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Archive for ‘Substantive Law: Judicial Decisions’

Of Living Wills, Margot Bentley and Upcoming Webinars From Nidus

We’re about five years away from a demographic tsunami—that forecast point in time when 25% of Canadians will be 65 or older. Standing in the shallows, you can already feel the sucking silence. Every institution senses the water being drawn out from around its feet. They are all bracing for the shuddering power of change when that wave hits.

Much hand-wringing is occurring over how our economic apparatus will handle this surging demographic threat, but there is also a broader social component emerging. I’m referring to the emerging awareness and everyday discussions around significant “end-of-life” issues, such as the ones . . . [more]

Posted in: Substantive Law: Judicial Decisions

Employer Harassed, Stalked and Threatened Employee Because of Sexual Orientation

In Graham v Shear Logic Hairstyling, an employee was awarded $11,400 representing general damages for denigration of her dignity and self-respect, and for psychological and emotional harm she experienced due to discrimination in employment on the grounds of sex and sexual orientation, in addition to sexual harassment. . . . [more]

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

Is a Typed Name on an Email a Valid Signature?

Both Canadian law and American law, through their uniform e-transactions statutes, give a wide definition to ‘electronic signature’ – being essentially any information in electronic form in or associated with a document with an intention to sign the document.

The ‘intention to sign’ requirement aimed to ensure that the same mental element was required for an e-signature as for a handwritten signature.

A recent California Court of Appeal case, J.B.B. Investment Partners v Fair, held that a person who typed his name at the bottom of an email saying ‘ I agree’ to settlement agreement sent to him by . . . [more]

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

Breath Samples at Prom an Unreasonable Search

High school administrators have a challenging burden of ensuring the health and safety of children in their schools. High school students often get into trouble, including using alcohol before they are of the age of majority.

Although the high school prom is supposed to be a memorable occasion, many high school students only recall a haze due to drinking around and surrounding this event. One high school principal sought to use mandatory breathalyzers at his prom, but an Ontario Superior Court of Justice ruling by Justice Himel in Simon Gillies et al v. Toronto District School Board found that this . . . [more]

Posted in: Substantive Law: Judicial Decisions

Remedial Costs for Unreasonable Settlements by Insurers

In the threshold motion in Maxwell v. Luck, previously discussed here, Justice Howell pushed back against what is increasingly becoming a routine attempt by insurers to dismiss chronic pain on the basis of the lack of objective symptoms in personal injury claims.

The cost award, released shortly thereafter, may have significant effects on how insurers in Ontario approach threshold motions in the future.

Justice Howden awarded fixed costs of $150,400, and disbursements of $ 56,332, taking into account that the plaintiff was under a statutory obligation to pursue accident benefits as well. This approach was upheld in Moodie . . . [more]

Posted in: Substantive Law: Judicial Decisions

Does Including a Forwarding Feature to Defamation Amount to Republication?

The Supreme Court of Canada in Crookes v Newton held that the mere linking to a web site that contained defamatory material did not make the linker liable for defamation. Adding content to the link might change that result.

The Supreme Court of British Columbia has recently held, however, that offering a link to an email program (e.g. ‘mailto:’) on a web page that contains defamatory material constitutes republication of that material, apparently whether or not anyone used it.

Weaver v Corcoran 2015 BCSC 165 (CanLII)

Here is the main passage on that point:

[261] The invitation to email the

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

Supreme Court Declines to Enshrine the Independence of the Bar as a Principle of Fundamental Justice

This morning in Federation of Law Societies of Canada v. Canada (Attorney General), the Supreme Court of Canada upheld (with minor adjustments) the decision of the British Columbia Court of Appeal and Canada’s Proceeds of Crime (Money Laundering) and Terrorist Financing Act, was held defective since it did not adequately protect solicitor-client privilege in its search procedures. Parliament will have to significantly revise the scheme to add more safeguards.

A narrow set of professional duties was held to meet the principle of fundamental justice test, established in the Malmo-Levine test: R. v. Malmo-Levine; R. v. Caine: . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Age Limit for Loss of Earnings Benefits Doesn’t Violate Charter

The Workplace Safety and Insurance Act’s age cut-off for loss of earnings benefits does not violate the Canadian Charter of Rights and Freedoms, Ontario’s Divisional Court decided in Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

New Trial for Manager Terminated Over Misuse of Company Property

In Roe v British Columbia Ferry Services Ltd, a British Columbia trial judge made too many assumptions and not enough findings of fact when he decided that an employee’s dishonest conduct was “trifling,” “relatively minor” and not sufficient to justify termination. The Court of Appeal ordered a new trial for the employee after finding that the trial judge made a “palpable and overriding error” due to his failure to undertake an objective contextual analysis, as required for cases of alleged just cause.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Finding More “Meaning” in the Future of Labour Law

We are all looking for meaning in life.

For some of us that means we want to make an impact on the world. For others, it means the mass accumulation of wealth. And for some, like the Justices of the Supreme Court of Canada, it means rendering every textbook published on labour law prior to 2015 entirely obsolete.

Hot on the heels of their recent decision Mounted Police Association of Ontario v. Canada (Attorney General), the Court released a decision on Friday in Saskatchewan Federation of Labour v. Saskatchewan. The majority overturned the Saskatchewan Court of Appeal decision . . . [more]

Posted in: Substantive Law: Judicial Decisions

Workplace Resolution #3: Watch What You Say Online…

What you say online stays online and could get you fired. It is becoming increasingly clear in Canada that offensive or disparaging online statements can merit termination for cause, particularly where the conduct has a negative impact on the employer. Surprisingly, the same is not necessarily true in the United States (see my post here for more details). However, the recent wave of employer-supportive decisions favouring terminations for cause may have given some companies a false sense of security. The recent decision of Kim v. International Triathlon Union, 2014 BCSC 2151 is a good illustration of that point and how . . . [more]

Posted in: Substantive Law: Judicial Decisions