting with Dr. Barnard and was told to shut down his website which was publishing materials about the case due to the university’s concerns that this was harassment of the student.
What can we learn from this situation?
Internal disputes can quickly devolve into nightmare scenarios where employees are pleading their case to the court of public opinion and onto the Internet to build support. With the rise of communications technology, organizations need to understand the need to guard their online reputation closely, engage in counter messaging, and pursue litigation if necessary.
Stories highly critical of the university’s handling of this matter have appeared in Maclean’s, the National Post, and various other publications. Lukacs seems to be receiving overwhelming support from the media, students, and academics around the world. This seems to be a situation where while the university may well win the various legal battles it may lose the larger war with Lukacs having framed the discourse surrounding the situation.
This case highlights the need within organizations to: strictly control access to and compartmentalize confidential information; ensure that employees receive extensive training about the implications arising from human rights codes and statutes governing privacy; have explicit policies governing privacy and human rights that address both substantive and procedural consideration; engage in proactive management of sensitive situations; ensure that managers develop well rounded conflict resolution skills; and respond to legitimate concerns about administrative power from employees.
Overall, as lawyers we need to provide proactive strategic advice when it comes to progressive discipline, but there is a need to remind clients to ensure internal policies, training, and decision making processes are reviewed and updated frequently to respond to wider developments in the law, technology, and society. Failing to do so will open the door to situations like the one described in this article.
Tuesday, February 1, 2011
With the revolutions in Egypt and Tunisia reverberating in the public consciousness in North America the underlying causes are being examined. One issue that demands further examination is the issue of youth unemployment and the corresponding silence from politicians around the world about this long-simmering issue. In Canada youth unemployment is running close to fourteen percent and in other countries it's running far higher. From the talking points of politicians as of late you wouldn't know that a problem exists. Their silence is deafening and points to a disturbing trend of politicians not wanting to occupy themselves with the day to day issues young citizens are facing.
Within government in Canada the capacity to address the scope of youth unemployment has been gutted by successive cuts. There has been a retreat at both the provincial and federal level from addressing issues related to the labour market. In the absence of government action: regulatory efforts monitoring workplaces have stagnated, entry level jobs are replaced with internships, post-secondary education has become the final answer to all youth related public policy issues, and youth are falling further into debt which means not being able to set aside money for future.
Clearly, there is no magic bullet to youth unemployment and that's why there needs to be a public discussion about what options are available to get more young people properly transitioned into the workforce and begin addressing the shortage of good jobs for our graduates. Adhering to the status quo simply is not an option, as this is a systemic issue that won't be going away anytime soon. For further information on youth unemployment. Take a look at ILO's Jose Manuel Salazar-Xirinachs' comments about youth unemployment on CNBC and the ILO report entitled: "Global Employment Trends For Youth".