Litigation, Canada updates

Court rules that employee's theory of dismissal for questioning employer's safety systems not evidence
  • 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
  • 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
  • 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
  • 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
  • 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.

Court of Appeal holds general duty clause can impose higher obligations than regulatory requirements
  • Canada
  • 30 January 2018

The Ontario Court of Appeal recently held that the Ministry of Labour can prosecute employers under the general duty clause of the Occupational Health and Safety Act where the charges impose greater obligations than those set out in the regulations under that act. Ministry of Labour inspectors will likely consider using this decision to issue compliance orders or charges under the general duty clause even where regulations deal with the specific safety issue at hand, but do not apply in the particular case.

'Accident as prima facie breach' principle precludes order for particulars
  • Canada
  • 23 January 2018

An Alberta court recently considered the 'accident as prima facie breach' principle in the context of an application for particulars. The principle provides that, in some cases, proof that an employee was injured in an accident while performing his or her employment duties proves the actus reus (ie, guilty act) for an occupational health and safety general duty charge. The burden then shifts to the defendant to establish a due diligence defence.

When is a release effective to bar a safety-related complaint?
  • Canada
  • 09 January 2018

The Saskatchewan Court of Appeal recently ruled that a release signed by a terminated employee barred her complaint against her employer under occupational health and safety (OHS) legislation. The court stated that after the occurrence of a so-called 'triggering event', which provides a worker with the right to file a complaint under the legislation, that right becomes personal to the worker. Where a worker has given a release in respect of a personal right, the validity of the release must be reviewed.

Court of appeal sets jurisdiction test for class actions with global classes
  • Canada
  • 02 January 2018

The Court of Appeal for Ontario recently clarified the test for assuming jurisdiction over absent foreign claimants in Ontario class actions with international elements, opening the door to the potential certification of class proceedings on behalf of global classes. While the jurisdictional hurdle for absent foreign claimants appears to have been lowered as a result of the decision, it remains to be seen how the lower courts will interpret and apply the appeal court's test.

Court dismisses health and safety charge given due diligence
  • Canada
  • 12 December 2017

An Ontario court recently dismissed an Occupational Health and Safety Act charge in a fatality case, finding that the employer had established due diligence. The court decided that the worker had deviated from the standard practice that he and other workers had followed on previous occasions. While no training courses were available for the task in question, the employer was entitled to rely on the experience of the worker.

Appeal court upholds C$270,000 fine when Ministry of Labour and company agreed on C$180,000
  • Canada
  • 26 September 2017

In a recent Ontario appeal decision, the court upheld a C$270,000 fine, despite the Ministry of Labour prosecutor and defence counsel agreeing that a C$180,000 fine would be appropriate. The case illustrates that, particularly in cases of serious injury to a worker which offends the court, there is always a risk that the court will impose a fine that is greater than the amount that the Ministry of Labour prosecutor wanted.

Supreme Court clarifies when regulatory bodies may fulfil crown's duty to consult
  • Canada
  • 19 September 2017

The Supreme Court of Canada has previously explained that legislatures may empower regulatory bodies to play a role in fulfilling the crown's duty to consult Aboriginal peoples. However, how that controlling law is to be applied by tribunals and by the courts of justice has been less clear. The Supreme Court recently issued two landmark crown consultation decisions, which provide meaningful guidance on when and how the crown may rely on regulatory processes to fulfil the duty to consult.

Requisitioned meeting breaks deadlock
  • Canada
  • 12 September 2017

With a deadlocked board of directors, talk of a "public flogging" and a court reluctant to intervene, a recent British Columbia case is a colourful example of a requisitioned public company shareholders' meeting, with the twist that the requisitioning shareholders were represented by or aligned with three of the company's six directors. The decision provides a number of reminders for boards, shareholders and their advisers.

Citing unfairness: court throws out criminal negligence charge against boom truck operator
  • Canada
  • 15 August 2017

The Ontario Superior Court of Justice recently considered a criminal negligence charge against a boom truck operator who pleaded guilty to an Occupational Health and Safety Act charge in a case involving a workplace fatality. The police's act of laying criminal charges after the operator had pleaded guilty constituted a breach of the sense of fair play, an act which offends the community. The court therefore stayed the criminal negligence charge, citing a breach of the Canadian Charter of Rights and Freedoms.

Saskatchewan Court of Appeal confirms acquittal following workplace fatality in grain terminal
  • Canada
  • 08 August 2017

The Saskatchewan Court of Appeal recently dismissed the crown's appeal of the acquittal of an employer in a case involving a worker who died of suffocation in a grain terminal. It found that while proof of an accident may be enough to establish the elements of the general charge that an employer failed to ensure the health and safety of an employee, where the crown has particularised a charge, it must prove all of the necessary elements.

Supreme Court upholds employer's 'no free accident' alcohol and drug policy
  • Canada
  • 01 August 2017

The Supreme Court recently released a landmark decision reinforcing the right of employers to take proactive risk mitigation and management measures through alcohol and drug policies to ensure workplace safety. Employers can require employees to self-disclose substance abuse issues before workplace incidents and impose discipline for failure to comply, even if the employee suffers from a disability.

Judge's ongoing duty to ensure expert witness objectivity
  • Canada
  • 18 July 2017

The Court of Appeal recently confirmed the ongoing gatekeeper function of trial judges in the context of expert testimony. A trial judge's role does not end after the preliminary threshold stage, but continues throughout the proceeding to protect the justice system's integrity. The concept of fairness is a hallmark of Canada's judicial system and necessary to maintain public confidence in the system. As was evidenced in this case, in the battle between efficiency and integrity, the latter must always prevail.

Combating abuse or chilling strategic decision making?
  • Canada
  • 11 July 2017

The Supreme Court recently reaffirmed its ability to award costs against lawyers. Despite the special role played by defence lawyers in criminal proceedings, the Supreme Court held that judges retain ultimate discretion to manage and control the proceedings before them. The court found that costs had been properly awarded against the lawyer in this case, as the circumstances were extreme and particularly reprehensible.

Getting in the last word: the proper scope of reply
  • Canada
  • 27 June 2017

The propriety of a reply is measured against the other pleadings in a case. The Ontario Divisional Court recently delineated the proper scope of a reply when it overturned a decision of the Ontario Superior Court of Justice and granted the defendants' request to strike certain impugned paragraphs in the plaintiffs' reply that, on their face, had little to do with the central allegations of the claims and defences.

Expulsion of a partner can result in expectation and aggravated damages
  • Canada
  • 23 May 2017

The Court of Appeal for Ontario recently held that damages for lost profits may be awarded where a partner is wrongfully expelled from the partnership, and that a court can award aggravated damages where the partner is expelled in bad faith. To expel a partner properly, the partnership must follow the terms of the partnership agreement, Ontario's Partnership Act and common law.

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