https://pinklarkin.com/lawyers/joel-michaud/
Joël Michaud is the managing partner of Pink Larkin in Fredericton.
Practicing through Atlantic Canada and Québec, Joël provides strategic advice to clients in all aspects of labour relations, employment law, and general litigation. He has appeared in all levels of court in New Brunswick, the Federal Court and the Supreme Court of Canada.
Joël is counsel to professional regulating bodies in matters of public complaints, licensing matters and governance.
He is a certified workplace investigator and trained mediator.
In his third-party arbitration practice in New Brunswick, Joël is a recognized arbitrator under the Police Act, the Public Service Labour Relations Act, the Occupational Health and Safety Act, and the Smoke-Free Places Act. He has also been selected as an arbitrator under the Alberta Labour Relations Code.
Mindful of his clients’ interests, Joël is often able to resolve matters by being creative and by fostering healthy working relationships with opposing counsel.
Recognized by his peers as a subject-matter expert, Joël regularly speaks at conferences and seminars, in New Brunswick and elsewhere, and has been a lecturer at the bar admission course organized by the Law Society of New Brunswick for over 20 years.
Joël is a long-term member of the Ethics Committee of the Law Society of New Brunswick.
Bathurst officers involved in Michel Vienneau's death can keep jobs, arbitrator rules
Vienneau was shot by Bathurst officer investigating Crime Stoppers tips almost five years ago
An arbitrator has ruled two Bathurst police officers will keep their jobs after a hearing over their roles in the shooting death of Michel Vienneau almost five years ago.
Constables Mathieu Boudreau and Patrick Bulger each faced five counts of code of conduct violations under the Police Act. Arbitrator Joël Michaud's 58-page written decision issued Tuesday says he did not find the officers violated the code of conduct.
He found the officers properly identified themselves, Vienneau's car was still in motion when Boudreau fired at Vienneau, Bulger acted "with restraint and good judgment" when he fired at Vienneau's rear tire to try to stop the car, and Boudreau did not act out of panic and fear.
As a result, he found the officers not guilty of the alleged breaches of the code of conduct and dismissed the matter.
The two officers were suspended from the Bathurst Police Force with pay pending the outcome of the hearing.
Arbitrator Joël Michaud heard testimony from 13 witnesses during the hearing that began in mid-October. (Shane Magee/CBC)
T.J. Burke, a lawyer representing Boudreau, said no one was celebrating the decision.
"It is a timely gift for the officers because they have been found without any wrongdoing both criminally, and now, civilly under the Police Act," Burke said in an interview.
"But at the end of the day, the officers were just doing their job. They want to put this behind them and they want to move forward with their careers now."
T.J. Burke, the lawyer representing Chantel Moore's estate, says Steve Robinson’s behaviour embarrassed all police forces across the country. (Jonathan Collicott/CBC)
The decision followed testimony from 13 witnesses during the hearing that began in mid-October and lasted 11 days. Closing arguments were offered Dec. 9 after which Michaud had 15 days to issue a decision. The decision is binding, though it can be subject to judicial review within 90 days.
Vienneau, a 51-year-old Tracadie businessman, was killed Jan. 12, 2015, at the Bathurst train station.
Bulger and Boudreau were among six undercover officers who rushed to the station based on anonymous Crime Stoppers tips that Vienneau was trafficking drugs on the train. The tips turned out to be false.
When Vienneau began to drive away from the station, Boudreau and Bulger moved to stop him. They exited an unmarked police car in plainclothes and drew their pistols.
Michel Vienneau, 51, of Tracadie had come off a Via Rail train from Montreal and was in his car when he was shot and killed by police. (Submitted by Nicolas Vienneau)
Michaud heard that Vienneau drove his Chevrolet Cruze into the police car and kept driving toward Bulger. Bulger testified he was hit by Vienneau's car and pinned against a snowbank.
Boudreau, who testified he feared for his partner's life, then fired four times at Vienneau.
Vienneau died of a gunshot wound to his left chest.
Michaud's job was to determine, based on sometimes conflicting testimony, what happened that day. Among his key findings were:
Basque and Vienneau "sincerely believed" they were not facing police officers.
Vienneau didn't try to avoid Bulger and did purposely drive his car to hit him.
Police lights on the unmarked cars were activated.
Clothing and equipment used by officers were what was provided to them by the police force, so it would be "inappropriate" to hold that against them.
There was cause for "grave concerns" about the reliability of Basque's testimony.
Vienneau's car was still moving when Boudreau fired his gun.
Criminal charges against the officers were dropped after a preliminary inquiry.
A separate investigation under the New Brunswick Police Act alleged the officers: didn't properly use and carry a firearm, abused their authority by using unnecessary force, failed to follow police policies and procedures and acted in a discreditable manner.
Basile Chiasson, a lawyer for the police chief, argued the officers had "tunnel vision" after hearing about the Crime Stoppers tips from a supervisor and rushed to the train station hoping to make an arrest and "show their mettle."
Chiasson declined to comment on the decision. A statement issued Tuesday by the City of Bathurst said the municipality will "take the necessary time to carefully analyze the decision."
Lawyers for the two officers said they were blamed for an operation that went according to plan until Vienneau hit Bulger.
It's unclear if Vienneau knew Bulger and Boudreau were officers. Vienneau's fiancée, Annick Basque, who was with him that day, testified she didn't know they were police officers when she saw Bulger with a gun in his hand. She thought they were being attacked by "druggies" or terrorists.
"I think Vienneau acted quickly based on what he expected to see and experience, not what was actually taking place," Michaud wrote of the fear of terrorists.
Michaud said he had "grave concerns" about the reliability of Basque's testimony because of inconsistencies with her own evidence and that of others, including misidentifying whether it was Boudreau or Bulger who was driving the unmarked car and shot Vienneau.
Boudreau has been a police officer since 2009 and Bulger since 2007. Both officers were described at the hearing by a former supervisor as promising with no previous use-of-force issues.
A photo of the shooting scene at the Bathurst train station on Jan. 12, 2015. (RCMP)
Michaud did offer some criticism of Bulger's testimony regarding a policy relating to how to conduct a traffic stop.
"I was unimpressed with the evidence of Bulger, to the effect that he would have been a sitting duck had he remained in the car with only the lower part of his body protected by the engine block," Michaud wrote. "To be blunt, it didn't make sense. I find that Bulger's 'interest in the outcome' and 'motive to deceive' affected his testimony on this point."
While the discipline hearing is over, there are still other proceedings related to the shooting underway. A civil case filed by Vienneau's family against the city and the officers is continuing through court.
Two years ago, the province ordered a coroner's inquest into Vienneau's death.
Inquest planned
The province has said the inquest will take place following the conclusion of the discipline hearing, though dates have not been set.
Coreen Enos, a spokesperson with the Department of Public Safety, told CBC News the inquest would only be held once "all legal proceedings" related to the hearing, such as any judicial review, are exhausted.
An inquest is a formal court proceeding that allows for public presentation of evidence relating to a death to help clarify the facts and circumstances.
The coroner does not assign responsibility or blame, but there may be recommendations on how to prevent similar deaths in the future.
Bathurst hearing decision (PDF KB)
Bathurst hearing decision (Text KB)CBC is not responsible for 3rd party content
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https://www.cbc.ca/news/canada/new-brunswick/bathurst-shooting-hearing-decision-1.5337736
Bathurst police shooting hearing to continue, arbitrator rules
Ruling means officers will likely testify in November
The arbitration hearing for two Bathurst officers involved in the fatal shooting of Michel Vienneau almost five years ago willcontinue.
Arbitrator Joël Michaud's 14-page decision released Monday is not a final ruling. It was required as a procedural step to decide if there was enough evidence presented for the hearing to move to a second stage, where the officers can call evidence and potentially testify next month.
The hearing arose after the shooting death of Michel Vienneau at the Bathurst train station on Jan. 12, 2015. Police were waiting for him based on Crime Stoppers tips that the 51-year-old Tracadie man was trafficking drugs. The tips were false.
A complaint filed by the Bathurst police chief with the New Brunswick Police Commission led to the hearing that began Oct. 16 and heard from 11 witnesses.
