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Archive for ‘Substantive Law: Judicial Decisions’

Do Mental Health Act Detainees Have Charter Rights?

Upon arrest or detention, a police officer must advise a detainee of their s. 10 Charter right to retain and instruct counsel without delay. Does this right apply if a person is “apprehended” and taken involuntarily to a health facility for a psychiatric assessment? Presumably it does: if the individual is not free to leave the officer’s custody or refuse the examination, then their individual liberty is clearly suspended by a state authority. This is the very definition of a “detention” under the Charter: R v Grant. Yet, the case law implies that officers may be failing to advise . . . [more]

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

Judicial Lineups and “Festivus” Presents

I’ve been sitting on this one to see what Santa might have in store for M.M (M.M. v. United States of America, 2015 SCC 62.) As I expected, and I assume others did, too, the Liberal gov’t has decided to review the prior Conservative regime’s decision to surrender M.M. for extradition to the United States: see here. You’d think that somebody in the editorial department of the newspaper involved would know the difference between statements in dissenting reasons and the majority reasons but, in the spirit of the season, I’ll let that pass.

Can I get a mental . . . [more]

Posted in: Substantive Law: Judicial Decisions

Mistakes in Website Prices – Consumer Items

A Quebec court has recently held that Costco was not bound to sell a computer to a consumer for $2.00, as advertised on its web site. Although the Consumer Protection Act says that an ad to a consumer is an offer, the court (Cour du Québec) held that online sales are different.

Here’s an article about the decision.

I presume the decision would be similar in common-law Canada. Is it not general law that an ad on a website is considered an invitation to treat, rather than an offer that can be accepted by anyone in the world? Certainly the . . . [more]

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

Workplace Accommodations: I Can’t Work Because I Have to Work (Somewhere Else)!

To what extent does an employer have to accommodate an employee’s other work and personal commitments when those commitments are unrelated to grounds protected under human rights legislation? A recent Ontario decision sheds light on an employer’s ability to dictate an employee’s work schedule in these circumstances.

In this case, the employee was a server who worked part-time for the employer. The employee was absent for over 20% of her scheduled shifts in a one-year period, and the employer terminated her employment in accordance with its attendance policy. The reasons for the employee’s absenteeism were two-fold. First, she worked full-time, . . . [more]

Posted in: Substantive Law: Judicial Decisions

Permanent Trolling Injunctions Still a Temporary Solution

Trolls lurk in many dark recesses of the Internet. They make online browsing hurtful, defamatory, and sometimes, outright dangerous. These trolls are rarely slayed forever, and often raise their heads once again when given enough time.

The Ontario Court of Appeal recently reviewed an injunction granted in 2014 against a couple operating a website from publishing “in any manner” statement found to be defamatory towards an Ottawa lawyer, Richard Warman.

Among other grounds, the defendants sought a review of the permanent nature of the injunction as being overly broad. The very nature of the website in question was a . . . [more]

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

Nova Scotia’s Cyberbullying Law Struck Down

Nova Scotia’s Cyber-Safety Act has been struck down as unconstitutional, with immediate effect.

The law clearly intended to restrict expression. The way it did so was held so vague as not to constitute a restriction “prescribed by law” as required by section 1 of the Charter. It was also disproportionate to the harms it sought to remedy. The court declined to suspend application of the ruling, as the Crown had requested.

Further details are in the blog of the successful counsel, David Fraser of Halifax.

Tragic circumstances do not justify a hasty or overbroad legislative response. . . . [more]

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

Specific Performance: Court Finds Vacant Land “Unique”

When a commercial real estate transaction goes south, purchasers often ask their lawyers if they can advance a claim for specific performance of the contract. The answer is often “no”, due to the fact that specific performance is only granted in instances where the property is unique, such that damages would not be a satisfactory remedy for the aggrieved purchaser. “Uniqueness” may lend itself to residential property, but often not to commercial property given that commercial property is being acquired for profit and therefore there are other, similar, properties available to be acquired.

 

However, recent decisions, including one released . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Of CanLII Quirks and Hacks for Noting Up Supreme Court Family Rules in BC

Apologies to other Slaw readers in advance. This post is mostly for BC lawyers interested in using CanLII to note up specific Supreme Court Family Rules. I shared these tips recently in a paper for a CLE and thought the general principle or method might be helpful to a broader audience too.

I’ll preface this post to say that 95% of the time, CanLII is a simply phenomenal tool. Deeply customizable search operators and a clean interface/search template. It’s a killer app for lawyers and others seeking to know the law. It is, however, strangely ill-suited to note up specific . . . [more]

Posted in: Legal Information: Libraries & Research, Legal Information: Publishing, Substantive Law: Judicial Decisions, Substantive Law: Legislation, Technology: Internet

Reasonable Notice: Poor Employer Finances No Excuse for Poor Notice

In a recent decision, the Ontario Court of Appeal clarified that when an individual’s employment is terminated without cause, the financial viability of the employer’s business is not a factor that affects the period of reasonable notice owed to that employee.

The case involved a private school’s termination of the employment of three of its teachers. In the wrongful dismissal proceedings, the judge concluded that twelve months was a reasonable notice period in the circumstances. However, the judge proceeded to reduce the teachers’ notice to six months, because of the volatility in the school’s enrolment and funding.

In allowing . . . [more]

Posted in: Substantive Law: Judicial Decisions

The New Bardal Factors May Just Be the Old Bardal Factors

Calculation of reasonable notice in employment law is one of those peculiarities where very little is definitive. Reasonable notice, and payment in lieu, is more of an art than a precise determination.

Employers are not obligated to hire indefinite term employees forever, but where employees are dismissed without cause the employer should provide employees enough time to find replacement work. This notice period, or payment provided instead of working notice, are intended to compensate employees for losses a period of reasonable notice.

The principle was clearly stated by the Supreme Court of Canada in Machtinger v. HOJ Industries Ltd. . . . [more]

Posted in: Substantive Law: Judicial Decisions

Drug Smuggling Lawyer Reversed on Appeal

As lawyers, we hold ourselves to a higher code of conduct. So when that code is called into question, for example through allegations of impropriety around drug trafficking, they create cause for concern for the entire bar.

In 2012, Deryk Gravesande was charged with trafficking after approximately 58 grams of marijuana and a parcel of lidocaine was found on his former client, who was incarcerated at the time. The guard claimed to search the prisoner both prior and following his meeting, and it was in the second search that the drugs were found in the prisoner’s underwear.

He was convicted . . . [more]

Posted in: Substantive Law: Judicial Decisions

Slow Aether in Ontario, Too

This being Friday the 13th, my alternative post-title was the name of the song you’ll find here and here; on the other hand, I am allergic to most cats, black or otherwise. What does that have to do with the problem in the decision I’m about to write about? Well … how about this? If we can’t blame the problem on “slow aether”, maybe it’s just bad luck. I mean, what else could it be?

Consider these paragraphs from Taylor v Great Gulf Group Limited, 2015 ONSC 6891 (CanLII) released on 9 Nov. 2015. Taylor is the . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions