Canada v Esfand: The Politics of Refugee Law

With the intensification of the Syrian crisis, refugees have been much in the news lately. Refugees also became a quasi-central issue during the earlier part of the 2015 Canadian federal election campaign. The past 9 years of Conservative government have proven transformational for Canada’s refugee and immigration system, some would argue for the worst. In Canada (Citizenship and Immigration) v Esfand, 2015 FC 1190 [Esfand], the Federal Court (“FC”) tackled the issue of cessation, which allows the government to claim that a person’s refugee status has ceased when they have “voluntarily re-availed” themselves of the protection of the country they fled.

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[filed: Administrative Law Citizenship and Immigration Human Rights]

Breaking New ‘Tertiary’ Ground? Marco Muzzo in the Shadow of St. Cloud

By now we have all heard the story of three children and their grandfather killed in a car accident in Vaughan, ON on September 27th due to the actions of an alleged drunk driver. The heart wrenching public statements made by a father who must bury all of his children and a mother who lost both her children and her father still resonate within the community.

In the aftermath of the accident, thousands of people rallied together and donated over $250,000 to the Neville-Lake family’s fund. The emotional scars of this tremendous loss are still raw and cut deeper than the physical scars from which the survivors of the accident, the children’s grandmother and great-grandmother, must heal.

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[filed: Charter Constitutional Law Criminal Code Criminal Law Criminal Procedure]

R v Smith: Removing Arbitrariness in the Regulation of Medical Marihuana


The regulation of medical marihuana has been a hot topic for quite some time now. More recently, the issue of how much regulation should be required went up to the Supreme Court of Canada (“SCC”) in R v Smith, [2015] 1 SCR 34 [Smith] this past June. In Smith, the SCC lightened the restrictions on the kind of marihuana products that can be used in Canada.


In Canada, the use of marihuana for treating medical conditions is regulated under the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA]. Within the Act, the drug can only be possessed for medical purposes in dried form and cannot be possessed for any reason in other forms using the active ingredients found in the cannabis plant. This means that patients who use dried marihuana have to inhale it via smoking or using a vaporizer, but cannot use the product via an oral or topical treatment. The problem with smoking marihuana is that it poses health risks and is said to be less effective for certain illnesses when taken in the dried form; the problem with vaporizers is that they are expensive and therefore not accessible to many.

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[filed: Charter Criminal Law]

Live from the Supreme Court of Canada: Steven Michael Neville v The Queen

The Supreme Court of Canada (“SCC”) has handed down a decision on Steven Michael Neville v The Queen, a criminal right of appeal case that centred around the jury’s question of whether “to kill” was the same as “to murder.” The trial judge’s instructions left the answer to this question unclear, leading to concerns that the verdict was unsound. As such, the SCC, after their live hearing this Thursday, set aside the verdict and ordered a new trial.

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[filed: Criminal Law]

Eligibility for Full Pension is Not a Relevant Factor in Calculating Termination Notice Entitlement: Ontario Court of Appeal Rules

In Arnone v Best Theratronics Ltd, 2015 ONCA 63 [Arnone], the Ontario Court of Appeal revisited the issue of damages calculation in wrongful dismissal cases. The decision confirms that courts must continue to apply the analysis from Bardal v The Globe and Mail, 24 DLR (2d) 140 (Ont HC) [Bardal] to determine what constitutes reasonable notice of termination. However, the decision clarifies that the Bardal approach does not include a consideration of the time between the date of dismissal and the point at which the employee would be eligible for a full pension. In other words, eligibility for a full pension is not a factor in determining the duration of a reasonable notice period. Arnone case also ascertains that offers to settle are an important factor in determining costs awards and their quantum. Failure to consider settlement offers constitutes a palpable error; a lower court’s determination of costs in such instances will most likely be set aside on appeal.

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[filed: Employment Law]

The Limits of Exculpatory Clauses in the Commercial Leasing Context: To What Extent Can Misrepresentations be Contracted Around?

