Faulty Facades and Consumer Warranties

Samuel Beswick, Frank Knox Memorial Fellow, SJD candidate, Harvard Law School *

The North American pine grows throughout New Zealand and is a major part of the country’s wood products industry. Another export to the South Pacific country was Canadian consumer law. Saskatchewan’s Consumer Products Warranties Act 1977—now, Part III of the Consumer Protection and Business Practices Act 2014 [CPBPA (SS)]—shaped New Zealand’s own Consumer Guarantees Act 1993 [CGA (NZ)], which has gone on to shape product liability law in the construction industry.

Until recently, the most significant consumer warranties case in New Zealand concerned a faulty second-hand Nissan Navara. But the Act’s significance surged when in 2013 the Ministry of Education, on behalf of hundreds of schools suffering weathertightness issues, filed a billion-dollar claim against the country’s major cladding product manufacturers: Carter Holt Harvey Ltd v Minister of Education (CHH v MoE). The claim alleged that systemic defects in the design and manufacture of Carter Holt’s plywood “Shadowclad” product (as well as other manufacturers’ products) caused widespread failures in the function and performance of the buildings in which it was used. The Court of Appeal refused to strike-out the claim under the CGA (NZ) and the Supreme Court recently upheld the Minister’s other causes of action in tort.

That even the government is a protected “consumer” highlights the policy rationale of the statutory scheme: to regulate defective products, not necessarily vulnerable consumers. The case also raises two points—concerning warranties for building products and the interpretation of limitation periods—which may be of interest to Canadian lawyers.

Building product warranties

Both the New Zealand and Saskatchewan consumer protection schemes set out mechanisms to facilitate compliance and enforcement of statutory warranties that consumer products be of acceptable quality (s6 CGA; s19(d) CPBPA), fit for their purpose (s8 CGA; s19(e) CPBPA) and correspond to their description (s9 CGA; s19(c) CPBPA).

Both also limit the scope of product liability claims to personal chattels (not real property or buildings). The CPBPA (SS) defines consumer products as “any goods ordinarily used for personal, family or household purposes”, and goods as “personal property” (ss10(1)(e)(i) and 2(e)). The CGA (NZ) defines goods as “personal property of every kind” and specifically excludes “a whole building, or part of a whole building, attached to land” (s2). In practice, though, the scope of coverage is construed generously and actions may lie in respect of allegedly defective building components even where they are incorporated into buildings. The Court of Queen’s Bench for Saskatchewan has previously accepted that modular homes and installed residential roofing, windows and doors are consumer products under the Act.

Likewise, the New Zealand Court of Appeal in CHH v MoE rejected the defendant cladding manufacturer’s argument that the cladding systems they supplied were exempted as “parts of whole buildings” (at [143]). Although noting that the question would require evidence at trial, the Court considered that it was “not untenable to propose cladding was supplied in a manner bringing it within the ambit of the CGA and that it constituted a good to which the CGA applies” (at [144]). This seems right, given that the plaintiffs’ complaint is as to the quality of cladding systems as purchased, not just as installed. As a result, many more consumer actions against cladding manufacturers are now working their way through the New Zealand courts.

Limitation

These cases have highlighted the significance of carefully drafted limitation periods. Most Canadian provinces now have dual-layered limitation statutes: civil claims must be filed within a general limitation period (usually of around 2 years), which runs from the date the claim was reasonably discoverable, and in any event no later than an ultimate limitation period (usually, a 10 or 15 year longstop). This is sensible. It avoids claims becoming ‘stale’ by compelling plaintiffs to act promptly, while still protecting their interests in pursuing civil remedies where they have late knowledge of a potential legal claim. By setting a clear cut-off point, the longstop provides certainty and finality (and peace-of-mind to defendants and their insurers).

In New Zealand, it was not until 2011 that the old Limitation Act (requiring claims to be filed within 6 years of the seemingly ambiguous “date on which the cause of action accrued”) was replaced by a tri-layered limitation statute: there is now a primary limitation period of 6 years, which can be extended by a late knowledge period (during which claimants have up to 3 years to file a claim), subject to an ultimate 15 year longstop period. A shorter longstop period of 10 years applies to civil proceedings “relating to building work”, but in CHH v MoE the Supreme Court held that “building work” meant exactly that: it could not be read expansively to include the supply of building elements or building materials (at [93] and [129]).

The upshot is that it is not yet clear what the limitation period under the CGA (NZ) is: whether limitation runs from the date of the product defect or, instead, from the date it could have been discovered. While it might seem that the legislative scheme favours an occurrence-based, not a knowledge-based, limitation period (see Carter at [29] and K Tokeley at 494), there is no decisive case law on point. The cladding manufacturer in CHH v MoE opted not to argue this point on strike-out, instead focusing its limitation arguments on its (unsuccessful) bid to coopt the 10 year “building work” longstop (see [104]). In the recent case of Carter v Metal Design Solutions Ltd, a defendant cladding manufacturer sought to strike-out proceedings filed more than 6 years after its product was installed but within 6 years of the plaintiffs discovering defects. While noting that the plaintiffs faced “significant hurdles” in proving that their claim was not time-barred, the High Court Associate Judge opted for a cautious approach and declined to strike-out the claim on the basis that it was “at least arguable that something akin to reasonable discoverability may apply even to actions under the Act” (at [40]).

So we await a final determination on that question. Meanwhile, as the pine trees fall in New Zealand forests, we can be sure that consumers are making a noise.

 

* I should disclose that I worked on the Minister of Education’s claim as a solicitor at Meredith Connell, New Zealand, in 2012/13.

You Don’t Have to Unionize But You Can’t Stay Here: Supervisory Employees and The Saskatchewan Employment Act

by Keir Vallance

The City of Moose Jaw recently made an application to the Labour Relations Board to remove “supervisory employees” from the existing bargaining unit of city employees. The Saskatoon Public Library made noises about doing the same thing in March and it appears that the Library has now commenced its own application. (I was recently interviewed  on this issue.)

These two employers – with, one assumes, more to come – have taken this action because The Saskatchewan Employment Act, proclaimed on April 29, 2014, set out that “supervisory employees” could not be included in the same bargaining unit as those employees they supervise. That provision, however, did not take effect until April 29, 2016; and now employers seem to have decided that it’s in their best interests to attempt to have supervisors removed from the bargaining units in which they’ve operated for a number of years.

(A good, quick summary by employer counsel Kevin Wilson, Q.C., can be found here.)

I should note that this is all contingent on these supervisors being found to be “supervisory employees” under the statute. Most of them, I would imagine, probably are; there may be some edge cases where someone who is ostensibly a “supervisor” isn’t a “supervisory employee” under the Act. That’s not something I can comment on in these particular cases. But the definition of “supervisory employee” is pretty broad – “assigning hours of work and overtime” seems to include schedulers, for instance, who are only “supervisory” by the most tenuous definition.

The statutory language in the SEA is as follows, and it’s unique in Canada:

6-1(o) “supervisory employee” means an employee whose primary function is to supervise employees and who exercises one or more of the following duties:

(i) independently assigning work to employees and monitoring the quality of work produced by employees;

(ii) assigning hours of work and overtime;

(iii) providing an assessment to be used for work appraisals or merit increases for employees;

(iv) recommending disciplining employees…

[exceptions are excluded]

And:

6-11(3) Subject to subsections (4) to (6), the board shall not include in a bargaining unit any supervisory employees.

(4) subsection (3) does not apply if:

(a) the employer and union make an irrevocable election to allow the supervisory employees to be in the bargaining unit; or

(b) the bargaining unit determined by the board is a bargaining unit comprised of supervisory employees.

(5) An employee who is or may become a supervisory employee:

(a) continues to be a member of a bargaining unit until excluded by the board or an agreement between the employer and the union; and

(b) is entitled to all the rights and shall fulfil all the responsibilities of a member of the bargaining unit.

(6) Subsections (3) to (5) apply only on or after two years after the date on which subsection (3) comes into force.

Our labour relations system is based upon “majoritarian exclusivity” – that unionization occurs when the majority of workers within an “appropriate bargaining unit”, as determined by the Board, have indicated that they wish to be represented by and collectively bargain through a particular union. That union then has the exclusive right (and accompanying responsibility) to bargain for that group of workers. It’s a model that is subject to growing criticism, but there’s little appetite among Canadian governments to change it.

Historically, Saskatchewan (and indeed every other Canadian jurisdiction) did not necessarily prevent supervisors and the workers they supervise from being within the same bargaining unit – governed by the same contract, bargaining at the same table, represented by the same union reps, and so on. There have been scenarios where various Labour Relations Boards have declined to certify a unit that included both supervisory and supervised employees, but it’s not been required and many “mixed” bargaining units have existed and do exist.

The main argument raised in favour of supervisory exclusion is that supervisors who are within the same bargaining unit as the employees they supervise may find themselves in a conflict of interest, for example between their duties to their employer and their duties and/or loyalties as union members. It’s also been argued that supervisors’ bargaining priorities may not be respected within the larger bargaining unit, and that supervisors will be better off bargaining with the employer within their own bargaining unit. For instance, the City of Moose Jaw’s news release (from the Regina Leader-Post article linked above) stated:

“The City has opted to structure its operations in accordance with the new legislative provisions and believes it can better manage its operations with supervisory exclusion,” the city wrote in a news release. “The concern is that supervisors and employees in the same bargaining unit can create conflict situations in disciplinary, performance assessment or grievance situations.”

