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Archive for ‘Case Comment’

Placing Privacy Over Practicality

Drawing the line between privacy and practicality is not always easy, even for the Justices of the Court of Appeal, who divided narrowly on the issue.

Just before Christmas the Ontario Court of Appeal released a split, 3-2, decision in a case that pitted the privacy rights of judgment debtors against the execution rights of judgment creditors.

The Royal Bank of Canada (“RBC”) had obtained a judgment of just over $26,000 against the defendants. The defendants owned a residential property that RBC wished to have the Sheriff seize and sell so that the bank could collect on its judgment. Since . . . [more]

Posted in: Case Comment, Practice of Law

Does Including a Forwarding Feature to Defamation Amount to Republication?

The Supreme Court of Canada in Crookes v Newton held that the mere linking to a web site that contained defamatory material did not make the linker liable for defamation. Adding content to the link might change that result.

The Supreme Court of British Columbia has recently held, however, that offering a link to an email program (e.g. ‘mailto:’) on a web page that contains defamatory material constitutes republication of that material, apparently whether or not anyone used it.

Weaver v Corcoran 2015 BCSC 165 (CanLII)

Here is the main passage on that point:

[261] The invitation to email the

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

Supreme Court Declines to Enshrine the Independence of the Bar as a Principle of Fundamental Justice

This morning in Federation of Law Societies of Canada v. Canada (Attorney General), the Supreme Court of Canada upheld (with minor adjustments) the decision of the British Columbia Court of Appeal and Canada’s Proceeds of Crime (Money Laundering) and Terrorist Financing Act, was held defective since it did not adequately protect solicitor-client privilege in its search procedures. Parliament will have to significantly revise the scheme to add more safeguards.

A narrow set of professional duties was held to meet the principle of fundamental justice test, established in the Malmo-Levine test: R. v. Malmo-Levine; R. v. Caine: . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Age Limit for Loss of Earnings Benefits Doesn’t Violate Charter

The Workplace Safety and Insurance Act’s age cut-off for loss of earnings benefits does not violate the Canadian Charter of Rights and Freedoms, Ontario’s Divisional Court decided in Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

Plaintiff Awarded $13,000 Judgment and $90,000 in Costs

There are provisions in the Rules of Civil Procedure which provide that if a plaintiff brings a lawsuit in Superior Court and recovers an amount that is within the monetary jurisdiction of the Small Claims Court ($25,000), it is open to the court to order that the plaintiff shall not recover any of its legal costs of the lawsuit.

The rationale behind these provisions is straightforward. If a litigant fails to recover more than $25,000, then its claim ought to have been brought in the Small Claims Court which provides for a more streamlined, less expensive, procedure. A plaintiff, theoretically, . . . [more]

Posted in: Case Comment, Substantive Law

New Trial for Manager Terminated Over Misuse of Company Property

In Roe v British Columbia Ferry Services Ltd, a British Columbia trial judge made too many assumptions and not enough findings of fact when he decided that an employee’s dishonest conduct was “trifling,” “relatively minor” and not sufficient to justify termination. The Court of Appeal ordered a new trial for the employee after finding that the trial judge made a “palpable and overriding error” due to his failure to undertake an objective contextual analysis, as required for cases of alleged just cause.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Plaintiff and Defendant Both Seek, and Are Denied, Leave to Appeal

Litigation produces winners and losers. Often, the loser feels that the judge got it wrong and appeals the decision accordingly.

In some cases even the winner thinks that it should have received a decision more favourable than it did and that an appeal is an appropriate route to take.

In a recent case, both the winner and the loser of a summary judgment motion thought that the motion judge got it wrong, and both sought leave to appeal.

More surprising than the fact that both sides think the judge got it wrong, is that the Divisional Court denied leave . . . [more]

Posted in: Case Comment, Practice of Law

Breastfeeding Need Not Be Accommodated by Telework

In Flatt v. Treasury Board (Department of Industry), the Public Service Labour Relations and Employment Board has rejected a public servant’s complaint that Industry Canada discriminated against her on the basis of family status when it refused to let her work from home full-time while breastfeeding.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Lawyer Who Sues Client for $4,000 Is Ordered to Pay Client Nearly Twice That Amount in Costs

A lawyer who sued her former client for $3,937.50 for unpaid legal fees has had $7,000 in costs awarded against her, and the matter has yet to reach trial.

In the lawyer’s Small Claims Court lawsuit, she was ordered to produce her entire file to the former client and make production of the documents in chronological order, such that it could be ascertained whether or not she had in fact produced the entire file.

For reasons that are not entirely clear, the lawyer failed to produce the file in chronological order. A Deputy Small Claims Court Judge awarded costs against . . . [more]

Posted in: Case Comment, Practice of Law