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Archive for ‘Case Comment’

Neighbours From Hell – Marcel Proust to Ed Morgan via the Carlisle

Three delightful legal curios remind us that when neighbours fall out, balance and judgment cascade out the window – or are defenestrated.

Let’s start with Monsieur Proust – who was sensitive beyond sensitivity. Yet even a cork-lined writing room couldn’t shield him from shoes on wooden floors and thin walls, from the harp-playing wife of an American dentist, Marie Williams.

Gallimard published the recently found letters as an epistolary novel, Lettres à sa voisine, last year. The catalogue descibes it thus::

«C’est un vrai petit roman, fondé sur une surprise : la découverte de ces vingt-trois lettres

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

Update: Court of Appeal Rules Property Management Company Still Barred From Appearing at Landlord and Tenant Board

About a year ago I wrote a post about a case where the Ontario Superior Court issued a permanent injunction preventing the owner of a property management company from appearing before the Ontario Landlord and Tenant Board on behalf of his landlord clients.

The property management company appealed to the Court of Appeal, who dismissed the appeal last week.

  . . . [more]

Posted in: Case Comment

Search Warrants for Electronic Records

Speaking of media neutrality … a US judge has ruled that a search warrant served on Microsoft in the US required the company to divulge records stored on servers outside the US. An account of the decision is here.

The company argued that the court could authorize a search only of premises within the territory of the court’s jurisdiction. The court held that a search warrant that applied to electronic records was in the nature of a subpoena as well as a search warrant. Since MS had control of the documents, it had to turn them over.

Does this . . . [more]

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

Pregnant Employee Has Right to Withdraw From Unsafe Work No Matter Employment Status or Workplace

Pregnant casual or temporary workers in Quebec have the right to withdraw from unsafe work environments just as permanent workers do, according to the recent Supreme Court of Canada decision in Dionne v. Commission scolaire des Patriotes, 2014 SCC 33 (CanLII).
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Proceeds From Molson Grow-Op Sale to Be Released to Property’s Owner

Justice Vallee has authorized the return of the sale proceeds of the former Molson Brewery Grow-Op, which total just north of $4 million, to the property’s owner.

The Attorney General of Ontario had been attempting to have the sale proceeds preserved pending a future forfeiture hearing on a number of grounds, including that the property was the proceeds of an unlawful activity and was used as an instrument of unlawful activity.

The court agreed that the property was used as an instrument of unlawful activity. However, given that the owner of the property had no involvement, or knowledge, of . . . [more]

Posted in: Case Comment

Electronic Signatures and Election Registration:  Case Comment on Getup Ltd. v Electoral Commissioner (Australia)

One of the principles governing how the law has come to terms with electronic or digital technology is that of media neutrality: the law should work the same way regardless of the medium by which information is created, communicated or stored. We do not want to create a parallel system of legal rules that apply only when certain technologies are used. We may need to adapt our usual rules to deal with special characteristics or applications of the technology, but these should disrupt normal expectations as little as possible. The challenge is to judge how far it is appropriate to . . . [more]

Posted in: Case Comment, Legal Technology

Business Trademarks May Be Displayed in Quebec in a Language Other Than French

On April 9, 2014, the Quebec Superior Court ruled that businesses in the province of Quebec may continue to display their trademarks on public signs outside their premises in a language other than French if no French version of the trademark has been registered.

Facts of the case

On November 13, 2011, during an enforcement campaign called “Une marque de respect de la loi” (A sign of respect for the law), the Office québécois de la langue française (OQLF) took the position that the trademark exception found in the Charter of the French Language (loi 101) does not . . . [more]

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

Ontario Judge Strongly Pushes for Greater Use of Technology in Courts and Orders E-Trial

In a case conference decision in the matter Bank of Montreal v Faibish, 2014 ONSC 2178 (CanLII), Justice David M. Brown expressed “profound frustration” at the failure of lawyers and judges to make greater use of technology while conducting litigation. He went as far as ordering an e-trial on the matter, over the expressed desire of some counsel to do an electronic and paper-based trial.
This is one of the strongest statements a judge has made with respect to the need for greater use of technology in the court system. No doubt, it will generate considerable discussion. The relevant . . . [more]

Posted in: Case Comment, Technology

Defendant Permitted to Defend Action Six Years After Plaintiff Obtains Default Judgment

The Ontario Court of Appeal has upheld a Superior Court Judge’s decision to set aside a default judgment obtained by the plaintiff and allow the defendant the opportunity to enter a defence.

The plaintiff provided various crop services to the defendant for a number of years. The defendant would routinely pay the plaintiff’s invoices late. This was not necessarily problematic since the plaintiff trusted the defendant and its invoices were usually paid, albeit late.

As the defendant got older, his son took a more active involvement in the defendant’s operations. While the plaintiff trusted the defendant, it did not trust . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Superior Court of Justice Certifies a Class Action for Wrongful Dismissal Against IQT

On January 2, 2014 Justice Perell of the Ontario Superior Court of Justice certified a class proceeding by 527 wrongfully terminated employees led by Bob Brigaitis and Cindy Rupert (represented by Ted Charney of Charney Practice Group) against their now bankrupt employer, IQT Solutions and the officers, directors, shareholders John Fellows, Alex Mortman, David Mortman, Renae Marshall and affiliated companies IQT Canada, Ltd., JDA Partners LLC, and IQT Inc. The employees seek to recover $20 million in unpaid wages and severance plus aggravated and punitive damages of $10 million.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

A Bankrupt Can’t Escape a Judgment for Sexual Assault

Under most circumstances, an order of discharge releases a bankrupt person from all debts. There are, however, exemptions that have been legislated to ensure that a bankrupt party does not escape a debt arising from certain morally blameworthy actions. For example, an order of discharge does not release a bankrupt person from any debt arising from an award of damages by a court in civil proceedings stemming from “bodily harm intentionally inflicted, or sexual assault”: Bankruptcy and Insolvency Act, RSC 1985, c B-3 (the “BIA”), s. 178(1)(a.1)(i).

The case law is clear these exceptions are . . . [more]

Posted in: Case Comment

The Pastor Fred Phelps Has Died. Revisiting the Westboro Church’s Contribution to First Amendment Jurisprudence

The news last week that Fred Phelps, head of the Westboro Church had died, was not a particularly sad event for the vast majority of Americans. Fred Phelps had founded the « Primitive Baptist » Church, based in Topeka Kansas, in 1955, based on the idea that all calamities that befall the United States are a result of God’s wrath for the apparent acceptance of homosexuality in American society. The Church’s teachings were oftentimes hard to follow, but central to their message was their incessant picketing of the funerals of soldiers and homosexuals who had died of AIDS or had . . . [more]

Posted in: Case Comment