Ted's Blog

Beyond The Fun: Mitigating Potential Liabilities Arising From Employer-organized Events

’Tis the season for festivities and merriment but for employers, organizing holiday parties comes with a set of legal considerations. While the goal of these work get-togethers is to foster a joyful atmosphere, it is crucial to be aware of potential liabilities associated with holiday parties, or any employer-organized events. Read More...

Non-Solicitation Covenant In Employment Contract Enforced

Non Solicitation
Non-solicitation covenants are clauses that prohibit employees from soliciting clients or employees from their former employer after leaving the company. The courts have generally upheld these covenants when they are reasonable in scope, duration, and geographic limitation. However, enforcing such covenants can be challenging. Employers should carefully draft non-solicitation clauses to ensure they are enforceable and seek legal advice when dealing with potential breaches.

Although non-solicitation and non-competition clauses have been considered a restraint of trade and contrary to public policy, they can be enforceable in certain circumstances. Since the threshold for enforcement is high, those circumstances have often been few and far between.

In Catch Engineering Partnership v. Mai, Justice Armstrong upheld the enforceability of a non-solicitation covenant in an employment contract and awarded damages against the former employee. This case is important as it deals with how and when a non-solicitation covenant will be enforced and the damages that may be awarded for such a breach.

Defamatory Facebook Posts Prove Costly

As we have previously discussed, defamatory posts on Facebook and similar social media platforms can be costly. Posts written in acrimonious circumstances that make unfounded attacks on someone's reputation can lead to a substantial damage award if they are not promptly retracted or removed. Read More...

Kindness as a signifier of intelligence

The following appeared in a blog by John Gruber.

clip from Illinois governor J.B. Pritzker’s commencement speech at Northwestern rings so true to me. The older I get, the more my thinking runs along the exact same line. Worth watching the whole clip, but here’s the nut:

The best way to spot an idiot? Look for the person who is cruel. When we see someone who doesn’t look like us, or sound like us, or act like us, or love like us, or live like us — the first thought that crosses almost everyone’s brain is rooted in either fear or judgment or both. That’s evolution. We survived as a species by being suspicious of things we aren’t familiar with.

In order to be kind, we have to shut down that animal instinct and force our brain to travel a different pathway. Empathy and compassion are evolved states of being. They require the mental capacity to step past our most primal urges. I’m here to tell you that when someone’s path through this world is marked with acts of cruelty, they have failed the first test of an advanced society. They never forced their animal brain to evolve past its first instinct. They never forged new mental pathways to overcome their own instinctual fears. And so, their thinking and problem-solving will lack the imagination and creativity that the kindest people have in spades.

Over my many years in politics and business, I have found one thing to be universally true: the kindest person in the room is often the smartest.

I like the idea of responding to acts of cruelty with “Idiot”.

Federal Notice Of Termination Amendments Starting February 1, 2024

Termination Notice
On June 1, 2023, the Federal government determined February 1, 2024 as the date on which new notice of termination provisions under the Canada Labour Code will come into effect. These provisions will require federally regulated employers to provide individual employees with a graduated notice of termination, or pay in lieu of notice, based on the length of an employee's continuous employment. Read More...

Employer Wins $112,000 In Damages After Employee Resigned And Took A Client To A Competitor

Non Solicitation
In a recent Alberta decision, Catch Engineering Partnership v Mai, the Court of King's Bench of Alberta was asked to determine whether an employee had breached the terms of his employment agreement when he quit, immediately solicited a client of his employer before his resignation was effective, lied about his intentions to his employer, then joined a competitor and began working for the client. The Court awarded $112,000 in damages to the employer, finding that the employee had breached both his non-solicitation and confidentiality clauses, which the Court found amounted to a "flagrant" breach of the employee's duty of good faith.

It is a welcome decision for many employers, who often face the challenge of enforcing restrictive covenants and confidentiality clauses after a former employee moves to a competitor and takes clients with them.

S.C.C. rules on mandatory minimum driving prohibition.

"After being charged with a summary conviction impaired driving offence, the offender was released on an undertaking not to operate a motor vehicle while awaiting trial. She remained subject to that prohibition until she was sentenced 21 months later. At the time of the offence, s. 259(1)(a) of the Criminal Code (“Cr. C.”) required the court to make an order prohibiting an offender charged with a first impaired driving offence from operating a motor vehicle during a period of not less than one year. The sentencing judge imposed a one‑year driving prohibition on the offender and chose to backdate the order to the first day of the pre‑sentence prohibition, which meant that the period prescribed by law had been completed in full by the date of his decision. The summary conviction appeal judge dismissed the Crown’s appeal. While noting that the sentencing judge had erred in backdating the prohibition, he found that the sentencing judge could nevertheless give credit for a pre‑sentence driving prohibition as long as such a prohibition was a condition of release and also part of the sentence later imposed. However, a majority of the Court of Appeal allowed the Crown’s subsequent appeal, holding that there is no authority for giving credit so as to depart from a mandatory minimum provided for by statute."

The SCC (8:0)
granted the appeal.

AB KB Gives Guidance On Layoff, Termination, Mitigation & Bias

In Northern Air Charter (PR) Inc v Dunbar, 2023 ABKB 171 (Woolley) (the "Dunbar Appeal"), the Alberta Court of King's Bench provided some key guidance and insight into several issues that have not received recent judicial treatment in Alberta, including:

  • The distinction between a "layoff" and a termination;
  • The application of the common law to employees who are federally regulated and to whom the Canada Labour Code applies;
  • Whether rejecting an employer's offer of re-employment constitutes a failure to mitigate damages; and
  • The legal test for judicial bias.

This case was an appeal from the Provincial Court of Alberta's decision Dunbar v Northern Air, 2019 ABPC 179 where the Plaintiff Mr. Dunbar had been awarded 5 months' reasonable notice. The appeal was dismissed and Judge Hess' decision in favor of Mr. Dunbar was upheld. Read More...

S.C.C. finds police must have a breathalyzer with them when demanding a breath sample.

In R. v. Breault, 2023 SCC 9 — “On April 2, 2017, two police officers were informed by forest trail patrollers that an individual who was intoxicated was driving an all‑terrain vehicle (“ATV”). At about 1:35 p.m., the police officers arrived at the scene, saw B and stopped him as he was about to leave the scene on foot. One of the officers noticed that B’s eyes were bloodshot and that his breath smelled strongly of alcohol. At 1:41 p.m., that officer radioed for an approved screening device (“ASD”) to be brought to him, since the officers did not have one in their possession. Once he had requested an ASD, the officer demanded that B provide forthwith a breath sample pursuant to s. 254(2)(b) of the Criminal Code. Starting at 1:45 p.m., B refused three times to provide the requested sample on the ground that he had not been driving the ATV in question. He was arrested for refusing to comply with a demand to provide a breath sample contrary to s. 254(5) Cr. C. The Municipal Court judge held that the validity of the demand made by the police officer did not depend on the presence of an ASD at the scene. He convicted B of the offence of refusing to comply with a demand made under s. 254(2) Cr. C., contrary to ss. 254(5) and 255(1) Cr. C. B’s appeal to the Superior Court was dismissed, but his subsequent appeal to the Court of Appeal was allowed. The Court of Appeal found that, in order for a demand to be valid, the peace officer must be in a position to demand that the driver provide a breath sample forthwith, which means that the officer must have immediate access to an ASD. The court was of the view that the demand made to B by the police officer was invalid due to the absence of an ASD. It reversed the lower courts’ judgments and directed that a judgment of acquittal be entered."

The SCC (8 :0) dismissed the appeal.

Secret Recordings May Amount To Just Cause For Dismissal

The British Columbia Supreme Court's decision in Shalagin v Mercer Celgar Limited Partnership, 2022 BCSC 112 illustrates when an employee's secret workplace recordings will amount to just cause for dismissal. Read More...

‘Spare' Us The Details? Maybe Not: An Employers Duty To Inquire

Duty to Inquire
It's hard for me to take off the labour and employment lawyer hat. I view everything through a certain lens.

Even as an avid Royal watcher, I was initially quite critical of Prince Harry and thought of him as a disgruntled employee who had quit his job, yet strangely thought he should retain his salary and benefits. Then, as I read his memoir "Spare" I considered what an employer's obligations would have been in an ordinary workplace with respect to Harry's mental health issues.

Harry describes himself as "alternating between periods of extremely debilitating lethargy and terrifying panic attacks."

"My official life consisted of going out in public, engaging in discussions, debates and giving interviews, and suddenly I found myself almost incapable of doing these basic functions," he says. He goes on in his book to self-diagnose himself with post-traumatic stress disorder, which came on after his return from Afghanistan in 2013.

Had Harry been an ordinary employee exhibiting these symptoms at work, it may have triggered the duty to inquire on the part of his employer.