Slaw: Substantive Law

Bills to Enact Pooled Registered Pension Plans

Yosie Saint-Cyr — Thu, 16 May 2013 09:00:45 -0400

As anticipated, since the federal Pooled Registered Pension Plans Act came into force December 14, 2012, several provinces have followed suit and tabled legislation to implement the new kind of portable deferred income plan, which is designed to provide retirement income to workers and self-employed persons who do not have access to an employer-sponsored retirement pension plan. . . . [more]

As Goes Access to Law School, So Goes Access to Justice – Part I

Jamie Maclaren — Wed, 15 May 2013 12:00:53 -0400

[The memosphere strikes again! Between submission and publication of this column, Omar Ha-Redeye posted a very informed and insightful Slaw entry entitled, "Access to Justice Starts With Legal Tuition". Playing Bell to my Meucci (that reads rather strangely), Omar covers much of the same analytical territory as me—with the bonus of journalistic rigour. Still, I like to think that both posts deserve your attention.]

A lot happens in a year, and the Quebec student protests that dominated the news last spring are a distant memory now. The students went back to school, Quebec elected a new government that . . . [more]

Rescission for Mistake

John O'Sullivan — Mon, 13 May 2013 13:51:35 -0400

Last week the UK Supreme Court handed down its judgment in two appeals eagerly awaited by the Trusts and Estate bar: Pitt v. Holt and Futter v. Futter. They concern the rule which emerged since the 1975 decision in Hastings-Bass (HB) by which trustees could attack their own decisions where they had unintended consequences. Some commentators dubbed it the "morning after pill".

A Press summary of the UKSC decisions can be found here.

Typically the sorts of cases where the HB rule has been applied are to give relief to decisions which have resulted in taxation that was unintended and . . . [more]

Battle Over Anonymous Reviewers Wages on in Virginia

Omar Ha-Redeye — Sun, 12 May 2013 20:54:52 -0400

One of the most common inquiries around reputation management law that I receive is how a business, brand or professional can access the names and identities of people who use review sites to unfairly malign them.

This is a valid question because review sites are frequently being used for a variety of other purposes. For example, business competitors can try to capture larger market shares by making themselves look better, and personal vendettas can play themselves out through negative reviews anywhere a person's name or their place of work is found online. The Terms of Service for most of these sites, . . . [more]

Closing Canada’s International Human Rights Implementation Gap

Alex Neve — Wed, 08 May 2013 07:00:51 -0400

Canada is far from perfect when it comes to its domestic human rights record. Obviously the scale and gravity of concerns do not compare with tragedies unfolding in countries like Syria or the Democratic Republic of Congo, the threat to survival faced by so many of Colombia’s Indigenous nations or the relentless discrimination women endure in Afghanistan. But the concerns are nevertheless very real and longstanding, ranging from the alarmingly high and entrenched levels of violence experienced by Indigenous women to punitive new immigration detention laws; from the failure to tackle homelessness in the country to national security practices that . . . [more]

Social Networking From an Employment Law Perspective – a CCCA Spring Conference Panel

Connie Crosby — Tue, 30 Apr 2013 09:09:13 -0400

These are notes from a panel discussion by George Waggott, Partner, McMillan LLP, Toronto, Nina Barakzai, Sky Media, UK, Lyndsey Wasser, Partner, McMillan LLP, Toronto, and Lewis Gottheil, Counsel, CAW Canada, Toronto, on April 16, 2013 at the Canadian Corporate Counsel Association National Spring Conference 2013 in Toronto.

Note: these are my selected notes from this session; any inaccuracies or omissions are my own and not the speakers'. This session included a review of case law which was largely not included here.

The Social Network: What Should Employers Do?

Panelists:

George Waggott, Partner, McMillan Nina Barakzai . . . [more]

Facing Injustice: Implications of Ordering N.S. to Remove Her Niqab

Guest Blogger — Tue, 30 Apr 2013 07:30:54 -0400

On September 11, 2008 N.S., a sexual assault complainant sat in a court room in Ontario and struggled to explain to a judge why she shouldn’t have to remove her niqab, face veil, while she testified. “My face” she insisted, “is not going to show any signs of – it is not going to help, it really won't.” N.S., though unbeknownst to her at the time, had just pushed up against one of the most strongly held beliefs of our legal system – that faces ought to be visible in court and that credibility could be determined by observing a . . . [more]

Immigration Reforms : “Good for Canada” or Bad for Democracy?

Nathalie Des Rosiers — Tue, 30 Apr 2013 07:00:36 -0400

In January 2012, at the World Economic Forum in Davos, Switzerland, Prime Minister Stephen Harper announced that his government would reshape the immigration system to make it “good for Canada”. This begged the questions whether the immigration had been “bad for Canada” up to now and whether this reshaping was necessary. Nevertheless, the government did proceed to institute a series of reforms that have now become part of Canadian law. Since 2012, we have seen increased Ministerial powers to bar individuals from entering Canada for vague public policy consideration, increased Ministerial powers to declare arrivals “irregular” and imprison the arriving . . . [more]

The Legal Basis for Omar Khadr's War Crimes Appeal

Omar Ha-Redeye — Sun, 28 Apr 2013 16:32:24 -0400

The legal team for Omar Khadr announced yesterday that they intend to appeal his plea bargain before the military commission at Guantanamo Bay. Khadr is currently serving out his eight-year sentence at Millhaven Institution near Kingston, Ontario. Khadr is eligible for parole this summer.

The appeal would be to an American domestic court, the U.S. Court of Appeals for the District of Columbia Circuit, and if successful would result in Khadr being released immediately. The international transfer agreement under which Khadr was moved to Canada would no longer require his detention.

Khadr's guilty plea on October 25, 2010 included a confession to killing American Sgt. . . . [more]

The Supreme Court Speaks – or Doesn't – on L'affaire Laskin

Simon Chester — Fri, 26 Apr 2013 17:06:45 -0400

The office of the Chief Justice of Canada issued the following press release April 26, 2013:

FOR IMMEDIATE RELEASE

The Supreme Court of Canada conducted a thorough review of its records and it does not have any documents relevant to the alleged communications by former Chief Justice Bora Laskin and former Mr. Justice Willard Estey in relation to the patriation of the Constitution of Canada. This concludes the Court’s review.

===============================

POUR DIFFUSION IMMÉDIATE

La Cour suprême du Canada a complété un examen exhaustif de ses dossiers. Ceux-ci ne contiennent aucun document au sujet de communications que l’ancien juge en . . . [more]

Canada to Start New Biometric Screening Program on Temporary Residents

Yosie Saint-Cyr — Thu, 25 Apr 2013 09:00:48 -0400

Beginning September 2, 2013, foreign nationals applying for Canadian visas from countries such as Haiti, Jamaica, Saudi Arabia, Albania, Afghanistan, Sudan, Syria, Columbia, Burma, Egypt, Yemen and Pakistan, will undergo mandatory fingerprinting and digital photo collection at new visa application centres being established by Canada overseas. Citizenship and Immigration Canada has indicated that the new measures are necessary because of a "rise in global identity fraud" and technological innovations that "make it easy to steal, forge or alter identity documents." . . . [more]

Orphan Works and Digital Libraries via CopyrightX

Kim Nayyer — Wed, 24 Apr 2013 18:42:27 -0400

Very shortly, at 7 pm ET, a presentation on Orphan Works and Digital Libraries will be live-streamed. The stream will be available at http://tfisher.org/hls1x-copyright.html.

For later viewing, the presentation and discussion will be archived in about a week at http://cyber.law.harvard.edu/people/tfisher/CopyrightX_Events_2013.htm.

The speakers are top-notch: Brewster Kahle, John Palfrey, and Robert Darnton. It seems likely their discussion will be set in the context of the Digital Public Library of America, which launched last week, and with which all are connected. Copyright themes likely will focus on US law.