(I have to make a quick distinction: these are supervisory employees. Managerial employees are already excluded from collective bargaining under the Act entirely. A “managerial” employee is an exception to the definition of “employee” under the Act and means “…a person whose primary responsibility is to exercise authority and perform functions that are of a managerial character…” (s. 6-1(h)(i)(A)). The distinction between a “supervisor” and a “manager” isn’t always easy to draw (and is a prime subject for labour law exam questions), and I won’t get into the distinction overmuch here.)

Needless to say, unions in Saskatchewan are greeting applications to exclude supervisors less than enthusiastically.  The major concern is that such changes, first, fragment the existing bargaining unit, weakening its bargaining power; and second, disempower supervisory employees by effectively decertifying them – rendering them non-union – by removing them from the bargaining unit, and then by mandating that they collectively bargain as a smaller unit, if at all, reducing their bargaining power further. It also means that an employer must now deal with the supervisors as individual employees (if the supervisors choose not to re-certify) or as a separate bargaining unit (if they choose to re-certify). There’s also uncertainty about the supervisory employees’ future and what the Board will decide to do in this new regime, and whether we may find situations now where supervisory employees are simply unable to unionize at all.

See Professor Eric Tucker’s take in his 2014 article “Shall Wagnerism Have No Dominion?”, page 7, in Just Labour:

“While the managerial exclusion is standard in Canadian Wagnerism, special treatment of an additional layer of supervisory employees, who presumably do not fall into the managerial exclusion, is not. The exclusion of these supervisory employees from all employee bargaining units will not only further fragment an already highly fragmented bargaining model, but in many cases will effectively prevent them participating in the collective bargaining regime at all. This is because in all but the largest workplaces, the number of supervisory workers is likely to be too small to support viable a viable bargaining unit. Moreover, thestatutory exclusion of supervisory employees from larger bargaining units overrides the preference of supervisory and non-supervisory workers to bargain together, where such a preference exists.”

It’s also worth pointing out that other jurisdictions, such as B.C., address the issue of supervisors on a case-by-case basis. It’s not mandated by statute; the Board can tailor a bargaining unit to address the issue of conflicts of interest of supervisors within that particular unit. The Saskatchewan approach is, I think, unduly intrusive, mandating a particular result regardless of the realities within the proposed bargaining unit before the Board.

Personally, I think the mandatory supervisory exclusion is lousy labour relations policy. I’d much prefer an approach that allows the Board to use its expertise to determine what is appropriate in a given case – though that, too, has risks. Contrast the Saskatchewan Act with language from the B.C. Labour Relations Code:

29  If a trade union applies for certification as the bargaining agent for a unit consisting of

(a) employees who supervise other employees, and

(b) any of the other employees,

the board may certify the trade union for the unit, for a unit consisting only of employees who supervise or for a unit composed of some or all of the other employees.

In B.C. the Board will still examine a variety of factors to determine if supervisors should be within the same bargaining unit as the workers they supervise; whether a second bargaining unit consisting of supervisors should be granted; or whether supervisors should be denied access to collective bargaining entirely, in the interests of industrial stability. See, e.g., B.C. Ferry Corporation v. Canada Merchant Service Guild et al., which summarizes the s. 29 approach taken by the B.C. Board. In Canada Merchant Service Guild, for instance, the Board refused to create a separate, supervisory, bargaining unit for supervisors who were not within the broader bargaining unit – so those employees, whether or not they were “supervisors” or “managers”, were not able unionize under the Code at all. (This is of course only one case, which turned on the fact that the work being done was part of an essential public service (paras. 39-40), and whether this analysis will change (or has changed) in light of the 2015 labour cases, especially Mounted Police Association, I can’t say.) It seems possible that a similar analysis might be incorporated into Saskatchewan’s case law and, in certain rare circumstances, being a “supervisor” will mean not just being unable to belong to a particular bargaining unit, but to any bargaining unit.

A few closing points:

  1. These applications are not mandatory.

Nothing in the Act requires that an employer make such an application. Certainly an employer can do so; but nothing in the Act is forcing the City of Moose Jaw, nor the Saskatoon Public Library, to make these applications.

  1. Irrevocable elections are still possible.

While CUPE, the union for the library employees, seemed to feel that an irrevocable election under s. 6-11(4) had to be made prior to April 29, 2016, I don’t see any language in the Act that limits elections in this way. On the contrary, the language is open enough that employers and unions can still agree to include supervisors even within new bargaining units.

  1. How does the SEA apply to existing vs. new bargaining units?

It’s absolutely certain that for new bargaining units, supervisors must be excluded. The Act is, however, somewhat ambiguous on the application of the supervisory exclusion to existing bargaining units.

Arguably, the language of the Act could be read so that it does not require the Board to eject all supervisory employees from all existing certification orders. The bargaining unit, as it stands, is already defined; it’s already been determined that supervisors are appropriately members of the unit. I don’t think saying that the Board “shall not include” supervisors within a bargaining unit is necessarily the same thing as saying the Board “shall amend existing bargaining units to exclude” supervisors.

The Board has generally required demonstration of a “material change in circumstances” before considering any change to an existing bargaining unit. But the Board has also held that change in statutory language – as here, with the introduction of the “supervisory employee” category – is, at least potentially, a “material change” which allows the Board to consider ordering a change. (See e.g.SGEU v. Saskatchewan, [1984] Nov. Sask. Lab. Rep. 38, regarding changes to the definition of “employee”.) If there has been a change in circumstances, it’s then up to the Board to determine whether the change is “necessary” – whether there’s a compelling reason to change the parameters of the bargaining unit.

Again, arguably, even where there has been a statutory change, amending a certification order is not the same thing as certifying a bargaining unit in the first place. The Board is not required to find that a change – in this case ejecting supervisory employees from their bargaining units – is “necessary”.

Which is all well and good, but likely a moot point. The Labour Relations Board has given indications that it will review such applications with a view to enforcing the new definition. Employers and unions, in both consultations prior to introduction of the SEA and in discussions afterwards, have accepted that changes are coming (and many have negotiated “irrevocable elections” under the Actalready). Perhaps surprisingly, an (admittedly cursory) review of Hansard doesn’t reveal much about legislative intent here; it was implied once or twice – mostly by the opposition NDP – that the changes in the SEA would fragment existing bargaining units, and the few government references seem to implicitly accept that that is the way things will be. But there’s no strong statement of legislative intent to be found in Hansard or in government press releases, as far as I can tell; it’s more the case that everyone involved has assumed, all the way along, that supervisors will be unceremoniously ejected from their bargaining units when push comes to shove.

And of course even if the Board accepts that it’s not technically required to eject supervisors, it would still be open to the Board to do so under its interpretation and application of its governing statute.

  1. Supervisors can (probably) still unionize.

The CEO of the Saskatoon Public Library stated that there’s nothing preventing supervisory employees from forming a new, exclusively supervisory, bargaining unit. That is, at least theoretically, true – the Act provides for supervisory-employee-only bargaining units (s. 6-11(4)(b), above). However such units must still be certified under the usual process, and the Board must determine if the units are appropriate for collective bargaining.

The Saskatchewan jurisprudence may evolve to reflect this new reality, and it may evolve in ways that will surprise even the employers who are now pushing to exclude supervisory employees.  It’s possible that the concept of “fragmentation” within an employer’s industrial relations – i.e. proliferation of bargaining units making it unwieldy or impossible for an employer to collectively bargain – will take a higher priority in the Saskatchewan Board’s approach, leading to supervisory employees of some employers being denied the ability to collectively bargain at all. On the other hand, the fact that supervisors are now always excluded from the broader bargaining unit, and that the Act specifically contemplates a supervisor-only bargaining unit, might encourage the Labour Relations Board to give greater priority to supervisors’ right to collective bargaining and less to concerns about fragmented bargaining units or industrial stability.

As MLT’s Kevin Wilson points out in his post linked above:

“Some unions are advising employers that they should sign an irrevocable election to exclude supervisors because if they do not the supervisors will be placed in a separate supervisory bargaining unit, and then the employer will have to deal with two collective agreements, rather than one. However, employers should be aware that this is not the automatic outcome from excluding supervisors from a bargaining unit.”

I would tend to agree. I’d hope that any excluded employees who wish to remain unionized have the opportunity to re-unionize with a union of their choice. In any event, I’ll be very interested to see what the Board does with the applications currently before it.

What sexual assault isn’t

Earlier this week, the Toronto Star reported a story involving a man who, among other things, deposited his semen into the coffee mug of a female co-worker. He has pleaded guilty to criminal mischief to property. But few people seem to be happy with that outcome. In particular, the victim of the offence has complained that convicting the offender for a property crime misrepresents the nature of the wrong that she has suffered. As she puts it: “This does not describe the gravity of the crime that was committed against me”. What happened to her is, she maintains, more properly characterized as a sexual assault, though she concedes that existing law would not recognize is as such.

There are two observations I would make. First, Whaley’s victim is absolutely right to think that the offence of mischief to property fails entirely to capture the wrong perpetrated in this case – and that this matters. But, and this is my second point, the offence of sexual assault also fails in this respect, albeit for quite different reasons. Finally, in considering whether Mr Whaley’s conduct should be regarded as criminally wrongful in the first place, we need to pay close attention to how it relates to other offences targeting sexual objectification.

*

Criminal law is not just about punishment. Its principal object is to guide citizens and members of the public in such a way that they do not commit crimes in the first place, and therefore do not need or deserve to be punished. With that “expressive function” in mind, Parliament should label and define prohibited courses of action in a manner that at least roughly captures what is wrong with the conduct it prohibits. Thus, to take an obvious example, the offence of murder requires the Crown to do more than show that the defendant inflicted bodily harm – the act of killing is central to what makes murder (or manslaughter) the particular kind of wrong it is. Likewise, the offence of robbery is fundamentally different from that of theft, since one involves the use or threat of force, whereas the other does not. Simply collapsing the two into a single amorphous offence of “wrongful taking” would fail to respect the moral significance of force, and diminish the criminal law’s authority as a guide.

For much the same reason, I have argued that, in deciding whether and how to charge an individual for a given course of action, the Crown should pay careful attention to the precise nature of the wrong that has (ostensibly) been committed. It is not good enough to say that the defendant’s conduct technically satisfies the elements of a given offence, if that offence does not target the sort of wrong he or she is thought to have perpetrated. Consider, by way of an example I have used elsewhere, a high school student who has texted sexually explicit photographs of her boyfriend’s ex-girlfriend. That conduct may technically be construed as the distribution of child pornography. Prosecuting it on that basis, though, may fail to accurately reflect the nature of the wrong; whereas child pornography offences target exploitative behaviour, the student’s behaviour amounts to a toxic form of “slut-shaming”. To put the matter another way, treating the photographs as child pornography seems to implicitly deny the sexual agency of the woman whose pictures were distributed against her will, when it is precisely her sexual agency that was attacked. That being the case, it would be more appropriate to charge her with the offence of non-consensual distribution of intimate images.

The Supreme Court of Canada has acknowledged the significance of “fair labelling”- most notably in its decisions in Vaillancourt and Martineau. In those cases, however, the Court tended to emphasize its importance to the defendant, and downplay its significance to the victim. As the above examples suggest, that is too narrow an understanding. It matters that, when a person is killed, her death is treated as morally interesting; that, when a person is robbed at knifepoint, the significance of the physical threat is acknowledged by the state; that an attack on sexual agency is recognized, and not obscured by effectively denying that there was any sexual agency to attack.

This brings me to Mr Whaley. It is, of course, possible to describe his behaviour as “mischief to property”. But this surely mischaracterizes what makes it morally objectionable. The problem, after all, is not simply that he damaged or dirtied the office equipment, or the victim’s mug. Such a description would just as easily apply if he had distributed (untainted) Kool-Aid, or some other harmless but messy substance, around a male co-worker’s cubicle. It obscures the importance of the fact that Mr Whaley, by rubbing his penis against the victim’s phone, and depositing his semen in locations where she would be expected to come into contact with it, effectively made her a prop in his sexual fantasies. This is more than making a mess. It is a deliberate act of sexual objectification. The offence of criminal mischief doesn’t capture that.

*

According to the report by Alyshah Hasham and Christopher Reynolds, the complainant regards Mr Whaley’s conduct as a kind of sexual assault. In terms of existing black-letter law, that is a non-starter. Sexual assault requires the intentional application or threat of force. But that’s really beside the point. The complainant knows that, under existing law, Mr Whaley’s behaviour could not be successfully prosecuted as a sexual assault. Her point is that the offence of sexual assault should be expanded so that it encompasses this sort of wrong. Is she right?

I think the straightforward answer is no. There is no question, for the reasons I have already provided, that this kind of behaviour is objectifying. There are, however, a variety of ways in which one person can objectify another, and not all of them could reasonably be characterized as ‘sexual assault’. Offences prohibiting the distribution of obscene materials, public indecency, the purchase of sexual services, the non-consensual distribution of intimate images all target, in one form or another, the sexual objectification of women. And all can be seen as related to a broader “rape culture” – either helping to sustain a culture in which sexual violence against women is endemic, or allowing people to exploit it for personal or commercial gain. Only sexual assault, though, targets the act of physical sexual violence as a wrong in and of itself. The non-consensual application of physical force to another human being is a special kind of wrong, and that is a message that the criminal law should continue to send.

The suggestion that Mr Whaley’s conduct amounts (at least in moral substance) to sexual assault, seems to follow from the complainant’s experience of it as an assault upon her mind. By placing his semen in the mug, and rubbing his penis against the telephone receiver, he engineered a situation in which the complainant experienced a kind of perverse intimacy with him. Hasham and Reynolds report that the complainant “feels like she was forced into oral sex.”

As a matter of social psychology, that is understandable. In their influential paper on disgust, Rozin and Fallon noted that human beings tend to engage in “magical thinking” when it comes to bodily substances, regarding everything with which they come into contact, even fleetingly, as “contaminated”. The contamination, though, may be more psychological than real. There is often no reason grounded in reality to suppose that the substance – whether it is saliva, mucous, or semen – poses any actual danger. Indeed, that appears to be the case here: Mr Whaley was initially charged with administering a noxious substance, but the charge was withdrawn, likely because his semen posed no clear physical threat. His conduct was “disgusting” – but not dangerous in and of itself.

Again, to the complainant, that arguably misses the point, since it is the psychological contamination that represents the injury. But here we need to be quite careful. Feeling assaulted is not the same thing as being assaulted. We treat sexual assault as a serious moral and legal wrong, but not because its victims feel like their sexual and physical autonomy was violated. It is wrong because victims have actually had their sexual and physical autonomy violated, in many instances experiencing trauma as a result. It is an important difference.

As John Gardner and Stephen Shute argued more than fifteen years ago, rape – and, by extension, sexual assault – would be a serious moral wrong even in a case where the victim suffered no physical injuries, and never had the slightest inkling that the violation had taken place. Perhaps more to the point, we would do a grave disservice to victims of sexual assault if we focused exclusively on their subjective feelings, without recognizing that their experiences of trauma are reasonable reactions to a particular kind of objectively serious wrong. John Gardner has recently written, again in the context of rape:

Rape… is dehumanizing enough already without those who have been raped being condescendingly regarded as having lost their human sensitivity to value, their ability to interpret what has happened, to see how it matters, and to relate critically to their own reactions to it (as well as to the reactions of others). The idea that rape survivors can only be passive in the face of their own pain, overwhelmed and trapped by senseless feelings, only adds insult to injury.

For this reason, it is important that we reflect at length on the nature of the wrongs targeted by the offence of sexual assault. (I have done so here.) Cases like that of Mr Whaley provide an opportunity for just this sort of reflection. We may think that he has engaged in behaviour that is worthy of condemnation in a criminal court, but it is not sexual assault.

*

Parliament could, of course, decide to make this sort of behaviour a crime. But before doing so, it would be useful to come to grips with what, precisely, the nature of the wrong is. Yes, Mr Whaley’s behaviour was sexually objectifying, but so are lots of things that don’t attract criminal sanctions. Yes, it was “disgusting,” but we do not tend to think that the mere fact that conduct is disgusting or “gross” is enough to make it worthy of criminalization. The point of the criminal law is not to address every wrongful course of action under the sun, but to guide members of the public away from particularly grave moral wrongs. In determining whether and how this conduct “fits”, we should compare it to other offences targeting objectification in some way or another.

Any attempt to characterize the wrong in a case like this will need to deal with three issues.  First, if Mr Whaley’s conduct can properly be construed as a criminal wrong, it can’t be because this amounts to “criminal harassment”. It doesn’t. As Carissima Mathen observes in the Hassam piece, harassment would require proof that Mr Whaley intended the victim to learn of his conduct. There is no suggestion that he did. His conduct was (so far as anyone can tell) intended merely to fuel his private fantasies – not designed to be discovered by the victim, with a view to plaguing or bedevilling or thoughts.

Second, as I have said, the wrongfulness of his behaviour cannot be attributed to its physical dangerousness, since it is far from obvious that his semen posed any risk whatsoever, or that he had any reason to believe it might.

Finally, we do not have the same sort of privacy violation that we encounter in paradigmatic cases of voyeurism or illegally entering a dwelling. Mr Whaley did not invade an individual’s intimate personal space, since his activities took place in the complainant’s workplace. If anything, what Mr Whaley has done is transform a space that ought to be impersonal into an intimate one. By spreading his semen around the complainant’s office, he has psychologically “corrupted” it – making her feel that, simply by going to work in the morning, she is unwillingly participating in someone else’s sexual drama. In that respect, whether intentionally or not, he has effectively diminished the victim’s ability to choose how she wants to participate in the public sphere; what role to assume.

Understood in this way, Mr Whaley’s conduct certainly bears an affinity to some instances of voyeurism – in particular, cases in which the victim was surreptitiously observed or recorded in a quasi-public space for a sexual purpose. (See, for example, this discussion – though a case in which the defendant was acquitted. The Jarvis decision is also mentioned here.) That kind of behaviour, too, undermines the assurance that women have that they can freely choose how to engage with others in the public sphere. Mr Whaley’s interference cannot be construed as voyeurism because it does not involve observation or recording of the complainant. But its effect is broadly similar, and I have little doubt that Parliament could devise an offence to capture it. (I leave to others to debate what the appropriate sanction would be.)

*

As Carissima observes, the criminal law often struggles to keep up with innovations in serious wrong-doing. That shouldn’t give us reason for despair. It is always open to Parliament to use its criminal law-making power to provide fresh guidance and insight into the outer limits of acceptable behaviour. In considering whether and how it should do, though, we should keep in mind the criminal law’s function, and how the various courses of action it prohibits relate to one another. In this way, we help to ensure that the criminal law gives citizens a useful moral map.

[A slightly modified version of this post first appeared in Policy Options on Friday.]

 

 

 

 

 

 

 

 

Missed Deadlines & the Future of Collective Bargaining in the RCMP

By Keir Vallance

Bill C-7, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures, is the federal government’s response to last year’s decision in Mounted Police Association of Ontario v. Canada, where the existing labour relations scheme for RCMP members (and the absolute exclusion of RCMP members from unionizing under the Public Service Labour Relations Act, of which they would otherwise be able to avail themselves) had been declared unconstitutional. Bill C-7 tries to bring RCMP members under the PSLRA, but with significant procedural and substantive differences in how that Act applies to RCMP members vs. other public servants.

(It also seems to change the name from the PSLRA to the Federal Public Sector Labour Relations Act for some reason, possibly because the government sees the RCMP as part of the federal public sector without truly being part of the public service?)

Bill C-7 is currently before the Senate but has not yet been proclaimed into law. This means that the federal government has now missed the (extended) deadline set by the Supreme Court, the upshot of which is that right now RCMP members lack a collective voice with which to deal with management., because the unconstitutional Staff Relations Program (which was a management-controlled venue which previuously allowed RCMP officers collectively to raise concerns, and didn’t have sufficient independence to pass constitutional muster) has been disbanded, and Bill C-7 has not yet been proclaimed to replace the SRP with something else.

Quick! Bring a Certification Application!

It’s a bit of an odd situation. RCMP members couldn’t unionize under the Public Service Labour Relations Act because they were excluded from the statutory definition of “employee” under that Act (and only “employees” can certify a bargaining agent under the PSLRA, just like other labour relations statutes in Canada.)

The statutory exclusion was struck down in Mounted Police Association in 2015, and the deadline to introduce new legislation has passed. That means that in the interim,  RCMP members are technically now “employees” (without restriction) under the PSLRA, and able to exercise their rights to unionize thereunder with any union they please (subject to the usual requirements of delineating an appropriate bargaining unit, proving majority support within that unit, and so on).

As Michael Mac Neil of Carleton Univerity wryly tweeted:

Of course a union would probably be foolish to do so; bill C-7 will likely be proclaimed shortly. (And the Mounted Police Association of Ontario, at least, states it’s “eagerly awaiting” the new legislative framework, which doesn’t suggest an appetite to upset the applecart by filing for certification right now.)

Further, the amended Federal Public Sector Labour Relations Act sets out that there will be a single bargaining unit, covering all RCMP members and reservists in Canada, and that such a bargaining unit is the only possible bargaining unit under the Act.

238.‍13 (1) Subject to section 55, an employee organization within the meaning of paragraph (b) of the definition employee organization in subsection 2(1) that seeks to be certified as the bargaining agent for the group that consists exclusively of all the employees who are RCMP members and all the employees who are reservists may apply to the Board, in accordance with the regulations, for certification as bargaining agent for that group. The Board must notify the employer of the application without delay.

The Act further sets out that the bargaining agent – i.e. union – that represents the RCMP members can’t represent any other bargaining unit (s. 238.15), and the bargaining unit can’t include anyone other than RCMP members and reservists (s. 238.16).

In other words, while RCMP members can select their bargaining agent (in Mounted Police Association there were three associations seeking representation rights, one based in B.C., one in Ontario, and one in Quebec, so there may be some competition for that role), they all have to select the same one, and that bargaining agent can only represent the RCMP. So, we won’t be seeing the United Steelworkers or United Food and Commercial Workers representing RCMP members any time soon.

Choice in bargaining agent notwithstanding, it’s quite similar to “designated bargaining agent” labour relations models, such as those designating unions for teachers and nurses. But the practical effect is that any pre-existing union, even if successful, couldn’t maintain representation rights after the passage of the new Act.

So practically speaking, RCMP members are collectively without representation until Bill C-7 is passed; when it will be passed depends on the Senate’s schedule. But should the government take too long in implementing the new regime, I wonder if one of the staff associations involved in the appeal in Mounted Police Association would take matters into its own hands and apply for certification for a group of RCMP members, if only to encourage the government to move things along?

(I’ll answer my own question: No, they probably wouldn’t, for the reasons already given.)

Bill C-7’s Restrictions on Collective Bargaining

Bill C-7 hasn’t been uncontroversial; there are still provisions, unsurprisingly unpopular with RCMP members, that strictly limit what any prospective RCMP union will be able to negotiate for its members.

