Important Tips for Employers Hiring Foreign ... - Stewart McKelvey
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Important Tips for Employers Hiring Foreign ... - Stewart McKelvey
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Atlantic <strong>Employers</strong>’ Counsel<br />
LEGAL DEVELOPMENTS OF INTEREST TO BUSINESS IN ATLANTIC CANADA<br />
Fall 2011<br />
Editor:<br />
Court of Appeal Upholds Random<br />
Alcohol Testing in Inherently Dangerous<br />
Workplace<br />
Clarence Bennett<br />
Fredericton Office<br />
506.444.8978<br />
cbennett@stewartmckelvey.com<br />
In this issue<br />
Court of Appeal Upholds Random Alcohol<br />
Testing in Inherently Dangerous Workplace<br />
Penalties <strong>for</strong> Employer Withholding the Pay of<br />
<strong>Foreign</strong> Workers<br />
Notice of Dismissal to Employees on Maternity<br />
Leave<br />
Decision to Terminate Based on Business<br />
Reasons, not Complaints regarding Safety<br />
Employer’s Conduct During Dismissal Leads to<br />
High Award and Costs<br />
Reasonable Accommodation Does Not Require<br />
Placement in Dream Job<br />
Past Conduct may be Considered Outside<br />
Limitation Period if Similar in Character<br />
Business Immigration Update: <strong>Important</strong> <strong>Tips</strong> <strong>for</strong><br />
<strong>Employers</strong> <strong>Hiring</strong> <strong>Foreign</strong> Workers<br />
On July 7, 2011, the New Brunswick Court of Appeal released its decision in<br />
Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp<br />
& Paper, Limited, in which it answered the question of whether it is necessary <strong>for</strong> an<br />
employer to prove the existence of a pre-existing alcohol problem in the workplace be<strong>for</strong>e<br />
it can institute a policy of random alcohol testing of its safety-sensitive employees.<br />
Facts<br />
In 2006, the employer unilaterally adopted a workplace policy which included mandatory<br />
random (without cause) alcohol testing, by breathalyser, <strong>for</strong> employees holding safetysensitive<br />
positions in its kraft pulp mill. A positive result (a blood alcohol level greater than<br />
0.04%) constituted a violation of the policy and resulted in the imposition of disciplinary<br />
measures to be determined on a case by case basis.<br />
Shortly after the adoption of the policy, the grievor (who, as a millwright, occupied a<br />
safety-sensitive position), was randomly tested. The grievor refrained from drinking <strong>for</strong><br />
religious reasons, so, not surprisingly, the test revealed a blood alcohol level of zero. The<br />
union nevertheless filed a policy grievance, challenging the “random” aspect of the policy<br />
as a violation of employees’ privacy rights.<br />
Arbitration Decision<br />
The question put to the arbitration board was whether the random alcohol testing portion<br />
of the employer’s policy was reasonable. The majority of the board concluded that to<br />
establish reasonableness, the employer had to demonstrate that a sufficient risk existed<br />
to justify the policy by adducing sufficient evidence of a pre-existing alcohol problem in<br />
the workplace, unless the industry in question fell within the category of “ultra-dangerous”<br />
or “ultra-hazardous”, as would a nuclear plant, an airline, a railroad, a chemical plant or<br />
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Competitive Intelligence<br />
2<br />
2010 NBQB 16G
like enterprise. On the basis of the employer’s evidence<br />
that the normal operation of the mill carried with it the<br />
risk that certain malfunctions could have far-reaching<br />
repercussions, the majority of the board concluded that<br />
the mill was, in fact, a “dangerous work environment”, but<br />
did not accept that the mill fell within the “ultra-dangerous”<br />
category.<br />
The majority there<strong>for</strong>e examined the evidence relating to a<br />
pre-existing alcohol problem in the employer’s workplace,<br />
and concluded that it failed to establish “any significant<br />
degree of incremental safety risk attributable to employee<br />
alcohol use”. The majority also considered the relatively<br />
low percentage of employees tested (10% per annum) and<br />
the absence of positive test results to date, and reasoned<br />
that little or no advantage accrued to the employer through<br />
the adoption of random alcohol testing. The majority<br />
there<strong>for</strong>e found that the random alcohol testing provisions<br />
of the employer’s policy were unreasonable.<br />
Decision on Judicial Review – New Brunswick<br />
Court of Queen’s Bench<br />
On the employer’s application <strong>for</strong> judicial review, the<br />
majority of the board’s decision was set aside by the<br />
Court of Queen’s Bench, and the union’s grievance was<br />
dismissed. The Court determined that the majority’s<br />
decision was unreasonable in that it required a history of<br />
accidents in order to justify random alcohol testing, which<br />
effectively meant that an employer would have to wait until<br />
a catastrophe occurred be<strong>for</strong>e being able to take proactive<br />
measures to prevent a recurrence. The Court also found<br />
that the majority’s distinction between a “dangerous”<br />
workplace and an “ultra-dangerous” one was unreasonable.<br />
Court of Appeal Decision<br />
The Court of Appeal restricted its comments to the<br />
consideration of the requirement <strong>for</strong> safety-sensitive<br />
employees to submit to random alcohol testing, in light of<br />
the distinction between the testing <strong>for</strong> drugs and <strong>for</strong> alcohol.<br />
The Court noted that the jurisprudence dealing with drug<br />
testing has been more problematic than cases dealing with<br />
alcohol testing, because the methods employed in drug<br />
testing cannot measure present impairment – a positive<br />
test simply means that the employee has taken drugs in the<br />
past. In contrast, alcohol testing is able to detect on-the-job<br />
impairment and minimize the risk of impaired per<strong>for</strong>mance.<br />
The Court also noted that alcohol testing by breathalyser<br />
has always been regarded as minimally intrusive.<br />
In defence of the majority of the arbitration board’s decision,<br />
the appellant union took the position that (1) the arbitral<br />
jurisprudence has overwhelmingly rejected mandatory,<br />
random and unannounced drug and alcohol testing, and<br />
that (2) sufficient evidence of a pre-existing drug or alcohol<br />
problem in the workplace is necessary to justify a testing<br />
policy, unless the workplace is an ultra-dangerous one. The<br />
Court of Appeal disagreed with the union’s characterization<br />
of the arbitral jurisprudence, and noted that while random<br />
drug testing has met with resistance, random alcohol testing<br />
gained early acceptance once testing was to be per<strong>for</strong>med<br />
by breathalyser and was to be restricted to employees<br />
holding safety-sensitive positions. Significantly, the Court<br />
also held that evidence of a pre-existing alcohol problem in<br />
the workplace is unnecessary to justify an alcohol testing<br />
policy once the employer’s work environment is classified<br />
as inherently dangerous (i.e., not “dangerous” versus “ultradangerous”,<br />
as the latter classification does not exist). The<br />
Court there<strong>for</strong>e determined that the central question to<br />
be answered was whether the employer’s workplace was<br />
inherently dangerous.<br />
The Court held that the majority of the arbitration board’s<br />
finding that the kraft pulp mill was a “dangerous work<br />
environment” satisfies the test of inherently dangerous. In<br />
further support of the mill’s inherent dangerousness, the<br />
Court referred to the mill’s pressure boiler with a high potential<br />
<strong>for</strong> explosion, the potential impact on the environment of a<br />
major catastrophe such as a chemical spill, the intra-city<br />
location of the mill and its proximity to the St. John River<br />
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and the Bay of Fundy, and the potential <strong>for</strong> “catastrophic<br />
failures” of incorrect configuration of plant control systems<br />
by certain employees. The Court concluded that due to the<br />
inherent danger of the employer’s operation, the employer<br />
did not have to adduce evidence of an existing alcohol<br />
problem in the workplace, let alone sufficient evidence of a<br />
“significant problem”. For this reason, the Court of Appeal<br />
agreed with the decision of the Court of Queen’s Bench<br />
to set aside the decision of the majority of the arbitration<br />
board, and to dismiss the grievance.<br />
What This Means <strong>for</strong> You<br />
This decision is good news <strong>for</strong> employers. It confirms that<br />
employers operating inherently dangerous workplaces<br />
need not wait <strong>for</strong> an alcohol-related accident or nearmiss<br />
to implement mandatory random alcohol testing, by<br />
breathalyser, of employees occupying safety-sensitive<br />
positions. However, it is important to keep in mind that drug<br />
testing is treated differently than alcohol testing by courts<br />
and arbitrators, in light of the limitations of drug testing in<br />
detecting present impairment.<br />
Further, employers need not concern themselves with<br />
whether their operations are ‘dangerous enough’ to fit into<br />
an “ultra-dangerous” category in order to justify taking<br />
proactive measures to prevent alcohol-related accidents in<br />
the workplace, as such a category does not exist in the<br />
jurisprudence.<br />
Please note that any discipline imposed on an employee<br />
as a result of a positive drug or alcohol test must be<br />
administered in accordance with the applicable collective<br />
agreement (if any), and must comply with the employer’s<br />
duty to accommodate those with disabilities, if drug<br />
or alcohol addiction constitutes a disability under the<br />
applicable human rights legislation in your jurisdiction.<br />
The employer in this case was represented by William<br />
B. Goss, Q.C. and Melissa M. Everett Withers. Leave to<br />
appeal to the Supreme Court of Canada has been filed by<br />
the union.<br />
Melissa Everett Withers<br />
Fredericton Office<br />
506.444.8974<br />
meverettwithers@stewartmckelvey.com<br />
Penalties <strong>for</strong> Employer<br />
Withholding the Pay of<br />
<strong>Foreign</strong> Workers<br />
The Prince Edward Island Employment Standards Board<br />
has come down hard on an employer accused of wrongfully<br />
withholding pay from <strong>for</strong>eign workers.<br />
The employer, Mariner Seafoods Inc. (“Mariner”) hired<br />
<strong>for</strong>eign workers from Thailand to work in a seafood<br />
processing facility in Montague, Prince Edward Island.<br />
Forty-five <strong>for</strong>eign workers filed employment standards<br />
complaints alleging that Mariner:<br />
• During the 2009 season, failed to return about $1,500.00<br />
per employee that had been deducted <strong>for</strong> individual<br />
savings accounts; and<br />
• During the 2010 season, withheld about 10 hours pay<br />
each week.<br />
At a hearing, six <strong>for</strong>eign workers gave evidence. They<br />
testified that, in 2009, Mariner made deductions from<br />
their pay to the tune of $75.00 a week. First, the workers<br />
were told this deduction was to pay <strong>for</strong> their air fare. After<br />
learning that Mariner was not permitted to make deductions<br />
<strong>for</strong> air fare, they were advised that the deductions were<br />
<strong>for</strong> English translation. Later they were advised that the<br />
deduction was <strong>for</strong> a savings account.<br />
Mariner testified<br />
that the monies were returned to the employees in cash,<br />
3
e<strong>for</strong>e they returned to Thailand in December 2009. The<br />
employees testified they did not receive reimbursement and<br />
they did not sign the receipts that the employer produced<br />
at the hearing.<br />
Murray Murphy<br />
Charlottetown Office<br />
902.629.4558<br />
mmurphy@stewartmckelvey.com<br />
The <strong>for</strong>eign workers alleged that when they returned <strong>for</strong> the<br />
2010 season, they were promised that deductions would<br />
not be made from their pay. Soon thereafter, they found<br />
that they were being short changed about 10 hours per<br />
week.<br />
The Employment Standards Board accepted the workers’<br />
evidence. The employer called no corroborating witnesses,<br />
its evidence was inconsistent and contradictory, and the<br />
employer offered no less than three different reasons why<br />
pay was being deducted. The Board found it highly unlikely<br />
that a business would make cash payments to employees<br />
in excess of $60,000.00.<br />
The Board sanctioned Mariner <strong>for</strong> discriminating against<br />
eleven of the workers. When the employer learned<br />
about the complaints he told these employees they were<br />
let go and they had to be out of their employer-supplied<br />
accommodations within 24 hours.<br />
Ultimately the Board ordered Mariner to pay compensation<br />
in excess of $150,000.00.<br />
This is one of the first occasions that a group of <strong>for</strong>eign<br />
workers have successfully prosecuted an employment<br />
standards complaint on Prince Edward Island. The<br />
complainants were not proficient in English and the<br />
Board provided a translator <strong>for</strong> the proceedings. The<br />
case is also noteworthy as despite documentation<br />
produced by the employer, the Board essentially did<br />
not find the employer to be credible.<br />
Notice of Dismissal to<br />
Employees on Maternity<br />
Leave<br />
A recent decision of the New Brunswick Court of Queen’s<br />
Bench released on September 28, 2011, Donnelly v Kings<br />
Landing, indicates that reasonable notice and maternity<br />
leave cannot run concurrently.<br />
Background<br />
In 2010, Donnelly, a non-union marketing manager, grieved<br />
a lay-off notice she received while on maternity leave,<br />
pursuant to the Public Service Labour Relations Act. She<br />
claimed that the notice was ineffective at law on the basis<br />
that a person on maternity leave could not be laid off until<br />
the end of her maternity leave, and that her employer<br />
discriminated against her on the basis of sex.<br />
Adjudication<br />
Both parties agreed that a Grievance Adjudicator had<br />
jurisdiction to adjudicate a complaint of sex discrimination<br />
under the New Brunswick Human Rights Act as well as the<br />
claim <strong>for</strong> notice and an adjudicator was appointed by the<br />
Labour and Employment Board to consider the grievance.<br />
With regard to the allegation that the notice was ineffective<br />
at law, the adjudicator did not consider the requirements of<br />
4
the common law but found that the Employment Standards<br />
Act, did not preclude the lay-off of an employee who is on<br />
maternity leave as long as the lay-off does not arise from<br />
pregnancy or the maternity leave alone. In this case, the<br />
adjudicator found that there was evidence to support the<br />
conclusion that the employer’s decision to restructure<br />
Donnelly’s position was made <strong>for</strong> good faith bona fide<br />
business reasons. With regards to the claim of sex<br />
discrimination, the adjudicator stated:<br />
Judicial Review<br />
Donnelly sought judicial review of the adjudication decision<br />