More information on the DPLA is . . . [more]

Removing Barriers to Accessibility

Karen Dyck — Wed, 24 Apr 2013 16:28:36 -0400

In excess of 15% of the population of Manitoba face barriers to their full participation in the activities of daily living, according to recent estimates. Addressing and removing these barriers is the purpose of Bill 26, Manitoba’s proposed Accessibility for Manitobans Act, introduced in the Legislature today.

This legislation has been in the works for some time. In its November 2010 Discussion Paper for Made in Manitoba Accessibility Legislation the government stated that:

“The proposed legislation will provide for a long-term, systematic and proactive approach to dealing with accessibility issues for seniors and persons with disabilities. With this approach,
. . . [more]

Legislating Queer and Non-Traditional Families

Karin Galldin & Leslie Robertson — Wed, 24 Apr 2013 15:33:14 -0400

Recently a precedent setting family law case involving a sperm donor claiming to be a parent of a child born to lesbian mothers was settled out of court. Not unlike many non-traditional families the women in this northern Ontario case conceived a child by way of donor sperm, but precedent setting in that the sperm donor applied to the courts to be declared a parent and for liberal access rights to the child.

Settling out of court is great for the parties involved who got to determine the details of their settlement agreement and put an end to long and . . . [more]

Bill S-7, the Combating Terrorism Act

Simon Fodden — Tue, 23 Apr 2013 09:07:51 -0400

Slaw readers might like to take a look at Senate bill S-7, the Combating Terrorism Act, now before the House for third reading, a bill that proposes to abridge our civil liberties to a degree. As is often the case with bills the main purpose of which is to amend existing legislation, the text of the bill itself is nearly incomprehensible on its own unless you're familiar with the relevant area of law.

The Globe and Mail has an article in this morning's paper that will give you a brief sense of the bill's main incursions into your Charter . . . [more]

Consolidating Labour Legislation: Proposed Saskatchewan Employment Act

Yosie Saint-Cyr — Thu, 18 Apr 2013 09:00:50 -0400

On December 4, 2012, the Saskatchewan government tabled Bill No. 85, An Act respecting Employment Standards, Occupational Health and Safety, Labour Relations and Related Matters and making consequential amendments to certain Acts (hereinafter referred to as the Saskatchewan Employment Act) in the hope of consolidating 12 employment and labour-related laws, restructuring existing provisions, eliminating inconsistencies, and more accurately reflect contemporary employment relationships. . . . [more]

Culture Wants to Be Free*

Kim Nayyer — Wed, 17 Apr 2013 23:56:46 -0400

Prof. Larry Lessig gave a superb talk, "Free Culture," this evening at Harvard Law School. The talk is one of a series of special events Harvard Law professor and Berkman Center for Internet & Society director Terry Fisher organized for his 2013 Copyright course, in which I'm lucky enough to be participating. Like all the special events, Prof. Lessig's talk was presented in person to Prof. Fisher's Copyright law school class, via webinar to online course participants (including me), and to the public via archived webcast.

I took a few notes during Prof. Lessig's engaging and stimulating talk, and . . . [more]

“What Do Those Indians Want, Anyway?”: Some Legal Issues Underlying Idle No More (Update)

Michael Posluns — Tue, 16 Apr 2013 07:00:32 -0400

The arrival of a group of Cree youth from Whapmagoostui, the northernmost Cree village on Hudson Bay at the end of a 1,500 km walk (and the many friends they picked up along the way) after a two month trek through the northern bush should remind us that the spirit of Idle No More (INM) has not died. It has simply gone off the grid. The young people left Whapmagoostui (aka Great Whale) on January 16 and were expected in Ottawa on March 25. The first long leg of their journey – from Whapmagoostui to Chisassibi was on snowshoes and . . . [more]

Are Litigants With "Funds and Audacity" Hampering Access to Justice?

Karen Dyck — Wed, 10 Apr 2013 07:12:04 -0400

A few comments with respect to access to justice caught my attention in the recent Manitoba Queen’s Bench (Family Division) decision in Price v. Laflamme, 2013 MBQB 25 (CanLII). In the course of providing reasons for a decision on costs at the conclusion of a lengthy trial, the trial judge noted that the conduct of the petitioner’s conduct in the matter effectively discouraged any possibility of resolution of the matter. He noted that:

Implicit in that conduct may have been a desire to exhaust the resources of the respondent/father in pursuing his position. No stone was left unturned. No examination
. . . [more]

Regulatory Jurisdiction

John Gregory — Wed, 10 Apr 2013 07:10:01 -0400

A recent Ontario Superior Court case gives some interesting guidance on regulatory jurisdiction over Internet activities. Civil jurisdiction is not completely resolved, but there are lots of cases, and criminal jurisdiction is also ‘known’ to some extent. What regulators can do or should do is often harder. I speculated a bit on that topic in a presentation on jurisdiction a few years ago: www.euclid.ca/jurisdiction2005.ppt (pages 15 – 20).

In Ontario College of Pharmacists v. 1724665 Ontario Inc., 2013 CanLII 13655 (ON SC), the court held that a call centre in Ontario that was acting for a company in Belize . . . [more]

Do We Have Rights to a Healthy Environment?

Dianne Saxe — Thu, 04 Apr 2013 12:00:50 -0400

Do governments owe us clean air and clean water? Many Canadians expect our government to protect us from contamination and other environmental harms in outdoor air, water and land. But is this a legal right?

The first formal recognition of environmental rights is found in the Stockholm Declaration, signed in 1972. Principle 1 recognizes our “fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.” But this is international law, more of a statement of aspiration than a legal requirement.

David Boyd, one of Canada's . . . [more]

The Launch of the New Social Security Tribunal

Yosie Saint-Cyr — Thu, 04 Apr 2013 09:00:25 -0400

On April 1, 2013, the federal government launched the new Social Security Tribunal, which aims to simplify the process of appealing government decisions related to benefits under the Employment Insurance Act, Canada Pension Plan and Old Age Security Act. . . . [more]

Law Reform in Manitoba: Recent Recommendations

Karen Dyck — Wed, 03 Apr 2013 08:39:22 -0400

The Manitoba Law Reform Commission last week issued two reports recommending changes to legislation re: nuisance claims and commercial tenancies.

Report #126 focuses on The Nuisance Act and The Farm Practices Protection Act. These two pieces of legislation currently limit the scope of the common law tort of nuisance in Manitoba. The Commission recommends repeal of The Nuisance Act and a broad, inter-disciplinary and public review of The Farm Practices Protection Act.

Chapter 2 of the Report contains a succinct and potentially useful summary of the common law of both public and private nuisance and points to the . . . [more]

Reasonable Accommodation – How Far Should an Employer Have to Go?

Gabriel Granatstein — Tue, 02 Apr 2013 16:14:05 -0400

Increasingly, governments across Canada have been pushing private employers to do more to accommodate and hire disabled Canadians. For example, today, the Federal Government announced new programs and funding to help facilitate the process of finding work for disabled candidates and paying for additional training and/or resources. I think that it's a great program and I applaud the government for this worthwhile initiative. However, will it be effective? Will it make a difference?

The human rights laws of all Canadian jurisdictions have long held that employers are obligated to accommodate disabled employees or candidates to "the point of undue hardship". "Undue hardship" . . . [more]

The Judge's Tale

Simon Fodden — Tue, 02 Apr 2013 11:03:06 -0400

The literary bug has bitten our courts again, this time infecting the writing hand of Fergus O'Donnell of the Ontario Court of Justice. I came across his judgment in R v. Duncan (2013.03.26), since featured in the Toronto Star, in an ethics email list I belong to, where it came in for a lot of interesting criticism. (It's not yet reported but a PDF copy is available on Slaw.) In the opinion Justice O'Donnell adopted a casual style that owes something to the mystery genre, as well as a good dose of the sardonic approach taken to the . . . [more]

Consumer Protection and EULAs

John Gregory — Thu, 28 Mar 2013 14:33:01 -0400

The Law Commissions of Scotland, England and Wales have proposed a clarification of British law about unfair terms in consumer contracts, to ensure that that law applies to end-user licence agreements for software and online services (EULAs).

