Posts

Emergencies Act Decision

Image
The challenge to the invocation of the Emergencies Act  was successful at the Federal Court, but the government is appealing. As Emmett MacFarlane argues , there's a lot of meat to consider on an appeal, and I largely agree with his assessment. Here are my thoughts, having briefly reviewed the reasons on the critical points. To my understanding, there are basically two core lines of attack against the invocation: The first is that the Emergencies Act , as written, doesn't allow for that scenario to be treated as a public order emergency. The second is that the specific measures imposed - via the Emergency Measures Regulations  and the Emergency Economic Measures Order  - violated the Charter . The government lost on both points, but it's worth questioning both, to varying extents. The Limits of Section 2: Why this doesn't vindicate the Convoy Before I get into the guts of that, I want to highlight that this is hardly a moral victory for the Convoy: The Convoy wasn't
Post a Comment
Read more

Mandatory Vaccination Policies in the Non-Union Context

 At the outset, let me clarify and reiterate that I support vaccination and that, throughout the COVID-19 vaccine era, I have believed that employers have good reason to take measures to protect the workplace from COVID-19 - including through policies that require vaccination. However, I've always been skeptical of whether they have a contractual entitlement to impose such a requirement as a term and condition of employment. I noted in a recent entry that there's a question about the scope of an employer's policy-making powers in a non-union environment. In unionized environments, the rule is that an employer has the right to make any rule that is 'reasonable'. In non-unionized contexts, there was never a lot of consideration of this question - until the COVID vaccine cases started getting heard, and these cases seem to apply the 'reasonableness' approach without a lot of scrutiny as to its appropriateness. In this post, I will explain the bases and operati
Post a Comment
Read more

Employment Contract or Workplace Policy?

Image
 One of the more subtle under-explored questions in employment law is the proper difference between what employers can put into "policies" versus what kinds of changes need to be reflected in "contracts". The central practical difference between those two things is that a "policy" is typically unilaterally drafted and implemented by the employer (so the employer can demand that the employee read, acknowledge, and abide by a policy), whereas a "contract" requires agreement by the employee (at least in theory - setting aside certain issues in constructive dismissal law). The law is pretty clear on a couple things that can't  be imposed by unilateral 'policy': The big one is 'limitations on termination entitlements'. In some cases, you can set out a contractual limit on what an employee gets upon dismissal, but trying to do that simply by way of a policy is not generally going to be effective. (Can you integrate  a policy into a
Post a Comment
Read more

The Politics of the APP

Image
 It's tough to see the political sense of the UCP's approach to the APP. We know that, of all the 'western alienation' tropes, exiting CPP is a particularly unpopular  proposal. From Harper's Firewall Letter in 2001, to Kenney's Fair Deal Panel, to Rempel's Buffalo Declaration, to the Free Alberta Strategy co-authored by a member of Smith's inner circle, withdrawing from the CPP has always featured on a certain wishlist among those who flirt with separatists, other items of which usually include establishing a provincial tax collection agency and an Alberta Provincial Police service. Neither the RCMP nor the CRA is particularly highly regarded in the public eye, though the math still suggests that both an Alberta Provincial Police and an Alberta Revenue Agency would be ways of burning massive amounts of tax money for no value except the 'message' it sends. But CPP is actually a really good  system. It wins international awards for how well-manage
Post a Comment
Read more

Enforceability, or not, of Contractual Termination Clauses

 There's a recent decision by the Alberta Court of Justice (you know, the court formerly known as the "Provincial Court"), on a wrongful dismissal, in Plotnikoff . The court looked at four issues, but for the purposes of this entry, only the first one is really interesting: Whether or not the employment contract had an enforceable termination clause limiting the employees entitlements on termination. (Okay, the third issue - mitigation - is also of interest to me: The employee failed to take reasonable steps, but the employer failed to prove he'd have gotten a new job otherwise, so there was no reduction. This is a correct  treatment of an issue the courts often get wrong.) Here's the contract language: The Company may terminate employment without cause...upon providing the Employee with notice as may be mandated by the Employment Standards legislation or such additional notice as the Company, in its sole discretion, may provide or, at our option, pay in lieu of s
Post a Comment
Read more