The Ontario Court of Appeal’s decision in DLG & Associates Ltd. v Minto Properties, 2015 ONCA 705 [DLG], raises important issues around the limits of “exculpatory” and “entire agreement” clauses in leasing agreements: namely, how far they can be relied upon by a landlord who knowingly withholds key information from a tenant on the state of repair of the building it leases. The significance of withholding such information in DLG was that the tenants, D.L.G. & Associates Ltd. (“DLG”), allegedly relied on the assertions made by Minto Properties (“Minto”), pertaining to the building’s sewer system, to waive certain legal rights. After the sewer system backed up a second time, again causing severe damage to the restaurant being operated on the premises, DLG was in effect put out of business.

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[filed: Commercial Law]

Defining the Homeless’s Shelter Rights in Public Spaces: Abbotsford v Shantz

The Supreme Court of British Columbia (“BCSC”) recently released the long-awaited ruling in Abbotsford v Shantz, 2015 BCSC 1909 [Abbotsford]. Abbotsford heard both the action by the City of Abbotsford (“the City”) and the action by BC/Yukon Association of Drug War Survivors (“DWS”). The City sought a permanent injunction against the erection of shelters in Jubilee Park and damages against Mr. Shantz, the Director of DWS. DWS brought an action challenging the constitutional validity of various bylaws that had been used to target the City’s homeless population. Abbotsford precludes municipalities from prohibiting the homeless population from erecting temporary shelters at night in public spaces. While the decision was a huge win for poverty lawyers and Abbotsford’s homeless, Chief Justice Hinkson’s unwillingness to expand s. 7 of the Charter to include positive rights and a new constitutional principle was a setback for housing advocates.

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[filed: Charter Constitutional Law]

R v DLW: The Legalization of “Bestiality” in BC and its Impact on Animal Welfare

At first glance, the Supreme Court of British Columbia (“BCSC”) and British Columbia Court of Appeal (“BCCA”) decisions in R v DLW appear to focus only on uncovering the true meaning of the term “bestiality.” However, as you dig deeper, the principal issue of animal welfare begins to take on a prominent role in these decisions.

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[filed: Animal Rights Criminal Code Criminal Law]

Technology, Taxicabs, and Transportation in Toronto: City of Toronto v Uber Canada Inc

A defining feature of this decade has been the advent of disruptive technological innovation. Airbnb is now challenging the traditional hotel industry, Rover is providing drivers with alternatives to astronomically high parking rates, and RelayRides is making it increasingly easier for city-dwellers to not own vehicles. These services are creating increased competition among established industries—residential rentals and commercial parking, for example—and are providing ordinary people with increased alternatives, lower prices, and the chance to earn a bit of extra spending money.

Perhaps the most widespread, disruptive, and controversial of these new technologies is Uber, an online “ride-sharing” application operating in hundreds of cities across forty-five countries. Although it continues to receive the backing of thousands of Torontonians who regularly use its services, it has drawn the wrath of the taxi industry and its regulator, the City of Toronto (the “City”). The tension between these camps culminated in legal action, with the City seeking an order prohibiting Uber from operating within its boundaries without a proper license. Despite the City’s best efforts, the request was dismissed by Justice Sean Dunphy of the Superior Court of Justice earlier this year, in City of Toronto v Uber Canada Inc et al, 2015 ONSC 3572 [City of Toronto].

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[filed: Regulatory Law]

BC Court of Appeal Rules Mexico Improperly Interfered with BC Unionization Effort: United Mexican States v BC

At issue in United Mexican States v British Columbia Labour Relations Board, 2015 BCCA 32 [United Mexican States], was whether the Mexican government could claim sovereign immunity from prosecution under the Labour Relations Code, RSBC 1996, c. 244 [the Code]. The Mexican government had argued that its sovereign immunity would be violated if the British Columbia Labour Relations Board (“the Board”) ruled as to whether Mexico and its Vancouver consulate colluded with a BC agricultural employer to prevent the formation of a union of agricultural workers.
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[filed: Administrative Law]