Canadian Lawyer InHouse

SEPTEMBER 2016 8 INHOUSE News Roundup SCC decision reverses Federal Court of Appeal ruling on federally regulated employees I n a dramatic reversal, the Supreme Court in July overturned what had been called a "game-changing" deci- sion by the Federal Court of Appeal and ruled that non-unionized employees of federally regulated businesses are entitled to similar protections against dismissal as those afforded to unionized workers. The SCC ruled six to three in the case of Wilson v. Atomic Energy of Canada Ltd. In February 2015, the Federal Court of Appeal had held that federally regulated employers may dismiss employees without cause. The general consensus previously was that employees governed by the Canada Labour Code could only be terminated for just cause. The decision affects half a million non- unionized employees working in banks, telecommunications, airlines and other fed- eral enterprises. "It sets the law to what we thought it was prior to the Federal Court of Appeal deci- sion. We've gone back to what most people thought the legislation meant prior to ad- judicator Wakeling [in Knopp v. Western Bulk Transport Ltd.]," says Stacey Ball of Ball Professional Corporation who was counsel for the intervener Canadian Association for Non-Organized employees. "Basically, you can't dismiss someone on a without-cause basis. The employee has a substantive right to challenge their dismissal now — that's been reconfi rmed." The decision was disappointing to Ron- ald Snyder, partner at Fogler Rubinoff LLP in Ottawa who represented Atomic Energy of Canada Ltd in the case. He calls it "unset- tling" with "very signifi cant consequences." "This decision will undoubtedly be re- garded by all federally regulated companies across Canada as a highly disappointing and disconcerting one," he says. "The Supreme Court is essentially taking the position that non-unionized employees of federally regu- lated companies enjoy the same guaranteed job protection as unionized employees. They are entitled to job security for life unless that very high threshold test of just cause can be established to dismiss them." Snyder says the dissenting justices used "strong language" such as "circular reason- ing" and "reliance on frail evidence" to char- acterize the majority's reasoning that under- lies the "unsettling nature of this decision." "Provincially regulated employers have for decades enjoyed the right to dismiss employees on a without-cause basis to effi - ciently manage their human resource com- pliment, which could include terminating employees who simply proved, for one rea- son or another, to no longer be a good fi t," CONNECT WITH IN-HOUSE COUNSEL COLLEAGUES AT LEXPERT.CA/CCCA Check out in-house counsel's best networking tool! The 2015/16 Lexpert CCCA/ACCJE Directory & Yearbook online edition is a user-friendly, outstanding key resource for all in-house counsel. Along with immediate access to more than 4,000 listees at more than 1,900 organizations, you'll also find fresh editorial content, information on deals and links to important resources. Directory listees and CCCA members can also receive log-in credentials for access to detailed contact information to be able to connect with colleagues or research the in-house bar. ANYWHERE. ANYTIME. ANY DEVICE. Untitled-2 1 2016-08-05 10:27 AM

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