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Archive for ‘Case Comment’

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

Employer’s Ultimatum to Accept Changes or Quit Backfires

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

In McLean v Dynacast Ltd., 2019 ONSC 7146 (CanLII), the employer drastically changed the plaintiff’s job and forced him to accept the new arrangement or quit. The plaintiff chose the latter option and successfully sued for constructive dismissal. In accepting the plaintiff’s claim, the court summarized recent case law on mitigation, and awarded significant aggravated or moral damages to the plaintiff. . . . [more]

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

It’s Not as Bad as You Think, Quitting Employee Learns

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

No one wants to work in a toxic work environment. Some may persevere despite the negativity. Others may make a formal complaint and await an investigation, while others may resign. In Gibb v. Palliser Regional School Division No 26, 2020 ABQB 113 (CanLII), Madam Justice J.C. Kubik considered the plight of an employee who chose the third option and then sued her former employer alleging constructive dismissal. Before rejecting the claim, the court summarized the law on resignations and constructive dismissal. Ultimately, while an employee may feel that a workplace . . . [more]

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

Security of Sex Workers Paramount in Court Decision

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

The recent criminal case of R. v. Anwar, 2020 ONCJ 103 (CanLII) involved a constitutional challenge to various provisions of the Criminal Code dealing with prostitution. The challenge contained a distinct workplace safety consideration: it alleged that the interplay between the challenged sections created a legal regime which was intended to prevent sex workers from lawfully using third parties to protect them and to prevent them from associating with others for their mutual protection-aspects which are natural, expected and encouraged in all other sectors of the economy. Before eventually declaring . . . [more]

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

Revisiting R v. S. (R.D.), 1997: A Case About a Black Judge on “Trial” for Acquitting a Black Boy

“It wasn’t that long ago in Canada when our justice system put a Black judge on trial for acquitting a Black boy of allegedly running his bike into an officer’s leg – her offence? Speaking truth to power by stating that sometimes police over-react when dealing with Black youth.” – Professor David Tanovich @dtanovich 

In R v S. (R.D.), 1997 CanLII 324 (SCC), R.D.S. was a young person accused of assaulting a police officer. At trial, the testimonies of the police officer and the accused differed in material ways. The trial judge acquitted R.D.S. after trial. The case . . . [more]

Posted in: Case Comment

Provincial Insolvency Decision Hangs in Balance

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

On March 26, 2020, the Supreme Court of Canada granted leave to appeal the decision of the Alberta Court of Appeal in Canada v. Canada North Group Inc., 2019 ABCA 314 (CanLII). The decision canvasses the priority that attaches to money that is borrowed in restructuring proceedings to preserve value in an insolvent company. The decision considered whether these charges rank ahead of other claims that are also granted priority under federal legislation. The issue, therefore, was the relative ranking of “super-priority” court-ordered charges in proceedings under the Companies’ Creditors . . . [more]

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

Court Awards Aggravated Damages in Wrongful Dismissal Case

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

The case Acumen Law Corporation v Ojanen, 2019 BCSC 1352 (CanLII) tells the story of the abrupt and acrimonious end of an articling student’s employment with a law firm. The court rejected the range of factors purported to support just cause and, in addition to ordinary damages for breach of contract, awarded the employee aggravated or moral damages because of the way she was fired. The case serves as an important reminder to employers about the seriousness of misconduct required to support just cause, and should also encourage employers to think . . . [more]

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

Open Question of Jurisdictional Boundaries of Labour Arbitrators and Human Rights Tribunals Makes Its Way to the Supreme Court of Canada

Written by Lewis Waring, Paralegal, Student-at-law, Editor, First Reference Inc.

Effects of unionization on the employment relationship

Unions have a variety of significant effects on the employment relationship and greatly affect the rights and obligations of employers and employees. The repercussions of unionization are so significant that the law surrounding unionized workplaces is considered to be an entirely distinct area of law from law surrounding non-unionized workplaces.

One such difference related to unionization is the legal path workers are allowed to take when confronted with a human rights issue in the workplace. In such a case, a non-unionized worker could . . . [more]

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

Alberta Appeal Court Takes a Hands-on Approach in Sexual Assault Termination Case

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

The Court of Appeal of Alberta’s decision in Calgary (City) v Canadian Union of Public Employees Local 37, 2019 ABCA 388 (CanLII) overturns a decision on judicial review that upheld an arbitrator’s decision to reinstate an employee who had been terminated from his employment for sexual harassment. The decision serves as a powerful reminder that sexual assault is inherently serious and, when coupled with a breakdown in trust arising from the perpetrator’s dishonesty, a termination will likely be the result. . . . [more]

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

Unjust Termination Case Proves Costly for Employer

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

In Liebreich v Farmers of North America, 2019 BCSC 1074 (CanLII), the plaintiff brought an action for wrongful dismissal against her former employer and a group of entities she claimed were jointly and severally liable. The court was required to first conclude that the plaintiff was a dependant contractor, and that several of the entities were jointly and severally liable. In addition to having to pay reasonable notice to the plaintiff, the employer’s blameworthy conduct in carrying out the termination led to an award of punitive and special damages. . . . [more]

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

Employers Must Ensure All Overtime Work Complies With Employment Standards

Written by Lewis Waring, Paralegal, Student-at-law, Editor, First Reference Inc.

In the federally regulated employment sector, working overtime hours is subject to a number of requirements under the Canada Labour Code. Although such legislation requires that any and all overtime work be compensated adequately, even providing such compensation does not ensure that employers in the federally regulated sectors are in compliance with their obligations. In a recent decision, an Ontario court decided an employer’s policy and labour practices regarding overtime hours failed to comply with the Canada Labour Code in a dramatic and broad class-action lawsuit brought by a . . . [more]

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