Ted's Blog

Highest Punitive Damages Award In Canadian Jurisprudential History

The 2023 decision of the Ontario Court of Appeal in Baker v Blue Cross Life Insurance Company of Canada, 2023 ONCA 842 is officially the highest punitive damages award in Canadian jurisprudential history. The Court of Appeal upheld the jury's award of $1,500,000 in punitive damages against Blue Cross Insurance Company of Canada due to their "pattern of misconduct that, at best, shows reckless indifference to its duty to consider [Ms. Baker's] claim in good faith and conduct a good faith investigation, and at worst, demonstrates a deliberate strategy to wrongfully deny her benefits, regardless of the evidence that demonstrated an entitlement". 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...

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.


Insolence, Insubordination And After-Acquired Evidence Of Just Cause

On November 9, 2021, the B.C. Supreme Court released its decision in the case of Golob v. Fort St. John (City), 2021 BCSC 2192.

The case concerned a wrongful dismissal claim against the City of Fort St. John by its former Deputy Fire Chief.

The City dismissed the plaintiff for what it alleged to be just cause. This followed an investigation into a report that the Deputy Fire Chief had been overheard making disparaging remarks about his superior, the Fire Chief.

The Court's decision provides a useful refresher on two important legal principles associated with just cause terminations:

  1. No duty of "procedural fairness" is owed by an employer to an employee, even when the employer is a public body.
  2. Reliance can be placed on after-acquired evidence of just cause that existed at the time of termination.

For the benefit of those who appreciate precision in drafting, the Court also helpfully distinguished between "insubordination" and "insolence" as separate and different forms of misconduct.

Continuous Video Surveillance Of Employees: Psychological Harassment?

video camera
Case law recognizes that constant and continuous video surveillance of employees may constitute an unreasonable working condition, and thus violate . . . Human Rights and Freedoms . . . when not justified in a rational and proportionate manner according to the circumstances.

In the case of Lazzer v. Magasin Baseball Town inc.,, 2022 QCTAT 478, rendered by the administrative judge Pierre-Étienne Morand on February 3, 2022, rather than having to determine whether the presence of cameras constituted an unreasonable working condition within the meaning of the Charter, the Administrative Labour Tribunal ("Tribunal") had to rule on the merits of complaints of psychological harassment filed in this context.

SCC clarifies re fines instead of forfeiture where proceeds of crime.

maple syrup
"In 2016, V was convicted of fraud, trafficking and theft in respect of maple syrup. The stolen maple syrup, which had a market value of over $18,000,000, passed through the hands of several individuals before it was resold by V, who collected the income and paid his various accomplices. By V’s own admission, he earned $10,000,000 in income from the resale of the syrup obtained by theft or fraud and made a personal profit of nearly $1,000,000, minus certain transportation costs.

Under s. 462.37(3) of the Criminal Code, the trial judge imposed a fine on V in lieu of an order for forfeiture of property that was proceeds of crime (“fine in lieu”). Because the trial judge was of the opinion that he had no choice but to impose a fine equal to the value of the property that was proceeds of crime and that had been in V’s possession or under his control, he ordered V to pay a fine corresponding to the resale value of the maple syrup obtained by theft or fraud, that is, $10,000,000, minus the amount of a restitution order. However, the Court of Appeal reduced that amount to the profit made by V, $1,000,000, minus the amount of the restitution order. It held that courts have the discretion to impose a fine that reflects the profit made from a criminal activity, provided that this penalty meets the dual objective of deprivation of proceeds and deterrence. It was of the view that the fine imposed on V by the trial judge was clearly disproportionate to the objectives of the scheme governing this type of fine and that it created a situation of double recovery in light of the fines imposed on V’s accomplices."

The SCC (9:0)
allowed the appeal.

Court Finds Employee's Reaction To Missed Promotion Was Cause For Dismissal

dismissedIn a recent decision, Thomas v. Saskatchewan Indian Gaming Authority Inc., the Court of Appeal of Saskatchewan re-affirmed the governing principles applicable to dismissal for cause. This case provides guidance to employers looking to address an employee's conduct after receiving news of a missed promotion or raise; specifically, whether or not dismissing said employee for cause is appropriate in the circumstances.

SCC confirms employer must pay nearly $1.1 million to former employee

Matthews v. Ocean Nutrition Canada Ltd. is a recent decision of the Supreme Court of Canada (the "SCC") that dealt with the issue of how much money an employee is entitled to when successfully suing a former employer for wrongful dismissal (i.e. when an employee is dismissed by an employer without adequate notice).
In this case, the employee and the employer agreed that, if the employee was a full-time employee as of the date the employer (a corporation) was sold, the employee would receive a payment from the employer (the "Incentive Agreement"). The arrangement was designed to reward the employee for his past contributions and act as an incentive to continue contributing to the employer's success.
Eventually, the employee's employment was terminated without any notice from the employer. About 13 months later, the employer was sold for $540 million. The employer did not pay anything to the employee in connection with the sale because the employee was not a "full-time employee" at the time.
Fast forward to the SCC's decision, in which it decided that the employer did have to pay the employee the amount he would have been entitled to had he been a "full-time employee" at the time of sale - nearly $1.1 million.

Ont. C.A. rules lawsuit against coroner after death of Indigenous child should proceed.

ont ca
From the Canadian Press:

A lawsuit filed by the family of a four-year-old Indigenous boy against the coroner tasked with investigating his death will be allowed to proceed after Ontario's top court found a judge erred in dismissing it before trial.

SCC sets framework re retroactive child support decreases & recission of arrears.

Child Support
“The parties were married in 1983 and divorced in 1996. The mother was granted sole custody of the parties’ two daughters and the father was required to pay child support of $115 per week per child until they were no longer children of the marriage. In 1998, the father requested a reduction in his child support obligations, but provided no financial disclosure to support his request and the parties reached no agreement at that time. The father’s child support obligations ended in 2012. From 1998 to 2016, the father made no voluntary child support payments and only limited sums were collected through enforcement mechanisms. During the period in which the arrears accrued, the father was absent from the children’s lives and his whereabouts were unknown. In 2016, the father applied to retroactively reduce child support and rescind the arrears of approximately $170,000. He provided little documentation or financial disclosure to support his claims. The motion judge retroactively decreased support, effectively reducing the arrears owing to $41,642. He found that this variation was warranted in order to bring the child support in line with the Federal Child Support Guidelines and to reflect the father’s drop in income over the period when the arrears were accruing. The Court of Appeal overturned that decision and ordered that the father pay the full amount of the arrears."

The SCC (9:0)
dismissed the appeal.

Ontario Superior Court Finds Entitlement To Discretionary Bonus During Common Law Notice Period

As many of . . . readers are aware, the Canada Labour Code, R.S.C., 1985, c. L-2 (the "Code") governs the operations of federally regulated companies. It is not often that an Ontario court reviews the enforceability of a termination provision under the Code. Despite this, in a recent decision, the Ontario Superior Court reviewed the enforceability of a termination provision and clarified whether an employee was entitled to receive payment of a discretionary bonus following the termination of their employment. Read More...

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

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.

"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.

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

"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

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.

Supreme Court of Canada finds Uber arbitration clause unconscionable, invalid.

"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.

Supreme Court Confirms That Workplace Safety Can Supersede Freedom Of Religion

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...

BC Court rules Meng extradition proceedings to continue.

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.


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

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.

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.

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

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.

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

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.


Court Upholds Enforceability of Arbitration Clauses in BC Employment Contracts

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."


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

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.


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


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.

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.


Old Consideration Is No Consideration For Changes To Employee Contract

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.

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

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...

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.

Landmark Decision From The Supreme Court: New Framework For Judicial Review

jud review
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

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

sales mgr
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

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

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

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...

Managing Change In The Workplace – Constructive Dismissal And The Duty To Mitigate

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.

No Pay In Lieu Of Notice For Disabled Employees?

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...

Take A Break: Court Of Appeal Rules That Employee's Rescinded Resignation Still Interrupted Length Of Employment

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

const dis
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.

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.

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.

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.

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...

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.

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".

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...

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...

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...

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...

Cumulative Breach Of Ethics Upheld As Proper Dismissal For Cause

Asserting and establishing just cause when faced with an action of wrongful dismissal is a difficult and often unsuccessful avenue for employers. Establishing an employee has committed acts or omitted to perform the responsibilities of their position therefore disentitling them to common law reasonable notice is a high burden. The height of the legal burden will differ depending on the type of cause asserted, but it remains an uphill battle for employers regardless of whether the cause is framed as insubordination, theft, fraud or a combination of issues.

A decision from the Court of Queen's Bench of Alberta provides a useful illustration of how cumulative improper acts can amount to just cause. The decision,
Molloy v. EPCOR Utilities Inc. involved an employee that was dismissed in 2009 following an investigation into complaints of breaches of the employer's Ethics and Respectful Workplace Policies and improper conduct with another utility company. Read More...

False Allegations Of Cause Prove Costly For Employer

Employers who choose to raise unfounded allegations of just cause for strategic reasons, to avoid severance costs or to use such allegations as leverage to reduce their severance obligations, ought to beware. The end result could be more costly. This clear message was sent to an Ontario employer, Altus Group Limited ("Altus"), in an Ontario Superior Court decision (Gordon v. Altus Group Limited, 2015 ONSC 5663). Read More...

Can Employers Terminate Disobedient Employees For Cause?

It is generally understood that employees must follow the lawful orders of their employers and may be disciplined for disobeying such orders. However, the more difficult question faced by employers is whether a disobedient employee can be fired for just cause. Although not every instance of disobedience will allow an employer to dismiss an employee for cause, the recent decision of the British Columbia Supreme Court in Cotter v. Point Grey Golf and Country Club, 2016 BCSC 10, confirms that an employer may have cause to terminate an employee whose repeated actions are willfully disobedient and "seriously incompatible with the employee's duties". Read More...

Are Bonuses Really Just "Bonuses"? A Look At Whether Bonuses Are Payable Post-Termination

With the waves of layoffs and terminations this year, a question asked frequently by employers and employees alike is, "Are employees entitled to their share of bonuses for the time they worked prior to their termination?"

Many employees . . . have arrangements where bonuses (and other forms of incentive compensation, such as stock options and share units) form a significant part of their total compensation. A departing employee may be giving up a considerable sum if the termination of employment means forfeiting bonuses for the period he or she actively worked prior to the termination notice. It is a crucial question for all affected and, unfortunately, one that is consistently disputed between employers and employees.

The courts wrestle with the issue of enabling an employer to effectively exclude an employee from bonuses for the duties and services the employee performed prior to termination. A practice often in issue is that of an employer's timing the delivery of a termination notice right before the bonus payment date, to the detriment of the departing employee.

While there is no easy answer, there are common factors the courts consider in determining whether to award bonuses for work prior to the termination notice. These common factors include the terms of the contract, whether the bonus is integral to the employees' total compensation and whether the notice period includes the date when the employees would normally be paid their bonuses.

Supreme Court of Canada rules Crown has no duty to consult First Nation regarding law-making process.

"In April 2012, two pieces of omnibus legislation with significant effects on Canada’s environmental protection regime were introduced into Parliament. The Mikisew Cree First Nation was not consulted on either of these omnibus bills at any stage in their development or prior to the granting of royal assent. The Mikisew brought an application for judicial review in Federal Court, arguing that the Crown had a duty to consult them on the development of the legislation, since it had the potential to adversely affect their treaty rights to hunt, trap, and fish under Treaty No. 8. The reviewing judge granted a declaration to the effect that the duty to consult was triggered and that the Mikisew were entitled to notice of the relevant provisions of the bills, as well as an opportunity to make submissions. On appeal, a majority of the Federal Court of Appeal concluded that the reviewing judge erred by conducting a judicial review of legislative action contrary to the Federal Courts Act . The majority held that when ministers develop policy, they act in a legislative capacity and their actions are immune from judicial review. It deemed the reviewing judge’s decision to be inconsistent with the principles of parliamentary sovereignty, the separation of powers, and parliamentary privilege. The Mikisew appealed."

S.C.C. held (9:0) (with reasons for judgment by Karakatsanis J. [Wagner C.J. and Gascon J. concurring]. As well as separate concurring reasons by Abella [Martin J. concurring], Brown J., and Rowe J. [Moldaver and Côté JJ. concurring]), that the appeal is dismissed. Read More...

Be Careful What You Wish For: Ontario Court Holds That An Employee Cannot Rescind A Clear And Voluntary Notice Of Resignation

In English v Manulife Financial Corporation, the Ontario Superior Court of Justice considered whether an employee who has voluntarily resigned may later rescind her notice of resignation or retirement. The court found that while an employer may voluntarily accept such a rescission, it is not required to do so. Read More...

Employers Not Obligated To Accommodate Personal Choices – Including Breastfeeding

The Federal Court of Appeal has upheld the Public Service Labour Relations and Employment Board's (the "Board") decision that refusing an employee's request to telework fulltime so that she could continue to breastfeed her child was not discriminatory. Read More...

Supreme Court rules ISP's can recover reasonable costs of Norwich order compliance.

"The Respondents are film production companies that allege that their copyrights have been infringed online by unidentified Internet subscribers who have shared their films using peer to peer file sharing networks. They sued one such unknown person and brought a motion for a Norwich order to compel his Internet service provider (“ISP”), Rogers, to disclose his contact and personal information. The respondents sought that the disclosure order be made without fees or disbursements payable to Rogers, relying on ss. 41.25 and 41.26 of the Copyright Act . These provisions, referred to as the “notice and notice” regime, require that an ISP, upon receiving notice from a copyright owner that a person at a certain IP address has infringed the owner’s copyright, forward that notice of claimed infringement to the person to whom the IP address was assigned. They also prohibit ISP's from charging a fee for complying with their obligations under the regime. The motion judge granted the Norwich order and allowed Rogers to recover the costs of all steps that were necessary to comply with it. He found that while the statutory notice and notice regime regulates the process by which notice of claimed copyright infringement is provided to an ISP and an Internet subscriber, as well as the retention of records relating to that notice, it does not regulate an ISP’s disclosure of a subscriber’s identity to a copyright owner. The Federal Court of Appeal agreed with the motion judge that the statutory notice and notice regime does not regulate the disclosure of a person’s identity from an ISP’s records, but it confined Rogers’ recovery to the costs of complying with the Norwich order that did not overlap with the steps that formed part of Rogers’ implicit obligations under the statutory regime. Rogers appealed."

The S.C.C. (9:0)
allowed the appeal and remitted to the motion judge to determine the quantum of Rogers’ entitlement to its reasonable costs of compliance with the Norwich order. Read More...

Court Finds Employment Agreement Signed After Offer Letter Presented To Employee Unenforceable

It is common that during the hiring process an employer will have various discussions with the applicant. The general terms of the job will be explained and, if the applicant accepts the job, a general offer letter or e-mail confirmation of a welcoming nature will be sent. Sometime later, the applicant will sign additional documents, including benefits forms and, most importantly, an employment agreement.

Many employers follow this process without a second thought. However, a recent case from the Ontario Superior Court of Justice should give employers pause as the Court found that an employment agreement that was signed after an offer letter was presented to a prospective employee to be unenforceable.

Jumping To Conclusions Proves Costly For Employer

A recent decision from the Ontario Superior Court is a reminder to employers that dismissal for just cause must be based on solid ground. Relying on vague acts of misconduct will not suffice, and policies must be properly implemented and consistently enforced. Read More...

Can An Employer Require That A Candidate Undergo Pre-Employment Drug And Alcohol Testing?

drug test
The law of drug and alcohol testing in Canada is in a state of evolution. While the Supreme Court of Canada's decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd., 2013 SCC 34, provided important guidance on the strict standard that employers must meet in order to subject employees to random testing, it raised many questions regarding how those principles would be applied to other forms of testing.

In the two years since the decision was released, the trend in the case law suggests that the Court's analysis in Irving Pulp & Paper is not limited to random testing. For example, in Re Mechanical Contractors Association Sarnia v UA Local 663, 2014 ONSC 6909, the Ontario Superior Court of Justice upheld an arbitration award which applied Irving Pulp & Paper to conclude that the employer did not have the right to require pre-employment testing.

Court Of Appeal Confirms Employer's Financial Circumstances Are Irrelevant In Determining Employees' Right To Common-Law Notice Of Termination

You are a senior manager at a not-for-profit or charitable organization. You have been tasked with trimming costs given a freeze on Government funding and a lack of new fundraising. Unfortunately, that will result in a reduction of headcount.

Given your role and experience, you know that employees dismissed without cause are entitled to notice or pay in lieu of notice. You even know that, besides statutory requirements, sometimes severance packages are offered to employees in recognition of additional employee rights to "reasonable notice" at common-law. The amount of the severance packages has always reflected your organization's financial realities. Indeed, you have only previously "let go" staff due to budgetary concerns. As such, the packages have usually been lower than what you understand (from your HR friends) to be what is "market" for bigger or private sector entities where financial concerns had not factored into the equation. Your employees have usually "signed off" without too much fuss.

However, with the recent dismissals, two employees have retained counsel and have asked for additional severance that is far beyond what your severance package has offered. The "ask" seems excessive and does not reflect either the size of your organization or the current financial difficulties confronting it. Surely, counsel for the employee must recognize your organization's current state of affairs and adjust (downward) his/her demand accordingly?

Unfortunately, given a very recent decision from the Ontario Court of Appeal, the answer to this question is "no".

Assert A Weak Case For 'Just Cause For Termination' At Your Peril!

A recent Alberta Court of Queen's Bench case sends a strong caution to employers: act in good faith in performing the employment contract or be prepared to pay. In Karmel v Calgary Jewish Academy, the judge awarded a staggering $200,000.00 in aggravated damages to the employee for the harm he suffered from the employer's bad-faith handling of his termination. This award was in addition to the $606,027.97 awarded to the employee for the outstanding balance owed to him under the contract. Read More...

ON Court Orders Punitive Damages For An Employer's Willful Mischaracterization Of The Basis Of A Termination

A recent case from the Ontario Superior Court of Justice, Gordon v. Altus Group Ltd., 2015 ON SC 5663, serves as a reminder that employers should not exaggerate facts when asserting a defence of "just cause" termination. Read More...

BC SC finds off-duty administrative driving prohibition is not just cause for dismissal of firefighter

The British Columbia Supreme Court's decision in Klonteig v. West Kelowna (District), 2018 BCSC 124, offers guidance to employers about terminating an employment relationship for conduct occurring outside working hours. Read More...

Supreme Court of Canada clarifies test for internet defamation jurisdiction.

"G is a prominent Canadian businessman who also owns one of the most popular professional soccer teams in Israel. H is Israel’s oldest daily newspaper, which is published in print and online. H published an article about G, which the latter alleges to be libellous. The main subject of the article is G’s ownership and management of his Israeli soccer team, but the article also references his Canadian business and his approach to management. While the article was not distributed in print form in Canada, it was available electronically. G commenced an action for libel in Ontario, alleging damage to his reputation. H brought a motion to stay the action, arguing that Ontario courts lacked jurisdiction or, alternatively, that Israel was a clearly more appropriate forum. The motion judge dismissed H’s motion, finding that Ontario courts had jurisdiction and refusing to decline to exercise this jurisdiction in favour of Israeli courts. A majority of the Ontario Court of Appeal dismissed H’s appeal."

The S.C.C. held (6:3, with 3 judges writing separate individual concurring reasons) that the appeal is allowed and the motion to stay the action granted.

Supreme Court of Canada rules on what is/is not professional misconduct.

"G, a lawyer, was hired by F to defend him against charges of insider trading and authorizing misleading news releases brought against him by the Ontario Securities Commission (“OSC”). F’s trial was characterized by a pattern of escalating acrimony and by a series of disputes between G and the OSC prosecutors, which included personal attacks, sarcastic outbursts and allegations of professional impropriety made by G. In particular, the OSC prosecutors and G disagreed over the scope of the OSC’s disclosure obligations and the format of such disclosure, as well as over the admissibility of documents. Much of the disagreement stemmed from G’s honest but mistaken understanding of the law of evidence and the role of the prosecutor. During the trial, despite the frequency and fervor of the dispute, the trial judge initially adopted a hands‑off approach, but he finally directed G to stop repeating his misconduct allegations. G largely followed the trial judge’s directions. Evidentiary disputes were eventually resolved and the trial was completed, with F being acquitted on all charges.

After F’s trial, the Law Society brought disciplinary proceedings against G on its own motion, alleging professional misconduct based on his uncivil behaviour during the trial. A three‑member panel of the Law Society Hearing Panel found G guilty of professional misconduct, suspended his licence to practice law for two months and ordered him to pay nearly $247,000 in costs. On appeal by G, the Law Society Appeal Panel also concluded that G was guilty of professional misconduct, but it reduced G’s suspension to one month and decreased the costs award against him to $200,000. In its decision, the Appeal Panel developed a multi‑factorial, context‑specific approach for assessing whether in‑court incivility amounts to professional misconduct. The Divisional Court upheld the Appeal Panel’s decision as reasonable. A majority of the Court of Appeal dismissed G’s further appeal."

The S.C.C. (6:3)
allowed the appeal.

Supreme Court of Canada rules religion dogma not decided by courts of law.

"The Highwood Congregation of Jehovah’s Witnesses is a voluntary, religious association. A member must live according to accepted standards of conduct and morality. A member who deviates and does not repent may be asked to appear before a Judicial Committee of elders and may be disfellowshipped. In 2014, W was disfellowshipped after he engaged in sinful behaviour and was considered to be insufficiently repentant. The decision was confirmed by an Appeal Committee. W filed an originating application for judicial review pursuant to Rule 3.15 of the Alberta Rules of Court seeking an order of certiorari quashing the Judicial Committee’s decision on the basis that it was procedurally unfair. The Court of Queen’s Bench dealt with the issue of jurisdiction in a separate hearing. Both the chambers judge and a majority of the Court of Appeal concluded that the courts had jurisdiction to consider the merits of the application."

The S.C.C. held (9:0) the appeal is allowed and the originating application for judicial review quashed. Read More...

B.C. Court of Appeal breaks new legal ground in deciding verbal extensions to loan are new contracts

The appellant won the lottery and loaned $600,000 interest-free to her friend. Approximately one year after the loan was formed, the appellant’s friend told her “I will pay you next year”, and the appellant agreed to the extension on payment and declined to bring suit. This request was repeated for several years, but the loan was never repaid. Eventually, the appellant brought a claim against her friend. At trial, the judge found that the original term of the loan was for one year, and, based on the original repayment date, the limitation period had expired. The judge held that the subsequent promises from the friend to repay a year later were unenforceable for lack of consideration as the friend was already under an obligation to pay. The appellant’s claim was therefore dismissed as statute-barred. On appeal, the appellant argued that the trial judge erred in finding that the loan was originally repayable within a year, that the subsequent promises were unenforceable, or erred in not finding that the appellant had a property interest in her friend’s home through a resulting trust. Held: appeal allowed. Read More...

Supreme Court of Canada rules workers' compensation can apply to independent contractors.

"A tree faller was fatally struck by a rotting tree while working within the area of a forest license held by West Fraser Mills Ltd. The faller was employed by an independent contractor. As the license holder, West Fraser Mills was the “owner” of the workplace, as defined in Part 3 of the Workers Compensation Act.

The Workers’ Compensation Board investigated the accident and concluded that West Fraser Mills had failed to ensure that all activities of the forestry operation were planned and conducted in a manner consistent with s. 26.2(1) of the Occupational Health and Safety Regulation, which had been adopted by the Board pursuant to s. 225 of the Act. The Board also imposed an administrative penalty on West Fraser Mills pursuant to s. 196(1) of the Act, which permits the Board to penalize an “employer”. These aspects of its decision were confirmed by the review division. The Workers’ Compensation Appeal Tribunal dismissed West Fraser Mills’ appeal, but reduced the administrative penalty. The British Columbia Supreme Court and the Court of Appeal upheld the Tribunal’s order."

The S.C.C. held (6:3, with 3 separate dissenting reasons) that the appeal is dismissed. Read More...

Supreme Court of Canada finds garage owner not liable for car-stealing teens.

"J and his friend C, both then minors, were at the house of C’s mother drinking alcohol and smoking marijuana. Sometime after midnight, they left the house to walk around town, with the intention of stealing valuables from unlocked cars. Eventually they made their way to R (a commercial car garage) located near the main intersection. The garage property was not secured, and the boys began walking around the lot checking for unlocked cars. C found an unlocked car parked behind the garage. He opened it and found its keys in the ashtray. Though he did not have a driver’s license and had never driven a car on the road before, C decided to steal the car so that he could go and pick up a friend in a nearby town. C told J to “get in”, which he did. C drove the car out of the garage and on the highway where the car crashed. J suffered a catastrophic brain injury. Through his litigation guardian, J sued R, C and C’s mother for negligence.

At trial, it was held that R owed a duty of care to J. The jury found that all parties had been negligent and made the following apportionment of liability: R’s garage, 37 percent liable; C, 23 percent liable; C’s mother, 30 percent liable; and J, 10 percent liable. The Ontario Court of Appeal upheld the trial judge’s finding that R owed a duty of care to J and dismissed the appeal.

The only issue in this appeal is whether R owed J a duty of care."

The S.C.C. held (7:2): appeal allowed, claim against R dismissed. Read More...

SCC rules provincial laws can have incidental effects on interprovincial trade.

"Together with other provisions of the New Brunswick Liquor Control Act, s. 134(b) makes it an offence to “have or keep liquor” in an amount that exceeds a prescribed threshold purchased from any Canadian source other than the New Brunswick Liquor Corporation. C is a resident of New Brunswick who entered Quebec, visited three different stores, and purchased quantities of alcohol in excess of the applicable limit. Returning from Quebec to New Brunswick, C was stopped by the RCMP; he was charged under s. 134(b) and was issued a fine. C challenged the charge on the basis that s. 121 of the Constitution Act, 1867 — which provides that all articles of manufacture from any province shall be “admitted free” into each of the other provinces — renders s. 134(b) unconstitutional. The trial judge found s. 134(b) to be of no force and effect against C and dismissed the charge. The Court of Appeal dismissed the Crown’s application for leave to appeal."

The Court held that the appeal is allowed. Section 134(b) of the Liquor Control Act does not infringe s. 121 of the Constitution Act, 1867. Read More...

Supreme Court Clarifies Constituent Elements of Influence Peddling

"C was formerly a Senior Advisor in the Office of the Prime Minister. The year following his departure from this position, he agreed to use his government contacts to help H2O Professionals Inc. sell water treatment systems to First Nations. In exchange, H2O promised to pay a commission to his then girlfriend. After this agreement was made, C spoke to government officials in order to promote the purchase of H2O’s products. He sought to convince Indian and Northern Affairs Canada to set up a project whereby it would fund the purchase of H2O’s products to pilot them in First Nations communities. Sections 121(1) (a)(iii) and 121(1) (d)(i) of the Criminal Code criminalize the selling of influence in connection with any matter of business relating to the government. C was charged with influence peddling under s. 121(1) (d). At trial, he took the position that his assistance was not in connection with a matter of business relating to the government. The trial judge agreed and acquitted him on the basis that First Nations, rather than government, decided whether to purchase the type of water treatment systems sold by H2O. A majority of the Court of Appeal allowed the appeal. It set aside the acquittal, entered a verdict of guilty and remitted the matter to the trial judge for sentencing."

The S.C.C. (8:1)
dismissed the appeal.

Scary Amount Of Punitive Damages Ordered Against 'Mean And Cheap' Employer

In the recent case of Gordon v Altus, 2015 ONSC 5, the Ontario Superior Court considered several issues that arose in a wrongful dismissal case. The plaintiff sold his company to the defendant and was hired on after the sale. However, the relationship broke down. In the employer's view, the plaintiff engaged in conduct that amounted to just cause, some of which was discovered after the dismissal: talking about senior personnel in a derogatory manner, swearing to the point where it made working with him unbearable, not disclosing lending money to a company the employer was doing business with, which created a conflict of interest, and employing someone who had been charged with fraud and misleading the defendant of same. Read More...

BCCA Issues Guidance on the Role of Unions in the Employee Accommodation Request Process

In Telus Communications Inc. v. Telecommunication Workers’ Union, 2017 BCCA 100, the BC Court of Appeal held that the Telecommunications Workers’ Union (the “Union”) did not have the right to participate in all employee requests for accommodation. An application for leave to appeal the Court of Appeal’s decision was recently dismissed by the Supreme Court of Canada, making the Court of Appeal’s decision the final word on the matter. Read More...

Court Finds "Extraordinary" Circumstances To Award 27 Months' Notice

The dismissal of a long-term employee who is entitled to common law reasonable notice can result in significant liability for an employer. As the determination of the appropriate notice period is contextual, it can be difficult for an employer to accurately assess their potential liability. Typically, an employer can be confident that the employee's notice entitlement will be "capped" at 24 months. However, employers should be aware that courts can award more than 24 months in extraordinary circumstances. Read More...

SCC rules human rights legislation covers discriminatory conduct with sufficient nexus to employment.

"S‑M worked for Omega and Associates Engineering Ltd. as a civil engineer on a road improvement project. Omega had certain supervisory powers over employees of Clemas Construction Ltd., the primary construction contractor on the project. Clemas employed S as site foreman and superintendent. When S made racist and homophobic statements to S‑M on the worksite, S‑M raised the comments with Omega. Following further statements by S, Omega asked Clemas to remove S from the site. Clemas did so without delay, but S continued to be involved on the project in some capacity. When the harassment continued, Clemas terminated S’s employment.

S‑M filed a complaint before the British Columbia Human Rights Tribunal against S alleging discrimination on the basis of religion, place of origin, and sexual orientation. S applied to dismiss the complaint, arguing that s. 13 of the Human Rights Code had no application because S‑M was not in an employment relationship with S. The Tribunal held that it had jurisdiction to deal with the complaint and, accordingly, it denied S’s application under s. 27(1)(a) of the Code. The British Columbia Supreme Court dismissed S’s application for judicial review, but the Court of Appeal allowed S’s appeal and found that the Tribunal erred in law by concluding that it had jurisdiction over the complaint."

S.C.C. (6:3) allowed the appeal.

SCC rules police can use production orders to obtain stored text messages from service providers.

service provider
"J was convicted of several firearms and drug trafficking offences. His convictions rest on records of text messages seized from a Telus account associated with his co‑accused that were obtained under a production order pursuant to s. 487.012 of the Criminal Code (now s. 487.014 ). Prior to trial, J sought to exclude the text messages on the basis that obtaining them by means of a production order contravened his s. 8 Charter right. The trial judge found that J lacked standing to challenge the production order under s. 8 and he was therefore convicted. J’s appeal against conviction was dismissed."

S.C.C. held (6:1) that the appeal is dismissed and the production order upheld. Read More...

SCC rules can have a reasonable expectation of privacy re texts sent to another's phone.

"M sent text messages to an accomplice, W, regarding illegal transactions in firearms. The police obtained warrants to search his home and that of W. They seized M’s BlackBerry and W’s iPhone, searched both devices, and found incriminating text messages. They charged M and sought to use the text messages as evidence against him. At trial, M argued that the messages should not be admitted against him because they were obtained in violation of his s. 8 Charter right against unreasonable search or seizure. The application judge held that the warrant for M’s home was invalid and that the text messages recovered from his BlackBerry could not be used against him, but that M had no standing to argue that the text messages recovered from W’s iPhone should not be admitted against M. The judge admitted the text messages and convicted M of multiple firearms offences. A majority of the Court of Appeal agreed that M could have no expectation of privacy in the text messages recovered from W’s iPhone, and hence did not have standing to argue against their admissibility."

S.C.C. held (5:2) that the appeal is allowed, the convictions set aside, and acquittals entered.

SCC rules management directive not reasonable; does not engage s.7 liberty interests.

"In the early 1990s, the employer established a standby shift system to respond to urgent immigration matters outside of normal business hours, whereby a lawyer in the Immigration Law Directorate in the Quebec Regional Office of the Department of Justice Canada would be available evenings and weekends to attend on short notice to any urgent stay applications that might arise. Until 2010, the system worked on a volunteer basis. Lawyers who volunteered to cover standby shifts were compensated with paid leave and received the same amount of compensation irrespective of whether they were called into work. In March 2010, the lawyers were informed that they would no longer be paid for time spent on standby. Instead, they would be compensated — through either overtime pay or paid leave, depending on their seniority status — only for the time they spent working if they received an urgent request. With this change in policy, there were no longer enough volunteers to cover the standby periods. In response, the employer issued a directive making after‑hour standby shifts mandatory. The Association of Justice Counsel then filed a grievance on behalf of lawyers working in the Immigration Law Directorate.

The collective agreement at issue is silent on standby duty, but it specifies that the employer retains all management rights and powers that have not been modified or limited by the collective agreement. The labour adjudicator concluded that the directive was not a reasonable or fair exercise of management rights and infringed the lawyers’ right to liberty under s. 7 of the Charter. He ordered the employer to immediately cease applying the directive. The Federal Court of Appeal allowed the government’s application for judicial review and set aside the adjudicator’s decision."

The S.C.C. (with two judges dissenting in part)
allowed the appeal in part; the adjudicator’s decision that the directive contravened the collective agreement is reasonable and his order that the employer stop applying the directive should be reinstated. Read More...

SCC rules resort approval does not infringe First Nation's freedom of religion.

grizzly bear
"The Ktunaxa are a First Nation whose traditional territories include an area in British Columbia that they call Qat’muk. Qat’muk is a place of spiritual significance for them because it is home to Grizzly Bear Spirit, a principal spirit within Ktunaxa religious beliefs and cosmology. Glacier Resorts sought government approval to build a year‑round ski resort in Qat’muk. The Ktunaxa were consulted and raised concerns about the impact of the project, and as a result, the resort plan was changed to add new protections for Ktunaxa interests. The Ktunaxa remained unsatisfied, but committed themselves to further consultation. Late in the process, the Ktunaxa adopted the position that accommodation was impossible because the project would drive Grizzly Bear Spirit from Qat’muk and therefore irrevocably impair their religious beliefs and practices. After efforts to continue consultation failed, the respondent Minister declared that reasonable consultation had occurred and approved the project. The Ktunaxa brought a petition for judicial review of the approval decision on the grounds that the project would violate their constitutional right to freedom of religion, and that the Minister’s decision breached the Crown’s duty of consultation and accommodation. The chambers judge dismissed the petition, and the Court of Appeal affirmed that decision."

S.C.C. held (9:0, with separate partially concurring reasons by two judges) that the appeal is dismissed. Read More...

Is It Really Easier To Dismiss An Employee During His Or Her Probationary Period?

BC Supreme Court confirms the lower threshold for dismissing an employee without notice during their probationary period.

Many employers require new employees to complete a probationary period to allow the employer to assess the employee's suitability and fit within the organization. In
Langford v Carson Air Ltd., the B.C. Supreme Court considered an employer's ability to dismiss an employee without notice during the probationary period, and offered some guidance on the actual purpose of a probationary period. Read More...

Make Whole Remedies And Good Faith Crucial To Mitigation

A recent decision of the BC Court of Appeal provides a cautionary tale for BC employers seeking to remedy a potential wrongful dismissal. Read More...

Employee Properly Fired For Workplace Violence Threats, Despite His Mental Disability: Appeal Court

An employee's mental disability, unknown to his employer at the time of dismissal, played no role in the reason he was fired. He was fired because he made violent threats against coworkers, the Ontario Court of Appeal has held. Read More...

Court Finds Abandonment For Failure To Return To Work Or Provide Medical

dis mgt
Disability management is a challenging issue for HR professionals. An employee with a disability may require an extended absence from work due to their medical condition. Where an employer provides disability benefits, the employee will be required to show that they meet the definition of disability under the insurance policy, which will require the disclosure of medical information. A recent decision from the Ontario Superior Court addresses the issue of when an employee is considered to have abandoned their employment where they fail to comply with requests for medical information and also refuse to return to work. Read More...

The Court Weighs In: Termination For Social Media Misconduct

Over a decade had passed since Ellen Simonetti, dubbed the "Queen of the Sky" was fired by Delta Air Lines after her infamous "Diary of a Dysfunctional Flight Attendant" blog. Simonetti wasn't fired simply for blogging about her interesting lifestyle or worldwide travel as a flight attendant. According to Delta Airlines she was terminated for associating her blog with the company and for including, what the company deemed to be, inappropriate pictures and material.

While that decision was settled out of court, it did stoke a debate between employees' freedom of expression and employers' rights to control the dissemination of their sensitive information and protect their reputation and brand.

This debate was rekindled recently in the British Columba Supreme Court decision in
Kim v International Triathlon Union, 2014 BCSC 2151. Kim, a manager at International Triathlon Union (ITU), was terminated after making several negative blog, Facebook and tweet posts about her employer and her direct supervisor. In one blog, Kim compared her relationship with her supervisor to her alleged mistreatment as a child, saying she felt "like that kid all over again; beaten, discouraged, alone and scared." Read More...

SCC finds standard of review re arbitrator interpreting enabling legislation (whether dispute arbitrable) is reasonableness.

"The Health Insurance Act (“Act”) provides that the remuneration and working conditions of health care professionals are to be established by way of a collective bargaining mechanism that resulted, in this case, in the Accord‑cadre entre le ministre de la Santé et des Services sociaux et la Fédération des médecins spécialistes du Québec aux fins de l’application de la Loi sur l’assurance maladie (“Framework Agreement”). The Fédération and the Ministère de la Santé et des Services sociaux (collectively, “negotiating parties”) created a digitization fee to encourage radiologists to modernize their equipment. This fee is reserved for laboratories that the negotiating parties jointly recognize and designate, following a procedure and applying criteria they themselves have provided for in the Protocole concernant la radiologie diagnostique (“Protocol”), one of the schedules to the Framework Agreement. Section 54 of the Act provides that a “dispute resulting from the interpretation or application of [the Framework Agreement] is submitted to a council of arbitration, to the exclusion of any court of civil jurisdiction”. A distinction is made in the Framework Agreement between a [translation] “dispute with respect to fees” raised by a physician and a “collective dispute” raised by the Fédération.

G, a radiologist who is a member of the Fédération, applied to the negotiating parties for a declaration that certain clinics were eligible for the digitization fee. His application was denied. G contested that decision by submitting a dispute to the council of arbitration. The arbitrator, who was appointed to perform the functions of the council of arbitration on his own, found that he lacked jurisdiction to grant G the declaration being sought and that, at any rate, G did not have standing to submit the dispute. The motion judge granted G’s motion for judicial review, finding that the arbitrator’s decision was unreasonable. The majority of the Court of Appeal upheld the motion judge’s decision."

S.C.C. held (6:1, with joint reasons by Wagner and Gascon JJ., separate Joint Reasons [concurring in the result] by Brown and Rowe JJ., and dissenting reasons by Côté J.) that the appeal is allowed and the award of the council of arbitration restored. Read More...

SCC confirms that corporate directors can be liable personally for oppression.

"From 2005 to 2007, A was the President, the Chief Executive Officer, a significant minority shareholder and a director of Wi2Wi Corporation (“Wi2Wi”). In March 2007, in negotiating the merger of Wi2Wi with another corporation, A also agreed to sell it some of his common shares and signed a share purchase agreement to that effect without notifying Wi2Wi’s Board. When the Board found out about the existence of the agreement, A was censured for concealing the deal and failing to disclose the potential conflict of interest. Consequently, A resigned from his functions. W, a member of Wi2Wi’s Board and audit committee, became its President and CEO. Neither the merger nor the share purchase occurred.

In September 2007, in response to Wi2Wi’s continuing financial difficulties, the Board decided to issue a private placement of convertible secured notes (“Private Placement”) to its existing common shareholders. Prior to the Private Placement, the Board accelerated the conversion of Class C Convertible Preferred Shares, beneficially held by an investment company for W, into common shares. It did so despite doubts as to whether or not the financial test for C Share conversion had been met. However, A’s Class A and B Convertible Preferred Shares were never converted into common shares, notwithstanding that they met the relevant conversion tests. In Board meetings, W and another director, B, advocated against converting A’s A and B Shares on the basis of A’s conduct and involvement in the parallel share purchase negotiation when he was President. Consequently, A did not participate in the Private Placement and the value of his A and B Shares and the proportion of his common shares in Wi2Wi were substantially reduced. A then filed an application under s. 241 of the Canada Business Corporations Act for oppression against four of Wi2Wi’s directors, including W.

The trial judge granted the application in part. He held W and B solidarily liable for the oppression and ordered them to pay A compensation. The Court of Appeal dismissed W and B’s appeal. It held that the imposition of personal liability was justified and that the pleadings did not preclude it. W now appeals to the Court, challenging the trial judge’s conclusion that it was fit to hold him personally liable for the oppressive conduct."

The S.C.C. (9 : 0)
dismissed the appeal.

No General Right For Grievors To Remain Unidentified In Labour Arbitration Decisions

The British Columbia Court of Appeal (in a recent case identified as United Food & Commercial Workers Union, Local 1518 v. Sunrise Poultry Processors Ltd.) has confirmed that there is no general right for grievors or witnesses to avoid having their names disclosed in labour arbitration awards. The Court concluded that labour arbitrators are bound by the requirements of the Personal Information Protection Act ("PIPA"), but that they are not required to obtain consent from grievors or witnesses to disclose personal information about those individuals in arbitral awards. Read More...

SCC re-calibrates hearsay test.

"Two people were shot to death. Suspected by police, T became the target of a Mr. Big investigation, during which he told an undercover officer that he shot both victims. He then told Mr. Big that he had shot one victim and that B had shot the other. T was arrested. When he later re‑enacted the murders for police, he implicated B in both. T and B were charged with two counts of first degree murder and T pled guilty to second degree murder. Because T refused to give sworn testimony at B’s trial, the Crown sought to admit into evidence T’s re‑enactment, which had been video‑recorded. Following a voir dire, the trial judge admitted the re‑enactment, under the principled exception to the hearsay rule. A jury convicted B on two counts of first degree murder. The Court of Appeal allowed the appeal, set aside B’s convictions and ordered a new trial."

The S.C.C. (5:2)
dismissed the appeal.

Worldwide interlocutory injunction against Google upheld.

"E is a small technology company in British Columbia that launched an action against D. E claimed that D, while acting as a distributor of E’s products, began to re‑label one of the products and pass it off as its own. D also acquired confidential information and trade secrets belonging to E, using them to design and manufacture a competing product. D filed statements of defence disputing E’s claims, but eventually abandoned the proceedings and left the province. Some of D’s statements of defence were subsequently struck.

Despite court orders prohibiting the sale of inventory and the use of E’s intellectual property, D continues to carry on its business from an unknown location, selling its impugned product on its websites to customers all over the world. E approached Google and requested that it de‑index D’s websites. Google refused. E then brought court proceedings, seeking an order requiring Google to do so. Google asked E to obtain a court order prohibiting D from carrying on business on the Internet saying it would comply with such an order by removing specific webpages.

An injunction was issued by the Supreme Court of British Columbia ordering D to cease operating or carrying on business through any website. Between December 2012 and January 2013, Google advised E that it had de‑indexed 345 specific webpages associated with D. It did not, however, de‑index all of D’s websites. De‑indexing webpages but not entire websites proved to be ineffective since D simply moved the objectionable content to new pages within its websites, circumventing the court orders. Moreover, Google had limited the de‑indexing to searches conducted on google.ca. E therefore obtained an interlocutory injunction to enjoin Google from displaying any part of D’s websites on any of its search results worldwide. The Court of Appeal for British Columbia dismissed Google’s appeal."

The S.C.C. (7:2)
dismissed the appeal and upheld the worldwide interlocutory injunction against Google. Read More...

Drugs And Big Trucks Don't Mix Agrees The Alberta Court Of Appeal

Employers in Canada with safety-sensitive workplaces constantly struggle with adjudicators preferring employee privacy and discrimination laws over keeping a workplace safe from the use of drugs and alcohol. The Alberta Court of Appeal has now firmly preferred safety over an addicted employee's drug use and its associated risks to him and co-workers: Stewart v Elk Valley Coal Corporation, 2015 ABCA 225. Read More...

Fishing for Notice: British Columbia Supreme Court addresses inducement and contingency factors in wrongful dismissal suits

In a recent BC Supreme Court decision, Sollows v. Albion Fisheries Ltd., the court clarified what qualifies as inducement in the context of a reasonable notice period assessment. The court also took a novel approach to contingency, which can arise where the hearing takes place before the end of the employee’s reasonable notice period. Read More...

SCC decides what constitutes workplace disability discrimination.

"S worked in a mine operated by the Elk Valley Coal Corporation, driving a loader. The mine operations were dangerous, and maintaining a safe worksite was a matter of great importance to the employer and employees. To ensure safety, the employer implemented a policy requiring that employees disclose any dependence or addiction issues before any drug‑related incident occurred. If they did, they would be offered treatment. However, if they failed to disclose and were involved in an incident and tested positive for drugs, they would be terminated.

S used cocaine on his days off. He did not tell his employer that he was using drugs. When his loader was involved in an accident, he tested positive for drugs and later said that he thought he was addicted to cocaine. His employer terminated his employment. S, through his union representative, argues that he was terminated for addiction and that this constitutes discrimination under s. 7 of the Alberta Human Rights, Citizenship and Multiculturalism Act.

The Alberta Human Rights Tribunal held that S was terminated for breaching the policy, not because of his addiction. Its decision was affirmed by the Alberta Court of Queen’s Bench and by the Alberta Court of Appeal."

The S.C.C. held (8:1) that the appeal is dismissed. Read More...

You Can't Always (Do) What You Want: Judge Finds Failure To Mitigate For Choosing New Career

Since the Supreme Court of Canada ruled in Evans v. Teamsters, much has been made about the issue of mitigation. That decision, a positive one for employers, established a new standard in wrongful dismissal cases for when employees would be deemed to have failed to mitigate: essentially saying that except in extreme cases of a breakdown in the employment relationship, if an employee refused an alternative-employment offer from his or her employer then he or she has failed to mitigate.

In another positive development for employers, a recent case out of British Columbia may offer a new wrinkle: where an employee takes him- or herself out of the job market to switch careers, he or she may have failed to mitigate.

"What About Your In-Laws Or Your Neighbour?" Family Status Discrimination – Yet Another Development

Family status accommodation in the workplace continues to undergo critical judicial scrutiny. A recent Alberta case that could have implications for employers has taken yet another direction in considering what obligations should be placed on employers in connection with requests for family status accommodation.

Under the stricter BC approach, which requires that the employee demonstrate a serious interference with a substantial family obligation, it is a challenge for employees to claim a right to be accommodated. While there is a growing number of court cases outside BC that have adopted a lower test for triggering the duty to accommodate, some decisions have required that employees demonstrate that they considered reasonable efforts to self-accommodate their childcare obligations before they can trigger an obligation on the employer to reasonably accommodate their obligations. Under this approach, it was appropriate for employers to ask employees who are seeking accommodation about other options for childcare before exploring whether changes at work should be considered.

The Alberta Court of Queen's Bench has now waded in with a decision that could have consequences on the employer's duty to accommodate:
SMS Equipment Inc v Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162. Read More...

Actually You Weren't Fired! Court Rules Long-Term Employee Should Have Accepted New Role

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A recent decision of the Ontario Superior Court of Justice has reinforced an employer's ability to re-organize work flow and adjust employee responsibilities. One of the main roadblocks that an employer will face any time an employee's job title or responsibilities are changed is a claim of constructive dismissal. Constructive dismissal occurs when an employer has made changes to fundamental aspects of an employee's working conditions (e.g. wage, title, work location, hours of work, etc.) and these changes amount to a repudiation of the employment contract. Unilateral and fundamental changes to the employment relationship may result in an employee claiming they have been constructively dismissed and are owed statutory notice or common law reasonable notice.