Bathurst Police Force constables Mathieu Boudreau and Patrick Bulger each face five counts of violating a code of conduct: that they didn't properly use and carry a firearm, abused authority, were oppressive or abusive to a person, neglected their duty, and acted in a discreditable manner.
Bathurst Police Force constables Mathieu Boudreau, left, and Patrick Bulger deny their actions violated a code of conduct. (Pierre Fournier/CBC)
Boudreau and Bulger denied the allegations. The chief has recommended they be fired.
The final witness called by the police chief testified Oct. 23. Legislation sets out that the arbitrator hearing the case, Michaud, must decide if there's a "prima facie" case after the chief finishes calling evidence.
Essentially, Michaud had to decide not whether he believed the evidence, but "whether there is any evidence, if left uncontradicted, to satisfy the reasonable person." The analysis did not assess the credibility of that evidence at this stage.
The Via Rail train station in Bathurst following the January 2015 shooting death of Michel Vienneau. (Bridget Yard/CBC)
Case law says the arbitrator at this stage had to assume the evidence to be true and assign the most favourable meaning to any ambiguous statements. The written decision called it an uneasy task as much of the evidence the chief called is quite favourable to the officers.
Michaud wrote that the testimony of other police officers involved in intercepting Vienneau that day and a subsequent RCMP investigation of the shooting all suggest Boudreau and Bulger's actions "were beyond reproach."
However, he wrote that even if this evidence potentially leads to an ultimate dismissal of the code of conduct charges, it can't justify dismissing the charges at this point as it would require assessing credibility.
Annick Basque, Michel Vienneau's fiancée when he was shot and killed by police in January 2015, testified at the arbitration hearing about what happened. ( Francois Vigneault/Radio-Canada)
Michaud said the prima facie case that they violated the code of conduct was largely established by testimony from Annick Basque, Gerald Jean and Wayne Coster.
He summarized various points that met the low threshold to support a prima facie case, though wrote some of this evidence was significantly weakened on cross-examination or should be disregarded for being at odds with the versions offered by other witnesses.
Basile Chiasson, the lawyer for the police chief, declined to comment.
T.J. Burke, the lawyer for Boudreau, said in an interview Monday he expects his client will testify when the hearing resumes on Nov. 4.
"He will need to to explain what happened that day, why he went from the police department to the train station, he'll have to explain all of the objective and subjective elements in terms of the investigative tips why they were on at the train station and why, ultimately, he had discharged this firearm in an effort to save his partner's life," Burke said.
Brian Munro and T.J. Burke, lawyers representing Bathurst Police Force constables Patrick Bulger and Mathieu Boudreau, speak Oct. 23 with Basile Chiasson, the lawyer for the Bathurst police chief. (Shane Magee/CBC)
Brian Munro, a lawyer representing Bulger, did not return a request for comment.
Lawyers have set aside Nov. 22 if a second day for testimony is required.
After the officers finish calling evidence, both sides would present final arguments. It's unclear what day that may occur. Then Michaud would issue a final decision.
Basque, Vienneau's fiancée, was in the car with him when he was shot.
She testified they had returned from a weekend trip to Montreal to watch a hockey game. When he began backing out of the train station parking lot, she said a car was next to Vienneau's with two men arguing. She said the car moved to block Vienneau's car and she saw the passenger jump out, slip and fall before standing up with a gun.
She testified she didn't think Bulger and Boudreau were police officers, instead wondering if they were terrorists, or "druggies." She said Vienneau steered the car to avoid them, while he pushed her head under the dash.
She testified she didn't hear them identify themselves as police and did not see flashing police lights on their unmarked car.
An RCMP report that was entered as evidence found Vienneau "purposely hit" Bulger with his car, though he may not have known he was a police officer. Boudreau then fired four times, striking Vienneau twice.
Larry Wilson, right, testified about leading the RCMP investigation of the Bathurst shooting. A use of force analysis included with the report he wrote called the shooting justified under the circumstances. (Shane Magee/CBC)
A use of force analysis included with the RCMP report concluded the shooting was justified as Boudreau sought to save his partner's life.
An investigation after the shooting by RCMP found no evidence Vienneau was trafficking drugs or had any criminal links.
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The case, which pits the Communications Energy and Paperworkers Union of Canada Local 30 against Irving Pulp & Paper Ltd., is being watched closely by employment lawyers across Canada, who say it could have broad implications.