with respect to the question of whether proper common law<br />
notice was provided. Donnelly argued that if the purpose<br />
of reasonable notice was to provide an employee with an<br />
opportunity to find adequate alternate employment, the<br />
notice did not serve this purpose as she could not look <strong>for</strong><br />
alternate employment and take care of her newborn twins<br />
at the same time.<br />
To accept that evidence as to the timing of the<br />
notice during a maternity leave is sufficient to ground a<br />
discrimination complaint would serve only to undermine<br />
the structure of human rights legislation. Every person<br />
has the characteristics protected by the human rights<br />
legislation; that is, every person has a race, colour,<br />
national origin, ancestry, place of origin, marital status,<br />
sexual orientation, sex, etc. If, without more, the fact<br />
of receiving notice of lay off during a maternity leave is<br />
sufficient per se to ground a complaint of discrimination,<br />
it should suffice to justify a complaint of discrimination on<br />
multiple grounds of race, etc. While discrimination<br />
on one of the enumerated grounds need not be the only<br />
factor in a decision alleged to be discriminatory, it must<br />
be a factor. To repeat, there is no evidence that it<br />
was even a factor. There is simply no evidence of direct<br />
intentional discrimination or of adverse effect<br />
discrimination.<br />
With reference to case law from British Columbia that<br />
has found that lay-offs during maternity leave constitute<br />
discrimination, the adjudicator stated that “The statutory<br />
law in B.C. is not the law in New Brunswick nor in Ontario;<br />
perhaps, their law is better than our law but it is not our<br />
law.” The grievance was dismissed on the employment<br />
standards analysis without any examination of the common<br />
law notice principles.<br />
Justice Garnett of the New Brunswick Court of Queen’s<br />
Bench determined:<br />
Maternity leave is intended to give mothers time to care<br />
<strong>for</strong> their babies without having to report to work. Notice<br />
of dismissal is intended to give an employee a reasonable<br />
amount of time to secure alternative employment. In<br />
seeking that employment, the employee must be<br />
prepared, if the opportunity arises, to go to work. A<br />
mother on maternity leave is not required to go to work<br />
there<strong>for</strong>e it cannot be said that she is both on leave<br />
and on notice at the same time. The two concepts are<br />
incompatible.<br />
I find there<strong>for</strong>e that the notice to which Donnelly was<br />
entitled cannot coincide with the leave to which she was<br />
entitled.<br />
What This Means <strong>for</strong> You<br />
When considering terminating a pregnant employee, you<br />
will have to keep this decision in mind. If notice cannot<br />
coincide with maternity leave, more careful planning will be<br />
required when downsizing if you attempt to provide working<br />
notice or salary continuance.<br />
In the present case, the employer attempted to “save<br />
money” by relying on a period in which Donnelly would be<br />
on EI <strong>for</strong> notice (the employer did not pay any salary while<br />
an employee was off on maternity leave). The decision<br />
would have been different if the employer decided to<br />
provide pay in lieu of notice on her first day back.<br />
5
This decision may also have implications <strong>for</strong> employees on<br />
different types of leave and these cases will require careful<br />
consideration be<strong>for</strong>e providing notice in the normal way.<br />
Nick Russon<br />
Fredericton Office<br />
506.443.0128<br />
nrusson@stewartmckelvey.com<br />
Decision to Terminate<br />
Based on Business<br />
Reasons, not Complaints<br />
regarding Safety<br />
Michelle Blanchard was terminated by her employer on<br />
June 23, 2010. Blanchard was an environmental engineer<br />
<strong>for</strong> Cobalt C.S. Company, a subsidiary of Irving Oil. Shortly<br />
after her termination, Blanchard contacted the media<br />
and alleged that her termination was because she had<br />
complained about the president’s driving during a business<br />
trip.<br />
Blanchard was on a business trip from June 13 to 21, 2010<br />
in Newfoundland and Labrador with two of her colleagues<br />
in leasing and sales, Karen McMahon, Director of Program<br />
Management, and Arthur Irving Jr., the Company President.<br />
Blanchard claimed that Irving was speeding excessively<br />
and talking on his cell phone while driving. She registered<br />
her complaint with McMahon and her fellow employees<br />
on the trip. She was terminated almost immediately<br />
after returning from her trip and she concluded that her<br />
termination was because of her complaint.<br />
Blanchard filed a complaint with WorkSafeNB in May<br />
2011, accusing Cobalt of firing her because of her safety<br />
complaint, which she alleged was discrimination under<br />
New Brunswick’s Occupational Health and Safety Act.<br />
At the hearing, Cobalt’s evidence was largely uncontradicted,<br />
establishing the following key points:<br />
• Prior to the Newfoundland trip, Cobalt had decided that<br />
it needed to restructure because of a significant decrease<br />
in work. Part of the restructuring included the elimination<br />
of one of four engineer positions. Blanchard was<br />
identified <strong>for</strong> two main reasons: her per<strong>for</strong>mance<br />
attitude and the fact that she was the highest paid of the<br />
four engineers.<br />
• The trip to Newfoundland was to in<strong>for</strong>m Irving about<br />
Cobalt’s properties in that province and Blanchard was<br />
responsible to provide detailed in<strong>for</strong>mation on each of<br />
93 sites that the team intended to visit. Blanchard had<br />
several weeks to prepare and additional resources<br />
in order to ensure that she had sufficient in<strong>for</strong>mation to<br />
provide her opinion about the various sites.<br />
• During the site visits, Irving posed several questions<br />
to Blanchard <strong>for</strong> which she had either no answer or no<br />
satisfactory answer. Blanchard’s supervisor testified that<br />
Blanchard did not demonstrate any ef<strong>for</strong>t to find answers<br />
to those questions <strong>for</strong> which she lacked in<strong>for</strong>mation.<br />
• At one point, Blanchard presented the wrong site plan<br />
and, as a result, Irving was frustrated by both her lack of<br />
answers and the inability to match up the details of the<br />
site with a site plan.<br />
• All the members of the team had a brief discussion about<br />
the speed at which Irving had been driving; Blanchard,<br />
in particular, expressed concern about Irving’s driving.<br />
• That concern was relayed to the General Manager of<br />
Cobalt who telephoned Irving to advise him of the<br />
concern but did not provide him with the specific names<br />
of who complained. The next day, Irving apologized to<br />
the team.<br />
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• There were discussions between the General Manager<br />
and Irving about sending Blanchard home early because<br />
she was not contributing in any meaningful way to the<br />
site visits.<br />
Rebecca Saturley<br />
Halifax Office<br />
902.420.3333<br />
rsaturley@stewartmckelvey.com<br />
The adjudicator concluded that he had “no hesitation in<br />
concluding that [the complaint about Irving’s driving] was<br />
not a factor” in Cobalt’s decision to terminate Blanchard’s<br />
employment. In particular, he noted that the General<br />
Manager of Cobalt did not know of Blanchard’s actual<br />
involvement in the expression of safety concerns, only that<br />
it was a team issue. Moreover, the decision to terminate<br />
was made <strong>for</strong> sound business reasons, well in advance<br />
of Blanchard’s complaint. He also concluded that the<br />
company validly believed that Blanchard did not “meet the<br />
per<strong>for</strong>mance standards expected of a senior professional”.<br />
Although not relevant, the adjudicator also noted that “the<br />
rate of speed alone may not always be the sole factor to<br />
determine safety” and that “an absolutist approach to safety<br />
and speeding is problematic”.<br />
With respect to Blanchard’s comments to the media, the<br />
adjudicator also noted that “parties are expected to respect<br />
the role of the tribunal or court to adjudicate the matter by<br />
not making statements about the matter to the media”. He<br />
went on to say that Blanchard’s contact with the media in<br />
advance of the hearing was “to be regretted”.<br />
What This Means <strong>for</strong> You<br />
<strong>Employers</strong> often face an uphill battle in discriminatory<br />
action complaints, particularly when a safety complaint is<br />
made around the time of a negative employment decision.<br />
In this case, Cobalt was able to easily demonstrate that the<br />
decision to terminate predated any safety complaint and<br />
that the decision was based on solid business reasons.<br />
<strong>Employers</strong> should ensure when terminating employees,<br />
even in without cause situations, that there is adequate<br />
documentation of the reasons why in order to defend<br />
against any future (and likely unexpected) complaints.<br />
Employer’s Conduct During<br />
Dismissal Leads to High<br />
Award and Costs<br />
On October 21, 2011, the New Brunswick Court of Queen’s<br />
Bench issued a wrongful dismissal award of 23 months’<br />
notice and $15,000 in costs due to the employer’s conduct<br />
during the dismissal.<br />
Background<br />
Michael Doran worked at the Fredericton Co-op from 1984<br />
until 2009. At the time of his dismissal he was 46 years<br />
old and was the Senior Grocery Supervisor. The employer,<br />
however, took the position that Doran was not terminated<br />
but had resigned.<br />
The evidence from Doran was as follows.<br />
On October 10, 2009, Doran met with the employer’s general<br />
manager, Sheldon Palk at approximately 4 P.M. Doran<br />
indicated to Palk that he felt that he deserved consideration<br />
<strong>for</strong> promotion to the position of Grocery Manager, which<br />
position was vacant at the time. In the absence of a<br />
Grocery Manager, Doran had been per<strong>for</strong>ming most of<br />
the responsibilities and tasks typically associated with that<br />
position, and the grocery department had per<strong>for</strong>med well<br />
financially during this period. In response, Palk stated that<br />
7
he did not feel that Doran had the right qualities <strong>for</strong> the<br />
Grocery Manager position. Doran was told by Palk that he<br />
would not be considered <strong>for</strong> the position and instead, that<br />
he planned to advertise <strong>for</strong> the position. Upon learning of<br />
Palk’s position regarding his potential <strong>for</strong> promotion, Doran<br />
stated to Palk that he would consider looking elsewhere <strong>for</strong><br />
a new job.<br />
Doran next spoke with Palk on October 15, 2009, when Palk<br />
paged him to come to his office. Upon Doran entering Palk’s<br />
office, the first words spoken to the him by Palk were “so,<br />
am I posting one job or two?” <strong>Important</strong>ly, Doran in<strong>for</strong>med<br />
Palk that he would be staying in his current position but<br />
would be looking elsewhere <strong>for</strong> new employment. Palk then<br />
told Doran that he would be posting the Grocery Manager<br />
position as soon as possible.<br />
On November 3, 2009, Palk again contacted Doran and<br />
asked to speak with him. When he entered Palk’s office,<br />
Doran was asked by Palk “so what have you decided”.<br />
Doran in<strong>for</strong>med Palk that he was willing to continue in his<br />
current position but was looking elsewhere. At this point,<br />
Doran alleged that Palk asked him if he would be “gone” by<br />
the end of the month. Doran stated that he had “no idea” if<br />
he would be gone by the end of the month, as he had not<br />
yet applied <strong>for</strong> new employment, nor had he completed his<br />
resume. According to Doran’s testimony, Palk replied that<br />
he felt that it would be best if he did not continue working<br />
at the co-op. Palk then asked Doran <strong>for</strong> his store keys,<br />
which he immediately delivered after retrieving them from<br />
his office. At the conclusion of the meeting, Palk stated to<br />
Doran that his salary would be continued <strong>for</strong> four weeks as<br />
severance, but stated that he was only required to pay the<br />
Plaintiff <strong>for</strong> two weeks.<br />
agreed that he would be gone by the end of November and<br />
he simply paid him until the end of the month.<br />
The Decision<br />
The judge at trial did not find Palk to be a credible witness<br />
and, in fact, determined that his evidence was not truthful.<br />
The trial judge determined that the allegation that Doran<br />
had quit was fabricated and, as a result, ordered costs<br />
against the employer in the amount of $15,000, in addition<br />
to awarding 23 months’ notice <strong>for</strong> wrongful dismissal.<br />
What This Means <strong>for</strong> You<br />
While Wallace damages are more difficult to attain in light<br />
of the Supreme Court of Canada’s decision in Honda v.<br />
Keays, bad faith conduct during a dismissal may still result<br />
in stiff penalties at trial in the <strong>for</strong>m of a discretionary order<br />
of costs.<br />
Richard Petrie<br />
Fredericton Office<br />
506.443.0155<br />
rpetrie@stewartmckelvey.com<br />
Palk told a different story, the important part of which was<br />
that during the November 3, 2009 meeting, Palk maintained<br />
that he did not terminate Doran but asked him if he would be<br />
gone by the end of November. He then indicated that Doran<br />
8
Reasonable<br />
Accommodation Does<br />
Not Require Placement in<br />
Dream Job<br />
investigated the complaint and found that the Government<br />
had made a reasonable ef<strong>for</strong>t to accommodate Riley.<br />
The Commission concluded that the alternate position<br />
proposed by the Government was reasonable in all of the<br />
circumstances and, having made such a proposal, its duty<br />
to accommodate Riley was discharged. The complaint was<br />
there<strong>for</strong>e dismissed.<br />
In Riley v. Government of Prince Edward Island, the<br />
Supreme Court of Prince Edward Island issued an important<br />
reminder to employers that the obligation to accommodate<br />
employees with a disability does not mean that employees<br />
have the right to be placed in the job that they most desire.<br />
A reasonable proposal to accommodate cannot be rejected<br />
simply because the proposal is not the one preferred by the<br />
employee.<br />
Facts<br />
Riley suffered an injury to her right eye in 2003.<br />
Notwithstanding her disability, Riley worked seasonally <strong>for</strong><br />
the Government of Prince Edward Island as a flag person<br />
in 2003, 2004, 2005, 2006, and 2007. Be<strong>for</strong>e her work term<br />
began in 2007, Riley in<strong>for</strong>med the Government that she<br />
wanted a job indoors because of her disability. Riley later<br />
advised the Government that she would take her usual job<br />
outdoors. The Government asked <strong>for</strong> proof from Riley that<br />
she was able to per<strong>for</strong>m her usual duties outside, but no<br />
proof was provided. In 2008, the Government offered Riley<br />
