NEWS
Black Gropper in the Community
On May 25, 2010, Allan E. Black, Q.C., co-presented at a CBA employment
law subsection luncheon on the issue of “Tips for Effective Advocacy Before
Administrative Tribunals/Boards”.
On May 26, 2010, Allan E. Black Q.C. co-presented at the Centre for
Labour-Management Development Conference, on the topics of the duty to
accommodate, misconduct and disability, and accommodating family status.
In May 2010, Shanti P. Reda presented on the issue of mitigation of damages
at the CLE Society's 2010 Employment Law Conference.
In June 2010, Pamela Costanzo and Stephanie Mayor presented on privacy law at the CLE Society's
2010 Labour Relations Conference.
On October 14, 2010, Shanti P. Reda will be speaking at the Employment Standards
Act Seminar presented by Lorman Education Services, on the topic of ‘Exclusions,
Variances and Averaging Agreements under the Employment Standards Act’.
Stephanie Mayor and Shanti Reda are co-authoring a paper that will be presented
at the CLE Human Rights Conference on November 4 and 5, 2010.
Jessica Burke will continue as part of the executive of the BC Canadian Bar
Association (CBA) Labour Law Section.
Stephanie Mayor has joined the executive of the BC Canadian Bar Association (CBA)
Human Rights Law Section.
Staffing Updates:
Black Gropper is pleased to welcome a new associate,
Mandy
Sigurgeirson. Please see Mandy's bio page to learn more about her.
Jessica Burke is away from the office on maternity leave until March 2011.
Some Recent and Ongoing Litigation
COPE 378 v. ICBC (HR187 –
Short Term Disability Form Grievance) (Burke) unreported, January 31, 2010
We represented the Canadian Office and Professional Employees' Union, Local 378,
in a policy grievance challenging inquiries made of employees on sick leave by
way of the Employers sick leave form.
We were successful on a preliminary matter that the Employer could not introduce
evidence on settlement discussions. We also obtained a significant victory on
the merits of the grievance. The Arbitrator held that all eight questions
challenged by the Union could not be routinely required by the Employer as
currently phrased because they were inconsistent with employee privacy rights
and arbitral authority, even though some of the questions had been used for
years. Specifically, the Arbitrator eliminated questions about subsequent
visits, objective findings, treatment and the treating physician’s specialty as
they were found to be not reasonably necessary for the administration of the
Employer’s short term sick leave plan. Additionally, questions about the first
date of illness and physicians visit were re-phrased to focus on the current
absence rather than the illness itself, so as to limit the amount of medical
information disclosed to the Employer.
This decision signals an evolving and deepening acknowledgement by arbitrators
of employee medical privacy concerns, and significantly restricts the type of
medical information an employer is entitled to in the context of short term
absences. This development is important because employers and unions have
tended to rely on cases involving longer and more unique absences in determining
question appropriateness for all cases of sick leave, whereas this
decision strongly suggests a demarcation between the types of questions allowed
in those cases and those routinely allowed for short term absences.
Rogers Sugar Ltd. v. Canadian Office and Professional Employees, Local 378 (Application for Interim Relief), [2008] B.C.L.R.B. No. B167/2008 (Adam)
Black Gropper recently secured a significant victory on a preliminary matter in this case, assuring that its client would receive procedural fairness throughout the hearing.
Black Gropper was successful in arguing that the Employers witness (the "Witness"), who had completed her testimony over three days of hearing, should not be recalled and that a new document she had created after her testimony was closed was inadmissible. The Vice-Chair ruled that "to allow...[the Witness] to revisit her earlier testimony at this stage would undermine the Union's right of cross-examination." The Union was also successful in arguing that a number of other documents the employer sought to introduce, which had an "obvious connection" to the Witness or which the union "likely" would have cross-examined the Witness on if the Union knew that the employer would rely on the documents, were either entirely inadmissible or could only be used by the employer for purposes of cross-examining the Union's witnesses.
This case is particularly significant because there are very few, if any,
reported cases of the Labour Relations Board dealing with these issues.