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Archive for ‘Case Comment’

Employers Seeking Review of OLRB Orders Must Pay to Play

Written by Lewis Waring, Paralegal, LL.B., Articled Clerk, Editor, First Reference Inc.

In a recent ruling, an employer’s application for review of an order to pay was denied after the employer failed to provide the required deposit. The employer had stated it had no ability to pay the deposit due to the COVID-19 pandemic, but the Ontario Labour Relations Board refused to waive the deposit. The employer offered to enter a payment plan, but the Ontario Labour Relations Board also rejected this suggestion. . . . [more]

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

Low Ball Settlement Offer Costs Employer

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

In his brief reasons for the decision on a motion concerning costs, Justice Frederick Myers of the Ontario Superior Court of Justice didn’t mince words. Focused squarely on issues of fairness and access to justice, the judge awarded significant costs to the plaintiff in a wrongful dismissal matter while providing clear guidance to employers about how to handle such situations.

The decision in Court File Number CV-20-00646993 followed a written hearing at the end of October 2022. The judge noted that the litigation was all about money, and it wasn’t the . . . [more]

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

Court Sinks Teeth Into Bad Contract

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

It’s often said that the employer-employee relationship is one that can easily reflect a power imbalance, leading courts to look very carefully at the provisions of employment contracts to make sure they are clear and legally enforceable. Recognizing that employers can take advantage of unsuspecting employees by couching unfair conditions in legalese, courts sometimes resort to the principle of contra proferentem to resolve ambiguity in favour of the weaker party. Other times, they will declare portions of the contract void for running contrary to legislation. A recent decision of Ontario’s Superior . . . [more]

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

To Be or to Be Enforceable As? That Is the Question

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

The beginning of Prince Hamlet’s soliloquy may have had a nicer ring to it, but the above title captures the essence of the issue in a recent British Columbia decision. In British Columbia (Director of Employment Standards) v. Kwok, [2022], the Court of Appeal sheds light on the limitation period that applies to a determination of the Director of that province’s Employment Standards Branch filed with the Supreme Court registry. Forced to choose between three options, the court settled on the longest one, a 10-year limitation period. As it turns . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Employer’s Immoral Manner of Dismissing Long Term Worker Deserving of Punishment

Written by Lewis Waring, Paralegal, LL.B., Articled Clerk, Editor, First Reference Inc.

In a recent Ontario Superior Court ruling, an employer was ordered to pay a wrongfully dismissed employee $10,000 in punitive damages and $45,000 in aggravated damages on top of 24 months of pay in lieu of notice. In total, the employee was awarded approximately $150,000 in damages. The additional damages that were awarded made up one-third of the total amount and were awarded due to the employer’s conduct that it displayed when dismissing the employee. While its wrongful dismissal of a loyal long-term employee was egregious, the . . . [more]

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

A Tip: It Pays to Know the CRA Rules on Gratuities

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

Thankfully for servers who work in restaurants, most patrons aren’t like Mr. Pink from the movie Reservoir Dogs who refused to tip. The practice of tipping used to strictly involve cash, but in more recent times, when customers pay for their meals electronically, they often include a tip, leaving it up to the employer to dole them out. The question at issue in 2022 FCA 151 is whether the employer’s payout of tips to its servers is to be considered contributory salary under the Canada Pension Plan, and insurable earnings under . . . [more]

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

Small Employer’s Lack of Understanding Not Excuse for Dual Discrimination

Written by Lewis Waring, Paralegal, LL.B., Articled Clerk, Editor, First Reference

In a recent Alberta ruling, a small employer was found to have discriminated against its employee on the grounds of family status when it removed her role and dismissed her for cause following the resignation of her common-law spouse. Given its refusal to recognize the employee’s taking of medical leave in her final days of employment, the employer was also liable for disability discrimination under the Alberta Human Rights Act. . . . [more]

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

The Need to Act Fast in the Face of Major Change

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

The law doesn’t easily tolerate those who sleep on their rights. In the world of wrongful dismissal, the adage “you snooze, you lose” rings particularly true. A recent decision of the Court of Appeal for Alberta (2022 ABCA 230) illustrates how an employee’s delayed objection to significantly changed terms of employment can leave them stuck with the changes. The court also provides helpful advice about factors that might serve to lengthen or shorten the amount of time an employee has to think before choosing to act. . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Competition, Solicitation and Medication… but No More Injunction

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

This is a complex Alberta case: 2022 ABQB 58 (CanLII)-both for its facts, and the law the court applies. At its heart, it’s an employment case because it deals squarely with an employer’s access to certain revenue, without which it can’t operate. Essentially, it’s about whether an interim injunction cutting a Calgary pharmacy off from a major segment of its client base should be allowed to stand. These clients, formerly the applicants, started buying their drugs across the street at a pharmacy run by some of its former employees. One . . . [more]

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

Employer Vicariously Liable for Employees’ Dangerous Data Breach

In a recent British Columbia class action ruling, the Insurance Corporation of British Columbia (employer) was found vicariously liable for the actions of an employee who fraudulently accessed personal information maintained by ICBC. ICBC was ordered to pay damages to the members of a class action as a result of the privacy breach. . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Uncomfortable Situation a Punishable Offence Says Arbitrator

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

A recent British Columbia arbitration case provides employers several kernels of wisdom respecting the investigation and punishment of conduct that violates a respectful workplace policy. Largely centered on the witnesses’ credibility, 2022 CanLII 60943 (BC LA) is a case that employers can turn to for guidance when dealing with such uncomfortable situations. . . . [more]

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

OPP’s DNA Sweep Discriminates Against Migrant Workers

In a recent Human Rights Tribunal of Ontario ruling, it was found that the Ontario Provincial Police violated the human rights of a large number of migrant workers based on race, colour and place of origin, when it conducted a DNA sweep during a criminal investigation of a sexual assault. The HRTO noted in particular that the OPP sought and collected DNA from all migrant workers, regardless of whether they met the victim’s description or had an alibi, and the OPP failed to adequately ensure that vulnerable workers were able to provide voluntary and informed consent to the DNA . . . [more]

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