Canada’s online legal magazine.

Anti-SLAPP Motions at the Supreme Court

Two significant anti-SLAPP cases have been released, in conjunction, by the Supreme Court.

Bent v. Platnick deals with a motion in a defamation action that was initially successful in getting dismissed. The Court of Appeal reversed the decision, and the Court upheld the appeal, specifically on the likelihood of the plaintiff’s success. The case involved the reputation of a doctor on a lawyers’ listserv, which bolstered the interests in having the matter adjudicated on the merits.

The Court in 1704604 Ontario Ltd. v. Pointes Protection Association affirmed the Court of Appeal decision, which has largely become the leading authority in . . . [more]

Posted in: Substantive Law: Judicial Decisions

Summaries Sunday: Supreme Advocacy

One Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, to which you may subscribe. It’s a summary of all appeals as well as leaves to appeal granted so you will know what the SCC will soon be dealing with (August 15 – September 11, 2020 inclusive).

Appeals

Civil Procedure: Anti-SLAPP Legislation
1704604 Ontario Ltd. v. Pointes Protection Association2020 SCC 22 (38374)

The legislation here presents a two-part analysis: burden on the moving party . . . [more]

Posted in: Summaries Sunday

Summaries Sunday: SOQUIJ

Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.

RESPONSABILITÉ : Même si les fautes commises par les policiers ont entraîné l’acquittement de la principale suspecte du meurtre de leur père, les appelants ne peuvent réclamer de dommages-intérêts compensatoires et punitifs au procureur général du Québec, car il n’y a pas de lien de causalité entre ces fautes et . . . [more]

Posted in: Summaries Sunday

Opportunities or Problems Around First Editions

It was a pleasure to read of the Canadian Association of Law Libraries / Association canadienne des bibliotheques de droit 2020 Hugh Lawford Award for Excellence in Legal Publishing, to Emond Publishing, for LGBTQ2+ Law: Practice Issues and Analysis by Joanna Radbord, and to note with interest the other nominated books.

It might be arguable that until such time as, in their totality, extremely large bodies of in-depth secondary legal material, analysis and explanation are produced for and initially delivered directly to electronic media and updated permanently in real time, the book format is the most substantial and familiar repository . . . [more]

Posted in: Legal Publishing

Possible Denial of ESA Minimums Voids Termination Clause

Lewis Waring, Paralegal and Student-at-Law, Editor, First Reference Inc.

A recent decision from Ontario’s Divisional Court illustrates an important point about the concept of notice in Ontario employment contracts. This point concerns the relation between the Employment Standards Act, 2000 (“ESA”) and Ontario common law. This important point is that employees are, by default, entitled to common law reasonable notice. Common law reasonable notice is roughly equivalent to one month of compensation for each year of employment. In comparison, minimum notice entitlements under the ESA are limited to one week per year of employment.

Employers who wish to prevent their . . . [more]

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

Delay and Access to Justice: Revisited

“…Why, some of the work that I have by me now has been in my possession for years and years, and there isn’t a fingermark on it. I take a great pride in my work; I take it down now and then and dust it. No man keeps his work in a better state of preservation than I do.”

Jerome K. Jerome, Three Men in a Boat (To Say Nothing of the Dog)

In my last Slaw column I wrote about the potential impact of the Supreme Court’s decision on delay in criminal proceedings (R. v Jordan). In . . . [more]

Posted in: Dispute Resolution

New Culture Shift Towards Scheduling Court Motions in Ontario

“A litigation culture has arisen in this province over the last three decades which extols creating and litigating peripheral procedural disputes, instead of moving towards the timely adjudication of disputes on their merits. That culture now lauds, as the skilled barrister, the motions specialist, not the final hearing expert.” – Justice David M. Brown 

Given the hurdles presented by COVID-19, the Ontario courts are trying to shift the litigation culture away from litigating peripheral procedural disputes. It was recently acknowledged in a motion to consolidate two matters in Klassen v Klassen, 2020 ONSC 4835, that “[COVID-19] shut down Ontario’s . . . [more]

Posted in: Case Comment, Practice of Law

10 Legal Writing Tips for Law Students

Legal writing is typically about persuasion. You are usually trying to persuade your reader about your thesis, your ideas, your arguments, your client’s case, etc. So how do you do it? Legal writing is an art and a science. Different people approach it differently. However, in our view, there are some commonalities for what makes legal writing effective – what makes it persuasive.

With the start of a new academic year, and the introduction of legal writing to incoming law students, we again had the opportunity to put our minds to what makes legal writing “good”, and how to approach . . . [more]

Posted in: Education & Training: Law Schools, Miscellaneous

Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. R. v. Roth, 2020 BCCA 240 (CanLII)

[142] Failing to conduct a critical assessment of testimonial weaknesses that could undermine the Crown’s evidentiary foundation on an essential element of the offence can be indicative of uneven scrutiny: Mehari at para. 34; Willis at para. 44. In my view, that is what happened here. There were significant inconsistencies and contradictions involving the . . . [more]

Posted in: Wednesday: What's Hot on CanLII

SCJ Grants CCLA Public Interest Standing to Challenge the Mandatory Gas Pump Sticker

In 2019, the Ford Government announced it would require gas station operators to post stickers about the impact of the federal government’s fuel charge on the price of gasoline. The Ontario Government’s response to the Canadian Civil Liberties Association’s (CCLA) challenge to the legislation not only defended on the merits, but also argued the CCLA did not have standing to bring its claim. The Ontario Superior Court of Justice rejected both positions in The Corporation of the Canadian Civil Liberties Association v. The Attorney General of Ontario (CCLA v. AG Ont.). Here I focus on Justice Ed Morgan’s determination on . . . [more]

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

Alberta’s Whistleblower Trap

There’s plenty wrong with Alberta’s Public Interest Disclosure (Whistleblower Protection) Act (PIDA) as drafted that would give a whistleblower pause for concern. But at least you can read the Act and see what these are.

It is quite a different matter when the office of Public Interest Commissioner (PIC)[1] denies whistleblower protection by adding requirements that are simply not written in the Act. These added requirements – and the unpredictability that there may yet be further requirements in future complaints – set a trap for unsuspecting whistleblowers who are denied protection against employer reprisal.

Like other Canadian jurisdictions, whistleblower . . . [more]

Posted in: Intellectual Property

Tips Tuesday

Here are excerpts from the most recent tips on SlawTips, the site that each week offers up useful advice, short and to the point, on practice, research, writing and technology.

Research & Writing

Misunderestimate
Neil Guthrie

In a recent tweet, John King of CNN cautioned his followers not to ‘misunderestimate the relentless base and focus’ of Trump supporters in their drive towards November. . . . [more]

Posted in: Tips Tuesday