A Clear Cut Case for an Anton Piller Order: Peters & Co Limited v Ward

In Peters & Co Limited v Ward, 2015 ABCA 6 [Ward], the Alberta Court of Appeal (“ABCA”) assessed the validity of an Anton Piller Order (“APO”). An APO, when issued, allows the claimant to conduct a search and remove evidence in the possession of the target. In this case, the APO allowed the search of “the appellant’s residences, vehicles, computer and other digital storage devices, and an office building” (para 1).

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[filed: Civil Procedure Evidence Law]

Gyorffy v Drury: Big Win or Big Chill for Plaintiffs?

Writing for the Ontario Court of Appeal (“ONCA”) in Gyorffy v Drury, 2015 ONCA 31, Justice Laskin upheld an award of non-pecuniary damages for injuries arising from a motor vehicle accident (“MVA”). The case hinged upon whether the Plaintiff was permitted to corroborate his own physician’s evidence on his changed functioning after the accident. At trial, it was determined that the Insurance ActRSO 1990, c I.8 (“the Act”), required the Plaintiff to meet an onerous standard of proof such that the Plaintiff could not corroborate his own physician’s evidence. Accordingly,  the trial judge found that the Plaintiff had not met the evidentiary threshold set out in the Act and denied any award of non-pecuniary damages.

Both Ontario’s Divisional Court and Court of Appeal reversed the trial judge’s decision, finding that the Act did not impose such onerous  standards as the trial judge had found.

The Court of Appeal’s adoption of a less onerous threshold may be taken as a positive development for future Plaintiffs. At the same time, the decision may have a long-term chilling effect on claims for non-pecuniary damages arising from MVAs by causing proceedings surrounding the statutory threshold for claiming these losses to become more lengthy, costly, and uncertain.

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[filed: Insurance Provincial Regulations Statutory Interpretation]

Solidarity Forever! A Right to Strike is Recognized in Saskatchewan Federation of Labour v Saskatchewan

In the context of more and more services being designated as “essential” by Canadian governments, a finding of a right to strike under the s. 2(d) right to freedom of association is enormously significant in Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4. It is apparent that the Supreme Court of Canada has undergone an evolution in their views on the scope of freedom of association and the protections it affords for labour.

In doing so, the Court has overruled its previous position held in a series of cases known as the “Labour Trilogy” that freedom of expression does not include the freedom to strike. That is, a clear right to strike has been recognized under the s. 2(d) right to freedom of association under the Charter of Rights and Freedoms (“Charter“) with this decision.

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[filed: Charter Labour and Employment]

R v Campione: Nature of “Moral Wrongness” for NCR Defences Affirmed at ONCA

In R v Campione, 2015 ONCA 67 [Campione], the Ontario Court of Appeal (“ONCA”) affirmed its earlier understanding and formulation of the concept of “moral wrongness” as it relates to NCR defences. The appeal provided the Court an opportunity to clarify the nature of a specific inquiry under section 16(1) of the Criminal Code, RSC 1985, c C-46, and offered insight into the more basic motivations underlying the provision and defence. In what follows, I outline the facts, issues, and decision, before closing with some more general reflections.

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[filed: Criminal Law NCR]

People Smuggling, Refugees, and Material Benefit: B010 v Canada

On February 16, 2015, the Supreme Court of Canada (“SCC”) will begin hearing oral arguments in the appeal of B010 v Canada (Minister of Citizenship and Immigration), 2013 FCA 87 [B010].

The Court will determine whether “people smuggling” under s. 37(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], requires the party accused of people smuggling receive material benefit. The SCC will also consider whether the principle of non-refoulement requires a definition of “people smuggling” that ensures a refugee’s access to the country’s refugee determination procedure.

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[filed: Administrative Law Citizenship and Immigration]

Presenting TheCourt.ca‘s Third Annual Golden Gavel Awards

And the Nominees Are…

After a four-year hiatus, we at TheCourt.ca thought it time we revive our public announcement of our list of nominees for the prestigious Golden Gavels, formerly known as the OZZY.

Unfortunately, TheCourt.ca’s editors have not yet secured the funds to rent out the Dolby Theatre for the annual Golden Gavel awards ceremony. But, we remain grateful for this space on the interwebs to share what we view as the most important developments in Supreme Court of Canada jurisprudence of the past year.

The Golden Gavels are awarded in the following categories:

  • Criminal Judgment of the Year
  • Constitutional Judgment of the Year
  • Civil Judgment of the Year
  • Concurrence of the Year
  • Dissent of the Year
  • Most Disappointing Refusal of Leave
  • Most Exciting Grant of Leave
  • Justice of the Year
  • Judgment of the Year

So, without further ado, below is the list of nominees for the third annual Golden Gavel awards, as selected by members of our editorial team, in consultation with Eugene Meehan, QC of Supreme Advocacy LLP.

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[filed: Charter Constitutional Law Criminal Law]

Empowering Wind-Farm Development in Ontario: Dixon v MOE

As wind farms become an increasingly common sight in Ontario’s rural communities, disputes among residents and green-energy developers are likely to occur with ever-greater frequency. In the past two years, the Environmental Review Tribunal (“ERT”) has heard a number of complaints regarding the approval of wind-farm projects by the Ministry of the Environment.

In this post, I will look at a recent Ontario Superior Court of Justice (“ONSC”) divisional court decision—Dixon v Director, Ministry of the Environment, 2014 ONSC 7404endorsing three ERT review hearings allowing wind-turbine developments to go ahead. The court ultimately shot down a constitutional challenge that, if successful, would have had a massive impact on the province’s burgeoning green-energy sector.

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[filed: Administrative Law Charter]

Federal Court Says Patent Commissioner Went Too Far with New Policy: AbbVie Biotechnology v Canada

The definitions of what is a method of medical treatment and what is an invention were under scrutiny in a recent Federal Court decision. In AbbVie Biotechnology Ltd. v Canada (Attorney General)2014 FC 1251 [Abbvie], a judicial review of an appealed patent decision, the federal judge found that recent guidelines issued by the Patent Commissioner (“Commissioner”) were too broad and that they erroneously included patentable subject matter in a definition of medical methods of treatment.

One of the issues the appellant and respondent disagreed on was what method of judicial review that the federal court should apply. The appellant argued that no facts were in dispute, just the application of case law, and therefore the appropriate standard of review was correctness. The respondent argued that what was at issue in this case was a mixture of fact and law, which required statutory interpretation of section 2 of the Patent Act, RSC 1985, c P-4. For these reasons, the Patent Appeal Board’s decision should be granted deference because of its special expertise.

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[filed: Administrative Law]

R v Catton: Concerning Irreconcilably Inconsistent Verdicts

In R v Catton, 2015 ONCA 13 [Catton], the Court of Appeal for Ontario had to determine whether several verdicts returned by a jury were fundamentally inconsistent with one another. In a brief and incisive decision, a unanimous Court of Appeal quashed all five of the verdicts on appeal, ordering that two undergo a new trial and entering acquittals on the remaining three. Within this short judgment, the Court of Appeal also considered the applicability of issue estoppel in a criminal context and wisely avoided an instance of narrow legalism.

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[filed: Criminal Law]

Adultery, Alcohol & Consent: The ONCA Overturns Sexual Assault Conviction in R v Garciacruz

In R v Garciacruz, 2015 ONCA 27, the Ontario Court of Appeal (“ONCA”) overturned a conviction for sexual assault. Akin to many cases, this one came down to consent and a conflict between the complainant and the appellant’s version of events. The trial judge made certain inferences that allowed her to hold that no consent was provided. At the ONCA, Justice Rouleau ordered a new trial, ruling that the trial judge’s reasons were insufficient as they failed to rule out other possibilities plausibly supportable by the same inferences.

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[filed: Criminal Law]