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

Employers are no stranger to various forms of litigation like grievances, lawsuits and human rights complaints. Sometimes, these complaints proceed to a full hearing and decision, but not unfrequently, matters are settled by the parties without the need for a hearing. Usually, these settlements require the parties to keep the details confidential and not make any disparaging statements about the other party. A 2023 decision of the Human Rights Tribunal of Ontario, HRTO 1138 (CanLII) illustrates a remedy that might be open to the employer if the employee breaches these . . . [more]

Written by Christina Catenacci, BA, LLB, LLM, PhD, Content Editor, First Reference Inc.

In February 2024, the Supreme Court of Newfoundland and Labrador certified a privacy class action. The representative plaintiffs, on behalf of 260 individuals (first 240 individuals, and second 20 individuals), alleged that their privacy was violated when an employee of the defendant employer (a health authority) accessed the private information of these individuals that was outside the scope of their employment. The employer became aware of the first and second alleged breaches in 2020 and 2021, respectively. The main claim against the employer was that there . . . [more]

INTRODUCTION

Webber Academy (or “the school”), a private educational institution in Alberta, defined itself as non-denominational: it did not engage in any overt religious practice (with one possible and qualified exception). Yet, after two Alberta Human Rights Commission (AHRC) decisions, two Queen’s Bench (as it then was) (QB) judgements, two Court of Appeal (CA) rulings and two denial of leaves to appeal by the Supreme Court of Canada (SCC), it was held to have discriminated without justification against two Muslim students whom it prohibited from engaging, on school property, in overt prayers. How did this happen? And what does it . . . [more]

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

The Supreme Court of British Columbia rendered a decision (2024 BCSC 55 (CanLII)) on judicial review which looked at the employer’s choice to implement a COVID-19 vaccination policy, and whether, under the Labour Relations Code, it was obligated to enter into discussions with the union first. The case provides employers with insight into the difficulty of overturning a tribunal’s decision. . . . [more]

Written by Christina Catenacci, BA, LLB, LLM, PhD, Content Editor, First Reference Inc.

In January 2024, a British Columbia labour arbitrator had no hesitation concluding that an employee, who was the grievor accusing a female colleague of sexual harassment in this case, was actually the one who was sexually harassing the female colleague. Simply put, the arbitrator found that the grievor’s evidence was not credible, the female colleague’s account was credible and consistent with the evidence, and the female colleague did not do what the employee accused her of. As a result, the labour arbitrator agreed with the employer that . . . [more]

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

The interim decision of Caroline Sand, Member of the Human Rights Tribunal of Ontario in 2024 HRTO 233 (CanLII) shows what can happen when a party is invited to participate but decides not to. As it turns out, the technique of putting one’s head in the sand works for ostriches but not for employers who seek to avoid liability for human rights complaints. . . . [more]

Written by Christina Catenacci, BA, LLB, LLM, PhD, Content Editor, First Reference Inc.

In December 2023, the Vice-Chairperson of the New Brunswick Labour and Employment Board (Board) confirmed that the employer discriminated against an employee when the employer terminated his employment following an injury. The Board also concluded that the employer bullied, harassed and belittled the employee. Consequently, the Board awarded $10,000 as general damages, which included damages for injury to the employee’s dignity, feelings, self-respect and self-worth. Further, the employer was required to participate in a one-day human rights training course on the duty to accommodate. . . . [more]

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

In a succinct interim decision, 2024 HRTO 225 (CanLII), the Human Rights Tribunal of Ontario (Tribunal) explained when it might grant an application to expand the list of respondents to a human rights complaint. It’s not as simple as one might think. In this case, the complainant sought to add a former employer as a respondent in his individual, personal capacity, to her sex discrimination complaint. The targeted individual was a majority shareholder and director of the employer. . . . [more]

Our lives are increasingly dominated by technology. We communicate by various channels: emails, social media, text messages, WhatsApp, Snapchat, FaceTime, and so forth. But what happens when a litigant obtains evidence by hacking into an account or secretly filming an event? Can this surreptitiously obtained evidence be used?

Although discouraged, sometimes these recordings can be admitted into evidence. It is up to the trial judge to decide whether to exclude the evidence by weighing its prejudicial value against its probative value. (See Fiorito v. Wiggins, 2015 ONCA 729, at para. 22).

In the recent case Chen v. Huang . . . [more]

“Trial by jury is an institution unique to common law countries. It is more than a mere incident of criminal procedure. It has been described as a pillar of the Constitution and praised as a palladium of liberty. ” – Regina v. Bryant, 1984 CanLII 2026 (ON CA), <https://canlii.ca/t/g187z>.

In the recent decision Penate v. Martoglio, 2024 ONCA 166, Justice Tulloch of the Ontario Court of Appeal addresses the importance of a civil jury trial in the context of a medical malpractice case. In Penate v Martoglio, the plaintiff Penate suffered a serious brain injury at birth, which . . . [more]

INTRODUCTION

Mr. Justice Henry S. Brown must have been on tenterhooks for a chance to condemn the Prime Minister (PM) and the Minister of Justice (“the Minister”) for their failure to fill what are far too many judicial vacancies. And then Yavar Hameed came along and gave him the opportunity. In Hameed v. Canada (Prime Minister) (“Hameed”), Brown J. issued declarations that he expected to address the problem.

Hameed, a human rights lawyer, had a case adjourned because, as the Ottawa Superior Court of Justice Trial Coordinator explained to him, “'[T]he court is experiencing a lack of judicial resources as . . . [more]