Canadian jurisdictions do not (so far as I know) have legislation with ‘unfair terms’ in the name, while the UK has implemented the EU Directive on Unfair Terms. (French courts held a decade ago that online contracts, notably the AOL (2004) and Tiscali (2005) subscriber agreements, were subject to the comparable French law – and invalidated a large proportion of the . . . [more]

Bill on Gender Identity to Protect the Transgendered Approved

Yosie Saint-Cyr — Thu, 28 Mar 2013 09:00:55 -0400

Across Canada, there is a trend in human rights law to increase protections for transgendered individuals. On March 20, 2013, Bill C-279 to protect the right of the transgendered and make it illegal to discriminate against transgender Canadians under the Canadian Human Rights Act passed third reading in the House of Commons (149-137 vote). . . . [more]

Smoked by Mandatory Minimums

Edward Prutschi — Thu, 28 Mar 2013 07:00:02 -0400

When did sentencing policies shift from merely being questionable, misguided or ill-advised to becoming downright absurd?

For many years now, the blunt hammer of mandatory minimum sentencing has been gaining traction in repeated Criminal Code amendments. Long a feature of only the most heinous criminal act imaginable – murder – mandatory minimums leaked into the broader sentencing framework in the battle against drunk drivers imposing minimum licence suspensions followed by mandatory jail stints for repeat offenders. Since then, they have been invoked in an ever-growing array of anti-crime objectives including the war on drugs, to battle the scourge of gun . . . [more]

1654776 Ontario Limited v. Stewart, 2013 ONCA 184: You've Been Warned

David Cheifetz — Wed, 27 Mar 2013 18:24:00 -0400

Mr or Ms Executive, in the ONCA's reasons for judgment released today, to keep your mouth shut about the state of confidential negotiations.

Here's a link to the reasons on the ONCA and some excerpts.

[1] This appeal is from the judgment of Justice Edward P. Belobaba dismissing the appellant’s application for an order that the respondents disclose the identities of confidential sources for a story written by the respondent Sinclair Stewart and published by the respondent the Globe and Mail Inc. The appellant, whose sole officer, director and shareholder is Jeffrey G. MacIntosh, holder of the Toronto Stock Exchange Chair in Capital Markets
. . . [more]

R. v. TELUS Communications Co., 2013 SCC 16

David Cheifetz — Wed, 27 Mar 2013 15:18:24 -0400

I'll leave the substantive comments on the validity and merits of the decision to those with the expertise. I'll say only that I suspect the Harperite law & order types involved in the appointment of Justices Moldaver and Karakstanis expected them to line up on the gov't's side and not the civil liberties side.

. . . [more]

Property Managers Not Welcome at the Landlord and Tenant Board

Matt Maurer — Tue, 26 Mar 2013 06:45:48 -0400

The Ontario Superior Court has issued a permanent injunction preventing the owner of a property management company from appearing before the Ontario Landlord and Tenant Board (the “Board”) on behalf of his landlord clients.

Enzo Vincent Chiarelli operates a full service property management company for property owners. One of the services he provides is appearing before the Board in eviction proceedings. During a 2011 eviction proceeding, the tenants challenged Mr. Chiarelli’s standing to appear before the Board. The Board agreed with the tenants in that case and the Law Society subsequently brought an application to obtain a permanent injunction preventing . . . [more]

Unbundling Legal Information

Colin Lachance — Thu, 21 Mar 2013 12:00:15 -0400

Because law belongs to the people, the governments and courts that issue law must make it available to the people. This is a simple and widely accepted fact.

In practice, as governments and courts carry out their responsibilities to make law available, they do so in a wide variety of ways. For example, the digital versions of federal statutes available from Justice Canada are “official”, and they exist in forms and with rights extended to all and sundry that permit reuse and republication without royalty or permission. However, in some provincial jurisdictions, a surprising range of limitations exist. . . . [more]

Amending the Professional Code With Respect to Disciplinary Justice

Yosie Saint-Cyr — Thu, 21 Mar 2013 09:00:09 -0400

In light of the ongoing revelations at the Commission Charbonneau and recommendations from l'Office des professions et du Conseil interprofessionnel du Québec, on February 13, 2013, the Quebec government tabled Bill 17, An Act to Amend the Professional Code With Respect to Disciplinary Justice to improve the effectiveness of professional disciplinary boards and to reform how they issue disciplinary measures when a complaint against a professional is made. . . . [more]

US Copyright Law Moving Along

Kim Nayyer — Thu, 21 Mar 2013 00:36:35 -0400

This is an eventful week so far for those interested in US copyright matters. As many will have read, on Tuesday the Supreme Court of the US released a 6-3 ruling in Kirtsaeng v. John Wiley & Sons, Inc., in which it addressed the reach of the first-sale doctrine in respect of works published for foreign markets, or—stated another way—the reach of a copyright owner's control over those products. Twitter continues to show joy over the decision among librarians and consumers of information, along with dismay among others concerned with importation and copyright control.

In Opinion analysis: Justices reject . . . [more]

EU Goes for ODR

John Gregory — Tue, 19 Mar 2013 16:40:43 -0400

The European Union is adopting regulations on alternative dispute resolution (ADR) and online dispute resolution (ODR), according to a press release and associated documents, including a draft ODR regulation. This is aimed at consumer e-commerce in particular.

I have not yet found in the documents answers to some questions that occur to me off the cuff. (The answers may be in there somewhere – feel free to provide via comments.)

Who pays? It appears to be taxpayer-funded, rather than relying on user fees. There is mention of a cost of 4.6 million Euros (annually?).
What law applies? This list

[more]

Search of Smartphones Incident to Arrest

Omar Ha-Redeye — Sun, 17 Mar 2013 23:49:47 -0400

Although we are all excited to try out the new iPhone 5, Samsung Galaxy S III, or Blackberry 10, few of us think what it means for us to be carrying this enormous amount of information in our pockets.

The Canadian Charter grants the "right to be secure against unreasonable search or seizure," but one of the main exceptions to this is a search incident to an arrest, which allows a police officer to frisk a person who has been lawfully arrested. This exception exists largely because it has been considered a minimal intrusion on individual rights necessary to ensure . . . [more]

Our National Obsession

Mark Lewis — Fri, 15 Mar 2013 10:58:23 -0400

A criminal case was recently decided in which, I'm sure, many people reading this saw in the national media. It created a brief stir and the news cycle went on. What it left behind is a disturbing glimpse into our national obsession. In this case a minor hockey coach intentionally tripped a player on an opposing team in the handshake line at the end of the game and causing him injury. The purpose of this post is not to draw attention to the individuals involved in this incident or even the case itself, but to highlight the actions that would . . . [more]

Antrim Truck Centre Ltd. v. Ontario (Transportation) 2013 SCC 13

David Cheifetz — Thu, 14 Mar 2013 00:22:47 -0400

Some of you might be interested in recent comments of Professor Jason Neyers (of the University of Western Ontario, Faculty of Law), which I repeat with permission, on the Supreme Court of Canada's recent decision in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 (CanLII).

Dear Colleagues:

Although from a very high level of generality, the Antrim case really changes nothing in relation to the way Canadian courts decide nuisance cases (a two-step test of substantialness and reasonableness) on many points of detail the case is very troubling. What are some of these troubling bits?

1. The court never explains
. . . [more]

Google Glass – the Creepy Intrusive Privacy Perspective

David Canton — Wed, 13 Mar 2013 14:24:07 -0400

Google Glass is a cool concept. The thought of having a real-time augmented reality display brings interesting possibilities. In addition to possible courtroom use, take a look at 10 Compelling Ways People Plan To Use Google Glass, and 11 Kickass Ways Normal People Will Use Google Glass. Possibilities include surgery, education, gaming, and navigation.

