Ted's Blog

Resignations: Will I Stay Or Will I Go?

When it comes to resignations, the facts matter and the decision of Nagpal v. IBM certainly proves it. In another notable case on resignations in Ontario, Schabas J. had to determine whether an employee's failure to return to the workplace after his disability benefits were denied amounted to voluntary resignation or abandonment of employment.

This case also deals with some interesting issues of when policies can be incorporated by reference but that is a topic for another day.

Ted volunteers with Secret Santa.

Ted served as a volunteer

The Fixed-Term Employment Contract: It's Your Funeral

fixed term contract
Ontario's Superior Court of Justice has issued a stark reminder of the perils of fixed-term employment contracts. In McGuinty v. 1845035 Ontario Inc. (McGuinty Funeral Home),1 released in July of this year, the Court awarded nine years worth of wrongful dismissal damages to an employee whose fixed-term contract was terminated early by the employer. Read More...

Risky Business: Alleging Cause If You Don't Have It

you are fired
So you have a problem employee that you want to terminate. Your employment lawyer reminds you that you would owe nothing to the employee in a "for cause" termination, but that it's unlikely that you could prove cause in the circumstances. She then goes on to assess your common law reasonable notice obligation in a "without cause" termination as being somewhere in the 10 to 12 month range.

You decide to take the risk and terminate the employee alleging cause. You feel that the employee is undeserving of a large termination payout and, in any event, hope that alleging cause will put pressure on the employee to go away or, at the very least, accept something far less than if terminated without cause.

While this strategy may work some of the time, it can also backfire. Below are two case summaries of recent decisions where employers learned the hard way to exercise caution when alleging cause.

Ted volunteers with Secret Santa.

Ted served as a volunteer

Bonus Entitlement On The Basis Of Reasonable Expectation

A discretionary bonus may not be discretionary upon termination of employment. If a bonus has become an integral part of an employee's compensation, an employee may be entitled to that bonus during a reasonable notice period. In making this determination, courts will consider factors such as whether a bonus is received each year, whether bonuses were historically awarded, whether the employer had ever exercised discretion against the employee and whether the bonus constituted a significant component of the employee's overall compensation.

In a recent decision, the BC Supreme Court found that where, over the course of employment, a discretionary bonus has been awarded in a way that leads the employee to believe that the discretion will be exercised in the employee's favour, an employer's refusal to pay the bonus in a manner that is not fair or transparent can lead to a finding that the employer has breached the employee's contractual rights.

Can My Employer Dismiss Me Due To My Unseen Disability?

Employers should investigate further before immediately dismissing employees for violating workplace drug and alcohol policies. An employee's diagnosis of substance dependence would be considered a disability, which is a protected ground under the Canadian Human Rights Act (CHRA) for federally regulated employers. Read More...

Duck, Employee Or Independent Contractor: However It Is Described, It Is The Nature Of The Relationship And Not The Title That Matters

Ind Ker
The Ontario Superior Court’s decision in Marschall v Marel Contractors, 2019 ONSC 4692 serves as an important reminder for employers that simply calling employees independent contractors does not automatically make them independent contractors. Read More...

What Can You Ask For In A Medical Certificate?

Dr note
Many employers have often had the experience of receiving a vague doctor's note from an employee that reads something along the lines of, "this individual is unable to work for X weeks". Employers are left wondering: Why? Can I be sure this is legitimate? Is the employee likely to return after X weeks? Will the employee need anything when she/he returns?

What information is an employer entitled to? How far can an employer push back on a vague note such as this?

Who Pays For Dinner?

dinner bill
The following is a reprint of an article by Jeremy Anderberg that appears in the Art of Manliness web site.

You’ve reached the end of a delicious meal shared with a group of close companions. The waiter glides by and drops the bill for dinner right in the middle of the table. At that moment, everyone glances around, and makes gestures towards reaching for the check. Who should pay? You? Is someone else responsible?

Going out to eat, whether for simple socializing or to celebrate a special occasion, can be an enjoyable experience and tradition. But there’s often a tad of anxiety built in when people in a party aren’t sure who should be paying for what.

In truth, there are no absolute hard and fast rules on this question; much depends on the dynamics of the group breaking bread, the occasion that’s brought you together, and subtle factors of status and relationship. There are good etiquette guidelines to follow to help inform your decisions, however, and we’ve laid them out below in regards to various situations.

There Is Such a Thing as Toxic Positivity (and You Might Be Guilty of It)

The following is a reprint of an article by Carolyn Kuang-chen Stanley that appears in the PureWow web site.

You’re meeting a friend for drinks after work, excited to catch up on her recent vacation and hear what she thought about Euphoria. But when she arrives, she has other things on her mind: She’s been unhappy at work and feels like her manager isn’t taking her concerns seriously. Hoping to turn the mood around, you say, “You’re awesome! If they don’t appreciate you, someone else will.” Instead of cheering her up, though, it seems to upset her even more. What just happened? Isn’t optimism supposed to, you know, help people look on the bright side?

Turns out, not necessarily. Responding to negative emotions with glass-half-full thinking is known as toxic positivity (or dismissive positivity), a term that recently made the rounds online in an Instagram post by Miami-based psychotherapist Whitney Goodman.

Fixed-Term Contract Costs Employer $1.2 Million In Severance

Beware the fixed-term employment contact. That should be every employer's mantra following the recent decision of the Ontario Superior Court in McGuinty v. 1845035 Ontario Inc. (McGuinty Funeral Home), 2019 ONSC 4108 ("McGuinty").

The McGuinty case has its roots in the sale of a third-generation family-owned business. Specifically, the Plaintiff in McGuinty had for many years owned and successfully operated a funeral home in North Bay along with his brother. After his brother fell ill, the Plaintiff elected to sell the funeral home to a new owner. As part of that transaction, the Plaintiff moved from owner to employee. He further entered into a ten (10) year fixed-term "Transitional Consulting Services Agreement" with the Defendant-purchaser, wherein he was recognized as a "key employee" of the funeral home going forward. The Plaintiff was paid an annual salary of $100,000.00 and provided a variety of other benefits.

Fixed-term employment agreements, like that entered into by the Plaintiff in the McGuinty case, are quite common following a sale of business. Purchasers often have an interest in seeing key staff members be retained for a set period post-sale to ensure their new business succeeds. Likewise, former owners-turned-employees and other vital workers who are to be transferred to the control of a purchasing party are often interested in security of tenure post-transaction.

What to Do in an Active Shooter Situation

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

It’s a sad fact of life in the 21st century that active shootings have become a regular occurrence in the United States. In other parts of the world, terrorist groups are using active shootings to, well, terrorize. While the media focuses on the firestorm of political debate these events cyclically create, I’ve rarely seen them discuss what people are actually supposed to do in these situations.

According to the FBI, active shootings in public places are becoming increasingly common. Which means it would serve everyone to understand how to respond if they ever find themselves in the line of fire.

Over the years I’ve talked to a lot of military, tactical, and law enforcement professionals who’ve spent their careers training and dealing with violent individuals: U.S. marshals, SWAT officers, and special forces operators. And I’ve asked them all this same question: What’s an average joe civilian like me supposed to do when faced with a gunman who’s indiscriminately firing on people?

They’ve all answered the same way.

In today’s article, I share expert-backed advice on how best to react if you ever find yourself in a situation with an active shooter. Learning how to survive a shooting is much like learning how to survive an airplane crash: such an event is statistically unlikely to happen to you, and simple chance may make you a victim before you’re able to take any volitional action. But if there are things you can do to increase your odds of survival even slightly, you ought to know and practice them.

The perfect mustard

If you ask for mustard at a French bistro, you’ll get a strong Dijon, handmade in a little village three hundred kilometres away.

If you ask for mustard at a game at Fenway, apparently you’ll get Gulden’s.

Within a rounding error, all mustard costs the same. It’s not about the price. It’s about coherence with the story. When a Marriott brings you the little sealed bottle of fake dijon from Heinz, they’re not offering you mustard, they’re sending a signal about what they think is fancy.

And at the ball game, the yellow mustard in a giant pump tells a story as well.

Is one better than the other? It’s a matter of taste and context. Of course, I have a favorite mustard and a narrative about what’s appropriate in a given setting, and so does just about everyone else I know. But favorite is different than ‘right’. There’s no absolute scale. How can a mustard be yuppie? Pretentious? Down to earth? It’s simply a condiment.

And yes, there’s a mustard analogy in everything you do. In how you shake hands, in the typeface you use in your presentation (and whether you call it a ‘font’), in the volume you choose for your voice when in conversation.

Being in sync is a choice.

Portion Control

That’s the two-part secret of smart eating–you don’t have to eat everything on your plate, and if you’ve got trouble with that, put less on the plate to begin with.

But the same rules apply in our daily lives. If a meeting is scheduled for an hour, you’re allowed to leave after ten minutes if you’re done.

The hard part isn’t ‘portion’, it’s ‘control’. Self-control is underrated.

The digital economy has created an endless buffet, and it’s easy to overeat. When confronted with infinity, is it okay to blink?

Portions are up to us.

The Enforceability Of Employment Arbitration Agreements In Question

arb agr
Some employers include arbitration clauses in their standard form employment agreements as the arbitration process can be a confidential and cost-effective method of resolving legal disputes with employees. However, the recent decision by the Ontario Superior Court of Justice in Rhinhart v. Legend 3D Canada Inc., 2019 ONSC 3296 (Rhinehart), calls into question the enforceability of arbitration clauses in employment agreements. As a result, employers who utilize such should review whether they wish to continue to do so given their limited value in employment relationships. Read More...

Ontario Court Of Appeal Affirms "Cap" Of Twenty-Four Months Absent Exceptional Circumstances

On June 19, 2019, the Ontario Court of Appeal released a decision in Dawe v. Equitable Life Insurance Company of Canada. One of the issues in the case which will be of interest to Employers concerned the Plaintiff's entitlement to notice, and whether an award of thirty (30) months was appropriate in the circumstances. Read More...

Employee's Attempt To Solicit Clients From Former Employer Proves Costly

Restrictive covenants (such as non-competition and non-solicitation clauses) are a common feature of many employment agreements. It is relatively rare, however, that companies resort to litigation to enforce these requirements by way of an injunction. This may be down to the costs associated with doing so, or that the required legal threshold to obtain an injunction is high.

There are circumstances, however, where it will make sense to seek an injunction. In order to obtain an injunction against a former employee (i.e. to force a party to stop doing something), an employer must be able to demonstrate that:

  • there is a serious issue to be tried; and
  • the employer will suffer irreparable harm if the injunction is not granted (i.e. harm that cannot be quantified in monetary terms or cannot be cured by the payment of damages).

Recent Court Of Appeal Decision Highlights The Risks Of Re-Hiring Formerly Terminated Employees

const dis
Employers are increasingly aware of their obligations to investigate workplace sexual harassment and provide a workplace free of workplace sexual harassment. The recent decision of the Ontario Court of Appeal in Colistro v Tbaytel confirms that employers must be cautious even in hiring decisions. In this case, the Court of Appeal upheld the lower court's decision finding that it was constructive dismissal to re-hire a former employee who had a history of victimizing a current employee by sexual harassment. Constructive Dismissal is where the courts determine that the employment relationship was terminated despite no deliberate step – such as a termination meeting – to end the employment relationship. Read More...

BC Supreme Court Provides Yet Another Reminder To Employers About The Importance Of Drafting Restrictive Covenants Which Are Clear And Not Over Broad

A recent decision of the British Columbia Supreme Court issued October 10, 2018 has provided employers with yet another very clear reminder that care must be taken to ensure that employee restrictive covenants are clear and not over broad in scope.

In Telus Communications Inc. v. Golberg [2018] BCSC 1825 Telus sought an interlocutory injunction to restrain a senior employee from taking up new employment with Rogers Media Inc. following his resignation.

In seeking an interlocutory injunction, Telus relied on a restrictive covenant in the employment agreement with Daniel Golberg. Telus also relied on an alleged breach by Mr. Golberg of his fiduciary duty to Telus.

The reasons of the court establish that after Mr. Golberg decided he would leave Telus if he were able to secure a position with Rogers Media, he continued to participate in high level business strategy meetings, including where initiatives to compete with Rogers Media were discussed. Also, without disclosing that he intended to resign and commence work with Rogers Media, Mr. Golberg endeavoured to negotiate a severance package, giving the explanation to Telus that he wished to focus on family before thinking about the next stage of his career and that he needed "a severance package to tide him over until he found another position".

22 Old Weather Proverbs That Are Actually True

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

When you really think about it, the weather impacts our decisions every single day. What we wear, when we leave for our morning commute, the chores we do, the hobbies we partake in, the family activities we plan. And on and on the list goes of how our lives are influenced by the winds and skies.

Today, we have meteorologists and entire government agencies dedicated to predicting the weather with high-tech computers and algorithms, but a hundred and two-hundred years ago (and more!), folks had to rely mostly on observation and rudimentary tools to predict the weather of the coming days.

To help with this task of predicting the weather, farmers, sailors, and amateur meteorologists of all kinds came up with handy, often rhyming proverbs that could guide their observations. They realized that animal behavior, wind direction, air pressure (which could be measured with a barometer), etc., were pretty accurate indicators of how the weather would behave.

Perhaps surprisingly, most of this handed-down “folk wisdom” is really quite accurate, and has a lot of science behind it; weather proverbs of old can be applied today just as well as they were centuries ago. Rather than relying on your local meteorologist or your smartphone app to tell you what to wear for the day, why not work on your powers of observation and come to understand more about the weather and the natural world around you?

Note: I highly recommend first reading our article on air pressure and barometers; many of these proverbs are related to atmospheric pressure and how it relates to incoming and outgoing weather systems.


Employment Claims And Aggravated Damages: "Everybody Hurts…Sometimes" – REM

Although not always successful, increasingly, plaintiffs in employment cases are making claims for damages over and above notice damages. This article provides a very brief overview of a selection of successful and unsuccessful claims, and demonstrates that there are increasingly unpredictable (sometimes very large) liabilities to employers who do not successfully and fairly conclude employment relationships.

When an employee is terminated and the termination is "not for cause" (meaning no fault of the employee), an employee can expect to receive (in addition to the notice stipulated in the Employment Standards Act of B.C.) working notice or pay in lieu of working notice or a combination of each in an amount stipulated in by their employment contract, or if there is no employment contract, then commensurate with the alchemy (otherwise known as) "common law".

"Common law" notice is calculated on a sliding scale after assessing certain factors including the age of the employee, the length of service, their seniority with the employer, and their employability. Once a notice period is established, it is multiplied by the monthly compensation (base salary plus certain benefits) the employee received pursuant to their contract while employed.

However, in certain circumstances, there are additional amounts which can be claimed by employees over and above "common law" or contractual notice. These additional amounts, or "heads of damage", include "moral" or "aggravated" damages "for mental distress", "consequential" damages, "punitive" damages, and special costs.

This article will not explore all of the heads of damage which can be claimed in employment cases, but provides a brief overview of how the courts have approached one particular head of damage called "aggravated damages" for "mental distress" by reviewing a selection cases.

Deconstructing constructive dismissal: An analysis of Rampre v Okanagan Halfway House Society, 2018 BCSC 992

A recent B.C. Supreme Court decision provides a helpful refresher on the legal principles underpinning constructive dismissal. Read More...

Ontario Court Of Appeal Upholds Extraordinary Award In Wrongful Dismissal Case

In Ruston v Keddco Mfg. (2011) Ltd., 2019 ONCA 125, the Ontario Court of Appeal upheld an extraordinary award – totaling more than $1.1 million – against an employer that breached its duty of good faith and fair dealing in the manner in which it dismissed one of its former employees. Read More...

Safety v. Privacy: Finding The Balance With Video Surveillance

video camera
Arbitrator Ken Saunders' recent decision in Lafarge Canada Inc. v. Teamsters, Local Union No. 213 (In-Cab Camera Grievance), [2018] B.C.C.A.A.A. No. 51 (Saunders) is instructive for employers considering the use of video surveillance in their workplace. Read More...

5 steps to conquer impostor syndrome

“Fake it ‘til you make it.”

It is a phrase we have all told ourselves at some point in our careers. What we seem less capable of telling ourselves is, “I’m in the room for a reason.”

We all want attention and validation from those around us, and the feelings of worthiness that come with it. As children, we may have stomped our feet or thrown things on the ground to satisfy this urge. But as an adult, things are quite different—not just because we have grown up (plenty of adults still throw tantrums to get what they want) but because our impulse for belonging and our openness in sharing it is no longer socially acceptable.

We live in a world where it is not ok to feel unworthy, and we are taught never to express feeling not good enough for the attention of others. And so, we bury these feelings deep.

Yet, these feelings—which for many of us manifest as impostor syndrome—exist in almost everyone.

In the workplace, impostor syndrome can be particularly prevalent among women and people of color, no doubt the legacy of long-standing barriers signaling an actual lack of belonging. But there are ways to combat the sometimes paralyzing feelings of self-doubt that can undermine your day, if not your career.

At Justwomen, the Justworks event series I lead, accomplished women entrepreneurs are brought together and encouraged to vocalize challenges like this and work through them. At a recent Justwomen gathering in Los Angeles, we dove into how to overcome feelings of not belonging, in a discussion led by Angélica S. Gutiérrez, a business professor at Loyola Marymount University.

We came up with five actionable steps to transform “I’m not good enough” into “I know what I’m doing” and realize your full potential.

Ontario Court Pushes The Envelope With 30 Month Reasonable Notice Award In Employment Cases

Until recently, employers could be reasonably assured that Canadian courts would limit a dismissed employee's entitlements to reasonable notice at common law to a maximum of 24 months. However, cases where exceptional circumstances have been found to justify notice periods in excess of 24 months have been appearing with increased frequency – especially in Ontario.

A recent decision of the Ontario Superior Court of Justice has sent a strong message that Ontario courts continue to be willing to push the envelope in extending notice periods beyond 24 months. In
Dawe v. Equitable Life Insurance Company of Canada, the Court awarded 30 months of reasonable notice to a dismissed employee, but "felt this case warranted a minimum 36 month notice period" had the employee requested it. Read More...

Supreme Cpourt rules teacher's secret videos of students breach privacy, constitute criminal voyeurism.

"The accused was an English teacher at a high school. He used a camera concealed inside a pen to make surreptitious video recordings of female students while they were engaged in ordinary school-related activities in common areas of the school. Most of the videos focused on the faces, upper bodies and breasts of female students. The students were not aware that they were being recorded by the accused, nor did they consent to the recordings. A school board policy in effect at the relevant time prohibited the type of conduct engaged in by the accused.

The accused was charged with voyeurism under s. 162(1) (c) of the Criminal Code. That offence is committed where a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if the observation or recording is done for a sexual purpose. At trial, the accused admitted he had surreptitiously made the video recordings. As a result, only two questions remained: whether the students the accused had recorded were in circumstances that give rise to a reasonable expectation of privacy, and whether the accused made the recordings for a sexual purpose. While the trial judge answered the first question in the affirmative, he acquitted the accused because he was not satisfied that the recordings were made for a sexual purpose. The Court of Appeal unanimously concluded that the trial judge had erred in law in failing to find that the accused made the recordings for a sexual purpose. Nevertheless, a majority of the Court of Appeal upheld the accused’s acquittal on the basis that the trial judge had also erred in finding that the students were in circumstances that give rise to a reasonable expectation of privacy. The Crown appeals to the Court as of right on the issue of whether the students recorded by the accused were in circumstances that give rise to a reasonable expectation of privacy."

The S.C.C. (9:0)
allowed the appeal and entered a conviction.

Supreme Court rules bankruptcy trustees can't walk away from abandoned oil wells

Oil Well
The requirements of the Bankruptcy and Insolvency Act and the province of Alberta’s regime concerning the cost of remedying the environmental effects of abandoned oil wells can co-exist, the Supreme Court of Canada ruled today.

The 5-2 decision overturned the Alberta appellate court decision in allowing the appeal of the Orphan Well Association and the Alberta Energy Regulator against Grant Thornton Limited, the receiver and trustee in bankruptcy for a bankrupt oil and gas producer.

“The big takeaway is that it’s a win for the regulator but a loss for secured creditors,” says Jeremy Opolsky, a commercial litigator at Torys LLP in Toronto. “This decision effectively puts creditors at the back of the line; in many cases, including this one, they recover nothing at all, including their investment. The [Alberta] Court of Appeal called it replacing ‘polluter pays’ with ‘third-party pays.’”

At the heart of the case was what happens with respect to obligations under a provincial regulatory scheme — in this case, Alberta’s scheme with respect to oil and gas licensees — when bankruptcy proceedings are initiated under the federal Bankruptcy and Insolvency Act.

Redwater Energy Corporation is a bankrupt company that held licences in oil and gas properties. Those properties included “orphan wells” that are at the end of their lives and no longer producing oil. The cost of remediation for disclaimed wells can exceed their value, and the company’s receiver and subsequently its trustee in bankruptcy, Grant Thornton, sought to disclaim the bankrupt’s interest in those wells but to sell the valuable assets.

The Alberta Energy Regulator has end-of-life rules on how a spent well must be rendered environmentally safe. Disclaimed wells become the responsibility of the Regulator and the Orphan Well Association. In this case, the Regulator opposed the trustee’s disclaimer on the basis that the trustee had to comply with the end-of-life obligations prior to any distribution to the creditors. The Regulator issued abandonment and remediation orders in respect of the wells that had been disclaimed, but the trustee did not comply with the orders.

The Regulator and the Association sought compliance with the remediation orders from the Court of Queen’s Bench of Alberta. The trustee brought a cross-application for approval of the sale of some assets, and a ruling on the constitutionality of the Regulator’s position.

In today’s decision in
Orphan Well Association v. Grant Thornton Ltd., the majority of the Supreme Court found that the requirements of the BIA and the Alberta regime could co-exist, and that the Regulator’s use of its statutory powers did not trigger federal paramountcy; under Canadian constitutional law, this is the rule that federal law prevails, and applies when there is a provincial law and a federal law which are each valid but inconsistent or conflicting. Read More...

Not All Opinions Are Fit For Sharing

social media
In an era where opinions sometimes are preferred to information, it seems fit to recall that any comment by an employee on his employment relationship may have consequences. Indeed, employees remain subject to a duty of loyalty to their employer and criticism of the latter may amount to a wrongful misconduct which may justify disciplinary action.

In this regard, the case of
Syndicat des chargées et chargés de cours de l'Université de Sherbrooke (SCCCUS) et Université de Sherbrooke (Denis Bernard) is interesting since it highlights that criticism may go beyond mere opinion and thus constitutes a lack of professionalism and loyalty.

The balance between freedom of expression and the duty of loyalty is particularly important in the context of social media. The case of Syndicat démocratique des salarié(e)s de la résidence St-Jude et La Résidence St-Jude (9210-9719 Québec inc.) (Vickyan Tardif) 2018 QCTA 593 concludes that comments published on social media become de facto public and that employees should therefore reflect on the consequences of exposing their dirty laundry in public.

Supreme Court of Canada rules "Henson trusts" valid.

"The respondent, Metro Vancouver Housing Corporation (“MVHC”), is a non-profit corporation that operates subsidized housing complexes. It also offers means-tested rental assistance in the form of rent subsidies to eligible tenants on a discretionary basis. Tenants wishing to receive rent subsidies must demonstrate, on an annual basis, that they meet the eligibility criteria by completing and submitting an assistance application. MVHC limits eligibility for rental assistance to tenants who have less than $25,000 in assets.

The appellant, A, a person with disabilities, has resided in one of MVHC’s housing complexes since 1992 and received rental assistance from MVHC every year until 2015. The terms of her tenancy were set out in a tenancy agreement, which required that she provide an income verification statement to MVHC once a year.

A also has an interest in a trust that was settled for her benefit in 2012. The terms of the trust provide that the two co-trustees — A and her sister — together have the discretion to pay so much of the income and capital as they decide is necessary or advisable for the care, maintenance, education, or benefit of A. The structure of this kind of trust, commonly known as a Henson trust, means that A cannot compel the trustees to make any payments to her and that she cannot unilaterally collapse the trust. In 2015, MVHC requested that A disclose the balance of the trust. A refused, taking the position that her interest in the trust was not an “asset” that could affect her eligibility for rental assistance. MVHC advised her that it was unable to approve her application, as in its view, her trust was an asset and its value was required for it to determine her eligibility for rental assistance.

Both A and MVHC filed petitions in the Supreme Court of British Columbia, seeking a determination as to whether A’s interest in the trust is an asset for the purpose of considering her application for rental assistance. The chambers judge held that the meaning of the word “assets” as used in the tenancy agreement was broad enough to encompass A’s interest in the trust, and therefore that MVHC was entitled to require that A disclose the value of the trust before it would consider her application for rental assistance. The Court of Appeal dismissed A’s appeal."

The S.C.C. (with two judges dissenting in part)
allowed the appeal.

Another One Bites The Dust – The Plentiful Pitfalls Of Non-Competition Clauses

A recent decision of the BC Supreme Court is a good reminder of the importance of extremely careful drafting of non-competition clauses. Read More...

"Sex, Lies And Videotape" --Good Evidence?