At issue is whether mandatory, random alcohol tests are reasonable impositions on unionized workers in so-called "safety-sensitive" jobs, even in workplaces with no demonstrated problem with drunkenness.
It's a question that pits the privacy of workers against an employer's obligation to provide a safe workplace – and it is a dilemma that has twisted courts and labour tribunals into knots.
Legal experts say the Irving case could be pivotal for the growing number of employers with similar testing policies, as the Supreme Court weighs in on a murky area of the law that has developed differently across the country.
Unions, civil rights groups, business and employers' associations are all expected to seek intervenor status to have their say on the case, which the Supreme Court announced recently that it would take up. It is not expected to be heard until December.
The case before the court dates back to 2006, when Irving Pulp & Paper imposed mandatory random alcohol testing for 334 employees whose jobs were deemed "safety sensitive." In any given year, 10 per cent of the employees would be tested.
But the union at the kraft paper mill, which sits on the banks of the Saint John River, opposed the move, saying the policy was unreasonable, or essentially overkill, because the mill did not have a documented problem with alcohol abuse.
In March, 2006, the union launched a grievance of the policy after an employee, who does not drink for religious reasons, tested negative.
A labour arbitration board agreed with the union, ruling that Irving had failed to show why the policy was required. But the company appealed this ruling to a judge, who tossed it out.
The union then took the case to the New Brunswick Court of Appeal, which sided with Irving. The appeal court declared that the pulp and paper mill was a "dangerous workplace" and because of that alone, the company did not need to show a history of alcohol incidents or an "out of control" culture of substance abuse in order to bring in random testing.
The mill, the N.B. appeal court said, has a "$350-million pressure boiler with a 'high potential' for explosion," makes use of hazardous substances and could be the source of a "major catastrophe" such as a chemical spill.
The union's lawyer on the Supreme Court case, Joël Michaud of Pink Larkin in Fredericton says simply establishing that the workplace is dangerous is not enough to justify the intrusion.
Employers, he said, must have a real reason to bring in testing, such as an incident, or a "near-miss." Or the tests must only apply to employees returning to the workplace from rehab.
If the case goes his way, he said, it could encourage other unions to challenge alcohol testing policies on similar grounds, he said.
"This issue has been floating around since the early '90s," Mr. Michaud said. "There's a number of cases out there that support our approach, in that an employer was able to demonstrate a culture of alcohol or drug abuse in the workplace."
Irving has hired Neil Finkelstein of McCarthy Tétrault LLP. A spokeswoman for the law firm said he declined to comment.
Employment lawyers who act for big companies will be watching the case closely. Barbara Johnston of Fraser Milner Casgrain LLP in Calgary, who has acted for oil companies and others in disputes over drug and alcohol testing, says it is a question of risk management.
"I don't think employers should have to wait for a catastrophic incident prior to taking reasonable steps to mitigate risk in a safety-sensitive work environment," she said.
The use of drug and alcohol testing has been inconsistent across Canada, with courts and labour tribunals generally more friendly toward the concept in the West than in the East.
In Alberta, testing has become common in the oil patch, where many U.S. firms, more accustomed to testing workers, operate. In some cases, employees face tests before they even get on a worksite, or are offered a job.
Toronto lawyer Richard Charney, the leader of Norton Rose's global employment law practice, said Canadian workplaces have been moving toward allowing drug and alcohol testing for safety-sensitive jobs, and didn't expect that evolution to stop.
"What's making decision-makers more tolerant of testing in Canada than 15 years ago is the emphasis on workplace safety," Mr. Charney said. "It's that tension between human rights and workplace safety, and how do you resolve it."
Follow Jeff Gray on Twitter: @jeffreybgray
https://pinklarkin.com/note-jordan-peterson-specify-pronouns/
Note to Jordan Peterson: This is Why I Specify my Pronouns
My work as a lawyer involves advocating in support of whatever position is favourable to my clients’ interests, making it convincing, and doing so ethically. It is uncomfortable for me to write about my personal views, but I figured I’d share the following, with the hope that it might be of interest to other 50-year-olds and older folks who are, like me, adapting to changing societal realities.
