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. Toronto Transit Commission v Amalgamated Transit Union, Local 113, 2020 CanLII 71739 (ON LA)

Most importantly, the facts do not disclose condonation. Aside from the point made in the case law that criminal and near-criminal acts cannot be used to support a condonation defence (see, for example, the Stelco (Shime) decision, cited above, where the arbitrator says this would amount to collusion rather than condonation), the notion that employees were lulled into a false sense of security has no basis in reality. There is no evidence that employees who went to Healthy Fit knew that the TTC was aware of the fraudulent activity there, which is a required element of the defence of condonation (see the AFG Industries and Imperial Parking cases, cited above). The union’s statement that there was general knowledge that employees were going to Healthy Fit and not being fired is not supported by the evidence. Employees may have known that a few co-workers were using the clinic, but there is no evidence of any general knowledge beyond that.

(Check for commentary on CanLII Connects)

2. Kadri v. College of Physicians and Surgeons of Ontario, 2020 ONSC 5882 (CanLII)

[22] In limited circumstances, evidence may be adduced in a judicial review proceeding to supplement the record of proceedings (Sierra Club at para. 14; Utilities Kingston at paras. 15, 18). First, it may be adduced to show that there was an absence of evidence on an essential point in the decision. Second, it may be adduced to show that there was a denial of procedural fairness that is not evident from the record. Third, it may be adduced to provide general background that may assist the court in understanding the underlying issues in the application for judicial review. However, with respect to this third criterion, the evidence must not be an attempt to provide supplementary evidence going to the merits of the case (Association of Universities and Colleges of Canada v. The Canadian Copyright Licensing Agency, 2012 FCA 22 at para. 20).

(Check for commentary on CanLII Connects)

3. Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26 (CanLII)

[1] This appeal bears on the redress available to an employee who, by reason of the circumstances of his departure from a job he had held for many years, is treated in law as if he were dismissed. By extension, it concerns some of the proper contours of an employer’s common law right to determine the composition of its workforce.

[2] Different complaints are often made by employees who sue for wrongful dismissal. This case is no exception: in his original application, the employee alleged he was dismissed “without notice” and that this dismissal was in breach of the employer’s “duty of good faith”. He asked for damages reflecting his entitlement to reasonable notice, including an incentive bonus that fell due during the period, as well as damages for the employer’s dishonest conduct, including punitive damages and damages in the amount of the lost bonus should it be excluded by a contractual term.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Agence du revenu du Québec c. Morris JA0965, 2020 QCCQ 4200 (CanLII)

[9] Malgré l’intervention postérieure de plusieurs procureurs généraux dans l’affaire R. c. Cody[4], lesquels ont demandé une plus grande souplesse dans la déduction et la justification des délais, la Cour suprême indique que le cadre d’analyse de Jordan demeure le même et doit être suivi. Celui-ci accorde suffisamment de souplesse, en plus de prévoir la période de transition requise pour que le système de justice criminelle puisse s’adapter[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.