Court of Appeal Reduces Notice Period by Two Months

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

2016 BCCA 140 Munoz v. Sierra Systems Group Inc.. How can running this case have been remotely worth the time and effort to gain a two month reduction of a ten month notice period?

The case does give guidance on how to establish the rate of pay to be assigned to the notice period where there is a complicated contractual arrangement regarding bonusing amounts and benching periods.

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.

R. v. Ghomeshi, 2016 ONCJ 155 (CanLII)

Posted by Johannes Schenk on March 24th, 2016 — Posted in Litigation, Professional Discipline

Source: Decisions | Ontario Court of Justice

The Ghomeshi decision. The decision is well worth a read to see how the Court determines witness credibility, or in this case witness non-credibility, and further how that ties into reasonable doubt.

It is also interesting to read the decision to see how the Court’s ruling is translated by the media. Based on Justice Horkins’analysis, the witnesses’ evidence could not have been worse, more unreliable, more fabricated, more the result of collusion, more deceptive and all the other things that witnesses are not supposed to do (if “pants on fire” were part of the legal lexicon, the decision is almost there). I don’t get that sense that many of the press legal analysts get that point.