Posts filtered by tags: Substantive Law: Judicial Decisions[x]


 

Affidavit Evidence During a Pandemic

So you have a dog nipping at your feet, a child pulling on your sleeve, something cooking on the stove, and your phone rings in the middle of your Zoom conference call. The affidavit that you have open on your computer certainly isn’t getting your undivided attention. This probably isn’t going to be your best work. Justice Myers of the Superior Court of Justice heard a consent motion to transfer a case under Rule 13.1.02 (2) in Polgampalage v Devani. Although these motions can be rather routine,...
Tags: Law, Toronto, Windsor, Myers, Ontario Superior Court of Justice, Windsor Court, Substantive Law: Judicial Decisions, Ontario Limited, Devani, Hudson 's Bay Company ULC, Justice Myers of the Superior Court of Justice, Polgampalage


Employee Walks Fine Line on Confidentiality Breach

By Daniel Standing LL.B., Editor, First Reference Inc. Every employer is properly concerned about its reputation. But how far can an employer go to make sure that its “dirty laundry” stays hidden away? Can an employee be disciplined for discussing their employer’s private matters, or can an employer insist that “what happens at work stays at work”? Questions like these about an employee’s duty of loyalty and the consequences of a breach of confidentiality are central to the Alberta Labour Rela...
Tags: Law, Michelin, Employment law, ANN, Code Of Conduct, Treehouse, Board, Daniel, The Board, LaVoy, Dickie, Substantive Law: Judicial Decisions, Case Comment, Substantive Law, Alberta Labour Relations Board, Duty Of Loyalty


Exploring Pay Inequities in the Legal Professions

It’s really not shocking for anyone who pays attention to the practice of law, but a powerful piece in The Globe recently highlighted the gender inequities in Canadian law firms. Lawyers in all practices and of all genders nodded their heads, knowingly. The article describes the calls for change that have been in place since 1996, “when women started filling up more than half the seats in law schools across the country.” But all the partners’ horses, and and the partners’ consultants, couldn’t f...
Tags: Supreme Court, Law, Court, Canada, Commission, Globe, Quebec, Alberta, McGill University, Abella, Andrews, Hodge, Alliance, SCC, the Globe, Vriend


Teacher Reinstated and Educated Following Anti-Indigenous Racism

By Lewis Waring, Licensed Paralegal, Student-at-Law, Editor, First Reference Inc. In Saskatchewan Polytechnic Faculty Assn. and Saskatchewan Polytechnic (Derow), 2020 CanLII 78471 (SK LA), Re (“Derow”), a unionized teacher’s dismissal related to racist comments against indigenous persons was set aside and he was reinstated to his position with conditions. The teacher, in this case, had been working for Saskatchewan Polytechnic for 34 years and had been employed in the school’s carpentry program...
Tags: Human Rights, Law, Racism, Canada, Union, Discrimination, Saskatchewan, Truth and Reconciliation Commission, Substantive Law: Judicial Decisions, Case Comment, Substantive Law, Saskatchewan Polytechnic, Labour Law, Lewis Waring, Disciplinary Measures, Discrimination against indigenous persons


For Crying Out for a Remedy

Lawyers tend to get excited when the courts create a new tort, and for good reason. The judiciary is reluctant to instigate such reform to the common law absent compelling facts, and a strong societal need for them to do so. In Seneca College v. Bhadauria, the Court of Appeal found that a cause of action existed for the tort of discrimination, on the basis that the Ontario Human Rights Code, 18 I regard the preamble to the Code as evidencing what is now, and probably has been for some consid...
Tags: Law, Court, Toronto, Canada, Commission, Court of appeal, Rivers, Tribunal, Ontario, Ward, Legislature, Boucher, Aziz, RCMP, Supreme Court of Canada, Caplan


Invalid Termination Clause Prompts Damages Payment

By Daniel Standing LL.B., Editor, First Reference Inc. The Ontario Superior Court of Justice issued a ruling in Sager v. TFI International Inc., 2020 ONSC 6608 which considered an interesting contract interpretation issue that arose in the underlying wrongful dismissal claim. The termination clause appeared to be generous to the employee but was ultimately found invalid for violating the Canada Labour Code. As a result, the employee was entitled to more notice than he received under the cont...
Tags: Law, France, Canada, Employment law, Daniel, Loomis, CLC, Ontario Superior Court of Justice, Customer Care, Sager, Substantive Law: Judicial Decisions, Case Comment, Common Law, Substantive Law, Canada Labour Code, Employment Contract


Misconduct During Remote Proceedings

As the legal system clumsily attempts to proceed along remotely during a pandemic, parties have tried their best to continue to move things along. This approach was never entirely without risk, and a new decision by the Ontario Superior Court of Justice in Kaushal v. Vasudeva et al. highlights some of these risks. The motion was to strike out evidence based on misconduct and abuse of process during a remote cross-examination. The cross-examination of the affidavit occurred via Zoom, with an inte...
Tags: Law, Coles, Gilmore, Ontario Superior Court of Justice, Kaushal, Substantive Law: Judicial Decisions, Vasudeva, Behn, Makori, Yogita, Rubal, Moulton Contracting Ltd, Canam Enterprises Inc


No Disability or Age Discrimination Against Employee Offered Early Retirement

By Lewis Waring, Paralegal, Student-at-Law, Editor, First Reference Inc. In Nowicki v Labourer’s International Union of North America (LIUNA) Local 1059 (“Nowicki”), the Human Rights Tribunal of Ontario found that an employer’s offer of retirement, although it was an explicit attempt to remove an employee from her office, was not discriminatory under the Human Rights Code (“Code“) because it was not based upon her age or a disability. This finding was significant because the employee did in fac...
Tags: Law, LIUNA, Substantive Law: Judicial Decisions, Case Comment, Substantive Law, Human Rights Tribunal of Ontario, WSIB, HRTO, Nowicki, Lewis Waring, Labourer s International Union of North America, Irena Nowicki, Jim McKinnon, Ms Nowicki, Workplace Safety Insurance Board


Court Overturns Arbitration Preventing Vaccination of Children

Most of us are looking forward these days to vaccines, especially to help us see a world where we are living following a pandemic. Not everyone is keen on vaccines though, and those divisions extend to disputes between parents over their kids. The Ontario Superior Court of Justice recently released an appeal in A.P. v. L.K. of an arbitration, where the arbitrator concluded it was not in the best interests of the two children of the relationship to become vaccinated. A court may confirm, vary, or...
Tags: Law, Wilson, Abbott, Richardson, Supreme Court of Canada, Ontario Superior Court of Justice, R, Substantive Law: Judicial Decisions, Sodhi, Gerbert, Shafia, Izyuk, Gebert, Bruff Murphy, White Burgess Langille Inman, Gunawardena


Employee Wins Pre-Trial Procedural Point on Pleadings

By Daniel Standing LL.B., Editor, First Reference Inc.   The Ontario Superior Court of Justice put forward several motions in a wrongful dismissal case, Kaminsky v. Janston Financial Group, 2020 ONSC Number 5320 (CanLII) via Zoom in August. The parties ended up in court following Carolyn Kaminsky’s dismissal from her position within her family’s business. The decision turned on a point of civil procedure and provides employers with insight into what they may argue at trial based on their knowle...
Tags: Law, Employment law, Civil Procedure, Daniel, Kaminsky, Ontario Superior Court of Justice, Substantive Law: Judicial Decisions, Case Comment, Substantive Law, Editor First Reference Inc, Wrongful Dismissal Case, Janston Financial Group, Just Cause At Time Of Dismissal, Pleadings Motion, Carolyn Kaminsky, Janston


Canadian Court Finds Jurisdiction Over Twitter

Twitter has received a lot of public attention recently, most notably for banning the President of the United States from using the platform.  A new decision by the British Columbia Supreme Court in Giustra v. Twitter, Inc. concluded that the court has jurisdiction simpliciter over the platform, and that the Canadian courts were a forum conviens for the purposes of litigation. The plaintiff had strong connections to both British Columbia and California, the latter also being the location of th...
Tags: Twitter, Law, California, Court, Toronto, Canada, United States, Bill Clinton, Court of appeal, Party, Kent, Smith, British Columbia, Columbia, Wilson, Carter


Alcoholic Employee Accommodated to the Limit of Undue Hardship

By Daniel Standing LL.B., Editor, First Reference Inc. The recent New Brunswick labour arbitration decision in Unifor, Local 907 and J.B. v Irving Paper Limited, 2020 CanLII 38613 (NB LA) tells the unfortunate tale of an alcoholic’s losing battle to overcome his addiction and losing his job in the process. The decision provides helpful insights into how far an employer can or should go in accommodating this disability. The decision will be of particular interest to employers who operate safety-...
Tags: Law, New Brunswick, Irving, Daniel, Supreme Court of Canada, Substantive Law: Judicial Decisions, Case Comment, Substantive Law, J B, Editor First Reference Inc, NB LA, Irving Paper


University Accommodations for Admissions

A post-secondary education, for most Canadians, is a gateway and a pre-requisite to a better future. Additional education is especially important during difficult economic times, in particular after the loss of a job. In 2011, Statistics Canada concluded a long-term impact study on post-secondary education, concluding that those who obtained this education found a $7,000 increase in annual salary. This held true even for those who lost their jobs due to the 2008 recession, for most of the partic...
Tags: Law, Court, University, Canada, Universities, Court of appeal, Tribunal, Disabilities, Waterloo, Dunsmuir, University of Waterloo, Statistics Canada, Ontario Court of Appeal, Dalhousie, Substantive Law: Judicial Decisions, Divisional Court


Defining Essential Travel During the Pandemic

Like most countries around the world, Canada introduced early travel restrictions during the COVID-19 pandemic. These restrictions are necessary to limit the spread of the virus, and become increasingly important as new strains are being identified and also being brought into Canada. In March 2020, the Canadian government began imposing restrictions on travel, initially to allow for citizens, permanent residents, international students on a valid study permit, ranting passengers, and temporary f...
Tags: Law, Court, Canada, Newfoundland, Nova Scotia, Taylor, Ontario, Board, United States of America, Labrador, The Board, Solis, HNC, Respondent, Government of Canada, Substantive Law: Judicial Decisions


New Privacy Concerns With Deep Nudes

In the back pages of comic books, there was often a curious advertisement. One which purported to sell x-ray glasses, which would allow the user to see through things. Although first patented in 1906, these novelty items simply created an optical illusion and involved no x-rays at all. This didn’t prevent many young readers from purchasing, with the intent of being up to no good. Roger Luckhurst explains in “X-Ray Specs,” As anyone who spent a dollar (plus postage and packing) on mail order X-Ra...
Tags: Law, Congress, US, Canada, Jones, Ontario, UC Berkley, Prosser, Jack Hitt, Substantive Law: Judicial Decisions, Substantive Law: Legislation, Roger Luckhurst, Röntgen, Yenovkian, X Ray Spex, Kirstjanson


Employee Wins Historic Amount of Damages for Sexual Harassment and Workplace Discrimination

by Lewis Waring, Paralegal, Law Student, Editor, First Reference Inc. In NK v Botuik (“Botuik”), the Human Rights Tribunal of Ontario (HRTO) awarded a former employee $170,000.00 for sexual harassment and gender discrimination, the second-highest amount of damages ever awarded in Ontario. The employer, in this case, Alan Stewart Homes Limited, owned and operated a number of group homes that served individuals with significant disabilities. Tenants at the employer’s group homes were disabled suc...
Tags: Law, Disability, Employment law, Workplace Discrimination, Sexual Harassment, Ontario, Dismissal, NK, Substantive Law: Judicial Decisions, Case Comment, Substantive Law, Ontario Human Rights Code, HRTO, Human Rights Tribunal of Ontario HRTO, Lewis Waring, Botuik


Callow, Fraser and G: Perspectives on the Role of Law and of the Courts

Three recent Supreme Court of Canada decisions illustrate the very different perspectives or philosophies the judges bring to their consideration of the cases before them. The most recent, CM Callow Inc. v. Zollinger, dealt with the duty of honest performance in contract law, while the other two were concerned with equality issues: Fraser v. Canada (Attorney General), which considered whether the RCMP pension plan discriminated against members (primarily women) who shared jobs, and Ontario (Atto...
Tags: Supreme Court, Law, Court, Canada, Court of appeal, Quebec, Ontario, Brown, RCMP, Abella, Supreme Court of Canada, Cote, Fraser, Rowe, SCC, Royal Commission


Mandatory COVID Testing Upheld in Retirement Home

The rights and obligations of workers and employers in the pandemic continue to raise new and novel issues. While many businesses encourage or require their staff to work from home, there are plenty of industries which still require work in-person, especially in deemed essential services (which differ based on jurisdiction). A particularly challenging area has been long-term care and retirement homes, where several outbreaks have been observed across the country. Not only do these facilities hav...
Tags: Law, Ontario, Supreme Court of Canada, Substantive Law: Judicial Decisions, Caressant Care Nursing Retirement Homes, Christian Labour Association of Canada, Retirement Homes Regulatory Authority, Irving Pulp Paper Ltd


Tribunal Finds No Link Between Disability and Dismissal

Written by Daniel Standing LL.B., Editor, First Reference Inc. Neil Patzwald was an engineer who worked at FMC Corporation from March 2011 to September 2013. His short tenure was marked by multiple lengthy absences for medical reasons, disagreements with his superiors about his abilities and suitability for his position-culminating in an acrimonious end to the employment relationship. Since it became apparent the employee had a disability, the case became centered on the employer’s duty to acco...
Tags: Law, Disability, Employment law, Discrimination, Tribunal, Dismissal, Daniel, FMC, Substantive Law: Judicial Decisions, Case Comment, Prince George British Columbia, Substantive Law, Duty To Accommodate, Columbia Human Rights Tribunal, FMC Corporation, British Columbia Human Rights Code


Hidden Harsh Termination Clause Voids Contract

By Lewis Waring, Paralegal, Studen-at-Law, Editor, First Reference Inc. In Battiston v Microsoft Canada Inc (“Microsoft”), an employee was wrongfully dismissed because his employer had failed to bring a harsh termination clause to his attention. The Ontario Superior Court of Justice’s decision in Microsoft resulted from a combination of the fact that the clause was relatively harsh as well as the fact that the employer had buried the clause deep within his employment contract and failed to suff...
Tags: Microsoft, Law, Employment law, Ontario, Dismissal, Microsoft Corp, Ontario Superior Court of Justice, Battiston, Superior Court of Justice, Performance Review, Substantive Law: Judicial Decisions, Case Comment, Microsoft Canada, Substantive Law, Wrongful dismissal, Lewis Waring


Cheifetz, Apportionment of Fault (1981) – PDF Available

Apportionment of Fault In Tort (1981) – David Cheifetz An unrestricted PDF of Cheifetz, Apportionment of Fault in Tort is now available. The text has been out of print for about 2 decades.The “price”, for Canadian purchasers, will be a donation of CDN $20 to either the Toronto Hospital for Sick Children or the Vancouver Children’s Hospital. Purchasers from other countries should chose a suitable children’s hospital or equivalent in their jurisdictions.If you want the PDF: Send a request to me at...
Tags: Ebooks, Books, Law, Miscellaneous, CDN, Announcements, Tort, Ontario, Negligence, Contribution, Practice Of Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation, Legal Information, Practice of Law: Practice Management, Substantive Law


British Columbia Worker’s Right to Refuse Work Denied

By Daniel Standing LL.B., Editor, First Reference Inc. In a recent decision under the British Columbia, under the Workers Compensation Act, an investigations legal officer dismissed a worker’s prohibited action complaint. The worker decided not to report to work as a bartender out of concern of contracting COVID-19. The case, reported here, examines the sufficiency of evidence required to prove a prima facie complaint. In dismissing the case, the WorkSafeBC officer clarifies the employee’s dut...
Tags: Law, Canada, British Columbia, Daniel, WCA, Substantive Law: Judicial Decisions, Substantive Law: Legislation, Case Comment, Substantive Law, Reprisal, Editor First Reference Inc, British Columbia Workers Compensation Act, Occupational Health and Safety Regulation, Prohibited Action, Prohibited Action Complaint, Right to refuse unsafe work


Rift on the Supreme Court Bench? Cont’d (Fraser and G)

In my November 3rd Slaw post on the Supreme Court of Canada’s decision in Fraser, I considered the division on the Court relating to the interpretation of section 15(1) of the Canadian Charter of Rights and Freedoms. The majority decision, written by Abella J., emphasized a broad interpretation, stressing the significance of adverse effects discrimination and the goal of substantive equality. In their dissent, Brown and Rowe JJ. applied a narrower interpretation, as did Côté J. in her separate d...
Tags: Supreme Court, Law, Court, Court of appeal, Parliament, Ontario, Manitoba, Brown, RCMP, Christopher, Supreme Court of Canada, Cote, Fraser, Ontario Court of Appeal, Rowe, Karakatsanis


Motivations Irrelevant for Determining the Public Interest

Following the Court’s decisions in Pointes/Platnick, anti-SLAPP motions continue to be brought in defamation actions. These decisions will continue to build and refine test created by the Court, and how it can be applied. One particular aspect is determining what exactly is in the public interest for the purpose of s. 137.1(4)(b), which is the main focus of analysis after the Court’s decision. A recent Ontario Court of Appeal decision in Sokoloff v. Tru-Path Occupational Therapy Services Ltd. he...
Tags: Supreme Court, Law, Court, Toronto, Court of appeal, Grant, Campbell, Public Interest, Levant, Ontario Court of Appeal, Nanda, Substantive Law: Judicial Decisions, Ontario College of Teachers, Sokoloff, Pointes Platnick, Tru Path Occupational Therapy Services Ltd


Park Evictions During a Pandemic

To the uninitiated, it looks a bit like urban camping. Take a closer look though, and you’ll see their entire life belongings, and evidence that these camps are not recreational, but a matter of survival. What we’re referring to of course are the numerous tent encampments that have proliferated across Canada during the pandemic. Other alternatives often resorted to in those without permanent housing, including couch surfing, staying with friends or family members temporarily, and even shelters a...
Tags: Law, Cdc, Toronto, City, Canada, Ontario, the City, Mohan, Hamilton Ontario, Ontario Superior Court of Justice, Substantive Law: Judicial Decisions, City of Toronto, Schabas, Occupy Toronto


Employees’ Imperfect Right to Reasonable Accommodation

By Lewis Waring, Paralegal and Student-at-Law, Editor, First Reference Inc. Human rights claims are often the result of an employee’s claim that their employer has failed to accommodate their needs. Whether such claims arise due to an employee’s disability, family status, gender, religion or any other human rights ground, employees have a duty to accommodate the human rights needs of their employees. However, the duty to accommodate does not require employers to provide employees with their ide...
Tags: Law, Employment law, Columbia, Practice Of Law, Substantive Law: Judicial Decisions, Case Comment, Practice of Law: Practice Management, Substantive Law, Duty To Accommodate, Return-to-work, Columbia Human Rights Tribunal, Lewis Waring, British Columbia Human Rights Code, Right to Reasonable Accommodation, Tumber v FlexiForce, Tumber


Discouraging Sexual Harassment Through Human Rights

Damages before the Human Rights Tribunal have historically been modest, especially when compared to similar cases before the Superior Court of Justice. The system was transformed considerably in 2006 after Bill 107, Human Rights Code Amendment Act, which allowed the Tribunal to award higher damages starting in 2008, by removing the $10,000 limit on compensatory awards for mental anguish. Under the current provisions in s. 45.2 of the Code, the Tribunal may make any order to compensate the applic...
Tags: Law, Gm, Tribunal, Ontario, Wilson, Fair, NK, Superior Court of Justice, Substantive Law: Judicial Decisions, Human Rights Tribunal, Am, Hamilton Wentworth District School Board, Ontario Human Rights Review, Tribunal Access, Solis Mexican Foods Inc Partridge, Botony Dental Corporation Silvera


Supreme Court Clarifies Law on Adverse Effect Discrimination

The Supreme Court of Canada’s decision in Fraser v. Canada (Attorney General), 2020 SCC 28 provides a sweeping overview of the law of adverse effect discrimination. This decision specifically targets the alleged discriminatory effect of the RCMP’s policy not to allow those who temporarily reduce their working hours under a job-sharing agreement to “buy back” these periods of reduced working hours for the purposes of their pension. In contrast, those who experienced gaps in their record of servic...
Tags: Supreme Court, Law, Court, Canada, Discrimination, RCMP, Supreme Court of Canada, Fraser, Practice Of Law, Substantive Law: Judicial Decisions, Case Comment, Practice of Law: Practice Management, Ontario Human Rights Commission, Substantive Law, Simpsons Sears, Canadian Charter of Rights and Freedoms


Dissecting the Majority and Dissenting Opinions in Fraser

The Supreme Court of Canada’s recent decision in Fraser v. Canada (Attorney General) (“Fraser”) illustrates the fissures on the Court in the judges’ approaches to equality undersection 15(1) of the Canadian Charter of Rights and Freedoms. Although there are also other factors explaining the differences in the majority and dissenting opinions, here I discuss three that are somewhat distinct from the facts of the case: the nature of “equality” under section 15(1); the interrelationship between the...
Tags: Law, Court, Canada, Court of appeal, Parliament, Federal Court, Brown, McIntyre, RCMP, Abella, Andrews, Supreme Court of Canada, Cote, Fraser, Rowe, Royal Commission


Public Interest Litigation Keeping the Homeless Safe

Early in the pandemic, António Guterres the 9th Secretary-General of the United Nations, stated, Early signs are that the COVID-19 virus poses a greater direct health risk to men, and particularly older men. But the pandemic is exposing and exploiting inequalities of all kinds, including gender inequality. In the long term, its impact on women’s health, rights and freedoms could harm us all. More recently, Canada’s deputy chief public health officer, Dr. Howard Njoo, highlighted the need for bet...
Tags: Law, Toronto, City, Canada, United Nations, Bill, Ontario, the City, Antonio Guterres, Substantive Law: Judicial Decisions, Sossin, Sail Labrador Ltd, Howard Njoo, Consolidated Municipal Service, Shelter Support and Housing Administration, SSHA