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Monday, June 26, 2017 @ 12:41 PM

Five new judges are heading to Ontario's Superior Court of Justice

Five new judges have been appointed to the Superior Court of Justice in Ontario, Justice Minister Jody Wilson-Raybould announced on June 23. The appointments were made under the new judicial application process announced last October. ... [read more]

Friday, June 23, 2017 @ 02:58 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 Facebook.com, one of the world’s leading social networks. The respondent, Facebook Inc. (Facebook), was an American corporation headquartered in California which operated Facebook.com 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 @ 09:10 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]

Thursday, June 22, 2017 @ 06:07 PM

SCC revisits standards of review, appeals of arbitration awards Clement Gascon

The Supreme Court has shed more light on when commercial arbitral awards can be appealed in an important judgment that also provides general guidance on how to determine the standard of review in all types of civil cases. ... [read more]

Thursday, June 22, 2017 @ 02:51 PM

BINDING ARBITRATION - Submission to arbitration - Arbitrators - Powers and duties - Jurisdiction – Appeals - Deference to expertise of arbitrators - Jurisdiction of court to review

Appeal by Teal Cedar Products Ltd. (Teal) from a judgment of the British Columbia Court of Appeal confirming a judgment setting aside the decision of the British Columbia Supreme Court which partially upheld an arbitrator’s decision. The province of British Columbia and Teal were unable to settle how much compensation the province owed to Teal for reducing the latter’s access to certain improvements on Crown land which it used to harvest timber. Consequently, their dispute was submitted to arbitration as required by the Forestry Revitalization Act (Act). In order to determine the proper valuation method for Improvements Compensation, the arbitrator chose the Depreciation Replacement Cost Method because it was the only valuation methodology that determined Improvements Compensation separately from harvesting rights compensation, in keeping with their separate treatment in the act. The arbitrator held that Teal was entitled to interest on the Improvements Compensation, despite the No Interest Clause contained in the Settlement Framework Agreement, in light of the factual matrix of the parties’ failed settlement negotiations. The British Columbia Supreme Court essentially confirmed the arbitrator’s decision, only remitting the issue of Improvements Compensation for one of Teal’s timber supply areas, that of Lillooet. The British Columbia Court of Appeal ruled that the arbitrator’s award was, in this respect, both incorrect and unreasonable because it provided a “substantial publicly financed windfall” divorced from Teal’s actual financial loss. On the Interest Issue, the Court of Appeal opined that the arbitrator had made a legal error that gave the courts jurisdiction because he let the factual matrix overwhelm the Settlement Framework Agreement, despite the latter’s clear wording. The decision of the Court of Appeal on remand was silent in respect of the Lillooet Issue. The appeal involved two key interpretation issues, namely whether the arbitrator erred in law by: (1) interpreting the Depreciation Replacement Cost Method as being consistent with the act (the Valuation Issue); and (2) interpreting the Amended Settlement Framework Agreement as including interest in the province’s Improvements Compensation payment to Teal (the Interest Issue). This appeal also involved a statutory application issue, namely whether the arbitrator erred in law by denying Improvements Compensation to Teal when he applied his chosen methodology to the Lillooet Licence (the Lillooet Issue). ... [read more]

Thursday, June 22, 2017 @ 10:38 AM

Ontario's chief justice among recipients of honorary degrees from law society

Chief Justice of Ontario George Strathy is among four prominent Canadians who will receive honorary Doctor of Laws degrees from the Law Society of Upper Canada at its call to the bar ceremonies in Toronto on June 26 and 27. ... [read more]

Thursday, June 22, 2017 @ 08:52 AM

Ontario appeal court expands criteria for trial judges to determine admissibility of expert evidence Geoff Adair

Ontario trial court judges may feel more empowered to exclude expert witness testimony following a recent ruling by the province’s appeal court in a personal injury case. ... [read more]

Wednesday, June 21, 2017 @ 06:07 PM

Ottawa says broad new immunity for CSIS crimes is Charter-compliant Paul Cavalluzzo

Ottawa says its move to give designated CSIS employees and their agents new immunities from prosecution for breaking the law in the line of duty is constitutional as it tracks a similar immunity legislated for police 15 years ago that has survived Charter attack. ... [read more]

Monday, June 19, 2017 @ 06:01 PM

Judges' travel expenses to be made public for the first time Beverley McLachlin

The travel and other expenses of all 1,100 federally appointed judges — up to and including Supreme Court of Canada judges — would be made public for the first time in history under reforms proposed by the Liberal government. ... [read more]