In fact, it's necessary for the efficient functioning of the legal system.

Merits and appearances matter.

Cojocaru British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 [CanLII link here], released today, holds, unanimously, that the mere fact judicial reasons duplicate, with or without attribution, a party's submissions does not amount to reversible error.

The plaintiff succeeded at trial. The BCCA (by a majority) ordered a new trial. The SCC allowed the appeal. Then dealing with the merits, the SCC unanimously varied the trial judgment so that the plaintiff obtained judgment only against one of the defendants. The . . . [more]

Last week the UK Supreme Court handed down its judgment in two appeals eagerly awaited by the Trusts and Estate bar: Pitt v. Holt and Futter v. Futter. They concern the rule which emerged since the 1975 decision in Hastings-Bass (HB) by which trustees could attack their own decisions where they had unintended consequences. Some commentators dubbed it the "morning after pill".

A Press summary of the UKSC decisions can be found here.

Typically the sorts of cases where the HB rule has been applied are to give relief to decisions which have resulted in taxation that was unintended and . . . [more]

On September 11, 2008 N.S., a sexual assault complainant sat in a court room in Ontario and struggled to explain to a judge why she shouldn’t have to remove her niqab, face veil, while she testified. “My face” she insisted, “is not going to show any signs of – it is not going to help, it really won't.” N.S., though unbeknownst to her at the time, had just pushed up against one of the most strongly held beliefs of our legal system – that faces ought to be visible in court and that credibility could be determined by observing a . . . [more]

The office of the Chief Justice of Canada issued the following press release April 26, 2013:

FOR IMMEDIATE RELEASE

The Supreme Court of Canada conducted a thorough review of its records and it does not have any documents relevant to the alleged communications by former Chief Justice Bora Laskin and former Mr. Justice Willard Estey in relation to the patriation of the Constitution of Canada. This concludes the Court’s review.

===============================

POUR DIFFUSION IMMÉDIATE

La Cour suprême du Canada a complété un examen exhaustif de ses dossiers. Ceux-ci ne contiennent aucun document au sujet de communications que l’ancien juge en . . . [more]

A few comments with respect to access to justice caught my attention in the recent Manitoba Queen’s Bench (Family Division) decision in Price v. Laflamme, 2013 MBQB 25 (CanLII). In the course of providing reasons for a decision on costs at the conclusion of a lengthy trial, the trial judge noted that the conduct of the petitioner’s conduct in the matter effectively discouraged any possibility of resolution of the matter. He noted that:

Implicit in that conduct may have been a desire to exhaust the resources of the respondent/father in pursuing his position. No stone was left unturned. No examination

. . . [more]

The literary bug has bitten our courts again, this time infecting the writing hand of Fergus O'Donnell of the Ontario Court of Justice. I came across his judgment in R v. Duncan (2013.03.26), since featured in the Toronto Star, in an ethics email list I belong to, where it came in for a lot of interesting criticism. (It's not yet reported but a PDF copy is available on Slaw.) In the opinion Justice O'Donnell adopted a casual style that owes something to the mystery genre, as well as a good dose of the sardonic approach taken to the . . . [more]

Mr or Ms Executive, in the ONCA's reasons for judgment released today, to keep your mouth shut about the state of confidential negotiations.

Here's a link to the reasons on the ONCA  and some excerpts.

[1] This appeal is from the judgment of Justice Edward P. Belobaba dismissing the appellant’s application for an order that the respondents disclose the identities of confidential sources for a story written by the respondent Sinclair Stewart and published by the respondent the Globe and Mail Inc. The appellant, whose sole officer, director and shareholder is Jeffrey G. MacIntosh, holder of the Toronto Stock Exchange Chair in Capital Markets

. . . [more]

I'll leave the substantive comments on the validity and merits of the decision to those with the expertise. I'll say only that I suspect the Harperite law & order types involved in the appointment of Justices Moldaver and Karakstanis expected them to line up on the gov't's side and not the civil liberties side.

  . . . [more]

This is an eventful week so far for those interested in US copyright matters. As many will have read, on Tuesday the Supreme Court of the US released a 6-3 ruling in Kirtsaeng v. John Wiley & Sons, Inc., in which it addressed the reach of the first-sale doctrine in respect of works published for foreign markets, or—stated another way—the reach of a copyright owner's control over those products. Twitter continues to show joy over the decision among librarians and consumers of information, along with dismay among others concerned with importation and copyright control.

In Opinion analysis: Justices reject . . . [more]

Although we are all excited to try out the new iPhone 5, Samsung Galaxy S III, or Blackberry 10, few of us think what it means for us to be carrying this enormous amount of information in our pockets.

The Canadian Charter grants the "right to be secure against unreasonable search or seizure," but one of the main exceptions to this is a search incident to an arrest, which allows a police officer to frisk a person who has been lawfully arrested. This exception exists largely because it has been considered a minimal intrusion on individual rights necessary to ensure . . . [more]

A criminal case was recently decided in which, I'm sure, many people reading this saw in the national media. It created a brief stir and the news cycle went on. What it left behind is a disturbing glimpse into our national obsession. In this case a minor hockey coach intentionally tripped a player on an opposing team in the handshake line at the end of the game and causing him injury. The purpose of this post is not to draw attention to the individuals involved in this incident or even the case itself, but to highlight the actions that would . . . [more]

Some of you might be interested in recent comments of Professor Jason Neyers (of the University of Western Ontario, Faculty of Law), which I repeat with permission, on the Supreme Court of Canada's recent decision in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 (CanLII).

Dear Colleagues:

Although from a very high level of generality, the Antrim case really changes nothing in relation to the way Canadian courts decide nuisance cases (a two-step test of substantialness and reasonableness) on many points of detail the case is very troubling. What are some of these troubling bits?

1. The court never explains

. . . [more]