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Lapointe v Cassels Brock: SCC clarifies the fourth Van Breda presumptive connecting factor

The Supreme Court of Canada’s (“SCC”) decision in Club Resorts Ltd v Van Breda, 2012 SCC 17 [Van Breda] brought greater judicial guidance to the question of when a Canadian court may assume jurisdiction over a claim. The SCC articulated four non-exhaustive presumptive connecting factors (PCFs) that a party may rely on to establish a real and substantial connection between the dispute and the jurisdiction in which they seek to advance the claim. The SCC’s recent decision in Lapointe Rosenstein Marchand Melançon LLP v Cassels Brock & Blackwell LLP, 2016 SCC 30 [Lapointe] clarified the test governing the fourth Van...

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Overthrowing Precedent: R v Jordan’s Impact on the Crown and the Right to a Trial Within a Reasonable Time

On July 8, 2016, the Supreme Court of Canada released R v Jordan, 2016 SCC 27 [Jordan], a decision that fundamentally changed the framework that determines whether an accused has been tried within a reasonable time under s 11(b) of the Charter. While the impact of explicitly overthrowing a well-established framework with years of precedent remains to be seen, it is clear that this decision has already begun to have a radical impact on the Crown.

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Matsqui First Nation v Canada (AG): The Dangers of Mandatory Mediation

Mediation is an invaluable tool which, when used correctly, can help parties avoid the procedural obstacles and inefficiencies of the legal system through a third party mediator. However, when used incorrectly, mediation itself can become an unnecessary obstacle. In Matsqui First Nation v Canada (AG), 2015 BCSC 1409 [Matsqui], the Department of Fisheries and Oceans (DFO) infringed the Matsqui “domestic salmon fishing” right under s. 35(1) of the Constitution Act, 1982 by failing to issue certain fishing licenses to the Matsqui. The Crown applied for exemption from mediation because the unique circumstances of the case made it a “test case”...

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Let’s Talk About Lacasse, Part 2: The Implications of Lacasse for the Sentencing Process

This is the second part of a two-part series on the Supreme Court’s decision in R v Lacasse. Part 1 discusses how the majority decision in Lacasse raises the standard for appellate review on sentencing decisions. Part 2 highlights two problematic aspects of Lacasse: the majority’s unconvincing reasoning in justifying a high standard of review and the implications of the majority’s endorsement of using local crime rates as a factor in the sentencing process.

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Let’s Talk About Lacasse, Part 1: Raising the Standard for Appellate Review of Sentencing Decisions

This is the first part of a two-part series on the Supreme Court’s decision in R v Lacasse. Part 1 discusses how the majority decision in Lacasse raises the standard for appellate review on sentencing decisions. Part 2 highlights two problematic aspects of Lacasse: the majority’s unconvincing reasoning in justifying a high standard of review and the implications of the majority’s endorsement of using local crime rates as a factor in the sentencing process.

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Wilson v Atomic Energy: More Than Unjust Dismissals

Much has already been written in regards to the recent decision of the Supreme Court of Canada (“SCC”) in Wilson v Atomic Energy of Canada Ltd, 2016 SCC 29 [Wilson]. It may seem surprising that it took thirty years to settle on Parliament’s intent in introducing the 1978 amendment to the Canada Labour Code, RSC 1985, c L-2 [Code] which aimed at protecting non-unionized workers from unjust dismissal. However, it is likely that very few employees who were dismissed without cause had the time, resources, and determination to carry their case forward to the Supreme Court. In Wilson, the Court...

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Prosecuting Crime at Home Secures Respect for Human Rights

The Government of Canada is acutely aware of the cost of litigation. Those costs, along with the policy and legal implications of litigation, are now the subject matter of a new Cabinet Committee on Litigation Management, chaired by Minister Dominic LeBlanc. This committee will advise federal Justice Minister Jody Wilson-Raybould, who recently suggested in a speech to the Canadian Bar Association that the Government of Canada would be reconsidering its “litigation position” in several cases so as to ensure that its overall legal strategy comports with Canada’s Charter of Rights and Freedoms. We support this goal, with the Government’s predecessor...

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The Supreme Court by Numbers 2: The McLachlin Years

This article was co-written by Richard Haigh and Victoria Peter. Part I is found here. Chief Justice Beverley McLachlin is now the longest serving chief justice in Canadian history, having held the title of Chief since January 2000 and the title of longest serving since September of 2013 (when she sailed past Sir William Ritchie’s 13 ¾ years). More astounding still is that after 16 years at the helm, she shows no signs of slowing down, and looks set, two years from now, to reach 75 years of age – unfortunately, due to the mandatory retirement age, she won’t reach...

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Employment Contract Can Be Unenforceable Even If It Complies with the ESA for the particular employee in the particular circumstances

In the recent decision in Garreton v Complete Innovations Inc., 2016 ONSC 1178 [Garreton], the Ontario Superior Court of Justice disagreed with the recent line of reasoning that the contract of employment, particularly the termination provision must conform to provincial employment standards legislation for the “particular employee, in the particular circumstances.” Instead, the Divisional Court upheld the long-standing law in Machtinger v HOJ Industries Ltd. [1992] 1 SCR 986 [Machtinger]. indicating that the employment contract must be considered at the time it is executed – potential violation in the future is sufficient to render the contract void and unenforceable despite the...

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Employer is Entitled to Dismiss a Probationary Employee Without Notice and Without Giving Reasons

A recent decision of the Divisional Court in Nagribianko v Select Wine Merchants Ltd., 2016 ONSC 490 [Nagribianko v Select], appears to be somewhat of a set back to the evolving policy of the common law to provide greater fairness to those who are working toward becoming permanent employees. The Divisional Court held that during a probationary period, the employer does not have to provide a reason to terminate the employee, nor does the employer have to give notice. All that is required is that the employer shows that it acted “fairly” in determining whether or not the probationary employee...