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Archive for ‘Substantive Law: Judicial Decisions’

Judges as Gatekeepers for Necessary Expert Evidence

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]

Posted in: Substantive Law: Judicial Decisions

The New “Persons” – the Apes

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.
[emphasis]

Lord Chancellor Viscount Sankey of the Privy Council stated,

…their Lordships have come to the conclusion that the word “persons” in sec. 24 includes

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

Threshold Motion Dismissed on Small Jury Award for Chronic Pain

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.

Although brought into statute through Bill 198 in 2002, the test used on this threshold precedes the amendments and can be found in Meyer v. Bright, as follows:

(i) Has the plaintiff sustained a permanent impairment of a physical, mental or psychological function? . . . [more]

Posted in: Substantive Law: Judicial Decisions

“Brian Sinclair Did Not Have to Die”

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]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Have You Read 2014’s Top Cases?

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

  1. Morland-Jones v. Taerk, 2014 ONSC 3061
  2. Meads v. Meads, 2012 ABQB 571 (holding
. . . [more]
Posted in: Substantive Law: Judicial Decisions

Fear of Cell Search Affirmed on Arrest

Background

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,

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

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

Refusal to Cooperate in Accommodation Process Prevented Reinstatement

Employees must participate in their employer’s accommodation process, even where that process has not produced satisfactory results. In the Alberta Human Rights Tribunal case of Perera v. St. Albert Day Care Society, Theresa Perera found this out the hard way when, due to a disabling injury, she refused to perform the work she was assigned and her employer terminated her for insubordination. However, the tribunal found Perera’s injury was a factor in the termination, and therefore the termination was discriminatory. Nonetheless, the insubordination made reinstatement impossible
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Intrusion Upon Medical Records

When the new tort of the intrusion upon seclusion first emerged in 2012 in Jones v. Tsige, many of us wondered how exactly it would be invoked in litigation. Many of us assumed reasonably that this would be an additional head of damages claimed, given the modest amount recognized by the court as reasonable for privacy breaches.

Since that time we have seen this tort employed in several cases with varying success. One of the more intriguing applications is where these small heads of damages can be advanced in the aggregate, namely in through class proceedings.

The ideal scenario . . . [more]

Posted in: Education & Training: CLE/PD, Substantive Law: Judicial Decisions

Cowboy Cops in Quebec

For those readers who don’t follow labour disputes in Quebec, there’s been trouble brewing over the Province’s attempts to reign in municipal pension costs via Bill 3. Because Quebec (and all other provincial) labour laws don’t allow “essential services” unions to strike (not surprisingly, because people could die), police, EMT and firefighter unions have been trying creative ways to get their point across. In the Municipality of Chateaugay (just outside of Montreal), the police force has taken to wearing cowboy outfits (photo credit here):

(Alison Northcott/CBC)

Not surprisingly, the Municipality protested and filed a grievance. Yesterday, the Quebec Labour . . . [more]

Posted in: Substantive Law: Judicial Decisions

Inducement of High-Level Employee May Contribute to a Long Notice Period Award

In Rodgers v. CEVA, although the employee worked with the employer for less than three years, the Ontario Superior Court of Justice found that the terminated employee should be awarded damages for wrongful dismissal totalling $345,985 representing 14 months' reasonable notice.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Australian Decisions With JADE

I am a big fan of LIIs, CanLII, BAILII, CommonLII, WorldLII and as Yul Brynner channelling the King of Siam would say: et cetera et cetera et cetera. AustLII is on my list of happy sources. There is a non-LII alternative for free access to Australian legal judgments that is worth sharing here as well.

BarNet/JADE was recently complimented in a blog post at the International Association of Law Libraries site. JADE which is an acronym for Judgment and Decisions Enhanced was created as a practitioners resource.

A complimentary sign up for the service is painless and the site . . . [more]

Posted in: Substantive Law: Judicial Decisions

Outlandish Reputation Not a Defence in Online Defamation (Awan v. Levant)

We may not all like Ezra Levant, but we do have a lot to thank him for. As a defendant, I cannot think of a single individual who has developed the jurisprudence of online defamation more than him.

The judgement against him in Vigna v. Levant, and the related costs decision, has for several years now been the best authority on which blog content may be defamatory, and what may not be. However, the modest damages award in this case, and others, have still made online defamation a challenging area for plaintiffs.

Not one to disappoint, Levant was . . . [more]

Posted in: Substantive Law: Judicial Decisions