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Archive for ‘Case Comment’

The Clement Commandments (2) – Proof of Factual Causation on the Balance of Probability

For whatever this is worth, for those who need to care (or do, regardless of need).

These propositions are written for the Canadian lawyer whose knowledge of the relevant Canadian law is such that a Superior Court (or equivalent) judge would consider that lawyer competent to prosecute or defend an “ordinary” personal injury or property damage action. As such, they presume a certain level of knowledge.

Comments are on for a limited purpose. I will attempt to clarify any of these propositions if the manner in which I have stated the proposition is not sufficiently clear, bearing in mind what . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Federal Government Appealing BC Supreme Court’s Assisted-Suicide Ruling

Following our previous Slaw post, were we commented on the June 15 British Columbia Supreme Court ruling that struck down the Criminal Code ban on physician-assisted suicide. Without being surprised, on July 14, 2012, we learn that the federal government has decided to appeal that decision.
Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

The Clements Commandments (1): Causation in Negligence for Canadian Law

I believe that what I’ve written below is a good enough summary, for now, of what practitioners in Canada’s common law jurisdictions need to know about the effect of  Clements v Clements, 2012 SCC 32 on the manner in which causation is to be proved in negligence actions. (For those who don’t know, Quebec is a civil law jurisdiction; all others are common law.)

These propositions are written for the Canadian lawyer whose knowledge of the relevant Canadian law is such that a Superior Court (or equivalent) judge would consider that lawyer competent to prosecute or defend an “ordinary” personal . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

BCSC Rules Hearing Fees Unconsitutional Barrier to Access

On May 22 the B.C. Supreme Court issued an interesting ruling in Vilardell v. Dunham, 2012 BCSC 748, an application that arose out of a family law proceeding. The plaintiff had sought to be relieved of hearing fees, or fees for the use of the courtroom. It is important to note the fees in question were as existed under a version of the Supreme Court Rules that was repealed and replaced in 2009; hearing fees continue to exist (at least to the point of yesterday’s ruling) but are reduced.

The Courthouse Libraries BC prepared an excellent and short . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

(US) Ebook Pricing Antitrust Suit (Definitely) Not Dismissed

Those following the US antitrust litigation against Apple and five of the big publishers in respect of ebook pricing by now will have seen Judge Cote’s decision to deny the defendants’ motion to dismiss the class action suit by consumers. The Opinion & Order, In Re Electronic Books Antitrust Litigation 11 MD 2293 (DLC) makes for quite interesting reading. I read a PDF of the Opinion last night, and the Opinion’s also been uploaded to Scribd.

It’s been a long while since I’ve read one of these, but it’s evident from the Opinion that Judge Cote had no difficulty . . . [more]

Posted in: Case Comment, Legal Information: Publishing, Substantive Law: Judicial Decisions

Email Transactions in Land – in New Brunswick

The New Brunswick Court of Appeal has published a substantial review of the impact of using email to transfer real estate. Its decision in Druet v. Girouard 2012 NBCA 40 overturned the decision of the Court of Queen’s Bench, 2011 NB 204 (in French only on CanLII; the English text is at [2011] N.B.J. No. 260, and [2011] 260.)

In this case the parties exchanged a total of seven emails about the plaintiff Girouard’s possible purchase of the defendant Druet’s condominium apartment in Moncton. The final email was from Druet, withdrawing from the transaction. Girouard took the view . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions, Technology: Internet

Pimps, Brothels and Hookers, Oh My!

The Ontario Court of Appeal released its much anticipated judgment on the legality of Canada’s prostitution laws yesterday in the decision of R. v. Bedford.

Predicated on the rights of sex workers to ply their trade in an environment that does not jeopardize their constitutional right to security of the person, the case succeeded in overturning two of the three central pillars of the Criminal Code’s anti-prostitution sections.

Provisions prohibiting “common bawdy houses” (what non-lawyers might more commonly refer to politely as brothels) have been declared unconstitutional with the government being granted a one-year reprieve to try its hand . . . [more]

Posted in: Case Comment

Helicopter Lawyering? Can Mom Represent Son in Family Law Case?

You may have heard about helicopter parenting – the overprotective parent who hovers over their child on the playground, maybe takes them to university, stays in the dorm for a few weeks, maybe even to law school… Well Justice McGee of the Ontario Superior Court of Justice will have none of this! In 2011, she issued an ex parte order preventing a party’s mother from representing him in a family law case. Mom had represented son in his Nova Scotia divorce proceeding. The divorce proceedings were acrimonious and the ill-feelings between Mom and her former daughter-in-law are evident in the . . . [more]

Posted in: Case Comment

SCC Strikes Blow at Mail Sweepstakes

“You may have won a million dollars!” … or not, if you don’t happen to have the pre-selected winning number. Various bonus prizes for early birds are also offered. This is a common marketing device, but the Supreme Court of Canada held unanimously in Richard v Time 2012 SCC 8 that it offended the Quebec Consumer Protection Act. Mr. Richard got $1000 in damages for being misled (no misles were involved), plus $15,000 in punitive damages, plus his costs at trial (where he had won) and on appeal (where he had lost), and on a solicitor-client basis in the SCC. . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Invasion of Seclusion & Data Protection

It hasn’t taken long for a court to apply the new tort of invasion of seclusion first recognized by the Ontario Court of Appeal in Jones v. Tsige January. While not providing a great deal of added nuance, the Small Claims Court’s decision in Connolly v. Telus Communications Co., [2012] O.J. No. 464, does provide some new insights. While providing little new insight into the substance of this new tort, the case is somewhat remarkable for its very subject matter.

First, it involves a lawsuit by an aggrieved Telus customer sued his mobile service provider over its perceived mishandling . . . [more]

Posted in: Case Comment

Catholic Students Cannot Be Exempt From Ethics and World Religions Course

On February 17, 2012, the highest court in Canada disagreed with Quebec parents and dismissed their case. Writing for the majority, Justice Marie Deschamps said the parents failed to show that the Ethics and Religious Culture (ERC) curriculum interfered with their ability to transmit their faith to their children stating:
Posted in: Case Comment