Employment & Labour ' Top Ten Cases Of 2020

• Published date: 21 January 2021
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Contract of Employment, Employment Litigation/ Tribunals, Arbitration & Dispute Resolution
• Law Firm: Cox & Palmer
• Author: Ms Nicole Heelan and Erin Mitchell

In a year like no other, there have been steady developments in the landscape of employment & labour and human rights law. Some of these developments were long anticipated, including the effect of termination on bonus compensation and the legality of mandatory arbitration clauses in the gig economy. Perhaps the most interesting cases, however, are those that relate directly to the major issues of this past year including the COVID-19 pandemic and widespread movement for racial justice and equality.

Below, we provide a summary of the top 10 Canadian decisions we believe Atlantic Canadian employers should be aware of going into 2021.

1. IBEW Local 1620 v Lower Churchill Transmission Construction Employers' Assoc Inc., 2020 NLCA 20 [IBEW]

Accommodating cannabis use in a safety-sensitive environment: Duty to accommodate requires employer to consider all possible options. Insufficient for an employer to show that only some of the possible accommodations are unreasonable.

We previously wrote about the arbitrator's decision in IBEW here and here.

The grievor, a construction labourer, suffered from Crohn's disease and osteoarthritis. To manage the associated pain, he used medically prescribed cannabis. This pain management regimen was in place when, in 2016, he applied for a labourer position on a construction project. He was hired pending satisfactory drug and alcohol screening. The grievor tested positive for drug use. Upon learning of the underlying medical reasons, the employer made numerous requests for additional medical evidence regarding his capacity to perform work safely. In the end, the employer refused the grievor employment on the ground that his medicinal cannabis use created an unacceptable safety risk. The Union grieved the decision, alleging a failure to accommodate.

The arbitrator denied the grievance on the basis that that the grievor's position was deemed to be "safety-sensitive", meaning that any performance limitations due to substance use could result in significant injury. The Union brought an application for judicial review to the Supreme Court of Newfoundland and Labrador. The applications judge found that the arbitrator's decision was within the range of reasonable outcomes. The Union then appealed to the Court of Appeal and the sole question on this appeal was whether the applications judge reasonably concluded that the employer could not accommodate the grievor without undue hardship. Central to the issue is the fact that current science is not capable of assessing a person's individual level of impairment due to cannabis use, nor can it accurately determine how recently cannabis was taken given the fact that cannabis can be detected in a person's body long after it has been consumed.

The Newfoundland and Labrador Court of Appeal held that it was insufficient for the employer to rely on the dearth of scientific tests for impairment to discharge their onus of accommodating the grievor. The employer did not, for example, consider alternatives to scientific or medical tests such as functional assessments of the employee. The court did not purport to say that such tests would be adequate, only that all reasonable options need be considered. The Court of Appeal found that the applications judge erred in concluding that the arbitrator's decision was reasonable as the arbitrator did not complete the necessary analysis. The matter was remitted back to arbitration for a complete and holistic analysis of the employer's duty to accommodate. It will be interesting to see whether the arbitrator determines that accommodation without undue hardship is possible in a safety-sensitive work environment on this broadened analysis.

2. Uber Technologies Inc. v Heller, 2020 SCC 16 [Heller]

When there is a pronounced power imbalance between parties to a standard form contract, forced arbitration clauses which prevent the weaker party from meaningfully pursuing disputes will be considered unconscionable.

We previously wrote about the Ontario Court of Appeal's decision in Uber here.

The Supreme Court of Canada's decision in Uber expands the role of the doctrine of unconscionability in standard form contracts, particularly with respect to arbitration agreements.

By way of background, to become a driver for Uber, drivers had to accept the terms of the service agreement, which specified that all disputes with Uber were required to go to mediation and then arbitration in the Netherlands. This process involved an upfront administrative cost- to be paid by the driver- of US$14,500, amounting to nearly a year's salary and not inclusive of other costs and legal fees.

The Respondent, Heller, was the named plaintiff in a class action against Uber Technologies seeking a declaration that drivers are employees of Uber and, accordingly, entitled to the benefits of the Ontario's Employment Standards Act, 2000 ("ESA"). He further sought a declaration that Uber violated the ESA. While the Ontario Superior Court of Justice stayed this action in favour of arbitration, the Ontario Court of Appeal found that the arbitration clause was unconscionable. As this was a preliminary motion, Justice Nordheimer (writing for the ONCA) assumed the drivers to be Uber employees as pleaded. On this view of the arrangement, the arbitration clause was invalid as it ousted provisions of the ESA (namely its complaints procedure) out of which employers cannot lawfully contract. Justice Nordheimer allowed the appeal on this basis, noting that he also would have set the arbitration clause aside for unconscionability in forcing drivers to pursue their claims in a foreign country. Uber appealed this decision to the Supreme Court of Canada.

Notably, the Supreme Court of Canada declined to deal with the ESA argument, clarifying that the question before them was limited to who has the authority to decide whether an Uber driver is an employee- the courts of Ontario or an arbitrator in the Netherlands. On this point, the Supreme Court of Canada agreed with the Ontario Court of Appeal calling it a "classic case of unconscionability." The Supreme Court of Canada found that both traditional elements of unconscionability were met: inequality of bargaining power and an improvident bargain. Arbitration is meant to be a cost-effective and efficient...