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Archive for ‘Case Comment’

Of Prima Facie Discrimination and Humanizing the Street Homeless

The long-dead brains of history are still quite handy when you need to brandish something with rhetorical flourish—Plato, Aristotle, Shakespeare, Milton, Locke, Adam Smith, John Stuart Mill are some obvious choices. But it’s rare that a quote at the head of a judgement is as good as what BC Supreme Court Justice Sharma gave us this past Friday in Vancouver Area Network of Drug Users v. British Columbia Human Rights Tribunal. Here’s how the reasons begin:

“Near the end of the 19th Century, the poet, author and Nobel laureate Antole France composed this oft-cited saying: ‘[t]he law in its

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

Court Confirms Homeowners Lose Warranty Rights Upon Sale of House

A panel of three Divisional Court Judges have affirmed that when a homeowner sells their home, they lose their standing to maintain a Tarion warranty claim under the Ontario New Home Warranties Plan Act (the “Act”).

Ms. Blair took possession of her new condominium townhome in February, 2010. Thereafter she made a complaint to Tarion about insufficient heating in the home. Ultimately, Tarion ordered that duct modification work was required in all nine townhouse units in the complex.

Ms. Blair installed a gas fireplace in her home without Tarion’s approval (to address the heating issue) and claimed compensation for the . . . [more]

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

G20 Decision by Ontario Court of Appeal Illustrates the Power of Video

Many Canadian cities are debating the use of body cameras by police and the privacy impacts involved. The Toronto police have started a pilot project.

A recent decision of the Ontario Court of Appeal relating to the G20 protests illustrates the power of video: six paragraphs of the Court’s decision describe a YouTube video (which appears to be here). The Court noted the video had been viewed more than 100,000 times and was viewed by the application judge and by the panel of the Court of Appeal. The Court concluded that police violated the right to travel unimpeded . . . [more]

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

Moonlighting Created a Serious Conflict of Interest

A Canada Revenue Agency employee’s moonlighting activities constituted a serious conflict of interest and, along with his subsequent insubordination, gave the employer sufficient cause to terminate the employee, the Public Service Labour Relations and Employment Board recently confirmed in Cavanagh v Canada Revenue Agency. . . . [more]

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

Agent Out $7,000 Due to Verbal Agreement

A recent decision from Ontario’s Divisional Court serves as another reminder for real estate agents to get their Buyer Representation Agreements in writing. In this case, it cost the buyer’s alleged agent $7,192.50 in commission.

The transaction related to a shopping plaza which included a gas station and convenience store. The property was listed by Remax.

An agent for Realty Canada Inc. (“Realty”) had placed an advertisement about the plaza in the Business Exchange magazine. As a result of the advertisement, the agent received a telephone call from a potentially interested buyer. This potential buyer visited the plaza and made . . . [more]

Posted in: Case Comment

Employer Harassed, Stalked and Threatened Employee Because of Sexual Orientation

In Graham v Shear Logic Hairstyling, an employee was awarded $11,400 representing general damages for denigration of her dignity and self-respect, and for psychological and emotional harm she experienced due to discrimination in employment on the grounds of sex and sexual orientation, in addition to sexual harassment. . . . [more]

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

Supreme Court Confirms Right to Strike Constitutionally Protected

For some, this decision took a long time to arrive.

The Supreme Court of Canada in Saskatchewan Federation of Labour v Saskatchewan confirmed once and for all that the right to strike is protected under the Canadian Charter of Rights and Freedoms. This landmark decision strikes down Saskatchewan’s essential services legislation, which prevented a wide range of public sector employees from striking. This decision does not conclude that all essential services legislation that imposes limits on strike action will be unconstitutional; however, it will have an impact on the future of labour relations across Canada. . . . [more]

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

Placing Privacy Over Practicality

Drawing the line between privacy and practicality is not always easy, even for the Justices of the Court of Appeal, who divided narrowly on the issue.

Just before Christmas the Ontario Court of Appeal released a split, 3-2, decision in a case that pitted the privacy rights of judgment debtors against the execution rights of judgment creditors.

The Royal Bank of Canada (“RBC”) had obtained a judgment of just over $26,000 against the defendants. The defendants owned a residential property that RBC wished to have the Sheriff seize and sell so that the bank could collect on its judgment. Since . . . [more]

Posted in: Case Comment, Practice of Law

Does Including a Forwarding Feature to Defamation Amount to Republication?

The Supreme Court of Canada in Crookes v Newton held that the mere linking to a web site that contained defamatory material did not make the linker liable for defamation. Adding content to the link might change that result.

The Supreme Court of British Columbia has recently held, however, that offering a link to an email program (e.g. ‘mailto:’) on a web page that contains defamatory material constitutes republication of that material, apparently whether or not anyone used it.

Weaver v Corcoran 2015 BCSC 165 (CanLII)

Here is the main passage on that point:

[261] The invitation to email the

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

Supreme Court Declines to Enshrine the Independence of the Bar as a Principle of Fundamental Justice

This morning in Federation of Law Societies of Canada v. Canada (Attorney General), the Supreme Court of Canada upheld (with minor adjustments) the decision of the British Columbia Court of Appeal and Canada’s Proceeds of Crime (Money Laundering) and Terrorist Financing Act, was held defective since it did not adequately protect solicitor-client privilege in its search procedures. Parliament will have to significantly revise the scheme to add more safeguards.

A narrow set of professional duties was held to meet the principle of fundamental justice test, established in the Malmo-Levine test: R. v. Malmo-Levine; R. v. Caine: . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Age Limit for Loss of Earnings Benefits Doesn’t Violate Charter

The Workplace Safety and Insurance Act’s age cut-off for loss of earnings benefits does not violate the Canadian Charter of Rights and Freedoms, Ontario’s Divisional Court decided in Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

Plaintiff Awarded $13,000 Judgment and $90,000 in Costs

There are provisions in the Rules of Civil Procedure which provide that if a plaintiff brings a lawsuit in Superior Court and recovers an amount that is within the monetary jurisdiction of the Small Claims Court ($25,000), it is open to the court to order that the plaintiff shall not recover any of its legal costs of the lawsuit.

The rationale behind these provisions is straightforward. If a litigant fails to recover more than $25,000, then its claim ought to have been brought in the Small Claims Court which provides for a more streamlined, less expensive, procedure. A plaintiff, theoretically, . . . [more]

Posted in: Case Comment, Substantive Law