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Archive for ‘Substantive Law: Judicial Decisions’

Ontario Court of Appeal Clarifies Requirements for Releasing Unknown Claims

The Ontario Court of Appeal has clarified that “exceptionally comprehensive” language may not be required to release claims that were unknown at the time the release was signed.

A release of a category of claims arising prior to a certain date, does not need to say unknown claims in that category are being released. There is no need to further specify the types of claims. All claims are included – even unanticipated claims – unless specifically excluded.

So says the Court of Appeal in its reasons for decision in Biancaniello v. DMCT LLP, handed down 15 May 2017, reversing . . . [more]

Posted in: Substantive Law: Judicial Decisions

Ontario’s Occupiers’ Liability Act Abolishes Common Law Duty

When the legislature codifies principles of common law, it can be perceived as a pruning of the living tree, helping to direct the law in growing in a specific direction, and sometimes preventing it from growing in other directions entirely.

The area of occupier’s liability is a perfect example of this. The Supreme Court of Canada conducted an exercise of statutory interpretation over the Occupier’s Liability Act, which was created in 1980, in the 1991 case of Waldick v. Malcolm. At the time, provincial legislatures across Canada were attempting to consolidate this area of law in their respective jurisdictions. . . . [more]

Posted in: Substantive Law: Judicial Decisions

Employee Suffering From Alcoholism Reinstated After Unjust Termination

Written wholly by Cristina Lavecchia, Editor at First Reference

The issue in this matter was whether or not the employee was terminated for just cause. It was the employer’s position that it properly terminated the employee for just cause. That is, the employee was absent without leave for a four-week period, the employer attempted to contact the employee to no avail, and the employee failed to contact the employer or provide any information of a medical nature to explain his absence. The Arbitrator in this matter, however, did not quite agree with the employer. In essence, the Arbitrator expressed that . . . [more]

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

Corporate Directors Found Liable for Employees’ Unpaid Wages

The Saskatchewan Labour Relations Board (Board) notes that the following case is a “cautionary tale” for corporate directors. That is, the corporate directors in this case, unfortunately, “failed to scrutinize rigorously” the information provided to them by management and effectively left the day-to-day workings of the business’ operations solely to the owner, much to their detriment. . . . [more]

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

Seven Years After Bill 168, We Learn It Is Costly Not to Comply With Violence Provisions Under OHSA

It has been a little under seven years since Bill 168 made amendments to Ontario’s Occupational Health and Safety Act (OHSA) by adding employer obligations regarding the prevention of workplace violence and harassment. Considering the release of recent employer convictions for failing to comply with employer obligations to prevent and protect workers from violence under OHSA, we thought it would be good to look at some of these cases and revisit the legislation to help employers understand those obligations and comply. . . . [more]

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

Burning the Provisions, Not the Witches

Codification can be a wonderful thing. It helps consolidate all of the myriad of rules and exceptions that exist in the common law, and lays it out in one place for everyone to find.

But codification also has its drawbacks. Once enshrined in statute, there can be a tendency towards complacency.

The best example of this of course would be the Criminal Code of Canada. First enacted in 1892, it was modeled after a proposed a codification in Britain written by James Fitzjames Stephen, which never made it past Second Reading there. The reason for its codification was that John . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Partisan Political Arguments in the Workplace, Part 2

In February, we posted a discussion with respect to how workplace political expression could go awry with human rights law. The article also provided best practices on how human resources professionals and employers can appropriately address human rights complaints specifically on the basis of political belief, activity or association. However, a comment sparked further discussion on how workplace political expression could also contravene harassment provisions under occupational health and safety legislation. . . . [more]

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

Is a Docusign E-Signature an Original for the Purpose of a Court Rule?

If a court or regulator allows e-filing but requires the filer to retain an original signed document, can that original itself be electronic?

A bankruptcy court in California recently issued sanctions against an attorney who filed electronic documents without retaining an “original” of the documents as required by the Rules – because the documents held by the attorney were signed using Docusign, and they did not qualify as originals for that purpose. Here is an article about the decision.

Here is the rule in the Court Manual:

Court Manual section 3.4(1)(4): Retention of Original Signatures. The registered CM/ECF User

. . . [more]
Posted in: Substantive Law: Judicial Decisions, Technology, ulc_ecomm_list

The Mandatory Nature of CPD

Love it or hate it, we all have to do continuing professional development (CPD).

One lawyer hated it so much that he refused to do it at all. When the Law Society of Manitoba automatically suspended him, he took his challenge all the way to the Supreme Court of Canada.

As you might expect, the lawyer was unsuccessful on his appeal in Green v. Law Society of Manitoba, released this week. The law society was empowered under the Legal Profession Act to achieve its mandate of self-regulation and protecting the public interest. The power to create a CPD scheme . . . [more]

Posted in: Education & Training: CLE/PD, Substantive Law: Judicial Decisions

Balancing Safety and Freedom of the Press

The state of the media in Canada is increasingly precarious, with several newspaper chains demonstrating indicators of financial difficulty. Reader’s Digest filed for bankruptcy in 2009, and just last year Postmedia merged with Sun, La Presse in Montreal ceased weekday prints, Guelph Mercury went digital only, and the Toronto Star announced layoffs and shutdowns.

Except for some niche news outlets, newspapers might be soon just be a thing of the 20th century.

The biggest casualty in these financial woes is the lack of independent and investigative journalism, given the resources and difficulty in producing this type of content. . . . [more]

Posted in: Substantive Law: Judicial Decisions

UK Supreme Court Re-Visits Testamentary Freedom

In a decision released on 15 March 2017 , overturning the Court of Appeal, the UKSC reminds courts that when considering claims for financial support from the estate of a deceased, the test is not whether the deceased behaved unreasonably in leaving the will they did.

The right question for the court is: did the will/intestacy make reasonable financial provision?, not whether the deceased acted unreasonably.

Unreasonable testamentary behaviour of the deceased may be considered, but English law, the court confirmed, recognizes the freedom of individuals to dispose of their assets by will in whatever manner they wish, subject to . . . [more]

Posted in: Substantive Law: Judicial Decisions

University of Virginia Website on US Supreme Court Nominee Neil Gorsuch

The University of Virginia School of Law has launched the Gorsuch Project, a website devoted to the career of Neil Gorsuch, US President Donald Trump’s nominee to fill the vacancy left on the US Supreme Court by the death of Justice Antonin Scalia in 2016:

“Hearings on the nomination of the Honorable Neil Gorsuch to the U.S. Supreme Court are scheduled to begin March 20 and interest in the nominee’s judicial record is high. To assist researchers, we’re proud to announce the launch of the Neil Gorsuch Project, a website that assembles all of Gorsuch’s written opinions, as well

. . . [more]
Posted in: Legal Information: Libraries & Research, Substantive Law: Judicial Decisions