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Archive for ‘Substantive Law’

Employer Was Permitted to Require Experience for Job

Written by Christina-Catenacci, BA, LL.B., LLM, PhD Editor, First Reference Inc.

In August 2024, a New Brunswick labour arbitrator denied the union’s grievance that argued that an employee should have been awarded a job. The union took issue with the employer’s job requirement to have 1,000 hours of experience and stated that it was unreasonable. The arbitrator agreed with the employer that the employer was allowed to stipulate that job applicants for the position of truck driver had 1,000 hours of experience. . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Dealing With Pets Under British Columbia’s Family Law Act

The recent changes to the Family Law Act dealing with pets in the context of family law disputes received a lot of attention and were widely celebrated. However, they didn’t do much to alter the fundamental treatment of pets as chattel. This article provides a brief digest and analysis of those amendments.

On 15 January 2024, the portions of British Columbia’s Family Law Act dealing with the division of property were amended to address pets, the idea being that people have important emotional relationships with pets and post-separation conflict might be reduced if clear guidelines were provided. Prior to these . . . [more]

Posted in: Legal Information, Substantive Law: Legislation

Employee Wins Family Status Discrimination Case

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

This case reads like a cautionary tale for employers. In 2024 O.H.R.T.D. No. 862, the Ontario Human Rights Tribunal exposed the danger of adopting an inflexible approach to an employee’s challenging caregiving role at home. In the end, significant damages were awarded for the failure to accommodate and for reprisal. Other employers can avoid the same fate by understanding the rights and obligations at play in this context. . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Pleadings v Evidence: Walking the Tight Rope

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

It’s a basic principle that a party needs to know the case being alleged against it to fairly respond to it. The Ontario Superior Court of Justice rendered a decision in 2024 ONSC 2948 where an employment relationship went bad, resulting in a lawsuit. The employer cried foul over the information it received in response to its demand for particulars and brought a motion asking the court to order them. The court disagreed, shedding light on the extent of information a respondent is entitled to receive before examination for discovery. . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Decision Clarifies Contracting Out and Contracting In

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

The Alberta grievance arbitration decision in 2024 CanLII 38826 (AB GAA) draws a distinction between contracting out and contracting in. The grievance concerned a company’s decision to fill its Tank Farm Project Operator position at its refinery, involving issuing permits for project work, isolations, expansions and tank cleaning. The position typically was filled by a bargaining unit member to promote individual development within the unit. . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Elected Municipal Councillor Was Not an Employee: No Violation of Employment Standards

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

In April 2024, the New Brunswick Labour and Employment Board confirmed the decision of the Director of Employment Standards that an elected municipal councillor with a local government governed by the Local Governance Act was not an employee. He claimed that his six-month suspension was a violation of the Employment Standards Act and that he was owed damages. The Board concluded that the councillor did not meet the definition of “employee.” Therefore, the Board dismissed the councillor’s claim. . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Understanding the Council of Europe AI Treaty

This article offers a concise overview of the Council of Europe’s (CoE) recent efforts in shaping global artificial intelligence (AI) governance. The newly adopted Framework Convention on AI has important implications for member states and beyond, notably Canada. Organizations and employers beginning to navigate the AI landscape will want to assess the widespread impact of this treaty on businesses worldwide. . . . [more]

Posted in: Justice Issues, Substantive Law, Substantive Law: Foreign Law, Technology

Loose Lips Lead to Lost Cash

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]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Newfoundland and Labrador Privacy Class Action Goes Ahead

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]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

The Lack of Protection for Non-Denominational Identity: The Webber Academy Case

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]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Missing Discussions at Center of Union COVID Dispute

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]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Blaming Victim of Sexual Harassment Not a Good Defence

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]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions