Canada’s online legal magazine.

Archive for October, 2020

Virtual Hearings, Access to Justice and Privacy

Under ordinary circumstances, I would not remotely contemplate imposing such an unsatisfactory mode [videoconference] of a trial on a party against its will. But these are not ordinary circumstances and we have entered a period in which much that is around us is and is going to continue to be unsatisfactory. I think we must try our best to make this trial work…

Justice Perram, Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (Australia)

Like many adjudicators working during the pandemic, I am now adjudicating in a virtual hearing room instead of a real one. The . . . [more]

Posted in: Dispute Resolution

Friday Jobs Roundup

Each Friday, we share the latest job listings from Slaw Jobs, which features employment opportunities from across the country. Find out more about these positions by following the links below, or learn how you can use Slaw Jobs to gain valuable exposure for your job ads, while supporting the great Canadian legal commentary at

Current postings on Slaw Jobs:

. . . [more]
Posted in: Friday Jobs Roundup

The Myth of the Honest Negotiator

A lawyer has an obligation to be honourable and a duty of integrity. In a negotiation, a lawyer will not be completely honest. Both of these statements are true, but they seem contradictory. The Federation of Law Societies of Canada’s Model Code of Professional Conduct, does not expressly prohibit a lawyer from lying to another lawyer, but the Code does include provisions that promote integrity, honesty and honour. In this post, I attempt to defend the idea that an honourable lawyer can engage in a small range of permitted deception during negotiations.

James White famously framed the question of . . . [more]

Posted in: Legal Ethics

Do Litigants Understand Remote Hearings and What Should We Do About It?

In a study conducted in England, it was found that 4 out of 10 parents involved in a remote family hearing did not understand it (Legalfutures Article). “Two-thirds (66%) of parents said they believed their case had not been dealt with well remotely, with 40% recounting that they did not understand their remote hearing – either partly or at all.” Lay parties had particular trouble in navigating the system, including the technology. Although this is not a Canadian study, I suspect that these findings could easily apply across the pond.

Simply transferring a complicated system from one venue . . . [more]

Posted in: Justice Issues

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. Warner v Calgary Regional Health Authority (Rockyview General Hospital), 2020 ABQB 172 (CanLII)

[38] An independent intervening event is an event unrelated to the tort, such as a disease or a non-tortious accident, that occurs after the plaintiff suffers injuries from the tort: Athey at para 31. A finding of an independent intervening event does not necessarily result in a break in . . . [more]

Posted in: Wednesday: What's Hot on CanLII

Canadian Pro Bono Lawyers Amplify the Calls for Justice Worldwide: 30th Anniversary of the UN Basic Principles on the Role of Lawyers

For the past two decades, Canadian lawyers have been speaking up for lawyers and human rights defenders in danger in dozens of countries under the auspices of Lawyers’ Rights Watch Canada (LRWC). In 2005, LRWC was granted United Nations (UN) consultative status. Since then LRWC has regularly advocated for lawyers and other defenders at the UN Human Rights Council (Council) and other UN bodies.

This year marks the 30th anniversary of the UN Basic Principles on the Role of Lawyers, which recognize the importance of ensuring access to justice by protecting the rights of lawyers to provide independent . . . [more]

Posted in: Justice Issues

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

Neil Guthrie

If something isn’t a conversation these days, it’s a situation. An extreme weather situation. Or, on public transport in Toronto, any number of the following in service announcements on an emergency situation, a power-off situation, a flooding situation, even a full-throttle situation. … . . . [more]

Posted in: Tips Tuesday

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. Know How 2. SOQUIJ | Le Blogue 3. Susan On The Soapbox 4. The Court 5. Stereo Decisis Podcast

Know How
Online Orientation: Your Intro to the Great Library

Attention Ontario licensing candidates! Over the next few weeks, the Great Library will be running a series of

. . . [more]
Posted in: Monday’s Mix

Artificial Intelligence, Algorithmic Racism and the Canadian Criminal Justice System

Recidivism risk assessment is the process of determining the likelihood that an accused, convicted, or incarcerated persons will reoffend. The process is aimed at assisting in the determination of the appropriate limitation on the freedom of the subject. With innovation in technology especially in the area of artificial intelligence (AI), recidivism risk assessment tools built on AI technology are now well-developed and used in the criminal justice system. Algorithmic tools are increasingly being used in the Canadian criminal justice system in pre-trial, sentencing, and post-sentencing phases in predicting the future criminal behaviour of accused, convicted, or incarcerated persons. The increasing . . . [more]

Posted in: Legal Technology

Handling Commercial Vacancy Disputes

Even before the pandemic, commercial landlords and tenants had their disputes.

The Ontario Court of Appeal recently dismissed an appeal in Old Navy (Canada) Inc. v. The Eglinton Town Centre Inc., thereby affirming the Superior Court decision that denied declaratory relief to the commercial tenant, and a refund of rent they claimed they overpaid.

The case centred around the interpretation of the lease. The tenant, who is a major international commercial retailer, and a subsidiary of the largest specialty retailer in the U.S., claimed the lease was straightforward and unambiguous. Justice Quigley disagreed, and held that a co-tenancy provision . . . [more]

Posted in: Substantive Law: Foreign Law

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.

PÉNAL (DROIT) : La juge de première instance a omis de tenir compte de la vulnérabilité accrue de la victime et de sa situation personnelle de femme autochtone victime de violence sexuelle et conjugale en imposant à l’intimé une peine d’emprisonnement de 2 ans moins 1 jour suivie d’une probation . . . [more]

Posted in: Summaries Sunday

Is Former SCC Chief Justice McLachlin’s Action Committee and Leadership of the A2J Agencies Avoiding the Major Issues? [Part 2 of 2 Parts]

[The content of this article is closely related to five of my previous posts on Slaw, dated: July 25, 2019; April 9, 2020; May 29, 2020; August 6, 2020; and, October 22, 2020. See also the full text on the SSRN.]

Part 1 presented the proposition that the great amount of “emergency relief-type” activity and literature that has been produced by the many access to justice agencies (A2J agencies) in relation to the “A2J problem” of unaffordable lawyers’ services, is: (1) deflecting attention from the great need to solve it; and, (2) it . . . [more]

Posted in: Justice Issues, Practice of Law