In a recent Human Rights Tribunal of Ontario ruling, it was found that the Ontario Provincial Police violated the human rights of a large number of migrant workers based on race, colour and place of origin, when it conducted a DNA sweep during a criminal investigation of a sexual assault. The HRTO noted in particular that the OPP sought and collected DNA from all migrant workers, regardless of whether they met the victim’s description or had an alibi, and the OPP failed to adequately ensure that vulnerable workers were able to provide voluntary and informed consent to the DNA . . . [more]

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

A recent decision of the Ontario Labour Relations Board, 2022 CanLII 5411 (ON LRB), could make waves in the construction industry for its redefining the concept of a specialty scaffolding contractor. Departing from the oversimplified notion that a speciality scaffolding contractor does nothing but scaffolding, the Board adopted a contextualized approach by examining the contractor’s devotion of time and resources to scaffolding to determine the matter. . . . [more]

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

Clarity of language is perhaps the most important part of writing a good contract. In the employment world, the slightest uncertainty in a termination provision can and often does lead to costly litigation to determine how much money should change hands. In 2022 ABCA 220 (CanLII), the Court of Appeal of Alberta helped the parties interpret a provision providing for “60 days or more” notice of termination, holding that the ambiguity inherent in it meant that it should be interpreted in the employee’s favour. . . . [more]

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]

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]

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]

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]

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]

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]

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]

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]

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]