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Archive for ‘Case Comment’

Termination Timing Proves Critical in COVID Climate

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

The Ontario Superior Court of Justice’s decision in Yee v Hudson’s Bay Company, 2021 ONSC 387 is welcome news for anyone wondering about COVID-19’s effect on a reasonable notice period. For all of the upheaval that the pandemic has caused, it proved to be of little consequence to the notice owed to a dismissed company executive in this case. . . . [more]

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

Employee Walks Fine Line on Confidentiality Breach

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

Every employer is properly concerned about its reputation. But how far can an employer go to make sure that its “dirty laundry” stays hidden away? Can an employee be disciplined for discussing their employer’s private matters, or can an employer insist that “what happens at work stays at work”? Questions like these about an employee’s duty of loyalty and the consequences of a breach of confidentiality are central to the Alberta Labour Relations Board’s decision in Ann’s Day Care Ltd. v Michelin, 2020 CanLII 104967 (AB ESA). . . . [more]

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

Teacher Reinstated and Educated Following Anti-Indigenous Racism

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

In Saskatchewan Polytechnic Faculty Assn. and Saskatchewan Polytechnic (Derow), 2020 CanLII 78471 (SK LA), Re (“Derow”), a unionized teacher’s dismissal related to racist comments against indigenous persons was set aside and he was reinstated to his position with conditions.

The teacher, in this case, had been working for Saskatchewan Polytechnic for 34 years and had been employed in the school’s carpentry program. Instead of dismissal, the arbitrator held that the employee would be suspended for six months and required to undertake appropriate education. Upon his return to work, the . . . [more]

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

Invalid Termination Clause Prompts Damages Payment

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

The Ontario Superior Court of Justice issued a ruling in Sager v. TFI International Inc., 2020 ONSC 6608 which considered an interesting contract interpretation issue that arose in the underlying wrongful dismissal claim. The termination clause appeared to be generous to the employee but was ultimately found invalid for violating the Canada Labour Code. As a result, the employee was entitled to more notice than he received under the contract. . . . [more]

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

No Disability or Age Discrimination Against Employee Offered Early Retirement

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

In Nowicki v Labourer’s International Union of North America (LIUNA) Local 1059 (“Nowicki”), the Human Rights Tribunal of Ontario found that an employer’s offer of retirement, although it was an explicit attempt to remove an employee from her office, was not discriminatory under the Human Rights Code (“Code“) because it was not based upon her age or a disability. This finding was significant because the employee did in fact have a history of suffering from a disability, namely, depression. Also, the finding in Nowicki is significant because her age, being in . . . [more]

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

Employee Wins Pre-Trial Procedural Point on Pleadings

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

 
The Ontario Superior Court of Justice put forward several motions in a wrongful dismissal case, Kaminsky v. Janston Financial Group, 2020 ONSC Number 5320 (CanLII) via Zoom in August. The parties ended up in court following Carolyn Kaminsky’s dismissal from her position within her family’s business. The decision turned on a point of civil procedure and provides employers with insight into what they may argue at trial based on their knowledge of facts amounting to just cause at the time of dismissal. . . . [more]

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

Alcoholic Employee Accommodated to the Limit of Undue Hardship

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

The recent New Brunswick labour arbitration decision in Unifor, Local 907 and J.B. v Irving Paper Limited, 2020 CanLII 38613 (NB LA) tells the unfortunate tale of an alcoholic’s losing battle to overcome his addiction and losing his job in the process. The decision provides helpful insights into how far an employer can or should go in accommodating this disability. The decision will be of particular interest to employers who operate safety-sensitive operations, and to employees who may be uncertain of the role they must play in the search for a . . . [more]

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

Employee Wins Historic Amount of Damages for Sexual Harassment and Workplace Discrimination

by Lewis Waring, Paralegal, Law Student, Editor, First Reference Inc.

In NK v Botuik (“Botuik”), the Human Rights Tribunal of Ontario (HRTO) awarded a former employee $170,000.00 for sexual harassment and gender discrimination, the second-highest amount of damages ever awarded in Ontario. The employer, in this case, Alan Stewart Homes Limited, owned and operated a number of group homes that served individuals with significant disabilities. Tenants at the employer’s group homes were disabled such that they were unable to live independently and were also incapable of caring for themselves in relation to everyday activities. The employee worked at one of . . . [more]

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

Callow, Fraser and G: Perspectives on the Role of Law and of the Courts

Three recent Supreme Court of Canada decisions illustrate the very different perspectives or philosophies the judges bring to their consideration of the cases before them. The most recent, CM Callow Inc. v. Zollinger, dealt with the duty of honest performance in contract law, while the other two were concerned with equality issues: Fraser v. Canada (Attorney General), which considered whether the RCMP pension plan discriminated against members (primarily women) who shared jobs, and Ontario (Attorney General) v. G, involving the different treatment of persons found guilty of a sexual offence and those who had committed a sexual . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Tribunal Finds No Link Between Disability and Dismissal

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

Neil Patzwald was an engineer who worked at FMC Corporation from March 2011 to September 2013. His short tenure was marked by multiple lengthy absences for medical reasons, disagreements with his superiors about his abilities and suitability for his position-culminating in an acrimonious end to the employment relationship. Since it became apparent the employee had a disability, the case became centered on the employer’s duty to accommodate Mr. Patzwald. The British Columbia Human Rights Tribunal determined that the company did not discriminate against Mr. Patzwald on the basis of disability contrary . . . [more]

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

Adducing Sensitive Evidence and Writing Decisions: Where Do We Draw the Line?

In my November 17th Slaw post “Making the Hard Decisions: Ethical Lawyering”, I discussed Dean Embry’s refusal to make certain arguments and call certain evidence and witnesses in his representation of James Sears, editor of Your Ward News (YWN), a community newspaper. Sears was convicted of spreading hate and, despite his accepting these views about what might be successful in his defence, a ground of his appeal was that Embry was incompetent because of his (Embry’s) failure to argue the truth of the content of YWN. In this post, I’m raising another issue related to the trial decision in the . . . [more]

Posted in: Case Comment, Miscellaneous

Hidden Harsh Termination Clause Voids Contract

By Lewis Waring, Paralegal, Studen-at-Law, Editor, First Reference Inc.

In Battiston v Microsoft Canada Inc (“Microsoft”), an employee was wrongfully dismissed because his employer had failed to bring a harsh termination clause to his attention. The Ontario Superior Court of Justice’s decision in Microsoft resulted from a combination of the fact that the clause was relatively harsh as well as the fact that the employer had buried the clause deep within his employment contract and failed to sufficiently notify the employee of its contents.

The employer, in this case, was Microsoft Canada Inc, a subsidiary of Microsoft Corp, a global . . . [more]

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