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Archive for ‘Substantive Law: Judicial Decisions’

Notwithstanding in Ontario, Yet Again

Nearly three years ago, I wrote here that the use of s. 33 in Ontario constituted “UnChartered waters.”

Given the successful appeal in that case, the use of the clause ultimately wasn’t necessary. However, I was fortunate to appear as an intervener before the Court to note that the potential use of the notwithstanding clause would presumably emerge in circumstances that were clearly pressing and substantial, and asked the Court to carefully scrutinize any such rationale as a result. That decision is still pending.

Perhaps because the case involved the elections of a single city (albeit the largest in Canada, . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Facing Problems, Employer Buries Head in Sand

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

Many readers will remember the Bugs Bunny cartoons that featured an ostrich who would bury its head in the sand to avoid a predator or some other form of imminent danger. It turns out that ostriches do not really bury their heads in the sand to avoid problems, but the cartoon offers a nice analogy to the way the employer in Cybulsky v Hamilton Health Sciences, 2021 HRTO 213 (CanLII) handled one of its employees’ allegations of discrimination. In this case, the Human Rights Tribunal of Ontario considered the plight . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

Crown Immunity Means Tough Luck for the Police: A Good Call?

In Ontario (Attorney General) v. Clark (“Clark“), the majority (8 judges) of the Supreme Court of Canada held that Crown immunity precludes claims based on misfeasance in public office. Justice Côté dissented. Here I consider the policy underpinnings and ramifications of the two opinions. . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

LinkedIn Is Not Facebook

You’ll see it every few weeks on LinkedIn. Somebody somewhere is complaining that LinkedIn is not Facebook. They’re usually complaining about it on LinkedIn, and the comments on these posts bear an earie resemblance to social media platforms that are not LinkedIn.

Joshua Titsworth says that despite being founded in 2002, the site has gone through significant changes since that time,

The truth about LinkedIn is that despite its intended use, it has always been a form of social media… Given the relatively community-based origins of the site, it may seem strange to take issue with LinkedIn for becoming too

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

Experienced Plaintiff Wins Wrongful Dismissal Suit to Some Extent

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

Employees who are unjustly dismissed cannot simply sit back, relax and wait for their payday in court. They have a duty to mitigate their losses by taking reasonable steps to find work elsewhere. In Wilson v Pomerleau Inc., 2021 BCSC 388 (CanLII), the plaintiff learned this the hard way, seeing his damages reduced on account of his lax approach to mitigating his losses. . . . [more]

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

How Open Is an Open Court Online?

In 2015, Shauna Hall-Coates wrote in the Dalhousie Journal of Legal Studies,

Walk into any courtroom today, critics venture, and it will look stunningly similar to those of the past; the judge will be sitting behind the bench, the jury in its box, and the witness on the stand.1 As everyone settles into his or her place selected by centuries of ritual and status quo, the courtroom may even appear as a sanctuary from the trappings of digital technology, so doggedly pursued outside its walls.

This segregation between the courtroom and digital technology is nonetheless collapsing, as trial spectators

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

The Employer Post-Dismissal Release Repudiated Contract

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

In Peretta v Rand v Technology Corporation (“Perretta”), an employer repudiated an employment contract by insisting that a new term be added after the contract had already come into effect. The reason that the employer’s insistence on adding a new term resulted in the repudiation of the contract was that the new term was so important that the employer’s attempt to force the employee to agree to it showed an intention to not be bound by the original contract. . . . [more]

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

Forum Non Conveniens Online

Like it or hate it, virtual hearings are with us in some part indefinitely. With virtual witnesses, and all of the parties attending remotely, there’s certainly some savings in travel expenses.

But what about complex trials, and where trial fairness may be significantly impaired through an online format alone? Can a forum non conveniens argument be raised in this context?

A party who is outside of Ontario can move under R 17.02 Rules of Civil Procedure staying the proceeding, including if the court concludes Ontario is not a convenient forum. This is different from the real and substantial connection test, . . . [more]

Posted in: Substantive Law: Judicial Decisions

Employer Wrongfully Dismisses Employee for Alleged Confidentiality Breach

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

In Jones v Bayview Credit Union (“Jones”), an employer wrongfully dismissed an employee due to allegations that the employee disclosed confidential client information, violating confidentiality policies and procedures. Although the employee had accessed client information in the context of providing services to another client, this practice did not breach any client’s confidentiality rights. Instead, the employee remained alert to relevant privacy issues while accessing the confidential information of one client while assisting another. . . . [more]

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

Much Sound and Fury, Signifying Nothing

Civil litigators are accustomed to counsel who pose and posture, typically needlessly, and in a manner that is counterproductive to resolution.

No, you will not likely be taking this matter to trial. That would be far too costly, and take far too much time for everyone involved, especially where the legal issues are just not that complex. In the meantime, counsel should put together practical solutions, and leave all the hot air for the sauna.

Unfortunately that is not what occurs in civil litigation, even though the pandemic would appear to call for such practical common sense more than ever. . . . [more]

Posted in: Substantive Law: Judicial Decisions

Court Denies Privilege and Compels Worker’s Evidence

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

The vague yet intriguing title of the case, in the Matter of B, 2020 ONSC 7563 (CanLII), foretells some of the secrecy and confidentiality of the facts behind the matter. The Honourable Barbara A. Campbell, Justice of the Ontario Superior Court of Justice authors an interesting decision sure to please any aficionado of the law of evidence. In it, she considers whether an employment agreement’s confidentiality clause sufficiently shields an employee from testifying about his or her employer in an investigation by the Ontario Securities Commission. Does the clause render the information . . . [more]

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

Summary Judgment on Pandemic Constructive Dismissal

Over a year ago, the provincial government introduced new emergency leaves for workers sick from COVID-19. This was soon followed by special provisions for termination and severance under the Employment Standards Act, 2000 (ESA), which many people speculated was likely unenforceable and would be deemed constructive dismissal.

Justice Broad of the Ontario Superior Court of Justice recently dismissed a motion for summary judgment on April 16, 2021, in Coutinho v. Ocular Health Centre Ltd., where the defendant unsuccessfully attempted to rely on these special termination provisions. This is likely the first reported decision in Ontario to interpret these regulations. . . . [more]

Posted in: Substantive Law: Judicial Decisions