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Archive for ‘Substantive Law’

Employer Cannot Turn Blind Eye to Employee’s Disability

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

A recent decision of the Human Rights Tribunal of Alberta, Kvaska v Gateway Motors (Edmonton) Ltd., 2020 AHRC 94, confirms the law on accommodation of alcohol addiction. In this case, the human rights complaint of a dismissed employee was upheld. The Tribunal offers important advice to employers in how to deal with such difficult situations. The risk in not doing so is potentially costly: in this case, $30,000 in general damages, lost short-term disability benefits, lost wages and interest were awarded. . . . [more]

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

Security for Judgment Awarded in Ontario

Civil litigation can be an expensive ordeal. In many circumstances, it’s not entirely clear that either side has the resources to go the full distance for an entire trial, and with competent counsel and reasonable parties, it’s frequently not necessary to do so.

For every step along the way though, there are still expenses to be incurred. Rule 56.01 of the Rules of Civil Procedure in Ontario allows a party to see security for costs, typically where another party is ordinarily a resident outside of Ontario, there is a duplicity of proceedings elsewhere, other costs remain unpaid, there is good . . . [more]

Posted in: Substantive Law: Judicial Decisions

Saving Canada From Climate Change, at the Expense of Federalism

Climate change is the single greatest existential threat facing Canada. Greater than terrorism. Greater than cyber attacks on our digital infrastructure. Even greater than the COVID-19 pandemic.

Despite this, Canada has failed miserably in responding to this threat, despite knowing about it for decades. The reasons for this ultimately come down to politics, and narrow interests far too often confined by political cycles.

In 2019, Canada’s independent environment auditor, the Commissioner of the Environment and Sustainable Development, released a report which stated,

As Commissioner, I was proud to present the results of the first truly national picture of climate

. . . [more]
Posted in: Substantive Law: Judicial Decisions

Employee’s Delay Not Condoning of Constructive Dismissal

Lewis Waring, Paralegal, Student-at-law, Editor, First Reference Inc.

In McGuinty v 1845035 Ontario Inc (McGuinty Funeral Home) (“McGuinty”), an employee who returned to the workplace after an extended leave was found to have been constructively dismissed despite the fact that he had continued to work after the event leading to his constructive dismissal had taken place. McGuinty is important because it shows employers that a possible constructive dismissal claim does not necessarily go away once an employee returns to the workplace. In other words, a constructive dismissal claim does not require that an employee no longer comes into the office. . . . [more]

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

Digital Economy Partnership Agreement

Recently Singapore, New Zealand and Chile signed an agreement on how they will run their trading relationships in the electronic age: the Digital Economy Partnership Agreement (DEPA). It spells out how the parties will carry on business electronically, including the basic legal framework (UNCITRAL Model Law on E-Commerce, Electronic Communication Convention (and parties ‘shall endeavour’ to adopt the Model Law on Electronic Transferable Records), operation of a Single Window for customs and transit documents, and many other elements of trade in the modern era.

The obligations are set out in the context of the WTO, including its Trade Facilitation Agreement . . . [more]

Posted in: International issues, ulc_ecomm_list

A Peanut Butter Sandwich Is Not Grounds for an Appeal

With all the advertising around personal injury services proliferating, it’s tempting to some plaintiffs to think they can go it alone. The contingency fee alone in such arrangements might provide some financial or monetary incentive to explore such options.

As with most legal proceedings though, this is rarely advisable. This was clearly highlighted in a recent Ontario Court of Appeal decision in Jex v. Jiang.

The parties conducted a 10 day jury trial, based on a motor vehicle collision on August 29, 2007. The self-represented plaintiff was successful in providing causation, but was unsuccessful in proving damages. Consequently, the . . . [more]

Posted in: Substantive Law: Judicial Decisions

Court Determines Worker Was Employee, Awards Punitive Damages

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

Cases in which courts must determine reasonable notice for a dismissed employee are generally straightforward, involving an analysis of certain time-honoured factors in relation to the employee and his or her work. The case before the Supreme Court of British Columbia in Cho v Stonebridge Solutions Inc., 2020 BCSC 1560 involved a unique twist: the court first had to determine whether the plaintiff worker was an employee (as he claimed), or an independent contractor (as the defendant company claimed). The court concluded that, as an employee, the worker was entitled . . . [more]

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

What Happened, Before Applying Standard of Care

Negligence is determined by a standard of care that a relevant prudent person would undertake, rather than the results that such a theoretical person would seek to attain or avoid.

Although Canada initially inherited the reasonable person standard from England in Vaughn v. Menlove, 1837 132 ER 490, it has developed significantly since that time. It as not, however, made exceptions for mental illness as in Vaughn, but has created a number of other exceptions, most notably for experts and professionals.

The standard set by the Ontario Court of Appeal in Crits v. Sylvester, and affirmed on appeal . . . [more]

Posted in: Substantive Law: Judicial Decisions

Social Media Posts Alleging Racism Not Defamatory

By Lewis Waring, Paralegal and Student-at-Law, Editor, First Reference Inc.

In Sole Cleaning Inc v Chu (“Chu”), an individual’s disparaging social media statements about her former employer were found not to be defamatory. Chu illustrates the way the legal system may from time to time, respond to digitally published statements that disparage an organization that may indeed have negative effects on that organization’s business. In short, Ontario law may allow individual disparaging comments about the former employer and only prohibit such statements in rare cases. This high standard reflects the value that Ontario places on protecting free speech, particularly in . . . [more]

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

Reliance on Unredacted and Undisclosed Materials

Criminal law can be differentiated from civil proceedings, where both sides are obligated to provide all relevant evidence, in that there is an inherent asymmetry in the information the Crown possesses. This is particularly important given the burden of proof that is imposed on the Crown.


The B.C. Court of Appeal stated in R. v. C. (M.H.),

 [29] …there is a general duty on the part of the Crown to disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it.

. . . [more]
Posted in: Substantive Law: Judicial Decisions

Termination Timing Proves Critical in COVID Climate

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

The Ontario Superior Court of Justice’s decision in Yee v Hudson’s Bay Company, 2021 ONSC 387 is welcome news for anyone wondering about COVID-19’s effect on a reasonable notice period. For all of the upheaval that the pandemic has caused, it proved to be of little consequence to the notice owed to a dismissed company executive in this case. . . . [more]

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

Racial Stereotypes as an Aggravating Factor

On Feb. 25, 2021, I provided the keynote speech at Bora Laskin School of Law for Black History Month. I noted that Black History could not be just reduced to slavery, but at the same time the legacy and trauma of that history has significant impacts on our society and justice system today.

The Ontario Court of Appeal recently heard an appeal of Justice Nakatsuru’s decision in R. v. Morris, which explored the social circumstances of Black Canadians and its impact on the justice system.

Justice Nakatsuru took into account the unfair and disproportionate discrimination that Black offenders face . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions