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Archive for ‘Case Comment’

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

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.”

Indeed.

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