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Archive for August, 2017

Judicial Dialogue With the Masses via Social Media

In 1997, Peter Hogg responded to criticisms of judicial activism in the post-Charter era by suggesting that the legislature is instead involved in a flexible and dynamic relationship with the courts over Charter rights. He explained this concept, often referred to as the “dialogue principle,” in the Osgoode Hall Law Journal,

Where a judicial decision is open to legislative reversal, modification, or avoidance, then it is meaningful to regard the relationship between the Court and the competent legislative body as a dialogue. In that case, the judicial decision causes a public debate in which Charter values play a more

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Posted in: Justice Issues

Summaries Sunday: SOQUIJ

Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.

TRAVAIL : Le Règlement modifiant le Règlement sur certaines conditions de travail applicables aux cadres des agences et des établissements de santé et de services sociaux, édicté par un arrêté ministériel en date du 23 mars 2015, a été adopté en violation de l’article 2 d) de la Charte . . . [more]

Posted in: Summaries Sunday

Two Tales From Alberta

1. Be careful what you ask for…

“Maybe it’s opposite day! Maybe all these X’s mean that my answers are correct! Maybe your “A” is really an “F”! That must be it! I win the bet!”

– Calvin, Calvin & Hobbes

To me, the suggestion that the topic of the Standard of Review is the great Canadian passion, at least for practitioners of administrative law, is firmly tongue in cheek. While I have acknowledged that the standard of review is at the heart of judicial review, there is so much more to administrative law. I would suggest that . . . [more]

Posted in: Administrative Law

Company That Released Result of Employee’s Drug Test Contravened Privacy Law

Written by Cristina Lavecchia, Editor, First Reference Inc.

An employee working for a an international trucking company that is considered a federally regulated employer alleged that while his accident claim was active with a provincial workers’ compensation board (WCB), his employer informed the WCB, without his knowledge and consent, that he had tested positive in a drug test.

According to the employer, they were required to disclose this information by law. However, the WCB and the Office of the Privacy Commissioner of Canada both affirmed that the circumstances in this case did not require the employer to make such a . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

How Far Are Lawyers From Drafting Smart Contracts?

I wrote in my last post that the “blockchain will alter the way we think about contracts and several types of legal documents will effectively be software-like.” This is a truism for many cryptocurrency enthusiasts.

Of course, I was referring to “smart contracts” even if I didn’t used the expression “smart contracts” for buzzword avoidance purposes. I suggested that some lawyers would be involved in drafting these “instruments”.

Before we start, there’s some confusion about what a “smart contract” actually means, and it’s at the root of a certain amount of similar confusion in the legal sphere about the immediate . . . [more]

Posted in: Legal Technology

Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41

[1] In this appeal and in its companion, Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, this Court must consider the Crown’s duty to consult with Indigenous peoples prior to an independent regulatory agency’s approval of a project that could impact their rights. As we . . . [more]

Posted in: Wednesday: What's Hot on CanLII

Get SMART About Setting Marketing Goals

New clients will often ask me: “What do you need from us?” I do an intake interview to learn about their practice groups, their clients, and their current profitability. Then I ask them for their marketing goal.

Before the relieved look of “That’s it? That’s all it’s going to take?” leaves their faces, I hasten to tell them that they must thrash out a SMART goal. That’s Specific, Measurable, Achievable, Relevant, and Timely. It’s anything but easy, yet without it, most firms’ marketing initiatives will degenerate into unfocussed, ad hoc, pet projects that don’t . . . [more]

Posted in: Legal Marketing

Toronto Transit Commission Awarded Costs Despite Lack of Time Dockets

A trial judge has awarded the Toronto Transit Commission (“TTC”) costs after the completion of a four day trial, despite the fact that the TTC used one of its in-house lawyers to argue the case and despite the fact that the TTC lawyers do not maintain time dockets.

The TTC’s Bill of Costs included estimates of time expended for tasks performed during the course of the litigation. The estimates were based on a “detailed review of the complete file including all correspondence, records, internal notes, memos, emails, etc.” The TTC then applied an hourly charge of $240 to its estimate . . . [more]

Posted in: Case Comment

ODR for NAFTA

Back in June of this year, the Cyberjustice Laboratory played host to the NAFTA Advisory Committee on Private Commercial Disputes, commonly referred to as the NAFTA 2022 committee since its creation stems from article 2022 of the agreement:

  1. Each Party shall, to the maximum extent possible, encourage and facilitate the use of arbitration and other means of alternative dispute resolution for the settlement of international commercial disputes between private parties in the free trade area.
  2. To this end, each Party shall provide appropriate procedures to ensure observance of agreements to arbitrate and for the recognition and enforcement of arbitral
. . . [more]
Posted in: Dispute Resolution