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Archive for ‘Case Comment’

Employer Cannot Turn Blind Eye to Employee’s Disability

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

A recent decision of the Human Rights Tribunal of Alberta, Kvaska v Gateway Motors (Edmonton) Ltd., 2020 AHRC 94, confirms the law on accommodation of alcohol addiction. In this case, the human rights complaint of a dismissed employee was upheld. The Tribunal offers important advice to employers in how to deal with such difficult situations. The risk in not doing so is potentially costly: in this case, $30,000 in general damages, lost short-term disability benefits, lost wages and interest were awarded. . . . [more]

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

Employee’s Delay Not Condoning of Constructive Dismissal

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

In McGuinty v 1845035 Ontario Inc (McGuinty Funeral Home) (“McGuinty”), an employee who returned to the workplace after an extended leave was found to have been constructively dismissed despite the fact that he had continued to work after the event leading to his constructive dismissal had taken place. McGuinty is important because it shows employers that a possible constructive dismissal claim does not necessarily go away once an employee returns to the workplace. In other words, a constructive dismissal claim does not require that an employee no longer comes into the office. . . . [more]

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

Court Determines Worker Was Employee, Awards Punitive Damages

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

Cases in which courts must determine reasonable notice for a dismissed employee are generally straightforward, involving an analysis of certain time-honoured factors in relation to the employee and his or her work. The case before the Supreme Court of British Columbia in Cho v Stonebridge Solutions Inc., 2020 BCSC 1560 involved a unique twist: the court first had to determine whether the plaintiff worker was an employee (as he claimed), or an independent contractor (as the defendant company claimed). The court concluded that, as an employee, the worker was entitled . . . [more]

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

Social Media Posts Alleging Racism Not Defamatory

By Lewis Waring, Paralegal and Student-at-Law, Editor, First Reference Inc.

In Sole Cleaning Inc v Chu (“Chu”), an individual’s disparaging social media statements about her former employer were found not to be defamatory. Chu illustrates the way the legal system may from time to time, respond to digitally published statements that disparage an organization that may indeed have negative effects on that organization’s business. In short, Ontario law may allow individual disparaging comments about the former employer and only prohibit such statements in rare cases. This high standard reflects the value that Ontario places on protecting free speech, particularly in . . . [more]

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

Termination Timing Proves Critical in COVID Climate

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

The Ontario Superior Court of Justice’s decision in Yee v Hudson’s Bay Company, 2021 ONSC 387 is welcome news for anyone wondering about COVID-19’s effect on a reasonable notice period. For all of the upheaval that the pandemic has caused, it proved to be of little consequence to the notice owed to a dismissed company executive in this case. . . . [more]

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

Employee Walks Fine Line on Confidentiality Breach

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

Every employer is properly concerned about its reputation. But how far can an employer go to make sure that its “dirty laundry” stays hidden away? Can an employee be disciplined for discussing their employer’s private matters, or can an employer insist that “what happens at work stays at work”? Questions like these about an employee’s duty of loyalty and the consequences of a breach of confidentiality are central to the Alberta Labour Relations Board’s decision in Ann’s Day Care Ltd. v Michelin, 2020 CanLII 104967 (AB ESA). . . . [more]

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

Teacher Reinstated and Educated Following Anti-Indigenous Racism

By Lewis Waring, Licensed Paralegal, Student-at-Law, Editor, First Reference Inc.

In Saskatchewan Polytechnic Faculty Assn. and Saskatchewan Polytechnic (Derow), 2020 CanLII 78471 (SK LA), Re (“Derow”), a unionized teacher’s dismissal related to racist comments against indigenous persons was set aside and he was reinstated to his position with conditions.

The teacher, in this case, had been working for Saskatchewan Polytechnic for 34 years and had been employed in the school’s carpentry program. Instead of dismissal, the arbitrator held that the employee would be suspended for six months and required to undertake appropriate education. Upon his return to work, the . . . [more]

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

Invalid Termination Clause Prompts Damages Payment

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

The Ontario Superior Court of Justice issued a ruling in Sager v. TFI International Inc., 2020 ONSC 6608 which considered an interesting contract interpretation issue that arose in the underlying wrongful dismissal claim. The termination clause appeared to be generous to the employee but was ultimately found invalid for violating the Canada Labour Code. As a result, the employee was entitled to more notice than he received under the contract. . . . [more]

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

No Disability or Age Discrimination Against Employee Offered Early Retirement

By Lewis Waring, Paralegal, Student-at-Law, Editor, First Reference Inc.

In Nowicki v Labourer’s International Union of North America (LIUNA) Local 1059 (“Nowicki”), the Human Rights Tribunal of Ontario found that an employer’s offer of retirement, although it was an explicit attempt to remove an employee from her office, was not discriminatory under the Human Rights Code (“Code“) because it was not based upon her age or a disability. This finding was significant because the employee did in fact have a history of suffering from a disability, namely, depression. Also, the finding in Nowicki is significant because her age, being in . . . [more]

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

Employee Wins Pre-Trial Procedural Point on Pleadings

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

 
The Ontario Superior Court of Justice put forward several motions in a wrongful dismissal case, Kaminsky v. Janston Financial Group, 2020 ONSC Number 5320 (CanLII) via Zoom in August. The parties ended up in court following Carolyn Kaminsky’s dismissal from her position within her family’s business. The decision turned on a point of civil procedure and provides employers with insight into what they may argue at trial based on their knowledge of facts amounting to just cause at the time of dismissal. . . . [more]

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

Alcoholic Employee Accommodated to the Limit of Undue Hardship

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

The recent New Brunswick labour arbitration decision in Unifor, Local 907 and J.B. v Irving Paper Limited, 2020 CanLII 38613 (NB LA) tells the unfortunate tale of an alcoholic’s losing battle to overcome his addiction and losing his job in the process. The decision provides helpful insights into how far an employer can or should go in accommodating this disability. The decision will be of particular interest to employers who operate safety-sensitive operations, and to employees who may be uncertain of the role they must play in the search for a . . . [more]

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

Employee Wins Historic Amount of Damages for Sexual Harassment and Workplace Discrimination

by Lewis Waring, Paralegal, Law Student, Editor, First Reference Inc.

In NK v Botuik (“Botuik”), the Human Rights Tribunal of Ontario (HRTO) awarded a former employee $170,000.00 for sexual harassment and gender discrimination, the second-highest amount of damages ever awarded in Ontario. The employer, in this case, Alan Stewart Homes Limited, owned and operated a number of group homes that served individuals with significant disabilities. Tenants at the employer’s group homes were disabled such that they were unable to live independently and were also incapable of caring for themselves in relation to everyday activities. The employee worked at one of . . . [more]

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