Decisions
CRIMINAL CODE SCREENING OF SEX ASSAULT VICTIMS UPHELD
In 2018 Parliament enacted sections 278.92 to 278.94 of the Criminal Code to address the barriers that had prevented victims of sexual offences from making complaints to police. These provisions created a screening regime to protect the complainants’ interests in their own private records when an accused, who possessed or controlled such records, wanted to have them admitted at a hearing in their criminal proceeding. The screening regime procedures and criteria aided an application judge to determine the admissibility of such records in balancing the rights and interests of the accused, the complainant, and the public. The new procedures also gave complainants additional participation rights in admissibility proceedings. Some, of the same procedural elements of these provisions were also to be applied to s. 276 evidence applications regarding the admissibility of evidence of complainants’ prior sexual activity or history. In view of Parliament’s objective and underlying logic for the enactment of the record screening regime, the Court concluded that sections 278.92 to 278.94 did not apply more broadly to other types of defence evidence. Section 278.93 was constitutional under sections 7 and 11(d) of the Charter for two reasons: the accused was not compelled to testify so section 11(c) was not engaged; and there was no absolute rule against defence disclosure.
read moreCHARTER AND VACCINE MANDATES
The Court found that the PHO assessed the available scientific evidence to determine COVID-19 risk for gatherings in British Columbia, including epidemiological data regarding transmission of SARS-CoV-2 globally, nationally, and in British Columbia, factors leading to elevated transmission risk in religious settings, and COVID-19 epidemiology in British Columbia. The PHO’s orders were limited in duration and constantly revised and reassessed to respond to current scientific evidence and epidemiological conditions in British Columbia. The PHO was guided by principles applicable to public health decision making. In particular, the principle that public health interventions be proportionate to the threat faced and should not exceed those necessary to address the actual risk. The Court concluded that the PHO’s decision to issue the Orders and the Variance Order was internally consistent and was based on her expert evaluation of the facts available at the time. The PHO’s decision was not unreasonable and fell within a range of reasonable options.
read moreBC COURT OF APPEAL: NO TORT OF “BLACKLISTING”
The Court of Appeal held that the chambers judge erred in striking the claims for misfeasance in public office, conspiracy and breach of s. 2(b) of the Charter. However, the chamber judge did not err in striking the novel tort claim of “blacklisting”. The Court of Appeal based its decision on the lack of sufficient pleading and the lack of legal authority for the proposed tort. The Court of Appeal found there was no tort of blacklisting in existence in the common law world, nor had such a tort been proposed in any common law academic text or other commentaries. Allowing the tort of blacklisting would amount to creating a new law which is solely the legal purview of the legislature.
read morePOLICY REQUIRING MANDATORY VACCINATION NOT CONTRARY TO CHARTER – NO INJUNCTION
The applicants have failed to establish a strong prima facie case, which as I have found they must do here in order to succeed on the first prong of RJR.
With respect to irreparable harm, the evidence shows that the harms the applicants allege – diminishing memory of their courses, emotional distress, and earning a lower income while waiting to complete their courses – are exaggerated or misstated, are in large measure self‑made, and are not in any event irreparable in that they are quantifiable in monetary terms or can be cured.
In Sinai Health, Akbarali J. held that the balance of convenience and particularly the public interest weighed in favour of maintaining a mandatory vaccination policy and against the request for an injunction. Her Honour noted the medical evidence that the vaccines provide “a higher level of protection than regular antigen testing would afford” and accepted TTC’s evidence that based on “its experience, and the best scientific and public health information available …it would face greater risk to the health and safety of its workforce and its riders if it is required to permit unvaccinated employees to continue to attend the workplace”. Akbarali J. found, and I agree (substituting Seneca for the TTC), that by acting in compliance with public health guidance, TTC conducted itself in a fashion which the Court must assume is “in the public interest, especially in a pandemic”: at para. 107.
COVID CASE – Alberta Queen’s Bench – UNPAID LEAVE OF ABSENCE DUE TO MANDATORY MASK POLICY IS NOT CONSTRUCTIVE DISMISSAL
In Benke v. Loblaw Companies Limited, 2022 ABQB 461, the Alberta Court of Queen’s Bench, handed down July 5, 2022, ruled that a former employee, the plaintiff, who had a received work absence certificate from his doctor to the effect that he was unable to wear face mask as per City’s mask by-law due to illness. The employee had worked for the employer for some 18 years. The defendant employer later adopted mandatory mask policy that applied to all its stores in Canada. The employee sought an exemption based on a form completed by doctor that had check mark beside statement “is unable to wear a face mask” but words “due to the following medical condition/s or disabilities” were crossed out. The employer placed the employee on indefinite unpaid leave because he refused to wear mask in stores without medical justification and thereby did not comply with mask by-law and mask policy. The former employee brought action for wrongful (constructive) dismissal seeking damages in lieu of notice. The Court dismissed the action following a summary trial.