In the decision of
Bolibruck v. Niagara Health System, 2015 ONSC 1595 the Plaintiff claimed she had been constructively dismissed after her role as a Health Program Director ("HPD") was adjusted to include some non-clinical work and a new reporting structure. In 2010 the plaintiff, after being in a HPD role at the Niagara Falls hospital, was moved to the new St. Catherine's General Hospital. Despite maintaining the HPD title, the plaintiff was given new and high profile work relating to transition work needed for the new hospital. Ms. Bolibruck was ultimately unhappy with the changes to her role and viewed the modification as a demotion. Furthermore, she claimed that the HR supervisor had acted in a verbally abusive manner towards her and she was moved to a smaller office. Read More...

Seniority Reset: BC Court of Appeal Rules On Seniority In An Asset Purchase Agreement

A recent case out of the Court of Appeal for British Columbia has confirmed that where a business is not sold as a going concern, an employee's years of service recognition resets, regardless of whether that employee takes on employment with the successor company. Read More...

"Common Employer" Liable For Employee Compensation

The Ontario Court of Appeal has upheld the decision of the Ontario Superior Court of Justice in the recent common employer case, King v. 1416088 Ontario Ltd. (c.o.b. Danbury Industrial), 2014 ONSC 1445. The Court found that the Defendants were common employers and therefore they were jointly and severally liable for the compensation owing to King. Read More...

Summer Fun, Fall Lawsuit

sex harass
Employers often express their appreciation to employees by hosting events such as seasonal parties, barbeques or other social events. While the employer's intentions may be good, the result isn't always a reflection of those good intentions.

Employers can be held liable for unfortunate acts which occur at these social events, even if the acts were completely unexpected, unapproved or arguably beyond the employer's ability to prevent. A case in point is K.L. v. Calypso Water Park Inc., 2015 ONSC 2417 (CanLII).

Court Finds Employee's Job Search Efforts Fail To Satisfy Duty To Mitigate

As a general principle, employees who have been wrongfully dismissed have a duty to mitigate their damages by taking reasonable steps to secure comparable alternative employment. However, the onus is on the employer to prove a failure to mitigate and Courts have held that this onus is not easy to discharge. To do so an employer must show both that the employee failed to make reasonable efforts to find new employment, and that if the employee had made such efforts, new employment could have been found.

Notwithstanding this high burden, a recent decision by the Supreme Court of British Columbia is a rare example where an employer has succeeded in demonstrating a failure to mitigate, resulting in a reduced reasonable notice period.

Can The Director Of A Corporation Be Held Personally Liable For Unpaid Wages And Termination Pay?

The Ontario Superior Court has held that the director of a closely-held corporation can be held liable for unpaid wages and termination pay under the oppression remedy. Read More...

BCCA Clarifies McKinley: "Contextual Approach" And Prior Discipline

In a British Columbia Court of Appeal decision released in late April 2014, a trial judge's decision was set aside and a new trial ordered. The trial judge's decision in Ogden v. Canadian Imperial Bank of Commerce 2014 BCSC 285 (CanLII) provided the Court of Appeal with an opportunity to clarify the law of cumulative cause in Ogden v. Canadian Imperial Bank of Commerce 2015 BCCA 175. (CanLII) As always, we encourage readers to review the cases for more detail in the specific facts and areas of law covered by the courts. Our comments on the case follow. Read More...

Maternity Leave Was No Reason To Reduce Bonus

The recent decision of the B.C. Supreme Court in Sowden v. Manulife Canada Ltd. is noteworthy for its interpretation of a written agreement regarding bonus payments, and the court's reluctance to allow an employer to use an employee's maternity leave as a reason to reduce her bonus payment. Read More...

It's A Two-Way Street: Employees Are Required To Give Notice Of Resignation

In Consbec Inc v Walker, a family drama played out publicly in the Supreme Court of British Columbia. The Court reminded both Canadian employers and employees of the (limited) obligations employees owe employers after resigning from employment. Read More...

Court Of Appeal Upholds Decision Granting Employee Notice Period Based On Employment With Predecessors

The Court of Appeal recently dismissed an appeal from . . . [Danbury v 1416088 Ontario Ltd.]. The reasons given were not extensive, but the Court of Appeal upheld the trial judge's determination that there was a sufficiently close relationship amongst the various companies for which the employee had worked to establish common liability under the Employment Standards Act. As a result, the final company for which the employee worked prior to dismissal was liable for the employee's entire length of service in determining the common law notice period. The Court of Appeal also upheld the liability of the final employer for the employee's entire pension entitlement. Read More...

Court Of Appeal Finds Progressive Discipline Not Necessary In Just Cause Dismissal

Just cause is a difficult standard for employers to meet. In most cases, employees who are terminated from employment will be entitled to notice or pay in lieu of notice. However, there are circumstances where the courts will find that dismissal for cause is warranted, as illustrated in a recent decision of the Ontario Court of Appeal, Agostino v Gary Bean Securities Ltd. Read More...

Does An Employee Automatically Resign If They File A Constructive Dismissal Action?

What happens when an employee files a constructive dismissal action against their employer, but keeps coming to work? Can the employer take the position that the employee has resigned, or must the employer allow the employee to keep working indefinitely? This issue was recently considered by the Nova Scotia Supreme Court in Garner v Bank of Nova Scotia, 2015 NSSC 122. Read More...

Do Courts Award Increases To Base Salary During Notice Period?

A recent Ontario Superior Court of Justice court decision did. In Chen v. Purdue Pharma (2015 ONSC 1967), a summary judgment decision, the court said yes, where the employee believed that actual salary increases would occur, those increases should be reflected in the notice period. We always encourage our readers to read the full-text of a decision to have an understanding of the context and circumstances. Read More...

BC Court Of Appeal Rules In Favour Of The Provincial Government On Regulating Class Sizes And Composition

On April 30, 2015, the BC Court of Appeal ruled in favour of the BC provincial government in a longstanding dispute regarding BC teachers' right to bargain collective agreement terms over class sizes and composition. The Court of Appeal's majority decision overturns two previous decisions in BC's lower court in which the BC Teachers' Federation (BCTF) was successful in arguing that it was unconstitutional for the government to pass legislation to prevent teachers from bargaining these important issues. Read More...

Gotta Have (Good) Faith: Wrongful Dismissal And Aggravated Damages In George v. Cowichan Tribes

In a recent decision of the British Columbia Supreme Court, George v. Cowichan Tribes, 2015 BCSC 513, an employer was faulted both for dismissing an employee for conduct outside the workplace and for failing to allow an exemplary employee to respond to the allegations against her. The case is a cautionary tale for employers, demonstrating some of the issues that can arise when due care is not taken in the course of dismissing an employee. Read More...

Employer Entitled To "Better Doctor’s Note" After Six Month Absence

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The Federal Court of Appeal decided in Western Grain By-Products Storage Ltd. v. Donaldson, 2015 FCA 62 (March 4, 2015), that Western Grain By-Products Storage Ltd ("Western Grain") did not constructively dismiss its employee, Donaldson, when it refused to return him to work from extended leave due to illness without receipt of "a better doctor's note." Read More...

Supreme Court of Canada holds judicial review more effective remedy than Charter damages.

“The Alberta Energy Regulator (the “Board”) is a statutory, independent, quasi‑judicial body responsible for regulating Alberta’s energy resource and utility sectors. E claims that the Board breached her right to freedom of expression under s. 2 (b) of the Canadian Charter of Rights and Freedoms by punishing her for publicly criticizing the Board and by preventing her, for a period of 16 months, from speaking to key offices within it. E brought a claim against the Board for damages as an “appropriate and just” remedy under s. 24(1) of the Charter for that alleged breach. The Board applied to strike this claim on the basis, among others, that it is protected by an immunity clause — i.e., s. 43 of the Energy Resources Conservation Act — which precludes all claims in relation to the Board’s actions purportedly done pursuant to the legislation which the Board administers. Both the Alberta Court of Queen’s Bench and the Court of Appeal found that the immunity clause on its face bars E’s claim for Charter damages and concluded therefore that it should be struck out. On appeal to this Court, E reformulated her claim to add a challenge to the constitutional validity of s. 43."

S.C.C. held (with one judge writing majority reasons, with which one other judge wrote separate reasons concurring in the result, and three other judges writing joint dissenting reasons which whom one judge concurred), that the appeal is dismissed. Read More...

SK court finds that deciding against arbitral consensus without adequate explanation is factor that spoke against reasonableness.

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The Saskatchewan Court of Queen’s Bench found that deciding against arbitral consensus without adequate explanation was a factor that spoke against reasonableness. Read More...

Wrongful Dismissal And Mitigation: Can A Fired Worker Start His Own Business?

The recent case of Leeming v. IBM Canada Ltd. includes a useful review of the law relating to mitigation of damages in the context of wrongful dismissal. It provides some particularly useful insights into the issue that arises when the fired employee, unable to find comparable employment, starts his or her own business. Read More...

Is The Duty To Accommodate Less Onerous For Probationary Employees? Possibly...

A recent case from the Alberta Court of Appeal considered this question in the context of an employee with Asperger's syndrome working at a call centre but, unfortunately, did not provide a definitive answer. Although the decision suggests that the duty to accommodate can be less onerous for probationary and short service employees, the threshold for establishing undue hardship is onerous and is always judged on a case by case basis. Therefore, employers should carefully consider the circumstances before taking the position that accommodation cannot continue (or commence). Read More...

Avoiding The "Long-Haul" Begins With The Agreement

It all starts with the agreement.

Probationary periods are a useful tool for employers assessing the suitability of new hires.

Generally, a valid agreement setting out a probationary period allows the employer to dismiss an employee during the probationary period without meeting the high threshold of just cause. The decision to terminate a probationary employee will typically be upheld if the decision was not arbitrary, discriminatory or done in bad faith (subject to the terms of any applicable collective agreement or possible human rights issues).

Although it is easier to terminate the employment of a probationary employee, a probationary period can only be relied on if it is properly set out within the initial employment agreement.

Supreme Court Of Canada Finds Constructive Dismissal Where Administrative Suspension Is Not Justified And Reasonable

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The Supreme Court of Canada has overturned the New Brunswick Court of Queen's Bench and the New Brunswick Court of Appeal in a new landmark constructive dismissal case: Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10.

Potter was the executive director of the New Brunswick Legal Aid Services Commission (the "Commission"). Approximately mid-way through the seven year contract term, in the spring of 2009, Potter and the Board of Directors (the "Board") began to negotiate a buyout of the contract. In October 2009, before an agreement was reached, Potter's physician advised him to take time off work for medical reasons for a period of one month. This medical leave was extended until January 4, 2010 and later to January 18, 2010. The Board unilaterally decided on January 5, 2010, without informing Potter, that if a buyout agreement was not reached by January 11, 2010, it would request that the Lieutenant-Governor in Council revoke Potter's appointment pursuant to s. 39(4) of the Legal Aid Act, RSNB 1973 c I-13 (the "Act").

On January 11, 2010, the Board requested the dismissal and forwarded a letter to Potter advising him not to return to work until further notice. A replacement was designated, but Potter's wages continued to be paid. Despite his request, Potter was not provided with reasons for his suspension. On March 9, 2010, Potter commenced a legal action claiming constructive dismissal.

The trial judge found that the Commission had the statutory authority to place Potter on an administrative suspension with pay and that this was not a constructive dismissal despite its indefinite term. The Court of Appeal upheld that decision.

On appeal, the Supreme Court of Canada (the "Court") found that the Commission had constructively dismissed Potter. Drawing largely on Farber v. Royal Trust Co., [1997] 1 S.C.R. 846, the Supreme Court of Canada discussed the two forms of constructive dismissal:

Jurisdiction Of Employment Agreement Considered

An Ontario court held in Christmas v Fort McKay First Nation, 2014 ONSC 373 that it had no jurisdiction over a wrongful dismissal claim arising out of an employment contract made by email and performed in Alberta despite the fact that the agreement stated that the laws of Ontario were to govern the agreement. The contractual choice of law clause governed the law to be applied in interpreting the contract, but did not confer jurisdiction on the Ontario courts to undertake that interpretation. The action lacked a real and substantial connection with Ontario and that conclusion was not altered by the fact that the plaintiff had, in Ontario, made a counterproposal to the Alberta employer's initial offer. The acceptance was received in Alberta. Read More...

SCC Clarifies Constructive Dismissal And Employee Suspensions

A new Supreme Court of Canada decision provides guidance with regard to constructive dismissals and employee suspensions. In particular, employers must provide a business justification for administrative suspensions with pay or risk being deemed to have constructively dismissed the suspended employee.

Constructive dismissal arises when an employee who has not been expressly terminated claims the employer's actions amount to a repudiation of the employee's employment contract. These cases result in a claim for pay-in-lieu of termination notice, and sometimes, depending on the severity of the employer's actions, aggravated damages.

In a non-unionized employment context, employee suspensions often create uncertainty as to whether the employer has authority to suspend the employee or whether the suspension amounts to constructive dismissal.

While the Supreme Court of Canada's (the SCC's) latest decision and comments do not answer all questions or provide any new rights with regard to constructive dismissal and employee suspensions, they provide a new analytical framework and some clarity on these topics, which is important because the stakes are often life-altering when an employee claims constructive dismissal—a big pay out or a deemed voluntary resignation.

Failure To Mitigate

Aylsworth v Law Office of Harvey Storm, 2016 ONSC 3938 is an interesting case that further defines the boundaries of what type of job employees can reasonably reject without failing in their duty to mitigate their wrongful dismissal damages. Read More...

Supreme Court of Canada holds vigorous outspoken good faith criticism of courts and decisions not contempt.

"N‑D was the spokesperson for a student organization that held protests and formed picket lines in Quebec’s various post‑secondary institutions over proposed increases in university tuition fees. M, a student, obtained a provisional interlocutory injunction that mandated free access to the facilities in which classes for M’s program were held. In a television interview he gave with another student leader, N‑D stated that such attempts to force students back to class do not work, that a minority of students use the courts to circumvent the majority’s collective decision to go on strike, and that picket lines are an entirely legitimate means to ensure respect of the vote to strike. M filed a motion for contempt against N‑D for his comments in the interview. N‑D was found guilty of contempt of court under art. 50 para. 1 of the Code of Civil Procedure and sentenced to 120 hours of community service to be completed within six months under the supervision of a probation officer. The Court of Appeal set the conviction and sentence aside and entered an acquittal."

S.C.C. held (with joint reasons for judgment by Abella and Gascon JJ., with whom three judges concurred; concurring reasons by Moldaver J.; dissenting reasons by Wagner J. (with whom two other judges concurred) that the appeal is dismissed.

SK Court of Appeal rules Labour Relations Board breached procedural fairness by consulting a website to support its conclusion without asking the parties for further submissions

The Court of Queen’s Bench dismissed two applications to quash a decision of the Saskatchewan Labour Relations Board. The two appellants argued that the board’s decision breached procedural fairness falling into two categories: the board conducted ex parte research following its oral decision; and the board improperly heard the parties because one member was not physically present when the board adjourned to deliberate and was without materials that had been filed during oral argument. The reasonableness of the board’s decision was also questioned by the appellants. A grocery store changed operation with the former and latter being covered by different certification orders. The unions applied to the see who would represent the employees of the store. The oral hearing was adjourned to hear a final witness. The board found that s. 37 of The Trade Union Act applied such that the new operator of the store was the successor. The Queen’s Bench concluded that the board’s review of one of the union’s websites did not result in any change to its approach although it was a breach. Read More...

Supreme Court of Canada holds trial judges can only depart from plea bargains/joint submissions when they would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.

