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Archive for ‘Practice of Law’

Flexibility to Start or Leave Work Does Not Impact Original Employment Contract

A recent Ontario appellate decision confirms that employer flexibility in granting occasional requests, such as the time to start and end work, does not always modify the original employment contract.

Quick facts

The employee in this case worked as a scheduler from 8:30 a.m. to 4:30 p.m., with earlier morning work on occasion. The employee claimed that she had a verbal agreement with the employer that she was allowed to arrive any time before 10:00 a.m. to allow her to manage her childcare obligations. However, the employer claimed that he had discussed her irregular arrival times with her and told . . . [more]

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

Procedural Fairness: Listen to the Other Side

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

A recent case of the Saskatchewan Court of Appeal, Saskatchewan (Employment Standards) v North Park Enterprises Inc., 2019 SKCA 69 (CanLII), illustrates the importance of the Latin maxim, audi alteram partem which means “listen to the other side,” or “let the other side be heard as well.” All administrative bodies, including labour boards, must comply with the rules of natural justice and procedural fairness. Within those rules there exists the duty to act fairly, which includes allowing the parties the right to be heard. In this case, the Saskatchewan Labour Relations . . . [more]

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

Can a Relationship With a Subordinate Be Cause for Dismissal?

The New Brunswick Court of Queen’s Bench recently considered if and when a workplace romance could lead to just cause for dismissal.

Quick facts

The employee was a regional manager for New Brunswick and had been employed by the employer since at least 2002. He was dismissed in May 2017 when the employer became aware that the employee was involved in a sexual relationship with another employee whom he supervised and had failed to report the relationship, as required by policy.

Prior to the dismissal, the employer conducted an investigation which confirmed the existence of the relationship. But it also . . . [more]

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

#LawNeedsWellnessBecause

Recently the #LawNeedsWellnessBecause hashtag was trending on Twitter. Lawyers weighed in on why mental health should be a priority. Amongst the #LawNeedsWellnessBecause tweets, the structure of how lawyers practice was pointed to as a contributor to stress, anxiety, and burnout.

Despite the structural factors influencing mental health, there is almost an exclusive focus on fixing the individual. In the article “How mindfulness privatised a social problem: The £3.4trn industry encourages a preoccupation with the symptoms of mental illness, rather than their social causes,” Hettie O’Brien in the New Statesman discusses this issue.

O’Brien quotes Purser who argues that . . . [more]

Posted in: Practice of Law

Refusing Dangerous Work Is Not Only in the Eye of the Beholder

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

Hassan v City of Ottawa (OC Transpo), 2019 OHSTC 8 confirms the principle that an employee’s belief in a work-related threat that is purely subjective and hypothetical will not allow the employee to invoke the exceptional remedy under the Canada Labour Code to refuse to work.

To legitimately refuse to work on this basis, the employee’s perception of danger must also be objectively reasonable. In this case, the employee’s refusal failed to meet that threshold.

Key facts

The employee was a bus driver working for the City of Ottawa (OC . . . [more]

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

Discriminatory Hiring Practices a Blind Spot in the Legal Industry

Written by Lewis Waring, Paralegal, Editor at First Reference

In Moore v Ferro (Estate), 2019 HRTO 526 (CanLII) (“Moore”), a British-trained lawyer licensed to practice in Ontario applied for a position at a law firm and was denied. The applicant responded to his denial by claiming that the law firm had discriminated against him in violation of the Ontario Human Rights Code.

The nature of that discrimination, the applicant claimed, was based upon his race and age and was demonstrated by the firm’s interview procedure, refusal to hire him and the language used in their correspondence with him. . . . [more]

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

Lack of Clarity on Discretionary Payments Benefited Terminated Employee

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

In Thoma v Schaefer Elevator Components Inc., 2019 BCSC 100 (CanLII), the British Columbia Supreme Court re-affirms the need for employers to establish and communicate clear and explicit rules when discretionary bonuses form part of an organization’s compensation scheme. These rules should regulate an employee’s entitlement to bonus payments (both during employment and during a notice period), as well as the eligibility criteria and how and when payments are to be made. This case shows how a lack of clarity in this respect can expose an employer to significant financial liability, . . . [more]

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

Construction Law Reform Across Canada: Prompt Payment and Adjudication

Construction law is being reformed at the federal and provincial levels across Canada. The changes will have wide-ranging impacts across the construction sector and related industries. Among the changes are “prompt payment” reforms that impose legislated payment deadlines on private and public construction contracts, as well as a new fast-track private dispute resolution regime called “adjudication.”

Any lawyer with clients in the construction supply chain ought to take careful note to avoid being caught unprepared by new deadlines and new dispute resolution forums introduced by the legislation. Alternative dispute resolution (“ADR”) professionals may also be interested in the new adjudication . . . [more]

Posted in: Miscellaneous, Practice of Law

Time to Review Your Accessibility Plans and Prepare to File a Report in 2020

1. Review your multi-year accessibility plans by January 1, 2020

On January 1, 2014, section 4(1) of the Integrated Accessibility Standards, Ontario Regulation 191/11 under the Accessibility for Ontarians with Disabilities Act (AODA) required the Government of Ontario, Legislative Assembly, designated public sector organizations and large organizations (50 plus employees) to have multi-year accessibility plans in place and posted on their websites (if any), and to provide the plan in an accessible format upon request.

The multi-year accessibility plan must inform and outline the organization’s strategy for preventing and removing barriers faced by persons with disabilities and also for meeting . . . [more]

Posted in: Legal Information, Legal Information: Information Management, Legal Information: Libraries & Research, Legal Information: Publishing, Miscellaneous, Practice of Law, Practice of Law: Marketing, Practice of Law: Practice Management, Substantive Law, Substantive Law: Legislation, Technology, Technology: Internet, Technology: Office Technology

A Day in the Life of a PBO Hotliner

Prior to Ontario’s most recent provincial election, I didn’t know much about Pro Bono Ontario (“PBO”), a registered charity since 2001 which serves just under 30,000 clients each year from 11 locations. I wasn’t a litigator, and my clients were large corporations, not regular, everyday Canadians, so it wasn’t part of my world. But earlier this year, PBO gave a most impressive presentation to the Legal Innovators Roundtable describing how it was achieving maximum impact with a modest budget through its Free Legal Advice Hotline, using a thoughtful blend of volunteers as well as old and new technology. It sounded . . . [more]

Posted in: Justice Issues, Practice of Law: Future of Practice, Technology: Internet, Technology: Office Technology

CyberSecure Canada Standards for SMEs

The Canadian government has released a Cyber security controls standards document meant for small and medium sized business (499 employees or less), along with a certification program called CyberSecure Canada.

Cyber risks seem to be getting worse. Dangers include external hackers, phishing and social engineering attempts, and intentional and unintentional internal leaks. Responsibility is now considered to be at the board level, and does not stop at the CIO.

Cyber security can be a daunting task for small business. As the standard says, normal security standards “… are expensive to implement, beyond the financial and/or human resources means of most . . . [more]

Posted in: Legal Information, Practice of Law: Practice Management, Technology

Dispute Resolution Under the Canada Labour Code Transferred to Canada Industrial Relations Board

On July 29, 2019, certain provisions of the Budget Implementation Act 2017, No.1 (introduced as Bill C-44) came into force. The new law streamlines the dispute resolution process under the Canada Labour Code in federally regulated workplaces by transferring adjudicative functions under the Employment and Social Development Canada – Labour Program to the Canada Industrial Relations Board (CIRB).

This transfer impacts: . . . [more]

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