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Archive for ‘Substantive Law’

Reliance on Unredacted and Undisclosed Materials

Criminal law can be differentiated from civil proceedings, where both sides are obligated to provide all relevant evidence, in that there is an inherent asymmetry in the information the Crown possesses. This is particularly important given the burden of proof that is imposed on the Crown.


The B.C. Court of Appeal stated in R. v. C. (M.H.),

 [29] …there is a general duty on the part of the Crown to disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it.

. . . [more]
Posted in: Substantive Law: Judicial Decisions

Termination Timing Proves Critical in COVID Climate

By Daniel Standing LL.B., Editor, First Reference Inc.

The Ontario Superior Court of Justice’s decision in Yee v Hudson’s Bay Company, 2021 ONSC 387 is welcome news for anyone wondering about COVID-19’s effect on a reasonable notice period. For all of the upheaval that the pandemic has caused, it proved to be of little consequence to the notice owed to a dismissed company executive in this case. . . . [more]

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

Racial Stereotypes as an Aggravating Factor

On Feb. 25, 2021, I provided the keynote speech at Bora Laskin School of Law for Black History Month. I noted that Black History could not be just reduced to slavery, but at the same time the legacy and trauma of that history has significant impacts on our society and justice system today.

The Ontario Court of Appeal recently heard an appeal of Justice Nakatsuru’s decision in R. v. Morris, which explored the social circumstances of Black Canadians and its impact on the justice system.

Justice Nakatsuru took into account the unfair and disproportionate discrimination that Black offenders face . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Affidavit Evidence During a Pandemic

So you have a dog nipping at your feet, a child pulling on your sleeve, something cooking on the stove, and your phone rings in the middle of your Zoom conference call.

The affidavit that you have open on your computer certainly isn’t getting your undivided attention. This probably isn’t going to be your best work.

Justice Myers of the Superior Court of Justice heard a consent motion to transfer a case under Rule 13.1.02 (2) in Polgampalage v Devani. Although these motions can be rather routine, especially on consent, he noted that there are judicial considerations for these . . . [more]

Posted in: Substantive Law: Judicial Decisions

Victoria Law Reform Commission Consultation on Jurors Who Are Deaf, Hard of Hearing, Blind or Have Low Vision

The Victoria Law Reform Commission is conducting a public consultation on more inclusive juries.

The state of Victoria is in south-eastern Australia and its capital is Melbourne.

The Commission wants to find out what reforms are needed to improve access for people who are deaf, hard of hearing, blind or have low vision who wish to serve as jurors in the state of Victoria.

It issued a consultation paper in December 2020 and will be gathering input until the end of February.

From the terms of reference:

“The Juries Act 2000 (Vic) provides a list of people who are

. . . [more]
Posted in: Legal Information: Libraries & Research, Substantive Law: Foreign Law

Employee Walks Fine Line on Confidentiality Breach

By Daniel Standing LL.B., Editor, First Reference Inc.

Every employer is properly concerned about its reputation. But how far can an employer go to make sure that its “dirty laundry” stays hidden away? Can an employee be disciplined for discussing their employer’s private matters, or can an employer insist that “what happens at work stays at work”? Questions like these about an employee’s duty of loyalty and the consequences of a breach of confidentiality are central to the Alberta Labour Relations Board’s decision in Ann’s Day Care Ltd. v Michelin, 2020 CanLII 104967 (AB ESA). . . . [more]

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

Exploring Pay Inequities in the Legal Professions

It’s really not shocking for anyone who pays attention to the practice of law, but a powerful piece in The Globe recently highlighted the gender inequities in Canadian law firms. Lawyers in all practices and of all genders nodded their heads, knowingly.

The article describes the calls for change that have been in place since 1996, “when women started filling up more than half the seats in law schools across the country.” But all the partners’ horses, and and the partners’ consultants, couldn’t figure out why women weren’t making partner in comparable numbers, or were making almost 25% less at . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Teacher Reinstated and Educated Following Anti-Indigenous Racism

By Lewis Waring, Licensed Paralegal, Student-at-Law, Editor, First Reference Inc.

In Saskatchewan Polytechnic Faculty Assn. and Saskatchewan Polytechnic (Derow), 2020 CanLII 78471 (SK LA), Re (“Derow”), a unionized teacher’s dismissal related to racist comments against indigenous persons was set aside and he was reinstated to his position with conditions.

The teacher, in this case, had been working for Saskatchewan Polytechnic for 34 years and had been employed in the school’s carpentry program. Instead of dismissal, the arbitrator held that the employee would be suspended for six months and required to undertake appropriate education. Upon his return to work, the . . . [more]

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

For Crying Out for a Remedy

Lawyers tend to get excited when the courts create a new tort, and for good reason. The judiciary is reluctant to instigate such reform to the common law absent compelling facts, and a strong societal need for them to do so.

In Seneca College v. Bhadauria, the Court of Appeal found that a cause of action existed for the tort of discrimination, on the basis that the Ontario Human Rights Code,

18 I regard the preamble to the Code as evidencing what is now, and probably has been for some considerable time, the public policy of this Province

. . . [more]
Posted in: Substantive Law: Judicial Decisions

Invalid Termination Clause Prompts Damages Payment

By Daniel Standing LL.B., Editor, First Reference Inc.

The Ontario Superior Court of Justice issued a ruling in Sager v. TFI International Inc., 2020 ONSC 6608 which considered an interesting contract interpretation issue that arose in the underlying wrongful dismissal claim. The termination clause appeared to be generous to the employee but was ultimately found invalid for violating the Canada Labour Code. As a result, the employee was entitled to more notice than he received under the contract. . . . [more]

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

The Federal Travel Requirements: Musing About Constitutional Questions

The forthcoming travel requirements issued by Transport Canada have raised some ire in certain quarters, primarily among those who desire to travel for vacations or to spend time at winter homes during the pandemic and now must face an increased cost. The travel requirements do not prohibit international travel; rather, they make it difficult and come with additional cost. What are the constitutional implications of these regulations? . . . [more]

Posted in: Substantive Law

Misconduct During Remote Proceedings

As the legal system clumsily attempts to proceed along remotely during a pandemic, parties have tried their best to continue to move things along.

This approach was never entirely without risk, and a new decision by the Ontario Superior Court of Justice in Kaushal v. Vasudeva et al. highlights some of these risks. The motion was to strike out evidence based on misconduct and abuse of process during a remote cross-examination.

The cross-examination of the affidavit occurred via Zoom, with an interpreter present in the same room. There was also a court reporter present virtually.

Although the examining counsel inquired . . . [more]

Posted in: Substantive Law: Judicial Decisions