Haskayne School of Business Research & Publications

Permanent URI for this collection

https://prism.ucalgary.ca/handle/1880/100033

Browse

Now showing 1 - 20 of 144

Open Access
Absolute and Conditional Discharges in Canadian Criminal Law
(Centre for Public Legal Education Alberta (CPLEA), 2014-09-05) Bowal, Peter; Callbeck, Sean; Lines, Brian
Open Access
The Abuse of Criminal Record Checks
(Legal Resource Centre of Alberta Ltd. (LRC), 2010) Bowal, Peter; Brierton, Thomas D
In 2007, the City of Ottawa awoke to the value of criminal record checks, at least for its fire department. It required new applicants for firefighter positions to consent, as a precondition of employment, to the City accessing the police department to obtain any criminal records. It also required such written consents from specific employed firefighters on a case-by-case basis justified on reasonable grounds. The firefighter union only objected to the third leg of the policy that compelled consent by firefighters to a criminal record check every three years. The City of Ottawa claimed that this was part of management rights in the collective agreement. The union grieved, saying this was an unjustified invasion of the firefighters' privacy. The arbitrator concluded there was a significant distinction between the initial hire and the ongoing employment relationship. The considerations that apply to an applicant for employment did not apply to the same extent to ongoing employees who have been observed by the employer over time. Firefighters, despite their governing legislation, the arbitrator continued, are "essentially indistinguishable from a myriad of trades persons and professionals whose work would involve the normal attendance at a variety of premises." One cannot conclude that "the duties and responsibilities of firefighters are such as to require or justify such blanket invasion of privacy." He allowed the grievance and struck down the fixed periods of the policy, but left open the practice of the employer obtaining consent where reasonable grounds justify it even without compliance with the process set out in the Privacy Act. The checks may falsely reassure the employer because they may have gaps in them. Many police forces produce a simple letter-like document called a "Police Information Check." The document will only be as good as the identification information offered and the convictions screened. If names or other subject information such as previous locations of residence are inaccurate or incomplete, the report may be useless. The report may not contain information on current charges or convictions from other jurisdictions. Regulatory convictions - such as licence violations - which may be highly relevant to some employers, are generally not listed. Accordingly, a horrendous driving record would escape this level of scrutiny.
Open Access
Accommodation in Employment
(Legal Resource Centre of Alberta Ltd. (LRC), 2007) Bowal, Peter; Silovs, Jim
After a testy conversation with an employee about her absence and tardiness due to an alleged medical condition, the employer finds itself defending a human rights case of failing to accommodate the employee's medical condition. The employer discovers that it has a "duty to accommodate" the employee's medical condition to the point of "undue hardship". Accommodation requires establishing the needs and capabilities of the affected employee and then considering the range of possible accommodation, short of undue hardship, available to the employer. If the employee seeks accommodation for medical reasons, sufficient medical disclosure should be provided to allow the employer to assess the employee's condition. The Supreme Court of Canada in Renaud v. Okanagan School District (1992) said the employee "must do his or her part as well," which may mean accepting the employer's reasonable plan of accommodation. Most accommodations are a minor inconvenience or expense for the employer. Undue hardship is reached when the accommodation becomes unreasonably onerous or excessive, such as major financial expense or business disruption. Justice Sopinka in Renaud wrote: "the term 'undue' infers some hardship is acceptable; it is only "undue" hardship that satisfies this test."
Open Access
All is Not Lost: The Law of Lost and Found
(Centre for Public Legal Education Alberta (CPLEA), 2014-01-06) Bowal, Peter; Kuzma, Dusan
Open Access
American and Canadian Election Laws
(Legal Resource Centre of Alberta Ltd. (LRC), 2012-11) Bowal, Peter; Stan, Lauren
The article discusses the differences on the federal election law and processes between the U.S. and Canada. It states that the Canada Elections Act governs the federal elections in Canada while both the federal and state law regulate the federal elections in the U.S. It adds that the Canadian government follows the British Parliamentary system as the president, vice president and the Congress comprised the U.S. federal branch. The strong incumbency in the U.S. is also mentioned.
Open Access
Aunt Laura’s Promise
(Legal Resource Centre of Alberta Ltd. (LRC), 2009) Bowal, Peter; Brierton, Thomas D.
This story is about a generous aunt, Laura Constantineau Brunet, who orally promised one of her Ottawa houses to her 20-year-old nephew George Constantineau in return for him agreeing to do some errands for her. George readily agreed to that bargain. So, while attending a technical school for 6 months in 1934.35, he lived with Aunt Laura at 550 Besserer Street in Ottawa, who owned both that house and the adjoining 548. They agreed that if George was good to her and if he did some chores for her, she would leave him the land with house next door, at 548. For George to win, he would have to show that doing those errands clearly referred to the sale of the house next door. But young nephews do errands for aunts who they are residing with for six months for several reasons. The errands could be payment for room and board while he was at school. George might be a kind nephew merely helping out his aunt. An objective bystander, knowing nothing of the promises, would not likely conclude that the only explanation for George helping Aunt Laura was that George was getting the other house. His errands were not clearly, nor of their own nature, referable to any dealing with 548 Besserer Street. George did not leave the courthouse empty-handed. Although he could not plainly demonstrate he had a deal for the house, the Supreme Court of Canada thought he should be paid for the errands he performed at the aunt's request, an equitable remedy known as quantum meruit. The Supreme Court said Aunt Laura would have been unjustly enriched by George if she did not pay something for those errands. She would have had to pay for his services if she hired anyone else to perform them. Supreme Court fixed these few errands as worth an extraordinarily high $500 per month (a total of $3,000) in 1954. Aunt Laura's estate was also ordered to pay all of George's legal bills.
Open Access
Bill of Rights in Canada
(Legal Resource Centre of Alberta Ltd. (LRC), 2013-01) Bowal, Peter; Thul, Dustin
The article discusses the Bills of Rights in Canada which consist of the Canadian Bill of Rights and the Alberta Bill of Rights. The authors state that a Bill of Rights contains only rights and freedoms guaranteed by the Crown which can truly be ensured by the public authority. They mention that individuals do not have any obligations under a Bill of Rights, they only have rights. They note that the Bill of Rights is reflected in the Canadian Charter of Rights and Freedoms of 1982.
Open Access
A Borrower’s Guide to Foreclosure
(Legal Resource Centre of Alberta Ltd. (LRC), 2010) Bowal, Peter; Goloubev, Maxim
[To keep this terminology straight, it might help to remember that the mortgagor (the suffix "or" means "to give") gives an interest, pledge or charge in his land to the mortgagee (the suffix "ee" means "to receive") in return for the loan.] In many provinces of Canada that follow the land titles system, by law the mortgagor (not the mortgagee) remains the registered owner of the land. The house is pledged as security only, and is not transferred to the mortgagee when the loan is made at closing. This means the mortgagor, who might be asset-rich but cash-poor, can try to sell the property on the open market and fetch the highest price possible for it. The whole mortgage and arrears can then be paid off, pleasing the mortgagee. The mortgagor pockets the $70,000 equity, and can apply it toward the next home. An "Order Nisi" (specific performance) by the court stipulates the amount owed to the mortgagee, and the time for redemption. The redemption period will depend upon several factors, most notably the personal circumstances and pleas of the mortgagor, the amount of indebtedness on the mortgage, and the amount of equity in the land. The more equity held by the mortgagor, the less likely one will persist in the default of payment and, equally, the less risk for the mortgagee. A standard redemption period is about six months. However, actual redemption can occur right up until the moment the property is transferred, although redemption is rare at that point. The legal definition for the word "foreclosure" according to the Law of Property Act is the point at which the mortgagor is "deprived of his equitable right to redeem."
Open Access
Canadian Regulation of Contests, Prizes and Games
(Centre for Public Legal Education Alberta (CPLEA), 2014-09-05) Bowal, Peter; Brunet, Alexandra
Open Access
Casey Hill and the Church of Scientology
(Law Now, 2013-03) Bowal, Peter; Barron, Michelle
The article discusses a court case stemming from the defamatory press conference and testimony from the Church of Scientology against prosecutor Casey Hill. It notes that Scientology lawyer Morris Manning addressed the media in his barrister's robes to denounce Hill and to announce a new criminal contempt litigation. However, the Supreme Court of Canada dismissed the case against Hill and ruled that all allegations were unfounded.
Open Access
Categories for Immigration to Canada.
(Centre for Public Legal Education Alberta, 2013) Bowal, Peter; Perry, Karen Lynn
The article offers information on three types of immigration categories in Canada. It states that Humanitarian Immigration is for people who fear persecution in their native country. It mentions that under Economic Contribution Immigration the country looks for people with skills who are required in workforce. It highlights that Family Reunification Immigration is for sponsors with age over 18.
Open Access
Changing Terms of the Employment Contract
(Centre for Pulic Legal Education Alberta (CPLEA), 2013) Bowal, Peter; Hoy, Colleen
Open Access
Changing the Terms of the Job
(Legal Resource Centre of Alberta Ltd. (LRC), 2009) Bowal, Peter
Constructive dismissal has been described by the Supreme Court of Canada as: ...where an employer unilaterally makes a fundamental or substantial change to an employee's contract of employment...a change that violates the contract's terms... the employer is committing a fundamental breach of the contract that results in its termination and entitles the employee to consider himself or herself constructively dismissed. The employee can then claim damages from the employer in lieu of notice. Consideration basically means that if the employer asks the employee to give up something (eg. a pension plan or to accept lower wages), it must also give up something - though not necessarily of equal value - in return. That could be a guarantee of a further period of employment, if the employment would clearly have been otherwise terminated. The Ontario Court of Appeal in Wolda wrote: "the employer cannot, out of the blue, simply present the employee with an amendment to the employment contract and say, 'sign or you'll be fired' and expect a binding contractual amendment to result without at least an implicit promise of reasonable forbearance for some period of time thereafter." The new agreement with each worker could be put under seal. The employer's lawyer should be consulted in order to ensure that the new reductions in the workforce will be enforceable. This method is preferable because it engages both parties, builds commitment in the new arrangement and reduces any chance of a legal dispute. Working with the employees affected to come up with an effective solution going forward is sound employment relations. Those employees who do not "play ball" with this method, can attempt to negotiate terms of voluntary withdrawal.
Open Access
Child Apprehension: Policy and Process
(Legal Resource Centre of Alberta Ltd. (LRC), 2009) Bowal, Peter
Section 4 requires "any person" with "reasonable and probable grounds to believe" that a child is in need of intervention to make that report to a designated child services worker. A fine up to $2000 can be levied, and up to six months imprisonment imposed if it is not paid. Failure to report is unlikely to be prosecuted, except in the most egregious case of professional default. Families and children can also request intervention, and workers may learn of intervention needs from any other source. The practice at this point varies considerably from Justice to Justice as the application is considered. Some readily grant the Apprehension Order if the worker states she believes the child is in need of intervention. Others will note the worker's belief but inquire further to test the case for intervention. I favour the latter approach. Otherwise, the need to call a Justice for the Order would be a waste of everyone's time if the Justice was bound to do what the worker requested. The Justice must independently review the grounds for the worker's belief in the need for intervention. The state removal of a child from his or her home is a serious matter, not one to be taken lightly. I find that occasionally the worker making the telephone application, though sworn to truth, has no personal knowledge of the case being presented. He did not even try to speak to the parents, which violates the principle of minimal disruption of the family. He may not have even seen the child and I have had cases where the worker does not even know that the child exists. The basis upon which the application rests may be so slender as to constitute mere conjecture (as in "the teacher thought Johnny had a bruise on his arm") or a personal view of child-rearing that is sought to over-ride parental discretion (as in "no child should have to do all that work at home").
Open Access
Class actions
(Legal Resource Centre of Alberta Ltd. (LRC), 1998) Bowal, Peter
Open Access
Comma Law
(Centre for Public Legal Education Alberta (CPLEA), 2014-03-06) Bowal, Peter; Layton, John
Open Access
Compassionate Care: A New Basis for Temporary Unpaid Leave from Work
(Centre for Public Legal Education Alberta (CPLEA), 2014-07-07) Bowal, Peter; Saini, Preet
Open Access
The complicated case of buyer beware
(Legal Resource Centre of Alberta Ltd. (LRC), 1996) Bowal, Peter
Keeping in mind consumer contracts, any waivers of responsibility that the commercial party wants to rely upon must be accepted by the consumer at the time of the contract. If the waiver is never discussed and is not signed at the making of the contract, it is not a term which the consumer has accepted. If the parking lot or ski hill operator comes along later and asks the waiver to be signed, this will usually constitute a new contract. The consumer is giving up some value at that time (the promise to not sue the operator), but what is the operator giving up by way of fresh consideration? An absence of consideration also renders the contract unenforceable. This explains why signage or waiver provisions (e.g. "the operator shall not be responsible for personal injury or property damage, however caused") are found at the entrances to the parking lot and ski resort or may be mentioned at the time the ticket is purchased. The range of consumer protection regulation in Canada (passed by the two levels of government to supplement the common law) is very broad. It includes legislation, regulations, and guidelines. Both the federal government and most provincial governments, such as Alberta, have a comprehensive statute. Actions which are specifically prohibited by the federal statute, the Competition Act, can be divided into two categories; prohibited activities among commercial parties (usually specified unlawful distribution practices) and between commercial party and individual consumer. Attempts to influence price maintenance, refusing to sell or supply to certain businesses, bid rigging, conspiring, discriminatory and predatory pricing are in the first category. Making untrue, deceptive or misleading statements, making representations of quality without performing an adequate test to support that claim, and regular price claims are examples of regulated activity in the second category. In the aftermath of widespread consumer protest over the negative-option sales strategy used to sell the new cable television packages, several provincial governments promised legislative action to ban such methods. This was the immediate political response even if existing provisions prohibiting unfair trade practices of the general consumer protection legislation already covered the practice. The only province to actually follow through, however, was British Columbia. Retroactive to January 26, 1995, contracts entered into for unsolicited services sold by negative-option marketing in British Columbia are now unenforceable, unless the buyer explicitly consents. Thus British Columbia joined Quebec and Nova Scotia which had already specifically prohibited the negative-option sale since 1992 and 1994, respectively.
Open Access
Concepts of property for tenants of the earth
(Legal Resource Centre of Alberta Ltd. (LRC), 1990-09) Bowal, Peter
Open Access
The Confidentiality of Commercially Valuable Information
(Legal Resource Centre of Alberta Ltd. (LRC), 2013-01) Bowal, Peter; Dragos, Leo
The article discusses how to prevent the unauthorized disclosure of commercially available information by employees. The authors state that commercially valuable information is a valuable corporate asset. They mention that deliberate disclosure is best prevented by meticulously selecting and monitoring and limiting their access to sensitive information. They note that an employer must have an enforceable employee confidentiality agreement entered into at the time of hiring.