Canada’s online legal magazine.

Archive for ‘Substantive Law: Judicial Decisions’

Entire Agreement Clause Doesn’t Trump Unconscionability

Donald Trump is estimated to have been involved in over 3,500 lawsuits, unprecedented for any presidential nominee. Most recently, he threatened to sue for defamation over further allegations of groping. Sources, however, indicate he hasn’t actually sued a news outlet in decades, and his threats may have a boomerang effect.

It’s clear that he has other legal disputes on this side of the border as well. Many of them involve the tower in downtown Toronto which bears his name. Only one of them has been reported though, and the Court of Appeal recently weighed in on this action . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Measuring “Serious Harm” in a Data Breach

The prevailing legislative standard in Canada for a duty to report a breach of data security (loss of data, compromise, etc) seems to be that there is a real risk of serious harm as a result of the breach.

Have Canadian courts or regulators given useful guidance on when that happens, and what kind of harm is serious and likely? I am especially interested in court rulings, since the threat of litigation can focus the data holder’s mind as much as or even more than a regulator’s order. (Have privacy regulators cracked down on reporting requirements or other useful follow-up . . . [more]

Posted in: Substantive Law: Judicial Decisions, ulc_ecomm_list

In Defence of “Safe Spaces” on Campus

A university student walks on to campus, wearing a hat that appears to support Donald Trump. Controversy ensues. Oh yeah, the campus was in Canada.

The video of the incident attracted far broader attention, including renewed discussions of the role of “safe spaces” on campus. The debate in Canada followed right after a similar discussion at the University of Chicago, where the Dean of Students told the incoming class of 2020,

We do not support so-called ‘trigger warnings,’ we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual

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

Using Social Science Research as Judicial Notice

Judicial notice is an important underpinning of litigation in Canada. The need to prove every trite and accepted fact as evidence would make litigation even more unwieldy than it already is.

Some of the problems emerge when judicial notice is used for facts which may be disputed by the parties. For example, in R. v. Zundel, the Court dealt with hate speech and the denial of the Holocaust. To provide the defendant to litigate the purported evidence against the facts around the Holocaust would only give him a platform to extend his hate speech further. Instead, the trial judge . . . [more]

Posted in: Substantive Law: Judicial Decisions

Wagg Motions: Is There a Better Way?

In 2004, the Ontario Court of Appeal released the decision D.P. v Wagg, 2004 CanLII 39048 (Wagg). And with it birthed an entirely new bureaucracy devoted to Wagg motions.

In Wagg, the defendant was charged criminally for sexually assaulting his gynecological patient, referred to as D.P. D.P. then sued her doctor civilly for sexual assault. In the civil proceeding, D.P. wanted the defendant to disclose the contents of the Crown Brief, which was produced to him in the criminal action. The defendant refused to produce the Crown Brief to her. The plaintiff then brought a motion . . . [more]

Posted in: Substantive Law: Judicial Decisions

TWU Decision Really About Deference and Autonomy

The much anticipated decision by the Court of Appeal in Trinity Western University v. The Law Society of Upper Canada was released this week.

Although the court upheld the Divisional Court decision last year, which itself upheld the law society’s decision not to accredit Trinity Western’s law school, this week’s decision was neither a condemnation by the courts of the school or a vindication of its opponents. Instead, it was a commentary on the role of a self-regulated profession, and the importance of maintaining our own autonomy.

The court touched on, briefly, the applicability of Trinity Western’s previous trip to . . . [more]

Posted in: Substantive Law: Judicial Decisions

Assisted Dying Finally Becomes Law

After pushing it through the Senate on Friday morning, the House of Commons finally voted for Bill C-14 on Friday afternoon. The Department of Justice has created a Q&A page on the Bill and some of the related issue.

The Senate attempted to modify Bill C-14 to adjust the issue of reasonable foreseeability, but were unsuccessful in doing so. This issue was especially important in light of a recent decision by the Alberta Court of Appeal, which indicated this criteria was not necessary under the 2015 Carter decision.

The Department of Justice has responded to this concern in an . . . [more]

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

Increasing Funding for Legal Aid Is Not Enough

Lawyers pushing for greater access to justice constantly fall back on the refrain that Legal Aid needs more funding. That might be true, but the real problem with access is the eligibility criteria for Legal Aid certificates.

This was illustrated recently in a recent criminal case in Toronto, R. v Moodie, where Justice Nordheimer reviewed a Rowbothom application. The Ontario Court of Appeal created a process R. v. Rowbotham whereby the right to fair trial can demand public funds be used for representation

[170] …where the trial judge finds that representation of an accused by counsel is essential to

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

Physician Assisted Death Exception Doesn’t Require Terminal Illness

Following the extension to develop assisted dying legislation, provincial courts have scrambled to meet the special exemptions created by the courts.

The first provincial application under this exemption was Re HS in February 2016, where the motion judge described her role in such an application,


[51] … The role of this Court is limited to applying or authorizing an existing constitutional exemption and determining whether a particular person qualifies for that exemption…

The process for doing so would be to apply the criteria enunciated by the Court in the 2015 Carter decision at para 127 to a a . . . [more]

Posted in: Substantive Law: Judicial Decisions

Apology for Workplace Sexual Harassment

It was recently reported in the media that after signing a peace bond, Jian Ghomeshi apologized in court on May 11, 2016, for his “sexually inappropriate conduct” towards a former co-worker who accused him of sexually assaulting her. Following the apology, the Crown withdrew the criminal charge of sexual assault for which Ghomeshi was slated to stand trial on June 6, 2016. . . . [more]

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

The Internet Can Be as Deadly as It Is Empowering

All child deaths due to illness are a tragedy, but some tragedies are more pronounced than others.

When a child’s death could have been properly prevented through medical intervention which was deliberately refused by the children’s parents, most of us are at least shocked, if not outraged.

This week David and Collet Stephan of Lethbridge, Alberta were convicted for failing to provide the “necessaries” (sic) of life under s. 215 of the Criminal Code. This section is used more commonly to address insufficient feeding for underweight babies, babies drowning in bathtubs, and even with the risk of physical abuse by . . . [more]

Posted in: Substantive Law: Judicial Decisions

Judge Calls for Tenancy Law Reforms After Finding Tenant “Gaming the System”

An Ontario Superior Court Judge has expressed his hope that legislative changes will be made to stop unscrupulous tenants from “gaming the system”.

The facts of the case are straight forward and rather appalling.

The tenant entered into an agreement to lease a condominium in downtown Toronto starting in September, 2015. The rent for the first month cleared but the rent for October bounced. The tenant has not paid another cent since that time, although he continued to reside in the unit.

The landlord served a “Notice to End Tenancy Early for Non-Payment of Rent” on October 16, 2015. On . . . [more]

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