Canada’s online legal magazine.

Archive for ‘Substantive Law: Judicial Decisions’

Hard Cases, Good Law, Juries and Sympathy

Sympathy is not evidence upon which a jury may find in favour of a litigant.

After a two-week trial in a medical malpractice claim, the jury found cause-in-fact [factual causation] was established on the balance of probability. However, the trial judge ruled that there was no evidence whatsoever to support the finding. The judge dismissed the action.

Salter v. Hirst, 2010 ONSC 3440 (Ontario Superior Court) is a reminder to lawyers and litigants of the expensive consequences of not having the necessary evidence and of not asking the necessary questions, even if one has a tragic injury, a sympathetic . . . [more]

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

Today’s CLA Judgement Big, but Just How Big to Be Determined

This is an early take on today’s Supreme Court of Canada decision in Ontario (Public Safety and Security) v. Criminal Lawyers’ Association.

The Court unanimously held that the Ontario Freedom of Information and Protection of Privacy Act does not violate section 2(b) of the Charter for its failure to offer a “public interest override” of the law enforcement and solicitor-client privilege exemptions to the public right of access to government information. This is the narrowest finding in a judgement that could give the public a new means of accessing government information.

FIPPA gives the public a presumptive right of . . . [more]

Posted in: Substantive Law: Judicial Decisions

SCC Upholds Publication Ban Without Commenting on Publication and the Internet

Yesterday an 8-1 majority of the Supreme Court of Canada held that section 517 of the Criminal Code is valid notwithstanding it infringes section 2(b) of the Charter. The decision is indexed as Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21 (June 10, 2010).

Section 517 provides for a mandatory ban on the publication of “evidence taken, the information given or the representations made and the reasons, if any, given” at a bail hearing at the request of an accused person. In October, 2008, the Alberta Court of Appeal dismissed a Charter challenge to section 517 brought . . . [more]

Posted in: Substantive Law: Judicial Decisions

Appeal Court Writes a Chapter on Proportionality

On May 31st the Newfoundland and Labrador Court of Appeal issued a judgement with a number of broad statements about the proportionality principle and how it ought to be applied by courts in crafting discretionary orders under civil rules.

The underlying matter was about a motor vehicle claim and a list of broadly framed interrogatories served by a defendant immediately after the close of pleadings. The defendant argued that the interrogatories were necessary because the statement of claim requested general and special damages without any real degree of particularity. It also argued that the applicable court rules did not require . . . [more]

Posted in: Substantive Law: Judicial Decisions

Beware the Common Law Duty to Retain a Record

Last weekend I finally got down to perusing David Wotherspoon and Alex Cameron’s Electronic Evidence and E-Discovery, recently published by LexisNexis. It looks like a great book, but thanks to David and Alex I’m just writing to pass on some useful case citations that deal with the extent to which a court will examine the reasonableness of a record retention rule.

First, in Ontario v. Johnson Controls Ltd., 2002 CanLII 14053 (ON S.C.), Cameron J. of the Ontario Superior Court of Justice said:

There is no evidence of any document retention or destruction policy. A policy with

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

Lawyers Sue Thomson Over Pleadings Database

Yesterday, May 25, 2010 Sack Goldblatt launched a class proceeding against Thomson Reuters Corporation and Thomson Reuters Canada Limited on behalf of a class of Canadian lawyers and law firms. The Statement of Claim claims that Thomson Reuters breaches copyright by making available original lawyer created legal documents for fee or subscription without permission from, or compensation to, the authors of the documents.

The representative plaintiff is Lorne Waldman, a leading immigration and refugee lawyer, whose work for Maher Arar has allegedly been copied by Thomson Reuters through its “Litigator” service. Litigator is a fee and subscription-based database for lawyer-created . . . [more]

Posted in: Legal Information: Publishing, Substantive Law: Judicial Decisions

Admissibility of E-Mail Apologies in R. v. S.G.T.

The Supreme Court of Canada released R. v. S.G.T. today, a criminal law case where the accused in a sexual assault of a minor had sent an e-mail to the mother of the alleged victim. Although the mother had contacted the police at one time, she had failed to follow through. It was only when the accused independently reported the complaints to a high-school counselor that the charges were laid.

The case centered on credibility, and whereas the Crown claimed the e-mail was in response to the charges, the accused claimed that it was in connection with an unrelated event. . . . [more]

Posted in: Substantive Law: Judicial Decisions

Discretion to Stay a Prosecution

Today’s announcement by the Crown Attorney’s office in Ontario that charges have been stayed against the former Attorney General Michael Bryant is accompanied by an 11 page analysis of the facts and the applicable law, that should be noted by those who follow the role of the Law Officers of the Crown and the discretion to stay charges.

This will add to the academic literature such as the works of John Edwards, The law officers of the Crown : a study of the offices of Attorney-General and Solicitor-General of England, and The Attorney General, Politics and the Public . . . [more]

Posted in: Substantive Law: Judicial Decisions