Specifically, s. 238.19 of the new Act states:

238.‍19A collective agreement that applies to the bargaining unit determined under section 238.‍14 must not, directly or indirectly, alter or eliminate any existing term or condition of employment or establish any new term or condition of employment if

(a) doing so would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for the implementation of the term or condition;

(b) the term or condition is one that has been or may be established under the Royal Canadian Mounted Police Superannuation Act, the Royal Canadian Mounted Police Pension Continuation Act, the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act; or

(c) the term or condition relates to

(i) law enforcement techniques,

(ii) transfers from one position to another and appointments,

(iii) appraisals,

(iv) probation,

(v) discharges or demotions,

(vi) conduct, including harassment,

(vii) the basic requirements for carrying out the duties of an RCMP member or a reservist, or

(viii) the uniform, order of dress, equipment or medals of the Royal Canadian Mounted Police.

So: no negotiation over pensions (governed by the federal superannuation and pension acts), nor wages if the government (as it did in Meredith) sets, by statute or regulation, what wages will be. No negotation over probation periods, performance appraisals, or discharge or demotion procedure. (Would that mean that negotiating a grievance procedure under which discharge or demotion could be challenged is also off the table?) No negotiation regarding duties or conduct while on the job. Frankly, it’s difficult to see what substantive areas are left for an RCMP union to negotiate.

The RCMP itself has portrayed these changes as ensuring that RCMP members can “exercise their Charter-protected freedoms, including freedom of association,” but I think these restrictions raise the question of whether the new Act prevents “meaningful collective bargaining”, in the sense used by the Supreme Court in B.C. Health Services in 2007 and in Mounted Police Association, Meredith v. Canada, and Saskatchewan Federation of Labour in 2015. In Meredith a rollback of negotiated wage increases was not unconstitutional, but this Act prevents both present and future negotiations on a whole host of issues. Job security, wages, pensions, the ability to challenge whether your dismissal was for just cause, having some say in the employer’s ability to transfer employees from one workplace or job to another…these are important issues that many unions negotiate hard for. To have them taken off the table entirely seems to leave any RCMP union the ability to nibble around the edges of its members’ terms and conditions of employment, but leaves it without much actual clout. In other words RCMP members may be able to exercise sufficient choice in selecting their union, and their union may have sufficient independence from the employer, to satisfy the (quite basic) requirements set out by the Supreme Court inMounted Police Association.

But whether the union could actually engage in “meaningful collective bargaining” is another issue. One of the reasons the health sector legislation passed by the B.C. Liberals was struck down in B.C. Health Services was because the legislation not only made significant changes to negotiated terms and conditions of employment; it also prevented any negotiation between health care unions and health care employers regarding those, and other, contractual terms.

It’s worth noting that the B.C. Liberal government is facing another Charter challenge which is heading to the Supreme Court of Canada, this time regarding a prohibition on negotiating class sizes in the public school system. It’s a similar issue, though to a lesser degree – to what extent can a government limit the ambit of collective bargaining without running afoul of s. 2(d)’s guarantee of freedom of association? (Mind you, no Canadian government has gone as far as Scott Walker’s Republican administration in Wisconsin, which limited collective bargaining in the public sector only to wages – and any wage increases were then capped to the Consumer Price Index, at that – but there is still significant uncertainty about just how far a government can go.)

I would not be surprised if the courts haven’t seen the last of the RCMP unionization saga.

[This is cross-posted on Keir’s blog. – MP]

 

Dwight Newman Testifies on Bill C-14

Professor Dwight Newman appeared before the Legal and Constitutional Affairs Committee to testify on Bill C-14. His opening remarks can be heard here from 6:30 to 13:40. Of particular interest may be his suggestion that the proposed assisted dying regime may have the unintended effect of “validating despair as the response to situations of suffering” and that more should be heard from Indigenous communities before the bill becomes law. (His written submissions should be posted soon.)

In an observation that was later picked up by Professor Hamish Stewart and Senator Denise Batters, Professor Newman also noted that the Supreme Court of Canada quite recently rejected an application for leave to appeal the Ontario Court of Appeal ruling in Michaud. That decision reinforces the controversial holding in Bedford that section 1 can be used to ‘save’ provisions that are unconstitutionally overbroad – and makes it at least somewhat more likely that Bill C-14 will survive constitutional challenge.

 

 

A word from the editor…

Welcome to the official blog of the University of Saskatchewan’s College of Law! Here, you will be able to find commentary and analysis by faculty, sessional instructors, and students on cases, legislation, law reform initiatives, professional ethics, legal philosophy, legal education, and anything else that might conceivably be germane to the study and practice of law. Enjoy!

Michael Plaxton, Editor