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Archive for ‘Case Comment’

Force Majeure Clauses: Part of Your Emergency Toolkit

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

Force majeure clauses are commonly included in commercial agreements to reduce the effect or risk of disruptive events that are beyond the control of the contracting parties. The concept of force majeure is related to the contract law doctrine of frustration since they both deal with the implications of an event that affects a party’s ability to comply with the contract. Force majeure provisions are distinct, however, in that they seek to define the types of events that qualify as force majeure, and they should define the contractual consequences that flow . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Employee Rightfully Dismissed for String of Absences

Lewis Waring, Paralegal, Student at law, Editor, First Reference Inc.

In Abdon v Brandt Industries Canada Ltd (“Abdon”), an employer rightfully dismissed an employee for cause as a result of a tendency to fail to show up for work without authorization. After the employer engaged in a series of disciplinary steps, the employee’s dismissal for cause became the only reasonable option to respond to the employee’s egregious failure to fulfill their duties in the workplace. . . . [more]

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

Trash Talking Employee Tanks Reinstatement

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

One would expect that after beating up an older lady while at work, a terminated employee would show remorse for his actions and do whatever possible to get his job back. In United Parcel Service v Teamsters Local Union No. 213, 2021 CanLII 64789 (CA LA), we see the impact an employee’s trash talk about their employer can have on his or her potential reinstatement. After accepting an employee’s apology at face value and offering reinstatement, an employer may uncover evidence showing the employee cannot be trusted, allowing the employer . . . [more]

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

Contract Clarity Is Critical Around ESA Rules on Termination

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

Ontario has recently been a hotbed of decisions considering the validity of termination clauses in employment contracts. At issue in Lamontagne v J.L. Richards & Associates Limited, 2021 ONSC 2133 (CanLII) was whether a termination clause ousted the employee’s entitlement to common law reasonable notice of termination. If it was sufficiently clear, the employer would win. If it was ambiguous, then the employee would have access to the more generous common law entitlement of reasonable notice. Read on to find out how the court decided the issue.

Background

Annick Lamontagne was . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

A Brief Look at Enforcing Restrictive Covenants: A Tale of Two Cases

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

Generally, a contract in restraint of trade is where one party agrees to restrict their liberty in the future to freely carry on trade with others who are not parties to the contract. Restrictive covenants can take different forms, depending on their purpose. For example, non-competition and non-solicitation covenants aim to prevent a departing employee from setting up a competing enterprise with their former employer. A non-acceptance clause may purport to restrain someone from accepting business from a client of a former employer, and a confidentiality clause normally aims to prevent . . . [more]

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

The Obligation for Constitutional Actors to Act in Good Faith

INTRODUCTION

In this post, I propose that the concept of bona fides, or acting in good faith, be applied to the conduct of constitutional actors. It is not unreasonable to expect that constitutional actors act in good faith towards one another. In this sense, I argue, the bona fides principle is a fundamental element of the rule of law that could serve to invalidate government action, depending on various factors which I discuss below, including the relevance of other principles and rules. A judicial conclusion that an actor had not acted in good faith might, in the balance, result . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

CRA Makes a Probationary Termination Blunder

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

You’re fired!

These are two words no employee wants to hear. If job security goes together with seniority, then probationary employees walk a fine line every day they go to work. Most employers with collective agreements that allow for probationary periods rightly view them as a condition of hire during which they can closely observe the new employee and decide whether the person is a good fit. Many would likely say that the organization can dismiss the probationer for next to no reason at all, provided they don’t treat the person . . . [more]

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

Dating App Profile Lands UBC Employee in Hot Water

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

Employers are legislatively prohibited from discriminating against their employees based on their sexual orientation any other listed or similar ground of discrimination. When a university discovered that an academic advisor’s profile on a gay male dating app ran afoul of its conflict of interest policy, it fired him. The employee claimed the dismissal was discriminatory and based on his sexual orientation. He submitted a complaint to the British Columbia Human Rights Tribunal whose decision was later reviewed by the British Columbia Supreme Court. Was Conklin v University of British Columbia, . . . [more]

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

Religious Exemptions for Vaccinations: The Impact of Amselem

INTRODUCTION

With mandatory vaccination policies (some of which are not exactly mandatory because they provide alternatives), those opposed to vaccines have been claiming religious exemptions. When people are dismissive of these claims, others immediately respond, “But what about Amselem?”, the Supreme Court of Canada decision that seems to allow a highly subjective determination of legitimate religious belief. But what does Amselem actually say and how does it relate to anti-vaccination claims based on section 2(a) of the Canadian Charter of Rights and Freedoms. . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Top Court in British Columbia Clarifies Law on Distracted Driving

Written by Daniel Standing LLB., Editor at First Reference Inc.

According to Transport Canada, distracted driving happens when the driver’s attention is taken from the road and is focused on something else, like texting, talking to someone in the car or on the phone, eating or drinking, or using the entertainment or navigation system. It is a serious problem; statistics in the National Collision Database reveal that distracted driving contributed to an estimated 21 percent of fatal collisions and 27 percent of serious injury collisions in 2016. In response to the threat posed by distracted driving, all Canadian jurisdictions introduced . . . [more]

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

Accommodating Employees With Disabilities: What You Don’t Know Can Hurt You!

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

Employers of workers with disabilities need to know the ins and outs of their duty to accommodate. The law intends the accommodation process to be collaborative, allowing the employer, union and employee the ability to make suggestions, compromise and, hopefully, arrive at a mutually agreeable solution. In Singh v Dodd’s Furniture (No. 2), 2021 BCHRT 85, the British Columbia Human Rights Tribunal found that a furniture store discriminated against its worker after it received some bad advice about how to go about accommodating him. The furniture store made an “ill-informed . . . [more]

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

The Agricultural Employees Protection Act: How Much Protection?

In my last post, I considered the Ontario Agricultural, Food and Rural Affairs Appeal Tribunal’s (“AFRAAT) and Ontario Divisional Court’s rejection of the United Food and Commercial Workers International Union’s (“UFCW”) constitutional challenge to the Agricultural Employees Protection Act (“AEPA”). Here I argue that the AFRAAT and the Divisional Court have reinforced the distinctions between the AEPA and the Labour Relations Act, 1995 (“LRA”). In doing so, they refused the Supreme Court of Canada’s invitation in Fraser to be flexible in their interpretation of the AEPA. . . . [more]

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