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Archive for ‘Substantive Law: Judicial Decisions’

Towards a National Security Regulator

I had always presumed, erroneously, that all those entering the legal field would have some modicum of interest in public policy, equity issues, and promoting the rule of law. A significant chunk of the profession certainly do share those concerns, even while differing in the positions they may take.

But I was bewildered by those I encountered early in my legal education who simply were indifferent towards politics or any legal topic that did not directly impact their professional pursuits. I could only assume that such an existence was a by-product of a lifestyle and existence that was not threatened . . . [more]

Posted in: Substantive Law: Judicial Decisions

Public Disclosure of Private Facts – Redux

Privacy law is the new frontier in personal rights. Although privacy may be “a protean concept” (R v. Tessling, para 25), it is one of the most fundamental issues in a digital era.

The lack of statutory development, and the challenges of extending existing statutory frameworks to emerging privacy issues, has forced the courts to develop new rights of action to protect the privacy interests of Canadians.

The second of these, the tort of public disclosure of private facts, has a troubled history. Decided on a default judgement, including the setting aside of the decision when . . . [more]

Posted in: Substantive Law: Judicial Decisions

Smelling of Alcohol Not Reasonable Cause to Test for Drugs

A British Columbia Arbitrator recently held in a preliminary award that an employee who reported to work smelling of alcohol did not provide the employer with reasonable cause to test that employee for drugs.

What happened?

. . . [more]
Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

Careful, Lawyer’s Communications Are Not Always Protected

The Ontario Superior Court of Justice recently found that the communications and conduct of the employer’s lawyer regarding sexual harassment investigation were not privileged and could be referred to in the employee’s Statement of Claim in the litigation against the employer

What happened?

A long-service employee (employed since 2002), while being placed on a performance improvement plan (PIP), raised allegations that her supervisor was bullying and sexually harassing her. In response, her employer:

  • Conducted an investigation but failed to interview the complainant employee during this process;
  • Concluded that the claims were unsubstantiated.
. . . [more]
Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

Workplace Accident Is Not Enough to Prove Employer Committed General Duty Offence Under OHSA

Following a fatal workplace accident, the Alberta Court of Appeal provided a more comprehensive framework for the actus reus requirement of the general duty provision in Alberta’s Occupational Health and Safety Act (OHSA) and clarified that the mere occurrence of a workplace accident does not prove the employer committed a violation.

Fatal workplace accident – Did the employer violate its “general duty” to ensure the health and safety of an employee?

During a “tripping out” procedure on December 20, 2010, at an employer’s drilling rig, an employee suffered a workplace accident and died from blunt cranial trauma and multiple cranial . . . [more]

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

Parliamentary Privilege Does Not Always Reign Supreme

The next few years are likely to reveal further insight into the demarcations between the judiciary and the legislature, given the election of the right-leaning political parties in Canada’s largest provinces.

With the introduction of Bill 31 in Ontario, the government justified it no no small part on the basis of parliamentary privilege. House Leader Hon. Todd Smith cited the House of Commons Procedure and Practice as the basis for the Bill during the debate on Sept. 1, 2018 as follows:

The exclusive right of the House of Commons to regulate its own internal affairs refers especially to its control

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

Roadside Drug Screening to Be Tested by Courts

On Wednesday, Ontario’s new government announced a change in policy for cannabis use, indicating that they will allow it to be used anywhere where tobacco is smoked when it is legalized on Oct. 17, 2018, and not restricted to residential homes as previously planned. This move would align the province’s policy with the Smoke-Free Ontario Act, with the Alcohol and Gaming Commission of Ontario (AGCO) set up as the proposed regulator to issue private store licences.

One of the ancillary effects of this is that residents in the province will invariably be consuming cannabis outside of the home, and . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Criminal Conviction or Incarceration Does Not Justify Termination

The Administrative Labour Tribunal in Quebec recently held that an employer cannot terminate a worker with a criminal conviction for acts of sexual abuse as it constitutes discrimination based on criminal records. Moreover, the nature of the criminal offence does not automatically justify the dismissal of an employee. . . . [more]

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

Here Be Unchartered Waters

Introduction

This week has been an unprecedented one in Canadian history, and one that will invariably result in development of novel Charter jurisprudence.

On Sept. 12, 2018, the Ontario legislature introduced Bill 31 – Efficient Local Government Act, 2018 in response to the Ontario Superior Court of Justice decision on Sept. 10, 2018 that ruled Bill 5 – Better Local Government Act, 2018 was unconstitutional, as it violated the s. 2(b) Charter rights of the candidates in the upcoming municipal election due to the timing of the Bill, and the impact on the voters due to its content.[1] This . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

The Unintended Consequences of Fighting Online Piracy

When the Copyright Modernization Act was passed in 2012 with Bill C-11, most observers acknowledged that stronger enforcement mechanisms were needed for online piracy. However, even at that time there were concerns about the measures undertaken to address these concerns.

Most controversial were the notice-and-notice provisions that came into force on Jan. 2, 2015, which require ISPs and website hosts to convey notices of copyright infringement allegations to customers using their services.

The almost immediate effect was thousands of these notices being provided to Canadian consumers, many of them making demands for monetary settlement. The system was also subject to . . . [more]

Posted in: Substantive Law: Judicial Decisions