Canada’s online legal magazine.

Archive for ‘Substantive Law’

Careful, Lawyer’s Communications Are Not Always Protected

The Ontario Superior Court of Justice recently found that the communications and conduct of the employer’s lawyer regarding sexual harassment investigation were not privileged and could be referred to in the employee’s Statement of Claim in the litigation against the employer

What happened?

A long-service employee (employed since 2002), while being placed on a performance improvement plan (PIP), raised allegations that her supervisor was bullying and sexually harassing her. In response, her employer:

  • Conducted an investigation but failed to interview the complainant employee during this process;
  • Concluded that the claims were unsubstantiated.
. . . [more]
Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

Right to Be Forgotten Referred to Federal Court

The professed right to be forgotten, now placed on the global stage with The EU General Data Protection Regulation (GDPR) and scrutiny by the Court of Justice on extraterritorial application, may finally get some judicial ruling on the matter in Canada.

This week, the Office of the Privacy Commissioner of Canada announced they have filed a Notice of Application to the Federal Court to weigh in on the many challenges around implementing this right under Personal Information Protection and Electronic Documents Act (PIPEDA),

In particular, the reference asks whether Google’s search engine service collects, uses or discloses personal information in

. . . [more]
Posted in: Substantive Law, Technology: Internet

Empirical Analysis of What to Expect From Kavanaugh’s First Term on U.S. Supreme Court

Now that the very messy and nasty nomination process for US Supreme Court Justice for Brett Kavanaugh has ended, many observers are wondering what kind of judge he will be.

SCOTUSblog, the American blog devoted to all things relating to the United States Supreme Court, has published a statistics-based article on What to expect from Kavanaugh’s first term:

The tense waiting is now over as Justice Brett Kavanaugh was confirmed to the Supreme Court on October 6, 2018. One of the big stories about Kavanaugh has been his low rate of public approval. This low rate of approval was

. . . [more]
Posted in: Justice Issues, Substantive Law: Foreign Law

Workplace Accident Is Not Enough to Prove Employer Committed General Duty Offence Under OHSA

Following a fatal workplace accident, the Alberta Court of Appeal provided a more comprehensive framework for the actus reus requirement of the general duty provision in Alberta’s Occupational Health and Safety Act (OHSA) and clarified that the mere occurrence of a workplace accident does not prove the employer committed a violation.

Fatal workplace accident – Did the employer violate its “general duty” to ensure the health and safety of an employee?

During a “tripping out” procedure on December 20, 2010, at an employer’s drilling rig, an employee suffered a workplace accident and died from blunt cranial trauma and multiple cranial . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

Parliamentary Privilege Does Not Always Reign Supreme

The next few years are likely to reveal further insight into the demarcations between the judiciary and the legislature, given the election of the right-leaning political parties in Canada’s largest provinces.

With the introduction of Bill 31 in Ontario, the government justified it no no small part on the basis of parliamentary privilege. House Leader Hon. Todd Smith cited the House of Commons Procedure and Practice as the basis for the Bill during the debate on Sept. 1, 2018 as follows:

The exclusive right of the House of Commons to regulate its own internal affairs refers especially to its control

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

Highlights From Ontario’s New Proposed Cannabis Legislation

Last week the Ontario government announced a radical change to the manner in which cannabis will be sold and consumed in the Province of Ontario.

Highlights of the announcement, which was initially made by Ontario Finance Minister Vic Fedeli and Attorney General Caroline Mulroney, and followed by the introduction of Bill 36, An Act to enact a new Act and make amendments to various other Acts respecting the use and sale of cannabis and vapour products in Ontario (or the “Cannabis Statute Law Amendment Act, 2018” for short), include the following:

Timeline for Implementation

The government confirmed that when legalization . . . [more]

Posted in: Substantive Law: Legislation

Roadside Drug Screening to Be Tested by Courts

On Wednesday, Ontario’s new government announced a change in policy for cannabis use, indicating that they will allow it to be used anywhere where tobacco is smoked when it is legalized on Oct. 17, 2018, and not restricted to residential homes as previously planned. This move would align the province’s policy with the Smoke-Free Ontario Act, with the Alcohol and Gaming Commission of Ontario (AGCO) set up as the proposed regulator to issue private store licences.

One of the ancillary effects of this is that residents in the province will invariably be consuming cannabis outside of the home, and . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Criminal Conviction or Incarceration Does Not Justify Termination

The Administrative Labour Tribunal in Quebec recently held that an employer cannot terminate a worker with a criminal conviction for acts of sexual abuse as it constitutes discrimination based on criminal records. Moreover, the nature of the criminal offence does not automatically justify the dismissal of an employee. . . . [more]

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

Copyright Notice & Notice Is Flawed

You may have read about the Supreme Court of Canada deciding Rogers can be paid its costs for telling a copyright owner the identity of movie downloading customers. What isn’t talked about is the notice and notice system that puts this in motion.

A summary of the Rogers v Voltage decision is here. Omar has written about this on Slaw as well.

This is a complex and controversial issue. The essence is that sections 41.25 and 41.26 of the Copyright Act allow the owner of a copyright (eg a movie studio) to create a notice to send to people . . . [more]

Posted in: Substantive Law: Legislation, Technology: Internet

Here Be Unchartered Waters

Introduction

This week has been an unprecedented one in Canadian history, and one that will invariably result in development of novel Charter jurisprudence.

On Sept. 12, 2018, the Ontario legislature introduced Bill 31 – Efficient Local Government Act, 2018 in response to the Ontario Superior Court of Justice decision on Sept. 10, 2018 that ruled Bill 5 – Better Local Government Act, 2018 was unconstitutional, as it violated the s. 2(b) Charter rights of the candidates in the upcoming municipal election due to the timing of the Bill, and the impact on the voters due to its content.[1] This . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions