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Archive for ‘Substantive Law: Judicial Decisions’

A Specialized Lawyer Does Not Need to Be Certified

Lawyers are distinct from other professionals like medicine in that the license provided is inherently broad, and limited only by the restrictions the lawyer places upon themselves.

For example, the Model Code states at 3.1-1 that a competent lawyer “means a lawyer who has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of a client and the nature and terms of the lawyer’s engagement…” Those knowledge, skills, and attributes can be defined or applied in many different ways, especially where a lawyer is working with other lawyers who have different or . . . [more]

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

Google Is Subject to PIPEDA in Canada

The Internet, it is proverbially thought, lives forever. That is, until jurisdictions around the world started to develop the “right to be forgotten.”

In 2017, a complaint was made to the Privacy Commissioner of Canada that Google violates the Personal Information Protection and Electronic Documents Act (PIPEDA), by displaying links to news articles with personal and sensitive information about him.

This wasn’t the first privacy complaint that the Commissioner faced about Google, which previously included Wifi data collection. The Commissioner has also investigated other businesses that index private information that is maintained or removed on Google, or businesses . . . [more]

Posted in: Substantive Law: Judicial Decisions

Cheesed Off Employee Loses Wrongful Dismissal Appeal

Written by Daniel Standing, LL.B., Editor, First Reference

Dismissal for cause is frequently characterized as capital punishment in the employment realm. As a drastic solution, one would presume that an employer would only terminate a worker’s employment for good reason and with a firm sense of an employee’s wrongful conduct. A recent decision of the Manitoba Court of Appeal, McCallum v Saputo, 2021 MBCA 62 (CanLII), indicates that an employer’s position is not necessarily compromised if it fails to investigate suspected wrongdoing before dismissing an employee. The case stands for the principle that the employer does not have a . . . [more]

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

Determining Judicial Ethical Conduct: Not So Straightforward? Part II

INTRODUCTION

In the first of these two Slaw posts, I wrote about the two inquiries into Ontario Court of Justice (“OCJ”) judge Donald McLeod’s alleged misconduct. Here I discuss not only this OCJ judge who deliberately met with politicians in the context of an activist group he founded post-judicial appointment, but also a judge who acted as a messenger for a group to which he had belonged to someone in the university administration about an academic appointment; a judge whose husband had effectively engaged in cyberbullying against her; a judge who went to the assistance of a law school facing . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Bad Faith Abounds at Landlord Tenants Tribunal

Over the past 6 months, after many landlords in Ontario claimed that some tenants were using the pandemic as an excuse to not pay rent, it’s becoming increasingly clear that many landlords themselves are using these circumstances to violate the Residential Tenancies Act, 2006.

The Landlord Tenant Board (LTB) has been described as “chaos,” as early as late 2020, and the circumstances since that time have not improved. The province’s Digital First Strategy was intended to save money and improve efficiencies, and probably works best in court proceedings where all the parties are represented.

At the LTB, most tenants are . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Calculations of the Pandemic Limitations in Ontario

When the COVID-19 pandemic first hit Ontario, the provincial government made a special order on March 20, 2020 under s. 7.1(2) of the Emergency Management and Civil Protection Act, creating a suspension of limitations under O. Reg. 73/20,

Limitation periods

Period of time, steps in a proceeding

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

Defining Aboriginal Peoples of Canada to Include Non-Canadians

While Canada wrestles with the mounting tolls of historic deaths at residential schools, many are reconsidering how to celebrate Canada Day on July 1, 2021. There are calls for an independent probe, and even for criminal charges to be laid.

The upside is that this might be Canada’s moment of reconciliation, with unprecedented interest in the Truth and Reconciliation Commission. Accepting the realities of this past may be the first steps to creating a better future.

How the legal system deals with these issues is equally challenging, as illustrated by the Supreme Court of Canada’s decision earlier . . . [more]

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

Representation Orders in Small Claims

In Ontario, Small Claims Court’s monetary jurisdiction increased from $25,000 to $35,000 on Jan. 1, 2020. This has allows far more claims to be heard in this venue, with its streamlined processes and less procedural delays. Even prior to the pandemic, the Small Claims Court handled more than half of all of Ontario’s civil disputes.

Wrongful dismissal claims in particular have been effectively advanced in this venue, especially during the pandemic, and for those looking to avoid the cost consequences of improperly advancing a claim in Superior Court. However, in order for these proceedings to be heard effectively, the courts . . . [more]

Posted in: Substantive Law: Judicial Decisions

Notwithstanding in Ontario, Yet Again

Nearly three years ago, I wrote here that the use of s. 33 in Ontario constituted “UnChartered waters.”

Given the successful appeal in that case, the use of the clause ultimately wasn’t necessary. However, I was fortunate to appear as an intervener before the Court to note that the potential use of the notwithstanding clause would presumably emerge in circumstances that were clearly pressing and substantial, and asked the Court to carefully scrutinize any such rationale as a result. That decision is still pending.

Perhaps because the case involved the elections of a single city (albeit the largest in Canada, . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Facing Problems, Employer Buries Head in Sand

Written by Daniel Standing LL.B., Editor, First Reference Inc.

Many readers will remember the Bugs Bunny cartoons that featured an ostrich who would bury its head in the sand to avoid a predator or some other form of imminent danger. It turns out that ostriches do not really bury their heads in the sand to avoid problems, but the cartoon offers a nice analogy to the way the employer in Cybulsky v Hamilton Health Sciences, 2021 HRTO 213 (CanLII) handled one of its employees’ allegations of discrimination. In this case, the Human Rights Tribunal of Ontario considered the plight . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

Crown Immunity Means Tough Luck for the Police: A Good Call?

In Ontario (Attorney General) v. Clark (“Clark“), the majority (8 judges) of the Supreme Court of Canada held that Crown immunity precludes claims based on misfeasance in public office. Justice Côté dissented. Here I consider the policy underpinnings and ramifications of the two opinions. . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

LinkedIn Is Not Facebook

You’ll see it every few weeks on LinkedIn. Somebody somewhere is complaining that LinkedIn is not Facebook. They’re usually complaining about it on LinkedIn, and the comments on these posts bear an earie resemblance to social media platforms that are not LinkedIn.

Joshua Titsworth says that despite being founded in 2002, the site has gone through significant changes since that time,

The truth about LinkedIn is that despite its intended use, it has always been a form of social media… Given the relatively community-based origins of the site, it may seem strange to take issue with LinkedIn for becoming too

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