In Roe v British Columbia Ferry Services Ltd, a British Columbia trial judge made too many assumptions and not enough findings of fact when he decided that an employee’s dishonest conduct was “trifling,” “relatively minor” and not sufficient to justify termination. The Court of Appeal ordered a new trial for the employee after finding that the trial judge made a “palpable and overriding error” due to his failure to undertake an objective contextual analysis, as required for cases of alleged just cause.

Ontario litigators breathed a sigh of relief last Thursday when the Court of Appeal overturned a trial judge’s ruling that it was improper for a lawyer to review and discuss draft expert reports with an expert witness, and that such discussions must be documented and disclosed to an opposing party.

During the course of cross examination of an expert at the trial of a medical malpractice claim, it emerged that an expert had reviewed his draft report with defence counsel in a 90 minute phone call, and made changes to the draft. The judge took up the issue and directed . . . [more]

We are all looking for meaning in life.

For some of us that means we want to make an impact on the world. For others, it means the mass accumulation of wealth. And for some, like the Justices of the Supreme Court of Canada, it means rendering every textbook published on labour law prior to 2015 entirely obsolete.

Hot on the heels of their recent decision Mounted Police Association of Ontario v. Canada (Attorney General), the Court released a decision on Friday in Saskatchewan Federation of Labour v. Saskatchewan. The majority overturned the Saskatchewan Court of Appeal decision . . . [more]

On December 4, 2014, an Alberta labour arbitrator decided that an employer owed a grievor $5,000 in damages for breach of privacy due to the disclosure of the employee's presumed mental illness during the formal review of a workplace conflict.

From the Privacy Commissioner of Canada: “On January 28, Canada, along with many countries around the world, will celebrate Data Privacy Day. Recognized by privacy professionals, corporations, government officials, academics and students around the world, Data Privacy Day highlights the impact that technology is having on our privacy rights and underlines the importance of valuing and protecting personal information.”

Privacy becomes increasingly challenging with new tech such as big data, the internet of things, wearable computers, drones, and government agencies recording massive amounts of data in the name of security. Sober thought needs to go into balancing the . . . [more]

What you say online stays online and could get you fired. It is becoming increasingly clear in Canada that offensive or disparaging online statements can merit termination for cause, particularly where the conduct has a negative impact on the employer. Surprisingly, the same is not necessarily true in the United States (see my post here for more details). However, the recent wave of employer-supportive decisions favouring terminations for cause may have given some companies a false sense of security. The recent decision of Kim v. International Triathlon Union, 2014 BCSC 2151 is a good illustration of that point and how . . . [more]

Some people – notably information security expert Bruce Schneier – believe that if IT suppliers, notably software providers, were civilly liable for the harm caused by buggy products, they would have an incentive to be more careful. The market currently encourages the industry to put products on sale as early as possible, and with the most hype possible, whether testing has been adequate or security threats thoroughly checked.

Here is an overview of Schneier’s position. A classic statement of the issues with software is here.

Would they be more careful – and would we then all be better . . . [more]

In Flatt v. Treasury Board (Department of Industry), the Public Service Labour Relations and Employment Board has rejected a public servant’s complaint that Industry Canada discriminated against her on the basis of family status when it refused to let her work from home full-time while breastfeeding.

Late last week fellow Slaw contributor John Gregory brought up some idiosyncrasies in his post about how web-sourced versions of laws stack up against more official looking books with laws printed in them. You know, the ones that only the law library has?

This brings up a pet peeve of mine—something that Ontario has solved, but which BC practitioners are technically still exposed to. The fact is that if you’re not producing photocopies of the official books with BC laws in them, you’re technically not doing your job for the court in BC. That’s ridiculous, right? Well, yeah. It is. . . . [more]

Sometimes judges get it wrong. Even when they sit on the highest court of the land.

The nature of the common law is that decisions that are poorly written (a generous excuse for decisions which are poorly decided) still have binding authority, especially when made by the Supreme Court of Canada.

The interpretation of freedom of association under s. 2(d) of the Charter has undergone considerable change over the years. Courts generally applied a restrictive approach towards this right, until the 2007 decision in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia (“B.C. Health“), . . . [more]

Governments increasingly are putting official documents online without any paper ‘original’ or equivalent. Does that present challenges in practice for proving those documents?

What is your experience producing in court or generally under the evidence statutes official government documents that appear only online?

There is good statutory support for producing documents ‘printed’ by government, sometimes by class of document but sometimes as broad as ‘other public document’.

Will courts accept a printout of a web page (or, I suppose, a live in-court online presentation of a web page) showing a government URL as being ‘published by the Queen’s Printer’, at . . . [more]

Can you / should you / do you rely on the product of search engines as evidence in civil or criminal matters? Do you base legal advice on what you find on search engines, or on the use made of them?

A recent article in Canadian Lawyer canvasses some of the possibilities.

The Ontario Superior Court held that one could not establish facts by showing how often certain terms were used in Google searches. That was for the purpose of the certification of a class action.

However, showing previous use or actual use of trade marks can be done . . . [more]