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Archive for December, 2021

How Legal Scholarship Can Reveal the Difference Between the Law as Written and the Law as Applied

Is there one piece of legal scholarship which you read years ago that sticks with you? For me it was an article about how a person’s right to legal name changes can be hindered by clerks who may misstate the law or a person’s options. The article is called Changing Name Changing: Framing Rules and the Future of Marital Names, and it was written by Elizabeth F. Emens and published in the University of Chicago Law Review in 2007.[1] I believe I read it around 2015, and I remember being fascinated by the concept of “desk-clerk law.” In . . . [more]

Posted in: Legal Information

Court Orders Trial to Proceed Virtually Over Objections From Counsel

In light of the Omicron variant, in-person civil jury trials have been suspended in Ontario. This has impacted many cases, which were slated for trial in January 2022. One of these cases was Fraser v Persaud. In Fraser v. Persaud, 2021 ONSC 8429, the motor vehicle accident case was at risk of not being heard in 2022 (7 years post-accident). Therefore, plaintiff counsel requested that the matter proceed virtually. Defence counsel objected to this request. They wanted to have the trial in-person. But, this could push the trial from January 2022 to January 2024.

Justice Richetti ordered that . . . [more]

Posted in: Substantive Law

Patent Proceedings by the Numbers – Part 2

Continuing my review of patent infringement proceedings in Federal Court, I will look at how cases actually move through the court. Focusing on patent infringement cases started in 2017, 2018 and 2019 (but excluding proceedings under the PM(NOC) regulations), for this group of about 140 cases, a statement of defence was only filed in about 75% of cases. In my last column (see How Long to Trial for Patent Proceedings?), my review suggested that about half of the cases were resolved in less than two years, typically by way of settlement or discontinuance.

In the 75% of cases where . . . [more]

Posted in: Intellectual Property

Lawyers and the Self-Represented: Ethical Obligations in the Hearing Room

The role of adjudicators in hearings with self-represented litigants (SRLs) has been discussed in many court decisions and articles. What is less explored is the role of opposing counsel. In this column I will discuss the possibly expanding role of opposing counsel in facilitating access to justice for SRLs. Although the adjudicator has the primary role in managing a hearing and in assisting the self-represented party, opposing counsel can play an important role. It is also important that adjudicators clearly communicate their expectations of the lawyer when a hearing includes an SRL.

The Canadian Judicial Council’s Statement of Principles on . . . [more]

Posted in: Dispute Resolution

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

Finding the History of a Section of the Canadian Criminal Code
Susannah Tredwell

Unfortunately there is no easy tool that will allow you easily track the changes to a specific section of the Criminal Code over the years, but the following two resources may be helpful: … . . . [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. Welcome to the Food Court 2. BC Provincial Court eNews 3. Risk Management & Crisis Response 4. Canadian Appeals Monitor 5. The Lean Law Firm

Welcome to the Food Court
Health Canada Seeks to Modernize the Lists of Permitted Food Additives

As with any other ingredient,

. . . [more]
Posted in: Monday’s Mix

Careful What You Plead

The pleadings are arguably one of the most important aspects of a civil claim, setting the groundwork for a proceeding in terms of damages, establishing the relevant issues, and informing the likelihood or possibility of settlement.

Sure, there are ways to amend your pleadings. But these typically cost time and money, and the ability to do so is not always guaranteed.

A recent Court of Appeal for Ontario decision McLean v. Wolfson illustrates some of the problems that can emerge in pleadings.

The self-represented Plaintiff alleged medical negligence during a leg surgery in 1995. Presumably to address the obvious issues . . . [more]

Posted in: Substantive Law: Judicial Decisions

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

Celebrations and Anniversaries

I was speaking with a colleague the other day who was celebrating a significant wedding anniversary. For fun we started looking up the modern vs. traditional anniversary gifts. As I’m sure you can imagine, they vary! But as much as we may like the gift to celebrate the moment, it is the sentiment that is really important.

Milestones and anniversaries should be fun. In our world, law firms have special histories that should be celebrated. Milestones also offer an opportunity to look forward.

For a firm celebrating a milestone, the first questions to ask is who do we want to . . . [more]

Posted in: Legal Marketing

Helpful Tips for Preparing Summary Judgment Motions – Basaraba v Bridal Image Inc.

In Basaraba v Bridal Image Inc., 2021 ONSC 8038, the defendants brought a motion for summary judgment to have a “slip and fall” case dismissed. The defendants lost the motion. In writing his decision, Justice Dunphy provided guidance on best practices for motions, as set out below:

  • To convince a court to hear a partial summary judgment motion, the party must show:

(i) Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties;

(ii) Show how partial summary judgment will get the parties’ case in and out of the court system more . . . [more]

Posted in: Practice of Law

Justice in Your Neighbourhood?

I live in Etobicoke, Toronto’s western suburb. We used to have our own courts, right here in the west end. There were family and criminal courts at 40 East Mall, and a Landlord Tenant Board outpost on Dundas Street West. Just over the Humber River, in the original City of Toronto, there was a Small Claims Court on Keele Street (pictured above). People asserting civil rights, or facing criminal charges, could visit a courthouse in their own community.

Nowadays, there isn’t a single physical court or tribunal of any kind in Etobicoke. To get to a family court or small . . . [more]

Posted in: Legal Ethics

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. S.W.-S. v. R.S., 2021 ONCJ 646

[65] In determining a suspension of face-to-face contact the court must assess the medical vulnerabilities of children in the home, the ability of the parents to follow COVID-19 health protocols and the risk to the child of diminishing their relationship with one parent. See: C.L.B. v. A.J.N., 2020 ONCJ 213. The court must balance . . . [more]

Posted in: Wednesday: What's Hot on CanLII