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Thursday Thinkpiece: Laws of the Constitution–Consolidated

Periodically on Thursdays, we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form. Laws of the Constitution: Consolidated Author: Donald F. Bur ISBN: 978-1-77212-490-3 Publisher: University of Alberta Press Page Count: 960 Publication Date: November 2020 Regular Price: $250.00 (hardback)...
Tags: Law, Time, Toronto, Canada, United Kingdom, Parliament, Department Of Justice, North America, Carswell, Quebec, Kennedy, Ottawa, Ontario, Donald, UK Canada, Oxford University Press

Not Everyone’s Lawyer?

Should law societies impose gender or age-based restrictions on a lawyer’s practice? Stated otherwise, is it appropriate to permit a lawyer to continue to practice on conditions that restrict their interaction with women (or men) or minors? For the reasons that follow, I believe that the answer to both of these questions is “no”. The issue of practice restrictions of this sort first caught my attention several years ago when a Connecticut lawyer received a lifetime ban on representing women. Thi...
Tags: Law, Star, Connecticut, Facetime, Legal Ethics, Ontario, Manitoba, Toronto Star, Law Society of Manitoba, College of Physicians, Legal Aid Manitoba, Manitoba Law, Manitoba Justice Justice Canada

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.  2. David Whelan 3. Canadian Appeals Monitor 4. BC Injury Law Blog 5. Ontario Condo Law Blog Crossroad Family Law Blog What exactly is the role of a legal assistant or paralegal...
Tags: Law, Canada, Ontario, Simpson, Jessie, Lozano, TSCC, Monday’s Mix, David Whelan, BC Injury Law Blog, BC Supreme Court Kamloops Registry, Teichrieb

There Ought to Be a Law: Vaccine Queue Jumping

As coronavirus vaccines have begun to be available, we have seen several incidents of people “jumping the queue” and obtaining vaccines for which they are not eligible. Eventually, this should not be a problem, but now, when vaccines are scarce, it has been important to prioritize who is to be vaccinated in the first and next groups. Although different in different provinces (since vaccine distribution is a provincial matter), these groups have generally included residents and staff in long-term...
Tags: Law, Miscellaneous, ABCNews, Columbia, Ottawa, Ndp, Ontario, Cbc, Yukon, Woodbridge, National Post, White River, Whitehorse, Barrie, Beaver Creek, Ottawa Public Health

Justice Delayed and Denied in Ontario’s Tribunals

Widespread distrust of government helped Donald Trump bring the United States to its knees. Only 17% of Americans trusted the federal government to do the right thing most of the time in 2019, down from over 70% in the 1960s. People who lack any confidence in government tend to be receptive to anti-government populist messages. The best way to preserve public trust in government is to ensure, as much as possible, that government acts in a trustworthy way. What does this have to do with Ontario’s...
Tags: Law, United States, Donald Trump, British Columbia, Legal Ethics, Ontario, Doug Ford, CRT, Human Rights Tribunal, Tenant Board, Civil Resolution Tribunal CRT, Across, Tribunal Watch Ontario, Social Benefits Tribunal, PC Party of Ontario Covid, Advocacy Centre for Tenants Ontario

For Crying Out for a Remedy

Lawyers tend to get excited when the courts create a new tort, and for good reason. The judiciary is reluctant to instigate such reform to the common law absent compelling facts, and a strong societal need for them to do so. In Seneca College v. Bhadauria, the Court of Appeal found that a cause of action existed for the tort of discrimination, on the basis that the Ontario Human Rights Code, 18 I regard the preamble to the Code as evidencing what is now, and probably has been for some consid...
Tags: Law, Court, Toronto, Canada, Commission, Court of appeal, Rivers, Tribunal, Ontario, Ward, Legislature, Boucher, Aziz, RCMP, Supreme Court of Canada, Caplan

California Dreamin’: Cognitive Dissonance and the Tar Pits

07 February 2021Ontario, California Yon-Genre Mind-dump, sans edit This is not my first trip to California. I’ve been here many times, including going to school here twice, and having studied and moved in with a cult related to a cannibal cult I tracked down in India. The first school I attended in California was Defense Language Institute at the Presidio of San Francisco. Many people will say this is wrong, and that the Presidio was in Monterey. Main campus was Monterey while overflow f...
Tags: Japan, Featured, Yosemite, California, Steve Jobs, Iraq, India, Africa, George Harrison, America, Los Angeles, San Francisco, Fbi, Afghanistan, Military, Glendale

Summaries Sunday: Supreme Advocacy

One Sunday each month we bring you a summary from Supreme Advocacy LLP of recent decisions at the Supreme Court of Canada. Supreme Advocacy LLP offers a weekly electronic newsletter, Supreme Advocacy Letter, to which you may subscribe. It’s a summary of all Appeals, Oral Judgments and Leaves to Appeal granted from January 1 – February 5, 2021 inclusive. Appeals Contracts: Duty to Exercise Contractual Discretion Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2019 B...
Tags: Justice, Law, Court, Roy, Court of appeal, Jordan, Alberta, Ontario, Brown, Ward, Richardson, Abella, Russell, Waterman, Cowan, Rowe

Is It Time to Rethink Lawyer Licensing, Including the Bar Exam in Ontario?

In an article by, Pilar Escontrias proclaims “It’s time to see the bar exam for what it truly is: the relic of a racist club.” The bar exam in the United States has a “sordid history as one of the many racialized gatekeeping mechanisms into the practice of law. The legal profession was a virtually unregulated, open field of practice for generations until immigrants, Black, and Jewish people started applying for bar admission in the late 19th century”. Suddenly the bar exam emerged. One...
Tags: Utah, Technology, Law, California, Harvard, United States, Fca, States, American Bar Association, Aba, Ontario, Licensing, Shepherd, Abraham Lincoln, Jordan Furlong, Practice Of Law

The Washington January 6, 2021 Insurrection, and Racism in Canada

The riotous insurrection at the Washington Capitol building on January 6th is a good example of this truth: “The strength of a nation’s rights, freedoms and rule of law lies not in its Constitution but in its politics.” On January 27, 2021, the U.S. Department or Homeland Security issued a “National Terrorism Advisory System (NTAS) Bulletin,” warning of, “a heightened threat environment across the United States,” and, “violent riots have continued in recent days,” and, “ideologically-motivated a...
Tags: Japan, Law, France, China, Russia, Toronto, America, Canada, United States, House Of Commons, Homeland Security, Vancouver, Parliament, North America, Montreal, Biden

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. Law School Life & Beyond 2. First Reference 3. 4. The Trauma-Informed Lawyer 5. Sane Split Podcast Law School Life & Beyond 3 Takeaways From My First Semester of Law School Befor...
Tags: Law, Canada, Ontario, Monday’s Mix, Kim Wright Helgi Maki Marjorie Florestal, American Bar Association Law Practice Management

Videoconferencing Technologies and How It Challenges the Fundamental Tenets of Our Criminal Justice System in Canada

Since the onset of COVID-19 and the requirements for physical distancing, the Canadian court system has been criticized for being archaic, outdated, out of touch with the modern era and too deeply traditional. Most commentators have vigorously pushed for our criminal courts to utilize videoconferencing technologies to deliver justice – arguing that using videoconferencing technology platforms to conduct court business will be more beneficial to Canadians, ease the growing backlog of cases, reduc...
Tags: Florida, UK, England, Texas, Law, Wales, California, US, Canada, Missouri, Smith, Criminal Justice, Legal Technology, Ontario, Walsh, Moore

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. Canadian Broadcasting Corporation v Canadian Media Guild, 2021 CanLII 761 (CA LA) While violating an employer policy may be grounds for discipline, expressing disagreement with a policy is not. I fail to see any basis for discipline in this message, and I agree with the union that if emp...
Tags: Law, Ontario, Supreme Court of Canada, Ingles, Canadian Broadcasting Corporation, Wednesday: What's Hot on CanLII, Campeau, Montigny, Costco Wholesale Canada Ltd, Canadian Media Guild, Waksdale, Swegon North America Inc, Tutkaluk Construction Ltd, Brossard Succession

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

Why Do We Regulate Lawyers?

This is my first legal ethics column for Slaw. I am delighted and honoured to be taking the place of my former colleague, mentor, and all-around legal ethics and regulation rock star, Malcolm Mercer, who recently assumed the role of Chair of Ontario’s Law Society Tribunal. In the coming months and beyond, I look forward to using this space to consider rules of professional conduct and discipline; governance issues in lawyer regulation; legal education and training; and the future of legal servic...
Tags: Law, Society, Alberta, Legal Ethics, Columbia, Saskatchewan, Ontario, Law Society, Malcolm, Gillian Hadfield, Alice Woolley, Malcolm Mercer, Lisa Trabucco, Ontario The Society, Michael J Trebilcock, Professional Organization Committee Ministry

New Frontier of Legal Innovation – Regulatory Legal Innovation Sandboxes

2020 has seen an adoption of legal technology and legal innovation, however, one of the more surprising developments are legal regulatory sandboxes, introduced first in the state of Utah in the United States and now in Canada, by the Law Society of British Columbia. The regulatory sandbox model allows for the experimentation of new alternative business models, including non-lawyer ownership and fee sharing, in a controlled environment under the regulator’s supervision. The Utah Supreme Court two...
Tags: Utah, UK, Supreme Court, Law, Canada, United States, Arizona, North America, Legal Technology, Ontario, Morrison, Arizona Supreme Court, Law Society, Utah Supreme Court, Law Society of British Columbia, Law Society of Ontario

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

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. C.M. Callow Inc. v. Zollinger, 2020 SCC 45 (CanLII) [197] The requirement that parties not lie is straightforward. But what kind of conduct is covered by the requirement that they not otherwise knowingly mislead each other? Absent a duty to disclose, it is far from obvious when exactly o...
Tags: Law, Court, Canada, Babcock, Quebec, Alberta, Ontario, Wednesday: What's Hot on CanLII, Bhasin, Callow Inc, Bhasin Check, Hudson 's Bay Company ULC, Rebecca Marie Ingram, Erin Blacklaws, Torry Tanner

Taking Mental Health Seriously: A Review of the American National Judicial Stress and Resiliency Survey

It was recently reported in the Law Times that lawyers’ mental health is worsening during the pandemic. Similarly, the American Bar Association released a study (conducted pre-pandemic) showing that judges are experiencing severe stress. The National Judicial Stress and Resiliency Survey showed that: almost 4 out of 10 judges reported stress from fatigue and low energy. 1 in 5 judges met at least 1 criteria for depressive disorder (such as not having initiative, preoccupation with negative thou...
Tags: Law, Mental Health, American Bar Association, Ontario, CAMH, Practice Of Law, Law Times, Member Assistance Program, Tommy Raskin, Judicial Stress, Lawyer Assistance Program, Mental Health Of Judges, American National Judicial Stress, National Judicial Stress, Lawyer Assistance Programs, Aaron Dantowitz

How the Law Abandons Those Who Speak Up in the Public Interest

On December 3, my new report titled Whistleblowers Not Protected: How the Law Abandons Those Who Speak Up in the Public Interest in Alberta was published by the Parkland Institute. The report looks at whistleblowing in a broad sense, meaning anyone who either publicly or anonymously discloses information that is in the public interest. The report considers not only the gross deficiencies of Alberta’s whistleblower protection legislation but also looks at the need for both anti-SLAPP legislation,...
Tags: Law, US, Ched, Parliament, Alberta, Ontario, Cbc, Public Interest, Ryerson, Edmonton Journal, SNC Lavalin, Practice Of Law, Justice Issues, COVID, Tobaccogate, Our Supreme Court

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. Labour Pains 2. Mack’s Criminal Law Blog 3. Legal Post Blog 4. Canadian Combat Sports Law Blog 5. Pension & Benefits Law Labour Pains Top Three Cases of Importance to Ontario Emplo...
Tags: Law, Canada, Ufc, Ontario, Mack, R, Monday’s Mix, Labour Pains, Howard Levitt, WSIB, Rodgerson, Samuel Stellpflug

Defining Essential Travel During the Pandemic

Like most countries around the world, Canada introduced early travel restrictions during the COVID-19 pandemic. These restrictions are necessary to limit the spread of the virus, and become increasingly important as new strains are being identified and also being brought into Canada. In March 2020, the Canadian government began imposing restrictions on travel, initially to allow for citizens, permanent residents, international students on a valid study permit, ranting passengers, and temporary f...
Tags: Law, Court, Canada, Newfoundland, Nova Scotia, Taylor, Ontario, Board, United States of America, Labrador, The Board, Solis, HNC, Respondent, Government of Canada, Substantive Law: Judicial Decisions

Meaningful Access to Justice: What Is the Role for Tribunals and Adjudicators?

A review of “The Justice Crisis: The Cost and Value of Accessing Law”, Edited by Trevor C.W. Farrow and Lesley A. Jacobs (UBC Press, 2020) This recent book arises out of the research done by members of the Costs of Justice research project with a focus on the cost and affordability of justice in the civil and family law areas. The two main research questions in this project are: what is the cost of delivering an effective civil justice system; and, what are the economic and social costs of faili...
Tags: Law, Ontario, Jacobs, UBC, Farrow, McHale, Dispute Resolution, Noel Semple, David Wiseman, Trevor C W Farrow, Costs of Justice, Jerry McHale, Lesley A Jacobs

Doing the Two-Step on Uneven Platforms: Successes and Setbacks of Human Rights Advocacy

Human rights advocates are sometimes asked whether human rights advocacy works. Most human rights defenders answer in the form of anecdotes, because empirical research on effectiveness is scarce in a world where human rights advocates have limited resources and are increasingly in danger. This report reviews some 2020 successes and setbacks experienced by the pro bono advocates of Lawyers’ Rights Watch Canada (LRWC). The year 2021 will require renewed energy and resources for visionary and persi...
Tags: Law, Saudi Arabia, Court, Iran, Canada, Un, Solidarity, Ontario, University of British Columbia, United Nations UN, UN Committee, Raif Badawi, Samar Badawi, Waleed Abu Al Khair, Ensaf Haidar, UN Human Rights Council

Tips Tuesday

Here are excerpts from the most recent tips on SlawTips, the site that each week offers up useful advice, short and to the point, on practice, research, writing and technology. Research & Writing Terrible Transitions Neil Guthrie In an op-ed piece prompted by the Ontario government’s threatened invocation of the Charter’s ‘notwithstanding’ clause (s 33), Professor Lissa Paul of Brock University mused about the prevalence of similar ‘useless adverbs’ in student writing: ‘”Notwithstanding” and the...
Tags: Law, Ontario, Tips Tuesday, Neil Guthrie, Brock University, Lissa Paul

New Privacy Concerns With Deep Nudes

In the back pages of comic books, there was often a curious advertisement. One which purported to sell x-ray glasses, which would allow the user to see through things. Although first patented in 1906, these novelty items simply created an optical illusion and involved no x-rays at all. This didn’t prevent many young readers from purchasing, with the intent of being up to no good. Roger Luckhurst explains in “X-Ray Specs,” As anyone who spent a dollar (plus postage and packing) on mail order X-Ra...
Tags: Law, Congress, US, Canada, Jones, Ontario, UC Berkley, Prosser, Jack Hitt, Substantive Law: Judicial Decisions, Substantive Law: Legislation, Roger Luckhurst, Röntgen, Yenovkian, X Ray Spex, Kirstjanson

Employee Wins Historic Amount of Damages for Sexual Harassment and Workplace Discrimination

by Lewis Waring, Paralegal, Law Student, Editor, First Reference Inc. In NK v Botuik (“Botuik”), the Human Rights Tribunal of Ontario (HRTO) awarded a former employee $170,000.00 for sexual harassment and gender discrimination, the second-highest amount of damages ever awarded in Ontario. The employer, in this case, Alan Stewart Homes Limited, owned and operated a number of group homes that served individuals with significant disabilities. Tenants at the employer’s group homes were disabled suc...
Tags: Law, Disability, Employment law, Workplace Discrimination, Sexual Harassment, Ontario, Dismissal, NK, Substantive Law: Judicial Decisions, Case Comment, Substantive Law, Ontario Human Rights Code, HRTO, Human Rights Tribunal of Ontario HRTO, Lewis Waring, Botuik

Yours to Discover: The Lack of Evidence Supporting the Conclusions Reached by the LSO Paralegal Licensing Report

On June 26, 2020, the Law Society of Ontario (LSO) released the Family Legal Services Provider License Consultation Paper (FLSPL) for review and comment by the legal profession in Ontario. Prior to the release of the FLSPL the LSO had released the Ontario Civil Legal Needs Project Steering Committee’s Report to Convocation entitled “Listening to Ontarians”, which in May of 2010 reported to Convocation that the Committee had identified access to justice as a significant issue facing the public in...
Tags: Law, Oregon, Court, Canada, Committee, CBA, Ontario, CDR, Cleo, Supra, Boyd, Yasir Naqvi, LSO, Ontario Court, Justice Issues, Action Committee on Access to Justice

Callow, Fraser and G: Perspectives on the Role of Law and of the Courts

Three recent Supreme Court of Canada decisions illustrate the very different perspectives or philosophies the judges bring to their consideration of the cases before them. The most recent, CM Callow Inc. v. Zollinger, dealt with the duty of honest performance in contract law, while the other two were concerned with equality issues: Fraser v. Canada (Attorney General), which considered whether the RCMP pension plan discriminated against members (primarily women) who shared jobs, and Ontario (Atto...
Tags: Supreme Court, Law, Court, Canada, Court of appeal, Quebec, Ontario, Brown, RCMP, Abella, Supreme Court of Canada, Cote, Fraser, Rowe, SCC, Royal Commission

Mandatory COVID Testing Upheld in Retirement Home

The rights and obligations of workers and employers in the pandemic continue to raise new and novel issues. While many businesses encourage or require their staff to work from home, there are plenty of industries which still require work in-person, especially in deemed essential services (which differ based on jurisdiction). A particularly challenging area has been long-term care and retirement homes, where several outbreaks have been observed across the country. Not only do these facilities hav...
Tags: Law, Ontario, Supreme Court of Canada, Substantive Law: Judicial Decisions, Caressant Care Nursing Retirement Homes, Christian Labour Association of Canada, Retirement Homes Regulatory Authority, Irving Pulp Paper Ltd

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