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Archive for ‘Substantive Law: Judicial Decisions’

Dismissal for Cannabis Fuelled Safety Incident Upheld

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]

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

Misgendering Students Can Be Professional Misconduct

In the so-called culture wars these days, there can be highly politicized debates around transgender rights and the proper use of pronouns. In Ontario, these debates are without legal basis, as gender identity and gender expression are protected grounds under the Human Rights Code.

Under some misguided notion of challenging students to think critically, there are teachers who reiterate the talking points of both sides of such culture wars, but do so at their own peril.

A recent decision by the Discipline Committee in Ontario College of Teachers v Teal illustrates the regulatory context in the educational setting.

The . . . [more]

Posted in: Substantive Law: Judicial Decisions

Unfair Treatment Not Always Violation of Human Rights

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

In Nguyen v Central Stampings Limited (“Nguyen”), an employee’s feeling that an employer’s conduct derived from discriminatory intent due to his sex was not sufficient to obtain compensation for violation of the Ontario Human Rights Code. . . . [more]

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

The Milgaard Story’s Importance for the Presumption of Innocence

David Milgaard is reported to have passed away this weekend at the age of 69. He spent 23 years in prison for a rape and murder he did not commit.

Milgaard was convicted in 1970, and spent the ages of 16 to 39 in prison, following the discovery of a nurse’s body in the snowbank. His appeal to the Saskatchewan Court of Appeal was dismissed the following year, and the Supreme Court of Canada refused him leave to appeal. That same year, a pattern of sexual assaults committed by Larry Fisher came to light, which matched the offence in question. . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Use It or Lose It: Trademark Management

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

Businesses that have a registered mark, name or symbol have to properly manage it if they seek to maintain their brand image as a source of economic value and stability. The value of proper trademark management is the key takeaway in the recent Federal Court decision Milano Pizza Ltd. v 6034799 Canada Inc, 2022 FC 425. In that decision, poor trademark management came back to haunt the plaintiff’s pizzeria. . . . [more]

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

Direct Democracy Ends Up in Court

A provincial election is currently scheduled in Ontario for June 2, 2022. The process for this date is set under the Election Act, where the the Lieutenant Governor in Council proclaims a date for an election on a Wednesday.

Although this date was was generally anticipated, there are often a number of legal issues that emerge prior, during and following an election. In this election, just days after the election date was proclaimed, an individual sought to reserve the name Direct Democracy Party of Canada with Elections Ontario.

The process for registration is governed by s. 10 of the . . . [more]

Posted in: Substantive Law: Judicial Decisions

Bad Optics: Looking Beyond First Impressions in Discrimination Cases

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

When an employee who is off work due to a disability is terminated, there are typically red flags signaling a potential situation of discrimination. The Canadian Human Rights Tribunal’s decision in Fick v Loomis Express, 2022 CHRT 2 (CanLII) confirms that it is not always as it seems. Despite bad first appearances, the employer’s actions can be found legitimate, countering a claim of discrimination. . . . [more]

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

Importance of Right to Counsel

The Charter‘s right to counsel under s. 10(b) is an often misunderstood and confused right by many members of the public. This confusion likely emerges from unintentional analogies to the commonly cited American case Miranda v. Arizona, 86 S. Ct. 1602 (1966) in television and movies.

The Court did adopt elements that mirrored Miranda rights in the early Charter case of R. v. Brydges, 1990 CanLII 123 (SCC). The Court found that s. 10(b) meant that police have a duty to informed individuals who are detained or arrested of their right to retain and instruct counsel, and . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Alberta Court Subtracts CERB From Dismissal Notice

Written by Lewis Waring, Paralegal, Student-at-Law (third year), Editor, First Reference Inc.

In Oostlander v Cervus Equipment Corporation (“Oostlander”), the Alberta Court of Queen’s Bench subtracted an employee’s payments under the Canada Emergency Response Benefit (CERB) program from their entitlement to reasonable notice following their wrongful dismissal. While the 36-year employee’s entitlement to damages after receiving one month of notice was not in question, the Albertan court’s decision to subtract the amount they had received under the CERB program represents a regional answer to an evolving question throughout the country. Whether this Western approach to CERB will emerge into a . . . [more]

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

Beware the Boomerang Summary Judgment

We’ve all heard about the civil justice system being crisis, and we’ve heard it for decades.

The so-called culture of complacency in criminal proceedings, and corresponding Charter protections in those cases, invariably means a prioritization of judicial resources in those cases.

Even prior to that time, the Court has attempted to foster a cultural shift in civil proceedings through the use of summary judgment motions.

The result has been that instead of threatening to take the other side to trial, parties threaten to take a matter to summary judgment.

But you should always be careful what you threaten. One unanticipated . . . [more]

Posted in: Substantive Law: Judicial Decisions

Collection of Vaccine Information Upheld as Necessary

On May 19, 2021, the Federal, Provincial and Territorial Privacy Commissioners provided an unusual and joint statement around vaccine passports, where they cautioned about the use of these measures, even when effective in addressing the harm of the pandemic,

At its essence, a vaccine passport presumes that individuals will be required or requested to disclose personal health information – their vaccine/immunity status – in exchange for goods, services and/or access to certain premises or locations. While this may offer substantial public benefit, it is an encroachment on civil liberties that should be taken only after careful consideration. This statement focuses

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

Employer Discriminates by Dismissing for Disability-Fueled Absenteeism

Written by Lewis Waring, Paralegal, Student-at-law (last year), Editor First Reference Inc.

In Cyncora v Axton Inc (“Cyncoxa”), an employer discriminatorily dismissed its employee with a disability despite the employee’s undisputed absenteeism. The fact that the employer had some legitimate concerns about the employee’s fitness for its time-sensitive workplace did not remove the reality that one of the underlying reasons for its struggles with the employee was his ongoing struggle with depression and anxiety. . . . [more]

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