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Archive for ‘Substantive Law’

Procedural Duty to Accommodate Prohibits Assumptions

Written by Lewis Waring, Paralegal, Student at Law (last year), Editor at First Reference

In Turnbull v Edmonton Pipe Trades Educational Fund o/a Alberta Pipe Trade College (“Turnbull”), an employer discriminated against its employee in violation of the Alberta Human Rights Act when it dismissed her one day after learning of her high-risk pregnancy. By failing to investigate whether the employee’s condition could be accommodated, the employer failed to implement its procedural duty to accommodate and paid the employee $35,000 in damages to dignity and lost wages.


The employer, an Alberta technical college, employed the employee for a period . . . [more]

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

What Law Applies to Cryptocurrency in Ontario?

Cryptocurrency is becoming more mainstream. However, the law has not kept pace with the technology, leaving a vacuum, akin to a “Wild West”. In the recent decision, Cicada 137 LLC v. Medjedovic, 2021 ONSC 369, Justice Myers touches upon the issue of litigating cryptocurrency, an area that is under regulated.

In Cicada, it is alleged that the defendant stole money ($15 million in cryptocurrency tokens). In handling the interlocutory matters, Justice Myers notes that there are different theories on when cryptocurrency can be considered stolen. At paras 5-6, Justice Myers writes that one theory is that if . . . [more]

Posted in: Substantive Law, Technology

What if Florida Were a Canadian Province?


If the state of Florida were a province in Canada, on the one hand, people might find it easier to travel to warmer climes when winter really hits snowy and cold part of Canada. On the other hand, they might find Canada too expensive to travel for long-term winter escapes. But that’s not my topic today. I’m more interested in an article in The Globe and Mail discussing the quandry facing health care providers in that state, caught as they are between opposing vaccine mandates. What if this conflict existed in Canada?


Posted in: Miscellaneous, Substantive Law

12 Trends in Estate Litigation for 2022

If 2021 is any indication, 2022 promises to be another busy year in estate litigation. With the incredible transfer of inter-generational wealth occurring right now, skyrocketing real estate values, the increase in blended families, and the heightened level of emotion when a loved one dies, estate litigation is going to continue to be a reality for many people in Canada.

Here are 12 of the top trends and recurring themes in estate litigation that I see as we start the New Year.

1. Challenging whether a person was actually the “spouse” of the deceased

Spouses have certain rights and available . . . [more]

Posted in: Justice Issues, Substantive Law

Disclosure of Status During Vaccine Mandates

As the many COVID-19 employment law cases continue to work their way through the courts, there is an increasing number of decisions emerging in the unionized context.

A recent arbitral award by Arbitrator Jesin in Teamsters Local Union 847 v Maple Leaf Sports and Entertainment looked at the issue of vaccination disclosure, and the reasonableness of it in context of a mandatory vaccination mandate by the employer.

The unionized employee worked in a sporting and events environment that required close contact with other parties, including other employees. The employer implemented a mandatory vaccination policy after the provincial government in Ontario . . . [more]

Posted in: Substantive Law: Judicial Decisions

Judicial Notice of COVID-19

There is often far too much in dispute in litigation. Counsel are often encouraged for this reason to formulate agreed upon facts, narrow the issues, and focus the dispute as much as they can.

Courts also assist with this process. One of the mechanisms for doing so is judicial notice, which was defined by the Supreme Court of Canada in R. v. Find as follows,

48 In this case, the appellant relies heavily on proof by judicial notice. Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are

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

The Divisional Court’s Decision in Ontario Teacher Candidates’ Council


In its December 2021 decision in Ontario Teacher Candidates’ Council v. The Queen, the Divisional Court held that the standardized Mathematics Proficiency Test (“MPT”) the Education Quality and Accountability Office (EQAO) had developed and the Ontario government had implemented for prospective teachers was unconstitutional because it disadvantaged Black and Indigenous candidates.

As a remedy, the Court allowed all candidates who had otherwise satisfied teacher qualification requirements to enter the profession. . . . [more]

Posted in: Case Comment, Education & Training, Justice Issues, Substantive Law: Judicial Decisions

Seize That Contraband Tobacco

Tobacco is a heavily regulated product. It is regulated under the Tobacco Tax Act to reduce the flow of untaxed products into the contraband market, and this is achieved through requiring a registration certificate for production and sale.

The Applicant in Sobczyk v. Ontario recently asked the Divisional Court to review the decision of the Ontario Ministry of Finance to refuse to issue a registration certificate for the 2021 calendar year. The Application for Judicial Review was dismissed, as the decision was found to be reasonable.

The Applicant is a tobacco farmer who was issued certificates from 2013-2020 on an . . . [more]

Posted in: Substantive Law: Judicial Decisions

Settlement of Civil Litigation Is Good

Technology has not been the panacea to delays in the court system. Ontario has announced $72 million to tackle the backlog, but even then it will likely focus on criminal proceedings, while civil cases continue to languish.

In Innocon Inc. v. Daro Flooring Constructions Inc., Justice Myers of the Ontario Superior Court of Justice indicated at para 80 that motions are being scheduled at least 8 months out in late 2021. Those delays are only expected to get longer in 2022.

The only reasonable and client-focused response to this is for counsel to find practical and effective solutions. . . . [more]

Posted in: Substantive Law: Judicial Decisions

Court Orders Trial to Proceed Virtually Over Objections From Counsel

In light of the Omicron variant, in-person civil jury trials have been suspended in Ontario. This has impacted many cases, which were slated for trial in January 2022. One of these cases was Fraser v Persaud. In Fraser v. Persaud, 2021 ONSC 8429, the motor vehicle accident case was at risk of not being heard in 2022 (7 years post-accident). Therefore, plaintiff counsel requested that the matter proceed virtually. Defence counsel objected to this request. They wanted to have the trial in-person. But, this could push the trial from January 2022 to January 2024.

Justice Richetti ordered that . . . [more]

Posted in: Substantive Law

Careful What You Plead

The pleadings are arguably one of the most important aspects of a civil claim, setting the groundwork for a proceeding in terms of damages, establishing the relevant issues, and informing the likelihood or possibility of settlement.

Sure, there are ways to amend your pleadings. But these typically cost time and money, and the ability to do so is not always guaranteed.

A recent Court of Appeal for Ontario decision McLean v. Wolfson illustrates some of the problems that can emerge in pleadings.

The self-represented Plaintiff alleged medical negligence during a leg surgery in 1995. Presumably to address the obvious issues . . . [more]

Posted in: Substantive Law: Judicial Decisions

A Motion and Proceeding That Should Never Have Happened

At the close of proceedings, especially contentious ones, parties often experience a form of buyer’s remorse, especially when they realize the discounted costs they may be entitled to, and the remainder they are still responsible for. Litigation can also be time-consuming, exhausting, and emotionally draining.

Responsible counsel often provide these warnings up-front, to set realistic client expectations, and sure that a mutual understanding around services are agreed upon, and hopefully reduced in writing. Some proceedings especially stand out as particularly futile, especially when characterized as such by the presiding judge.

Justice Dunphy recently released a decision in TSCC 2204 v. . . . [more]

Posted in: Substantive Law: Judicial Decisions