Resources: Litigation

Arbitrators Consider Vaccination Policies

In the past few weeks, arbitrators have begun to issue decisions considering the reasonableness of COVID-19 vaccination policies in unionized workplaces. The following three decisions out of Ontario provide some key takeaways for employers.

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Issue Estoppel

Employment litigation is rarely straightforward and employers must be prepared to deal with claims in multiple forums, including in civil court and before administrative tribunals responsible for interpreting and applying human rights, workers compensation and privacy law (to name a few).

When faced with a volley of different but related claims, it can be tempting to focus all of your attention on the claim which represents the biggest threat.  That would be a mistake — while you should strategically allocate resources, it is crucial to keep all actual or potential claims in mind because decisions in one forum could be relied upon in another.

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Taking Away Important Responsibilities for Misconduct: Arbitrator Substitutes Permanent Disciplinary Demotion for Discharge

When considering potential discipline for poor performance, a novel labour arbitration decision suggests a demotion – a permanent disciplinary demotion – may be an appropriate response.

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Labour Law in the Time of Cholera

2020 was full of surprises, and 2021 continued to bring new challenges for the profession. Our corner of toil in the legal vineyards was not immune. For labour and employment lawyers, 2021 at times felt like a treadmill of legislative change, workplace vaccination policies (do not call it a mandate unless employers are forcibly injecting employees…), and helping employers plan to keep their workplaces safe.

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Can I Quit and Start Competing: Dispute Born of Competing Fertility Clinics

Genesis Fertility Inc. v. Yuzpe 2021 BCCA 420 has it all: intrigue, betrayal and even a “shotgun.” In addition, it has some useful takeaways for employers who are navigating employee relations in times of significant organizational change.

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Arbitrators Consider Vaccination Policies

In the past few weeks, arbitrators have begun to issue decisions considering the reasonableness of COVID-19 vaccination policies in unionized workplaces. The following three decisions out of Ontario provide some key takeaways for employers.

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Challenges With Removing a Matter From Fast Track Litigation

A matter may qualify for fast track litigation under Rule 15-1 of the B.C. Supreme Court Civil Rules if the plaintiff is seeking to recover less than $100,000 or the case can be tried within three days. Fast track litigation limits the recovery of legal costs to $11,000, unless the court orders otherwise.

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Employer Restructuring and Transitions: An Important Contextual Factor in Constructive Dismissals

In Costello v. ITB Marine Group Ltd., 2021 BCCA 154, the BC Court of Appeal upheld a trial judge’s finding that the plaintiff had not been constructively dismissed from her employment when some of her employment duties were changed as a result of her employer’s restructuring.

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When to Fight and When to Fold: A Cautionary Tale for Employers That Defend a Wrongful Dismissal Claim on “Principle”

How do you convince a client that wants to defend a wrongful dismissal claim of the fact that its claim of just cause for termination is devoid of legal merit?  You can start by showing it the reasons for decision in Hrynkiw v. Central City Brewers & Distillers Ltd., 2020 BCSC 1640, where the B.C. Supreme Court not only found in favour of the plaintiff but gave him everything he was asking for – including an order for costs.

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Ontario Court of Appeal Refuses to Recognize Freestanding Tort of Harassment

In Merrifield v. Canada (Attorney General), 2019 ONCA 205, the plaintiff was a longstanding member of the RCMP who alleged that his supervisors had discriminated against him for years.  The strained relationship began when the plaintiff had run for public office.  He was considered to be in a potential conflict of interest following his investigation of threats against a political rival.

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