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]
Archive for ‘Substantive Law: Judicial Decisions’
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]
The Saskatchewan Labour Relations Board (Board) notes that the following case is a “cautionary tale” for corporate directors. That is, the corporate directors in this case, unfortunately, “failed to scrutinize rigorously” the information provided to them by management and effectively left the day-to-day workings of the business’ operations solely to the owner, much to their detriment. . . . [more]
It has been a little under seven years since Bill 168 made amendments to Ontario’s Occupational Health and Safety Act (OHSA) by adding employer obligations regarding the prevention of workplace violence and harassment. Considering the release of recent employer convictions for failing to comply with employer obligations to prevent and protect workers from violence under OHSA, we thought it would be good to look at some of these cases and revisit the legislation to help employers understand those obligations and comply. . . . [more]
Codification can be a wonderful thing. It helps consolidate all of the myriad of rules and exceptions that exist in the common law, and lays it out in one place for everyone to find.
But codification also has its drawbacks. Once enshrined in statute, there can be a tendency towards complacency.
The best example of this of course would be the Criminal Code of Canada. First enacted in 1892, it was modeled after a proposed a codification in Britain written by James Fitzjames Stephen, which never made it past Second Reading there. The reason for its codification was that John . . . [more]
In February, we posted a discussion with respect to how workplace political expression could go awry with human rights law. The article also provided best practices on how human resources professionals and employers can appropriately address human rights complaints specifically on the basis of political belief, activity or association. However, a comment sparked further discussion on how workplace political expression could also contravene harassment provisions under occupational health and safety legislation. . . . [more]
If a court or regulator allows e-filing but requires the filer to retain an original signed document, can that original itself be electronic?
A bankruptcy court in California recently issued sanctions against an attorney who filed electronic documents without retaining an “original” of the documents as required by the Rules – because the documents held by the attorney were signed using Docusign, and they did not qualify as originals for that purpose. Here is an article about the decision.
Here is the rule in the Court Manual:
. . . [more]
Court Manual section 3.4(1)(4): Retention of Original Signatures. The registered CM/ECF User
Love it or hate it, we all have to do continuing professional development (CPD).
One lawyer hated it so much that he refused to do it at all. When the Law Society of Manitoba automatically suspended him, he took his challenge all the way to the Supreme Court of Canada.
As you might expect, the lawyer was unsuccessful on his appeal in Green v. Law Society of Manitoba, released this week. The law society was empowered under the Legal Profession Act to achieve its mandate of self-regulation and protecting the public interest. The power to create a CPD scheme . . . [more]
The state of the media in Canada is increasingly precarious, with several newspaper chains demonstrating indicators of financial difficulty. Reader’s Digest filed for bankruptcy in 2009, and just last year Postmedia merged with Sun, La Presse in Montreal ceased weekday prints, Guelph Mercury went digital only, and the Toronto Star announced layoffs and shutdowns.
The biggest casualty in these financial woes is the lack of independent and investigative journalism, given the resources and difficulty in producing this type of content. . . . [more]