Edmonton Employment Law

 I have not generally regarded myself as particularly 'partisan'. I'm not one to stand up and defend the indefensible from a politician I otherwise like, nor to attack something utterly benign from a politician I dislike. (I may give the benefit of the doubt to a politician I respect, but that's not the same thing.) I've certainly never claimed to be 'apolitical', but I've seldom worn any party colour. I've voted, from time to time, for three different Federal parties. I've occasionally maintained membership in some parties; when I do, it's not necessarily the same  party; and I've even had simultaneous Provincial and Federal memberships in non-aligned parties. But when I reflect on the first several Provincial and Federal elections in my lifetime, what strikes me is how MOST of them were contests between two parties largely viable governing options, if with platforms, leaders, and ideologies that one may or may not find objectionable. Mo...

 In any framework where a statute provides entitlements and a process for recourse, it's important to work out the way that these entitlements interact with traditional rights and remedies that would otherwise be recognized by a court. With employment standards legislation, it's really clear that the government isn't displacing  other entitlements that employees might have, but just creating minimums. But the more difficult and varied question is about process : Can I pursue a statutory claim in court? What if I pursue a similar  claim to a statutory entitlement in court, like pay in lieu of notice as compared to statutory termination pay? Can I still go after the statutory entitlement? Or vice versa? Some statutes are more explicit than others on this: In Ontario, for example, you can assert a claim for statutory entitlements in a court claim, leading to outcomes like Render , but you have to pick one : You can't pursue both the statutory process and the court process ...

 I've remarked before about the practice of the courts looking at the failure of a dismissed employee to take reasonable steps to mitigate and then applying some discount  to their entitlements on that basis, because they might  have successfully mitigated - without necessarily being satisfied that the would have  successfully mitigated. This is problematic, because it's been a critical part of wrongful dismissal mitigation law for nearly fifty years that failure to mitigate is a two-stage test, with the onus upon the defendant to show: That the Plaintiff failed to take reasonable steps to reduce their loss; AND Had the Plaintiff taken reasonable steps, they would have successfully reduced their loss. Outside of cases where the 'failure' is in actually turning down a position , the second stage tends to be a difficult test, requiring the employer to prove a hypothetical surrounding the availability of work for the employee. But it's supposed  to be a high burde...

 Every so often, we see a scenario where an employer, having dismissed an employee on a not-for-cause basis, decides - usually after getting a demand letter from the employee - to take a 'just cause' position instead. It's not always  in bad faith, per se . There can be scenarios with an arguable case for cause, where an employer's assessment of the magnitude of its liabilities can legitimately influence whether it makes the strategic decision to press that issue. But it always has a bit of a stink to it, and it can be difficult or impossible to put a 'not-for-cause' genie back in the bottle, as an Edmonton employer recently discovered . The Facts Mr. Aleyew was the Executive Director of the Council for the Advancement of African Canadians in Alberta ("AC") until early 2018. In response to certain allegations of mistreatment by employees, the Board of Directors retained an employment lawyer to conduct an investigation, and suspended him without pay ( N...

  There's a new decision out in the Working Families  saga, with the Ontario Court of Appeal striking down Ford's first invocation of the Notwithstanding Clause . By way of background: Several years ago, the Wynne government introduced a new law that put spending limits and reporting requirements on political third party advertisers, for the six months leading up to an election. Labour groups challenged the constitutionality of this. By the time the challenge was heard, the Ford government had extended the 6 month period to 12 months. (In doing so, they didn't change the spending limit itself.) This had awkward results for the government: Having already  led significant evidence discussing the goals of the statute, and why 6 months was an appropriate and effective length of time, there was no new  justification for extending it to 12. So, in effect, the government led a case as to why a 6 month restricted period was minimally impairing, and then asked the Court to si...

 A few months ago, the Ontario Court of Appeal decided the appeal in Humphrey v. Mene  - I commented about the ONSC decision back in 2021 . The appeal succeeded, partially, on one point: The Court of Appeal found that declining a position with equivalent compensation several months into the notice period, she acted unreasonably and failed to mitigate. However, there's some good discussion of the other unsuccessful grounds of appeal relating to the length of the notice period, and aggravated and punitive damages. Reasonable Notice Period The Employer argued that, in light of her relatively modest salary, the Court shouldn't have viewed her as such a senior and high-responsibility employee. The Court of Appeal's commentary on this is pretty good: On the facts, the salary is more indicative of the means of the company than her own level of responsibility. While a twelve month notice period was at the high end, it wasn't outside the range of permissible outcomes. Bad Faith ...

There's a bit of a perennial conflict on whether and when elected leaders should be able to block people on Twitter. The most high-profile such issue was when courts ruled that Donald Trump's Twitter account was being operated as a part of the government and therefore that blocking people infringed their First Amendment rights. (This didn't make it to SCOTUS until after the end of DJT's term, at which point it was moot, so the order was vacated...and so it's still not a settled question.) Ottawa Mayor Jim Watson was sued on a similar basis, and the litigation was resolved on the basis that he acknowledged that it was a public account and he couldn't block people arbitrarily . I debated the subject on Twitter some time ago  with Neuman Thomson's Dwayne Chomyn , among others, after Dr. Jared Wesley criticized Doug Schweitzer for blocking two academics who criticized a published statement of his. Now, Ezra Levant is making a constitutional challenge, alleging ...