Courts May Dispense with Precedence

| Thursday, May 26th, 2011 | No Comments »

Canada’s employment law is governed through common law – meaning that law is passed down through a body of previous rulings that are given precedence in courts.  There are gleaning examples of cases that have shaped the legal landscape we now find ourselves in.  That being said, we still have a long way to go. 

In a recent article by Daniel Lublin titled, “Supreme Court decisions make big impact” he uses two major cases to illustrate the importance of applying case law consistently.

Keays v. Honda:

Before Keays, employers were liberally penalized for dismissing employees in a negative manner.  The courts quickly found out that nearly every employee with a grievance felt they had been fired in “bad faith”.  This groundbreaking case introduced the stipulation that employees had to substantiate “bad faith” claims with evidence of actual harm.    

Evans v. Teamsters Local Union No. 31: 

Some of the craftier employers will often offer a return to work to employees that sue for wrongful dismissal.  Because employees have a duty to mitigate their losses after dismissal, turning down such an offer could potentially be damaging to a case.  Courts caught on to the fact that not all employers make honest propositions and thankfully, exceptions to the rule were made.  In the case that a work environment has become harmful or humiliating, it would be unreasonable to require an employee to return. 

Though these rulings have had a significant positive impact in the courts, Lublin contends that lower courts have not applied them consistently, and in some cases, not at all.  Both employees and employers should be mindful that precedence is no silver bullet.  As Lublin puts it, “the game may be different but the decisions are often the same”.

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