This case, which was a judicial review of an arbitral award,
involved a form of settlement agreement known as a
Mosaic Potash Esterhazy Limited Partnership initiated a drug and
alcohol testing program at its mine. An employee who worked in a
"safety-sensitive" position tested positive for alcohol
well over the legal limit, and, after receiving an assessment under
Mosaic's Employee Assistance Program, again tested positive for
cannabinoids. The employee was issued a last-chance agreement,
which set out that the failure of another drug test would be
sufficient grounds to terminate his employment. He tested positive
a third time for the presence of alcohol and was terminated.
Unifor Local 892 brought a grievance on behalf of the employee,
arguing that he was fired on the basis of a substance abuse
disability, which is a recognized disability in The
Saskatchewan Human Rights Code. The arbitrator determined that
she was not bound by the last-chance agreement because it did not
form part of the collective agreement, and even if it did, it
improperly attempted to limit the employee's right to
accommodation for his disability under the Human Rights
Code. She also concluded that Mosaic had failed to accommodate
Mosaic sought judicial review of the arbitrator's decision.
The Saskatchewan Court of Queen's Bench dismissed Mosaic's
application, holding that, although it did not agree with all of
the arbitrator's findings, the standard of review was
reasonableness and the arbitrator's conclusions were
reasonable. In doing so, the Court noted in obiter dicta
that, among other things, it is not open to parties to contract out
of human rights legislation. The arbitrator was correct to conclude
that the last-chance agreement was an impermissible attempt to
fetter her jurisdiction by pre-determining the result of her
inquiry in a way that would diminish the grievor's protection
under the Human Rights Code.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
In Bank of Montreal v Bumper Development Corporation Ltd, 2016 ABQB 363, the Alberta Court of Queen's Bench enforced the "immediate replacement" provision in the Canadian Association of Petroleum Landmen 2007 Operating Procedure...
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