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

In classic fashion, arbitrator Kim Bernhardt in 2023 CanLII 10437 determined the punishment met the crime after reviewing the case’s mitigating and aggravating factors. A one-day suspension for insubordinate comments seems quite minimal, yet the grievor alleged that progressive discipline should have been applied, resulting in even lesser discipline. As the arbitrator would explain, that’s not how it always works. . . . [more]

Lewis Waring, LL.B., Articled Clerk, Editor, First Reference Inc.

In a recent British Columbia Human Rights Tribunal ruling, an employee’s two co-workers were found to have discriminated against him when they uttered racial slurs during a physical altercation at a staff party. As the discrimination occurred during a work event and was connected to ancestry, place of origin, religion and race, the employee was protected by the British Columbia Human Rights Code. As a result, the employee was entitled to damages, which the two co-workers were liable to pay. . . . [more]

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

In a recent Ontario ruling, an employer was found to have wrongfully dismissed an employee whose role had evolved beyond its characterization in his original employment contract. By attempting to rely upon a contract that no longer applied, the employer deprived the employee of his presumed right to reasonable notice of termination. . . . [more]

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

Not too long ago, it was the stuff of science fiction and action films-the locked door that opened by a retinal scan. The keypad required a fingerprint as additional security. Well, what was at issue in 2023 CanLII 5478 (BC LA) isn’t too far removed from those one-time fantasies. Here, an employer implemented a biometric finger scan system for employees to use, and it had a good reason that had nothing to do with security. Would vastly improved recordkeeping and human resources services suffice as justification? Some employees got fired for . . . [more]

Indemnification clauses are often placed into contracts, without parties giving them much attention. However, when these clauses are triggered, the consequences can be devastating. 

In the recent case, Burr v. Tecumseh Products of Canada Limited, 2023 ONCA 135, the Ontario Court of Appeal dealt with the consequences of an indemnity clause with respect to costs of a proceeding. The Court upheld the trial judge’s decision in finding that there was an agreement to indemnify between the parties. However, the Court granted leave to appeal with respect to a part of the cost order and remanded that issue back to . . . [more]

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

It’s an awful lot harder to convince an arbitrator, court or tribunal about the validity of a culminating incident leading to termination if no prior problems were documented. This point was neatly illustrated in a decision of the Alberta Labour Relations Board in 2023 CanLII 1492, where a car mechanic who was fired on shaky grounds was awarded pay in lieu of notice of termination. The case provides employers with a good reminder about the uphill battles they will likely face in arguing the unsuitability of an employee without the . . . [more]

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

Money and time off work for holidays are naturally important to employees, so when Queen Elizabeth II died and the Prime Minister commented on the importance of mourning her passing, unions and employees alike saw an opportunity for gains to be made. This was a pure question of interpretation, and the dispute in [2023] O.L.A.A. No. 43 was resolved in the employer’s favour based on the language of the collective agreement and the arbitrator’s determination of what a “proclamation” is. . . . [more]

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

Surreptitious recordings aren’t restricted to the realms of James Bond movies and undercover police work; they crop up in employment disputes, too. Whether the decision-maker presses “play” depends on the outcome of a delicate balancing act that pits the value of the recording against the prejudice it might cause. The Court of King’s Bench of Alberta’s analysis in 2022 ABKB 813 (CanLII) is instructive to employers and employees alike. . . . [more]

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

A limitation period is a contractual or statutory provision that bars the filing of a lawsuit, grievance or formal complaint, depending on the context. When a party misses a filing deadline, it’s not like missing the bus. The results can be profound and hinge on a determination of whether the limitation period was missed in good faith, as we see in [2023] O.H.R.T.D. No. 68. As it turns out, it takes more than simply being sick or having a disability to justify filing a late claim. . . . [more]

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

In a recent judicial review of the Social Security Tribunal’s decision to deny an employee Employment Insurance following dismissal for cause, it was found that the employee’s knowing violation of the employer’s COVID-19 policy resulted in a finding of misconduct that disqualified him from collecting Employment Insurance benefits. . . . [more]

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

Before you read any further, you’ll want Rockwell’s “Somebody’s Watching Me” playing in the background. Can you think of something that pits management rights against privacy in the workplace quite like surveillance cameras do? The potential for these unblinking eyes to be abused prompted the union in [2023] A.G.A.A. No. 3 to file a policy grievance unsuccessfully challenging their presence in one workplace. . . . [more]

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

A claim of discrimination is a serious thing, and the allegation won’t pass muster without any evidence to back it up. If there’s no evidence, a claim cannot succeed. The Saskatchewan Court of Queen’s Bench turfed a claim in these circumstances in 2022 SKQB 188. . . . [more]