The Official Guide to Being a Badass

The following is a reprint of an article that appears in the Chris McCombs blog.

. . . [T]his . . . is . . . about going through life as a true badass . . . . It’s About Being an Agent of Awesome on a Grand Adventure . . . and having a helluva good time along the way. Enjoy . . . Read More...

The Churchill School of Adulthood: A Prerequisite Class on Becoming the Author of Your Own Life

The following is a reprint of an article that appears in the Art of Manliness web site.

We kicked off the Winston Churchill School of Adulthood with a general discussion of the way in which the master key in growing up well is learning how to combine the seemingly contradictory energies/ideas/interests of both youth and maturity. A swirl of different currents can create a narrative of adulthood that’s interesting, fulfilling, and even a bit electric.

But before we delve into these various currents, let’s begin by exploring the power of being able to create that narrative yourself in the first place. Embracing this power is the prerequisite to everything else. The great gift of life is our ability to make of it whatever we desire – to author our own stories. It is a power and privilege that expands as we mature, become more independent, and have a fuller field of options from which to choose. In growing up lies the potential to construct our own reality – a reality that can be much different than the set of cards we were born with. Every hero’s journey is a tale of the intersection of fate and choice; while we cannot control the former, we can take full advantage of, and heartily relish, the latter.

Beginning here will also let us sketch a brief biography of Mr. Churchill’s life, which will help provide context for the lessons to come. So let us now turn to examining how he exemplified the human potential for being the authors of our own lives.

Restrictive Covenant A Factor In Lengthening Notice Period

term notice
A recent case out of British Columbia signals restrictive covenants may be a factor supporting extensions in common law notice periods for terminated employees.

When an employee is terminated without notice or cause, they will be entitled to either what is specified in their employment contract, if applicable, or notice (or pay in lieu of notice) at common law. Traditionally, following the decision of Bardal v. Globe and Mail, courts have looked to a number of factors when determining the appropriate notice period at common law, including the nature of employment, length of service, age and availability of comparable employment.

Ostrow v. Abacus Management Corporation Mergers and Acquisitions, the court also considered the non-competition clause in the employee's contract of employment when determining the appropriate notice period. Read More...

Notice Of Termination Pending Sale Of Business Inadequate Says BC Court Of Appeal

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When does notice of termination actually occur when there is a sale of business? That was the question considered recently by the British Columbia Court of Appeal in the recent case of Kerfoot v Weyerhaeuser Company Limited, 2013 BCCA 330 (CanLII). The answer could have significant implications for potential liability associated with a sale of business (particularly in the context of an asset sale), even when employees are offered new employment. Read More...

Wrongfuldismissal: Social Media In The Spotlight

We now have what appears to be the first wrongful dismissal [decision] dealing with a termination for Twitter and Facebook comments. As in the grievance arbitration, there is an important takeaway for employers in the employee's successful wrongful dismissal claim. Here's the key point:

Thus, even had I found that the social media posts amounted to an accumulation of misconduct and that the October 5th blog was the tipping point supporting the plaintiff's termination for cause, I find that ITU cannot rely upon cumulative cause as a ground for the plaintiff's termination because ITU did not give the plaintiff an 'express and clear' warning about her performance relating to the social media posts, and a reasonable opportunity to improve her performance after warning her. I should also say in this regard, that counsel for ITU conceded that ITU should not be able to rely upon the proof of the truth of the content of Mr. Beeche's letter in support of its position on cumulative cause, as he was not called to testify as a witness at the trial. In fact, the plaintiff's alleged conduct complained about in the letter was not even brought to her attention until after her termination.

The Trump Effect, and How It Spreads

the donald
The following is a reprint of an article by by the Editorial Board of The New York Times.

Go ahead, deplore Donald Trump. Despise his message. Reject his appeals to exclusion and hatred. But do not make the mistake of treating him as a solitary phenomenon, a singular celebrity narcissist who has somehow, all alone, brought his party and its politics to the brink of fascism. Read More...

VTech Security Debacle Reveals Kids’ Names, Birthdates, Parents, and More

The following is a reprint of an article by my daughter, Jillian Koskie. It appears on the With[in]Security blog.

Smart, Internet-connected toys have great potential — but also great risk, especially when they connect information-rich parental accounts with detailed data about children. What that risk actually means moved from theory to reality when VTech confirmed it experienced a data breach earlier this month that exposed its Learning Lodge customer database and Kid Connect servers.

Why You Shouldn’t Treat Your Kids Equally

The following is a reprint of an article by Brett & Kate McKay that appears in the Art of Manliness web site.

It’s Christmas time once again. In a few short weeks, kids will be joyously running out to the tree to see what Santa has left them…before proceeding to bicker and whine that little Jimmy got more presents than they did.

It’s an issue as old as time, and one that presents itself outside of just the holidays: one of your children feels that you favour his or her sibling more than them. Oftentimes these accusations are simply based on a child’s erroneous or incomplete perceptions, but sometimes a parent genuinely does click with one kid more than another.

Whether or not the favouritism actually exists, parents often feel bad their child has formed such a perception and try to remedy it by taking proactive measures to treat all their kids equally. But according to Alex Jensen, professor at BYU’s College of Family Life, such an approach can end up doing more harm than good. To find out why, I talked with Jensen about why you should aim to treat your kids fairly rather than equally.

50 Gift Ideas for the Women in Your Life

The following is a reprint of an article that appears in the Art of Manliness web site.

Ever since we started putting out our gift guides for men way back in 2008, you all have been requesting that we offer a similar guide, but with gift suggestions for ladies. “I don’t have much trouble knowing what I’d like for Christmas,” you told us, “but I have a really hard time knowing what to get for the women in my life.” We hear you. It can indeed be difficult to come up with unique and classic gifts that will really delight and warm the hearts of the lovely ladies out there.

But this year we’ve got your back. The AoM team not only put our heads together to come up with some great gift ideas for women, we also reached out to a bunch of lady bloggers to get their sure-to-be home run suggestions. No matter your gal’s personality — girly, sporty, outdoorsy, stylish, or all of the above — there’s something on the list she’ll love. And you’ll love the fact that there are ideas for every budget.

Frightened, Ignorant and Cowardly is No Way to Go Through Life, Son

The following is a reprint of an article by John Scalzi.

The last few days are a reminder that a large number of Americans are in fact shrieking, bigoted cowards, and that's a sad thing, indeed. Read More...

Supreme Court of Canada rules Alberta not constitutionally obligated to enact laws in French

"C and B were charged with traffic offences under the Alberta Traffic Safety Act and the Use of Highway and Rules of the Road Regulation, which were enacted in English only. Both claimed that the law and regulation were unconstitutional because they were not enacted in French, and further that the Alberta Languages Act was inoperative to the extent that it abrogates what they claimed was a constitutional obligation on the part of Alberta to enact, print and publish its laws and regulations in both French and English.

In 1870, the vast western territories under the control of the Hudson’s Bay Company became part of Canada. The terms of this Canadian expansion were largely the result of negotiations and agreement between Canadian officials and representatives of the territories. The result was that the new province of Manitoba was added by the Manitoba Act, 1870. Further, the remainder of what had been the North‑Western Territory and Rupert’s Land — a vast land mass including most of what is now Alberta, Saskatchewan, Nunavut, the Yukon, the Northwest Territories, and parts of Ontario and Quebec — was annexed as a new Canadian territory under federal administration by the 1870 Rupert’s Land and North‑Western Territory Order (the “1870 Order”). The Manitoba Act, 1870 expressly provided for legislative bilingualism. The 1870 Order did not.

C and B contend, however, that legislative bilingualism was in fact guaranteed for both areas and therefore extends to the modern province of Alberta, which was created out of the new territory. Their argument is intricate and has changed over time, but rests on one key proposition: an assurance given by Parliament in 1867 (the “1867 Address”) that it would respect the “legal rights of any corporation, company, or individual” in the western territories must be understood as a promise of legislative bilingualism. And that promise is an entrenched constitutional right because the 1867 Address became a schedule to the 1870 Order, which is part of the Constitution of Canada by virtue of s. 52(2)(b) and the Schedule to the Constitution Act, 1982 . Their challenge was successful at trial, but was rejected by the summary conviction appeal court and by the Court of Appeal."

The S.C.C. (6:3) dismissed the appeals.

I Am Fun

This "commentary" appears on the Onion web site. They have some fun publishing something as though—but clearly not—written by Hillary Clinton. I suspect they think they have captured her essence. Read More...

Executive’s Loss Of Share Unit Rights On Resignation Enforceable

In an interesting executive employment decision, the Ontario Superior Court of Justice recently upheld a contractual provision that resulted in forfeiture of restricted share units after resignation in Levinsky v The Toronto-Dominion Bank. Read More...

Egg Films Epilogue – 5 Key Implications Of NS Union Certification Based On "Industry" Dependence In Egg Films Inc. v. Nova Scotia (Labour Board)

Recently, the NS Court of Appeal confirmed that a union can be certified as the bargaining agent of employees based merely on their dependence on the employer's "industry"– even when those "employees" may have worked for the employer for a single day.

The Supreme Court of Canada's (SCC) September 2014 refusal to hear the employer's appeal of this decision means the certification stands, and Egg Films Inc. – and all NS employers – must live with its significant impact.

Here's the story – and 5 key implications of the certification decision to NS employers.

The Winston Churchill School of Adulthood Is Now in Session

The following is a reprint of an article written by Brett & Kate McKay. It appears in the Art of Manliness web site.

. . . [I]t’s especially hard to become an adult in the modern world, and . . . despite this difficulty, the world still needs grown-ups.

And yet, . . . even when we know how necessary adults are to a flourishing, full-functioning society, it can still be hard to want to grow up ourselves. In popular culture, youth is associated with freedom, fun, and creativity, while grown-ups are seen as dull, constrained, and perpetually stressed out. Adults are perceived as lacking in imagination and zest for life, and seem to be ground down by their responsibilities. So who would want to join their ranks?

One of the most unfortunate tendencies of an adolescent culture is the impulse to fit everything into black and white narratives. Narratives themselves aren’t the issue; in fact, psychologists say that being able to view your life as a story is a key component to mental health and happiness. And as we’ll come to see, being able to imagine yourself as an actor in that story – a kind of hero’s journey – is one of the most important ways of achieving an awesome adulthood. No, it’s not narratives per se that are problematic, but ones that are overly simplistic and one-dimensional.

When you’re young, you feel a burning desire to fit yourself neatly into a clear-cut conception of “who I am.” This tendency may be even stronger in our modern world, where we can carefully curate an image of ourselves on social media of how we want others to view us. We’re a hippie, or a hippie Christian. We’re an adventurous world traveler, or a bookish homebody. We’re a conservative, or someone who hates conservatives. Yet an identity that can be built with carefully chosen pictures, and selected from a platter of dropdown menus, is quite limiting. A clearly delineated identity can feel very secure, but it keeps us moving along a single track of thought and experience.

Part of maturity is being able to comfortably sit with two seemingly contradictory ideas and energies. “I can be this and that.” “I can doubt that, but believe this.” “I can prioritize this, without giving up my love for that.” Being able to comfortably operate in different dimensions has a two-fold benefit. First, it provides a satisfying steadiness that allows you to make real progress with your life. When you’re young, you often go all-in on one phase, and then swing over whole hog into another when something in your life changes. If someone challenges how you’re living at the peak of one of these phases, you feel incredibly angry. Or, if you come to feel one of your long-held beliefs isn’t true, you tend to freak out, and feel angry and betrayed, launching a period where you don’t believe anything anymore, and define yourself only in opposition to your old creed.

As you mature, you become able to examine new ideas without feeling anxious or threatened by them; you gain the ability to calmly sift through your changing opinions and examine things more objectively. You have a core foundation of principles, but feel the freedom to play with other lines of thought. In doing so, sometimes you come to feel that there are expectations and “shoulds” of adulthood that just seem silly, and you reject them. And sometimes, you realize that something you like or believe isn’t completely rational, but you decide you don’t care and keep it in your life anyway, simply because you enjoy it so much.

A comfort with contradictions may seem like a cop-out – feigned indifference in the guise of nuanced enlightenment. And it can be if it only amounts to a “meh” attitude of “it’s all the same to me” – in which there is no collision of various energies in one’s life, because there are no energies, period. Certainly many an adult lives this kind of gray existence where not much thought is given to the meaning and purpose of life, outside of fulfilling one’s basic necessities each day.

Yet to actually hold a whole spectrum of energies is something far different. In such a case the effect is something like a particle collider – in which the contact between your different beliefs/ideas/interests creates access to new knowledge and planes of existence that wouldn’t have been possible otherwise.

Think about it – what are the best, most exciting, most engrossing movies/books/TV shows you’ve consumed? Those with simplistic plots? Or those with rich narratives filled with complex characters, conflict, and some mystery?

When we’re kids, children’s books and films capture our attention. But as adults, we’re ready to grapple with more. As it goes in media, so it goes in our lives. The false narrative in which “being young is awesome/being an adult sucks” works well when you’re actually young, but as you mature in age, it reaps increasingly diminished returns. To grow up well, you need a new mindset, one with an expanded palette of possibilities.

The greatest aspect of adulthood is one’s ability to imagine whatever kind of life you’d like for yourself, and to have the power, freedom, and independence to turn that vision into a reality. You can make whatever you will of it, without interference from parents, teachers, or other authority figures.

In this act of creation, you want to be able to draw not only from the toolbox of childlike inclinations, but those of adulthood as well. The task of growing up well is learning to keep the best energies of youth, while combining them with the different privileges and pleasures of maturity. To settle down, without completely settling in.

This may all seem hard to grasp in the abstract; it’s much easier to understand when seen lived out in the life of an individual. And nobody embodied the possibility of combining a youthful love of adventure, imagination, and excitement with the adult qualities of soberness, duty, and responsibility more than Winston Churchill. Thus, over the course of the next several weeks, we will be conducting a case study on growing up well, using the British Bulldog as our guide.

When Do Reduced Responsibilities Constitute Constructive Dismissal?

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Many employers now have job descriptions for their employees, whether they are in the initial offer letter (for more junior employees) or in a detailed employment agreement (usually reserved for more senior and highly paid employees). Some employers just use titles to denote responsibilities. In between there are employers whose employees, through initiative or necessity, assume duties that had previously been performed by other employees.

Most employers appreciate an employee who goes above and beyond — someone who does more than the minimum required by the job description.

But what happens when an employee has responsibilities taken away, whether they were initially assigned or assumed over time?

At what point does a reduction in responsibilities amount to a constructive dismissal?

Putting Out A Fire: Inappropriate Tweets Result In Unpaid Suspension For Firefighter

In what we believe to be a first in Canada, a unionized employee has been disciplined for inappropriate twitter comments. The employer's decision to discharge the employee was set aside in favour of a three-day unpaid suspension. Arbitrator Gail Misra noted at paragraph 216 in City of Toronto and Toronto Professional Firefighters Association, Loc. 3888 2014 CanLII 62879:

In considering what the appropriate penalty should be, I have considered that at the time he made the 'swat in the back of the head' comment, the Grievor had identified himself as a Toronto firefighter. As well, the Grievor was not completely candid with the Employer about when he had removed the reference to being a Toronto firefighter from his Twitter profile. Honesty during an employer's investigation process is important as it may later be a mitigating factor. I have also considered the Grievor's lack of understanding that his tweet about swatting a girl on the back of her head to reset her brain was in fact inappropriate, insulting to women, and offensive because it appears to encourage the physical abuse of a female. In all the circumstances of this case I substitute the termination with a three day unpaid suspension.

The full decision in this case is 45 pages long (218 paragraphs). We recommend reading it for the full picture of the matter by clicking on the link above however, the following provides our summary of key aspects of the decision.

Terminating Fixed-Term Contracts On Your Terms

emp agr
The Court of Appeal of Alberta recently upheld a finding of constructive dismissal of an employee, who although paid to the end of his one year fixed-term contract, was not allowed to work during the final month of the contract. Read More...

The normalization of gun massacres in the United States

The following article appeared in The Economist on June 18, 2015. I was referred to it by John Gruber's Daring Fireball. Read More...

After-Acquired Cause For Termination

A salesman was fired because of his poor work performance. He claims, however, that he was a highly skilled salesman and challenges his dismissal by filing a complaint for unjust dismissal (An Act Respecting Labour Standards, Quebec). A few weeks before the hearing, the employer learns that the employee had committed a fraud by illegally appropriating the company's money while employed with the company. Such breach would have no doubt justified his dismissal had the employer known about it in due time. Can the employer now invoke this new ground in order to demonstrate a just and sufficient cause for dismissal?

A recent case in British Columbia (Van den Boogaard v. Vancouver Pile, 2014 BCCA 168) sheds interesting light on the possibility for an employer to invoke grounds for dismissal which he is unaware of at the time of the employee's termination of employment. We review this recent case since its practical implications may apply, not only in common law provinces, but also in Quebec.

Reviving Blue Collar Work: 5 Benefits of Working in the Skilled Trades

hard hat
The following is a reprint of an article written by Jeremy Anderberg. It appears in the Art of Manliness web site.

In the 90s and early 00s, everything was about the business world. Wall Street was going gangbusters, this new fangled thing called the internet was taking off, and dream jobs were those in which you sat in an office with a computer and made millions. Those jobs were not terribly difficult to come by. Today’s youth have those same notions of where the good jobs are, but nowhere near the same success in finding them. While the job market is improving from the economy’s nosedive six years ago, it’s still not what it was pre-recession, especially for new college graduates, for whom the unemployment rate is at 8.5%, versus 5.8% for the workforce as a whole. It’s time young people looked outside the white collar box when it comes to landing a steady, good paying job.

My aim with this article is to convince you that blue collar jobs are in fact what some young men ought to aspire to, just like they aspire to be a lawyer or banker. I’m not trying to convince you that blue collar jobs are better (though in some cases they will be, just as in some cases white collar jobs will be better), but that they are simply on par with office jobs by nearly every measurable factor in terms of what makes a career a “good” one. That’s the stereotype that most needs breaking — that blue collar careers are beneath white collar ones and less desirable. The simple reality is that they aren’t, and here are 5 good reasons why:

Actions Speak Louder Than Words: Labour Board Holds That Employers Must Demonstrate By Conduct That They Do Not Condone Employee Misconduct

Generally, the Ontario Employment Standards Act ("ESA") requires employers to provide employees with notice of termination or termination pay in lieu of notice. However, a dismissed employee is disentitled to these minimum notice requirements if the employer can prove, on a balance of probabilities, that the employee is guilty of wilful misconduct that is not trivial and was not condoned by the employer.

While employers often focus on the severity of the employee's misconduct or on whether the employee possessed the requisite intent, Shaker v Leon's Furniture Limited ("Leons") and Cancore Building Services Ltd. v William Merlos & Director of Employment Standards ("Cancore"), two recent decisions of the Ontario Labour Relations Board ("OLRB"), make clear that in order to successfully rely on the disentitlement provision in the ESA, an employer must have cogent evidence that it did not condone the employee's wilful misconduct.

"Common Employer" Doctrine Reaffirmed By Ontario Court

Employers, People, Jobs
In King v 1416088 Ontario Ltd., 2014 ONSC 1445 the common law doctrine for "common employer" was reaffirmed by the Ontario Superior Court of Justice. It was held that a number of related corporate defendants were jointly and severally liable to the plaintiff for reasonable notice of termination and pension benefits, even though the plaintiff had not actually been employed by several defendants. Read More...

Help for the Shy Guy: The Complete Guide to Overcoming Your Shyness

The following is a reprint of an article written by Brett & Kate McKay. It appears in the Art of Manliness web site.

. . . [W]e’ve been exploring the subject of shyness. . . . [W]e talked about the nature of shyness and its symptoms. . . . [W]e outlined the faulty thinking that leads to self-consciousness and anxiety, which in turn fuels shy feelings and the desire to avoid socializing.

Today we’re going to take the points we’ve made so far, and connect them with action steps grounded in cognitive behavioural therapy. Keep in mind that it took years for you to develop your faulty thinking about socializing, so it’s going to take awhile to transform that habitual, familiar mindset. Don’t expect overnight success. As you implement these tips into your life, slowly but surely you’ll find yourself becoming less and less shy.

Lessons From The Jian Ghomeshi Case: ‘There Is Nowhere To Hide’

Canadians' heads have gyrated to almost exorcist lengths by the quickly changing fortunes of Jian Ghomeshi. But what lessons can be learned? Read More...

Ghomeshi-gate: A Harassment Policy May Not Be Enough

On October 26, 2014, Jian Ghomeshi was fired from his position as a radio host with the CBC. The CBC alleges that, based on available evidence, it determined that Mr. Ghomeshi's conduct was a fundamental breach of the CBC's standard of acceptable conduct for an employee. Mr. Ghomeshi is being accused of sexual and physical assault. Mr. Ghomeshi has since brought an action against the CBC claiming damages for breach of confidence, defamation, punitive, aggravated, and exemplary damages. The Toronto Star reported:

The woman said she complained about Ghomeshi's behaviour to her union representative, who took the complaint to a Q producer. As the woman recalls, the producer asked her "what she could do to make this a less toxic workplace for herself". No further action was taken by the CBC, and the woman left the broadcaster shortly thereafter.

Both the employee and the employer have taken criticism. The employer likely had a workplace harassment and violence policy, but the existence of a policy has not stopped or been accepted as a full answer to criticism in the press. So what went wrong?

While we may never know what went wrong in this case, the answer in some cases is that employers can fail to adequately consider the feelings of the employee. The purpose behind Bill 168 on workplace harassment and violence is to create a better work environment. What a "better work environment" means comes from the employees themselves. To meet the purpose behind the law, an employer's policy should give employees an effective voice. The employer needs a way to obtain information about the employee's views or feelings and act upon it.

Help for the Shy Guy: Identify the Faulty Thinking That Leads to Your Social Awkwardness

The following is a reprint of an article written by Brett & Kate McKay. It appears in the Art of Manliness web site.

Framing our social interactions with faulty beliefs contributes to shy feelings and behaviors in two ways. First, faulty thinking makes social encounters seem more stressful and threatening than they actually are. So much so, that the shy individual will feel a sense of dread in simply contemplating these interactions, and will avoid socializing in order to prevent imaginary harms from befalling them. Second, the anxiety created by negative, misguided cognition will often trigger acute self-consciousness during social encounters. This self-consciousness, as we will see, perpetuates a cycle of shy feelings and behavior that prevents people from successfully and comfortably socializing with others.

What are the common faulty beliefs, errant assumptions, and negative cognitive biases that sap our confidence and torpedo our social interactions? Let’s now take a look at the different ways a self-sabotaging mindset manifests itself before, during, and after social interactions.

Investigations In The Workplace

Workplace investigations are inevitable for most organizations and employers face significant pressure to conduct them properly. A flawed investigation, besides compromising the information a decision-maker will need, invites a range of risks. From a legal perspective, the courts scrutinize the conduct of an investigation; where an employer has improperly disciplined a worker on unsubstantiated grounds, a finding of wrongful dismissal may follow. Further, as a number of recent cases demonstrate, if a court finds that a poorly conducted investigation contributed to the wrongful dismissal, it may hand down additional sanction in the form of aggravated damages.

What are the characteristics of a proper investigation? The answer depends on the industry, interests, and composition of a company, but what follows are some of the general guidelines all employers should adhere to.

Reviving Blue Collar Work: 4 Myths About the Skilled Trades

hard hat
The following is a reprint of an article written by Jeremy Anderberg. It appears in the Art of Manliness web site

For better or for worse, what we do for a living often defines us. It’s one of the first questions we ask people when we meet them for the first time. It’s where we will end up spending 90,000 hours of our life, over the course of 40-some years. Unfortunately, most people count themselves as unhappy with their work (by two to one worldwide!). Pop culture endlessly makes fun of the drone-like office employee, and yet that’s where most of us are.

Is there a better way? Are there careers that would engage us, provide for us, and make us happier? The answer is a resounding yes, but with an important caveat: young men should expand their search for such a career beyond the white collar gigs that are pitched to most of us from our first day of secondary ed. For modern high school students, the default path is graduating from high school, going on to a four-year college, and then finding work in an office (in fact, there are nearly twice as many business degrees handed out as any other single degree). But college simply isn’t for everyone. And neither is a lifetime of sitting at a desk. Luckily, there’s a world of satisfying, good paying jobs beyond the cubicle wall.

Today we will begin a 3-part series encouraging young men (or older men looking for a career change) to consider learning a trade. In this first article, I’ll point out four of the common myths and stereotypes surrounding the trades. In the second article, I’ll get into the benefits of being in the trades (of which there are many). After that, we’ll get into the nitty-gritty about how to find careers in skilled labor. Then once the series is done, we’ll do a bunch of So You Want My Job interviews with skilled laborers in order to get a personal, inside look at what it’s really like to work as a tradesman.

Let’s get started by exploring the myths that have made the path of blue collar work something most young men don’t even contemplate taking.

Rejected Sexual Advance At Work: Cause For Retaliation? It’s No, Nay, Never!

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The respondent does not dispute the allegation that the actions complained of above are causally connected to the event of February 28, 2011, during which the applicant rejected the respondent's owner's sexual advance. I find and the evidence clearly establishes that but for the rejection on ... the subsequent events would never have occurred—Horner and Peelle Company Ltd. 2014 HRTO 112, para. 185


Eat, Drink (A Little), And Be Merry

We are gearing up for holiday party season, with numerous parties and events meant to boost employee morale and give everyone an opportunity to socialize and celebrate the holidays. Everyone has a story about that time someone did something inappropriate at a work holiday party and, in some cases, look forward to the event in the hopes that someone does engage in improprieties. Besides resulting in a "career limiting move," these incidents greatly increase the risk of liability for an employer who hosted the event.

It's easy for everyone to forget that the law considers holiday parties to be "work-related" and to take place in the "workplace," even if the event is held offsite at a restaurant, bar, house, or other venue. It is not uncommon for harassment claims to arise in the New Year following the actions of an employee who had too much to drink or simply let him or herself forget that they are among colleagues and not out with friends on the weekend.

When planning your holiday function, it's crucial to remember that the employer: a) is liable for the actions of its employees; and b) has a legal obligation to ensure a safe and healthful workplace, as well as a workplace free from harassment. You must keep these obligations in mind when planning your events. Failure to do so can result in very costly legal claims and reputational damage.

To that end, we provide some tips and considerations for your holiday planning:

Termination Issues Checklist

The dismissal of an employee is never an easy thing even at the best of times. It is always best to have some comfort that you have reviewed and considered all of the issues before you undertake an employee termination. Below is a checklist which can provide a good starting point to ensure that relevant matters are considered and to assist generally with the process of an employee termination. The checklist can of course be modified and expanded upon for the employer's particular circumstances. Read More...

Strike One, You’re Out! Ontario Arbitrator Rules Against Social Media Bully

An arbitrator in Ontario recently dealt with the termination of a crane operator. He had been fired by the company for posts that he made on his Facebook page concerning a fellow employee. (United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc, 2014 CanLII 26445) Read More...

Employer Failed to Trigger Employee's Duty to Mitigate - Court of Appeal

”Change or die" has become a truism in business today. Employers must be able to change their organizations to meet the demand of the ever changing business climate to survive. However, the law can place significant hurdles in the way of employers who try to change the terms of employees' employment.

An example of such a hurdle can be found in a recent decision of the Ontario Court of Appeal. The Court upheld a significant award of damages for constructive dismissal because the employer did not offer to continue to employee the employee after it made a change to the terms of employment. The Court made clear that employers must actually make an offer of continued employment after the employee refuses to accept a change in the job.

Amendments To The Canada Labour Code Respecting Occupational Health And Safety

hard hat
On December 12, 2013 Bill C-4 "Economic Action Plan 2013 Act No. 2" received royal assent from the Parliament of Canada. The very lengthy Bill, also known as the federal government's omnibus budget legislation, focuses on economics but also revises key federal labour laws.

Amendments to the Canada Labour Code came into effect on October 31, 2014 and are reviewed below.

Alberta Human Rights Tribunal Upholds Employer's Release In Alleged Discrimination Case

In Marquardt v Strathcona County, 2014 AHRC 3, the Alberta Human Rights Commission ("AHRC" or "Tribunal") considered the validity and enforceability of an employment release that was signed by a departing employee.

Marie Marquardt was employed as a bus driver prior to being involved in two motor vehicle accidents in 2011. Following these accidents, Ms. Marquardt took time off work to recover. She was deemed fit to resume work as of June 28, 2011 and returned to work on July 4. On July 11, she left her employment again for medical reasons. She was deemed fit to return to work by August 1, 2011 and returned to work on August 22. Eventually, Ms. Marquardt's employer decided to terminate her employment and presented her with a termination letter, severance payment, and a release. Ms. Marquardt accepted the severance and signed the release. Subsequently, in September of 2012, Ms. Marquardt filed a human rights complaint alleging that she had been discriminated against on the basis of a mental disability.

The case centred around the release and two issues: whether the release was valid and enforceable, and whether Ms. Marquardt had presented evidence which could successfully challenge the validity and enforceability of the release.

Arbitrator rules grievor has no blanket right to claim anonymity

In October 2013, an arbitrator rejected a union argument that publication of individuals' names in an arbitral award was possible only with their consent. In Sunrise Poultry Processors Ltd. v. United Food & Commercial Workers, Local 1518, 2013 CanLII 70673, the arbitrator held that disclosure was favoured as a general rule and that no justification had been provided to depart from that general rule on the facts before him. The grievor's offence was a disciplinary one and he had provided no specific circumstances to distinguish himself from any other person in a similar situation. The arbitrator held that a blanket approach to the issue of party anonymity was an inappropriate framework for balancing the interests of privacy with the open court principle in the context of labour arbitration proceedings.

In May 2014, the Labour Relations Board affirmed the arbitration decision in
Sunrise Poultry Processors Ltd v United Food and Commercial Workers International Union, Local 1518, 2014 CanLII 27506. The Board found that the arbitrator's decision was consistent both with the requirements of the BC Personal Information Protection Act and with sound labour relations policy. It agreed that the discretionary, case-by-case approach, rather than the blanket approach advocated by the union, should be taken to the question in the labour arbitration context. Read More...

9 Secrets for Dressing Well: A Roadmap for the Style Rookie

The following is a reprint of an article written by Robert van Tongeren. It appears in the Art of Manliness web site.

Some men make it look so easy, don’t they?

They seem to have a natural sense of what looks good on them and what doesn’t. But for you, the learning curve seems ever so steep.

You want to look your best, but you feel clueless about fashion and style, and nothing you try seems to fall together right.

Well, it’s not all your fault.

You were taught how to dress yourself when you were young, but I bet you were never taught how to dress well. Nobody ever taught you what makes an outfit work and what doesn’t. And now you’ve grown up with numerous bad style habits and misconceptions about how you should dress.

And you know what makes it worse?

The Internet will only confuse you more because it’s littered with misinformation, trivial fluff, and half-truths.

But don’t worry.

Today you’ll discover a few secrets that will clear some things up for you. These secrets will show you what works and what matters, and with them you’ll have a much easier time making sense of style.

And eventually you’ll be one of those men who make it look easy.

Is your office full of insecure people?

This article was written by Elizabeth Garone. It appears in the BBC website. Read More...

Admit It: You People Want To See How Far This Goes, Don’t You?

I doubt this article was written by Donald Trump. The folks at the Onion seem to be having fun making it look that way. I leave it to you to decide if they are far off. Read More...

The Only Way To Get Over Your Fear Of The Moon Is To Walk On It

This article was written by Buzz Aldrin. It appears in the Onion website.

It’s okay to be afraid sometimes. It’s a completely natural feeling that all of us experience. But we can’t let fear dominate our lives. In my case, when it came to the one thing that scared me the most—that single fear that tormented me nearly every day—I knew the problem would only get worse unless I confronted it head-on. So, on July 21, 1969, I finally took the plunge. I conquered my fear of the moon once and for all by walking on it. Read More...

Court Considers Safety, Fatigue Of Replacement Workers In Granting Picketing Injunction

In Cascade Aerospace Inc. v. Unifor (Local 114), 2014 BCSC 1461, a British Columbia judge has considered an employer's concerns for the safety of replacement workers, in granting an injunction against picketing workers. Read More...

One Time I Punched A Goose Right Out Of The Air

This article was written by David Yarnold, President of the Audubon Society. It appears in the Onion website. It is rather entertaining. I leave it to you to discern the point of it. If you are offended by some colourful language, consider yourself forewarned.

I’ve spent my whole adult life promoting species diversity and protecting birds. In my current capacity as president and CEO of the Audubon Society, I work tirelessly to raise awareness of the habitat destruction that threatens these incredible, beautiful creatures. I love birds. I love all birds. But I’m not going to pretend this incident in my past didn’t happen, and I’m not going to try to defend my actions, either. Yes, I did it—I’m not proud of it, but I did it:

Business Closure Found A Breach Of The Statutory Freeze On Employment Terms

In June, 2014, a majority of the Supreme Court held, in United Food and Commercial Workers, Local 503 v Wal-Mart Canada Corp., 2014 SCC 45, that an arbitrator had reached a reasonable conclusion in finding that Wal-Mart's 2005 closure of a Quebec store constituted a prohibited unilateral change in conditions of employment following the certification of the union. Read More...

How to Create Habits That Stick

The following is a reprint of an article written by Manesh Sethi. It appears in the Art of Manliness web site.

Getting a call from the Travel Channel was the best thing that ever happened for my diet. And I didn’t even need to starve myself on some new wilderness reality show.

In 2011, a production company and the Travel Channel decided to produce a travel show — with myself as the host. It was a really exciting time.

Except for one small caveat.

I was a lot fatter than my pitch video had been. I had about 15 lbs to lose to get in “TV shape” (damn you, superficial American culture!).

So I had a choice: keep the show…or keep the weight.

I’ve run multiple body hacking experiments on my blog, Hack the System — but I’ve always had a hard time sticking to a nutritional plan. I knew that “motivation” wouldn’t last – that only works for a few days until I pass by Subway or heaven forbid Taco Bell.

I decided that, instead of giving up, I would take a deep dive into my own psychology to figure out not just WHAT worked, but WHY it worked.

I began this journey looking for a “quick fix” to get in shape for the TV show, but what I ended up discovering was the secret to long-term, permanent psychological change.

5 Tools for Thriving in Uncertainty

The following is a reprint of an article written by Kyle Eschenroeder. It appears in the Art of Manliness web site

“It is not given to human beings – happily for them, otherwise life would be intolerable – to foresee or predict to any large extent the unfolding of events. In one phase men seem to have been right, in another they seem to have been wrong. Then again, a few years later, when the perspective of time has lengthened, all stands in a different setting. There is a new proportion. There is another scale of values. History with its flickering lamp stumbles along the trail of the past, trying to reconstruct its scenes, to revive its echoes.” –Winston Churchill

As a much younger man, Churchill witnessed some of the most epic military failures of all time. In the decades before WWI there were no serious wars. This left plenty of room for academics to theorize about how new technology might be used in war; in fact, WWI was possibly the most thoroughly planned war in history.

Yet from the first encounter, the theories unraveled in the face of situations that could never have been predicted. The most respected generals in the world were made to look like amateurs. Their faith in abstract planning blinded them to the reality of the situation. It took years of conflict before they began to really adapt to the reality of their situation.

These generals didn’t realize that they were engaging in the world’s first truly modern battles. These battles required the ability to improvise more than they required detailed plans.

The same transition is currently happening in business. A plethora of business books came out this summer building on the concept of The Lean Startup methodology introduced by Eric Ries. That is, it is cheaper in most cases to run an experiment than to create a plan. Even massive companies are starting to turn their focus towards quickly implementing a strategy on a small scale to test a concept before rolling out a massive change.

Poke and prod rather than plan and plan.

This has implications not just in business on a grand scale, but on an individual level as well. Twenty-year career plans aren’t effective anymore. The amount of variables in our lives has multiplied, and with that, every day seems to contain growing uncertainty. There seem to be two schools of thought on how to deal with this increasing inconstancy:

  1. The Technophiles: These are the guys who say you should embrace everything that’s new. Technology will annihilate uncertainty. The aim is to integrate ourselves with machines as much as possible.
  2. The Paleophiles: These are the guys who say you should reject anything new, recover our ancient human history, and live according to that (effectively ignoring new uncertainties). Technology is making us less human. The aim is to detach ourselves from technology.

My goal here is to take a more sober look at ways to deal with (and even benefit from) the ever-increasing uncertainty of daily life. This isn’t a “middle” path of half-measures between the two views, but a totally new way to approach things.

Workplace Investigations: Key Reasons For Hiring An External Investigator

Various situations arising in the workplace can trigger the need for an investigation – alleged discrimination or harassment, workplace bullying or abuse, inappropriate use of the internet or social media, theft of company property, fraud, policy breaches, statutory violations, allegations of just cause and so forth. Often times, employers try to resolve minor issues informally through discussions with the individuals involved. When the allegations are more serious, employers may rely upon company managers to conduct internal investigations. However, in many situations, having an employer deal directly with the problem is not the best approach – informal discussions can easily breakdown and basic investigative steps may be overlooked by inexperienced mangers, making matters worse.

An invaluable skill for any employer is recognizing when a formal investigation by an external investigator is appropriate. Some of the most important reasons for hiring an external investigator include the following:

What Every Man Should Know About Sleep

The following is a reprint of an article that appears in the Art of Manliness web site.

Sleep is a really weird thing, when you think about it. Sometimes when I’m drifting off to sleep, I’ll find myself thinking, “There are tens of millions of people right now lying unconsciously in theirs beds, temporarily paralyzed and experiencing intense hallucinations.”

Because that’s what happens during sleep. It’s crazy, huh?

But why must we all engage in this nightly routine? For most of human history sleep has been a big mystery. It wasn’t until fairly recently that scientists have begun to understand why animals and humans need to sleep. And even those emerging ideas are just hypotheses. When Dr. William C. Dement, who founded the Sleep Research Center at Stanford University and has researched sleep for over 50 years, was asked why we need to sleep, his golden response was: “As far as I know, the only reason we need to sleep that is really, really solid is because we get sleepy.” So despite the ability to peer into the brain with advanced technologies like MRIs and EEGs, sleep remains almost as much of a mystery to us as it was for the ancients.

While we don’t know exactly why we need to sleep, we do know it provides a myriad of benefits, and that if we don’t get enough of it, we risk a plethora of health and mental problems. The funny/sad thing is, even though sleep is an important part of overall health, it doesn’t get the same attention as diet and exercise does. People rarely boast of their propensity for eating mass quantities of Cheetos, but folks love to offer humble-brags about how little sleep they’re getting by on; it’s become a badge of honor to show off how busy one is with more important things. Sleep has unfortunately become associated with laziness – a luxury for the non-go-getter set. Yet, if you want to get bigger, stronger, leaner, and manlier, as well as smarter and more emotionally resilient, you’ll need to be as thoughtful about your sleep as you are about your deadlifting and paleo diet. Sleep is truly one of the most neglected parts of building a foundation for a life of excellence. In fact, the average human spends an astonishing 24 years of their life sleeping; you’d be wise to understand it and make sure you’re getting the most out of it.

In this post, we’re going to take you on an in-depth tour of the wonders of sleep. We’ve covered the art of napping before, so here we will be focusing on nighttime slumber. You’ll learn what happens while you sleep, the things that control your sleep, what happens when you don’t get the sleep you need, and the benefits of getting the right amount of sleep. Then, next week, we’ll cover the things you can do to create the best night’s sleep of your life.

Grab a glass of warm milk, put on your PJs, and let’s do this.

How to Use a Hotel Concierge

The following is a reprint of an article written by Brett & Kate McKay. It appears in the Art of Manliness web site.

A few years ago, Kate and I took a trip to San Francisco for business. The company that flew us out there set us up in a high-end hotel right near the Embarcadero. We usually stay at something like a Holiday Inn Express, so this was a completely new experience for us.

When we entered the hotel lobby, I noticed a little desk to the side that had the word “Concierge” on the front of it in big gold letters. My only knowledge of concierges at this point had come from watching Tim Curry play one in Home Alone 2. I had a vague idea they were there to help hotel guests, but I thought it was something extra you had to pay for.

As it turns out, I was quite wrong.

One morning, I was in the lobby on my smartphone looking for a place to get a haircut. I couldn’t find one and my frustration must have shown, because the nice gentleman standing behind the concierge desk and wearing giant crossed keys on his lapel came over and asked if I needed help. I usually tell unsolicited helpers — like store clerks and the like — that I’m fine. Manly independence and all that. But I was about to meet some important folks in a few hours and I was looking pretty shabby, so I said yes. The concierge pointed me to a barbershop tucked away just down the street. I told him thanks and started to walk out, but he stopped me. “You might want to take this umbrella with you. It’s supposed to start raining soon.”

I was amazed at how helpful he was.

But the fact is, most people don’t take advantage of the hotel concierge and it’s probably because they simply don’t know all that these hospitality professionals can do to help them. Concierges have years of experience, tons of insider knowledge, and an extensive network of contacts that can make your stay more successful and enjoyable.

To help you navigate the ins and outs of soliciting the services of the most helpful member of a hotel’s staff, we talked to several concierges around the country. Should you find yourself at a higher-end hotel (even if you can’t afford one yourself, you never know if you’ll be put up at one for business!), here’s how to make the most of a concierge’s services:

36 Books Every Young and Wildly Ambitious Person Should Read

If there is one thing the great men of history have in common it’s this: books. They read, a lot. Theodore Roosevelt carried a dozen books with him on his perilous exploration of the River of Doubt (including the Stoics). Lincoln read everything he could get his hands on (often recording passages he liked on spare boards because he didn’t have paper). Napoleon had a library of some 3,500 books with him at St. Helena, and before that had a traveling library he took on campaigns. The writer Ambrose Bierce, the Civil War veteran and an underrated contemporary of Mark Twain once remarked, “I owe more to my father’s books than to any other educational and directive influence.”

The point is: Successful people read. A lot. And what about us young, wildly ambitious people who want to follow in their footsteps? We have that hunger, that drive, and desire. The question is: What should we read? What will help us on the path laid out for us — and all that it entails?

Now a lot of the right recommendations are domain specific. If you want to be a writer, there are certain books you should read. If you want to be an economist, well, there are genres you need to deep dive into. If you want to be a soldier, there are others too. Still, there are many books that every person who aspires to leadership, mastery, influence, power, and success should read.

These are the books that prepare you for the top, and also warn against its dangers. Some are historical. Some are fiction. Some are epics and classics. These are the books that every man must have in his library. Good luck and good reading.

Supreme Court of Canada rules "mercy" power doesn't expose Crown to liability, unless there is bad faith

bad faith
"In 1964, H was unjustly sentenced to 15 years’ imprisonment for armed robbery. He was granted parole after serving a third of his sentence. In 1966, he had persuaded three of the five perpetrators of the robbery to sign affidavits to clear his name. Between 1967 and 1981, H submitted three applications for mercy to the federal Minister of Justice (“Minister”) under the Criminal Code and an application for a pardon to the Governor General in Council. They were all denied. In 1988, he applied to the Commission de police du Québec, which, following an investigation, said that it hoped the Attorney General of Quebec (“AGQ”) would intervene with the Solicitor General of Canada so that justice would be done. In 1990, H submitted a fourth application for mercy, but the Minister replied that he should seek relief in the Quebec Court of Appeal, which he did. The Court of Appeal allowed the appeal, but instead of entering an acquittal or ordering a new trial, it directed a stay of proceedings. On January 21, 1997, the Supreme Court of Canada unanimously acquitted H in a judgment delivered from the bench, as it was of the view that the evidence could not allow a reasonable and properly instructed jury to find H guilty beyond a reasonable doubt. H then instituted an action in civil liability for an order for solidary payment against the AGQ, the Attorney General of Canada (“AGC”) and the town of Mont‑Laurier. Under out‑of‑court settlements, the town and the AGQ paid him a total of $5,550,000 in compensation. After these settlements, H continued to claim $1,079,871 for his pecuniary losses and $1,900,000 for his non‑pecuniary losses, as well as $10,000,000 in punitive damages, from the AGC.

The Superior Court allowed the action and ordered the AGC to pay H a total of almost $5.8 million. It found, pursuant to the Crown Liability and Proceedings Act, that the Minister was subject to Quebec’s rules of civil liability, that he was not protected by any immunity, that he had committed a fault of “institutional inertia” or “institutional indifference”, and that a sustained, concerted and extensive review would have uncovered the errors. It ordered the AGC to pay H more than $850,000 for pecuniary damage and $1,900,000 for non‑pecuniary damage, as well as $2,500,000 in punitive damages. It also found that the AGC’s conduct at trial had amounted to an abuse of process and ordered him to pay $100,000 for fees H had paid to the first law firm that had represented him, as well as $440,000 for the value of the services rendered by the second even though that firm had never billed him for fees, as they had entered into a pro bono agreement.

The Court of Appeal reversed the judgment. It found that the exercise of the Minister’s power of mercy is protected by a qualified immunity and that the Crown can be held liable only if the decision was made in bad faith, and with malice. In this case, the court found that it had not been proven that the Minister had committed a fault and that, even if it were assumed that a fault had been committed, there was nothing to suggest that the miscarriage of justice would have been ascertained quickly if the Minister had acted promptly."

The S.C.C. dismissed the appeal.

Threatening Facebook Post Provides Grounds for Dismissal

In the recent decision of CEP, Local 64 v Corner Brook Pulp and Paper Limited, 2013 CanLII 87573, a Newfoundland arbitrator found that comments posted on an employee's Facebook page constituted sufficient grounds for dismissal. Read More...

The Scorpion and the Frog

scorpion and frog
THE CRYING GAME, a 1992 film by Neil Jordan, is about the revolting and endless twentieth century Irish Troubles. At least some of the time, it is also about the strange bedfellows with which we bunk down when we live in the expectation of dying-not dying eventually, but dying any moment now. Forest Whitaker is an endlessly gullible British soldier, who ducks into the bushes with an undercover Irish girl (Miranda Richardson) and is taken hostage by the Irish enemy who plan to execute him if their demands aren't met. A blindfolded Whitaker befriends his captor, Stephen Rae, and tells him the parable of the scorpion and the frog.

A scorpion enlists a frog to take him on his back across a stream, even though the frog is astute enough to protest that the scorpion "will surely sting me and I will die." The scorpion points out that if he stings the frog, he will die too. The trusting frog thus takes on his passenger, is stung by him, and the two creatures drown together. But before the frog drowns he asks, "Why did you sting me, Mr. Scorpion, even though it costs us both our lives?" to which the Scorpion replies, acceptingly, "It is my nature."

Medical marijuana legal in all forms, Supreme Court rules

medical weed
Medical marijuana patients will now be able to consume marijuana — and not just smoke it — as well as use other extracts and derivatives, the Supreme Court of Canada ruled today.

The unanimous ruling against the federal government expands the definition of medical marijuana beyond the "dried" form.

The country's highest court found the current restriction to dried marijuana violates the right to liberty and security "in a manner that is arbitrary and hence is not in accord with the principles of fundamental justice."

Restricting medical access to marijuana to a dried form has now been declared "null and void" — Sections 4 and 5 of the Controlled Drug and Substances Act, which prohibits possession of non-dried forms of cannabis, will no longer be in effect.

The decision upholds earlier rulings by lower courts in British Columbia that said they went against a person's right to consume medical marijuana in the form they choose.

Many users felt smoking it was even potentially harmful. However, methods such as brewing marijuana leaves in tea or baking cannabis into brownies left patients vulnerable to being charged with possession and trafficking under the law.

