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Archive for ‘Case Comment’

Reasonable Notice: Relevance of Worker’s Past Experience Clarified

Written by Daniel Standing LL.B., Editor, First Reference

In a previous First Reference article I wrote on our news service HRinfodesk, the Ontario Superior Court of Justice’s decision in which a successor employer was held liable for a 20-month notice period was written about because of the legislative presumption of continued employment in these circumstances. Readers may refer to that article for an overview of the key facts. Since then, the case was appealed and decided by the Ontario Court of Appeal. In rendering its decision, the court analyzed the common law approach to the calculation of reasonable notice, concluding . . . [more]

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

Senior Employee Entitled to Progressive Discipline

By Lewis Waring, Paralegal, Student-at-law, Editor, First Reference

In Underhill v Shell Canada Limited, 2020 ABQB 341, the Court of Queen’s Bench of Alberta decided that a senior employee had been wrongfully dismissed after she became tangled up in a subordinate’s attempt to bid on a project independently of the employer.

The employer’s reason for the senior employee’s dismissal had been that she had engaged in misconduct in her handling of the subordinate’s bid attempt. However, the court found that her behaviour was not serious enough to merit her dismissal for cause. Instead, the employer should have responded to . . . [more]

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

Gas Pump Stickers and Compelled Speech

In my last Slaw post, I discussed Morgan J.’s decision in Canadian Civil Liberties Association v. Attorney General of Ontario (CCLA v. AG Ont.) to grant standing to the Canadian Civil Liberties Association to challenge the government’s requirement that gas station operators post a sticker on each gas pump. The standing decision stands for two major points: the CCLA’s expertise did not have to relate to the selling of gas or regulations governing it, but it was sufficient that it related to constitutional issues; and it had shown its interest by identifying its concerns to the government . . . [more]

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

Possible Denial of ESA Minimums Voids Termination Clause

Lewis Waring, Paralegal and Student-at-Law, Editor, First Reference Inc.

A recent decision from Ontario’s Divisional Court illustrates an important point about the concept of notice in Ontario employment contracts. This point concerns the relation between the Employment Standards Act, 2000 (“ESA”) and Ontario common law. This important point is that employees are, by default, entitled to common law reasonable notice. Common law reasonable notice is roughly equivalent to one month of compensation for each year of employment. In comparison, minimum notice entitlements under the ESA are limited to one week per year of employment.

Employers who wish to prevent their . . . [more]

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

New Culture Shift Towards Scheduling Court Motions in Ontario

“A litigation culture has arisen in this province over the last three decades which extols creating and litigating peripheral procedural disputes, instead of moving towards the timely adjudication of disputes on their merits. That culture now lauds, as the skilled barrister, the motions specialist, not the final hearing expert.” – Justice David M. Brown 

Given the hurdles presented by COVID-19, the Ontario courts are trying to shift the litigation culture away from litigating peripheral procedural disputes. It was recently acknowledged in a motion to consolidate two matters in Klassen v Klassen, 2020 ONSC 4835, that “[COVID-19] shut down Ontario’s . . . [more]

Posted in: Case Comment, Practice of Law

SCJ Grants CCLA Public Interest Standing to Challenge the Mandatory Gas Pump Sticker

In 2019, the Ford Government announced it would require gas station operators to post stickers about the impact of the federal government’s fuel charge on the price of gasoline. The Ontario Government’s response to the Canadian Civil Liberties Association’s (CCLA) challenge to the legislation not only defended on the merits, but also argued the CCLA did not have standing to bring its claim. The Ontario Superior Court of Justice rejected both positions in The Corporation of the Canadian Civil Liberties Association v. The Attorney General of Ontario (CCLA v. AG Ont.). Here I focus on Justice Ed Morgan’s determination on . . . [more]

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

Employee’s Mitigation Efforts Under Fixed-Term Contract Reduces Employer’s Liability

Daniel Standing LL.B., Editor, First Reference Inc.

What is the employer’s liability to a former employee who is dismissed from a fixed-term contract without cause, when that employee mitigates his or her loss by finding another job? Faced with mixed jurisprudence from other jurisdictions, the Saskatchewan Court of Appeal answers this question for that province in Crook v Druxbury, 2020 SKCA 43 (CanLII), rendering a decision that is harmonious with the state of the law in Alberta and British Columbia. As a result, in those three Western provinces, the former employee’s mitigation of his or her loss serves . . . [more]

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

Failure to Accommodate Proves Costly

Written by Daniel Standing LL.B., Editor, First Reference Inc.

The employer’s duty to accommodate an employee was the central issue in the recent Alberta labour arbitration case, First Canada ULC and IUOE, Local 955 (Bartlett), Re, 2020 CarswellAlta 1154. The case pitted a bus driver’s claim of physical disability and request for a reduced workload against the employer’s relentless drive for cost efficiency and safety. The arbitrator’s acceptance of the employee’s grievance and human rights complaint is an instructive account of how employers should approach and deal with employees’ claims for accommodation. . . . [more]

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

Sexagenarian Firefighter Forced to Hang Up Hose

Written by Daniel Standing LL.B., Editor, First Reference Inc.

In many cases, the choice of when to retire is based on a variety of factors, including lifestyle, priorities and other circumstances. Sometimes the decision to stop working is an easy one, while others prefer to continue working as long as possible. But what happens when an employee’s retirement is not a choice but is a requirement of his or her pension plan? Is it discriminatory? This issue came before the Human Rights Tribunal of Alberta in Aziz v Calgary Firefighters Association, 2020 AHRC 40 when a firefighter nearing the . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

Reasonableness Prevails in Ruling on Due Diligence

By Daniel Standing LL.B., Editor, First Reference Inc.

In R v Kal Tire, 2020 ABCA 200 (CanLII), the Alberta Court of Appeal clarified the law on an employer’s defence of due diligence when charged with an occupational health and safety violation. The matter came before the court when Kal Tire appealed its conviction under the Occupational Health and Safety Act (“the OHSA”) for failing to ensure that a truck was rendered sufficiently inoperative while it was being serviced by one of its employees. . . . [more]

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

SCC: Uber Arbitration Unconscionable. Uber Is a Company Known for Pushing Limits, Did They Push Too Far This Time?

There is a class-action lawsuit by Uber drivers in Ontario against Uber alleging, among other things, violations of employment standards legislation. The main issue is whether Uber drivers are independent contractors as the Uber agreement says, or whether they are actually employees.

But before those issues could be heard, the courts had to decide whether those issues could be litigated in the courts, or whether they had to be decided through binding arbitration, as stated in the Uber agreement. The Supreme Court of Canada found the arbitration clause invalid because it was “unconscionable”, and thus the merits of the case . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Complainant Went the Wrong Way Down a Two-Way Street

Daniel Standing LL.B., Editor, First Reference Inc.

The process of accommodating an employee with a disability is frequently described as a two-way street. Employers must often be creative in finding meaningful ways for an employee to continue contributing to the workplace. It must make efforts to accommodate these employees to the point of suffering undue hardship.

Employees have an equally critical role to play. They must keep the employer informed of their prognosis, provide feedback and accept reasonable solutions that the employer proposes. An employee who refuses a reasonable accommodation proposal treads on very shaky ground. The possibility of continued . . . [more]

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