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Civil Litigation


Wednesday, June 28, 2017 @ 8:56 AM

Recent decisions clarify exceptions to costs in estate litigation

For over 10 years, the position of costs in estate litigation has been clearly set out as a result of the Ontario Court of Appeal's decision in McDougald Estate v. Gooderham (McDougald). In that decision, Justice Eileen Gillese held that costs in estate litigation should follow the regular rules of civil litigation, where the unsuccessful party is responsible, in some degree, for the successful party's costs.  The only exception to this, pursuant to McDougald, are when public policy considerations are engaged. ... [read more]

Wednesday, June 28, 2017 @ 8:51 AM

TREATIES AND AGREEMENTS - Practice and procedure - Injunctions

Application by the plaintiff, the Blueberry River First Nations, for an interlocutory injunction. The plaintiff's underlying action alleged a breach of substantive Treaty 8 hunting rights and related fiduciary duties by the Province based on the cumulative effect of industrial development within the traditional lands. The plaintiff sought an injunction enjoining the Province from allowing further logging and oil and gas development, processing and transportation in critical segments of its traditional territory pending trial of the action. ... [read more]

Tuesday, June 27, 2017 @ 8:50 AM

The ongoing uncertainty of random drug and alcohol testing Random testing

Recent focus on drug testing in various sectors, particularly in transit, airlines and the nuclear industry, points to increased judicial and regulatory attention to this area. ... [read more]

Monday, June 26, 2017 @ 11:52 AM

NATURE OF BODY - Types - Boards, tribunals and commissions - Powers or function - Types - Judicial or quasi-judicial powers or function - Discretionary powers - Practice and procedure

Appeal by the Financial and Consumer Services Commission from a decision by the Financial and Consumer Services Tribunal staying proceedings involving the respondents, Emond and Drapeau. In June 2010, the Commission alleged the respondents promoted or participated in the sale of illegal investments contrary to the Securities Act. In December 2010, the Commission issued a notice of hearing for April 2011. However, six years elapsed between the date on which the allegations were filed and the scheduled date of the hearing before the Tribunal in May 2016. Following submissions on the preliminary issue of delay, the Tribunal ordered a stay of proceedings. The Tribunal ruled that it had lost jurisdiction by reason of delay. The Commission appealed. ... [read more]

Monday, June 26, 2017 @ 9:12 AM

Will Toronto’s new trial sitting pilot project stand the test?

With significant trial delays as the norm and access to justice a real concern, the recent announcement that the Toronto region will be operating under a new jury trial sitting pilot program is welcome news to many. ... [read more]

Friday, June 23, 2017 @ 2:58 PM

JURISDICTION - Determination of - Exclusion of - By contract

Appeal by Douez from a judgment of the British Columbia Court of Appeal. Douez was a resident of British Columbia and a member of, one of the world’s leading social networks. The respondent, Facebook Inc. (Facebook), was an American corporation headquartered in California which operated and generated most of its revenues from advertising. Douez claimed that Facebook infringed her privacy rights by using her name and profile without her consent in one of its “Sponsored Stories”, a product it had developed to advertise companies and products to other members on the site and externally. In her action, Douez alleged that Facebook contravened s. 3(2) of the British Columbia Privacy Act (PA) by using her name and likeness without her consent. Douez also sought certification of her action as a class proceeding under the British Columbia Class Proceedings Act. The proposed class included all British Columbia residents who had their name or picture used in Sponsored Stories. The estimated size of the class was 1.8 million people. Facebook sought to have the action stayed on the basis of the forum selection clause contained in its terms of use, which every user was required to click to accept upon registering as a member of the site. This clause indicated that any disputes were to be resolved in California according to California law. The chambers judge refused to stay the action, concluding that s. 4 of the PA, which provided that actions under the PA must be heard in the Supreme Court of British Columbia, overrode the forum selection clause, and that the PA provided strong reasons not to enforce it. The Court of Appeal reversed that decision, concluding instead that the clause was enforceable and that Douez had failed to show strong cause not to enforce it. On appeal, the respondent did not dispute that British Columbia courts had territorial jurisdiction. The main issue was whether Douez’s action should be stayed on the basis of the forum selection clause contained in Facebook’s terms of use. The parties also disagreed on whether the analysis of forum selection clauses should be subsumed under s. 11 of the Court Jurisdiction and Proceedings Transfer Act (CJPTA), or whether they were distinct concepts. ... [read more]

Friday, June 23, 2017 @ 11:30 AM

Updated: SCC greenlights class action against Facebook in major private international law ruling Luciana Brasil

In a groundbreaking private international law (PIL) judgment of global interest, the Supreme Court of Canada has split 4-3 to override Facebook’s forum selection clause — thus reviving a privacy class action on behalf of 1.8 million Facebook users in British Columbia against the U.S. social media giant. ... [read more]

Friday, June 23, 2017 @ 9:10 AM

Ontario court clarifies reasonable foreseeability of death in medically assisted dying law Andrew Faith

An ambiguous section of Canada’s medically assisted dying law has been clarified by Ontario’s Superior Court of Justice, which found that the death of an elderly woman suffering extreme pain from an advanced and incurable disease is reasonably foreseeable. ... [read more]

Friday, June 23, 2017 @ 8:54 AM

One solution to civil trial bottleneck: The Rocket Docket Riding a rocket

In Ontario, particularly in Toronto and elsewhere in Canada, the availability of trial dates for civil trials of any complexity is in a crisis state, worsened by the recent Supreme Court of Canada decision in Regina v. Jordan. Judicial resources that would otherwise have been available for civil trials are being directed to the criminal side to meet the time requirements laid down in Jordan. ... [read more]

Friday, June 23, 2017 @ 8:48 AM

JUDGES - Complaints against - Judicial councils

Appeal by Justice Newbould from the dismissal of his motion to stay a decision of the Judicial Conduct Review Panel, constituting an Inquiry Committee to inquire into his conduct. In 2014, the Canadian Judicial Council (CJC) received complaints about Newbould’s involvement in a public controversy about an aboriginal land claim in the vicinity of a cottage property. The chairperson of the CJC’s Judicial Conduct Committee reviewed the complaints and closed the file. One of the complainants, the Indigenous Bar Association, requested a reconsideration of the chair’s decision. Upon reconsideration, the matter was forwarded to a Review Panel to determine whether an Inquiry Committee should be constituted. Newbould provided submissions to the Review Panel. Before the Review Panel advised him of its decision, Newbould wrote to the Minister of Justice resigning from his office as judge effective June 1, 2017. The Review Panel’s decision, issued in February 2017, recognized the CJC’s jurisdiction to reopen the complaint, and constituted an Inquiry Committee. Newbould applied for judicial review, seeking a declaration that the CJC lacked jurisdiction to reconsider the initial decision, and an order prohibiting the CJC from taking further steps concerning the complaints. He moved to stay the Review Panel’s decision pending the outcome of his judicial review application. The Federal Court held there were no extraordinary circumstances to justify interfering with the ongoing administrative proceedings until they were completed. The Court considered Newbould’s motion premature, given that the Crown was not seeking to strike out Newbould’s judicial review application. Alternatively, the Court found that, while Newbould’s application raised a serious issue, he failed to provide clear and compelling evidence that he would sustain irreparable reputational harm if the Review Panel’s decision was not stayed. ... [read more]