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Archive for ‘Substantive Law: Judicial Decisions’

Privacy Torts in the Unionized Context

The tort of intrusion upon seclusion continues to grow and find application in new settings and circumstances, which is what we would expect for a tort created less than 5 years ago.

In Complex Services Inc v Ontario Public Service Employees Union, arbitrator Surdykowski sided with the employer in finding that this new tort dealt with non-legislated and non-contractual rights to privacy. These rights would necessarily be limited in the unionized context.

This holding was summarized in United Food & Commercial Workers, Local 206 v G & K Services Canada Inc as follows,

94. ..An employee does not have

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

Judicial Review vs. Request for Reconsideration

Federal Court published a decision regarding the government’s policy when to reconsider or re-open an application. In his decision, Justice Phelan came down hard on the government’s inflexible guidelines as they lack “common sense and fairness”. This is a very significant decision for immigration practitioners and lawyers who make requests to Visa Officers or other government officials to have their matters reconsidered.

The facts of Lim v. Canada are relatively simple. The Applicant applied for Canadian citizenship, an Officer requested more information via letter but the letter was not received. The application was deemed abandoned and the file closed. When . . . [more]

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

The High Cost of Public Interest Litigation

Despite all the bad publicity, many lawyers are the unsung heroes of society. We fight the good fight, often unrecognized by any of those around us, and receive no thanks from the recipients of our hard work.

The Federal Court of Appeal released a decision this month in Galati v. Harper, denying the appeal of a 2014 decision which had denied substantial indemnity costs in the constitutional litigation surrounding the Justice Nadon appointment to the Supreme Court. Justice Zinn fixed the costs at a mere $5,000, on a bill of costs for a total of $68,475.74.

The application had . . . [more]

Posted in: Substantive Law: Judicial Decisions

Paying the Price for Not Providing Reasonable Notice and the Manner of Termination

In the case of Armstrong v Lendon, the Ontario Superior Court of Justice concluded that the employer had to pay 21 months of reasonable notice plus aggravated damages for the manner of termination which caused humiliation, embarrassment and the loss of self-esteem. The court did not buy the employer’s argument that there was just cause for the termination, especially since the allegations for cause were made after the fact. . . . [more]

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

Yet Another Privacy Tort Comes to Ontario

When the tort of intrusion upon seclusion was introduced in 2012, it was of significant importance. A civil remedy for the growing area of privacy rights was desperately needed, but it was uncertain how extensive this tort would be used.

I’ve spoken about this tort at law schools, to industry, and even published a journal article on it. But the area of privacy law is about to become even more exciting with the introduction of yet another privacy tort this week in Jane Doe 464533 v. ND [there is no CanLii link on this yet].

The parties . . . [more]

Posted in: Substantive Law: Judicial Decisions

Invasion of Privacy Tort Continues to Develop

In Ontario, conventional wisdom was that invasion of privacy was not something you could sue for. But that is changing, as evidenced by a just released decision of the Ontario Superior Court of Justice called Jane Doe 464533. That decision awarded damages and costs totaling $141,000, plus an order for the defendant to destroy any video or images he may still have, never to share any intimate images of the plaintiff, and to not communicate with the plaintiff or her family. A pdf version of the decision is here: Doe – redacted

Until this decision, the first case of a . . . [more]

Posted in: Substantive Law: Judicial Decisions

Union Grievances and Discrimination Under the Human Rights Code

Can a unionized employee who received settlement money as a result of a union grievance also make an application under the Human Rights Code, alleging discrimination as a result of the same situation? Two recent cases of the Ontario Human Rights Tribunal have addressed this issue with opposite outcomes. In Ma v University of Toronto, an employee’s application was allowed to continue, whereas in Sikorski v Vaughan (City), the employee’s application was dismissed.

The tribunal reached these decisions after interpreting Section 45.1 of the Code, which states that: “The Tribunal may dismiss an application, in whole or . . . [more]

Posted in: Substantive Law: Judicial Decisions

Twitter Hashtags Are Public Forums Under the Law

Brevity is the soul of wit, and also Twitter. In that brevity though, there is plenty of context which is left out, and ample room for interpretation.

The Ontario Superior Court of Justice released a decision in R. v. Elliott this week, where two female complainants alleged Criminal Harassment under Section 264 of the Criminal Code based on exchanges over Twitter.

Justice Knazan dedicated the early portion of his decision to explaining the mechanics and culture of Twitter, for “One cannot understand this case without knowing about Twitter.” It includes various definitions and lingo, including, “A concern troll is someone . . . [more]

Posted in: Substantive Law: Judicial Decisions

27 Months of Reasonable Notice After 40 Years of Service

In Markoulakis v SNC-Lavalin Inc., the Ontario Superior Court of Justice concluded after considering the Bardal factors that long-serving employee Eftihios (Ed) Markoulakis was entitled to 27 months of common law reasonable notice following his termination from a senior role at SNC-Lavalin. The court noted that notice beyond 24 months is within the court’s discretion in exceptional cases. Clearly, this was one of those cases. . . . [more]

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

Exemptions to Suspensions of End of Life Provisions

As expected, the Supreme Court of Canada granted an extension this week on the assisted dying legislation stemming from the Carter decision. The Court did not grant the 6 month extension sought by the government, but instead extended it by 4 months to match the delay stemming from the election.

The interesting twist here was the legislation in Quebec around end of life care, coming into force on December 10, 2015. The Court provided an exemption to the province, without weighing in on the merits of the Act itself.

The Court also considered the state of individuals who were . . . [more]

Posted in: Substantive Law: Judicial Decisions

Why We Should Keep the Doggie-Door Closed on Emotional Damages

Household pets are a cherished part of many families. Yet, in the words of Auxier J. in Pezzente v. McClain, 2005 BCPC 352 (CanLII), the law remains “coldly unemotional” towards companion animals, which continue to be considered “just another consumer product.” Nonetheless, there is good reason for continuing to restrict the compensation available in pet death or injury cases. A line of cases out of Ontario has begun to award more than just replacement value and incurred costs to owners of wrongfully injured or killed pets – and it may be setting a precarious precedent.

In Ferguson v. . . . [more]

Posted in: Case Comment, Education & Training: Law Schools, Law Student Week, Substantive Law: Judicial Decisions

Eluding Relief: Ministerial Discretion and the Impact of Recent Amendments to the Immigration and Refugee Protection Act

Recent amendments to the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”) (http://canlii.ca/t/52dg2) will make ministerial relief illusory for some foreign nationals deemed inadmissible to Canada on security grounds. The government created this problem in its response to the Supreme Court of Canada’s (“SCC”) ruling in Agraira v Canada, 2013 SCC 36 (“Agraira”) (http://canlii.ca/t/fz8c4). Agraira challenged the application of IRPA s 34(2) (http://canlii.ca/t/521ff) under which an inadmissible foreign national could apply to the Minister of Public Safety for an exemption if they could prove their presence was not contrary to the “national . . . [more]

Posted in: Education & Training: Law Schools, Law Student Week, Substantive Law: Judicial Decisions, Substantive Law: Legislation