Canada’s online legal magazine.

Archive for ‘Substantive Law: Judicial Decisions’

Compliment or Sexual Harassment: Where Do You Draw the Line?

Written wholly by Doug Macleod Employment and labour lawyer at MacLeod Law on First Reference Talks

Despite a number of legislative initiatives that are intended to reduce and ultimately eliminate sexual harassment in society, sexual harassment continues to be a problem in Ontario’s workplaces.

One of the more nuanced areas of sexual harassment law is what kind of language a male can direct towards a woman in the workplace. Sometimes there is a fine line between complimenting a female co-worker and sexually harassing her.

An occasional non-sexualized compliment is usually not a problem but a comment of a sexual nature . . . [more]

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

Perceptions Matter, but Reality Matters More

Judges are not immune from scrutiny, but we should be cautious in the manner in which we exert that scrutiny.

Sometimes that scrutiny is thrust directly into the public forum, as with Justice Zabel’s incident on Nov. 9, 2016, when he wore a hat from the American president’s election campaign.

Lawyers were upset, understandably, as there were legitimate concerns about political partisanship generally, but also about the appearance of bias towards any of the historically marginalized or radicalized groups that the presidential candidate had made offensive comments about. The public were even more concerned, especially where a Canadian judge appeared . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Tribunal Addresses Disabled Employee Resignations

In addition to affirming that an employee’s resignation must be clear and unequivocal to be valid, this case tells us that employers do not have a greater onus when it comes to long-term disabled employees who resign. The British Columbia Human Rights Tribunal did not accept the employee’s claim that it was unreasonable in the circumstances for her employer to conclude that she wished to resign without further inquiry. . . . [more]

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

New MMS.watch Website Tracks Constitutionality of Canadian Mandatory Minimum Sentences

Mandatory minimum sentences (MMS) for criminal and drug offences have been getting a lot of attention lately. The federal government recently conducted a public survey on MMS, causing some commentators to wonder whether the Liberals will make good on their campaign promises to roll back the MMS created by the previous government. The question is timely since Parliament resumes next week. Even StatsCan’s excellent Juristat weighed in last month with a detailed analysis of the effects of MMS.

We noticed that much of this debate was happening without reference to just how many MMS have already been struck down as . . . [more]

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

Court Stays Criminal Negligence Charge Against Worker

The Ontario Superior Court of Justice stayed a criminal negligence charge against a boom truck worker who pleaded guilty to an Occupational Health and Safety Act charge three years earlier after causing a workplace fatality. The Court reasoned, in part, that the police’s uncertainty in laying the criminal charges after the worker’s guilty plea to the OHSA charges constituted a breach of the sense of fair play. The Court cited a breach of sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. . . . [more]

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

Employee’s Appeal for Dismissal of His Wrongful Termination Action Rejected

The employee in this case appealed the dismissal of his wrongful dismissal action. One of the issues on appeal was whether the trial judge reversed the onus on the employee to prove just cause. . . . [more]

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

An Online Newspaper Is Not a Newspaper

Newspapers have for centuries played a central role in giving effect to freedom of expression in Western democracies. The limits, and privileges, afforded to them have changed over time. The courts are still struggling to redefine these limits, especially in a digital era when even traditional newspapers are increasingly moving their content online.

The inception of the printing press in the 15th-16th c. revolutionized Western Europe, widely disseminating ideas like never before. Many of these ideas were considered dangerous to the state, either treasonous or heretical (or both, given the close relationship between church and state at that time), and . . . [more]

Posted in: Substantive Law: Judicial Decisions

British Columbia Human Rights Commission Coming Back After 15 Years

On August 4, 2017, the newly elected NDP government announced that they will “re-establish a human rights commission to fight inequality and discrimination in all its forms.” . . . [more]

Posted in: Justice Issues, Practice of Law, Practice of Law: Future of Practice, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

Company That Released Result of Employee’s Drug Test Contravened Privacy Law

Written by Cristina Lavecchia, Editor, First Reference Inc.

An employee working for a an international trucking company that is considered a federally regulated employer alleged that while his accident claim was active with a provincial workers’ compensation board (WCB), his employer informed the WCB, without his knowledge and consent, that he had tested positive in a drug test.

According to the employer, they were required to disclose this information by law. However, the WCB and the Office of the Privacy Commissioner of Canada both affirmed that the circumstances in this case did not require the employer to make such a . . . [more]

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

A Judicial Vision of Canada at 150 and Beyond

For most of us today, the Supreme Court of Canada is the arbiter of the most complex questions of law, and the definitive authority for morality in our democracy.

It wasn’t always that way. In 1867, Canada was still largely an extension of the British Empire, and the Judicial Committee of the Privy Council in London (England, not Ontario), was still maintained for appeals until 1949. The King–Byng Affair and Balfour Declaration let to an amendment of the Supreme Court Act in 1949, and the final case being appealed to it in 1959.

It’s influence quickly accelerated. In 1968, . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Problems in Family Law Are More Than Just Gender

Lawyers agree on few things, but one of the issues that there appears to be consensus on is that the legal system is in crisis. The family law system is particularly strained, and complaints about family law go back decades.

I touched on this briefly in my recent column in National Magazine,

From 1997 to 1999, the Special Joint Committee on Child Custody and Access studied the impact of family law on children. The main complaint was that the process affected parents’ relationships with their children.

Litigants (sic) pointed to a presumed gender bias in the courts, unethical practices

. . . [more]
Posted in: Justice Issues, Substantive Law: Judicial Decisions

Employer Dodges Penalty After Failing to Adhere to Re-Employment Obligations

The Ontario Workplace Safety and Insurance Appeals Tribunal (WSIAT) recently addressed if and when a penalty should be imposed on an employer who failed to adhere to their re-employment obligations when it comes to employees who get hurt on the job. In this particular case, the Panel decided that a re-employment penalty would not be imposed on the employer, in part because the worker’s conduct played a substantial role in the termination of his employment. . . . [more]

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