read moreSigned release did not bar access to the unjust dismissal provisions of the Canada Labour Code – Federal Court of Appeal
“Indeed, it is not difficult to envisage a situation where an employee could, after having signed such a contract, realize that the termination of his or her employment is not the result of a legitimate business restructuration as he or she was led to believe, but is instead a coloured or disguised attempt at wrongfully dismissing her or him. This shows the wisdom of the Code in protecting an employee’s access to the remedies against unjust dismissal notwithstanding the signature of a termination contract between the parties.” BMO’s argument that National Bank was wrongly decided and should be overturned because it conflates prospective and retrospective waivers of statutory rights is without merit.
read moreSURREPTITIOUS RECORDINGS IN THE WORKPLACE – CAUSE FOR DISMISSAL
On the plaintiff side, the issue of surreptitious recordings comes up often. In support of their grievances or concerns, employees sometimes turn to surreptitious recording conversations, meetings and other events in the workplace. The modern cell phone is a useful and readily accessible tool. Aside from the difficulties, often garbled and unintelligible information – who’s who? saying what – the costs of proper transcription, reliability, authenticity and verification etc., there are certainly ethical issues in such conduct. In this case, the Court concluded that such conduct justified the termination of the employee. The employee was a professional (CPA), in a senior position, who, as well, was bound by professional standards of his profession. Whether it applies more broadly remains to be seen.
In Shalagin v Mercer Celgar Limited Partnership, the plaintiff, a CPA, commenced employment with the employer as a financial analyst in January 2010. He was later promoted to senior analyst. There was no written contract governing his employment relationship. However, the plaintiff agrees that he was bound by Mercer’s policies including: a Code of Business Conduct and Ethics; and a confidentiality policy. He also agreed that he was bound by CPA’s Code of Conduct. In March 2020, he was terminated without cause after a disagreement about discrimination and the 2019 bonus.
Moore test applies to alleged discrimination in family status cases
The Alberta Court of Appeal concluded that “the Supreme Court of Canada mandates that it is at the later justification stage, after prima facie discrimination has been established, that the onus shifts to the employer to show alternative approaches were investigated, and the prima facie discriminatory conduct was “reasonably necessary” in order to accomplish a broader goal. “In other words, an employer or service provider must show ‘that it could not have done anything else reasonable or practical to avoid the negative impact on the individual’” [citations omitted]: Moore at para 49; Meiorin at para 38.” The Court concluded that “Johnstone and like cases importing a fourth requirement of self-accommodation into the Moore test for prima facie discrimination are wrong, and inappropriately hold family status claimants to a higher standard than other kinds of discrimination. The Supreme Court of Canada has set the test for prima facie discrimination, without limitation, and without evidentiary embellishments. In Alberta, the debate must end: the test for prima facie discrimination ought to be exactly the same whether in the context of direct or adverse effects discrimination based on prohibited grounds, or in cases advanced under human rights legislation or under a collective agreement or otherwise, or before the courts on review. Different tests, or evidentiary gradations of the same test, beget inequality.”
read moreTOP COURTS LIMITS ACCESS TO HUMAN RIGHTS FOR UNIONIZED EMPLOYEES
Part of the Court majority’s wrongheaded reasoning is the reliance on the so-called duty of fair representation to mitigate the limitations on individual human rights: Anyone with any experience in duty of fair representation complaints knows that these complaints do not provide much if any protection for employees. From the BC Labour Relations Board annual report (20230): In BC in 2020, precisely NIL section 12 (duty of fair representation) complaints were granted. In the last 10 years, 15 complaints were granted. In the past 10 years, the Board disposed on 747 complaints.
read moreEmployee on the “wrong” side of political divisions in First Nations community was unjustly dismissed
The employee was terminated from her employment with a First Nations organization, which was caught up in political turmoil within the community and the Bands that made up the community. The termination was unjust.
read more(Direct) Evidence – Like American Express – Never Leave Home Without It!
MB v. 557317 B.C. LTD. carrying on business under the name and style of T-LANE TRANSPORTATION AND LOGISTICS (Can. Adj., 12 April 2018, Ib S. Petersen) (Note: The decision has been anonymized for names of individuals. A copy of the full decision may be obtained by... read moreManager status under the Canada Labour Code
The common thread in the authorities is the actual exercise of significant autonomy, discretion and authority in the conduct of the employers business. The term “manager” is given a narrow construction.
read moreDUTY OF FAIR REPRESENTATION – IS IT TIME TO GET RID OF IT? GIVE IT TEETH?
43 Similarly, I am not persuaded that Jackson was dishonest with the Complainant during the grievance processes. As the Board held in Judd, the union’s deception must go to the quality of the representation. For the most part, the Complainant’s allegations of dishonesty are with respect to the evidence Jackson gave before the Board and were offered as a challenge to Jackson’s credibility. I find the Complainant has not established, on the evidence, that Jackson was dishonest with him during the Initial Grievance or the LCA Grievance in a way that affected the quality of the representation.
read moreDeductions under the Canada Labour Code
The Employer made deductions from Mr. Czernewan’s final pay cheque in clear contravention of 254.1 (1), which prohibits deductions with certain limited exceptions. The Employer relied on an email communication, which, as I have found above, provided no basis for the deduction. In my view, it was abundantly clear on the face of the email that it could not reasonably be read to provide any basis for the deduction. I am also of the view that the Employer’s reliance on a court order obtained subsequent to the deduction could not reasonably provide a basis for the deduction. In the circumstances, I have determined that $500.00 is a reasonable amount.
read moreProvincial Court – Appeal or Judicial Review
When a court sees fit to give Judgment as a result of a pre-trial procedure or application, the same interests in certainty and finality are engaged, as is the statutory goal of speedy resolution of claims. I see no reason why the successful party should have to wait longer to enjoy the benefit of the Judgment than he or she would have to wait if the Judgment had been given at trial.
Although the application for judicial review is not subject to the appeal period in s. 6 of the SCA or to any other specific time limit, an applicant who seeks judicial review of an order giving Judgment or dismissing a claim must still act promptly. If there is to be a delay significantly greater than the 40 days that would be allowed in the case of an appeal, the applicant should, in my view, provide some evidence of a reasonable explanation for that delay.
Dismissal of Provincial Human Rights Complaint – Federal Jurisdiction
The Complainant must take her human rights issues to the Canadian Human Rights Commission under the Canadian Human Rights Act. The Complainant may wish to provide the Commission with a copy of this decision in support of her assertion that she has been trying for some time to advance her human rights complaint against the Respondents.
read moreEight Mile High
Hanlon v. City of North Vancouver and another, 2016 BCHRT 123 (Can Lii) I INTRODUCTION [1] On October 30, 2015, Robert Hanlon filed a complaint against the City of North Vancouver and the North Vancouver Firefighters’... read moreONLRB: Despite “Half-Hearted” Efforts – Employee Did Not Fail to Mitigate – and Not Seeking Reinstatement – Compensation Awarded Up to Time When Employee Could Have Sought Reinstatement
The Board now accept the employer’s argument that the applicant’s job search efforts during this period were half hearted, likely reflecting the fact that she was engaged in the hearing of this application. I come to that conclusion even though, realistically, part of the period was in the summer when job prospects were likely low. Taking these factors all into consideration, I reduce the damages for this period by 3 months.
The applicant former employee did not seek reinstatement. In assessing this question, it is critical, in the Board’s view, that the Board has the authority under the Act to reinstate the applicant to her employment and compensate her for any loss she suffered. Therefore, the date at which the employer’s responsibility for the losses should be ended (subject to mitigation – or failure to mitigate) is the date at which the Board could have reinstated the applicant, or, as in this case, the date at which the applicant gave up the right to seek reinstatement. The Board varied the amount of the Order for compensation by reducing the amount owing by a total of four months (the one month deducted in the November 20, 2015 decision plus the three months indicated above).
Reconsideration at the OLRB
Melanie Lamoureux v. JYSK Linen N Furniture Inc., 2016 CanLII 1331 (ON LRB) Melanie Lamoureux, Applicant v. JYSK Linen N Furniture Inc., and Director of Employment Standards, Responding Parties Employment Practices Branch File No: 70131786-3 BEFORE: Brian... read moreOntario Labour Relations Board: The Employee Mitigated Termination Despite Minimal Efforts to Find Work
UNDERSTATEMENT OF THE YEAR: The OLRB did not accept that the applicant has generally otherwise failed to mitigate her damages. While there is no doubt her job search efforts could have been more forceful, they were reasonable in all of the circumstances. That being said, there was a period where the applicant appeared to stop searching for another job. I am satisfied that the employee failed to mitigate for one month of that period.
read more