Posted May 11, 2020
Since the COVID-19 pandemic began in mid-March, many workplaces have undergone significant changes to staffing and service delivery. Many employers have been forced to rethink what it means to conduct ‘business as usual.’ This blog post provides a round up of some of the recent legal developments we are seeing in the labour and employment sphere when it comes to dispute resolution and litigation.
Overall, we are seeing tribunals and courts take a more flexible and pragmatic approach to resolving labour disputes and a general acceptance of proceeding virtually, calls for cooperation and patience amongst parties and counsel, as well as a recognition of the unprecedented and extraordinary circumstances that COVID-19 presents.
- Virtual Proceedings
We know that the Ontario Labour Relations Board (the “OLRB”) has transitioned to virtual proceedings and has generally opted for virtual hearings with accommodations as needed to ensure access to justice.[1] The OLRB has applied a case-by-case approach and has adjourned matters involving complex issues, oral testimony and where credibility is an issue.[2] In most cases, agencies in the DS sector should expect virtual hearings and teleconference grievances and mediations to continue for the foreseeable future. Employers should consult counsel about responding to or proceeding with any legal proceeding.
- Certifications and Voting
The OLRB has been applying a “flexible and pragmatic” approach to matters relating to unions in the process of certification, and those seeking certification. As of March 23, 2020, the OLRB was hearing most representation votes electronically for workplaces that continued to operate. The OLRB announced that it would not be hearing representation votes for workplaces that are closed as a result of COVID-19.
Generally, representation votes are taking place via email. Even where a workplace where all employees are still coming to work at a single location, in-person voting has been deemed not appropriate in the circumstances, and will take place electronically.[3] Applications for certification have also been heard electronically during the pandemic period, using the same “flexible and pragmatic approach” taking into consideration internet shortages and other technical difficulties.[4]
- Adjournment
Employers in the health sector and long-term care sector have sought adjournments from tribunals on the basis that their staff who would need to prepare for hearings or (virtually) attend hearings are unavailable as a result of staff deployments, staff assisting in other agencies to address COVID-19 and outbreaks in their facilities.[5] The realities and challenges in many hospitals and long-term care homes are similar to what residences that support people with disabilities are experiencing.
Adjudicators have recognized the vulnerability of the patients and residents staff are supporting and the health concerns COVID-19 presents.[6] Arbitrators have generally been undertaking a “balancing” act of the interests in resolving a particular matter in a timely manner, and the realities of a pandemic and the health and safety issues associated with it. Arbitrators are asking the following questions:
- What is the grievance?
- What is the nature of the matter?
- What is at stake?
- What is the length of the delay considered?
- What prejudice, if any, will ensue?[7]
PooranLaw will continue to monitor labour and employment legal developments. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
[1] Labourers’ International Union of North America, Local 183 v Bloomfield Developments Inc. and/or Bloomfield Homes Inc. 2020 CanLII 31657 (ON LRB)
[2] Gail Paterson v Her Majesty the Queen in Right of Ontario, 2020 CanLII 28031 (ON LRB)
[3] United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union (United Steelworkers) v StelCrete Industries Limited, 2020 CanLII 25132; Labourers’ International Union of North America, Local 837 v Wasteco Group, 2020 CanLII 31358 (ON LRB)
[4] Labourers’ International Union of North America, Local 183 v Bloomfield Developments Inc. and/or Bloomfield Homes Inc., 2020 CanLII 31657 (ON LRB)
[5] Scarborough Health Network v Ontario Nurses’ Association, 2020 CanLII 30377 (ON LA)
[6] Southampton Nursing Home v Service Employees International Union, Local 1 Canada, 2020 CanLII 26933 (ON LA)
[7] See Generally: Mount Sinai Hospital v National Organized Workers Union, 2020 CanLII 28953 (ON LA)
This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.
