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

directive
"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."

The
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?

probation
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

mitigate
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

dismissed
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

social_media
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.

gavel
"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."

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

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

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. Read More...

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

privacy
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.

hearsay
"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. Read More...

Worldwide interlocutory injunction against Google upheld.

google
"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

drugs
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

dismissed
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.

drugs
"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

mitigate
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.
Read More...

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

family
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

constructive 2
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

buy-asset-sale-share-sale
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

dismissed
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).
Read More...

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

dismissed
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.
Read More...

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

dismissed
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

dismissed
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

bonus2
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

resign
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

dismissed
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

dismissed
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?

dismissed
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?

dismissed
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

Break-Clause-in-Tenancy-Agreement
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

dismissed
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

Dr Note
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.

freedom
“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."

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

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

time theft
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?

mitigate
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...

accommodate
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

probation-2
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.
Read More...

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

constructive 2
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:
Read More...

Jurisdiction Of Employment Agreement Considered

dismissed
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

suspended-employee
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.
Read More...

Failure To Mitigate

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.

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."

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

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

website
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.

get out of jail
"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

fired2
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.
Read More...

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

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

Human-Dignity
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

suspension
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?

bonus
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?

resign
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

term notice
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

misconduct2
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

estoppel
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.

delay
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.
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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

depression
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?

rule of thumb
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

term notice
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

lying
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

inducement
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

poison
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"

fired2
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

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

metis flag
"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.
Read More...

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

restrictive-agreement-sm
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.

arb
"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.
Read More...

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

twitter
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

fist
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.
Read More...

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

dismissed
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

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

conveyor
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

lifeline
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

brando
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.

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

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

facebook
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.
Read More...

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

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. Read More...

Executive’s Loss Of Share Unit Rights On Resignation Enforceable

quit
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)

eggfilms
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.
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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

fired2
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.
Read More...

"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

mitigate
”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.
Read More...

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

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

walmart
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. Read More...

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.
Read More...

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.

bail
"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."

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

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

scales
"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."

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

Employers Can Contract Out Of Post-Termination Bonus Obligations

bonus
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.

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

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

school
"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."

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

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.
Read More...

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.
Read More...

Supreme Court rules against prayer at city council meetings

prayer
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.
Read More...

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

longgun
"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."

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

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

dismissed
"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?

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

fiduciary
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

promotion
\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?

privacy
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

defame
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

suicide
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.
Read More...

Supreme Court strikes down Saskatchewan law that prevents right to strike

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.
Read More...

Avoiding Blurred Lines Between Temporary Workers And Employees

tempworker
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

mentaldisability
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
"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 ."

In
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.

obese
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.
Read More...

Supreme Court of Canada Rules Police Can Search Cellphones Upon Arrest

iphone6+
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.
Read More...

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

childcare
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

walmart
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

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.
Read More...

Post-termination Evidence Of Dishonesty Substantiates Just Cause

honesty
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."

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

dismissed
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...

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

restrictive-agreement-sm
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.
Read More...

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

partner
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".
Read More...

Successor And Related Employer Obligations: Not Just For Unionized Employees

fired2
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.
Read More...

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

texting
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

fired
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

contractor
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.
Read More...

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.

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

Employee Ordered To Work Out Notice Period

quit
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."

Read More...

Is The Sky Falling? Family Status Discrimination and Shift Shopping

family-house
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.
Read More...

Reasonable Notice And The Older Worker

retirement
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?

mitigate
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.

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

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

facebook

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

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

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

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

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

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

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

racism
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.

Canada_Senate_300x200
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?
Read More...

Are Your Independent Contractors "Dependent"?

contractor1
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

maternity
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.

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.

canlabcode
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.

arb10
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.

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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

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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.

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“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.
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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.
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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...

Duress

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.
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Whistleblower Protection

Supreme Court broadened whistleblower protection. Read More...

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. Read More...

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.
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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...
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