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Archive for ‘Substantive Law’

Wilful Act Required to Prove WSIB Fraud

According to the Ontario Court of Appeal, when the Workplace Safety and Insurance Board (WSIB) charges a worker for “wilfully failing to inform the Board of a material change,” the WSIB must prove a wilful act, and, moreover, that a worker intended to obtain WSIB benefits to which he or she is not entitled to. . . . [more]

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

GDPR Guidelines for Canadian Business

The new EU GDPR privacy rules can apply to businesses outside of the EU that provide goods and services to EU data subjects. It is important for businesses outside of the EU to know when they are subject to the GDPR, as penalties for non-compliance are significant. An occasional sale to someone in the EU probably won’t be an issue – but what will? 

The European Data Protection Board just released for public consultation draft guidelines on when the GDPR applies to those without a presence in the EU. 

Article 3(2) of the GDPR says it applies to businesses without . . . [more]

Posted in: Substantive Law: Foreign Law

Need for Greater Protections of Investigative Journalism

On Nov. 21, 2018, Finance Minister Bill Morneau provided the 2018 fiscal update, which includes nearly $600 million in tax credits and incentives over the next 5 years for the media, as well as a temporary tax credit for subscribers to digital news media sites. Non-profit media organizations will be eligible for charitable status and may receive funding from other registered charities.

The role of the media within our legal system is emphasized in our constitution. Though commonly referred to as simply “freedom of speech,” the Charter‘s expressive guarantee under s. 2(b) is slightly more refined as,

freedom

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

The Latest Word on Unjust Enrichment

This is an important decision for everyone who comes across equitable relief in their practice.

In March 2017 a divided panel of the Ontario Court of Appeal in Moore v. Sweet overturned a finding of unjust enrichment on the ground there was a “juristic reason” for the enrichment. The decision was appealed. On 23 November 2018 the Supreme Court of Canada, splitting 6-2, applying precisely the same legal test, found there was there was no “juristic reason” for the enrichment, and restored the unjust enrichment remedy awarded at first instance.

The facts of the case are simple.

During their marriage . . . [more]

Posted in: Practice of Law, Substantive Law

Go West – Life Is Patently Unreasonable There

The potential of Online Dispute Resolution (ODR) has long been touted by many of us as part of the solution to the access to justice problem in Canada, especially for low-intensity disputes.

The first province to introduce ODR was B.C. in 2012 with the Civil Resolution Tribunal Act (the “Act”), followed soon after by Quebec’s Plateforme d’Aide au Règlement des Litiges en ligne (PARLe). The success of ODR internationally means that it is a question of time as to when it comes to Ontario, especially with the introduction of programs like joint divorce applications online.

A few features of the . . . [more]

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

Changes to ESA and LRT Passed, EHT Exemptions and Provincial Income Tax

1. Employment Standards and Labour Relations law changes

On November 21, 2018, the Ontario conservative government gave third reading to Bill 47, Making Ontario Open for Business Act, 2018, effectively rolling back many employment and labour law changes brought in by the previous Liberal government Fair Workplaces, Better Jobs Act, 2017 (introduced as Bill 148). Bill 47 although passed is awaiting royal assent to become law. Most of the provisions will come into force at a later date, on January 1, 2019. To summarize certain key employment standards provisions: . . . [more]

Posted in: Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Legislation

Apply for Trademarks Before the Law Changes

Canada has made significant changes to the Trademarks Act, mostly to make it more consistent with international practice. It was just announced that the changes will take effect June 17, 2019. Anyone considering applying for a trademark might think about filing before then.

What is the issue?

On June 17, 2019 the trademark application process will undergo significant changes. The changes include:

Not having to state first use dates or declare actual use

Registration term reduced from 15 years to 10

Adoption of the class system and a class based fee structure

Proof of distinctiveness needed for some types of . . . [more]

Posted in: Substantive Law, Substantive Law: Legislation

Towards a National Security Regulator

I had always presumed, erroneously, that all those entering the legal field would have some modicum of interest in public policy, equity issues, and promoting the rule of law. A significant chunk of the profession certainly do share those concerns, even while differing in the positions they may take.

But I was bewildered by those I encountered early in my legal education who simply were indifferent towards politics or any legal topic that did not directly impact their professional pursuits. I could only assume that such an existence was a by-product of a lifestyle and existence that was not threatened . . . [more]

Posted in: Substantive Law: Judicial Decisions

Federal Government Omnibus Bill Includes Employment Law Changes

Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures received first reading on October 29, 2018. Bill C-86 is another omnibus budget Bill that, if enacted, would among other things, make changes to the parental leave EI benefits under the Employment Insurance Act (again), significantly amend the Canada Labour Code (again), introduce pay equity legislation and amend the Wage Earner Protection Program, among other Acts. . . . [more]

Posted in: Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Legislation

CRTC Releases Onerous CASL Intermediary Bulletin

The CRTC just released a bulletin that goes to surprising lengths to impose liability on third parties for CASL violations. Lengths that may not be supported by the legislation.

It basically tries to turn intermediaries into enforcers. An approach this aggressive is surprising in light of the INDU committee report on CASL released in December 2017 that concluded in part: “The Act and its regulations require clarifications to reduce the cost of compliance and better focus enforcement.”

The bulletin is Compliance and Enforcement Information Bulletin CRTC 2018-415 Guidelines on the Commission’s approach to section 9 of Canada’s anti-spam legislation (CASL) . . . [more]

Posted in: Substantive Law, Substantive Law: Legislation, Technology

Public Disclosure of Private Facts – Redux

Privacy law is the new frontier in personal rights. Although privacy may be “a protean concept” (R v. Tessling, para 25), it is one of the most fundamental issues in a digital era.

The lack of statutory development, and the challenges of extending existing statutory frameworks to emerging privacy issues, has forced the courts to develop new rights of action to protect the privacy interests of Canadians.

The second of these, the tort of public disclosure of private facts, has a troubled history. Decided on a default judgement, including the setting aside of the decision when . . . [more]

Posted in: Substantive Law: Judicial Decisions

Smelling of Alcohol Not Reasonable Cause to Test for Drugs

A British Columbia Arbitrator recently held in a preliminary award that an employee who reported to work smelling of alcohol did not provide the employer with reasonable cause to test that employee for drugs.

What happened?

. . . [more]
Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions