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Archive for ‘Substantive Law: Judicial Decisions’

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

Police Power to Arrest Protesters for Their Own Safety

Despite the increased ability of citizens to voice their political opinions through online media, or perhaps because of it due to the creation of “echo chambers,” political expression in person has retained its attraction in our democracy.

The greater polarization observed online is also reflected in real life.

Last month, an anti-LGBTQ Christian group’s march through Toronto’s gay village was met by a rally promoting unity. The counter-protest was just as notable, but both were dwarfed by the police presence, which kept the two groups apart. At times, this separation was achieved forcibly.

Similar protests and counter-protests, especially with white . . . [more]

Posted in: Substantive Law: Judicial Decisions

Discriminatory Hiring Practices a Blind Spot in the Legal Industry

Written by Lewis Waring, Paralegal, Editor at First Reference

In Moore v Ferro (Estate), 2019 HRTO 526 (CanLII) (“Moore”), a British-trained lawyer licensed to practice in Ontario applied for a position at a law firm and was denied. The applicant responded to his denial by claiming that the law firm had discriminated against him in violation of the Ontario Human Rights Code.

The nature of that discrimination, the applicant claimed, was based upon his race and age and was demonstrated by the firm’s interview procedure, refusal to hire him and the language used in their correspondence with him. . . . [more]

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

Journalistic Sources Protection Act Evaluated by Supreme Court

Despite the important role that the media plays in a democracy, Canada has long lagged behind other jurisdictions when it came to source protection. When law enforcement sought an order under the Criminal Code or compelled disclosure was sought through civil discovery, the courts were forced to resort to common law principles.

With the passing of Bill S-231 -An Act to amend the Canada Evidence Act and the Criminal Code in 2017, Canada formalized these protections through the Journalistic Sources Protection Act.

Some of the main features of the Act include a broad definition of a journalist. The Court . . . [more]

Posted in: Substantive Law: Judicial Decisions

Lack of Clarity on Discretionary Payments Benefited Terminated Employee

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

In Thoma v Schaefer Elevator Components Inc., 2019 BCSC 100 (CanLII), the British Columbia Supreme Court re-affirms the need for employers to establish and communicate clear and explicit rules when discretionary bonuses form part of an organization’s compensation scheme. These rules should regulate an employee’s entitlement to bonus payments (both during employment and during a notice period), as well as the eligibility criteria and how and when payments are to be made. This case shows how a lack of clarity in this respect can expose an employer to significant financial liability, . . . [more]

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

UK Supreme Court on Prorogation: The Role of Unwritten Constitutional Principles

This morning, the UK Supreme Court issued its unanimous decision on Prime Minister Boris Johnson’s advice to the Queen to prorogue Parliament. Its decision in R (on the application of Miller) v. The Prime Minister and Cherry and others v. Advocate General for Scotland held that the Prime Minister had broken the law because the length of the prorogation without reasonable justification “prevented Parliament from carrying out its constitutional role [of holding the Government to account]” [para.56].

The decision is significant in finding that considering whether the Prime Minister acted lawfully in this instance is justiciable and that the reasons . . . [more]

Posted in: Substantive Law: Judicial Decisions

Court of Appeal Finds No Expression Interests in Bill 5

Toronto might be the megalith of cities when it comes to Canada’s metropolis, but it has no constitutional authority to oppose the province’s interference with municipal elections. That is the invariable conclusion arising out of the Ontario Court of Appeal’s decision this week.

The split 3-2 decision largely focused on two main issues. The first, whether unwritten constitutional principles could provide a basis to resist provincial modifications of the election, was unanimously decided by the court. The dissent only differed from the majority on the applicability of s. 2(b) rights in the circumstances of an ongoing election.

The majority was . . . [more]

Posted in: Substantive Law: Judicial Decisions

Workplace Safety Trumps Religious Observances in Quebec

The Quebec Court of Appeal has ruled against Sikh truck drivers who sought an exemption from wearing personal protective equipment – a helmet – as required by their employers because their religion requires them to wear a turban.

The Court ruled that workplace safety must take precedence over temporary impacts on freedom of religion.

According to Wikipedia, wearing a Sikh dastaar, or turban, is mandatory for all Sikh men. Among the Sikhs, the dastaar is an article of faith that represents honour, self-respect, courage, spirituality, and piety (https://en.wikipedia.org/wiki/Dastar).

Quick facts

In 2016, three Sikh truck drivers sought to be exempted . . . [more]

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

Challenging the Quebec End-of-Life Legislation and Medically-Assisted Dying in Truchon

In Truchon c. Attorney General of Canada, 2019 QCCS 3792 (CanLII), a decision of the Quebec Superior Court, The Honourable Christine Baudouin, JCS held that the end of life requirement under section 26 of Quebec’s End-of-Life Care Act and the “reasonable foreseeability of natural death” requirement under the Criminal Code‘s medically-assisted death requirement are both unconstitutional as contravening section 15 of the Canadian Charter of Rights and Freedoms (and that the federal provision contravenes section 7; she did not consider whether the Quebec provision contavened section 7). The facts underpinning the challenges were the same. Nevertheless, should the . . . [more]

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

The Supreme Court of Canada Decisions’ Website Is Evolving

Some of you may have noticed that after over 25 years of being hosted exclusively under the Lexum domain at https://scc-csc.lexum.com, the Supreme Court of Canada (SCC) judgments are now also available under the Court’s own domain at https://decisions.scc-csc.ca. On top of the new URL, the database has been graphically integrated with the SCC institutional website, making it easier to navigate between judgments and the rest of the information published online by the court.

Renée Thériault, the Court’s Executive Legal Officer, says “This initiative is part of the Court’s continued efforts to make case-related information more accessible . . . [more]

Posted in: Legal Information, Substantive Law: Judicial Decisions, Technology: Internet