The recent decision of the British Columbia Court of Appeal in A.B. v C.D. v E.F. offers a couple of troubling conclusions with respect to the rights of children and whether determining the presence of family violence requires proof of intent not prescribed by statute. I’ll leave it to others, and hopefully the outcome of a successful leave application, to address the family violence issue; this note concerns a gap in the province’s Family Law Act, revealed by the decision, that leaves mature minors without the ability to apply to court for a declaration as to what is or is . . . [more]

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

In Farren v Elite Service Group Inc. 2020 BCSC 23 (CanLII), Justice Iyer of the Supreme Court of British Columbia refined various factors to determine the true nature of the working relationship, concluding that the plaintiff was an independent contractor. As such, the law of wrongful dismissal did not govern the termination of his services, leaving the plaintiff disentitled to reasonable notice of termination or damages in lieu of such notice. . . . [more]

After a jury found Gerald Stanley not guilty of second-degree murder in the shooting death of Colten Boushie, the federal government amended the Criminal Code to eliminate peremptory challenges in the selection of juries, as well as a change in the trier of challenges for cause. Judges took different views about whether this change was prospective or retrospective. As the Ontario Court of Appeal has now ruled on this matter in Chouhan, many cases, decided on the wrong side of the issue, are likely to be appealed. Indeed at least one, an individual convicted for sexual assault, already . . . [more]

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

In Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 (“Canada Post”), the Supreme Court of Canada (“Court”) limited federally regulated employers’ duty to conduct safety inspections. Namely, the Court found that such employers only had a duty to inspect in workplaces over which they exercise control. Canada Post was an application of judicial review of a decision by the Occupational Health and Safety Tribunal of Canada (“OHSTC”). The rule-at-issue was Canada Labour Code, RSC 1985, c L-2, Part II, s 125(1)(z. 12) (“CLC”), which . . . [more]

The majority of the Supreme Court of Canada in Canada Post Corp. v. Canadian Union of Postal Workers applied its recently created new administrative law framework in Canada (Minister of Citizenship and Immigration) v. Vavilov to uphold the Occupational Health and Safety Tribunal Canada’s (OHSTC) decision that Canada Post had not contravened the federal health and safety provisions in the Canada Labour Code, thus rescinding the health and safety officer’s determination of a contravention. The dissent, however, in upholding the health and safety officer’s decision that Canada Post had contravened the Code, did not even refer to Vavilov. . . . [more]

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

In Greig v Desjardins Financial Security Life Assurance Company, the Superior Court of British Columbia (SCBC) considered a defendant’s handling of a plaintiff’s claim for LTD benefits. SCBC held that the Defendant’s handling of the Plaintiff’s claim for long-term disability (LTD) benefits was bad enough to violate its fiduciary duty and awarded the Plaintiff $50,000 in aggravated damages and $200,000 in punitive damages, accordingly. . . . [more]

Written by Lewis Waring, Paralegal, Editor, First Reference Inc.

In Groves v UTS Consultants Inc, 2019 ONSC 5605 (“Groves”), the Ontario Superior Court of Justice (“SCJ”) held that an employer cannot contract out of its obligations under the Employment Standards Act, 2000 (“ESA”) by including a “saving clause” in its employment contract. Moreover, a contract that attempts to make an employer exempt from its obligations under the ESA is unenforceable, and, in Groves, the SCJ merely applied this uncontroversial principle to what is known as a saving clause. . . . [more]

It’s really not surprising that a court would find an organization that calls itself “Church of Atheism” is not a religion. But one has to ask, why couldn’t the Church of Atheism be a religion; it had many of the attributes — kind of. What is “religion”, anyway? Does it depend on context? The Federal Court of Appeal in Church of Atheism of Central Canada v. Canada (National Revenue) waded into the meaning of religion when it upheld the Minister of National Revenue’s decision that the Church of Atheism was not a religion and thus not eligible for charitable status . . . [more]

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

The recent case of the Federal Court of Canada, Chapman v Canada (Attorney General), 2019 FC 975 (CanLII) involved the issue of procedural fairness in the context of a disciplinary investigation. A complaint of wrongdoing was made against a high-ranking public servant who was not provided any particulars of the allegation. Due to a variety of factors, the Court determined that the employee had been denied an opportunity to fully respond to the allegations. As there had been a breach of procedural fairness, the Court ordered that the matter be . . . [more]

Will we ever reach a point when how women dress or whether they don’t immediately rush to tell someone they’ve been sexually assaulted are not interpreted as superceding consent in determining whether a sexual assault has occurred? It’s been some 20 years since the Supreme Court of Canada, particularly L’Heureux-Dube J. in dissent, but also the majority, in Seaboyer emphasized the distorting role myths and stereotypes play in deciding sexual assault cases. The recent Court of Appeal decision in R. v. Lacombe tells us that some (in this case lower court) judges have still not heard the message. . . . [more]

Written by Lewis Waring, Paralegal and student-at-law, Editor, First Reference

In Stress-Crete Limited v Harriman, 2019 ONSC 2773 (“Stress-Crete”), the Ontario Superior Court of Justice (“the Court”) partially granted an injunction to an employer against its former employee, upholding two out of three restrictive covenants present in the parties’ employment contract. Namely, the Court upheld the contract’s non-solicitation clause and confidentiality clause, but refused to uphold its non-competition clause. In partially granting this injunction, the Court in Stress-Crete confirmed and clarified the law’s approach to restrictive covenants, that such clauses are unenforceable unless reasonable and are to be . . . [more]

Earlier this month, the Ontario Divisional Court released its decision (by the Court) in Canadian Federation of Students v. Ontario, striking down the Ontario government’s “Student Choice Initiative” (SCI), which permitted students to opt out of certain ancillary fees that would otherwise have been collected by university and college student unions. The Canadian Federation of Students (CFS) (a national student organization, made up of student associations when students have given approval, that is student funded) and The York Federation of Students (YFS) sought judicial review to quash the directives. The Divisional Court decision had to address the government’s attempt . . . [more]