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 otherwise not exist. By dealing with the facts as it did, the lower court in Swern found what amounted to be a duty of care in the context of an ordinary contractual relationship between a merchant and customer. The Divisional Court then deferred to the Deputy Judge’s factual findings. Is this an example of clever results-based reasoning or a confusing legal analysis? Read the rest of this entry »

[filed: Contracts Torts]

Paramountcy Problems Part II – Narrowing “Federal Purpose” in Saskatchewan (Attorney General) v Lemare Lake Logging

In a series of recent decisions, the Supreme Court of Canada (“SCC”) sought to clarify the proper application of the constitutional paramountcy doctrine. Part I of this two-part series looked at the implications of Alberta (Attorney General) v Moloney, 2015 SCC 51 [Moloney]. This analysis will focus on the Saskatchewan (Attorney General) v Lemare Lake Logging, 2015 SCC 53 [Lemare] decision.

Part II

As discussed in Part I, Canada is a federal state, with equal, exclusive, and autonomous law-making powers constitutionally conferred to both the Parliament of Canada and the ten provincial legislatures. Where there is an inconsistency between validly enacted federal and provincial legislation, however, the paramountcy doctrine provides that that the federal law takes primacy, with the provincial law deemed inoperable to the extent of the inconsistency.

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[filed: Constitutional Law]

No Clarification on Extradition: MM v United States of America

In MM v United States of America, 2015 SCC 62 [MM], both the public and the Bench were sharply divided on whether to extradite a mother, MM. The U.S. sought extradition of MM to face child abduction charges in the state of Georgia. MM’s numerous supporters see her as a mother that came to her children’s aid after they ran away from their abusive father. MM has received public support from the BC Civil Liberties Association, an intervener at the Supreme Court of Canada (“SCC”), Women Who Choose to Live, the New Democratic Party’s Immigration, Refugee and Citizenship Critic, Jenny Kwan and other organizations. In much anticipated reasons, the SCC narrowly rejected this characterization and held that MM should be extradited. However, the impact of the SCC’s decision is now unclear, in light of the recent announcement by the new Minister of Justice, the Honourable Jody Wilson-Raybould, that she will reconsider MM’s case.

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[filed: Citizenship and Immigration Criminal Code Criminal Law Jurisdiction]

Partridge v Botony Dental Corporation: Wrongful Dismissal and Discrimination on the Basis of Family Status

Ms. Partridge, age 36, worked for the employer for seven years, initially as a hygienist, and thereafter as a dental practice office manager. Following her return from maternity leave, the employer demoted her to her initial hygienist position with reduced hours and pay. Ms. Partridge objected to the material changes in her employment and reminded her employer about its obligations under section 53(1) of the Employment Standards Act, 2000, SO 2000, c 41 to return the employee to her former position. Although the office manager position was still available, the employer did not return Ms. Partridge to this position. Instead, the employer deliberately increased Ms. Partridge’s work hours, creating a conflict with her children’s day care pick-up schedule. Ms. Partridges’ employment was then terminated for cause within a week of her returning after her maternity leave. The alleged cause for termination was that Ms. Partridge removed patient day sheets from the employer’s premises in breach of her employment obligations. Accordingly, Ms. Partridge was dismissed immediately without notice or pay in lieu of notice. Read the rest of this entry »

[filed: Uncategorized]

Crouch v Snell or: How Adults Ruined It for the Kids

The tragic suicide of Rahtaeh Parsons as a result of relentless cyber-bullying in 2013 elicited the sympathy and concern of not just Canadians but also the international community. Only three weeks after her death, the Nova Scotia legislature enacted the Cyber-safety Act, SNS 2013, c 2 [CSA]. The CSA aimed to address cyberbullying and was the first standalone act to do so in Canada. This past week, two years after its enactment, the Nova Scotia Supreme Court struck down the law on the grounds that it violated the Charter.

It is a sad reality that many children experience bullying when growing up. Some of us were lucky to grow up at a time when technology could not reach the inside of our homes. And as such, our homes provided a safe haven from bullies. But for today youth, there are no safe havens. The bullying comes directly into one’s home over the internet and it is there to stay. But reactive laws that aim to prevent this kind of bullying may create more problems than they resolve. After less than two years, the Nova Scotia Supreme Court declared the CSA to be in violation of sections 2(b) and 7 of the Charter in Crouch v Snell2015 NSSC 340 [Crouch].

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[filed: Charter Freedom of Expression Statutory Interpretation]

The Expansion of “Humanitarian and Compassionate Grounds”: Kanthasamy v Canada

The recent Supreme Court of Canada (“SCC”) decision in Jeyakannan Kanthasamy v Canada (Minister of Citizenship and Immigration), 2015 SCC 61 [Kanthasamy] is an exciting and welcome development in immigration and refugee law as it broadens the scope and definition of humanitarian and compassionate grounds under the Immigration and Refugee Protection Act, SC 2001, c 27, s. 25(1) [Act]. Not only did the Court note that humanitarian and compassionate considerations should include the best interests of a child directly affected—in this case Mr. Kanthasamy himself—but should also provide equitable relief.

At issue in Kanthasamy was whether the decision to deny relief to a 17-year-old refugee applicant was a reasonable exercise of humanitarian and compassionate discretion. At further issue was the proper role of Ministerial Guidelines used by immigration officers in determining whether humanitarian and compassionate considerations warrant relief under the Act.

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[filed: Administrative Law Citizenship and Immigration]

New Toronto Police Initiative: Expanding Pre-charge Youth Diversion

Toronto police are set to launch a new youth diversion program that will be fully implemented by early 2016.

In a recent news release, the two Toronto Police officers responsible for spearheading this program describe the benefits of pre-charge diversion in lowering youth recidivism (i.e. reoffending) rates. They also bring attention to the positive results of a pilot project administered in 2002. For this pilot, nearly 1,500 youth participated in diversion and the officers indicated that only 4% of the diverted youth reoffended during the 20-month period of the test. In addition, the officers spoke about the intangible benefits of the program including the fact that youths are not “criminalized,” but rather given another opportunity to change their lives.

The program is straightforward. If a police officer has reasonable grounds to believe that a youth has committed a minor offense (e.g. shoplifting) they will apply their discretion in choosing whether to arrest and charge the youth or require that they complete diversion. Upon completion of a relevant diversion option, such as counselling, mentoring, or an apology letter, the police will then agree not to pursue the matter against the accused youth. However, if the youth does not complete diversion then charges may be laid.

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[filed: Charter Constitutional Law Criminal Law Evidence Law Human Rights]

Ktunaxa Nation v BC: Bringing Aboriginal Spirituality into Section 2(a) of the Charter

The British Columbia Court of Appeal (“BCCA”) case Ktunaxa Nation v BC, 2015 BCCA 352 [Ktunaxa], has some problematic implications for the scope of religious freedom under section 2(a) of the Charter. Aboriginal spirituality has never officially been recognized under 2(a). It is likely that Ktunaxa will go to the Supreme Court of Canada (“SCC”). If it does, the SCC should be mindful of some important questions about the scope of 2(a), and what that might mean for Aboriginal spirituality.

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[filed: Charter Freedom of Religion]

Evans Sweeny Bordin LLP v Zawadzki: Limits on Contractual Freedom Between Lawyer and Client

In the civil litigation context, it has been a client’s longstanding right to challenge the reasonableness of his or her lawyer’s account for services rendered. Clients may apply to have a lawyer’s costs assessed by a court under Rule 58 of the Rules of Civil Procedure, RRO 1990, Reg 194.

Evans Sweeny Bordin LLP v Zawadzki, 2015 ONCA 756 [Zawadzki], raises an important issue over how far this right can extend, namely whether a contingency agreement willingly entered into between a lawyer and client entered into before the period of representation is subject to review.

In allowing the $500,000 contingency agreement in Zawadzki to ultimately stand, the Ontario Court of Appeal (“ONCA”) in effect recognized that contractual agreements between lawyers and their clients should stand. However, this decision leaves a potential grey area of lawyer-client relations unaddressed, namely how a court would treat a contingency agreement entered into during the course of representation as opposed to before. The contours of this issue are explored below. I conclude that although the limits of contractual freedom between lawyer and client are unclear, it is open to courts to rely on principles from the doctrine of consideration.

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[filed: Civil Procedure Contracts]

Revisiting the Relationship between Parents and Child Protection Agencies in JP v British Columbia

There is an inherent tension in the relationship between parents and child protection agencies. Interactions often occur under the threat of litigation and apprehension. In JP v British Columbia (Children and Family Development),
 2015 BCSC 1216 [JP], Justice Walker of the Supreme Court of British Columbia considered whether child protection agency workers owed a duty of care to parents in child protection cases. The central issue was whether a novel duty of care owed to the parents is antithetical to the statutory duty owed to children. Unfortunately, Justice Walker did not find that a duty flowed for the Director to the parent on policy grounds.

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[filed: Torts]