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Archive for ‘Case Comment’

Provincial Insolvency Decision Hangs in Balance

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

On March 26, 2020, the Supreme Court of Canada granted leave to appeal the decision of the Alberta Court of Appeal in Canada v. Canada North Group Inc., 2019 ABCA 314 (CanLII). The decision canvasses the priority that attaches to money that is borrowed in restructuring proceedings to preserve value in an insolvent company. The decision considered whether these charges rank ahead of other claims that are also granted priority under federal legislation. The issue, therefore, was the relative ranking of “super-priority” court-ordered charges in proceedings under the Companies’ Creditors . . . [more]

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

Court Awards Aggravated Damages in Wrongful Dismissal Case

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

The case Acumen Law Corporation v Ojanen, 2019 BCSC 1352 (CanLII) tells the story of the abrupt and acrimonious end of an articling student’s employment with a law firm. The court rejected the range of factors purported to support just cause and, in addition to ordinary damages for breach of contract, awarded the employee aggravated or moral damages because of the way she was fired. The case serves as an important reminder to employers about the seriousness of misconduct required to support just cause, and should also encourage employers to think . . . [more]

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

Open Question of Jurisdictional Boundaries of Labour Arbitrators and Human Rights Tribunals Makes Its Way to the Supreme Court of Canada

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

Effects of unionization on the employment relationship

Unions have a variety of significant effects on the employment relationship and greatly affect the rights and obligations of employers and employees. The repercussions of unionization are so significant that the law surrounding unionized workplaces is considered to be an entirely distinct area of law from law surrounding non-unionized workplaces.

One such difference related to unionization is the legal path workers are allowed to take when confronted with a human rights issue in the workplace. In such a case, a non-unionized worker could . . . [more]

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

Alberta Appeal Court Takes a Hands-on Approach in Sexual Assault Termination Case

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

The Court of Appeal of Alberta’s decision in Calgary (City) v Canadian Union of Public Employees Local 37, 2019 ABCA 388 (CanLII) overturns a decision on judicial review that upheld an arbitrator’s decision to reinstate an employee who had been terminated from his employment for sexual harassment. The decision serves as a powerful reminder that sexual assault is inherently serious and, when coupled with a breakdown in trust arising from the perpetrator’s dishonesty, a termination will likely be the result. . . . [more]

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

Unjust Termination Case Proves Costly for Employer

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

In Liebreich v Farmers of North America, 2019 BCSC 1074 (CanLII), the plaintiff brought an action for wrongful dismissal against her former employer and a group of entities she claimed were jointly and severally liable. The court was required to first conclude that the plaintiff was a dependant contractor, and that several of the entities were jointly and severally liable. In addition to having to pay reasonable notice to the plaintiff, the employer’s blameworthy conduct in carrying out the termination led to an award of punitive and special damages. . . . [more]

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

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