Canada’s online legal magazine.

Archive for ‘Substantive Law’

Bill 7: Targeting the Elders

INTRODUCTION

At the outset of the Covid-19 pandemic, elders living in long-term care homes suffered a major burden. They experienced a disproportionately high number of deaths from the virus. This was not only because they were older, but also because of the conditions existing in the homes, some of which preceded the pandemic, but others of which reflected inadequate pandemic practice. Once again, through Bill 7, More Beds, Better Care Act, 2022, elders are potentially sacrificed in efforts to rescue the Ontario healthcare system. . . . [more]

Posted in: Substantive Law: Legislation

Original and Successor Employers Both Liable for Oppression Remedy After Wrongful Dismissal

In a recent Alberta wrongful dismissal case, the court, using the oppression remedy analysis, ruled that the original and successor corporations and the directors and shareholders were liable to pay the full judgment. . . . [more]

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

Trumped-Up Cause Allegations Prove Costly to Employer

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

When an employment relationship ends, one of the parties usually has a good reason. Sometimes the parties part ways on good terms, but in other cases, just cause is alleged. In cases of the latter type, a solid factual basis is needed. Otherwise, unproven allegations could prove costly to the employer, as was illustrated in a recent wrongful dismissal action, 2020 BCSC 2298 (CanLII), in which the employer saved its grievances concerning the employee until the last minute, and by then it was too late.

Background

The plaintiff was the . . . [more]

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

Limitation Period Extended by Defendant’s Conduct

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

Without limitation periods, potential defendants would be at risk of being sued at any time; a perpetual black cloud would loom overhead. Barring lawsuits after the time limit has passed serves several important policy goals: it encourages people to bring forward and resolve their claims in a timely way, and it gives people a degree of finality. Determining whether a claim is time-barred may seem like an easy task, but a party may do something that causes one to wonder when the time limit began to run. Such was the situation . . . [more]

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

Should Canada Implement a Flat-Rate Reimbursement Model for Surrogacy Arrangements: A Summary From the Text Surrogacy in Canada

In the article “Should Canada Implement a Flat-Rate Reimbursement Model for Surrogacy Arrangements” (Chapter 5 of Surrogacy in Canada, 2018), law professors Vanessa Gruben, Angel Petropanagos, and Angela Cameron discuss reforming the current system. Presently, donors and surrogates are reimbursed for receipted expenses (see regulation SOR/ 2019-193). This is based on the guiding principle of the Assisted Human Reproduction Act that “commercial ends raise health and ethical concerns that justify their prohibition”. In line with this guiding principle, the authors recommend the adoption of a new model, the flat-rate model.

They argue that the flat-fee model is an . . . [more]

Posted in: Justice Issues, Substantive Law

CEO Dismissal Is Not a Wrongful Termination

In a recent Alberta ruling, a Society was found to have wrongfully terminated a management contract with a company when it dismissed the company’s chief executive officer for breach of the management contract, but there was no wrongful dismissal as the CEO was not an employee, but an independent contractor.

Background

The Society operated an annual music festival in Alberta. In order to manage its festival, the Society consistently hired a separate organization to manage the festival. Part of that organization’s management of the festival was providing consultants to serve on the festival’s board of directors. These consultants included all . . . [more]

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

Successor Employer Case Calls for Flexibility in Fixing Notice

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

This article will consider the Court of Appeal for Ontario’s recent decision (2022 ONCA 454) calling for a flexible approach to calculating reasonable notice when an employee is dismissed by a successor employer. For employers, this approach might spell a somewhat longer notice period than they would have otherwise anticipated.

Background

The employee worked for the company from 2011 until 2019, when her employment was terminated without cause. The only event of note during this period happened in 2016 when, as part of the fallout from creditor protection proceedings, . . . [more]

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

Reflections on the Canadian Law of Obligations Conference: The Power and Limits of Private Law

Caitlin Cunningham is a JD candidate at the University of British Columbia Peter A. Allard School of Law and served as a student assistant to Assistant Professors Marcus Moore and Samuel Beswick for the Canadian Law of Obligations conference 2022.

On June 23 and 24, 2022, the Peter A. Allard School of Law hosted the third Canadian Law of Obligations (CLO) conference, held on the grounds of UBC’s Green College. The theme of the conference was The Power and Limits of Private Law. This edition of the conference honoured the accomplishments and career of Dr. Lionel Smith, the Sir . . . [more]

Posted in: Education & Training: CLE/PD, Substantive Law

Concurrent Jurisdiction Upheld in Human Rights Case

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]

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

Employer Haphazard Furlough a Constructive Dismissal

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]

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

Canada Study Permit Litigation – Critical Analysis of Inconsistent Jurisprudence on Financial Requirement

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]

Posted in: Administrative Law, Substantive Law

Classic Rock Song Sums Up Law in Family Status Complaint

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]

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