Canada’s online legal magazine.

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. Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74

[21] For reasons explained in detail below, the regulation of GHG emissions or any variation on this theme does not qualify for inclusion as a federal head of power under the national concern doctrine. Assigning this Act or a class of laws of this nature to Parliament would forever alter the constitutional . . . [more]

Posted in: Wednesday: What's Hot on CanLII

The Simplest of Models for Open Access to Research Proves Itself: Welcome to Subscribe-to-Open

I’ve got blog-worthy good news. So good, in fact, that I’m persuaded to take a break from my consecutive blogs on amending American copyright for open access (my developing case here). Instead, I devote this blog to a far more here-and-now breakthrough in increasing public access to research.

It arises out of the work of a half-dozen anthropologists (and me), who think that, given their study of people and society, they have a moral duty to share that work with those people and that society. This group, Libraria by name, has worked over the last two years with Berghahn . . . [more]

Posted in: Legal Publishing

Revisiting the LCO’s Family Law Final Report Seven Years Later

This past Saturday I had the pleasure of meeting with students in McMaster University’s Justice, Political Philosophy and Law Program (“JPPL Program”) at a Wine and Cheese “Industry Night” organized by the JPPL Student Society. Not surprisingly, many students, although not all, anticipate applying for law school after completing the program. I was one of 10 panelists (!) with a range of experiences in law asked to give the students some idea about our own backgrounds and then answer a specific question drawing on that experience. In my own case, the organizers asked me to tell the students something about . . . [more]

Posted in: Justice Issues, Substantive Law

Findability of Prior Art

A couple of recent decisions have provided some clarity to what prior art can be relied on to show that a patent is obvious. One of the cornerstones of patent law is that a patent must be for an invention that is ‘inventive’ or ‘non-obvious’. This leads to the next question, “inventive” compared to what?

A car with a six-cylinder internal combustion engine may be inventive if all you have is a bicycle but may not be inventive if you already have a car with a four-cylinder internal combustion engine.

The Patent Act, in section 28.3, states:

28.3

. . . [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

From the Specific to the General
Neil Guthrie

Burden: In a recent news release, the Ontario Securities Commission said this: ‘Most recently, the OSC announced 107 regulatory changes to reduce burden for market participants while maintaining critical investor protections.’ Good initiative, but the use of burden annoys me. The burden or the regulatory burden would be better: a specific thing, not a general state of affairs. . . . [more]

Posted in: Tips Tuesday

Colonialism Is Alive and Well in Canada

When I hear about the arrest of peaceful land protectors, I think about all the times I’ve heard that colonialism happened “a long time ago.” This is 2019. It never ended. When I see colonial violence in action I grieve not only for those brave people who stand peacefully as they are overwhelmed on their own lands, but also for future generations who will be forced to pay for our hubris.

-Hayalthkin’geme (Carey Newman), OBC, MSM, Audain Professor of Contemporary Art Practice of the Pacific Northwest at the University of Victoria

The ongoing “colonial violence” that Hayalthkin’geme speaks to is . . . [more]

Posted in: Justice Issues

Monday’s Mix

Each Monday we present brief excerpts of recent posts from five of Canada’s award­-winning legal blogs chosen at random* from more than 80 recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.

This week the randomly selected blogs are 1. ABlawg.ca 2. Avoid a Claim 3. Trauma & Lawyers’ Mental Health 4. Lash Condo Law 5. Employment & Human Rights Law in Canada

ABlawg.ca
A Lawyer’s Duty to (Sometimes) Report a Child in Need of Protection

Everyone has an obligation to report when they have reason to

. . . [more]
Posted in: Monday’s Mix

Judicial Restraint Cannot Justify Blatant Abuses of Prohibitions in International Law

We all have our views and preferences about how reforms to the legal system and the creation of laws should occur.

For example, despite being a regular participant in the justice system, I see the courts as a rather blunt instrument for the creation of law, and it is often ill-suited for dealing with complex social problems. The legislature, with all of the available expertise and resources of the state, is usually far better positioned to carefully examine, explore, and determine the most precise manner in which to create and modify laws.

Yet the legislature often moves slowly, and is . . . [more]

Posted in: Substantive Law: Judicial Decisions

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 Ju stice and collects, analyzes, enriches, and disseminates legal information in Québec.

DROITS ET LIBERTÉS : Le chef du conseil de bande d’une Première Nation a fait preuve de harcèlement et a tenu des propos discriminatoires à l’endroit d’une conseillère métisse en la qualifiant de «bâtarde de blanche», d’une part, et en déclarant devant une assemblée publique qu’elle ne devrait pas . . . [more]

Posted in: Summaries Sunday

An Inspiring Resource for the “Dispute Resolution Movement”, and Some Thoughts

Kudos to Professor John Lande (one of my heroes in the conflict management field) for his newest publication: Theories of Change for the Dispute Resolution Movement: Actionable Ideas to Revitalize Our Movement.

John’s Indisputably Post February 7th provides a great overview of this unique volume – available for free.

It arose out of John’s worry about the future of ADR in legal education and his sense of discontent with the “usual” conference formats – you know the kind, lots of interesting panels with thought-provoking insights but no call to action. Not surprisingly, people leave the conference and . . . [more]

Posted in: Dispute Resolution

Brief Guide to Western and Atlantic Employment Law Changes in 2020

2020 promises to be a busy year in Western and Atlantic provinces with a variety of legislative and regulatory changes impacting employers in various ways. In this article, we provide employers with an overview of some of the key changes that have been announced in Western and Atlantic to assist in compliance. We also mention some changes that employers should anticipate being made in the coming year. . . . [more]

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

If the Groundhog Sees Its Shadow… Will There Be Six More Years of Discussion of Standard of Review?

I have never cared for American football and have never watched a Super Bowl. My only interest is in the commercials produced for the American broadcast, which for the last many years I simply watch on line the day after the game. So for me, the matter that gave rise to the decision in dispute in Bell Canada v. Canada (Attorney General), 2019 SCC 66 (“Bell”) is not really important to me.

One of the best commercials that aired during Super Bowl LIV involved Bill Murray reprising his role as weatherman Phil Connors from the film Groundhog . . . [more]

Posted in: Administrative Law