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Archive for ‘Substantive Law: Judicial Decisions’

Charter Protects Freedom of Belief, Not Objects of Belief

Canada has not had an entirely disassociated relationship with religion, from its inception.

The British monarch, who is the symbolic head of Canada, also holds the title of Supreme Governor of the Church of England, the mother church of the international Anglican Communion. The 2011 census estimates over 1.5 million Canadians, or 5% of the population, are Anglican today, making this relationship with the church not entirely insignificant.

The monarch’s Oath of Accession includes a promise to “maintain and preserve the Protestant Religion and Presbyterian Church Government,” meaning that religious plurality is also built into this symbolic role given his . . . [more]

Posted in: Substantive Law: Judicial Decisions

A Rhetorical Question for Canadian Appellate Counsel

If you were appearing before your jurisdiction’s Court of Appeal and:

  1.  you didn’t mention one of the Court’s own decisions decided within the year, deciding one of the central issues in the case you were on; or
  2.  mentioned that case but on another point without mentioning that it had decided the issue in your case; or
  3. relied on a decision of your Court of Appeal for a proposition which had been rejected by the Supreme Court in at least 3 decisions after that Court of Appeal decision and (you did so) without mentioning the SCC decisions on point; or
  4. argued
. . . [more]
Posted in: Substantive Law: Judicial Decisions

Employers Can Be Found Liable for Negative Employment References

Two recent cases out of Ontario’s Superior Court, Papp v Stokes Economic Consulting Inc., (Papp) and Kanak v Riggin, (Kanak), provide guidance to employers on avoiding liability when giving employment references. Although in both Papp and Kanak the employers were cleared of any liability, both cases confirm that employers can be found liable for defamation when providing a negative reference. . . . [more]

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

Judging and the Depletion Effect

“Justice is what the judge ate for breakfast”. – Judge Jerome Frank

In Thinking Fast and Slow, Daniel Kahneman Nobel Prize winner explains this phenomenon. In a study of parole judges, the researchers plotted the proportion of approved requests for parole against the time since the last food break. It was found that the prospect of someone being granted parole changed during the elapsed time between food breaks.

The cases before the parole judges were presented in random order. Each case took around 6 minutes to hear. After each meal, the proportion of people granted parole increased.

Kahneman explained . . . [more]

Posted in: 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