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Archive for ‘Substantive Law’

Is There Copyright in Klingon?

Major Hollywood studios are suing the makers of a fan-generated short Star Trek film for violation of intellectual property rights, including the film’s use of the Klingon language invented by the creators of Star Trek.

Does the claim about the use of Klingon make any sense? I don’t believe that the claim focuses on substantial use of passages of text from existing screenplays. The characters in the fan film are using their own texts according to the rules of the artificially-created language.

If not copyright, is there some other kind of intellectual property that might be infringed by the use . . . [more]

Posted in: Substantive Law, ulc_ecomm_list

Testamentary Freedom Reaffirmed

Early this month Ontario’s Court of Appeal released its decision in Spence v. BMO Trust Company, an important statement on the supervisory jurisdiction of Ontario courts regarding gifts in a Will that offend public policy.

The court affirmed that at common law, “… a testator’s right to dispose of her property and to choose her beneficiaries as she wishes, even on discriminatory grounds”, is protected.

Background

The deceased had two daughters. He moved to Canada after divorcing their mother. His daughter Verolin followed her father to Canada. The other daughter remained with her mother in England.

The deceased, a black . . . [more]

Posted in: Substantive Law: Judicial Decisions

Ghomeshi Controversy a Call to the Profession

I won’t comment much on the Ghomeshi verdict, other than to note that most of its detractors don’t appear to fully appreciate the nuance of the decision.

The animus exhibited by the complainants was mirrored by observers in the court room, and the crowd that gathered outside.

There was reason to be upset. Such incidents are rightly upsetting, but these feelings should not be directed towards the bench or the justice system.

The protections within our legal system, including our Charter rights, cannot be applied selectively, or withdrawn for individuals we don’t like, or we think are likely to . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Browsewraps – Why Bother?

Here’s a comment by Eric Goldman of Santa Clara law school on a California court of appeals case, refusing to validate an arbitration clause in a ‘browsewrap’ format – i.e. a link to ‘terms of use’ with no requirement of the contracting party to acknowledge them.

Are such clauses enforced in Canada, except to prevent obvious dishonest behaviour as in Sutton Realty in Quebec or the similar BC case, Century 21 v Rogers Communications, about scraping real estate listings off an MLS site? (See par 92ff of that decision). Why should they be?

The ULCC published a study of them . . . [more]

Posted in: Substantive Law: Judicial Decisions, Technology: Internet, ulc_ecomm_list

Privacy Torts in the Unionized Context

The tort of intrusion upon seclusion continues to grow and find application in new settings and circumstances, which is what we would expect for a tort created less than 5 years ago.

In Complex Services Inc v Ontario Public Service Employees Union, arbitrator Surdykowski sided with the employer in finding that this new tort dealt with non-legislated and non-contractual rights to privacy. These rights would necessarily be limited in the unionized context.

This holding was summarized in United Food & Commercial Workers, Local 206 v G & K Services Canada Inc as follows,

94. ..An employee does not have

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

Judicial Review vs. Request for Reconsideration

Federal Court published a decision regarding the government’s policy when to reconsider or re-open an application. In his decision, Justice Phelan came down hard on the government’s inflexible guidelines as they lack “common sense and fairness”. This is a very significant decision for immigration practitioners and lawyers who make requests to Visa Officers or other government officials to have their matters reconsidered.

The facts of Lim v. Canada are relatively simple. The Applicant applied for Canadian citizenship, an Officer requested more information via letter but the letter was not received. The application was deemed abandoned and the file closed. When . . . [more]

Posted in: Justice Issues, Substantive Law, Substantive Law: Judicial Decisions

Protection Against Sexual Harassment Now Covered Under OHSA

On March 8, 2016, the Ontario government gave royal assent to the Sexual Violence and Harassment Action Plan Act (Bill 132) to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and other forms of abuse. The Act aims to make workplaces, campuses and communities safer and more responsive to the needs of survivors and to complaints about sexual violence and harassment. . . . [more]

Posted in: Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Legislation

No Limitation Period for Continuing Breach of Contract

The Ontario Court of Appeal has reaffirmed that in cases where there is a continuing breach of contract the limitation period for bringing the lawsuit resets each day as the continuing breach continues to occur.

 

The ruling occurred in the context of a commercial leasing dispute. One of the clauses of the lease required the tenant to carry on its business on a continuous basis from the leased premises. Although the tenant continued to pay rent, it failed to operate from the leased premises as required by the lease. The landlord sued the tenant after the end of the . . . [more]

Posted in: Case Comment, Substantive Law

Ontario Human Rights Commission’s Policy Position on Gender-Specific Dress Codes

Written for First Reference by Christina Catenacci, BA, LLB, LLM, and PHD student at the University of Western Ontario

Can you think of a store, restaurant, or bar that appears to require women to wear low-cut tops, short skirts, tight dresses, or high heels when they go to work? Well, it might be wise for those employers to take another look at their dress code policy in light of the Ontario Human Rights Commission position on gender-specific dress code announced on International Women’s Day 2016 and the passing into law of occupational health and safety provisions protecting against workplace sexual . . . [more]

Posted in: Justice Issues, Miscellaneous, Practice of Law, Substantive Law, Substantive Law: Legislation

Québec Bar Association CAIJ Portal Launches Special Section on Province’s New Code of Civil Procedure

This is a follow-up to the February 1, 2016 post about Background Material on Québec’s New Code of Civil Procedure .

CAIJ, the Centre d’accès à l’information juridique (the network of courthouse law libraries associated with the Québec Bar Association), has created a special section on its website that brings together information about the province’s new Code of Civil Procedure that came into force on January 1, 2016.

The Code underwent a major overhaul that aims to reduce delays in the justice system by giving priority to amicable dispute resolution processes such as mediation, arbitration and conciliation, and by increasing . . . [more]

Posted in: Justice Issues, Substantive Law: Legislation

Guidelines to Develop Whistleblowing System

The CSA Group (formerly the Canadian Standards Association) with the assistance of the nationally based law firm Grant Thornton LLP has developed a free guide to help organizations develop and maintain a whistleblowing system with the goal to encourage workers to report ethical and safety issues within an established mechanism. Reported issues include suspected tax fraud, accounting fraud, corporate fraud, insider trading, health and safety issues and other serious offenses. . . . [more]

Posted in: Miscellaneous, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Legislation

Effective Start Date of ORPP Delayed

In a previous Slaw blog post, we discussed the Ontario government’s establishment of the Ontario Retirement Pension Plan (ORPP) by January 1, 2017 with enrollment starting in 2016. On February 16, 2016, the Ontario government announced that they have decided to delay the effective start date of the Ontario Retirement Pension Plan (ORPP) after entering into an agreement with the federal government that would allow for time to find a solution to individual Canadian pension shortfalls and a possible enhancement to the CPP. This entails: . . . [more]

Posted in: Substantive Law, Substantive Law: Legislation