Canada’s online legal magazine.

Archive for ‘Substantive Law: Judicial Decisions’

Electronic Signatures May Be Superior in Commercial Transactions

Due to social distancing measures during the pandemic, almost all documents during this time were signed digitally, as opposed to traditional (“wet signatures”) methods.

Well before the pandemic, electronic signatures have been considered legally valid. Ontario, Alberta and B.C. have had statutes in place for over two decades recognizing the validity of electronic signatures, based on the Uniform Electronic Commerce Act of Canada (“UECA”) model legislation.

However, there is still some variability between provincial legislation on how electronic signatures are used. Ontario‘s statute allows for these to satisfy any legal requirement, as long as it is reliable for . . . [more]

Posted in: Substantive Law: Judicial Decisions

Landmark Compensation Award in a British Columbia Discrimination Case

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

In 2019, the British Columbia Human Rights Tribunal found that Levan Francis was the victim of discrimination on the basis of his race and colour at the hands of his employer, the Ministry of Justice, North Fraser Pre-trial Centre. The damage was extensive: Francis suffered a serious mental illness that prevented him from working in any occupation. In a follow-up decision, the Tribunal determined what remedies were available to Francis. Since the governing principle on remedy is to put someone back in the original position, the fact that almost . . . [more]

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

Litigating Science Around COVID-19

Given the profound impact the pandemic has had on society, it’s obviously no surprise that questions around the governmental actions and other responses will continue to appear in our legal system for years.

While courts have taken judicial notice that the virus exists, which is perhaps not that controversial, they have also adopted and followed in many ways governmental messaging around the pandemic. This appears to be justified on an expediency and principled basis, at least early on in the pandemic when the information and evidence was still emerging.

Two years later, there is a greater appetite to challenge widely . . . [more]

Posted in: Substantive Law: Judicial Decisions

Alberta Law Firm Discriminated Against Employee

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

Hindsight is always 20/20, but in reading the decision Smorhay v Goodfellow Law, 2021 AHRC 170 (CanLII), one wonders how the employer did not foresee serious problems on the horizon. Corinne Smorhay was a legal assistant. She had worked in law offices before but had no construction law experience. Despite this, a headhunter recommended her to Goodfellow Law, a construction law firm that needed a secretary who could hit the ground running. When she was the only applicant who showed up for the interview, she got the . . . [more]

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

Privacy Around Mandate Letters

Political scientists yearn for the day when party policy has the most significant weight in democratic elections. Instead, snappy slogans and flash ideas usually are more effective at attracting the attention of the electorate.

Still, when a government is elected, they are required to implement ideas through policy. This is usually done in the form of mandate letters to cabinet ministers, which outlines the objectives they will work to accomplish, and the inherent challenges the minister is facing in this role.

In a free and open democracy, should the public have access to these mandate letters? On one hand, the . . . [more]

Posted in: Substantive Law: Judicial Decisions

Workplace Fighting: What Happens After the Dust Settles?

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

Thankfully, many employers will never have to deal with the aftermath of a physical confrontation that happens in the workplace. But if a fight occurs, the employer is faced with some unique challenges, both in terms of investigating and in meting out punishment to those involved. The recent Ontario arbitration case, Michael Garron Hospital and SEIU, Local 1 Canada (Khan) Re, 2022 CarswellOnt 795, puts these challenges in context and provides a useful precedent to employers who must deal with this unsavoury situation.

Background

Rayard Khan and Michael . . . [more]

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

Public Interest in COVID-19 Discourse

Nothing has been more divisive or controversial in our lifetime than the COVID-19 pandemic, including the appropriate response, treatment, governmental measures, or what is in the public interest.

The discussions around these issues have been robust, and have occurred with family members, friends, and especially online. On some level, these discussions are healthy, and promote better decision-making in a democracy. But with all expression rights, there come limitations, including words that are defamatory.

These exchanges have perhaps been most pointed within the medical community, the body of professionals we have all turned to for expert insight to medical issues around . . . [more]

Posted in: Substantive Law: Judicial Decisions

The Court Goes Back to Basics on Workers Compensation

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

Worker’s compensation legislation has existed in Canada for more than 100 years and can be traced to the work of the Ontario lawyer, politician, and judge Sir William Meredith who, in 1913, tabled the Meredith Report that is seen as the harbinger of the system of worker’s compensation across the nation. One of the key foundational concepts is the principle of no-fault compensation, a historical compromise between workers and employers. According to this principle, there is no dispute about responsibility or liability for the accident, and injured workers receive benefits regardless . . . [more]

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

Employer Fulfills Duty to Accommodate Despite Resignation

Written by Lewis Waring, Paralegal, Student-at-Law (3rd year), Editor, First Reference Inc.

In Benson v Central Health Authority, an employer fulfilled its duty to accommodate despite the negotiated resignation of its employee with a disability. Although the employee’s disability made continued employment impossible, the employer’s reliance upon a well-crafted human rights policy allowed it to fulfill its duty regardless. The employer fulfilled its duty to accommodate ultimately by responding to its employee’s request for accommodation systematically and fairly. . . . [more]

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

Retrospective Enforcement of Non-Competition Clauses

Running a business is tough, but it’s even tougher with competition. One of the worst kinds of competition can come from a former employee.

Some employers have tried to limit this risk through the use of what is called a non-competition clause, a provision in an employment agreement that bars a former employee from running a business in competition with their former employer.

The common law has generally disliked the use of non-competition clauses, and as far bas as 1894, the House of Lords stated in Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd,

The public have an

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

A Property Manager as an Agent

The greatest strain on the justice system during the pandemic is arguably on housing claims, given the cascade effects that unemployment and financial instability has had on tenancies.

Without a constitutional basis for undue delays in this area like in criminal law, some of these matters have been languishing even longer than usual.

One of the long-standing debates in this area of law has been whether a property manager can act as an agent on behalf of a landlord. This has become particularly important in Ontario since 2008, when paralegals became regulated and licensed by the law society.

The Law . . . [more]

Posted in: Substantive Law: Judicial Decisions

Accommodation: The Employer Cannot Dance Alone

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

The process of accommodating an employee with a disability can be a long one that is fraught with possible hurdles along the way. While the employer makes the ultimate decision about what a reasonable accommodation consists of, the union and employee have roles to play, as well. Primary among the employee’s responsibilities is the sharing of relevant medical information with the employer. When communication breaks down and the employer is left without the information it needs to explore possible solutions, arbitrators will take a hard look at the employee’s contribution. If, . . . [more]

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