One of the hurdles to adoption is the practical aspect of whether people will want to wear them. Especially those who have gone to great length and expense to not to have to wear glasses in the first place. And when having a . . . [more]

The Case of the Canon That Spiked a Book: Is Sherlock Holmes Still Under Copyright in the US?

Simon Fodden — Wed, 13 Mar 2013 13:18:23 -0400

Leslie Klinger has written a good many books about Sherlock Holmes. Currently he and author Laurie R. King are editing a book of stories by genre writers that are inspired by the Holmes canon. Their publisher, Pegasus Books, was contacted by the Conan Doyle Estate which, to quote Klinger,

implied that if the Estate wasn’t paid a license fee, they’d convince the major distributors not to sell the book. Our publisher was, understandably, concerned, and told us that the book couldn’t come out unless this was resolved.

Klinger began an action a month ago, asking the District Court in . . . [more]

Manitoba Métis Federation Inc. v. Canada (AG): The Crown's Chutzpah

Michael Posluns — Tue, 12 Mar 2013 07:15:31 -0400

A wag once said that the Yiddish word Chutzpah has been defined as the quality of a person who is accused of killing his parents and then throws himself on the mercy of the Court because he is an orphan. The Crown’s chutzpah runs throughout the entire line of post-1982 Aboriginal rights cases from Guerin to the most recent decision, Manitoba Métis Federation Inc. v. Canada (AG) 2013 SCC 14 (MMF), decided Friday, March 8, 2013. (This is the most succinct and least scholarly statement of the thesis that I have been in the throes of finishing for the last while.) In every ground breaking decision the Crown makes arguments that the Court points out are singularly lacking in merit and that display a serious disregard for the Crown’s, its obligation to avoid even the appearance of “sharp dealing”, to resolve ambiguities in treaties and in statutes “in favour of the Indians”, its fiduciary duty to Aboriginal communities, its duty to consult and accommodate and the honour of the Crown. . . . [more]

Does Quebec's French Language Policy Really Need Revitalizing?

Yosie Saint-Cyr — Thu, 07 Mar 2013 09:00:23 -0500

In the wake of the Quebec government tabling Bill 14, An Act to amend the Charter of the French language, the [Quebec] Charter of Rights and Freedoms and other legislative provisions to improve yet again the eminence of the French language in Quebec (which I discussed on Slaw last December here), the Conseil supérieur de la langue française (CSLF) is of the opinion that the government needs to take a hard-line approach if it wants French to really be the common language of all Quebecers. . . . [more]

Violence Against Indigenous Women: Need for Action Long Overdue

Alex Neve — Wed, 06 Mar 2013 07:00:22 -0500

I have always remembered the words of a First Nations woman, a tireless advocate for action to keep Indigenous women in Canada safe – long before the issue was attracting any media or political attention. We were sharing the podium for a press conference on Parliament Hill back in 2004. She realized how crucial it was to make people understand how serious and widespread violence against Indigenous women and girls was, right across the country. She put it simply, noting that “every aboriginal community, family and individual in Canada has lost a sister, mother, daughter, niece, cousin, neighbour or friend . . . [more]

The Next Wave of Workplace Reasonable Accommodation Cases…?

Gabriel Granatstein — Tue, 05 Mar 2013 17:36:54 -0500

It is settled law across Canada that employers are required to accommodate disabled employees to the point of undue hardship. While the legal meaning and extent of the terms "handicapped" and "undue hardship" are constantly being tested before tribunals at all levels, the concept is uncontroversial – an employer must adapt the workplace to accommodate a disabled employee to a certain point. Accordingly, employers may need to adapt workplaces by providing ramps or elevator access, special bathrooms, handrails, etc. Depending on a number of factors, it can be the employer's responsibility to bear any costs associated with those adaptations. It's . . . [more]

Report on Improving First Nations’ Representation on Ontario Juries

Omar Ha-Redeye — Sun, 03 Mar 2013 14:35:16 -0500

The past week former Supreme Court Justice the Hon. Frank Iacobucci released the Issues Report on Improving First Nations’ Representation on Ontario Juries. Iacobucci was appointed by Hon. Chris Bentley, Attorney General of Ontario, on Aug. 11, 2011 to review the jury process for First Nations living on reserves. The report concludes that Ontario's justice system is in a state of crisis, as First Nations are overrepresented in the prison population and significantly underrepresented on jury lists and those who work in the administration of justice,

If we continue the status quo we will aggravate what is already a serious
. . . [more]

Proposed Human Diversity Policies Stir Up Debate

Karen Dyck — Wed, 27 Feb 2013 08:05:41 -0500

Proposed amendments to The Public Schools Act in Manitoba are causing concern among many supporters of Manitoba's funded independent schools. Bill 18, The Public Schools Amendment Act (Safe and Inclusive Schools) formally defines bullying activities and requires school staff or supervisors to report incidents of bullying, including cyber-bullying to the school principal. The amendments also mandate school boards to put in place "respect for human diversity" policies.

The Bill was introduced by the majority government as part of its Anti-Bullying Action Plan and received First Reading on December 4, 2012. Modeled after Ontario's 2012 amendments to the Education Act, . . . [more]

Greed IS Good

David Cheifetz — Tue, 26 Feb 2013 22:11:00 -0500

… sometimes.

For some lawyers, anyway.

EG's clients lost completely. They didn't have much on their side apart from EG. Assuming (for argument's sake) the cab rank rule applies in Canada, a strict application says that EG was obliged to take the gamblers' case provided they met his fee.

I wonder, though, what else it means that it wasn't BG on the appeal.

"Frank"ly speaking, that is.

Moreira v. Ontario Lottery and Gaming Corporation, 2013 ONCA 121. You can read about it in the papers. The short summary is: Gamblers lose; house wins. Again. Go figure.

. . . [more]

Employment, Human Rights and (US) National Security

John Gregory — Tue, 26 Feb 2013 17:16:43 -0500

The US government is sensitive about matters of national security. One of the expressions of this sensitivity is its unwillingness to have certain kinds of work performed by citizens of countries that the US considers likely to be hostile – e.g . Iran, Cuba, Yemen. etc. Thus it is forbidden by US law for companies doing certain kinds of work for some agencies of the US government to hire nationals of those countries for that work.

Canadian law prohibits discrimination in employment on the ground of national origin, among other things. This is governed by human rights codes and employment . . . [more]

Clash Between Company and Family Law to Be Resolved – Petrodel Resources Ltd

John O'Sullivan — Mon, 25 Feb 2013 08:55:19 -0500

One of the great strengths of the common law system is its ability to grow through the dialectical process of judicial determination of conflicting positions. This feature is absent in dispute resolution mechanisms such as mediation.

A perfect illustration of the growth of the common law will be the determination by the UK Supreme Court of an appeal to be heard on 5 and 6 March 2013. The case involves a decision in which the English Court of Appeal sharply rejected the practice – adopted and developed in the Family Division over 25 years – of treating the assets of . . . [more]

Disrupting Stare Decisis – a.k.a. I Can Has Internets?

Colin Lachance — Fri, 22 Feb 2013 07:41:59 -0500

It’s safe to say that most Slaw readers are familiar with the concept of Stare Decisis in the common law tradition. From the Latin, “to stand by things decided”, the concept of a legal system in which lower courts are bound by the determination of higher courts concerning questions of law leaves little room for the lower courts of a single jurisdiction to influence appreciation of the law across the country.

