Archive for ‘Substantive Law: Judicial Decisions’
Sometimes judges get it wrong. Even when they sit on the highest court of the land.
The nature of the common law is that decisions which are poorly written (a generous excuse for decisions which are poorly decided) still have binding authority, especially when made by the Supreme Court of Canada.
The interpretation of freedom of association under s. 2(d) of the Charter has undergone considerable change over the years. Courts generally applied a restrictive approach towards this right, until the 2007 decision in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia (“B.C. Health“), . . . [more]
Can you / should you / do you rely on the product of search engines as evidence in civil or criminal matters? Do you base legal advice on what you find on search engines, or on the use made of them?
A recent article in Canadian Lawyer canvasses some of the possibilities.
The Ontario Superior Court held that one could not establish facts by showing how often certain terms were used in Google searches. That was for the purpose of the certification of a class action.
However, showing previous use or actual use of trade marks can be done . . . [more]
Expert evidence is often perceived as a necessary evil by many judges. The “evil” of these experts is that they tend to enhance the adversarial nature of litigation, unduly complicate proceedings, and often add unnecessary costs for the parties.
What is the role of the court in excluding or managing this evidence?
Concerns over the excessive use of experts has been identified in several jurisdictions. A 2002 study by Carol Krafka in the US found that judges are becoming more recalcitrant towards accepting expert evidence post-Daubert. The 2009 Jackson Report in the UK accepted the manner in which expert . . . [more]
In Edwards v. Canada (Attorney General), the Privy Council considered whether “persons” under s. 24 of the Constitution Act included women,
24. The Governor General shall from Time to Time, in the Queen’s Name, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate and a Senator.
Lord Chancellor Viscount Sankey of the Privy Council stated,
. . . [more]
…their Lordships have come to the conclusion that the word “persons” in sec. 24 includes
Car insurance premiums are an important public policy consideration, even in light of the compensatory rationale underlined in tort law. In Ontario, the legislature has created a balance through s. 267.5 of the Insurance Act and its Regulations, which creates a “threshold” before which an injured person can receive damages after a motor vehicle collision.
(i) Has the plaintiff sustained a permanent impairment of a physical, mental or psychological function? . . . [more]
Brian Lloyd Sinclair died in September 2008 in the emergency department waiting room of Winnipeg’s Health Sciences Centre at the age of 45. He was pronounced dead in the early hours of September 21, 2008 after he had spent some 34 hours in the emergency room awaiting attention for what was initially a relatively minor health concern.
Brian Sinclair was an Aboriginal man who lived his early years on the Fort Alexander First Nation and went on to live in Powerview, Manitoba and ultimately, in Winnipeg. He faced a number of health challenges and as well as some cognitive impairment. . . . [more]
For the past few years (2011, 2012 and 2013), I’ve had the pleasure of sharing two “top 10” lists of the most consulted cases on CanLII with Slaw readers. One list is of all cases consulted and the other pertains only to consultations of cases decided within the year.
I’m very pleased to present the results for 2014.
I invite readers to weigh in with their thoughts on the significance of any case appearing on either list.
Top 10 most consulted cases of 2014[more]
The pervasiveness of “smart” technology was envisioned in part as far back as 1954 by Harold Osborne, who predicted we would all get a telephone number for life at birth.
When society adopts new technology, social institutions, including the courts, often take time to catch up with it. This was referred to as “cultural lag” by William Ogburn in 1959, who stated,
. . . [more]
When material conditions change, changes are occurred in the adaptive culture. But these changes in the adaptive culture do not synchronize exactly with the change in material culture. There is a lag, which may last for