Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. Alberta Union of Provincial Employees v Alberta, 2019 ABCA 411

[45] In this case, in assessing what remedy was appropriate, Arbitrator Moreau decided that the employment relationship was not viable for the “lack of truthfulness” in three different contexts: during the interviews with the employer (the conduct for which he was disciplined by the employer); during the proceedings before Arbitrator Moreau; and during the proceedings before Arbitrator Lucas. It was the “continued pattern of untruthfulness” that created the insurmountable barrier to a viable and continuing employment relationship as a corrections officer. As noted, he would have given a lengthy suspension for the first of these alone. These are neither inconsistent nor unreasonable findings.

(Check for commentary on CanLII Connects)

2. R. v. Gray, 2019 ONCJ 782

[28] The same can be said about Anderson’s testimony about giving the accused an oral prohibition on June 8. There is no note or memorandum of this prohibition. Given that keeping track of who is prohibited from being on TCH premises is an important part of Anderson’s job, and that of his colleagues, I would expect a written record of such prohibitions to be maintained somewhere, if only in the officer’s notes. If Anderson had in fact orally prohibited the accused from being on the property his notes would have set this out as the reason for the October arrest, rather than “loitering”.

(Check for commentary on CanLII Connects)

3. Entrop v. Imperial Oil Limited, 2000 CanLII 16800 (ON CA)

[98] I turn now to whether Imperial Oil’s alcohol and drug testing provisions are reasonably necessary. As the Board held, Imperial Oil has the right to assess whether its employees are capable of performing their essential duties safely. An employee working in a safety-sensitive position while impaired by alcohol or drugs presents a danger to the safe operation of Imperial Oil’s business. Therefore, as the Board found, “freedom from impairment” by alcohol or drugs is a BFOR. An employee impaired by alcohol or drugs is incapable of performing or fulfilling the essential requirements of the job. The contentious issue is whether the means used to measure and ensure freedom from impairment — alcohol and drug testing with sanctions for a positive test — are themselves BFORs. Are they reasonably necessary to achieve a work environment free of alcohol and drugs?

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Dans l’affaire du: Renvoi relatif à la Loi sur la non-discrimination génétique édictée par les articles 1 à 7 de la Loi visant à interdire et à prévenir la discrimination génétique, 2018 QCCA 2193

[2] La Loi visant à interdire et à prévenir la discrimination génétique (la « Loi ») constitue-t-elle un exercice valide de la compétence du Parlement en matière criminelle? Pour répondre à une telle question de partage des compétences, il faut, comme l’enseigne la Cour suprême, déterminer d’abord le caractère véritable de la législation contestée, c’est-à-dire « identifier la “matière” sur laquelle elle porte essentiellement »[2], son objet principal[3], pour ensuite vérifier le rattachement de cet objet à l’un ou l’autre des champs de compétence de l’autorité législative qui l’a adoptée[4], en l’occurrence, celle de l’article 91(27) de la Loi constitutionnelle de 1867, chef de compétence invoqué par le Parlement[5].

(Check for commentary on CanLII Connects)

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.

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