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

Many employers implemented COVID-19 policies requiring employees to become vaccinated or face negative work-related outcomes like unpaid leaves or suspensions. Apart from that point of commonality, different approaches were taken to employees’ requests for exemptions and those that were made on the basis of religion proved difficult to navigate. In one case, B.C. Rapid Transit Co. v Canadian Union of Public Employees, Local 7000 (Morzhakov Grievance), [2022] B.C.C.A.A.A. No. 114, Arbitrator Randall Noonan overturned the employer’s rejection of one such request because, he said, its process went too far and was . . . [more]

In Moffitt v. TD Canada Trust, 2023 ONCA 349, the Ontario Court of Appeal addresses the test for summary judgment motions. Justice Brown, writing for the Court, confirms that a summary judgment motion brought under Rule 20 of the Rules of Civil Procedure has the same test regardless of whether a party has elected for a judge alone trial or a jury trial.

In Ontario, the test for whether granting a summary judgment is appropriate is not concerned with who would act as the trier of fact if a trial is required. The focus is on whether a trial . . . [more]

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]

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]

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]

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]

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]

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]

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]

Indemnification clauses are often placed into contracts, without parties giving them much attention. However, when these clauses are triggered, the consequences can be devastating. 

In the recent case, Burr v. Tecumseh Products of Canada Limited, 2023 ONCA 135, the Ontario Court of Appeal dealt with the consequences of an indemnity clause with respect to costs of a proceeding. The Court upheld the trial judge’s decision in finding that there was an agreement to indemnify between the parties. However, the Court granted leave to appeal with respect to a part of the cost order and remanded that issue back to . . . [more]

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]

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]