An employer installs video surveillance in his office with the intent to catch any employees rifling through his private file cabinet. What is caught on tape is two employees doing something entirely different. Can the employer use this footage as evidence to terminate the two employees for just cause? An arbitration board's interim decision in Vernon Professional Firefighter's Association, IAFF, Local 1517 and The Corporation of the City of Vernon says yes. Read More...

Supreme Court of Canada rules voting ban on Canadians residing abroad 5 years or more is unconstitutional.

"The combined effect of ss. 11 (d), 222 and other related provisions of the Canada Elections Act is to deny Canadian citizens who have resided abroad for five years or more the right to vote in a federal election unless and until they resume residence in Canada. The constitutionality of these provisions was challenged by two non‑resident Canadian citizens, who applied for a declaration that their right to vote entrenched in s. 3 of the Charter was infringed, and that the impugned provisions were unconstitutional. The application judge agreed, found that the impugned provisions could not be saved under s. 1 of the Charter , and made an immediate declaration of invalidity. A majority of the Court of Appeal allowed the Attorney General of Canada’s appeal. Although the Attorney General of Canada conceded that the impugned provisions breach s. 3 of the Charter , the violation of s. 3 was found to be justified."

S.C.C. held (3 judges concurring with the Chief Justice, 1 judge writing separate concurring reasons, and 2 judges writing joint dissenting reasons) that the appeal is allowed; sections 222(1) (b) and (c), 223(1) (f) and 226 (f) of the Canada Elections Act are declared to be of no force or effect; the words “a person who has been absent from Canada for less than five consecutive years and who intends to return to Canada as a resident” are struck from s. 11(d) of the Act and are replaced with the words “an elector who resides outside Canada”; and the word “temporarily” is struck from ss. 220, 222(1) and 223(1)(e) of the Act. Read More...

Supreme Court of Canada rules mandatory victim surcharges unconstitutional.

"Under s. 737 of the Criminal Code, everyone who is discharged, pleads guilty to, or is found guilty of an offence under the Criminal Code or the Controlled Drugs and Substances Act is required to pay monies to the state as a mandatory victim surcharge. The amount of the surcharge is 30 percent of any fine imposed, or, where no fine is imposed, $100 for every summary conviction count and $200 for every indictable count. Although sentencing judges have the discretion to increase the amount of the surcharge where appropriate, they cannot decrease the amount or waive the surcharge for any reason. The imposition of the surcharge cannot be appealed.

At sentencing, several offenders challenged the constitutionality of the surcharge on the basis that it constitutes cruel and unusual punishment, contrary to s. 12 of the Charter, violates their right to liberty and security of the person, contrary to s. 7 of the Charter, or both. The offenders all live in serious poverty and face some combination of addiction, mental illness and disability. While the results were mixed at sentencing, the respective courts of appeal rejected the constitutional challenges."

S.C.C. (7:2) allowed the appeals; section 737 of the Criminal Code infringes s. 12 of the Charter, not saved by s. 1, and is invalidated immediately.

Supreme Court of Canada finds there is a reasonable expectation of privacy in shared computer; warrantless seizure and search unreasonable.

"The accused shared a home with his common‑law spouse. Following charges of domestic assault against the accused, a no‑contact order was issued which prohibited the accused from visiting the home without his spouse’s prior, written and revocable consent. When the spouse contacted the accused’s probation officer to withdraw her consent for him to enter the home, she reported that she had found what she believed to be child pornography on the home computer which she shared with the accused. A police officer came to the family home without a warrant. The accused’s spouse allowed the officer to enter and signed a consent form authorizing him to take the computer, which was located in a shared space in the home. The police detained the computer without a warrant for more than four months before searching it. They also failed to report the seizure of the computer to a justice, despite the requirements of s. 489.1 of the Criminal Code . When the police finally obtained a warrant to search the computer, they found 140 images and 22 videos of child pornography. The accused was charged with possessing and accessing child pornography but applied to exclude the computer‑related evidence claiming that his right to be secure against unreasonable search or seizure pursuant to s. 8 of the Canadian Charter of Rights and Freedoms had been violated. The application judge agreed. Accordingly, he excluded the computer evidence under s. 24(2) of the Charter and the accused was acquitted. The Court of Appeal allowed the Crown’s appeal from the acquittal, set aside the exclusionary order and ordered a new trial."

S.C.C. held (9:0, with two separate judges writing separate concurring reasons) that the appeal is allowed, the evidence excluded and the acquittal restored. Read More...