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Archive for ‘Substantive Law: Judicial Decisions’

Born in Canada, Not a Citizen, but No Place to Go

We like to believe that our citizenship is integral to our identity. Unless we renounce it, we like to believe it cannot be taken away from us, and that is why we cherish it so much.

Of course that changed in 2014 with Bill C-24, which strengthened the ability of the government to revoke citizenship. Unless it was obtained fraudulently, the government was not able to enact this measure in modern times.

The number of revocations under Bill C-24 have actually increased under the new government, which appeared to criticize it while in opposition and restored citizenship to some . . . [more]

Posted in: Substantive Law: Judicial Decisions

OHRT Challenges Infamous Family Status Test

Written by Cristina Lavecchia, paralegal, Editor, First Reference

In a recent decision (Misetich v. Value Village Stores Inc.), the Human Rights Tribunal of Ontario (the Tribunal) questioned the value of various past case laws that have introduced and applied different tests for family status discrimination, including the Johnstone test. More specifically, the Tribunal disapproved of the existence of distinct “tests” for establishing family status discrimination. . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

SCC Renders Practical Privacy Decision on Mortgage Information

The Supreme Court of Canada, in Royal Bank v Trang, made a privacy decision that will bring a sigh of relief to lenders and creditors.

A judgment creditor asked the sheriff to seize and sell a house to satisfy the judgment. To do that, the sheriff needed to know how much was owed on the mortgage on the house. The mortgage lender didn’t have express consent to provide the information, and said PIPEDA prevented it from giving it. Lower courts agreed.

But the SCC took a more practical approach. The issue was whether there was implied consent to release . . . [more]

Posted in: Substantive Law: Judicial Decisions

Modified Causation in Workers Compensation

Causation in law is a legal fiction. The philosophical underpinnings behind compensation in tort law require some finding of fault, in order to restore the party to their original position. The but-for test used to evaluate these claims is the compromise the law has developed to hold someone accountable for harm suffered by another party.

However, not all forms of compensation in law are administrated by tort law. Injuries suffered by workers as part of the workforce, in particular, have been carved out into a no-fault regime, specifically for the purpose of resolving these issues more efficiently, more effectively, and . . . [more]

Posted in: Substantive Law: Judicial Decisions

A Sentence to Go “Home”

The bar has often lamented the lack of “plain language” by the bench, a necessary prerequisite for transparency and open access to the public.

At times, the need for this approach has been criticized as overlooking the needs of the parties. Sometimes, like in the Meads case, this approach is intended to address broader, systemic problems. As I told Canadian Lawyer Magazine a few years ago,

“I think the fact that the judge even made this ruling suggests how big a problem it is,” says Toronto lawyer Omar Ha-Redeye. “This is a hot issue. Family law is in crisis

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

Entire Agreement Clause Doesn’t Trump Unconscionability

Donald Trump is estimated to have been involved in over 3,500 lawsuits, unprecedented for any presidential nominee. Most recently, he threatened to sue for defamation over further allegations of groping. Sources, however, indicate he hasn’t actually sued a news outlet in decades, and his threats may have a boomerang effect.

It’s clear that he has other legal disputes on this side of the border as well. Many of them involve the tower in downtown Toronto which bears his name. Only one of them has been reported though, and the Court of Appeal recently weighed in on this action . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Measuring “Serious Harm” in a Data Breach

The prevailing legislative standard in Canada for a duty to report a breach of data security (loss of data, compromise, etc) seems to be that there is a real risk of serious harm as a result of the breach.

Have Canadian courts or regulators given useful guidance on when that happens, and what kind of harm is serious and likely? I am especially interested in court rulings, since the threat of litigation can focus the data holder’s mind as much as or even more than a regulator’s order. (Have privacy regulators cracked down on reporting requirements or other useful follow-up . . . [more]

Posted in: Substantive Law: Judicial Decisions, ulc_ecomm_list

In Defence of “Safe Spaces” on Campus

A university student walks on to campus, wearing a hat that appears to support Donald Trump. Controversy ensues. Oh yeah, the campus was in Canada.

The video of the incident attracted far broader attention, including renewed discussions of the role of “safe spaces” on campus. The debate in Canada followed right after a similar discussion at the University of Chicago, where the Dean of Students told the incoming class of 2020,

We do not support so-called ‘trigger warnings,’ we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual

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

Using Social Science Research as Judicial Notice

Judicial notice is an important underpinning of litigation in Canada. The need to prove every trite and accepted fact as evidence would make litigation even more unwieldy than it already is.

Some of the problems emerge when judicial notice is used for facts which may be disputed by the parties. For example, in R. v. Zundel, the Court dealt with hate speech and the denial of the Holocaust. To provide the defendant to litigate the purported evidence against the facts around the Holocaust would only give him a platform to extend his hate speech further. Instead, the trial judge . . . [more]

Posted in: Substantive Law: Judicial Decisions

Wagg Motions: Is There a Better Way?

In 2004, the Ontario Court of Appeal released the decision D.P. v Wagg, 2004 CanLII 39048 (Wagg). And with it birthed an entirely new bureaucracy devoted to Wagg motions.

In Wagg, the defendant was charged criminally for sexually assaulting his gynecological patient, referred to as D.P. D.P. then sued her doctor civilly for sexual assault. In the civil proceeding, D.P. wanted the defendant to disclose the contents of the Crown Brief, which was produced to him in the criminal action. The defendant refused to produce the Crown Brief to her. The plaintiff then brought a motion . . . [more]

Posted in: Substantive Law: Judicial Decisions

TWU Decision Really About Deference and Autonomy

The much anticipated decision by the Court of Appeal in Trinity Western University v. The Law Society of Upper Canada was released this week.

Although the court upheld the Divisional Court decision last year, which itself upheld the law society’s decision not to accredit Trinity Western’s law school, this week’s decision was neither a condemnation by the courts of the school or a vindication of its opponents. Instead, it was a commentary on the role of a self-regulated profession, and the importance of maintaining our own autonomy.

The court touched on, briefly, the applicability of Trinity Western’s previous trip to . . . [more]

Posted in: Substantive Law: Judicial Decisions

Assisted Dying Finally Becomes Law

After pushing it through the Senate on Friday morning, the House of Commons finally voted for Bill C-14 on Friday afternoon. The Department of Justice has created a Q&A page on the Bill and some of the related issue.

The Senate attempted to modify Bill C-14 to adjust the issue of reasonable foreseeability, but were unsuccessful in doing so. This issue was especially important in light of a recent decision by the Alberta Court of Appeal, which indicated this criteria was not necessary under the 2015 Carter decision.

The Department of Justice has responded to this concern in an . . . [more]

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