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"A‑C attended a drop‑in centre which provided assistance to people suffering from mental health and addiction problems. He had a long‑standing mental health disorder and substance abuse issues. On February 9, 2013, A‑C punched a regular volunteer at the drop‑in centre, G, who fell, hit his head on the pavement, and died. A‑C was 28 years old and had a prior criminal record. After his arrest, he was taken to a mental health facility. Following his discharge, A‑C breached his bail conditions and was held in custody thereafter until his sentencing hearing, a period of approximately 11 months. After several days of trial, A‑C pleaded guilty to manslaughter for his role in the death of G. The Crown and the defence made a joint submission on sentence, proposing a further 18 months’ in custody with no period of probation to follow. The trial judge applied a “fitness test” to the joint submission and rejected it. He concluded that an appropriate sentence was two years less a day, factoring in deductions for pre‑sentence custody, and added a three year probation order. The Court of Appeal unanimously dismissed A‑C’s sentence appeal on the basis that the sentence imposed was fit in the circumstances."

The S.C.C. (7:0)
allowed the appeal, varied the sentence to bring it into conformity with the joint submission. Read More...

How Not To Terminate A Long-Service Employee

Lessons learned from Arnone v. Best Theratronics Ltd., 2015 ONCA 63, on appeal from 2014 ONSC 4216

The recent Ontario Court of Appeal in Arnone v. Best Theratronics Ltd., 2015 ONCA 63, illustrates how the litigation process can hammer employers who do not make reasonable offers when terminating a long-service employee. Hard-ball litigation tactics can end up costing the employer way more than a reasonable settlement proposal.

A Rose By Any Other Name Is Not As Sweet: When A Non-Solicit Is Actually A Non-Compete

The Ontario Court of Appeal has held that the words "accept business", in what the employer intended to be a non-solicitation clause, served to restrict competition and is therefore not merely a non-solicitation clause. Read More...

"Too Much" Is Never Enough When Dignity Injured: B.C. Human Rights Tribunal's Ground-Breaking Award Restored By Court Of Appeal

You may recall that CCPartners wrote in November of last year about a case making its way through the judicial review process in British Columbia. At the time, the British Columbia Supreme Court had just overturned the largest human rights award for "injury to dignity" in the case of UBC v. Kelly. In the latest turn of events, the British Columbia Court of Appeal has now restored that landmark damages award of $75,000. Read More...

Caution For Employers Dealing With Employees Exhibiting Suspected Mental Health Issues

In Passamaquoddy Lodge v CUPE Local 1763 2016 NBQB 056 the Court of Queen's Bench upheld an original arbitration decision condemning an employer for suspending an employee pending the outcome of a psychiatric evaluation. Read More...

Bonus Payments – Do They Form Part Of A Severance Package?

Many employers have annual bonus plans which provide additional compensation to employees upon the achievement of certain objectives. In an attempt to avoid paying bonuses to terminated employees, many bonus plans contain language stating that employees must be “actively employed” upon the date of payout in order to receive a bonus payment. A recent decision of the Ontario Court of Appeal has confirmed that such language by itself is not sufficient to deprive an employee, who is terminated without cause, of compensation for a bonus. Read More...

Alberta Court Confirms And Clarifies Requirements For Random Drug Testing

drug test
In the recent case of Suncor Energy Inc. v. Unifor, Local 707A, 2016 ABQB 269, the Alberta Court of Queen's Bench confirmed and clarified the test that an employer must meet in order to justify the unilateral imposition of random drug and alcohol testing in a unionized workplace. Specifically, the Court confirmed that: (a) an employer has to demonstrate a "general problem" with alcohol and drugs in the workplace, but that problem need not necessarily be "serious" or "significant"; (b) the employer need not demonstrate a threshold causal connection between a drug and alcohol problem and accident history; and (c) evidence of a problem can come from the entire workplace and not just from the bargaining unit. Read More...

How Much Notice Of Resignation Should I Give My Employer?

Did you know that an employee is required to provide "reasonable" notice of resignation (unless you agree to a different notice period in an employment contract)? If you fail to do so, your former employer can sue you and a judge can order you to pay the employer damages. A recent Ontario Superior Court case examines the question of what reasonable notice of resignation is. Read More...

Technicality Insufficient To Set Aside

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As the practice of using employment contracts to minimize termination obligations has become increasingly common in Canada, so has the creativity of employee counsel in attempting to set aside these contracts. In recent years, we have seen the omission of the words "and benefits" with reference to a statutory notice period and the possibility that a termination clause might, in the future, contravene employment standards legislation suffice to set aside contractual termination provisions. Where such termination provisions are set aside, a court will substitute common law – which is the very result the employer intended to avoid, and the employee likely understood the employer intended to avoid, by drafting the contractual termination provision in the first place. Employer counsel have become very accustomed to defending drafting omissions challenged by employee counsel. A recent British Columbia Court of Appeal decision with respect to which the Supreme Court of Canada denied leave to appeal last week provides employer counsel with assistance in this endeavour. Read More...

Cumulative Misconduct Amounts To Just Cause For Dismissal: Chopra v. Easy Plastic Containers Limited

A recent decision by the Ontario Superior Court provides employers with a helpful precedent when seeking to terminate an employee for cause. In Chopra v. Easy Plastic Containers Limited 2014 ONSC 3666, a number of separate incidents of misconduct and performance issues, taken together, provided sufficient justification for a just cause dismissal. Read More...

Estoppel Applied By Saskatchewan Court Of Appeal To Prevent Compensation Change

In the recent decision of Viterra v Grain Services Union, 2013 SKCA 93 the Saskatchewan Court of Appeal reaffirmed the power of arbitrators to hold parties to past practice in applying a collective agreement through the doctrine of estoppel. Read More...

Supreme Court of 'Canada sets "new framework" for whether delay unreasonable.

J was charged in December 2008 for his role in a dial‑a‑dope operation. His trial ended in February 2013. J brought an application under s. 11 (b) of the Canadian Charter of Rights and Freedoms , seeking a stay of proceedings due to the delay. In dismissing the application, the trial judge applied the framework set out in R. v. Morin, [1992] 1 S.C.R. 771. Ultimately, J was convicted. The Court of Appeal dismissed the appeal."

The S.C.C. held (3 judges writing joint reasons, in which 2 judges concurred; 1 judge writing reasons concurring in the result, in which 3 other judges concurred), that the appeal is allowed, the convictions set aside and a stay of proceedings entered.

Termination Clauses: A Cautionary Tale

term notice
Anyone involved in the human resources side of management will be familiar with the concept of notice periods for terminated employees, and how they are calculated.  In most cases, the primary factor involved in determining the appropriate length of a reasonable notice period is the employee's length of service.  However, this is not always the case.  In cases dealing with particularly senior and specialized employees, significant notice periods may be awarded even for employees with short service.  In such cases, employment contracts with termination clauses can take on even greater importance for employers attempting to maximize their flexibility and limit their liability. Read More...

Post-Termination Evidence Of Mental Illness Leads To Reinstatement

In the recent decision of Cape Breton (Regional Municipality) v CUPE, Local 933, 2014 NSSC 97, the Nova Scotia Supreme Court upheld an arbitrator's decision to conditionally reinstate an employee who had been terminated due to excessive absenteeism. The employer was not aware that the employee suffered from depression at the time of the termination. Read More...

Legal Myths: Is A Terminated Employee Guaranteed One Month Per Year Of Service?

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Law is full of its share of misconceptions. For instance, many people talk about a "rule of thumb" that provides that a terminated employee is entitled to one month per year of employment. Despite this, Courts across Canada have emphatically rejected the notion that there is rule of thumb for determining appropriate notice periods for employees. Read More...

Termination Notice Awarded Beyond Expiry Of Fixed Term

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In the recent decision of Thompson v Cardel Homes Limited Partnership, 2014 ABCA 242, the Alberta Court of Appeal considered the difference between constructive dismissal and simply not renewing a fixed-term employment contract. Read More...

Lying About Absence Gives Just Cause For Termination, Says Alberta Court Of Appeal Overturning Arbitrator

In Telus Communications Inc. v Telecommunications Workers Union, an Alberta Court of Queen's Bench chambers judge quashed the decision of an arbitrator, upholding termination of a grievor terminated for dishonesty surrounding an absence from work. The decision was later upheld by the Alberta Court of Appeal. Read More...

Evidence Of Inducement Leads To Enhanced Notice Period

In its recent decision of Rodgers v CEVA, 2014 ONSC 6583, the Ontario Superior Court considered both what it means to induce someone to leave their job and the implications of that inducement upon termination. Read More...

Divisional Court Clarifies Test For A Poisonous Work Environment

When employees allege harassment in human rights complaints, they often refer to the creation of a "poisoned work environment." A recent decision from Ontario's Divisional Court helpfully demonstrates that something more than one or two discrete incidents is usually required to support such a finding. Read More...

Beware of the One Month Per Year of Service "Rule"

We have written a number of times regarding cases that significantly depart from the so-called one month per year of service rule of thumb. Yet another case has illustrated the risk an employer runs in assuming their liability will be capped at one month per year of service. Read More...

No Just Cause For Employee Punch

In the recent decision of Phanlouvong v Northfield Metal Products (1994) Ltd, 2014 ONSC 6585, the Ontario Superior Court considered an incident of workplace violence to not provide just cause for dismissal.

The employee in question was terminated for cause and without notice after a workplace incident in which the employee punched another employee in the face. The incident arose when an employee bumped into the plaintiff. Feeling harassed, the plaintiff demanded an apology, and when he did not get one punched the other employee in the face. The victim of the punch was suspended for 1 week for his role in the incident, most importantly his failure to apologize or simply walk away from the plaintiff, which resulted in the escalation of the altercation. The plaintiff was terminated for cause.

Supreme Court of Canada decides Métis and non‑status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867

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"Three declarations are sought in this case: (1) that Métis and non‑status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867; (2) that the federal Crown owes a fiduciary duty to Métis and non‑status Indians; and (3) that Métis and non‑status Indians have the right to be consulted and negotiated with.

The trial judge’s conclusion was that “Indians” under s. 91(24) is a broad term referring to all Indigenous peoples in Canada. He declined, however, to grant the second and third declarations. The Federal Court of Appeal accepted that “Indians” in s. 91(24) included all Indigenous peoples generally. It upheld the first declaration, but narrowed its scope to exclude non‑status Indians and include only those Métis who satisfied the three criteria from R. v. Powley, [2003] 2 S.C.R. 207. It also declined to grant the second and third declarations. The appellants sought to restore the first declaration as granted by the trial judge, and asked that the second and third declarations be granted. The Crown cross‑appealed, arguing that none of the declarations should be granted. It conceded that non‑status Indians are “Indians” under s. 91(24)."

The S.C.C. (9:0) allowed the appeal in part.

Don't Let A Restrictive Covenant Bite You In The Assets

The challenges of enforcing non-competition and non-solicitation clauses in employment contracts are well known. It is less renowned that such clauses may increase the reasonable notice period owed by an employer to a dismissed employee, as we were reminded in a recent decision by the Supreme Court of British Columbia: Ostrow v Abacus Management Corporation Mergers and Acquisitions. Read More...

Supreme Court of Canada finds standard of review for arbitrator is reasonableness.

"In June 2009, B was summoned to attend a special meeting of the executive committee of the Commission scolaire de Laval (“Board”), his employer. The committee had to determine whether B’s judicial record was relevant to his functions as a teacher and, if it was, decide whether to resiliate his employment contract. After hearing B in a partially in camera meeting (from which the public was excluded), the executive committee ordered a totally in camera meeting (from which the teacher and his union representative were excluded) in order to deliberate. Upon completion of these two in camera meetings, the committee, sitting in public once again, proceeded to adopt a resolution that terminated B’s employment contract.

The Syndicat de l’enseignement de la région de Laval (“Union”) filed a grievance with respect to B’s dismissal, alleging, inter alia, that the procedure for dismissal provided for in the collective agreement had not been followed. The collective agreement stipulated that the employment relationship could be terminated “only after thorough deliberations at a meeting of the board’s council of commissioners or executive committee called for that purpose”. In the course of the inquiry into the grievance, the Union summoned as its first witnesses three members of the executive committee who had been present for the in camera deliberations of June 2009. The Board objected to having them testify, arguing that the motives of individual members of the committee were irrelevant and that deliberative secrecy shielded the members from being examined on what had been said in camera. The Board also submitted that the principle that motives are “unknowable” that had been stated in Consortium Developments (Clearwater) Ltd. v. Sarnia (City), [1998] 3 S.C.R. 3, precludes the examination of the members of any collective body on the motives that underlie a decision made by way of a written resolution. The arbitrator dismissed these objections and allowed the examination of the executive committee’s members.

The Superior Court, hearing a motion for judicial review of the arbitrator’s interlocutory decision, applied the standard of correctness and granted the motion, barring any testimony by members of the executive committee except as regards the formal process that led to their decision that was announced at a public meeting. The majority of the Court of Appeal, also applying the standard of correctness, restored the arbitrator’s decision and allowed the examination of the executive committee’s members, subject to the usual limits of what is relevant."

The S.C.C.held (unanimously, with Justice Côté writing partially concurring reasons, with Justices Wagner and Brown concurring) that the appeal is dismissed.

Courts Quash Another Alcohol And Drug Testing Policy

drug test
The law in Canada with regard to workplace alcohol and drug testing is becoming clearer, and the emerging picture indicates employers need to proceed with caution.

The latest news comes from
an Ontario Superior Court of Justice decision, which upheld an arbitrator's decision to invalidate an employer association's pre-access alcohol and drug testing policy. Read More...

‘Unlike’ – Social Media Gaffes Not Cause To Dismiss Communications Manager

As more people use social media to communicate in and out of the office, social media posts by employees are increasingly a concern for employers. In a recent case, the International Triathlon Union ("ITU") dismissed its Senior Manager of Communications, Paula Kim, because of negative posts she made on her personal blog and social media accounts. In Kim v. International Triathlon Union, the British Columbia Supreme Court found there was no just cause for her dismissal because she had not been clearly warned that her communications put her employment in jeopardy. Read More...

Punching A Co-Worker Does Not Amount To Just Cause For Dismissal, Court Rules

Can your employee punch a co-worker in the face and avoid termination for just cause? The answer is yes, depending on how you handle the situation.

A recent decision of the Ontario Superior Court of Justice again raises the question of whether employers can effectively balance their duty to provide a safe workplace free from violence with the common law principles of proportionate discipline. In the Nov. 17, 2014 decision in Phanlouvong v. Northfield Metal Products (1994) Ltd. et al., 2014 ONSC 6585 (CanLII), the Trial Judge found that, although the plaintiff punched a co-worker in the face, his conduct did not amount to just cause for dismissal.

All For One, One For All? Common Employer Doctrine Revisited By The Ontario Superior Court Of Justice

In King v. 1416088 Ontario Ltd. 1 ("King"), the Ontario Superior Court of Justice found a group of corporate defendants jointly and severally for damages arising from a wrongful dismissal claim amounting to almost $150,000. The twist in this case: many of the defendants never actually employed the plaintiff. Read More...

Dismissed employee was entitled to full contractual severance notwithstanding her failure to mitigate

Many employers attempt to define an employee's right to compensation upon dismissal by having clear, enforceable termination provisions in their employment contracts. But what happens if the dismissed employee is offered re-employment shortly after termination and fails to accept it? Is she still entitled to the full contractual severance amount?

The Court of Appeal, in its decision
Maxwell v. British Columbia, confirmed the answer is yes: a dismissed employee was found to be entitled to the full amount of contractual severance and did not have to mitigate her damages by accepting an offer of new employment. Read More...

Alberta Employer Fined $80,000 Following Conveyor Incident

An Alberta employer has been sentenced to a fine of $80,000 plus the 15% victim fine surcharge following a workplace incident which occurred in 2011 at its distribution centre. Read More...

Project Manager in Metron Construction Case Sentenced to 3½ Years Imprisonment

The following is a reprint of an article by Jean Torrens & John Agioritis of MLT.

In a previous post, we discussed the case of Vadim Kazenelson, the Project Manager convicted on five counts of criminal negligence under s. 217.1 and 220 of the Criminal Code when five workers employed by Metron Construction Inc. fell more than 100 feet to the ground after the swing stage they were working on suddenly collapsed. Four of the workers died and one was seriously injured because they were not attached to a lifeline. The Project Manager was aware that there were an insufficient number of lifelines on the swing stage. On January 11, 2016, the Project Manager was sentenced to 3½ years imprisonment on each of the five counts to be served concurrently. Read More...

An Offer They Can’t Refuse – The Dangers Of Recruiting High Level Employees

An employer is paying the price for dismissing an employee who was recruited with an attractive job offer. Read More...

Restrictive Covenant A Factor In Lengthening Notice Period

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

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

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

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

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

Wrongfuldismissal: Social Media In The Spotlight

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

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

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

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

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

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

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

Executive’s Loss Of Share Unit Rights On Resignation Enforceable

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

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

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

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

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

Terminating Fixed-Term Contracts On Your Terms

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

After-Acquired Cause For Termination

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

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

"Common Employer" Doctrine Reaffirmed By Ontario Court

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

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

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

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

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

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

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

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

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

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

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

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

The S.C.C. dismissed the appeal.

Medical marijuana legal in all forms, Supreme Court rules

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

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

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

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

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

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

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

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

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

The club delivers medical marijuana products to its members.

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

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

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

Thursday's decision also affirms Smith's acquittal.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Employers Can Contract Out Of Post-Termination Bonus Obligations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Another Peril Of The Fixed Term Agreement

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

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

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

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

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

Supreme Court rules against prayer at city council meetings

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

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

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

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

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

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

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

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

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

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

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

State must be neutral, court rules

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When Is A Worker A Dependent Contractor?

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

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

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

Delayed Promotion Not Constructive Dismissal

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

Employee Privacy Breaches – Do They Warrant Discipline?

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

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

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

Defences To The Tort Of Defamation

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

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

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

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

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

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

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

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

'Impinges' on security of the person

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

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

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

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

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

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

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

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

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

Supreme Court strikes down Saskatchewan law that prevents right to strike

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

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

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

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

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

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

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

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

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

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

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

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

The Supreme Court has now reversed that appeal.

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

Wagner and Rothstein disagreed.

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

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

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

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

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

The RCMP ruling did not address the right to strike.

Avoiding Blurred Lines Between Temporary Workers And Employees

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

Alberta Court Of Appeal Considers The Duty To Accommodate Probationary Employees

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

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

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

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

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

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

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

Obesity can constitute a disability in certain circumstances, the EU's highest court has ruled.

This article appears in the BBC’s News website.

The European Court of Justice was asked to consider the case of a male childminder in Denmark who says he was sacked for being too fat.

The court said that if obesity could hinder "full and effective participation" at work then it could count as a disability.

The ruling is binding across the EU.

Supreme Court of Canada Rules Police Can Search Cellphones Upon Arrest

As long as the search relates directly to the arrest and the police take detailed notes of what they examined and how they did it, law enforcement officials have the right to search the cellphones of people they arrest, the Supreme Court of Canada ruled today.

Today’s ruling is highly important, as it may bring consistency to a series of inconsistent Canadian court rulings on this matter. The fact is, the issue is complex and also includes privacy issues, as smartphones are able to carry vast amounts of personal information.

As the CBC report highlights, it wasn’t an easy decision: the Supreme Court of Canada split 4-3, with the idea of a “search done in good faith” overtaking privacy. The majority also found that “passwords protecting phones don’t carry much weight in assessing that person’s expectations of privacy.”

An example of a “search done in good faith”: in the case of Kevin Fearon, who was convicted of armed robbery, law enforcement officials found evidence by doing a search on his phone. He ultimately challenged the search of his phone, saying his rights were violated because the police did not take adequate notes on the action.

Today, however, the country’s top court ruled that searches should be done right after the lawful arrest in order to serve the purposes of the ruling. The police must take detailed notes of what they examined and how they did it, and they must have a “valid law enforcement purpose,” such as protecting the police, the accused, or the public; preserving evidence; or discovering evidence, like locating additional suspects.

I Want To Leave Work Early To Pick Up My Child. Does My Employer Have To Accommodate Me?

Your employer denies your request for an hour shift change to allow you to pick up your child from school each day at 5 p.m. Can you now file a valid human rights complaint for discrimination based on family status? Absolutely. And, however unlikely to succeed there can be no reprisal for making the complaint.

But will you win? In its recent decision in
Canada (Attorney General) v. Johnstone, the Federal Court of Appeal made its decision based on the answers to four questions: Read More...

Nine Years Too Late, Wal-Mart’s First Unionized Employees Win At The Highest Court

The saga of North America's first unionized Wal-Mart has taken a significant turn in favour of its former employees, nine years after they lost their jobs when the store in Jonquière, Quebec was permanently shut. Much ink has been spilled telling the story of the Jonquière store, its successful unionization in 2004, and its closure in 2005, which was announced on the very day that an arbitrator had been appointed in relation to the what was to have been the store's first collective agreement. Now, the Supreme Court of Canada in United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp., 2014 SCC 45 has, for a second time, considered the rights of the store's employees in the context of that store closure. This time, however, the Court issued a significant victory in favour of the employees which may have implications across the country.

In 2009, the Court dismissed a pair of appeals –
Plourde 2009 SCC 54 and Desbiens 2009 SCC 55 – in which former employees sought remedies after the store closure. On June 27, 2014, the Court released the decision of a seven-member panel's consideration of a grievance claiming that Wal-Mart's closure of the store violated the "freeze" provisions of Quebec's Labour Code. Similar to provisions elsewhere, the s. 59 "freeze" restricts the employer's ability to "change the conditions of employment of his employees" during certain phases of collective bargaining. In a 5-2 ruling, the Court upheld an arbitrator's award which had found that the closure of the store constituted an impermissible change in the employees' employment conditions in the absence of evidence that the closure was made in the ordinary course of the company's business. Read More...

Termination The Only Acceptable Outcome For Employee Who Calls In Sick In Order To Play Baseball

In reasons released June 19, 2014, the Alberta Court of Appeal upheld a lower Court decision quashing labour arbitration award (Telus Communications Inc v Telecommunications Workers Union, 2014 ABCA 199). The case involved an employee of TELUS Communications Inc. who had requested a day off work to play in a softball tournament (which was denied) only to call in sick on the day in question. Suspicious that he was not actually sick, the Grievor's manager had attended the ball diamonds where he witnessed the Grievor playing baseball. When confronted, the Grievor stated that he was suffering from a severe case of diarrhea on the day in question and was not playing baseball. The Grievor later admitted to being at the baseball diamonds when confronted with the fact that someone had seen him there; however he stated that he was only watching. The Grievor subsequently admitted to playing, but minimized his involvement on the basis that he was "only pitching". TELUS terminated the Grievor for cause.

The Arbitrator reinstated the Grievor and substituted a one-month suspension for termination. According to the Arbitrator, TELUS had no direct evidence that the Grievor was not sick as he claimed and that his explanation regarding his absence was "plausible".

TELUS sought judicial review of the Arbitrator's award. It argued that the Arbitrator had failed to consider the overall weight of its circumstantial evidence, which pointed, irrefutably to the fact that the Grievor had lied about being sick. It also argued that the Arbitrator's award suggested an employee could be too sick to work yet sufficiently well to play baseball, and unreasonable interpretation of the sick leave provisions contained in the party's collective agreement. TELUS argued that termination was the only reasonable outcome on the evidence and, as such, the Arbitrator's award should be quashed without remitting the matter for rehearing.

The Alberta Court of Appeal determined that the Arbitrator had acted unreasonably in requiring TELUS to lead direct evidence establishing that the Grievor was not sick, an impossible standard. The Arbitrator was required to weigh the circumstantial evidence against the Grievor's testimony in order to determine whether the Grievor had lied about being sick. As the overwhelming weight of the evidence pointed to the fact that the Grievor had lied about being sick, the Arbitrator's conclusion otherwise was unreasonable. Having quashed the award, the Court declined to remit the matter back to Arbitrator for hearing. The only reasonable inference to be drawn on the evidence was that the Grievor had lied about being sick, then repeatedly lied to his employer after the fact, and at Arbitration. The Court concluded that termination was the only reasonable outcome on the evidence and that remitting the matter to arbitration would be pointless.

Post-termination Evidence Of Dishonesty Substantiates Just Cause

A recent decision in British Columbia (Campbell v Harrigan Rentals and Equipment Ltd.) has found post-termination evidence of just cause for dishonesty discovered in an investigation of an employee that occurred following his termination. Read More...

Supreme Court of Canada rules there is a new general duty of "honest contractual performance."

In Bhasin v Hrynew:

"C markets education savings plans to investors through retail dealers, known as enrollment directors, such as B. An enrollment director’s agreement that took effect in 1998 governed the relationship between C and B. The term of the contract was three years. The applicable provision provided that the contract would automatically renew at the end of the three year term unless one of the parties gave six months’ written notice to the contrary.

H was another enrollment director and was a competitor of B. H wanted to capture B’s lucrative niche market and previously approached B to propose a merger of their agencies on numerous occasions. He also actively encouraged C to force the merger. B had refused to participate in such a merger. C appointed H as the provincial trading officer (“PTO”) to review its enrollment directors for compliance with securities laws after the Alberta Securities Commission raised concerns about compliance issues among C’s enrollment directors. The role required H to conduct audits of C’s enrollment directors. B objected to having H, a competitor, review his confidential business records.

During C’s discussions with the Commission about compliance, it was clear that C was considering a restructuring of its agencies in Alberta that involved B. In June 2000, C outlined its plans to the Commission and they included B working for H’s agency. None of this was known by B. C repeatedly misled B by telling him that H, as PTO, was under an obligation to treat the information confidentially. It also responded equivocally when B asked in August 2000 whether the merger was a “done deal”. When B continued to refuse to allow H to audit his records, C threatened to terminate the 1998 Agreement and in May 2001 gave notice of non‑renewal under the Agreement. At the expiry of the contract term, B lost the value in his business in his assembled workforce. The majority of his sales agents were successfully solicited by H’s agency.

B sued C and H. The trial judge found C was in breach of the implied term of good faith, H had intentionally induced breach of contract, and both C and H were liable for civil conspiracy. The Court of Appeal allowed the appeal and dismissed B’s lawsuit."

The S.C.C. held (7:0) that the appeal with respect to C is allowed; the appeal with respect to H is dismissed; and the trial judge’s assessment of damages varied to $87,000 plus interest.

Unionized Employee Cannot Seek Judicial Review of Labour Arbitrator’s Decision Without Union

The Ontario Divisional Court recently quashed an application for judicial review brought by an individual employee seeking to overturn an arbitrator's decision denying his discharge grievance. The Court ruled in Ali v United Food and Commercial Workers Canada that an individual employee lacks standing to apply for the review of an arbitration award. Subject to limited exceptions, only the union had the right to commence, withdraw or challenge arbitration proceedings. Read More...

Employee Not Allowed To Sue Employer For Injuries Resulting From Workplace Harassment

In Ashraf v SNC Lavalin ATP Inc. ("Ashraf") an Alberta judge upheld a master's decision to strike the statement of claim of a worker seeking to sue his employer for injuries resulting from workplace harassment. The Statement of Claim of the Plaintiff was struck on the grounds that the Alberta Worker's Compensation Act bars all rights and causes of action against an employer resulting from injuries which arise as the result of employment – including those related to workplace harassment.

All Canadian provinces have a comparable provision in their respective workers' compensation statutes. In Ontario, section 16 of the Workplace Safety and Insurance Act extinguishes the right of an employee or an employee's family to pursue an action against an employer for injuries arising from employment.

Is It Permissible To Backdate The Effective Date Of A Contract?

It is common for two parties, particularly in the commercial context, to enter into a contract at one time, but agree to have the contract come into effect at an earlier time. This practice is colloquially known as backdating. Courts respect the parties' decision to backdate since giving effect to backdating provisions respects the parties' intentions as well as their freedom of contract (Chablis Textiles Inc. (Trustee of) v London Life Insurance Co, [1996] SCJ No 12, [1996] 1 SCR 160 at para 25). Read More...

A Matter Of Effect Over Form: Court Approves Novel Approach To Restrictive Covenants

In light of the traditionally intense scrutiny non-compete and non-solicit clauses face from the courts, employers have been increasingly turning to creative and novel contractual tools for protecting their interests and recovering costs when an employee turns into a competitor.

In a recent decision,
Rhebergen v Creston Veterinary Clinic Ltd, 2014 BCCA 97, the British Columbia Court of Appeal upheld as enforceable a novel restrictive covenant requiring a former employee to pay a certain amount in the event they began to compete with their former employer.

In what may come to represent the beginning of a significant shift in the drafting of restrictive covenants, Rhebergen suggests that the Court will be more likely to enforce a restrictive covenant that merely inhibits rather than prohibits competition.

"Control And Dependency Define The Essence Of Employment", SCC Rules

The Supreme Court of Canada released a highly-anticipated decision for professional partnerships, employers and employees in McCormick v Fasken Martineau DuMoulin LLP.

In short, McCormick, a partner at a large law firm, claimed that the mandatory retirement provision in the partnership agreement was discriminatory and contravened the Human Rights Code. The case was eventually heard by the British Columbia Court of Appeal, which concluded that McCormick could not be both a partner and an employee of the partnership. The Supreme Court of Canada upheld the result in the Court of Appeal, but disagreed with the lower court's following conclusion:

There can be no doubt that in Canadian law, a partnership is not a separate entity from its partners, and a partner cannot be an employee of, or employed by, a partnership of which he is a member.

The Court held that the Court of Appeal focused too much on the legal form of a partnership, rather than its substance. Rather, in determining whether an employment relationship exists, "control and dependency define the essence of an employment relationship for purposes of human rights legislation".

Successor And Related Employer Obligations: Not Just For Unionized Employees

A recent decision of the Ontario Superior Court of Justice confirms that the labour law concepts and resulting liability for related or predecessor companies may extend into the employment law sphere. As a result, a company may potentially be liable as the "employer" of an individual who was never actually employed by that entity. Read More...

Supreme Court of Canada rules Mr. Big confessions are presumptively inadmissible, but may be admitted if new evidence rule is satisfied.

mr big
In R. v. Hart, "H’s twin daughters drowned on August 4, 2002. The police immediately suspected that H was responsible for their deaths. However, they lacked the evidence needed to charge him. As a result, two years after the drowning, undercover officers began a “Mr. Big” operation by recruiting H into a fictitious criminal organization. At the time, H was unemployed and socially isolated — he rarely left home and when he did, he was in the company of his wife. After he was recruited to the organization, H worked with the undercover officers and was quickly befriended by them. Over the next four months, H participated in 63 “scenarios” with the undercover officers and was paid more than $15,000 for the work that he did for the organization. As part of that work, H was also sent on several trips across Canada — to Halifax, Montreal, Toronto and Vancouver. H often stayed in hotels and occasionally dined in expensive restaurants during these trips, all at the fictitious organization’s expense. Over time, the undercover officers became H’s best friends and H came to view them as his brothers. According to one of the undercover officers, during this time frame, H made a bald statement in which he confessed to having drowned his daughters.

The operation culminated with a meeting akin to a job interview between H and “Mr. Big”, the man purportedly at the helm of the criminal organization. During their meeting, Mr. Big interrogated H about the death of his daughters, seeking a confession from him. After initially denying responsibility, H confessed to drowning his daughters. Two days later, H went to the scene of the drowning with an undercover officer and explained how he had pushed his daughters into the water. He was arrested shortly thereafter.

At trial, H’s confessions were admitted into evidence. The trial judge denied H’s request for permission to testify with the public excluded from the courtroom. A majority of the Court of Appeal allowed H’s appeal and ordered a new trial. The Court of Appeal unanimously held that the trial judge erred in refusing to allow H to testify outside the presence of the public. A majority of the court also concluded that the Mr. Big operation had breached H’s right to silence under s. 7 of the Charter. The majority excluded two of H’s confessions, the one to Mr. Big and the one to the undercover officer at the scene of the drowning. However, the majority concluded that H’s bald confession was admissible and ordered a new trial. "

The S.C.C. held (5:2) that the appeal is dismissed.

