The Legal Playing Field | Toronto Labour & Employment Lawyer William Watson

Sometimes a Swimming Pool is Just a Swimming Pool

By WIlliam Watson on April 3rd, 2013 Posted in Baseball, Strategy

This was the comment of the Ontario Court of Appeal in the Occupational Health and Safety Act case, Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 decided in February of 2013.

“The Pitch”

The Blue Mountain case dealt with the application of the OHSA employer reporting requirements under Section 51(1) and the preservation of the accident scene requirements of Section 51(2) of that Act. A guest at the Resort had drowned in an unsupervised swimming pool at the Resort. No worker was present. No Report of the incident was made to the Ministry of Labour under Section 51 of the OHSA or otherwise in 2007.

A Ministry of Labour Inspector subsequently ordered the Resort to Report based on Section 51(1) which reads, in part, as follows:

“Where a person is killed or critically injured from any cause at a workplace, … the employer shall notify an inspector … immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence…”

“The Error”

The position of the Ministry of Labour, upheld at the Ontario Labour Relations Board and on Judicial Review by the Supreme Court of Ontario was essentially that every place is a workplace because a worker may, at some point, be at that place. According to the Court of Appeal, such an interpretation would mean that virtually every death or critical injury, to anyone, anywhere, whatever the cause, must be reported and the applicable site shut down under Section 51(2) of The Act until a Ministry of Labour Inspector released the site. The Court of Appeal properly found this to be an interpretation which would be absurd and therefore found that the decision by the OLRB should be overturned as unreasonable.

This reminds me of the time I attended Umpire’s School to receive Softball Rule interpretation guidelines for the coming year only to be forced to endure endless blathering about the alleged interpretation of the Rule governing how a base runner could be put out by a fielder who touches the base runner, while the base runner is off a base, with the ball contained in the fielder’s glove. The Umpire in Chief, obviously a lawyer wannabe, pronounced that the Rule in question could certainly be interpreted to mean that the fielder could touch the base runner with his empty hand while the fielder simultaneously was holding the ball in his glove hand, and thus put the base runner out. This was also patently absurd but nonetheless a literal reading of the applicable rule, as it then was.

“The Call”

In Blue Mountain the Court of Appeal ruled that an employer is required to report an occurrence and Section 51 of the Occupational Health and Safety Act will apply, if:

· either a worker or non-worker is killed or critically injured within the meaning of the Act and Regulations;
· the incident occurs at a place where either a worker is carrying out his duties when the incident occurs, or, where a worker might reasonably be expected to be carrying out his duties in the ordinary course; and,
· there is a reasonable nexus between the hazard giving rise to the death or critical injury and a realistic link to worker safety at the workplace.

The Court of Appeal concluded that: “ … there was no evidence that the Blue Mountain guest’s death in the swimming pool was caused by any hazard that could affect the safety of a worker, whether present or passing through.”

Accordingly, the Retail Store presumably does not have to report an occurrence and close down a portion of the store just because a customer suffers a heart attack in the store. However, what if a customer breaks his leg due to a slip hazard in an aisle or if material falls off the top shelf and strikes the customer causing unconsciousness? Is there a nexus between the hazard giving rise to the subject critical injury and worker safety at the workplace? Obviously, the facts still need to be assessed in each case, however, the Ontario Court of Appeal has done its best to clarify the “Rule Book” and establish a decision making framework in such circumstances.

A Snitch in Time

By WIlliam Watson on March 25th, 2013 Posted in Baseball, Strategy

The Canadian Federal Government Budget, delivered on March 21, 2013, was indeed a “conservative” financial recipe for baking the future Canadian economic pie.. The Budget contains very modest, but well conceived, spending initiatives aimed at: job creation; skills training; and infrastructure; as well as much needed help for the Manufacturing Sector . However, the Budget also focuses on collecting more revenue for the Federal Government so as to attempt to balance the Budget by 2015. What caught my eye was the initiative to offer cash incentives to persons who “blow the whistle” on people allegedly, and inappropriately, seeking to evade taxes by moving money to off shore safe havens.. Be afraid, be very afraid. The Fed’s have just enticed your neighbours to snitch on you, just like a bitter ex-spouse.

Stealing the sign or the sign for stealing…..are you going to snitch?

“Stealing Signs”

Isn’t paying tax snitches a lot like the practice of “stealing signs” in a baseball game. It may not break the Rules per se but the tactics employed can prove to be a bit unseemly. No one seems to mind that a runner at second base may steal the Catcher’s sign to the Pitcher and relay the same to the Batter, that is just a traditional game within the Game. But when a team hides a spy in the outfield bleachers using high tech means to steal the same signs and relay the information to the Batter, that makes news and is generally viewed as beyond the pale.

A Toronto morning radio host recently referred to the old joke: “Surely you remember the famous Russian magician, … who turned his Family in to the K.G.B.”

Kathleen Wynne’s Victory is Good News for Organized Labour and potential bad news for the NDP

By WIlliam Watson on February 1st, 2013 Posted in Baseball, Collective Bargaining, Employment, Labour Law, Strategy

The victory by Kathleen Wynne at the Provincial Liberal Party Leadership Convention is a “Home Run” for trade union’s in Ontario.

It now appears that among Ms Wynne’s first acts as Premier Designate will be to call the Teacher’s unions and invite them and their fellow travellers, such as the Canadian Union of Public Employees, to meet her and her Team to discuss how they can all play nice on the sandlot.

Ms Wynne will use her prior good working relationship with Teacher’s unions, forged as a former provincial Education Minister, to demonstrate that she intends to rebuild the effective working coalition between the Liberal’s and organized labour.

It says here that one of the main reasons Liberal Party delegates selected Ms Wynne over her main rival Sandra Pupatello was that Ms Wynne, a professionally trained mediator, is perceived as more likely to resolve the open conflict/hostility with Teachers and to buy more time, in a minority Parliament, for the new Liberal Lineup to distance itself from the failed and patently unpopular policies and practices of Premier Dalton McGuinty, before the next Provincial Election takes place.

The unions will understand that they have real short term leverage with the new Liberal squad and its newly appointed Skipper.

The Premier Designate knows that she and her Red Team desperately need the Teacher’s unions, and their legendary campaign assets in her Team dug out. She also understands that she must appease the “Working Families Coalition”, a.k.a. organized labour, if she is to keep the NDP and its rookie Skipper, Andrea Horvath, playing defense from the outfield.

But how to accomplish all of this without entirely throwing her prior Team under the bus. Always remember, “…all evil is in the past.”

The answer is to signal a profound commitment to consult on and ultimately implement: education reform; labour law reform; as well as fiscal sustainability. (This was exactly the formula that kept successive Ontario Progressive Conservative. Governments in power, in minority government conditions, for the years between 1971 – 1985.)

The theory will be that labour peace and economic growth and sustainability go hand in hand.

Look for prominent Cabinet appointments of left leaning members to the Education and Labour Ministerial portfolios. (In Ontario politics, like baseball, it is clear that you need a supply of “port siders pitching on your staff.) In the same manner, don’t rule out a possible defection of a prominent NDP caucus member to cement the Liberal/trade union relationship.

But apart from a plethora of consultation (talk and more talk is cheap), what kinds of real labour and employment law reforms would potentially turn the trick in garnering trade union support while protecting the Liberals from attack, from the right, as economically profligate:

1. “Card based certification” under the Labour Relations Act, for all sectors not just the construction sector. (While this is truly just inside baseball stuff for everyone other than trade unionists, it is a real wedge issue with the Tory party);

2. Pension reforms aimed at securing pension benefits for all existing pensioners and providing extended plan funding relief for fund sponsors. (This will potentially rip a plank out of the NDP election platform); and,

3. Collective bargaining and arbitration reforms designed to ensure that the bargaining process, in at least the public sector, is treated as virtually sacrosanct going forward. (This will be very attractive to all Public Sector Union’s and their membership and will go some distance to eliminate the sting of Bill 115 with the Teachers).

Each of the above-noted moves, if implemented quickly, will almost certainly score immediate RBI’s and will potentially keep the Liberal “Big Red” Team on the playing field, and at bat, for an extended Inning. All of which would be music to the ears of nervous Liberal MPP’s on the bench and staring down certain demotion to the Minor Leagues if their Parliamentary Game ends prematurely.

Fans are advised: to watch the Waiver Wire; keep their score cards handy; and, to hold onto their caps. “…It’s never over till the last out is made.”

Bill C-377 Passes in the House of Commons – Is this a Sign of the End of the Harmonic Convergence?

By WIlliam Watson on December 13th, 2012 Posted in CAW, Labour Law, Strategy

With December 21, 2012, the end of the Mayan Calendar, just around the corner, amazing things are happening. Evidence in this regard is the fact that the Canadian House of Commons, on December 12, 2012, passed Bill C-377 amending the Income Tax Act with respect to certain disclosure requirements for labour organizations. The Bill will now go to the Senate in the new year as the next stage in the legislative process. Based on the comments and lobbying activities of a number of labour organizations one might have thought that the end of the world as we know it is at hand. But with respect, I don’t think that is really the case.