a different job working outside. Riley accepted the position,<br />
but attempted to attach a number of additional conditions<br />
to the job because of her disability. The Government did<br />
not accept any of those conditions. When Riley did not<br />
report <strong>for</strong> work at the start of her term, the Government<br />
determined that its duty to accommodate Riley was at an<br />
end.<br />
Riley subsequently filed a complaint with the Prince<br />
Edward Island Human Rights Commission, alleging<br />
that the Government had discriminated against her by<br />
failing to accommodate her disability. The Commission<br />
Decision of the Court<br />
Upon judicial review, the Court accepted that Riley had<br />
a disability which interfered with her ability to work as a<br />
flag person.<br />
The Court also endorsed the well-known<br />
principle that, once an employee establishes a disability,<br />
the employer has a duty to accommodate that disability<br />
by attempting to find other employment <strong>for</strong> the employee<br />
or by modifying existing employment. However, the Court<br />
emphasized that this duty to accommodate was not without<br />
boundaries.<br />
The Court observed that the search <strong>for</strong> accommodation is “a<br />
multi-party inquiry” that also requires the employee to take<br />
reasonable steps to facilitate accommodation. The Court<br />
noted that employees cannot expect a perfect solution and<br />
that, if an employer makes a proposal that is reasonable<br />
in all of the circumstances, its duty to accommodate is<br />
discharged when that proposal is turned down by the<br />
employee. In other words, an employee cannot reject an<br />
accommodation proposal simply because it is not the one<br />
that he or she prefers:<br />
While the employee seeking accommodation can<br />
expect the employer to consider their current abilities<br />
and to make a real ef<strong>for</strong>t to determine whether a job can<br />
be filled by the employee or modified as accommodation,<br />
the employee has no right to expect to be placed in<br />
the position he/she most desires. Further, the employee<br />
seeking accommodation cannot expect the employer<br />
to infer what the employee’s abilities are. The employee<br />
must in<strong>for</strong>m the employer what he/she can and cannot<br />
do and what types of accommodation are necessary.<br />
9
The employee who fails to in<strong>for</strong>m his/her employer of<br />
his/her abilities and simply demands accommodation by<br />
being placed in a particular job cannot sustain an<br />
argument that the employer has failed to accommodate<br />
his/her disability.<br />
In the end, the decision of the Commission, which had<br />
dismissed the complaint by Riley, was found to be<br />
reasonable by the Court.<br />
What This Means <strong>for</strong> You<br />
This decision confirms that, while an employer must make<br />
a real ef<strong>for</strong>t to accommodate an employee with a disability,<br />
the employee has no right to expect to be placed in his<br />
or her job of choice. Where the accommodation proposal<br />
made by an employer is reasonable in the circumstances,<br />
the employee cannot refuse that proposal and expect to<br />
be placed in another position. As the Court observed,<br />
accommodation is a collaborative exercise that imposes<br />
duties and responsibilities on both employers and<br />
employees.<br />
Jonathan Coady<br />
Charlottetown Office<br />
902.629.4520<br />
jcoady@stewartmckelvey.com<br />
Past Conduct may be<br />
Considered Outside<br />
Limitation Period if Similar<br />
in Character<br />
In McConnell v. Brunswick News Inc., the New Brunswick<br />
Court of Appeal confirmed that allegations of past<br />
discrimination must be similar in character and occur with<br />
sufficient frequency to establish a continuing contravention<br />
and be considered outside of the limitation period.<br />
Background<br />
The employee, McConnell, began working with the Daily<br />
Gleaner in 1965 as a newspaper delivery boy. After working<br />
his way up through the ranks, his hours and responsibilities<br />
increased and he eventually held a supervisor position.<br />
The employee suffered from recurring episodes of major<br />
depression and attempted suicide multiple times during his<br />
employment. He had several periods of disability leave,<br />
with the employer making attempts to accommodate him<br />
upon his return to work each time. The employee was<br />
ultimately terminated <strong>for</strong> poor per<strong>for</strong>mance and attitude and<br />
received pay and benefits in lieu of working notice.<br />
Stephen Carpenter<br />
Charlottetown Office<br />
902.629.4556<br />
scarpenter@stewartmckelvey.com<br />
Following termination, the employee filed a complaint with<br />
the New Brunswick Human Rights Commission, alleging<br />
that the termination was based on his mental disability and<br />
thus was discriminatory. He also alleged that his employer<br />
discriminated by failing to accommodate his disability<br />
during the five years prior to his termination. The Board of<br />
Inquiry dismissed the complaint, and held that the decision<br />
to terminate the employee was completely unrelated to his<br />
disability. The Board further held that all of the employee’s<br />
allegations of discrimination, other than his termination,<br />
were barred by a limitation period and there<strong>for</strong>e could not<br />
be considered.<br />
10
The Court’s Decision<br />
The Court affirmed the Board’s finding that the employee’s<br />
allegations were outside the one year limitation period<br />
and thus could not be considered. However, the Court<br />
considered whether alleged discriminatory events that were<br />
otherwise barred could be considered if they <strong>for</strong>med part of<br />
a continuing contravention. The Court held that the Board<br />
was correct in deciding that allegations of discrimination<br />
must be similar in character and occur with sufficient<br />
frequency to constitute a continuing contravention. The<br />
conclusion that the employee’s dismissal was different in<br />
character from the earlier events and there<strong>for</strong>e the events<br />
could not escape the limitation provisions as being part of a<br />
continuing contravention was within the range of acceptable<br />
outcomes and considered reasonable.<br />
What This Means <strong>for</strong> You<br />
In many situations, a human rights complaint will not<br />
allow employees to air every grievance in their history<br />
with the company. However, you should be aware that<br />
alleged discriminatory events, which are otherwise barred<br />
by limitation periods, may be considered by the Court in<br />
a subsequent discrimination complaint if the conduct is<br />
similar in character and occurs with sufficient frequency.<br />
Gordon Petrie, Q.C.<br />
Fredericton Office<br />
506.443.0150<br />
gpetrie@stewartmckelvey.com<br />
Ellen Oakes, Articled Clerk<br />
Fredericton Office<br />
506.444.8970<br />
eoakes@stewartmckelvey.com<br />
Business Immigration<br />
Update: <strong>Important</strong> <strong>Tips</strong> <strong>for</strong><br />
<strong>Employers</strong> <strong>Hiring</strong> <strong>Foreign</strong><br />
Workers<br />
New Requirements <strong>for</strong> Intra-Company<br />
Transferees with Specialized Knowledge<br />
New instructions from Citizenship and Immigration Canada<br />
(“CIC”) may make it more difficult <strong>for</strong> intra-company<br />
transferees to demonstrate specialized knowledge.<br />
Moreover, the remuneration package offered to <strong>for</strong>eign<br />
specialized knowledge workers transferred to Canadian<br />
subsidiaries or affiliates will now be scrutinized more<br />
