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Archive for ‘Substantive Law’

Accommodating Employees With Disabilities: What You Don’t Know Can Hurt You!

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

Employers of workers with disabilities need to know the ins and outs of their duty to accommodate. The law intends the accommodation process to be collaborative, allowing the employer, union and employee the ability to make suggestions, compromise and, hopefully, arrive at a mutually agreeable solution. In Singh v Dodd’s Furniture (No. 2), 2021 BCHRT 85, the British Columbia Human Rights Tribunal found that a furniture store discriminated against its worker after it received some bad advice about how to go about accommodating him. The furniture store made an “ill-informed . . . [more]

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

Judges Need Better Computers

For all of the emphasis on technology during the pandemic, there are still some basic fundamentals that need to be addressed to bring the justice system in Canada into the 21st century.

In Ontario, the provincial government has commenced a process last year to “modernize” the justice system, introducing electronic filing for over 400 court documents, a cloud-based e-hearing platform, and greater use of virtual hearings. Earlier this year, they passed new legislation for further changes, with the Attorney General stating,

Justice accelerated is justice delivered. No matter where you live in our province, the growth and well-being of

. . . [more]
Posted in: Substantive Law: Judicial Decisions

The Agricultural Employees Protection Act: How Much Protection?

In my last post, I considered the Ontario Agricultural, Food and Rural Affairs Appeal Tribunal’s (“AFRAAT) and Ontario Divisional Court’s rejection of the United Food and Commercial Workers International Union’s (“UFCW”) constitutional challenge to the Agricultural Employees Protection Act (“AEPA”). Here I argue that the AFRAAT and the Divisional Court have reinforced the distinctions between the AEPA and the Labour Relations Act, 1995 (“LRA”). In doing so, they refused the Supreme Court of Canada’s invitation in Fraser to be flexible in their interpretation of the AEPA. . . . [more]

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

Text Messages Can Be Valid Signatures in Business Disputes

The bulk of civil litigation in business law is not conducted by what are referred to as “sophisticated parties,” described by the Court as being aware of the risks of foreign legal systems, understanding the meaning of legal terms, familiar with negotiations, able to draft clear exclusion and limitation clauses, and well-advised by counsel.

Instead, many of these disputes are far more informal in nature, and often for smaller amounts that properly put these disputes within the monetary jurisdiction of the small claims court.

The nature of the communication in this contexts reflects this informality, and there is no shortage . . . [more]

Posted in: Substantive Law: Judicial Decisions

Discrimination Based on Face Mask Use in Retail Settings

Face mask mandates are now common place across Canada, which started being enshrined in law over a year ago. Many of these can be found in municipal by-laws, but they can also be found in regulations to provincial statutes.

For example, Ontario’s O. Reg. 364/20 – Rules for Areas in Stage 3 under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 states,

(3.1) The person responsible for a business or organization that is open shall ensure that any person in the indoor area of the premises of the business or organization, or in a vehicle that is operating

. . . [more]
Posted in: Substantive Law: Judicial Decisions

The Math Confirms It: Contract Clarity Is Good

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

John Locke once lamented the limited ability of language to express an idea when he said, “So difficult it is to show the various meanings and imperfections of words when we have nothing else but words to do it with.” He could very well have been talking about an employment contract dispute. An employee may try to introduce ambiguity into a provision that the employer considered watertight at the time of drafting. In this article, Bryant v Parkland School Division, 2021 ABQB 391, a case in which the plaintiffs sought . . . [more]

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

Variability in Judgments: Why It Can Be So Hard to Find Consistency

The doctrine of stare decisis asks judges to treat like cases alike. “The term comes from the Latin phrase stare decisis et non quieta movere, which means ‘to stand by decisions, and not to disturb settled points’”. – The Honourable Justice Malcolm Rowe and Leanna Katz

Given the simpleness of the doctrine of stare decisis, you would think it would be simple to apply every time. And we would see the same outcome for similar cases every time. After all, stare decisis allows people to know the law by providing consistency, certainty, and predictability. But each case raises unique facts,

. . . [more]
Posted in: Substantive Law

Constitutionality of the Agricultural Employees Protection Act: Round Two


The Supreme Court of Canada in Fraser concluded that, with the minor adjustment of reading in an additional provision, the Ontario Agricultural Employees Protection Act (“AEPA”) is constitutional. In UFCW v. MedReleaf Corp. Phase 2 (“MedReleaf”), the Ontario Agricultural, Food and Rural Affairs Tribunal (“the Tribunal”) concluded that the caselaw since then does not warrant a different outcome. The recent Divisional Court decision in United Food and Commercial Workers International Union v. Aurora Cannabis Enterprises Inc. (“Aurora”) upheld the Tribunal’s decision.

The United Farm and Commercial Workers International Union (“UFCW”) had also brought complaints about MedReleaf’s conduct during the . . . [more]

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

Meredith Principle Does Not Preclude Constructive Dismissal Claim

Industrialization transformed western society, reorganizing economies for the purpose of manufacturing and wealth generation. These changes came with at considerable costs, some of which are only being more recently recognized, such as harm to the environment.

The more immediate and obvious harms to workers were of a greater concern a century ago and were in many ways the focus of organized labour, both before and after unions became legal on 1872, with the passing of the Trade Unions Act. This statute was enacted specifically to gain union support prior to the election that year, forming the 2nd Parliament of . . . [more]

Posted in: Substantive Law: Judicial Decisions

Failure to Mitigate Leads to Reduced Dismissal Damages

By Lewis Waring, Paralegal, Student-at-Law, Editor, First Reference Inc.

In Moore v Instow Enterprises Ltd, (2021 BCSC 930) (“Moore”), a British Columbian employee was entitled to less notice than the standard amount of one month per year of service mainly due to his failure to mitigate his losses. By refusing to make a reasonable attempt to find alternative similar employment, the employee failed to meet his obligation to mitigate his loss of income as a result of his dismissal. . . . [more]

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

Appropriate Sentence for Excessive Force by Police Officer

It is axiomatic that nobody should be above the law, and perhaps equally accepted that law enforcement is a necessary component for ensuring adherence to the law.

However, public confidence requires that police officers who use excessive force are also dealt with appropriately by the courts, and that their roles within the justice system does not result in complete immunity from prosecution.

The Manitoba Court of Appeal recently released a decision in R v Letkeman, which reviewed the non-custodial sentence imposed on an RCMP officer. The accused was sentenced to a 3-year probation order for criminal negligence causing bodily . . . [more]

Posted in: Substantive Law: Judicial Decisions

Charter Compliant: COVID Travel Restrictions

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

COVID-19 has caused much suffering and death worldwide since its discovery in late 2019. Part of Canada’s response has been tightening restrictions on those who enter Canada by air by enacting emergency orders under the federal Quarantine Act. These measures were the focus of a wide-ranging Canadian Charter of Rights and Freedoms (Charter) attack by several applicants in the Federal Court case of Spencer v Canada (Health), 2021 FC 621 (CanLII). With two limited exceptions, Chief Justice Paul Crampton rejected the claims that the emergency orders were unconstitutional. The . . . [more]

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