The European Commission Secures Modest Concessions from Google in the Internet Giant’s Latest Anti-trust Battle

Google, as part of a settlement with European competition regulators, has conceded some ground in the European search market by agreeing to display competitor results in its search results. These concessions will be the most significant that Google has made in response to an antitrust inquiry to date. The proposed settlement still requires approval from the European Commission (the “Commission”). However, it has nonetheless done little to quell the concerns voiced by Google’s competitors that sparked the inquiry.

The inquiry investigated the extent to which, if any, Google abused its ninety percent market share in Europe. As part of the settlement, Google will avoid EU fines and any finding of discrimination against competing sites, much in the same way it did a year earlier following a settlement with the United States Federal Trade Commission (the “FTC”).

[filed: Uncategorized]

Kozel v The Personal Insurance Company: Failure to Renew a Driver’s License, a Car Crash, and Relief from Forfeiture

In Kozel v The Personal Insurance Company, 2014 ONCA 130 [Kozel], a decision released on February 19, 2014, the Ontario Court of Appeal considered the scope of relief from forfeiture pursuant to section 98 of the Courts of Justice Act, RSO 1990, c C.43, in the context of an automobile insurance claim.

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[filed: Contracts Insurance Remedies Statutory Interpretation]

SCC Continues to Navigate the Tension Between Labour Relations and Privacy in Bernard v Canada

Last November, the Supreme Court of Canada decided that Alberta’s Personal Information Protection Act, SA 2003 c P-6.5, which, inter alia, had the effect of preventing unions from filming individuals crossing a picket line, was an unjustifiable violation of the constitutional right to freedom of expression (for more, see the commentary by Avnish Nanda and Brock Jones).

The SCC’s recent decision in Bernard v Canada, 2014 SCC 13 (“Bernard“), dealt with the relationship between a union’s representational duties under the Public Service Labour Relations Act, SC 2003 c 22, and restrictions on disclosure of government-held personal information under the Privacy Act, RSC 1985 c P-21.

The SCC upheld the decision of the Public Service Labour Relations Board. Disclosure of employee home contact information by the employer to the union was necessary for the union to effectively discharge its representational duties under the Public Service Labour Relations Act. Information disclosed for this purpose is exempt from the general ban on disclosure of government-held personal information pursuant to the “consistent use” exception.

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[filed: Access to Information Charter Freedom of Expression Privacy]

Mandatory Minimum Sentence for Drug Offences Struck Down by BC Provincial Court in R v Lloyd

After finding the mandatory minimum sentence for drug possession for the purpose of trafficking (contrary to s. 5(2) of the Controlled Drugs and Substances Act [CDSA]) violated s. 12 of the Charter (R v Lloyd, 2014 BCPC 0008 [Lloyd]) in January 2014, Galati J. of the Provincial Court of British Columbia has found that the law is not saved by s. 1 of the Charter (R v Lloyd, 2014 BCPC 0011). As such, the law was deemed of no force based on its unconstitutionality.

As written, s. 5(3)(a)(i)(D) of the CDSA imposes a mandatory minimum sentence of one year imprisonment for anyone convicted of drug trafficking (under s. 5(1),) or possession for the purpose of trafficking (under s. 5(2),) if the offender was previously convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence in the previous 10 years. This mandatory minimum sentence is one of many that took effect in 2012, following the enactment of Bill C-10, The Safe Streets and Communities ActRead the rest of this entry »

[filed: Charter Constitutional Law Criminal Code Criminal Law Human Rights Jurisdiction Remedies]

What R v Big M Drug Mart Can Teach the US Supreme Court about Corporate Religious Freedom

Late last year, the United States Supreme Court agreed to hear two cases challenging the constitutionality of the Patient Protection and Affordable Care Act’s (“Obamacare”) contraception mandate, with oral arguments to take place in March. At issue in Sebelius v Hobby Lobby Stores, Inc. (Hobby Lobby) and Conestoga Wood Specialties Corp. v Sebelius (Conestoga Wood), which will be consolidated at the Supreme Court, is whether provisions of Obamacare requiring companies with more than 50 employees to provide insurance that includes coverage for contraception violates those corporations’ right to religious freedom under the First Amendment and Religious Freedom Restoration Act (“RFRA”). The most interesting issue raised by this case is whether a corporation is capable of religious belief. However, as Chief Justice Dickson wrote in R v Big M Drug Mart, [1985] 1 SCR 295, this is the wrong question to be asking.

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[filed: Corporate law Religion U.S. Supreme Court]

Supreme Court Confronts the Use of “Fashionable” Correctness Review in McLean v British Columbia (Securities Commission)

Ever since the Supreme Court of Canada (“SCC”), in Dunsmuir v New Brunswick 2008 SCC 9, developed a “more coherent and workable” framework for judicial review of administrative decisions, lower courts have had difficulty applying the SCC’s standard of review analysis. Misapplication generally involves a lower court undertaking a correctness review where a reasonableness standard is required. To remedy this, the SCC has released a series of decisions clarifying the deference to be afforded to administrative actors. McLean v British Columbia (Securities Commission) 2013 SCC 67, released on 5 December 2013, is the most recent of these decisions. In it, the SCC clarified the presumption of deference given to tribunals when they are interpreting their home or a closely related statute. Read the rest of this entry »

[filed: Administrative Law]

SCC Clears the Air in Family Feud, Clarifies Tort of Unlawful Interference Too

Lillian Schelew and her four sons, Jeffrey, Michael, Bernard, and Alan, have been involved in residential real estate leasing since the 1970s. Jamb Enterprises Ltd. (“Jamb”) was owned by the four brothers equally, and Bram Enterprises Ltd. (“Bram”) was owned by four brothers equally with Lillian Schelew holding a separate class of preferred voting shares. Jamb and Bram each owned 40% of Joyce Avenue Apartments Ltd., with the remaining 20% being held by A.I. Enterprises Ltd. (“AI”). AI’s sole shareholder and director was one of the four sons, Alan, who managed the family’s rental buildings for a fee.

Joyce Avenue Apartments Ltd. owned a six-storey apartment building at 99 Joyce Avenue in Moncton, New Brunswick. In 2000, the Schelew family wanted to sell the apartment, appraised at $2.2 million – however, Alan Schelew did not.

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[filed: Class proceedings Commercial Law Property Law Torts]

A Very Long Limitation Period for Unjust Enrichment Claims in McConnell v Huxtable

Statutes of limitations are intended to add clarity to the litigation process but, ironically, sometimes have the opposite effect. Ontario’s Limitations Act, 2002, SO 2002, c 24, Sch B (the “Limitations Act“), was meant to reduce the multitude of different limitation periods with the aim of having a two-year limitation on most types of actions. However, the Limitations Act remains riddled with exceptions — most notably, the limitation periods set out in a long list of other statutes are allowed to prevail over those in the Limitations Act.

The case of McConnell v Huxtable, 2014 ONCA 86 (“McConnell“), reveals one more unexpected gap in the limitations law. This case will be of particular significance for individuals in a common law relationship, because these individuals often bring claims for unjust enrichment. The Ontario Court of Appeal has decided that the limitation period for such claims when they involve real property is not the standard two years but is, instead, ten years. Such a claim could thus come as an unpleasant surprise long after a relationship is over and all but forgotten. Read the rest of this entry »

[filed: Civil Procedure Family Law Property Law Real Estate]

Metadata and the Fourth Amendment

The American National Security Agency’s (NSA) bulk metadata collection program has been the subject of considerable scrutiny ever since The Guardian revealed the program’s existence last summer as part of its reporting on leaks from former NSA contractor Edward Snowden. Perhaps the most salient legal issue regarding the metadata program is whether it violates the U.S. Constitution’s Fourth Amendment. Two recent federal district court decisions—Klayman v. Obama and American Civil Liberties Union v. Clapper—have reached conflicting conclusions on this point.

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[filed: Constitutional Law Privacy Telecommunications Uncategorized]

Constructive Murder Committed on 18th Birthday: Conviction Upheld and Law Clarified in R v White

In a particularly lengthy decision, the Ontario Court of Appeal (ONCA) dismissed the appeal of a conviction for first degree murder in R v White, 2014 ONCA 64. The appellant and two co-accused were convicted in 2009 for the tragic 2007 stabbing death of Brampton youth, Akila Badhanage. On appeal, the appellant White raised three primary issues:

  1. That he was actually a youth at the time of the offence and was erroneously tried as an adult
  2. That the trial judge erred in his instructions to the jury on particular elements of the offence, and
  3. That the trial judge erroneously overemphasized inculpatory evidence while underemphasizing exculpatory evidence, which undermined White’s defence before the jury.

The ONCA held that none of the grounds for appeal were sufficient to overturn the verdict of constructive first degree murder, affirming the conviction rendered by jury in the Superior Court.

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[filed: Criminal Code Criminal Law Criminal Procedure]