carefully during the work permit application assessment<br />
process.<br />
The intra-company transferee work permit category<br />
is a popular tool that multi-national companies use to<br />
temporarily transfer eligible senior managers, executives<br />
and specialized knowledge personnel to Canada from<br />
abroad. It allows international companies to send qualified<br />
employees to Canada <strong>for</strong> reasons such as improving<br />
management effectiveness, expanding Canadian exports,<br />
and enhancing the competitiveness of Canadian entities in<br />
overseas markets.<br />
The beauty of this type of work permit is that it allows <strong>for</strong><br />
streamlined processing, saving time and money, because<br />
pursuant to subsection 205(a) of the Immigration and<br />
Refugee Protection Regulations, intra-company transferees<br />
do not require labour market opinion (“LMO”) confirmation<br />
from Service Canada like most other <strong>for</strong>eign workers do.<br />
The basis <strong>for</strong> this LMO exemption is that Canadians are<br />
seen to benefit from increased mobility being af<strong>for</strong>ded to<br />
intra-company transferees.<br />
11
In response to a significant increase in the number of<br />
intra-company transferee applications from individuals<br />
purporting to be specialized knowledge workers following<br />
cancellation of the facilitated work permit process <strong>for</strong><br />
in<strong>for</strong>mation technology (“IT”) specialists last year, CIC<br />
has issued new instructions on the assessment criteria<br />
<strong>for</strong> specialized knowledge applications. In Operational<br />
Bulletin 316, released on July 4, 2011, CIC clarified how its<br />
policy guidelines regarding the assessment of specialized<br />
knowledge applications will be applied. This Bulletin<br />
provides guidance on the various assessment criteria and<br />
is useful <strong>for</strong> Canadian employers considering bringing<br />
<strong>for</strong>eign specialized knowledge workers to Canada as intracompany<br />
transferees, particularly <strong>for</strong> roles in the IT industry.<br />
How to Prove “Specialized Knowledge”<br />
Operational Bulletin 316 confirms that in addition to the<br />
general requirements <strong>for</strong> all intra-company transferees,<br />
applications from specialized knowledge workers will also<br />
be evaluated based on the following factors to assess<br />
whether the applicant’s claim of specialized knowledge can<br />
be supported:<br />
• Education<br />
If the job normally requires a degree or diploma, then<br />
the <strong>for</strong>eign worker must have the necessary educational<br />
credentials.<br />
• Knowledge<br />
As described in detail below, the <strong>for</strong>eign worker must<br />
have specialized knowledge that is not commonly held<br />
and relatively unique within the company and the<br />
industry.<br />
• Experience<br />
The <strong>for</strong>eign worker must have a breadth of experience<br />
with the <strong>for</strong>eign company and/or the respective industry<br />
sufficient to support the claim of specialized knowledge.<br />
Additionally, the National Occupational Classification<br />
(“NOC”) system is used to evaluate the categorization of<br />
the job that the <strong>for</strong>eign worker will be per<strong>for</strong>ming in<br />
Canada. The position in Canada must be of a NOC<br />
level that is similar to or higher than the worker’s position<br />
in their home country, unless they can demonstrate that<br />
an exceptional situation exists.<br />
• Salary<br />
The wage/salary range offered to the <strong>for</strong>eign worker<br />
must be realistic in terms of the prevailing Canadian<br />
wage level <strong>for</strong> the occupation and the geographical area<br />
in question. The wage rate will also be considered as an<br />
indicator of specialized knowledge such that applications<br />
from lower-paid <strong>for</strong>eign workers may raise concerns<br />
about the requisite level of specialized knowledge.<br />
• Relevant training<br />
The <strong>for</strong>eign worker is expected to demonstrate<br />
completion of any specialized training or apprenticeship<br />
that evidences specialized and unique knowledge.<br />
• Supporting documentation<br />
Extensive and well-prepared supporting documentation<br />
should be included with this type of work permit<br />
application to establish the fact that the <strong>for</strong>eign worker<br />
meets both the general requirements <strong>for</strong> intra-company<br />
transferees and has the requisite level of specialized<br />
knowledge.<br />
Immigration officers are instructed to<br />
carefully review resumes, reference letters and<br />
other supporting documents to ensure they support the<br />
applicant’s claim of specialized knowledge.<br />
How Specialized is “Specialized Knowledge”?<br />
The threshold of what constitutes specialized knowledge<br />
is quite high, and is arguably subjective. Consequently,<br />
it is advisable to ensure that any employees who will be<br />
applying <strong>for</strong> this type of work permit are equipped with<br />
detailed application submissions and are well briefed<br />
be<strong>for</strong>e submitting their application.<br />
The Temporary <strong>Foreign</strong> Worker Manual published by CIC<br />
describes specialized knowledge as “unusual and different<br />
from that generally found in a particular industry”. Although<br />
the knowledge need not be proprietary or unique, it should<br />
certainly be uncommon.<br />
The clarification provided in the<br />
recent Operational Bulletin suggests that it is now more<br />
12
difficult than ever to make out a case <strong>for</strong> a specialized<br />
knowledge work permit.<br />
Specifically, CIC has indicated<br />
that simply having knowledge of proprietary tools used<br />
or developed by an employer is generally not sufficient<br />
to trigger the issuance of an intra-company work permit.<br />
Rather, a specialized knowledge worker must possess<br />
(1) knowledge gained through extensive experience<br />
that cannot be acquired in a short period of time, and (2)<br />
complex knowledge that cannot be easily transferred to<br />
others. Moreover, to be truly considered a specialized<br />
knowledge worker <strong>for</strong> immigration purposes, an intracompany<br />
transferee must be coming to Canada to work in<br />
a position that is critical to the well-being or productivity of<br />
the Canadian employer.<br />
A Realistic Canadian Wage May Not be Enough<br />
Operational Bulletin 316 clarifies that employers will no<br />
longer be able to transfer specialized knowledge workers<br />
to Canadian affiliates and continue to pay those individuals<br />
the same compensation package they were paid outside<br />
of Canada if it is below the Canadian wage rate <strong>for</strong> the<br />
occupation in question. Although salary has always been<br />
considered one of the indicia of specialized knowledge, in<br />
practice salary amounts were not routinely requested or<br />
considered in the assessment of specialized knowledge<br />
until recently.<br />
These days immigration officers at visa<br />
offices, ports-of-entry and in-land CIC offices all require<br />
salary in<strong>for</strong>mation to process an intra-company transferee<br />
application <strong>for</strong> applicants claiming specialized knowledge.<br />
And, where applicants have previously worked in Canada,<br />
it is not uncommon <strong>for</strong> them to be asked to provide proof<br />
of the wages they have been paid <strong>for</strong> their work in Canada<br />
to date.<br />
This is a significant change <strong>for</strong> many employers because<br />
the salary offered to intra-company transferee applicants<br />
