Canada’s online legal magazine.

Archive for March, 2016

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. Murillo v Turnbull, 2016 ONSC 1906

[26] Taking on a personal injury file on a contingent fee basis is a gamble. The law firm puts up their own money to fund disbursements, and carries their work in progress on their books unbilled, in the expectation that they will ultimately reap a generous reward when the case is concluded by a settlement . . . [more]

Posted in: Wednesday: What's Hot on CanLII

A Brief History of Choking

For possibly the first time since Confederation, choking is a hot topic in criminal law. During the Jian Ghomeshi trial, several news outlets ran pieces asking questions about this strange offence. Catherine Porter at the Toronto Star has called for a stronger strangulation law. Women’s groups are performing studies on strangulation and domestic violence, many demonstrating that strangulation is a strong predictor of partner homicide.

This is the offence:

Overcoming resistance to commission of offence.

246 Every one who, with intent to enable or assist himself or another person to commit an indictable offence,

(a) attempts, by any means,

. . . [more]
Posted in: Justice Issues

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

Report From USGPhA 2016 Annual Meeting: Increasing Complexity of Generics Industry – No Longer Just Generics

The annual US Generic Pharmaceutical Association meeting in February, despite being held in Orlando, was generally not a sunny affair. Instead the central theme focused on “warning” signs that require attention from industry players in their dealings with stakeholders including Congress, FDA and the public. An “Uber-like” disruption is coming in healthcare. At the same time, Biosimilars continue to represent both uncharted successes and challenges. Regulatory approval and physician/patient education are key concerns. The standard message of “generics are the solution to increasing costs, not the cause”, and the need for a global business model, were recurring themes.

A few . . . [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 research and writing, practice, and technology.

Research & Writing

Capitals, Defined Terms and Acronyms
Neil Guthrie

Go easy with these. Capitals. Where there are too many words with capital letters, the visual effect is jarring and over-emphatic. Don’t succumb to what Bryan Garner calls ‘the unfortunate tendency toward contagious capitalization’ in legal writing. Above all, Resist the Temptation to Capitalise Important Words, which can look a bit Winnie the Pooh (‘I have been Foolish . . . [more]

Posted in: Tips Tuesday

TV Cameras in UK Courts

The UK Justice minister has just announced a pilot scheme for the introduction of cameras into criminal courts.

The project will run for 3 months in eight UK cities.

Cameras will film only the judge, and will be confined to sentencing remarks. The purpose is to “.. allow the public to see and hear the judge’s decision in their own words.”

The footage will not be broadcast live.

Leading British barrister Helena Kennedy Q.C. regards cameras in court as a threat to justice, evolving out of base commercial imperatives that are not concerned about justice or the potential impact on . . . [more]

Posted in: Practice of Law: Future of Practice

Limited Scope Representation Resources

The information and resources on practicePRO’s Limited Scope Representation page are intended to help you understand some of the risks inherent in providing limited scope legal services, and how you can reduce your exposure to a claim when working for a client on an unbundled basis.

LAWPRO’s concern that unbundling could lead to more claims stems from the fact that the biggest causes of claims against lawyers – communication issues and inadequate investigation or discovery of facts – are at least equally, if not more likely, to occur during the provision of unbundled legal services. See this LAWPRO magazine article . . . [more]

Posted in: Practice of Law, Reading: Recommended

A Talk With the Prime Minister

One of my highlights at Davos this year was a closed meeting with the newly elected Canadian Prime Minister Justin Trudeau. We were with a small group of international civil society organisations from the field of human rights, rule of law and peace. The meeting was held under the Chatham House rule so I will not disclose what others or the PM said. Nothing in that rule however prevents me from telling you what I contributed.

Each time I am at Davos I marvel about how many great ideas for solving global and national challenges I come across. Poverty, education, . . . [more]

Posted in: Practice of Law

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 seventy 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. Vancouver Immigration Law Blog  2. Henry J. Chang’s Canada-US Immigration Blog 3. Canadian Securities Law  4. National Magazine Blog  5. Library Boy

Vancouver Immigration Law Blog
What To Do About 20,000 High Risk International Students? – Government Policy Making and it’s Important Implications

Based on the most recent publicly-available . . . [more]

Posted in: Monday’s Mix

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

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.

CONSTITUTIONNEL (DROIT) : La Loi de 2013 sur la succession au trône adoptée par le Parlement fédéral en 2013 est constitutionnelle.

Intitulé : Motard c. Canada (Procureure générale), 2016 QCCS 588
Juridiction : Cour supérieure (C.S.), Québec, 200-17-018455-139
Décision de : Juge Claude Bouchard
Date : 16 février 2016


Posted in: Summaries Sunday

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