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Archive for ‘Case Comment’

Claims for Damage Caused by Tenants Fall Under Exclusive Jurisdiction of Landlord Board

A recent Ontario decision has affirmed the principle that all claims for damage caused by a tenant during a tenancy must proceed before the Landlord and Tenant Board (the “Board”) and not in the Superior or Small Claims courts.

After about a six year tenancy, the tenant fell behind on rent. The landlord brought an application to evict the tenant. The tenant vacated the unit shortly after being served with the application materials and did not attend the eviction hearing.

As part of the eviction hearing the landlord sought arrears of rent, including hydro arrears. The Board terminated the tenancy . . . [more]

Posted in: Case Comment, Practice of Law

Due Diligence Required When Using Exemptions to Disclose Personal Information Without Consent

Organizations may only disclose a person’s confidential information without the person’s knowledge or consent in very specific circumstances, set out in paragraph 7(3)(h.2) of the Personal Information Protection and Electronic Documents Act (PIPEDA). Now, the Office of the Privacy Commissioner of Canada recently found that in order to properly rely on the s.7(3)(h.2) exemption it is essential that an organization document the purpose for which personal information is disclosed and exercise due diligence to ensure that the disclosure is reasonable under the circumstances. . . . [more]

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

Employer Unsuccessfully Attempts to Resile From Settlement After Learning Ex-Employee Is Employed by Competitor

In a recent decision, the Ontario Superior Court upheld a settlement that was reached between a former employee and his ex-employer at a mediation over the employer’s attempt to resile from the settlement after finding out that the former employee had since gained employment with a competitor.

The plaintiff commenced a lawsuit against his former employer for payment of certain benefits after his employment was terminated.

The parties attended a mediation at which the lawsuit was resolved. As is often the case, the formal paperwork was not completed at the mediation.

Two days after the mediation the former employer . . . [more]

Posted in: Case Comment

Mandatory CPD Survives Its Day in Court

Since 2012, practising lawyers in Manitoba have been required to complete 12 hours of continuing professional development programming annually and to report on those activities as part of the annual Member’s Report. Failure to do so, pursuant to Law Society Rule 2-81.1(12) may result in issuance of a warning letter from the Law Society CEO, advising the member to comply within 60 days or face automatic suspension until the requirements have been met.

Recently, a long-time member of The Law Society of Manitoba challenged those provisions as being outside the statutory authority of The Law Society, and as lacking in . . . [more]

Posted in: Case Comment, Education & Training, Education & Training: CLE/PD

Small Claims Court Awards $2,500 in Damages and $5,300 in Costs

The Courts of Justice Act in Ontario contains a provision which limits the award of legal costs in Small Claims Court to 15 per cent of the amount claimed unless “the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behavior in the proceeding.”

This provision makes it impossible for many lawyers to litigate cases in Small Claims Court in a cost effective manner. In short, the amount of fees that will be charged to the client will be disproportionate to the amount of the potential overall recovery.

In a . . . [more]

Posted in: Case Comment, Practice of Law

Getting Smart on Crime Instead of Tough

Mandatory minimums. Mega prisons. “Tough” on crime.

These have been the hallmarks of the Federal government’s reform of the criminal justice system, but the policies have been more politically motivated than good policy or social science evidence. Canada’s crime rate has been the lowest since 1972, and the literature on law enforcement suggests these measures will actually make things worse.

The mandatory minimum provisions and removal of credit for time has already been challenged successfully in court. Courts in B.C., Nova Scotia, Ontario, and Northwest Territories have all found these provisions as unconstitutional, culminating in the Supreme Court’s decision in . . . [more]

Posted in: Case Comment, Justice Issues

Human Rights Tribunal’s Finding of Disability Discrimination in Employment Overturned

The Court of Queen’s Bench of Alberta recently overturned a finding of disability discrimination in employment in the case of Syncrude Canada Ltd v Saunders, 2015 ABQB 237 (CanLII). The Court decided that the Alberta Human Rights Tribunal erred in finding that the employee established a prima facie case of discrimination when the evidence could not reasonably support the conclusion that the employee suffered from a disability or a perceived disability requiring accommodation. . . . [more]

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

Demotion Led to Constructive Dismissal

In Ciszkowski v Canac Kitchens, the Ontario Superior Court of Justice concluded that a long-term employee was constructively dismissed when he considered himself demoted upon his return to work from heart surgery. This demotion due to his disability created a serious erosion of the working relationship. . . . [more]

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

Email Could Not Be Covered Under Solicitor-Client Privilege

An Ontario court has compelled an employer to produce an email message between HR staff and counsel in the wrongful dismissal case of Jacobson v Atlas Copco Canada Inc. The Superior Court of Justice found the employer failed to show that the message involved seeking or giving legal advice; thus it could not be protected by solicitor-client privilege. . . . [more]

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

When Unions Fight

Headlines get made when employers and unions wage labour war. Teachers fighting provinces, police officers fighting cities and postal workers fighting Canada Post all make for great news. Inter-union fighting makes less noise but is also fascinating when it ends up before labour tribunals. A recent case provides a great example of what happens when unions “raid” each other (“raiding” is when one union attempts to sign up members represented by another union).

The story seems to start here, with the International Association of Machinists and Aerospace Workers (IAMAW) talking to its membership (Toronto area airport screeners) about . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Tenant Who Is 1.5 Years and $13,000 in Arrears Gets One More Chance

A recent decision demonstrates once again that our Province’s residential tenancy laws are in need of an overhaul to give more protection to landlords.

By the time the case (almost) came on for a hearing on April 27, 2015:

(a) the tenant had accumulated arrears of rent from September, 2013;

(b) the Landlord and Tenant Board (“LTB”) had made several orders terminating the tenancy and ordering eviction for non-payment of rent and arrears;

(c) the LTB had also made several orders setting aside the orders mentioned in (b) above and instead installing various repayment schemes;

(d) the tenant breached all . . . [more]

Posted in: Case Comment

Filing Suit Amid Suspension Isn’t Wilful Resignation

When the New Brunswick Legal Aid Services Commission decided unilaterally to place its executive director David Potter on indefinite paid suspension, the employee challenged the decision in court. The commission took the position that Potter’s legal challenge meant he had resigned, and cut off his pay and benefits. The case went to the Supreme Court of Canada and in Potter v. New Brunswick Legal Aid Services Commission, the Supreme Court concluded that Potter was constructively dismissed and did not voluntary resign his position. The central issue was whether and in what circumstances a suspension with pay of a non-union . . . [more]

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