Quebec v Asphalte Desjardins: The Supreme Court stands by the principle of employee protection in Quebec

The decision in Quebec (Commission des normes du travail) v. Asphalte Desjardins inc., 2014 SCC 51, demonstrates the Supreme Court of Canada’s support for employee protection while leaving an unclear future for Quebeckers who are employed in competitive industries.  The case dealt with an employee’s notice of resignation and his employer’s subsequent attempt to shorten the employee’s remaining tenure without providing either notice or payment in lieu of notice.  The Supreme Court’s decision hinged upon determining whether an employment contract remained in place once an employee or employer had provided notice of an intent to terminate the contract. Penned by Justice Wagner, the judgment aimed to harmonize Quebec’s Act Respecting Labour Standards and Civil Code of Quebec with respect to the employment relationship by emphasizing that a legislative intent to protect employees as vulnerable parties constitutes a common thread that runs through both pieces of legislation. Accordingly, the employment contract remains in place as a source of protection for employees from the time of notice of termination until the effective date set out in the notice. While this decision signals the judiciary’s employee-friendly approach in matters of notice and termination, its practical consequences may cause employers to adopt precautions that will limit employees’ mobility between firms and thereby hamper the innovation and competitiveness that arises from such mobility.

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[filed: Contracts Labour and Employment Statutory Interpretation]

Lawyer Unsuccessful in Discrimination Claim Against Law Firm

The decision of Fasken Martineau DuMoulin LLP v British Columbia (Human Rights Tribunal), 2012 BCCA 313, previously discussed on this site, has now made its way to the Supreme Court. Canada’s highest court has confirmed the result that Mr. McCormick, an equity partner at Fasken, could not succeed in his claim of age discrimination against the firm as a result of its mandatory retirement policy: McCormick v Fasken Martineau DuMoulin LLP, 2014 SCC 39.

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[filed: Human Rights Labour and Employment]

The Law on Relocation of Children after Marital Breakdown

One of the most difficult issues in family law is deciding when to permit the “primary caregiver” parent to move with the children to a place far away from the other parent.

Lawyers who work in the area tend to agree that outcomes are highly unpredictable. Ordinarily, only a small percentage of divorcing parents go to court over custody matters. However, it is estimated that in relocation cases as many as 60 per cent may go to court. In addition, an unusually large proportion of the decisions at first instance are appealed.

This high degree of conflict is costly for all those involved, both financially and emotionally. A lengthy court battle is likely to seriously worsen relations between the parents.

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[filed: Family Law]

A Logical Flaw in the Supreme Court of Canada’s Analysis of Positive Entitlements to Expressive Freedom

I

In Baier v Alberta, 2007 SCC 31 [Baier], Justice Rothstein of the Supreme Court of Canada articulated a test for whether an underinclusive statutory platform of expression infringes section 2(b) of the Canadian Charter of Rights and Freedoms, and thus whether a claimant has a positive entitlement to access that platform. He adopted the test from Dunmore v Ontario (Attorney General), 2001 SCC 94 [Dunmore]. Dunmore decided that Ontario had a positive obligation to include agricultural workers under provincial labour relations legislation because excluding the workers infringed their section 2(d) freedom of association.

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[filed: Charter Constitutional Law Freedom of Expression]

Cuts to Refugee Health Care Found Unconstitutional: Canadian Doctors for Refugee Care v Canada

On July 4, 2014, in Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651, Justice Anne Mactavish declared invalid the federal government’s 2012 cuts to the Interim Federal Health Program (IFHP) for violating section 12 and 15 of the Canadian Charter of Rights and Freedoms. This ruling is compelling for the novelty of the Charter arguments and for the clarity of Justice Mactavish’s reasoning. It will be interesting to see whether her reasoning survives on appeal, especially should this case end up at the Supreme Court of Canada.

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[filed: Charter Constitutional Law]

Revisiting Aboriginal Title Part III: SCC Clarification in Tsilhqot’in Nation v British Columbia

This comment is the third in a series detailing the ongoing development of Aboriginal title in Canada. Part I and Part II focused on the British Columbia Court of Appeal decision William v British Columbia2012 BCCA 285 [William]. This third part aims to provide an exegesis and analysis of the Supreme Court’s resolution of the appeal from William in Tsilhqot’in Nation v British Columbia, 2014 SCC 44 [Tsilhqot'in]. Any errors or omissions are solely the responsibility of the author. 

Overview

On Thursday, the Supreme Court of Canada released Tsilhqot’in Nation v British Columbia2014 SCC 44. This important case, the conclusion of a 30-year legal dispute, now represents the latest and most comprehensive statement of the law of Aboriginal title in Canada. It is also the first successful Aboriginal title claim. By recognizing and affirming the Tsilqot’in Nation’s title to over 1700 square kilometres of territory, the Supreme Court has given full effect to the words of section 35 of the Constitution Act, 1982. 

This comment will summarize the legal impact of Tsilhqot’in. It will set out (i) the central issues faced by the Supreme Court, (ii) the answers provided in the judgment, and (iii) the questions that persist. It does not aim to be conclusive, but a springboard for discussion.

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[filed: Aboriginal Law Constitutional Law Property Law Tsilhqot'in Nation v British Columbia]

Revisiting Aboriginal Title Part II: An Alternative View of Sufficient Occupancy

This commentary is the second in a series detailing the ongoing development of Aboriginal title in Canada. It follows a discussion of the British Columbia Court of Appeal’s decision, and is drawn from a larger essay, available in full, on SSRN.

Part I of this series rehearsed and critiqued the British Columbia Court of Appeal’s decision in William v British Columbia, 2012 BCCA 285. The goal of Part I was to demonstrate that Aborginal title, is not, by its nature, site-specific. That is, contrary to the Court of Appeal’s findings, it is not the case that successful title claims are all and only those claims which aim at securing title to strictly defined, intensely used tracts of land, such as particular salt licks or promontories used for fishing. A less intense, regular use or “territorial” kind of occupation is also consistent with the jurisprudence. The Court of Appeal erred in adopting a “site-specific” test for sufficient occupancy.

Part I concluded by suggesting that parsing sufficient occupancy into pre-determined acceptable and non-acceptable categories of site-specificity or territoriality was unhelpful to both parties, and indeed asked the wrong question. This second part takes up that point, and offers an alternative test for determining if a certain claim satisfies the Delgamuukw occupancy requirement.

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[filed: Aboriginal Law Constitutional Law Tsilhqot'in Nation v British Columbia]

Revisiting Aboriginal Title Part I: The BCCA and Sufficient Occupancy

This commentary is the first of several parts detailing the ongoing development of the doctrine of Aboriginal title in Canada. This first part is a condensed and informal version of a longer paper that treats these issues in much greater detail. The longer version, complete with citations, is available here.  

A previous TheCourt.ca comment by Andrew Cyr provides the factual background and a summary of the trial judgment, Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700, along with an outline of the history of Aboriginal title jurisprudence. This commentary begins where Mr. Cyr left off, chiefly concerning itself with the Court of Appeal’s decision. 

The Supreme Court of Canada will release its decision on the appeal from William v British Columbia, 2012 BCCA 285 [William], later this week. The resolution of this appeal will dramatically affect the shape and character of future Canadian Aboriginal title claims, for three reasons. The first is that in considering the appeal, the Supreme Court will have to clarify a particular point of Aboriginal title doctrine, namely, the nature of occupation sufficient to satisfy a claim to title. The Court of Appeal in William endorsed a narrow, site-specific understanding of title, essentially establishing a new and rigorous test for sufficient occupancy, which it held was consistent with previous jurisprudence and the overall goals of Aboriginal title. The Supreme Court is now tasked with determining whether the Court of Appeal erred in its decision.

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[filed: Aboriginal Law Constitutional Law Tsilhqot'in Nation v British Columbia]

Constitutionalizing Environmental Protections Under the Charter: PART 4

This is the final post in a multi-part series that explores constitutionalizing environmental protections through s. 7 of the Charter in the context of heavy oil processing in Peace River, Alberta. The author is solely responsible for the opinions expressed, and any errors or omissions made.

For a PDF version of this post with full citations, please click here.

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The Implications of Constitutionalizing Environmental Protections

On December 6, 2013, federal Environment Minister Leona Aglukkaq approved Shell’s Jackpine Mine expansion project in northern Alberta. The project was approved despite having “significant adverse environmental effects.” According to the minister, these adverse environmental impacts were “justified in the circumstances.” However, no further explanation was provided as to what circumstances or factors informed the minister’s decision to approve the expansion. The minister simply found it “justified in the circumstances” and only those words convey her rationale.

The lack of justification for approving a project that is known to have significant adverse environmental effects is notable for how the decision reflects the nature of environmental law in Canada. As Martin Olszynski writes, “modern environmental law does not consist of hard rules or substantive limits but rather is focused primarily on the process of decision-making.” Environmental law is more concerned with whether a decision was made correctly, rather than whether a decision is correct. This procedural focus makes it unnecessary to provide any meaningful rationale or insight into a decision. Read the rest of this entry »

[filed: Charter Constitutionalizing Environmental Protections Under the Charter Environmental Law]

Constitutionalizing Environmental Protections Under the Charter: PART 3

This post is the third of a multi-part series that explores constitutionalizing environmental protections through s. 7 of the Charter in the context of heavy oil processing in Peace River, Alberta. The author is solely responsible for the opinions expressed, and any errors or omissions made.

For a PDF version of this post with full citations, please click here.

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How Odours from Heavy Oil Processing in the Peace River Region Can Constitute a s. 7 Infringement

The evidentiary record before the Alberta Energy Regulator inquiry into odours and emissions from heavy oil operations in the Peace River region makes clear that a s. 7 Charter claim asserting environmental protections can be made. The requirements of such a claim, as set out in the previous post, include: (1) government action has led to environmental impacts that (2) have resulted or will result in harm that (3) deprives the individual of their life, liberty or security of the person interests, and (4) that this deprivation is not in accordance with the principles of fundamental justice. Each element will be discussed in light of the factual conclusions that can be drawn from the inquiry’s documentary record and expert testimony. Read the rest of this entry »

[filed: Charter Constitutionalizing Environmental Protections Under the Charter Environmental Law]