Is the Truth Becoming Irrelevant in Canada’s Labour Law?

Commentary, Education, Rick Mehta

With large amounts of publicity being generated about the case of Jessica Yaniv (the transgender woman who is taking businesses to court for refusing to perform Brazilian waxes on Yaniv’s male genitalia), there is growing awareness within Canada that human rights tribunals do not follow the principles of natural justice that are in place in civil court or criminal law. Key principles that are absent in human rights tribunals include due process and presumption of innocence. As well, factual statements can be the basis for expensive fines if those statements hurt the feelings of a person who has a protected status, as was recently observed in the case of Bill Whatcott, who was ordered to pay $55,000 to trans activist Morgane Oger for stating that Oger is a biological male.

Labour law in Canada is another area in which fundamental principles of natural justice, and even truth, do not apply. While unions tell their members and the public that they advocate for workers’ rights, there is nothing to prevent unions from colluding with an employer to dismiss workers without cause. For example, Shannon Nickerson was a part-time faculty member in the Psychology Department at Saint Mary’s University who was dismissed because she needed to have brain surgery. She then suffered a year-long ordeal in which she fought her union, the very people who were supposed to be representing and protecting her.

When Dr. Nickerson filed a complaint with the Nova Scotia Labour Board against her union, she was informed that unions are not required to make correct decisions, and that all unions are required to do is make decisions that are in good faith, objective, and honest. Unfortunately, because unions are not required to provide evidence that their actions are indeed in good faith, objective, and honest, they are free to do what they wish without impunity. This leaves unionized workers with no legal recourse if their union decides to collude with their employer to dismiss them without cause. Unfortunately, Dr. Nickerson’s case is not an anomaly.

After a unionized worker has been dismissed without cause, the union is said to be representing their member if they provide the member with options after they have been dismissed. The first option is an arbitration hearing, which in principle gives the worker a chance to have their job reinstated. However, in a recent ruling against Lakehead University, an arbitrator (George T. Surdykowski) ruled that, on the one hand, the university’s decision to terminate Dr. Jean-Yves Bernard‘s employment was an excessive disciplinary measure, but on the other hand ruled that the professor not be reinstated because the relationship between the professor and employer was irreparably damaged. Thus, there is now a legal precedent in place that allows universities to dismiss tenured professors who exercise their rights to academic freedom and dissent, as opposed to professional misconduct. 

Because of the precedent at Lakehead University, financial settlements are now the preferred option for unions because settlements are far more cost-effective than arbitration hearings and because settlements typically contain confidentiality clauses that gag workers. This, in turn, prevents workers from speaking about their experience and allows unions to get away with actions that most Canadians would find reprehensible.

For example, Jan Wong was a columnist with the Globe and Mail who was dismissed without cause. Although she had received roughly $200K in severance pay, she was ordered to return this money because she had made reference to the settlement in a book she had written after the dismissal, even though she did not disclose the amount that she had received. Most reasonable people outside of the legal profession would agree that stating that someone received severance pay is not a breach of a confidentiality agreement, especially after a wrongful dismissal.

In a more recent case, William Kaplan ruled that Acadia University no longer had to give me my severance pay (a lump sum payment of $50K) because I had violated the settlement agreement multiple times. While the loss of my severance pay was disappointing to me, the part of his ruling that has me most concerned was his review of the factual background pertaining to my case. 

First, Arbitrator Kaplan alleges that Acadia University had terminated my employment for cause when in fact it had not. When I was negotiating my settlement on April 1, 2019, the first draft of the settlement stated that Acadia University had terminated my employment for cause, but my union’s lawyer was the one who removed the words “for cause”. Given that Kaplan was the mediator for the settlement and therefore was aware of this change, I believe that his allegation in his ruling demonstrates his lack of respect for truth.

Second, a reading of his ruling implies he accepts the report from an “investigation” that the university commissioned by law professor Wayne MacKay as fact. Even though MacKay is not a trained investigator, his report lacked both an executive summary and a methodology section, and his report contained no evidence to demonstrate that he is even remotely familiar with due process. This suggests that arbitrators – much like judges in human rights tribunals – are not required to provide evidence that they have critical thinking skills, believe in the principle of fairness, or work from the principle of presumption of innocence.

Given that unions and employers have to agree on who the arbitrator will be for a dispute, if there is nothing in Canadian labour law to ensure that unions approach their members’ case honestly and in good faith, and if employers are also not required to demonstrate that they are acting honestly and in good faith, then it stands to reason that there is no reason for the public to trust there is any truth in the rulings that arbitrators make or for unionized workers to trust that the arbitrators are taking the interests and concerns of individual members seriously. This should be cause for concern for anyone who is in a unionized workplace who has dissenting views or wishes to exercise their rights under the Charter, such as freedom of expression or freedom of conscience.