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. Feltz Design Build Ltd. v. Larson et al., 2021 ONSC 2469 

[53] Consequently, on this record, LPPC breached the trust established by the Construction Act. Counsel for the defendant conceded that the trusts established by ss. 7(2) extend to all amounts received by the owner after the stipulated event has occurred, even if from sources entirely unrelated to the property that has been improved. Even based on a limited evidentiary record, it is clear LPPC received amounts in excess of the balance owed to Feltz and failed to use any part of them for the required purpose. LPPC is liable for breach of trust to the full extent of the outstanding indebtedness.

(Check for commentary on CanLII Connects)

2. Chartwell Housing Reit (The Westmount, the Wynfield, the Woodhaven and the Waterford) v Healthcare, Office and Professional Employees Union, Local 2220, 2022 CanLII 6832 (ON LA)

155. These concerns for the quality of life of people living in LTC homes are rooted in the reality that such homes are the places of residence for many elderly people. The LTCHA encapsulates these concerns in its Preamble, which states that the people of Ontario and their government “believe in resident-centred care” and “affirm our commitment to preserving and promoting quality accommodation that provides a safe, comfortable, home-like environment and supports a high quality of life for all residents of long-term care homes”. Section 1 of the Act states that the fundamental principle to be applied in the application of the LTCHA is that “a long-term care home is primarily the home of its residents and is to be operated so that it is a place where they may live with dignity and in security, safety and comfort and have their physical, psychological, social, spiritual and cultural needs adequately met”.

156. This is the overall context in which this case must be decided. However, the context for the purposes of this grievance arbitration also includes the collective agreement, policies and practices that govern the relationship between this Employer, this Union, and the workers in the four LTC homes at the center of this grievance.

(Check for commentary on CanLII Connects)

3. Power Workers’ Union v Elexicon Energy Inc., 2022 CanLII 7228

96. In my view, the role of government is a red herring issue within a genuine debate about reasonableness. The law has been clear for decades that an employer can make reasonable rules in the exercise of its management rights subject to the other requirements as set out in the KVP case. Leaving aside for the moment that the issue is a red herring, in my view, there is nothing fundamentally undemocratic about an employer making health and safety rules for its workplace, especially in the context of a dangerous pandemic. OHSA places a positive duty on an employer under section 25(2)(h) to “take every precaution reasonable in the circumstances for the protection of a worker”. It is not a defence open to an employer for that failure to take action to protect employees in the workplace from the spread of the virus that while some measures such as testing are necessary and permissible, other equally or more important measures that impinge upon an employee’s right to bodily integrity and privacy, such as vaccination, cannot be contemplated under the legislation because that is within the sole purview of the Government of Ontario. It is no answer to the claim that a workplace is unsafe that this is a public health matter within the purview of government alone. Indeed, in response to the Union argument that these are decisions that must be left to the Government in order to be democratic, it is my view that in Ontario, aside from long term care, the Government has explicitly left it to individual employers to determine in the context of their individual workplaces whether mandatory vaccination should be implemented. The Government has not in any way prohibited or discouraged that process and knows it is taking place. The policy of the Ontario Government to leave the matter largely to individual employers to determine in the circumstances of their individual workplaces is consistent with democratic principles and the Government of Ontario is accountable to the electorate for that policy. The Government of Canada took a different view which is also democratic. There is no inherent limitation (leaving aside an explicit provision to the contrary in a collective agreement) on an employer in a unionized workplace in Ontario subject to provincial jurisdiction introducing a rule that mandatory vaccination is required in its workplace, except for the limitation that the rule must be reasonable and comply with the KVP criteria.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Association des cadres de la société des casinos du Québec c. Société des casinos du Québec, 2022 QCCA 180

[135] D’une part, si la distinction entre revendication négative vs positive est pertinente, il est raisonnable de conclure que celle de l’Association est négative puisqu’elle cherche à ce que ses membres ne soient pas assujettis à l’exclusion prévue à l’article 1l) 1° du C.t. D’autant plus qu’on ne parle pas en l’espèce d’un régime législatif d’application restreinte, mais du régime de relations de travail instauré par le Code du travail, lequel, comme l’a souligné la Cour suprême dans un autre arrêt, constitue « l’expression concrète et le mécanisme législatif de mise en œuvre de la liberté d’association en milieu de travail au Québec »[185]. Encore plus clairement, notre Cour a observé dans Québec (Procureur général) c. Confédération des syndicats nationaux (CSN)[186] que le régime des rapports collectifs du travail prévu par le Code du travail « est en quelque sorte le régime de droit commun »[187]. Dans ce contexte, selon la majorité dans l’arrêt Toronto, le test de l’arrêt Baier n’est pas indiqué. Celui de l’arrêt Irwin Toy étant spécifique aux revendications fondées sur la liberté d’expression, il faut plutôt recourir au critère de l’entrave substantielle sur lequel la Cour suprême a insisté dans APMO.

(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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