Law Times - Newsmakers

Dec 2011 Newsmakers

The premier weekly newspaper for the legal profession in Ontario

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top cases Injection sites, hyperlinks among big cases in 2011 BY JENNIFER BROWN addicts opened, the Supreme Court of Canada unanimously ruled such facilities should be exempt from federal drug laws. Back in the spring, meanwhile, the Ontario Court of Appeal A issued a ruling that caused many workers to cheer when it ruled that pensioners should be dealt with before creditors when the companies they work for go broke. Also leaving many employers scratching their heads was a decision from the Ontario Labour Relations Board that ruled that employers must file a report whenever someone is killed or injured at a workplace. Later in the year, the country's top court decided that links on the Internet are merely "references" and aren't publication of the material they refer to. n Ontario (Attorney General) v. Fraser The Supreme Court of Canada missed a chance to deal with the right to strike in a decision that upheld the constitutionality of Ontario's Agricultural Employees Protection Act, according to a labour law expert. Roy Adams, a professor of labour relations at McMaster University in Hamilton, Ont., said the Supreme Court majority seemed anxious to shy away from further controversy in the 8-1 decision in Ontario (Attorney General) v. Fraser as it fought off an internal attack on one of its most important labour law precedents, Health Services and Support — Facilities Subsector Bargaining Association v. British Columbia. Despite concurring with the result, two of the judges called for the four-year-old decision that granted constitutional protection to collective bargaining to be overturned. The United Food and Commercial Workers Union wanted the court to find that the act breached workers' constitutional right to freedom of association under the Charter of Rights and Freedoms by limiting their collective bargaining rights. The union said the act could only be constitutional if it was revised to include bargaining and dispute resolution features mirroring those in the Labour Relations Act and if the legislation enshrined the employer's duty to bargain in good faith. But Chief Justice Beverley McLachlin and Justice Louis Lebel, writing for five of the judges, said there was no need 8 December 2011 number of high-profile cases grabbed the head- lines in 2011 with issues ranging from safe injec- tion sites to whether hyperlinks on web sites can be defamatory. Eight years after Canada's first safe injection site for drug to do so because the employer's duty to consider employee representations in good faith was implied in the act. n Re Indalex Ltd. The rights of pensioners take priority over those of secured creditors of an insolvent company, the Ontario Court of Appeal ruled in a high-profile case in April. In Re Indalex Ltd., the court decided that underfunded pension plans must be taken care of before paying secured creditors through proceedings under the Companies' Credi- tors Arrangement Act. The United Steelworkers union and a group of former Indalex executives appealed the case to the appeal court as they were left with underfunded defined-benefit pension plans when the company went into CCAA proceedings. The sale of the insolvent company didn't provide enough funding to repay loans Indalex had taken under a debtor-in-possession agreement with its U.S. parent. "The claims of USW and the former executives take priority over the claim asserted by Indalex U.S./Sun Indalex," Justice Eileen Gillese wrote in the unanimous decision with justices James MacPherson and Russell Juriansz agreeing. Gillese came down hard on Indalex, saying it had breached its fiduciary duty as administrator of the pension plans. Because of the company's conduct and the uniqueness of the circumstances of the case, the court noted its decision should be seen as particular to it. n Blue Mountain Resorts Ltd. v. Ontario The decision reached in Blue Mountain Resorts Ltd. v. Ontario (the Ministry of Labour and the Ontario Labour Relations Board) could have far-reaching implications for workplaces that are accessible to the public. The case arose in December 2007 when a guest of Blue Mountain Resorts drowned in an unsupervised swimming pool there. Blue Mountain didn't report the incident to the ministry because it didn't involve a worker. But Richard Den Bok, a ministry inspector, ordered Blue Mountain to report the death pursuant to s. 51(1) of the Occu- pational Health and Safety Act. It requires employers to do so when any person is killed or injured at a workplace. The Ontario Labour Relations Board upheld the order. It rea- soned that reporting was necessary when workers are vulnerable

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