Manifestly frivolous test, wrongful dismissal claim dismissed, and health records access unconstitutional
This week on Legally Speaking with Michael Mulligan:
The Supreme Court of Canada has created a new, very high hurdle for a judge to dismiss applications in criminal cases summarily without allowing the party making the application to call evidence.
The case that gave rise to the issue involved an application for a stay of proceedings brought by two men found guilty of six murder charges. The trial judge refused to hear an application for the stay of proceedings based on several allegations, including sexual activity between police and witnesses, long-term solitary confinement waiting for trial, and the handling of informant information.
The Supreme Court of Canada found that the judge should have permitted the accused to make the application and that judges can only refuse to hear such applications when they are “manifestly frivolous.”
The term “frivolous” is intended to allow applications that will necessarily fail to be dismissed without hearing them, and that “manifestly” captures the idea that the frivolous nature of the application must be obvious.
The Supreme Court of Canada recognized that an undue amount of court time is often spent determining whether an application should be permitted and that this isn’t appropriate. When determining if an application is manifestly frivolous, a judge must assume that everything alleged occurred and that the most favourable inference from the alleged circumstances would be drawn.
Also, on the show, a claim for wrongful dismissal brought by a manager of a used car dealership is dismissed.
The manager, who was paid more than $25,000 per month, submitted two meal receipts for a total of approximately $250, claiming that they were for meals with other employees when they were, in fact, personal expenses. Despite being given two opportunities to come clean about what he had done, the manager did not. The business owner fired him, indicating that she had lost trust in the manager.
While an employer can fire a non-unionized employee at any time, for any reason, if they do not have cause to do so, they can be required to provide either notice of the dismissal or payment instead of notice.
In this case, the fired manager sued, claiming he was fired without sufficient cause.
The judge hearing the case disagreed. They concluded that lying about the meal receipts and then refusing to acknowledge what he had done when confronted about them did constitute grounds for being fired.
Finally, on the show, the BC Court of Appeal has ruled that the provisions of the Child, Family and Community Service Act that permit social workers unlimited access to private medical records, without a warrant, when dealing with child protection cases are unconstitutional.
The BCCA found that there is a high expectation of privacy in medical records and that allowing social workers to access them to look for things such as treatment a parent might have received for mental health or substance abuse issues was not constitutionally permissible.
The BCCA has allowed the government one year to amend the provisions in question to add adequate procedural safeguards to the provisions in question.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. It’s also available on Apple Podcasts or wherever you get your podcasts.