The S.C.C. (9:0) allowed the appeal and remitted to the motion judge to determine the quantum of Rogers’ entitlement to its reasonable costs of compliance with the Norwich order. Read More...
Many employers follow this process without a second thought. However, a recent case from the Ontario Superior Court of Justice should give employers pause as the Court found that an employment agreement that was signed after an offer letter was presented to a prospective employee to be unenforceable. Read More...
In the two years since the decision was released, the trend in the case law suggests that the Court's analysis in Irving Pulp & Paper is not limited to random testing. For example, in Re Mechanical Contractors Association Sarnia v UA Local 663, 2014 ONSC 6909, the Ontario Superior Court of Justice upheld an arbitration award which applied Irving Pulp & Paper to conclude that the employer did not have the right to require pre-employment testing. Read More...
Court Of Appeal Confirms Employer's Financial Circumstances Are Irrelevant In Determining Employees' Right To Common-Law Notice Of Termination
Given your role and experience, you know that employees dismissed without cause are entitled to notice or pay in lieu of notice. You even know that, besides statutory requirements, sometimes severance packages are offered to employees in recognition of additional employee rights to "reasonable notice" at common-law. The amount of the severance packages has always reflected your organization's financial realities. Indeed, you have only previously "let go" staff due to budgetary concerns. As such, the packages have usually been lower than what you understand (from your HR friends) to be what is "market" for bigger or private sector entities where financial concerns had not factored into the equation. Your employees have usually "signed off" without too much fuss.
However, with the recent dismissals, two employees have retained counsel and have asked for additional severance that is far beyond what your severance package has offered. The "ask" seems excessive and does not reflect either the size of your organization or the current financial difficulties confronting it. Surely, counsel for the employee must recognize your organization's current state of affairs and adjust (downward) his/her demand accordingly?
Unfortunately, given a very recent decision from the Ontario Court of Appeal, the answer to this question is "no". Read More...
ON Court Orders Punitive Damages For An Employer's Willful Mischaracterization Of The Basis Of A Termination
BC SC finds off-duty administrative driving prohibition is not just cause for dismissal of firefighter
The S.C.C. held (6:3, with 3 judges writing separate individual concurring reasons) that the appeal is allowed and the motion to stay the action granted. Read More...
After F’s trial, the Law Society brought disciplinary proceedings against G on its own motion, alleging professional misconduct based on his uncivil behaviour during the trial. A three‑member panel of the Law Society Hearing Panel found G guilty of professional misconduct, suspended his licence to practice law for two months and ordered him to pay nearly $247,000 in costs. On appeal by G, the Law Society Appeal Panel also concluded that G was guilty of professional misconduct, but it reduced G’s suspension to one month and decreased the costs award against him to $200,000. In its decision, the Appeal Panel developed a multi‑factorial, context‑specific approach for assessing whether in‑court incivility amounts to professional misconduct. The Divisional Court upheld the Appeal Panel’s decision as reasonable. A majority of the Court of Appeal dismissed G’s further appeal."
The S.C.C. (6:3) allowed the appeal. Read More...
The S.C.C. held (9:0) the appeal is allowed and the originating application for judicial review quashed. Read More...
B.C. Court of Appeal breaks new legal ground in deciding verbal extensions to loan are new contracts
The Workers’ Compensation Board investigated the accident and concluded that West Fraser Mills had failed to ensure that all activities of the forestry operation were planned and conducted in a manner consistent with s. 26.2(1) of the Occupational Health and Safety Regulation, which had been adopted by the Board pursuant to s. 225 of the Act. The Board also imposed an administrative penalty on West Fraser Mills pursuant to s. 196(1) of the Act, which permits the Board to penalize an “employer”. These aspects of its decision were confirmed by the review division. The Workers’ Compensation Appeal Tribunal dismissed West Fraser Mills’ appeal, but reduced the administrative penalty. The British Columbia Supreme Court and the Court of Appeal upheld the Tribunal’s order."
The S.C.C. held (6:3, with 3 separate dissenting reasons) that the appeal is dismissed. Read More...
At trial, it was held that R owed a duty of care to J. The jury found that all parties had been negligent and made the following apportionment of liability: R’s garage, 37 percent liable; C, 23 percent liable; C’s mother, 30 percent liable; and J, 10 percent liable. The Ontario Court of Appeal upheld the trial judge’s finding that R owed a duty of care to J and dismissed the appeal.
The only issue in this appeal is whether R owed J a duty of care."
The S.C.C. held (7:2): appeal allowed, claim against R dismissed. Read More...
The Court held that the appeal is allowed. Section 134(b) of the Liquor Control Act does not infringe s. 121 of the Constitution Act, 1867. Read More...
The S.C.C. (8:1) dismissed the appeal. Read More...
SCC rules human rights legislation covers discriminatory conduct with sufficient nexus to employment.
S‑M filed a complaint before the British Columbia Human Rights Tribunal against S alleging discrimination on the basis of religion, place of origin, and sexual orientation. S applied to dismiss the complaint, arguing that s. 13 of the Human Rights Code had no application because S‑M was not in an employment relationship with S. The Tribunal held that it had jurisdiction to deal with the complaint and, accordingly, it denied S’s application under s. 27(1)(a) of the Code. The British Columbia Supreme Court dismissed S’s application for judicial review, but the Court of Appeal allowed S’s appeal and found that the Tribunal erred in law by concluding that it had jurisdiction over the complaint."
The S.C.C. (6:3) allowed the appeal.
The S.C.C. held (6:1) that the appeal is dismissed and the production order upheld. Read More...
The S.C.C. held (5:2) that the appeal is allowed, the convictions set aside, and acquittals entered.
The collective agreement at issue is silent on standby duty, but it specifies that the employer retains all management rights and powers that have not been modified or limited by the collective agreement. The labour adjudicator concluded that the directive was not a reasonable or fair exercise of management rights and infringed the lawyers’ right to liberty under s. 7 of the Charter. He ordered the employer to immediately cease applying the directive. The Federal Court of Appeal allowed the government’s application for judicial review and set aside the adjudicator’s decision."
The S.C.C. (with two judges dissenting in part) allowed the appeal in part; the adjudicator’s decision that the directive contravened the collective agreement is reasonable and his order that the employer stop applying the directive should be reinstated. Read More...
The S.C.C. held (9:0, with separate partially concurring reasons by two judges) that the appeal is dismissed. Read More...
Many employers require new employees to complete a probationary period to allow the employer to assess the employee's suitability and fit within the organization. In Langford v Carson Air Ltd., the B.C. Supreme Court considered an employer's ability to dismiss an employee without notice during the probationary period, and offered some guidance on the actual purpose of a probationary period. Read More...
While that decision was settled out of court, it did stoke a debate between employees' freedom of expression and employers' rights to control the dissemination of their sensitive information and protect their reputation and brand.
This debate was rekindled recently in the British Columba Supreme Court decision in Kim v International Triathlon Union, 2014 BCSC 2151. Kim, a manager at International Triathlon Union (ITU), was terminated after making several negative blog, Facebook and tweet posts about her employer and her direct supervisor. In one blog, Kim compared her relationship with her supervisor to her alleged mistreatment as a child, saying she felt "like that kid all over again; beaten, discouraged, alone and scared." Read More...
SCC finds standard of review re arbitrator interpreting enabling legislation (whether dispute arbitrable) is reasonableness.
G, a radiologist who is a member of the Fédération, applied to the negotiating parties for a declaration that certain clinics were eligible for the digitization fee. His application was denied. G contested that decision by submitting a dispute to the council of arbitration. The arbitrator, who was appointed to perform the functions of the council of arbitration on his own, found that he lacked jurisdiction to grant G the declaration being sought and that, at any rate, G did not have standing to submit the dispute. The motion judge granted G’s motion for judicial review, finding that the arbitrator’s decision was unreasonable. The majority of the Court of Appeal upheld the motion judge’s decision."
The S.C.C. held (6:1, with joint reasons by Wagner and Gascon JJ., separate Joint Reasons [concurring in the result] by Brown and Rowe JJ., and dissenting reasons by Côté J.) that the appeal is allowed and the award of the council of arbitration restored. Read More...
In September 2007, in response to Wi2Wi’s continuing financial difficulties, the Board decided to issue a private placement of convertible secured notes (“Private Placement”) to its existing common shareholders. Prior to the Private Placement, the Board accelerated the conversion of Class C Convertible Preferred Shares, beneficially held by an investment company for W, into common shares. It did so despite doubts as to whether or not the financial test for C Share conversion had been met. However, A’s Class A and B Convertible Preferred Shares were never converted into common shares, notwithstanding that they met the relevant conversion tests. In Board meetings, W and another director, B, advocated against converting A’s A and B Shares on the basis of A’s conduct and involvement in the parallel share purchase negotiation when he was President. Consequently, A did not participate in the Private Placement and the value of his A and B Shares and the proportion of his common shares in Wi2Wi were substantially reduced. A then filed an application under s. 241 of the Canada Business Corporations Act for oppression against four of Wi2Wi’s directors, including W.
The trial judge granted the application in part. He held W and B solidarily liable for the oppression and ordered them to pay A compensation. The Court of Appeal dismissed W and B’s appeal. It held that the imposition of personal liability was justified and that the pleadings did not preclude it. W now appeals to the Court, challenging the trial judge’s conclusion that it was fit to hold him personally liable for the oppressive conduct."
The S.C.C. (9 : 0) dismissed the appeal. Read More...
The S.C.C. (5:2) dismissed the appeal. Read More...
Despite court orders prohibiting the sale of inventory and the use of E’s intellectual property, D continues to carry on its business from an unknown location, selling its impugned product on its websites to customers all over the world. E approached Google and requested that it de‑index D’s websites. Google refused. E then brought court proceedings, seeking an order requiring Google to do so. Google asked E to obtain a court order prohibiting D from carrying on business on the Internet saying it would comply with such an order by removing specific webpages.
An injunction was issued by the Supreme Court of British Columbia ordering D to cease operating or carrying on business through any website. Between December 2012 and January 2013, Google advised E that it had de‑indexed 345 specific webpages associated with D. It did not, however, de‑index all of D’s websites. De‑indexing webpages but not entire websites proved to be ineffective since D simply moved the objectionable content to new pages within its websites, circumventing the court orders. Moreover, Google had limited the de‑indexing to searches conducted on google.ca. E therefore obtained an interlocutory injunction to enjoin Google from displaying any part of D’s websites on any of its search results worldwide. The Court of Appeal for British Columbia dismissed Google’s appeal."
The S.C.C. (7:2) dismissed the appeal and upheld the worldwide interlocutory injunction against Google. Read More...
Fishing for Notice: British Columbia Supreme Court addresses inducement and contingency factors in wrongful dismissal suits
S used cocaine on his days off. He did not tell his employer that he was using drugs. When his loader was involved in an accident, he tested positive for drugs and later said that he thought he was addicted to cocaine. His employer terminated his employment. S, through his union representative, argues that he was terminated for addiction and that this constitutes discrimination under s. 7 of the Alberta Human Rights, Citizenship and Multiculturalism Act.
The Alberta Human Rights Tribunal held that S was terminated for breaching the policy, not because of his addiction. Its decision was affirmed by the Alberta Court of Queen’s Bench and by the Alberta Court of Appeal."
The S.C.C. held (8:1) that the appeal is dismissed. Read More...
In another positive development for employers, a recent case out of British Columbia may offer a new wrinkle: where an employee takes him- or herself out of the job market to switch careers, he or she may have failed to mitigate. Read More...
Under the stricter BC approach, which requires that the employee demonstrate a serious interference with a substantial family obligation, it is a challenge for employees to claim a right to be accommodated. While there is a growing number of court cases outside BC that have adopted a lower test for triggering the duty to accommodate, some decisions have required that employees demonstrate that they considered reasonable efforts to self-accommodate their childcare obligations before they can trigger an obligation on the employer to reasonably accommodate their obligations. Under this approach, it was appropriate for employers to ask employees who are seeking accommodation about other options for childcare before exploring whether changes at work should be considered.
The Alberta Court of Queen's Bench has now waded in with a decision that could have consequences on the employer's duty to accommodate: SMS Equipment Inc v Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162. Read More...
In the decision of Bolibruck v. Niagara Health System, 2015 ONSC 1595 the Plaintiff claimed she had been constructively dismissed after her role as a Health Program Director ("HPD") was adjusted to include some non-clinical work and a new reporting structure. In 2010 the plaintiff, after being in a HPD role at the Niagara Falls hospital, was moved to the new St. Catherine's General Hospital. Despite maintaining the HPD title, the plaintiff was given new and high profile work relating to transition work needed for the new hospital. Ms. Bolibruck was ultimately unhappy with the changes to her role and viewed the modification as a demotion. Furthermore, she claimed that the HR supervisor had acted in a verbally abusive manner towards her and she was moved to a smaller office. Read More...
Employers can be held liable for unfortunate acts which occur at these social events, even if the acts were completely unexpected, unapproved or arguably beyond the employer's ability to prevent. A case in point is K.L. v. Calypso Water Park Inc., 2015 ONSC 2417 (CanLII). Read More...
Notwithstanding this high burden, a recent decision by the Supreme Court of British Columbia is a rare example where an employer has succeeded in demonstrating a failure to mitigate, resulting in a reduced reasonable notice period. Read More...
Court Of Appeal Upholds Decision Granting Employee Notice Period Based On Employment With Predecessors
BC Court Of Appeal Rules In Favour Of The Provincial Government On Regulating Class Sizes And Composition
The S.C.C. held (with one judge writing majority reasons, with which one other judge wrote separate reasons concurring in the result, and three other judges writing joint dissenting reasons which whom one judge concurred), that the appeal is dismissed. Read More...
SK court finds that deciding against arbitral consensus without adequate explanation is factor that spoke against reasonableness.
Probationary periods are a useful tool for employers assessing the suitability of new hires.
Generally, a valid agreement setting out a probationary period allows the employer to dismiss an employee during the probationary period without meeting the high threshold of just cause. The decision to terminate a probationary employee will typically be upheld if the decision was not arbitrary, discriminatory or done in bad faith (subject to the terms of any applicable collective agreement or possible human rights issues).
Although it is easier to terminate the employment of a probationary employee, a probationary period can only be relied on if it is properly set out within the initial employment agreement. Read More...
Supreme Court Of Canada Finds Constructive Dismissal Where Administrative Suspension Is Not Justified And Reasonable
Potter was the executive director of the New Brunswick Legal Aid Services Commission (the "Commission"). Approximately mid-way through the seven year contract term, in the spring of 2009, Potter and the Board of Directors (the "Board") began to negotiate a buyout of the contract. In October 2009, before an agreement was reached, Potter's physician advised him to take time off work for medical reasons for a period of one month. This medical leave was extended until January 4, 2010 and later to January 18, 2010. The Board unilaterally decided on January 5, 2010, without informing Potter, that if a buyout agreement was not reached by January 11, 2010, it would request that the Lieutenant-Governor in Council revoke Potter's appointment pursuant to s. 39(4) of the Legal Aid Act, RSNB 1973 c I-13 (the "Act").
On January 11, 2010, the Board requested the dismissal and forwarded a letter to Potter advising him not to return to work until further notice. A replacement was designated, but Potter's wages continued to be paid. Despite his request, Potter was not provided with reasons for his suspension. On March 9, 2010, Potter commenced a legal action claiming constructive dismissal.
The trial judge found that the Commission had the statutory authority to place Potter on an administrative suspension with pay and that this was not a constructive dismissal despite its indefinite term. The Court of Appeal upheld that decision.
On appeal, the Supreme Court of Canada (the "Court") found that the Commission had constructively dismissed Potter. Drawing largely on Farber v. Royal Trust Co.,  1 S.C.R. 846, the Supreme Court of Canada discussed the two forms of constructive dismissal: Read More...
Constructive dismissal arises when an employee who has not been expressly terminated claims the employer's actions amount to a repudiation of the employee's employment contract. These cases result in a claim for pay-in-lieu of termination notice, and sometimes, depending on the severity of the employer's actions, aggravated damages.
In a non-unionized employment context, employee suspensions often create uncertainty as to whether the employer has authority to suspend the employee or whether the suspension amounts to constructive dismissal.
While the Supreme Court of Canada's (the SCC's) latest decision and comments do not answer all questions or provide any new rights with regard to constructive dismissal and employee suspensions, they provide a new analytical framework and some clarity on these topics, which is important because the stakes are often life-altering when an employee claims constructive dismissal—a big pay out or a deemed voluntary resignation. Read More...
Supreme Court of Canada holds vigorous outspoken good faith criticism of courts and decisions not contempt.
The S.C.C. held (with joint reasons for judgment by Abella and Gascon JJ., with whom three judges concurred; concurring reasons by Moldaver J.; dissenting reasons by Wagner J. (with whom two other judges concurred) that the appeal is dismissed.
SK Court of Appeal rules Labour Relations Board breached procedural fairness by consulting a website to support its conclusion without asking the parties for further submissions
Supreme Court of Canada holds trial judges can only depart from plea bargains/joint submissions when they would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.
The S.C.C. (7:0) allowed the appeal, varied the sentence to bring it into conformity with the joint submission. Read More...
The recent Ontario Court of Appeal in Arnone v. Best Theratronics Ltd., 2015 ONCA 63, illustrates how the litigation process can hammer employers who do not make reasonable offers when terminating a long-service employee. Hard-ball litigation tactics can end up costing the employer way more than a reasonable settlement proposal. Read More...
"Too Much" Is Never Enough When Dignity Injured: B.C. Human Rights Tribunal's Ground-Breaking Award Restored By Court Of Appeal
Cumulative Misconduct Amounts To Just Cause For Dismissal: Chopra v. Easy Plastic Containers Limited
The S.C.C. held (3 judges writing joint reasons, in which 2 judges concurred; 1 judge writing reasons concurring in the result, in which 3 other judges concurred), that the appeal is allowed, the convictions set aside and a stay of proceedings entered. Read More...
Lying About Absence Gives Just Cause For Termination, Says Alberta Court Of Appeal Overturning Arbitrator
The employee in question was terminated for cause and without notice after a workplace incident in which the employee punched another employee in the face. The incident arose when an employee bumped into the plaintiff. Feeling harassed, the plaintiff demanded an apology, and when he did not get one punched the other employee in the face. The victim of the punch was suspended for 1 week for his role in the incident, most importantly his failure to apologize or simply walk away from the plaintiff, which resulted in the escalation of the altercation. The plaintiff was terminated for cause. Read More...
Supreme Court of Canada decides Métis and non‑status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867
The trial judge’s conclusion was that “Indians” under s. 91(24) is a broad term referring to all Indigenous peoples in Canada. He declined, however, to grant the second and third declarations. The Federal Court of Appeal accepted that “Indians” in s. 91(24) included all Indigenous peoples generally. It upheld the first declaration, but narrowed its scope to exclude non‑status Indians and include only those Métis who satisfied the three criteria from R. v. Powley,  2 S.C.R. 207. It also declined to grant the second and third declarations. The appellants sought to restore the first declaration as granted by the trial judge, and asked that the second and third declarations be granted. The Crown cross‑appealed, arguing that none of the declarations should be granted. It conceded that non‑status Indians are “Indians” under s. 91(24)."
The S.C.C. (9:0) allowed the appeal in part. Read More...
The Syndicat de l’enseignement de la région de Laval (“Union”) filed a grievance with respect to B’s dismissal, alleging, inter alia, that the procedure for dismissal provided for in the collective agreement had not been followed. The collective agreement stipulated that the employment relationship could be terminated “only after thorough deliberations at a meeting of the board’s council of commissioners or executive committee called for that purpose”. In the course of the inquiry into the grievance, the Union summoned as its first witnesses three members of the executive committee who had been present for the in camera deliberations of June 2009. The Board objected to having them testify, arguing that the motives of individual members of the committee were irrelevant and that deliberative secrecy shielded the members from being examined on what had been said in camera. The Board also submitted that the principle that motives are “unknowable” that had been stated in Consortium Developments (Clearwater) Ltd. v. Sarnia (City),  3 S.C.R. 3, precludes the examination of the members of any collective body on the motives that underlie a decision made by way of a written resolution. The arbitrator dismissed these objections and allowed the examination of the executive committee’s members.
The Superior Court, hearing a motion for judicial review of the arbitrator’s interlocutory decision, applied the standard of correctness and granted the motion, barring any testimony by members of the executive committee except as regards the formal process that led to their decision that was announced at a public meeting. The majority of the Court of Appeal, also applying the standard of correctness, restored the arbitrator’s decision and allowed the examination of the executive committee’s members, subject to the usual limits of what is relevant."
The S.C.C.held (unanimously, with Justice Côté writing partially concurring reasons, with Justices Wagner and Brown concurring) that the appeal is dismissed. Read More...
The latest news comes from an Ontario Superior Court of Justice decision, which upheld an arbitrator's decision to invalidate an employer association's pre-access alcohol and drug testing policy. Read More...
A recent decision of the Ontario Superior Court of Justice again raises the question of whether employers can effectively balance their duty to provide a safe workplace free from violence with the common law principles of proportionate discipline. In the Nov. 17, 2014 decision in Phanlouvong v. Northfield Metal Products (1994) Ltd. et al., 2014 ONSC 6585 (CanLII), the Trial Judge found that, although the plaintiff punched a co-worker in the face, his conduct did not amount to just cause for dismissal. Read More...
All For One, One For All? Common Employer Doctrine Revisited By The Ontario Superior Court Of Justice
Dismissed employee was entitled to full contractual severance notwithstanding her failure to mitigate
The Court of Appeal, in its decision Maxwell v. British Columbia, confirmed the answer is yes: a dismissed employee was found to be entitled to the full amount of contractual severance and did not have to mitigate her damages by accepting an offer of new employment. Read More...
In a previous post, we discussed the case of Vadim Kazenelson, the Project Manager convicted on five counts of criminal negligence under s. 217.1 and 220 of the Criminal Code when five workers employed by Metron Construction Inc. fell more than 100 feet to the ground after the swing stage they were working on suddenly collapsed. Four of the workers died and one was seriously injured because they were not attached to a lifeline. The Project Manager was aware that there were an insufficient number of lifelines on the swing stage. On January 11, 2016, the Project Manager was sentenced to 3½ years imprisonment on each of the five counts to be served concurrently. Read More...
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.
In 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...
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.Read More...
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. 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)
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. Read More...
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. Read More...
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. Read More...
Supreme Court of Canada rules "mercy" power doesn't expose Crown to liability, unless there is bad faith
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. Read More...
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. Read More...
Executive Loses Incentive Comp Upon Resignation – Contract Enforceable, Court Finds No Restraint On Trade
"And One More Thing…": Court Finds That Adding To A Person’s Job Duties May Be A Constructive Dismissal
In 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 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...
Supreme Court of Canada finds damages where Crown intentionally withholds material information from defence.
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,  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."
In 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...
In 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
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."
In 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...
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. Read More...
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. Read More...
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. Read More...
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."
In 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...
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...
Ontario Court Of Appeal Upholds Finding Of Breach Of Fiduciary Duty Respecting Executive Compensation
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. Read More...
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. Read More...
Supreme Court of Canada finds current RCMP labour relations regime unconstitutional – denies freedom of choice.
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),  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 ."
In Mounted Police Association of Ontario v. Canada (Attorney General), the S.C.C. held (6:1) that the appeal is allowed. Read More...
The European Court of Justice was asked to consider the case of a male childminder in Denmark who says he was sacked for being too fat.
The court said that if obesity could hinder "full and effective participation" at work then it could count as a disability.
The ruling is binding across the EU. Read More...
Today’s ruling is highly important, as it may bring consistency to a series of inconsistent Canadian court rulings on this matter. The fact is, the issue is complex and also includes privacy issues, as smartphones are able to carry vast amounts of personal information.
As the CBC report highlights, it wasn’t an easy decision: the Supreme Court of Canada split 4-3, with the idea of a “search done in good faith” overtaking privacy. The majority also found that “passwords protecting phones don’t carry much weight in assessing that person’s expectations of privacy.”
An example of a “search done in good faith”: in the case of Kevin Fearon, who was convicted of armed robbery, law enforcement officials found evidence by doing a search on his phone. He ultimately challenged the search of his phone, saying his rights were violated because the police did not take adequate notes on the action.
Today, however, the country’s top court ruled that searches should be done right after the lawful arrest in order to serve the purposes of the ruling. The police must take detailed notes of what they examined and how they did it, and they must have a “valid law enforcement purpose,” such as protecting the police, the accused, or the public; preserving evidence; or discovering evidence, like locating additional suspects. Read More...
But will you win? In its recent decision in Canada (Attorney General) v. Johnstone, the Federal Court of Appeal made its decision based on the answers to four questions: Read More...
In 2009, the Court dismissed a pair of appeals – Plourde 2009 SCC 54 and Desbiens 2009 SCC 55 – in which former employees sought remedies after the store closure. On June 27, 2014, the Court released the decision of a seven-member panel's consideration of a grievance claiming that Wal-Mart's closure of the store violated the "freeze" provisions of Quebec's Labour Code. Similar to provisions elsewhere, the s. 59 "freeze" restricts the employer's ability to "change the conditions of employment of his employees" during certain phases of collective bargaining. In a 5-2 ruling, the Court upheld an arbitrator's award which had found that the closure of the store constituted an impermissible change in the employees' employment conditions in the absence of evidence that the closure was made in the ordinary course of the company's business. Read More...
The Arbitrator reinstated the Grievor and substituted a one-month suspension for termination. According to the Arbitrator, TELUS had no direct evidence that the Grievor was not sick as he claimed and that his explanation regarding his absence was "plausible".
TELUS sought judicial review of the Arbitrator's award. It argued that the Arbitrator had failed to consider the overall weight of its circumstantial evidence, which pointed, irrefutably to the fact that the Grievor had lied about being sick. It also argued that the Arbitrator's award suggested an employee could be too sick to work yet sufficiently well to play baseball, and unreasonable interpretation of the sick leave provisions contained in the party's collective agreement. TELUS argued that termination was the only reasonable outcome on the evidence and, as such, the Arbitrator's award should be quashed without remitting the matter for rehearing.
The Alberta Court of Appeal determined that the Arbitrator had acted unreasonably in requiring TELUS to lead direct evidence establishing that the Grievor was not sick, an impossible standard. The Arbitrator was required to weigh the circumstantial evidence against the Grievor's testimony in order to determine whether the Grievor had lied about being sick. As the overwhelming weight of the evidence pointed to the fact that the Grievor had lied about being sick, the Arbitrator's conclusion otherwise was unreasonable. Having quashed the award, the Court declined to remit the matter back to Arbitrator for hearing. The only reasonable inference to be drawn on the evidence was that the Grievor had lied about being sick, then repeatedly lied to his employer after the fact, and at Arbitration. The Court concluded that termination was the only reasonable outcome on the evidence and that remitting the matter to arbitration would be pointless. Read More...
"C markets education savings plans to investors through retail dealers, known as enrollment directors, such as B. An enrollment director’s agreement that took effect in 1998 governed the relationship between C and B. The term of the contract was three years. The applicable provision provided that the contract would automatically renew at the end of the three year term unless one of the parties gave six months’ written notice to the contrary.
H was another enrollment director and was a competitor of B. H wanted to capture B’s lucrative niche market and previously approached B to propose a merger of their agencies on numerous occasions. He also actively encouraged C to force the merger. B had refused to participate in such a merger. C appointed H as the provincial trading officer (“PTO”) to review its enrollment directors for compliance with securities laws after the Alberta Securities Commission raised concerns about compliance issues among C’s enrollment directors. The role required H to conduct audits of C’s enrollment directors. B objected to having H, a competitor, review his confidential business records.
During C’s discussions with the Commission about compliance, it was clear that C was considering a restructuring of its agencies in Alberta that involved B. In June 2000, C outlined its plans to the Commission and they included B working for H’s agency. None of this was known by B. C repeatedly misled B by telling him that H, as PTO, was under an obligation to treat the information confidentially. It also responded equivocally when B asked in August 2000 whether the merger was a “done deal”. When B continued to refuse to allow H to audit his records, C threatened to terminate the 1998 Agreement and in May 2001 gave notice of non‑renewal under the Agreement. At the expiry of the contract term, B lost the value in his business in his assembled workforce. The majority of his sales agents were successfully solicited by H’s agency.
B sued C and H. The trial judge found C was in breach of the implied term of good faith, H had intentionally induced breach of contract, and both C and H were liable for civil conspiracy. The Court of Appeal allowed the appeal and dismissed B’s lawsuit."
The S.C.C. held (7:0) that the appeal with respect to C is allowed; the appeal with respect to H is dismissed; and the trial judge’s assessment of damages varied to $87,000 plus interest. Read More...
In a recent decision, Rhebergen v Creston Veterinary Clinic Ltd, 2014 BCCA 97, the British Columbia Court of Appeal upheld as enforceable a novel restrictive covenant requiring a former employee to pay a certain amount in the event they began to compete with their former employer.
In what may come to represent the beginning of a significant shift in the drafting of restrictive covenants, Rhebergen suggests that the Court will be more likely to enforce a restrictive covenant that merely inhibits rather than prohibits competition. Read More...
In short, McCormick, a partner at a large law firm, claimed that the mandatory retirement provision in the partnership agreement was discriminatory and contravened the Human Rights Code. The case was eventually heard by the British Columbia Court of Appeal, which concluded that McCormick could not be both a partner and an employee of the partnership. The Supreme Court of Canada upheld the result in the Court of Appeal, but disagreed with the lower court's following conclusion:
There can be no doubt that in Canadian law, a partnership is not a separate entity from its partners, and a partner cannot be an employee of, or employed by, a partnership of which he is a member.
The Court held that the Court of Appeal focused too much on the legal form of a partnership, rather than its substance. Rather, in determining whether an employment relationship exists, "control and dependency define the essence of an employment relationship for purposes of human rights legislation". Read More...
Supreme Court of Canada rules Mr. Big confessions are presumptively inadmissible, but may be admitted if new evidence rule is satisfied.
The operation culminated with a meeting akin to a job interview between H and “Mr. Big”, the man purportedly at the helm of the criminal organization. During their meeting, Mr. Big interrogated H about the death of his daughters, seeking a confession from him. After initially denying responsibility, H confessed to drowning his daughters. Two days later, H went to the scene of the drowning with an undercover officer and explained how he had pushed his daughters into the water. He was arrested shortly thereafter.
At trial, H’s confessions were admitted into evidence. The trial judge denied H’s request for permission to testify with the public excluded from the courtroom. A majority of the Court of Appeal allowed H’s appeal and ordered a new trial. The Court of Appeal unanimously held that the trial judge erred in refusing to allow H to testify outside the presence of the public. A majority of the court also concluded that the Mr. Big operation had breached H’s right to silence under s. 7 of the Charter. The majority excluded two of H’s confessions, the one to Mr. Big and the one to the undercover officer at the scene of the drowning. However, the majority concluded that H’s bald confession was admissible and ordered a new trial. "
The S.C.C. held (5:2) that the appeal is dismissed. Read More...
- the level of control exercised by the businesses over the worker’s activities;
- whether the worker performs services exclusively or almost exclusively for one business and is “economically dependent”;
- whether the worker provides his/her own equipment, expertise and helpers;
- the level of integration between the worker’s services and the business;
- the degree of financial risk to the worker; and
- the worker’s opportunity for profit.
Essentially, our courts look at the day-to-day control, integration and supervision over the worker’s activities and the differences or distinctions between the worker and the persons clearly identified as employees of the business.
One of the obvious reasons why our courts have not been prepared to give paramountcy to the parties’ stated intention or subjective belief of the type of contractual relationship they have or want to have is because the classification, as contractor or employee, has other implications with respect to taxation and social policies such as those under the Canada Pension Plan, Workers’ Compensation, Labour Relations and Employment Insurance legislation. In this context, an objective reality check makes sense and is an important part of our judicial system, protecting both individuals and our tax base.
That said, for years, employers have also been frustrated by employees who choose to consider themselves as independent contractors and take full advantage of that relationship until it no longer suits their purpose. This usually happens at the time of the termination of the independent contractor’s relationship with the business. At that time, the individual has a sudden reversal of opinion that the relationship was never really a true independent contractor relationship but rather was throughout an employment relationship with the concomitant termination benefits afforded to employees.
Recently, however, the Federal Court, in a decision entitled Rennie v. VIH Helicopters Ltd. has, in certain circumstances, changed the question which must be asked and answered. Rather than asking if the person is in fact an employee, the proper question may be instead, is it fair or appropriate to allow a person to assert retroactively that he/she was an employee? Read More...
The S.C.C. (unanimously) held the appeal is allowed, the order for a new trial is set aside, and the conviction is restored with the sentence appeal remitted to the Court of Appeal. Read More...
In Rhebergen v. Creston Veterinary Clinic Ltd., the plaintiff, a newly qualified veterinarian, signed an employment contract in which she agreed to pay a certain amount of money to the defendant if she set up a veterinary practice in the same town as the defendant, or within 25 miles of the defendant's premises, in the first 3 years after the termination of the contract. If she set up a practice within 1 year, she had to pay the defendant $150,000; if within 2 years, $120,000; and if within 3 years, $90,000. The figures were not without foundation; they had been calculated with consideration to the investment made in employing the plaintiff (including mentoring, training and equipment), as well as the impact her competition with the defendant would have on the defendant. Read More...
The unanimous 8-0 decision released Thursday resolves many important legal questions, such as how to determine aboriginal title and whether provincial laws apply to those lands. It will apply wherever there are outstanding land claims.
The decision, written by Chief Justice Beverley McLachlin, also has implications for future economic or resource development on First Nations lands.
'It only took 150 years, but we look forward to a much brighter future. This without question will establish a solid platform for genuine reconciliation to take place in British Columbia.'- Grand Chief Stewart Phillip, president of Union of B.C. Indian Chiefs
The case focused on the Tsilhqot'in First Nation's claim to aboriginal title over 440,000 hectares of land to the south and west of Williams Lake in the B.C. Interior.
A B.C. Court of Appeal ruling in 2012 gave the Tsilhqot'in sweeping rights to hunt, trap and trade in its traditional territory. But the Court of Appeal agreed with the federal and provincial governments that the Tsilhqot'in must identify specific sites where its people once lived, rather than assert a claim over a broad area.
The Tsilhqot'in, a collection of six aboriginal bands that include about 3,000 people, argued the court's decision failed to recognize the way its people had lived for centuries.
The court heard the Tsilhqot'in people were "semi-nomadic," with few permanent encampments, even though they saw the area as their own and protected it from outsiders.
Establishes meaning of title
In its decision, Canada's top court agreed that a semi-nomadic tribe can claim land title even if it uses it only some of the time, and set out a three-point test to determine land titles, considering:
• Continuity of habitation on the land.
• Exclusivity in area.
The court also established what title means, including the right to the benefits associated with the land, and the right to use it, enjoy it and profit from it.
However, the court declared that title is not absolute, meaning economic development can still proceed on land where title is established as long as one of two conditions is met:
• Economic development on land where title is established has the consent of the First Nation.
• Failing that, the government must make the case that development is pressing and substantial, and meet its fiduciary duty to the aboriginal group.
In other words, the decision places a greater burden on governments to justify economic development on aboriginal land.
The court also makes it clear that provincial law still applies to land over which aboriginal title has been declared, subject to constitutional limits.
Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, was with Chief Roger William, who brought the case, and other Tsilhqot'in chiefs when they learned of the top court's decision, and said the mood in the room was "absolutely electrifying."
"We all heard the decision at the same moment, and the room just erupted in cheers and tears. Everybody is absolutely jubilant. It's very emotional," Phillip told CBC News.
"It only took 150 years, but we look forward to a much brighter future. This without question will establish a solid platform for genuine reconciliation to take place in British Columbia.
"I didn't think it would be so definitive," Phillip added. "I was actually prepared for something much less. It's not very often that I'm without words, and I'm quite overwhelmed at the moment."
There are two different ways in which employees have argued that they have been argued against due to family status. One is when they are treated differently due to the identity of specific family members. For example, in B v Ontario, the applicant was fired because his daughter had accused the applicant's brother and President of the employer of molesting her. The Supreme Court accepted that the applicant was fired because of his biological relationship to his daughter, which was discriminatory. There does not appear to be much controversy surrounding this type of complaint.
However, recent cases have largely dealt with employee requests for accommodation due to their family status. These complaints are similar in structure to requests for accommodation by disabled employees. These family status complaints argue that by complicating employees' abilities to fulfil their obligations to their families, employer policies are discriminating against workers with families.
Such accommodation poses serious challenges to employers attempting to efficiently schedule their workforces. It adds another factor that must be taken into account in organizing the workforce. However, unlike what is often the case in disability-related accommodations, in many workplaces the majority of employees may be subject to these familial pressures.
Until recently, few reported decisions dealt with such demands for accommodation. Beginning approximately ten years ago, the volume of cases dealing with this type of complaint has increased. Unfortunately, courts have not reached a consensus on how to deal with them. Three tests have emerged, with their roots in cases in British Columbia, Ontario and the Federal jurisdiction. Each test has used different and vague definitions for what exactly are employees' rights and employers' obligations when it comes to family status. Read More...
In Chevalier v. Active Tire and Auto Centre Inc., the Ontario Court of Appeal recently considered an appeal from a trial decision wherein the trial judge found that the terminated employee had failed to mitigate his damages when he declined to return to work for his former employer and, therefore, he was not entitled to damages. Read More...
A recent decision from the Florida Third District Court of Appeal provides some valuable guidance for Canadian employers wishing to keep settlement agreements strictly confidential. Patrick Snay (Snay) had settled an age discrimination lawsuit with his former employer Gulliver Preparatory School (the School). The School agreed to pay him $80,000, but the settlement agreement contained the following confidentiality clause:
...Confidentiality...[T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement...A breach...will result in disgorgement of the Plaintiffs portion of the settlement Payments.
Snay was probably happy with the settlement and thinking about ways to spend the $80,000. Perhaps some of it was even earmarked for his daughter's college fund. Unfortunately his daughter had other plans. Before he received the $80,000, and in breach of the confidentiality clause, Snay told his daughter about the settlement. She then immediately posted to her roughly 1,200 Facebook friends:
Mama and Papa Snay won the case against Gulliver...Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.
The School found out about the Facebook boast and was obviously displeased. It refused to pay Snay any of the $80,000. The Florida Appeals Court ruled that it was justified in doing so, stating:
Snay violated the agreement by doing exactly what he had promised not to...His daughter then did precisely what the confidentiality agreement was designed to prevent.Read More...
1. In relation to each of the following proposed limits to the tenure of Senators, is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 of the Constitution Act,1982, to make amendments to section 29 of the Constitution Act, 1867 providing for
(a) a fixed term of nine years for Senators, as set out in clause 5 of Bill C-7, the Senate Reform Act;
(b) a fixed term of ten years or more for Senators;
(c) a fixed term of eight years or less for Senators;
(d) a fixed term of the life of two or three Parliaments for Senators;
(e) a renewable term for Senators, as set out in clause 2 of Bill S-4, Constitution Act, 2006 (Senate tenure);
(f) limits to the terms for Senators appointed after October 14, 2008 as set out in subclause 4(1) of Bill C-7, the Senate Reform Act; and
(g) retrospective limits to the terms for Senators appointed before October 14, 2008?
2. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of theConstitution Act, 1867, or section 44 of the Constitution Act, 1982, to enact legislation that provides a means of consulting the population of each province and territory as to its preferences for potential nominees for appointment to the Senate pursuant to a national process as was set out in Bill C-20, the Senate Appointment Consultations Act?
3. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of theConstitution Act, 1867, or section 44 of the Constitution Act, 1982, to establish a framework setting out a basis for provincial and territorial legislatures to enact legislation to consult their population as to their preferences for potential nominees for appointment to the Senate as set out in the schedule to Bill C-7, the Senate Reform Act?
4. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 of theConstitution Act, 1982, to repeal subsections 23(3) and (4) of the Constitution Act, 1867 regarding property qualifications for Senators?
5. Can an amendment to the Constitution of Canada to abolish the Senate be accomplished by the general amending procedure set out in section 38 of the Constitution Act, 1982, by one of the following methods:
(a) by inserting a separate provision stating that the Senate is to be abolished as of a certain date, as an amendment to the Constitution Act, 1867 or as a separate provision that is outside of theConstitution Acts, 1867 to 1982 but that is still part of the Constitution of Canada;
(b) by amending or repealing some or all of the references to the Senate in the Constitution of Canada; or
(c) by abolishing the powers of the Senate and eliminating the representation of provinces pursuant to paragraphs 42(1)(b) and (c) of the Constitution Act, 1982?
6. If the general amending procedure set out in section 38 of the Constitution Act, 1982 is not sufficient to abolish the Senate, does the unanimous consent procedure set out in section 41 of theConstitution Act, 1982 apply? Read More...
Correctness Is "fashionable," but In a bad way: Supreme Court of Canada broadens scope for administrative tribunals.
Supreme Court of Canada rules there is no breach of statutory privacy to post photos of workers during strikes.
The Ontario Superior Court of Justice granted the application, declaring, without suspension, that each of the impugned Criminal Code provisions violated the Charter and could not be saved by s. 1. The Ontario Court of Appeal agreed s. 210 was unconstitutional and struck the word “prostitution” from the definition of “common bawdy‑house” as it applies to s. 210, however it suspended the declaration of invalidity for 12 months. The court declared that s. 212(1)(j) was an unjustifiable violation of s. 7, ordering the reading in of words to clarify that the prohibition on living on the avails of prostitution applies only to those who do so “in circumstances of exploitation”. It further held the communicating prohibition under s. 213(1)(c) did not violate either s. 2(b) or s. 7.
The Attorneys General appealed from the declaration that ss. 210 and 212(1)(j) of the Code are unconstitutional. B, L and S cross‑appeal on the constitutionality of s. 213(1)(c) and in respect of the s. 210 remedy. The Supreme Court of Canada (“SCC”) held the appeals should be dismissed and the cross‑appeal allowed. Sections 210, 212(1)(j) and 213(1)(c) of the Criminal Code are declared to be inconsistent with the Charter. The declaration of invalidity should be suspended for one year. Read More...
In this case, the accused, a non-citizen, was convicted of two drug-related offences. In light of a joint submission by the Crown and defence counsel, the sentencing judge imposed a sentence of two years’ imprisonment. Under the Immigration and Refugee Protection Act, a non-citizen sentenced to a term of imprisonment of at least two years loses the right to appeal a removal order against him or her. In the present case, neither party had raised the issue of the collateral consequences of a two year sentence on the accused’s immigration status before the sentencing judge. The SCC reduced the sentence of imprisonment reduced to two years less a day. Read More...
- As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.
- Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.
Judge rules employee's statement, "I'm out of here," was not sufficient basis for employer to conclude that he had resigned.
|The Saskatchewan Court of Appeal has ruled that possible legislative amendments that would allow marriage commissioners to refuse to perform same-sex marriage ceremonies were unconstitutional.|