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Archive for ‘Case Comment’

Age Limit for Loss of Earnings Benefits Doesn’t Violate Charter

The Workplace Safety and Insurance Act’s age cut-off for loss of earnings benefits does not violate the Canadian Charter of Rights and Freedoms, Ontario’s Divisional Court decided in Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

Plaintiff Awarded $13,000 Judgment and $90,000 in Costs

There are provisions in the Rules of Civil Procedure which provide that if a plaintiff brings a lawsuit in Superior Court and recovers an amount that is within the monetary jurisdiction of the Small Claims Court ($25,000), it is open to the court to order that the plaintiff shall not recover any of its legal costs of the lawsuit.

The rationale behind these provisions is straightforward. If a litigant fails to recover more than $25,000, then its claim ought to have been brought in the Small Claims Court which provides for a more streamlined, less expensive, procedure. A plaintiff, theoretically, . . . [more]

Posted in: Case Comment, Substantive Law

New Trial for Manager Terminated Over Misuse of Company Property

In Roe v British Columbia Ferry Services Ltd, a British Columbia trial judge made too many assumptions and not enough findings of fact when he decided that an employee’s dishonest conduct was “trifling,” “relatively minor” and not sufficient to justify termination. The Court of Appeal ordered a new trial for the employee after finding that the trial judge made a “palpable and overriding error” due to his failure to undertake an objective contextual analysis, as required for cases of alleged just cause.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Plaintiff and Defendant Both Seek, and Are Denied, Leave to Appeal

Litigation produces winners and losers. Often, the loser feels that the judge got it wrong and appeals the decision accordingly.

In some cases even the winner thinks that it should have received a decision more favourable than it did and that an appeal is an appropriate route to take.

In a recent case, both the winner and the loser of a summary judgment motion thought that the motion judge got it wrong, and both sought leave to appeal.

More surprising than the fact that both sides think the judge got it wrong, is that the Divisional Court denied leave . . . [more]

Posted in: Case Comment, Practice of Law

Breastfeeding Need Not Be Accommodated by Telework

In Flatt v. Treasury Board (Department of Industry), the Public Service Labour Relations and Employment Board has rejected a public servant’s complaint that Industry Canada discriminated against her on the basis of family status when it refused to let her work from home full-time while breastfeeding.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Lawyer Who Sues Client for $4,000 Is Ordered to Pay Client Nearly Twice That Amount in Costs

A lawyer who sued her former client for $3,937.50 for unpaid legal fees has had $7,000 in costs awarded against her, and the matter has yet to reach trial.

In the lawyer’s Small Claims Court lawsuit, she was ordered to produce her entire file to the former client and make production of the documents in chronological order, such that it could be ascertained whether or not she had in fact produced the entire file.

For reasons that are not entirely clear, the lawyer failed to produce the file in chronological order. A Deputy Small Claims Court Judge awarded costs against . . . [more]

Posted in: Case Comment, Practice of Law

“Brian Sinclair Did Not Have to Die”

Brian Lloyd Sinclair died in September 2008 in the emergency department waiting room of Winnipeg’s Health Sciences Centre at the age of 45. He was pronounced dead in the early hours of September 21, 2008 after he had spent some 34 hours in the emergency room awaiting attention for what was initially a relatively minor health concern.

Brian Sinclair was an Aboriginal man who lived his early years on the Fort Alexander First Nation and went on to live in Powerview, Manitoba and ultimately, in Winnipeg. He faced a number of health challenges and as well as some cognitive impairment. . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Plaintiff Nearly Loses $8,000 Because She Went to Trial Too Fast

In an unusual case, a plaintiff nearly lost out on $8,000 in damages simply because she got to trial too fast.

The plaintiff’s employment with the defendant was terminated due to downsizing after 14 years of service.

She was paid approximately four months compensation in lieu of reasonable notice. She felt like it was not enough and sued the company for 22 months of compensation.

Justice Pollak agreed with the plaintiff that four months was not sufficient compensation and awarded the plaintiff twelve months of compensation.

However, at the time that the case was tried it had only been . . . [more]

Posted in: Case Comment

Refusal to Cooperate in Accommodation Process Prevented Reinstatement

Employees must participate in their employer’s accommodation process, even where that process has not produced satisfactory results. In the Alberta Human Rights Tribunal case of Perera v. St. Albert Day Care Society, Theresa Perera found this out the hard way when, due to a disabling injury, she refused to perform the work she was assigned and her employer terminated her for insubordination. However, the tribunal found Perera’s injury was a factor in the termination, and therefore the termination was discriminatory. Nonetheless, the insubordination made reinstatement impossible
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions