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Supreme Court of Canada

Relationships that give rise to fiduciary obligations

In a previous post, I mentioned that Justice Rothstein of the Supreme Court of Canada spoke about fiduciary duties in the employment context at the "10th Annual Employment Summit" in Toronto.

Specifically, he referred to recent cases before the Court in which fiduciary duties had been alleged: RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc., 2008 SCC 54 and Galambos v. Perez, 2009 SCC 48.

What type of relationships will give rise to fiduciary duties?

In the leading case of Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574, which is not an employment law case, the Supreme Court of Canada stated that relationships in which a fiduciary duties have been imposed generally, although not always, share three general characteristics:  read more »

The definition of "constructive dismissal"

Constructive dismissal claims are often asserted but perhaps not well undertand. This begs the question: What is the definition of a constructive dismissal?

In the leading case of Farber v. Royal Trust Co. [1997] 1 S.C.R. 846, the Supreme Court of Canada defined constructive dismissal as follows:

In cases of constructive dismissal, the courts in the common law provinces have applied the general principle that where one party to a contract demonstrates an intention no longer to be bound by it, that party is committing a fundamental breach of the contract that results in its termination.  read more »

Courts will not enforce fines that unions impose on members who cross picket lines

Jurisdiction: - Alberta - Ontario - Saskatchewan

By dismissing two leave to appeal applications on May 7, 2009 - one from Ontario and the other from Alberta - the Supreme Court of Canada has stipulated that the courts in Canada (save for in Saskatchewan) will not enforce fines that unions impose on their members who cross legal picket lines.

In the Ontario case  - Union of Taxation Employees Local 70030 v. Jeffrey Birch et al. - the employees worked for Canada Revenue Agency and were members of the Union of Taxation Employees Local 70030, a component of the Public Sector Alliance of Canada.

During a legal strike in 2004, the employees crossed the picket law on three days so that they could continue to work. Pursuant to the provisions in its constitution and by-laws, the union suspended the employees' union memberships for three years and also fined them each $476, which was equivalent to the total of the employees' gross salary for the three days.

The employees refused to pay their fines, resulting in the union filing a lawsuit against them in Small Claims Court.  The case was subsequently elevated to the Ontario Superior Court as a test case.  read more »

Supreme Court of Canada dismisses application for leave to appeal in negligent investigation case

Jurisdiction: - British Columbia

In Brian Fox and Board of Education of School District No. 62 (Sooke) v. Margaret Hildebrand, 2009 CanLII 13443 (S.C.C.), which was issued today, the Supreme Court of Canada dismissed with costs the application for leave from the judgment of the Court of Appeal for BC in 2008 BCCA 434 (November 5, 2008).

The BCCA had ruled in its decision, inter alia, that it was not "plain and obvious" that one employee did not owe another employee a duty of care in the manner in which the first employee investigated allegations of workplace misconduct against the second employee.

Contextual factors to consider when assessing whether employer has just cause to dismiss an employee

Jurisdiction: - Ontario

A new test for dismissing an employee for just cause was established by the Supreme Court of Canada in McKinley v B.C Tel, 2001 SCC 38. In that case the Court stated that, among other things, employers must undertake a contextual analysis of ths misconduct.

In a recent case - Corso v. Nebs Business Products Limited, [2009] O.J. No. 1092
(Ont.S.C.J.)  - the Ontario Superior Court set out a useful checklist of the contextual factors that should be considered.

The case concerned the dismissal of an employee who, in the face of a detailed Conflict of Interest policy, covertly developed a computer program product that would be detrimental to the employer's core business.

The checklist is as follows:  read more »

BCTF to seek leave to Supreme Court of Canada on "political protests" case

Jurisdiction: - British Columbia
Sector: - Education

It was reported in an article in today's Vancouver Sun that the BC Teachers Federation will seek leave to appeal to the Supreme Court of Canada on the "political protests" case.

The BC Court of Appeal dismissed their (and the Hospital Employees Union's) appeal in a decision handed down on February 4, 2009.

Supreme Court of Canada issues decision on restrictive covenants in employment contracts

Jurisdiction: - British Columbia

In a decision issued January 23, 2009 - Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6 - the Supreme Court of Canada clarified when, in an employment contract, the doctrine of severance may be invoked to resolve an ambiguous term in a restrictive covenant or render an unreasonable restriction in the covenant reasonable.


In the late 1980s, Mr. Shafron sold his insurance agency business to KRG Insurance Brokers Inc. ("KRG"). Mr. Shafron continued to be employed in the business, however, through a series of employment contracts.

The employment contracts contained a non-competition clause that stated that if Mr. Shafron left KRG for any reason other than being terminated without cause, he would not compete with KRG for a period of three years by being involved with any insurance brokerage business which is carried on within the "Metropolitan City of Vancouver". At the time, the "Metropolitan City of Vancouver" was not a legally defined term.  read more »

"Criminal Offences and Discrimination in Hiring: Can Employers Refuse to Hire an Employee Due to a Pardoned Criminal Offence?"

Jurisdiction: - Quebec

Deborah J. Hudson at Filion Wakely has written an article entitled, "Criminal Offences and Discrimination in Hiring: Can Employers Refuse to Hire an Employee Due to a Pardoned Criminal Offence?" (November 24, 2008).

The article summarizes the Supreme Court of Canada's 6/2 decision in Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2008 SCC 48.