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Archive for ‘Substantive Law: Judicial Decisions’

Deloitte Class Action Indicative of Legal Future

Earlier this year, Justice Perell approved a replacement class representative in Sondhi v. Deloitte Management Services LP on a motion for what has already been an exhausting certification process in a class proceeding.

The matter involves a class, who although technically are lawyers, have not been considered as such by their employer or the parties procuring their services. These members typically consist of younger lawyers and new graduates who have been unable to otherwise find employment as lawyers in a traditional context.

I do know many of these young lawyers. I know that they are bright and talented, and would . . . [more]

Posted in: Practice of Law: Future of Practice, Substantive Law: Judicial Decisions

Challenges of Enforcing Statutory Publication Bans Online

Earlier this month, the Supreme Court of Canada ruled in on this again in R. v. Canadian Broadcasting Corp. on an application for a mandatory injunction. Although much of the commentary on this case has focused on how the Court has modified the historic test used for injunctions, few have looked at other aspects of the ruling, including the enforceability of statutory publication bans online.

An injunction is a powerful tool wielded by the courts, but one that should be applied sparingly. A court will order or compel a party to do something, or refrain from doing something, but will . . . [more]

Posted in: Substantive Law: Judicial Decisions

Consistency in Case-by-Case Privilege for Religious Communications

Solicitor-client privilege has been described by the Court in Lavallee, Rackel & Heintz v. Canada as a principle of fundamental justice and civil right of supreme importance in Canadian law. The Court went further in R. v. McClure and stated at para 35, “solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance.”

Not all forms of privilege though are so strongly protected. For forms of privilege that is not historically protected on the basis of class or category, the courts have employed the test originally set out in the 1961 tet by . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Student Access to the Exams They Have Written

The Court of Justice of the EU has held that the “examination script” i.e. the answers to examination questions, constitutes the personal information of the student, and therefore it must be made available to the student on request under access to information and privacy laws. (This is the Nowak case out of Ireland, for those of you who follow such things.)

Would the same result be obtained in any Canadian jurisdiction? One understands the argument that the answers are connected to the student – they have to be, in order to serve their primary purpose. The student’s marks would be . . . [more]

Posted in: Substantive Law: Judicial Decisions, ulc_ecomm_list

An Algorithm’s Charter Rights

Everywhere I go during the holidays I seem to be surrounded by Apple’s Siri, Amazon’s Alexa, and Google’s Assistant. While these computers don’t yet talk the way do, it did have me thinking about the expression rights that might be protected by the Charter.

In 1996, the United States District Court for the Northern District of California ruled in Daniel J. Bernstein et al., v. United States Department of State et al. that software source could be protected under the American First Amendment,

…the particular language one chooses change the nature of language for First Amendment purposes. This court can

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

The Healthy Respect Between Judiciary and Executive

As we enter 2018, we begin the new year with a new Chief Justice, and an opportunity to reflect on the Rt. Hon. Beverley McLachlin’s 17 years in this role, the longest in the entire history of Canada.

A well-experienced jurist, who has been on the bench since 1981, her role on the Court has had a discernible impact on the development of the Charter and its interpretation. The Charter is one of the most important national symbols of Canada, outranking even the flag, the national anthem, the RCMP, and even more than hockey. The CBA Presidents who . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

📆 What You Were Looking at in 2017: CanLII’s Top Cases

[This post is being published simultaneously on our blog]

At the end of a year that saw the news take a more central role in our lives and when so much is uncertain, some things remain constant and one of them is the list of cases that is most accessed on CanLII. All of the top three cases were in the top three last year, and only one of the top 10 cases was issued in 2017. Eight of the cases were on the list last year. Six of the cases are the same as were on . . . [more]

Posted in: Substantive Law: Judicial Decisions

Charter Protects Freedom of Belief, Not Objects of Belief

Canada has not had an entirely disassociated relationship with religion, from its inception.

The British monarch, who is the symbolic head of Canada, also holds the title of Supreme Governor of the Church of England, the mother church of the international Anglican Communion. The 2011 census estimates over 1.5 million Canadians, or 5% of the population, are Anglican today, making this relationship with the church not entirely insignificant.

The monarch’s Oath of Accession includes a promise to “maintain and preserve the Protestant Religion and Presbyterian Church Government,” meaning that religious plurality is also built into this symbolic role given his . . . [more]

Posted in: Substantive Law: Judicial Decisions

A Rhetorical Question for Canadian Appellate Counsel

If you were appearing before your jurisdiction’s Court of Appeal and:

  1.  you didn’t mention one of the Court’s own decisions decided within the year, deciding one of the central issues in the case you were on; or
  2.  mentioned that case but on another point without mentioning that it had decided the issue in your case; or
  3. relied on a decision of your Court of Appeal for a proposition which had been rejected by the Supreme Court in at least 3 decisions after that Court of Appeal decision and (you did so) without mentioning the SCC decisions on point; or
  4. argued
. . . [more]
Posted in: Substantive Law: Judicial Decisions

Employers Can Be Found Liable for Negative Employment References

Two recent cases out of Ontario’s Superior Court, Papp v Stokes Economic Consulting Inc., (Papp) and Kanak v Riggin, (Kanak), provide guidance to employers on avoiding liability when giving employment references. Although in both Papp and Kanak the employers were cleared of any liability, both cases confirm that employers can be found liable for defamation when providing a negative reference. . . . [more]

Posted in: Case Comment, Practice of Law, Practice of Law: Practice Management, Substantive Law, Substantive Law: Judicial Decisions

Judging and the Depletion Effect

“Justice is what the judge ate for breakfast”. – Judge Jerome Frank

In Thinking Fast and Slow, Daniel Kahneman Nobel Prize winner explains this phenomenon. In a study of parole judges, the researchers plotted the proportion of approved requests for parole against the time since the last food break. It was found that the prospect of someone being granted parole changed during the elapsed time between food breaks.

The cases before the parole judges were presented in random order. Each case took around 6 minutes to hear. After each meal, the proportion of people granted parole increased.

Kahneman explained . . . [more]

Posted in: Substantive Law: Judicial Decisions