Canada’s online legal magazine.

Archive for ‘Case Comment’

Tony Merchant and the Missing Fee Agreement: Why All the Fuss?

In an article in the National Post last week, Justice Belobaba is described as having ‘scorched’ Merchant Law Group for its “profoundly unacceptable fee agreement” with its client, the class representative in McCallum-Boxe v. Sony. While there are many unsavoury and arguably unethical practices for which Merchant may be justly criticized, this fee arrangement does not merit the same level of excoriation.

The case involved a very small settlement in a class action against Sony. The judge approved the $8000 payment to the class, but was shocked to discover that class counsel had not required the class representatives to . . . [more]

Posted in: Case Comment

The Blurring of Music Copyright?

Last month I heard an excerpt from the Slate podcast Culture Gabfest presented as part of CBC’s Podcast Playlist. The excerpt was from the Culture Gabfest March podcast and the “gabbers,” along with “pop-chart columnist” Chris Molanphy, were discussing the “Blurred Lines” court case. It was something Molanphy said during the conversation that has been nagging at me ever since:

“… if something recaptures the atmosphere, or the vibe, or the feel of a record without actually duplicating its melody, its tempo, its syncopation, certainly its lyrics … that is now litigable, that’s kind of unprecedented.”


You . . . [more]

Posted in: Case Comment

Slow Aether in Ontario, Too

This being Friday the 13th, my alternative post-title was the name of the song you’ll find here and here; on the other hand, I am allergic to most cats, black or otherwise. What does that have to do with the problem in the decision I’m about to write about? Well … how about this? If we can’t blame the problem on “slow aether”, maybe it’s just bad luck. I mean, what else could it be?

Consider these paragraphs from Taylor v Great Gulf Group Limited, 2015 ONSC 6891 (CanLII) released on 9 Nov. 2015. Taylor is the . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Landlord Facing 305 Charges and 61 Outstanding Work Orders Fails to Convince Judge That Waterloo’s Rental Housing Licensing Program Is Unconstitutional

A residential landlord is $50,000 poorer after unsuccessfully challenging the constitutionality of the City of Waterloo’s Rental Housing Licensing Program.

In 2011 the City of Waterloo implemented By-law047 and a new comprehensive rental housing licensing program. The purpose was, among other things, to improve the health and safety of residential tenants.

The program requires most landlords of low-rise units to submit:

  1. A general inspection report from the electrical safety authority (every 5 years);
  2. An HVAC certificate (every 5 years);
  3. Proof of insurance (required annually);
  4. A criminal record check (every 5 years); and
  5. A floor plan for each unit.

Landlords are . . . [more]

Posted in: Case Comment

Jurisprudential Aether, Something in the Water, or Something in the Air?

When the Supreme Court of Canada says “X” in 2007, and repeats “X” in 2011 adding explicitly that “X does not mean Y but means Z”, it is reasonable to assume (is it not?) that, once word of what was said in 2007 and repeated in 2011 spreads through the Canadian “jurisprudential aether”, however long that takes, the judges of the lower courts in Canada will pay attention.

It’s always worth quoting this reminder about pecking orders in the Canadian judicial universe:

[51] Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary

. . . [more]
Posted in: Case Comment, Miscellaneous, Substantive Law, Substantive Law: Judicial Decisions

Amendments to Saskatchewan Essential Service Law

The Saskatchewan government has tabled amendments to Part VII of the province’s Employment Act in light of the Supreme Court of Canada’s January 30, 2015 decision, which struck down as unconstitutional an essential services law that prevents some public sector employees from striking. . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

Court Decision Expands Risks to Sellers Who Complete Seller Property Information Statements

The Ontario Superior Court has once again underscored how completing a seller property information statement (SPIS) can be a risky move for vendors.

When it comes to the purchase and sale of real estate the starting point for any analysis is “buyer beware”. For those looking to impress at cocktail parties the specific expression is “caveat emptor, quit ignorare non debuit quod jus alienum emit” which translates into “let the purchaser, who is not to be ignorant of the amount and nature of the interest, exercise proper caution”.

This general rule of buyer beware applies to defects that a . . . [more]

Posted in: Case Comment, Substantive Law

More Onerous Duty to Accommodate Workplace Injuries

A recent Quebec Court of Appeal decision will make it more onerous for employers to meet their duty to accommodate in the context of a workplace injury. The Court of Appeal found that an employer must seek suitable employment for an employee returning to work from an injury, offer reasonable accommodation to the employee to the point of undue hardship, and conduct an assessment to ensure the accommodation complies with the provisions of the Quebec Charter of Human Rights and Freedoms. . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

Appeal Judge Rips Trial Judge’s Conduct Towards Self-Represented Defendant

A Superior Court Judge has tossed out a Small Claims Court judgment for a long list of reasons which primarily involve the inappropriate manner in which the trial judge dealt with the self-represented defendant throughout the course of the trial.

The reasons for granting the appeal span 92 paragraphs. The conduct of the trial judge becomes increasingly unbelievable as the reasons unfold. The decision is worth a read in its entirety and the findings include the following:

The trial judge had not read any of the material before the trial;

The trial judge gave the defendant “two minutes” to explain . . . [more]

Posted in: Case Comment, Practice of Law

Government of Canada v. Face Coverings: A Debate on the Limits to Freedom of Religion

On September 16, 2015, the federal government decided to appeal to the Supreme Court of Canada the case of Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 194 (CanLII), in which the Federal Court of Appeal ruled that it was unlawful for the Canadian government to ban new citizens from reciting the citizenship oath with a face covering.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

When Are Witnesses Allowed to Testify via Video-Conference?

A recent Superior Court decision canvassed the existing law pertaining to permitting witnesses to testify via telephone or video as opposed to in person, and appears to have set out a template of the procedure by which such requests should be made and, if granted, carried out.

A few days before the commencement of trial, the defendants requested that five of their witnesses be permitted to testify via video-conference at the trial. Four of these witnesses live in the U.K. and the other witness lives in the United States. The plaintiff opposed the request which led to argument. The court . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Future of Practice, Technology

Ontario Court of Appeal to Consider Basic Land Titles Issues

A current appeal in CIBC v. Computershare raises basic questions under the Ontario Land Titles Act. It’s also the first time that the courts have dealt with the many 2006 changes to the Act.

In CIBC v. Computershare, owners had fraudulently caused a discharge of their first mortgage to be registered. The owners had continued their payments and so the lender didn’t know about the discharge. Later, the owners had taken a loan under a new registered first mortgage. Under the Act, the new first mortgage had priority. But the trial court mistakenly decided that the old first . . . [more]

Posted in: Case Comment