According to evidence submitted to a prior judge, it came down to forcing a person to choose between a legal but inadequate treatment, and an illegal but more effective choice.

The case stems from the 2009 arrest of Owen Smith in Victoria.

Smith, a baker for the Victoria Cannabis Buyers' Club, was found with more than 200 cookies and 26 jars of liquids, including cannabis-infused massage oils and lip balms. The baker was charged with possession for the purpose of trafficking and unlawful possession of marijuana.

The club delivers medical marijuana products to its members.

Smith was acquitted by a British Columbia judge, who gave the federal government a year to change the laws around extracts.

A B.C. Appeal Court also ruled in Smith's favour, leading the federal government to take the case to Canada's top court.

The Appeal Court had also suspended its declaration for a year to give Parliament time to rewrite the law. The Supreme Court has now deleted that suspension, saying otherwise it would "leave patients without lawful medical treatment and the law and law enforcement in limbo."

Thursday's decision also affirms Smith's acquittal.

New Challenges for Employers under the Temporary Foreign Worker Program

Since we last posted about the Temporary Foreign Worker Program ("TFWP") . . ., the federal government has, in the face of political pressure, introduced significant changes to the program. Employers now face greater challenges and cost in addressing labour shortages through the use of temporary foreign workers ("TFWs"). Read More...

Executive Loses Incentive Comp Upon Resignation – Contract Enforceable, Court Finds No Restraint On Trade

restraint of trade
The Ontario Superior Court of Justice upheld a contract that forced an employee to forfeit restricted shares upon resignation in Levinsky v The Toronto-Dominion Bank. Read More...

Age Discrimination Found In Termination For Poor Performance

too old
In the recent decision of Price v Topline Roofing, 2013 BCHRT 306 the BC Human Rights Tribunal awarded close to $12,000 in lost wages to an employee terminated because of his age. Read More...

"And One More Thing…": Court Finds That Adding To A Person’s Job Duties May Be A Constructive Dismissal

constructive 2
When one hears "constructive dismissal", one typically thinks of situations such as reducing an employee's salary or benefits or taking away an employee's job responsibilities. In Damaso v. PSI Peripheral Solutions Inc. (PSI) 2013 ONSC 6923, the Ontario Superior Court of Justice expanded this list to include adding to an employee's workload. Read More...

Top Employment Tips For Hiring Employees Abroad

foreign employees
Just as poutine is unlikely to taste the same in Mexico as in Canada, and just as croissants in Almaty may not be quite like croissants in Paris, employment laws differ around the globe. As a result, companies opening up shop in foreign jurisdictions need to be aware that employment laws and HR practices do not necessarily transfer seamlessly from one location to another. Companies looking to succeed in expanding operations to other locations need to keep this in mind and seek employment law advice specific to each location in which they intend to do business. The following list provides some general guidance on employment issues to keep in mind when growing your business across borders. Read More...

Alberta Employer Liable For Employee’s Negligent Driving Of Company Vehicle – Even Though Employer Told Him Not To Drive It

Alberta employers should heed a recent appeal decision in which an employer was held liable for damage caused by an employee while driving a company vehicle – even though he was told not to drive it. Read More...

William Zinsser, Author of ‘On Writing Well,’ Dies at 92

William Zinsser, a writer, editor and teacher whose book “On Writing Well” sold more than 1.5 million copies by employing his own literary craftsmanship to urge clarity, simplicity, brevity and humanity, died on [last] Tuesday at his home in Manhattan. He was 92.

His wife of almost 60 years, Caroline Fraser Zinsser, confirmed the death.

Supreme Court of Canada clarifies grounds for bail, and review by judge of same.

"S was charged with one count of aggravated assault under s. 268 of the Criminal Code for having assaulted a bus driver together with two other individuals. The Crown opposed the interim release of S. The justice of the peace who heard the initial application for release found that detention was necessary on the basis of s. 515(10) (b) and (c) Cr.C., that is, because the interim detention of S was necessary for the protection or safety of the public, and to maintain confidence in the administration of justice. The justice who heard the second application for release on completion of the preliminary inquiry found that the detention of S was still justified under s. 515(10) (c). S then applied under s. 520 Cr.C . for a review by a Superior Court judge, who determined that the detention of S was not necessary under s. 515(10) (c) and ordered his release."

R. v. St-Cloud, the S.C.C. held (7:0) that the appeal is allowed and the detention order restored. Read More...

Supreme Court of Canada finds reasonable apprehension of bias in Trial Judge in minority laguage rights case.

"The Yukon Francophone School Board is the first and only school board in the Yukon. It has responsibility for one school, École Émilie‑Tremblay, a French‑language school founded in 1984. In 2009, the Board sued the Yukon government for what it claimed were deficiencies in the provision of minority language education. The trial judge ruled in the Board’s favour on most issues.

The Court of Appeal concluded that there was a reasonable apprehension of bias on the part of the trial judge based on a number of incidents during the trial as well as the trial judge’s involvement as a governor of a philanthropic francophone community organization in Alberta. Accordingly, it ordered a new trial except on three issues, only two of which were appealed to this Court: the trial judge’s conclusion that, under s. 23 of the Charter , the Board had the unilateral right to set admission criteria so as to include students who are not covered by s. 23 ; and the trial judge’s decision that the Yukon is required to communicate with the Board in French."

In Yukon Francophone School Board, Education Area #23 v.Yukon, the S.C.C. held (7:0) that the appeal from the Court of Appeal’s conclusion that there was a reasonable apprehension of bias requiring a new trial is dismissed, but the Board’s claims pursuant to the Languages Act should be joined with the other issues remitted by the Court of Appeal for determination at a new trial. Read More...

This Too Shall Pass

solomon ring
The following is a reprint of an article written by Brett & Kate McKay. It appears in the Art of Manliness web site.

When I turned 16 years old, I got my first car. A red Isuzu Hombre pick-up truck. Yeah, my first car’s model was named Hombre, the Spanish word for man. Though, Hombre’s weren’t a very manly model of pick-up; they were actually kind of dinky. I really didn’t care. I just saw it as the object that finally granted me freedom from relying on mom and dad to take me places I wanted to go. The world was my oyster!

Two weeks after I got the ol’ Hombre, my best friend turned 16, and we went out for a night of fun. On the way back from an epic match of laser tag, I rear-ended a guy. I got out and made sure the guy I hit was okay. After I saw that he was fine, I assessed the damage. The front end of my little Hombre was no match for the bumper of the F-150 I had collided into. My friends tried to console me.

“It’s not so bad, Brett.”

My response.

“MY CAR IS SCREWED!!!” Repeated over and over while I paced frantically back and forth.

The insurance agent declared my car totaled. And since I only had liability insurance, I was out of a car, period.

Man, I took it hard. I didn’t go to school for two days because I felt so sorry for myself (*facepalm* how freaking lame). I had taken my first steps towards freedom and independence, but in a matter of seconds I was back to relying on my parents to haul me around.

In the middle of one my pity parties, my parents told me, “Brett, this too shall pass.”

Of course they were right. That car accident, which seemed like the end of the world, like an event of earth-shattering significance, is now just a little memory from my teenage years, a funny story to tell.

In the years since that day, I have faced challenges and setbacks far more trying than a totalled car, but that simple advice—this too shall pass–has stuck with me during those low moments, offering a bit of perspective and hope that what seemed permanent, wasn’t, and that things would turn around after all.

Bring Your Own Device (BYOD) – A Primer

The development of portable technology has dramatically altered the relationship between professional and personal life. On a morning commute to the office, it is not uncommon for an individual to pull out a single smartphone both to read and respond to a client email and confirm dinner plans with a friend over text message. Some individuals on their morning commute pull out a work-issued smartphone and others pull out a personally-purchased device. The focus of this article is on managing the use of personally-purchased devices for professional tasks.

In what follows, we explore the increasingly popular Bring Your Own Device ("BYOD") model that permits employees to use their personally-owned devices to access confidential company systems and information and highlight some key legal issues for employers to consider before implementing a BYOD policy. Specifically, this article addresses ownership of and access to the device, related employment issues, and privacy and data security. The article also considers these issues and proposes solutions for employers to build into their BYOD policies to address the relevant legal concerns. While the BYOD model is attractive, a carefully constructed policy and related management practices are critical to ensuring compliance with data management obligations and to avoid related legal liability.

How to Recover From a Bad First Impression

The following is a reprint of an article written by John Corcoran. It appears in the Art of Manliness web site.

Have you ever met someone new, and almost immediately realized you had made a bad first impression?

Maybe you made an off-color joke, were obviously inebriated, or came on too strong. Or maybe you put off an impression that you were not all that interested, even if perhaps you were. If any of these things have happened to you, then you’ve probably realized that you have to decide very quickly what you should do about it.

Bad first impressions are nothing to scoff at. They are a big deal. A bad first impression can set a tone for an entire relationship. I’m sure you can think of people you’ve known for years who made a bad first impression on you, and you still remember it years later.

Whether justified or not, these bad impressions have a tendency to sink in, and they can lead to fewer opportunities, limit your income and advancement chances at work, create an unfavorable reputation in your community, or ruin any chance you had of progressing your relationship with a beautiful lady you just met.

AoM has previously covered the importance of making good first impressions. In “How to Enter a Room Like a Boss,” I wrote about what men can do to make a good impression when first arriving to an event. We’ve also covered how to give a proper handshake (a crucial piece in giving a good first impression) and even how to make sure your home puts off a good first impression for visitors.

But in this post, I want to cover a different side of the coin: what you can and should do if you try to make a good first impression, but fail. Should you acknowledge the bad impression and apologize? Or should you just move on? Should you go to extra lengths to try to make up for it, perhaps even going so far as to write an apology note?

Have no fear, men. The answers to these questions lie below. If you’ve made a bad first impression, it’s not the end of the world. It’s happened to all of us, and you can recover. Here’s how:

When Can An Employment Contract Be Set Aside?

emp agr
Many employees foolishly decide to save the hour or so in legal fees to have their contracts reviewed, only to then forfeit vastly greater amounts. Employers are no better. Close to half the contracts I encounter are replete with glaring legal errors. Cobbling together disparate precedents without regard to either symmetry or changes in the law is a recipe, in any legal area, for financial purgatory.

So how can employees have contracts set aside?

Supreme Court of Canada finds damages where Crown intentionally withholds material information from defence.

charter 2
"H was convicted in 1983 of 10 sexual offences, declared a dangerous offender, and imprisoned for almost 27 years. In October 2010, the B.C. Court of Appeal quashed all 10 convictions and substituted acquittals for each, finding serious errors in the conduct of the trial and concluding that the guilty verdicts were unreasonable in light of the evidence as a whole. H brought a civil suit against the Attorney General of British Columbia (“AGBC”), seeking damages under s. 24(1) of the Charter for harm suffered as a consequence of his wrongful convictions and imprisonment.

H alleges that the Crown failed to make full disclosure of relevant information before, during, and after his trial. H made numerous requests for disclosure of all victim statements as well as medical and forensic reports. The Crown did not disclose any of the requested material before the commencement of trial. At trial, the Crown provided him with several victim statements, but approximately 30 additional statements were not disclosed. These statements revealed inconsistencies that could have been used to attack the already-suspect identification evidence put forward by the Crown. Key forensic evidence was also not disclosed. Furthermore, the Crown failed to disclose the existence of another suspect who had been arrested twice in the vicinity of the attacks.

In his Notice of Civil Claim, H pleaded various causes of action, including negligence, malicious prosecution, and breach of his ss. 7 and 11 (d) Charter rights. The AGBC moved to strike the causes of action grounded in negligence and the Charter . The B.C. Supreme Court struck the negligence claim as inconsistent with this Court’s holding in Nelles v. Ontario, [1989] 2 S.C.R. 170, but allowed H’s Charter claim to proceed since it was founded on allegations of malicious conduct. The court noted, however, that if H intended to pursue a Charter damages claim against the AGBC for conduct falling short of malice, he would have to seek leave to amend his pleadings. H applied for leave to amend his pleadings to claim Charter damages against the AGBC for non-malicious conduct. In permitting H to amend his claim accordingly, the application judge found that a threshold lower than malice should apply and that s. 24(1) damages awards are justified where the Crown’s conduct represents a marked and unacceptable departure from the reasonable standards expected of prosecutors. The Court of Appeal unanimously allowed the AGBC’s appeal, concluding that H was not entitled to seek Charter damages for the non-malicious acts and omissions of Crown counsel."

Henry v. B.C. (A.G.), the S.C.C. held (unanimously, with two judges writing separate joint concurring reasons) that the appeal is allowed; s. 24(i) of the Charter authorizes courts of competent jurisdiction to award damages against the Crown for prosecutorial misconduct absent proof of malice. Read More...

Koskie presents seminar on Powers of Attorney

Power of Attorney
Koskie presents seminar on Powers of Attorney

Employers Can Contract Out Of Post-Termination Bonus Obligations

One of the most hotly contested issues on termination is whether an employee is entitled to a bonus that would have been payable at a later date. Often this arises when an employment contract contemplates a bonus being paid at a particular time of the year, but the employee resigns or is terminated prior to that trigger date. A recent decision exemplifies how specific contract language can protect employers from paying future bonuses to terminated employees.

Jivraj v Strategic Maintenance Ltd, 2014 ABQB 463, the Alberta Queens Bench held that the employment contract did not entitle the employee to any further bonus payments once the employment relationship ended. Read More...

Supreme Court of Canada rules ". . . substantive equivalence of the educational experience" the new test

"L’école élémentaire Rose‑des‑vents (“RDV”) is the only publicly‑funded French‑language elementary school for children living west of Main Street in the city of Vancouver. The school is overcrowded and enrollment is growing. RDV is small and the classrooms are significantly smaller than those in other schools. Some have no windows and only three classrooms meet the recommended size for classrooms. The library is very small, the washrooms are inadequate and there is no available flexible space in the school. Roughly 85 per cent of students attending RDV are transported to school by bus and over two‑thirds of those have bus trips of more than 30 minutes per trip. By contrast, the English‑language schools in RDV’s catchment area are larger, with larger classrooms, larger and better playing fields, and more spacious libraries. Most students attending English‑language schools in the area live within one kilometre of their schools.

In 2010, parents of children attending RDV challenged their school board and the provincial government, seeking a declaration that the educational services made available to their children were not equivalent to those of the English‑language schools in the area and that their minority language education rights under s. 23 of the Charter had been breached. They requested that the legal proceedings be phased so that they could obtain a declaration while leaving the question of responsibility for the alleged inadequacies to a later phase, if necessary. Their hope was that obtaining a declaration would be sufficient to obtain a favourable government response.

The petition judge accepted the request to phase the proceedings, deciding to first assess only whether the children of rights holders were being provided with instruction and facilities equivalent to majority language schools, as guaranteed under s. 23 of the Charter . Prior to undertaking this initial phase of the proceedings, the judge struck certain parts of the province’s pleadings on the grounds that they were not relevant to that phase. At the conclusion of the first phase of the proceedings, the judge issued a declaration that the parents are not being provided the minority language educational facilities guaranteed to them by s. 23 of the Charter. He did not assign responsibility for the failure to meet the constitutional standard. The Court of Appeal allowed the appeal brought by the province. It set aside both the order striking some of the province’s pleadings, and the declaration."

Association des parents de l’école Rose-des-vents v. British Columbia (Education), the S.C.C. held (7:0) the appeal is allowed and the petition judge’s declaration reinstated; the award of special costs issued by the petition judge is restored; the matter remitted to the B.C.S.C. for the next phase of the petition, if necessary; special costs awarded to the appellants for the appeal. Read More...

Supreme Court of Canada strikes down mandatory minimum sentences for gun crimes

go to jail
The Supreme Court has delivered a major blow to the Conservative government’s crime agenda, striking down a mandatory minimum sentence for illegal gun possession in a way that suggests other laws could also fall.

The court
ruled 6-3 on Tuesday that mandatory minimum jail sentences of three years for illegal gun possession, and five years for possession by people with repeat weapons offences, amount to cruel and unusual punishment, and are unconstitutional.

The majority ruling highlights how deeply at odds the government is with the country’s highest court. Adding salt to Ottawa’s wounds, Chief Justice Beverley McLachlin wrote the majority ruling. Prime Minister Stephen Harper clashed publicly with Chief Justice McLachlin last year after a series of major decisions went against his government.

In an election campaign this fall, the government is expected to highlight what it is doing to protect public safety, and the ruling could weaken that argument. Since 2006, the Conservatives have created 60 mandatory minimum jail terms for guns, drugs, sex offences and other crimes, according to the justice department, helping to boost the number of federal prisoners to record heights even as crime rates dropped to 50-year lows. Some of those minimum terms could now be challenged and struck down.

The federal Attorney-General argued that mandatory sentences deter crime, and that in less serious gun-possession cases, prosecutors may opt for a proceeding that carries a maximum penalty of only one year in jail. But the majority was vociferous in rejecting that argument, saying that so much discretion in the hands of prosecutors could lead to wrongful convictions as innocent people plead guilty rather than face more serious proceedings, and usurps the role of judges.

“Sentencing is inherently a judicial function,” Chief Justice McLachlin wrote.

Justice Minister Peter MacKay said the government is reviewing the ruling, and will continue to be tough on those who commit serious crimes. But the logic the majority used to reach its decision makes other government laws especially vulnerable.

The court used a controversial principle from the early years of the 1982 Charter: the “reasonable hypothetical” case. In the appeals on which the court was ruling, lawyers for two men convicted by lower courts, including a 19-year-old with a clean record, did not argue that the minimum sentences were unfair to their clients. They argued they could be unfair to others.

The principle stems from a 1985 case, R v. Big M Drug Mart Ltd., in which a company was charged for opening on a Sunday. The court accepted the company’s argument that the law discriminated against Jews and Seventh-Day Adventists. Then-chief justice Brian Dickson, an appointee of Liberal prime minister Pierre Trudeau, wrote that the nature of the law matters more than the individual case. Two years later, in R v. Smith, the court struck down a mandatory minimum jail term of seven years for importing illegal drugs, arguing that it could also apply to a hypothetical student driving home from the United States with a single joint.

Several provinces intervened in the gun-possession cases to argue for a restricted use of the reasonable-hypothetical case, and British Columbia wanted it scrapped. But the court said it was foreseeable that an otherwise law-abiding gun owner who stored a firearm in a dwelling contrary to the terms of his licence could go to prison for three years. The minority said striking down the 2008 law based on such a hypothetical case lacked common sense; it accepted prosecutorial discretion as a safeguard.

Another Peril Of The Fixed Term Agreement

emp agr
Employers often debate whether to engage people for an indeterminate period, or for a fixed term.

While there may be a superficial attractiveness to fixed term Employment Agreements, they are not without their difficulties. True, as a general proposition, when they come to an end they do so without the requirement of further notice or compensation. Note however the Ontario Court of Appeal decision in Ceccol v. Ontario Gymnastic Federation, 55 OR (3d) 614 for the proposition that a series of fixed term contracts can in some circumstances eventually amount to an “indefinite hiring” subject to termination only upon reasonable notice.

The same difficulty arises where the parties, through inadvertence, continue the employment relationship beyond the end of the fixed term. Again, the contract then becomes indefinite subject to the common law entitlement to reasonable notice as well as all of the protections of the Employment Standards Act.

Employers should also be aware that if they have a change of heart in the middle of a fixed term arrangement, they may have far less flexibility than would have been the case with an indefinite arrangement subject to an enforceable contractual termination. Absent such contractual termination provision, the employee is entitled to receive the compensation and benefits which would have accrued to the end of the fixed term.

A recent decision from the Alberta Court of Appeal serves as a reminder of the inflexibility of fixed term arrangements.

Supreme Court rules against prayer at city council meetings

The Supreme Court of Canada has ruled the municipal council in the Quebec town of Saguenay cannot open its meetings with a prayer.

In a unanimous
decision today, the country's top court said reciting a Catholic prayer at council meetings infringes on freedom of conscience and religion.

The ruling puts an end to a eight-year legal battle that began with a complaint filed by atheist Alain Simoneau and a secular-rights organization against Saguenay Mayor Jean Tremblay.

The court ordered the City of Saguenay and the mayor to stop reciting prayer. It also ordered the city and Tremblay to pay Simoneau a total of $33,200 in compensatory damages, punitive damages and costs.

The Supreme Court did not rule out the presence of religious symbols, because it decided to limit the scope of its investigation to prayer only.

In 2011, Quebec's human rights tribunal ordered an end to the prayers, demanded that a crucifix in the city council chamber be removed and awarded damages to Simoneau.

But the outspoken mayor fought back, raising money from supporters through the city's website. Tremblay said it was a battle for Quebec's Roman Catholic heritage.

The Quebec Court of Appeal overturned the tribunal's decision in 2013.

The appeals court expressed some reservations about religious symbols in the council chamber, but concluded the city imposed no religious views on its citizens.

It ruled reciting a prayer does not violate the religious neutrality of the city and if the recitation interfered with Simoneau's moral values, the interference was trivial.

The Supreme Court of Canada agreed to hear the case last year.

State must be neutral, court rules

In 2008, city officials initially changed the prayer with a new one it deemed more neutral and delayed the opening of council by two minutes to allow citizens a window to return follow the reciting.

The Supreme Court said Canadian society has evolved and given rise to a "concept of neutrality according to which the state must not interfere in religion and beliefs."

"The state must instead remain neutral in this regard," the judgment said.

"This neutrality requires that the state neither favour nor hinder any particular belief, and the same holds true for non-belief. It requires that the state abstain from taking any position and thus avoid adhering to a particular belief.

"When all is said and done, the state's duty to protect every person's freedom of conscience and religion means that it may not use its powers in such a way as to promote the participation of certain believers or non-believers in public life to the detriment of others."

Tremblay declined a request for an interview Wednesday. He is expected to hold a news conference Thursday morning at city hall.

Looking Back On My Life, I Guess My Biggest Regret Is Trying To Fight That Alligator 5 Minutes Ago

This is an odd article written by Dave McKinney and appearing on the Onion website. We all have alligators nipping at us from time to time. Perhaps this provides food for thought on placing those alligators in perspective and how one might best react to them. Read More...

10 Questions to Ask in a Job Interview

The following is a reprint of an article written by Jeremy Anderberg. It appears in the Art of Manliness web site.

When it comes to job interviews, we often see it as a one-way street, with the interviewer holding all the cards. In reality, though, it’s a two-way interaction. You are also interviewing them to see if their company is the right fit for you. Sure, sometimes desperation means you don’t have that luxury, but hopefully at some point you’ll have options and you’ll get to choose the company that’s best for you. A large part of determining that is the questions you ask at the end of the interview.

Beyond that, asking questions shows your interest in the job and the company. Q&A often only consists of a few minutes at the end of an hour-long interview, but it’s the final impression you’ll make, and according to one-third of HR managers, it can make or break your chances of getting the gig. When they inevitably ask you if you have questions, not having any indicates that you don’t really care about the position and are seemingly only going through the motions of an interview; conversely, asking good, incisive questions shows you’re knowledgeable about the field and sincerely curious about the job.

The goal with your own questions is to just get a better picture of the company as a whole and your potential role in it. You don’t want to get too detailed — save that for the follow-up interview, or when they offer you the job. For instance, you don’t want to ask about salary or benefits right off the bat; that will make it seem like you’re only interested in money, and not the position.

Elsewhere online, you can find lengthy lists of 30-50 questions to ask at the end of an interview. That’s far too many, however, and makes you pick and choose out of your head based on the scenario. In this post, we’ll give you just a few options from a few different categories that we think are the most important. You want to have at least 3 questions to ask, so come prepared with at least 6 just in case some get answered in the course of the interview.

Want To Quit Your Job? Five Things You Should Know About Your Legal Obligations

Plenty has been written about legal obligations and mistaken beliefs when it comes to employees being fired. But, while it is seldom discussed, there is almost as much law affecting an employee's decision to quit, whether it's because they read the writing on the wall or just got a better offer. Read More...

