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

Often, cases about the validity of termination provisions in employment contracts focus on whether the contract language sufficiently ousts the common law presumption of reasonable notice. Such provisions commonly refer to, or incorporate by reference, a minimum legislative standard amount of notice that must be given. What those generally familiar with the law might not think twice about is precisely which minimum standard applies. The one applicable to individuals, right? Now, what if the contract is silent about group terminations? Could an ex-employee argue the termination clause was invalid because it . . . [more]

Presently, there is a shortage of donor sperm in Canada. This is partly attributed to the altruistic model in Canada, which removes a financial incentive for people to donate sperm or eggs (ova).

In the article “Feasibility of an altruistic sperm donation program in Canada: results from a population-based model“, the authors Daria O’Reilly et al remark that since the year 2000 there has been a marked decline in the supply of donor sperm from Canadian men. “This decline coincides with the introduction of new, more stringent regulations for donor screening and sample testing in 2000, and the . . . [more]

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

In a recent British Columbia ruling, an employee who engaged in a pattern of time theft was found to have been rightfully dismissed for cause. As a result of the dismissal being upheld, the employee was forced to repay a debt she owed to the employer due to an advance agreement that funded her home office supplies and her pursuit of professional credentials. . . . [more]

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

You’re familiar with the scenario: a momentary physical flare-up over nothing provides the employer with arguable grounds for termination. They’re arguable because there are no hard-and-fast rules that termination results in every case of physical violence. In a legal challenge, arbitrators pay close attention to anything the employee says to take responsibility for his or her actions or to show remorse. In 2022 CanLII 112111 (CA LA), we see how significant the mitigating factor of an apology-or the lack of one-can be. . . . [more]

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

Employees have important protections under workplace legislation that encourages them to bring forward complaints of health and safety issues so the employer can ensure the safety of all. If a complainant employee is the victim of perceived retaliation by the employer, they can seek a remedy. The litigation in 2022 BCSC 1558 (CanLII) highlights some of the legal issues that can arise. . . . [more]

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

Private delivery people shuttling food orders around town is a common sight in today’s gig economy. Between the lowly driver and the huge multi-national corporation they carry the food for, it’s easy to imagine who holds the real power in this type of working arrangement. In the case decided by the Manitoba Court of King’s Bench in 2022 MBKB 178 (CanLII), the court shifted the balance of power toward the “little guy” by ruling that mandatory acceptance of an arbitration clause was unconscionable and lacked consideration. By rendering the clause . . . [more]

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

In a recent Ontario ruling, an employer was forced to pay an extremely high amount in costs after attempting to enforce its non-competition and non-solicitation clauses twice in the middle of the same legal proceedings. The employer had brought two separate motions that both sought to prevent its former employee from working for its competitor. However, the fact that the employee had actually ceased working for its competitor and that the non-competition and non-solicitation clauses in its contracts had actually expired made the employer’s request impossible. The impossibility . . . [more]

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

Faced with a unique set of facts, an Ontario court in 2022 ONSC 5890 (CanLII) let two in-house lawyers off the hook when their former client sued them following the breakdown of their employment relationship. Would-be litigants in situations like the plaintiff’s would do well to remember that things aren’t always as they at first seem. It should almost go without saying: litigants had better have the evidence to prove it if they allege a breach of contractual or fiduciary duties. . . . [more]

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

In a recent ruling, it was found that an employee was successful at fulfilling his mitigation obligations, even though he was not successful at mitigating his loss. Although failing to look for a job seems like a clear failure to mitigate a loss of employment, this ruling clarified that an employee only fails to mitigate when comparable employment is actually available. If an employee’s job market does not contain any comparable roles, any failure to take reasonable steps to find comparable employment will not be a failure . . . [more]

In Alison Braks v Dundeal Canada (GP) Inc., 2022 ONSC 4015, Justice Ramsay sets out key points for counsel to remember when delivering their opening and closing addresses to a jury. These tips include:

OPENING

• An opening should provide a general notion of what will be given in evidence. It should not mention matters that will not become evidence before the jury. A witness’s credibility should not be dealt with in an opening.

• Counsel may not suggest a matter which counsel knows is not proven even if supporting evidence is adduced.

• Counsel may not give evidence.

• Counsel may not

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

In a recent ruling, an employer’s application for review of an order to pay was denied after the employer failed to provide the required deposit. The employer had stated it had no ability to pay the deposit due to the COVID-19 pandemic, but the Ontario Labour Relations Board refused to waive the deposit. The employer offered to enter a payment plan, but the Ontario Labour Relations Board also rejected this suggestion. . . . [more]

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

In his brief reasons for the decision on a motion concerning costs, Justice Frederick Myers of the Ontario Superior Court of Justice didn’t mince words. Focused squarely on issues of fairness and access to justice, the judge awarded significant costs to the plaintiff in a wrongful dismissal matter while providing clear guidance to employers about how to handle such situations.

The decision in Court File Number CV-20-00646993 followed a written hearing at the end of October 2022. The judge noted that the litigation was all about money, and it wasn’t the . . . [more]