Canada’s online legal magazine.

Archive for ‘Substantive Law: Judicial Decisions’

by Comments Off on Use It or Lose It: The Effect of Limitation Periods

Use It or Lose It: The Effect of Limitation Periods

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

A limitation period is a contractual or statutory provision that bars the filing of a lawsuit, grievance or formal complaint, depending on the context. When a party misses a filing deadline, it’s not like missing the bus. The results can be profound and hinge on a determination of whether the limitation period was missed in good faith, as we see in [2023] O.H.R.T.D. No. 68. As it turns out, it takes more than simply being sick or having a disability to justify filing a late claim. . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions
by Comments Off on Employee Denied EI After Willingly Violating COVID Policy

Employee Denied EI After Willingly Violating COVID Policy

Written by Lewis Waring, Paralegal, Editor, First Reference Inc.

In a recent judicial review of the Social Security Tribunal’s decision to deny an employee Employment Insurance following dismissal for cause, it was found that the employee’s knowing violation of the employer’s COVID-19 policy resulted in a finding of misconduct that disqualified him from collecting Employment Insurance benefits. . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions
by Comments Off on Somebody’s Watching Them

Somebody’s Watching Them

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

Before you read any further, you’ll want Rockwell’s “Somebody’s Watching Me” playing in the background. Can you think of something that pits management rights against privacy in the workplace quite like surveillance cameras do? The potential for these unblinking eyes to be abused prompted the union in [2023] A.G.A.A. No. 3 to file a policy grievance unsuccessfully challenging their presence in one workplace. . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions
by Comments Off on Discrimination Claim Falters for Lack of Evidence

Discrimination Claim Falters for Lack of Evidence

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

A claim of discrimination is a serious thing, and the allegation won’t pass muster without any evidence to back it up. If there’s no evidence, a claim cannot succeed. The Saskatchewan Court of Queen’s Bench turfed a claim in these circumstances in 2022 SKQB 188. . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions
by Comments Off on Silence Is Golden in Hypothetical Group Termination

Silence Is Golden in Hypothetical Group Termination

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

Often, cases about the validity of termination provisions in employment contracts focus on whether the contract language sufficiently ousts the common law presumption of reasonable notice. Such provisions commonly refer to, or incorporate by reference, a minimum legislative standard amount of notice that must be given. What those generally familiar with the law might not think twice about is precisely which minimum standard applies. The one applicable to individuals, right? Now, what if the contract is silent about group terminations? Could an ex-employee argue the termination clause was invalid because it . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions
by Comments Off on Employer Wins Damages for Time Theft and Unpaid Debt

Employer Wins Damages for Time Theft and Unpaid Debt

Written by Lewis Waring, Paralegal, LL.B., Articled Clerk, Editor, First Reference Inc.

In a recent British Columbia ruling, an employee who engaged in a pattern of time theft was found to have been rightfully dismissed for cause. As a result of the dismissal being upheld, the employee was forced to repay a debt she owed to the employer due to an advance agreement that funded her home office supplies and her pursuit of professional credentials. . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions
by Comments Off on Fired for Physical Flare Up Following Phone Find

Fired for Physical Flare Up Following Phone Find

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

You’re familiar with the scenario: a momentary physical flare-up over nothing provides the employer with arguable grounds for termination. They’re arguable because there are no hard-and-fast rules that termination results in every case of physical violence. In a legal challenge, arbitrators pay close attention to anything the employee says to take responsibility for his or her actions or to show remorse. In 2022 CanLII 112111 (CA LA), we see how significant the mitigating factor of an apology-or the lack of one-can be. . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions
by Comments Off on Unsupported Retaliation Allegation Goes Nowhere

Unsupported Retaliation Allegation Goes Nowhere

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

Employees have important protections under workplace legislation that encourages them to bring forward complaints of health and safety issues so the employer can ensure the safety of all. If a complainant employee is the victim of perceived retaliation by the employer, they can seek a remedy. The litigation in 2022 BCSC 1558 (CanLII) highlights some of the legal issues that can arise. . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions
by Comments Off on David Slays Goliath in Food Delivery Arbitration Case

David Slays Goliath in Food Delivery Arbitration Case

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

Private delivery people shuttling food orders around town is a common sight in today’s gig economy. Between the lowly driver and the huge multi-national corporation they carry the food for, it’s easy to imagine who holds the real power in this type of working arrangement. In the case decided by the Manitoba Court of King’s Bench in 2022 MBKB 178 (CanLII), the court shifted the balance of power toward the “little guy” by ruling that mandatory acceptance of an arbitration clause was unconscionable and lacked consideration. By rendering the clause . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions
by Comments Off on Employer Pays Full Legal Costs for a Baseless Injunction

Employer Pays Full Legal Costs for a Baseless Injunction

Written by Lewis Waring, Paralegal, LL.B., Articled Clerk, Editor, First Reference Inc.

In a recent Ontario ruling, an employer was forced to pay an extremely high amount in costs after attempting to enforce its non-competition and non-solicitation clauses twice in the middle of the same legal proceedings. The employer had brought two separate motions that both sought to prevent its former employee from working for its competitor. However, the fact that the employee had actually ceased working for its competitor and that the non-competition and non-solicitation clauses in its contracts had actually expired made the employer’s request impossible. The impossibility . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions
by Comments Off on Lawyer-Client Bond Broken: The Unwritten Rule

Lawyer-Client Bond Broken: The Unwritten Rule

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

Faced with a unique set of facts, an Ontario court in 2022 ONSC 5890 (CanLII) let two in-house lawyers off the hook when their former client sued them following the breakdown of their employment relationship. Would-be litigants in situations like the plaintiff’s would do well to remember that things aren’t always as they at first seem. It should almost go without saying: litigants had better have the evidence to prove it if they allege a breach of contractual or fiduciary duties. . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions
by Comments Off on No Failure to Mitigate if No Available Work

No Failure to Mitigate if No Available Work

Written by Lewis Waring, Paralegal, LL.B., Articled Clerk, Editor, First Reference Inc.

In a recent ruling, it was found that an employee was successful at fulfilling his mitigation obligations, even though he was not successful at mitigating his loss. Although failing to look for a job seems like a clear failure to mitigate a loss of employment, this ruling clarified that an employee only fails to mitigate when comparable employment is actually available. If an employee’s job market does not contain any comparable roles, any failure to take reasonable steps to find comparable employment will not be a failure . . . [more]

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

3li_EnFr_Wordmark_W

This project has been made possible in part by the Government of Canada | Ce projet a été rendu possible en partie grâce au gouvernement du Canada