Canada’s online legal magazine.
CBA Futures
LexisNexis Legal Products

Archive for ‘Substantive Law’

The Trouble With Kerning and Spacing

Writing clearly and concisely is a goal that often eludes lawyers, especially when writing factums.

Justice Barbier of the United States District Court Eastern District of Louisiana ruled on a motion on Sept. 15, 2014 in the complex litigation surrounding the BP oil spill, In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010.

Although denying the motion, Justice Barbier commented on the response by BP, in particular in their formatting:

…the Court must address the format of BP’s opposition memorandum.

The briefing order allowed BP’s counsel to file a

. . . [more]
Posted in: Practice of Law: Practice Management, Substantive Law: Foreign Law

Employee Constructively Dismissed Because of a Temporary Layoff

Can a temporary layoff, in the absence of an express or implied contractual term authorizing such action during the term of employment, constitute a constructive dismissal? Ontario’s Small Claims Court recently answered this question in the case of Janice Wiens v. Davert Tools Inc., 2014 CanLII 47234.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions, Substantive Law: Legislation

Short Updates: A Thank-You to Eugene Meehan

The amount of information required to stay abreast of the changing law, in a general sense, is massive. Supreme Court of Canada statistics tell us that there were over 70 decisions to read from that court alone every year. Add your jurisdiction’s Court of Appeal and trial courts decisions, federal and provincial legislative changes, tribunal decisions, municipal and other delegated legislation and you have way more material than any generalist can reasonably consume.

Of course you don’t need to know it all. Many of those pieces of legal information can be learned just in time rather than just in case. . . . [more]

Posted in: Legal Information, Substantive Law: Judicial Decisions

Online Dispute Resolution at UNCITRAL – Some Creativity Needed

The UNCITRAL Working Group on Online Dispute Resolution (ODR) meets next month in Vienna to continue discussion of model rules for international ODR. Here are the working documents for the meeting, and past meetings. .

The perspective of the project since its inception in 2010 has been to find a way to resolve high-volume, low-value disputes – not necessarily just consumer disputes, but many would be of this kind.

One of the problems has been to figure out a way to get both buyers and sellers into the ODR system, whatever it is (and there might be many such . . . [more]

Posted in: International issues, Justice Issues, ulc_ecomm_list

CASL Software Provisions

CASL – the Canadian anti-spam legislation – contains provisions that require certain disclosure and permission requirements on the installation of software that does certain things, or when software does certain things. This aspect of CASL has been overshadowed by the anti-spam provisions, in part because the software provisions are not in effect until January 15, 2015.

Unfortunately these software provisions are not easy to comprehend or apply in practice. There is a lot of uncertainty around their interpretation. And IMHO they are going to cause far more harm than good. There is a real danger that some software creators will . . . [more]

Posted in: Substantive Law: Legislation, Technology

Bush-Era Legal Memos on Warrantless Wiretapping

The legal memos from 2004, over a decade ago, outlining the power of the President to use wiretapping, have been obtained through a Freedom of Information Act lawsuit by the American Civil Liberties Union and Electronic Privacy Information Center.

The project was called Stellar Wind, and allowed the National Security Agency (NSA) to collect information, even when it was contained in the U.S., as long as one end of the communications was overseas and a party was believed to be connected to terrorism.

Jack Goldsmith, Assistant Attorney General at the time, wrote in a memo from May 2004,

…the

. . . [more]
Posted in: Substantive Law: Foreign Law

Australian Law Reform Commission Report Into Serious Invasions of Privacy

The Australian Law Reform Commission released a report earlier this week on Serious Invasions of Privacy in the Digital Era .

The report proposes a new tort remedy for invasions of privacy that are serious, committed intentionally or recklessly and that cannot be justified as being in the public interest — for example, posting sexually explicit photos of someone on the Web without their permission, a topic much in the news recently because of the massive leak of nude photos of some of Hollywood’s biggest female celebrities.

The document also recommends a range of defences to protect free speech: . . . [more]

Posted in: Substantive Law: Foreign Law

Worker Could Sue Executive Officer for Massage, but Not Employer

The Workplace Safety and Insurance Appeals Tribunal recently decided that an employee was not allowed to sue her employer in court because the workers’ compensation regime prevented it. However, the employee was allowed to sue the executive officer of the employer who allegedly assaulted her because he was not acting in an employment-related capacity regarding the conduct that was subject to the civil action.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Texan Court Refuses Jurisdiction for Pre-Suit Discovery in Anonymous Blogger Defamation Case

The Supreme Court of Texas has refused to provide the identity of an anonymous blogger, in a 5-4 split decision released this week. The blogger initially claimed to be an employee of the Plaintffs’ company. He created a site in 2007 which targeted a business and its CEO, making a number of disparaging comments about the Plaintiffs and alleging involvement in a Ponzi scheme.

The Plaintiffs sought the identity of the blogger through Texas Rule of Civil Procedure 202, which states,

202.1 A person may petition the court for an order authorizing the taking of a deposition on oral

. . . [more]
Posted in: Substantive Law: Foreign Law

Of Unicorns and Leprechauns: Applying the Threatened Species Taxonomy to Administrative Law

A colleague & I were recently discussing the ever-shrinking categories of questions in administrative law that might attract a correctness standard (see paras. 58-61 of Dunsmuir and paras. 25-26 of McLean). I suggested that true questions of jurisdiction could be likened to unicorns and general questions of law of central importance to the legal system as a whole might be more in the nature of leprechauns. She suggested a better parallel might be found in the International Union for the Conservation of Nature’s threatened species taxonomy. In her view, true questions of jurisdiction are “extinct in the wild” . . . [more]

Posted in: Substantive Law, Substantive Law: Judicial Decisions

Interesting Take on the Duty to Accommodate

An employer can do nothing and still meet its duty to accommodate, so long as it turns out that the employer could not have accommodated the complainant without undue hardship. This was the decision of the Federal Court of Appeal in the recent case, Canada (Human Rights Commission) v. Canada (Attorney General).
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

“Sympathies” Alone Insufficient to Form Terrorist Plot

An Ontario pathologist who was arrested on terrorism charges was acquitted today in R. v. Sher.

Dr. Khurrum Sher, a graduate of McGill University who was working at St. Thomas Elgin General Hospital in St. Thomas, Ont., visited the home of his co-accused on July 20, 2010. During this visit, his host and another guest engaged in a protracted discussion about violent terrorist activity.

The accused was present throughout the discussion, did not appear to vigorously object to their plans, and at its conclusion appears to pledge his allegiance to them. He was friends with the host of the . . . [more]

Posted in: Substantive Law: Judicial Decisions