What would this Bill require?

Simply put, the Bill requires modest transparency on the part of labour organizations operating in Canada. A public information return under the Income Tax Act would be required by every labour organization including: disclosure of certain financial statements; disclosure of certain financial transactions and disbursements above $5,000 and disclosure of certain salaries paid to high ranking employees and officials of the organization. Minimal disclosure would also be required concerning non-labour relations activities.

The Bill is far from an attack on fundamental union rights, nor is it an attack on privacy issues as has been claimed.

The proposed legislation merely responds to the sentiment of Canadians, including a number of unionized employees, who seek a mechanism promoting clarity and accountability concerning how tax deductible monies are being spent by labour organizations.

This proposed legislation is similar in many respects to disclosure laws in other jurisdictions with vibrant labour organizations. As such, the proposed legislation will not adversely affect the fundamental activities and purposes of Canadian labour organizations.

The Female Bully Generation

By WIlliam Watson on December 5th, 2012 Posted in Employment, Labour Law

Bill 168… Violence and Harassment in the Workplace has served to confused people.

Particularly on the harassment side…many not sure what it covers, the majority of people have the capability of understanding violence…it’s the word and concept of harassment that can cause small issues to grow.

Section 32:

32.0.6 : deals with having to develop and maintain a policy with respect to workplace harassment. People often ask “ is this different subject matter than under the Human Rights Code? And if it is different then what are we talking about? Is it that someone is not being nice or friendly or ignoring me…..they are bothering me…..what is that? There is no clear description.

Ordinary interaction gets called harassment, employers are in a dilemma, and most policies are about violence. If a complaint is made, you have to investigate. If you have to investigate, but not sure what you are investigating, the outcome and even the process can be troublesome.

This section (32.0.6) is for other grounds than protected rights. How broad is harassment defined? How do you know it if you see it? What is the recourse? Unfortunately, it can be used as a weapon, and to deflect from other things.

Example: Unions that are being creative with an issue that may not fit into the subject matter of a grievance and are sometimes framing it as ‘harassment’. How do you respond if the union is using this instead of filing a grievance?

The answer is:

….conduct a low key investigation….if not proceeding through the grievance process, get the person who has raised the issue to provide a written statement of the nature of the interaction with the other individual in the supervisor ( often times a supervisor or lead head). If this is not a grievance you do not need to involve the union by invitation. If they are there let them participate. Have the certainty that the policy says an investigation would be completed under the auspicious of the policy.

Ask the supervisor or individual to respond. Get the story. Don’t put your head in the sand, no firing everyone up, don’t call it a complaint under the policy. If fertilizer hits the ventilation system, you are in a position to respond. You have maintained your credibility. Everyone is committed to their positions very early on, so if it does explode, there can be no going back on that or changing the position, it no longer has the opportunity to become an afterthought.

You may find issues you do need to address and by not making a federal case out of the situation, it becomes the natural course of business.

It’s pretty easy to strike out, taking call three looking at the plate because they haven’t realized what was being thrown at them. You have the policy because the law requires it. This can be perilous because of the lack of recognition.

Think about the bullying that could be happening in your organization – if a man was being bullied – would he report it? Men will keep these types of incidents hidden, especially if the bully is a female. Bullying certainly falls into the workplace harassment complaint category.

When a low key investigation is completed, there are many things that may not require an answer – but all of a sudden you have details and opportunity to create conversation. You can learn (and teach) your team how to get together, deal with perceptions and get focused on creating a culture where harassment does not exist.

9th Inning: Future-Building Ideas

By WIlliam Watson on November 21st, 2012 Posted in Benefits, CAW, Employment, Team Development

It really is the struggle for relevance.

If the unions got into upgrading people’s skills to help people get jobs, there would be a line up to join.

Many organizations have had to change in order to continue to exist – look at HP – went into tablets and got out fast!

The union leadership needs to ask itself a few question -

What do we have that people need – that people want and need?
As with all change, they cannot continue to look at the past, they need to look at where jobs are coming from, and there seems to be a need to develop a level of cooperation with current organizations to help make the employer and employee better. It is no longer a one-sided struggle. People have ‘protection’ through legislation.

Here are my tips for the future of the CEP-CAW amalgamation:

The old combative ways need to stop.
The persona and attitude need to be modernized.

The bigger question is – Are they capable of doing this in a timely way? Big organization are harder to move. Did they need to get bigger or did they need a simple attitude adjustment and open their minds to the future?

