Contents Update – Canadian Labour & Employment Law Journal

2019 – Volume 21, Number 2

Table of Contents

Precarious Work, Uncertain Rights and the Role of Workplace Law: Papers from the 2017 Labour Law Lecture & Conference, Western University, November 3-4, 2017

Inequality and the Fissured Workplace – David Weil

The Political Economy of Precariousness in an Era of Artificial Intelligence: Precarious Work, or None At All? – Wayne Lewchuk

A Tattered Quilt: Exemptions and Special Rules under Ontario’s Employment Standards Act – Leah F. Vosko, John Grundy, Rebecca Casey, Andrea M. Noack & Mark P. Thomas

Sexual Harassment and the Precarious Worker – Sandra F. Sperino

The nature of the Fundamental Freedoms and the Sui Generis Right to Collective Bargaining: The Case of Vulnerable and Precarious Workers – Benjamin J. Oliphant

A Bridge Too Far? Using Internal Workplace Committees to Ensure Employment Standards Compliance and Plug the Representation Gap in the Wagner Act Model – Rafael Gomez & Sean O’Connor

Globalization in Transition: The Canadian Perspective – Brian Burkett

Sectoral Regulation in Subcontracting Relationships: The Impact of Collective Agreement Decrees on Employment Conditions – Martine D’Amours & Frederic Hanin

Canada’s Statutory Strike Models and the New Constitutional Landscape – Alison Braley-Rattai

Book Review

Unions in Court: Organized Labour and the Charter Rights and Freedoms – Reviewed by Roy J. Adams

If you would like a copy of any of these articles please email library@lawsociety.mb.ca (only available for members of the Law Society of Manitoba).

Decision of the Week – Employer Charged With Workplace Fatality

This week’s decision comes from Nova Scotia. I found there were two very interesting facets to it that warranted bringing to the attention of members in Manitoba.

R. v. Hoyeck, 2019 NSSC 7 concerns an employer who was charged with failing to take reasonable steps to prevent bodily harm to an employee. The trial began before a judge and jury, but after two days, the jury was dismissed. After jury selection, one of the jurors sent a note to the judge about investigation into his LinkedIn account by the Crown (para. 3). As noted in this article by Norm Keith at Fasken:

The jury was discharged after one of the prosecutors, Mr. Keaveny was the subject of controversy about his use of social media to investigate prospective jurors. 

Nova Scotia Employer Acquitted in Westray Bill Prosecution

The benefit of this development is there is now additional case law on the subject of the responsibility of an employer in the death of an employee. There is a very high standard of proof required to convict an employer of Occupational Health and Safety criminal negligence. In this instance, the employee was a licensed Red Seal Mechanic and more qualified in his work than the owner. Although Chipman, J. was critical of the employer in his workplace practices:


Based on all of the evidence it is impossible for me to conclude beyond a reasonable doubt that Mr. Hoyeck did anything or omitted to do anything (that was his duty to do or not do) such that he is guilty of criminal negligence causing death.  …

R. v. Hoyeck, para. 94

Decision of the Week: Reference re Health Care Certification

The Manitoba Court of Appeal released this Reference re Certification in the Manitoba Health Sector, 2019 MBCA 18.


[2]                           This matter comes before this Court as a reference from the Manitoba Labour Board (the Board).  The Board may refer any question of law for a final determination by this Court (see section 143(4) of The Labour Relations Act, CCSM c L10 (the LRA)).  This reference concerns a controversy that has arisen as to the correct procedure for non-unionised employees in the health sector organising for the purpose of collective bargaining under this new model.  The dispute is about who is the appropriate decision-maker as to an application for certification in the health sector.  The two possibilities are the Board exercising its authority under the LRA or the Commissioner exercising his authority under the Act.

A unanimous Court determined that the Commissioner is the sole decision-maker for an application for certification in the health sector.

Upcoming CPD – Considering Cannabis

January 10, 2019 – Considering Cannabis: Cannabis Legalization and Impacts in the Workplace

The legalization of recreational cannabis brings with it a multitude of issues for employers to address. Experienced labour and employment lawyer Tracey L. Epp, Pitblado LLP, will provide a fascinating review of the legal status of cannabis in Canada from its criminalization early in the last century, to the introduction of medical cannabis in 2001, to the recent legalization of recreational cannabis under the federal Cannabis Act. She will also briefly describe the provincial framework for regulating retail cannabis sales in Manitoba.

The program will explore key issues from an employment perspective particularly with respect to the need for workplace policies that address the use of recreational cannabis both on and off-duty, fitness for work, impairment and the designation of safety sensitive positions. Ms. Epp will also provide a refresher on medical cannabis and relevant employer considerations such as the duty to accommodate and health benefits plan coverage.

If you are an employer or you provide legal advice to employers, this program is not to be missed.

Presenter: Tracey L. Epp, Pitblado LLP

Registration Fee:
Lawyer – $95.00 (plus GST)
Student – $47.50 (plus GST) ~ 50%  Discount
Note: 
Registration fee includes materials and lunch

Webinar Registration Fee: $65 plus GST (includes materials sent electronically) 
Registrants will receive an email prior to January 10 with detailed instructions on how to connect.

Eligibility For CPD Hours: This program may be reported for up to 2 hours of eligible CPD activity.

Manitoba eLaw – New Edition – Labour and Employment Law

The October 2018 edition, No. 33, has just been released.

In this Issue

  • Letters of Guidance Not Disciplinary: MBQB
  • No Reason Needed for Termination of Independent Contractor: MBQB
  • Injunctions Rarely Granted in Constitutional Challenges: MBQB
  • Other Court Decisions
  • Inappropriate Social Media Use and the Workplace: MBLA
  • Legislative Update
  • New Parental Sharing Benefit to be Implemented Early
  • Report of Modernizing Federal Labour Standards
  • Reports on Sexual Harassment in the Workplace
  • Recommended Reading
  • 2018 Isaac Pitblado Lectures
  • Annual Manitoba Labour Law Review
  • CBA Conference