The recent decision of Justice Fuerst in R v. Lippa has the controversy over the standing of paralegals raging again in Ontario. The decision relates to whether judicial officers have the discretion over which legal professionals will sit in the courtroom, and the order of cases which will be called.

In deciding that paralegals can be treated differently within the court system, Justice Fuerst made some interesting comments. She states at para. 18,

…s. 29 of the Law Society Act provides that every person who is licensed to practise law in Ontario as a barrister and solicitor is an

In employment law circles, there is an ongoing debate about how far an employer must go in accommodating a disabled employee to reach the point of “undue hardship”. The Supreme Court has held that an employer is not created to create a position or hire an additional employee to cover for the duties of an employee – the employee must still be able to carry out the essential functions of their job. The debate has since moved to determining what exactly makes an “essential function”.

In a recent decision rendered by James McNamee, Hamilton Health Sciences v Ontario Nurses’ Association, . . . [more]

Returning to this morning’s decision, in Canadian National Railway Co. v. McKercher LLP, which we gave the headline for in an earlier post, I thought it would be helpful to boil down the judgment, into twelve paragraphs, largely using the court’s own words:

1. The Bright Line rule has been confirmed – the court was not prepared to overrule Neil and Strother. So a law firm cannot accept a retainer to act against a current client on a matter unrelated to the client’s existing files. The fact that the Wallace and CN retainers were legally and . . . [more]

This morning, the Supreme Court of Canada handed down its fourth significant decision on conflicts of interest, the scope of duties of loyalty, and the appropriate division of responsibility between courts and law societies as regulators of professional conduct. It rejected arguments for liberalizing the so-called bright-line rule, but clarified its operation.

The case reopened the “bright-line rule” and the so-called “professional litigant exception, ” formulated by former Justice Ian Binnie in R. v. Neil, and re-affirmed in Strother v. 3464920 Canada Inc. It provides:

… a lawyer may not represent one client whose interests are directly adverse

An article in today’s Globe and Mail reports on a judgment by Ontario Superior Court justice D. M. Brown in which he severely criticizes the high cost of access to the courts in Canada: “Ontario courts ‘only open to the rich,’ judge warns,” by James Bradshaw.

The particular decision, York University v. Michael Markicevic, 2013 ONSC 4311, involves a request by one defendant to discharge a certificate of pending litigation registered against her real property and is part of a larger action by York against Markicevic and others concerning their alleged misuse of university resources. Let . . . [more]

The Riddle:

Q: How many Canadian judges does it take to create a paradox?

A: 9 Supreme Court of Canada judges paying insufficient attention to the inconsistent text of their reasons for judgment and 1 trial judge applying a portion of those reasons literally.

The Koan:

If

(1) the but-for test is currently the ONLY test in Canadian tort law for proof of factual causation;

and

(2) the ONLY method of applying the but-for test is the method set out in Snell: the robust, pragmatic, approach;

but

(3) the robust pragmatic method isn’t applicable “when there is evidence to . . . [more]

Today’s conclusion of the Supreme Court of the United States (SCOTUS) 2012-2013 session calendar— after a burst of some high-profile opinions—is an opportune occasion for a reminder of the fantastic resource that is SCOTUSblog. The site’s been around since the relatively early days of blogs—2002—and it has been discussed or referenced on this blog a few times. Indeed, a Google search for “SCOTUS” returns SCOTUSblog before it does the home for SCOTUS itself:

SCOTUSblog can be seen as a superb example of an excellent public resource supported by commercial partners, including a legal publisher. It started small and rather . . . [more]

Slaw readers interested in the theatre may want to mark the date of the Shylock Appeal, which will take place at the Stratford Festival on Saturday, October 5, at the Studio Theatre (behind the Avon Theatre), at 10:30 a.m. Alan Lenczner and another leading advocate will argue Shylock’s sentence before a panel of judges including Chief Justice Beverley McLachlin and former Justice Ian Binnie. With actors in the other roles, this day in court will be as entertaining as it is judiciously sound. . . . [more]

A recent decision by a New York federal judge has raised a number of issues concerning unpaid internships. It was decided in this case that two interns working on the set of the film Black Swan should have been paid, given that the work they accomplished did not meet the six criteria used for determining that an internship may be unpaid, as published in a fact sheet by the U.S. Department of Labor (which are interestingly the same criteria published by the Ontario Ministry of Labour):

1. The internship, even though it includes actual operation of the facilities of the

You’ll have to skip to about 3/4 of the way through this piece to find out why the title of this piece is what it is.

Once upon a time, but not so long ago, Canadian tort law contained a test for proof of factual causation in tort known as the material contribution (to injury) test. For those who might have forgotten, or never knew, that test seemed to have been affirmed, in Canadian tort law, by the Supreme Court in Athey v. Leonati [1996] 3 SCR 458, 1996 CanLII 183. A unanimous 7-member panel (Lamer C.J. . . . [more]

Here’s a sad bit of reading — seven paragraphs of an appellate judgment concerning children handed down by an excellent bench (Noah v. Bouchard, 2013 ONCA 383).

[1] The appellant Johnny Bouchard appeals from the order of the Superior Court of Justice dated April 5, 2012, dismissing the appellant’s claim for custody of the parties’ two children, Tyler (age 10) and Nicholas (age 8). The application judge ordered that the custody and access arrangements in existence at the time of trial pursuant to the earlier order of Judge MacKenzie of the Ontario Court of Justice should continue

Later this month, I’ll be speaking to a group of women on the topic of representing yourself in legal proceedings. The focus of my presentation will be on what you need to know and can expect from the courts if you’re choosing to represent yourself.

In preparing for that presentation, I’m on the lookout for comments from courts across the country on what is expected of the self-representing litigant and conversely, what won’t be tolerated from a self-representing litigant. For example, in the recent decision in Delichte v Rogers, 2013 MBQB 93 (CanLII), the Court plainly and strongly criticized . . . [more]