Is that standard?
The skinny on standard contracts. Plus an intervention crackdown, vegan discrimination, and all the latest legal news.
Dylan Gibbs
February 19, 2025
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PRESENTED BY |  |
A few people have asked me about this newsletter’s criminal law coverage. I typically only cover criminal cases decided by the Supreme Court of Canada and the occasional appeal decision. But with enough interest, there might be room for a sister publication with a broader criminal law focus.
If criminal law is your thing:
How about Hearsay criminal? |
— Dylan Gibbs
TODAY'S DOCKET |
Tim Hortons remains a crowd pleaser
Justice Stratas remains vocal
Vegans remain underwhelmed
Search rankings
DOGE envy
Pay raises
STAYING CURRENT 🗞️
Timmies triumphs over alleged wage suppression
Latifi v. The TDL Group, 2025 BCCA 45
The BC Court of Appeal sided with Tim Hortons, dismissing a proposed class action that alleged the coffee giant conspired with franchise owners to harm employees.
A clause in the company’s franchise agreements prevented franchise owners from hiring each other’s workers. Employees argued that the restriction kept their wages low by preventing them from hopping around.
After a good recap on the tort of predominant purpose conspiracy, the Court of Appeal upheld the chambers judge’s ruling. According to the chambers judge, Tim’s drafted the no-hire clause to protect the money franchise owners spent on training employees — not to harm workers. And that was enough to shut the lawsuit down.
[W]age suppression may have been the effect of the No‑Hire Clause but it was not TDL’s intent. The judge accepted Mr. Gregoire’s evidence that there was a valid business purpose to the policy: protection of the investment in employee training.
Mind your interventions
Canada v. DAC Investment Holdings, 2025 FCA 37
A would-be intervener tried to raise a new issue in a Federal Court of Appeal case, leaving Justice Stratas with plenty to say about appropriate interventions.
[A] proposed intervener’s submissions must be useful. And not just useful in an abstract sense. They must be useful to “the determination of a factual or legal issue related to the proceeding”.
This is a classic case of a proposed intervention that, if allowed, will commandeer the parties’ case.
And he didn’t stop there, throwing some not-so-subtle shade at the Supreme Court of Canada:
It’s up to [other courts] whether they choose to enforce the limits in rules and practice directions. It’s up to them whether they want to admit so many interveners that their hearings take on the appearance of a roving commission of inquiry. It’s up to them whether they want to admit many on only one side of the courtroom and create the appearance of a court-sanctioned gang-up against the other side. The approaches of other courts to intervention, no matter how senior they may be in the judicial hierarchy, are irrelevant to this Court.
It sounds like Justice Stratas still thinks there’s room for improvement — even with the SCC’s stricter approach to interventions.
3. Vegan discrimination continues (for now)
Knauff v. HRTO, 2025 ONSC 786
Ontario’s Divisional Court refused to decide whether ethical veganism is a “creed” shielded from discrimination. A worker alleging dietary discrimination tried to raise the issue in a judicial review application, but the Court said the application was moot. That leaves the tribunal’s ruling in place as the last word:
[O]n the evidence presented, ethical veganism does not address the existence or non-existence of a Creator and/or a higher or different order of existence, as required by [the test for a creed]. Accordingly, I find that ethical veganism does not constitute a creed within the meaning of [Ontario’s Human Rights Code].
There’s also a practice lesson here. The dispute was moot because the complainant settled the human rights complaint with their former employer. The parties agreed in the settlement that they could still go to court and get a ruling on the veganism issue. But courts decide whether to hear moot cases — not the parties.
While the right to seek judicial review was explicitly preserved in the Minutes of Settlement, it is open to the court before whom judicial review is sought to decide whether to exercise its discretion to grant relief.
SPOTLIGHT 🔦
Putting the standard in standard form
Saskatchewan Indian Gaming Authority Inc. v Pasap, 2025 SKCA 15
This recent Saskatchewan case is a great reminder that wrongful dismissal can be expensive. $1.2M expensive. But it’s also worth reading if you like more esoteric questions — like what makes a standard form contract “standard”?
What happened: The Saskatchewan Indian Gaming Authority (SIGA) wrongfully dismissed Chadwick Pasap. According to the trial judge, SIGA owed him 8 months’ notice. They didn’t give him any.
Here’s where things got tricky: Pasap suffered a major health incident four months after he was fired. Since it happened within the notice period, the Court had to decide whether SIGA was on the hook for long-term disability payments.
The trial judge sided with Pasap. SIGA appealed.
