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Archive for ‘Case Comment’

T.V. Show Prompts Plaintiff to Try to Re-Open Case: Pt II

About a year and a half ago I wrote a post about a plaintiff, Mr. Mehedi, who believed that he was scammed. The facts of the case are summarized in my prior post.

 

Mr. Mehedi lost at trial and then the Court of Appeal dismissed his appeal. About a month after his appeal was dismissed, Mr. Mehedi saw a segment on CBC’s Marketplace which purportedly exposed the scam to which he had fallen victim.

 

Mr. Mehedi attempted to have his trial re-opened so that he could use the CBC Marketplace segment as fresh evidence. He was directed . . . [more]

Posted in: Case Comment, Substantive Law

Paying the Price for Not Providing Reasonable Notice and the Manner of Termination

In the case of Armstrong v Lendon, the Ontario Superior Court of Justice concluded that the employer had to pay 21 months of reasonable notice plus aggravated damages for the manner of termination which caused humiliation, embarrassment and the loss of self-esteem. The court did not buy the employer’s argument that there was just cause for the termination, especially since the allegations for cause were made after the fact. . . . [more]

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

Debt Money, Banking Profits and Canadian Sovereignty

I happened upon an interesting story on a website called Collective Evolution entitled, “Canadians Sued The Bank Of Canada & Won. Mainstream Media & Government Blacks Out Story.” The report stated:

“The truth is, The Bank of Canada used to issue debt free loans to the government, which meant that the nation would not go into debt to private banking institutions. When that changed, private bankers/corporations essentially gained control and ownership of the country.”

This struck me as a potentially conspiratorial piece on a sketchy website but certainly intriguing enough that I wanted to know more. So I’ve . . . [more]

Posted in: Case Comment

Are Employers’ Financial Circumstances Relevant in Calculating Termination Pay?

In a word. No.

The Ontario Court of Appeal has reaffirmed, definitively, that an employer’s financial circumstances are not relevant to the determination of reasonable notice in a particular case.

The lower court judge had awarded teachers who had their employment terminated from their school 12 months of pay in lieu of notice. However, the judge reduced this by half, to 6 months, in large part due to the financial circumstances that the school was in. The lower court judge cited a passage from a prior decision that noted that “The law does not ignore the dilemma of the . . . [more]

Posted in: Case Comment, Practice of Law

27 Months of Reasonable Notice After 40 Years of Service

In Markoulakis v SNC-Lavalin Inc., the Ontario Superior Court of Justice concluded after considering the Bardal factors that long-serving employee Eftihios (Ed) Markoulakis was entitled to 27 months of common law reasonable notice following his termination from a senior role at SNC-Lavalin. The court noted that notice beyond 24 months is within the court’s discretion in exceptional cases. Clearly, this was one of those cases. . . . [more]

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

Why We Should Keep the Doggie-Door Closed on Emotional Damages

Household pets are a cherished part of many families. Yet, in the words of Auxier J. in Pezzente v. McClain, 2005 BCPC 352 (CanLII), the law remains “coldly unemotional” towards companion animals, which continue to be considered “just another consumer product.” Nonetheless, there is good reason for continuing to restrict the compensation available in pet death or injury cases. A line of cases out of Ontario has begun to award more than just replacement value and incurred costs to owners of wrongfully injured or killed pets – and it may be setting a precarious precedent.

In Ferguson v. . . . [more]

Posted in: Case Comment, Education & Training: Law Schools, Law Student Week, Substantive Law: Judicial Decisions

The Role of ISPs in Canada’s New Copyright Regime

In 2012, the Copyright Modernization Act was enacted to make a number of significant changes to Canada’s existing copyright regime. One of the primary goals of this new legislation was to ensure that Canada did not open the floodgates to “copyright trolls” (copyright plaintiffs who file lawsuits simply to extort quick settlements) and devolve into the shocking state of copyright litigation south of the border. The federal government hopes to balance the rights of copyright holders with the privacy rights of the alleged copyright infringers. The Act now has a statutory limit of $5,000 on damages for all non-commercial copyright . . . [more]

Posted in: Case Comment, Education & Training: Law Schools, Law Student Week, Substantive Law: Judicial Decisions, Substantive Law: Legislation

Process Server Falsifies Affidavits of Service

In what has to be one of the more unusual cases I have come across, a Superior Court judge has set aside a default judgment after being satisfied that the process server hired by the plaintiff to serve its claim swore “untruthful” affidavits of service which were subsequently relied on by the plaintiff to obtain default judgment.

The plaintiff in a franchise dispute had its lawyer prepare a statement of claim. The plaintiff’s lawyer hired a process server to serve the corporate and personal defendant. The process server advised the plaintiff’s lawyer that the claim had been served on . . . [more]

Posted in: Case Comment, Practice of Law

Do Mental Health Act Detainees Have Charter Rights?

Upon arrest or detention, a police officer must advise a detainee of their s. 10 Charter right to retain and instruct counsel without delay. Does this right apply if a person is “apprehended” and taken involuntarily to a health facility for a psychiatric assessment? Presumably it does: if the individual is not free to leave the officer’s custody or refuse the examination, then their individual liberty is clearly suspended by a state authority. This is the very definition of a “detention” under the Charter: R v Grant. Yet, the case law implies that officers may be failing to advise . . . [more]

Posted in: Case Comment, Education & Training: Law Schools, Law Student Week, Substantive Law: Judicial Decisions, Substantive Law: Legislation

Mistakes in Website Prices – Consumer Items

A Quebec court has recently held that Costco was not bound to sell a computer to a consumer for $2.00, as advertised on its web site. Although the Consumer Protection Act says that an ad to a consumer is an offer, the court (Cour du Québec) held that online sales are different.

Here’s an article about the decision.

I presume the decision would be similar in common-law Canada. Is it not general law that an ad on a website is considered an invitation to treat, rather than an offer that can be accepted by anyone in the world? Certainly the . . . [more]

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

Specific Performance: Court Finds Vacant Land “Unique”

When a commercial real estate transaction goes south, purchasers often ask their lawyers if they can advance a claim for specific performance of the contract. The answer is often “no”, due to the fact that specific performance is only granted in instances where the property is unique, such that damages would not be a satisfactory remedy for the aggrieved purchaser. “Uniqueness” may lend itself to residential property, but often not to commercial property given that commercial property is being acquired for profit and therefore there are other, similar, properties available to be acquired.

 

However, recent decisions, including one released . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

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