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Archive for ‘Substantive Law: Judicial Decisions’

Common Law Expansions to Anonymous Defamers Online

The issue of anonymous parties engaging in defamation has been one of the primary issues in online defamation. In many cases, the matter is often resolved as soon as this identity is ascertained. As such, de-anonymizing has been one of the primary strategies employed by plaintiff’s counsel in such actions.

In Manson v John Doe, Justice Goldstein granted judgment against an anonymous blogger who had been noted in default, and stated,

[20] There are few things more cowardly and insidious than an anonymous blogger who posts spiteful and defamatory comments about reputable member of the public and then

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

The Federal Duty of Workplace Inspection: Reasonableness and Workplace Control

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

In Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 (“Canada Post”), the Supreme Court of Canada (“Court”) limited federally regulated employers’ duty to conduct safety inspections. Namely, the Court found that such employers only had a duty to inspect in workplaces over which they exercise control. Canada Post was an application of judicial review of a decision by the Occupational Health and Safety Tribunal of Canada (“OHSTC”). The rule-at-issue was Canada Labour Code, RSC 1985, c L-2, Part II, s 125(1)(z. 12) (“CLC”), which . . . [more]

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

Applying Vavilov: Canada Post and Health and Safety

The majority of the Supreme Court of Canada in Canada Post Corp. v. Canadian Union of Postal Workers applied its recently created new administrative law framework in Canada (Minister of Citizenship and Immigration) v. Vavilov to uphold the Occupational Health and Safety Tribunal Canada’s (OHSTC) decision that Canada Post had not contravened the federal health and safety provisions in the Canada Labour Code, thus rescinding the health and safety officer’s determination of a contravention. The dissent, however, in upholding the health and safety officer’s decision that Canada Post had contravened the Code, did not even refer to Vavilov. . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

No Frustration in New Government Policy

Purchasing a home, for many Canadians, is a significant financial decision. It is one that is often wrought with risk and challenges.

These complexities are increased when market forces or regulatory changes make make the purchase of a new home unaffordable. Unfortunately, these changes may be ones that a purchaser is stuck with, irrespective of the consequences.

The Ontario Court of Appeal reviewed one such case in Perkins v. Sheikhtavi, where the the purchaser made an unconditional offer to purchase a home in the suburbs of Toronto on April 3, 2017 for $1,871,000. As is common in the GTA, . . . [more]

Posted in: Substantive Law: Judicial Decisions

Imposing Fiduciary Duties and Jurisdictional Gaps in Collective Agreement

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

In Greig v Desjardins Financial Security Life Assurance Company, the Superior Court of British Columbia (SCBC) considered a defendant’s handling of a plaintiff’s claim for LTD benefits. SCBC held that the Defendant’s handling of the Plaintiff’s claim for long-term disability (LTD) benefits was bad enough to violate its fiduciary duty and awarded the Plaintiff $50,000 in aggravated damages and $200,000 in punitive damages, accordingly. . . . [more]

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

Innovation and Labour Protections Square Off in Food Delivery

The appropriate balance between technology and innovation on one side and labour law and protections against exploitation on the other, are about to come under scrutiny once again.

In May 2019, the 550 couriers for the app-based food delivery company Foodora in Ontario launched a union drive. The workers make a base rate of $4.50 an order, with an additional $1 for each kilometer from the restaurant to the customer.

Whereas companies such as this have revitalized some struggling restaurants, who would be unable to otherwise deliver food and expand their customer base, and have provided some low-skill employment to . . . [more]

Posted in: Substantive Law: Judicial Decisions

Toronto Taxi Drivers Denied Class Action Over Uber Licensing

Toronto likely has the most educated taxi drivers in the world.

Long dismissed as an urban myth, a 2012 study by Citizenship and Immigration Canada confirmed that over 80% of taxi drivers in Toronto are immigrants, the highest in any city in Canada, and many of them are highly educated,

Overeducation occurs both among Canadian-born and immigrant taxi drivers, but is at a higher rate among immigrants, especially among recent and very recent immigrants.

The distribution pattern of field of study for postsecondary-educated taxi drivers is quite different between the Canadian born and immigrants. For the Canadian born, nearly

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

Religious Neutrality in Recovery

With the legalization of cannabis in Canada, and greater transparency around the use of drugs, public health officials have greater interest in tracking the use and dependence of the population on various substances.

The 2017 Canadian Tobacco, Alcohol and Drugs Survey, which is conducted every 2 years, found that the prevalence of one of six illegal drugs was 15%, or 4.5 million people. At the time, cannabis was still illegal, and many researchers intend to observe whether the vast majority of these people, 4.4 million, increase or remain the same after legalization.

The survey found that alcohol use was . . . [more]

Posted in: Substantive Law: Judicial Decisions

Saving Clauses Do Not Permit Employers to Contract Out of the ESA

Written by Lewis Waring, Paralegal, Editor, First Reference Inc.

In Groves v UTS Consultants Inc, 2019 ONSC 5605 (“Groves”), the Ontario Superior Court of Justice (“SCJ”) held that an employer cannot contract out of its obligations under the Employment Standards Act, 2000 (“ESA”) by including a “saving clause” in its employment contract. Moreover, a contract that attempts to make an employer exempt from its obligations under the ESA is unenforceable, and, in Groves, the SCJ merely applied this uncontroversial principle to what is known as a saving clause. . . . [more]

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

Religion…Not Religion: Is It Really Just a Toss-Up?

It’s really not surprising that a court would find an organization that calls itself “Church of Atheism” is not a religion. But one has to ask, why couldn’t the Church of Atheism be a religion; it had many of the attributes — kind of. What is “religion”, anyway? Does it depend on context? The Federal Court of Appeal in Church of Atheism of Central Canada v. Canada (National Revenue) waded into the meaning of religion when it upheld the Minister of National Revenue’s decision that the Church of Atheism was not a religion and thus not eligible for charitable status . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Employer’s Failure to Share: Not Fair

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

The recent case of the Federal Court of Canada, Chapman v Canada (Attorney General), 2019 FC 975 (CanLII) involved the issue of procedural fairness in the context of a disciplinary investigation. A complaint of wrongdoing was made against a high-ranking public servant who was not provided any particulars of the allegation. Due to a variety of factors, the Court determined that the employee had been denied an opportunity to fully respond to the allegations. As there had been a breach of procedural fairness, the Court ordered that the matter be . . . [more]

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

Are Some Judges Just Slow Learners? Myths and Stereotypes in Sexual Assault Cases

Will we ever reach a point when how women dress or whether they don’t immediately rush to tell someone they’ve been sexually assaulted are not interpreted as superceding consent in determining whether a sexual assault has occurred? It’s been some 20 years since the Supreme Court of Canada, particularly L’Heureux-Dube J. in dissent, but also the majority, in Seaboyer emphasized the distorting role myths and stereotypes play in deciding sexual assault cases. The recent Court of Appeal decision in R. v. Lacombe tells us that some (in this case lower court) judges have still not heard the message. . . . [more]

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