Building a Record for the Appeal
February 10, 2023 By Brian Babcock What just might be worse than losing your case at trial? Winning the case and then having to go back to try it all over again because not only does the Court of Appeal grant the appeal, but they also decide that the factual record from the trial is […]
Think Before You Terminate
February 4, 2023 By Brian Babcock Be careful not to terminate an employee by accident. The surest way to accidentally terminate an employee is to give them a notice of termination. This may sound obvious, yet the case ended up at the Ontario Court of Appeal. Getting sound professional advice BEFORE terminating may prevent expensive […]
What Is “Total Disability?”
January 20, 2023 By Nick Melchiorre The phrase “total disability” is used frequently in government benefits and private disability insurance plans. But how do you know whether you, your employee, or a loved one is totally disabled? The first thing to know is that the determination will depend primarily on the particular legislation, plan, regulation, […]
Mitigation In Employment Law Revisited
January 7, 2023 By Brian Babcock Mitigation is one of those odd words used in law that most people are not instantly comfortable with. Odds are though that you are aware at least vaguely that when somebody is let go from their job, they have an obligation to look for new employment rather than simply […]
Discretionary Bonuses and Termination
November 28, 2022 By Brian Babcock THE ISSUE Are discretionary bonuses to terminated employees truly discretionary? THE CASE This was one of the two issues facing the Ontario Court of Appeal in the recent decision Bowen v. JC Clark Ltd., and is the issue that is more likely to affect most of our readers. This […]
Heavy Handed Tactics May Be Costly
November 20, 2022 By Brian Babcock If you are an employer and are faced with a wrongful dismissal or constructive dismissal claim from a former employee you may need to defend yourself. You may even be successful or largely successful in your defence. THE ISSUE In Canada, unlike the United States, a successful party is […]
Non-Solicitation and Appealing from Arbitrations
November 15, 2022 By Brian Babcock THE ISSUE Unless a submission to arbitration provides otherwise, the Arbitration Act, 1991 only mandates a right to apply for leave to appeal on questions of law. The application of the law to facts is not a question of law. For leave to appeal to be granted, the issue […]
Jurisdiction and Human Rights: An Ontario Perspective
November 3, 2022 By Brian Babcock We wrote a while ago about the Supreme Court of Canada decision that got sensationalist headlines because the court ruled that under Manitoba legislation, arbitrators had exclusive jurisdiction over human rights complaints where there was a collective agreement that contained the usual privative clause protecting arbitrators’ jurisdiction. Prior to […]
Human Rights and the Courts
September 24, 2022 By Brian Babcock What happens when you believe that you have been wrongfully dismissed and at the same time have a human rights complaint arising from your employment? The Ontario Human Rights Code section 46.1 permits you to include a claim for breaches of the Code in your lawsuit to Superior Court […]
Do you need a digital forensic specialist?
August 18, 2022 By Brian Babcock The increasing prevalence of electronic communications brings with it a renewed focus on electronic discovery. Most parties and lawyers lack the expertise necessary to be confident that they will retrieve electronic documents completely in a form in which they are both unchanged and searchable. Even where the party may […]