If that happens, then we will need to re-evaluate it.

8th Inning: Bright Spot Thinking from the Union Environment

By WIlliam Watson on November 7th, 2012 Posted in Benefits, CAW, Strategy, Team Development

Is the merger of the CEP-CAW going to be a home run…I don’t think so, I don’t think that it will score very much. They do not have the home run hitter that will hit it out of the park every time.

It is not that they do not have bright and able people in their ranks (money=hiring), the game may have changed so dramatically that by the time they find something that resonates it may be too late in the game to make the organization a force, formidable.

Take a lesson from the NDP…see next post.

Reflect you, your values, your vision plus an effective face.

What I can see is that the unions are afraid that we will dip to below the US…their importance will dissipate. By getting together this may be an effort to hopefully stem the tide of diminishing membership.

Like my Blue Jays and all of the trades this year – and it goes to every organization – if you are not focused on goals, you need to re-evaluate why you exist and it’s critical to maintain relevance to your audience or you will always lose the game. Think of the buggy whip…..where is it now?

Perhaps the opportunity comes from bringing together two different memberships – there may be talent in the wings? Perhaps great new ideas? Could have opportunity for new generations to take the reigns and share their energy and vision? They could take a lesson from Chip Heath – see what other ‘bright spots’ exist in organizations of all kinds that have merged, and see how they can duplicate the success.

6th Inning: It Happened All At Once

By WIlliam Watson on October 30th, 2012 Posted in Uncategorized

The CAW-CEP Merger was approved at the CEP Fall Membership Meeting in mid-October. This marks the

creation of the largest union in Canada.

Now all the questions bear to be asked:

what will it be named?
who will form the leadership?
what will this do for the masses?

Could it look like this – Meeting Held in Windsor to Tackle Declining Standard of Living ?

The questions will be endless until the amalgamation takes place and a joint meeting is held sometime in the late Winter….then we will see what this is all about.

7th Inning: Victims of Success

By WIlliam Watson on October 16th, 2012 Posted in CAW, Collective Bargaining, Labour Law

There was a reason that unions developed – in the past. Understanding that unions have worked hard to advocate for excellent legislation in many area of employment standards, health & safety and more, leads me to think about how they have become victims of their own success.

With the emergence of knowledge-based industries, the relevance of unions is tough to establish. These industries typically are made up of younger, highly educated (and savvy) workers who are very independent and individualistic, not seeing the need for a union.

Success Pays a Price

Reviewing the Unionization Rates for 2011, the percentage of private sector unionization in Canada has dropped dramatically to 17% – less than half the rate in the 1970’s. In the US, the rate is under 10% in the non-agricultural membership. More importantly, Ontario is at 15%, below the national average. Ontario was once the mainstay in union representation. The province of Quebec is at 25% – the single province this is alone driving up the rate significantly. The closest province behind Quebec is Newfoundland at 20% and whose economy is made up of fishing and related industries plus oil & gas –highly unionized workforces.

The question always leads back to the same – what is this nameless ‘super-union’ selling to the knowledge industries? Who is selling it? (this generation needs to relate to a current face!)

There needs to be substance behind the brand…big lasts about 30 seconds.

For my clients, off the bat, there is not likely to be a matter of concern because there are no ideas and substantive plan that will make this larger union any more relevant. The only place I can see potential impact in the near term if the union seeks to invest some of its combined resources into defined unorganized sectors to support non-union employees.

5th Inning: Tapping into Youth and Other Movements

By WIlliam Watson on October 9th, 2012 Posted in Uncategorized

Is the merger of the CAW CEP union in Canada becoming an opportunity to influence government and perhaps create an alternative to the current political parties?

Inserting themselves into ‘other than employment’ situations has already started to develop:

In Canada, Union isn’t a dirty word. The question is “ is it a relevant word?” Are the unions getting involved in movements and tuition protests an attempt to make themselves relevant again?

Even members will quickly question putting money into these things, they will start to balk. Yes, this could be an opportunity to get some recognition in the younger/students ranks, but will it translate into dues-paying membership? Likely not. Is this what bigger means – that they will be too big to fail?

The only way this merger improves the game beyond where the CAW and CEP were alone is that they collectively will have a few more resources at their joint disposal. More questions will come when the membership will need to understand, apart from the $50 million for organizing, does the ‘super-union’ have to spend on support non-union employees. How fair is that? Isn’t the crux of having a union to create ‘fairness’? Just a question?

I think there is no home run to be hit here.