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Archive for ‘Substantive Law: Judicial Decisions’

Words, and Black Lives, Matter

In 1977, the Supreme Court of Canada heard the case of Smithers v. R., where two young hockey players who got into it, in and outside of the rink. In the brief altercation that ensued, one of the players died. The other player was charged and convicted of manslaughter.

The accused appealed unsuccessfully around the cause of death, which was due to asphyxiation. However, this was not due to any choking, but either the aspiration of foreign materials due to vomiting, and a malfunction of the epiglottis.

The unusual cause of death has therefore become one of the examples . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Arbitrator Upholds Properly Drafted and Applied Absenteeism Policy

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

One of the most important crucial aspects of managing the employment relationship is written policies. Company policies, when drafted and applied properly, can be an effective shield against liability in many employment law cases. Through policy, an employer sets the rights and obligations of the employer and the workers within the workplace. When employers draft up-to-date policy that stays within legal boundaries and workers are kept notified about their rights and obligations under that policy, employers may often successfully fend off legal action such as wrongful dismissal or constructive dismissal. . . . [more]

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

Security of Sex Workers Paramount in Court Decision

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

The recent criminal case of R. v. Anwar, 2020 ONCJ 103 (CanLII) involved a constitutional challenge to various provisions of the Criminal Code dealing with prostitution. The challenge contained a distinct workplace safety consideration: it alleged that the interplay between the challenged sections created a legal regime which was intended to prevent sex workers from lawfully using third parties to protect them and to prevent them from associating with others for their mutual protection-aspects which are natural, expected and encouraged in all other sectors of the economy. Before eventually declaring . . . [more]

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

New ESA Termination and Severance Pandemic Regulation

On March 19, 2020, the Government of Ontario created a new regulation under the Employment Standards Act, which created a new emergency leave to protect workers who were sick from COVID-19. This was an important protection to ensure that workers were not dismissed as a result of being sick during the pandemic.

As the pandemic drags on, and social isolation and distancing rules create significant economic barriers for businesses, many lawyers have been considering whether there would be an enormous wave of employment litigation following the conclusion of the pandemic. Many employers have had to reduce wages, modify the . . . [more]

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

Provincial Insolvency Decision Hangs in Balance

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

On March 26, 2020, the Supreme Court of Canada granted leave to appeal the decision of the Alberta Court of Appeal in Canada v. Canada North Group Inc., 2019 ABCA 314 (CanLII). The decision canvasses the priority that attaches to money that is borrowed in restructuring proceedings to preserve value in an insolvent company. The decision considered whether these charges rank ahead of other claims that are also granted priority under federal legislation. The issue, therefore, was the relative ranking of “super-priority” court-ordered charges in proceedings under the Companies’ Creditors . . . [more]

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

Judicial Council Overturned on Dean Appointment

The Bora Laskin Faculty of Law was founded in 2013, to much fanfare. It was the first Canadian law school to offer an integrated licensing curriculum, and has mandatory courses in Aboriginal law.

Since that time, the school has also had its challenges, most significantly, the resignation of Angelique EagleWoman as Dean in June 2018, citing systemic racism in the law school. Given that she was the first Indigenous law dean in Canada, this resignation sent shock waves throughout the school.

EagleWoman expressed these concerns internally in writing as early as March 7, 2018, leading the university to request that . . . [more]

Posted in: Substantive Law: Judicial Decisions

Court Awards Aggravated Damages in Wrongful Dismissal Case

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

The case Acumen Law Corporation v Ojanen, 2019 BCSC 1352 (CanLII) tells the story of the abrupt and acrimonious end of an articling student’s employment with a law firm. The court rejected the range of factors purported to support just cause and, in addition to ordinary damages for breach of contract, awarded the employee aggravated or moral damages because of the way she was fired. The case serves as an important reminder to employers about the seriousness of misconduct required to support just cause, and should also encourage employers to think . . . [more]

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

Searching for the Moral High Grounds in Family Law

Although all courts are backlogged during the pandemic, there is probably no more tension right now in our justice system than with family law, especially as parents struggle with social distancing while sorting out the exchange of children.

For some family law litigants, less pressing matters such as obtaining the exclusive possession of a matrimonial home has been pushed through the courts, as in Alsawwah v. Afifi.

Justice Kurz, in granting the motion for exclusive possession to the Respondent, indicated that much of the materials were unnecessary, distracting, and unhelpful to the resolution of the motion. On this . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Open Question of Jurisdictional Boundaries of Labour Arbitrators and Human Rights Tribunals Makes Its Way to the Supreme Court of Canada

Written by Lewis Waring, Paralegal, Student-at-law, Editor, First Reference Inc.

Effects of unionization on the employment relationship

Unions have a variety of significant effects on the employment relationship and greatly affect the rights and obligations of employers and employees. The repercussions of unionization are so significant that the law surrounding unionized workplaces is considered to be an entirely distinct area of law from law surrounding non-unionized workplaces.

One such difference related to unionization is the legal path workers are allowed to take when confronted with a human rights issue in the workplace. In such a case, a non-unionized worker could . . . [more]

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

False and Misleading Claims Around COVID

We see it everywhere these days, and not just on social media. They’re touted by leaders and people in positions of power. False claims of prevention and treatment for COVID-19 are proliferating, and pose a danger to Canadians.

The Competition Bureau is aware of this and is monitoring the marketplace to ensure safety in messaging. They have already issued compliance warnings, including:

  • making claims that herbal remedies, bee-related products, vitamins, vegetables or other food and drink products can prevent COVID-19 infections; and
  • making claims—without first conducting the testing required by law—that certain UV and ozone air sterilization systems, as well
. . . [more]
Posted in: Justice Issues, Substantive Law: Judicial Decisions

Alberta Appeal Court Takes a Hands-on Approach in Sexual Assault Termination Case

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

The Court of Appeal of Alberta’s decision in Calgary (City) v Canadian Union of Public Employees Local 37, 2019 ABCA 388 (CanLII) overturns a decision on judicial review that upheld an arbitrator’s decision to reinstate an employee who had been terminated from his employment for sexual harassment. The decision serves as a powerful reminder that sexual assault is inherently serious and, when coupled with a breakdown in trust arising from the perpetrator’s dishonesty, a termination will likely be the result. . . . [more]

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

Charter Damages for G20 Actions

The Charter remains the bedrock of the Canadian constitution, even with concerns about the increased willingness of governments to derogate from those rights. Rights without a remedy may not have much meaning though, and and the enforcement provisions under the Charter itself state,

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
[emphasis added]

What this means in a factual context has not been extensively analyzed by the courts. . . . [more]

Posted in: Substantive Law: Judicial Decisions