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Sabsay Lawyers: Issues of the day

What to do if you believe you were wrongfully fired

Your drive to work is pleasant and uneventful, and you are actually looking forward to a productive day at work. But you're no sooner in the door when your manager calls you into the office and asks you to sit down. He tells you very bluntly and without warning that you no longer have a job.

Once you gather your composure, you're more than likely wondering why he didn't give you a reason and what your recourse might be. Employers don't have to give their employees a reason for firing them, but they usually will give a termination notice, which they can do by telling employees beforehand while giving a specific timeframe or by asking them to leave immediately and paying them in lieu of that timeframe.

Fair dealing or infringement of "the worst film ever made"? The Room, Room Full of Spoons and The Disaster Artist in the court

"How does it feel to pour your heart and soul into a film, only for it to be ridiculed as history's most atrocious crime against cinema?" Imagine it: Tommy Wiseau, maker of The Room and actor in it, said, more or less, that he understood, the film is famous for being so bad.1

That didn't prevent Wiseau from taking legal action to stop other filmmakers from using his work in ways that (in his submissions) cast misleading character aspersions, invaded his privacy and damaged his reputation.

Successful DUI Case

October 26, 2017: Today we successfully defended another DUI case. Our client had to swerve to avoid another vehicle which did an impromptu U-turn in front of traffic without looking. That u-turning driver was charged with careless driving as a result of that action. Because our client had to suddenly swerve to avoid t-boning the u-turner, his car ended up striking a telephone pole and was totalled. He did the appropriate thing and reported the accident to police. Upon arrival, police detected the odour of an alcoholic beverage and demanded a breath sample into a roadside screening device. The resulting "fail" resulted in an arrest for "drive over 80". But no rights to counsel were provided upon our client's arrest so that he would know whether or not to speak to a lawyer. The Crown argued that this defect was cured at the station when rights to counsel were allegedly reiterated. But that station rights to counsel did not comply with the Supreme Court of Canada's admonishes in a case called R. v. Bartle. A further problem was the use by the state of statements made by the client which he was compelled to make by virtue of the duty to report found in the Highway Traffic Act. There were also problems with the fact that a proper breath demand was not made at the time the arresting officer made the arrest. The result was that we got halfway through the first day of trial when the Crown agreed to withdraw the criminal charge in return for a plea to careless driving under the Highway Traffic Act.

IMPORTANT EMPLOYMENT/CONTRACTOR VICTORY FOR SABSAY LAWYERS:

September 26th the Superior Court of Justice released its decision for one of our clients. The client had signed a contract for six months' of work of computer consultancy services. The client was acknowledged by everyone to be a top expert in his field. Before he signed the contract he advised the employer (technically, the company who contracted with him as an independent contractor) that he had a very dated criminal record for one offence committed when he was in high school (a place he graduated from many years ago). He also filled out a criminal records check form on which he declared this same dated conviction. He obtained the necessary security clearances and began working pursuant to the contract. A month later his contract was terminated when the records check came back, confirming the exact conviction he had already declared. In other words, he was fired for something he had already disclosed before he was hired. The company sought to rely on a termination clause we argued was void for vagueness. The judge agreed and our client was awarded damages for all the money he would have made for the unexpired portion of the contract.

Recent copyright ruling a coup for entertainment producers

A copyright ruling that likely has entertainment industry producers doing a happy dance is probably having the opposite effect on Internet subscribers who have a penchant for downloading pirated material. Holders of copyrighted material like film studios have been using court orders to get the names from Internet service providers of those who download pirated material such as movies. Providers have been charging copyright holders to track down the constantly changing IP addresses of those suspected of such copyright infringement.

Internet service providers are expecting to be flooded with requests since the Federal Court of Appeal ruled that they have to stop charging fees (about $100 for each request) to chase down these IP addresses. The only recourse service providers have is if they can get the federal government to pen a law that allows them to continue to charge a fee.

SETTLEMENT IN EMPLOYMENT CASE

July 18, 2017, we attended a mediation in a wrongful dismissal claim. The client had been replaced while convalescing from surgery. It was his position that he had told his employer before he left for the surgery that he required up to six months before his doctor would clear him to return to work. The employer made no note of that conversation and later, assumed he had told them he'd be gone for "three months". Because the client was getting physiotherapy in his homeland, he was not available to receive letters from his employer demanding to know where he was and why he hadn't returned to work yet. When the client notified the employer that he was ready to return to work after his stated six months he was told he had already been replaced without notice on the basis that he had abandoned his job of almost twenty years. The client sued for wrongful dismissal and the employer maintained their right to fire without notice on the basis of a breach of the employee's duty to let her employer know where she was, and how she could be reached, even if away for medical reasons. While the actual terms of the settlement must be kept confidential, it is our view that a fair settlement was achieved with the client receiving the equivalent in pay in lieu of notice we said he deserved. 

SCC DENIES HUMAN RIGHTS DISCRIMINATION CLAIM BY ADDICT

In the Recent case of Stewart v. Elk Valley Coal Corp. the Supreme Court of Canada ruled that the Alberta Human Rights Tribunal was entitled to dismiss a discrimination claim based on drug addiction. Mr. Stewart had been fired from his job for violating the company's zero-tolerance drug policy. He argued that he was being discriminated against because he was a cocaine addict. Although addiction is a recognized disability under Alberta human rights legislation, Stewart was fired because he tested positive for cocaine after an accident in the mine. The SCC majority cited safety as being the paramount consideration and that Stewart was rightfully terminated because his drug use at work created a safety hazard, not because he was an addict. In dissent Justice Gascon argued that a drug policy that automatically terminates employees who use drugs, prima facie discriminates against individuals burdened by drug dependence.

The sobering reality of drunk driving charges

Picture this scenario: You're a hard-working person. You make good choices in life and you have plenty to show for your prudence and diligence: a good home, a family and a career. Life is going great. Until suddenly, it isn't. You've been in a car accident.

The police are now saying it's your fault. Someone has been hurt, officers are asking questions, and before you know it, you're at a police station facing charges of impaired driving causing bodily harm. It may feel as if life is unravelling right before your eyes.

Crown Invites Acquittal In Assault Trial

Our client was charged with two counts of assault and one of threatening death. On Day 1 of the trial a "witness" to these events was shown to have very faulty memories of the events. The complainant testified and cross examination reserved to today. Upon cross examination, numerous inconsistencies were demonstrated and a clear picture emerged. Our client was merely defending himself against repeated assaults by the complainant. By the end of our cross examination there were significant problems with the Crown's case demonstrated. Our client then testified in a forthright fashion about what had occurred. Over lunch the Crown reassessed its case. Upon resuming before the trial judge the Crown invited the court to dismiss all charges against our client.

Advocacy in Mediation: Knowing when to fight and when to facilitate

We recently concluded a complicated case of civil litigation through mediation and settlement. Sometimes, that is the best way to end the drain on parties, stop the stream of spending on litigation costs and bring clients peace of mind in knowing they got what they needed and ended the dispute.
This article, written by a mediator, discusses some pitfalls that many lawyers fall into in mediations.

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