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Archive for ‘Case Comment’

Occupational Health and Safety Administrative Penalties and the Defence of Due Diligence

A recent case from Nova Scotia raises some interesting points around the defence of due diligence in administrative penalty cases for health and safety cases.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Four Christians Arguing for Their Right to Religious Freedom at Work Before the European Court of Human Rights

On Wednesday September 5, 2012, the European Court of Human Rights (ECHR) in Strasbourg heard arguments from four workers challenging British judgments over the expressions of their religious faith in the workplace. Two are arguing for the right to wear a cross at work, while the others object to dealing with same sex couples.
Posted in: Case Comment, Substantive Law, Substantive Law: Foreign Law, Substantive Law: Judicial Decisions

Cellphone Use While Driving: Court Finds Drivers Can Handle Phones Briefly

A recent Ontario Court of Justice decision has declared that briefly handling your cellphone while behind the wheel should not get you a ticket under Ontario's Highway Traffic Act distracted driving provisions.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Clements’ Conundrums (Coda)

Our task [as lawyers] must be to understand factual causation as it actually is. We should not be looking for a heuristic model of factual causation that generates liability in accordance with our instinctive feelings, unconcerned whether the model is accurate or not. Simply, lawyers cannot say that C was the cause of E when it was not, or that C was not the cause of E when it was. To do so is, literally, to part company with reality. It is sometimes said that a philosopher is someone from whom a tragedy is a good theory destroyed by the

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

British Court Upholds Ruling That Catholic Church Can Be Held Liable for the Wrongdoings of Its Priests

On July 12, 2012, a two-to-one majority dismissed the appeal, upholding the ruling that Portsmouth diocese is liable to pay for alleged wrongdoings of its clergy. This ruling according to many legal experts paves the way for similar claims and far reaching implications.
Posted in: Case Comment, Substantive Law, Substantive Law: Foreign Law, Substantive Law: Judicial Decisions

The Clement Commandments (2) – Proof of Factual Causation on the Balance of Probability

For whatever this is worth, for those who need to care (or do, regardless of need).

These propositions are written for the Canadian lawyer whose knowledge of the relevant Canadian law is such that a Superior Court (or equivalent) judge would consider that lawyer competent to prosecute or defend an “ordinary” personal injury or property damage action. As such, they presume a certain level of knowledge.

Comments are on for a limited purpose. I will attempt to clarify any of these propositions if the manner in which I have stated the proposition is not sufficiently clear, bearing in mind what . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Federal Government Appealing BC Supreme Court’s Assisted-Suicide Ruling

Following our previous Slaw post, were we commented on the June 15 British Columbia Supreme Court ruling that struck down the Criminal Code ban on physician-assisted suicide. Without being surprised, on July 14, 2012, we learn that the federal government has decided to appeal that decision.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

The Clements Commandments (1): Causation in Negligence for Canadian Law

I believe that what I’ve written below is a good enough summary, for now, of what practitioners in Canada’s common law jurisdictions need to know about the effect of  Clements v Clements, 2012 SCC 32 on the manner in which causation is to be proved in negligence actions. (For those who don’t know, Quebec is a civil law jurisdiction; all others are common law.)

These propositions are written for the Canadian lawyer whose knowledge of the relevant Canadian law is such that a Superior Court (or equivalent) judge would consider that lawyer competent to prosecute or defend an “ordinary” personal . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

BCSC Rules Hearing Fees Unconsitutional Barrier to Access

On May 22 the B.C. Supreme Court issued an interesting ruling in Vilardell v. Dunham, 2012 BCSC 748, an application that arose out of a family law proceeding. The plaintiff had sought to be relieved of hearing fees, or fees for the use of the courtroom. It is important to note the fees in question were as existed under a version of the Supreme Court Rules that was repealed and replaced in 2009; hearing fees continue to exist (at least to the point of yesterday’s ruling) but are reduced.

The Courthouse Libraries BC prepared an excellent and short . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions