Welcome to TheCourt.ca


Mr. Big Confessions: Distinguishing Hart from Johnston

Among the more controversial areas of Canadian evidence law are confessions obtained through “Mr. Big” operations. This unique investigative tactic involves the creation of an elaborate but fictitious criminal organization that recruits the suspect of a cold case to join its ranks. Over the course of several “scenarios,” the participating undercover police officers engage the individual in their dealings, offering monetary and (sometimes significant) social incentives to the person, and exposing him or her to (usually quite violent) criminal activity. After building a sufficient bond, the target is ultimately given an “interview” with Mr. Big – the head of the...


A Strong Endorsement of Testamentary Freedom: Spence v BMO Trust

When should courts invoke public policy to interfere with testamentary freedom? The Ontario Court of Appeal (“ONCA”) recently revisited this question in Spence v BMO Trust Company, 2016 ONCA 196 [Spence]. In Spence, Mr. Spence (the testator) excluded his daughter, Verolin, and grandson, A.S., from his Will. Instead, he bequeathed his assets to his second daughter, Donna, and her children. Mr. Spence’s reason for disinheriting Verolin appears to be racially motivated. The application judge, Justice Gilmore, held that the Will violated public policy and set aside the Will in its entirety. The ONCA, issuing a strong defence for testamentary freedom,...


Wrestling over Wills and Wealth in Neuberger v York

Nothing riles a family up more than a good ‘ol contested probate of will. This is especially true if there are millions to be had. This month, the Court of Appeal for Ontario (“ONCA”) issued a ruling in Neuberger v York, 2016 ONCA 191 that allows one faction of a family to challenge a will where the other faction of that family is set to receive substantially more from the will. The Facts The warring clan is that of the now deceased Sarah and Chaim Neuberger, prominent Toronto philanthropists and real estate giants. A holocaust survivor, Mr. Neuberger came to...


Keenan v Canac Kitchens: A Victory for Precarious Workers in Ontario

Being laid off close to the age of retirement can be quite a devastating experience. It is all the more devastating when you have worked for the same company for three decades and your skills may not reflect current job market needs. Add to this the fact that, because of your employment contract, you are not entitled to any notice or compensation and you get a worker’s worst nightmare. Earlier this month, the Ontario Court of Appeal (“ONCA”) in Keenan v Canac Kitchens Ltd, 2016 ONCA 79 [Keenan 2] delivered a strong statement against companies who try to avoid obligations towards...


Defining the Mental State for Infanticide: R v Borowiec

The Supreme Court of Canada (“SCC”) recently heard the Crown appeal of R v Borowiec, 2015 ABCA 232 (“R v MB”). The case is significant given the possibility for a change in the law of infanticide in Canada, as the Crown has argued for the need for greater clarity of what constitutes a ‘disturbed mind’ in the infanticide provision, through the substitution of a higher bar for such a finding. The impugned provision, section 233 of the Criminal Code, RSC 1985, c C-46 states: A female person commits infanticide when by a wilful act or omission she causes the death...


Some Suggestions on Regulating Technological Innovation: City of Toronto v Uber Canada Inc.

In November of last year, I wrote an article for The Court on the recent decision in Uber Canada Inc. v City of Toronto, 2015 ONSC 3572 [“Uber”] by the Ontario Superior Court of Justice (“ONSC”). In Uber, Justice Sean F. Dunphy ruled that Uber is neither a “taxicab broker” nor a “limousine service” within the meaning of the City of Toronto Municipal Code, and thus cannot be prohibited from operating without a license.  In other words, the Court said that Uber cannot be regulated under the existing municipal framework that has regulated the taxi industry in Toronto for several...


Butler v Canada : Tax Filing Guidelines for Workplace Compensation Claims

Facts of the Case In the case of Butler v Canada, 2016 FCA 65 [Butler] Mr. Butler appealed a decision made last January at the Tax Court of Canada, where he was required to repay the Old Age Security Pension (“OASP”) approximately $3000. Mr. Butler received a lump sum award under Nova Scotia’s Workers’ Compensation Act, SNS 1994-95, c 10 (“The Act”). The Worker’s Compensation Board of Nova Scotia had issued a T5007 slip for Mr. Butler for his OASP, but he failed to include it as an additional income when filing his taxes. He alleged that the reason for...


Lawyers Beware: Roth Estate v Juschka and the Need for Independent Legal Advice in the Context of Family Transactions

Roth Estate v Juschka, 2016 ONCA 92 [Roth] is a case where the circumstances under which advice was given to family members in the context of a share purchase did not purport to necessitate the provision of independent legal advice (“ILA”). The underlying transaction was a gift from Mr. Roth and his wife (the “Roths”) to his daughter and her husband (the “Juschkas”), placing them into a significantly more advantageous position than had the gift not been given. The only caveat was a condition attached to the gift that if broken would trigger the payment of a promissory note securing...


Allen v Alberta: The Sound and Fury of Section 7 and Health Care

Canada has an enviable public health care system, providing health care coverage to all Canadian citizens regardless of personal income. What this public system invariably leads to, though, is delays in getting medical treatment. And while those who want or even need to get treatment faster can seek private health care, they may find their insurance coverage for this service barred. This was the issue in Allen v Alberta, 2015 ABCA 277 [Allen].


Swern v Amazon Hardwood Centre Inc: Clever Judicial Decision-Making or Confusing Law?

Due to a dearth of commercial appellate decisions around the holiday season, a tort decision from the Ontario Divisional Court has caught my attention. Swern v Amazon Hardwood Centre Inc, 2015 ONSC 7590 [Swern] is a Small Claims Court decision appealed by the Defendants to the Divisional Court on a number of well-reasoned points of law and fact. While Small Claims Court decisions carry little weight from the standpoint of stare decisis, this decision is an example of how the judicial exercise of characterizing facts can profoundly influence the outcome of a case and create legal duties where they might...