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Archive for ‘Substantive Law’

Motivations Irrelevant for Determining the Public Interest

Following the Court’s decisions in Pointes/Platnick, anti-SLAPP motions continue to be brought in defamation actions. These decisions will continue to build and refine test created by the Court, and how it can be applied.

One particular aspect is determining what exactly is in the public interest for the purpose of s. 137.1(4)(b), which is the main focus of analysis after the Court’s decision. A recent Ontario Court of Appeal decision in Sokoloff v. Tru-Path Occupational Therapy Services Ltd. helps expound on this issue.

The action emerged from a dispute between a well-known lawyer in Toronto, and a the President . . . [more]

Posted in: Substantive Law: Judicial Decisions

Autism Spectrum Disorder Is the Main Defence in the Van Attack Trial (Alex Minassian Trial): Autism Canada Speaks Out

In April 2018, Minassian drove a van into a crowd of people, killing 10 people. His trial is now happening in Ontario by videoconference. The defence is arguing that he is not criminally responsible on account of his autism spectrum disorder. They are arguing that he did not understand what he was doing was wrong. Expert psychiatrists have been retained to provide opinions on both sides.

Each person with Autism spectrum disorder is unique. To learn more about the characteristics, see here.

Autism Canada released a statement denouncing the defence. “There is no psychosis in ASD and no tendency . . . [more]

Posted in: Substantive Law

Park Evictions During a Pandemic

To the uninitiated, it looks a bit like urban camping. Take a closer look though, and you’ll see their entire life belongings, and evidence that these camps are not recreational, but a matter of survival.

What we’re referring to of course are the numerous tent encampments that have proliferated across Canada during the pandemic. Other alternatives often resorted to in those without permanent housing, including couch surfing, staying with friends or family members temporarily, and even shelters and respite centres, may not be appropriate in the circumstances, including providing inadequate distancing from others.

These encampments give rise to a . . . [more]

Posted in: Substantive Law: Judicial Decisions

Employees’ Imperfect Right to Reasonable Accommodation

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

Human rights claims are often the result of an employee’s claim that their employer has failed to accommodate their needs. Whether such claims arise due to an employee’s disability, family status, gender, religion or any other human rights ground, employees have a duty to accommodate the human rights needs of their employees. However, the duty to accommodate does not require employers to provide employees with their ideal option. Instead, employees are only required to provide reasonable accommodation.

In a recent British Columbian human rights case, an employer fulfilled its duty . . . [more]

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

Discouraging Sexual Harassment Through Human Rights

Damages before the Human Rights Tribunal have historically been modest, especially when compared to similar cases before the Superior Court of Justice.

The system was transformed considerably in 2006 after Bill 107, Human Rights Code Amendment Act, which allowed the Tribunal to award higher damages starting in 2008, by removing the $10,000 limit on compensatory awards for mental anguish. Under the current provisions in s. 45.2 of the Code, the Tribunal may make any order to compensate the applicant for loss arising out of the infringement, which includes compensation for injury to dignity, feelings and self-respect.

Despite these . . . [more]

Posted in: Substantive Law: Judicial Decisions

Supreme Court Clarifies Law on Adverse Effect Discrimination

The Supreme Court of Canada’s decision in Fraser v. Canada (Attorney General), 2020 SCC 28 provides a sweeping overview of the law of adverse effect discrimination. This decision specifically targets the alleged discriminatory effect of the RCMP’s policy not to allow those who temporarily reduce their working hours under a job-sharing agreement to “buy back” these periods of reduced working hours for the purposes of their pension. In contrast, those who experienced gaps in their record of service by reason of suspension or spending time on unpaid leave did have the opportunity to buy back pensionable service time. After . . . [more]

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

Dissecting the Majority and Dissenting Opinions in Fraser

The Supreme Court of Canada’s recent decision in Fraser v. Canada (Attorney General) (“Fraser”) illustrates the fissures on the Court in the judges’ approaches to equality undersection 15(1) of the Canadian Charter of Rights and Freedoms. Although there are also other factors explaining the differences in the majority and dissenting opinions, here I discuss three that are somewhat distinct from the facts of the case: the nature of “equality” under section 15(1); the interrelationship between the law and the social and economic context; and the role of the courts. . . . [more]

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

Need for Privacy Reform in Ontario

With so much closed, and so little social interaction during the pandemic, there’s not many options for Canadians, as we head into the winter. It’s inevitable that many will find themselves in malls.

A recent revelation that a Canadian real estate company secretly embedded cameras in 12 different malls has some concerned about the lack of meaningful consent. Cameras themselves are pretty benign, for security purposes alone. What made it worse was that images were used with facial recognition technology to identify unique facial features and analyze them, creating biometric data.

Although provincial and federal privacy commissioners express concerns, they . . . [more]

Posted in: Substantive Law: Legislation

Handling Commercial Vacancy Disputes

Even before the pandemic, commercial landlords and tenants had their disputes.

The Ontario Court of Appeal recently dismissed an appeal in Old Navy (Canada) Inc. v. The Eglinton Town Centre Inc., thereby affirming the Superior Court decision that denied declaratory relief to the commercial tenant, and a refund of rent they claimed they overpaid.

The case centred around the interpretation of the lease. The tenant, who is a major international commercial retailer, and a subsidiary of the largest specialty retailer in the U.S., claimed the lease was straightforward and unambiguous. Justice Quigley disagreed, and held that a co-tenancy provision . . . [more]

Posted in: Substantive Law: Foreign Law

States of Emergency: The Inequity of Municipal Governance During the Pandemic

Since the onset of the pandemic in March of this year, municipalities across the country have instituted policies and by-laws that have had a serious impact on residents, often not following regular processes. The University of Windsor Faculty of Law Centre for Cities has recently released its report about municipal states of emergency, States of Emergency (“the Report”), co-authored by Dr. Anneke Smit (Director, Centre for Cities) and students Hana Syed, Aucha Stewart, Terra Duchene, and Michael Fazzari, which analyses the response of municipalities across Canada in the early days of the pandemic and proposes a way forward, not only . . . [more]

Posted in: Book Reviews, Reading: Recommended, Substantive Law

Public Interest Litigation Keeping the Homeless Safe

Early in the pandemic, António Guterres the 9th Secretary-General of the United Nations, stated,

Early signs are that the COVID-19 virus poses a greater direct health risk to men, and particularly older men. But the pandemic is exposing and exploiting inequalities of all kinds, including gender inequality. In the long term, its impact on women’s health, rights and freedoms could harm us all.

More recently, Canada’s deputy chief public health officer, Dr. Howard Njoo, highlighted the need for better data to address the inequalities that the pandemic has exposed.

We already know that despite 246,000 jobs added in August, . . . [more]

Posted in: Substantive Law: Judicial Decisions

Nurse’s Facebook Comment Not Professional Misconduct

Facebook is increasingly known to be used by older people, with well over a third of Canadians on Facebook being older than 45 years in August 2020. Despite the smaller user base, Facebook is almost two-thirds of all social media use by visits by all social media users in Canada.

With that much use, there’s bound to be problems. And where there are problems, there is often litigation.

The Saskatchewan Court of Appeal recently released a decision in Strom v Saskatchewan Registered Nurses’ Association, which set aside the decision by the Discipline Committee of the nurses’ regulatory college, that . . . [more]

Posted in: Substantive Law: Judicial Decisions