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Archive for ‘Substantive Law’

A Look at Alberta’s Private Member’s Bill on Conscience Rights for Doctors

Commentators on private member’s Bill 207, Conscience Rights (Health Care Providers) Protection Act, introduced in the Alberta Legislative Assembly on November 7, 2019, have disagreed about whether it is different from the current system in Alberta.

Here I consider the extent to which it would be different from the current requirements of the College of Physicians and Surgeons of Alberta (CPSA). I also consider how it would give doctors (and other health professionals) the greatest freedom in Canada to refuse to treat patients on religious and conscientious grounds and fail to put the interests of patients first, as . . . [more]

Posted in: Substantive Law: Legislation

Discoverability a Rule of Construction for Limitations

Limitations in personal injury litigation can be contentious, especially since the nature of the damages suffered by a plaintiff may not necessarily be known at the initial time of loss. This is especially true in claims that include chronic pain, as these types of medical conditions are not diagnosed until several weeks after an injury.

In these contexts, a plaintiff may rely on discoverability to exceed the two year presumptive limitation found in s. 4 of the Limitations ActCourts have extended this notion of discoverability even further, the Ontario Divisional Court finding in Pereira v. Contardo that the . . . [more]

Posted in: Substantive Law: Judicial Decisions

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

Challenges to Mandatory Vaccinations: Further Thoughts

Just as the Toronto medical officer of health called for limiting the exemptions to Ontario’s mandatory vaccine regime for school children to only one, on medical grounds (although this has not been received positively by the provincial health minister), Vaccine Choice Canada and five mothers have challenged the requirement that in order to attend public school, children must receive vaccinations.

The Immunization of School Pupils Act already includes grounds for exemption for medical, religious and conscientious grounds; however, the group challenging the legislation consider the exemptions — and therefore the legislation — contravene their rights, in part because of the . . . [more]

Posted in: Justice Issues, Substantive Law: Legislation

Reasons Not to Travel With Your Bling

The Ontario Court of Appeal recently released a brief decision in Demetriou v. AIG Insurance Company of Canada, overturning a decision on a summary judgment motion.

The claim involved a man who had traveled to a resort in Punta Cana, Dominican Republic. Unfortunately he did no leave his ring at home, and wore it on a gold chain around his neck. This was a special ring, one that had been passed on to him by his maternal grandmother, and he had been provided it by his parents so that one day he could give it to one of his . . . [more]

Posted in: 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

Heated Wax Case Reveals Bare Motives of Animus

On Dec. 10, 1948, the United Nations General Assembly passed Resolution 217A, proclaiming and adopting the Universal Declaration of Human Rights. Despite the supposed importance and significance that conflicts such as WWII should have had in emphasizing the importance of human rights, their role in our society is being undermined in some quarters only 70 years after the creation of this milestone document.

Much of the derision around human rights discourse in Canada is focused on populations where there is less of a direct affinity or identification with the grounds or basis that is being protected. Often masked in . . . [more]

Posted in: 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

Revisiting the City of Toronto Case After the UK Prorogation Decision

The UK Supreme Court’s decision in R (on the application of Miller) v. The Prime Minister and Cherry and others v. Advocate General for Scotland surprised many because of the Court’s willingness to wade into the legitimacy of Prime Minister Boris Johnson’s prorogation of Parliament and to employ unwritten constitutional principles to do so. The City of Toronto raised unwritten constitutional principles in challenging the Better Local Government Act, 2018‘s reduction of Toronto City Council from 47 wards to 25; however, the Court of Appeal dismissed this approach in the City of Toronto case. Here I revisit that decision . . . [more]

Posted in: Substantive Law

An Election Is Not Equivalent to Public Participation

Ontario’s 2018 election for the 42nd Parliament was something remarkable. It denoted the worst result for any incumbent government party in the province’s history.

The governing party secured this success despite an unexpected leadership race triggered only months before the June election. In part, voters’ motivation appeared to be informed by a need for change.

This overwhelming success by the government has been repeated cited as a “mandate,” to effectively enact almost any policy priority identified by them, even if done so following their election. With a majority government, there has already been widespread legal reforms, though some have been . . . [more]

Posted in: Substantive Law: Judicial Decisions

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

College of Midwives of BC v. MaryMoon

On my way to writing a post applying the UK Supreme Court’s decision on the Boris Johnson prorogation to the City of Toronto decision upholding the province’s reduction of wards, I decided to take a detour to examine the College of Midwives of British Columbia v. MaryMoon in which Madam Justice Sharma held that section 12.1(1) of the BC Health Professions Act (HPA) is unconstitutional because it contravenes section 2(b) of the Canadian Charter of Rights and Freedoms without justification. . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions