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Archive for ‘Substantive Law: Judicial Decisions’

Email Could Not Be Covered Under Solicitor-Client Privilege

An Ontario court has compelled an employer to produce an email message between HR staff and counsel in the wrongful dismissal case of Jacobson v Atlas Copco Canada Inc. The Superior Court of Justice found the employer failed to show that the message involved seeking or giving legal advice; thus it could not be protected by solicitor-client privilege. . . . [more]

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

A Meaningful Mediation Avoiding Remedial Costs

The issue of remedial costs, previously discussed here, posed one of the few checks on the growing power of insurance companies in Ontario for motor vehicle collisions.

The Ontario Court of Appeal recently released its decision in Ross v. Bacchus, reversing the trial judge’s award of remedial costs against the insurer for failing to comply with its obligations under the Insurance Act. Justice Doherty stated,

[51] Insurers, like any other defendant, are entitled to take cases to trial. When an insurer rejects a plaintiff’s offer and proceeds to trial, the insurer risks both a higher damage award

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

When Unions Fight

Headlines get made when employers and unions wage labour war. Teachers fighting provinces, police officers fighting cities and postal workers fighting Canada Post all make for great news. Inter-union fighting makes less noise but is also fascinating when it ends up before labour tribunals. A recent case provides a great example of what happens when unions “raid” each other (“raiding” is when one union attempts to sign up members represented by another union).

The story seems to start here, with the International Association of Machinists and Aerospace Workers (IAMAW) talking to its membership (Toronto area airport screeners) about . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Filing Suit Amid Suspension Isn’t Wilful Resignation

When the New Brunswick Legal Aid Services Commission decided unilaterally to place its executive director David Potter on indefinite paid suspension, the employee challenged the decision in court. The commission took the position that Potter’s legal challenge meant he had resigned, and cut off his pay and benefits. The case went to the Supreme Court of Canada and in Potter v. New Brunswick Legal Aid Services Commission, the Supreme Court concluded that Potter was constructively dismissed and did not voluntary resign his position. The central issue was whether and in what circumstances a suspension with pay of a non-union . . . [more]

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

26 Months’ Notice Awarded to Dependent Contractors

In Keenan v Canac Kitchens, the Ontario Superior Court of Justice concluded that two workers were owed termination notice by their employer because they were not independent contractors as the employer tried to argue, but rather dependent contractors as the evidence showed. Therefore, the employer did owe them termination notice. . . . [more]

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

Be Careful of Being Too Critical of the Trial Judge

In an appeal, everyone who has lost a case has sometimes felt the urge to viscerally complain about some aspect of the decision.

A recent decision of the Quebec Court of Appeal reminds us of the importance of making tempered criticism of the trial judge. Overstated criticism can even affect the overall credibility of an argument. In Dunkin Brands Canada Ltd. v. Bertico Inc., the Court of Appeal began its reasons with a dissection of the language used by the appellant in the factum, referring to “gross errors of law”, evidence that was “almost completely ignored” and “blatant” mistakes . . . [more]

Posted in: Substantive Law, Substantive Law: Judicial Decisions

The Real Incivility Case to Watch

Perhaps the best way to raise awareness of the 2015 Bencher Elections is to highlight what the function of the law society is. The LSUC website states,

The main function of the Law Society of Upper Canada is to ensure that all persons who practise law or provide legal services in Ontario are competent, follow proper procedures and behave ethically.

Ethical behaviour is generally interpreted through the lens of the Rules of Professional Conduct, and is one of the main disciplinary functions of the law society. Discipline, though rarely pleasant, is one of the necessary components of self-regulation. Understandably . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Of Prima Facie Discrimination and Humanizing the Street Homeless

The long-dead brains of history are still quite handy when you need to brandish something with rhetorical flourish—Plato, Aristotle, Shakespeare, Milton, Locke, Adam Smith, John Stuart Mill are some obvious choices. But it’s rare that a quote at the head of a judgement is as good as what BC Supreme Court Justice Sharma gave us this past Friday in Vancouver Area Network of Drug Users v. British Columbia Human Rights Tribunal. Here’s how the reasons begin:

“Near the end of the 19th Century, the poet, author and Nobel laureate Antole France composed this oft-cited saying: ‘[t]he law in its

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

Court Confirms Homeowners Lose Warranty Rights Upon Sale of House

A panel of three Divisional Court Judges have affirmed that when a homeowner sells their home, they lose their standing to maintain a Tarion warranty claim under the Ontario New Home Warranties Plan Act (the “Act”).

Ms. Blair took possession of her new condominium townhome in February, 2010. Thereafter she made a complaint to Tarion about insufficient heating in the home. Ultimately, Tarion ordered that duct modification work was required in all nine townhouse units in the complex.

Ms. Blair installed a gas fireplace in her home without Tarion’s approval (to address the heating issue) and claimed compensation for the . . . [more]

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

G20 Decision by Ontario Court of Appeal Illustrates the Power of Video

Many Canadian cities are debating the use of body cameras by police and the privacy impacts involved. The Toronto police have started a pilot project.

A recent decision of the Ontario Court of Appeal relating to the G20 protests illustrates the power of video: six paragraphs of the Court’s decision describe a YouTube video (which appears to be here). The Court noted the video had been viewed more than 100,000 times and was viewed by the application judge and by the panel of the Court of Appeal. The Court concluded that police violated the right to travel unimpeded . . . [more]

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

English Court of Appeal Expands Privacy Rights

The Court of Appeal in England has upheld a 2014 decision against Google about its scraping of information from users of the Safari browser. It classified a privacy action as a tort that will support a class action (called a ‘group action’ there) and also service out of the jurisdiction. The Court allowed the action to proceed without proof of pecuniary damages. It also held that ‘browser generated information’ (BGI) was personally identifiable information to which the Data Protection Act applied, though it did not contain the name of the person using the browser.

Google v Vidal-Hall : [2015] EWCA . . . [more]

Posted in: Substantive Law: Foreign Law, Substantive Law: Judicial Decisions, ulc_ecomm_list

Moonlighting Created a Serious Conflict of Interest

A Canada Revenue Agency employee’s moonlighting activities constituted a serious conflict of interest and, along with his subsequent insubordination, gave the employer sufficient cause to terminate the employee, the Public Service Labour Relations and Employment Board recently confirmed in Cavanagh v Canada Revenue Agency. . . . [more]

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