Canada’s online legal magazine.
Rogers OutRank
Canadian Bar Association

Archive for ‘Case Comment’

LSUC Places Stubbornness Above Sensible Decision-Making

I recently wrote a post that sparked a firestorm of comments; most felt that I had overstepped myself for daring to suggest that the Law Society of Upper Canada ignores obvious conflicts in connection with its operations. This week we have another LSUC conflict issue.

Canadian Lawyer Magazine has reported on the ongoing proceedings between LSUC and Joseph Groia. As you are aware, Joseph Groia was found guilty of misconduct by a LSUC disciplinary panel last summer and he is appealing that decision.

The panel that will hear the appeal is comprised of 5 benchers – one of which . . . [more]

Posted in: Case Comment, Justice Issues, Practice of Law, Practice of Law: Practice Management

Hoping for a Feminist Supreme Court

It’s a big week at the Supreme Court for our professional and personal communities. As most of us are already aware, tomorrow the SCC will hear arguments in the Bedford case and will ponder the criminality of certain acts related to sex work, namely communicating for the purposes of prostitution, being found in a common bawdy house and living off the avails of prostitution.

At the heart of the decision are questions of constitutionality, specifically whether these three Criminal Code provisions violate section 2 and 7 of the Charter. Both the Government of Ontario and the Government of Canada maintain . . . [more]

Posted in: Case Comment, Justice Issues, Practice of Law, Substantive Law: Legislation

Antrim Truck Centre Ltd. v. Ontario (Transportation) 2013 SCC 13

Some of you might be interested in recent comments of Professor Jason Neyers (of the University of Western Ontario, Faculty of Law), which I repeat with permission, on the Supreme Court of Canada’s recent decision in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 (CanLII).

Dear Colleagues:

Although from a very high level of generality, the Antrim case really changes nothing in relation to the way Canadian courts decide nuisance cases (a two-step test of substantialness and reasonableness) on many points of detail the case is very troubling. What are some of these troubling bits?

1. The

. . . [more]

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

Why Words Matter: SCC Affirms Need for Hate Speech Protections

The Supreme Court today issued a unanimous decision in Saskatchewan (Human Rights Commission) v. Whatcott, found here.

A series of human rights complaints were filed against William Whatcott under the Saskatchewan Human Rights Code for various flyers that he had been distributing in the community, expressing his dismay at the presence of “sodomites,” “filth and propaganda,” and “buggery” at local schools. Mr. Whatcott sought to challenge the constitutionality of the human rights complaints, arguing that they were incompatible with his Charter right to freedom of expression. A right that Mr. Whatcott believes in so fervently, by the way, that . . . [more]

Posted in: Case Comment

Adjudicator Decides Legal Aid Society Subject to PIPA

On February 11, 2013, an adjudicator of the Alberta Office of the Information and Privacy Commissioner decided that Alberta’s Legal Aid Society is subject to the Personal Information Protection Act (PIPA), with consequences for all non-profit organizations that conduct activities with a commercial character. . . . [more]

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

SCC: The Rights and Obligations of Common-Law Spouses in Quebec

On Friday, January 25, 2013, the Supreme Court of Canada ruled in a tight majority judgment (five: McLachlin, Deschamps, Abella, Cromwell and Karakatsanis, against four: LeBel, Fish, Rothstein and Moldaver) that the Quebec Civil Code discriminates against common-law spouses because it does not grant them the same rights as married couples in regard to spousal support and division of property. However, and thankfully, the Court does not find that the discriminatory nature of these Civil Code provisions is unconstitutional. According to the Court’s decision, the infringement is a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under section 1 of the Canadian Charter of Rights and Freedoms.
. . . [more]

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

The Impact of an Effective Offer to Settle on Legal Costs

Ontario operates on a “loser pays” civil legal system. At the conclusion of trial (or a motion or application) the successful party can expect the presiding judge to order the unsuccessful party to pay a portion of the successful party’s legal costs. While awarding costs is always in the discretion of the presiding judge, as a rule of thumb litigants can expect to receive a cost award that reflects 40% – 70% of the fees they actually incurred.

Our Rules of Civil Procedure also provide a mechanism to encourage the acceptance of reasonable offers to settle. A party can make . . . [more]

Posted in: Case Comment, Practice of Law, Substantive Law

European Court of Human Rights Rules on Religious Freedom Cases

On January 15, 2013, the European Court of Human Rights (ECHR) in Strasbourg released its ruling in the cases of four Christian employees who argued that they suffered from discrimination and that their employers encroached upon their right to religious freedom at work. . . . [more]

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

Possibility of Temporary Layoffs Must Be Included in Employment Contract

The Ontario Superior Court of Justice just confirmed that when an employer attempted to temporarily lay off an employee of 12 years, it actually terminated her because the temporary layoff was made without providing consideration to the employee and was not a possibility included in the employment contract. . . . [more]

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

No, You Can’t Sell Those Pictures You Found on Twitter

No, you can’t sell those pictures you found on Twitter. But their owner also can’t enjoy an absurd windfall if you do.

Three years ago we saw heartbreaking images of a devastating earthquake in Haiti. Photographer Daniel Morel saw the devastation firsthand. As it is his work to do, he captured photos of what he saw. He also shared his images via Twitter. As it turned out, it seems much of what the world saw in the early aftermath were those pictures taken by Mr. Morel. We saw them not, however, through any arrangements made by Mr. Morel.

Agence France . . . [more]

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

How to Get Sued When Selling Your Home, Part II

Back in November, I posted about Seller Property Information Statements (“SPIS“) and a case in which a vendor was found to have misrepresented the answer to a question on the SPIS and was held to be liable.

In a recent decision, the Court of Appeal partially upheld a trial judge’s decision awarding over $70,000 in damages to the purchasers of a home as a result of fraudulent misrepresentations made by the vendors prior to the deal going through.

The defendants (vendors) had constructed the house themselves. Prior to entering an agreement of purchase and sale the purchasers noticed . . . [more]

Posted in: Case Comment, Practice of Law

The Taxpayer Pays Principle? the Supreme Court of Canada’s Findings in Newfoundland v. AbitibiBowater

William A. Amos and Hugh S. Wilkins

The polluter pays principle requires polluters to take responsibility for remedying contamination for which they are responsible, imposing on them the direct and immediate costs of pollution.

In a recent Supreme Court of Canada decision, Newfoundland and Labrador v. AbitibiBowater Inc. 2012 SCC 67, the Court missed an excellent opportunity to affirm the application of the polluter pays principle and clarify the linkages between environmental law and insolvency law.

We were involved in the appeal as counsel for Friends of the Earth Canada, an intervener, arguing that insolvent corporations retain their . . . [more]

Posted in: Case Comment