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Category Archives: Labour and Employment

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Nine Years Too Late, Wal-Mart’s First Unionized Employees Win at the Highest Court

Posted in Labour and Employment

The saga of North America’s first unionized Wal-Mart has taken a significant turn in favour of its former employees, nine years after they lost their jobs when the store in Jonquière, Quebec was permanently shut.  Much ink has been spilled telling the story of the Jonquière store, its successful unionization in 2004, and its closure in 2005, which was announced on the very day that an arbitrator had been appointed in relation to the what was to have been the store’s first collective agreement.  Now, the Supreme Court of Canada in United Food and Commercial Workers, Local 503 v. Wal-Mart Continue Reading

There are times when you don’t want to make partner…

Posted in Case Comments, Labour and Employment, Professions

Overview

Recently, the Supreme Court of Canada (“SCC”) and the Supreme Court of the United Kingdom (“UKSC”) both had cause to consider the nature of partnership, and when certain protections due to employees or workers are extended to partners. While the two cases presented very different scenarios – the Canadian case concerning human rights, and the UK decision concerning employment rights – both decisions suggested that partners may indeed be employees in certain situations.

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Price Tags on Competition are a Restraint of Trade: The Functional Approach to Permissive Non-Compete Clauses Prevails in British Columbia

Posted in Case Comments, Contracts, Labour and Employment

In Rhebergen v. Creston Veterinary Clinic Ltd., 2014 BCCA 97, the British Columbia Court of Appeal granted the appeal of an employer veterinary clinic, Creston Veterinary Clinic (“CVC”), from a Supreme Court of British Columbia decision declaring unenforceable a contract clause requiring its employee, Dr. Stephanie Rhebergen, to pay CVC a prescribed amount in the event she was to compete with CVC within a certain period after the contract was terminated. Unlike conventional non-competition or non-solicitation clauses that constitute a restraint of trade, the clause before the BCCA contained no prohibition. Rather, the clause at issue was permissive in … Continue Reading

The Latest Word from the SCC on Assessment of Contractual Damages

Posted in Contracts, Labour and Employment

The recent Supreme Court decision in IBM Canada Limited v Waterman, 2013 SCC 70, has gotten much attention for its ruling and comments about the “collateral benefits” principle and how it applies to pension benefits paid to wrongfully dismissed employees during the notice period. The issue was whether the exception should apply to preclude a reduction, in the amount of the pension benefits, to the compensatory damages payable to the employee for the wrongfull dismissal. The application of the “collateral benefits” principle was the central point of disagreement between the majority judgment of Cromwell J. and the dissenting … Continue Reading

Freedom of Expression Trumps Privacy Rights as the SCC brings the Charter hammer down on Alberta’s privacy statute

Posted in Case Comments, Charter of Rights, Labour and Employment

Overview

In Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 [“United Food”], the Supreme Court of Canada has unanimously decided that Alberta’s Personal Information Protection Act [“PIPA”] unjustifiably limits a union’s right to freedom of expression in the context of a lawful strike. The judgment, delivered by Cromwell and Abella JJ. concluded that:

[37] PIPA imposes restrictions on a union’s ability to communicate and persuade the public of its cause, impairing its ability to use one of its most effective bargaining strategies in the course of a lawful strike. In our

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Court of Appeal to Revisit Overtime Class Action Certification

Posted in Case Comments, Class Actions, Labour and Employment

The Ontario Court of Appeal recently decided it will hear the appeal in Brown v. Canadian Imperial Bank of Commerce, the Divisional Court’s decision affirming Strathy J.’s denial of certification in a proposed “misclassification” overtime class action which we blogged about in the spring. The leave decision represents an unexpectedly quick return of overtime class actions to the Court of Appeal following last year’s “overtime trilogy” (Fulawka, Fresco, and McCracken). In the trilogy, the Court of Appeal upheld certification in two “off the clock” class actions, but refused certification in McCracken which, like Brown,

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Notices of Termination Likely to be Revisited by the Supreme Court of Canada

Posted in Case Comments, Contracts, Labour and Employment

Last week, the Supreme Court granted leave to appeal from an important Quebec Court of Appeal decision on labour standards, which may bring significant changes in the interpretation of the law on notices of termination (or délai-congé) for employment contracts.

In the facts of the case, Mr. Guay (hereinafter “the employee”) worked for Asphalte Desjardins Inc. (hereinafter “the employer”) from 1994 to 2008, moving up through the company ranks and ending up as a project manager. In February 2008, when the employee presented his employer with a resignation letter intending to leave on March 7, 2008, the employer unsuccessfully tried

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This Week at the SCC (13/09/2013)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Labour and Employment, This Week at the SCC

The Supreme Court of Canada released two judgments, granted leave to appeal in one case and denied leave to appeal in one case of interest to Canadian business this week.

In Payette v. Guay Inc., 2013 SCC 45, the Supreme Court of Canada confirmed that the rules applicable to restrictive covenants apply with greater rigour when such covenants are found in a contract for the sale of a business as opposed to a contract of employment.  The rationale for this difference, the Court stated, is the imbalance of power which is inherent in employer-employee relationships, but which is … Continue Reading

Lost in Contractual Interpretation: No Agreement at ABCA on Interpretation of Multiple Contracts Within a Single Transaction

Posted in Contracts, Corporate Law, Labour and Employment

In a very recent decision of the ABCA, Benfield Corporate Risk Canada Limited v. Beaufort International Insurance Inc, 2013 ABCA 200, the Court attempted to address a host of interesting contract issues, some with potentially wide implication, such as how to interpret multiple contracts within a single transaction, including the effect of entire agreement clauses and the ability to benefit from a breach of one of the related contracts. Also mentioned are general duties of good faith, the role of fairness and implying terms. However, unique circumstances and a lack of agreement in the Court leaves us, unfortunately, without

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Brown v. Canadian Imperial Bank of Commerce: A Nail in the Coffin for “Misclassification” Overtime Class Actions or Class Counsel Growing Pains?

Posted in Case Comments, Class Actions, Labour and Employment

In Brown v. Canadian Imperial Bank of Commerce, 2013 ONSC 1284, the Divisional Court of Ontario further confirmed the approach to, and difficulty with, “misclassification” overtime class-actions (i.e. class actions alleging that an employer has unlawfully misclassified employees and managers to avoid the obligation to pay overtime). The Divisional Court, armed with the decisions of the Ontario Court of Appeal in the “Overtime Trilogy” (Fulawka v. Bank of Nova Scotia, 2012 ONCA 443; Fresco v. Canadian Imperial Bank of Commerce, 2012 ONCA 444; and McCracken v. Canadian National Railway Company, 2012 ONCA 445) upheld Justice Strathy’s denial … Continue Reading

Different but Hopefully Equal? Federal and Provincial Employment Standards to be Considered by the Supreme Court

Posted in Administrative, Case Previews, Labour and Employment

The Supreme Court of Canada has granted leave in an appeal about whether provincial or federal legislation governs workplace compensation for federal workers.  If the decision of the Court of Appeal in Martin v. Alberta (Workers’ Compensation Board), 2012 ABCA 248 is upheld, federal workers may find that their claims for accident-related compensation will be determined by provincial standards rather than solely the provisions of the federal Government Employees Compensation Act. … Continue Reading

The UK and Canadian Supreme Courts to Consider the Legal Status of Equity Partners

Posted in Administrative, Case Comments, Labour and Employment, Professions

Can equity partners at professional firms take advantage of statutory employment law protections? Both the UK and Canadian Supreme Courts have recently granted leave in cases which consider that question. In the UK, Clyde & Co LLP v Bates Van Winkelhof concerns a whistle blower claim, money laundering in Tanzania, and allegations of sexual discrimination. In Canada, Fasken Martineau DuMoulin LLP v. British Columbia (Human Rights Tribunal) is, in typical Canadian fashion, far less exciting. It concerns the application of a national full service law firm’s mandatory retirement policy.

Background

The majority of multi-lawyer law firms in the United Kingdom, … Continue Reading

Give This Post Superpriority – Supreme Court Decides Sun Indalex Finance, LLC v. United Steelworkers

Posted in Bankruptcy and Debt, Case Comments, Financial Services, Labour and Employment, Procedure

Introduction

The Supreme Court has issued its much-anticipated decision in Sun Indalex Finance, LLC v. United Steelworkers.

The Supreme Court has issued its much-anticipated decision in Sun Indalex Finance, LLC v. United Steelworkers (“Indalex”). The decision has significant implications for lenders, employers and pension plan administrators of Ontario-registered defined benefit (“DB”) pension plans. First, it clarifies the scope of the deemed trust obligation arising out of subsection 57(4) of the Pension Benefits Act (Ontario) (“PBA”). Second, it confirms the priority of debtor-in-possession (“DIP”) lenders’ security interests under the Companies’ Creditors Arrangement Act (“CCAA”) over claims by pension … Continue Reading

This Week at the SCC (14/12/2012)

Posted in Aboriginal, Communications, Conflict of Laws, Health, Intellectual Property, Labour and Employment, Media, Professions, Regulatory, This Week at the SCC

Cases Decided

The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions.

In Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, Rothstein J. for the majority of the Court held that the Canadian Radio-television and Telecommunications Commission (“CRTC”) lacked the jurisdiction to create a market-based ”value for signal” regime.  The proposed regime would have enabled private local television stations (“broadcasters”) to negotiate direct compensation for the retransmission of their signals by broadcast distribution undertakings (“BDUs”), such as cable and satellite companies, and to prohibit

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This Week at the SCC (07/12/2012)

Posted in Aboriginal, Bankruptcy and Debt, Corporate Law, Environmental, Labour and Employment, Securities, This Week at the SCC

Cases Decided

The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions.

In Newfoundland and Labrador v. AbitibiBowater Inc., 2012 SCC 67, the majority of the Court held that environmental protection orders issued under provincial legislation, which required an insolvent company to undertake remediation measures but which were not expressed in monetary terms, nonetheless amounted to “claims” under the Companies’ Creditors Arrangement Act (“CCAA“) that could be stayed and subject to a claims procedure order in the context of CCAA proceedings.  The Court observed that not all environmental protection orders will … Continue Reading

This Week at the SCC (30/11/2012)

Posted in Bankruptcy and Debt, Intellectual Property, Labour and Employment, Professions, Securities, This Week at the SCC

Cases Decided

The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions.

In Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, the Court held the Alberta Court of Appeal erred in quashing a decision of the Alberta Labour Relations Board on judicial review.  The Court’s brief judgment criticizes the Court of Appeal for taking an overly rigid approach to the Board’s reasons when finding that the Board failed to consider various issues of statutory interpretation under the Alberta Labour Relations Code.

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SCC to Weigh-In on the Enforceability of Restrictive Covenants Where an Employment Relationship Follows the Sale of a Business

Posted in Case Previews, Contracts, Labour and Employment

This winter, the SCC will have the opportunity to clarify how the courts should go about determining how strictly to interpret restrictive covenants where they relate to both an employment agreement and the sale of a business. The opportunity arises from the Supreme Court’s decision to grant leave in Guay Inc. c. Yannick Payette et autres, where the Québec Court of Appeal upheld the enforceability of broadly-framed non-competition and non-solicitation clauses (or restrictive covenants), despite findings by the trial judge below that the employee, Mr. Payette, had been wrongfully terminated and that the restrictive covenants were too broad to

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Is one “common issue” enough to authorize a class action in Canada? SCC grants leave to appeal in Vivendi Canada Inc. v. Dell’Aniello

Posted in Case Previews, Class Actions, Labour and Employment

On August 9, 2012, the Supreme Court of Canada granted leave to appeal from the Quebec Court of Appeal’s decision in Vivendi Canada Inc. v. Dell’Aniello, a case concerning the requirement that there be “identical, similar, or related questions of law or fact” when authorizing a class action in Quebec. While this requirement is found in article 1003(a) of Quebec’s Code of Civil Procedure, an analogous “common issues” requirement applies on certification in other provinces as well. Accordingly, the Vivendi appeal could have important implications for class actions throughout Canada.

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SCC to Determine Whether Provincial Workplace Safety Legislation Bars Negligence Claims for Deaths and Accidents at Sea

Posted in Case Previews, Labour and Employment, Torts, Transportation

Newfoundland (Workplace Health, Safety and Compensation Commission) v. Ryan Estate will provide an opportunity for the Supreme Court of Canada to reconsider the constitutional issues of interjurisdictional immunity and paramountcy since its landmark decision in Ordon Estate v. Grail.

In Ordon Estate, the Supreme Court held that provincial legislative provisions providing for derivative claims for dependents of injured persons in tort did not apply to claims based on federal maritime law, which was part of the “core” of navigation and shipping under s. 91(10) of the Constitution Act, 1867. Following Ordon Estate, Parliament enacted s. 6

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SCC Addresses Test for “Federal Undertakings” under the Constitution

Posted in Case Comments, Constitutional, Labour and Employment

When do parties qualify as federal transportation undertakings for purpose of s. 92(10) of the Constitution Act, 1867? This question arose in Tessier v. Québec (Commission de la santé et sécurité du travail), the Supreme Court of Canada (“SCC”) decision rendered on May 17, 2012.

This case differs from those previously decided by the SCC, in that it is the first time the SCC had the opportunity to assess the constitutional implications which arise when the employees performing the work do not form a discrete unit and are instead fully integrated into the related operation.

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How Clear Must the Legislature Be to Set Aside a Final Judgment?

Posted in Case Previews, Labour and Employment

Rachel LaferrièreThe Supreme Court of Canada (Deschamps, Abella, Cromwell JJ.) has granted leave in a pension litigation case, in which the Court could potentially revisit the principles underlying democratic dialogue. This case may offer the Supreme Court the opportunity to provide an updated statement on the doctrines of retroactivity and res judicata, particularly on the differences between the authority of final judgments and the ”cogency” of final judgments. It may also explain the impact of an application for leave to appeal to the Supreme Court of Canada on the status of a case. This appeal may also deal with

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When is it “Not Reasonable” to Deny the Cross-Examination of an Expert?

Posted in Aboriginal, Case Comments, Labour and Employment

Background

Cross-examining experts is the primary way in which competing expert opinions are tested in the adversarial process.

The Alberta Court of Appeal in its recent decision in Johnson v. Alberta (Appeals Commission for Alberta Workers’ Compensation) recently determined that a decision not to allow a cross-examination may not be reasonable, in particular where without a cross-examination it may be difficult to resolve a difference of opinion between competing experts in a “fair, justified and transparent manner.”

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OCA to Consider ESA Obligations In CCAA Proceedings

Posted in Bankruptcy and Debt, Case Previews, Labour and Employment

The Court of Appeal will be called upon to determine whether Employment Standards Act obligations, such as termination and severance pay, can be discharged by a Debtor-in-Possession in a CCAA proceeding.

In Windsor Machine, Justice Morawetz heard an application by the union representing the employees of a debtor company. The debtor company had terminated all its employees after being placed into CCAA protection.

The union asserted the statutory rights of the employees to severance and termination pay under the Employment Standards Act (ESA), and argued that the statutory right ought to be discharged out of the assets of the

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SCC to Address Test for “Federal Undertakings” Under the Constitution

Posted in Case Previews, Communications, Constitutional, Labour and Employment, Transportation

When do parties qualify as federal transportation undertakings for purpose of s. 92(10) of the Constitution Act, 1867?  The Supreme Court of Canada will answer this question in the Tessier case, for which it recently granted leave to appeal.

Decisions Below

The appeal comes before the Supreme Court from the ruling of the Quebec Court of Appeal in Tessier ltée c. Québec (Commission des lésions professionnelles). The applicant carried on the business of renting cranes for various purposes within Quebec, including the loading and unloading of ships, along with road transportation and maintaining and repairing equipment. A small

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