Administrative Penalties Must deal with the “cost of doing business”

Posted by Johannes Schenk on April 1st, 2016 — Posted in Litigation, Professional Discipline

CanLII – 2015 SCC 41 (CanLII). This case concerns the constitutional validity of sections of the Income Tax Act and the principles behind administrative penalties.

The Court says this:

[77] The magnitude of the sanction on its own is not determinative. However, if the amount at issue is out of proportion to the amount required to achieve regulatory purposes, this consideration suggests that it will constitute a true penal consequence and that the provision will attract the protection of s. 11 of the Charter. This is not to say that very large penalties cannot be imposed under administrative monetary penalty regimes. Sometimes significant penalties are necessary in order to deter non-compliance with an administrative scheme: see Rowan v. Ontario Securities Commission, 2012 ONCA 208 (CanLII), 110 O.R. (3d) 492, at para. 49. The amount of the penalty should reflect the objective of deterring non-compliance with the administrative or regulatory scheme.


[80] Some statutes prescribe very high administrative monetary penalties, at times over a million dollars, and these have been upheld where it is demonstrated that the penalty serves regulatory purposes. In some cases, sizable penalties are necessary so the penalty is not simply considered a cost of doing business: see the Federal Court of Appeal’s reasons, at para. 47.

BC Securities Commission $23.3 Million Fine Upheld

Posted by Johannes Schenk on April 1st, 2016 — Posted in Employment Law, Litigation, Professional Discipline

2016 BCCA 144 Michaels v. British Columbia Securities Commission. This case affirms a Securities Commission decision to penalize a registrant $23.3 million for breaches of the act, misrepresentation and fraud.

Employment Defamation at a Cactus Club

Posted by Johannes Schenk on March 31st, 2016 — Posted in Employment Law, Labour Law, Litigation, Professional Discipline

2016 BCSC 459 Brissette v. Cactus Club Cabaret Ltd. concerns defamation allegations made by a patron against an employee server in a Cactus Club restaurant. The case provides a thorough defamation analysis in the context of an employment situation. Usually defamation in the workplace runs vis-a-vis co-workers or managers and employees. This case is somewhat novel in that a patron is accusing an employee of defamation.

Federal Employee Termination Regime

Posted by Johannes Schenk on March 31st, 2016 — Posted in Employment Law, Litigation, Professional Discipline

Atomic Energy of Canada Limited v. Wilson deals with the matter of terminations of Federal non-union employees.

Non-union federally regulated employees find themselves in a grey area when it comes to employment termination. The usual analysis requires cause for a termination, and in the absence of cause, payment of some amount of notice. In the case of federally regulated employees, the argument has been made that, termination must be based on cause and that there is no ability to fire an employee on a paid notice basis.

Well, the Wilson decision has been affirmed by the Federal Court of Appeal. The Supreme Court recently heard argument in the case and should render a decision sometime in mid-2016.

As it stands federal non-union employees can now be terminated on a non-cause basis with a notice payout.

The Court had this to say about the termination regime:

[34] Therefore, as I see it, the CLC sets out the following regime for dismissals.

[35] An employer can dismiss an employee without cause so long as it gives notice or severance pay (ss 230, 235). If an employee believes that the terms of his or her dismissal were unjust, he or she can complain (s 240). The only exceptions to the general right to make a complaint are where the dismissal resulted from a lay-off for lack of work or a discontinuance of the employee’s position, or the employee has some other statutory remedy (s 242(3.1)).

[36] In addition, an employee can complain if he or she believes that the reason given by the employer for the dismissal was unjustified or if the dismissal is otherwise unjust (eg, based on discrimination or reprisal) (s 240(1)). If the adjudicator appointed to entertain the complaint concludes on any basis that the dismissal was unjust, he or she has broad remedial powers to compensate the employee, reinstate the employee, or grant any other suitable remedy (s 242(4)).

Ghomeshi lawyer criticizes Mulcair

Posted by Johannes Schenk on March 30th, 2016 — Posted in Employment Law, Litigation, Professional Discipline

Jian Ghomeshi’s lawyer, Marie Henein, has taken Tom Mulcair to task for tweeting #IBelieveSurvivors on the day that her client was acquitted of sexual assault charges, suggesting the NDP leader is just seeking to get votes.

Source: ‘It sure does get you a lot of votes’: Ghomeshi lawyer criticizes Mulcair for #IBelieveSurvivors

Well stated by Ms. Henein. Again, did anyone read the decision? The evidence in this case was simply atrocious and amounted, bluntly, to a complete deceit. I admire Ms. Henein for her ability to clearly articulate, with reason and understatement, her role as defence counsel.