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Archive for ‘Case Comment’

Getting Smart on Crime Instead of Tough

Mandatory minimums. Mega prisons. “Tough” on crime.

These have been the hallmarks of the Federal government’s reform of the criminal justice system, but the policies have been more politically motivated than good policy or social science evidence. Canada’s crime rate has been the lowest since 1972, and the literature on law enforcement suggests these measures will actually make things worse.

The mandatory minimum provisions and removal of credit for time has already been challenged successfully in court. Courts in B.C., Nova Scotia, Ontario, and Northwest Territories have all found these provisions as unconstitutional, culminating in the Supreme Court’s decision in . . . [more]

Posted in: Case Comment, Justice Issues

Human Rights Tribunal’s Finding of Disability Discrimination in Employment Overturned

The Court of Queen’s Bench of Alberta recently overturned a finding of disability discrimination in employment in the case of Syncrude Canada Ltd v Saunders, 2015 ABQB 237 (CanLII). The Court decided that the Alberta Human Rights Tribunal erred in finding that the employee established a prima facie case of discrimination when the evidence could not reasonably support the conclusion that the employee suffered from a disability or a perceived disability requiring accommodation. . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Demotion Led to Constructive Dismissal

In Ciszkowski v Canac Kitchens, the Ontario Superior Court of Justice concluded that a long-term employee was constructively dismissed when he considered himself demoted upon his return to work from heart surgery. This demotion due to his disability created a serious erosion of the working relationship. . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Email Could Not Be Covered Under Solicitor-Client Privilege

An Ontario court has compelled an employer to produce an email message between HR staff and counsel in the wrongful dismissal case of Jacobson v Atlas Copco Canada Inc. The Superior Court of Justice found the employer failed to show that the message involved seeking or giving legal advice; thus it could not be protected by solicitor-client privilege. . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

When Unions Fight

Headlines get made when employers and unions wage labour war. Teachers fighting provinces, police officers fighting cities and postal workers fighting Canada Post all make for great news. Inter-union fighting makes less noise but is also fascinating when it ends up before labour tribunals. A recent case provides a great example of what happens when unions “raid” each other (“raiding” is when one union attempts to sign up members represented by another union).

The story seems to start here, with the International Association of Machinists and Aerospace Workers (IAMAW) talking to its membership (Toronto area airport screeners) about . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Tenant Who Is 1.5 Years and $13,000 in Arrears Gets One More Chance

A recent decision demonstrates once again that our Province’s residential tenancy laws are in need of an overhaul to give more protection to landlords.

By the time the case (almost) came on for a hearing on April 27, 2015:

(a) the tenant had accumulated arrears of rent from September, 2013;

(b) the Landlord and Tenant Board (“LTB”) had made several orders terminating the tenancy and ordering eviction for non-payment of rent and arrears;

(c) the LTB had also made several orders setting aside the orders mentioned in (b) above and instead installing various repayment schemes;

(d) the tenant breached all . . . [more]

Posted in: Case Comment

Filing Suit Amid Suspension Isn’t Wilful Resignation

When the New Brunswick Legal Aid Services Commission decided unilaterally to place its executive director David Potter on indefinite paid suspension, the employee challenged the decision in court. The commission took the position that Potter’s legal challenge meant he had resigned, and cut off his pay and benefits. The case went to the Supreme Court of Canada and in Potter v. New Brunswick Legal Aid Services Commission, the Supreme Court concluded that Potter was constructively dismissed and did not voluntary resign his position. The central issue was whether and in what circumstances a suspension with pay of a non-union . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Deputy Judge Who Allows Trial to Continue in Absence of One Party Overturned on Appeal

A Deputy Small Claims Court Judge who made the decision to allow a trial to continue on its second day notwithstanding that one of the parties failed to show up has been overturned by the Divisional Court.

The trial which was originally scheduled for only one day, took place over two days. The first day of trial was August 28, 2013. On that day the court heard from two witnesses. The first witness gave evidence in chief and was cross-examined by the defendants. The second witness then gave their evidence in chief. At this time it was determined that . . . [more]

Posted in: Case Comment

26 Months’ Notice Awarded to Dependent Contractors

In Keenan v Canac Kitchens, the Ontario Superior Court of Justice concluded that two workers were owed termination notice by their employer because they were not independent contractors as the employer tried to argue, but rather dependent contractors as the evidence showed. Therefore, the employer did owe them termination notice. . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Plaintiff Spends $550,000 on Legal Fees to Recover $10,000

In a recent defamation decision, the plaintiff spent nearly $550,000 on legal fees only to recover a $10,000 judgment. The plaintiff was not alone in racking up a large legal bill. The defendant spent nearly $250,000 on legal fees defending the claim.

After the conclusion of trial both sides sought their legal costs from the other side.

The plaintiff argued that it was successful in the result and therefore ought to be entitled to costs.

The defendant argued that the plaintiff should have brought its case in Small Claims Court, or under the Simplified Procedure, and should not be . . . [more]

Posted in: Case Comment, Practice of Law

The Real Incivility Case to Watch

Perhaps the best way to raise awareness of the 2015 Bencher Elections is to highlight what the function of the law society is. The LSUC website states,

The main function of the Law Society of Upper Canada is to ensure that all persons who practise law or provide legal services in Ontario are competent, follow proper procedures and behave ethically.

Ethical behaviour is generally interpreted through the lens of the Rules of Professional Conduct, and is one of the main disciplinary functions of the law society. Discipline, though rarely pleasant, is one of the necessary components of self-regulation. Understandably . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Of Prima Facie Discrimination and Humanizing the Street Homeless

The long-dead brains of history are still quite handy when you need to brandish something with rhetorical flourish—Plato, Aristotle, Shakespeare, Milton, Locke, Adam Smith, John Stuart Mill are some obvious choices. But it’s rare that a quote at the head of a judgement is as good as what BC Supreme Court Justice Sharma gave us this past Friday in Vancouver Area Network of Drug Users v. British Columbia Human Rights Tribunal. Here’s how the reasons begin:

“Near the end of the 19th Century, the poet, author and Nobel laureate Antole France composed this oft-cited saying: ‘[t]he law in its

. . . [more]
Posted in: Case Comment, Justice Issues, Substantive Law: Judicial Decisions