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Archive for ‘Case Comment’

Business Trademarks May Be Displayed in Quebec in a Language Other Than French

On April 9, 2014, the Quebec Superior Court ruled that businesses in the province of Quebec may continue to display their trademarks on public signs outside their premises in a language other than French if no French version of the trademark has been registered.

Facts of the case

On November 13, 2011, during an enforcement campaign called “Une marque de respect de la loi” (A sign of respect for the law), the Office québécois de la langue française (OQLF) took the position that the trademark exception found in the Charter of the French Language (loi 101) does not . . . [more]

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

Ontario Judge Strongly Pushes for Greater Use of Technology in Courts and Orders E-Trial

In a case conference decision in the matter Bank of Montreal v Faibish, 2014 ONSC 2178 (CanLII), Justice David M. Brown expressed “profound frustration” at the failure of lawyers and judges to make greater use of technology while conducting litigation. He went as far as ordering an e-trial on the matter, over the expressed desire of some counsel to do an electronic and paper-based trial.
This is one of the strongest statements a judge has made with respect to the need for greater use of technology in the court system. No doubt, it will generate considerable discussion. The relevant . . . [more]

Posted in: Case Comment, Technology

Defendant Permitted to Defend Action Six Years After Plaintiff Obtains Default Judgment

The Ontario Court of Appeal has upheld a Superior Court Judge’s decision to set aside a default judgment obtained by the plaintiff and allow the defendant the opportunity to enter a defence.

The plaintiff provided various crop services to the defendant for a number of years. The defendant would routinely pay the plaintiff’s invoices late. This was not necessarily problematic since the plaintiff trusted the defendant and its invoices were usually paid, albeit late.

As the defendant got older, his son took a more active involvement in the defendant’s operations. While the plaintiff trusted the defendant, it did not trust . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Superior Court of Justice Certifies a Class Action for Wrongful Dismissal Against IQT

On January 2, 2014 Justice Perell of the Ontario Superior Court of Justice certified a class proceeding by 527 wrongfully terminated employees led by Bob Brigaitis and Cindy Rupert (represented by Ted Charney of Charney Practice Group) against their now bankrupt employer, IQT Solutions and the officers, directors, shareholders John Fellows, Alex Mortman, David Mortman, Renae Marshall and affiliated companies IQT Canada, Ltd., JDA Partners LLC, and IQT Inc. The employees seek to recover $20 million in unpaid wages and severance plus aggravated and punitive damages of $10 million.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

A Bankrupt Can’t Escape a Judgment for Sexual Assault

Under most circumstances, an order of discharge releases a bankrupt person from all debts. There are, however, exemptions that have been legislated to ensure that a bankrupt party does not escape a debt arising from certain morally blameworthy actions. For example, an order of discharge does not release a bankrupt person from any debt arising from an award of damages by a court in civil proceedings stemming from “bodily harm intentionally inflicted, or sexual assault”: Bankruptcy and Insolvency Act, RSC 1985, c B-3 (the “BIA”), s. 178(1)(a.1)(i).

The case law is clear these exceptions are . . . [more]

Posted in: Case Comment

The Pastor Fred Phelps Has Died. Revisiting the Westboro Church’s Contribution to First Amendment Jurisprudence

The news last week that Fred Phelps, head of the Westboro Church had died, was not a particularly sad event for the vast majority of Americans. Fred Phelps had founded the « Primitive Baptist » Church, based in Topeka Kansas, in 1955, based on the idea that all calamities that befall the United States are a result of God’s wrath for the apparent acceptance of homosexuality in American society. The Church’s teachings were oftentimes hard to follow, but central to their message was their incessant picketing of the funerals of soldiers and homosexuals who had died of AIDS or had . . . [more]

Posted in: Case Comment

Objection? Filing a Settlement Reached in Another Jurisdiction

When can a party put into evidence a settlement reached between the parties, and to what end? In most cases, the answer is never. Not only are parties generally careful to insert a confidentiality clause in the settlement agreement, but in many cases, the relevance of a related settlement is doubtful to say the least. The situation is different in class action matters, where parties will inevitably have to publicize any settlement that has been reached, its terms and the amounts the Respondent has agreed to pay. Just last month, the Quebec Superior Court rendered a judgment in Cunning v. . . . [more]

Posted in: Case Comment

Quebec Superior Court Invalidates Certain Provisions of the Pay Equity Act

A coalition of unions led by the Fédération interprofessionnelle de la santé du Québec (FIQ) has won a court challenge against certain provisions of the 2009 reform of Quebec’s Pay Equity Act. The provisions in question require employers subject to the Act to audit pay equity in their businesses every five years, but not continuously. In other words, since 2009, Quebec employers have been required to perform a pay equity audit at the end of each five-year period, prepare a list of events that generated wage adjustments (e.g., promotions), and only pay the wage adjustments due at that time rather than when the adjustments occurred. The first audits would have taken place this year.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

Fired for Being Too Pretty

I have wanted to write about this case for a while now, but waited to see if it would be appealed any further after last summer’s Iowa Supreme Court ruling. Unfortunately, it has not.

On December 21, 2012, the Iowa Supreme Court unanimously upheld the district court’s decision that firing a female employee because she is too attractive does not violate the state’s Civil Rights Act. In that specific case, James Knight, a dentist, fired his dental assistant of ten years, Melissa Nelson, solely on the basis that he had become attracted to her and she had become a threat . . . [more]

Posted in: Case Comment

Real Estate Broker’s Failure to Disclose That It Was Acting for Both Buyer and Seller Results in Forfeit of Nearly $18,000 Commission

Justice Pollak of the Ontario Superior Court of Justice has ruled that a real estate broker is not entitled to nearly $18,000 in commission as a result of its failure to notify the seller that the broker was acting for the buyer as well.

Royal Lepage (Partners Realty Ltd.) sued the defendant, Ms. Morrow, for $17,788.75 representing commission payable pursuant to a listing agreement that Morrow signed with Royal Lepage.

Ms. Morrow entered into a listing agreement with Royal Lepage and subsequently entered into an agreement of purchase and sale with a purchaser that was brought to Ms. Morrow through . . . [more]

Posted in: Case Comment

Protection Against Copyright Infringement Strengthened by Robinson Case but at What Cost

On December 23, 2013, the Supreme Court of Canada rendered an important decision on copyright infringement in Cinar Corp. v. Robinson. The Court affirmed the trial judge’s finding that Cinar infringed Claude Robinson’s intellectual property and allowed a considerable increase in the monetary relief the Quebec Court of Appeal awarded Robinson.
Posted in: Case Comment, Justice Issues, Substantive Law, Substantive Law: Judicial Decisions

Bedford: A Significant but Cautious Victory

The Supreme Court of Canada’s much-anticipated decision in Canada (Attorney General) v Bedford (Bedford) represents an important victory for sex workers’ rights. Although there is a long road ahead in terms of implementation, which will be peppered with contentious debates about the role of the state in the regulation of sex work and the legitimacy of sex work as labour, it is important to pause and look at the decision with a critical lens, taking into account the symbolic significance of this landmark case. Simultaneously, the Court’s decision also highlights serious concerns regarding the attainment of civil liberties on the . . . [more]

Posted in: Case Comment