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SCC rules the protection against cruel and unusual treatment or punishment under s. 12 of the Charter for humans, not corporations.

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A corporation was found guilty of carrying out construction work as a contractor without holding a current license for that purpose, an offence under s. 46 of Quebec’s Building Act. Pursuant to s. 197.1 of that Act, the penalty for an offence under s. 46 is a mandatory minimum fine which varies depending on whether the offender is an individual or a corporation. Applying this provision, the Court of Québec imposed the then minimum fine for corporations of $30,843. The corporation challenged the constitutionality of the mandatory minimum fine on the basis that it offended its right to be protected against cruel and unusual treatment or punishment under s. 12 of the Charter . The Court of Québec dismissed the challenge, concluding that expanding the protection of rights intrinsically linked to individuals to include corporate rights would trivialize the protection granted by s. 12 . On appeal by the corporation, the Quebec Superior Court similarly held that corporations were not covered by s. 12 , as the provision’s purpose was the protection of human dignity, a notion meant exclusively for natural persons. A majority at the Quebec Court of Appeal, however, allowed the corporation’s appeal, concluding that since corporations could face cruel treatment or punishment through harsh or severe fines, s. 12 could apply to them. The dissenting judge was of the view that s. 12 does not apply to corporations."

The SCC (with two separate sets of concurring reasons)
allowed the appeal and set aside the Court of Appeal judgment. Read More...

SCC rules RCMP pension plan breaches s. 15 of the Charter re women job-sharing.

rcmp
"The claimants are three retired members of the RCMP who took maternity leave in the early‑to‑mid 1990s. Upon returning to full‑time service, they experienced difficulties combining their work obligations with their childcare responsibilities. At the time, the RCMP did not permit regular members to work part‑time. In December 1997, the RCMP introduced a job‑sharing program in which members could split the duties and responsibilities of one full‑time position. The three claimants enrolled in the job‑sharing program; they and most of the other RCMP members who job‑shared were women with children. Pursuant to the Royal Canadian Mounted Police Superannuation Act , and the associated Royal Canadian Mounted Police Superannuation Regulations (“pension plan”), RCMP members can treat certain gaps in full‑time service, such as leave without pay, as fully pensionable. The claimants expected that job‑sharing would be eligible for full pension credits. However, they were later informed that they would not be able to purchase full‑time pension credit for their job‑sharing service.

The claimants initiated an application arguing that the pension consequences of job‑sharing have a discriminatory impact on women contrary to s. 15(1) of the Charter . Their claim failed at the Federal Court. The application judge found that job‑sharing is part‑time work for which participants cannot obtain full‑time pension credit and that this outcome did not violate s. 15(1) . The application judge held that there was insufficient evidence that job‑sharing was disadvantageous compared to leave without pay. The Federal Court of Appeal dismissed the claimants’ appeal."

The SCC (6:3, two judges writing joint dissenting reasons, one judge writing separate reasons)
allowed the appeal. Read More...

SCC holds employment law damages re constructive dismissal includes incentive bonus.

incentive
"Beginning in 1997, M, an experienced chemist, occupied several senior management positions with Ocean Nutrition Canada Limited (“Ocean”). As a senior executive, M was part of Ocean’s long term incentive plan (“LTIP”), a contractual arrangement designed to reward employees for their previous contributions and to provide an incentive to continue contributing to the company’s success. Under the LTIP, a “Realization Event”, such as the sale of the company, would trigger payments to employees who qualified under the plan. In 2007, Ocean hired a new Chief Operating Officer, who began a campaign to marginalize M in the company, limiting M’s responsibilities and lying to M about his status and prospects with Ocean. Despite his problems with senior management, the LTIP was a key reason for which M wanted to stay with Ocean, anticipating Ocean would soon be sold. However, M eventually left Ocean in June 2011, taking a position with a new employer.

About 13 months after M’s departure, Ocean was sold for $540 million. The sale constituted a Realization Event for the purposes of the LTIP. Since M was not actively employed on that date, Ocean took the position that M did not satisfy the terms of the plan, and he did not receive a payment. M filed an application against Ocean alleging that he was constructively dismissed, and that the constructive dismissal was carried out in bad faith and in breach of Ocean’s duty of good faith. The trial judge concluded that Ocean constructively dismissed M, and that M was owed a reasonable notice period of 15 months. The trial judge also held that M would have been a full‑time employee when the Realization Event occurred had he not been constructively dismissed, and that, because the terms of the LTIP did not unambiguously limit or remove his common law right to damages, M was entitled to damages equivalent to what he would have received under the LTIP. The Court of Appeal unanimously upheld the decision that M had been constructively dismissed and that the appropriate reasonable notice period was 15 months. However, a majority of the court found that M was not entitled to damages on account of the lost LTIP payment."

The SCC (7:0)
allowed the appeal, set aside the judgment of the Court of Appeal and restored the trial judgment. Read More...

Employers Must Discharge Their Onus To Prove Failure To Mitigate

mitigate
A recent 2020 decision of the British Columbia Supreme Court, Virk v. Satnam Education Society of B.C., was a reminder that in wrongful dismissal litigation, the employer has the burden to prove an employee's failure to mitigate. When an employee has been wrongfully dismissed, they are obligated to act reasonably by taking steps to replace their income by applying for alternative positions. This involves applying for new jobs on a "constant and assiduous" basis. However, it is ultimately the employer's responsibility to prove that the employee failed to take adequate steps to mitigate their losses, and had the employee made adequate mitigation efforts, they would likely have found a new job. If the employer is successful in proving that the employee has failed to mitigate, the employee would be entitled to a reduced notice period at common law. Read More...

Family Law: Retroactive Child Support

retro support
In Michel v. Graydon, 2020 SCC 24, SCC # (38498):

"M and G were in a common law relationship and are the parents of A, born in 1991. After M and G separated in 1994, A lived with M, and G agreed to pay child support based upon his stated annual income. This was formalized in a consent order made in 2001. G had, however, understated his income from the time of the consent order — with the exception of 2004 — until his child support obligation was terminated by court order in 2012. In January 2015, M applied under s. 152 of British Columbia’s Family Law Act (“FLA”) to retroactively vary child support for the period between April 2001 and April 2012, to reflect G’s actual income during that period of time. The hearing judge allowed M’s application and G was ordered to pay $23,000 in retroactive child support. The Supreme Court of British Columbia allowed G’s appeal and set aside the hearing judge’s order. In its view, the Court’s conclusion in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, that an application for child support under the federal Divorce Act had to be made while the child remained a “child of the marriage” was equally applicable where child support was sought under the FLA. The Court of Appeal dismissed M’s appeal. "

The SCC allowed the appeal (9:0), (with two judges writing separate concurring reasons, with which two other judges concurred), reinstated the order of the hearing judge.
Read More...

Employers: Ready, Set, Remote Work!

wfh
The first half of 2020 has brought its share of challenges and unforeseen events to Canadian employers. While some businesses are beginning to emerge from the crisis, it would be unrealistic to believe everything will return to normal. Thousands of employees around the world will not be returning to their regular workplaces for months, while others may be called to work from home on a permanent basis.

Before the pandemic, working from home was a privilege for employees, giving employers a competitive edge in recruiting and retaining staff. Today, however, remote work is becoming the rule rather than the exception. Traditional work locations and schedules are being upended and employers must be prepared to modernize their management practices and allow for more flexibility.

The following is an overview of some key issues employers are facing in this new reality.
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Why Is Bob Ross Still So Popular?

bob ross
From Michael J. Mooney at The Atlantic:

If you’re somehow not familiar with the name, Bob Ross is probably America’s most famous painter. With his distinctive hair, gentle voice, and signature expressions such as “happy little trees,” he’s an enduring icon. Even 25 years after his death, he’s popular not only with viewers who remember him fondly, but also with kids who weren’t even born when his show was originally on the air.

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4 Ways to Fight Staleness While Working From Home

wfh
From Jeremy Anderberg on the Art of Manliness web site:

Like the rest of the small crew here at AoM, I’ve been working from home for most of my career, and have observed that without the presence of coworkers to chit-chat with, breakrooms, or a coffee shop in the lobby, it’s easy to feel a bit stale. While lunch is a nice interlude in the middle of the day, I’ve found I need some refreshing mid-morning and mid-afternoon too.

Fortunately, one’s ability to re-energize at home is even better than at the office — you can freely play with habits and routines without worrying that onlookers will think you’re a weirdo or a slacker — and over the years I’ve experimented with a lot of different ways to shake off my listlessness and get back in a focused groove.

If you’ve recently joined the ranks of the WFH crowd, and have experienced the phenomenon of staleness yourself, below I suggest four things that have worked for me in breaking out of it.
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Supreme Court of Canada finds Uber arbitration clause unconscionable, invalid.

uber
"H provides food delivery services in Toronto using Uber’s software applications. To become a driver for Uber, H had to accept the terms of Uber’s standard form services agreement. Under the terms of the agreement, H was required to resolve any dispute with Uber through mediation and arbitration in the Netherlands. The mediation and arbitration process requires up-front administrative and filing fees of US$14,500, plus legal fees and other costs of participation. The fees represent most of H’s annual income.

In 2017, H started a class proceeding against Uber in Ontario for violations of employment standards legislation. Uber brought a motion to stay the class proceeding in favour of arbitration in the Netherlands, relying on the arbitration clause in its services agreement with H. H argued that the arbitration clause was unconscionable and therefore invalid. The motion judge stayed the proceeding, holding that the arbitration agreement’s validity had to be referred to arbitration in the Netherlands, in accordance with the principle that arbitrators are competent to determine their own jurisdiction. The Court of Appeal allowed H’s appeal and set aside the motion judge’s order. It concluded that H’s objections to the arbitration clause did not need to be referred to an arbitrator and could be dealt with by a court in Ontario. It also found the arbitration clause to be unconscionable, based on the inequality of bargaining power between the parties and the improvident cost of arbitration."

The SCC (8:1, with joint reasons by Abella and Rowe JJ., separate concurring reasons by Brown J., and dissenting reasons by Côté J.)
dismissed the appeal. Read More...

Supreme Court Confirms That Workplace Safety Can Supersede Freedom Of Religion

turban
In . . . [September] 2019, . . . the Quebec Court of Appeal dismissed the application of three Sikh truckers who challenged a company policy requiring them to wear a safety helmet over their turban in certain circumstances.

This decision is now final since, on April 30, 2020, their application for leave to appeal to the Supreme Court was
dismissed without reasons, as is the norm in such circumstances. Read More...

Swearing as a Response to Pain: Assessing Hypoalgesic Effects of Novel “Swear” Words

swearing

From Richard Stephens and Olly Robertson on the Frontiers in Psychology web site:

. . . [O]ur study is the first to show that swearing raises pain threshold (the time at which pain onset is reported following presentation of a painful stimulus, here immersing the hand in ice-water) building on previous findings showing that swearing raises pain tolerance (the time at which the hand is removed from the ice-water). It is also the first study to investigate mediation via distraction, finding no evidence that distraction is involved in the mechanism by which swearing brings about pain alleviation. Instead, our data suggest that swearing brings about its effect on pain alleviation via another route, possibly emotion arousal. However, emotion was not found to mediate the pain alleviation effects of swearing, so this remains a theoretical possibility rather than one that was evidenced.

Read More...

BC Court rules Meng extradition proceedings to continue.

meng
From The Honourable Associate Chief Justice H. Holmes in A.G. of Canada v Meng:

On the question of law posed, I conclude that, as a matter of law, the double criminality requirement for extradition is capable of being met in this case. The effects of the US sanctions may properly play a role in the double criminality analysis as part of the background or context against which the alleged conduct is examined. Ms. Meng’s application is therefore dismissed. I make no determination of the larger question under s. 29(1)(a) of the Act of whether there is evidence admissible under the Act that the alleged conduct would justify Ms. Meng’s committal for trial in Canada on the offence of fraud under s. 380(1)(a) of the Criminal Code. This question will be determined at a later stage in the proceedings.

Read More...

Reviving Blue Collar Work: 4 Myths About the Skilled Trades

skilled trades
From Jeremy Anderberg on the Art of Manliness web site:

If you can get over your fear of dirt, grime, and sweat, you have the potential to make a far better living than your office-dwelling peers. And you may even discover that it feels good to be using your body and hands every day, that it’s satisfying to be in touch with the elements, even when those elements are grimy, and that nothing feels better than taking a well-earned shower when you actually have dirt to clean off.

Read More...

Acumen v Ojanen: Just Cause And The Potential Costs Of An Unfair Dismissal

dismissed
Acumen Law Corporation v. Ojanen, is a recent B.C. Supreme Court decision that clarifies: (1) what type of employee misconduct does not constitute just cause for dismissal; and (2) what actions, taken by an employer in the course of termination, can lead to a finding of aggravated damages against the employer.

Acumen concerned the termination of Melissa Ojanen ("Ms. Ojanen"), an articling student at Acumen Law Corporation ("Acumen"), which specializes in the defence of criminal and regulatory driving-related offences. Ms. Ojanen worked at Acumen for 3 months before starting the Professional Legal Training Course ("PLTC") to fulfil her licencing requirements to practice law. Acumen terminated Ms. Ojanen's employment in front of her classmates during PLTC, and served her with claims for breach of contract, theft, wrongful use of marketing materials, and trespass. Ms. Ojanen counterclaimed for wrongful dismissal.

The Court ultimately dismissed Acumen's claims and decided in favour of Ms. Ojanen, awarding her $18,934 in ordinary damages and $50,000 in aggravated damages.
Read More...

68 Bits of Unsolicited Advice

kevin kelly
From Kevin Kelly on the Technium Site:

It’s my birthday. I’m 68. I feel like pulling up a rocking chair and dispensing advice to the young ‘uns. Here are 68 pithy bits of unsolicited advice which I offer as my birthday present to all of you.

Read More...

Countries are walking away from trade with China after coronavirus outbreak

Xi
From Leonardo Briceno of the Post Millennial:

Purposefully changing the lines of world supply in the midst of a global crisis is an ambitious move. China is the world’s largest manufacturer, and the pandemic has highlighted just how dependent the rest of the world is on their production of medical supplies, among other products. If trading countries like Japan, the US, and Canada want to find an alternative to being as reliant on China as they have been in the past, it won’t come easily. But COVID-19 might give them the incentive to attract businesses away from Chinese manufacturers.

Read More...

The Stockdale Paradox

Admniral Stockdale
Jim Collins interviewed Admiral Jim Stockdale, who spent seven years in a North Vietnamese prison. He asked him how he coped. He said, in part:

“Well, you have to understand, it was never depressing. Because despite all those circumstances, I never ever wavered in my absolute faith that not only would I prevail—get out of this—but I would also prevail by turning it into the defining event of my life that would make me a stronger and better person. Not only that, Jim, you realize I’m the lucky one.” I said, “No, I don’t.” He said, “Yes, because I know the answer to how I would do, and you never will.” A little later in the conversation, . . . I asked him who didn’t make it out of those systemic circumstances as well as he had. He said, “Oh, it’s easy. I can tell you who didn’t make it out. It was the optimists.”

Read More...

Ted’s Army Grows

Ted Army
Those of you that are older will remember Ted Baxter on the Mary Tyler Moore Show. When asked about his career, he would always say “It all started in a 5,000 watt radio station in Fresno California, a $65.00 paycheck and a crazy dream.”

Well, I started making ear guards with my hobby 3-D printer. My daughter, Jillian Koskie, handles logistics and distribution. We have printed and delivered many hundreds of the “happy ears,” as they have been coined, to many health care workers. The demand is increasing and so must production. We have recruited my cousin, Jared Boyko, and friend, Brad Sweeney, to help meet the need. We may not get them done as quickly as we would like, but I promise that, as long as there is need, we will not quit.

You can direct your requests to me at
ted@koskie.com. There is no charge for the happy ears. Read More...

The Old-Fashioned Secret to Better, Healthier Sleep

open window
From Brett & Kate McKay on the Art of Manliness web site:

Do you sleep in fresh air? The average person will answer, ‘Yes.’ Nearly everyone has experienced the effects of sleeping in a closed room, and, in doing so, has roused with a feeling of suffocation or dull headache. An open window in the sleeping room seems almost a necessity. –Suburban Life Magazine, 1913

Read More...

Ted Koskie makes ear guards for health care professionals.

Ted Ear Bands
Health care professionals have told me of their discomfort from wearing protective masks all day. It not only becomes painful, but can cause injury–to the point of bleeding.

One of my hobbies is 3-D printing. I have discovered various designs for a "guard" that will help take the pressure off health care workers’ ears. So far, I have printed about fifty. I have distributed them to various professionals to take to their facilities. I will keep making them for as long as they are needed.

I encourage others that have 3-D printers to make and donate ear guards.
Read More...

Ted Koskie has forty years of arbitration experience.

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Arbitration has long been used to resolve labour issues. It has now become an attractive alternative for resolving other business and personal matters. People frequently say going through the Court system takes too much time and expense.

Ted has forty years of arbitration experience. He has conducted hundreds of arbitrations and dealt with a wide array of labour, business and personal issues. He has drawn on this experience in helping parties in resolving complex claims.

Before Covid-19, Ted usually conducted arbitrations in our custom, constructed facilities. For the convenience of the parties, he has frequently conducted all or a part of the arbitration by video and telephone conferencing. In other instances, parties have appointed Ted to adjudicate differences, on an expedited basis, relying only on documentation and written submissions.

In these trying times, you need not wait to deal with unresolved differences. Ted already has the technology in place–it is tested and works. He has the knowledge, experience, skill and dedication to do the job.

Check out our web site at
www.koskie.com. Under the “Adjudication” tab, you will find more information about our services and an extensive sampling of previous decisions rendered. You can reach us by calling (306) 242-8478 or e-mailing ted@koskie.com. Read More...

We are Open for Business

Logo_180
As we monitor COVID-19 (Coronavirus), we are being proactive with practices that protect the health of our employees and clients.

Though we are limiting access to our offices and may have reduced hours and staff in attendance, we remain committed to providing our clients with uninterrupted service and support.

Our lawyers and staff are continuing day-to-day work and meeting clients via web conference, telephone and email. If you require assistance, we are here to help.

Please contact our office by telephone at (306) 242-8478 or you can e-mail us at
firm@koskie.com. Read More...

Layoff Out Of Seniority Order Not Permitted Where Teacher Meets OCT Qualification

laid off
In Keewatin-Patricia District School Board v. Ontario Secondary School Teachers' Federation, 2019 ONSC 7102, the Ontario Divisional Court dismissed an application for judicial review of Arbitrator Michael Lynk's decision upholding the grievance of a teacher alleging that she was laid off out of seniority order. The court rejected the Keewatin-Patricia District School Board's (the Board) position that the arbitration award was unreasonable because it misapprehended the Board's obligation to provide the "best possible educational program" as stipulated in subsection 19(1) of Regulation 298 under the Education Act. Read More...

Guilty mind for dangerous driving found when there is marked departure from reasonable driver.

dangerous driving
In R. v. Chung, 2020 SCC 8 (38739):

"C was acquitted at trial of dangerous driving causing death under s. 249(4) of the Criminal Code. There was no question that C drove in an objectively dangerous manner and committed the actus reus of the charged offence. However, the trial judge had a reasonable doubt about whether C had the requisite guilty mind or mens rea. The Court of Appeal found the trial judge committed an error of law in finding that C lacked the requisite mens rea, set aside the acquittal and entered a conviction. The sole issue in this appeal is whether the trial judge made an error of law, which would allow the Crown to appeal C’s acquittal under s. 676(1) (a) of the Criminal Code."

The S.C.C. (4:1) dismissed the appeal.
Read More...

Failing To Communicate Bonus Policy – Employer Ordered To Pay Out Bonus

bonus2
The recent BC Supreme Court decision, Thoma v. Schaefer Elevator Components Inc., 2019 BCSC 100 ("Schaefer"), dealt with an employee who was properly terminated with notice, but brought a claim against his previous employer alleging he did not receive the compensation to which he was contractually entitled. In a summary trial, Justice Riley addressed the issue of whether, in absence of a wrongful dismissal, the employer was liable for payment of discretionary bonuses to the employee for his final year of employment and his six month termination period. The Court found that the employee was entitled to a bonus for his final year of employment, but not for the portion of his termination period which fell in the following year.

The Schaefer decision is a timely reminder for employers of the best practices for drafting employment contracts and bonus provisions, as well as the importance of clearly communicating compensation policies to employees.
Read More...

Coronavirus disease (COVID-19) advice for the public: Myth busters

covid 19
From the WHO:

This is some good information
. The WHO site provides a lot more. Read More...

How to Build Instant Rapport

rapport
From Brett & Kate McKay on the Art of Manliness web site:

The best approach when first presenting yourself to another is . . . to allow the fundamental pieces of your personality to come to the fore, while minimizing the minor differences between you that might lead either participant to prematurely write the other one off.

Read More...

Guidance For Employee's Entitlements To Bonus And Stock Options Upon Termination

empbonus
From Mackenzie Irwin of MacDonald & Associates:

Employees are entitled to claim damages for loss of alternate compensation methods, particularly where that benefit is an integral part of their compensation, unless there is a contractual term limiting that employee's common law rights upon termination. Where a plan contains terms that limit or place conditions on the payment of a bonus, the question the Courts must determine is whether the wording of the bonus plan was sufficient to limit the employee's common law right to damages for lost compensation. . . . In that regard, the plan language must be clear and unequivocal, and it must be understood by the employee that their right to entitlements under the plan will not persist through the reasonable notice period.

Read More...

University Professor Professing "I am Crazy About You" – Not Considered Sexual Harassment

No
From Nicole Skuggedal and Katy Allen of Lawson Lundell LLP:

A recent decision of the British Columbia Human Rights Tribunal (the “Tribunal”) held that a professor telling a subordinate employee (the “Complainant”) that “you will have to let me know if this is a misstep but I am crazy about you” (the “Comment”) did not constitute sexual harassment pursuant to the B.C. Human Rights Code.

Read More...

Shared objective reality

Shared
From Seth Godin:

The conflict of our time is between people who are challenging our shared objective reality by claiming that their shared cultural reality takes precedence over what we’ve discovered. And vice versa–objectivists who insist that cultural reality doesn’t matter. It does. It makes us human and helps us find meaning. They’re different, but we need them both. One way to accomplish this is to not confuse them.

Read More...

Court Upholds Enforceability of Arbitration Clauses in BC Employment Contracts

Contracts-of-Employment-Solicitors1
From Sam Tecle and Jonathan J. Lam of Gowling WLG on Mondaq:

The BC Supreme Court rejected the employee's argument and stayed the action in favour of arbitration. In doing so, the Court noted a distinction between the wording of the respective "minimum standards" provisions of the BC and Ontario ESA. Regarding the BC ESA, the Court stated that "it is not obvious that a statutory complaint/investigative mechanism becomes an employment standard itself rather than a procedure for enforcing employment standards."

Read More...

Federal Court Of Appeal Confirms That Signed Releases Do Not Prevent Employees From Pursuing Unjust Dismissal Complaints Under‎ The Canada Labour Code

dismissed
From Pablo Guzman and Carly Meredith of DLA Piper on Mondaq:

On January 24, 2020, the Federal Court of Appeal upheld the decision in Bank of Montreal v. Li (2018 FC 1298). This decision serves as confirmation that federally-regulated employees who sign releases in favour of their former employers will not be barred from bringing complaints for unjust dismissal under the Canada Labour Code ("CLC"), provided that they do so within 90 days of the dismissal.


Read More...

BCCA Pumps The Brakes On Application Of Rosas v. Toca To Employment Contract Variations

dismissed

Recently, the BC Court of Appeal commented on several foundational issues that arise in wrongful dismissal litigation. Particularly, the following are of interest . . .:

  1. the enforceability of a new or varied employment contract;
  2. when a dismissed employee may succeed with a claim for aggravated damages; and
  3. when an employer is entitled to the benefit of a dismissed employee's mitigation earnings in cases of a fixed term contract.
Read More...

How to handle a promotion.

promotion
From Jeremy Anderberg on the Art of Manliness web site:

Many promotions mean moving up a corporate ladder and managing people you previously worked with on the same level. That’s just how business hierarchies work. Even if you were already a manager, maybe you moved up a rung and are now leading other managers. No matter the scenario, there’s often some awkwardness and politics to navigate.

Read More...

Employment & Labour – Top Ten Cases Of 2019

jud review
Nicole Heelan, of Cox & Palmer, writing on Mondaq:

2019 brought several notable cases impacting employment and labour law. We have put together a brief summary of 10 Canadian decisions we . . . should be aware of as we head into 2020.

Read More...

Old Consideration Is No Consideration For Changes To Employee Contract

Contracts-of-Employment-Solicitors1
Consideration (or something of value exchanged for something else of value) is a fundamental principle of contract law, with fresh consideration necessary to create a new contract or to amend an existing contract. Two years ago, however, the landmark decision of Rosas v Toca, 2018 BCCA 191 [Rosas] cast doubt on whether fresh consideration is always needed to effect contractual amendments.

In the recently released decision of Quach v. Mitrux Services Ltd., 2020 BCCA 25 [Quach], the British Columbia Court of Appeal ("Court") considered for the first time how Rosas applies in an employment law context.
Read More...

How to Make a Great Last Impression

last impression
The following quote is from an article written by Brett and Kate McKay on the Art of Manliness web site:

Studies show that people remember the beginning of something, and the end of it, the best. The middle of it is recalled a little more hazily. Once a novel experience starts, your brain really starts focusing on what’s going on and quickly makes judgements about the new people you meet. And you clearly remember the last part of an experience, because it ends up being the freshest in your memory. Given this phenomenon, people understandably spend a lot of time thinking about how to make a great first impression — which indeed has an outsized influence on how people see you, lasting for even months after you’ve gotten to know them. But the other part of the equation is frequently ignored, though it’s also important. You not only want to make a dynamite first impression, you want to make a great last impression too.

Read More...

No Time Wasted: Years As Dependent Contractor Included In Calculation Of Notice Of Termination For Contractor Turned Employee

termination
In a recent decision (Cormier v. 1772887 Ontario Limited, the Ontario Court of Appeal has confirmed that years spent as a dependent contractor may count for calculating notice of termination for a contractor turned employee who was terminated without cause. Read More...

How to Build an Autocracy

trump crowd
This picture and the following quotes are from an article written by David Frum in the Atlantic:

. . . Perhaps the better question about Trump is not “What is he?” but “What will he do to us?”


By all early indications, the Trump presidency will corrode public integrity and the rule of law—and also do untold damage to American global leadership, the Western alliance, and democratic norms around the world. The damage has already begun, and it will not be soon or easily undone. Yet exactly how much damage is allowed to be done is an open question—the most important near-term question in American politics. It is also an intensely personal one, for its answer will be determined by the answer to another question: What will you do? And you? And you?


Of course we want to believe that everything will turn out all right. . . .


The duty to resist should weigh most heavily upon those of us who—because of ideology or partisan affiliation or some other reason—are most predisposed to favor President Trump and his agenda. The years ahead will be years of temptation as well as danger: temptation to seize a rare political opportunity to cram through an agenda that the American majority would normally reject. Who knows when that chance will recur?


A constitutional regime is founded upon the shared belief that the most fundamental commitment of the political system is to the rules. . . .


What happens in the next four years will depend heavily on whether Trump is right or wrong about how little Americans care about their democracy and the habits and conventions that sustain it. If they surprise him, they can restrain him. . . .


Those citizens who fantasize about defying tyranny from within fortified compounds have never understood how liberty is actually threatened in a modern bureaucratic state: not by diktat and violence, but by the slow, demoralizing process of corruption and deceit. And the way that liberty must be defended is not with amateur firearms, but with an unwearying insistence upon the honesty, integrity, and professionalism of American institutions and those who lead them. We are living through the most dangerous challenge to the free government of the United States that anyone alive has encountered. What happens next is up to you and me. Don’t be afraid. This moment of danger can also be your finest hour as a citizen and an American.

Read More...

Rush Limbaugh Admits Presidential Medal Of Freedom Less Of An Honor Knowing That Rosa Parks, Maya Angelou Also Received It

rushWASHINGTON—Saying his initial enthusiasm had faded after learning about the award’s history, conservative radio personality Rush Limbaugh conceded Wednesday that receiving the Presidential Medal of Freedom was less of an honor knowing it had been bestowed upon Rosa Parks and Maya Angelou, too. “While I understand this medal represents the highest civilian honor possible, I was a bit disconcerted to discover this morning that I share this distinction with both a civil rights icon and a poet who gave a voice to black Americans,” said Limbaugh, who explained that he hopes people don’t doubt his integrity as he joins the ranks of the award’s previous recipients, especially Cicely Tyson, Ralph Ellison, Archbishop Desmond Tutu, Stevie Wonder, and Willie Mays. “I almost sent it back. But instead I have decided to keep my Medal of Freedom and let it stand as a testament to my willingness to tolerate others. I hope my acceptance of it will go some way toward reclaiming this honor from the Martin Luther Kings and Nelson Mandelas of the world.” At press time, Limbaugh confirmed he felt more confident that the award meant something after learning it had also been given to Henry Kissinger and Strom Thurmond.

Read More...

Dismissal For Delay In A Human Rights Complaint

remai modern
In 2015, the Saskatchewan Human Rights Commission (the "Commission") received a complaint naming Gregory Burke as well as two corporate employers as respondents. At the time, Mr. Burke was the Museum Director for what is now the Remai Modern, and he was alleged to have discriminated against female employees.

In 2019, four years after the Commission commenced an investigation into the complaint as part of the standard process, Mr. Burke brought an application to the Court of Queen's Bench seeking an order granting a stay of the entire proceedings or, alternatively, seeking an order both granting a stay of the proceedings to the extent they relate to him and removing him as a respondent. Mr. Burke argued that the investigation process resulted in inordinate delay, which caused him prejudice, and as a result the complaint against him ought to be dismissed.

In a decision dated December 31, 2019 [Burke v Saskatchewan Human Rights Commission, 2019 SKQB 339], the Court held that the four years taken to only partially conduct an investigation resulted in ordinate delay and that Mr. Burke had suffered prejudice as a result of the delay, which was sufficient to grant a stay of proceedings insofar as they involved Mr. Burke as an individual respondent. The Court went on, however, to provide commentary on the Commission's decision to expand the investigation's scope midway through the process.
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Landmark Decision From The Supreme Court: New Framework For Judicial Review

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On December 19, 2019, the Supreme Court of Canada (the Court) released a landmark ruling in a trilogy of cases intended to bring clarity to the judicial review of administrative decisions. In Canada (Minister of Citizenship and Immigration) v. Vavilov, the Court adopted a revised framework for determining when the applicable standard of review is "reasonableness" or "correctness". The Court also provided additional guidance on the proper application of the reasonableness standard, emphasizing the importance for administrative adjudicators to provide rational and coherent justifications for their decisions. This new approach was then applied in two appeals heard together as Bell Canada v. Canada (Attorney General). Read More...

Federal Court of Appeal dismisses application challenging approval of Trans Mountain pipeline

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The Federal Court of Appeal rejected claims by several First Nations that federal officials failed to adequately consult with them on the Trans Mountain pipeline, removing the final major barrier hanging over the long-delayed project. Read More...

Ontario Court Suggests Terminated Salespeople Are Fish Out Of Water

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A recent decision of the Ontario Superior Court of Justice1 calls into question prior holdings about the transferability of salespersons’ skills and offers additional insight into a terminated employee’s duty to mitigate their damages post-dismissal. Read More...

Employee's Desire To Return To Work Insufficient To Cure Frustration Of Contract

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In Katz et al v Clark, 2019 ONSC 2188, the Ontario Divisional Court unanimously held that the motion judge erred in denying summary judgement in a case where the Plaintiff's contract of employment became frustrated as a result of a permanent disability. This decision reinforces core legal principles that underpin the disability accommodation process in the workplace. Specifically, the Divisional Court reiterated that the doctrine of frustration applies where the performance of an employment contract is rendered impossible because of an employee's disability. The Divisional Court also clarified that an employee's desire to return to work alone will not cure frustration of contract. Rather, an employer's duty to accommodate is only triggered where an employee expresses both: (i) a desire to return to work, and (ii) evidence of the ability to do so. Read More...

Alberta Court Of Appeal Confirms Directors Can Be Personally Liable For Workplace Injuries

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The workers' compensation scheme is designed to provide no-fault compensation to injured workers. Under the workers' compensation scheme, however, workers lose their cause of action against their employer as well as other parties who may have been responsible for the workers' injuries suffered in the course of employment. Despite this, the Alberta Court of Appeal recently confirmed that a director can be personally liable for a workplace accident that resulted in an injury to a worker. Read More...

Employer Flexibility Does Not Modify the Employment Contract

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It is a fact of life. Employees sometimes need flexibility to start or leave work at different times than originally agreed with their employer. Sometimes this is because of child care issues. A recent appellate decision, Peternel v. Custom Granite & Marble Ltd., confirms that employer flexibility in granting occasional requests does not always modify the underlying employment contract. Read More...

Stalkerware apps struck down for the first time ever by the FTC

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Hollywood has us believing that spyware technology is only used by secret-agent hackers who plant tracking devices in the wheels of cars or in the soles of shoes. But in reality, “stalkerware” isn’t as high-tech or inaccessible as we’re led to believe. It’s a tool that can be harnessed as a dangerous weapon, stripping people of their privacy — especially women in abusive relationships.

Stalkerware technology, also known as “spouseware,” takes the form of applications or add-ons to a device that allows someone to remotely monitor another person’s activity. This technology has become increasingly accessible, but yesterday, the Federal Trade Commission (FTC) made its first case against the developers behind three stalking apps — originally created to monitor children and employees – that may also be used for illegitimate purposes.
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Managing Change In The Workplace – Constructive Dismissal And The Duty To Mitigate

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Last week's Nova Scotia Court of Appeal's decision in Halifax Herald Limited v. Clarke, 2019 NSCA 31, is good news for employers. The Court overturned the trial judge's determinations that an employee had been constructively dismissed after he was transferred to a new sales position and had not failed to mitigate his damages by declining to stay at work in the new position.

The Court held that the trial judge had committed three reversible errors by: (1) excluding relevant evidence of actual sales results; (2) misapplying the legal test for constructive dismissal; and (3) misapplying the legal test for mitigation. As a result, the Court not only overturned the trial decision but dismissed the action outright. The former employee must now pay the Herald approximately $130,000, which includes trial and appeal costs.

This decision is good news for employers faced with restructuring their business to manage industry change and other developments. It brings improved clarity to the law of constructive dismissal and the duty to mitigate. The analysis must be objective and consider the evidence from the employer without unduly focusing on the employee's subjective views. Moreover, a reduction in income – whether actual or anticipated – does not automatically remove the duty to mitigate by continuing in the position.
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No Pay In Lieu Of Notice For Disabled Employees?

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Recently an interesting summary judgment decision on a wrongful dismissal case was released in Alberta. In Belanger v. Western Ventilation Products Ltd. (Belanger), 2019 ABQB 571, the court held that while the reasonable notice period provided to the employee was insufficient, it had no practical effect as the employee was not entitled to any further payments from the employer after the employee became disabled and unable to work partway into their working notice period. Read More...

The Importance of Dressing Well for a Job Interview

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

There are a lot of reasons for the job interview to weigh heavily on people’s minds. It’s a very all-or-nothing situation; you’re in or you’re out. Of course more factors than your clothing come into play — but the clothes matter too, and even habitually sloppy dressers tend to be aware that interviews call for special care.

So let’s start by debunking a piece of well-meaning but incomplete advice: While some will say that you should wear a suit to every interview no matter what, the truth is that there is no default “interview suit.” And not every job interview even requires a suit; in the wrong setting it can actually hurt your chances.

Yes, a good business suit is frequently the best choice for an interview. In tomorrow’s article we’ll talk all about when to wear one and how to perfectly pull it off. But we’re also going to cover your other options, and most importantly we’ll talk about how to choose the right outfit for the kind of job you’re going for.

Before we dive into those specifics and the how of dressing well (and appropriately) for a job interview, however, today we’ll simply unpack exactly why it’s so important in the first place.
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Take A Break: Court Of Appeal Rules That Employee's Rescinded Resignation Still Interrupted Length Of Employment

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The Ontario Court of Appeal has overturned a trial decision and found that when an employee resigned from employment, only to rescind the resignation, the employer was permitted to enforce the employment contract entered into as a condition of “continuing” employment. Read More...

Uncertain Changes And A Strained Relationship Do Not Amount To Constructive Dismissal

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Reza Baraty alleged he was constructively dismissed from his position with Wellons Canada Corp. ("Wellons"). He considered: (1) his position to have been eroded to the point where he was no longer a manager; and (2) the work environment to have become intolerable because of bullying and harassment by a co-worker.

In Baraty v. Wellons Canada Corp., 2019 BCSC 33, the B.C. Supreme Court dismissed his claims.
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