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Archive for ‘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

Appeal Judge Rips Trial Judge’s Conduct Towards Self-Represented Defendant

A Superior Court Judge has tossed out a Small Claims Court judgment for a long list of reasons which primarily involve the inappropriate manner in which the trial judge dealt with the self-represented defendant throughout the course of the trial.

The reasons for granting the appeal span 92 paragraphs. The conduct of the trial judge becomes increasingly unbelievable as the reasons unfold. The decision is worth a read in its entirety and the findings include the following:

The trial judge had not read any of the material before the trial;

The trial judge gave the defendant “two minutes” to explain . . . [more]

Posted in: Case Comment, Practice of Law

Government of Canada v. Face Coverings: A Debate on the Limits to Freedom of Religion

On September 16, 2015, the federal government decided to appeal to the Supreme Court of Canada the case of Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 194 (CanLII), in which the Federal Court of Appeal ruled that it was unlawful for the Canadian government to ban new citizens from reciting the citizenship oath with a face covering.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

When Are Witnesses Allowed to Testify via Video-Conference?

A recent Superior Court decision canvassed the existing law pertaining to permitting witnesses to testify via telephone or video as opposed to in person, and appears to have set out a template of the procedure by which such requests should be made and, if granted, carried out.

A few days before the commencement of trial, the defendants requested that five of their witnesses be permitted to testify via video-conference at the trial. Four of these witnesses live in the U.K. and the other witness lives in the United States. The plaintiff opposed the request which led to argument. The court . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Future of Practice, Technology

Ontario Court of Appeal to Consider Basic Land Titles Issues

A current appeal in CIBC v. Computershare raises basic questions under the Ontario Land Titles Act. It’s also the first time that the courts have dealt with the many 2006 changes to the Act.

In CIBC v. Computershare, owners had fraudulently caused a discharge of their first mortgage to be registered. The owners had continued their payments and so the lender didn’t know about the discharge. Later, the owners had taken a loan under a new registered first mortgage. Under the Act, the new first mortgage had priority. But the trial court mistakenly decided that the old first . . . [more]

Posted in: Case Comment

Claims for Damage Caused by Tenants Fall Under Exclusive Jurisdiction of Landlord Board

A recent Ontario decision has affirmed the principle that all claims for damage caused by a tenant during a tenancy must proceed before the Landlord and Tenant Board (the “Board”) and not in the Superior or Small Claims courts.

After about a six year tenancy, the tenant fell behind on rent. The landlord brought an application to evict the tenant. The tenant vacated the unit shortly after being served with the application materials and did not attend the eviction hearing.

As part of the eviction hearing the landlord sought arrears of rent, including hydro arrears. The Board terminated the tenancy . . . [more]

Posted in: Case Comment, Practice of Law

Due Diligence Required When Using Exemptions to Disclose Personal Information Without Consent

Organizations may only disclose a person’s confidential information without the person’s knowledge or consent in very specific circumstances, set out in paragraph 7(3)(h.2) of the Personal Information Protection and Electronic Documents Act (PIPEDA). Now, the Office of the Privacy Commissioner of Canada recently found that in order to properly rely on the s.7(3)(h.2) exemption it is essential that an organization document the purpose for which personal information is disclosed and exercise due diligence to ensure that the disclosure is reasonable under the circumstances. . . . [more]

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

Employer Unsuccessfully Attempts to Resile From Settlement After Learning Ex-Employee Is Employed by Competitor

In a recent decision, the Ontario Superior Court upheld a settlement that was reached between a former employee and his ex-employer at a mediation over the employer’s attempt to resile from the settlement after finding out that the former employee had since gained employment with a competitor.

The plaintiff commenced a lawsuit against his former employer for payment of certain benefits after his employment was terminated.

The parties attended a mediation at which the lawsuit was resolved. As is often the case, the formal paperwork was not completed at the mediation.

Two days after the mediation the former employer . . . [more]

Posted in: Case Comment

Mandatory CPD Survives Its Day in Court

Since 2012, practising lawyers in Manitoba have been required to complete 12 hours of continuing professional development programming annually and to report on those activities as part of the annual Member’s Report. Failure to do so, pursuant to Law Society Rule 2-81.1(12) may result in issuance of a warning letter from the Law Society CEO, advising the member to comply within 60 days or face automatic suspension until the requirements have been met.

Recently, a long-time member of The Law Society of Manitoba challenged those provisions as being outside the statutory authority of The Law Society, and as lacking in . . . [more]

Posted in: Case Comment, Education & Training, Education & Training: CLE/PD