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

Ontario has recently been a hotbed of decisions considering the validity of termination clauses in employment contracts. At issue in Lamontagne v J.L. Richards & Associates Limited, 2021 ONSC 2133 (CanLII) was whether a termination clause ousted the employee’s entitlement to common law reasonable notice of termination. If it was sufficiently clear, the employer would win. If it was ambiguous, then the employee would have access to the more generous common law entitlement of reasonable notice. Read on to find out how the court decided the issue.

Background

Annick Lamontagne was . . . [more]

Although litigation is frequently characterized as adversarial, some of the realities in the criminal justice system are slightly more nuanced. Crown counsel represent the public’s interest, and not that of a victim or complainant. Obviously the public has an interest on those impacted by a crime, but Crown counsel do not directly represent those parties or those interests.

In 1954, Justice Rand explained this in the Supreme Court of Canada decision, Boucher v. The Queen, 1954 CanLII 3 (SCC), as follows,

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction,

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

Generally, a contract in restraint of trade is where one party agrees to restrict their liberty in the future to freely carry on trade with others who are not parties to the contract. Restrictive covenants can take different forms, depending on their purpose. For example, non-competition and non-solicitation covenants aim to prevent a departing employee from setting up a competing enterprise with their former employer. A non-acceptance clause may purport to restrain someone from accepting business from a client of a former employer, and a confidentiality clause normally aims to prevent . . . [more]

INTRODUCTION

In this post, I propose that the concept of bona fides, or acting in good faith, be applied to the conduct of constitutional actors. It is not unreasonable to expect that constitutional actors act in good faith towards one another. In this sense, I argue, the bona fides principle is a fundamental element of the rule of law that could serve to invalidate government action, depending on various factors which I discuss below, including the relevance of other principles and rules. A judicial conclusion that an actor had not acted in good faith might, in the balance, result . . . [more]

One of the side effects of the pandemic has been considerably higher movement in the employment sector. In addition to what is being termed “the Great Resignation,” employees have increasingly opted to organize and unionize their workplaces.

In early 2021, Statistics Canada noted that the union density rate was 31.3%, an increase from 30.2% in 2019, and the highest it has been for 15 years. Safety concerns, greater stability, and more input into decisions during the pandemic and recovery are all attributed to driving forced behind increased interest in unionization.

While unions play a crucial role in addressing . . . [more]

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

You’re fired!

These are two words no employee wants to hear. If job security goes together with seniority, then probationary employees walk a fine line every day they go to work. Most employers with collective agreements that allow for probationary periods rightly view them as a condition of hire during which they can closely observe the new employee and decide whether the person is a good fit. Many would likely say that the organization can dismiss the probationer for next to no reason at all, provided they don’t treat the person . . . [more]

Isolation in one’s home and glued to an electronic device, it was inevitable that people would be come more activist online. A growing trend has been where public backlash online, also known as cancelling or calling out, is used to block someone from having a platform or career.

The debate around the utility of cancel culture weaves between delicate balances of expression rights and bullying concerns. While the practice started in progressive circles, it has more recently been weaponized by right-wing groups as well.

What people may not have anticipated is that the attempts to “cancel” someone could actually be . . . [more]

Members of the public who are uninitiated with the legal system in Canada are often confused when they encounter administrative law for the first time. The widely-recognized strengths of administrative tribunals, their flexibility and expediency, is often only possible because they discard some elements of formality and rigid procedure.

The relationship between reviewing courts and administrative tribunals is also constantly evolving. The Supreme Court of Canada in National Corn Growers Assn. v. Canada (Import Tribunal) resisted in 1990 an approach where courts would substitute the opinion over that of an administrative tribunal’s interpretation of a legislative provision, preferring greater curial . . . [more]

In Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555, Justice Myers addresses the issue of procedure for starting a motion. In Canadian Thermo, the plaintiffs sued the defendants for defamation. The defendants sought the dismissal of the claim, under the Anti-SLAPP provisions of section 137.1 of the Courts of Justice Act.

The defendants served a notice of motion for a long motion. The notice of motion did not indicate a date for a hearing. This was in contravention of subsection 137.2(3) of the Courts of Justice Act. Subsection 137.2(3) states that for an anti-SLAPP motion, . . . [more]

Examinations for discovery are a regular feature of civil proceedings. Litigators are deeply accustomed to the facilities, court reporters, and transcripts necessary to provide this important procedural step.

One significant feature of these in-person proceedings that everyone misses is the bountiful food offerings that these facilities offer. An hor d’oeuvre or sip from a coffee is often one of the best ways to avoid interrupting, and let something that is non-essential slide.

All of these trimmings are gone in the virtual context, with discoveries continuing throughout the pandemic through virtual conferencing. That doesn’t mean that everyone is comfortable with the . . . [more]

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

Employers are legislatively prohibited from discriminating against their employees based on their sexual orientation any other listed or similar ground of discrimination. When a university discovered that an academic advisor’s profile on a gay male dating app ran afoul of its conflict of interest policy, it fired him. The employee claimed the dismissal was discriminatory and based on his sexual orientation. He submitted a complaint to the British Columbia Human Rights Tribunal whose decision was later reviewed by the British Columbia Supreme Court. Was Conklin v University of British Columbia, . . . [more]

INTRODUCTION

With mandatory vaccination policies (some of which are not exactly mandatory because they provide alternatives), those opposed to vaccines have been claiming religious exemptions. When people are dismissive of these claims, others immediately respond, “But what about Amselem?”, the Supreme Court of Canada decision that seems to allow a highly subjective determination of legitimate religious belief. But what does Amselem actually say and how does it relate to anti-vaccination claims based on section 2(a) of the Canadian Charter of Rights and Freedoms. . . . [more]