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PAGE 6 COMMENT Law Times Group Publisher . . . . . . . Karen Lorimer Editorial Director . . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . Robert Todd Staff Writer . . . . . . . Michael McKiernan Copy Editor . . . . . . . . . Katia Caporiccio CaseLaw Editor . . . . . Adela Rodriguez Art Director . . . . . . . . . . Alicia Adamson Account Co-ordinator . . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . . Derek Welford Advertising Sales . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. June 27, 2011 • Law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@ thomsonreuters.com or Tel: 905-713-4392 • Fax: 905- 841-6786. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 karen.lorimer@thomsonreuters.com, Kimberlee Pascoe at 905-713-4342 kimberlee.pascoe@thomson- reuters.com, or Sandy Shutt at 905-713-4337 sandra. shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Feds go too far with back-to-work bills labour relations lately. First, it vowed to legislate Air Cana- T da employees back to work even in the absence of evidence that the strike was having a signifi cant impact. It promised to do the same after Canada Post locked out its workers earlier this month. In that case as well, the eff ects on the public have paled in comparison to Canada's experi- ences during previous postal strikes. Th e moves are particularly surpris- ing in light of our courts' recent juris- prudence on the right to collective bar- gaining. Th e leading case, of course, is the Supreme Court's ruling in Health Services and Support — Facilities Sub- sector Bargaining Association v. British Columbia in 2007. In that case, the he federal government has been raising more than a few eyebrows with its approach to court was considering the B.C. gov- ernment's eff orts to contract out work to non-union workers. Th e landmark decision upheld the notion of collec- tive bargaining as a constitutional right as well as employers' duty to negotiate in good faith. In proposing legislation to send Canada Post workers back to their jobs, the government actually went as far as mandating a wage settlement that was less than the company had been off er- ing the union. Under the bill, workers would receive a 1.75-per-cent increase in the fi rst year, 1.5 per cent in the sec- ond year, and two per cent in the last two years. Canada Post had been off er- ing 1.9 per cent in the fi rst three years and two per cent in the last year. Pensions, of course, were a key stick- ing point in both the Air Canada and Canada Post labour disputes. Manage- ment wants to move to defi ned-con- tribution plans for new workers, while unions are eager to protect their existing defi ned-benefi t schemes for all. Regardless of the merits of either side's argument — although it's becom- ing clear that public-sector unions will at some point have to deal with the growing disparity in pensions between their members and those in the private sector as well as taxpayers' ability to fund them — the government appears to be taking a legal risk in usurping the collective bargaining process so aggres- sively and going as far as imposing a worse wage settlement. Perhaps the government believes that by leaving the pension issue for determination by an arbitrator who will choose to impose either the union's or the employer's fi nal off er, it might skirt a legal challenge. It may also be hop- ing the courts will reconsider the B.C. Health Services decision by giving em- ployers more leeway than the Supreme Court provided. At the end of the day, however, it's worrisome that the government has shown itself to be so dismissive of col- lective bargaining. Beyond the fact that back-to-work legislation should be a tool of last resort, if employers truly want to alter their pension schemes, they have a better chance of achiev- ing that at the bargaining table than through arbitration. Th at's particularly true with Canada Post, an organization that despite its status as a key national institution, most of us can live without for a few weeks. — Glenn Kauth T Court looks at interplay between child protection, refugee law Family he Ontario Court of Appeal had the op- portunity recently to address the constitutionality of the interplay between the Hague Convention provisions incorporated into the Children's Law Reform Act and those of the Immigration and Refugee Protection Act dealing with a child's refugee status. Th e issues in I.(A.M.R.) v. R. (K.E.) involved not only a con- sideration of the constitutional matters but also questions of pro- cedural fairness in an application under the Hague Convention. In this case, the parents had resided in Cancun, Mexico, prior to their separation and had a daughter. Some time after separation, the father moved to Canada. In De- cember 2009, the mother per- mitted the daughter to travel to Canada to visit her father for a few weeks while accompanied by her maternal grandmother. While in Canada, the grand- mother told the father his daugh- ter had been the subject of abuse by her mother. Th e daughter then confi rmed this. As a result, she remained in Canada. Th e father secured a refugee status hearing for his daughter, the result of which was a fi nding that the child was a convention refugee due to the abuse she had suff ered and would continue to experience at the hands of her mother in Mexico. Th e child, whose identity is the subject of a publication ban, remained in Canada with her father and aunts for some months. Some time thereafter, the father moved to Europe as he was denied refugee status in Canada. Th e child continued to live with her aunts. After several months had passed, the mother brought an application under the Hague Convention seeking the child's return to Mexico. Th e aunts attempted to intervene in the hearing, including by seeking an order for the appointment of the Offi ce of the Children's Lawyer to represent the child. Th eir mo- tion was unsuccessful on the ba- sis that the child's views and evi- dence were available through the record of the Immigration and Law By Marta Siemiarczuk Refugee Board hearing, which made resort to the services of the Offi ce of the Children's Lawyer unnecessary. Th e father was still overseas at the time. He had 60 days to respond to the application. For reasons that aren't at all clear, the mother obtained a hearing date before the father's 60-day time period to respond had lapsed. At the hearing, neither the child nor the father was present or rep- resented. Very surprisingly, the matter proceeded and resulted in an order to return the child to Mexico forthwith. What's even more surpris- ing was that police went to the child's school and physically re- moved her while she protested and attempted to confi rm with authorities that she was a conven- tion refugee. All of this happened www.lawtimesnews.com without notice to the aunts or the father. She was on a fl ight back to Mexico the next morn- ing. Th e father appealed. Th e primary questions before the Court of Appeal included whether s. 46 of the Children's Law Reform Act confl icted with s. 115 of the Immigration and Refugee Protection Act such that it was rendered inoperable on the basis of federal paramountcy and whether the application judge had erred by ordering the child's return to Mexico without having considered her refugee status as well as the various exceptions to such an order available under the Hague Convention; failing to en- sure the child participated at the hearing; and not conducting it in accordance with the principles of natural justice. In a thorough analysis of the framework and purpose of the provisions of the Hague Conven- tion adopted in the Children's Law Reform Act and those of the Immigration and Refugee Protection Act, the court held that s. 46 wasn't rendered in- operable as it could apply both pieces of legislation consistently. On the balance of the questions, the appeal court clearly determined that the ap- plication judge had erred on the basis of issues of procedural fairness. It ordered the child's return to Ontario. Of course, in cases where someone is no longer in Canada, the question always arises as to whether authorities can actu- ally enforce the child's return. In this case, the child had run away from her mother's care and her whereabouts were unknown, including to the court, although she had been in contact with the Offi ce of the Children's Lawyer. Th e court reserved in provid- ing full reasons for its decision un- til recently. Th e story has a happy ending in that by the time the court released those reasons, the child was back in Ontario. Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nel- ligan O'Brien Payne LLP in Ot- tawa. She can be reached at marta. siemiarczuk@nelligan.ca.