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

When an employment relationship ends, one of the parties usually has a good reason. Sometimes the parties part ways on good terms, but in other cases, just cause is alleged. In cases of the latter type, a solid factual basis is needed. Otherwise, unproven allegations could prove costly to the employer, as was illustrated in a recent wrongful dismissal action, 2020 BCSC 2298 (CanLII), in which the employer saved its grievances concerning the employee until the last minute, and by then it was too late.

Background

The plaintiff was the . . . [more]

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

Without limitation periods, potential defendants would be at risk of being sued at any time; a perpetual black cloud would loom overhead. Barring lawsuits after the time limit has passed serves several important policy goals: it encourages people to bring forward and resolve their claims in a timely way, and it gives people a degree of finality. Determining whether a claim is time-barred may seem like an easy task, but a party may do something that causes one to wonder when the time limit began to run. Such was the situation . . . [more]

In a recent Alberta ruling, a Society was found to have wrongfully terminated a management contract with a company when it dismissed the company’s chief executive officer for breach of the management contract, but there was no wrongful dismissal as the CEO was not an employee, but an independent contractor.

Background

The Society operated an annual music festival in Alberta. In order to manage its festival, the Society consistently hired a separate organization to manage the festival. Part of that organization’s management of the festival was providing consultants to serve on the festival’s board of directors. These consultants included all . . . [more]

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

This article will consider the Court of Appeal for Ontario’s recent decision (2022 ONCA 454) calling for a flexible approach to calculating reasonable notice when an employee is dismissed by a successor employer. For employers, this approach might spell a somewhat longer notice period than they would have otherwise anticipated.

Background

The employee worked for the company from 2011 until 2019, when her employment was terminated without cause. The only event of note during this period happened in 2016 when, as part of the fallout from creditor protection proceedings, . . . [more]

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

“I can’t hear you!”

When a litigant hears this from a court, tribunal or other decision maker, it either means that someone needs to speak up, or there is a problem with jurisdiction. Difficulties of the first variety are easy to fix, while those in the second category can be insurmountable. In the labour world, complainants sometimes appear to have more than one forum at their disposal, and while sometimes this is the case, it isn’t always, and the consequences of choosing the wrong one can be costly. In a recent . . . [more]

In a recent decision by the Court of Queen’s Bench of New Brunswick, an employer was found to have constructively dismissed its employee when it haphazardly told him he was to be “furloughed” and sent him home without pay for an indefinite period of time. The employer’s behaviour was not a legitimate temporary layoff but was instead a clear breach of its obligations under its employment contract. While the employer may have intended to temporary layoff the employee in response to the serious repercussions of the COVID-19 pandemic on its business, its careless verbal notice and failure to provide a . . . [more]

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

The Rolling Stones’ 1969 song “You Can’t Always Get What You Want” nicely highlights the difference between a preference and a requirement. This distinction also plays a critical role in the outcome of a family status discrimination claim in which a municipal employee’s request for altered hours arose out of and was ultimately defeated by choices she made.

In his decision, 2022 CanLII 51865, Ontario labour arbitrator Brian Sheehan traces the evolution of family status jurisprudence, and concludes that while an employee’s self-accommodation efforts are relevant, they . . . [more]

Social host liability is an area of law that is still being established. So far the courts are reluctant to find a prima facie duty of care. Without establishing a duty of care, negligence cannot be proven and damages cannot be awarded.

In McCormick v. Plambeck, 2022 BCCA 219, the BC Court of Appeal upheld the trial judge’s decision. The trial judge found that the plaintiff had not established a duty of care on the social hosts. It was not reasonably foreseeable that the plaintiff who arrived on foot and left on foot, would be injured as a passenger by . . . [more]

Four years ago, I wrote about the use of discovery evidence in criminal matters (linked: here). Today (June 30, 2022), the Supreme Court of Canada has provided greater guidance on this question, specifically in the context of sexual assault cases.

In R v. JJ, 2022 SCC 28, Justice Wagner and Justice Moldaver writing for the Majority upheld sections 278.92 to 278.94 of the Criminal Code, excerpted in part below.

Sections 278.92 to 278.94 were meant to remove barriers that deterred complainants from coming forward. Mainly by restricting defence counsel’s use of the complainant’s personal records (e.g. medical . . . [more]

In a recent case, the employer dismissed the employee when she did not return to the workplace following an allegedly unauthorized medical absence. However, the employer had improperly denied the fact that the employer’s medical absence was tied to her suffering from an adjustment disorder with associated anxiety and depression, a disability that had been diagnosed by a medical professional.

As a result, the labour arbitrator in the case found that the employer had unjustly dismissed the employee by discriminating against her disability. The arbitrator ordered the employee to be reinstated to her position, and to be compensated for the . . . [more]

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

Sick leave abuse is notoriously hard to catch. As a form of workplace fraud, one such incident can rupture the trust at the centre of even a long-standing employment relationship, prompting the employer to emphasize deterrence over rehabilitation when it imposes discipline. An Ontario arbitrator recently considered the plight of an employee who wrongfully entered a pandemic leave program that was designed to help facilitate isolating at home when required. When his ulterior motives came to light, even his long period of service could not tip the scales in favour of . . . [more]

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

In Canadian Pacific Railway v United Steelworkers – TC Local 1976 (“Canadian Pacific”), an employer’s dismissal of an employee who committed a safety infraction while intoxicated with cannabis was upheld as reasonable. The safety-sensitive nature of the workplace, the employee’s history of intoxication and the lack of any connection to medical or addiction issues were key factors in a labour arbitrator’s decision to uphold the employee’s dismissal. . . . [more]