Update on Recent Appeal Decisions

A number of interesting cases have been handed down by the Court of Appeal and the Supreme Court of Canada in the last few months.  The following is a summary of these cases to bring you up to  speed.

Moore v. Getahun, 2015 ONCA 55 – Reviewing Expert Reports

When this case was decided at trial, litigators all over Ontario were at a loss.  The long-standing practice of assisting expert witnesses in framing their reports during the drafting process was held to be no longer acceptable.  Fortunately, the Court of Appeal set things right and litigators across the province breathed a collective sigh of relief.

In the reasons for the decision, the Court of Appeal stated, “Just as lawyers and judges need the input of experts, so too do expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case… Reviewing a draft report enables counsel to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible.”

Imagine proceeding to trial, needing an expert witness’ opinion, but your lawyer is unable to provide guidance on how the witness’ expert report should be presented.  Luckily, the Court of Appeal has made certain that this is not a concern for litigants.

Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 – Right to Strike

Preventing essential services from taking strike action is a hot-button topic.  At the end of January, the Supreme Court of Canada dealt with the issue of the constitutionality of a collective bargaining unit’s right to strike.

In December 2007, the Government of Saskatchewan enacted legislation to limit the ability of public sector employees in essential services from participating in strike action. However, section 2(d) of the Canadian Charter of Rights and Freedoms provides for the fundamental freedom of association.  The Supreme Court of Canada found that a prohibition on designated employees participating in strike action was a substantial interference with a meaningful process of collective bargaining and therefore a violation of the freedom of association.

The Supreme Court of Canada also concluded that this violation of section 2(d) was not a reasonable limit allowable under section 1 of the Canadian Charter of Rights and Freedoms.  Although the maintenance of essential public services is a pressing and substantial obligation, the legislation went beyond what is reasonably required to ensure the uninterrupted delivery of essential services and failed to provide a meaningful alternative mechanism for resolving bargaining impasses, like arbitration.

Union members should not take this case to mean that the right to strike is absolute.  Rather, the right to strike of employees in essential services may be restricted, provided that the limit is reasonable and allows for other ways to resolve deadlocks in negotiating collective agreements.

Arnone v. Best Theratronics Ltd., 2015 ONCA 63 – Bridging Until Retirement

I wrote about the trial decision in October 2014.  In this case, the plaintiff, Mr. Arnone, was 53 years old with 31 years of service when his employment as a manager ended. At that time, he was 16.8 months away from retiring with an unreduced pension.  The trial judge emphasized this in assessing the appropriate notice period to be 16.8 months.

In his reasons, the trial judge stated, “Objectively assessed, it seems to me that the most reasonable view of the situation prevailing at the time of termination would be to recognize the reality of the approaching entitlement to an unreduced pension and to factor this into a termination arrangement that included the other benefits available to the plaintiff upon retirement.” From this, it appeared as if the court was stating that the assessment of a notice period could include factors outside of those cited in Bardal v. Globe & Mail Ltd., namely “the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.”

I was somewhat surprised by this decision.  As I wrote last year, it seemed that “This decision underscores that there is no complete set of factors that go into an assessment of reasonable notice.  An impending retirement may be just as important as the employee’s age, duration of service or position.”

Thankfully, the Court of Appeal clarified that “The Bardal analysis remains the approach courts must apply to determine what constitutes reasonable notice of termination, an approach which has not included a consideration of the time between the date of dismissal and the point at which the employee would be eligible for a full pension.”

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.