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Archive for ‘Substantive Law: Judicial Decisions’

Company Misses the Bus With Its Dismissal

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

In Hicks and Winnipeg Exclusive Bus Tours Inc., Re, (Sept. 19, 2019), Doc. YM 2727-3941 (Can. Lab. Code Adj.) the arbitrator Bryan Schwartz was appointed by the federal Minister of Labour to hear a complaint of wrongful dismissal under the Canada Labour Code. The case provides a stark reminder to employers about the sufficiency of evidence necessary to support a claim of just cause for dismissal. . . . [more]

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

Cooperation for the Sake of Our Children

In tough times, people pull together. Instinctively we might know or believe this, but this is substantiated by the research.

Cooperation is quite common among survivors of disasters, with socially structured and adaptive behaviour often manifested in mass emergencies. From an evolutionary biological perspective this makes sense, as the countless crises that have plagued humanity over the ages were only surmountable through interreliance on others.

Despite this history, which is often unwritten, there are many myths as to how we as a society respond to disasters. These myths include mass panic, when a crowd has a limited opportunity to escape . . . [more]

Posted in: Substantive Law: Judicial Decisions

Subjective Intentions Do Not Factor Into Surrounding Circumstances

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

Pre-contract negotiations, such as prior drafts of agreements, are generally inadmissible as part of “surrounding circumstances” when interpreting a contract, and parties’ subjective intentions are always inadmissible. The Alberta Court of Appeal’s recent decision in Alberta Union of Provincial Employees v Alberta Health Services, 2020 ABCA 4 (CanLII) confirms this principle and states the limits of relying on the parties’ subjective intentions. . . . [more]

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

The Pandemic Exceptions to Limitations

From an evidentiary perspective, there are two principled reasons for having a limitations on civil actions. The first form can be found in historical precedents through ex ante statutes of repose, which establish a period of time through which an action must be initiated, barring any action after that time.

The second form is an extension of the common law doctrine of laches, which employs a discoverability rule based on reasonableness. The extent to which due diligence is exerted in this context is usually an important principle. This concept in common law also contained equitable principles that rights require vigilance . . . [more]

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

Houston, We Have a Problem With Your Termination

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

In modern times, employers and investigators alike must be increasingly technologically savvy. Evidence can take on many forms, including texts, emails and information posted to social media accounts. Many employers provide phones to their employees which are password-protected and rely on virtual storage of data in the “cloud.” As the workplace becomes further digitized, and as more offices become mobile or virtual, workplace investigations will increasingly target such elusive electronic data. As illustrated in the recent British Columbia labour arbitration decision District of Houston v. Canadian Union of Public Employees, Local . . . [more]

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

A Tour Through Pandemic Law for COVID-19

Canada has come a long way since the SARS pandemic in 2003. With the outbreak of COVID-19, here is a non-exhaustive overview of some of the ways that pandemics have come up in our legal system.

Keri Gammon makes the argument in the Dalhousie Journal of Legal Studies that given the need for local implementation, provincial jurisdiction for pandemics is still warranted,

In extreme cases, such as where one province fails to act altogether in respect of a  public health emergency, federal jurisdiction may be required if only on a temporary basis. But with respect to

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

Ambiguous Clause in Commission Policy

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

O’Reilly v IMAX Corporation, 2019 ONCA 991, the Court of Appeal for Ontario (“ONCA”) awarded a former president of IMAX two years of severance after the court agreed with the Ontario Superior Court of Justice’s ruling that he had been wrongfully dismissed. The employee in this case was 53 years old at the time of the decision. He had worked for IMAX Corporation for 22 years, finishing his tenure as President, Institutional and Strategic Sales. His compensation package at the time of his dismissal included a salary of $335,000, commissions . . . [more]

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

Representing an Unusual and Rare Motion

One of the greatest advantages of corporations as a vehicle for developing capital in society is that they usually transcend the lifetime of any particular founding individual. Corporations do not necessarily live forever though, and the winding up or bankruptcy of a company can give rise to some complexities around the division of assets.

The Companies’ Creditors Arrangement Act (CCAA) was first enacted in 1933 during an economic depression, and found to be constitutionally valid in a 1934 reference. Its purpose was described by the British Columbia Court of Appeal in Chef Ready Foods Ltd. v. Hongkong Bank of . . . [more]

Posted in: Substantive Law: Judicial Decisions

Employer’s Duty to Protect Against and Investigate Harassment

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

A recent decision of a Human Rights Adjudication Panel, T.M. v Manitoba (Justice), 2019 MBHR 13 (CanLII) has clarified the extent of an employer’s obligation to provide its employees with a safe and respectful workplace. The decision is the first time a complaint of harassment on the basis of sexual orientation was considered in that forum-is a powerful one and is full of important takeaways for employers, employees and workplace investigators alike. . . . [more]

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

Judicial Restraint Cannot Justify Blatant Abuses of Prohibitions in International Law

We all have our views and preferences about how reforms to the legal system and the creation of laws should occur.

For example, despite being a regular participant in the justice system, I see the courts as a rather blunt instrument for the creation of law, and it is often ill-suited for dealing with complex social problems. The legislature, with all of the available expertise and resources of the state, is usually far better positioned to carefully examine, explore, and determine the most precise manner in which to create and modify laws.

Yet the legislature often moves slowly, and is . . . [more]

Posted in: Substantive Law: Judicial Decisions

Natural Justice Need Not Always Apply

The Federal Court of Appeal recently released a decision in Democracy Watch v. Canada, denying two appeals, from two separate complaints, regarding Canada’s first Commissioner of Lobbying. The court concluded that the Governor in Council’s interpretation of the Lobbying Act was reasonable, and rejected the allegations of bias.

Though it might come as a surprise to some, the general principles of independence and impartiality, though clearly principles of natural justice, are not necessarily required throughout our justice system in the same way.

International human rights law generally entitles individuals to a fair and public hearing, by an independent and . . . [more]

Posted in: Substantive Law: Judicial Decisions

Welcome to 2020: A Federal and Ontario Employment and Labour Law Summary

We are almost at the end of the second month of 2020 and have compiled for you a number of upcoming employment and labour law changes and key compliance issues that federally regulated and Ontario employers need to consider in their HR and payroll practices. . . . [more]

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