BENCHPRESS | Subway Pictograms, Roads on Reserve and Employee Attitudes - LawNow Magazine

BENCHPRESS | Subway Pictograms, Roads on Reserve and Employee Attitudes

Subway Pictogram: Warning sign or law?

Kosoian v Société de transport de Montréal, 2019 SCC 59

On May 13, 2009, Ms. Kosoian rode a down escalator in one of Montreal’s subway stations. She didn’t hold the handrail. A police officer saw this and ordered her to hold the handrail or he would issue her a ticket. She refused. Another police officer arrived. The police officers led Ms. Kosoian to a holding room, searched her bag without her consent and handcuffed her. Ms. Kosoian was given a $100 ticket for refusing to obey the pictogram and a $320 ticket for hindering an inspector in the performance of inspection duties.

The Municipal Court dropped the ticket. Ms. Kosoian started a civil claim against the police officer, the transit authority and the City of Montreal for “unlawful and unreasonable arrest on the basis of a pictogram that did not create an offence” but simply gave a warning. The trial judge dismissed Ms. Kosoian’s claim and applauded the actions of the police officers. The majority of the Court of Appeal also dismissed Ms. Kosoian’s claim. The Supreme Court of Canada overturned both lower courts.

The Supreme Court of Canada held that a reasonable police officer would not have concluded that failing to obey the pictogram was an offence under a by-law. A reasonable officer would have concluded the pictogram was a safety warning. Accordingly, the Court found the police officer civilly liable for his actions.

The Court also held that the transit authority and the City of Montreal were liable. The transit authority was directly liable because it trained police officers that disobeying the pictograms were offences. It was also liable as mandator for the police officer’s fault. The City of Montreal was liable as the police officer’s principal.

Over ten and a half years after the incident, the Court awarded Ms. Kosoian $20,000 in damages – 50% payable by the transit authority and 50% by the police officer.

Roads on Reserve: Private or public?

R v Adams, 2019 ABPC 296

In February of 2019, Mr. Adams was convicted of driving while prohibited in Edmonton. He was prohibited from driving on a “street, road, highway, or any public place in Canada” that the public has a “right of access” or is ordinarily “entitled or permitted to use” (per s. 2 of Canada’s Criminal Code and section 1 of Alberta’s Traffic Safety Act).

The next month, Mr. Adams was driving on Paul First Nation in central Alberta – from his mother’s house to his uncle’s house to pick up medication for his sick mother. An RCMP officer pulled over Mr. Adams for having a burned-out taillight. The officer then discovered the driving prohibition from the February conviction. The officer arrested Mr. Adams and impounded the vehicle (belonging to his mother). After 30 days, the impound fees were higher than the vehicle’s value, and it was abandoned.

Provincial Court Judge Shaigec had to decide whether the public had a right of access to use the roads on Paul First Nation. He noted that:

  • the Indian Act confirms that Paul First Nation land is set apart for the use and benefit of the people who live there;
  • there are “No Trespassing” signs located at different entry points into Paul First Nation;
  • the roads are maintained by Paul First Nation;
  • the general public has no reason to drive on the roads – the roads are not necessary to travel on to connect to any highways or other locations outside of Paul First Nation;
  • anyone from outside of the community who travels on the roads is usually doing so to attend special ceremonies or to provide services in the community.

Judge Shaigec concluded he had reasonable doubt that the public had a “right of access” or is ordinarily “entitled or permitted to use” the roads traveled by Mr. Adams on Paul First Nation. He found Mr. Adams not guilty of the offence of driving while prohibited.

Interestingly, Judge Shaigec did not find the officer’s actions to be unreasonable. And so he did not allow a claim for costs under s. 24(1) of the Charter for a breach of s. 8 (right to be secure against unreasonable search and seizure).

Employee’s Bad Attitude: Manageable or cause for termination?

SaskTel v Unifor, Local 2S, 2019 CanLII 57057 (SK LA)

The employee began work for SaskTel in 1993. She worked in various positions, eventually ending up as a senior clerical associate in the Assignment Centre until her termination in March 2017. In her role, she provided technical and administrative support to SaskTel’s residential and commercial installers.

In her first 20 years of service, SaskTel never disciplined the employee. Then, in May 2013, the employee received a warning letter about her conduct – that her “angry, offensive tone, language and disposition in the workplace was unacceptable.” For example, the employee swore aggressively, calling people names and belittling them, and was openly critical of management. The manager described the employee’s behaviour as constituting bullying. Following that, the employee received two one-day suspensions relating to her tone on two different service phone calls.

SaskTel then hired an external investigator to “verify the [employee’s] behaviour and its impact on others and to provide conclusions about the work environment”. The investigator concluded that the employee’s conduct was “consistent with personal harassment and bullying and the prospect for change was low.”

SaskTel terminated the employee’s employment. The union grieved the warning letter, the suspensions and the termination. The matter went before an arbitrator.

The arbitrator heard evidence from managers and past employees. The witnesses described the employee as the office bully. The arbitrator concluded that the employee’s behaviour was “unacceptable and would not change” and so termination was warranted. The arbitrator also noted that even though SaskTel had not followed its harassment policy, this failure did not compromise the decision to terminate the employee.

Authors:

Jessica Steingard
Jessica Steingard
Jessica Steingard, BCom, JD, is a staff lawyer at the Centre for Public Legal Education Alberta.
 


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