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]

On Thursday, the retiring English Director of Public Prosecutions, Keir Starmer QC, published final guidelines for crown counsel on the approach they should take in cases involving communications sent via social media. The approach they take could be usefully read by Canada’s prosecutors.

First step is to assess the content of the communication and the conduct in question. It distinguishes between :

Communications which may constitute credible threats of violence to the person or damage to property.

Communications which specifically target an individual or individuals and which may constitute harassment or stalking.

Communications which may amount to a breach

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]

If I were to start to discuss politicians and expense scandals your mind would likely turn to events in Ottawa; however, here in Nova Scotia, we have been there, done that and so have that T-Shirt. The popular topic earlier this week was whether or not the legislature was going to be recalled in order to expel a sitting MLA. In the end that did not happen, but if it had, it would not have been the first time in Nova Scotia.

Twenty-six years ago in 1986, An Act Respecting Reasonable Limits for Membership in the House of Assembly, . . . [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

On Monday I chaired a joint LSUC /IT-Can afternoon on IT privacy law. One of the panels was on the anti-spam act, including representatives from the CRTC and Industry Canada. While there is no clear implementation date yet, Industry Canada expects the final Industry Canada regulations will be out in late summer or early fall. When those come out, an implementation date will be announced. Industry Canada is recommending that there be an implementation delay of several months to allow business to comply, but that decision is ultimately in the government’s hands.

The legislation is very complex, with exceptions layered . . . [more]

I used to have a working VHS player and a copy of the movie Speed. Often a scene from the movie will pop into my (overactive?) mind when I am looking for legislation from my desk:

01:03:38 – Jack, what did he say?
01:03:42 – What’s the matter?
01:03:49 – There’s a gap in the freeway. – What?
01:03:53 – What do you mean? – How big is a gap?
01:03:56 – 50 feet. A couple of miles ahead.

I remember when looking for legislation at my desk was rarely a reasonable option. Today, if I can’t browse my . . . [more]

Twitter has been ordered by French courts to reveal the names of people responsible for anti-semitic tweets (using a standard hashtag) to a number of public interest organizations. Though Twitter said it would cooperate if it received an order from the American courts acting on the request of the French courts, the Court of Appeal said it has to cooperate because the direct order of the French court.

Would such an order be made in favour of private parties here? Would the private bodies first have to begin a legal proceeding against the pseudonymous tweeters – a civil action? a . . . [more]

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

I had written previously about legislation to amend the Electronic Commerce Act to remove the exclusion on land transactions. The government’s bill to do so has now passed, as part of the budget legislation for 2013 (schedule 5).

The amendments will come into force on proclamation. The government has been talking and will continue to talk with stakeholders about measures that might be useful to ensure that the change does not increase the risks of real estate fraud. (If you have suggestions about such measures, feel free to mention them here.)

The Ontario Real Estate Association was enthusiastic about . . . [more]