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Archive for ‘Substantive Law: Judicial Decisions’

Novel Approaches to Sentencing in Occupational Health and Safety Convictions

The Nova Scotia Provincial Court is taking new approaches to dealing with occupational health and safety violations. Recently, it sentenced a company found guilty of breaching Occupational Health and Safety laws to complete community service hours.

The sentence was delivered pursuant to Section 75 of Nova Scotia’s Occupational Health and Safety Act, which allows the court to order any number of creative conditions which serve the purpose of “securing the offender’s good conduct and…preventing the offender from repeating the same offence”.

The company’s conviction came after an experienced employee was fatally electrocuted. In determining culpability, the Court found that . . . [more]

Posted in: Substantive Law: Judicial Decisions

Uber Drivers Found to Be Employees in California: Canadian Provinces to Follow?

A recent decision from the California Labour Commission (the Commission) has held that drivers from the popular Uber service are employees and not independent contractors. This decision has sparked public interest as its implications could bring trouble for the successful mobile-based start-up.

In coming down on the side of the drivers, the Commission concluded that the employer was involved in “every aspect of the operation” of the ride hauling service. Uber, however, has appealed the decision emphasizing the significant degree of driver autonomy as the basis for their operations and stating that “the number one reason drivers choose to use . . . [more]

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

Sexual Harassment in Toronto’s Restaurants

Recently, allegations of sexual harassment in the kitchen of a trendy Toronto restaurant have ignited a dialogue about workplace harassment. While this doesn’t excuse it, industry veterans aren’t surprised by the complaint, saying that many of Canada’s restaurants have a workplace culture that is overwhelming male, close-knit, and full of sexualized banter.

The employee at the heart of the controversy says she was aware of the industry’s reputation when she accepted the job. “I just thought this came with the job and it was something I just had to overcome,” she reports.

In Ontario, sexual harassment in the workplace . . . [more]

Posted in: Substantive Law: Judicial Decisions

Passing the Smell Test: The Duty Accommodate Employees With Scent Sensitivities

The British Columbia Human Rights Tribunal recently considered the types of accommodations employers are required to make with regard employees with scent sensitivites.

The employee, a teacher with the Coquitlam School District, filed a complaint with the Tribunal alleging that her employer’s failure to provide a scent-free work environment amounted to discrimination on the basis of physical disability, contrary to British Columbia’s Human Rights Code.

In an attempt to accommodate her disability, the School Board and the employee agreed upon an exposure control plan that would allow the employee to take steps to minimize her allergic reaction, including leaving the . . . [more]

Posted in: Substantive Law: Judicial Decisions

Human Rights Tribunal’s Finding of Disability Discrimination in Employment Overturned

The Court of Queen’s Bench of Alberta recently overturned a finding of disability discrimination in employment in the case of Syncrude Canada Ltd v Saunders, 2015 ABQB 237 (CanLII). The Court decided that the Alberta Human Rights Tribunal erred in finding that the employee established a prima facie case of discrimination when the evidence could not reasonably support the conclusion that the employee suffered from a disability or a perceived disability requiring accommodation. . . . [more]

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

Demotion Led to Constructive Dismissal

In Ciszkowski v Canac Kitchens, the Ontario Superior Court of Justice concluded that a long-term employee was constructively dismissed when he considered himself demoted upon his return to work from heart surgery. This demotion due to his disability created a serious erosion of the working relationship. . . . [more]

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

The Civil Jury Trial Cheatsheet

Subject to limited exceptions, all parties litigating in Superior Court have the right to have the issues of fact tried, or the damages assessed, or both, by a jury.

Despite this fundamental right, civil jury trials are much more rare than trials conducted by judge alone.

A recent decision of Mew J., provides an excellent, comprehensive, summary of the law on civil jury trials including the law pertaining to the fundamental right to a jury trial and a detailed discussion of the law pertaining to a judge’s discretion to strike a jury notice.

The decision is a useful read for . . . [more]

Posted in: Practice of Law, Substantive Law: Judicial Decisions

Clear Language Trumps Fairness When Interpreting Multiple Collective Agreements

A 7 year battle over a day of paid personal leave has finally reached a conclusion.

The dispute centred around the interpretation of the collective bargaining agreement governing a unionized employee of the Canada Revenue Agency (CRA). The employee, during the span of one fiscal year, moved from one position within the Agency to another. Each position was in a different bargaining unit with its own collective agreement. Each collective agreement entitled workers to one paid personal day per fiscal year. The employee took a personal day under each agreement (in the same year). The Agency refused to . . . [more]

Posted in: Substantive Law: Judicial Decisions

Email Could Not Be Covered Under Solicitor-Client Privilege

An Ontario court has compelled an employer to produce an email message between HR staff and counsel in the wrongful dismissal case of Jacobson v Atlas Copco Canada Inc. The Superior Court of Justice found the employer failed to show that the message involved seeking or giving legal advice; thus it could not be protected by solicitor-client privilege. . . . [more]

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

A Meaningful Mediation Avoiding Remedial Costs

The issue of remedial costs, previously discussed here, posed one of the few checks on the growing power of insurance companies in Ontario for motor vehicle collisions.

The Ontario Court of Appeal recently released its decision in Ross v. Bacchus, reversing the trial judge’s award of remedial costs against the insurer for failing to comply with its obligations under the Insurance Act. Justice Doherty stated,

[51] Insurers, like any other defendant, are entitled to take cases to trial. When an insurer rejects a plaintiff’s offer and proceeds to trial, the insurer risks both a higher damage award

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

When Unions Fight

Headlines get made when employers and unions wage labour war. Teachers fighting provinces, police officers fighting cities and postal workers fighting Canada Post all make for great news. Inter-union fighting makes less noise but is also fascinating when it ends up before labour tribunals. A recent case provides a great example of what happens when unions “raid” each other (“raiding” is when one union attempts to sign up members represented by another union).

The story seems to start here, with the International Association of Machinists and Aerospace Workers (IAMAW) talking to its membership (Toronto area airport screeners) about . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions