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Non-Solicitation Injunctions - Issue to be Tried

 In a recent KB decision, Badger Infrastructure v. Parent-Walker , the Court took an odd perspective in relation to the burden of a plaintiff seeking an injunction against a former employee and their new organizations.  The injunction application was ultimately dismissed, and probably rightly so, but there are reasons to doubt the analysis the court used to achieve its outcome.  The employee ("Walker") was dismissed on allegations of just cause; a separate action is ongoing in Ontario small claims court for wrongful dismissal. Walker went on to work for a competitor, and the former employer ("Badger") brought this action arguing that Walker was misusing confidential information and breaching non-solicitation and fiduciary obligations.  Walker took the position that Badger had waived any restrictive covenants. The context for this waiver dealt with the wrongful dismissal action: a wrongfully dismissed employee generally has an obligation to take reasonable steps to f
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Employee Blunders? Maybe Not

 The Financial Post recently ran a Howard Levitt column listing " the 10 biggest mistakes employees make ". Well, not so much. Here's my take.  1. "Thinking HR is your friend, or at least a neutral interlocutor" Okay, so Howard isn't entirely wrong here. In theory, HR is supposed to be a neutral liaison between management and the workforce. In practice, it doesn't always work out that way, particularly in individual matters. When it comes to policy development or other types of organizational reform, general inputs like employee morale will hold more weight. But when it comes to performance management, accommodations, and dismissals, HR is generally going to be the face of management. That doesn't necessarily mean they're going to act in bad faith - sometimes management wants to accommodate, or correct performance deficiencies, in good faith. But it does mean that the employee's interests are secondary to the employer's. Where I disagree
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Croke v. VuPoint: A Frustrating Decision

The Ontario Court of Appeal recently decided that a COVID vaccine case: An employee of VuPoint worked exclusively on contracts for Bell; Bell implemented a vaccine policy; and the employee refused to get vaccinated.  Justice Pollak decided that the contract was "frustrated" by the Bell policy. The Ontario Court of Appeal upheld the decision.  This approach is problematic, with vast implications for employment and other kinds of contracts in various contexts.  In short, frustration of contract contemplates that unforeseeable changes in circumstances (a "supervening event") outside the control of the parties may relieve the parties of their contractual obligations.  The test has three elements: firstly, the supervening event must radically alter the contractual obligations; secondly the supervening event must not be foreseeable or one contemplated by the contract; thirdly the supervening event must be outside the control of the contracting parties.  In this case, Crok
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Emergencies Act Decision

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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
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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
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Employment Contract or Workplace Policy?

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 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
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The Politics of the APP

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 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
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