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Archive for ‘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

No Tort of Harassment for You!

The common law in Ontario has proven relatively adept at developing new torts, in particular in the area of privacy law, to change and adapt to relatively stagnant or unsatisfactory statutory developments.

Although the tort of intimidation has long been recognized as giving rise to a cause of action, as affirmed in cases such as Tran v. University of Western Ontario, the status of the tort of harassment has been much more divided.

The Supreme Court of Canada affirmed in the 1981 decision of Seneca College of Applied Arts and Technology v. Bhadauria that human rights legislation . . . [more]

Posted in: Substantive Law: Judicial Decisions

BDS and Terrorism Sympathies as Fair Comment

When the Ontario’s Libel and Slander Act was amended in 2015 under the Protection of Public Participation Act, the explicit purpose of implementing the 2010 recommendations by the Anti-SLAPP Advisory Panel. Since that time, the interpretation of these provisions continue to evolve.

This past week, the Ontario Court of Appeal released its decision in Lascaris v. B’nai Brith Canada, overturning the decision of the Superior Court of Justice that had granted the anti-SLAPP motion under s. 137.1(3) of the Courts of Justice Act to dismiss the action.

Justice Rady of the Superior Court outlined the public interest purpose . . . [more]

Posted in: Substantive Law: Judicial Decisions

Implied License for Differential Treatment

The interaction between law enforcement and notions of privacy in the security of our homes has always been a special focus of s. 8 Charter rights. The treatment of the home as a special place in the law was described by Justice Binnie in R. v. Tessling as a nuanced hierarchy protecting privacy of places, used to evaluate the reasonableness of a person’s expectation of privacy.

This privacy interest is not absolute, and although the “dwelling house” enjoys the greatest expectation of privacy, the perimeter space around the home enjoys a diluted measure of this same expectation.

One example of . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Investigating Issues of Intersectionality

The notion of “intersectionality” has become a popular buzzword in pop culture and social activist groups. It describes the notion that various grounds of discrimination, such as gender, race, sexual orientation, religion, disability, etc., can affect and interact with each other in overlapping and complex ways.

First coined within the feminist movement in the early 80’s to help illustrate the exclusion of racialized women from many feminist initiatives, it helped illustrate how advocacy on behalf of a discriminated or marginalized group can also inadvertently create its own patterns of oppression and exclusion, not only towards other discriminated groups, but within . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Wage Rate Sheet for Fellow Employees’ Personal Information Protected Under Alberta’s PIPA

A recent Alberta privacy case, P2019-ND-006 (in PDF), deals with a breach of salary information about identifiable individuals under the Personal Information Protection Act(PIPA). The Office of the Privacy Commissioner of Alberta found that “A reasonable person would consider that the identity and salary information could be used to cause the significant harms of hurt, humiliation and embarrassment, particularly if shared with individuals who have a personal or professional relationship with the affected individuals.”

What happened?

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

Implied Contract Between Students and Universities

The broad discretion of universities over resolving academic disputes has been clearly stated in Ontario in cases like Jaffer and Aba-Alkhail. The complex nature of such disputes means that the internal dispute resolution mechanisms within universities are usually the primary means to resolve such issues, though not necessarily the final one.

However, where a student’s claim goes beyond student evaluations, structure of the programs, competence of advisors, and other matters that are intrinsically academic, the situation is not necessarily so clear. The Ontario Court of Appeal recently weighed in on this further in Lam v. University of Western Ontario . . . [more]

Posted in: Substantive Law: Judicial Decisions

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