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Archive for ‘Substantive Law’

Workplace Resolution #3: Watch What You Say Online…

What you say online stays online and could get you fired. It is becoming increasingly clear in Canada that offensive or disparaging online statements can merit termination for cause, particularly where the conduct has a negative impact on the employer. Surprisingly, the same is not necessarily true in the United States (see my post here for more details). However, the recent wave of employer-supportive decisions favouring terminations for cause may have given some companies a false sense of security. The recent decision of Kim v. International Triathlon Union, 2014 BCSC 2151 is a good illustration of that point and how . . . [more]

Posted in: Substantive Law: Judicial Decisions

Can Better Data Security Be Encouraged by Civil Liability?

Some people – notably information security expert Bruce Schneier – believe that if IT suppliers, notably software providers, were civilly liable for the harm caused by buggy products, they would have an incentive to be more careful. The market currently encourages the industry to put products on sale as early as possible, and with the most hype possible, whether testing has been adequate or security threats thoroughly checked.

Here is an overview of Schneier’s position. A classic statement of the issues with software is here.

Would they be more careful – and would we then all be better . . . [more]

Posted in: Substantive Law, Substantive Law: Legislation, ulc_ecomm_list

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

Of Digital Authoritativeness and the Age of Steam

Late last week fellow Slaw contributor John Gregory brought up some idiosyncrasies in his post about how web-sourced versions of laws stack up against more official looking books with laws printed in them. You know, the ones that only the law library has?

This brings up a pet peeve of mine—something that Ontario has solved, but which BC practitioners are technically still exposed to. The fact is that if you’re not producing photocopies of the official books with BC laws in them, you’re technically not doing your job for the court in BC. That’s ridiculous, right? Well, yeah. It is. . . . [more]

Posted in: Legal Information, Legal Information: Information Management, Legal Information: Libraries & Research, Legal Information: Publishing, Substantive Law: Legislation, Technology: Internet

Everything You Thought You Knew About Labour Law

Sometimes judges get it wrong. Even when they sit on the highest court of the land.

The nature of the common law is that decisions which are poorly written (a generous excuse for decisions which are poorly decided) still have binding authority, especially when made by the Supreme Court of Canada.

The interpretation of freedom of association under s. 2(d) of the Charter has undergone considerable change over the years. Courts generally applied a restrictive approach towards this right, until the 2007 decision in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia (“B.C. Health“), . . . [more]

Posted in: Substantive Law: Judicial Decisions

Evidence of Official Documents Online: A Problem?

Governments increasingly are putting official documents online without any paper ‘original’ or equivalent. Does that present challenges in practice for proving those documents?

What is your experience producing in court or generally under the evidence statutes official government documents that appear only online?

There is good statutory support for producing documents ‘printed’ by government, sometimes by class of document but sometimes as broad as ‘other public document’.

Will courts accept a printout of a web page (or, I suppose, a live in-court online presentation of a web page) showing a government URL as being ‘published by the Queen’s Printer’, at . . . [more]

Posted in: Substantive Law: Legislation, Technology: Internet, ulc_ecomm_list

Search Engine Results as Evidence

Can you / should you / do you rely on the product of search engines as evidence in civil or criminal matters? Do you base legal advice on what you find on search engines, or on the use made of them?

A recent article in Canadian Lawyer canvasses some of the possibilities.

The Ontario Superior Court held that one could not establish facts by showing how often certain terms were used in Google searches. That was for the purpose of the certification of a class action.

However, showing previous use or actual use of trade marks can be done . . . [more]

Posted in: Substantive Law: Judicial Decisions, Technology, ulc_ecomm_list

Workplace New Year’s Resolution #2: It Pays to Be Remorseful (And to Be Unionized)!

We can probably all agree that workplace violence can not and should never be tolerated. In my view, Employers should take a very firm stance and terminate any employees who intentionally physically assault another employee, particularly when they don’t show remorse. I’ve come across a recent decision that runs counter to this opinion, and while I don’t often critique decisions on Slaw, Kruger Inc., v. Unifor, Local 1646, 2014 CanLII 66101, deserves some discussion.
The Employer is unionized by Unifor and so the decision to terminate the Employee was challenged in a grievance. The facts are simple are . . . [more]
Posted in: Substantive Law: Judicial Decisions

Judges as Gatekeepers for Necessary Expert Evidence

Expert evidence is often perceived as a necessary evil by many judges. The “evil” of these experts is that they tend to enhance the adversarial nature of litigation, unduly complicate proceedings, and often add unnecessary costs for the parties.

What is the role of the court in excluding or managing this evidence?

Concerns over the excessive use of experts has been identified in several jurisdictions. A 2002 study by Carol Krafka in the US found that judges are becoming more recalcitrant towards accepting expert evidence post-Daubert. The 2009 Jackson Report in the UK accepted the manner in which expert . . . [more]

Posted in: Substantive Law: Judicial Decisions

Non-Disparagement Clauses

California has just enacted a law that prohibits ‘non-disparagement clauses’. These are clauses in consumer contracts that prohibit the consumer from criticising the product or services provided under the contract.

Specifically, the statute says this: “a contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.”

Is there any need for such a provision in Canadian law (federal or provincial)? Are non-disparagement clauses ever seen here? Would . . . [more]

Posted in: Substantive Law: Legislation, ulc_ecomm_list

Ontario’s Proposed Provincial Retirement Plan and PRPP Legislation

Fewer than 35 percent of workers in Ontario currently have a workplace pension plan. Coverage for workers in the private sector is even lower—only 28 percent are members of a plan. Several studies have shown that, due to the limited benefits provided by the Canada Pension Plan (CPP) and Old Age Security (OAS), significant numbers of Ontarians will not have sufficient savings to maintain similar living standards throughout their retirement years. As a result, the Ontario government has decided to establish a made-in-Ontario pension plan and to implement the federal government's Pooled Registered Pension Plan.
Posted in: Miscellaneous, Substantive Law, Substantive Law: Legislation