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Archive for ‘Case Comment’

Employers Can Be Found Liable for Negative Employment References

Two recent cases out of Ontario’s Superior Court, Papp v Stokes Economic Consulting Inc., (Papp) and Kanak v Riggin, (Kanak), provide guidance to employers on avoiding liability when giving employment references. Although in both Papp and Kanak the employers were cleared of any liability, both cases confirm that employers can be found liable for defamation when providing a negative reference. . . . [more]

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

Court Grants City of Toronto Injunction Against Illegal Cannabis Dispensaries

A highly-anticipated decision was released by Madam Justice Pollak of the Ontario Superior Court on October 16, 2017, granting the City of Toronto an interlocutory injunction against illegal cannabis dispensaries and their landlords which prohibits the dispensaries from operating until a final hearing is conducted in December 2018.

In her 46-paragraph decision, Justice Pollak focused heavily on whether the balance of convenience fell in favour of granting the City’s requested injunction vs. allowing the dispensaries to remain open pending a final adjudication in December 2018.

Justice Pollak summarized the lengthy amount of evidence put forward by each side before stating . . . [more]

Posted in: Case Comment

Compliment or Sexual Harassment: Where Do You Draw the Line?

Written wholly by Doug Macleod Employment and labour lawyer at MacLeod Law on First Reference Talks

Despite a number of legislative initiatives that are intended to reduce and ultimately eliminate sexual harassment in society, sexual harassment continues to be a problem in Ontario’s workplaces.

One of the more nuanced areas of sexual harassment law is what kind of language a male can direct towards a woman in the workplace. Sometimes there is a fine line between complimenting a female co-worker and sexually harassing her.

An occasional non-sexualized compliment is usually not a problem but a comment of a sexual nature . . . [more]

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

Toronto’s Bid for Injunction Against Marijuana Dispensaries Under Reserve

The City of Toronto squared off last week in court against a chain of illegal marijuana dispensaries (“Canna Clinic”) and their owners in a bid to shut the stores down once and for all.

The City sought an interim and interlocutory injunction restraining Canna Clinic and its owners from, among other things, using the properties from which they operate to sell, store or distribute marijuana.

The City’s application was brought under section 380 of the City of Toronto Act, 2006 which allows the City to bring an application to restrain any conduct which contravenes a city by-law. In this particular . . . [more]

Posted in: Case Comment

Tribunal Addresses Disabled Employee Resignations

In addition to affirming that an employee’s resignation must be clear and unequivocal to be valid, this case tells us that employers do not have a greater onus when it comes to long-term disabled employees who resign. The British Columbia Human Rights Tribunal did not accept the employee’s claim that it was unreasonable in the circumstances for her employer to conclude that she wished to resign without further inquiry. . . . [more]

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

Ontario Court Approves $31.2 Million in Legal Fees for Class-Action Counsel

An Ontario Superior Court judge has approved the payment of $31.2 million in class counsel’s legal fees in the Volkswagen “dieselgate” class action.

The legal fees comprise $26 million in fees, just under $1 million in disbursements and taxes of approximately $3.5 million.

The Canadian class action itself settled with the defendants agreeing to pay the class $2.1 billion. The U.S. class action settled for just over $10 billion.

It is noteworthy that the amount of legal fees agreed upon in the Canadian class action was over and above the amount of the $2.1 billion settlement. In other words, the . . . [more]

Posted in: Case Comment

Court Stays Criminal Negligence Charge Against Worker

The Ontario Superior Court of Justice stayed a criminal negligence charge against a boom truck worker who pleaded guilty to an Occupational Health and Safety Act charge three years earlier after causing a workplace fatality. The Court reasoned, in part, that the police’s uncertainty in laying the criminal charges after the worker’s guilty plea to the OHSA charges constituted a breach of the sense of fair play. The Court cited a breach of sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. . . . [more]

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

Court Orders Confidentiality Agreement as Precondition to Obtaining Documentary Discovery

Litigants in Ontario are required to disclose every document in their power, control or possession that is relevant to the lawsuit at hand.

Often times one party is concerned about disclosing documents to the other that may be highly confidential from a business perspective. The “deemed undertaking” rule in Ontario’s Rules of Civil Procedure operates to alleviate some of that concern.

The deemed undertaking rule provides that

“all parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence . . . [more]

Posted in: Case Comment

Employee’s Appeal for Dismissal of His Wrongful Termination Action Rejected

The employee in this case appealed the dismissal of his wrongful dismissal action. One of the issues on appeal was whether the trial judge reversed the onus on the employee to prove just cause. . . . [more]

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

Company That Released Result of Employee’s Drug Test Contravened Privacy Law

Written by Cristina Lavecchia, Editor, First Reference Inc.

An employee working for a an international trucking company that is considered a federally regulated employer alleged that while his accident claim was active with a provincial workers’ compensation board (WCB), his employer informed the WCB, without his knowledge and consent, that he had tested positive in a drug test.

According to the employer, they were required to disclose this information by law. However, the WCB and the Office of the Privacy Commissioner of Canada both affirmed that the circumstances in this case did not require the employer to make such a . . . [more]

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

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