Category Archives: Labour/Employment

Mandatory Retirement and Wrongful Dismissal: An Age Old Question of Compensation for Discrimination

Cases Considered: Magnan v. Brandt Tractor Ltd., 2008 ABCA 345

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It has long been a legal principle in Canada that there is no recognized tort of discrimination; people should be pursuing remedies for discrimination from human rights tribunals: Board of Governors of Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181. This basic principle is supported by another principle: there is no recognized cause of action for breach of a statute, especially in negligence: Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. These principles were considered earlier this year in Honda Canada Inc. v. Keays, 2008 SCC 39, where the Supreme Court held that breach of a human rights code does not amount to an independent actionable wrong. However, a recent decision of the Alberta Court of Appeal confirms that these legal principles can be blurred when it comes to remedying wrongful dismissal that contains an element of discrimination.

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Important Lessons from Lethbridge College

Cases Considered: Lethbridge College Board of Governors v. Lethbridge College Faculty, 2008 ABQB 316

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A recent matter at Lethbridge College carries some important lessons. A psychology professor with 12 years of service was fired after the College discovered he had sexual relationships with three of his undergraduate students. In each case, the relationship had begun shortly after the students had taken his course, although the flirtation had begun during the term. Each of the relationships was consensual, two of the students were relatively close in age to the professor, and he had known two of the women prior to their becoming his students. These relationships were discovered by College administration when the third relationship ended unhappily and the student filed a complaint with the dean. In her complaint, she alleged that the professor had taken advantage of his position as her instructor to inveigle his way into her affections. Based on the complaint, the College searched the professor’s emails and discovered the previous two relationships. In both those cases, the (now former) students remained on friendly terms with the professor and had taken subsequent courses from the professor, without disclosure of the previous relationship either by the professor or the students.

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Court of Appeal Rules in Walsh Case: End of a Seventeen Year Journey?

Cases Considered: Walsh v. Mobil Oil Canada, 2008 ABCA 268

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People often cite the length of time it takes to resolve human rights complaints as a deterrent to making such complaints. Delorie Walsh’s case may be cited as an extreme example. And, if the respondents appeal the current decision to the Supreme Court of Canada, the case might not be over yet.

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Leave to appeal refused by Supreme Court in Drug Testing Case

Cases Considered: Director of the Alberta Human Rights and Citzenship Commission, et al. v. Kellogg Brown & Root (Canada) Company, 2007 ABCA 426

In the May 29, 2008 version of his S.C.C. L@wletter Eugene Meehan reports that the Supreme Court of Canada has dismissed the application of the Director of the Alberta Human Rights and Citizenship Commission for leave to appeal in the case of Kellogg Brown & Root (Canada) Company (at the time of writing the SCC’s decision on leave to appeal is not yet available on its website). For posts on the Alberta Court of Appeal’s decision in this case, see Linda McKay Panos, “Court of Appeal Sends Court of Queen’s Bench Decision to Rehab” and David Corry, “Drug Testing: A Wake-up Call to the Courts”. Linda and David disagreed about the correctness of the Alberta Court of Appeal’s approach, which overturned the decision of Madam Justice Sheilah Martin and upheld the position of the employer. It is unfortunate that the Supreme Court will not take advantage of the opportunity to clarify the law in this area. This leaves it uncertain for employers, employees and human rights tribunals whether perceived addiction to alcohol and drugs is covered by human rights legislation, and in what circumstances employers are entitled to implement drug and alcohol testing policies without running afoul of human rights legislation.

Employment and Disability: Some of the Challenges

Cases Considered: United Nurses of Alberta, Local 33 v. Capital Health Authority (Royal Alexandra), 2008 ABQB 126

PDF Version: Employment and Disability: Some of the Challenges

The recent decision of Justice D.A. Sulyma in United Nurses of Alberta, Local 33 v. Capital Health Authority (Royal Alexandra) provides insight into the challenges faced by both an employer and an employee in accommodating a disability in the workplace. The employer seeks information about the disability and how it should be accommodated, while the employee seeks to protect his or her privacy, in addition to an accommodation of the disability. The court must sort these issues out while also determining whether the employee has a disability.

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