Blog

Being “risk sensible”

Sir Charles Haddon-Cave conducted a review of a fatal air crash in Afghanistan, issued in 2009. Earlier this year he spoke about the lessons learned and the importance of being “risk sensible” and not “risk averse”: Being Risk Sensible means embracing risk, unbundling it, analysing it and taking a measured and balanced view. What I want to do [Read More]

Employment-related Damages and Taxes: a cautionary tale

A recent Federal Court decision highlights the importance of being very clear in describing the basis for financial settlements arising out of a termination of employment and the importance of properly coding payments. The case also illustrates the importance of being in the right court to address tax implications of settlements. An employee with the federal Department [Read More]

Access to Justice and Hallucination

The Chief Justice of the Ontario Court of Appeal gave his last speech at the opening of the courts last week (he retires at the end of the year). In his speech he touched on the topical issue of access to justice: There is today an overwhelming consensus that if the justice system as we know it [Read More]

Access to justice, case management and the visible adjudicator

Rick Weiler, in a recent post starts with the bold statement: “The Civil Justice system in Ontario is broken; badly broken.” Justice Colin Campbell might add, “and it’s more badly broken in Toronto”. In an article in the recent Advocates Society Journal, he writes about the sorry state of civil justice in Ontario, including an almost dysfunctional [Read More]

Does counsel have a duty to cooperate in the admission of documentary evidence?

Last week the appeal of the Law Society of Upper Canada’s disciplinary decision in the Groia case was heard by the Appeals Panel. Most of the focus of discussion has been on counsel’s use of sarcasm and general attitude toward the prosecution in the hearing. However, the Advocates Society has also raised a concern in [Read More]

Marshall Crowe and the apprehension of bias

Marshall Crowe was a public servant, diplomat, lawyer and bencher over a lengthy career. He died on August 16 of this year. The obituaries and remembrances have focused on his many accomplishments, but have skipped over his contribution to the longstanding test for apprehension of bias of decision makers. The often-cited case of Committee for Justice and Liberty et al. [Read More]

The poetry of conflict resolution: Seamus Heaney (1939-2013)

Seamus Heaney died this past week. He was an Irish poet with an amazing ability with language. For selections from some of his poems, see here. He also had a keen understanding of the importance of language in disputes, perhaps enhanced by his Irish experience. In an extensive interview in 1997, he said: … Debate doesn’t really change things. It [Read More]

When adjudicators mediate

Arbitrators, adjudicators and judges can find themselves assisting parties in reaching settlements and they are often in a good position to do so. I’ve written about med-arb, where the same person takes on the role of mediator and arbitrator, and some of the risks associated with the process. What concerns are there with adjudicators mediating cases [Read More]

Summary hearing for wrongful dismissal not suitable when mitigation at issue

In a recent decision of the Ontario Superior Court, Anderson v. Cardinal Health, 2013 ONSC 5226 (CanLII), a plaintiff’s motion for a summary hearing of her wrongful dismissal claim was denied because there was a dispute about mitigation efforts. The plaintiff, 55 years old, was dismissed without cause after 22 years of employment. Her annual salary was approximately [Read More]

Adjudicator’s award of aggravated and punitive damages of $185K for unjust dismissal upheld

A recent adjudication under the Canada Labour Code led to a finding of unjust dismissal and the awarding of notice damages as well as aggravated damages of $85,000 and punitive damages of $100,000. The employer filed a judicial review application challenging the aggravated and punitive damages award only. The Federal Court dismissed the application. The respondent had worked for [Read More]

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