Canada’s online legal magazine.
Rogers OutRank
Canadian Bar Association

Archive for ‘Substantive Law: Judicial Decisions’

Defendant Permitted to Defend Action Six Years After Plaintiff Obtains Default Judgment

The Ontario Court of Appeal has upheld a Superior Court Judge’s decision to set aside a default judgment obtained by the plaintiff and allow the defendant the opportunity to enter a defence.

The plaintiff provided various crop services to the defendant for a number of years. The defendant would routinely pay the plaintiff’s invoices late. This was not necessarily problematic since the plaintiff trusted the defendant and its invoices were usually paid, albeit late.

As the defendant got older, his son took a more active involvement in the defendant’s operations. While the plaintiff trusted the defendant, it did not trust . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

More Thoughts on Information as Property

There have been discussions on whether information can be ‘property’ for legal purposes (such as here and here), and the limits on that equivalence and the reasons for them. The English (and Welsh) Court of Appeal has recently addressed itself to that question again, in Your Response v Datateam Business Media [2014] EWCA Civ 281.

In that case, Your Response was working on a database of Datateam’s customers. In a dispute about payment, Your Response claimed a lien over the database and refused to return it to Datateam in the absence of payment.

The Court of Appeal held that . . . [more]

Posted in: Substantive Law: Foreign Law, Substantive Law: Judicial Decisions, ulc_ecomm_list

Employee Refuses to Admit Any Disability – Employer Still Liable!

I am a firm believer that when an employer is aware that an employeee suffers from a physical or mental disability, it must take all steps to accommodate them to the point of undue hardship. It’s settled law and it’s the right thing to do morally. I have coached clients on countless occassions to ask questions about potential disabilities and not just ignore an employee’s potential issues just because they aren’t bringing them to the fore and not focus only on performance management or discipline.

However, what happens when you do ask all the questions and the employee denies having . . . [more]

Posted in: Substantive Law: Judicial Decisions

Authentication vs Hearsay

The Ontario Court of Justice recently had occasion to consider the different grounds on which documentary evidence might be admitted or not admitted into evidence in a criminal case, in HMQ v Mondor.

Mr. Mondor was charged with accessing child pornography via a web site. The police had reconstituted the web site in order to trace certain purchases to the accused. As a result, the electronic records they used were not business records of the seller of the pornography for the purposes of s. 30 of the Canada Evidence Act. The Crown looked instead to what both it and . . . [more]

Posted in: Substantive Law: Judicial Decisions, ulc_ecomm_list

Elementary My Dear Watson

I’m guessing that of the readers of Slaw that there is a substantial subset that are fans of the BBC series Sherlock. So, fair warning if you haven’t seen the 3rd episode of Season 3 – “His Last Vow”, stop reading before you make the jump.

Now that I am sad that there will not be any new episodes for about two years, I have been thinking more about past episodes and I have a very simple question based on Episode 3. Let’s just say for the sake of my flight of fancy that Mary shoots Charles Augustus Magnussen and . . . [more]

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

Superior Court of Justice Certifies a Class Action for Wrongful Dismissal Against IQT

On January 2, 2014 Justice Perell of the Ontario Superior Court of Justice certified a class proceeding by 527 wrongfully terminated employees led by Bob Brigaitis and Cindy Rupert (represented by Ted Charney of Charney Practice Group) against their now bankrupt employer, IQT Solutions and the officers, directors, shareholders John Fellows, Alex Mortman, David Mortman, Renae Marshall and affiliated companies IQT Canada, Ltd., JDA Partners LLC, and IQT Inc. The employees seek to recover $20 million in unpaid wages and severance plus aggravated and punitive damages of $10 million. . . . [more]

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

Wearing My Religion: The European View

That’s me in the corner
That’s me in the spotlight
wearing my religion.
[apologies to R.E.M.]

As surely everyone in Canada will know there’s currently an attempt in Québec to impose a “charter of values” that would restrict the ability of some government employees to wear conspicuous religious symbols. Indeed, there has been discussion of extending to employers the freedom to impose rules excluding the use of conspicuous religious symbols.

In light of this, you might be interested to read “Religious Symbols, Conscience, and the Rights of Others” by Andrew Hambler and Ian Leigh in the Oxford Journal of Law . . . [more]

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

The Nadon Decision and the Wonderful Elasticity of Language

What struck me most about the Supreme Court of Canada’s Nadon decision was the simplicity of the underlying issues. “How should s. 5 and s. 6 of the Supreme Court of Canada Act be interpreted?” These questions go to basic issues of statutory interpretation involving the very composition of the Court. Yet the issue prompted a diversity of views from intelligent people – six on behalf of the majority, versus possibly four others (if the legal opinions of former Justices Ian Binnie and Louise Charron and scholar Peter Hogg are included together with Justice Moldaver’s dissent).

The only questions the . . . [more]

Posted in: Substantive Law, Substantive Law: Judicial Decisions

Victim Compensation Reexamined in Ontario

In the aftermath of the disappearance and death of a high profile Toronto lawyer, the legal community has expressed a greater interest in the victim compensation fund in place for clients of lawyers and paralegals practicing in Ontario.

At the February Convocation, new guidelines were put in place for the victim Compensation Fund, which has been in place since 1953. The fund serves to protect the public per s. 51(5) of the Law Society Act, and is administered by a Compensation Fund Committee established under By-Law 12. The Guidelines created by this Committee was recently upheld by the Divisional . . . [more]

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

Heather Robertson (March 19, 1942 – March 19, 2014)

We note the death of Canadian author, Heather Robertson, last Wednesday. She published her first book, Reservations are for Indians, in 1970, and her last book, Walking into Wilderness, four years ago. She was a founding member of the Writers’ Union of Canada and the Professional Writers Association of Canada.

For the Slaw community she is best known for being the representative plaintiff in the action by freelancers to be paid royalties for electronic and digital access to their work. Robertson v. Thomson Corporation is the seminal case on copyright in a digital environment as it affects freelancers . . . [more]

Posted in: Legal Information: Publishing, Miscellaneous, Substantive Law: Judicial Decisions

Nadon Cannot Sit, Supreme Court Rules

In a six to one jointly written decision (Moldaver, J. in dissent), the Supreme Court of Canada has answered the questions In the Matter of a Reference by the Governor in Council concerning sections 5 and 6 of the Supreme Court Act, R.S.C. 1985, c. S-26, as set out in Order in Council P.C. 2013-1105 dated October 22, 2013 2014 SCC 21 as follows:

1. Can a person who was, at any time, an advocate of at least 10 years standing at the Barreau du Québec be appointed to the Supreme Court of Canada as a member of the Supreme . . . [more]

Posted in: Substantive Law: Judicial Decisions

Electronic Evidence Case – Criminal Law and Social Media

The New Brunswick Court of Queen’s Bench recently admitted into a criminal case screenshots of a Facebook conversation that took place the day after an alleged sexual assault between the complainant and the accused. R v Nde Soh, 2014 NBQB 20

The court held – properly, in my view – that the screenshots were electronic documents within the meaning of ss. 31.1ff of the Canada Evidence Act, which reflect the Uniform Electronic Evidence Act. It found that the documents were properly authenticated. It decided that the computer system was sufficiently reliable in the absence of any evidence from . . . [more]

Posted in: Substantive Law: Judicial Decisions, Technology: Internet, ulc_ecomm_list