Canada’s online legal magazine.

Archive for ‘Substantive Law’

The Importance of Reasons for Judgement in Transparency

Anyone even within the vicinity of the justice system in Canada these days can easily tell that it is overwhelmed. The sheer volume of cases alone is cause for concern, and that doesn’t begin to illustrate the significant delays to everyone involved.

The Court of Appeal for Ontario recently released a decision in R. v. Artis, 2021 ONCA 862 which illustrates the types of problems the bench is facing, overturning a conviction and sentence in a case where the reasons for a verdict were provided about 31 months after the Notice of Appeal was filed.

The court stated,

[11]

. . . [more]
Posted in: Substantive Law: Judicial Decisions

Force Majeure Clauses: Part of Your Emergency Toolkit

Written by Daniel Standing, LL.B., Editor, First Reference Inc.

Force majeure clauses are commonly included in commercial agreements to reduce the effect or risk of disruptive events that are beyond the control of the contracting parties. The concept of force majeure is related to the contract law doctrine of frustration since they both deal with the implications of an event that affects a party’s ability to comply with the contract. Force majeure provisions are distinct, however, in that they seek to define the types of events that qualify as force majeure, and they should define the contractual consequences that flow . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Court of Appeal for Ontario Introduces Case Summaries

Last week, I mentioned steps taken by the Supreme Court of Canada to make the law more accessible to the public. This includes case summaries provided by the Court, to provide an unofficial and streamlined overview of the case.

The Court of Appeal for Ontario has recently adopted a similar approach in Restoule v. Canada (Attorney General), 2021 ONCA 779 (CanLII), providing its own summary of the 300 page decision on its site.

Beyond the length of the decision, the case involves an are of significant public interest, involving the Robinson-Huron Treaty and the Robinson-Superior Treaty. The appeal involves . . . [more]

Posted in: Substantive Law: Judicial Decisions

The Supreme Court Goes Graphical

The Supreme Court of Canada plays a special role in our constitutional democracy, but it’s often one that is not fully understood by the public, or even the legal profession.

Over 20 years ago, Lorraine E. Weinrib stated in “The Supreme Court of Canada in the Age of Rights,”

Democracy does not trump the other principles; nor is it the
raison d’etre of the Constitution. One can sum up the Court’s analysis with the following statement from an Israeli judgment elucidating the Israel’s new rights-protecting system, which is, in part, modelled on Canada’s Charter:

“true” democracy recognizes the power

. . . [more]
Posted in: Substantive Law: Judicial Decisions

Employee Rightfully Dismissed for String of Absences

Lewis Waring, Paralegal, Student at law, Editor, First Reference Inc.

In Abdon v Brandt Industries Canada Ltd (“Abdon”), an employer rightfully dismissed an employee for cause as a result of a tendency to fail to show up for work without authorization. After the employer engaged in a series of disciplinary steps, the employee’s dismissal for cause became the only reasonable option to respond to the employee’s egregious failure to fulfill their duties in the workplace. . . . [more]

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

When Can You Seek Declaratory Relief?

Many litigants have confusion around pleading declaratory relief. In this blog post, I provide a brief summary of declaratory relief.

A declaration is a narrow remedy. A declaration confirms or denies the existence of a right. It is available without a cause of action. It is also available whether or not other consequential damages are sought (e.g. payment of damages, injunction, etc). 

In Savary v Tarion, 2021 ONSC 2409, Justice Bale of the Ontario Superior Court of Justice provides guidance on seeking a declaration from the court. Justice Bale writes that a declaration is not requested for the finding . . . [more]

Posted in: Substantive Law

Best Interests in Childhood Vaccination

While the COVID-19 pandemic has led to a sharp increase in family law conflict, these disputes have recently shifted to vaccination of minors. At times, this is being attempted contrary to one or both of the parent’s wishes.

The Health Care Consent Act, 1996 does not state a minimum age for capacity for medical decisions, but instead provides relevant factors,

Capacity

4 (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about

. . . [more]
Posted in: Substantive Law: Judicial Decisions

Trash Talking Employee Tanks Reinstatement

Daniel Standing LL.B., Editor, published by First Reference Inc.

One would expect that after beating up an older lady while at work, a terminated employee would show remorse for his actions and do whatever possible to get his job back. In United Parcel Service v Teamsters Local Union No. 213, 2021 CanLII 64789 (CA LA), we see the impact an employee’s trash talk about their employer can have on his or her potential reinstatement. After accepting an employee’s apology at face value and offering reinstatement, an employer may uncover evidence showing the employee cannot be trusted, allowing the employer . . . [more]

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

Could Capping Billables Force Work-Life Balance?

Before the pandemic, many lawyers may have longed for more flexible time, and the ability to work more from home.

The past year and a half may have challenged those professed goals, especially for those who have other responsibilities or distractions in the home. Working from home does not necessarily mean more personal time, and it does not necessarily mean that there will be less work.

As lawyers slowly make their way back to the office, they’re also revisiting the perpetual struggle to find enough time for self-care and care of others. One of the ideas that has started to . . . [more]

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

Contract Clarity Is Critical Around ESA Rules on Termination

Written by Daniel Standing LL.B., Editor, First Reference Inc.

Ontario has recently been a hotbed of decisions considering the validity of termination clauses in employment contracts. At issue in Lamontagne v J.L. Richards & Associates Limited, 2021 ONSC 2133 (CanLII) was whether a termination clause ousted the employee’s entitlement to common law reasonable notice of termination. If it was sufficiently clear, the employer would win. If it was ambiguous, then the employee would have access to the more generous common law entitlement of reasonable notice. Read on to find out how the court decided the issue.

Background

Annick Lamontagne was . . . [more]

Posted in: Case Comment, Substantive Law: Judicial Decisions

Injustice Created by Crown Imbalance

Although litigation is frequently characterized as adversarial, some of the realities in the criminal justice system are slightly more nuanced. Crown counsel represent the public’s interest, and not that of a victim or complainant. Obviously the public has an interest on those impacted by a crime, but Crown counsel do not directly represent those parties or those interests.

In 1954, Justice Rand explained this in the Supreme Court of Canada decision, Boucher v. The Queen1954 CanLII 3 (SCC), as follows,

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction,

. . . [more]
Posted in: Substantive Law: Judicial Decisions

A Brief Look at Enforcing Restrictive Covenants: A Tale of Two Cases

Written by Daniel Standing LL.B., Editor, First Reference Inc.

Generally, a contract in restraint of trade is where one party agrees to restrict their liberty in the future to freely carry on trade with others who are not parties to the contract. Restrictive covenants can take different forms, depending on their purpose. For example, non-competition and non-solicitation covenants aim to prevent a departing employee from setting up a competing enterprise with their former employer. A non-acceptance clause may purport to restrain someone from accepting business from a client of a former employer, and a confidentiality clause normally aims to prevent . . . [more]

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