was not regularly assessed prior to the cancellation of the<br />
IT workers program. Now, as noted, salary is considered<br />
a much more relevant factor <strong>for</strong> assessing specialized<br />
knowledge applications and will be stringently reviewed<br />
by immigration officers. It should be noted that the level of<br />
scrutiny appears to vary from officer to officer and office to<br />
office. Also, Operational Bulletin 316 reminds immigration<br />
officers that salary is only one of a series of factors to be<br />
assessed.<br />
<strong>Employers</strong> who are interested in ascertaining the salary<br />
in<strong>for</strong>mation that most immigration officers consult to assess<br />
compensation in relation to specialized knowledge can visit<br />
the Government of Canada’s Working in Canada website to<br />
find salary ranges <strong>for</strong> specific occupations in a given area<br />
of the country.<br />
It is not uncommon <strong>for</strong> intra-company transferees to be paid<br />
per diems to supplement their remuneration in recognition<br />
of the added costs associated with living in Canada, which<br />
can complicate the assessment of their salary. Please note<br />
that Occupational Bulletin 316 confirms that non-cash per<br />
diems paid <strong>for</strong> hotels, transportation, etc. directly by the<br />
employer will not be considered in the evaluation of overall<br />
salary. Only allowances paid in monetary <strong>for</strong>m directly to<br />
the employee will be included in the salary assessment.<br />
What This Means <strong>for</strong> You<br />
While CIC has not explicitly stated that the rigid prevailing<br />
wage assessment to salary applied by Service Canada<br />
in the LMO context will apply to the assessment of intracompany<br />
transferee specialized knowledge applications, it<br />
is recommended that the salary paid to the <strong>for</strong>eign worker<br />
should be as close to the prevailing wage calculation as<br />
possible.<br />
Operational Bulletin 316 confirms that a much stricter<br />
assessment of all the relevant factors will now occur<br />
be<strong>for</strong>e a specialized knowledge work permit is issued.<br />
Consequently, when transferring a specialized knowledge<br />
worker to Canada, employers should ensure the employee<br />
being transferred is well prepared to demonstrate that s/he<br />
satisfies each of the relevant factors. This type of preparation<br />
should be done well in advance of the employee’s arrival in<br />
13
Canada to confirm the individual is eligible <strong>for</strong> this type of<br />
work permit and to minimize the risk that the application will<br />
be refused.<br />
provide wages, working conditions, and/or an occupation<br />
promised in the job offer may result in ineligibility to<br />
participate in the TFWP <strong>for</strong> a period of two years.<br />
Other Immigration Changes Affecting<br />
<strong>Employers</strong><br />
New Employer Declaration Form<br />
CIC recently released a new Employer Declaration <strong>for</strong>m<br />
(IMM 5658) that should be completed by employers of<br />
<strong>for</strong>eign workers applying <strong>for</strong> work permits that do not<br />
require an LMO. This new <strong>for</strong>m is difficult to locate and<br />
is most easily found by conducting a search of CIC’s<br />
website <strong>for</strong> the <strong>for</strong>m number. Although currently this <strong>for</strong>m<br />
is not mandatory, it is best practice to ensure that all LMOexempt<br />
work permit applicants have a properly completed<br />
Employer Declaration <strong>for</strong>m (IMM 5658) to submit with their<br />
application. Providing employees with a completed and<br />
signed Employer Declaration could help to avoid work<br />
permit processing delays.<br />
The purpose of this new <strong>for</strong>m is to provide employer<br />
in<strong>for</strong>mation to CIC and Canadian Border Services Agency<br />
in order to assist with the processing of work permits<br />
under the Temporary <strong>Foreign</strong> Worker Program (“TFWP”).<br />
The declaration made by employers who sign this <strong>for</strong>m<br />
is intended to assist immigration officers in assessing the<br />
genuineness of the job offer, and more specifically whether<br />
the job offered to the <strong>for</strong>eign worker has been made by<br />
an employer who is “actively engaged” in the business -<br />
one of the new requirements introduced by the regulatory<br />
amendments to the TFWP that came into effect April 1,<br />
2011.<br />
By signing the declaration <strong>for</strong>m, employers confirm they<br />
have read and understood their obligations under Canadian<br />
immigration law and policy and specifically confirm their<br />
understanding that employer non-compliance in failing to<br />
The responsibilities and penalties <strong>for</strong> employers mentioned<br />
in the Employer Declaration are a reflection of the regulatory<br />
changes made to the TFWP earlier this year which are<br />
outlined in the “Business Immigration Update” featured<br />
in the Spring 2011 issue of Atlantic <strong>Employers</strong>’ Counsel.<br />
As explained in further detail in that article, employers<br />
should be aware that failure to provide a <strong>for</strong>eign worker<br />
with the agreed-upon wages, working conditions and<br />
occupation could not only result in them being banned from<br />
using the TFWP <strong>for</strong> two years; non-compliance can also<br />
cause employers to have their name added to a publically<br />
accessible “blacklist” of ineligible employers maintained on<br />
CIC’s website.<br />
New Bar-Coded Application Forms <strong>for</strong><br />
Temporary Overseas Applications<br />
Earlier this year CIC introduced bar-coded application<br />
<strong>for</strong>ms <strong>for</strong> temporary resident visa (“TRV”), work permit<br />
and study permit applications submitted abroad. The new<br />
<strong>for</strong>ms must be completed electronically and validated<br />
be<strong>for</strong>e they are signed and submitted to a Canadian visa<br />
office in application <strong>for</strong> an immigration document. These<br />
new application <strong>for</strong>ms were designed and introduced to<br />
facilitate date entry into the Global Case Management<br />
System (“GCMS”) that has been rolled out to all Canadian<br />
immigration offices abroad.<br />
While initially older versions of these application <strong>for</strong>ms<br />
were accepted, as of August 1, 2011 the new 2-dimension<br />
bar-code <strong>for</strong>ms are the only temporary resident application<br />
<strong>for</strong>ms that will be accepted <strong>for</strong> TRV, work permit and study<br />
permit applications submitted outside of Canada. CIC will<br />
also no longer accept hand written application <strong>for</strong>ms <strong>for</strong><br />
these lines of business. The purpose of the new bar-coded<br />
14
<strong>for</strong>ms is to streamline application processing and shorten<br />
wait times. Practically speaking, however, the introduction<br />
of GCMS and the new bar-coded <strong>for</strong>ms have actually<br />
resulted in longer processing times at certain visa offices.<br />
Andrea Baldwin<br />
Halifax office<br />
902.420.3370<br />
abaldwin@stewartmckelvey.com<br />
Lana MacLellan<br />
Halifax office<br />
902.420.3321<br />
lmaclellan@stewartmckelvey.com<br />
This newsletter is intended to provide brief in<strong>for</strong>mational summaries only of legal developments and topics of general interest and does not constitute legal advice or create a<br />
solicitor-client relationship. The newsletter should not be relied upon as a substitute <strong>for</strong> consultation with a lawyer with respect to the reader’s specific circumstances. Each legal or<br />
