Law Times

Page 10 March 2, 2015 • Law Times www.lawtimesnews.com FOCUS What's the definition of sister-in-law? Meaning of term for bereavement leave among interesting recent cases BY SHANNON KARI Law Times wo recent decisions in the employment and labour law field have shown that com- monly used terms to define family members don't neces- sarily mean the same thing to everyone and that findings of discrimination and even puni- tive damages aren't out of the realm of possibility at the Small Claims Court. DEFINING SISTER-IN-LAW Terms such as sister-in-law and immediate family and what they mean remain an area of dispute, according to an arbitrator in a ruling over how to apply bereavement leave in a col- lective agreement for hospital employees in Ontario. "The definition of fam- ily relations terms for collective agreement benefits purposes has long been a vexing issue for both collective bargaining parties and arbitrators," wrote George Surdykowski in North York General Hospital v. Service Employees International Union, Local 1 Canada. "The case law is less than consistent in the approach to the issue," the arbitrator observed in his ruling. The grievance involved a claim by an employee at the North York General Hospital in Toronto for three days of be- reavement leave after the death of her husband's brother's wife. The collective agreement, which applies to about 15,000 employ- ees in nearly three-dozen hos- pitals in Ontario, includes the death of a sister-in-law under one of the classifications of fam- ily members in a clause dealing with leave eligibility. What was before the arbitra- tor was the definition of sister- in-law in the collective agree- ment. The union argued that dictionary meanings and common usage of the term have expanded to include the wife of the brother of one's spouse as an individual's sis- ter-in-law. Surdykowski noted a num- ber of past decisions by arbitra- tors have come to different con- clusions about who counts as a sister-in-law or a brother-in-law. In the collective agreement for the hospital workers, how- ever, bereavement leave is for the death of a member of the imme- diate family. "When a collective agreement uses the adjective 'immediate' in association with 'family,' it has and must be given meaning. The plain and ordi- nary meaning of immediate is close or not distant. Immediate therefore has a limiting effect," wrote Surdykowski. As a result, the arbitrator concluded that the immedi- ate family requirement meant that sister-in-law applies to the spouse of one's siblings. Scott Williams, who repre- sented the hospital, says that while the dictionary meaning appears to have become more expansive, that shouldn't be a way to rewrite a section of the collective agreement. "The intent of the parties had not changed," says Williams, a part- ner at Hicks Morley Hamilton Stewart Storie LLP in Toronto. The lack of consistency in this area is a reminder that "specificity is helpful" in draft- ing collective agreements, says Williams, although he adds it's difficult to predict when the issue is about changing defini- tions of commonly used terms. PUNITIVE DAMAGES FOR SMALL CLAIMS? A Small Claims Court deputy judge has ruled that a massage therapy instructor has proven damages of nearly $43,000 af- ter her firm constructively dis- missed her following her return from maternity leave. Deputy judge Sebastian Winny awarded the maximum $25,000, plus costs and interest, permitted at the Small Claims Court but noted he had author- ity to determine if the damages were in excess of that limit. The damages total included $20,000 for discrimination un- der the Human Rights Code and $5,000 in punitive damages for bad-faith conduct by the employer in Bray v. Canadian College of Massage and Hydro- therapy. "I find this to be a rare and ex- ceptional type of case in which an award of punitive damages is warranted," wrote Winny in the decision issued Jan. 31. The court heard Kelly Bray had worked for the college as an instructor since 2004. She went on maternity leave in 2012 and, after returning a year later, the employer initially cut her hours by one-third. The person setting the schedule told her it's a "big adjustment" being a mother. A few months later, the employer told Bray it no longer required her services for the next term. The college argued it hadn't terminated Bray, a suggestion the Small Claims Court deputy judge rejected. "There had been a unilat- eral fundamental change to the terms of employment. The plaintiff was constructively 2015 ONTARIO LAWYER'S PHONE BOOK THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS Perfectbound Published December each year On subscription $77 One time purchase $80 L88804-677 Multiple copy discounts available. Plus applicable taxes and shipping & handling. (prices subject to change without notice) Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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This premier source of information includes summaries of recent collective agreement ratifications, labour arbitration digests, analysis of new and amended legislation and regulation, statistical tables on unemployment and inflation, as well as news and analysis of new and amended legislation and regulation. START YOUR SUBSCRIPTION AND RECEIVE: • issues of Canadian Labour Reporter • Full access to www.labour-reporter.com • Weekly e-newsletter SUBSCRIBE TODAY FOR ONLY 0SEFS" ORDER TODAY: Call toll free 1-800-387-5164, in Toronto 416-609-3800, online at www.labour-reporter.com/subscribe or email carswell.customerrelations@thomsonreuters.com Untitled-4 1 2015-02-23 10:30 AM See Case, page 11 T The case is the first time a client has proven damages in excess of $25,000 at the Small Claims Court, says Pamela Krauss.

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