As Master in Chambers Funduk famously observed in a 1989 ruling:

[51] Any legal system which has a judicial appeals process inherently creates a pecking order . . . [more]

Adjudicator Decides Legal Aid Society Subject to PIPA

Yosie Saint-Cyr — Thu, 21 Feb 2013 14:32:57 -0500

On February 11, 2013, an adjudicator of the Alberta Office of the Information and Privacy Commissioner decided that Alberta's Legal Aid Society is subject to the Personal Information Protection Act (PIPA), with consequences for all non-profit organizations that conduct activities with a commercial character. . . . [more]

The Rules Governing the Pope's Resignation

Michel-Adrien Sheppard — Thu, 21 Feb 2013 12:07:29 -0500

In Custodia Legis, the blog of the Law Library of Congress in Washington, has an interesting post on Canonical Rules on the Resignation of a Pontiff, and the Election of a New Pontiff (part 1 of 2 posted yesterday).

It is written by by Dante Figueroa, Senior Legal Information Analyst at the Law Library of Congress:

Since the last papal resignation was nearly 600 years ago, this month’s announcement took the world by surprise and resulted in many questions. I will address several of the most important juridical questions arising from Pope Benedict’s resignation, for which there are responses
. . . [more]

The Importance of "the"

Simon Fodden — Wed, 20 Feb 2013 10:40:49 -0500

Fans of interpretation — especially constitutional construction — will enjoy the extended analysis in "The Recess Appointments Clause (Part 1)" by Neal Goldfarb on his blog LAWnLinguistics (Not about the linguistics of lawns). Much in the D.C. Circuit appellate decision in Noel Canning v. National Labor Relations Board hinges on the "the" found in the Recess Appointments clause in Article Two of the US Constitution:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
. . . [more]

Required Reading: Hogarth v Rocky Mountain Slate Inc., 2013 ABCA 57

David Cheifetz — Tue, 19 Feb 2013 21:49:30 -0500

Hogarth v Rocky Mountain Slate Inc., 2013 ABCA 57, from the reasons of Slatter JA concurring in the result:

[16] The issue on this appeal is whether the promoters of a limited partnership are personally liable to investors for misrepresentations made about the investment. …

…

[73] The law respecting the liability of directors and officers for torts committed while conducting corporate business is not entirely consistent. Some cases approach the problem from the perspective of the “duty of care”,whereas others approach it from the perspective of “piercing the corporate veil”. Some exceptions to general liability for tort have been recognized, and
. . . [more]

U.S. Minimum Wage Debate

Gabriel Granatstein — Tue, 19 Feb 2013 13:38:32 -0500

Last year, I posted about the minimum wage in Canada. That same debate has also flared in the United States. During the recent state of the union address, U.S. President Barack Obama argued for an increase in the minimum wage in the United States. The Federal minimum wage in the US is $7.25, which applies to jobs covered by the Fair Labor Standards Act (generally applying to employees engaged in interstate commerce). For US employees governed by state law, the minimum wage can go from $5.25 (Wyoming) to $9.19 (Washington State). In Canada, the vast majority of employees are governed by provincial legislation . . . [more]

Incorporated by Reference in Regulations

Shaunna Mireau — Tue, 19 Feb 2013 11:55:23 -0500

I appreciate the efforts of Canadian Senators to fix problems with legislation – specifically those which make legislative research more interesting.

One example of the Seante fixing legislation, is the Statutes Repeal Act, S.C. 2008, c.20 which in the words of Simon Fodden "sweeps up behind our legislators, killing off statutes that were passed and assented to nine years or more ago but that were never proclaimed in force". I love the Statutes Repeal Act. It helps to make my job interesting.

In October of 2012, the Senate again committed to working on fixing legislation – this time . . . [more]

Oregon Bill to Control Drones

Simon Fodden — Tue, 19 Feb 2013 10:43:13 -0500

One of the many great things about the United States, from a lawmaker's point of view at least, is that they comprise fifty-one legislatures attempting to tackle the problems that face us (in the West, at least) with a net of words. It's like a greenhouse or nursery for the legal species. And we up here in slower Canada get to watch to see which cultivars survive politics, real life — and occasionally ridicule.

For example, a bill currently in the hothouses of the Oregon legislature — Oregon Senate Bill 71, A Bill for an Act Relating to Drones; . . . [more]

ONCA Overturns the Blue Mountain Case

Omar Ha-Redeye — Sun, 17 Feb 2013 13:22:10 -0500

The Blue Mountain case, which was previously summarized by Yosie when the Divisional Court decision was released, was overturned earlier this month by the Ontario Court of Appeal.

Justice Blair held that the OLRB and Divisional Court interpretation of s. 51(1) of the Occupational Health and Safety Act, which requires reporting of workplace injuries and deaths, would render virtually every place in Ontario a "workplace," simply because a worker may at some time be present.

The intervenors, Conservation Ontario and Tourism Industry Association of Ontario, had argued that an end-risks analysis without a reasonable connection between a risk to . . . [more]

Art, Courts and Social Media

Colin Lachance — Tue, 12 Feb 2013 07:00:51 -0500

In 2012, the Pew Internet & American Life Project conducted a survey of over 1,200 arts organizations to “understand how arts organizations are using the internet, social media, and other digital technologies to connect with the public.” The study found that enhanced public awareness, sharing and debate brought about by use of social media and other digital technologies are clear drivers of engagement with arts organizations and with art itself. Would a comparable survey of Canadian court use of digital technologies and social media disclose a similar effect on public engagement with the law and the Canadian justice system?

Yes. . . . [more]

Anti-Wind Litigation: Is There an End in Sight?

Dianne Saxe — Thu, 07 Feb 2013 12:00:22 -0500

After nearly two years of vigorous anti-wind litigation in Ontario, anti-wind activists have failed to satisfy any court or tribunal that wind energy development in accordance with government standards will cause serious harm. Many wind projects have been approved, and wind-based electrical generation is growing fast. However, the same concerns keep being raised, and we know of no Ontario wind farm that has obtained its approval without the cost and delay of litigation.

Renewable energy approvals in Ontario

Ontario was the first Canadian jurisdiction to set up a special approvals regime for renewable energy, through the Green Energy Act. To . . . [more]

Predictions: Crime & Punishment in 2013

Edward Prutschi — Thu, 31 Jan 2013 07:00:22 -0500

Another year is in the history books as the creaking structure of the Canadian justice system stumbled along under the weight of crushing new legislation and in the face of chronic underfunding. What does 2013 portend? Read on for some predictions of trends to watch for in the New Year.

1. Prison Overcrowding

About a decade ago prison overcrowding was a major news headline in jurisdictions across the country as an under-funded system struggled to deal with a growing population and a steady increase in the number of incarcerated persons. A multi-faceted approach that included an increase in non-custodial sentences . . . [more]

Chicken Little, Pandora[1] Et A. v. the Federal Court

Michael Posluns — Thu, 24 Jan 2013 07:00:06 -0500

There is a virus going around which incites selected journalists and commentators to lambaste the Courts for certain decisions, particularly constitutional decisions, and more particularly decisions about Aboriginal peoples. (For the moment I am refraining from saying “Aboriginal or treaty rights” for reasons that will become evident a short distance below.) It is always an advantage enjoyed by those who want to indulge in such lambasting not to have read the decision, or to have followed the proceedings, either in that Court or any other Court or any public inquiry or parliamentary committee that may be studying related issues. Indeed, . . . [more]

McJustice – Who's Lovin' It?

Jamie Maclaren — Thu, 17 Jan 2013 07:00:02 -0500

This column is an unintended and rather abstract follow-up to my last column entitled “Self-Represented Litigants Are Not Things” on the need for reformers to better consider the unique “real life” perspectives of lay litigants when redesigning justice system rules and processes. (It also marks the first time that I have written a column using the first person singular— a monumental occasion for me in overcoming anal retentive tendencies and long-misplaced notions of “proper” writing style.)

My involvement in the upcoming Vilardell v. Dunham appeal and extended reflection on the difficult task of facilitating fair and efficient resolutions to messy . . . [more]

Looking Back to the Future

Sam Muller — Wed, 09 Jan 2013 12:00:10 -0500

This has been quite a rule of law year. One peak was in August 2012, when the United Nations General Assembly devoted its first-ever opening debate to the rule of law and adopted a Declaration on the Rule of Law at the National and International Levels. As Juan Botero, director of the World Justice Project poetically described it to me: “193 government leaders walked up to the podium and said rule of law is good. And that is good.”

It is. But it could have been better. In March, UN Secretary-General Ban Ki-moon issued a report called Delivering Justice . . . [more]

Pioneer of the Justiciable Problems Approach to Access to Justice in Canada Moving to the Canadian Forum on Civil Justice

Canadian Forum on Civil Justice — Mon, 17 Dec 2012 07:00:10 -0500

Ab Currie, currently Chief Research Advisor and Principal Researcher: Legal Aid and Access to Justice, in the Federal Department of Justice, is leaving the Government of Canada to join the Canadian Forum on Civil Justice (CFCJ) as the Senior Research Fellow. CFCJ is Canada’s leading non-governmental independent think tank devoted to research and policy development on access to civil justice and civil justice reform. Dr. Currie will also hold a visiting appointment at the Osgoode Hall Law School, York University, where CFCJ is currently housed. He will be fully engaged at the CFCJ by April 1, 2013.

Ab Currie, originally trained . . . [more]

Lethal Buildings: Litigation to Protect Migratory Birds

Dianne Saxe — Mon, 10 Dec 2012 12:00:58 -0500

Written with Meredith James

It’s a horror story – the beautiful glass-walled building you may work, shop or live in are killing millions of migratory birds. Many SLAW readers are likely familiar with the distressing thud of a bird breaking its neck or wing on those lovely glass panes, often at night when building lights are left on.

At least 1 million migratory birds die in Toronto alone each year due to collisions with buildings. The birds become confused by reflections and lights in urban areas and fly into windows at full speed. Often killed or badly injured, they fall . . . [more]

Extorting Justice

Edward Prutschi — Wed, 05 Dec 2012 07:00:51 -0500

Let me start by saying I don’t condone shoplifting. Seen as a mere nuisance by some, the ‘five-finger-discount’ is a petty crime that exacts a heavy toll year after year on retailers – be they big box chain stores or mom and pop corner varieties. The cost is initially born by the store-owner but ultimately passed along to lawful consumers by way of increased prices to account for the overhead costs of security and the loss of inventory.

Many shoplifters are doubtless serial offenders with a pathological disrespect for the lawful property rights of others. However, in my experience having . . . [more]

A Canadian A2J Technology Deficit?

Colin Lachance — Tue, 27 Nov 2012 07:00:07 -0500

With all the excitement of a cosplay buff just ahead of Comic-Con, I anxiously awaited the Law via the Internet conference held in early October at Cornell University in picturesque Ithaca, NY. The 3 day event included the annual get together of the Free Access to Law Movement, CanLII’s peer group from around the world, as well as 30+ papers, presentations and panel discussions from a highly varied cross-section of legal information innovators. Sporting attire appropriate to the occasion (I went with a look that screamed I’d-prefer-to-dress-like-I-have-tenure-but-I-just-came-from-a-grant-request-meeting) I took it all in with a mix of delight and dissatisfaction.

On . . . [more]

Self-Represented Litigants Are Not Things

Jamie Maclaren — Wed, 07 Nov 2012 12:00:57 -0500

There was a minor kerfuffle a few months ago over a new course offering at UBC Law. LAW 481C.002 – Access to Justice and the Future of the Legal Profession drew its three listed faculty members from the Vancouver office of an old-guard national law firm with ample apparent concern for the future of the legal profession, but little discernible track record of proactivity, innovation or anxiety around the access to justice issue. Most notably, the course faculty included a former BC Attorney General who had orchestrated a 40 percent cut in legal aid funding a decade prior, and who . . . [more]

Notes for a Pre-History of the Canadian Charter of Rights and Freedoms

Michael Posluns — Tue, 16 Oct 2012 07:00:19 -0400

Last week, I had the pleasure of spending a couple of hours digging through old Debates of the Senate so that I could pinpoint references I had made in my current thesis to material I read 30 or 40 years ago. One of the points for which my browsing these old debates brought to mind was that the Canadian Charter of Rights and Freedoms has what I will call a “pre-history” that is very little known.

(I generally dislike the term “pre-history” because I’ve mainly encountered it in the context of Indigenous experience before the coming of the white man. . . . [more]

Time to Give Spanking the Boot?

Edward Prutschi — Wed, 10 Oct 2012 07:00:46 -0400

Everyone in civil society instinctively knows you can’t hit your spouse. You can’t punch your waitress. You can’t kick your cab driver. We know these things without having to read section 265 of the Criminal Code of Canada that governs assaults. And yet, if you never dusted off the old Criminal Code and turned to section 43 you might not assume that it’s OK for a parent, schoolteacher, or anyone “standing in the place of a parent” to use “force by way of correction” that is “reasonable under the circumstances.”

The so-called “spanking law” has been challenged and upheld as . . . [more]

Carl – a New Name in the Promotion of Access to Justice

Colin Lachance — Thu, 04 Oct 2012 07:00:14 -0400

Call me Carl.

For a week in August, I played the role of law student intern to the Legal Information Institute at Cornell University in Ithaca, NY. My kids were thrilled because it meant they could call me Carl – just like the student intern to Major Monagram on the Disney XD cartoon Phineas and Ferb. While I was not blessed with a theme song like my namesake, I did get a great experience and possibly an early peek on New York state’s latest advance in the promotion of access to justice.

It was only weeks after my experience . . . [more]

Who Should Meet the Legal Needs of Ordinary Canadians?

Canadian Forum on Civil Justice — Tue, 02 Oct 2012 07:00:24 -0400

Last week, the National Action Committee on Access to Justice in Civil and Family Matters, chaired by Justice Tom Cromwell, released for public consultation two of four reports from its working groups. The work of the Action Committee is guided by a vision of Canadian society where:

Justice services are accessible, responsive and citizen focused;
Services are integrated across justice, health, social and education sector;
The justice system supports the health, economic and social well-being of all participants;
The public is active and engaged with, understands and has confidence in the justice system and has the knowledge and attitudes needed

[more]

Hazardous Waste and Biased Samples

Dianne Saxe — Thu, 20 Sep 2012 07:00:36 -0400

One of our current cases deals with a question that is critical to everyone in the waste business: can biased sampling make a waste “hazardous”?

Approvals typically require waste management companies to manage wastes based on “representative samples”. Thirty years of guidance documents, and several cases, have also held that waste must be characterized as hazardous, or not, based on “representative samples”. The US Environmental Protection Agency noted, since 1986, that inaccurate and imprecise sampling can cause a solid waste to be inappropriately judged hazardous.

The Ministry of the Environment, like the US EPA, defines “representative sample” as . . . [more]

The Perennial Access to Justice Policy Challenge: Are We Finally at a Crossroads?

Canadian Forum on Civil Justice — Mon, 20 Aug 2012 07:00:47 -0400

At the Canadian Bar Association 2012 annual meeting in Vancouver, Chief Justice Beverley McLachlin again made the case that access to justice is probably the most urgent policy challenge facing Canada’s justice system. The Chief Justice argued,

Being able to access justice is fundamental to the rule of law. If people decide they can’t get justice, they will have less respect for the law. They will tend not to support the rule of law. They won’t see the rule of law, which is so fundamental to our democratic society, as central and important.”

This message is one that she has . . . [more]

Proof and Causation: When Courts and Scientists Disagree

Dianne Saxe — Thu, 16 Aug 2012 12:00:22 -0400

[This column was written with the asstance of Meredith James.]

One of the challenges in environmental work is the inconsistent and erratic relationship between law and science. To be effective, environmental policy needs to be based on good science, which is why current government cuts to key environmental research are so harmful, in both the short and the long run. But even when good science exists, the law struggles to properly incorporate it, and sometimes science can’t (yet?) answer the questions the courts are interested in. What should happen then?

Criminal cases

The courts sometimes seem to have a poor grasp . . . [more]

Home on the RangeFindr

Edward Prutschi — Thu, 09 Aug 2012 07:00:34 -0400

Legal research is often the bane of a criminal lawyers’ existence. Whenever I glance at the mountain of paperwork that forms the spine of a civil case I give a reassuring nod of my head secure in my early career decision to abandon corporate commercial litigation for the more fly-by-the-seat-of-your-pants lifestyle of a criminal barrister.

And yet, arriving in court without a meticulously researched legal position is less fly-by-the-seat-of-your-pants and more akin to showing up before the bench without any trousers at all.

Sentencing law in particular raises a unique challenge for the busy criminal practitioner. While textbooks can provide . . . [more]

Immovable Object, Meet Irresistible Force

Colin Lachance — Mon, 23 Jul 2012 07:00:47 -0400

For over 30 years, every Canadian law student has read these words:

Mr. Pettkus and Miss Becker came to Canada from central Europe, separately, as immigrants, in 1954. He had $17 upon arrival. They met in Montreal in 1955. Shortly thereafter, Mr. Pettkus moved in with Miss Becker, on her invitation. She was thirty years old and he was twenty-five. He was earning $75 per week; she was earning $25 to $28 per week, later increased to $67 per week.

To protect their privacy interests, is it too late to re-style the case P (L) v. B (R)?

I . . . [more]

Sentries of Injustice: Fees and Costs

Jamie Maclaren — Fri, 13 Jul 2012 07:00:12 -0400

Few people welcome the experience of arguing in court over intensely personal issues. Fewer people would pay a single nickel for the experience. With the very odd exception, ordinary people appear in court because they have no real choice in the matter. A mother fights for the custody of her infant son out of concern for his safety. A factory worker seeks wrongful dismissal damages to pay his mounting bills. A disabled man resists eviction from his subsidized apartment to avoid homelessness. And yet in spite of these common scenarios and the human need to correct actual or perceived injustice, . . . [more]

Pour Des Raisons Technologiques… Et Juridiques! / a Website Overhaul… for All the Right Reasons

Hubert David — Thu, 28 Jun 2012 07:00:12 -0400

[ français / English ]

Pour toutes sortes de raisons, il est temps d’une grande refonte de la présence Web d’Éducaloi. En effet, nous travaillons depuis plusieurs mois à refondre le site Web d’Éducaloi tout en travaillant également à refaire l’image de marque de notre organisme qui existe depuis l’an 2000. La mise à jour de notre image de marque vise à s’assurer que le grand public et le milieu juridique comprennent mieux qui nous sommes et ce que nous faisons. Aussi, elle vise à augmenter la notoriété d’Éducaloi dans la population québécoise. Ces deux grands chantiers se font en . . . [more]

Fisheries Act: Weaker or Tougher?

Dianne Saxe — Mon, 18 Jun 2012 07:00:33 -0400

(and by Meredith James)

With Bill C-38, the omnibus Budget Implementation Act, Bill C-38, the Conservative government will bring sweeping changes to Canada’s environmental landscape. To make approvals easier for oil sands projects and related pipelines, the Fisheries Act will be particularly affected. Major changes will dramatically narrow what a reduced corps of fisheries officers will attempt to protect. However, while there will likely be even fewer prosecutions, penalties for those that convicted will soar.

According to the federal government, the purpose of these changes in is “to focus …on the protection of fish that support commercial, recreational or . . . [more]

The Justice System Is Not About Other People

Colin Lachance — Mon, 11 Jun 2012 07:00:54 -0400

I met with my client after supper on a Friday in the vestibule of a church. It was near my place and, it being a pleasant spring evening, I walked there, pushing my then-infant daughter in her stroller. He was a regular at this particular church, and Fridays were reserved for family social events. His young children were also at the church – a rare and special occasion, authorized in this instance by the family court. The child welfare officer was due to return shortly so we chatted only briefly before he signed over his $2700 tax return and rejoined . . . [more]

Aging Gracefully

Edward Prutschi — Wed, 30 May 2012 07:00:55 -0400

Recently while sitting in a packed courtroom in Newmarket agonizingly waiting for my brief ‘speak-to’ matter to be called, I began to question one of our statutory traditions and the grace towards our elders that it mandates.

Don’t get me wrong. Since I was a child it has been ingrained upon me to honour and respect my seniors. I’ve crossed my share of streets hand-in-hand with little old ladies and vacated countless seats on sardine-stuffed subway cars but something about watching counsel be called in order of their year of call smacks of anachronism and inefficiency.

Although not applied in . . . [more]

What Part of "No" Don't You Understand, O Gracious Crown?

Michael Posluns — Tue, 22 May 2012 07:00:48 -0400

In the thesis I’m in the midst of writing, about burdens of proof in litigation between First Nations and the Crown pursuant to s.35(1) of the Constitution Act, 1982, I argue that the Crown invariably takes a position that denies any meaning to the guarantees of Aboriginal and treaty rights in that section, contrary to numerous Supreme Court decisions.

I’ve just come across a statutory example of the same sort of conduct in the Proceedings of the Senate Committee on Aboriginal Peoples, from May 31, 2010, almost two years ago.

In 2088, Parliament amended the Canadian Human Rights Act ( . . . [more]

Pro Bono Meets “Low Bono” at Big BC Law Firms

Jamie Maclaren — Mon, 30 Apr 2012 07:00:18 -0400

In the black and white world of organized pro bono legal services, something is either pro bono or it’s not. Legal services are provided for zero compensation, or they’re not considered pro bono. This absolutist perspective is crude and fully disconnected from the simple translation of pro bono from Latin as “for the good”, but necessary to give relevance and integrity to pro bono as a functional concept. If the concept is stretched to include contingency fees or unpaid bills or reduced rates, then it ceases to have reliable meaning for lawyers and their clients. So for pro bono . . . [more]

Twitter, Facebook and the Rule of Law

Colin Lachance — Mon, 16 Apr 2012 07:00:30 -0400

To have a country governed by the rule of law and not the rule of man requires that the law be known. As few communication networks are as efficient for disseminating information as social media networks, it should not be that surprising that Twitter, Facebook and other networks can very effectively serve that objective.

Twitter and Facebook will not and should not supplant the role of government and the courts to make the law known, but even the law makers themselves can and are making increasing use of social media to augment their efforts.

#TellVicEverything

Before adopting too pious a . . . [more]

Too Easy Rests the Crown

Michael Posluns — Thu, 05 Apr 2012 07:00:19 -0400

I have been thinking lately that there is a certain similarity between how I observed the Crown operating in the lower courts in the 1970s and how I have observed the Crown working at the highest levels more recently. Let me explain and offer some brief biographical account.

I first started to do a certain kind of paralegal work – what would later be called “Native Courtwork” – making a connection between a Native person accused of an offense and a lawyer willing to represent the accused (and often doing much of the factual research) at Akwesasne, the Mohawk community . . . [more]

One-Size-Fits-None

Edward Prutschi — Mon, 02 Apr 2012 12:00:50 -0400

A rural property owner faces gun charges after firing warning shots over the heads of a group of thieves making off with his ATV. A goofy misfit faces three years in jail after posing for a Facebook photo holding a loaded gun in his hand. A father gets arrested and strip-searched after his kindergarten daughter draws a blocky picture of him shooting “monsters and bad guys”.

These three men are all victims of one-size-fits-all justice.

Whether it’s a “zero tolerance” approach to gun crimes or domestic assault, mandatory minimum sentences being applied to virtually everything, or blanket policies that demand . . . [more]

Focusing on Justice System Reforms in the Drummond Commission Report

Canadian Forum on Civil Justice — Wed, 28 Mar 2012 07:00:31 -0400

by Lesley Jacobs*

In all the extensive commentary on the release of the Drummond Commission Report last month, virtually no attention has been paid to the implications for Ontario’s justice system. The Justice system accounts for about 5% of total public sector spending by the Government of Ontario, making it the fourth biggest sector after health, education, and social services. From the perspective of trying to rein in public spending, neglect of the justice system is especially surprising because, as the Report notes, in the past year it has seen the biggest sector increase in spending, almost 11.5%.

The central . . . [more]

Why Charities Should Participate in Public Consultation

Dianne Saxe — Tue, 20 Mar 2012 07:00:47 -0400

With the launch of Conservative Senator Nicole Eaton’s inquiry into the “Involvement of Foreign Foundations in Canada’s Domestic Affairs”, increased scrutiny is being focused on the activities of Canada’s charitable environmental groups. In particular, is participating in public consultations, or encouraging others to do so, a political activity forbidden to charities?

The Conservatives have expressed concern about foreign foundations making donations to Canadian charities to influence Canadian law and policy, and whether this puts undue obstacles in the way of major Canadian energy projects. This was apparently triggered by frustration at the large number of registered interveners in the Enbridge . . . [more]

First Nations Leaders and Harper Ministers Meet: Prospects for a Policy of "No-Policy"

Michael Posluns — Fri, 09 Mar 2012 07:00:03 -0500

Tuesday January 24, 2012, First Nations chiefs from across Canada met with the Prime Minister and an array of his cabinet ministers. Was there an expectation of material results? The chief of Attawapiskat attended; her deputy chief, when interviewed by the C.B.C. asked rhetorically whether anything would be different "tomorrow" because of the meeting.

It may be better that the meeting happened than not having had the meeting. It lends credibility and legitimacy to the demands of First Nations leaders. But there are a series of fundamental obstacles that will prevent significant change until those obstacles are removed. This column . . . [more]

Rape and Sexual Assault Myths: Examining Their Prevalence in the Criminal Justice System and Greater Society

Lewis Parle — Fri, 02 Mar 2012 07:00:19 -0500

by Ashley Major

Ashley Major is a Canadian student completing an internship at Independent Academic Research Studies in London, England. Upon the completion of this internship, she will graduate with a Bachelor of Arts Degree in Human Justice from the University of Regina. She plans to attend law school in the future, specializing in human rights law. Her main focus is on addressing human rights violations against women, particularly sex trafficking.

In Canada, there have been discussions as to whether or not we live in a “rape culture”. Although difficult to define, this term refers to a society in which . . . [more]

Visiteurs Internationaux Sur Un Site D’information Juridique: Des Visiteurs Non Désirés?! | International Visitors to a Legal Information Website: Unwelcome Guests?

Hubert David — Mon, 20 Feb 2012 07:00:57 -0500

[ français / English ]

Comme vous le savez peut-être, Éducaloi est un site d’information juridique grand public qui explique le droit en vigueur dans la province du Québec au Canada. Cette phrase peut sembler anodine, mais chacun de ces mots compte. Dans cette chronique, je vous expose un problème lié à cette première affirmation, auquel nous avons récemment fait face.

La partie « site d’information juridique grand public », vous comprenez. Nous informons le public sur leurs droits et leurs obligations, et ce, dans un langage simple et accessible. Là où ça se corse, c’est dans la seconde partie de la . . . [more]

A Multidisciplinary Approach to Meeting Family Justice Needs

Canadian Forum on Civil Justice — Mon, 13 Feb 2012 07:00:14 -0500

In most provinces as well as nationally, rethinking access to justice for meeting the legal needs of Canadian families is a central policy agenda item. Law reform commissions as well as self-standing initiatives such as the National Action Committee on Access to Justice in Civil and Family Matters have made this sort of rethinking a priority for moving forward. One of the most innovative new approaches is a multidisciplinary approach to meeting family justice needs. This approach stresses both the diversity of the legal needs of Canadian families and the fluidity of those needs. Sometimes, among professionals, there is an . . . [more]

The Missing Link?

Colin Lachance — Tue, 07 Feb 2012 07:00:52 -0500

For many members of the general public seeking to understand the law, Wikipedia is the first and perhaps only stop. Others may go further and eventually come across equally accessible but considerably more reliable sources – online or otherwise. In any event, there is often a gulf between where the general public goes to understand the law and where the understanding is available.

Based on observations of a little experiment in contextual-linking, small efforts can go a long way toward bridging that gulf.

Contextual-linking is different from promotional or advisory linking such as is found on the "links" page of . . . [more]

Environmental Assessment, Public Participation and Sustainability: Foreigners Keep Out?

Dianne Saxe — Thu, 02 Feb 2012 07:00:19 -0500

[And by Meredith James]

According to Natural Resources Minister Joe Oliver,

Anyone looking at the record of approvals for certain major projects across Canada cannot help but come to the conclusion that many of these projects have been delayed too long. In many cases, these projects would create thousands upon thousands of jobs for Canadians…Unfortunately, there are environmental and other radical groups that would seek to block this … Their goal is to stop any major project no matter what the cost to Canadian families in lost jobs and economic growth. No forestry. No mining. No oil. No gas. No
. . . [more]

Crime & Punishment in 2012

Edward Prutschi — Tue, 31 Jan 2012 07:00:23 -0500

It’s that time of year again. Judges and lawyers have returned to court sporting freshly bronzed bodies, and Ontario’s RIDE program has tucked away the bulk of its breathalysers until the summer cottage season. A perfect time to transition from reflections of the past to contemplation of the future. And so I bring you my second annual Crime & Punishment Predictions. (If you’re wondering how plausible a prognosticator this Prutschi fellow is, you may peruse my previous perennial predictions here: http://www.slaw.ca/2011/02/07/crime-punishment-in-2011/).

5. A Return to the 11(b) Crisis

For nearly a decade appellate courts have been discreetly warning their . . . [more]

Specific Claims: The Alice in Wonderland Dimension of the Canadian Judicial System, Part 2

Michael Posluns — Wed, 25 Jan 2012 07:00:53 -0500

In the Specific Claims Branch process, of course, the Crown is obliged to disclose nothing whereas the claimant has to disclose virtually its whole case.

Mr. Justice Harry Slade, of the Supreme Court of British Columbia and Chair of the Specific Claims Tribunal Canada in testimony before the Commons Committee on Aboriginal Affairs 13 March 15, 2011 at 051:3-14

Readers with particularly good memories may recall that in a late September issue of SLAW I introduced the topic that I call “the Alice in Wonderland Dimension …” by outlining some of the challenges of pursuing claims of Aboriginal rights, and . . . [more]

A Pay or Play Proposition for Access to Justice

Jamie Maclaren — Tue, 17 Jan 2012 07:00:55 -0500

When people lament the deteriorating state of access to justice in Canada and the unwillingness of cash-strapped governments to address the issue in meaningful ways, their focus often shifts to the role of lawyers in ensuring the delivery of critical legal services. Many observers, including Canada’s Chief Justice and Governor-General, characterize the role as a professional responsibility tied to the collective privilege of an effective monopoly on legal work. Others point to the lack of any moral or practical imperative in the equation, and characterize the role as more of a professional expectation. Given that most but not all Canadian . . . [more]

Une Stratégie De Médias Sociaux Qui Se Bâtit Pas à Pas . . . | Éducaloi's Social Media Strategy: A Work in Progress

Hubert David — Thu, 05 Jan 2012 12:00:17 -0500

[ français / English ]

Bâtir une stratégie d'utilisation des médias sociaux n'est pas de tout repos si l'on n'a pas les moyens d'engager des experts pour nous aider. En partageant l'expérience d'Éducaloi, j'espère pouvoir être utile à d'autres personnes ou organismes qui sont en réflexion quant à l'utilisation des médias sociaux.

Il y a maintenant deux ans, Éducaloi a décidé de se lancer sur les médias sociaux. En une seule journée de juillet 2009, nous ouvrions une page Facebook, un compte Twitter et une chaîne YouTube.

N'ayant pas les ressources disponibles ni la possibilité de répondre aux questions juridiques . . . [more]