November 4, 2015

Admissibility of Cell Phone Records and More

An Ontario arbitrator in Corporation of the City of Niagara Falls v Amalgamated Transit Union, Local 1582, 2015 CanLII 67502 (ON LA) recently considered a production request by an employer for an employee’s cellular phone records in the context of a discipline case. In this case, a bus operator was suspended for three days the without [...]

November 2, 2015

Dependent Contractor Receives 26 Months Notice of Termination

In Keenan v. Canac Kitchens, Lawrence Keenan worked for the defendant, Canac Kitchen, from 1976 to 2009 (33 years).  He worked as a kitchen installer for 6 or 7 years, then became a foreman in 1983.  Although Lawrence’s job title changed to Delivery and Installer Leader, his duties were, essentially, unchanged.  Lawrence’s spouse, Marilyn, began working [...]

October 1, 2015

Testifying by Teleconference at the Ontario Human Rights Tribunal

The Ontario Human Rights Tribunal has recently confirmed that it will generally not allow testimony by teleconference where the credibility of the witness is a significant issue or where the witness’ evidence is extensive or key to the proceeding.  A leading case is Zeividavi v. Catholic Immigration Services, 2011 HRTO 406 (CanLII) where the Tribunal [...]

September 25, 2015

Michael Fitzgibbon interviewed in Canadian Lawyer Magazine

Michael Fitzgibbon was recently interviewed for a Canadian Lawyer magazine article Shaking up labour laws in which he discussed the province-wide Changing Workplace Review Process.  Mike also wrote an article about this in our Summer 2015 newsletter.

August 25, 2015

When Must an Employee Mitigate With the Same Employer?

The British Columbia considered this question in Fredrickson v. Newtech Dental Laboratory Inc., 2015 BCCA 357 (CanLII).  The trial judge found that the plaintiff failed to mitigate her damages because she did not accept an offer of re-employment from her employer.  She appealed and the Court of Appeal allowed her appeal and in so doing clarified [...]

March 25, 2015

Michael Fitzgibbon quoted in Law Times Article

Watershed LLP’s Michael Fitzgibbon was quoted in the March 2, 2015 edition of Law Times in an article entitled “Pan Am Games to include extensive background checks on applicants“.  The article reviews the extent and scope of background checks generally.   There is a reference to a a 2012 report from the Canadian Civil Liberties Association entitled [...]

March 24, 2015

Mitigating Factors Enough to Reinstate in a Case of Serious Misconduct

Back in February I wrote about a case where Mitigating Circumstances Not Enough to Reinstate in a Theft Case. I recently came across a case where the Ontario Labour Relations Board in a grievance referral under section 133 of the Ontario Labour Relations Act, 1995 reinstated an employee who was terminated for driving a company vehicle while under [...]

February 17, 2015

The Ontario Government Announces Public Consultations on Labour Laws

The Ontario Government today announced that it would follow through on its “commitment made in the 2014 Throne Speech” and launch public consultations on the changing nature of the modern workplace to commence.  According to the News Release: The public consultations will focus how the Labour Relations Act, 1995 and Employment Standards Act, 2000 could be [...]

February 17, 2015

Exceptional Circumstances Needed to Exceed 24 Months Reasonable Notice

The Ontario Court of Appeal in Kotecha v. Affinia Canada ULC, 2014 ONCA 411 (CanLII) considered an appeal of a reasonable notice award of 24.5 months given to a 70 year old machine operator earning an annual salary of $37,918.40 having 20 years service with an auto parts manufacturer. Background Mr. Kotecha brought a motion for [...]

February 17, 2015

Assessing Credibility is not a Science

Arriving at the truth is the aim of any adjudication.  But that’s easier said than done.  Decision makers (judges, arbitrators, statutory bodies such as the human rights tribunal or labour relations board) have to assess the credibility of witnesses when weighing accounts of disputed facts   Employers also must assess credibility in cases where a conflict about [...]