Canada’s online legal magazine.

Archive for ‘Case Comment’

Unfair Treatment Not Always Violation of Human Rights

Written by Lewis Waring, Paralegal, Student-at-Law, Editor at First Reference

In Nguyen v Central Stampings Limited (“Nguyen”), an employee’s feeling that an employer’s conduct derived from discriminatory intent due to his sex was not sufficient to obtain compensation for violation of the Ontario Human Rights Code. . . . [more]

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

Use It or Lose It: Trademark Management

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

Businesses that have a registered mark, name or symbol have to properly manage it if they seek to maintain their brand image as a source of economic value and stability. The value of proper trademark management is the key takeaway in the recent Federal Court decision Milano Pizza Ltd. v 6034799 Canada Inc, 2022 FC 425. In that decision, poor trademark management came back to haunt the plaintiff’s pizzeria. . . . [more]

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

Bad Optics: Looking Beyond First Impressions in Discrimination Cases

By Daniel Standing LL.B., Editor, First Reference Inc.

When an employee who is off work due to a disability is terminated, there are typically red flags signaling a potential situation of discrimination. The Canadian Human Rights Tribunal’s decision in Fick v Loomis Express, 2022 CHRT 2 (CanLII) confirms that it is not always as it seems. Despite bad first appearances, the employer’s actions can be found legitimate, countering a claim of discrimination. . . . [more]

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

Alberta Court Subtracts CERB From Dismissal Notice

Written by Lewis Waring, Paralegal, Student-at-Law (third year), Editor, First Reference Inc.

In Oostlander v Cervus Equipment Corporation (“Oostlander”), the Alberta Court of Queen’s Bench subtracted an employee’s payments under the Canada Emergency Response Benefit (CERB) program from their entitlement to reasonable notice following their wrongful dismissal. While the 36-year employee’s entitlement to damages after receiving one month of notice was not in question, the Albertan court’s decision to subtract the amount they had received under the CERB program represents a regional answer to an evolving question throughout the country. Whether this Western approach to CERB will emerge into a . . . [more]

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

Employer Discriminates by Dismissing for Disability-Fueled Absenteeism

Written by Lewis Waring, Paralegal, Student-at-law (last year), Editor First Reference Inc.

In Cyncora v Axton Inc (“Cyncoxa”), an employer discriminatorily dismissed its employee with a disability despite the employee’s undisputed absenteeism. The fact that the employer had some legitimate concerns about the employee’s fitness for its time-sensitive workplace did not remove the reality that one of the underlying reasons for its struggles with the employee was his ongoing struggle with depression and anxiety. . . . [more]

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

Two-Part Kickoff for Family Status Discrimination

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

There has been significant debate in courtrooms and arbitration hearings over the years about the threshold point at which a complainant establishes a prima facie case of discrimination by an employer on the ground of family status. In British Columbia, the law stood to be clarified after that province’s Human Rights Tribunal got it wrong concerning two spouses who worked at a mine and sought scheduling accommodations. The Supreme Court of British Columbia’s decision in Gibraltar Mines Ltd. v Harvey, 2022 BCSC 385 is sure to be cited or read . . . [more]

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

Covid Testing Policy Upheld as Reasonable

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

As every workplace is unique, there is no one-size-fits-all approach to dealing with COVID-19. While some workplaces have mandated vaccination, others took a slightly toned-down approach. In CKF Inc. and TC, Local 213 (COVID Testing), Re, 2022 CarswellBC 198, a British Columbia arbitrator examined and upheld a policy that required weekly testing for those who refused to be vaccinated.

Background

The employer in this case is in the business of manufacturing single-use food packaging products like egg cartons and foam meat trays that are commonly found in grocery stores. . . . [more]

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

Landmark Compensation Award in a British Columbia Discrimination Case

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

In 2019, the British Columbia Human Rights Tribunal found that Levan Francis was the victim of discrimination on the basis of his race and colour at the hands of his employer, the Ministry of Justice, North Fraser Pre-trial Centre. The damage was extensive: Francis suffered a serious mental illness that prevented him from working in any occupation. In a follow-up decision, the Tribunal determined what remedies were available to Francis. Since the governing principle on remedy is to put someone back in the original position, the fact that almost . . . [more]

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

Alberta Law Firm Discriminated Against Employee

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

Hindsight is always 20/20, but in reading the decision Smorhay v Goodfellow Law, 2021 AHRC 170 (CanLII), one wonders how the employer did not foresee serious problems on the horizon. Corinne Smorhay was a legal assistant. She had worked in law offices before but had no construction law experience. Despite this, a headhunter recommended her to Goodfellow Law, a construction law firm that needed a secretary who could hit the ground running. When she was the only applicant who showed up for the interview, she got the . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

Workplace Fighting: What Happens After the Dust Settles?

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

Thankfully, many employers will never have to deal with the aftermath of a physical confrontation that happens in the workplace. But if a fight occurs, the employer is faced with some unique challenges, both in terms of investigating and in meting out punishment to those involved. The recent Ontario arbitration case, Michael Garron Hospital and SEIU, Local 1 Canada (Khan) Re, 2022 CarswellOnt 795, puts these challenges in context and provides a useful precedent to employers who must deal with this unsavoury situation.

Background

Rayard Khan and Michael . . . [more]

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

The Court Goes Back to Basics on Workers Compensation

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

Worker’s compensation legislation has existed in Canada for more than 100 years and can be traced to the work of the Ontario lawyer, politician, and judge Sir William Meredith who, in 1913, tabled the Meredith Report that is seen as the harbinger of the system of worker’s compensation across the nation. One of the key foundational concepts is the principle of no-fault compensation, a historical compromise between workers and employers. According to this principle, there is no dispute about responsibility or liability for the accident, and injured workers receive benefits regardless . . . [more]

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

Employer Fulfills Duty to Accommodate Despite Resignation

Written by Lewis Waring, Paralegal, Student-at-Law (3rd year), Editor, First Reference Inc.

In Benson v Central Health Authority, an employer fulfilled its duty to accommodate despite the negotiated resignation of its employee with a disability. Although the employee’s disability made continued employment impossible, the employer’s reliance upon a well-crafted human rights policy allowed it to fulfill its duty regardless. The employer fulfilled its duty to accommodate ultimately by responding to its employee’s request for accommodation systematically and fairly. . . . [more]

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