Some of our recent publications include the following:

Reviewing Employers’ Attendance Management Programs, Policies & Practices

Black Burke Mayor Authors/Presenters: Jessica L. Burke and Rachel H. Roy.

This is a useful Black Burke Mayor bulletin that unions can provide to their staff/worksite representatives in order to inform those representatives about what they should watch for with respect to employers’ attendance management programs and practices. In addition, this bulletin includes guidelines with respect to the duty to accommodate and employees’ medical privacy.

A Guide for Unions to the BC Personal Information Protection Act
Black Burke Mayor Author/Presenter: Rachel H. Roy

This is a Black Burke Mayor bulletin that provides unions with information with respect to responding to requests for personal information from union members under the Personal Information Protection Act.

"Privilege and Other Grounds for Protecting a Union's Documents and Communications from Disclosure" - June 7, 2012, Presented at the 2012 CLEBC Labour Relations Conference.

Black Burke Mayor Presenters / Authors: Jessica L. Burke and S. Michelle Blendell

From time to time, a union will face requests for access to its documents and communications. The request may be from an employer seeking pre-hearing disclosure, or attempting to call evidence through the union’s witnesses, in a grievance arbitration proceeding or a matter before the Labour Relations Board. A union member may also seek access to the union’s documents and communications, as an opposing party to the union in a matter before the Labour Relations Board, such as a decertification application or a duty of fair representation complaint. In addition, a union member may apply to his or her union under the Personal Information Protection Act, S.B.C. 2003, c. 63 (“PIPA” or the “Act”) for disclosure of his or her personal information, as a form of hearing discovery, or independently of any legal action against the union.

The focus of this paper regards the grounds upon which a union may resist an employer’s attempts to access its documents and communications. It also briefly addresses issues arising in respect of access requests by union members in complaints against the union, and under PIPA.

"Trade Union Responsibility Under S.13 & 14 of the Human Rights Code" - November 4, 2010, Presented at the 2010 CLEBC Human Rights Conference

Black Burke Mayor Authors/Presenters: Shanti P. Reda and Stephanie T. Mayor

Trade unions are no strangers to the Human Rights Code in their role as advocates. However, trade unions are also not immune from exposure to human rights liability. This paper examines the more rarely discussed issue of a union’s role and responsibility under the human rights regime. Specifically, this paper discusses the application of Section 13 and 14 of the Human Rights Code to trade unions such as when a trade union participates in the formulation of a discriminatory work rule, impedes an employer’s reasonable accommodation efforts, and discriminates against its members with respect to its internal operations. This paper also analyzes the leading authorities with respect to trade union liability under these sections.

"Arbitral Jurisdiction over Tortious Privacy Violations" - June 18, 2010, Presented at the 2010 CLEBC Labour Relations Conference

Black Burke Mayor Author/Presenters: Pamela Costanzo and Stephanie Mayor

This paper examines whether an arbitrator appointed under the Labour Relations Code would have jurisdiction to apply the BC Privacy Act, or award a remedy under it. It examines the historical development of the arbitral jurisprudence on breach of privacy. It also considers whether a common law tort of breach of privacy exists, and what alternative torts, and remedies, are available to plaintiffs who have experienced a breach of privacy in the context of employment.

"Employee’s Duty to Mitigate Damages for Wrongful or Constructive Dismissal Post-Evans v. Teamsters Local Union No. 31" - May 14, 2010, Presented at the 2010 CLEBC Employment Law Conference

Black Burke Mayor Authors/Presenters: Shanti P. Reda and Stephanie T. Mayor

Other Authors/Presenters: James D. Kondopulos

This paper examines the impact of the Supreme Court of Canada’s decision in Evans v. Teamsters Local Union No. 31, [2008] S.C.J. No. 20 (“Evans”) on non-unionized employees’ duty to mitigate. Evans is a particularly important decision because of what it says about the application of the duty to mitigate in circumstances where a dismissing employer offers the employee a chance to mitigate his or her damages by returning to work with the employer. This paper discusses the majority and dissenting judgments of Evans, as well as how subsequent cases in B.C. and other Canadian jurisdictions have considered this decision.

"Advice to Unions and Employers Regarding Accommodation of 'Invisible' Disabilities" - November 2007, presented at an Insight Information Conference.

Black Burke Mayor Authors/Presenters: Allan E. Black, Q.C., S. Michelle Blendell, Jessica L. Burke and Pamela Costanzo
Other Contributing Authors/Presenters: Kim G. Thorne and Michael Kilgallin.

This paper examines the accommodation of addiction, mental health or other "invisible" disabilities, as well as the relationship between accommodation and disciplinary issues. This paper covers topics such as: an employee's duty to seek accommodation, an employee's duty to provide an employer with medical information, the employer's duty to investigate when it suspects that a disability may underpin an employee's performance issues, and the scope of an employer's duty to accommodate.

"The Ability, Obligations and Role of a Trade Union to Represent its Members in Employer Investigations" - January 2007, presented at an Insight Information Conference.

Black Burke Mayor Authors/Presenters: Allan E. Black, Q.C. and Pamela Costanzo.

This paper discusses the role of a trade union during employer investigations of a member(s). It discusses the rationale behind a union providing representation during an employer investigation, the law regarding whether an employee is entitled to be represented by his/her union during an employer investigation, and provides some tips to union representatives regarding the appropriate scope of their involvement. There is also a section focusing specifically on harassment investigations, where members may have competing interests.

"The Union's Duty of Fair Representation" - 2006, Black Burke Mayor Bulletin.

Black Burke Mayor Authors/Presenters: Allan E. Black, Q.C. and Jessica L. Burke.

This is a useful Black Gropper bulletin that union clients can provide to their staff / worksite representatives, so as to inform those representatives about the duty of fair representation under Section 12 of the BC Labour Relations Code.