On appeal: The Court split over whether Pasap was “totally disabled” as defined in SIGA’s benefits policy. The split mostly came from Justice Barrington-Foote’s willingness to overturn the trial judge’s factual findings — which isn’t very interesting beyond this case.
What is interesting is the standard of review discussion. If the “totally disabled” language came from a standard form contract, the judges could start from scratch and decide the correct interpretation (as the SCC said in Ledcor). If not, they had to defer to the trial judge’s interpretation (as the SCC said in Sattva).
Standard form employment: Is a contract “standard form” simply because an employer uses the same agreement for multiple employees? You might expect to have a clear answer on that — since Ledcor is almost 10 years old. But the law is still murky.
Both the Supreme Court of Canada and the Ontario Court of Appeal left the issue open for future cases. And the Saskatchewan Court of Appeal majority also gave a non-answer, continuing the trend.
[The question] is whether a contract used by one employer to provide disability benefits to its employees has sufficient precedential value to attract a correctness standard of review.
Given the paucity of the evidentiary record… this is not the case in which to answer that question.
But Justice Barrington-Foote didn’t have the same hesitation in his dissent. He said employment agreements used across an organization are standard form and need to be interpreted correctly on appeal.
[T]he question is not whether the [contract has terms] that differ from the terms of other [insurance contracts]. It is whether the terms are the same for each employee of SIGA… Just as the potential for multiple uses of the same language by the same parties may constitute the repeated use that creates the necessary precedential value, the same can be true of the multiple different uses of the same language by one employer and many of its employees in this way.
Big picture: For anyone trying to flip the interpretation of an employment agreement on appeal, you might want to keep Justice Barrington-Foote’s dissent in your back pocket. Looking for a more definitive answer? Let’s just hope the SCC lives up to Chief Justice Wagner’s aspirational goal of hearing more private law cases.
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BY THE NUMBERS 📊
10 years: The sentence the Crown wanted for Pat King, who was convicted for his leadership role in the Ottawa convoy protest. That’s a far cry from the three-month conditional sentence (house arrest) Justice Charles Hackland actually imposed. After accounting for time served, King’s effective sentence is around 10.5 months — not years. But please, for the sake of us Ottawans, don’t let that give you any ideas.
$2.03: Manitoba’s legally-mandated maximum price for a litre of 2% milk. According to CBC, Walmart recently priced containers at $2.88. Tsk tsk.
57%: The salary bump given to the Law Society of Ontario’s CEO, bringing her total compensation to $936,000. If only someone had asked the benchers in advance. The Law Society’s former Treasurer negotiated the raise, but no one presented it to the governing board for a vote — which at the very least is bad optics. The raise looks to some like a shady backroom deal. Former associate chief justice Dennis O’Connor is doing an independent review to figure out what happened.
MAKING HEADLINES 🗞️
🙅 Perhaps jealous of the Musk-led DOGE, the Nova Scotia government tabled a bill that would give it the power to fire the province’s Auditor General. Auditor General Kim Adair says it would stop her from doing her job.
📖 B’nai Brith Canada says the federal government needs to release the list of alleged Nazis who settled in Canada. Library and Archives Canada refused the organization’s access to information request — a decision B’nai Brith is now challenging in the Federal Court.
🦾 The Competition Bureau confirmed that it’s investigating whether landlords are using artificial intelligence to set rent prices.
🪧 Quebec tabled a bill to crack down on striking workers, letting the government end certain strikes to keep services running. Quebec Labour Minister Jean Boulet said he was inspired by the federal government terminating multiple strikes over the past year (which the feds still need to defend in court).
THINGS NOT TO DO 😤
Don’t use generic AI programs like ChatGPT and Copilot for accurate research. I know — it’s beating a dead horse at this point. But as long as people keep using AI improperly, it’s worth noting the cautionary tales.
A BC couple found out the hard way after using Microsoft’s Copilot to draft submissions in a condo dispute. BC’s Civil Resolution Tribunal said the 10 cases the couple cited appeared to be hallucinations.
It didn’t take much detective work. The couple labeled the cases “Conversation with Copilot”. None had proper citations. And it turns out the law is exactly the opposite of what Copilot presented.
The couple somewhat learned their lesson. They haven’t sworn off using AI for research, but they’ve at least vowed not to use it for serious things — like the law.
OBITER DICTA
when the trial attorney loses and submits the file to the appellate attorney
— Waqar Vick Rehman (@WaqarVick)
1:35 AM • Feb 17, 2025
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