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Archive for ‘Substantive Law: Judicial Decisions’

Motivations Irrelevant for Determining the Public Interest

Following the Court’s decisions in Pointes/Platnick, anti-SLAPP motions continue to be brought in defamation actions. These decisions will continue to build and refine test created by the Court, and how it can be applied.

One particular aspect is determining what exactly is in the public interest for the purpose of s. 137.1(4)(b), which is the main focus of analysis after the Court’s decision. A recent Ontario Court of Appeal decision in Sokoloff v. Tru-Path Occupational Therapy Services Ltd. helps expound on this issue.

The action emerged from a dispute between a well-known lawyer in Toronto, and a the President . . . [more]

Posted in: Substantive Law: Judicial Decisions

Park Evictions During a Pandemic

To the uninitiated, it looks a bit like urban camping. Take a closer look though, and you’ll see their entire life belongings, and evidence that these camps are not recreational, but a matter of survival.

What we’re referring to of course are the numerous tent encampments that have proliferated across Canada during the pandemic. Other alternatives often resorted to in those without permanent housing, including couch surfing, staying with friends or family members temporarily, and even shelters and respite centres, may not be appropriate in the circumstances, including providing inadequate distancing from others.

These encampments give rise to a . . . [more]

Posted in: Substantive Law: Judicial Decisions

Employees’ Imperfect Right to Reasonable Accommodation

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

Human rights claims are often the result of an employee’s claim that their employer has failed to accommodate their needs. Whether such claims arise due to an employee’s disability, family status, gender, religion or any other human rights ground, employees have a duty to accommodate the human rights needs of their employees. However, the duty to accommodate does not require employers to provide employees with their ideal option. Instead, employees are only required to provide reasonable accommodation.

In a recent British Columbian human rights case, an employer fulfilled its duty . . . [more]

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

Discouraging Sexual Harassment Through Human Rights

Damages before the Human Rights Tribunal have historically been modest, especially when compared to similar cases before the Superior Court of Justice.

The system was transformed considerably in 2006 after Bill 107, Human Rights Code Amendment Act, which allowed the Tribunal to award higher damages starting in 2008, by removing the $10,000 limit on compensatory awards for mental anguish. Under the current provisions in s. 45.2 of the Code, the Tribunal may make any order to compensate the applicant for loss arising out of the infringement, which includes compensation for injury to dignity, feelings and self-respect.

Despite these . . . [more]

Posted in: Substantive Law: Judicial Decisions

Supreme Court Clarifies Law on Adverse Effect Discrimination

The Supreme Court of Canada’s decision in Fraser v. Canada (Attorney General), 2020 SCC 28 provides a sweeping overview of the law of adverse effect discrimination. This decision specifically targets the alleged discriminatory effect of the RCMP’s policy not to allow those who temporarily reduce their working hours under a job-sharing agreement to “buy back” these periods of reduced working hours for the purposes of their pension. In contrast, those who experienced gaps in their record of service by reason of suspension or spending time on unpaid leave did have the opportunity to buy back pensionable service time. After . . . [more]

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

Dissecting the Majority and Dissenting Opinions in Fraser

The Supreme Court of Canada’s recent decision in Fraser v. Canada (Attorney General) (“Fraser”) illustrates the fissures on the Court in the judges’ approaches to equality undersection 15(1) of the Canadian Charter of Rights and Freedoms. Although there are also other factors explaining the differences in the majority and dissenting opinions, here I discuss three that are somewhat distinct from the facts of the case: the nature of “equality” under section 15(1); the interrelationship between the law and the social and economic context; and the role of the courts. . . . [more]

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

Public Interest Litigation Keeping the Homeless Safe

Early in the pandemic, António Guterres the 9th Secretary-General of the United Nations, stated,

Early signs are that the COVID-19 virus poses a greater direct health risk to men, and particularly older men. But the pandemic is exposing and exploiting inequalities of all kinds, including gender inequality. In the long term, its impact on women’s health, rights and freedoms could harm us all.

More recently, Canada’s deputy chief public health officer, Dr. Howard Njoo, highlighted the need for better data to address the inequalities that the pandemic has exposed.

We already know that despite 246,000 jobs added in August, . . . [more]

Posted in: Substantive Law: Judicial Decisions

Nurse’s Facebook Comment Not Professional Misconduct

Facebook is increasingly known to be used by older people, with well over a third of Canadians on Facebook being older than 45 years in August 2020. Despite the smaller user base, Facebook is almost two-thirds of all social media use by visits by all social media users in Canada.

With that much use, there’s bound to be problems. And where there are problems, there is often litigation.

The Saskatchewan Court of Appeal recently released a decision in Strom v Saskatchewan Registered Nurses’ Association, which set aside the decision by the Discipline Committee of the nurses’ regulatory college, that . . . [more]

Posted in: Substantive Law: Judicial Decisions

Employee Angry Outburst Leads to Short Lived Termination

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

The 2019 British Columbia labour arbitration decision regarding BC Hydro and Power Authority and IBEW, Local 258 (Vanegas), Re (2019 CarswellBC 4126), considered the case where a worker with a history of poor behaviour had an outburst in a fact-finding meeting. This culminating incident led to his dismissal. The arbitrator’s decision demonstrates the traditional analysis that takes place in disciplinary cases with a consideration for various aggravating and mitigating factors. In this case, despite the worker’s poor record and lack of remorse, several compelling mitigating factors convinced the arbitrator to substitute . . . [more]

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

Discrimination Exists Even in Commercial Tenancies

Those protesting from “diversity fatigue” often complain that some people will find indicia of subtle racism in almost everything. It’s like they dispute that these influences are subtle and pernicious, and can be found throughout the social fabric of our society.

Fortunately the courts in Ontario disagree, finding in a commercial tenancy dispute in Elias Restaurant v. Keele Sheppard Plaza Inc. regarding a refusal by the landlord to renew a commercial lease. The concept of “prejudice” as used in litigation rarely encompasses the term as it is popularly used, but its application in this case weighed in favour of the . . . [more]

Posted in: Substantive Law: Judicial Decisions

Reasonable Notice: Relevance of Worker’s Past Experience Clarified

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

In a previous First Reference article I wrote on our news service HRinfodesk, the Ontario Superior Court of Justice’s decision in which a successor employer was held liable for a 20-month notice period was written about because of the legislative presumption of continued employment in these circumstances. Readers may refer to that article for an overview of the key facts. Since then, the case was appealed and decided by the Ontario Court of Appeal. In rendering its decision, the court analyzed the common law approach to the calculation of reasonable notice, concluding . . . [more]

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

Class Proceedings Changes Proclaimed in Ontario

As of Oct. 1, 2020, significant changes to the Class Proceedings Act, 1992 come into effect in Ontario. These changes were part of the legal omnibus Bill 161, which received Royal Assent on July 8, 2020.

The amendments are intended to ensure that claims proceed more quickly, with greater opportunity to dismiss certain claims at an earlier stage. It supporters claim that it provides courts a more balanced framework to determine which chases are best suited for certification.

Some of the amendments are based on the Law Commission of Ontario (LCO) report in July 2019, including recommendations on the timing . . . [more]

Posted in: Substantive Law: Judicial Decisions