Dentons updates

Court finds lawyer's communications and conduct during harassment investigation were not privileged
Dentons
  • Litigation
  • Canada
  • 18 September 2018

An Ontario court has permitted an employee to refer in her statement of claim for constructive dismissal and bad faith to the communications and conduct of the company's lawyer in respect of a sexual harassment investigation. The court held that the discussions and conduct of the lawyer with respect to the investigation did not relate to a litigious dispute, but rather to the company's statutory obligation to investigate claims of sexual harassment under the Occupational Health and Safety Act.

Owner of electrical contracting firm held personally liable for its C$430,000 regulatory fine
Dentons
  • Litigation
  • Canada
  • 11 September 2018

In what appears to be a novel regulatory decision, the Ontario Court of Justice recently held the owner of an electrical contracting firm personally liable for its regulatory fines after he transferred assets out of the company following a fatal incident. In a rather scathing decision, the judge held that the owner had put his own assets at risk by blurring the lines between himself and the company.

Class action claiming gender harassment dismissed as only arbitrator had jurisdiction
Dentons
  • Litigation
  • Canada
  • 04 September 2018

A group of female police officers has lost its bid to bring a class action in the courts for gender discrimination and harassment. The officers had claimed systemic gender-based discrimination and harassment by male members of the police force. However, the court held that it had no jurisdiction over the class action because the claims should have been brought at arbitration.

Safety manager wins wrongful dismissal suit having not failed to complete assigned tasks
Dentons
  • Litigation
  • Canada
  • 28 August 2018

An Alberta safety manager recently won C$28,000 in damages after he was fired by his employer. The employer argued that the employee had quit or, in the alternative, that there was just cause for dismissal. The court held that the employee, who had three-and-a-half years of service and an annual salary of C$82,000, was entitled to four months' pay in lieu of notice.

Court declines to quash bid ban imposed by city on paving company
Dentons
  • Litigation
  • Canada
  • 07 August 2018

A recent Ontario court decision illustrates the serious business implications that Occupational Health and Safety Act compliance issues or disputes can have on a company. The court held that although the city of Sudbury had initially breached its obligation of procedural fairness when imposing a bid ban on paving company Interpaving, it had "cured" that breach through its reconsideration and process, which gave Interpaving full opportunity to be heard.

Occupational health and safety charges in fatality case dismissed for delay
Dentons
  • Litigation
  • Canada
  • 31 July 2018

An Ontario appeal judge has upheld the dismissal of Occupational Health and Safety Act charges against employees due to delay. The charges followed the death of a mining employee from cyanide intoxication by way of skin absorption. The total delay – from the laying of the charges to the last day scheduled for trial – was 21 months, which exceeded the 18-month presumptive delay ceiling set out by the Supreme Court of Canada in Jordan.

Distracted by mobile phones: forklift operators guilty of occupational health and safety offence
Dentons
  • Litigation
  • Canada
  • 17 July 2018

Two forklift operators were recently found guilty under the Occupational Health and Safety Act for using mobile phones while sitting on their forklifts. The court held that "operating or using" a forklift includes sitting on a forklift even when it is stopped and turned off, as other workers and forklifts may be nearby and put at risk by the operator's distraction and inattention to their surroundings while using a mobile phone. Further, the employer had clearly prohibited the use of mobile phones in the warehouse.

Vehicle owner not liable for accident caused by repair shop employee during driving test
Dentons
  • Litigation
  • Canada
  • 10 July 2018

The Alberta Court of Appeal recently reviewed the provisions of the Workers' Compensation Act that enable the Workers Compensation Board (WCB) to be subrogated to the right of a claim against a party not covered by the act when the WCB has paid out benefits to a party that is covered by the act. The court confirmed that pursuant to the act, defendants that are not protected from suit should not be held liable for the portion of loss caused by an employer or worker that is protected from suit.

Canadians may need to pursue internet defamation lawsuits abroad
Dentons
  • Litigation
  • Canada
  • 03 July 2018

A recent case has affirmed the test for jurisdiction simpliciter in internet defamation cases. However, it has also muddied the waters regarding the circumstances in which a court might exercise its discretion to stay a proceeding in Canada in favour of trial in another jurisdiction. The Supreme Court's decision shows that the judiciary remains divided on how best to adapt existing private international law principles to the modern reality of borderless communications.

Supreme Court of Canada rules that religious association decisions not open to judicial review
Dentons
  • Litigation
  • Canada
  • 26 June 2018

A recent Supreme Court of Canada decision concerning a religious association has confirmed that judicial review is not available to review decisions made by private entities that are not exercising statutory authority. While the courts may still review decisions of private entities where causes of action are based on a contract or other underlying legal right, the Supreme Court of Canada has closed the door on judicial review for all private entities by holding that it is available solely for exercises of statutory authority.

Judicial review and private entities: court confirms limits of remedy
Dentons
  • Litigation
  • Canada
  • 05 June 2018

Judicial review is a public law remedy – but does this preclude its availability for decisions made by private entities (eg, voluntary associations and political parties)? Divergent lines of judicial authority have led to inconsistent answers to this question in Ontario. However, a recent Ontario Divisional Court decision has confirmed that the answer to this question is yes.

Sham investigation results in C$75,000 aggravated damages award against employer
Dentons
  • Litigation
  • Canada
  • 22 May 2018

An employer that terminated an employee alleging just cause has been ordered to pay damages for wrongful dismissal, including an aggravated damages award of C$75,000. The court was satisfied that the employer's actions amounted to a breach of the obligation of good faith and fair dealing, and supported an award of aggravated damages. The employer's false reasons for dismissal and inadequate and unfair investigation had resulted in the plaintiff failing to receive procedural fairness.

Supreme Court of Canada upholds trade barrier in beer import case
Dentons
  • Litigation
  • Canada
  • 15 May 2018

The Supreme Court of Canada recently determined that New Brunswick's restrictions on the importation of beer are constitutional and held that laws which create an incidental restriction on trade – but otherwise form a rational connection to a broader regulatory regime that is not targeted at restricting trade – will not contravene the Constitution Act 1867. The decision is controversial, as it sets a low threshold for a province to justify a law that, on its face, clearly restrains trade across provincial boundaries.

Court accepts joint submission and orders employer to pay fine of C$100,000 following workplace fatality
Dentons
  • Litigation
  • Canada
  • 01 May 2018

The Territorial Court of the Northwest Territories recently considered and accepted a joint submission from the crown and defence, sentencing an employer to a C$100,000 fine. The court considered the significance of a joint submission, noting that it is usually the result of a negotiation process between lawyers. This process is important to the administration of justice; thus, the courts should defer to a joint submission within the bounds established by the Supreme Court of Canada in an earlier case.

Court fines out-of-business company that did not defend health and safety charges C$1.3 million
Dentons
  • Litigation
  • Canada
  • 24 April 2018

An Ontario court recently fined a defunct mining company that went out of business in 2016 C$1.3 million under the Ontario Occupational Health and Safety Act after it found the company guilty on six charges following the deaths of two workers. This is one of the largest Occupational Health and Safety Act fines in Ontario history. However, the company did not defend the Ministry of Labour prosecution.

Court rules that employee's theory of dismissal for questioning employer's safety systems not evidence
Dentons
  • Litigation
  • Canada
  • 20 March 2018

The court in a recent wrongful dismissal case dismissed the plaintiff's allegation that he had been dismissed after making suggestions about improvements to the employer's safety systems. The court found that the plaintiff's theories were unsupported by the evidence and insufficient to justify an award of aggravated or punitive damages. It therefore held that the employer's conduct was not malicious and high handed so as to warrant additional damages and dismissed that aspect of the plaintiff's claim.

Possession of small amount of marijuana was just cause to fire employee
Dentons
  • Litigation
  • Canada
  • 13 March 2018

The Newfoundland and Labrador Court of Appeal has upheld the firing of a unionised millwright who was caught with a small amount of marijuana in his pocket before boarding a helicopter that would transport him to an offshore platform. The labour arbitrator found that the employee likely knew that he possessed the marijuana, but had forgotten about it and not checked his pockets carefully. Although the Newfoundland Supreme Court set the arbitrator's decision aside, the appeals court restored it.

Jail term upheld on appeal in criminal negligence case against Metron project manager
Dentons
  • Litigation
  • Canada
  • 27 February 2018

The Ontario Court of Appeal recently upheld the criminal negligence conviction and jail term imposed on a project manager for Metron Construction. The charges arose from an incident in which four workers fell to their death and a fifth sustained permanent injuries after a swing stage collapsed. This case has sent a message to employers and supervisors that criminal negligence charges – in addition to Occupational Health and Safety Act charges – are a real possibility after serious workplace accidents.

Appeal court upholds C$5.3 million combined fine in Sunrise Propane case
Dentons
  • Litigation
  • Canada
  • 13 February 2018

An Ontario court has upheld a combined fine of more than C$5.3 million, plus a 25% victim fine surcharge, against Sunshine Propane Energy Group, a related company and two corporate directors following explosions at a propane facility in 2008, which resulted in the death of one worker. The court held that the explosions were a foreseeable event given that an untrained employee had been left in charge and that his actions after the explosions showed his lack of training.

Appeal court holds that fact of accident alone is not enough to convict
Dentons
  • Litigation
  • Canada
  • 06 February 2018

The Newfoundland and Labrador Court of Appeal recently held that a trial judge was wrong to find a city guilty of Occupational Health and Safety Act charges solely because an accident had occurred in which a worker died. It held that the trial court should have gone further and analysed each charge separately. The decision is a welcome reminder that prosecutors cannot simply rely on the fact that an accident took place to obtain a conviction.

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