Canada’s online legal magazine.

Archive for ‘Substantive Law: Judicial Decisions’

Uncomfortable Situation a Punishable Offence Says Arbitrator

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

A recent British Columbia arbitration case provides employers several kernels of wisdom respecting the investigation and punishment of conduct that violates a respectful workplace policy. Largely centered on the witnesses’ credibility, 2022 CanLII 60943 (BC LA) is a case that employers can turn to for guidance when dealing with such uncomfortable situations. . . . [more]

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

OPP’s DNA Sweep Discriminates Against Migrant Workers

In a recent Human Rights Tribunal of Ontario ruling, it was found that the Ontario Provincial Police violated the human rights of a large number of migrant workers based on race, colour and place of origin, when it conducted a DNA sweep during a criminal investigation of a sexual assault. The HRTO noted in particular that the OPP sought and collected DNA from all migrant workers, regardless of whether they met the victim’s description or had an alibi, and the OPP failed to adequately ensure that vulnerable workers were able to provide voluntary and informed consent to the DNA . . . [more]

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

Specialized Contractor Can Do More Than One Thing

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

A recent decision of the Ontario Labour Relations Board, 2022 CanLII 5411 (ON LRB), could make waves in the construction industry for its redefining the concept of a specialty scaffolding contractor. Departing from the oversimplified notion that a speciality scaffolding contractor does nothing but scaffolding, the Board adopted a contextualized approach by examining the contractor’s devotion of time and resources to scaffolding to determine the matter. . . . [more]

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

Of Floors and Ceilings: Appeal Court Interprets Contract

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

Clarity of language is perhaps the most important part of writing a good contract. In the employment world, the slightest uncertainty in a termination provision can and often does lead to costly litigation to determine how much money should change hands. In 2022 ABCA 220 (CanLII), the Court of Appeal of Alberta helped the parties interpret a provision providing for “60 days or more” notice of termination, holding that the ambiguity inherent in it meant that it should be interpreted in the employee’s favour. . . . [more]

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

Original and Successor Employers Both Liable for Oppression Remedy After Wrongful Dismissal

In a recent Alberta wrongful dismissal case, the court, using the oppression remedy analysis, ruled that the original and successor corporations and the directors and shareholders were liable to pay the full judgment. . . . [more]

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

Trumped-Up Cause Allegations Prove Costly to Employer

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]

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

Limitation Period Extended by Defendant’s Conduct

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]

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

CEO Dismissal Is Not a Wrongful Termination

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]

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

Successor Employer Case Calls for Flexibility in Fixing Notice

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]

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

Concurrent Jurisdiction Upheld in Human Rights Case

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]

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

Employer Haphazard Furlough a Constructive Dismissal

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]

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

Classic Rock Song Sums Up Law in Family Status Complaint

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]

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