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2007

"Critical Issues in the Hiring Process"

"Critical Issues in the Hiring Process" (December 1, 2007)  is the title of a paper written by two lawyers at Blaney McMurtry LLP on Ontario, Elizabeth Forster and Goli Garakani.

"Ten Key Differences Between Canadian and U.S. Employment Laws"

Christina Medland and Joe Vicinanza have written an article on "Ten Key Differences Between Canadian and U.S. Employment Laws" (December 11, 2007).

The authors are lawyers at Torys. The article was published in the firm's Pension and Employment Bulletin.

"Tort Claims Against Third Parties in Wrongful Dismissal Actions"

Jurisdiction: - Ontario

Janice Payne and Aman Sidhu at law firm Nelligan O'Brien Payne in Ottawa have written a paper on "Tort Claims Against Third Parties in Wrongful Dismissal Actions" (November 2007). The paper was prepared for The Advocates' Society Annual Fall Convention.  It addresses the following two tort claims:

  1. Tort of interference with business/economic relations; and
  2. Tort of inducing breach of contract.

"Advice to Unions and Employers Regarding the Accommodation of 'Invisible' Disabilities"

Four lawyers at Black, Gropper & Company (S. Michelle Blendell, Jessica L. Burke, Pamela Costanzo and Allan E. Black, Q.C.) and two lawyers at Roper Greyell (Kim G. Thorne and Michael Kilgallan) have written a very comprehensive paper entitled,  "Advice to Unions and Employers Regarding the Accommodation of 'Invisible' Disabilities" (November 2007).

Pilot Program Starts at Vancouver Robson Square and Richmond Small Claims Courts

Topics: - Civil Procedure
Jurisdiction: - British Columbia

A pilot project which comes into effect on November 26, 2007 introduces the following changes at the Vancouver Robson Square and Richmond Small Claims Courts.

Simplified Trials

  • Senior civil or arbitration lawyers will determine matters (except debt claims - see below - and personal injury claims) between $0 - $5,000 in an expedited arbitration-like process. 
  • Note: there are differences in the way these trials will function in Vancouver and Richmond. 

Summary Trials 

  • All institutional debt claims between $0 - $25,000 (like credit card debt claims) will be diverted to a separate track which will be heard and determined by judges in a summary process without a settlement conference. 
  • This applies only to Vancouver Robson Square.

Mandatory Mediations  read more »

Ontario Privacy Commissioner offers advice on minimizing risks to employment prospects because of online profile

Jurisdiction: - Ontario

"Reference Check: Is Your Boss Watching? Privacy and Your Facebook Profile", is the title of a paper published last month by Ann Cavoukian, the Ontario Information and Privacy Commissioner.

The Commissioner offers advice to indivduals on mitigating and minimizing risks to their employment prospects because of their online profiles on sites like Facebook, MySpace, LinkedIn and Friendster. The paper can be found here.

"Attendance Management Guide"

Law firm Hicks Morley has published a comprehensive "Attendance Management Guide" that addresses the range of legal issues an employer must consider/address when managing attendance problems. 

Court discusses duties owed by financial advisors when they switch brokerage houses

Jurisdiction: - British Columbia

In Stenner v. ScotiaMcleod  2007 BCSC 1377, the court discussed the duties owed by employees in the financial services industry when they switch brokerage houses.

Facts

The plaintiff was a financial consultant and investment advisor who had gained some prominence through a radio show.

He had moved his "book of business" (i.e., client accounts) to what is now Merril Lynch in 1995 and then to National Bank Financial ("NFB") in 2000.

One of the individual defendants was the plaintiff's daughter. She had started working for her father in 1991, had followed him when he changed brokerage houses, and continued to acquire a greater role in growing and managing the plaintiff's "book of business" as the years went by.

The other individual defendants were the daughter's husband and an administrative employee.

The plaintiff and the individual defendants were all employees of NBF at the time in question, and each received a salary and employee benefits from NBF.  read more »

"Current Issues in Mitigation: The Duty to Mitigate in the Face of a Constructive Dismissal or Re-Employment Offer"

Jurisdiction: - British Columbia

Shanti P. Reda and Suzanne M. Forestell, of Kent Employment Law in Vancouver, have written a paper on "Current Issues in Mitigation: The Duty to Mitigate in the Face of a Constructive Dismissal or Re-Employment Offer" (August 2007) which they presented at the 2007 British Columbia Employment Law CLE.

"Dismissing the Probationary and Short-term Employee"

Jurisdiction: - British Columbia

Vancouver lawyers Catherine Keri and Simon Kent, with the assistance of Jason Ellis, have written a paper on "Dismissing the Probationary and Short-term Employee: Has the Court recognized the imbalance of power or have judges simply gone to far?" (July 2007).

Among other cases, it addresses the BC Court of Appeal's decision in Jadot v. Concert Industries Ltd., 1997 CanLII 4137 (BC C.A.), which is a leading decision on the standard imposed in law for the dismissal of a probationary employees.

More on the implied duty of fidelity and good faith

Jurisdiction: - British Columbia

In the recent decision of McMahon v. TCG International Inc., 2007 BCSC 1003, the BC Supreme Court set out what the employee's implied duty of fidelity and good faith has been taken to encompass. Specifically, the court stated:

It is well established that employees owe their employers an implied duty of fidelity and good faith.  This was described succinctly in CRC-Evans Canada Ltd. v. Pettifer (1997), 197 A.R. 24 at para. 45 (Alta. Q.B):  read more »

Tribunal finds that no-free standing right to accommodation under the Canadian Human Rights Act

Jurisdiction: - Canada/Federal

In Moore v. Canada Post Corporation, 2007 CHRT 31, the complainant alleged that his employer discriminated against him by failing to accommodate his disability.

On this point, the Canadian Human Rights Tribunal stated:

...I cannot emphasize enough that "failure to accommodate" is neither a prohibited ground of discrimination nor a discriminatory practise under the CHRA. There is no free-standing right to accommodation under the CHRA.

The duty to accommodate only arises in the context of s. 15(2) of the CHRA and only when a respondent raises a bona fide justification by way of defense to an allegation of discrimination. For Mr. Moore to show a prima facie case, he must rely on something other that the failure of CPC to accommodate him (paras. 86-87)

New requirements in BC to train workers who are young or new to the workplace

Jurisdiction: - British Columbia

Starting July 26, 2007, employers in British Columbia must provide young or new workers with a health and safety orientation and training specific to the workplace, and must record and document that training.

A young worker is anyone under the age of 25, while a new worker can be any age and includes workers who are:

  • new to the workplace;
  • returning to a workplace where the hazards in that workplace have changed during the worker's absence;
  • affected by a change in the hazards of a workplace; or
  • relocated to a new workplace if the hazards in that workplace are different from the hazards in the worker's previous workplace.

Employers have had these responsibilities before, but for the first time they are collected in one place and detailed in clear, concise language.

The new requirments are a result of amendments in sections 3.22 to 3.25 (Part 3) of the Occupational Health and Safety Regulation.  read more »

"Can or Does a Human Rights Violation Ground a Punitive Damages Award in a Wrongful Dismissal Case?"

James D. Kondopulos of Roper Greyell LLP in Vancouver, has written a paper titled, "Can or Does a Human Rights Violation Ground a Punitive Damages Award in a Wrongful Dismissal Case?"

The paper was written for the Continuing Legal Education Society of British Columbia conference, "Employment Law Conference - 2007", held on June 1, 2007.

Supreme Court of Canada rules that freedom of association protection in Charter applies to collective bargaining

Sector: - Health Care

In Health Services and Support - Facilities Subsector Bargaining Assn. v.British Columbia, 2007 SCC 27, the Supreme Court of Canada overturned previous case law and ruled that a "limited right" of collective bargaining is protected by section 2(d) (freedom of association) of the Charter of Rights and Freedoms. This is a landmark decision.

Law firm Heenan Blaikie has published this case summary: "Supreme Court of Canada rules that collective bargaining is protected by freedom of association in Charter" (June 8, 2007).

Postscript: This is a case summary by law firm Emond Harnden: "Supreme Court of Canada extends Charter protection to collective bargaining" (July 2007).