I have been following, from afar, with both intrigue and amazement the incidents involving psychologist and U of T professor Jordan Peterson. Whether one agrees or disagrees with his views and opinions, what strikes me most is the level of anger, rage even, and lack of informed and orderly debate taking place about the issues. I suspect that many homophobic, transphobic and other kinds of phobic individuals holding views much more extreme than those of Peterson are reveling in the fact that someone with credibility, knowledge and eloquence is doing the dirty work of sticking it to the liberals.
Perhaps, one should not be surprised by the vitriolic language and attitudes. Peterson is resisting, is actually fighting back against, political correctness, a sacrosanct edict if there ever was one. There are plenty of sources available on the internet for those interested in exploring the details and opposing views.
The origin of the Peterson affair was his refusal to use different pronouns for those who do not subscribe to the norm of binary gender.
Peterson argues that the sheer number of “invented” pronouns makes the whole concept ridiculous. This position can sound attractive to people who like to think of themselves as logical – and don’t we all believe we’re logical. The problem is that our country and our society are changing, and a refusal to adapt will not halt the change. As a 50-year-old white man, there is something about change that sometimes makes me uneasy or even uncomfortable. But being somewhat progressive and open-minded (at least, I think I am), I’ve never had strong feelings about the pronouns issue. I figured that how someone else wishes to be addressed doesn’t affect me in the least. I might make mistakes, but I would not intentionally disrespect someone. In short, I felt that as this issue didn’t affect me personally, I wouldn’t pick sides (unless of course a file required me to pick my client’s side, in which case I certainly would, at least for the duration of the litigation).
Then, in September 2017, I met Gabriel – a trans man who was presenting to our firm about transgender and non-binary gender identities and related issues. Gabriel was an engaging speaker who welcomed questions about anything. He told us that he had been asked very personal questions at similar presentations, and that nothing would shock him. I had a question. It was not shocking. I explained to Gabriel that I had seen e-mail signature lines from people which included the following: “pronouns: he, him” or “she, her” and asked what he thought of that.
Gabriel did not state, as one familiar with the views of Professor Peterson could expect, namely that he would necessarily consider a person adding this statement to their signature line an ally in the social justice war. He simply said: if I saw this, I would feel safe. He went on to provide statistics on the rates of suicide attempts by trans and other non-binary persons, which were quite shocking.
We often hear parents state that the most important thing for them is for their children to be happy. While happiness is obviously preferable to misery, life is not made up exclusively of happy moments. I personally prefer my children to always be safe, and to know they are safe, despite the unhappy episodes life invariably brings. That is why Gabriel’s answer stuck with me.
And that is why, without engaging in debates or picking sides in so-called social justice battles, I have chosen to specify my pronouns in my signature on emails. If I can make just one person feel safe, that is more than good enough for me. If this signals an alliance with the LGBTQ community or suggests that my small gesture constitutes picking sides, I’m perfectly comfortable with that.
So, I say to Gabriel, as I would say to my children, I want you to always feel safe. And to those who are uncomfortable with some of these changes society is throwing at us, I say: be nice. Finally, for those who refuse to be nice, be aware that the law is catching up to societal change: sex, sexual orientation, gender identity and gender expression are prohibited grounds of discrimination.
Joël Michaud (pronouns he/him, pronoms il/lui)
https://www.unb.ca/faculty-staff/directory/law/vanbuskirk-kelly.html
Kelly VanBuskirk QC
Research interests
- workplace dispute resolution models
- legal responses to workplace harassment and bullying
- effectiveness of teaching methods in legal education
Biography
Kelly is a partner in the firm of Lawson Creamer, based in Saint John, New Brunswick. His litigation practice emphasizes labour and employment law and human rights, and he has represented clients before many tribunals and courts, including the Supreme Court of Canada.
Education, training and designations:
- PhD (Nottingham Law School)
- LLM (with distinction) at the University of Huddersfield (UK)
- LLB (Dean’s List) (UNB)
- BA (Dean’s List) (UPEI)
- Cornell University Industrial and Labor Relations School, Panel of Neutrals
- Chartered Arbitrator designation
- Queen’s Counsel
Selected media contributions:
- Former law columnist, CBC Business Network
- Contributor, The Globe & Mail workplace mental health series
- Consulted for commentary by: The Globe & Mail, CTV, CBC, Brunswick News and more.
