Browsing by Author "Brierton, Thomas D."

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    Aunt Laura’s Promise
    (Legal Resource Centre of Alberta Ltd. (LRC), 2009) Bowal, Peter; Brierton, Thomas D.
    This story is about a generous aunt, Laura Constantineau Brunet, who orally promised one of her Ottawa houses to her 20-year-old nephew George Constantineau in return for him agreeing to do some errands for her. George readily agreed to that bargain. So, while attending a technical school for 6 months in 1934.35, he lived with Aunt Laura at 550 Besserer Street in Ottawa, who owned both that house and the adjoining 548. They agreed that if George was good to her and if he did some chores for her, she would leave him the land with house next door, at 548. For George to win, he would have to show that doing those errands clearly referred to the sale of the house next door. But young nephews do errands for aunts who they are residing with for six months for several reasons. The errands could be payment for room and board while he was at school. George might be a kind nephew merely helping out his aunt. An objective bystander, knowing nothing of the promises, would not likely conclude that the only explanation for George helping Aunt Laura was that George was getting the other house. His errands were not clearly, nor of their own nature, referable to any dealing with 548 Besserer Street. George did not leave the courthouse empty-handed. Although he could not plainly demonstrate he had a deal for the house, the Supreme Court of Canada thought he should be paid for the errands he performed at the aunt's request, an equitable remedy known as quantum meruit. The Supreme Court said Aunt Laura would have been unjustly enriched by George if she did not pay something for those errands. She would have had to pay for his services if she hired anyone else to perform them. Supreme Court fixed these few errands as worth an extraordinarily high $500 per month (a total of $3,000) in 1954. Aunt Laura's estate was also ordered to pay all of George's legal bills.
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    Does Human Rights Law Discriminate?
    (Legal Resource Centre of Alberta Ltd. (LRC), 2008) Bowal, Peter; Brierton, Thomas D.
    These lists of personal characteristics are called prohibited grounds of discrimination in employment. In the United States, the same lists are called protected classes. If the personal attribute is on the list, the employer must be blind to it. One cannot consider that attribute in any decision unless the attribute can be clearly demonstrated to relate objectively to the job. For example, if fire fighting requires extraordinary physical strength to do the job, fire departments might justify fitness testing that disproportionately screens out disabled, elderly, or female prospects. Likewise, safety concerns in a construction site might override religious beliefs if the worker will not wear a hard hat. Equality through non-discrimination is a social construct, given effect through law. The model which Canada has chosen to use is the prohibited grounds of discrimination framework. It is thought to provide more specificity and efficacy than simply to legislate that everyone is equal before and under the law. However, one might ask whether the list of prohibited grounds of discrimination is itself discriminatory. If we compare the current lists of prohibited grounds of discrimination against these three criteria, we will find some which do not warrant being there. For example, ancestry, place of origin, ethnic origin, and race seem unnecessarily duplicative. In contemporary multicultural Canada, is one's ancestry or place of origin really visible and a factor in employment decisions compared to race or ethnic origin? Is sexual orientation visible? What about religion? In Ontario, why are citizenship and record of offences not relevant in every employment? One might argue that they should be permitted grounds of discrimination.
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    Illegal Questions
    (Legal Resource Centre of Alberta Ltd. (LRC), 2007) Bowal, Peter; Brierton, Thomas D.
    For example, section 8(1) of Alberta's Human Rights, Citizenship and Multiculturalism Act is typical of most provincial human rights legislation in this regard. It reads: "No person shall use or circulate any form of application for employment or publish any advertisement in connection with employment or prospective employment or make any written or oral inquiry of an applicant ...that expresses ... any limitation, specification or preference ... or that requires an applicant to furnish any information concerning race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income or family status of that person or of any other person." The theory in barring employer inquiries is that if the employer cannot ask the employee about these attributes, it will possess no knowledge of them and, accordingly, it cannot illegally discriminate by considering them. Even informal banter over dinner about an applicant's marital partner, children, and age is ill-advised. Inquiries about what an applicant did in previous jobs should reflect more on qualifications than on age. One should be careful about stereotypes about another's religious practices to avoid such assertions as, "We are a very collegial group. Often we eat out together, but you wouldn't be able to do that." Or "the fitness centre is excellent, but I don't suppose you would go there." Job interviews might be conducted with the applicant behind a screen so that the interviewer could not see what the applicant looks like. This would prevent a visual observation of such characteristics as the applicant's age, race, disability unrelated to performance, and gender. Even then, the applicant's voice would likely betray the applicant's gender and age. The screen would hinder visual observation of the applicant's grooming, dress, and demeanour, which are legitimate hiring decision factors.
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    Jobs as Social Welfare Programs: The Case of H1N1
    (Legal Resource Centre of Alberta Ltd. (LRC), 2010) Bowal, Peter; Brierton, Thomas D.
    One of the best illustrations of the employer's comprehensive social welfare obligations is found in the current H1N1 flu pandemic. There are four statutory domains of employee protection in the H1N1 context. These provide a broad social welfare model for employers to use in caring for their employees. As with other types of legal obligation, including environmental protection, data privacy, and prevention of sexual harassment, employers are advised to establish and widely circulate an H1N1 Influenza Response Policy. This would prepare the organization to not only meet its legal obligations minimally but to continue to operate during the outbreak. The policy, or plan, should create a co-ordination team to educate employees on the H1N1 virus, and to develop risk-reduction measures and procedures for employees to follow if they experience H1N1 symptoms. The organization must identify alternative work and communication arrangements, such as telecommuting, as well as dealing with other stakeholders up and down the supply chain. Corporate operations must also be maintained, so backup systems and worksites ought to be considered and tested. One of the best illustrations of the employer's comprehensive social welfare obligations is found in the current H1N1 flu pandemic. There are four statutory domains of employee protection in the H1N1 context.
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    The Whistleblower Defence to Employment Dismissal
    (Legal Resource Centre of Alberta Ltd. (LRC), 2007) Bowal, Peter; Brierton, Thomas D.; Campbell, Carlee
    A half century ago, an English jurist described the employee's legal duty of loyalty to the employer in the following terms: "(an employee) is expected to give, and with very few exceptions does give in full measure the qualities of loyalty and discretion. He is not to obtrude his opinion unless it is invited, but when it is needed he must give it with complete honesty and candour. If it is not accepted, and a policy is adopted contrary to his advice, he must and invariably does, do his best to carry it into effect, however much he may privately dislike it. If it miscarries, he must resist the human temptation to say, "I told you so;" it is still his duty, which again he invariably performs to save his (employer) from disaster, even if he thinks that disaster is deserved." In Fraser v. Public Service Staff Relations Board, the Supreme Court of Canada said "federal public servants should be loyal to their employer" except that where health, security, or life are endangered, criticism may be "actively and publicly expressed," although not "sustained and highly visible" against the government. Building upon Fraser and Haydon v. Canada, arbitrators have crafted nine factors to consider in cases where public criticism by an employee was disciplined by the employer. "Petty dissidents" and those who criticize without "substantial concern for others" will suffer less protection from employer discipline. The threshold of reportable wrongdoing is a major practical issue which may hinder the development of the law: what to do about mere troublemakers? The less serious the wrong, the less compelling and justifiable will be the disclosure. In legislation protecting whistleblowers, the wrongdoing that gives rise to protection from retaliation is specifically defined.