The Supreme Court of Canada recently agreed to hear an appeal of a Quebec case concerning the obligations and rights of a pension plan administrator after a pensioner went missing. In their decisions, the lower courts agreed that the university had been correct to continue the monthly pension payments for the five years that the pensioner had been missing because the pensioner was presumed to be alive at the time.
The Alberta Court of Queen's Bench recently struck down successive mark-ups on out-of-province craft beer as barriers to interprovincial trade contrary to Section 121 of the Constitution Act 1867. This is the first decision to apply the Supreme Court of Canada's interpretation of Section 121 as developed in R v Comeau. Further, this is the first decision in recent Canadian legal history to declare a legislative provision unconstitutional for violating Section 121.
An excavation contractor who was found guilty of manslaughter and criminal negligence causing death has been sentenced to 18 months' imprisonment by the Court of Quebec. The sentence – which is a first in Quebec legal history – sends a clear message to employers concerning the importance of complying with their occupational health and safety obligations.
An assistant fire chief recently won a wrongful dismissal suit after he was fired for receiving a 90-day administrative driving prohibition for impaired driving while off duty. The court held that the assistant fire chief's off-duty conduct was not incompatible with the faithful discharge of his duties or otherwise prejudicial to the interests or reputation of the fire department and awarded him five months' salary as provided for in his employment contract.
The Alberta Court of Appeal recently provided clarity on what the Crown must prove in a prosecution under the Alberta Occupational Health and Safety Act regarding the failure to ensure the health and safety of workers. The key question before the court was whether the expression "as far as is reasonably practicable for the employer to do so" in the general duty section of the act was part of the physical components of the offence that the Crown had to prove.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.