Decision clarifies termination clauses – Law Times

Supreme Court of Canada Denies Leave to Appeal in Oudin: But Does That Really Mean Anything? and Court of Appeal Finally Brings Much Needed Clarity to Issue of Benefits in Contractual Termination Provisions – Labour Pains

Is This The Definitive Word on Termination Provisions/Consideration? – Dentons

Contract Enforceability – Koldorf Stam LLP

The arbitrator exercised his discretion to set aside the termination of a 20-year Safeway cashier  and substitute a four month unpaid suspension in Sobeys West Inc. v United Food & Commercial Workers, Local 1518, 2016 CanLII 96060 (MBLA), a case which considers, among other things, the applicable legal principles and relevant facts in alleged sick leave abuse cases; whether a special rule applies in the retail food industry dictating discharge as the presumptive consequence for employee dishonesty, even when theft per se is not involved; and what exceptional circumstances make discharge excessive. The employee was alleged to have abused the company’s sick leave policy by calling in sick for four days while working at her newly launched restaurant. The employer had previously denied the employee’s request to take vacation days during the restaurant launch. While there was prima facie evidence of sick leave abuse, the arbitrator found that the objective evidence verified a real medical condition making the grievor unable to work for the employer and that there was no deliberate plan on her part to misuse sick leave. Just cause for discipline was found, however, due to other acts of dishonesty or misconduct by the grievor during the investigation process. In determining whether discharge was excessive in these circumstances, the arbitrator noted the importance of taking a pragmatic, not dogmatic, approach to employee dishonesty and weighing the traditional mitigating and aggravating factors. In this case, where the grievor established mitigating facts consistent with restoration of the key element of trust, the arbitrator found that the employment relationship had not been irreparably damaged and termination was therefore excessive.

Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act, was referred to the Standing Senate Committee on Legal and Constitutional Affairs in December and their report was presented without amendment on February 9, 2017. It is now in third reading before the Senate. It repeals the amendments previously brought by the former government in bills C-525 and C-377 (making union certification more difficult and requiring unions to track their spending, among other things).

Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, was referred to the Standing Senate Committee on Legal and Constitutional Affairs on March 2, 2017. It proposes amendments to the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination and to the Criminal Code to extend the protection against hate propaganda to any section of the public that is distinguished by gender identity or expression and to affect sentencing on such crimes. For further information see the legislative summary, departmental information, and the Slaw article Gender Identity and Gender Expression Protection Under the Law.

S-201, the Genetic Non-Discrimination Act, as amended by the Standing Committee on Justice and Human Rights, is now at third reading before the House of Commons. It prohibits any person from requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of providing goods or services to, entering into or continuing a contract or agreement with, or offering specific conditions in a contract or agreement with, the individual. Specifically it amends the Canada Labour Code to protect employees from being required to undergo or to disclose the results of a genetic test, and provides employees with other protections related to genetic testing and test results. It also amends the Canadian Human Rights Act to prohibit discrimination on the ground of genetic characteristics.

Provincial

The government introduced three new bills involving labour and employment issues in March: 

Bill 11, The Community Child Care Standards Amendment Act (Staff Qualifications and Training), was introduced and received first reading on March 6, 2017. As detailed in the explanatory note, it establishes a new committee to advise on matters related to staff qualifications.

Bill 12, The Teachers’ Pensions Amendment Act was introduced and received first reading on March 6, 2017. Its main purpose is to update provisions of The Teachers' Pensions Act for consistency with changes to The Pension Benefits Act that came into force in 2010. The explanatory note provides more detail on the proposed changes.

Timelines for Filing of Material in Chambers Court – this Court of Appeal notice issued February 8, 2017 clarifies the deadlines for filing material on motions and notes that they will be strictly enforced.

All three levels of court (Court of Appeal, Queen’s Bench, and Provincial Court) issued notices concerning court attire in February.

Electronic Filing for Judicial Reviews – judicial review applications to the Court of Queen’s Bench must be filed electronically effective January 23, 2017, according to this practice direction from the court. Paper or manual applications are no longer accepted. The process and requirements for e-filing are explained in the E-Filing Technical Directions Bulletin.

Not Just a Bystander – this CBA podcast examines sexual harassment and assault in the workplace and elsewhere, and calls on lawyers to take action to address this problem. It is also available in transcript form.

Human Rights in Hiring - this Fillmore Riley LLP article offers tips to help employers avoid discrimination during the hiring process and identifies circumstances where differential treatment in hiring is acceptable.

Incarceration of Employees: Overview of Decisions Rendered in 2016 – this Langlois article reviews recent cases concerning whether employers can dismiss employees for being incarcerated.

Family Status Discrimination: Where Are We Now? – this post discusses how Misetich v. Value Village Stores Inc., 2016 HRTO 1229, has muddied the law on family status discrimination by departing from the 2014 Johnstone test.

Employer Who Acted in Fair Manner Dodges Employee’s Award of Damages – this Slaw post discusses Smith v. Pacific Coast Terminals Co. Ltd., 2016 BCSC 1876, a wrongful dismissal decision in which the court declined to award aggravated and punitive damages where the employer conducted itself in a fair manner in investigating and terminating the employee.

Labour law overhaul – this Canadian Lawyer article discusses proposed reforms to the labour law landscape in Ontario.

Electronic Legal Research for Luddites! - work in small groups with knowledgeable research assistants assigned to guide you through the electronic research process at this hands-on afternoon session at the Law Society classroom on March 23, 2017. Program materials and light refreshments are included in the registration fee.

Common Practice Issues: How the Code Can Help – Leah Kosokowsky, Director of Regulation at the Law Society of Manitoba, will moderate this fast paced webinar designed to demonstrate how the Code of Professional Conduct can be a practical problem solving resource in a variety of situations commonly faced by lawyers, such as withdrawal of retainer, obligations when changing firms, lawyer duties, and client capacity. The webinar will be shown from noon to 1:00 pm on April 6, 2017. Discounts up to 50% are offered to group registrants.

Sound Cybersecurity Practices For Your Law Firm – this very practical lunch program will further your awareness of cybersecurity risks, and provide you with valuable information about the technologies and cybersecurity practices you can adopt to reduce these risks. It takes place April 12, 2017 in the Law Society classroom. Teleconference registrants receive a group discount.

What To Do When The Human Rights Commission Comes Calling – the CCCA section is hosting a dinner session on strategies for dealing with human rights investigations at the Caboto Centre on March 15, 2017. Laura Mensch, of Gowlings LLP Calgary, is the featured speaker.

IRCC Economic Immigration Update – What’s new and what’s ahead – this Immigration Law section lunch meeting takes place on March 24, 2017, at Fillmore Riley LLP.

The Centre for Labour-Management Development’s 2017 Accommodation Law Conference will be held at the Fort Garry Hotel, March 14 and 15, 2017. Local presenters will explore the latest legal breakthroughs in the duty to accommodate and their impact on unionized workplaces in Canada. The brochure contains further detail on the course content and registration process.