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Archive for ‘Case Comment’

Accommodating Employees With Disabilities: What You Don’t Know Can Hurt You!

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

Employers of workers with disabilities need to know the ins and outs of their duty to accommodate. The law intends the accommodation process to be collaborative, allowing the employer, union and employee the ability to make suggestions, compromise and, hopefully, arrive at a mutually agreeable solution. In Singh v Dodd’s Furniture (No. 2), 2021 BCHRT 85, the British Columbia Human Rights Tribunal found that a furniture store discriminated against its worker after it received some bad advice about how to go about accommodating him. The furniture store made an “ill-informed . . . [more]

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

The Agricultural Employees Protection Act: How Much Protection?

In my last post, I considered the Ontario Agricultural, Food and Rural Affairs Appeal Tribunal’s (“AFRAAT) and Ontario Divisional Court’s rejection of the United Food and Commercial Workers International Union’s (“UFCW”) constitutional challenge to the Agricultural Employees Protection Act (“AEPA”). Here I argue that the AFRAAT and the Divisional Court have reinforced the distinctions between the AEPA and the Labour Relations Act, 1995 (“LRA”). In doing so, they refused the Supreme Court of Canada’s invitation in Fraser to be flexible in their interpretation of the AEPA. . . . [more]

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

The Math Confirms It: Contract Clarity Is Good

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

John Locke once lamented the limited ability of language to express an idea when he said, “So difficult it is to show the various meanings and imperfections of words when we have nothing else but words to do it with.” He could very well have been talking about an employment contract dispute. An employee may try to introduce ambiguity into a provision that the employer considered watertight at the time of drafting. In this article, Bryant v Parkland School Division, 2021 ABQB 391, a case in which the plaintiffs sought . . . [more]

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

Constitutionality of the Agricultural Employees Protection Act: Round Two

INTRODUCTION

The Supreme Court of Canada in Fraser concluded that, with the minor adjustment of reading in an additional provision, the Ontario Agricultural Employees Protection Act (“AEPA”) is constitutional. In UFCW v. MedReleaf Corp. Phase 2 (“MedReleaf”), the Ontario Agricultural, Food and Rural Affairs Tribunal (“the Tribunal”) concluded that the caselaw since then does not warrant a different outcome. The recent Divisional Court decision in United Food and Commercial Workers International Union v. Aurora Cannabis Enterprises Inc. (“Aurora”) upheld the Tribunal’s decision.

The United Farm and Commercial Workers International Union (“UFCW”) had also brought complaints about MedReleaf’s conduct during the . . . [more]

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

Failure to Mitigate Leads to Reduced Dismissal Damages

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

In Moore v Instow Enterprises Ltd, (2021 BCSC 930) (“Moore”), a British Columbian employee was entitled to less notice than the standard amount of one month per year of service mainly due to his failure to mitigate his losses. By refusing to make a reasonable attempt to find alternative similar employment, the employee failed to meet his obligation to mitigate his loss of income as a result of his dismissal. . . . [more]

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

Charter Compliant: COVID Travel Restrictions

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

COVID-19 has caused much suffering and death worldwide since its discovery in late 2019. Part of Canada’s response has been tightening restrictions on those who enter Canada by air by enacting emergency orders under the federal Quarantine Act. These measures were the focus of a wide-ranging Canadian Charter of Rights and Freedoms (Charter) attack by several applicants in the Federal Court case of Spencer v Canada (Health), 2021 FC 621 (CanLII). With two limited exceptions, Chief Justice Paul Crampton rejected the claims that the emergency orders were unconstitutional. The . . . [more]

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

Pandemic Pay Cuts Not Applicable to Dismissed Employee

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

In Hunsley v Canadian Energy Services LP, 2020 ABQB 724 (CanLII) (“Hunsley”), the Alberta Court of Queen’s Bench (“ABQB”) found that a wrongfully dismissed employee was entitled to receive his regular pay and benefits during his notice period despite the reality that the employer had reduced compensation for employees during a pandemic pay cut. Although workers who stayed actively employed during the pandemic were subjected to the employer’s unilateral pay cut, this cut was recognized to be an act of constructive dismissal and thus did not factor into the employee’s . . . [more]

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

Indigenous Woman’s Human Rights Case Gets Second Wind

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

Systemic racism can easily fuel discriminatory conduct, but it is notoriously hard to prove. In Ledger v Alberta Health Services and Alberta Justice and Solicitor General, 2021 AHRC 95, the Human Rights Tribunal of Alberta decided that an Indigenous woman’s case was dismissed too soon and should have instead gone to a full hearing. The decision provides a helpful overview of the law on discrimination, the interplay between race and changing societal values, and the prime importance of investigating and appropriately responding to discrimination complaints.

Facts of the case

Eileen Ledger . . . [more]

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

Cheesed Off Employee Loses Wrongful Dismissal Appeal

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

Dismissal for cause is frequently characterized as capital punishment in the employment realm. As a drastic solution, one would presume that an employer would only terminate a worker’s employment for good reason and with a firm sense of an employee’s wrongful conduct. A recent decision of the Manitoba Court of Appeal, McCallum v Saputo, 2021 MBCA 62 (CanLII), indicates that an employer’s position is not necessarily compromised if it fails to investigate suspected wrongdoing before dismissing an employee. The case stands for the principle that the employer does not have a . . . [more]

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

Determining Judicial Ethical Conduct: Not So Straightforward? Part I

INTRODUCTION

Time was the community or advocacy activity of lawyers with judicial aspirations centred around fundraising and other activities related to participation in our major political parties. Eventually, some of these lawyers found themselves rewarded with a judicial appointment. They cut their ties, as far as anyone knew, with their favoured party. It was not difficult to end their pre-judicial activity and remove themselves from community involvement. More recently, however, with the net for potential judges cast far wider in order to increase diversity on the bench, the community work aspirants engage in may be quite different. And so we . . . [more]

Posted in: Case Comment, Justice Issues

Facing Problems, Employer Buries Head in Sand

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

Many readers will remember the Bugs Bunny cartoons that featured an ostrich who would bury its head in the sand to avoid a predator or some other form of imminent danger. It turns out that ostriches do not really bury their heads in the sand to avoid problems, but the cartoon offers a nice analogy to the way the employer in Cybulsky v Hamilton Health Sciences, 2021 HRTO 213 (CanLII) handled one of its employees’ allegations of discrimination. In this case, the Human Rights Tribunal of Ontario considered the plight . . . [more]

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

Crown Immunity Means Tough Luck for the Police: A Good Call?

In Ontario (Attorney General) v. Clark (“Clark“), the majority (8 judges) of the Supreme Court of Canada held that Crown immunity precludes claims based on misfeasance in public office. Justice Côté dissented. Here I consider the policy underpinnings and ramifications of the two opinions. . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions