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Archive for ‘Substantive Law: Judicial Decisions’

Workplace Culture That Includes Racism Is Very Costly for Employer

Recently, a Nova Scotia Human Rights Board of Inquiry awarded a record $593,417 in damages, including $105,650 for injury to dignity and $433,077 for wage loss, to a former Halifax transit worker employed as a mechanic who suffered racial harassment and discrimination at work.

In a previous ruling released in March 2018, Nova Scotia Human Rights Commission board of inquiry chair Lynn Connors found widespread racial discrimination and a poisoned work environment at Halifax Transit’s garage. The Halifax Regional Municipality (HRM) was found vicariously liable for the actions of their employees.

Connors stated,

“I find based on the facts

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

Pernicious and Unfair Assumptions Around Colonial Genocide

In 1991, the Supreme Court of Canada in R. v. McCraw reviewed the threat of a criminally accused to inflict bodily harm, and discussed how rape is an act of violence, and not just a sexual act,

It is difficult if not impossible to distinguish the sexual component of the act of rape from the context of violence in which it occurs. Rape throughout the ages has been synonymous with an act of forcibly imposing the will of the more powerful assailant upon the weaker victim. Necessarily implied in the act of rape is the imposition of the assailant’s will

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

Carding Finally Discussed at Supreme Court

Toronto has the most diverse population in Canada, and possibly the word. The myriad of different cultures and ethnicities not only co-exist, but largely mingle and interact on a deep level that is likely not seen anywhere else.

At the same time, the diverse populations of Toronto have a complicated relationship with police services, who they often perceive as treating inappropriately, based on stereotypes, prejudices, or even racial profiling. There are many reasons for this, but they include the challenge of many officers living or growing up outside these diverse communities, police divisions under financial and resource strains, and occasionally, . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Effective Referral Policy Upheld in Ontario

Following the Supreme Court of Canada’s decision in Carter v. Canada, amendments to the Criminal Code and other statutes allowed for some instances of physician-assisted death to be used in Canada. These amendments received Royal Assent through Bill C-14 on June 17, 2016, through what is now called Medical Assistance in Dying (MAiD).

The fourth and final interim report on MAiD by the Government of Canada confirmed that 6,749 medically assisted deaths occurred in Canada since legislation came into force on December 10, 2015 in Quebec, and on June 17, 2016 in the rest of Canada, to October 31, . . . [more]

Posted in: Substantive Law: Judicial Decisions

Applying Habeas Corpus in Immigration Cases: Bringing Nuance to the Jurisprudence?

Although the ancient writ of habeas corpus is a significant protection against arbitrary detention (more recently acknowledged through section 10(c) of the Canadian Charter of Rights and Freedoms), our courts have developed two circumstances in which it is not available because other remedies are equally effective, providing the same advantages to those who would claim it. Thus prisoners are not able to call on habeas corpus to challenge their conviction or sentence, since they can adequately appeal both under the Criminal Code. Habeas corpus is also displaced when a statutory scheme provides equivalent protection against arbitrary detention. Canada . . . [more]

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

Freemen Arrive at the Ontario Court of Appeal

Justice Rooke’s 2012 lengthy decision in Meads v. Meads attracted considerable attention, in particular given the peculiar nature of the nature of the parties he deemed “Organized Pseudolegal Commercial Argument (OPCA) Litigants.”

These litigants defy any general definition, aside from using entirely fictitious legal arguments gleaned from the Internet which purports to provide them complete immunity from the legal system. They can use the term Freeman-on-the-Land to denote their entirely unsubstantiated belief that they are free from the rules and laws that the rest of us abide by.

The hope of Justice Rooke’s particular exposé, and its dissemination by . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Under the Circumstances, the Employee Cannot Claim He Did Not Receive Written Notice

The New Brunswick Labour and Employment Board had to decide whether or not the employee received the written notification that he had been dismissed for cause, as required under the Employment Standards Act, and whether the employee is entitled to the statutory notice.

What happened?

The employee worked for the employer as a meat cutter for more than five years.

One day, the employer called the employee back into the office to fire him. The employer handed the employee a copy of the termination letter that contained written reasons for the employee’s dismissal. However, the employee stormed out without . . . [more]

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

Some Legal Aid Can Never Be Costed

The recent release of the provincial budget in Ontario has many lawyers livid over the proposed cuts to Legal Aid, which amount to almost 30% of its funding. The cuts relate to broader reductions to the justice sector of approximately 2%, from $5.0 billion in 2018–19 to $4.7 billion in 2021–22.

These cuts may appear to stem from what appears to be higher figures for actual “Other Non-Tax Revenue,” which includes legal aid, from the interim projections for the 2018-2019 year, suggesting some concern that these expenses have been growing unsustainably. But a closer look at these figures suggests there . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

The Return of Textualism to the Court

Canada has largely been a leader in the use of arbitration for the resolution of disputes. When UNCITRAL finalized and adopted in July 2014 the”United Nations Convention on Transparency in Treaty-based Investor-State Arbitration“, also known as the “Mauritius Convention on Transparency,” Canada became the second State to ratify it on December 12, 2016. To date, 22 states have signed the Convention, and only 5, including Canada, have ratified it.

Although the focus of this Convention was on arbitrations between an investor and a State and the implementation of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, . . . [more]

Posted in: Substantive Law: Judicial Decisions

Another Quebec Law on the Religious Neutrality of the State

On March 28, 2019, the Coalition Avenir Quebec government tabled Bill n°21: An Act respecting the laicity of the State to fulfill an election promise to ensure the religious neutrality of the state and prohibit many public sector employees from wearing religious symbols at work. The proposed legislation is being studied in parliament at this moment.

After the failed attempts of the Parti Québécois with its charter of values in 2014, and the Liberal Party with Bill 62 in 2017 with an Act to foster adherence to State religious neutrality and, in particular, to provide a framework for requests for . . . [more]

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

Transgenderism Prevails Over Whatcott’s Truth

When Toby’s Act (Bill 33) passed in Ontario in 2012, the jurisdiction became the first in Canada to explicitly add gender identity to a human rights code.

Ontario’s Human Rights Commission had previously taken the position that gender identity was still a protected ground under the Ontario Human Rights Code based on the ban against sex discrimination, and the Human Rights Tribunal agreed with this interpretation in several cases, including in Hogan v. Ontario (Health and Long-Term Care).

In this 2006 case, the province argued that if the Ontario Code intended the definition to extend to these . . . [more]

Posted in: Substantive Law: Judicial Decisions

A Tale About Rehiring a Sexual Harasser: Who Wins and Loses?

Today’s “#MeToo” climate and questions about when someone who has been accused of sexual misconduct, although not convicted of it, should be allowed back into the public sphere (to direct films, do comedy routines, assume an executive role in business or whatever) has been much in the media recently. Although not explicitly, a recent decision of the Ontario Court of Appeal tells us that even if the impact of someone’s return might have significant impact on a victim’s working — and broader — life, return may occur. The final result in Colistro v. Tbaytel 2019 ONCA 197 is not unlike . . . [more]

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