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Archive for ‘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

A Purposive Interpretation May Not Be Liberal and Generous

The wheels of justice move slowly. So slowly sometimes, that their conclusion occurs after all practical considerations for the parties are finished.

The Supreme Court of Canada’s decision in R. v. Poulin is an example of this, with the defendant passing away within four months of the Court granting leave for appeal.

In case you were wondering, he did not have the opportunity to file his factum.

Prior to his demise, the Crown had unsuccessfully sought to bring a motion to suspend the execution of his conditional sentence. The conditional sentence provided by the trial judge was due to his . . . [more]

Posted in: Substantive Law: Judicial Decisions

The Expanding Meaning of “Other Cause”: Support Entitlement Beyond the Age of Majority

I continue to be amazed by the speed with which judicial interpretation of family law statutes evolves, and how that evolution undermines what little certainty those statutes provide to separating parents. As family law lawyers will recall, section 2(1) of the Divorce Act provides that:

“Child of the marriage” means a child of two spouses or former spouses who, at the material time … is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessities of life.

Once upon a . . . [more]

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

Application of a Workplace Absenteeism Policy

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

In Teamsters Local Union 847 v Maple Leaf Sports and Entertainment, 2019 CanLII 95328 (ON LA), a labour arbitrator upheld the reasonable application of a workplace absenteeism policy. Although the employee’s excessive absenteeism was because the employee tried to better herself and upgrade her training, the employer was still justified in dismissing her. . . . [more]

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

Duty to Consult Is Not a Veto

Energy projects in Canada are of enormous public interest, with significant economic, social, and environmental affects. The National Energy Board Act allowed for the National Energy Board to provide a report for the certification of a pipeline, with recommendations to the Governor in Council, while considering the following relevant factors:

  • (a) the availability of oil, gas or any other commodity to the pipeline;

  • (b) the existence of markets, actual or potential;

  • (c) the economic feasibility of the pipeline;

  • (d) the financial responsibility and financial structure of the applicant, the methods of financing the pipeline and the extent to which Canadians

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

Unexpected Events, International Trade, and Contractual Obligations

In a globalized economy, unexpected events on the other side of the world can easily have direct economic impacts on the Canadian economy. Complex supply chains and strategic imports can be quickly disrupted by political, social, or medical issues.

One contemporary example would be with the coronavirus emerging in China. The China Council for The Promotion of International Trade (CCPIT), which was founded in 1952, and is responsible for developing business cooperation and exchange with other countries, announced this week, announced they will provide force majeure certificates for companies impacted by the coronavirus outbreak. CCPIT is the agency most famously . . . [more]

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

Lack of Employee Status Disentitles Worker to Damages

By Daniel Standing LL.B., Editor, First Reference Inc.

In Farren v Elite Service Group Inc. 2020 BCSC 23 (CanLII), Justice Iyer of the Supreme Court of British Columbia refined various factors to determine the true nature of the working relationship, concluding that the plaintiff was an independent contractor. As such, the law of wrongful dismissal did not govern the termination of his services, leaving the plaintiff disentitled to reasonable notice of termination or damages in lieu of such notice. . . . [more]

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

R. v. Chouhan: The Reasonable Person Test and Application of the Amendments

After a jury found Gerald Stanley not guilty of second-degree murder in the shooting death of Colten Boushie, the federal government amended the Criminal Code to eliminate peremptory challenges in the selection of juries, as well as a change in the trier of challenges for cause. Judges took different views about whether this change was prospective or retrospective. As the Ontario Court of Appeal has now ruled on this matter in Chouhan, many cases, decided on the wrong side of the issue, are likely to be appealed. Indeed at least one, an individual convicted for sexual assault, already . . . [more]

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

Where There Is Smoke, There Isn’t Always a Claim

Firefighting can be a physically and emotionally demanding job, and one that comes with many risks. One of the greatest risks faced is not even from the fire, but from the health effects of smoke.

The leading cause of death for firefighters is heart attacks, which is attributable to about half of all on duty deaths. A 2017 study in the American Heart Association’s journal Circulation attributed this to heart strain due to exposure to extreme heat. The authors drew these conclusions after placing several individuals under stress conditions while monitoring blood flow to the heart.

Ontario’s Workplace Safety and . . . [more]

Posted in: Substantive Law: Judicial Decisions

Common Law Expansions to Anonymous Defamers Online

The issue of anonymous parties engaging in defamation has been one of the primary issues in online defamation. In many cases, the matter is often resolved as soon as this identity is ascertained. As such, de-anonymizing has been one of the primary strategies employed by plaintiff’s counsel in such actions.

In Manson v John Doe, Justice Goldstein granted judgment against an anonymous blogger who had been noted in default, and stated,

[20] There are few things more cowardly and insidious than an anonymous blogger who posts spiteful and defamatory comments about reputable member of the public and then

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

The Federal Duty of Workplace Inspection: Reasonableness and Workplace Control

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

In Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 (“Canada Post”), the Supreme Court of Canada (“Court”) limited federally regulated employers’ duty to conduct safety inspections. Namely, the Court found that such employers only had a duty to inspect in workplaces over which they exercise control. Canada Post was an application of judicial review of a decision by the Occupational Health and Safety Tribunal of Canada (“OHSTC”). The rule-at-issue was Canada Labour Code, RSC 1985, c L-2, Part II, s 125(1)(z. 12) (“CLC”), which . . . [more]

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

Applying Vavilov: Canada Post and Health and Safety

The majority of the Supreme Court of Canada in Canada Post Corp. v. Canadian Union of Postal Workers applied its recently created new administrative law framework in Canada (Minister of Citizenship and Immigration) v. Vavilov to uphold the Occupational Health and Safety Tribunal Canada’s (OHSTC) decision that Canada Post had not contravened the federal health and safety provisions in the Canada Labour Code, thus rescinding the health and safety officer’s determination of a contravention. The dissent, however, in upholding the health and safety officer’s decision that Canada Post had contravened the Code, did not even refer to Vavilov. . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions