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Archive for ‘Substantive Law: Judicial Decisions’

Justice Clément Gascon

In five days, Justice Clément Gascon of the Cour d’Appel will assume Justice Fish’s seat on the Supreme Court.

The announcement from the Prime Minister’s office is terse:

« Je suis ravi d’annoncer la nomination de M. le juge Clément Gascon à la Cour suprême du Canada. M. le juge Gascon, qui siège actuellement à la Cour d’appel du Québec, possède un important bagage d’expérience et de connaissances juridiques dont profitera grandement cette importante institution canadienne. Sa nomination survient au terme de vastes consultations menées auprès d’éminents membres du milieu juridique du Québec. » –

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

Neighbours From Hell – Marcel Proust to Ed Morgan via the Carlisle

Three delightful legal curios remind us that when neighbours fall out, balance and judgment cascade out the window – or are defenestrated.

Let’s start with Monsieur Proust – who was sensitive beyond sensitivity. Yet even a cork-lined writing room couldn’t shield him from shoes on wooden floors and thin walls, from the harp-playing wife of an American dentist, Marie Williams.

Gallimard published the recently found letters as an epistolary novel, Lettres à sa voisine, last year. The catalogue descibes it thus::

«C’est un vrai petit roman, fondé sur une surprise : la découverte de ces vingt-trois lettres

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

The Jaylene Redhead Inquest Report

Twenty-month old Jaylene Redhead was killed by her mother on June 29, 2009 while both were resident in a second-stage housing facility in Winnipeg. Jaylene had been apprehended from her mother’s care at birth by Awasis Agency of Northern Manitoba but had been returned to her mother’s care at the Native Women’s Transition Centre in the months before her death.

The Inquest Report of Judge Lawrence Allen into her death, released May 23, reveals the awful details of this child’s short life. The inquest was called in 2011 under the provisions of Manitoba’s Fatality Inquiries Act to:

  • inquire into the
. . . [more]
Posted in: Justice Issues, Substantive Law: Judicial Decisions

The Implications of Mandatory Retirements in Partnerships

The Supreme Court of Canada decision in McCormick v. Fasken Martineau DuMoulin LLP, mentioned recently by Simon Chester, will have implications beyond just how human rights legislation applies to mandatory retirement provisions in partnership agreements. Because such provisions will be upheld, firms can be expected to include and rely on them further, and the baby boomer population of lawyers who are quickly approaching retirement age may now expect a forced retirement from partnership.

Some economists reject the “lump labour” theory, which suggests that unemployment can be, in part, attributable to the refusal of older workers to retire. However, even . . . [more]

Posted in: Practice of Law: Future of Practice, Substantive Law: Judicial Decisions

The Nature of Partnership

By some weird synchronicity, the Supreme Courts in both the United Kingdom and Canada in the last 24 hours have considered the nature of partnerships and the extent to which employment law protections also applied to partners.

Yesterday’s decision in Clyde & Co LLP and another (Respondents) v Bates van Winklehof (Appellant) [2014] UKSC 32 held that a junior partner (unhelpfully called an Equity Partner) in a London firm was protected by the whistle-blowing protections of the Employment Rights Act 1996. She had been involved in a rather dubious file in Tanzania and reported to the firm’s money laundering reporting . . . [more]

Posted in: Practice of Law: Practice Management, Substantive Law: Foreign Law, Substantive Law: Judicial Decisions

Search Warrants for Electronic Records

Speaking of media neutrality … a US judge has ruled that a search warrant served on Microsoft in the US required the company to divulge records stored on servers outside the US. An account of the decision is here.

The company argued that the court could authorize a search only of premises within the territory of the court’s jurisdiction. The court held that a search warrant that applied to electronic records was in the nature of a subpoena as well as a search warrant. Since MS had control of the documents, it had to turn them over.

Does this . . . [more]

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

Absentee Voting, Part II

Five and a half years ago, I wrote a comment on Slaw questioning why the Canada Elections Act precluded most non-resident Canadians from voting. The prohibition bothered me on a very personal level: I had many Canadian friends and acquaintances living abroad long-term, who almost without exception felt closely connected to Canada and invested in its future. Moreover, the ban was plainly inconsistent with the Charter, it lacked any clearly articulated justification, and it had been widely criticized. Yet no one seemed particularly moved to do much about it.

Well, I’m happy to admit I was mistaken. Someone did . . . [more]

Posted in: Substantive Law: Judicial Decisions

Pregnant Employee Has Right to Withdraw From Unsafe Work No Matter Employment Status or Workplace

Pregnant casual or temporary workers in Quebec have the right to withdraw from unsafe work environments just as permanent workers do, according to the recent Supreme Court of Canada decision in Dionne v. Commission scolaire des Patriotes, 2014 SCC 33 (CanLII).
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Business Trademarks May Be Displayed in Quebec in a Language Other Than French

On April 9, 2014, the Quebec Superior Court ruled that businesses in the province of Quebec may continue to display their trademarks on public signs outside their premises in a language other than French if no French version of the trademark has been registered.

Facts of the case

On November 13, 2011, during an enforcement campaign called “Une marque de respect de la loi” (A sign of respect for the law), the Office québécois de la langue française (OQLF) took the position that the trademark exception found in the Charter of the French Language (loi 101) does not . . . [more]

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

Case Dismissed Against Vendor of “Haunted” Building

In a rather strange case, the plaintiff alleged that the defendants sold the plaintiff a commercial property that was haunted. The plaintiff alleged that this constituted a latent defect in the property which the defendants knew about and concealed from the plaintiff.

The plaintiff’s lawsuit was based solely on a newspaper article in which a director of one of the defendants was quoted as saying that the property in question was haunted.

Oddly, the plaintiff’s representative testified that he had never seen a ghost, did not believe there was a ghost and that all conversations about the property being haunted . . . [more]

Posted in: Substantive Law: Judicial Decisions

Defendant Permitted to Defend Action Six Years After Plaintiff Obtains Default Judgment

The Ontario Court of Appeal has upheld a Superior Court Judge’s decision to set aside a default judgment obtained by the plaintiff and allow the defendant the opportunity to enter a defence.

The plaintiff provided various crop services to the defendant for a number of years. The defendant would routinely pay the plaintiff’s invoices late. This was not necessarily problematic since the plaintiff trusted the defendant and its invoices were usually paid, albeit late.

As the defendant got older, his son took a more active involvement in the defendant’s operations. While the plaintiff trusted the defendant, it did not trust . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

More Thoughts on Information as Property

There have been discussions on whether information can be ‘property’ for legal purposes (such as here and here), and the limits on that equivalence and the reasons for them. The English (and Welsh) Court of Appeal has recently addressed itself to that question again, in Your Response v Datateam Business Media [2014] EWCA Civ 281.

In that case, Your Response was working on a database of Datateam’s customers. In a dispute about payment, Your Response claimed a lien over the database and refused to return it to Datateam in the absence of payment.

The Court of Appeal held that . . . [more]

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