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Construction Exec Resigns After Defamation Case Against Cactus Club – Brisette v. Cactus Club Cabaret Ltd., 2016 BCSC 459
The Defendants relied upon justification, that the words complained of were true or substantially true, or that the communication was made on an occasion of qualified privilege. “A defence of justification is made out if the main charge or gist of the defamation is proven.” Qualified privilege rebuts the inference of malice. The defence may apply in circumstances when” when a person is asked a question about a matter by or on behalf of someone who appears to have a legitimate interest in knowing the answer, the person is under a duty to answer and that the occasion is privileged.” The person must speak honestly. Qualified privilege may be defeated “the dominant motive behind publishing the statement was actual or express malice” or “statement went beyond what was germane and reasonably appropriate in the circumstances.” Both defences were made out.
read moreAdministrative Law/Labour Law in Québec: Standard of Review Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8 (35898)
In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, the Court stated that when an administrative tribunal interprets or applies its home statute, there is a presumption that the standard of review applicable to its decision is reasonableness (paras. 39 and 41; see also Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161, at para. 35; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, at paras. 26 et 28; Dunsmuir, at para. 54). That presumption applies in the case at bar. The arbitrator’s decision to allow the Union to examine the executive committee’s members was based on his conclusion that their testimony would be helpful to him in determining whether the collective agreement and the legislation had been complied with. This conclusion flowed from his interpretation of the local agreement between the parties and of the EA. His home statute, the Labour Code, provides that an arbitrator may “interpret and apply any Act or regulation to the extent necessary to settle a grievance” (s. 100.12(a)). The Court has held that a reviewing court owes the greatest possible deference to an interpretation of provisions of the EA by a grievance arbitrator in an educational setting: Syndicat de l’enseignement du Grand‑Portage v. Morency, 2000 SCC 62, [2000] 2 S.C.R. 913, at para. 1.
read moreDuty of Good Faith in Employment Law – Bhasin v. Hrynew, 2014 SCC 71 – CASE UPDATE
There can be little doubt that the decision of the Supreme Court of Canada in Bhasin, released in November 2014 will significantly impact on Canadian employment law. It is far too early to say how. The impact will be felt not only in contract negotiations, the employment relationship and termination situations. Pre-Bhasin the obligation of good faith was limited to termination of employment. Clearly the Bhasin decision has extended the duty of good faith beyond Wallace and Honda Canada. In Karmel v. Calgary Jewish Academy, below, the Court noted: “duty of good faith as one which extends throughout the duration of employment, and not just at the time or event of termination. Employers must therefore demonstrate good faith for the entirety of the employment contract.”
read moreDrug Dependent Employee Fired After Collision headed for the Supreme Court of Canada
he majority agreed with the Human Rights Tribunal and agreed that the employee was properly terminated for breach of the policy. The majority reasoned, among others, that “Disability revealed voluntarily would not have led to adverse impact. The breach of the Policy can happen without disability. Finally, as the Tribunal observed, there was no difficulty for Stewart complying with the Policy despite his disability. Disability was not a real factor in the enforcement of the Policy.”
read moreSupreme Court of Canada – Denied Leave in Termination Case
The Supreme Court of Canada denied leave to the appellant employee fired for as the result of violent threats made to fellow employees after being discipline. While the respondent employer had accommodated the employees for various disabilities, the employer was not aware of the employee’s mental disability and therefore did not discriminate against him under the Ontario Human Rights Code. The Ontario Court relied upon the decision of the BC Court of Appeal’s decision in BC (Public Service Agency) v. BBCGEU, 2008 BCCA 357.
read moreBCCA – New Trial Ordered – Trial Judge Failed To Set Out The Basis For Deduction For Mitigation
Although the judge in the present case held that the respondent failed to mitigate his damages, he did not make a finding of the duration of that failure, other than inferentially at three months. It may be that deducting time from the notice period to take into account the respondent’s failure to mitigate led to this result, but the fact is that the judge did not state why he arrived at three months.
read moreOntario Human Rights Commission – Female dress code
Employers must make sure that any uniform or dress code policy does not undermine employees’ dignity and right to fully take part in the workplace because of Code grounds, including sex, gender identity, gender expression and creed (religion). Female employees should not be expected to meet more difficult requirements than male employees, and they should not be expected to dress in a sexualized way to attract clients. An employer should be prepared to prove that any sex-based differences in the dress code are legitimately linked to the requirements of the job. Where this cannot be shown, these dress codes will be discriminatory. …..
read morePrivacy Rights – Ontario – “Intrusion upon Seclusion”
[71] The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would [page262] include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.
read moreEmployee fired for slapping his boss reinstated and awarded $25,000.00
While the adjudicator noted that the employer had laudable concerns, such as ensuring a violence-free workplace, it was obligated to consider the situation’s medical aspect, which it did not do. The adjudicator awarded $15 000 for pain and suffering and $10 000 as special compensation and reinstatement but no back pay.
read moreNo Evidence Motion at the Human Rights Tribunal Failed – Accommodation
More powerfully, UBC has submitted that, on the evidence before the Tribunal at this point, Ms. McCue’s failure to meet the standards for tenure and promotion are a matter of her choice. In that regard, they point to the admission by Ms. McCue that there is nothing about indigeneity that prevents an indigenous person from having the capability of meeting the University’s requirements. They also point to the fact that each and every one of the three indigenous witnesses called to support Ms. McCue’s case had, in order to establish their own educational credentials, met such standards. Further, UBC relies on evidence from those witnesses that there are good reasons for peer-reviewed publication in terms of the ability to disseminate information which it is important to the indigenous community be disseminated.
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