September, 2017 Archives – Slaw
Canada’s online legal magazine.

Archive for September, 2017

Perceptions Matter, but Reality Matters More

Judges are not immune from scrutiny, but we should be cautious in the manner in which we exert that scrutiny.

Sometimes that scrutiny is thrust directly into the public forum, as with Justice Zabel’s incident on Nov. 9, 2016, when he wore a hat from the American president’s election campaign.

Lawyers were upset, understandably, as there were legitimate concerns about political partisanship generally, but also about the appearance of bias towards any of the historically marginalized or radicalized groups that the presidential candidate had made offensive comments about. The public were even more concerned, especially where a Canadian judge appeared . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

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.

PÉNAL (DROIT)Les déclarations de culpabilité des appelants, impliqués dans un réseau ayant écoulé des millions de cigarettes de contrebande en Nouvelle-Écosse, commettant ainsi une fraude de plusieurs millions de dollars en taxes impayées à l’encontre des gouvernements du Canada et de la Nouvelle-Écosse, sont confirmées.

Intitulé : O’Reilly c. R., . . . [more]

Posted in: Summaries Sunday

“Chain Migration” and the Importance of Language

The most recent controversy stemming from the Twitter account of the-president-who-shall-not-be-named related to “chain migration”. This refers to immigrants who seek to gain points or favour with the destination country based on their personal connections to people residing or connected to that country. The idea is that the citizens or residents are creating a “chain” to help bring members of their personal networks to the country and thereby circumvent or undermine the application process. In Canada, we would call this “family reunification” and it is explicitly stated as one of the Objectives within immigration law.

Subsection 3(1)(d) of the Immigration . . . [more]

Posted in: Justice Issues, Miscellaneous

SEC Weighs in on Initial Coin Offerings

As of August 2017, Initial Coin Offerings (ICOs) – a means of raising funds for a new cryptocurrency venture, whereby units of the new cryptocurrency are sold to early backers of the project in exchange for legal tender or other cryptocurrencies – were said to have collectively raised over $1.2 billion, surpassing early stage venture capital funding for internet companies. The value and nature of these transactions have, unsurprisingly, drawn the attention of regulators worldwide including a total ban on ICOs from the People’s Bank of China. On July 25, 2017, in response to criticism and concerns surrounding ICOs, . . . [more]

Posted in: Legal Technology

Tribunal Addresses Disabled Employee Resignations

In addition to affirming that an employee’s resignation must be clear and unequivocal to be valid, this case tells us that employers do not have a greater onus when it comes to long-term disabled employees who resign. The British Columbia Human Rights Tribunal did not accept the employee’s claim that it was unreasonable in the circumstances for her employer to conclude that she wished to resign without further inquiry. . . . [more]

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

Seatbelts On

My last column was about Kenya. So is this one. For me, Kenya is currently one of the most interesting countries to follow if you are interested in rule of law development and justice innovation.

“I had just started my working day when I got a call from my sister. She had been taken to the police station or her way to work. The matatu bus on which she was traveling had been stopped and checked for seat belts. The passengers not wearing them where taken. I rushed to where she was but was too late; she had already been . . . [more]

Posted in: Practice of Law

The Authentic Lawyer?

There’s a bit of buzz in Winnipeg this week about the International Downtown Association’s 63rd annual conference taking place here. The theme of the conference is Authenticity, which seems apt in these days of fake news and fake nudes.

Living authentically is an ideal espoused by many authors and speakers in the self-improvement sector, whether that path to authenticity is found through meditation, spiritual transformation or some other means. The general idea is simply that an individual aspires to and works toward being the best possible version of themselves, with their interior self in alignment with their exterior . . . [more]

Posted in: Education & Training, Education & Training: Law Schools, Practice of Law

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. Vaillancourt v Carter, 2017 ABCA 282

[26] It is apparent on the evidence before me that Mr. Carter has gone to elaborate lengths to shield his investments and arrange his affairs to appear as though he does not have the financial means to satisfy the judgment against him or to comply with a security for judgment order. A holding company, aptly . . . [more]

Posted in: Wednesday: What's Hot on CanLII

Access to Justice Through Community

Recent reports have underscored that access to justice is everyone’s problem yet the issue fails to resonate with the public – they indicate low confidence and a sense of alienation. In response, many justice sector organizations are looking at different ways to enhance public engagement. The logic being that a better link with the public will inform more meaningful and innovative solutions to access to justice challenges. This approach puts the user at the centre and considers how justice services can be sensitive to lived experience and community-specific needs.

Community Justice Centres (CJCs) are among the most user and community . . . [more]

Posted in: Justice Issues

Less Is More? Digital Expression in the Digital Age

Should judges only speak through their judgments? Does silence truly enhance the public’s perception of the judiciary?

In “Revisiting the Limits on Judicial Expression in the Digital Age: Striving Towards Proportionally in the Cyberintimidation Context” Karen Eltis and Yigal Mersel explore these issues. Despite the various arguments against expression, they argue that the digital age demands that we question the belief that judicial silence is always best.

They write that “judges have a duty to speak out to protect judicial institutions as the guardians of democracy… to safeguard the rule of law … Recommending unconditional silence, erroneously assumes . . . [more]

Posted in: Technology

Ontario Court Approves $31.2 Million in Legal Fees for Class-Action Counsel

An Ontario Superior Court judge has approved the payment of $31.2 million in class counsel’s legal fees in the Volkswagen “dieselgate” class action.

The legal fees comprise $26 million in fees, just under $1 million in disbursements and taxes of approximately $3.5 million.

The Canadian class action itself settled with the defendants agreeing to pay the class $2.1 billion. The U.S. class action settled for just over $10 billion.

It is noteworthy that the amount of legal fees agreed upon in the Canadian class action was over and above the amount of the $2.1 billion settlement. In other words, the . . . [more]

Posted in: Case Comment

Prohibiting Access to Social Media: Reasonable Limits?

From time to time one reads of court orders banning people from using social media, usually in anticipation of trial but sometimes as part of a formal disposition.

For example, in R. v. Elliott, the defendant accused of harassment on Twitter was banned from using Twitter pending trial. Ultimately he was acquitted, and the ban was lifted. He had spent three years off Twitter.

A Nova Scotia court banned a teenaged defendant from social media for 21 months after his conviction for assault, uttering threat and criminal harassment. He was ordered to delete his Facebook, Twitter and Instagram accounts . . . [more]

Posted in: Legal Technology