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Archive for ‘Case Comment’

The Thrill Is Gone: Sardonicism ‘R Us, Part Un

This post contains some parting, case-specific, comments on Canadian common law judicial reasoning for interested Canadian lawyers (or those interested for other reasons) to ponder, related to a few Canadian reasons for judgment delivered late in 2016.

It’s not my job or real concern any more, unless it’s at a friend’s request or for other good reason. Whether it ought to remain any part of my concern is something I don’t plan to ponder very much in 2017. If I do, though, it’ll be only after I’ve had much Macallan 25, or the equivalent, at somebody else’s expense and as . . . [more]

Posted in: Case Comment, Justice Issues, Miscellaneous, Substantive Law

A Card Cannot Be Electronic: R v Albert 2016 NBQB 154

New Brunswick drivers are required by the Motor Vehicle Act to carry with them or in their vehicle a card issued by their insurer in a form approved by the government. A motorist who was asked for the card produced an image of a genuine card on her mobile phone. The New Brunswick Court of Queen’s Bench recently held that the image was not good enough. R v Albert, 2016 NBQB 154.

The Decision

At a first trial before a provincial court judge, the court held that the phone display satisfied the demand to show the “card”.

The Crown . . . [more]

Posted in: Case Comment, Legal Technology

Employee Did Not Have Right to Delay Work Refusal Investigation

Written by Cristina Lavecchia, Editor, First Reference

The Ontario Labour Relations Board (OLRB) recently dismissed an application where an employee claimed that her employer threatened her with discipline for exercising her right to refuse unsafe work. Why? The employee did not have the right to delay the employer’s investigation of her work refusal, to wait until her preferred union representative completed a personal matter and attended at the workplace. . . . [more]

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

Tenant Lives Rent Free for 18 Months After Consenting to Order to Vacate Unit

In what very well might be a record for living rent free, a recent case illustrates how a tenant was able to live rent-free for over 18 months despite agreeing to an Order requiring him to vacate the unit.

The tenant stopped paying rent as of April 1, 2015. The landlord took steps to evict and on June 25, 2015, the landlord agreed to waive all rent arrears and fees owing by the tenant to the landlord up to June 30, 2015 in exchange for the tenant agreeing to an Order ending his tenancy and evicting him for non-payment of . . . [more]

Posted in: Case Comment

Counsels’ Duty to the Court and Role in the Proper Administration of Justice

Two recent SCJ decisions are, in my view, examples of counsel failing in different aspects of their duty to the court and, as such impeding, or at least not assisting, the judge in the proper administration of justice.

Others (who are practising lawyers, I suspect) may have different views on whether the counsel involved in these cases did anything they ought not to have done or did not do something they ought to have done. If you do, perhaps you should take a few moments to consider why you you disagree and respond.

I am not going to discuss the . . . [more]

Posted in: Case Comment, Justice Issues

OHRT Challenges Infamous Family Status Test

Written by Cristina Lavecchia, paralegal, Editor, First Reference

In a recent decision (Misetich v. Value Village Stores Inc.), the Human Rights Tribunal of Ontario (the Tribunal) questioned the value of various past case laws that have introduced and applied different tests for family status discrimination, including the Johnstone test. More specifically, the Tribunal disapproved of the existence of distinct “tests” for establishing family status discrimination. . . . [more]

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

Court Sets Aside Judgment Obtained at Uncontested Trial

In a rather unusual case, an Ontario Superior Court judge has set aside a default judgment that was obtained at an uncontested trial where the defendant intentionally decided not to show up.

In September, 2015 the lawsuit was set down for trial for the week of April 18, 2016. In the first week of March, 2016, the defendant’s lawyer informed her that they would not represent her at trial and the defendant signed a Notice of Intention to Act in Person shortly thereafter.

The defendant tried to obtain new counsel without success from March 4 to March 18. She then . . . [more]

Posted in: Case Comment

Standard of Review: The Great Passion of Canadian Law?

The great passion of Canadian law is standard of review. Judging by last week’s 5:4 decision in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, we can’t get enough litigation and case law on the subject.

First, a note about the style of cause, which is determined by the vagaries of court practices. The order of the parties should really be reversed, because it was Edmonton East (Capilano) Shopping Centres Ltd. (the “Company”) that started the case by filing a complaint with the Assessment Review Board (the “Board”) for the City of Edmonton (the . . . [more]

Posted in: Case Comment

A Sentence to Go “Home”

The bar has often lamented the lack of “plain language” by the bench, a necessary prerequisite for transparency and open access to the public.

At times, the need for this approach has been criticized as overlooking the needs of the parties. Sometimes, like in the Meads case, this approach is intended to address broader, systemic problems. As I told Canadian Lawyer Magazine a few years ago,

“I think the fact that the judge even made this ruling suggests how big a problem it is,” says Toronto lawyer Omar Ha-Redeye. “This is a hot issue. Family law is in crisis

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

Update: Brexit Score – End of Second Period: Henry VIII 2 Henry II 1

Or, Ms May may not and must not; at least, not yet.

(For readers outside of the (ice) hockey world, substitute “end of first half”.)

The UK QB ruled unanimously (3-0) this fine English morning that the Tory gov’t cannot use the Crown’s prerogative to initiate the UK’s withdrawal from the EU. The decision to withdraw or not – the decision whether to give notice under the applicable EU treaty – is for Parliament to make, not the party in power in Parliament; aka the “gov’t” or the Crown.

[111] for the reasons we have set out, we hold the

. . . [more]
Posted in: Case Comment, Justice Issues, Miscellaneous, Substantive Law, Substantive Law: Foreign Law

Tenants Not Liable for Prospective Rent When Lease Terminated Early

A recent Ontario Divisional Court decision has sought to clarify conflicting decisions and provide guidance as to the obligations of tenants when their landlords terminate their lease early.

In the case at issue the landlord received a number of noise complaints from neighbours about the tenant in question.

The landlord served a Notice to Terminate a Tenancy Early (Form N5) on the tenant. The Notice followed the standard N5 format and provided:

(a) that the tenant must move out before January 31, 2015;

(b) that the tenant had substantially interfered with the reasonable enjoyment of the residential complex by the . . . [more]

Posted in: Case Comment

Trumped, for Now

It’s small, in light of his other issues, but Donald Trump is once again embroiled in litigation, albeit outside of the United States, which may result in findings against him of at least negligent misrepresentation sufficient to produce personal liability: see Singh v Trump et al, 2016 ONCA 747 (CanLII), <http://canlii.ca/t/gv3z7>. 

The action had been dismissed, completely, on a summary judgment motion. The Ontario Court of Appeal, earlier this month, allowed significant portions of the appeal. As a result, subject to a successful appeal to the Supreme Court of Canada – I can’t see leave being granted – the

. . . [more]
Posted in: Case Comment, Miscellaneous