Human Sperm to Constitute Legal Property: Lam v University of British Columbia

On January 6, 2015, the British Columbia Court of Appeal (“BCCA”) delivered a judgment upholding a trial judge’s decision to consider human sperm to be “property” for the purposes of provincial legislation regulating the storage of goods.

Lam v University of British Columbia, 2015 BCCA 2, touches on the bioethics of whether human reproductive tissues can or should be conceptualized as property and give rise to corresponding legal rights. The ruling provides some much welcomed clarity, which is crucial in an era where technological advancement in reproductive medical procedures has outpaced the law. At the same time, the decision in Lam does not tread unnecessary legal ground, restricting its precedent to a specific factual matrix in a manner that is cognizant of the ethical issues that surround the subject of human body ownership.

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[filed: Property Law Statutory Interpretation]

A Decrease of Judicial Discretion In Action: R v Szostak

The Supreme Court of Canada (“SCC”) recently denied leave to appeal from the decision of the Court of Appeal for Ontario (“ONCA”) in R v Szostak, 2014 ONCA 15. In this case Mr. Szostak appealed from his sentence of 6 years imprisonment, while the Crown appealed the decision of the trial judge to not impose the “dangerous offender” declaration onto Mr. Szostak. Mr. Szostak was convicted of assault causing bodily harm, aggravated assault, assault with a weapon, possession of a weapon for a purpose dangerous to the public, uttering threats, obstruction of justice and seven counts of breach of probation. The ONCA dismissed the conviction appeal and allowed the Crown sentence appeal to find that Mr. Szostak was a dangerous offender.

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[filed: Criminal Law]

Discrimination in Family Class Sponsorship: Attaran v Canada (Attorney General)

While there is no question that Citizenship and Immigration Canada’s (“CIC”) process for sponsoring parents to come to Canada treats applicants differently on the basis of family status, it remains to be seen if this differential treatment is justified.

On February 3, 2015, the Federal Court of Appeal found that the Canadian Human Rights Commission’s (“CHRC”) decision to dismiss a complaint regarding CIC’s differential treatment of those seeking to sponsor parents and grandparents was unreasonable in Attaran v Canada (Attorney General), 2015 FCA 37.

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[filed: Administrative Law Citizenship and Immigration]

Alteration Without Authorization? The Issues of Electronic Registration in KBA v Supreme Graphics

The British Columbia Court of Appeal (“BCCA”) case KBA Canada, Inc v Supreme Graphics Limited, 2014 BCCA 117, was released this past March. The judgment reversed the decision of the lower court, with part of the courts’ analysis revealing contrasting opinions on the role of equity in determining the priority of a security interest that has been discharged from the registry in error. In a more practical sense, the case suggests the possibility of future issues with electronic registration under the provincial Personal Property Security Act registration schemes.

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[filed: Commercial Law]

The Civility Standard for Unprofessional Conduct: Groia v LSUC

The latest chapter in the dispute between lawyer Joseph Groia and the Law Society of Upper Canada (“LSUC”) has come to a close. Earlier this month, the Ontario Superior Court of Justice dismissed Groia’s appeal from an LSUC decision that found he had engaged in unprofessional conduct during a more than decade-old trial. While Joseph Groia v The Law Society of Upper Canada, 2015 ONSC 686, upheld the penalties levied against Groia – he continues to face a one-month suspension from the bar and a $200,000 fine – the court also clarified the standard for determining when incivility crosses the line into professional misconduct. At the same time, it affirmed LSUC’s legitimate role in disciplining its members for their courtroom behaviour.

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[filed: Administrative Law]

Lawyers Can Help Shape Expert Reports: Moore v Getahun

Lawyers and experts can and should work together to prepare expert reports, declared the Ontario Court of Appeal (“ONCA”) in a recent unanimous decision. In late January, ONCA ruled in Moore v Getahun, 2015 ONCA 55, that allowing lawyers and experts to discuss the contents of expert reports while those reports are being prepared is in the best interests of justice. The ruling produced no change in outcome for the appellant, however, as the appeal bench ruled the trial judge’s errors did not change the final result, and it dismissed the appeal.

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[filed: Civil Procedure Evidence Law]

Supreme Court of Canada Strikes Down Prohibition against Physician-Assisted Dying in Carter v Canada: Part II

This is the second part of a three-part series discussing the Supreme Court of Canada’s paramount decision in Carter v Canada (Attorney General). Part I has addressed the notion that stare decisis is not a straitjacket that condemns the law to stasis. Part II will address the changes that the Carter decision will have on our understanding and interpretation of s. 7 of the Charter. Part III will comment on the remedy and what the options are for Parliament going forward.

Part II

With respect to s. 7 of the Charter, a great deal of the Carter decision simply tracks the moves the Supreme Court of Canada (“SCC”) had already made in Canada (Attorney General) v Bedford, [2013] 3 SCR 1101 [Bedford] and Canada (Attorney General) v PHS Community Services Society, [2011] 3 SCR 134. As previously stated, Bedford, along with other recent SCC decisions, laid the ground work that was required in order for the SCC to abolish the prohibition against physician-assisted dying. As such, it was highly predictable, every step of the way, that the Court would reach the result it did.

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[filed: Charter Constitutional Law]

Supreme Court of Canada Strikes Down Prohibition against Physician-Assisted Dying in Carter v Canada: Part I

This is the first part of a three-part series discussing the Supreme Court of Canada’s paramount decision in Carter v Canada (Attorney General). Part I will address stare decisis. Part II will address the changes that the Carter decision will have on our understanding and interpretation of s. 7 of the Charter. Part III will comment on the remedy and what the options are for Parliament going forward.

Part I

On February 6, 2015, the Supreme Court of Canada (“SCC”) in Carter v Canada (Attorney General), 2015 SCC 5 [Carter], unanimously allowed the appeal from the British Columbia Court of Appeal (“BCCA”), thereby abolishing the prohibition against physician-assisted dying in Canada. Written by “The Court,” the decision ruled that ss. 14 and 241(b) (“the prohibition”) of the Criminal Code, RSC 1985, c C-46, unjustifiably infringes s. 7 of the Charter and are void insofar as they deprive a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person has a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition (Carter, para 4). (For highlights from the SCC hearing of the appeal, see here.)

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[filed: Charter Constitutional Law]

Ontario Superior Court Sets Aside Will for Public Policy Grounds: Spence v BMO Trust Company

Last month, in Spence v BMO Trust Company, 2015 ONSC 615 [Spence], the Ontario Superior Court of Justice set aside a will for being contrary to public policy, as the testator’s motivation for excluding one his daughters from his will was racially motivated.

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[filed: Wills, Estates, and Trusts]

Road Salt Contamination: Steadman v Lambton County

On January 16, 2015, the Ontario Superior Court (“ONSC”) in Sarnia released its decision in Steadman v Lambton (City), 2015 ONSC 101 [Steadman]. The decision awarded over $107,000 to Evelyn and Joseph Steadman, who sued the County of Lambton for 15 years of crop losses and a drop in property value, which was caused by the municipality’s use of salt during winter road maintenance.

Based on the reaction of the Ontario Good Roads Association, an advocacy group representing municipal transportation and public works interests, the Steadman decision has caused great concern among municipal officials. Given municipalities’ statutory obligation to keep roadways in a reasonable state of repair, local governments feel the decision places them in a no-win situation. Municipalities in Ontario maintain thousands of kilometers of road that abuts farmland. They face potential liability for not doing enough to maintain roads and potential liability for doing too much. Since the decision was released there have been calls to amend the Municipal Act, 2001, SO 2001, c 25, to protect municipalities from nuisance claims related the use of road salts.

In this post, I will examine Justice T.J. Carey’s analysis in the Steadman decision and explain why the ability of farmers and other landowners to pursue nuisance claims against municipalities should be maintained.

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[filed: Municipal Law Torts]