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Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. Stewart v. Elk Valley Coal Corp.2017 SCC 30

[42] Where, as here, a tribunal concludes that the cause of the termination was the breach of a workplace policy or some other conduct attracting discipline, the mere existence of addiction does not establish prima facie discrimination. If an employee fails to comply with a workplace policy for a reason related to addiction, the employer would be unable to sanction him in any way, without potentially violating human rights legislation. Again, to take an example given by the majority of the Court of Appeal, if a nicotine-addicted employee violates a workplace policy forbidding smoking in the workplace, no sanction would be possible without discrimination regardless of whether or not that employee had the capacity to comply with the policy.

(Check for commentary on CanLII Connects)

2. Kiselman v. Klerer, 2019 ONSC 6668

[13] The landlord brought a claim in Small Claims Court for rent arrears and damage to the property. The claim was brought after the tenant had vacated the property. The amount of the claim did not exceed the $25,000 cap, then in place under s. 207(1) of the Act. It is plain and obvious that s. 168(2) of the Act gives the Board exclusive jurisdiction to determine claims of this type between landlord and tenant. The parties had a landlord and tenant relationship, and in my view, nothing turns on the fact that the action was started after the tenant was no longer in possession. It is clear that disputes of this sort are the daily fare of the Landlord and Tenant Board. When assessing claims, the Board is in the best position to determine whether claims for rent arrears and allegations of damage to property against the tenant amount to “undue damage” or simply wear and tear as a result of the normal occupancy of a residential unit.

(Check for commentary on CanLII Connects)

3. Tall Ships Landing Devt. Inc. v. City of Brockville, 2019 ONSC 6597

[41] As is evident in the reasons in Sail Labrador Ltd. and other decisions dealing with the “time is of the essence” doctrine, the question of whether parties intended to make this a term is often hotly contested. As the Arbitrator himself noted, a decision-maker should assume that time is not of the essence in the performance of contractual obligations in the absence of a specific provision to that effect. Time is of the essence is not the rule but rather the exception. As a result, litigants would not expect a decision-maker to rely on an interpretation that is premised on an implicit “time is of the essence” term, unless this issue were raised in the pleadings by one of the parties. This would allow the other party to explore the issue in examination and cross-examination and both parties to argue the issue based on a full evidentiary record.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Carignan c. Maison Carignan inc., 2018 QCCS 5278

[57] Congédier un salarié est un geste grave aux conséquences désastreuses. Toutefois, il est possible pour l’employeur de mettre fin, sans préavis, au contrat de travail. Il lui faut cependant un motif sérieux, une cause juste et suffisante.

[58] La résiliation du contrat de travail du demandeur par la défenderesse est susceptible de soulever l’application des règles énoncées aux articles 2091, 2092 et 2094 du Code civil du Québec :

(Check for commentary on CanLII Connects)

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.

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