Canadian Lawyer

October 2019

The most widely read magazine for Canadian lawyers

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UPFRONT 6 WEST UPDATE NEWS BRIEFS B.C. family discrimination case rejected by SCC In Envirocon Environmental Services, ULC v. Suen, Brian Suen was given a two-and-a-half- month assignment at a company site in Manitoba. Suen refused on account of his newborn daughter and was fired for insubordination. He took the case to the B.C. Human Rights Tribunal, alleging family-status-based employment discrimination, earning favourable rulings there and in the Supreme Court, before the Court of Appeal found Suen did not satisfy the test for discrimination laid out in Health Sciences Association of B.C. v. Campbell River and North Island Transition Society. The SCC dismissed Suen's appeal. B.C. Court of Appeal clarifies when environmental assessments lapse The B.C. Court of Appeal found a proposed ski resort needs a second environmental assessment because not enough construction had been completed more than a decade after its first. The terms of the assessment — obtained in 2004 — required the project be "substantially started" within five years. In 2015, the B.C. environment minister decided the original assessment had expired and the company would need another one. Mitigating factors outside of the company's control prevented a timely process. In a split decision, the court deferred to the minister. CBA B.C. branch announces new president The Canadian Bar Association, B.C. Branch announces Kenneth Armstrong as its new president for the 2019-20 term. Armstrong is managing partner at Armstrong Naish Trial Lawyers, in New Westminster, B.C. Armstrong says he will make the province's underfunded legal aid system central to his mission in his new role. Short-changing legal aid leads to greater costs borne by the courts, as cases take longer to conclude, he said in a CBA B.C. press release. Unsettled in the halls of justice, these issues leak into the communities and become a burden on social services and the health-care system, Armstrong said. Vancouver- based company apologizes to Guatemalan protestors shot by mine security A recently concluded lawsuit against a mining company shows that Canadian companies can face legal action in Canada for the actions of their subsidiaries in other jurisdictions. On July 30, Pan American Silver Corp. announced it had settled out of court with and apologized to four men who were shot while protesting near a silver mine — then owned by Tahoe resources — in 2013. The plaintiffs brought a civil suit against Tahoe in the B.C. Supreme Court in 2014. This February, Pan American acquired Tahoe. Tahoe argued that Guatemala was the appropriate venue, but the B.C. Court of Appeal ruled that Canadian courts can take jurisdiction when there's a reasonable prospect of an unfair trial in a foreign court. $1.47-billion settlement in Day School Class Action The Federal Court approved a class action settlement for those who attended Federal Indian Day Schools and Federal Day Schools. Class members will receive between $10,000 and $200,000 based on the extent of the harm they experienced. A $200-million legacy fund will go toward projects to commemorate the experience of school attendees and further health and wellness, language and cultural production in Indigenous communities. B.C. articling student fired, sues Acumen Law and wins Crown Liability and Proceedings Act could impact class actions and create 'insurmountable' access to justice issues IN A case that has caused a stir in the B.C. legal community, a B.C. Supreme Court judge has ruled that a local criminal firm fired an arti- cling student without just cause and engaged in "bullying" against the student. Acumen Law Corporation's Paul Doroshenko spoke with Canadian Lawyer and, though he did not comment on the ruling directly, he said he's had 18 articling students during his firm's existence and never had a problem before. "I had one student with whom I worked for three months that ended in this difficult litiga- tion," says Doroshenko, whose firm specializes in driving-related offences. On Aug. 13, B.C. Supreme Court Justice Geoffrey Gomery dismissed Doroshenko's and Acumen's claim against former articling student Melissa Ojanen for breach of contract, theft, trespassing and wrongful use of Acumen marketing materials and awarded Ojanen $68,944 in damages for wrongful dismissal. In 2016, Ojanen spent four months as an articling student at Acumen before she was let go. Doroshenko and Acumen sued Ojanen, claiming she was using stolen files to create a driving-law blog to compete with the firm for clients.

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