regulatory situation is different and requires review of the relevant facts and applicable law. If you have specific questions related to this newsletter or its application to you, you are<br />
encouraged to consult a member of our Firm to discuss your needs <strong>for</strong> specific legal advice relating to the particular circumstances of your situation. Due to the rapidly changing<br />
nature of the law, <strong>Stewart</strong> <strong>McKelvey</strong> is not responsible <strong>for</strong> in<strong>for</strong>ming you of future legal developments.<br />
15
Upcoming Events<br />
Speaking Engagements<br />
On September 28, Clarence Bennett participated in a panel discussing<br />
Managing Workplace Risk: Focus on Conducting Workplace Investigations<br />
<strong>for</strong> the Canadian Bar Association New Brunswick professional<br />
development program held in Fredericton.<br />
On November 15, Richard Petrie participated in the Labour Law<br />
Conference 2011 presented by Lancaster House, held in Halifax. He was<br />
part of a panel discussing Pension Plan Issues: Seeking Solutions to the<br />
Pension Plan Sustainability Crisis and Dealing with Day-to-Day Problems.<br />
Rebecca Saturley co-chaired the conference.<br />
Peter MacLellan presented to the Institute of Chartered Accountants of<br />
Nova Scotia (ICANS) November 10 on Social Networking and HR Issues.<br />
Rebecca Saturley will be a panellist at the Lancaster House Labour Law<br />
Conference being held in Toronto December 8. Her topic is Who’s Telling<br />
the Truth?: Grappling with the Issue of Witness Credibility.<br />
16
Service First<br />
1 We will work to provide you with the highest quality of confidential, ethical legal<br />
services.<br />
2. We will work with you to develop a full understanding of your business /<br />
organization and expectations.<br />
3. We will pursue your work conscientiously and without delay. We will work together<br />
with you to establish time specific goals and objectives that meet your needs.<br />
4. We will delegate work to our lawyers who have the legal expertise and<br />
experience appropriate to both the nature and complexity of the matter and our<br />
understanding of your expectations. Where deemed appropriate by you, we will<br />
designate a qualified lawyer as an alternative service contact to ensure continuity of<br />
service when the lawyer responsible <strong>for</strong> your matter is not available. At your<br />
request, we will work with you to develop practical fee estimates. We will always<br />
strive to add value.<br />
5. At your request we will provide documentation that outlines the scope of the legal<br />
services to be provided; the potential timeline <strong>for</strong> handling the matter; a list of the<br />
client team members and alternate service contact, with their fields of expertise;<br />
and our lawyers’ contact in<strong>for</strong>mation.<br />
6. We will meet and strive to exceed your expectations and always welcome your<br />
feedback. We will from time to time, seek from you, either <strong>for</strong>mally or in<strong>for</strong>mally, an<br />
assessment of our per<strong>for</strong>mance.<br />
7. We will maintain effective channels of communications including keeping you<br />
in<strong>for</strong>med of all significant developments in the legal matter and responding to your<br />
contact in a timely fashion.<br />
8. Accounts will be easy to understand. We will always be receptive to client feedback<br />
on our billing practices. When issues arise, we will treat them seriously and<br />
respond promptly.<br />
9. If you are dissatisfied with our services, or if you feel we have failed to meet any of<br />
these commitments, we ask that you call the service lawyer on your matter, the<br />
alternate service lawyer, the local Practice Manager or Managing Partner to discuss<br />
your concern. We will honestly and fairly address your concerns.<br />
17
Labour and Employment Group Members<br />
Charlottetown, PE<br />
Tel: 902.892.2485<br />
Fax: 902.566.5283<br />
E-mail: charlottetown@stewartmckelvey.com<br />
Direct Dial Residence E-mail<br />
Rosemary Scott, Q.C 629.4503 569.3021 rscott@stewartmckelvey.com<br />
Tracey Clements 629.4538 569.3776 tclements@stewartmckelvey.com<br />
Murray Murphy 629.4558 892.8019 mmurphy@stewartmckelvey.com<br />
Janet Clark 629.4562 367.2141 jclark@stewartmckelvey.com<br />
Stephen Carpenter 629.4556 687.2855 scarpenter@stewartmckelvey.com<br />
Patti Wheatley 629.4546 940.7431 pwheatley@stewartmckelvey.com<br />
Fredericton, NB<br />
Tel: 506.458.1970<br />
Fax: 506.444.8974<br />
E-mail: fredericton@stewartmckelvey.com<br />
Direct Dial Residence E-mail<br />
Gordon Petrie, Q.C. 443.0150 459.8672 gpetrie@stewartmckelvey.com<br />
Fred McElman, C.M., Q.C. 444.8979 454.2403 fmcelman@stewartmckelvey.com<br />
Richard Petrie 443.0155 455.0287 rpetrie@stewartmckelvey.com<br />
Clarence Bennett 444.8978 454.8978 cbennett@stewartmckelvey.com<br />
Melissa Everett Withers 443.0131 454.2683 meverettwithers@stewartmckelvey.com<br />
Counsel<br />
Gérard La Forest, C.C., Q.C 443.0135 460.0992 gla<strong>for</strong>est@stewartmckelvey.com<br />
Halifax, NS<br />
Tel: 902.420.3200<br />
Fax: 902.420.1417<br />
E-mail: halifax@stewartmckelvey.com<br />
Direct Dial Residence E-mail<br />
Peter McLellan, Q.C. 444.1717 425.5248 pmclellan@stewartmckelvey.com<br />
John Plowman 420.3322 423.4942 jplowman@stewartmckelvey.com<br />
Brian Johnston, Q.C. 420.3374 422.5896 bjohnston@stewartmckelvey.com<br />
Grant Machum 420.3330 477.6788 ggmachum@stewartmckelvey.com<br />
Lisa Gallivan 420.3392 443.6230 lgallivan@stewartmckelvey.com<br />
Rebecca Saturley 420.3333 423.8622 rsaturley@stewartmckelvey.com<br />
Rick Dunlop 420.3384 229.7424 rdunlop@stewartmckelvey.com<br />
Mark Tector 420.3358 225.0520 mtector@stewartmckelvey.com<br />
Level Chan 420.3389 229.5838 lchan@stewartmckelvey.com<br />
Andrea Baldwin 420.3370 abaldwin@stewartmckelvey.com<br />
Jessica White 420.3379 405.6472 jwhite@stewartmckelvey.com<br />
Michelle McCann 444.1724 440.7064 mmccann@stewartmckelvey.com<br />
Sean Kelly 444.1742 471.5359 skelly@stewartmckelvey.com<br />
Staff Lawyer<br />
Alison Strachan 420.3387 429.2174 astrachan@stewartmckelvey.com<br />
Counsel<br />
Donald McDougall, Q.C 420.3312 443.6158 dmcdougall@stewartmckelvey.com<br />
Moncton, Office<br />
Tel: 506.853.1970<br />
Fax: 506.858.8454<br />
E-mail: moncton@stewartmckelvey.com<br />
Direct Dial Residence E-mail<br />
André Richard, Q.C. 853.1962 384.3922 arichard@stewartmckelvey.com<br />
Christopher <strong>Stewart</strong> 383.2224 384.7115 cstewart@stewartmckelvey.com<br />
Sacha Morisset 853.1942 383.6939 smorisset@stewartmckelvey.com<br />
Jennifer Ronalds 853.1979 jronalds@stewartmckelvey.com<br />
Saint John, NB<br />
Tel: 506.632.1970<br />
Fax: 506.652.1989<br />
E-mail: saint-john@stewartmckelvey.com<br />
Direct Dial Residence E-mail<br />
William Goss, Q.C. 632.9515 529.1910 wgoss@stewartmckelvey.com<br />
James LeMesurier 632.2776 652.8962 jlemesurier@stewartmckelvey.com<br />
Stephen Hutchison 632.2784 shutchison@stewartmckelvey.com<br />
Catherine Lahey 632.8307 672.2602 clahey@stewartmckelvey.com<br />
Vanessa Paton 632.8332 651.9765 vpaton@stewartmckelvey.com<br />
St. John’s, NL<br />
Tel: 709.722.4270<br />
Fax: 709.722.4565<br />
E-mail: st-johns@stewartmckelvey.com<br />
Direct Dial Residence E-mail<br />
Harold Smith, Q.C. 570.8895 753.8337 hsmith@stewartmckelvey.com<br />
Ian Wallace 570.8839 739.9495 iwallace@stewartmckelvey.com<br />
Rodney Zdebiak 570.8841 722.8538 rzdebiak@stewartmckelvey.com<br />
Stephen Penney 570.8881 722.8874 spenney@stewartmckelvey.com<br />
Twila Reid 570.8828 237.1339 treid@stewartmckelvey.com<br />
Ruth Trask 570.8893 728.9256 rtrask@stewartmckelvey.com<br />
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