INTRODUCTION

Time was the community or advocacy activity of lawyers with judicial aspirations centred around fundraising and other activities related to participation in our major political parties. Eventually, some of these lawyers found themselves rewarded with a judicial appointment. They cut their ties, as far as anyone knew, with their favoured party. It was not difficult to end their pre-judicial activity and remove themselves from community involvement. More recently, however, with the net for potential judges cast far wider in order to increase diversity on the bench, the community work aspirants engage in may be quite different. And so we . . . [more]

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

Many readers will remember the Bugs Bunny cartoons that featured an ostrich who would bury its head in the sand to avoid a predator or some other form of imminent danger. It turns out that ostriches do not really bury their heads in the sand to avoid problems, but the cartoon offers a nice analogy to the way the employer in Cybulsky v Hamilton Health Sciences, 2021 HRTO 213 (CanLII) handled one of its employees’ allegations of discrimination. In this case, the Human Rights Tribunal of Ontario considered the plight . . . [more]

In Ontario (Attorney General) v. Clark (“Clark“), the majority (8 judges) of the Supreme Court of Canada held that Crown immunity precludes claims based on misfeasance in public office. Justice Côté dissented. Here I consider the policy underpinnings and ramifications of the two opinions. . . . [more]

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

Employees who are unjustly dismissed cannot simply sit back, relax and wait for their payday in court. They have a duty to mitigate their losses by taking reasonable steps to find work elsewhere. In Wilson v Pomerleau Inc., 2021 BCSC 388 (CanLII), the plaintiff learned this the hard way, seeing his damages reduced on account of his lax approach to mitigating his losses. . . . [more]

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

In Peretta v Rand v Technology Corporation (“Perretta”), an employer repudiated an employment contract by insisting that a new term be added after the contract had already come into effect. The reason that the employer’s insistence on adding a new term resulted in the repudiation of the contract was that the new term was so important that the employer’s attempt to force the employee to agree to it showed an intention to not be bound by the original contract. . . . [more]

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

In Jones v Bayview Credit Union (“Jones”), an employer wrongfully dismissed an employee due to allegations that the employee disclosed confidential client information, violating confidentiality policies and procedures. Although the employee had accessed client information in the context of providing services to another client, this practice did not breach any client’s confidentiality rights. Instead, the employee remained alert to relevant privacy issues while accessing the confidential information of one client while assisting another. . . . [more]

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

The vague yet intriguing title of the case, in the Matter of B, 2020 ONSC 7563 (CanLII), foretells some of the secrecy and confidentiality of the facts behind the matter. The Honourable Barbara A. Campbell, Justice of the Ontario Superior Court of Justice authors an interesting decision sure to please any aficionado of the law of evidence. In it, she considers whether an employment agreement’s confidentiality clause sufficiently shields an employee from testifying about his or her employer in an investigation by the Ontario Securities Commission. Does the clause render the information . . . [more]

By Daniel Standing LL.B., Editor, HRinfodesk

Sometimes just doing enough is insufficient. In a nutshell, this was the decision of the Ontario Labour Relations Board in Liquor Control Board of Ontario v Ontario Public Service Employees Union, 2021 CanLII 15607 (ON LRB) when it ruled on the employer’s measures in combatting COVID-19, which were deemed insufficient by a health and safety investigator. . . . [more]

In 2000, in an article in the UNB Law Journal (Vol. 49, 169) about section 33, entitled “Section 33 of the Charter: What’s the Problem, Anyway? (Or, Why A Feminist Thinks Section 33 Does Matter)” I said, “Whatever merits it might have, dressed up as a means to represent the will of the people against the follies of unelected courts, recourse to section 33 may actually legitimate the continuation of prejudice.” (p.169) Bill 21 (SQ 2019, c12), An Act respecting the laicity of the State, illustrates the scope of section 33 to have a significant impact on freedom of . . . [more]

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

At first glance, Abbasbayli v Fiera Foods Company, 2021 ONCA 95 appears to be concerned mainly with the law around striking pleadings. On further analysis, however, it offers important advice to employers on the matter of personal liability of corporate directors. . . . [more]

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]

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]