Courses taught
- Law 4183 (Trial Practice)
- Law 2253 (Administrative Law)
- MBA 7609 (Commercial Law of Project Procurement Management)
- BA 4813 (Negotiation and Conflict Resolution)
- BA 2858 (Introduction to Human Resource Management)
- BA 2758 (Employment Law)
- BA 3720 (Labour Law)
- BA 3705 (Business Law)
- BA 4856 (Evaluating and Rewarding Employee Performance)
- HMRT 3063A (Humanitarian Law and Human Rights), St. Thomas University
Selected publications and conference papers
Why Employees Sue: Rethinking Approaches to the Resolution of Employment Conflicts. Toronto: Thomson Reuters, 2017.
Post-Potter v NBLASC, the law of constructive dismissal still requires attention. The Canadian Labour & Employment Law Journal. 20.1 (2017): 43-69.
Canadian mental health legislation, the violation of individual rights and the promotion of discrimination. International Review of Human Rights Law. 2:1 (2017).
Why Employees Sue and Why Physicians Should Care. Occupational and Environmental Medicine Association of Canada Annual Conference (St. John’s).
An examination of the effectiveness of Readers’ Theatre as a teaching strategy in legal education. Association of Law Teachers 52nd Annual Conference, 2017 (Portsmouth, United Kingdom). Commendation: Stan Marsh Best Paper Prize competition.
Why employees sue. Occupational Medicine Specialists of Canada, Annual Scientific Conference, 2016 (Boston).
Benefits of using mediation to resolve workplace disputes and issues (with Joel Michaud, Esq.)Canadian Bar Association, New Brunswick Branch, Administrative Law Conference, 2016 (Saint John).
Does Canadian employment law resolve the concerns of employees who make legal claims? Osgoode Hall GLS Conference, 2015 (Toronto).
Justice Beyond Law: Why Litigators Should Embrace Mediation. The Canadian Arbitration and Mediation Journal. 23.2 (2014): 53-69.
The importance of a standardized approach: Substantial damages awarded underlines the importance of the CSA’s (voluntary) psychological health and safety standard. HR Today. October 23, 2014.
The Case for Apology Legislation in the Resolution of New Brunswick Employment Disputes. The Solicitor’s Journal. Summer, 2010.
Damages for Improvident Employer Behaviour: Two Judicial Approaches. The Canadian Bar Review. 83 (2004): 755-803.
Interesting
https://www.fieldlaw.com/People/Joel-Michaud
Joël Michaud is an Edmonton-based lawyer with national experience advising regulated private and public employers on labour, employment, human rights and administrative law issues. Joël is bilingual and provides advice in both English and French. He represents employers and employees in post-secondary institutions, Crown corporations, the aviation and transportation sectors and other large-scale, inter-provincial businesses and institutions.
Joël handles a wide range of complex legal issues in the following areas:
- Employment standards, workplace policies and employment contracts
- Human rights
- Canada Labour Code complaints
- Wrongful dismissals, labour disputes and grievance arbitration
- Drug and alcohol testing
- Workplace privacy
- Investigations into allegations of workplace harassment and misconduct
Clients rely on Joël's representation before various administrative tribunals, including the Alberta Human Rights Commission, Canadian Human Rights Commission and Canadian Human Rights Tribunal. He also represents clients in grievance and interest arbitrations and before the Alberta Labour Relations Board. Joël has also appeared before the Provincial Court of Alberta and the Court of Queen’s Bench in wrongful dismissal and judicial review matters.
Value to Clients
Joël brings strong policy and management perspective and experience to his clients' needs and issues. Before attending law school, he spent three years in the federal public service in Edmonton, working in managerial and other capacities. Joël was also an intern at the Canadian Industrial Relations Board in Ottawa and a member of the University of Ottawa’s team at the René Cassin Competition on Human Rights held in Strasbourg, France.
Outside the Office
As the father of three, Joël's free time revolves around his family. They travel and enjoy the outdoors together hiking, camping, mountain biking and cross-country skiing. Joël also has a private pilot's license.
