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

Human rights claims are often the result of an employee’s claim that their employer has failed to accommodate their needs. Whether such claims arise due to an employee’s disability, family status, gender, religion or any other human rights ground, employees have a duty to accommodate the human rights needs of their employees. However, the duty to accommodate does not require employers to provide employees with their ideal option. Instead, employees are only required to provide reasonable accommodation.

In a recent British Columbian human rights case, an employer fulfilled its duty . . . [more]

COVID-19 has delayed many civil jury trials, creating concerns of prejudice. In the recent decision of Saadi v. Silva, 2020 ONSC 6700, the plaintiff brought a motion to strike the jury after the trial was adjourned.

In October, a jury was selected for the Saadi v Silva matter. However, after jury selection, Premier Ford announced that Toronto would return to a modified Stage 2. As part of this return, in-person trials were to continue at the discretion of the trial judge. Since in this case, no evidence had been called and no opening statements were made, the jury . . . [more]

The Supreme Court of Canada’s decision in Fraser v. Canada (Attorney General), 2020 SCC 28 provides a sweeping overview of the law of adverse effect discrimination. This decision specifically targets the alleged discriminatory effect of the RCMP’s policy not to allow those who temporarily reduce their working hours under a job-sharing agreement to “buy back” these periods of reduced working hours for the purposes of their pension. In contrast, those who experienced gaps in their record of service by reason of suspension or spending time on unpaid leave did have the opportunity to buy back pensionable service time. After . . . [more]

The Supreme Court of Canada’s recent decision in Fraser v. Canada (Attorney General) (“Fraser”) illustrates the fissures on the Court in the judges’ approaches to equality undersection 15(1) of the Canadian Charter of Rights and Freedoms. Although there are also other factors explaining the differences in the majority and dissenting opinions, here I discuss three that are somewhat distinct from the facts of the case: the nature of “equality” under section 15(1); the interrelationship between the law and the social and economic context; and the role of the courts. . . . [more]

“Peremptory challenges, by enabling each side to exclude those jurors it believes will be most partial toward the other side, are a means of eliminat[ing] extremes of partiality on both sides… assuring the selection of a qualified and unbiased jury.” – Justice Scalia in Holland v Illinois.

Today, the Supreme Court of Canada heard arguments in the Pardeep Singh Chouhan case about the significance of peremptory challenges in jury selection. “Bill-C-75 — An Act to Amend the Criminal Code — came into effect on Sept. 19, 2019. The legislation modified the jury selection procedure under the Criminal Code by . . . [more]

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

The 2019 British Columbia labour arbitration decision regarding BC Hydro and Power Authority and IBEW, Local 258 (Vanegas), Re (2019 CarswellBC 4126), considered the case where a worker with a history of poor behaviour had an outburst in a fact-finding meeting. This culminating incident led to his dismissal. The arbitrator’s decision demonstrates the traditional analysis that takes place in disciplinary cases with a consideration for various aggravating and mitigating factors. In this case, despite the worker’s poor record and lack of remorse, several compelling mitigating factors convinced the arbitrator to substitute . . . [more]

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

In a previous First Reference article I wrote on our news service HRinfodesk, the Ontario Superior Court of Justice’s decision in which a successor employer was held liable for a 20-month notice period was written about because of the legislative presumption of continued employment in these circumstances. Readers may refer to that article for an overview of the key facts. Since then, the case was appealed and decided by the Ontario Court of Appeal. In rendering its decision, the court analyzed the common law approach to the calculation of reasonable notice, concluding . . . [more]

By Lewis Waring, Paralegal, Student-at-law, Editor, First Reference

In Underhill v Shell Canada Limited, 2020 ABQB 341, the Court of Queen’s Bench of Alberta decided that a senior employee had been wrongfully dismissed after she became tangled up in a subordinate’s attempt to bid on a project independently of the employer.

The employer’s reason for the senior employee’s dismissal had been that she had engaged in misconduct in her handling of the subordinate’s bid attempt. However, the court found that her behaviour was not serious enough to merit her dismissal for cause. Instead, the employer should have responded to . . . [more]

In my last Slaw post, I discussed Morgan J.’s decision in Canadian Civil Liberties Association v. Attorney General of Ontario (CCLA v. AG Ont.) to grant standing to the Canadian Civil Liberties Association to challenge the government’s requirement that gas station operators post a sticker on each gas pump. The standing decision stands for two major points: the CCLA’s expertise did not have to relate to the selling of gas or regulations governing it, but it was sufficient that it related to constitutional issues; and it had shown its interest by identifying its concerns to the government . . . [more]

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

A recent decision from Ontario’s Divisional Court illustrates an important point about the concept of notice in Ontario employment contracts. This point concerns the relation between the Employment Standards Act, 2000 (“ESA”) and Ontario common law. This important point is that employees are, by default, entitled to common law reasonable notice. Common law reasonable notice is roughly equivalent to one month of compensation for each year of employment. In comparison, minimum notice entitlements under the ESA are limited to one week per year of employment.

Employers who wish to prevent their . . . [more]

“A litigation culture has arisen in this province over the last three decades which extols creating and litigating peripheral procedural disputes, instead of moving towards the timely adjudication of disputes on their merits. That culture now lauds, as the skilled barrister, the motions specialist, not the final hearing expert.” – Justice David M. Brown 

Given the hurdles presented by COVID-19, the Ontario courts are trying to shift the litigation culture away from litigating peripheral procedural disputes. It was recently acknowledged in a motion to consolidate two matters in Klassen v Klassen, 2020 ONSC 4835, that “[COVID-19] shut down Ontario’s . . . [more]

In 2019, the Ford Government announced it would require gas station operators to post stickers about the impact of the federal government’s fuel charge on the price of gasoline. The Ontario Government’s response to the Canadian Civil Liberties Association’s (CCLA) challenge to the legislation not only defended on the merits, but also argued the CCLA did not have standing to bring its claim. The Ontario Superior Court of Justice rejected both positions in The Corporation of the Canadian Civil Liberties Association v. The Attorney General of Ontario (CCLA v. AG Ont.). Here I focus on Justice Ed Morgan’s determination on . . . [more]