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Archive for ‘Substantive Law: Judicial Decisions’

Standing to Bring a Class Action for Data Breach

It appears as if there is a major difference between Canadian and US law on standing to sue, at least in class actions.

Most US class actions by people whose personal information has been compromised in some way by a data breach have been stopped by a motion to dismiss. The essence of the argument is that the prospective plaintiffs have not suffered any demonstrable damage, and the US Constitution that authorizes the court system requires that there be a real dispute, which requires real damages.

On the other hand, the Federal Court of Appeal has just decided, in Condon . . . [more]

Posted in: Substantive Law: Judicial Decisions, ulc_ecomm_list

SCC to Rule on Dismissal Without Cause Regime Under the Canada Labour Code.

Wilson v. Atomic Energy of Canada Ltd. was thought to put to rest the long-standing debate among adjudicators of whether federally regulated employers can dismiss an employee without just cause if they meet certain criteria (Part III of the the Canada Labour Code (“the Code”) provides protection in the form of reinstatement for employees dismissed “without just cause”).

In January of this year, the Court of Appeal upheld the Federal Court’s decision to allow an application for judicial review concluding that the adjudicator unreasonably found that the law permits only dismissals for cause.

The Federal Court criticized the adjudicator’s reliance . . . [more]

Posted in: Substantive Law: Judicial Decisions

When “use” Is Not Trademark “use”

Law sometimes hinges on subtle distinctions that are not obvious, and can lead to surprising results. The meaning of the word “use” for trademark purposes, for example.

A key principle of trademark law is that a business must actually “use” its trademark to keep its trademark registration alive, or to enforce its trademark rights against others.

But the legal concept of “use” for trademark purposes is narrower than most would suspect, and can result in a surprising loss of trademark rights for a business.

For example, a trademark on the side of a building, or on a business card, or . . . [more]

Posted in: Substantive Law: Judicial Decisions

Novel Approaches to Sentencing in Occupational Health and Safety Convictions

The Nova Scotia Provincial Court is taking new approaches to dealing with occupational health and safety violations. Recently, it sentenced a company found guilty of breaching Occupational Health and Safety laws to complete community service hours.

The sentence was delivered pursuant to Section 75 of Nova Scotia’s Occupational Health and Safety Act, which allows the court to order any number of creative conditions which serve the purpose of “securing the offender’s good conduct and…preventing the offender from repeating the same offence”.

The company’s conviction came after an experienced employee was fatally electrocuted. In determining culpability, the Court found that . . . [more]

Posted in: Substantive Law: Judicial Decisions

Uber Drivers Found to Be Employees in California: Canadian Provinces to Follow?

A recent decision from the California Labour Commission (the Commission) has held that drivers from the popular Uber service are employees and not independent contractors. This decision has sparked public interest as its implications could bring trouble for the successful mobile-based start-up.

In coming down on the side of the drivers, the Commission concluded that the employer was involved in “every aspect of the operation” of the ride hauling service. Uber, however, has appealed the decision emphasizing the significant degree of driver autonomy as the basis for their operations and stating that “the number one reason drivers choose to use . . . [more]

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

Sexual Harassment in Toronto’s Restaurants

Recently, allegations of sexual harassment in the kitchen of a trendy Toronto restaurant have ignited a dialogue about workplace harassment. While this doesn’t excuse it, industry veterans aren’t surprised by the complaint, saying that many of Canada’s restaurants have a workplace culture that is overwhelming male, close-knit, and full of sexualized banter.

The employee at the heart of the controversy says she was aware of the industry’s reputation when she accepted the job. “I just thought this came with the job and it was something I just had to overcome,” she reports.

In Ontario, sexual harassment in the workplace . . . [more]

Posted in: Substantive Law: Judicial Decisions

Passing the Smell Test: The Duty Accommodate Employees With Scent Sensitivities

The British Columbia Human Rights Tribunal recently considered the types of accommodations employers are required to make with regard employees with scent sensitivites.

The employee, a teacher with the Coquitlam School District, filed a complaint with the Tribunal alleging that her employer’s failure to provide a scent-free work environment amounted to discrimination on the basis of physical disability, contrary to British Columbia’s Human Rights Code.

In an attempt to accommodate her disability, the School Board and the employee agreed upon an exposure control plan that would allow the employee to take steps to minimize her allergic reaction, including leaving the . . . [more]

Posted in: Substantive Law: Judicial Decisions

Human Rights Tribunal’s Finding of Disability Discrimination in Employment Overturned

The Court of Queen’s Bench of Alberta recently overturned a finding of disability discrimination in employment in the case of Syncrude Canada Ltd v Saunders, 2015 ABQB 237 (CanLII). The Court decided that the Alberta Human Rights Tribunal erred in finding that the employee established a prima facie case of discrimination when the evidence could not reasonably support the conclusion that the employee suffered from a disability or a perceived disability requiring accommodation. . . . [more]

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

Demotion Led to Constructive Dismissal

In Ciszkowski v Canac Kitchens, the Ontario Superior Court of Justice concluded that a long-term employee was constructively dismissed when he considered himself demoted upon his return to work from heart surgery. This demotion due to his disability created a serious erosion of the working relationship. . . . [more]

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

The Civil Jury Trial Cheatsheet

Subject to limited exceptions, all parties litigating in Superior Court have the right to have the issues of fact tried, or the damages assessed, or both, by a jury.

Despite this fundamental right, civil jury trials are much more rare than trials conducted by judge alone.

A recent decision of Mew J., provides an excellent, comprehensive, summary of the law on civil jury trials including the law pertaining to the fundamental right to a jury trial and a detailed discussion of the law pertaining to a judge’s discretion to strike a jury notice.

The decision is a useful read for . . . [more]

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

Clear Language Trumps Fairness When Interpreting Multiple Collective Agreements

A 7 year battle over a day of paid personal leave has finally reached a conclusion.

The dispute centred around the interpretation of the collective bargaining agreement governing a unionized employee of the Canada Revenue Agency (CRA). The employee, during the span of one fiscal year, moved from one position within the Agency to another. Each position was in a different bargaining unit with its own collective agreement. Each collective agreement entitled workers to one paid personal day per fiscal year. The employee took a personal day under each agreement (in the same year). The Agency refused to . . . [more]

Posted in: Substantive Law: Judicial Decisions