Lawyer’s Withrawal from Retainer

Posted by Johannes Schenk on December 13th, 2016 — Posted in Litigation, Professional Discipline

The case of Bokova v. Gertsoyg & Company, 2016 BCSC 2297, concerns a lawyer’s fee review. The case makes for an interesting read for the retainer agreement provisions that govern the lawyer’s withdrawal on the file.

Work Email is Work Email

Posted by Johannes Schenk on July 7th, 2016 — Posted in Employment Law, Litigation, Professional Discipline

A new ruling affirms the ability to FOIA private email accounts.

Source: A federal court may have just added to Clinton’s email woes in a big way – The Washington Post

You can’t avoid FOI requests by storing work email in a non-work environment.

Failure to remove building results in contempt order

Posted by Johannes Schenk on May 12th, 2016 — Posted in Litigation, Municipal Law

2016 BCCA 201 Langford (City) v. dos Reis concerns a failure to abide by a Court of Appeal issued order to remove a building. The refusal to abide by the order resulted in a contempt finding.

On intention to breach the order the Court had this to say:

[24] It is not controversial that the first two elements of civil contempt are satisfied: the order is clear and the respondent was fully aware of it. The real issue in this case is the third element: intent. The respondent’s position is simply that her mind was on saving the building, not on breaching the order. That is not a valid defence to civil contempt. I refer again to Carey v. Laiken:

[38] It is well settled in Canadian common law that all that is required to establish civil contempt is proof beyond a reasonable doubt of an intentional act or omission that is in fact in breach of a clear order of which the alleged contemnor has notice: Prescott-Russell, at para. 27; College of Optometrists, at para. 71; Sheppard, at p. 8; TG Industries, at paras. 17 and 32; Bhatnager, at pp. 224-25; Sharpe [Robert J. Sharpe, Injunctions and Specific Performance, 2d ed. (Aurora, Ont.: Canada Law Book, 1992) (loose-leaf updated November 2014, release 23)], at para. 6.190. The Court of Appeal followed this approach. As it noted, to require a contemnor to have intended to disobey the order would put the test “too high” and result in “mistakes of law [becoming] a defence to an allegation of civil contempt but not to a murder charge” (2013 ONCA 530, at para. 59). Instead, contumacy or lack thereof goes to the penalty to be imposed following a finding of contempt: para. 62; see also Sheppard; and Sharpe, at para. 6.200.

[25] There cannot be the slightest doubt that the respondent intentionally omitted to remove the building. I find that the third element of civil contempt has been made out.

Ryerson maternity leave termination

Posted by Johannes Schenk on May 12th, 2016 — Posted in Employment Law, Human Rights Law, Litigation

Source: Supporters of maternity leave rallied on Mother’s Day after new mom fired from Ryerson Students’ Union

And it’s 2016 and these types of actions are still up for debate? The law on maternity terminations is relatively settled: it’s not on unless you have a real and substantial business concern underlying the termination. The pregnancy and the soon to be employee with a new family member is not a good enough reason. And in any event the matter has to be handled as any other termination without cause: pay money or give notice (which doesn’t start to run until the employee returns from mat/parental leave).

Aside from the business cost and reputational costs arising from mishandling this type of termination (any termination for that matter) there are direct employment costs in terms of trust, loyalty and productivity. Employees watch how management behaves and respond accordingly. One mishandled termination can result in years of such impact.

18 year Starbuck’s manager 17 months termination notice

Posted by Johannes Schenk on May 11th, 2016 — Posted in Employment Law, Litigation

2016 BCSC 830 Luchuk v. Starbucks Coffee Canada Inc. deals with the termination of an 18 year Starbucks manager. Notice was fixed at 17 months.

The employer had offered 8 weeks notice. A life time supply of coffee would have been a better offer. I don’t understand why employers do this as it looks bad and costs a lot of money and time.

The Courts said this on mitigation:

[39] In summary, the burden on a defendant to prove that a plaintiff failed to mitigate is a high one. The defense has to prove not only that the employee did not take such steps as a reasonable person in the dismissed employee’s position would have taken in their own interests, but must also show that if the plaintiff had taken those steps, the employee likely would have found equivalent employment.

Not a difficult concept, summed up neatly here.