As was SCOTUS last week, the Supreme Court of Canada is a focus of some attention this week, with an historic appeal yesterday that might nullify an election and tomorrow’s release of a pentad of copyright-related decisions which will say a lot about fair dealing. None of this is of the server-crashing magnitude and political impact of the SCOTUS Affordable Care Act decision, but it does highlight what works well with the SCC and its judges:

This is one of those weeks where I beam in admiration for our highest court, and its judges. I am in awe of the . . . [more]

Today’s going to be an interesting day at the Supreme Court: they’re hearing argument in the Election Act appeal (Ted Opitz, et al. v. Borys Wrzesnewskyj, et al.), the first such direct appeal brought to this court. Factums are available here; and this is the link to the webcast. If you’re too pressed for time to wade through factums or watch the hearing live, you might like to follow Ottawa law prof Carissima Mathen’s tweets from the courtroom instead.

[Remember: when you need to get to the Supreme Court website and can’t recall the official URL, just . . . [more]

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]

This week the Ontario Court of Appeal released the decision in Taylor v. Canada (Attorney General), 2012 ONCA 479, in a special case motion assessing the sufficiency of fresh pleadings. The conflicting law related to the alleged negligence of Health Canada in applying the Food and Drugs Act by allowing unsafe temporomandibular joint (TMJ) implants.

Justice David Doherty framed the case by opening as follows:

[1] Government regulation impacts on most facets of modern life, particularly matters of public health and safety. If a government regulator exercises its powers in a negligent way, people can be hurt and suffer

. . . [more]

On June 25th, 2012, the Federal Court of Appeal denied the Canadian Society of Immigration Consultants (CSIC) appeal of the decision by the Minister of Immigration to appoint the Immigration Consultants of Canada Regulatory Council (ICCRC) as the Regulator of Immigration Consultants.

As Slaw readers know, the Canadian Legal Information Institute – best known by its acronym CanLII – is Canada’s paramount portal for free access to Canadian legal information. It’s administered by the Federation of Law Societies of Canada and funded by a levy on individual lawyers through the Barreau and the provincial and territorial law societies. As I continually tell legal audiences it’s the best bargain that lawyers get for their fees.

Now Canlii wants our help. Colin Lachance and his colleagues are engaged in a strategic planning exercise and have asked CorbinPartners Inc. to conduct an online survey to . . . [more]

The Supreme Court of Canada released its decision in Clements v. Clements today. David Chiefetz shared some thoughts about the case here earlier this week.

The majority, led by McLachlin C.J., expounded on the material contribution test, and indicated that it is better characterized as a “material contribution to risk” and not to injury. However, this approach should be rarely used to ensure that the fundamental principles of tort law for proof of causation are not undermined.

The court also clarified the principle found in Resurfice Corp. v. Hanke that the material contribution test is appropriate where causation under the . . . [more]

other than to the parties and their representatives?

__________________________________

(Rev’d June 30 by adding numbered points 2-9 n the Brief Summary of Consequences, the heading, and the underlined phrase in the next sentence)

It will, but it will not help plaintiffs other than Ms. Clements.

Appeal allowed and sent back for a new trial by a majority decision (7-2). The Court was unanimous on the law, just not the remedy.

. . . [more]

Here is a link to the decision in National Federation of Independent Business, et al., , v. Kathleen Sebelius, Secretary of Health and Human Services, et al., . More thoughts to come. Justice Kennedy joined Justices Scalia, Alito and Thomas in voting against the law. Chief Justice Roberts is thus the key vote.

Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

. . . [more]

In a decision dated June 21, 2012, the Federal Court made it clear that, for purposes of copyright, using a hyperlink is not copying the material it points to. That seems obvious, but its nice to see it recognized by the courts. The Warman and National Post v Fournier decision also said that – at least in the circumstances of the case at bar – reproducing 1/4 of an original article was not a substantial part for copyright purposes, and was thus not a copyright violation.

This follows a Supreme Court of Canada decision last fall that said that a . . . [more]

The Supreme Court of Canada announced this week that it will release its decision in the appeal from Clements v. Clements, 2010 BCCA 581 on June 29. Clements is a personal injury action. The plaintiff was injured in a single-vehicle motor cycle accident. The issue in the appeal is causation. The plaintiff won at trial – on Resurfice material contribution, not the but for test: the trial judge having held the plaintiff had failed to prove factual causation on the balance of probability – but lost on appeal. The British Columbia Court of Appeal held that the but-for . . . [more]

On June 15, our friends at Eagan published a brilliant and in some ways strange book that should be in every law library, since it is (as my headline says) the most important book on statutes this millennium: Reading Law, The Interpretation of Legal Texts. Its strangeness is due to the identity of its authors – the fiercely intelligent and challenging Justice Antonin Scalia the senior justice of the US Supreme Court , and the leading legal lexicographer of our time, Bryan Garner of LawProse in Texas. . . . [more]