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Archive for ‘Substantive Law’

An Employee Could Have Received 36 Months’ Notice

In a recent Ontario Superior Court case, the unofficial rule of thumb of one month of notice per year of service with an upper limit of about 24 months was set aside when an employee was awarded a 30-month notice period. The Court also held that it would have awarded more, 36 months in fact, if the employee had asked for it.

The Court stated in the decision that,

[30] As a general principle, 24 months has been identified as the maximum notice period in most cases.

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

Supreme Court of Canada Weighs in on Henson Trusts

A Henson trust, named after an Ontario court decision from the 1980s, is an estate planning tool by which property can be held in trust for a disabled beneficiary such that it is not an asset of the beneficiary, thereby preserving and maximizing the beneficiary’s entitlement to government means-tested social programs. It is frequently employed by parents of disabled children.

In S.A. v. Metro Vancouver Housing Corp, released 25 January 2019, the Supreme Court of Canada gave full consideration to Henson trusts. It confirmed the Henson trust as an important estate planning tool in Canada.

The appellant S.A. lived in . . . [more]

Posted in: Substantive Law, Substantive Law: Judicial Decisions

A Judge’s Job Is Not a Minister’s Adviser

Tax law is no easy business. There are lots of complicated and seemingly conflicting rules, and tax litigation can come across as quite technical. Perhaps to add some animation to tax litigation proceedings, judges can add some clever wit buried in their decisions.

In 2015, a private corporation earning rental income was eligible for a dividend refund under subsection 129(1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), but failed to do so due to health problems of its principal. It applied for relief from the Minister under the discretionary taxpayer relief professions in subsections . . . [more]

Posted in: Substantive Law: Judicial Decisions

Video Surveillance of Employees and Issues of Evidence

The use of surveillance cameras in the workplace in Canada is quite common. Often, surveillance cameras are installed to deter theft, vandalism, assault, harassment and suspected criminal or improper activity. However, many employees question the right of employers to record them in the workplace and state that it is a breach of their privacy. Do employees’ privacy rights compete with employers’ needs to ensure that his or her employees do their job, come in at the right hours, and don’t behave inappropriately?

This case involves a union’s application to exclude video footage from the admissible evidence in a recent grievance . . . [more]

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

Fonting Fraud Reveals Sham Trust

High-stakes litigation often involves the use of experts, who are expected under the Rules of Civil Procedure to provide fair, objective and non-partisan evidence to assist the court to determine issues under dispute. These experts are required to limit their evidence to matters within their expertise, and it’s not uncommon to see experts in a wide range of technological, medial, and other areas.

Typically, the opinion evidence provided by an expert evidence must comply with certain requirements under rule 53.03, such as their area of expertise, qualifications and employment, and a review of the basis for which the opinion is . . . [more]

Posted in: Substantive Law: Judicial Decisions

British Columbia Employment Standards Reforms Coming

On December 10, 2018, the British Columbia Law Institute (BCLI) released its final report on their independent Employment Standards Act review. The British Columbia labour minister responded to the report by pledging action in 2019 to implement certain of the 71 recommendations found in the BCLI final report. . . . [more]

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

An Uber Decision on Arbitration Clauses

Rideshare companies like Uber have already completely transformed the transportation industry, but they are not without their detractors. As I first mentioned in 2017, a class action launched against the company, and has recently made its way to the Ontario Court of Appeal.

The Superior Court motion decision, summarized on Slaw here, relied on the Arbitration Act, 1991, the International Commercial Arbitration Act, 2017and case law such as Seidel v. TELUS Communications Inc., Wellman v. TELUS Communications Company, and Douez v. Facebook, stay the action in favour of a mandatory . . . [more]

Posted in: Substantive Law: Judicial Decisions

A Place Apart, Yet in the Community

The process of judicial appointments is probably one of the most important ways that the political branch of government affects the judicial branch. In their selection of candidates, a lawyer’s experiences and community involvement certainly should be considered in conjunction with their professional achievements.

The changes to the appointment process, introduced on Oct. 20, 2016, have improved considerably the selection and diversity of these candidates, especially as compared to the track record of the previous government, whose appointments appeared to be primarily based on political patronage and factors related to false estimations of prestige. As a result, 98% of these . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Federal Omnibus Bill Employment Law Changes Passed

Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018, and other measures received royal assent December 13, 2018. This new law extensively amends the Canada Labour Code, makes changes to the Employment Insurance Act, the Wage Earner Protection Program Act and introduces a federal Pay Equity Act. . . . [more]

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

⛰️ CanLII’s Top Ten Accessed Cases From 2018 ⛰️

Surely the winter holiday season wouldn’t be complete without the annual list of the most viewed cases from CanLII in the prior year. We’re not sure what legal information tidbit would complete other holidays, but we’re open to suggestions. Over recent years we have been averaging over 30,000 site visits per day on, and we are grateful for the ongoing support of the legal community and the trust Canadians place in us for their legal research needs. Interestingly no case released in 2018 made the top ten list. It will remain to be seen if this year has been . . . [more]
Posted in: Substantive Law: Judicial Decisions

CRTC Jurisdiction Over Broadcast Content

The Toronto municipal election earlier this year has attracted nation-wide scrutiny given the changes to council size and invocation of s. 33 in Bill 31. In an election already marred by confusion and uncertainty, there has also been some controversy around the candidates involved. One mayoral candidate, Faith Goldy, who has received a disproportionate amount of attention online, is described by The Globe as “a troubling extremist” and “manipulative monomaniac.” She is generally assumed to reflect the views of the growing “alt-right” across Canada, and as a result, many debate organizers have deliberately excluded her from events. Goldy’s . . . [more]

Posted in: Substantive Law: Judicial Decisions

Employment and Labour Law Related Changes in Ontario Bill 66 and More

On December 6, 2018, the Ontario Conservative government introduced Bill 66 – An Act to restore Ontario’s competitiveness by amending or repealing certain Acts in the legislature. Bill 66 impacts several employment and labour related laws, such as the Employment Standards Act, 2000 and the Labour Relations Act, 1995. This blog post outlines the Bill 66 changes and my thoughts on these continuous employment and labour law government driven changes. . . . [more]

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