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Archive for ‘Substantive Law: Judicial Decisions’

The Obligation for Constitutional Actors to Act in Good Faith

INTRODUCTION

In this post, I propose that the concept of bona fides, or acting in good faith, be applied to the conduct of constitutional actors. It is not unreasonable to expect that constitutional actors act in good faith towards one another. In this sense, I argue, the bona fides principle is a fundamental element of the rule of law that could serve to invalidate government action, depending on various factors which I discuss below, including the relevance of other principles and rules. A judicial conclusion that an actor had not acted in good faith might, in the balance, result . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Exclusive Jurisdictions of Labour Arbitrators

One of the side effects of the pandemic has been considerably higher movement in the employment sector. In addition to what is being termed “the Great Resignation,” employees have increasingly opted to organize and unionize their workplaces.

In early 2021, Statistics Canada noted that the union density rate was 31.3%, an increase from 30.2% in 2019, and the highest it has been for 15 years. Safety concerns, greater stability, and more input into decisions during the pandemic and recovery are all attributed to driving forced behind increased interest in unionization.

While unions play a crucial role in addressing . . . [more]

Posted in: Substantive Law: Judicial Decisions

CRA Makes a Probationary Termination Blunder

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

You’re fired!

These are two words no employee wants to hear. If job security goes together with seniority, then probationary employees walk a fine line every day they go to work. Most employers with collective agreements that allow for probationary periods rightly view them as a condition of hire during which they can closely observe the new employee and decide whether the person is a good fit. Many would likely say that the organization can dismiss the probationer for next to no reason at all, provided they don’t treat the person . . . [more]

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

When Cancel Culture Is Liable in Defamation

Isolation in one’s home and glued to an electronic device, it was inevitable that people would be come more activist online. A growing trend has been where public backlash online, also known as cancelling or calling out, is used to block someone from having a platform or career.

The debate around the utility of cancel culture weaves between delicate balances of expression rights and bullying concerns. While the practice started in progressive circles, it has more recently been weaponized by right-wing groups as well.

What people may not have anticipated is that the attempts to “cancel” someone could actually be . . . [more]

Posted in: Substantive Law: Judicial Decisions

Persistent Discord Within an Administrative Body

Members of the public who are uninitiated with the legal system in Canada are often confused when they encounter administrative law for the first time. The widely-recognized strengths of administrative tribunals, their flexibility and expediency, is often only possible because they discard some elements of formality and rigid procedure.

The relationship between reviewing courts and administrative tribunals is also constantly evolving. The Supreme Court of Canada in National Corn Growers Assn. v. Canada (Import Tribunal) resisted in 1990 an approach where courts would substitute the opinion over that of an administrative tribunal’s interpretation of a legislative provision, preferring greater curial . . . [more]

Posted in: Substantive Law: Judicial Decisions

Virtual Examinations Are Here to Stay

Examinations for discovery are a regular feature of civil proceedings. Litigators are deeply accustomed to the facilities, court reporters, and transcripts necessary to provide this important procedural step.

One significant feature of these in-person proceedings that everyone misses is the bountiful food offerings that these facilities offer. An hor d’oeuvre or sip from a coffee is often one of the best ways to avoid interrupting, and let something that is non-essential slide.

All of these trimmings are gone in the virtual context, with discoveries continuing throughout the pandemic through virtual conferencing. That doesn’t mean that everyone is comfortable with the . . . [more]

Posted in: Substantive Law: Judicial Decisions

Dating App Profile Lands UBC Employee in Hot Water

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

Employers are legislatively prohibited from discriminating against their employees based on their sexual orientation any other listed or similar ground of discrimination. When a university discovered that an academic advisor’s profile on a gay male dating app ran afoul of its conflict of interest policy, it fired him. The employee claimed the dismissal was discriminatory and based on his sexual orientation. He submitted a complaint to the British Columbia Human Rights Tribunal whose decision was later reviewed by the British Columbia Supreme Court. Was Conklin v University of British Columbia, . . . [more]

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

Religious Exemptions for Vaccinations: The Impact of Amselem

INTRODUCTION

With mandatory vaccination policies (some of which are not exactly mandatory because they provide alternatives), those opposed to vaccines have been claiming religious exemptions. When people are dismissive of these claims, others immediately respond, “But what about Amselem?”, the Supreme Court of Canada decision that seems to allow a highly subjective determination of legitimate religious belief. But what does Amselem actually say and how does it relate to anti-vaccination claims based on section 2(a) of the Canadian Charter of Rights and Freedoms. . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Top Court in British Columbia Clarifies Law on Distracted Driving

Written by Daniel Standing LLB., Editor at First Reference Inc.

According to Transport Canada, distracted driving happens when the driver’s attention is taken from the road and is focused on something else, like texting, talking to someone in the car or on the phone, eating or drinking, or using the entertainment or navigation system. It is a serious problem; statistics in the National Collision Database reveal that distracted driving contributed to an estimated 21 percent of fatal collisions and 27 percent of serious injury collisions in 2016. In response to the threat posed by distracted driving, all Canadian jurisdictions introduced . . . [more]

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

Nygard Fails in Bail Appeal

The high-profile case of fashion mogul Peter Nygård has hit another milestone, with the Supreme Court of Canada recently dismissing his appeal of the denial of a judicial interim release (bail) decision, pending his extradition request to the U.S.

Nygård is charged with racketeering conspiracy, sex trafficking conspiracy, sex trafficking, transportation of a minor for prostitution, and transportation for prostitution, over 25 years. He was arrested on Dec. 14, 2020, pursuant to a provisional arrest warrant, under s. 13 of the Extradition Act.

The Supreme Court of Canada stated in R. v. St-Cloud,

[70] … in Canadian law,

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

Accommodating Employees With Disabilities: What You Don’t Know Can Hurt You!

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

Employers of workers with disabilities need to know the ins and outs of their duty to accommodate. The law intends the accommodation process to be collaborative, allowing the employer, union and employee the ability to make suggestions, compromise and, hopefully, arrive at a mutually agreeable solution. In Singh v Dodd’s Furniture (No. 2), 2021 BCHRT 85, the British Columbia Human Rights Tribunal found that a furniture store discriminated against its worker after it received some bad advice about how to go about accommodating him. The furniture store made an “ill-informed . . . [more]

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

Judges Need Better Computers

For all of the emphasis on technology during the pandemic, there are still some basic fundamentals that need to be addressed to bring the justice system in Canada into the 21st century.

In Ontario, the provincial government has commenced a process last year to “modernize” the justice system, introducing electronic filing for over 400 court documents, a cloud-based e-hearing platform, and greater use of virtual hearings. Earlier this year, they passed new legislation for further changes, with the Attorney General stating,

Justice accelerated is justice delivered. No matter where you live in our province, the growth and well-being of

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