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What the Pandemic Has Taught Us About Law: Part 2

In my last Slaw post (January 12, 2021), the first of two parts, I discussed the characteristics necessary for law to be accepted and effective. Here I consider some of the laws — the legislation, the regulations, orders and, although not law, intended to have a similar impact, advice or recommendations — that have been imposed during the pandemic. I’m focusing on Ontario, although I refer to developments elsewhere. Even so, my discussion is not meant to be exhaustive, but to illustrate laws ena...
Tags: Justice, Law, Australia, Washington Post, Court, Toronto, Walmart, Taiwan, Canada, Atlantic, New Brunswick, United States, New Zealand, World Health Organization, Montreal, Kent


Alcoholic Employee Accommodated to the Limit of Undue Hardship

By Daniel Standing LL.B., Editor, First Reference Inc. The recent New Brunswick labour arbitration decision in Unifor, Local 907 and J.B. v Irving Paper Limited, 2020 CanLII 38613 (NB LA) tells the unfortunate tale of an alcoholic’s losing battle to overcome his addiction and losing his job in the process. The decision provides helpful insights into how far an employer can or should go in accommodating this disability. The decision will be of particular interest to employers who operate safety-...
Tags: Law, New Brunswick, Irving, Daniel, Supreme Court of Canada, Substantive Law: Judicial Decisions, Case Comment, Substantive Law, J B, Editor First Reference Inc, NB LA, Irving Paper


Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about. For this last week: 1. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [1] This appeal and its companion cases (see Bell Canada v. Canada (Attorney General), 2019 SCC 66 (CanLII)), provide this Court with an opportunity to re-examine its approach to judicial review of administrative de...
Tags: Law, Immigration, Court, Canada, New Brunswick, Alberta, Dunsmuir, MacLean, SCC, Bell Canada, Wednesday: What's Hot on CanLII, Ontario Inc, Pet Valu Canada Inc, ABQB, Imperial Tobacco Canada, Altius Royalty Corporation


Is It Time to Regulate Collaborative Practice?

Collaborative practice is a dispute resolution process that is primarily used in family law, and it is currently unregulated in Canada. The forthcoming amendments to the Divorce Act include collaborative practice as a “family dispute resolution process” that a lawyer ought to “encourage” her client to consider, where “appropriate”. This suggests to me that a process that has for the last 30 years has been largely community-based, has finally come into its own – into the federal scope of the Divo...
Tags: Minnesota, Law, California, US, Toronto, Canada, New Brunswick, Court of appeal, Department Of Justice, Alberta, Legal Ethics, Ucla, Cpc, Cfl, Ontario, Webb


Top Ten Accessed Cases on CanLII From 2020

Reaching December means that it’s time to look at the year in review and share what most interested you in the preceding twelve months through the lens of what court decisions you were all reading. 2020 feels like it’s been a year like no other, but there are things that have been constant and Canadians accessing case law via CanLII has been one of them. That said, there are four current cases on the top ten list this year, compared to three in 2019, and none in 2018. It seems this is because of...
Tags: Law, Canada, New Brunswick, Jordan, Announcements, Dunsmuir, Wright, Sullivan, Uber Technologies Inc, R, SCC, Heller, Sharma, Araya, Ribeiro, Friesen


Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about. For this last week: 1. R. v. Doering, 2020 ONSC 5618 (CanLII) [48] The value of human life and the corresponding right of citizens to protection from harm, are entitlements attaching to all citizens, including those who suffer personal challenges, such as drug addiction. I acknowledge, as I did in my reasons f...
Tags: Law, Court, Canada, New Brunswick, Dunsmuir, R, FCA Canada, Doering, Wednesday: What's Hot on CanLII, Maginnis, QCCDPHA, Magnaye


When Law Doesn’t Work: Outlier Theory

When I was articling, eons ago, I came across a judge who smoked in court, made off-hand comments affecting his decisions without any evidentiary basis (“everyone knows what a second hand Lincoln costs”) and made sexist comments towards me (“bring this young lady into my chambers”). He was well-known in the particular legal community (I was merely “visiting” on a discovery issue) and no one thought there was a way to contain him. Indeed, as I sat in the courtroom waiting my turn, I was warned ab...
Tags: Law, Miscellaneous, Toronto, New Brunswick, Hillary Clinton, United States, Lincoln, Donald Trump, Cbc, Trump, Merriam Webster, Electoral College, Judicial Council Few


The ATA in the Age of Vavilov

Eight months and a pandemic ago, the Supreme Court of Canada released the Vavilov trilogy (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65). While Vavilov may have introduced a significant change in how the standard of revie is determined, it confirmed that there remain only two standards: correctness and reasonableness. However, in British Columbia, the third standard of reasonableness simpliciter remains fossilized through the provisions of the Administrative Tribunals...
Tags: Law, Immigration, Canada, New Brunswick, British Columbia, Administrative Law, Guevara, Louie, Dunsmuir, Unifor, Supreme Court of Canada, Patton, New Caledonia, Fla, ATA, RJR


Sexagenarian Firefighter Forced to Hang Up Hose

Written by Daniel Standing LL.B., Editor, First Reference Inc. In many cases, the choice of when to retire is based on a variety of factors, including lifestyle, priorities and other circumstances. Sometimes the decision to stop working is an easy one, while others prefer to continue working as long as possible. But what happens when an employee’s retirement is not a choice but is a requirement of his or her pension plan? Is it discriminatory? This issue came before the Human Rights Tribunal of...
Tags: Supreme Court, Law, Canada, New Brunswick, Employment law, Age Discrimination, British Columbia, Edward, Alberta, Calgary, Tribunal, Potash, Manitoba, Nilsson, Daniel, Aziz


“You… Are Your Brothers’ and Sisters’ Keepers”: Now Is the Time to Move From Words to Deeds

Reflections on the 19 June 2020 UN Human Rights Council resolution on systemic racism, police brutality, and unlawful suppression of peaceful protest. “Black Lives Matter. Indigenous Lives Matter. The lives of people of colour matter.” – Michelle Bachelet, UN High Commissioner for Human Rights, 17 June 2020 The brutal torture and murder of an unarmed Black man, George Floyd, in the United States (US) on 25 May 2020 has sparked global outrage about systemic racism and impunity for police violence...
Tags: Minnesota, Law, Time, US, Toronto, America, First Nations, Canada, New Brunswick, Aclu, United Nations, Un, Indigenous Peoples, Council, British Columbia, Alberta


The Constitutionality of Interprovincial Boundary Closures (Part III)

This is the third and final post in a series considering the constitutionality of intraprovincial/territorial border closures. In Part I, I set out the background to the closures, with a summary of which provinces had closed their borders to travellers from other provinces/territories and those implementing other non-closure procedures. In Part II, I considered the constitutionality of the closure provisions (including the federal closure of Canadian borders) under sections 6 and 7 of the Canadi...
Tags: Law, Canada, New Brunswick, Newfoundland, Nova Scotia, Quebec, Alberta, Saskatchewan, Ontario, Morrisey, Labrador, Charron, Government of Canada, PHA, Global News, Substantive Law


The Constitutionality of Interprovincial Boundary Closures (Part II)

INTRODUCTION In my post last week, I blogged the background to an analysis of constitutional challenges to interprovincial border closures. I briefly referred to the Supreme Court of Canada’s decision in Comeau, which considered the constitutionality of barriers to interprovincial trade represented by section 134 of the New Brunswick Liquor Control Act limitations on the amount of liquor and beer that someone could bring into New Brunswick from another province. I also set out some of the border...
Tags: Law, Court, US, First Nations, Canada, New Brunswick, Newfoundland, Nova Scotia, Bill, Quebec, British Columbia, Alberta, Columbia, Rand, Nb, Saskatchewan


The Constitutionality of Interprovincial/Territorial Boundary Closures (Part I)

Efforts to respond to and get under control the coronavirus pandemic have led to government actions that many people would be unlikely to accept in less dire times. Many of these have been at the provincial and municipal levels with emergency measures that have restricted a wide range of business, social and recreational activities that we had previously taken for granted. Another set of restrictions have been in relation to whether we can visit other provinces. Some provinces closed their bound...
Tags: Supreme Court, Law, Miscellaneous, Toronto, Canada, New Brunswick, Newfoundland, Court of appeal, Nova Scotia, Quebec, British Columbia, Alberta, Northwest Territories, Ontario, RCMP, LCA


Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about. For this last week: 1. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [1] This appeal and its companion cases (see Bell Canada v. Canada (Attorney General), 2019 SCC 66 (CanLII)), provide this Court with an opportunity to re-examine its approach to judicial review of administrative de...
Tags: Law, Immigration, Court, Canada, New Brunswick, Elle, Dunsmuir, SCC, Jonsson, Bell Canada, Wednesday: What's Hot on CanLII, Lymer, Snooks, Ontario Nurses Association, Eatonville Henley Place


Reopening Society: Thoughts on Some Legal Questions

Yesterday (April 27, 2020), the Ford government released “A Framework for Reopening our Province“, a three-stage process that is likely to be applicable until a vaccine is available. The Framework is based on some important principles and it includes on-going reassessment and review to ensure the spread of COVID-19 has not recurred. With this Framework in mind, as well as steps already taken elsewhere, it is worth considering the kinds of legal questions that might arise as we seek to reopen our...
Tags: Law, Miscellaneous, Canada, New Brunswick, Ford, Bill, Quebec, Paramount, Saskatchewan, Ontario, Globalnews, Ontario Nurses Association, COVID, Canada Emergency Response Benefit CERB, Now Transport Canada


The Coronavirus Pandemic and Access to Justice

Slightly over 20 years ago, the Supreme Court of Canada upheld a self-initiated injunction by the Chief Justice of British Columbia to prevent picketing in front of the courthouses in British Columbia; B.C.G.E.U. v. British Columbia (Attorney General). As Dickson CJ said in his opening statement in the majority decision, “This case involves the fundamental right of every Canadian citizen to have unimpeded access to the courts and the authority of the courts to protect and defend that constitutio...
Tags: Supreme Court, Law, Court, Canada, New Brunswick, Ford, Newfoundland, Court of appeal, Vancouver, Nova Scotia, British Columbia, Ontario, Manitoba, Yukon, Federal Court, Superior Court


Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about. For this last week: 1. Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74 [21] For reasons explained in detail below, the regulation of GHG emissions or any variation on this theme does not qualify for inclusion as a federal head of power under the national concern doctrine. Assigning this Act or ...
Tags: Law, Immigration, Court, Canada, New Brunswick, Parliament, CSC, Anderson, Dunsmuir, Ron, SCC, Legislatures, Bell Canada, Wednesday: What's Hot on CanLII, Semeniuk


Brief Guide to Western and Atlantic Employment Law Changes in 2020

2020 promises to be a busy year in Western and Atlantic provinces with a variety of legislative and regulatory changes impacting employers in various ways. In this article, we provide employers with an overview of some of the key changes that have been announced in Western and Atlantic to assist in compliance. We also mention some changes that employers should anticipate being made in the coming year. 1. Alberta Farm Freedom and Safety Act This year, various changes affect farming and ranching...
Tags: Law, Minimum Wage, Accessibility, Canada, Atlantic, New Brunswick, Labour, Commission, Newfoundland, Nova Scotia, Bill, Payroll, British Columbia, Edward, Alberta, Columbia


If the Groundhog Sees Its Shadow… Will There Be Six More Years of Discussion of Standard of Review?

I have never cared for American football and have never watched a Super Bowl. My only interest is in the commercials produced for the American broadcast, which for the last many years I simply watch on line the day after the game. So for me, the matter that gave rise to the decision in dispute in Bell Canada v. Canada (Attorney General), 2019 SCC 66 (“Bell”) is not really important to me. One of the best commercials that aired during Super Bowl LIV involved Bill Murray reprising his role as weat...
Tags: Law, Immigration, Canada, New Brunswick, Bill Murray, National Football League, Administrative Law, Bell, Dunsmuir, Abella, Bank of Montreal, Canadian Radio, Telecommunications Commission, SCC, Bell Canada, Phil Connors


The Wondrous World of Creating Constitutional Law

Senator Mike Duffy is suing the Senate for the pay he lost when he was suspended from the Senate. His lawsuit raises the constitutional issue of parliamentary immunity, on the basis of which Justice Sally Gomery of the Ontario Superior Court dismissed his claim. Duffy’s appeal is based on the loss of Senate immunity if it has engaged in wrongdoing, as the Senate did, he says, in taking its direction from the executive (Prime Minister Stephen Harper). (For this story, see The National Post). For ...
Tags: Supreme Court, Law, Senate, Court, Miscellaneous, General Motors, Canada, New Brunswick, Labour, Stephen Harper, North America, Quebec, Manitoba, Snider, RCMP, National Post


Applying Vavilov: Canada Post and Health and Safety

The majority of the Supreme Court of Canada in Canada Post Corp. v. Canadian Union of Postal Workers applied its recently created new administrative law framework in Canada (Minister of Citizenship and Immigration) v. Vavilov to uphold the Occupational Health and Safety Tribunal Canada’s decision that Canada Post had not contravened the federal health and safety provisions in the Canada Labour Code, thus rescinding the health and safety officer’s determination of a contravention. The dissent, ho...
Tags: Supreme Court, Law, Russia, Immigration, Court, Western, Fbi, Canada, New Brunswick, United States, Tribunal, Canada Post, Ontario, Federal Court, Burlington, Dunsmuir


Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about. For this last week: 1. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [1] This appeal and its companion cases (see Bell Canada v. Canada (Attorney General), 2019 SCC 66 (CanLII)), provide this Court with an opportunity to re-examine its approach to judicial review of administrative de...
Tags: Law, Immigration, Court, Canada, New Brunswick, Canada Post, Federal Court, Dunsmuir, SCC, CRTC, Bell Canada, Wednesday: What's Hot on CanLII, Vavilov, Canada Post Corporation, Canadian Union of Postal, Canada Post Corp


Oaths, Affirmations and Eagle Feathers

The front page story in The Globe and Mail a day or two ago about the option of using eagle feathers in swearing oaths or making affirmation in courts in Alberta, where they have been available for some time now, got me thinking about the process of swearing or affirming before testifying in court more generally. The rules around swearing oaths and affirming seem simple: the purpose is to bring home to the witness the importance of telling the truth. For some people, it is necessary to do that ...
Tags: Law, Scotland, Miscellaneous, Canada, New Brunswick, Ireland, Nova Scotia, Globe, Alberta, Columbia, Ottawa, Ontario, Gordon, Prince Edward Island, U S 9th Circuit Court of Appeals, Alberta Law Reform Institute


A Look at Alberta’s Private Member’s Bill on Conscience Rights for Doctors

Commentators on private member’s Bill 207, Conscience Rights (Health Care Providers) Protection Act, introduced in the Alberta Legislative Assembly on November 7, 2019, have disagreed about whether it is different from the current system in Alberta. Here I consider the extent to which it would be different from the current requirements of the College of Physicians and Surgeons of Alberta (CPSA). I also consider how it would give doctors (and other health professionals) the greatest freedom in C...
Tags: Law, Canada, New Brunswick, Bill, British Columbia, Alberta, Saskatchewan, Ontario, Manitoba, Canadian Medical Association, Substantive Law: Legislation, CPSA, College of Physicians, Ontario College, Alberta New Brunswick, Alberta Legislative Assembly


Challenges to Mandatory Vaccinations: Further Thoughts

Just as the Toronto medical officer of health called for limiting the exemptions to Ontario’s mandatory vaccine regime for school children to only one, on medical grounds (although this has not been received positively by the provincial health minister), Vaccine Choice Canada and five mothers have challenged the requirement that in order to attend public school, children must receive vaccinations. The Immunization of School Pupils Act already includes grounds for exemption for medical, religio...
Tags: Supreme Court, Law, California, Court, US, Toronto, Los Angeles, Canada, New Brunswick, Bill, Smith, Quebec, New York State, Ontario, Cbc, Board


Can a Relationship With a Subordinate Be Cause for Dismissal?

The New Brunswick Court of Queen’s Bench recently considered if and when a workplace romance could lead to just cause for dismissal. Quick facts The employee was a regional manager for New Brunswick and had been employed by the employer since at least 2002. He was dismissed in May 2017 when the employer became aware that the employee was involved in a sexual relationship with another employee whom he supervised and had failed to report the relationship, as required by policy. Prior to the dism...
Tags: Law, Court, New Brunswick, Court of appeal, Employment law, Office Romance, Robert Smithson, Dismissal, Henry, Practice Of Law, Substantive Law: Judicial Decisions, Case Comment, Practice of Law: Practice Management, Substantive Law, Sexual Relationship, Just Cause For Dismissal


Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about. For this last week: 1. Dunsmuir v. New Brunswick, 2008 SCC 9 [1] This appeal calls on the Court to consider, once again, the troubling question of the approach to be taken in judicial review of decisions of administrative tribunals. The recent history of judicial review in Canada has been marked by ebbs and fl...
Tags: Law, Court, Canada, New Brunswick, Elle, Baker, Piazza, Dunsmuir, Groves, R, Quansah, Wednesday: What's Hot on CanLII, Rossman, UTS, SCR, Canadian Solar Inc


Construction Law Reform Across Canada: Prompt Payment and Adjudication

Construction law is being reformed at the federal and provincial levels across Canada. The changes will have wide-ranging impacts across the construction sector and related industries. Among the changes are “prompt payment” reforms that impose legislated payment deadlines on private and public construction contracts, as well as a new fast-track private dispute resolution regime called “adjudication.” Any lawyer with clients in the construction supply chain ought to take careful note to avoid bei...
Tags: Law, Miscellaneous, Canada, New Brunswick, United States, United Kingdom, Bill, Quebec, Columbia, Saskatchewan, Ontario, Manitoba, Practice Of Law, Given Statistics Canada, Bill M223


Whither English-Canada Law Schools?

Ryerson University in Toronto recently announced that its new law program will allow students to include what would otherwise be post-graduate training as part of their law school stage of legal education (or perhaps more accurately, avoid training after graduation). The school’s curriculum will adopt the Integrated Practice Curriculum (IPC) concept. This follows the same design as that of the Bora Laskin Faculty of Law at Lakehead University in Thunder Bay. Ryerson’s decision, coupled with that...
Tags: Law, Toronto, New Brunswick, British Columbia, ICP, Ontario, University Of Alberta, University of Ottawa, Ryerson, Law Society, Thunder Bay, Lakehead, IPC, LLP, University of New Brunswick, Ryerson University


Monday’s Mix

Each Monday we present brief excerpts of recent posts from five of Canada’s award­-winning legal blogs chosen at random* from more than 80 recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible. This week the randomly selected blogs are 1. Employment & Human Rights Law in Canada 2. Global Workplace Insider 3. Avoid a Claim 4. McElroy Law Blog 5. Timely Disclosure Employment & Human Rights Law in Canada Sexual Harassment in t...
Tags: Law, Canada, New Brunswick, EEOC, Doug Ford, U S Equal Employment Opportunity Commission EEOC, Monday’s Mix, McElroy Law Blog, Global Workplace Insider, Erin Durant, New EEOC, Eddie Barrington, Sherif Foda



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