Supreme Court of Canada rules Quebec has no constitutional right to gun registry data.

"Adopted in 1995, the Firearms Act created a comprehensive scheme requiring the holders of all firearms — including long guns — to obtain licences and register their guns. It also made it a criminal offence to possess an unregistered firearm. The Firearms Act provided for the creation of two types of registries: the Canadian Firearms Registry (“CFR”), maintained by the Registrar of Firearms and containing records of the registration certificates for all prohibited firearms, restricted firearms, and long guns acquired, transferred, or possessed in Canada, and a registry kept by the Chief Firearms Officer (“CFO”) designated for each province and territory, containing records of every firearm’s licence and authorization issued or revoked. The Registrar and the CFOs could access all records through a single electronic database but the statutory authority of CFOs only permitted them to contribute and modify data in their specific licensing registry.

In 2012, Parliament enacted the Ending the Long‑gun Registry Act (“ELRA”), which repealed the registration requirement for long guns and decriminalized the possession of an unregistered long gun. Section 29 of the ELRA requires the destruction of all records contained in the registries related to the registration of long guns. In reaction, Quebec expressed its intention to create its own long‑gun registry and asked the federal authorities for the data connected to Quebec contained in the CFR. Canada refused and made clear that it intended to permanently destroy all long‑gun registration data. In light of this refusal, Quebec sought a declaration that s. 29 of the ELRA is ultra vires and that Quebec has a right to obtain the data.

The Superior Court of Quebec declared s. 29 of the ELRA unconstitutional as it applies to data connected with Quebec and ordered Canada to transfer that data to the province. The Quebec Court of Appeal reversed that decision."

Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14 (35448), the SCC held (with two judges writing joint reasons, in which three others concurred; and three other judges writing dissenting reasons, in which one other judge concurred) that the appeal is dismissed, section 29 of the ELRA is constitutional, and Quebec has no legal right to the data. Read More...

No Damages Awarded For Unforeseeable Workplace Assault, But Employer Ordered To Rewrite Harassment Policy

The fact that an employee had engaged in harassment did not make it foreseeable that he would assault a coworker, a labour arbitrator has held in Shaw Pipe Protection Limited v Construction and General Workers' Local Union No 180, 2013 CanLII 94439 (SK LA). However, the company's harassment policy was deficient and needed to be rewritten. Read More...

The Escalating Scale of Drunkenness, Explained

The following article appears on the Esquire web site. It is not exactly as I would have written it. However, it makes the point.

One drink, two drink, three drink, four. Don't say we didn't warn you . . . .

The Pros and Cons of Outsourcing Your Life

The following is a reprint of an article written by Brett & Kate McKay. It appears in the Art of Manliness web site.

One of the tenets of the “lifestyle design” movement that has emerged over the past decade is the desirability of “outsourcing” one’s life. Once a term used in the context of economics and industry to denote the shifting of jobs from first to third-world countries, it has come to be applied to the off-loading of one’s personal tasks and chores to other people. In addition to handymen and housekeepers, our modern world offers the possibility of hiring someone in the Philippines to take care of your work emails, a planner to organize your child’s birthday party, a sleep coach to help your baby slumber through the night, a life coach to help you reach your goals, and nurses to take care of your elderly parents. You can get your food at a restaurant, delivered to your door, or prepared by a personal chef. You can rent a friend or avail yourself to the services of a professional cuddler (I kid you not). You can even hire a “wantologist” to help you figure out what you really, really want.

The end goal of all this outsourcing of one’s less desirable tasks is to open up as much time as possible for doing the things you truly enjoy in life. This ideal was most famously laid out by Tim Ferris in The 4-Hour Workweek — a guide to automating your business and life to the point where you can retire early and spend your days learning to tango on the beaches of Tahiti.

Some see personal outsourcing as an unmitigated good, while others view it as a significant detriment to the development of character — something that will sap the DIY-spirit and self-reliance so crucial to manhood. In truth, it is not an issue best rendered in black and white. So today we’d like explore both sides of the coin and delve into the pros and cons of outsourcing your life.

Love Is All You Need: Insights from the Longest Longitudinal Study on Men Ever Conducted

The following is a reprint of an article written by Brett & Kate McKay. It appears in the Art of Manliness web site.

Why do two men from very similar socioeconomic and educational backgrounds sometimes take very different life paths?

Is nature or nurture more important in determining a man’s success in his relationships and career?

What physiological and psychological traits present in a man’s younger years predict his chances of living a long, flourishing life?

In 1938, researchers at Harvard’s medical school began a study that aimed to answer these fascinating questions and discover what factors lead to an “optimum” life. The study recruited 268 of the university’s sophomores from the all-male classes of 1939-1944, and set out to examine every aspect of their lives for at least a couple decades. The men selected were healthy in body and mind, and deemed likely to capitalize on their potential and become successful adults. While many of them came from well-off families, some were intelligent students who had been plucked from poor households and given full scholarships.

The study’s participants were signing on for extensive probing into their lives. They were given physicals and thorough psychological evaluations; researchers visited their homes to interview their parents, as well as three generations of relatives; each year the men filled out an exhaustive questionnaire that inquired about numerous aspects of their health, habits, family, political views, career, and marriage; and every 10-15 years, the men were interviewed face-to-face.

This research project, known as the Grant Study, continues today, more than 75 years after its inception. Having been extended numerous times, it has become one of the longest longitudinal studies ever conducted. When George Vaillant, who has been the study’s director for several decades, first started working on the project, he was thirty-two, and the participants were in their fifties; today, Vaillant is pushing eighty, and the men are in their nineties. The participants continue to fill out their annual questionnaires, and Vaillant continues to study their answers.

Nothing quite like the Grant Study has ever been attempted; as Vaillant puts it, this research represents “one of the first vantage points the world has ever had on which to stand and look prospectively at a man’s life from eighteen to ninety.” The mountains of data collected over more than seven decades has become a rich trove for examining what factors present in a man’s younger years best predict whether he will be successful and happy into old age. The study’s researchers have continually sifted through the results and reports in an attempt to ferret out these promising elements. As Vaillant details in The Triumphs of Experience, some of the researchers’ original hypotheses did not pan out, and the job of untangling issues of causation and correlation goes on. Yet several insights have emerged very strongly and prominently from the data, offering brightly marked guideposts to a life well lived.

Supreme Court of Canada clarifies what is/is not constructive dismissal.

"P was appointed as the Executive Director of the New Brunswick Legal Aid Services Commission (“Commission”) for a seven‑year term. In the first half of that term, the relationship between the parties deteriorated and they began negotiating a buyout of P’s employment contract. P took sick leave before the matter was resolved. Just prior to his return, and unbeknownst to P, the Commission wrote a letter to the Minister of Justice recommending that P’s employment be terminated for cause. The Commission’s legal counsel wrote to P’s lawyer on the same date, advising that P was not to return to work until further direction from the Commission. Before the conclusion of his sick leave, the Commission suspended P indefinitely with pay and delegated his powers and duties to another person. P claimed that he was constructively dismissed and commenced litigation. The Commission took the view that in doing this, P had voluntarily resigned. The trial judge found in favour of the Commission, as did the Court of Appeal."

In Potter v. New Brunswick Legal Aid Services Commission, the SCC held (7:0, with 2 judges writing separate concurring reasons) that the appeal is allowed. Read More...

When Is A Worker A Dependent Contractor?

The recent case of Wyman v. Kadlec highlights the distinction between dependent and independent contractors and the significantly different rights of such workers upon termination depending on how they are characterized. Read More...

Ontario Court Of Appeal Upholds Finding Of Breach Of Fiduciary Duty Respecting Executive Compensation

The Ontario Court of Appeal recently upheld a trial court decision which concluded that the CEO, who was also a director, breached his fiduciary duty to the corporation when the directors of Unique Broadband Systems, Inc. approved changes to a share appreciation rights plan (SAR Plan) and an extraordinary bonus. In Unique Broadband Systems, Inc. (Re), 2014 ONCA 538, the Court of Appeal also recognized that as a consequence of the fiduciary breach, the CEO was not only not entitled to the approved payments, but also was not entitled to indemnification under contractual or other director and officer indemnities or enhanced severance upon termination of employment. The Court emphasized that disclosure of conflicts, reliance on legal advice and the business judgment rule may not be enough to shield directors from breaching the fiduciary duties owed to the corporation. Read More...

Delayed Promotion Not Constructive Dismissal

\In the recent case of Penteliuk v CIBC World Markets Inc, the Ontario Superior Court held that an employee whose promised promotion was taking longer than expected was not constructively dismissed. Read More...

Employee Privacy Breaches – Do They Warrant Discipline?

In 2012 the Ontario Court of Appeal first established the tort of intrusion upon seclusion to Canadian law in Jones v Tsige. Apart from the obvious impact of this case on those who are the victims of a privacy breach, the case has raised interesting questions in the field of labour and employment law. Namely, it places strong pressure on an employer to ensure prompt and sufficient discipline against employees who breach privacy rules in an effort to mitigate potential tort claims. The salient issue is how this new source of liability weighs against traditional labour and employment law concerning discipline. In other words, when does an employee's breach of a rule merit discipline and what discipline is warranted? While most cases thus far are in a labour context, these same general themes could be equally applied to non-unionized employees. Read More...

But We Had A Contract! Distinguishing Appearance From Reality In Employment Contracts

emp agr
In Atwater Badminton and Squash Club Inc. v. Morgan ("Atwater"), the Québec Court of Appeal affirmed that the conduct of parties to an employment contract can supersede a series of fixed-term contracts, rendering the contractual relationship one of indeterminate term. Read More...

Defences To The Tort Of Defamation

Absolute privilege is one of the most powerful defences in the law of defamation. The privilege is "absolute" because it cannot be defeated even if the plaintiff proves that the defendant spoke the words with actual malice and knowing them to be false. The occasions on which the privilege arise include communications made by executive officers of state, parliamentary and legislative officials (e.g., Guergis v. Novak, 2012 ONSC 4579), or persons – including lawyers – involved in the furtherance of judicial or quasi-judicial proceedings (e.g., Monument Mining Ltd. v. Balendran Chong & Bodi, 2012 BCSC 1769). Read More...

Termination Provisions In Employment Contracts Are Not Always Enforceable

emp agr
The recent decision in Miller v. A.B.M. Canada Inc. provides a useful lesson on the extent to which one can rely on the termination provisions in an employment contract. Read More...

Saskatchewan Introduces Ticketing System For Certain Workplace Safety Violations

\Saskatchewan employers who violate certain occupational health and safety laws may be issued a Summary Offence Ticket, which carry fines ranging from $250 to $1,000, depending on the offence (plus victim surcharges). Read More...

Keep Your Facebook Comments To Yourself…Or Better Yet, Don’t Put Them Out There At All!

In USWA, Loc. 9548 and Tenaris Algoma Tubes Inc., the most serious aggravating factor . . . is the nature of the comments. They were vicious and humiliating. The company has characterized the posts as threatening. It would certainly be reasonable for a woman reading such an interchange between male co-workers to feel threatened. The grievor suggested that X should be sexually assaulted. He must have anticipated that she would see the posts or hear about them because his Facebook 'friends' included co-workers. He also, apparently, had not used any privacy settings since Mr. Kmpotich and Ms. Amato could read them. He did not delete his comments as soon as he made them but left them up for 10 hours. Read More...

Supreme Court of Canada allows doctor-assisted suicide in specific cases

People with grievous and irremediable medical conditions should have the right to ask a doctor to help them die, Canada's highest court says in a unanimous ruling in Carter v Canada (Attorney General).

The Supreme Court of Canada says a law that makes it illegal for anyone to help a person commit suicide should be amended to allow doctors to help in specific situations.

The ruling only applies to competent adults with enduring, intolerable suffering who clearly consent to ending their lives.

The court has given federal and provincial governments 12 months to craft legislation to respond to the ruling; the ban on doctor-assisted suicide stands until then. If the government doesn't write a new law, the current one will be struck down.

The ruling is not limited to those with a physical disability who require a physician's assistance to end their lives.

All nine justices share the writing credit on the ruling, an unusual action meant to signal particular institutional weight behind the decision.

'Impinges' on security of the person

The court says the charter right to life doesn't require an absolute prohibition on assistance in dying.

"This would create a 'duty to live,' rather than a 'right to life,' and would call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment," the court wrote in the decision.

​"An individual's choice about the end of her life is entitled to respect."

The court also found an individual's response to "a grievous and irremediable medical condition" is a matter critical to their dignity and autonomy. The law already allows palliative sedation, refusing artificial nutrition and hydration and refusing life-sustaining medical equipment.

"And, by leaving people ... to endure intolerable suffering, it impinges on their security of the person," the court wrote.

The court also agreed with a trial judge in British Columbia that the safeguards work where they've been set up in jurisdictions that allow physician-assisted suicide.

The top court agreed that doctors are capable of assessing the competence of patients to consent, and found there is no evidence that the elderly or people with disabilities are vulnerable to accessing doctor-assisted dying.

While the ruling sets out specific criteria, it leaves some questions.

The decision is silent, for example, on whether depression or mental illness counts as a medical condition. The court does include psychological pain under the criteria of enduring and intolerable suffering.

How A Corporate Reorganization Can End Up Being A Constructive Dismissal Lawsuit

With Damocles' sword of constructive dismissal lawsuits looming over employers who wish to reassign staff, even a minor misstep can prove costly. Read More...

Koskie achieves pledge goal for Manuary Saskatoon - 2015

Ted Beard
I must say it was a pleasure not having to shave for the last 28 days of January. Thank you to all for pledging and helping me raise money for the Royal University Hospital Foundation and its Head and Neck Cancer Surgery Program at the Saskatoon Health Region. Read More...

Supreme Court strikes down Saskatchewan law that prevents right to strike

In Saskatchewan Federation of Labour v Saskatchewan, the Supreme Court of Canada has struck down as unconstitutional a Saskatchewan law that prevents public sector employees from striking.

By a 5-2 majority, the high court granted an appeal by the Saskatchewan Federation of Labour of the province's controversial essential services law that restricts who can strike.

The ruling will affect public service unions in provinces across the country. Last April, Nova Scotia enacted its own essential services law for health care workers, joining Newfoundland and Labrador and British Columbia as provinces that have essential services laws.

The Supreme Court also gave Saskatchewan one year to enact new legislation.

After winning power in 2007, the Saskatchewan Party introduced the new law, which says employers and unions must agree on which workers are deemed essential and cannot legally strike.

If the two sides can't agree, the government gets to decide who is an essential worker.

Writing for the majority, Justice Rosalie Abella said that power violated section 2(d) of the Charter of Rights and Freedoms, which protects freedom of association.

The two dissenting justices, Richard Wagner and Marshall Rothstein, said that enshrining the right to strike restricts the government's flexibility in labour relations.

The Saskatchewan law came after some high-profile labour unrest in Saskatchewan, including a strike by thousands of nurses in 1999 and another by highway workers and correctional officers in late 2006 and early 2007.

Court challenges began in 2008 after the law was enacted, and the Regina Court of Queen's Bench struck it down as unconstitutional in February 2012.

The court did uphold the principle of essential services and gave the government 12 months to fix the law.

The Saskatchewan Court of Appeal overturned the lower court ruling in 2013, so the labour federation appealed to the Supreme Court.

The Supreme Court has now reversed that appeal.

"Given the breadth of essential services that the employer is entitled to designate unilaterally without an independent review process, and the absence of an adequate, impartial and effective alternative mechanism for resolving collective bargaining impasses," wrote Abella, "there can be little doubt that the trial judge was right to conclude that the scheme was not minimally impairing."

Wagner and Rothstein disagreed.

"The statutory right to strike, along with other statutory protections for workers, reflects a complex balance struck by legislatures between the interests of employers, employees, and the public," they wrote in their dissent.

"Providing for a constitutional right to strike not only upsets this delicate balance, but also restricts legislatures by denying them the flexibility needed to ensure the balance of interests can be maintained."

Today's ruling comes after just two weeks after the Supreme Court's landmark labour relations ruling in a case involving rank and file officers of the RCMP.

The Supreme Court overturned a previous ruling of its own from the 1990s which upheld an exclusion that barred the Mounties from forming unions like federal public servants, who gained the right to collective bargaining in the late 1960s.

The ruling did not explicitly state that RCMP members have the right to form a union, but the justices effectively cleared a path to that possibility. As with today's ruling, the high court gave the federal government one year to create a new labour relations framework with the RCMP.

The RCMP ruling did not address the right to strike.

E-Cigarettes: A Hazy Status In The Workplace

Electronic cigarettes with nicotine ("e-cigarettes") and cartridges of nicotine solutions are widely available to consumers despite Health Canada's warning that their importation, advertisement and sale are prohibited without authorization. There remains confusion over the legalities of their use, especially in public places and workplace settings. Read More...

Avoiding Blurred Lines Between Temporary Workers And Employees

Where agency workers are brought in for temporary assignments, a question may arise in unionized workplaces whether the temporary workers are employees of the company, or rather employees of the employment agency. If the agency workers are found to be employees of the company that has brought in the temporary workers, then the workers may be found within the scope of the applicable collective agreement between the company and the union. Read More...

Alberta Court Of Appeal Considers The Duty To Accommodate Probationary Employees

In reasons released on May 6, 2014, the Alberta Court of Appeal dismissed an appeal by the Telecommunications Workers Union in respect of an unsuccessful judicial review application to question a labour arbitrator award. The Arbitrator had determined that TELUS Communications Inc. had no duty to accommodate a probationary employee who failed to raise his disability (which was not readily apparent) in an assertive way until days before the end of his probationary period, at which point he was terminated. The Arbitrator reasoned that the Union had to establish actual or constructive knowledge of the Grievor's disability as part of its prima facie case in accordance with the Alberta Court of Queen's Bench decision Burgess v Stephen W Huk Professional Corporation, 2010 ABQB 424. The Arbitrator also based her decision on the alternative basis that TELUS could not have accommodated the grievor without undue hardship given unrefuted medical evidence that no accommodation could be offered which would enable the grievor to perform the call center role for which he was hired. Read More...

A Reminder On The Duty To Bargain In Good Faith

In a recent decision, the Supreme Court of Canada reminds employers and unions of the importance of the duty to bargain in good faith. In Canadian Artists' Representation v National Gallery of Canada, the Supreme Court of Canada upheld the Canadian Artists and Producers Professional Relations Tribunal (the Tribunal) finding that a complete change in a position, after years of bargaining, constituted bad faith. Read More...

Supreme Court of Canada finds current RCMP labour relations regime unconstitutional – denies freedom of choice.

"RCMP members are not permitted to unionize or engage in collective bargaining. They have been excluded from the labour relations regime governing the federal public service since collective bargaining was first introduced in the federal public service, first, under the Public Service Staff Relations Act (“PSSRA ”) and now under the Public Service Labour Relations Act (“PSLRA ”). Instead, members of the RCMP are subject to a non-unionized labour relations scheme. At the time of the hearing of this appeal, that scheme was imposed upon them by s. 96 of the Royal Canadian Mounted Police Regulations, 1988 (“RCMP Regulations”), since repealed and replaced by the substantially similar s. 56 of the Royal Canadian Mounted Police Regulations, 2014, SOR/2014-281.

The core component of the current RCMP labour relations regime is the Staff Relations Representative Program (“SRRP”). The SRRP is the primary mechanism through which RCMP members can raise labour relations issues (excluding wages), and the only form of employee representation recognized by management. The SRRP is governed by a National Executive Committee and is staffed by member representatives from various RCMP divisions and regions elected for a two-year term by both regular and civilian members of the RCMP. Two of its representatives act as the formal point of contact with the national management of the RCMP. The aim of the program is that, at each level of the hierarchy, members’ representatives and management consult on human resources initiatives and policies, with the understanding that the final word always rests with management.

A little over fifteen years ago, the Court held that the exclusion of RCMP members from collective bargaining under the PSLRA ’s predecessor legislation did not infringe s. 2 (d) of the Charter : Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989. That case did not involve a direct challenge to the sufficiency of the entire RCMP labour relations scheme. Since that decision was rendered, the RCMP labour relations regime has undergone a number of changes that have increased the independence afforded to the SRRP, but none of those changes has substantially altered its purpose, place or function within the RCMP chain of command.

In May 2006, a constitutional challenge was initiated by two private associations of RCMP members whose goal is to represent RCMP members in Ontario and British Columbia on work‑related issues but who have never been recognized for the purpose of collective bargaining or consultation on workplace issues by RCMP management or the federal government. They sought a declaration that the combined effect of the exclusion of RCMP members from the application of the PSLRA and the imposition of the SRRP as a labour relations regime unjustifiably infringes members’ freedom of association. A judge of the Ontario Superior Court of Justice concluded that s. 96 of the RCMP Regulations, which imposed the SRRP as a labour relations regime, substantially interfered with freedom of association and could not be justified under s. 1 of the Charter . However, the judge also held that the exclusion of RCMP members from the federal public service labour relations regime did not infringe s. 2 (d) of the Charter . The Court of Appeal allowed the Attorney General of Canada’s appeal and held that the current RCMP labour relations scheme does not breach s. 2 (d) of the Charter ."

Mounted Police Association of Ontario v. Canada (Attorney General), the S.C.C. held (6:1) that the appeal is allowed. Read More...

Koskie is Guest Lecturer at Edwards School of Business (U of S)

Koskie gives lectures on “Legal Compliance.”

Six lessons we can learn from geniuses

This article appears in the BBC website.

Whether it’s designing a supersonic vehicle, helping the blind to see or creating space history, what can we learn from the great minds behind these feats?

. . . . Whether it is designing the fastest ever land vehicle, helping the blind to see or creating space history, success relies on raising levels of knowledge to new heights. What can we learn about genius from these minds? Based on the people and the projects outlined in the series, we’ve come up with six lessons.

The secret to a happy life - courtesy of Tolstoy

This article was written by Roman Krznaric and appears in the BBC website.

Tolstoy, who was born in 1828 and died in 1910, was a member of the Russian nobility, from a family that owned an estate and hundreds of serfs. The early life of the young count was raucous, debauched and violent.

"I killed men in wars and challenged men to duels in order to kill them," he wrote. "I lost at cards, consumed the labour of the peasants, sentenced them to punishments, lived loosely, and deceived people…so I lived for ten years."

But he gradually weaned himself off his decadent, racy lifestyle and rejected the received beliefs of his aristocratic background, adopting a radical, unconventional worldview that shocked his peers. So how exactly might his personal journey help us rethink our own philosophies of life?

Koskie becomes pledge participant for Manuary Saskatoon - 2015

Manuary™ is a yearly event raising funds and awareness towards head and neck cancer. Manuary™ participants grow a beard for the last 28 days of January—partaking in the “Beard Growing Challenge” receiving donations in support of early detection and to fund a cure. Can you think of a better excuse to grow a beard?

Help me raise money. Go to: http://raceroster.com/3894/pledge?type=user&id=238701 to pledge. All funds are collected by the Royal University Hospital Foundation and support the Head and Neck Cancer Surgery Program at the Saskatoon Health Region. Read More...

Your New Year's Resolutions Will Fail (Again) - Unless You Do This

This article was written by Stephen J. Meyer and appears in the Forbes website.

New Year’s Day is just ahead and we’ll all set off on the road to hell; you know, the one paved with good intentions.

We’ll set goals and truly believe that we will lose weight, go to the gym, increase our sales, get a new job, spend more time with the kids or something else.

No we won’t. We’ll keep pigging out, avoiding exercise, posting average sales numbers, tolerating our crummy jobs, and opting to work late.

How do I know? Because studies show that good intentions account for only 20% to 30% of variance in behavior.
One recent study even showed that the more positive we are about our good intentions, the worse results we’ll get.

So, the best predictor of what you’ll do in 2015 isn’t what you say you’ll do on January 1.

It’s what you actually did in 2014.