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Preview: Thoughts from a Management Lawyer

Thoughts from a Management Lawyer

Commentary on Canadian Labour and Employment Law Issues

Published: 2016-04-01T07:07:43-04:00


Primer on Production of Medical Documents at the Ontario Human Rights Tribunal


The Ontario Human Rights Tribunal will order pre-hearing production of arguable relevant medical documents where it receives a Request for Order During Proceeding and the documents are arguably relevant unless the documents are privileged or raise privacy concerns. This approach was recently confirmed in Bouchard v. 1894773 Ontario Inc. o/a...

Court of Appeal Upholds 26 Months Notice to Dependent Contractor


The Ontario Court of Appeal considered whether the plaintiffs were employees, dependent contractors or independent contractors and what entitlement they had on termination. The case is Keenan v. Canac Kitchens Ltd., 2016 ONCA 79 (CanLII). Lawrence Keenan worked for the defendant, Canac Kitchen, from 1976 to 2009 (33 years). He...

Bald Allegations of Discrimination Aren't Enough


Another day another case where the Ontario Human Rights Tribunal dismisses an application alleging discrimination on the basis of employment because the Tribunal does not entertain bald allegations that are not tied into a prohibitive ground under the Human Rights Code. The case is Eamon v. Riley’s Valu-Mart, 2016 HRTO...

Challenges and Opportunities of Speedy Resolution of Disputes


Where a case proceeds by way of a motion for summary judgment, a decision will be handed down quickly, often during the period of reasonable notice. The court, in such a case, will be called upon to determine how to deal with the damages owed to the employee given that...

Without Prejudice - What Does this Really Mean?


What do the words “without prejudice” mean? When we write these words on top of a letter to an employee, union or lawyer, what effect will this have? The Federal Court of Appeal recently considered this issue in Canada (Attorney General) v. Boogaard 2015 FCA 150 (CanLII). In this case,...

Mitigation - How Far Must the Employer Go?


In a wrongful dismissal lawsuit, the employer will bear the onus of demonstrating a failure to mitigate by the employee. This is a heavy onus and the employer should gather evidence about the job market and job openings that are similar to those occupied by the terminated employee in the...

When Must an Employee Mitigate With the Same Employer?


The Court of Appeal for British Columbia considered this question in Fredrickson v. Newtech Dental Laboratory Inc. 2015 BCCA 357 (CanLII). The trial judge found that the plaintiff failed to mitigate her damages when she did not accept an offer of re-employment from her employer. She appealed and the Court...

Must an Employer Accommodate a Request for a Straight Day Shift (in Alberta)?


This was the question recently considered by the Alberta Court of Queen’s Bench in an application for judicial review of an arbitrator’s decision. The case is SMS Equipment Inc v Communications, Energy and Paperworkers Union, Local 707 2015 ABQB 162 (CanLII) and the arbitrator’s award is Communications, Energy, and Paperworkers...

Production of Medical Files at Arbitration


When are medical files producible in advance of an arbitration hearing? Arbitrator Luborsky considered this in Dufferin Concrete v Teamsters Local Union Local 230, 2015 CanLII 68945 (ON LA). Counsel for the employer made the following request: We are writing to request production of the Grievor’s complete medical file from...

Admissibility of Cell Phone Records and More


An Ontario arbitrator in Corporation of the City of Niagara Falls v Amalgamated Transit Union, Local 1582, 2015 CanLII 67502 (ON LA) recently considered a production request by an employer for an employee’s cellular phone records in the context of a discipline case. In this case, a bus operator was...