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Archive for ‘Substantive Law: Judicial Decisions’

Drug Smuggling Lawyer Reversed on Appeal

As lawyers, we hold ourselves to a higher code of conduct. So when that code is called into question, for example through allegations of impropriety around drug trafficking, they create cause for concern for the entire bar.

In 2012, Deryk Gravesande was charged with trafficking after approximately 58 grams of marijuana and a parcel of lidocaine was found on his former client, who was incarcerated at the time. The guard claimed to search the prisoner both prior and following his meeting, and it was in the second search that the drugs were found in the prisoner’s underwear.

He was convicted . . . [more]

Posted in: Substantive Law: Judicial Decisions

Slow Aether in Ontario, Too

This being Friday the 13th, my alternative post-title was the name of the song you’ll find here and here; on the other hand, I am allergic to most cats, black or otherwise. What does that have to do with the problem in the decision I’m about to write about? Well … how about this? If we can’t blame the problem on “slow aether”, maybe it’s just bad luck. I mean, what else could it be?

Consider these paragraphs from Taylor v Great Gulf Group Limited, 2015 ONSC 6891 (CanLII) released on 9 Nov. 2015. Taylor is the . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

How to Prove That a Computer Uploaded Documents to the Cloud

In R. v Cusick, the Ontario Superior Court upheld a search warrant of a computer where that computer was suspected of having been used to upload child pornography to a cloud storage service.

What one searches for, apparently, are ‘artifacts’ – digital traces of the child porn files that passed through the computer on the way to the cloud. The case notes the difference between uploading from the computer’s hard drive (in which case the files may also still be on the computer) and uploading from a USB drive or mobile device (in which case they may not be, . . . [more]

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

Potential Legal Battle to Ensue Over Transit Employees’ Right to Strike

The Canadian Charter of Rights and Freedoms (the Charter) guarantees that everyone has the “freedom of association” (section 2(d)). The Charter’s guarantee of freedom of association has often been leveraged to protect employees’ rights in the labour relations context. According to recent media reports, the union that represents the Toronto Transit Commission (TTC) employees is looking to rely on section 2(d) to combat provincial legislation that declares the TTC an essential service and prohibits its employees from striking.

In January 2015, section 2(d) was successfully used to persuade a majority of the Supreme Court of Canada to . . . [more]

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

Avoid a Toxic Workplace Environment: New Developments on Sexual Harassment

This article is by Cristina Lavecchia, Editor, HRinfodesk, published by First Reference Inc.

Sexual harassment in the workplace can be toxic, and it is an issue that can have a profound effect on both an employer and their employees.

In response to this issue, on October 27, 2015, the Ontario government introduced Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015 (“Bill 132”).

If Bill 132 is passed, it would amend various statutes with respect to sexual violence, sexual harassment, domestic violence and other forms of abuse. . . . [more]

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

Digital Files Are Property in New Zealand

The Supreme Court of New Zealand has held that digital files in a CCTV system are property and could be stolen. Thus someone who accessed the system and uploaded the files to YouTube was convicted under the NZ criminal code for accessing a computer system without colour of right to obtain property.

The Court of Appeal had held that the digital files were not property, but the accused could be convicted of accessing the system to obtain a benefit, since he tried to sell the files before uploading them (not having found a buyer).

This seems like quite a change . . . [more]

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

I Quit(ish)! When a Resignation Is a Termination

When is a resignation not a resignation? Recently, the Ontario Superior Court dealt with a case where an employee cleaned out her desk, didn’t return to work but then took the position that she hadn’t quit after all.

Finding that she didn’t quit, the Court re-iterated that an employee’s resignation must be “clear and unequivocal.” In this case, the employee had sent an e-mail informing her employer that she had packed up her desk, but would be keeping her company cell phone, and that the employer could call her the following day to discuss. This e-mail was sent following an . . . [more]

Posted in: Substantive Law: Judicial Decisions

Jurisprudential Aether, Something in the Water, or Something in the Air?

When the Supreme Court of Canada says “X” in 2007, and repeats “X” in 2011 adding explicitly that “X does not mean Y but means Z”, it is reasonable to assume (is it not?) that, once word of what was said in 2007 and repeated in 2011 spreads through the Canadian “jurisprudential aether”, however long that takes, the judges of the lower courts in Canada will pay attention.

It’s always worth quoting this reminder about pecking orders in the Canadian judicial universe:

[51] Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary

. . . [more]
Posted in: Case Comment, Miscellaneous, Substantive Law, Substantive Law: Judicial Decisions

Interconnected Devices and Products Liability

We have occasionally discussed on this site (as recently as this week…) the implications of interconnected devices and the Internet of Things.

Here is an article that asks “should cyber-security vulnerabilities really be treated the same as design defects under traditional products liability law?”

The specific context is an infusion pump system that the Federal Drug Administration in the US thought was insecure and sent a warning about – a warning that sounded like a ‘defective product’ warning. The article raises a number of concerns about thinking about a security defect like another defect, including many complications about who . . . [more]

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

Facebook & Employment Law: Friend or Fired?

For many, Facebook is a blessing. For some, it’s a curse. For a few, it gets them fired.

For example, last month, an Atlanta employee at an American marketing firm took a “selfie” with the young son of his co-worker and uploaded the picture to his Facebook profile. A number of his friends proceeded to make racist and derogatory remarks about the boy and, in response to some of these comments, the employee published a comment describing the boy as “feral.” He was subsequently terminated by his employer as were some of the other individuals who made racist comments. These . . . [more]

Posted in: Substantive Law: Judicial Decisions

Better Options for Interprovincial Motions to Change Support

When families split apart, they don’t always stick around in the same province. Sometimes that gives rise to challenge circumstances for resolving proceedings or updating support orders.

Justice Pazaratz examined a interprovincial motion to change support in Chree v. Chree. The judge, who is now known for his writing style, started with the following:


  1. There’s an old saying: “Two Heads Are Better Than One”.
  1. But not when it comes to trial judges.

  1. Two judges. Each hearing different parts of the case. On different dates, many months apart. Having to make decisions on the same case.
  1. It
. . . [more]
Posted in: Substantive Law: Judicial Decisions, Technology

Amendments to Saskatchewan Essential Service Law

The Saskatchewan government has tabled amendments to Part VII of the province’s Employment Act in light of the Supreme Court of Canada’s January 30, 2015 decision, which struck down as unconstitutional an essential services law that prevents some public sector employees from striking. . . . [more]

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