701Simpsonv CAC, (leave to appeal refused) Back to book Page
702Dooley still arises in argument nonetheless. It is old law. Back to book Page
703The leading case on this issue is the 2001 Ontario Court of Appeal decision in Simpson v CAC, (leave to appeal refused). It has mistakenly not been referenced, as opposed to distinguished, which has created the question of the need for proof of prejudice.Back to book Page
704June 2001 Supreme Court of Canada decision in McKinley 2001 S.C.J. No. 40 Back to book Page
705Tracey v 502798 NB Inc., New Brunswick Labour and Employment Board, February 2007; aff’d 502798 v NB HRC, December 2008 Back to book Page
706van Woerkens v Marriott Hotels:To the same import is the Alberta Queen’s Bench decision of 2010 in Elgert referencing Leach v Canadian Blood Services Back to book Page
708As discussed with respect to Bhasin v Hrynew Back to book Page
709This will be so, even if the employment contract contains a valid severance clause, as in Boucher v Walmart.Back to book Page
710Ontario, Canada, PEI, NWT and Saskatchewan Back to book Page
711The Superior Court of Justice in Ontario in Baughn v Offierski Back to book Page
712Supreme Court of British Columbia in Ogden v Canadian Imperial Bank of Commerce, delivered by Wong J. in February of 2014 Back to book Page
713This decision was set aside on appeal and a new trial ordered, but not on this issue. Back to book Page
716Such awards were made in Boucher v Walmart of $100,000 and also in Downham of $20,000. Back to book Page
717These numbers are not precise. Back to book Page
719Pitt J. came to this conclusion in Quirola v Xerox Canada Inc, [1996] 16 CCEL (2d) 235, CLLC 210-019 (Ont Ct J (Gen Div))Back to book Page
721Boucher v Walmart Ontario Court of Appeal 2014, Downham v County of Lennox and Addington 2005, Ontario SC trial; Tl’azt’en First Nation v Joseph 2013, Federal Court upholding the adjudicator’s award under the Canada Labour Code Back to book Page
723An early case to award punitive damages due to the lack of a fair process was that of the 1992 decision of the Ontario Court of Appeal in Francis v CIBC. The Court of Appeal did set aside the award of aggravated damages made at trial as no medical evidence was introduced to support this claim. It did, however, double the punitive damage award to $40,000 and maintained the trial award of solicitor-client costs.Back to book Page
724Boucher v Walmart above Back to book Page
725City of Calgary v CUPE 2013 The damages in this case were described as general damages but are to the same effect. Back to book Page
728Downham above Back to book Page
731Wallace v United Grain Growers Ltd, 1997 CanLII 332 (SCC), [1997] 3 SCR 701, 152 DLR (4th) 1 at para 97-98. Back to book Page
732See to the contrary Vernon v B.C. Back to book Page
734This decision was reviewed and set aside by the B.C. Court of Appeal and a new trial ordered. The issue, however, in debate, that is, whether the re-termination process may be considered part of the “manner of termination” to fit within the Wallace principle was not the subject of appeal.Back to book Page
735As was stated in Wallace v United Grain Growers Ltd, 1997 CanLII 332 (SCC), [1997] 3 SCR 701, 152 DLR (4th) Back to book Page
736Alberta Court of Appeal in Elgert v Home Hardware Back to book Page
737The claim against the personal defendants also succeeded at trial as the jury believed that the two personal defendants had acted maliciously, hence depriving them of the defence of qualified privilege. This pointedly leads to the issue of what warning should be given to a complainant when commencing such a process. The sums of $50,000 and $10,000 were awarded against them. Back to book Page
738The defence of absolute privilege, based on the same theory as pleadings in a civil action was also denied at trial and on appeal. Back to book Page
739Rubin v Ross is a 2013 decision of the Saskatchewan Court of Appeal which set aside the decision of the decision of the trial judge dismissing the action and also increased the provisional damage award for defamation made at trial from $25,000 to a real award of $100,000.Back to book Page
740The two privileges have a common cause which is the effective administration of justice but they are driven by different legal consequences, as in SCC Blank v Canada, para 33 Back to book Page
741There is also a privilege known as “settlement privilege”. The purpose of this present analysis is to provide essential information of the issues confronting the investigator on the subject of privilege .Back to book Page
742R v Gruenke,In this instance there was no class privilege in such communications as determined on a broad policy basis, nor did the communications meet the first requirement that they originated in confidence that they would not be disclosed. Back to book Page
743B.C. Court of Appeal decision of K.L.V.v D.G.R, a case which has attracted modest attention, yet which pre-dated Ryan by some three years to allow for the application of the Wigmore test to patient-plaintiff journal, and by the Supreme Court decision in Ryan reflected below Back to book Page
744Nova Scotia Court of Appeal in its 1986 decision in Upham v You, authored by Matthews J.A Back to book Page
746The plaintiff had sought professional advice from Dr. Ryan as a teenager, in the course of which treatment, Dr. Ryan had sexual relations with her and committed acts of gross indecency. The plaintiff then sought psychiatric treatment with Dr. Parfitt, who assured her that all such communications would be confidential. This became the production issue. Back to book Page
747The onus of proof of this component of the test as being on the party asserting the privilege was also affirmed in GleggvSmith&Nephew SCC Back to book Page
748in F.(K.) v White, a March 2001 decision Back to book Page
749The Newfoundland Supreme Court in Bursey v Sampath, a decision of Chief Justice Hickman in June of 1999. Back to book Page
751The Supreme Court of Canada in Glegg v Smith & Nephew In considered a Ryan style case which came from the Province of Quebec that was decided on the basis of the Civil Code, the Quebec Charter of Human Rights and Freedoms and the Medical Act of Quebec which established an immunity from the disclosure of information received by a physician from a patient. Back to book Page
752Supreme Court of Newfoundland and Labrador in A.Y.v Gel lately, written by Barry J. in February of 2001. Back to book Page
754The Supreme Court of Newfoundland and Labrador in its April 2012 decision in Roche v Sameday World wide Back to book Page
755the British Columbia Supreme Court, in its 2006 decision of McClell and,Woods v Stewartetal, written by Mr. Justice Masuhara. This is post-Ryan.Back to book Page
756Hannis v Tompkins (2001) 43 ETR (2d) 208, [2001] OJ No. 5583; Alberta Court of Appeal in Lazin v Ciba-Geigy Canada.Back to book Page
757Master Hawkins in Bean v Manufacturers Life Insurance (2005) 43 CCLI (4th) 311, [2005] OJ No. 6155 Back to book Page
758Gowdie v Warby, in which the production motion was adjourned to allow the party asserting privilege to lead such evidence.Back to book Page
760Section 12 of the Bulletin Back to book Page
761…12. Where personal injuries have been sustained before or after the loss of employment (for example, in situations of harassment during employment, or defamation after dismissal), the general damages received in respect of these injuries may be viewed as unrelated to the loss of employment and therefore non-taxable. In order to claim that damages received upon loss of employment are for personal injuries unrelated to the loss of employment, it must be clearly demonstrated that the damages relate to events or actions separate from the loss of employment. In making such a determination, the amount of severance that the employee would reasonably be entitled to will be taken into consideration. Back to book Page
762Section 12 of the Bulletin Back to book Page
763in Fawkes v R., [2004] 5 CTC 2430 at paragraph 24., which dealt with an assertion that the severance sum paid was higher than that which would be normally expected in view of the alleged human rights violation asserting reinstatement and “ambiguous additional damages”. Back to book Page
767as was the decision in Van Eslande v R. Back to book Page
768(See IT Bulletin 99 – R5, paragraphs 23 and 25) Back to book Page
769A similar conclusion was reached by the Tax Court of Canada in Begley v The Queen, a decision made in November of 2007. Back to book Page
770In Frizzle v R.; The same conclusion was reached in Farrell v R., a Tax Court decision of May 2005. Back to book Page
771Section 6 of the Compensation for Victims of Crime Act is amended by adding the following subsections:
(2) Despite subsection (1), an application resulting from the commission of a crime of sexual violence or of violence that occurred within a relationship of intimacy or dependency may be made at any time, regardless of the expiry of any previously applicable limitation period under that subsection, subject to subsection (3).
(3) Subsection (2) applies to an application commenced before section 1 of Schedule 1 to the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 came into force, unless, (a) the application was dismissed by the Board and no further appeal is available; or
(b) at the time subsection (1) applied to the application, the Board declined to extend the time to make the application.
Back to book Page
772Where periodic payments are ordered, the lump sum maximum decreases to $12,500. Back to book Page
774Supreme Court of Canada in O’Malley v Simpson Sears Ontario Court of Appeal Shaw v Phipps Back to book Page
775Supreme Court of Canada in O’Malley v Simpson Sears Ontario Court of Appeal Shaw v Phipps Back to book Page
776Supreme Court of Canada in O’Malleyv Simpson Sears Ontario Court of Appeal Shaw v PhippsBack to book Page
777Ontario Court of Appeal in Phipps v ShawBack to book Page
782(to be used where the defence of the employer is statutory); Ontario Court of Appeal in Peel Law Association v Pieters; Ontario (Human Rights Commission) v. Etobicoke (Borough) , 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202Back to book Page
783use where the defence of the employer is non statutory defence) Ontario Court of Appeal in Peel Law Association v PietersBack to book Page
784Kowalczyk v Hudson’s Bay (Hart) Back to book Page
786Ontario Court of Appeal Shaw v Phipps Back to book Page
787Basi v. Canadian National Railway Co. (No. 1) (1988), 9 C.H.R.R. D/5029 (Can. Trib) Back to book Page
788Hummel v Transport Training; Ontario Human Rights Commission and Karumanchiri et al v Liquor Control Board of Ontario 8 CHRR D/4076 (Baum); April 1987 Divisional Court decision of Scott v Foster Wheeler 8 CHRR D/4179; Janzen v. Platy Enterprises Ltd, 1989CanLII97(SCC), 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 (obliquely) ; Nelson v Lakehead University; Grace J. in Wilson v Solis Mexican Foods; Back to book Page
790Ontario Court of Appeal Piazza v Airport Taxicab, (1985), 7 C.H.R.R. D/3196 (Ont. Bd. Inq.), var’d 24 O.A.C. 8 (Div. Ct.), rev’d 60 D.L.R. (4th) 759 (C.A.) (referenced in Ontario Human Rights Commission v Impact InteriorsBack to book Page
791The Court of Appeal reversed the Divisional Court on this issue.Ontario Court of Appeal – OHRC v Impact InteriorsBack to book Page
792This award was reversed by the Divisional Court and again restored by the Court of Appeal.Back to book Page
793As was stated by the Ontario Court of Appeal in Piazza v Airport Taxicab (Malton) Assn, (1989), 69 OR (2d) 281 (CA) Back to book Page
794Alberta Court of Appeal in Walsh v Mobil Oil; The Federal Court of Appeal, in Chopra v Canada 2007 FCA268 (CanLII), 2007 FCA Back to book Page
796Ontario Human Rights Tribunal Chittle v 1056263 Ontario(Keene); Ontario Human Rights Tribunal Norrenda v Primary Response (Keene) Back to book Page
798The Federal Court of Appeal, in Chopra v Canada 2007 FCA268 (CanLII), 2007 FCA Back to book Page
800The Board of Inquiry made an award for future loss in McKee v. Hayes-Dana Inc. (1992), 17 C.H.R.R. D/79, an age discrimination case. The Board of Inquiry made a contingent order for a prospective income loss in the May 1976 decision of Rajput v Algoma University College (Tarnopolsky).The Canadian Human Rights Tribunal in McAvinn v Strait Bridge Crossing (Deschamps) made an order requiring that the first available position of a bridge patroller be awarded to the complainant in its decision of November 2001. The commencement date of the lost income award was May 31, 1997.The award stated that failing such an offer of alternate employment, the total lost income was to be set at a 10 year period. The contingent prospective loss was hence set for a time period of six years and seven months. Back to book Page