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Archive for ‘Case Comment’

Toronto Transit Commission Awarded Costs Despite Lack of Time Dockets

A trial judge has awarded the Toronto Transit Commission (“TTC”) costs after the completion of a four day trial, despite the fact that the TTC used one of its in-house lawyers to argue the case and despite the fact that the TTC lawyers do not maintain time dockets.

The TTC’s Bill of Costs included estimates of time expended for tasks performed during the course of the litigation. The estimates were based on a “detailed review of the complete file including all correspondence, records, internal notes, memos, emails, etc.” The TTC then applied an hourly charge of $240 to its estimate . . . [more]

Posted in: Case Comment

Employer Dodges Penalty After Failing to Adhere to Re-Employment Obligations

The Ontario Workplace Safety and Insurance Appeals Tribunal (WSIAT) recently addressed if and when a penalty should be imposed on an employer who failed to adhere to their re-employment obligations when it comes to employees who get hurt on the job. In this particular case, the Panel decided that a re-employment penalty would not be imposed on the employer, in part because the worker’s conduct played a substantial role in the termination of his employment. . . . [more]

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

Supreme Court Rules on Drug-Related Dismissal

On June 15, 2017, the Supreme Court of Canada dismissed an appeal in a case involving an Alberta worker who was fired by a mining company after testing positive for drug use. In an 8–1 ruling, the court said the Alberta Human Rights Tribunal was right to conclude that the man was fired for breaching the company’s drug policy, not because of his addiction. Moreover, the Supreme Court of Canada found the employer didn’t fire the employee for the addiction to drugs, but for breaching the employer’s drug policy to self‐report his drug use. . . . [more]

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

Nova Scotia Human Rights Board Orders Employee Insurance Plan to Cover Medical Marijuana Expenses

A recent decision out of Nova Scotia has ordered an employee insurance plan to cover medical marijuana expenses.

Gordon “Wayne” Skinner was an elevator mechanic who developed both physical and mental disabilities as a result of an on-the-job motor vehicle accident in August, 2010. The accident left Wayne unable to work and qualified him for permanent impairment and extended earnings replacement benefits.

For the two years following the accident Wayne attempted to treat his disabilities exclusively through narcotic and non-narcotic pain medication and anti-depressants without success.

In 2012, Wayne obtained a prescription and license to consume medical cannabis. Wayne found . . . [more]

Posted in: Case Comment

Employee Suffering From Alcoholism Reinstated After Unjust Termination

Written wholly by Cristina Lavecchia, Editor at First Reference

The issue in this matter was whether or not the employee was terminated for just cause. It was the employer’s position that it properly terminated the employee for just cause. That is, the employee was absent without leave for a four-week period, the employer attempted to contact the employee to no avail, and the employee failed to contact the employer or provide any information of a medical nature to explain his absence. The Arbitrator in this matter, however, did not quite agree with the employer. In essence, the Arbitrator expressed that . . . [more]

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

Sask. C.A. Says Pending Legalization of Cannabis “Irrelevant” Gives Trafficker 15 Month Sentence

Last June, a judge of the Saskatoon Court of the Queen’s Bench handed out a suspended sentence to Seamus John Neary after he was convicted of possession for the purpose of trafficking and trafficking over 20 pounds of cannabis.

What made the decision especially notable was the fact that the judge cited the imminent legalization of cannabis as a basis to deviate from what would otherwise be a sentence of 15 – 18 months in custody. The judge noted that in the circumstances there was “an interregnum, a time that exists between two governing regimes” and stated

[Neary] has conducted

. . . [more]
Posted in: Case Comment

Corporate Directors Found Liable for Employees’ Unpaid Wages

The Saskatchewan Labour Relations Board (Board) notes that the following case is a “cautionary tale” for corporate directors. That is, the corporate directors in this case, unfortunately, “failed to scrutinize rigorously” the information provided to them by management and effectively left the day-to-day workings of the business’ operations solely to the owner, much to their detriment. . . . [more]

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

Seven Years After Bill 168, We Learn It Is Costly Not to Comply With Violence Provisions Under OHSA

It has been a little under seven years since Bill 168 made amendments to Ontario’s Occupational Health and Safety Act (OHSA) by adding employer obligations regarding the prevention of workplace violence and harassment. Considering the release of recent employer convictions for failing to comply with employer obligations to prevent and protect workers from violence under OHSA, we thought it would be good to look at some of these cases and revisit the legislation to help employers understand those obligations and comply. . . . [more]

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

Partisan Political Arguments in the Workplace, Part 2

In February, we posted a discussion with respect to how workplace political expression could go awry with human rights law. The article also provided best practices on how human resources professionals and employers can appropriately address human rights complaints specifically on the basis of political belief, activity or association. However, a comment sparked further discussion on how workplace political expression could also contravene harassment provisions under occupational health and safety legislation. . . . [more]

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

What Rights Do Commercial Landlords Have When a Tenant Defaults?

The Ontario Superior Court of Justice has reaffirmed that when a commercial tenant fundamentally defaults on its lease, the landlord is entitled to treat the lease as ongoing and sue for rent, as it comes due, without any obligation to mitigate.

 

In the instant case, the tenant, Pet Valu Canda Inc., ceased paying rent to the landlord. The landlord did not terminate the lease and instead elected to sue for ongoing arrears of rent.

 

The landlord moved for partial summary judgment on the rent that had already accrued and was undisputedly owing at the date of the motion. . . . [more]

Posted in: Case Comment, Substantive Law

What Makes a Proper Affidavit?

In opposed motions, many arguments masquerade as affidavits. This is improper. For the most part, legal argument should be confined to factums.

In Ferreira v. Cardenas, 2014 ONSC 7119, Justice Myers eloquently sets out the rules on affidavits sworn in support of motions:

[14] Lawyers’ affidavits can be quite helpful in cases where the lawyers, or their staff, have particular knowledge relevant to the facts in issue before the court. In Mapletoft v. Christopher J. Service2008 CanLII 6935 (ON SC) at para. 15, Master MacLeod provided the following guidelines for the use of lawyers’ affidavits:

  1. For the
. . . [more]
Posted in: Case Comment

ONCA Clarifies Scope of Court’s Jurisdiction to Award Costs Against Non-Parties

In what is certainly the most significant decision regarding the court’s ability to award costs against non-parties in over 45 years, the Ontario Court of Appeal has clarified the source of the court’s jurisdiction to award costs against non-parties and the applicable tests to be applied.

Chief Justice Strathy, writing for a unanimous court, noted that there had been considerable ambiguity in the case law as to whether the court possesses inherent jurisdiction, in addition to its explicit statutory jurisdiction, to award costs against a non-party. Strathy C.J.O. concluded that the court does in fact possession inherent jurisdiction in addition . . . [more]

Posted in: Case Comment, Practice of Law