Author: Paul Burd

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Widening Class Action Certification: Cavanaugh v Grenville Christian College

On 24 February 2014, the Ontario Divisional Court allowed the certification of a class action on the basis that the need to ensure that the plaintiffs received access to justice outweighed the difficulties that their many individual issues could produce for a trial: Cavanaugh v Grenville Christian College, 2014 ONSC 290 [Cavanaugh]. This case is the latest in a body of jurisprudence that is bringing clarity to the proper balancing of considerations that courts should make under the preferability analysis for class action certification—the analysis for whether a case should proceed as a class action or as a series of...

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The Federal Court Orders Teksavvy to Release Customer Identities to Film Production Company

On 20 February 2014, the Federal Court of Canada (“FCC”), in Voltage Pictures LLC v John Doe, 2014 FC 161, ordered that Teksavvy Solutions Inc. (“Teksavvy”), an Internet Service Provider, must release the names and addresses of 2,000 customers who allegedly downloaded copyrighted films. Voltage Pictures LLC (“Voltage”), a film production company that produced the Oscar-winning film The Hurt Locker, sought this order on a motion to the FCC. Arguing that the customers who are alleged to have downloaded the films are prima facie liable under the Copyright Act, RSC, 1985, c C-42 for infringement, Voltage made this motion to the FCC with the...

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How sure do police have to be of a safety risk to search? The Supreme Court clarifies in R v MacDonald

In R v MacDonald, 2014 SCC 3 [MacDonald], the Supreme Court of Canada has clarified the constitutional bounds of police searches conducted to ensure the safety of police or the public (“safety searches”). In a narrow majority (4:3), LeBel J held that safety searches do not violate section 8 of the Charter as long as the police officer has reasonable grounds to believe that the search is necessary to eliminate an imminent threat to the safety of the public or the police and that the search is carried out reasonably. The minority’s concurring reasons, written by Moldaver J and Wagner...

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R v Singh: The Ontario Court of Appeal Holds that Choreographed Beatings Warrant a Stay of Conviction

The Ontario Court of Appeal has laid down a zero tolerance policy on police beating of suspects to obtain confessions. In R v Singh, 2013 ONCA 750 [Singh], the court held that a suspect’s conviction for robbery should be stayed because the police subjected him to repeated beatings during his interrogation. The trial judge dismissed the accused’s application for a stay of the conviction and instead opted to reduce the accused’s sentence by one year. The court disagreed that a reduced sentence properly remedied the policy brutality: “[T]he state misconduct here was so egregious that the mere fact of going forward in...

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BULLETIN: Ontario Premier Kathleen Wynne signals potential provision of “new tools” to Toronto City Council for dealing with Ford situation

In a news conference at 2:30pm today, Ontario Premier Kathleen Wynne said that she would consult with the other party leaders on how to assist Toronto City Council with the growing Ford crisis. She laid out a path for potential provincial intervention and signaled to council that the province would act if requested: “If council were to clearly indicate that they lack the ability to function as a result of this matter, the province would respond to a request from council to be provided new tools depending on what that request might be.” Council has no legal authority to remove...

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Removing a Sitting Mayor From Office: A Heavy Legal Lift

Rob Ford’s admission that he did in fact smoke crack cocaine on video set off a political crisis at Toronto City Hall. It did not, however, trigger a legal crisis. This is because the law is very clear on Toronto city council’s authority to remove a sitting mayor from office—it can’t. Section 6(1) of Ontario’s Municipal Elections Act (MEA) simply states that the term of office for a councilor, which includes the mayor, is four years. Neither the MEA nor the City of Toronto Act (CTA) vest council with the authority to cut this four-year term short. This legal hurdle...

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The Tax Court of Canada Green-lights CRA Use of Improperly Obtained Evidence in Piersanti v. The Queen

The Tax Court of Canada has held in Piersanti v. The Queen, 2013 TCC 226 [Piersanti] that information that may have been seized unlawfully during the course of a criminal investigation can still be used to reassess one’s income tax liability. This case concerns a Canada Revenue Agency (CRA) reassessment of Piersanti’s tax returns for several years. The reassessment was based on documents that were seized during a tax-evasion investigation of several companies to which the Piersanti is connected. The CRA may have breached Piersanti’s Charter rights because it used an investigative power that is not permitted in criminal investigations....

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Dr. Sherri Wise Makes the First Canadian Claim under the Justice for Victims of Terrorism Act

On 11 October 2013, the Ontario Court of Appeal granted intervener status to Dr. Sherri Wise in a case on whether an American court judgment against Iran should be recognized under our domestic Justice for Victims of Terrorism Act [JVTA]. Dr. Wise is a victim of terrorism. She was severely injured in a 1997 Hamas bombing in Israel. In March 2012, Parliament opened the door to suits against state sponsors of terrorism for damages sustained in a terrorist attack by passing the JVTA. Dr. Wise is the first Canadian to make a claim under the JVTA. She is making a...

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The Ontario Court of Appeal Upholds an Absolute Prohibition on Holding Cell Phones While Driving in R. v. Kazemi and R. v. Pizzurro

On 27 September 2013, the Ontario Court of Appeal released two judgments that together uphold an absolute prohibition on holding a cell phone while driving. The provision at issue in both cases was section 78.1(1) of the Highway Traffic Act (HTA). This provision prohibits driving while “holding or using a hand-held wireless communication device.”