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Archive for ‘Case Comment’

Employers Must Ensure All Overtime Work Complies With Employment Standards

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

In the federally regulated employment sector, working overtime hours is subject to a number of requirements under the Canada Labour Code. Although such legislation requires that any and all overtime work be compensated adequately, even providing such compensation does not ensure that employers in the federally regulated sectors are in compliance with their obligations. In a recent decision, an Ontario court decided an employer’s policy and labour practices regarding overtime hours failed to comply with the Canada Labour Code in a dramatic and broad class-action lawsuit brought by a . . . [more]

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

Company Misses the Bus With Its Dismissal

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

In Hicks and Winnipeg Exclusive Bus Tours Inc., Re, (Sept. 19, 2019), Doc. YM 2727-3941 (Can. Lab. Code Adj.) the arbitrator Bryan Schwartz was appointed by the federal Minister of Labour to hear a complaint of wrongful dismissal under the Canada Labour Code. The case provides a stark reminder to employers about the sufficiency of evidence necessary to support a claim of just cause for dismissal. . . . [more]

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

Subjective Intentions Do Not Factor Into Surrounding Circumstances

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

Pre-contract negotiations, such as prior drafts of agreements, are generally inadmissible as part of “surrounding circumstances” when interpreting a contract, and parties’ subjective intentions are always inadmissible. The Alberta Court of Appeal’s recent decision in Alberta Union of Provincial Employees v Alberta Health Services, 2020 ABCA 4 (CanLII) confirms this principle and states the limits of relying on the parties’ subjective intentions. . . . [more]

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

Houston, We Have a Problem With Your Termination

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

In modern times, employers and investigators alike must be increasingly technologically savvy. Evidence can take on many forms, including texts, emails and information posted to social media accounts. Many employers provide phones to their employees which are password-protected and rely on virtual storage of data in the “cloud.” As the workplace becomes further digitized, and as more offices become mobile or virtual, workplace investigations will increasingly target such elusive electronic data. As illustrated in the recent British Columbia labour arbitration decision District of Houston v. Canadian Union of Public Employees, Local . . . [more]

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

Ambiguous Clause in Commission Policy

Written by Lewis Waring, Paralegal, Editor, First Reference Inc.

O’Reilly v IMAX Corporation, 2019 ONCA 991, the Court of Appeal for Ontario (“ONCA”) awarded a former president of IMAX two years of severance after the court agreed with the Ontario Superior Court of Justice’s ruling that he had been wrongfully dismissed. The employee in this case was 53 years old at the time of the decision. He had worked for IMAX Corporation for 22 years, finishing his tenure as President, Institutional and Strategic Sales. His compensation package at the time of his dismissal included a salary of $335,000, commissions . . . [more]

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

Employer’s Duty to Protect Against and Investigate Harassment

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

A recent decision of a Human Rights Adjudication Panel, T.M. v Manitoba (Justice), 2019 MBHR 13 (CanLII) has clarified the extent of an employer’s obligation to provide its employees with a safe and respectful workplace. The decision is the first time a complaint of harassment on the basis of sexual orientation was considered in that forum-is a powerful one and is full of important takeaways for employers, employees and workplace investigators alike. . . . [more]

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

Application of a Workplace Absenteeism Policy

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

In Teamsters Local Union 847 v Maple Leaf Sports and Entertainment, 2019 CanLII 95328 (ON LA), a labour arbitrator upheld the reasonable application of a workplace absenteeism policy. Although the employee’s excessive absenteeism was because the employee tried to better herself and upgrade her training, the employer was still justified in dismissing her. . . . [more]

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

If You’re a Terrorist, Be Sure You Tell Your Insurer or Your Policy Will Be Void

In yet another lesson in what you need to reveal when obtaining life insurance, the Ontario Court of Appeal has wasted little time in telling your beneficiary they’re out of luck when you fail to reveal information that your life expectancy might be affected by your prior terrorist activities. In Mohammad v. The Manufacturers Life Insurance Company, the Court of Appeal held because Fadia Khalil Mohammad’s husband had failed to reveal a material fact on the application for life insurance, the contract was voidable and therefore Manulife was entitled not to pay her the proceeds of the policy. The . . . [more]

Posted in: Case Comment

Bridging the Gap: Providing Children With Limited Standing in Family Law Proceedings

The recent decision of the British Columbia Court of Appeal in A.B. v C.D. v E.F. offers a couple of troubling conclusions with respect to the rights of children and whether determining the presence of family violence requires proof of intent not prescribed by statute. I’ll leave it to others, and hopefully the outcome of a successful leave application, to address the family violence issue; this note concerns a gap in the province’s Family Law Act, revealed by the decision, that leaves mature minors without the ability to apply to court for a declaration as to what is or is . . . [more]

Posted in: Case Comment, Justice Issues

Lack of Employee Status Disentitles Worker to Damages

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

In Farren v Elite Service Group Inc. 2020 BCSC 23 (CanLII), Justice Iyer of the Supreme Court of British Columbia refined various factors to determine the true nature of the working relationship, concluding that the plaintiff was an independent contractor. As such, the law of wrongful dismissal did not govern the termination of his services, leaving the plaintiff disentitled to reasonable notice of termination or damages in lieu of such notice. . . . [more]

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

R. v. Chouhan: The Reasonable Person Test and Application of the Amendments

After a jury found Gerald Stanley not guilty of second-degree murder in the shooting death of Colten Boushie, the federal government amended the Criminal Code to eliminate peremptory challenges in the selection of juries, as well as a change in the trier of challenges for cause. Judges took different views about whether this change was prospective or retrospective. As the Ontario Court of Appeal has now ruled on this matter in Chouhan, many cases, decided on the wrong side of the issue, are likely to be appealed. Indeed at least one, an individual convicted for sexual assault, already . . . [more]

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

The Federal Duty of Workplace Inspection: Reasonableness and Workplace Control

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

In Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 (“Canada Post”), the Supreme Court of Canada (“Court”) limited federally regulated employers’ duty to conduct safety inspections. Namely, the Court found that such employers only had a duty to inspect in workplaces over which they exercise control. Canada Post was an application of judicial review of a decision by the Occupational Health and Safety Tribunal of Canada (“OHSTC”). The rule-at-issue was Canada Labour Code, RSC 1985, c L-2, Part II, s 125(1)(z. 12) (“CLC”), which . . . [more]

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