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]

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]

Early this year, Justice Little of the Federal Court released the much-awaited decision in Ocran v. Canada (Citizenship and Immigration), 2022 FC 175 (CanLII). I am not aware of any study permit judicial review litigation that attracted the attention of Canadian immigration lawyers as much as Ocran. The notoriety of this judicial review litigation was based on the fact that it was a test case that the Department of Immigration, Refugee and Citizenship Canada (IRCC) sought to use to obtain judicial approval for its use of the controversial Chinook software in processing of immigration applications. That approval . . . [more]

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]

On 13 June 2022 the UK government introduced a Bill that will authorize it to unilaterally re-write key terms of the Northern Ireland Protocol (“Protocol“) which is part of the Withdrawal Agreement it made with the EU on Brexit, less than 3 years ago.

Although trade intricacies between Northern Ireland and the rest of Britain may not be high on our priorities here in Canada, the fact that this Bill has been introduced at all should be of concern to those who believe in commitment to international law.

Let me explain why I say this.

What the Protocol . . . [more]

In a recent case, the employer dismissed the employee when she did not return to the workplace following an allegedly unauthorized medical absence. However, the employer had improperly denied the fact that the employer’s medical absence was tied to her suffering from an adjustment disorder with associated anxiety and depression, a disability that had been diagnosed by a medical professional. As a result, the labour arbitrator in the case found that the employer had unjustly dismissed the employee by discriminating against her disability. The arbitrator ordered the employee to be reinstated to her position, and to be compensated for the . . . [more]

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

Sick leave abuse is notoriously hard to catch. As a form of workplace fraud, one such incident can rupture the trust at the centre of even a long-standing employment relationship, prompting the employer to emphasize deterrence over rehabilitation when it imposes discipline. An Ontario arbitrator recently considered the plight of an employee who wrongfully entered a pandemic leave program that was designed to help facilitate isolating at home when required. When his ulterior motives came to light, even his long period of service could not tip the scales in favour of . . . [more]

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]

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]

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]

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]

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]