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Archive for ‘Case Comment’

Supreme Court of Canada Refuses to Hear an Appeal on Campbell River Family Status Test

A previous Slaw article (which you can read here) discussed the recent British Columbia Court of Appeal decision that confirmed that the stringent test set out in Health Sciences Assoc of BC v Campbell River and North Island Transition Society (Campbell River) to determine if there was a duty to accommodate based on family status and if there is a prima facie case of discrimination based on family status, continues to be the applicable test in British Columbia.

Since this decision, the employee was seeking leave to appeal to the Supreme Court of Canada to address the inconsistency in . . . [more]

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

Employee Entitled to Rescind Retirement Notice

The Ontario Court of Appeal has ruled that an employee had the right to unilaterally revoke her notice of resignation due to changing circumstances, and was wrongfully dismissed when her employer would not allow her to do so.

Quick facts

December 31, 2016, a 64-year-old employee resigned after her employer said it would be implementing a new computer system, citing her concern with learning a new system. The employee’s supervisor offered the employee an opportunity to reconsider and told the employee she could revoke the notice if she changed her mind.

On October 11, 2016, the employer announced it wouldn’t . . . [more]

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

Confirmation of Stringent British Columbia Test for Family Status Duty to Accommodate

A recent British Columbia Court of Appeal decision confirmed that the stringent test set out in Health Sciences Assoc of BC v Campbell River and North Island Transition Society (B.C.C.A., 2004 “Campbell River“) to determine if there was a duty to accommodate based on family status and if there is a prima facie case of discrimination based on family status, continues to be the applicable test in British Columbia. . . . [more]

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

Contrasting Petersoo v. Petersoo and Moore v. Apollo Health [And] Beauty Care: Should a Judge or Arbitrator Ever Become an Advocate?

The Ontario Court of Appeal recently held in Petersoo v. Petersoo that a family law arbitrator should not ensure that a represented party is aware of an issue that is raised in the arbitration. This contrasts with Moore v. Apollo Health [and] Beauty Care, in which the Court of Appeal determined in 2017 that a judge who did not ensure that an unrepresented plaintiff who had intended to raise a claim had failed in his responsibility. . . . [more]

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

Years Spent as Contractor to Be Included in Calculation of Reasonable Notice

A recent decision of the Ontario Superior Court in Cormier v 1772887 Ontario Ltd., 2019 ONSC 587 (CanLII) involved the number of years of service that were included in the calculation of notice, whether a termination clause was valid, and also if inappropriate deductions were made from the employee’s pay.

Quick facts

The employer operated a business across Canada that involved marketing and advertising.

A long-time employee (with almost 23 years of service) was dismissed without cause and claimed $136,577.75 in damages for wrongful dismissal. In her claim, the employee submitted that she was entitled to 24 months of . . . [more]

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

How the Process of Decision-Making Might Affect the Result: The Example of a (Real Estate) Licence Appeal Tribunal Decision

An article in the real estate section of The Globe and Mail last Friday left me somewhat aghast at what appeared to be an outrageous denial of the Real Estate Council of Ontario’s (“RECO”) attempt to revoke the licence of one of its realtors. (This was no doubt what the writer, Shane Dingman, intended!) I checked out the actual Licence Appeal Tribunal (Safety, Licensing Appeals and Standards Tribunals Ontario) (“the Tribunal”) decision in Akbar Zarehhossainabadi, Kingsway Real Estate Ince. and Rouhollah Houshmand v. Registrar, Real Estate and Business Brokers Act 2002. The decision provides an informative example of how . . . [more]

Posted in: Case Comment

24-Month Upper Limit Reasonable Notice Period Reinstated

The case of Dawe v. Equitable Life Insurance Company 2018 ONSC 3130, which extended the 24-month upper limit on the reasonable notice period for an older, long-term, senior manager who was unable to secure comparable employment to 30 months; and were the motion judge stated that, if asked, he would have awarded 36 months, was appealed.

You can read more on the motion judge’s decision on Slaw here.

On appeal, which decision (Dawe v. Equitable Life Insurance Company of Canada 2019 ONCA 512) was released on June 19, 2019, the appeal’s judge held that the motion judge’s approach . . . [more]

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

Has the Ontario Court of Appeal Issued an Invitation to Sharp Practice?

Christopher Callow provided summer and winter maintenance to ten residential condominiums at Baycrest Gardens. The condos are managed by Condominium Management Group (CMG) and in particular by Tammy Zollinger, a Property Manager. A representative of each of the condo corporations formed the Joint Use Committee (JUC). CMG terminated Mr. Callow’s winter maintenance contract earlier than expected and did not offer him, contrary to his expectations, a subsequent winter contract.

Justice O’Bonsawin at trial, after a lengthy consideration of the testimony of Mr. Callow and seven witnesses for CMG, as well as the circumstances surrounding performance of the winter contract, . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Workplace Culture That Includes Racism Is Very Costly for Employer

Recently, a Nova Scotia Human Rights Board of Inquiry awarded a record $593,417 in damages, including $105,650 for injury to dignity and $433,077 for wage loss, to a former Halifax transit worker employed as a mechanic who suffered racial harassment and discrimination at work.

In a previous ruling released in March 2018, Nova Scotia Human Rights Commission board of inquiry chair Lynn Connors found widespread racial discrimination and a poisoned work environment at Halifax Transit’s garage. The Halifax Regional Municipality (HRM) was found vicariously liable for the actions of their employees.

Connors stated,

“I find based on the facts

. . . [more]
Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

Applying Habeas Corpus in Immigration Cases: Bringing Nuance to the Jurisprudence?

Although the ancient writ of habeas corpus is a significant protection against arbitrary detention (more recently acknowledged through section 10(c) of the Canadian Charter of Rights and Freedoms), our courts have developed two circumstances in which it is not available because other remedies are equally effective, providing the same advantages to those who would claim it. Thus prisoners are not able to call on habeas corpus to challenge their conviction or sentence, since they can adequately appeal both under the Criminal Code. Habeas corpus is also displaced when a statutory scheme provides equivalent protection against arbitrary detention. Canada . . . [more]

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

Under the Circumstances, the Employee Cannot Claim He Did Not Receive Written Notice

The New Brunswick Labour and Employment Board had to decide whether or not the employee received the written notification that he had been dismissed for cause, as required under the Employment Standards Act, and whether the employee is entitled to the statutory notice.

What happened?

The employee worked for the employer as a meat cutter for more than five years.

One day, the employer called the employee back into the office to fire him. The employer handed the employee a copy of the termination letter that contained written reasons for the employee’s dismissal. However, the employee stormed out without . . . [more]

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

A Tale About Rehiring a Sexual Harasser: Who Wins and Loses?

Today’s “#MeToo” climate and questions about when someone who has been accused of sexual misconduct, although not convicted of it, should be allowed back into the public sphere (to direct films, do comedy routines, assume an executive role in business or whatever) has been much in the media recently. Although not explicitly, a recent decision of the Ontario Court of Appeal tells us that even if the impact of someone’s return might have significant impact on a victim’s working — and broader — life, return may occur. The final result in Colistro v. Tbaytel 2019 ONCA 197 is not unlike . . . [more]

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