Texting About Drugs On A Company Cellphone? Probably Not A Good Idea

The British Columbia Court of Appeal recently released a decision that will be of interest to employers who find information on a former employee AFTER they have terminated without cause. In this case, after a former employee returned the company cell phone, the employer discovered a series of text messages, many occurring during work hours, relating to purchasing illegal drugs from an employee he supervised as well as other people. The following is a summary of the decision in Van den Boogaard v. Vancouver Pile Driving Ltd. 2014 BCCA 168 (CanLII). Read More...

Mishandled An Employee Dismissal? Try Offering Them A Job Again

Who said you can never go back? While it's a phrase popular in country ballads, it is generally poor advice for an employee invited to return to an employer that just fired them under the same terms. Read More...

Supreme Court of Canada rules right to counsel continues during medical treatment

charter 2
In R. v. Taylor, "The accused was arrested for impaired driving causing bodily harm when he lost control of his vehicle injuring three of his passengers. At the time of his arrest, he was informed of his Charter rights, including his right to counsel, and was asked whether he wanted to call a lawyer. The accused responded that he wanted to speak both to his father and to his lawyer. At no time was the accused given access to a phone while at the scene of the accident. As a precaution and in accordance with normal practice, the accused was taken by ambulance to the hospital for examination. At the hospital, a nurse took five vials of blood from the accused. The police later demanded and obtained a second set of samples of the accused’s blood for investigative purposes. At no point during the accused’s time in hospital did the police attempt to provide him with an opportunity to speak to his lawyer or determine whether such an opportunity was even logistically or medically feasible. The police successfully applied for a warrant to seize the first vials of blood the hospital took from the accused. The trial judge agreed with the Crown that the second set of blood samples were taken in violation of the accused’s s. 10 (b) rights, but found that there was no breach of the accused’s s. 10 (b) rights prior to the first samples being taken. This was based on the trial judge’s assumption that where an accused is awaiting or receiving medical treatment, there is no reasonable opportunity to provide private access to the accused to a telephone to implement his right to instruct counsel. The first set of blood samples were admitted at trial. On the basis of this evidence, the accused was convicted of three counts of impaired driving causing bodily harm. A majority in the Court of Appeal allowed the appeal, finding that the trial judge erred when he concluded that there was no reasonable opportunity to facilitate access to a lawyer prior to the taking of these blood samples. The evidence was excluded, the conviction set aside, and an acquittal entered." The S.C.C. (unanimously) dismissed the appeal. Read More...

Independent Contractor Status: A Different Perspective

As most businesses are now aware, the choice between using independent contractors and employees to provide direct service is complicated and often done poorly. For years, our courts have defined and redefined the tests used to determine who is, in fact, an independent contractor and who is an employee. The two most recognized and influential decisions are 1671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (SCC) and Wiebe Door Services Ltd. v. Canada (Minister of National Revenue) (FCA). These decisions and those which follow clearly confirm that, notwithstanding the parties’ intentions, the essence of the question is whether the person is performing services “as a person in business on his/her own account.” Our courts will typically review and consider:

  1. the level of control exercised by the businesses over the worker’s activities;
  2. whether the worker performs services exclusively or almost exclusively for one business and is “economically dependent”;
  3. whether the worker provides his/her own equipment, expertise and helpers;
  4. the level of integration between the worker’s services and the business;
  5. the degree of financial risk to the worker; and
  6. the worker’s opportunity for profit.

Essentially, our courts look at the day-to-day control, integration and supervision over the worker’s activities and the differences or distinctions between the worker and the persons clearly identified as employees of the business.

One of the obvious reasons why our courts have not been prepared to give paramountcy to the parties’ stated intention or subjective belief of the type of contractual relationship they have or want to have is because the classification, as contractor or employee, has other implications with respect to taxation and social policies such as those under the Canada Pension Plan, Workers’ Compensation, Labour Relations and Employment Insurance legislation. In this context, an objective reality check makes sense and is an important part of our judicial system, protecting both individuals and our tax base.

That said, for years, employers have also been frustrated by employees who choose to consider themselves as independent contractors and take full advantage of that relationship until it no longer suits their purpose. This usually happens at the time of the termination of the independent contractor’s relationship with the business. At that time, the individual has a sudden reversal of opinion that the relationship was never really a true independent contractor relationship but rather was throughout an employment relationship with the concomitant termination benefits afforded to employees.

Recently, however, the Federal Court, in a decision entitled
Rennie v. VIH Helicopters Ltd. has, in certain circumstances, changed the question which must be asked and answered. Rather than asking if the person is in fact an employee, the proper question may be instead, is it fair or appropriate to allow a person to assert retroactively that he/she was an employee? Read More...

Supreme Court of Canada restricts when police occurrence reports should be disclosed.

police report
In R. v. Quesnelle, Q was charged with sexually assaulting two complainants. Before trial, Q made an application seeking disclosure of certain police occurrence reports which involved a complainant but which were not made in the course of the investigation of the charges against Q. The trial judge ruled that the occurrence reports at issue were “records” under the Mills regime, specifically s. 278.1 of the Criminal Code . As such, Q applied for disclosure of the occurrence reports pursuant to s. 278.3 of the Code. The trial judge dismissed the application and Q was ultimately convicted. The Court of Appeal allowed Q’s appeal on the basis that the police occurrence reports were not “records” under the Mills regime and should have been part of regular Crown disclosure under R. v. Stinchcombe, [1991] 3 S.C.R. 326. The Court of Appeal therefore ordered a new trial.

The S.C.C. (unanimously) held the appeal is allowed, the order for a new trial is set aside, and the conviction is restored with the sentence appeal remitted to the Court of Appeal.

BC Court of Appeal Gives Green Light To Untraditional Restrictive Covenant

emp agr
As many employers know, restrictive covenants are notoriously difficult to enforce because they must be "reasonable" in relation to their subject matter, temporal and geographic scope, as well as unambiguous in their meaning. Every year, restrictive covenants in employment contracts are struck down by courts leaving employers with little or no recourse against departed employees engaging in competition.

Rhebergen v. Creston Veterinary Clinic Ltd., the plaintiff, a newly qualified veterinarian, signed an employment contract in which she agreed to pay a certain amount of money to the defendant if she set up a veterinary practice in the same town as the defendant, or within 25 miles of the defendant's premises, in the first 3 years after the termination of the contract. If she set up a practice within 1 year, she had to pay the defendant $150,000; if within 2 years, $120,000; and if within 3 years, $90,000. The figures were not without foundation; they had been calculated with consideration to the investment made in employing the plaintiff (including mentoring, training and equipment), as well as the impact her competition with the defendant would have on the defendant. Read More...

Employee Ordered To Work Out Notice Period

In negotiating senior executive employment agreements employers often seek lengthy notice periods from employees who wish to resign. The reasons for this usually revolve around the difficulty recruiting a replacement with specialized skills and the need to ensure a smooth transition without competition from the executive. Whether the employee fulfills this obligation, however, has often been considered more of a moral, than a legal, obligation on the basis that it was unlikely an employer could force an employee to continue to provide services against his or her wishes. A recent decision from the Ontario Superior Court of Justice challenges all that. In Blackberry Limited v. Marineau-Mes, 2014 ONSC 1790 (CanLII), Justice T. McEwen has issued a declaration that an executive is obliged to fulfill his contractual obligation to work out a six month notice period. Read More...

Tsilhqot'in First Nation granted B.C. title claim in Supreme Court ruling

ab title
In Tsilhqot’in Nation v. British Columbia, the Supreme Court of Canada has granted declaration of aboriginal title to more than 1,700 square kilometres of land in British Columbia to the Tsilhqot'in First Nation, the first time the court has made such a ruling regarding aboriginal land.

The unanimous 8-0 decision released Thursday resolves many important legal questions, such as how to determine aboriginal title and whether provincial laws apply to those lands. It will apply wherever there are outstanding land claims.

The decision, written by Chief Justice Beverley McLachlin, also has implications for future economic or resource development on First Nations lands.

'It only took 150 years, but we look forward to a much brighter future. This without question will establish a solid platform for genuine reconciliation to take place in British Columbia.'- Grand Chief Stewart Phillip, president of Union of B.C. Indian Chiefs

The case focused on the Tsilhqot'in First Nation's claim to aboriginal title over 440,000 hectares of land to the south and west of Williams Lake in the B.C. Interior.​

A B.C. Court of Appeal ruling in 2012 gave the Tsilhqot'in sweeping rights to hunt, trap and trade in its traditional territory. But the Court of Appeal agreed with the federal and provincial governments that the Tsilhqot'in must identify specific sites where its people once lived, rather than assert a claim over a broad area.

The Tsilhqot'in, a collection of six aboriginal bands that include about 3,000 people, argued the court's decision failed to recognize the way its people had lived for centuries.

The court heard the Tsilhqot'in people were "semi-nomadic," with few permanent encampments, even though they saw the area as their own and protected it from outsiders.

Establishes meaning of title

In its decision, Canada's top court agreed that a semi-nomadic tribe can claim land title even if it uses it only some of the time, and set out a three-point test to determine land titles, considering:

• Occupation.
• Continuity of habitation on the land.
• Exclusivity in area.

The court also established what title means, including the right to the benefits associated with the land, and the right to use it, enjoy it and profit from it.

However, the court declared that title is not absolute, meaning economic development can still proceed on land where title is established as long as one of two conditions is met:

• Economic development on land where title is established has the consent of the First Nation.
• Failing that, the government must make the case that development is pressing and substantial, and meet its fiduciary duty to the aboriginal group.

In other words, the decision places a greater burden on governments to justify economic development on aboriginal land.

The court also makes it clear that provincial law still applies to land over which aboriginal title has been declared, subject to constitutional limits.

Absolutely electrifying'

Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, was with Chief Roger William, who brought the case, and other Tsilhqot'in chiefs when they learned of the top court's decision, and said the mood in the room was "absolutely electrifying."

"We all heard the decision at the same moment, and the room just erupted in cheers and tears. Everybody is absolutely jubilant. It's very emotional," Phillip told CBC News.

"It only took 150 years, but we look forward to a much brighter future. This without question will establish a solid platform for genuine reconciliation to take place in British Columbia.

"I didn't think it would be so definitive," Phillip added. "I was actually prepared for something much less. It's not very often that I'm without words, and I'm quite overwhelmed at the moment."


Is The Sky Falling? Family Status Discrimination and Shift Shopping

In most jurisdictions in Canada, human rights legislation prohibits discrimination on the basis of "family status." Until recently, few cases were brought alleging discrimination under this branch. However, recent decisions across several jurisdictions have made it clear that employers must be attentive to this ground of discrimination or risk exposing themselves to significant liability.

There are two different ways in which employees have argued that they have been argued against due to family status. One is when they are treated differently due to the identity of specific family members. For example, in B
v Ontario, the applicant was fired because his daughter had accused the applicant's brother and President of the employer of molesting her. The Supreme Court accepted that the applicant was fired because of his biological relationship to his daughter, which was discriminatory. There does not appear to be much controversy surrounding this type of complaint.

However, recent cases have largely dealt with employee requests for accommodation due to their family status. These complaints are similar in structure to requests for accommodation by disabled employees. These family status complaints argue that by complicating employees' abilities to fulfil their obligations to their families, employer policies are discriminating against workers with families.

Such accommodation poses serious challenges to employers attempting to efficiently schedule their workforces. It adds another factor that must be taken into account in organizing the workforce. However, unlike what is often the case in disability-related accommodations, in many workplaces the majority of employees may be subject to these familial pressures.

Until recently, few reported decisions dealt with such demands for accommodation. Beginning approximately ten years ago, the volume of cases dealing with this type of complaint has increased. Unfortunately, courts have not reached a consensus on how to deal with them. Three tests have emerged, with their roots in cases in British Columbia, Ontario and the Federal jurisdiction. Each test has used different and vague definitions for what exactly are employees' rights and employers' obligations when it comes to family status.

Reasonable Notice And The Older Worker

There was once an expectation that workers would retire by age 65. That expectation is changing. For a variety of reasons, many workers now want or expect to work later in life. As it can no longer be assumed that employees will retire at a certain age, employers will encounter issues about dismissing older and long-serving employees. Read More...

Duty To Mitigate Damages: Does That Include Returning To The Employ Of Your Prior Employer?

When an employee is terminated from [his/her] employment, whether it be by constructive dismissal or otherwise, the employee has a duty to mitigate his/her damages by seeking alternative employment. However, does an employee have a duty to accept employment with the very same employer who terminated his/her employment in order to fulfill the duty to mitigate his/her damages? This is a question that many terminated employees struggle with.

Chevalier v. Active Tire and Auto Centre Inc., the Ontario Court of Appeal recently considered an appeal from a trial decision wherein the trial judge found that the terminated employee had failed to mitigate his damages when he declined to return to work for his former employer and, therefore, he was not entitled to damages. Read More...

Daughter’s Facebook Post Causes Father To Lose $80,000 Settlement From Age Discrimination Lawsuit


A recent decision from the Florida Third District Court of Appeal provides some valuable guidance for Canadian employers wishing to keep settlement agreements strictly confidential. Patrick Snay (Snay) had settled an age discrimination lawsuit with his former employer Gulliver Preparatory School (the School). The School agreed to pay him $80,000, but the settlement agreement contained the following confidentiality clause:

...Confidentiality...[T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement...A breach...will result in disgorgement of the Plaintiffs portion of the settlement Payments.

Snay was probably happy with the settlement and thinking about ways to spend the $80,000. Perhaps some of it was even earmarked for his daughter's college fund. Unfortunately his daughter had other plans. Before he received the $80,000, and in breach of the confidentiality clause, Snay told his daughter about the settlement. She then immediately posted to her roughly 1,200 Facebook friends:

Mama and Papa Snay won the case against Gulliver...Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.

The School found out about the Facebook boast and was obviously displeased. It refused to pay Snay any of the $80,000. The Florida Appeals Court ruled that it was justified in doing so, stating:

Snay violated the agreement by doing exactly what he had promised not to...His daughter then did precisely what the confidentiality agreement was designed to prevent.

Fixed-Term Employment Contracts: Are They Worth The Risk?

emp agr
Employers often hire employees pursuant to fixed-term contracts in order to avoid common law reasonable notice obligations and other perceived liabilities. However, this practice can unnecessarily expose employers to more costly legal liabilities that can be avoided through the use of indefinite-term contracts containing early termination provisions setting out minimal notice of termination. Read More...

Facts Must Uphold Allegations Of Racism For Finding Of Constructive Dismissal

In General Motors of Canada Limited v. Yohann Johnson, the Ontario Court of Appeal provided helpful guidance to employers while overturning a trial judge's decision which found that Yohann Johnson had been constructively dismissed due to racism and a poisoned work environment. Read More...

Supreme Court of Canada clarifies legal framework for changes to Senate.

In Reference Concerning Reform of the Senate, the Governor in Council referred the following questions to the Court:

1. In relation to each of the following proposed limits to the tenure of Senators, is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 of the Constitution Act,1982, to make amendments to section 29 of the Constitution Act, 1867 providing for

(a) a fixed term of nine years for Senators, as set out in clause 5 of Bill C-7, the Senate Reform Act;

(b) a fixed term of ten years or more for Senators;

(c) a fixed term of eight years or less for Senators;

(d) a fixed term of the life of two or three Parliaments for Senators;

(e) a renewable term for Senators, as set out in clause 2 of Bill S-4, Constitution Act, 2006 (Senate tenure);

(f) limits to the terms for Senators appointed after October 14, 2008 as set out in subclause 4(1) of Bill C-7, the Senate Reform Act; and

(g) retrospective limits to the terms for Senators appointed before October 14, 2008?

2. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of theConstitution Act, 1867, or section 44 of the Constitution Act, 1982, to enact legislation that provides a means of consulting the population of each province and territory as to its preferences for potential nominees for appointment to the Senate pursuant to a national process as was set out in Bill C-20, the Senate Appointment Consultations Act?

3. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of theConstitution Act, 1867, or section 44 of the Constitution Act, 1982, to establish a framework setting out a basis for provincial and territorial legislatures to enact legislation to consult their population as to their preferences for potential nominees for appointment to the Senate as set out in the schedule to Bill C-7, the Senate Reform Act?

4. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 of theConstitution Act, 1982, to repeal subsections 23(3) and (4) of the Constitution Act, 1867 regarding property qualifications for Senators?

5. Can an amendment to the Constitution of Canada to abolish the Senate be accomplished by the general amending procedure set out in section 38 of the Constitution Act, 1982, by one of the following methods:

(a) by inserting a separate provision stating that the Senate is to be abolished as of a certain date, as an amendment to the Constitution Act, 1867 or as a separate provision that is outside of theConstitution Acts, 1867 to 1982 but that is still part of the Constitution of Canada;

(b) by amending or repealing some or all of the references to the Senate in the Constitution of Canada; or

(c) by abolishing the powers of the Senate and eliminating the representation of provinces pursuant to paragraphs 42(1)(b) and (c) of the Constitution Act, 1982?

6. If the general amending procedure set out in section 38 of the Constitution Act, 1982 is not sufficient to abolish the Senate, does the unanimous consent procedure set out in section 41 of theConstitution Act, 1982 apply?

Are Your Independent Contractors "Dependent"?

The following article was written by Michael D. A. Ford, Q.C. of Davis LLP. Read More...

Disability And Other Leaves Of Absence: Employee Status At Time Of Termination

The following article was written by Clarence Bennet and Lara MacDougall of Stewart McKelvey. While it is written from an employer perspective, it also provides some useful information for employees. Read More...

Alberta Court finds employer has no duty to inquire further into disclosed disability.

A recent Alberta Court of Queen's Bench decision confirmed an employee's obligation to prove an employer knew (or ought to have known) about his or her disability in order to establish discriminatory treatment. Read More...

Federal Court summarizes Canada Labour Code dismissal provisions.

In Atomic Energy of Canada Limited v. Wilson, the Federal Court of Canada gave the following succinct summary of the regime set out in the Canada Labour Code for dealing with employment dismissals. Read More...

Correctness Is "fashionable," but In a bad way: Supreme Court of Canada broadens scope for administrative tribunals.

The Supreme Court of Canada has released what may be the most important administrative law appeal of the year in McLean v. British Columbia (Securities Commission), reaffirming the deference that administrative tribunals are owed when interpreting their "home" or closely related statutes and expressly seeking – as always, it seems – to foster greater "predictability and clarity". Read More...

Supreme Court of Canada clarifies elements of offence of uttering threats.

In R. v. McRae, the Supreme Court of Canada ruled that it was not necessary to prove threats were conveyed or that accused intended they be conveyed. Read More...

"You Can’t Have Your Cake and Eat It (Part 2)": An Update On Mitigation and Employment Contracts

emp agr
This following is a reprint of an article by Martin J. Thompson and Kyle Lambert of McMillan LLP.Steve Brown of Crowe Soberman LLP. Read More...

Supreme Court of Canada rules there is no breach of statutory privacy to post photos of workers during strikes.

video camera
“During a lawful strike lasting 305 days, both the Union and the employer video‑taped and photographed individuals crossing the picketline. The Union posted signs in the area of the picketing stating that images of persons crossing the picketline might be placed on a website. Several individuals who were recorded crossing the picketline filed complaints with the Alberta Information and Privacy Commissioner. The Commissioner appointed an Adjudicator to decide whether the Union had contravened the Personal Information Protection Act(PIPA). The Adjudicator concluded that the Union’s collection, use and disclosure of the information was not authorized by PIPA. On judicial review, PIPA was found to violate the Union’s rights under s. 2(b) of theCharter. The Court of Appeal agreed and granted the Union a constitutional exemption from the application of PIPA. ” In Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, the S.C.C. (9:0) held that the appeal is "substantially dismissed.” Read More...

Supreme Court strikes down prostitution laws.

In Canada (Attorney General) v. Bedford, B, L and S, current or former prostitutes, brought an application seeking declarations that three provisions of the Criminal Code, which criminalize various activities related to prostitution, infringe their rights under s. 7 of the Charter: s. 210 makes it an offence to keep or be in a bawdy‑house; s. 212(1)(j) prohibits living on the avails of prostitution; and, s. 213(1)(c) prohibits communicating in public for the purposes of prostitution. They argued that these restrictions on prostitution put the safety and lives of prostitutes at risk, by preventing them from implementing certain safety measures—such as hiring security guards or “screening” potential clients—that could protect them from violence. B, L and S also alleged that s. 213(1)(c) infringes the freedom of expression guarantee under s. 2(b) of the Charter, and that none of the provisions are saved under s. 1.

The Ontario Superior Court of Justice granted the application, declaring, without suspension, that each of the impugned Criminal Code provisions violated the Charter and could not be saved by s. 1. The Ontario Court of Appeal agreed s. 210 was unconstitutional and struck the word “prostitution” from the definition of “common bawdy‑house” as it applies to s. 210, however it suspended the declaration of invalidity for 12 months. The court declared that s. 212(1)(j) was an unjustifiable violation of s. 7, ordering the reading in of words to clarify that the prohibition on living on the avails of prostitution applies only to those who do so “in circumstances of exploitation”. It further held the communicating prohibition under s. 213(1)(c) did not violate either s. 2(b) or s. 7.

The Attorneys General appealed from the declaration that ss. 210 and 212(1)(j) of the Code are unconstitutional. B, L and S cross‑appeal on the constitutionality of s. 213(1)(c) and in respect of the s. 210 remedy. The Supreme Court of Canada (“SCC”) held the appeals should be dismissed and the cross‑appeal allowed. Sections 210, 212(1)(j) and 213(1)(c) of the Criminal Code are declared to be inconsistent with the Charter. The declaration of invalidity should be suspended for one year.

Supreme Court Clarifies Criminal Law Sentencing Considerations

In R. v. Pham, the Supreme Court of Canada (SCC) was faced with the issue of whether a sentence otherwise falling within the range of fit sentences can be varied by an appellate court on the basis that the offender would face collateral consequences that were not taken into account by the sentencing judge. The SCC ruled collateral consequences may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case.

In this case, the accused, a non-citizen, was convicted of two drug-related offences. In light of a joint submission by the Crown and defence counsel, the sentencing judge imposed a sentence of two years’ imprisonment. Under the Immigration and Refugee Protection Act, a non-citizen sentenced to a term of imprisonment of at least two years loses the right to appeal a removal order against him or her. In the present case, neither party had raised the issue of the collateral consequences of a two year sentence on the accused’s immigration status before the sentencing judge. The SCC reduced the sentence of imprisonment reduced to two years less a day.

Supreme Court rules on what is a breach of the "bright line rule."

In Canadian National Railway Co. v. McKercher LLP, McKercher LLP was acting for CN on several matters when, without CN’s consent or knowledge, it accepted a retainer to act for the plaintiff in a $1.75 billion class action against CN. CN first learned that McKercher was acting against it in the class action when it was served with the statement of claim. McKercher hastily terminated all retainers with CN, except for one which CN terminated. CN applied to strike McKercher as the solicitor of record in the class action due to an alleged conflict of interest. The motion judge granted the application and disqualified McKercher. The Court of Appeal overturned the motion judge’s order. The S.C.C. allowed the appeal & remitted back to the Court of Queen’s Bench for redetermination of a remedy. Read More...

Supreme Court rules alcohol & drug testing OK only if dangerous workplace/in collective agreement.

In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Limited, the Union brought a grievance challenging the mandatory random alcohol testing aspect of a policy on alcohol and drug use that the employer, Irving, unilaterally implemented at a paper mill. Under the policy, 10% of employees in safety sensitive positions were to be randomly selected for unannounced breathalyser testing over the course of a year. A positive test for alcohol attracted significant disciplinary action, including dismissal. The arbitration board allowed the grievance. Weighing the employer’s interest in random alcohol testing as a workplace safety measure against the harm to the privacy interests of the employees, a majority of the board concluded that the random testing policy was unjustified because of the absence of evidence of an existing problem with alcohol use in the workplace. On judicial review, the board’s award was set aside as unreasonable. The New Brunswick Court of Appeal dismissed the appeal. The S.C.C. allowed the appeal. Read More...

Supreme Court Rules on Municipal Expropriation Case

in Antrim Truck Centre Ltd. v. Ontario (Transportation), the Supreme Court of Canada ruled that reasonableness of interference is determined by balancing competing interests. Read More...

Child Care

In A.G. of Canada v. Johnston et al, the Federal Court of Canada ruled employers must accommodate staff’s child-care requests. Read More...


In R. v. Ryan, the Supreme Court of Canada held that if you know coercion or threats are a possibility, the defence of duress is not available. Read More...

Uttering Threats

In R. v. O’Brien, the Supreme Court of Canada ruled one can be convicted of uttering threats if the Crown proves the accused intended a threat. Read More...

Court Rules on Adequacy of Tribunal Decisions

In Construction Labour Relations v. Driver Iron Inc., the Supreme Court of Canada has ruled that administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. Read More...

Court Defines Care & Control for Impaired Driving Cases

The Supreme Court of Canada has ruled that “risk of danger” is an element of care and control. Read More...

Passive resistance alone is not a crime.

In Whatcott v. The Queen, the Saskatchewan Court of Queen’s Bench set aside the conviction of a man charged with resisting a peace officer engaged in the lawful execution of his duty by refusing to accompany the officer after being placed under arrest, contrary to section 129(1) of the Criminal Code. When a police officer told the Accused that he under arrest, he remarked that he would not go and sat on the sidewalk and crossed his legs and his arms. The police officer and his colleague then picked the Accused up and carried him to the police car. The police carried the Accused eight to ten feet and then he got into the police car on his own. The Court began its decision by noting the Accused was charged with resisting a peace officer in the execution of his duty and not obstructing a peace officer in the execution of his duty. The Court went on to hold that “passive resistance does not constitute resisting arrest. The situation is not similar to . . . where the accused actively resisted arrest by locking his toes under the seat in front of him and hanging on to the armrest in an effort to prevent his removal. There was no evidence of any active resistance by [the Accused]. It was not a situation where his conduct required maximum effort from the peace officers in order to effect the arrest.” Read More...

When is shouting a disturbance?

In Whatcott v. The Queen, the Saskatchewan Court of Queen’s Bench set aside the conviction of a man charged with causing a disturbance in or near a public place by shouting, contrary to section 175(1)(a)(i) of the Criminal Code. The Accused was holding an abortion protest at a busy intersection. He was holding a sign and yelling and shouting at passers-by on the street and at the cars going by on the street. Some of the people were shouting back. The Court held that “the disturbance contemplated by s.175(1)(a) is something more than mere emotional upset. There must be an externally manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public.” The Court went on to hold “the purpose is not to control expression, in and of itself. The legislation is not aimed at the content of expression, but rather the physical result of the expression or activity, and then only in a public place.” It said “the interference with the ordinary and customary conduct in or near the public place may consist in something as small as being distracted from one’s work. But it must be present and it must be externally manifested. In accordance with the principle of legality, the disturbance must be one which may reasonably have been foreseen in the particular circumstances of time and place.” The Court found there was no such disturbance. It did not interfere with the use of the premises by the public, it did not create a traffic hazard and it did not prevent the movement of pedestrians or traffic. Read More...

Supreme Court of Canada clarifies law on specific performance and mitigation.

This decision has significant implications on a purchaser's duty to mitigate its losses when a transaction fails due to the vendor's breach, particularly when the purchaser is a single purpose corporation. Read More...

Vicarious liability for assaults upon residential school victims.

In Blackwater v. Plint, the Supreme Court of Canada dealt with the issues of liability concerning sexual assaults committed by a dormitory supervisor upon aboriginal children taken from their families and sent to residential schools operated by the Canadian Government and United Church. Read More...

Supreme Court of Canada clarifies law of causation in negligence actions

In Clements v. Clements, the Supreme Court of Canada summarized the present state of the law in Canada as follows:

  1. As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.
  2. Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

Whistleblower Protection

Supreme Court broadened whistleblower protection.

Judge rules employee's statement, "I'm out of here," was not sufficient basis for employer to conclude that he had resigned.

In Balogun v. Deloitte & Touche, LLP, a British Columbia judge has ruled an employee's remark to the effect that "I'm out of here" at the end of a performance review meeting that had not gone to his satisfaction was too ambiguous for the employer to conclude that he had resigned. Finding instead that the employer subsequently ended the employment relationship by delivering a Record of Employment, the judge held that the employer was obliged to pay the employee two months' salary in lieu of reasonable notice of termination. Read More...

Judge awards damages to executive who quit following demotion.

In Chalifour v. IBM Canada Limited, a Quebec Superior Court judge has awarded two years' pay in lieu of notice to an executive who was constructively dismissed when his new boss unilaterally demoted him to a substantially inferior position while he was undergoing treatment for cancer. In awarding substantial damages, the judge found that IBM's perception of the employee's state of health, despite any medical evidence to support it, was part of a deliberate decision to impose on him a job that was "an affront to his dignity and his reputation." Read More...

"Modest" job search constituted reasonable attempt to mitigate given industry downturn

Upholding an employee's action for wrongful dismissal when his position was eliminated following an economic downturn in the heavy machine industry, an Ontario judge in Day v. JCB Excavators Ltd. has ruled that the employee's non-lucrative self-employment and lackluster attempts to seek new employment were nonetheless reasonable attempts at mitigation because a more diligent search for new employment would likely have proven unsuccessful. Read More...

Employee's refusal to accept new position with company amounted to resignation

In Gillis v. Sobeys Group Inc., the Nova Scotia Supreme Court has ruled that an employee resigned and was not constructively dismissed when she declined an alternative position offered by the employer after it eliminated her position. Read More...

Courts recognize new right to sue for invasion of privacy

In Jones v. Tsige, the Ontario Court of Appeal has recognized the invasion of an individual's privacy as a new common law tort – that is, a civil wrong for which the victim can seek compensation in court – which it calls "intrusion upon seclusion." Read More...

Challenging Municipal By-Laws

In Catalyst Paper Corp. v. North Cowichan (District), the Supreme Court of Canada considered a challenge to a by-law by considering whether it was reasonable having regard to process and whether it falls within a range of possible reasonable outcomes. Read More...

Arbitrators have wide leeway in applying legal doctrines

In Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, the Supreme Court granted an appeal from the Manitoba Court of Appeal, determining that an arbitral award applying common law or equitable remedies deserves deference, and should be reviewed on a standard of reasonableness rather than correctness. Read More...

Bad faith dismissal

Court confirms arbitrator's remedial authority to award damages for lost income, mental distress and pain and suffering, as well as punitive damages. Read More...

Defamation: Internet Hyperlinks

In Crookes v. Newton, the Supreme Court of Canada found that a simple reference–like a hyperlink–to defamatory information is not the type of act that can constitute publication. Read More...

Employee or Independent Contractor?

The intention of the parties counts when determining whether it is an employer or contractor relationship. Read More...

Real Estate Agent Liable for Vendor Misstatement

In the case of Krawchuk v. Scherbak, the Ontario Court of Appeal held a real estate agent and her employer equally liable with the sellers for negligent misstatement in filling out a Seller Property Information Statement. Read More...

Notice of Resignation

You cannot shorten a resignation date without cause.

Court Ruling on Same-sex Marriage Ceremonies

The Saskatchewan Court of Appeal has ruled that possible legislative amendments that would allow marriage commissioners to refuse to perform same-sex marriage ceremonies were unconstitutional.

Copyrights & Trade-marks

Copyrights and trade-marks cannot be seized pursuant to a Writ of Execution. Read More...

Court Rules on Deductibility of Statutory Entitlements

The Saskatchewan Court of Queen’s Bench has ruled Workers’ Compensation Board benefits, and other statutory entitlements, should not be deducted from a monetary award for damages in lieu of notice. Read More...