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Archive for ‘Case Comment’

French Veil Ban Goes to European Court of Human Rights

On November 27, 2013, the European Court of Human Rights held a Grand Chamber hearing (which was broadcast on the Internet) in the case of S.A.S v. France (Application no 43835/11). The case concerns a French Muslim woman’s complaint that French law prohibits her from wearing a full-face veil in public. As of April 2011, French Law no. 2010-1192 prohibits concealment of one’s face in all places open to the public in France. The penalty for breaking the law is a fine of up to €150 and/or compulsory citizenship classes. Separate penalties are provided for anyone forcing a woman to conceal her face in public. . . . [more]

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

Court of Appeal Says Private School’s Decision to Expel Pot Smoking Student Not Subject to Judicial Review

The Court of Appeal has unanimously ruled that a private school’s decision to expel a student is not subject to judicial review.

In September, 2012, the Divisional Court quashed Appleby College’s decision to expel a student on his last day of high school for smoking pot in his residence. A quick refresher on the facts of the case can be found in a post I wrote last November.

In a nutshell, Mr. Setia was caught smoking pot in his residence at Appleby College (a prestigious Ontario private high school) on the day before his final exam of high school. . . . [more]

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

Lawyers and Their Clients: Who’s in Charge?

Lawyers who practice family law in Winnipeg are familiar with the Tuesday morning motions court, known as the “zoo” for reasons that will soon be obvious. For those unfamiliar with this docket court, the recent decision of Associate Chief Justice Rivoalen in Skinner v. Skinner is instructive:

[10] There is a lot going on as the Family Motions Coordinator, parties and their lawyers navigate their way through the typical Family Uncontested Motions melée, and not only because there are so many matters on the List. Moreover, the Court’s registry staff, clerks, sheriffs, stand-by master and judges are fully engaged….


. . . [more]

Posted in: Case Comment, Justice Issues, Practice of Law: Future of Practice, Substantive Law: Judicial Decisions

Good Reasons for Giving Reasons

Administrative tribunals, in making decisions, are sometimes required by legislation to provide reasons for their decisions. Even where there is no legislative requirement to give reasons, principles of procedural fairness may require that a written explanation be provided for the decision reached (see Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC).)

While one might presume the question of when reasons are required would have been well-settled since addressed by the Supreme Court in Baker, Manitoba’s Court of Appeal has twice this year addressed that question, in both cases, in appeals from decisions of The . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Are Reports to the Police Protected From Defamation Suits?

Preserving one’s reputation is a fine value – and one that the law of libel strives to protect. But it’s not absolute, and the law recognizes that some communications are so important that they must trump reputation. That’s why communications that enjoy privilege are defensible in defamation cases.
So is there a qualified privilege when reporting relevant information to the police in good faith, protecting the individual reporting the information from a libel suit. The answer is Yes. . . . [more]

Posted in: Case Comment, Legal Information: Publishing, Miscellaneous, Substantive Law: Judicial Decisions

Groupon Pays Over $500,000 to Settle Class Action Lawsuit

Justice Edward Belobaba has approved the settlement reached in the Groupon class action lawsuit.

For those not familiar with Groupon, the company sells a variety of vouchers at a discount that can be used towards the purchase of goods or services. For example, a customer may be able to pay $50 for a voucher that can be redeemed to obtain $150 worth of duct cleaning services.

Up until recently, the vouchers carried an expiry date. The plaintiff alleged that it was illegal (for a variety of reasons) for the vouchers to carry an expiry date.

The settlement provides that customers . . . [more]

Posted in: Case Comment

Defending Quebec Against the Federal Government on Rules for Secession (Bill 99)

Instead of calling a fall election, the Parti Québécois government has decided, among other things, to devote resources to fighting the federal government over a court challenge to An Act respecting the exercise of the fundamental rights and prerogatives of the Quebec people and the Quebec State (commonly called Bill 99), the provincial law that outlines Quebec’s rules for secession from Canada. . . . [more]

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

Hamilton Tiger Cats Fail to Exercise Team Option on Star Receiver Due to Ambiguous Letter

Justice Pardu has quashed the decision of Arbitrator E.E. Palmer, and as a result (former) Hamilton Tiger Cats’ wide receiver Chris Williams is free to explore greener pastures in the NFL.

Williams had been under a two year contract with the Tiger Cats which contained a team option for a third year. The Tiger Cats had attempted to exercise the third year option and Williams tried to get out of the contract in order to explore potential options in the NFL, where he would earn significantly more money.

The Canadian Football League Players’ Association (who brought the case on . . . [more]

Posted in: Case Comment

The Right Against Unreasonable Search and Seizure and Geolocation

A recent American case has raised questions (more, again) about the future of privacy rights in the digital age and how to adapt current laws to an ever evolving technological world.

On July 18, 2013, in State of New Jersey v. Earls, 22 A.3d 114, the New Jersey Supreme Court held that the New Jersey Constitution protects an individual’s right to privacy in the location of his or her cell phone and that police must therefore obtain a search warrant, based on probable cause, to access this information. The section of the New Jersey Constitution at issue in State . . . [more]

Posted in: Case Comment

Another Step Towards Recognizing Queer Parents

Last week the Alberta Court of Appeal ruled on a 7 year long custody battle between gay parents. At issue was the constitutionality of the Alberta Family Law Act and Family Law Relations Act.

At the centre of the drawn out family law litigation was the best interests of a 10 year old girl who spent her first 3 years living with her two dads. When the men split up the biological father and the birth mom objected to the non-bio dad having custody and access to his daughter. In his quest to be declared a legal parent and . . . [more]

Posted in: Case Comment, Substantive Law

A Koan for Clements

The Riddle:

Q: How many Canadian judges does it take to create a paradox?

A: 9 Supreme Court of Canada judges paying insufficient attention to the inconsistent text of their reasons for judgment and 1 trial judge applying a portion of those reasons literally.

The Koan:


(1) the but-for test is currently the ONLY test in Canadian tort law for proof of factual causation;


(2) the ONLY method of applying the but-for test is the method set out in Snell: the robust, pragmatic, approach;


(3) the robust pragmatic method isn’t applicable “when there is evidence to . . . [more]

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

Supreme Court Will Announce Thursday if It Will Hear Rob Ford Appeal


The Supreme Court of Canada will announce Thursday at 9:45 am whether or not it will hear Magder’s appeal in the ongoing Rob Ford case.

In case you have been living under a rock (or outside of Toronto at least), Justice Hackland ordered the Mayor of Toronto out of office last September. The Mayor won his appeal before the Divisional Court in January, and was permitted to remain in office.

With an election scheduled for 2014, the Supreme Court ruling, should the Supreme Court elect to hear the appeal, will likely be largely academic.

Nevertheless, many will be . . . [more]

Posted in: Case Comment