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Changing the Criminal Justice System’s Response to Sexual Assault/Gender Based Violence in Canada
Law enforcement in North America have traditionally utilized interrogation as the technique for conducting criminal investigation interviews, including interviews with survivors of sexual assault. Interrogation is directed towards the pre-frontal cortex of the brain, however scientific research has shown that this part of the brain is not normally involved in experiencing, reacting to, encoding and storing the trauma of a sexual assault. In responding to police questions which are framed to obtain chronological, time-sequenced information, sexual assault survivors have often provided inaccurate, inconsistent, “sketchy” information, changed their version of what happened in a later recollection, or omitted information which might have caused law enforcement to question their honesty and their credibility in comparison to the assailant’s credibility. A survivor’s conduct after a sexual assault, which to other people, including judges, is viewed as not logical or exhibiting poor judgment by the survivor is an example of the myth of “real” rape and is referred to as “counterintuitive” behaviour. For example, counterintuitive behaviour is the rape myth that survivors of “real” rape would never initiate or maintain contact with their assailant after the assault.
read moreEnforceability of Employment Contracts – Ontario Court of Appeal – Failure to Meet Statutory Requirements is Fatal
The termination clause permitted Deeley to avoid continuing employee benefits and was unenforceable. The fact that Deeley in fact paid benefits immaterial to interpretation. As well, the termination clause required Deeley to give Wood “two weeks’ notice of termination or pay in lieu thereof for each year or partial year of employment”. These payments and notice were “inclusive of [Wood’s] entitlements to notice, pay in lieu of notice and severance pay”. Drafted in this way, the clause does not satisfy Deeley’s statutory obligation to pay severance pay. Deeley could fulfil its obligations under the clause in ways that would deprive Wood of her statutory severance pay. The termination clause is thus unenforceable, and Wood is entitled to common law reasonable notice.
read moreThink Before You Act – Alleging Cause Without Basis = Punitive Damages
The Court: I find the facts of this case particularly troubling. Not only did the defendant assert cause when there was no reasonable basis for such an assertion, the defendant delayed in providing the plaintiff his record of employment, and significantly delayed in paying amounts owing under the Employment Standards Act, 2000, until June 15, 2015. This had a significant financial impact on the plaintiff and the employer had knowledge of the plaintiff’s financial circumstances. Moreover, the allegations of cause, made with no reasonable basis, were made for tactical and financial gain considerations.”
read moreBONUS ENTITLEMENT DURING NOTICE PERIOD + GOOD FAITH IN CONTRACTUAL RELATIONS
The first step is the consideration of of the employee’s common law damages, comprised of the compensation and benefits to which he would have been entitled but for the wrongful termination of his employment.
The second step is to consider whether the bonus plan specifically limited or restricted the employee’s common law rights. “The question is not whether the contract or plan is ambiguous, but whether the wording of the plan unambiguously alters or removes the [employee’s] common law rights.” In the case at hand, a term that requires active employment when the bonus is paid, without more, is not sufficient to deprive an employee terminated without reasonable notice of a claim for the bonus the employee would have received during the notice period.
read more“That’s My F….. Bagel” – Useful Lessons for All: Employment Contracts and Proportionality
First, the employer’s response to the “bagel fight” was out of proportion. The “wrist grabbing,” while not trivial was not serious enough and did not constitute “work place violence.” Second, based on the wording of the suspension letter provided to the plaintiff following the bagel incident, the suspension represented its discipline for the incident and that to subsequently dismiss her from employment constituted double jeopardy. The Divisional Court agreed with that as well. Relying on arbitral jurisprudence, the Court stated ” An employee can only be disciplined only once for the same offence.”
read moreDamages Reduced Where Employee Chose Part-Time Employment
The defendant’s obligation to pay notice to the plaintiff ended on June 13, 2016, when the plaintiff commenced employment with Douglas College. That was the date the plaintiff had the opportunity to work full-time and mitigate all of her damages after that date. She was entitled to choose not to take full-time employment but the cost of that choice does not lie with the defendant. I note the defendant has only paid the plaintiff up to June 1, 2016.
read moreWhen You Get Fired – You Got To Look For Work
With respect to mitigation, the Court found: “They have not acted reasonably. Instead of continually and assiduously applying themselves to find employment, [the plaintiffs] .… their efforts to look for work began only recently, …. and even so, those efforts have been so minimal that they cannot be said to meet their duty.”
read moreTrinity Western v. Law Society – TWO NIL – Religion and Human Rights
It was argued that the approval by the Law Society would constitute an “approval” of TWU’s religious principles. This might be “hurtful” to the LGBTQ community. The Court noted that “there is no Charter or other legal right to be free from views that offend and contradict an individual’s strongly held beliefs, absent the kind of “hate speech” described in Whatcott that could incite harm against others (see paras. 82, 89-90 and 111). Disagreement and discomfort with the views of others is unavoidable in a free and democratic society.”
read moreEvidence in Labour Arbitrations – “purple haze”
112 … that the Mandatory Election approach, in Ontario, New Brunswick and Newfoundland, is the preferred approach, both under the B.C. Labour Relations Code. R.S.B.C. 1996 c.244, and under the Canada Labour Code; that is, a party moving a no evidence motion should be required to elect whether or not they will be calling evidence, prior to bringing such a motion. ….. If the party elects not to call evidence, then their case is closed, and the parties will argue the no evidence motion based upon the whole of the evidence. I conclude that this particular approach is more consistent with the arbitration process under both the British Columbia Labour Relations Code and the Canada Labour Code. The arbitration process is meant to be an efficient means of solving workplace disputes. The Discretionary Approach involves delay, a lack of fairness, and a duplication of the arbitral analysis of the evidence.
read moreThe UK Government Guide to help Employers recruit and retain transgender employees (Equality Act 2010). Useful for Employees as well.
“The Equality Act 2010 requires that public bodies have due regard to eliminate discrimination, harassment, victimisation and any other conduct prohibited under the Act (including discrimination by association or perception), to advance equality of opportunity between persons who share a protected characteristic and those who do not, and to foster good relations between persons who share a protected characteristic and those who do not.”
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