Canada’s online legal magazine.

Archive for ‘Substantive Law’

Alberta Employer Discriminates by Refusing to Accept Rare Disease Test

Written by Lewis Waring, LL.B., Editor, First Reference Inc.

In a recent Alberta ruling, an employer was found to have failed to accommodate an employee’s rare disability when it refused to accept a lesser known medical test. Instead of maintaining a flexible attitude, the employer arbitrarily decided to reject the employee’s medical evidence merely because the test violated its policy. As a result, the employer was found liable for disability discrimination under the Alberta Human Rights Act.

Background

The employer was a public sector health services organization. The employee worked for the employer from 1992 in different positions until . . . [more]

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

CHARTER ISSUES as REFLECTED in SECTION 3 and the WORKING FAMILIES DECISIONS: PART 2

Preamble

This post is the second of a series considering three major issues under the Canadian Charter of Rights and Freedoms: the impact of how the Supreme Court of Canada (SCC) has defined rights; the relationship between rights; and the relationship between guarantees of rights and freedoms and section 1 of the Charter.

I focus the discussion of these issues through the lens of section 3, which guarantees the right to vote and to be eligible to sit in the legislature. Following the exploration of the SCC jurisprudence relating to each of the three issues in relation to . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Three S’s Sink Safety Coordinator

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

Silence during the accommodation process, strange facts and self-serving evidence in support of a human rights complaint prove to be an unsatisfactory combination of factors for establishing a reasonable prospect of success in proving a complaint at a hearing. Exercising its gatekeeping function in 2023 BCHRT 1, the British Columbia Human Rights Tribunal dismissed a complaint that is equally odd (factually) and instructive (legally). . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

CHARTER ISSUES as REFLECTED in SECTION 3 and the WORKING FAMILIES DECISIONS: PART 1

Preamble

This post is the first of a series considering three major issues under the Canadian Charter of Rights and Freedoms: the impact of how the Supreme Court of Canada (SCC) has defined rights; the relationship between rights; and the relationship between guarantees of rights and freedoms and section 1 of the Charter.

I focus the discussion of these issues through the lens of section 3, which guarantees the right to vote and to be eligible to sit in the legislature. Following the exploration of the SCC jurisprudence relating to each of the three issues in relation to . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

The Conundrum of Conflicting Medical Evidence

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

In 2023 CanLII 13643 (CALA), arbitrator Graham J. Clarke examined the question of conflicting medical evidence in an accommodation matter and determined the employer was wrong to have ignored the employee’s evidence while preferring that of its own doctor. The outcome was to send the parties back to the drawing board, illustrating how tricky it can be for the employer to make the right choice when the medical evidence points in opposite directions. . . . [more]

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

The Arbitrator Refuses to Tinker With Minimal Punishment

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

In classic fashion, arbitrator Kim Bernhardt in 2023 CanLII 10437 determined the punishment met the crime after reviewing the case’s mitigating and aggravating factors. A one-day suspension for insubordinate comments seems quite minimal, yet the grievor alleged that progressive discipline should have been applied, resulting in even lesser discipline. As the arbitrator would explain, that’s not how it always works. . . . [more]

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

Co-Workers Liable for Racial Slurs at Staff Party

Lewis Waring, LL.B., Articled Clerk, Editor, First Reference Inc.

In a recent British Columbia Human Rights Tribunal ruling, an employee’s two co-workers were found to have discriminated against him when they uttered racial slurs during a physical altercation at a staff party. As the discrimination occurred during a work event and was connected to ancestry, place of origin, religion and race, the employee was protected by the British Columbia Human Rights Code. As a result, the employee was entitled to damages, which the two co-workers were liable to pay. . . . [more]

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

More Responsibility Requires More Notice of Dismissal

Written by Lewis Waring, Paralegal, Editor, First Reference Inc.

In a recent Ontario ruling, an employer was found to have wrongfully dismissed an employee whose role had evolved beyond its characterization in his original employment contract. By attempting to rely upon a contract that no longer applied, the employer deprived the employee of his presumed right to reasonable notice of termination. . . . [more]

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

Biometric Scanner Ruled Legal in Workplace

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

Not too long ago, it was the stuff of science fiction and action films-the locked door that opened by a retinal scan. The keypad required a fingerprint as additional security. Well, what was at issue in 2023 CanLII 5478 (BC LA) isn’t too far removed from those one-time fantasies. Here, an employer implemented a biometric finger scan system for employees to use, and it had a good reason that had nothing to do with security. Would vastly improved recordkeeping and human resources services suffice as justification? Some employees got fired for . . . [more]

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

The Value of Documenting Discipline

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

It’s an awful lot harder to convince an arbitrator, court or tribunal about the validity of a culminating incident leading to termination if no prior problems were documented. This point was neatly illustrated in a decision of the Alberta Labour Relations Board in 2023 CanLII 1492, where a car mechanic who was fired on shaky grounds was awarded pay in lieu of notice of termination. The case provides employers with a good reminder about the uphill battles they will likely face in arguing the unsuitability of an employee without the . . . [more]

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

Formality Found Lacking in Bid for New Holiday

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

Money and time off work for holidays are naturally important to employees, so when Queen Elizabeth II died and the Prime Minister commented on the importance of mourning her passing, unions and employees alike saw an opportunity for gains to be made. This was a pure question of interpretation, and the dispute in [2023] O.L.A.A. No. 43 was resolved in the employer’s favour based on the language of the collective agreement and the arbitrator’s determination of what a “proclamation” is. . . . [more]

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

Secret Recording Admitted in Dismissal Case

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

Surreptitious recordings aren’t restricted to the realms of James Bond movies and undercover police work; they crop up in employment disputes, too. Whether the decision-maker presses “play” depends on the outcome of a delicate balancing act that pits the value of the recording against the prejudice it might cause. The Court of King’s Bench of Alberta’s analysis in 2022 ABKB 813 (CanLII) is instructive to employers and employees alike. . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions