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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...


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...


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...


A Brief Look at Osgoode’s 2015 Constitutional Cases Conference

Osgoode’s Constitutional Cases Conference is the leading constitutional law conference in Canada and a much anticipated annual event. The Conference, now in its 19th year, brings together constitutional law experts and practitioners for insightful analysis of the past year’s Supreme Court of Canada (“SCC”) constitutional judgments. There were a few novelties to this year’s event that made it even more unique. First, the Conference took place on the Osgoode Hall Law School campus, a symbolic but important shift. The new venue gives an opportunity for students to engage with scholars and re-affirms Osgoode’s role as a catalyst for important legal...


Parental Access for Crown Wards: The “highly adoptable child”

When a child is made a crown ward, how much access should the biological parent have? While Ontarian courts have had to determine this issue in numerous child protection cases, the analysis was complicated by recent statutory amendments. In 2011, there was a significant statutory amendment made to the Children and Family Services Act, RSO 1990, c C11 [CFSA]. Previously, an access order barred a crown ward adoption. Now, pursuant s. 141.1.1(1) of the CFSA, children who are crown wards with an access order can be adopted. In Children’s Aid Society of Toronto v SB, 2014 ONCJ 518 [SB 2014],...


The Supreme Court by Numbers (of Words) (Part 1)

This article was co-authored by Richard Haigh and Victoria Peter. Few things in Canadian legal circles are as agonizingly analyzed as Supreme Court of Canada (“SCC”) judgments. Scholars parse them for logical consistency, legal reasoning, political leanings, policy shifts, historical and factual accuracy, social context, fidelity to precedent and more. Private bar lawyers read them to advise clients, to use as ammunition in future cases, and to predict where the law may go in the future. Government lawyers need them to brief politicians and perhaps to suggest changes to laws. And other judges must decipher them in order to obey...


Legal Resurrection: Tax Appeals and Dissolved Corporations

In the height of tax season, corporations are reminded that regardless of their dissolved status, the government will always get its due. Dissolution does not offer protection against a tax assessment, and second, the dissolved status of a corporation must be addressed before a court is able to hear a corporation’s legal appeal.


Economical Mutual v Caughy: The Meaning of “Accident” in the Insurance Context

Economical Mutual Insurance Company v Caughy, 2016 ONCA 226 [Caughy] is the latest decision in the ongoing conflict between the prerogative of automobile accident insurers to deny coverage when faced with ambiguity over statutory definitions, on the one hand, and the need to uphold coverage where ambiguous cases are coupled with serious debilitating injuries. In Caughy, the Ontario Court of Appeal (“ONCA”) was tasked with reviewing the application judge’s decision to uphold coverage for a claimant with serious spinal cord injuries. The insurer in this case, Economical Mutual Insurance Company (“Economical”) challenged this on the grounds that the vehicle in...


Hamlet of Clyde River: Seismic Testing & An Unclear Role for Tribunals in Duty to Consult

In what is being called a “David and Goliath” face-off, a small Inuit town is fighting three multi-billion dollar energy companies to protect the marine life of the Baffin Bay from seismic testing. The town has seen support from Greenpeace, Amnesty International, the Green Party, and celebrities like Naomi Klein and Emma Thompson. Most of the residents of Clyde River are Inuit, who have relied on the harvest of marine mammals from Baffin Bay and the Davis Strait for thousands of years. In May of 2011, a plunderbund of energy companies—TGS-NOPEC Geophysical Company, Petroleum GeoServices, and MultiKlient Invest—applied to begin...


The Retirement of Justice Thomas Cromwell

Approximately one month after the sudden passing of US Supreme Court Justice Antonin Scalia rocked the US political landscape, the newly-elected Canadian government will soon face a challenge of its own in replacing a Canadian Supreme Court titan in just a few months’ time.  On March 22, 2016, Executive Legal Officer Gib Van Ert released the following statement on behalf of the Supreme Court of Canada (“SCC”): The Right Honourable Beverley McLachlin, Chief Justice of Canada, announced today that Justice Thomas A. Cromwell has written to the Minister of Justice, the Honourable Jody Wilson-Raybould, M.P., to inform her that he...