Canada’s online legal magazine.
Rogers OutRank
Canadian Bar Association

Archive for ‘Substantive Law’

Spam Now So You Can Spam Later

CASL - the new Canadian anti-spam act - comes into force July 1. It contains extensive, complex provisions that apply to the sending of any email that has a hint of a commercial purpose (a “CEM”). In the short term it may increase the amount of email we get. We have all received emails from mail lists we are on asking us to confirm our consent. But there is another reason we may get more. The reason goes like this:

CASL requires express or implied consent from the recipient before a CEM can be sent.

The act contains a . . . [more]

Posted in: Substantive Law: Legislation

BCCLA Files Class Action for Spying by CSEC

The British Columbia’s Civil Liberties Association recently filed a class action in Federal Court over the actions by Communications Security Establishment Canada (CSEC).

The statutory scheme under ss. 273.65, 273.68 and 273.7 under the National Defence A empowers CSEC to monitor communications for foreign entities, not Canadians, absent written authorization for unintended interceptions. Revelations earlier this year demonstrated that CSEC had monitored wireless devices at Canadian airports.

The claim seeks a declaratory relief of a finding of a violation of s. 8 of the Charter for the actions of CSEC. The claim takes particular issue with the collection of metadata, . . . [more]

Posted in: Justice Issues, Substantive Law

Ontario’s Ministry of Labour Targets Employers Using Unpaid Internships

From April to June 2014, the Ontario Ministry of Labour is conducting an employment standards inspection blitz targeting organizations that employ unpaid interns. The goal is to ensure worker rights are protected and enhance employers’ awareness of their responsibilities. . . . [more]

Posted in: Education & Training, Miscellaneous, Substantive Law, Substantive Law: Legislation

The New Canadian Digital Privacy Act (Bill S-4)

The government of Canada has introduced a bill to amend PIPEDA on privacy matters. The bill appears to be largely the same as Bill C-29 from 2010. It imposes a duty on organizations that have custody of personal information to disclose to the Privacy Commissioner and to affected individuals the fact of any breach of security affecting that personal information, if the breach creates a ‘significant risk of serious harm’ to the individual. Both terms (significant risk and serious harm are defined, or at least given more flavour, in the bill.)

(7) For the purpose of this section, “significant

. . . [more]

Posted in: Substantive Law: Legislation, Technology, ulc_ecomm_list

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

More Thoughts on Information as Property

There have been discussions on whether information can be ‘property’ for legal purposes (such as here and here), and the limits on that equivalence and the reasons for them. The English (and Welsh) Court of Appeal has recently addressed itself to that question again, in Your Response v Datateam Business Media [2014] EWCA Civ 281.

In that case, Your Response was working on a database of Datateam’s customers. In a dispute about payment, Your Response claimed a lien over the database and refused to return it to Datateam in the absence of payment.

The Court of Appeal held that . . . [more]

Posted in: Substantive Law: Foreign Law, Substantive Law: Judicial Decisions, ulc_ecomm_list

Law Library of Congress Report on Biometric Data Retention for Passport Applicants and Holders

The Law Library of Congress in Washington, D.C. has published a new comparative report on Biometric Data Retention for Passport Applicants and Holders.

The report compares the regulation of biometric data obtained in connection with passport applications and the preservation of such data in fifteen selected countries: Argentina, Australia, Brazil, Canada, France, Germany, Hong Kong, Israel, Japan, South Korea, Mexico, New Zealand, Sweden, Ukraine, and the United States.

The Library occasionally publishes reports that compare the laws on a given theme in a number of countries.

Earlier comparative law reports from the Law Library of Congress have covered topics . . . [more]

Posted in: Legal Information: Libraries & Research, Substantive Law: Foreign Law

Guidelines to Sharia Law in Great Britain

On March 13, 2014, the Law Society of England and Wales announced that it had released guidelines to help solicitors in the United Kingdom apply Sharia law succession rules. Specifically, the guide deals with drafting wills, trust issues and disputes over estates, and explains in detail how to write wills that respect Islamic traditions while complying with UK law. . . . [more]

Posted in: Miscellaneous, Practice of Law, Practice of Law: Future of Practice, Substantive Law, Substantive Law: Foreign Law

Can You Be Prosecuted for a Facebook ‘like’?

A US appeals court found – properly, in my view – that clicking ‘Like’ on the Facebook page of a political candidate was political speech protected by freedom of expression law.

Another US court found that clicking on ‘Like’ on the Facebook page of someone who has a restraining order against any contact by the clicker is contempt of the restraining order. That too seems sensible, if severe. (Restraining orders often need to be severely enforced.)

Here is an account of a bit of a confused British situation, where someone is apparently being investigated by police for Liking a Facebook . . . [more]

Posted in: Substantive Law: Foreign Law, Technology: Internet, ulc_ecomm_list

Legislative Update: Manitoba’s New Public Guardian and Trustee Act

Effective April 1, 2014, Manitoba’s Public Trustee Act is repealed and replaced with The Public Guardian and Trustee Act (C.C.S.M. c.P205).

The new legislation was introduced last spring as Bill 36 and received Royal Assent in December 2013 without amendment. The explanatory note to the Bill summarizes the changes made to the pre-existing legislative scheme as follows:

This Bill replaces the existing Public Trustee Act. Key changes include the following:

  • The name “Public Trustee” is changed to “Public Guardian and Trustee”.
  • The Public Guardian and Trustee’s functions are clarified and listed. They include acting as a trustee, estate administrator, litigation

. . . [more]

Posted in: Substantive Law, Substantive Law: Legislation

Employee Refuses to Admit Any Disability – Employer Still Liable!

I am a firm believer that when an employer is aware that an employeee suffers from a physical or mental disability, it must take all steps to accommodate them to the point of undue hardship. It’s settled law and it’s the right thing to do morally. I have coached clients on countless occassions to ask questions about potential disabilities and not just ignore an employee’s potential issues just because they aren’t bringing them to the fore and not focus only on performance management or discipline.

However, what happens when you do ask all the questions and the employee denies having . . . [more]

Posted in: Substantive Law: Judicial Decisions

Authentication vs Hearsay

The Ontario Court of Justice recently had occasion to consider the different grounds on which documentary evidence might be admitted or not admitted into evidence in a criminal case, in HMQ v Mondor.

Mr. Mondor was charged with accessing child pornography via a web site. The police had reconstituted the web site in order to trace certain purchases to the accused. As a result, the electronic records they used were not business records of the seller of the pornography for the purposes of s. 30 of the Canada Evidence Act. The Crown looked instead to what both it and . . . [more]

Posted in: Substantive Law: Judicial Decisions, ulc_ecomm_list