Posted by Johannes Schenk on February 18th, 2010 — Posted in Uncategorized, Employment Law, Human Rights Law
The doctrine of contract frustration deals with situations where a party cannot meet their obligations under a contract due to some non-culpable event. In the case of employment contracts the situation often arises where an employee becomes ill or disabled to the extent that they can’t perform their job anymore or for an extended period of time. See Wightman Estate v. 2774046 Canada Inc., 2006 BCCA 424, in which the application of the doctrine of frustration is determined on the basis of the language of the contract. In this particular case the contract contemplated frustration on the facts at hand.
No Comments »
Posted by Admin on February 17th, 2010 — Posted in Labour Law, Employment Law, Human Rights Law
A very common issue that arises in administrative law: more than one body can hear, rule and decide on a matter. The follow up issue arises: which body should run that process. Further, once you have an answer from one body, does that preclude another body from taking a look at the matter all over again. The labour lawyers worked this one out with Weber and Parry Sound several years ago.
We now have the latest word on this complicated issue from the BC Court of Appeal in the context of human rights adjudication and workers compensation disability reviews in Workers’ Compensation Board v. British Columbia (Human Rights Tribunal) , 2010 BCCA 77.
Briefly, and I emphasize briefly, as this is a very complicated series of arguments that underlie the decision, the human rights tribunal does get to hear a matter despite the fact that the matter has been canvassed by another tribunal. Res judicata, estoppels, and abuse of process arguments don’t prevent the tribunal from taking a look at the matter.
No Comments »
Posted by Johannes Schenk on December 8th, 2009 — Posted in Employment Law, Human Rights Law
In case it wasn’t obvious, reasonable notice periods are suspended by maternity leave. Don’t terminate your pregnant employees or employees that are on maternity leave. See the following cases:
Whelehan v. Laidlaw Environmental Services Ltd.
Winterburn v. Domtar Inc., 2002 BCSC 1418
Wells v. Patina Salons Ltd., 2003 BCSC 1731
No Comments »
Posted by Admin on March 6th, 2009 — Posted in Labour Law, Human Rights Law, Municipal Law, Professional Discipline
Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, has been decided against Mr. Khosa.
The decision is one of the first that deals with the application of Dunsmuir. In doing so the Court re-emphasizes that standards of review are to be developed in the complete context of the tribunal being reviewed.
There isn’t really any single quote to be taken from the decision. You have to read the whole thing.
No Comments »
Posted by Johannes Schenk on November 28th, 2008 — Posted in Labour Law, Employment Law, Human Rights Law, Municipal Law, Professional Discipline
Bias arguments are commonly made. Here is a case referred to me by my friend John Gesher, who is Counsel at the Regional Municipality of Peel. The case of Boardwalk Reit LLP v. Edmonton (City), 2008 ABCA 176 (CanLII), concerns a bias argument directed at Alberta Court of Appeal Justices. The decision on the recusal is written by Justice Cote and concurred in with additional reasons by Justice O’Brien. I might add that Justice Cote is the co-author of the Stevenson and Cote Civil Procedure Encyclopedia, an excellent and indispensable procedure resource, which in addition to his very well written judgments, underscores his status as an authority.
The judgment gives a definitive outline of a bias recusal analysis and is well worth the succinct read on this often misunderstood topic.
No Comments »