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]
Archive for ‘Substantive Law: Judicial Decisions’
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]
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]
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,
. . . [more]
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
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]
In 2006, the Supreme Court of Canada held in S (DB) v G (SR) stated,
60 No child support analysis should ever lose sight of the fact that support is the right of the child…
While this is trite law, the concept still comes up in unique circumstances such as with a disabled adult child who may have an entitlement to support under the Divorce Act, but would not under Ontario’s Family Law Act.
This distinction was explained in the Ontario Superior Court of Justice decision in Jason Vivian v. Nicole Courtney et al. in 2011,
. . . [more]
In Malcom Gladwell’s “Outliers,” he proposes that an individual’s success is as much based on their context as their personal attributes. Most of us concede that “nurture” is still almost always necessary, even when any “nature” in talent is latently found. Gladwell takes this one step further though, and proposes that true success or mastery of a skill requires 10,000 hours of dedication.
Of course Gladwell focuses extensively on lawyers in this premise, dedicating at least Chapter 5 to the elusive Wall Street lawyers,
. . . [more]
No one rises to the top of the New York legal profession unless he
On June 15, 2017, the Supreme Court of Canada dismissed an appeal in a case involving an Alberta worker who was fired by a mining company after testing positive for drug use. In an 8–1 ruling, the court said the Alberta Human Rights Tribunal was right to conclude that the man was fired for breaching the company’s drug policy, not because of his addiction. Moreover, the Supreme Court of Canada found the employer didn’t fire the employee for the addiction to drugs, but for breaching the employer’s drug policy to self‐report his drug use. . . . [more]
We meant what we said, when we described in R. v. Jordan last year, “a culture of complacency towards delay in the criminal justice system.” This could encapsulate what the Supreme Court of Canada signaled in its recent decision in R. v. Cody, where they rejected submissions by interveners by provincial governments to provide greater flexibility in applying unreasonable delay.
Section 11(b) of the Charter was always expected to be interpreted judicially as to what a reasonable delay in our justice system meant. The highly subjective nature of prejudice under the previous 1992 Morin framework was also unpredictable, as . . . [more]
The Ontario Court of Appeal has clarified that “exceptionally comprehensive” language may not be required to release claims that were unknown at the time the release was signed.
A release of a category of claims arising prior to a certain date, does not need to say unknown claims in that category are being released. There is no need to further specify the types of claims. All claims are included – even unanticipated claims – unless specifically excluded.
When the legislature codifies principles of common law, it can be perceived as a pruning of the living tree, helping to direct the law in growing in a specific direction, and sometimes preventing it from growing in other directions entirely.
The area of occupier’s liability is a perfect example of this. The Supreme Court of Canada conducted an exercise of statutory interpretation over the Occupier’s Liability Act, which was created in 1980, in the 1991 case of Waldick v. Malcolm. At the time, provincial legislatures across Canada were attempting to consolidate this area of law in their respective jurisdictions. . . . [more]
Written wholly by Cristina Lavecchia, Editor at First Reference
The issue in this matter was whether or not the employee was terminated for just cause. It was the employer’s position that it properly terminated the employee for just cause. That is, the employee was absent without leave for a four-week period, the employer attempted to contact the employee to no avail, and the employee failed to contact the employer or provide any information of a medical nature to explain his absence. The Arbitrator in this matter, however, did not quite agree with the employer. In essence, the Arbitrator expressed that . . . [more]