Caselaw Roundup

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A jury should consist only of those who have been fully vaccinated against COVID-19

The Warehouseman’s Lien Act creates a possessory lien where a dog owner transfers his or her dog(s) to the owner of a kennel

Section 2(b) of the Charter does not apply to personalized license plates

The only valid cause of action alleged was breach of contract. For such a highly individualized issue, a class proceeding was not the preferable procedure

A clarified test for the Chief of Police to order a hearing under s. 45(3) of the Police Act

The Discipline Panel of the Law Society of Manitoba did not err in finding that the lawyer’s conduct was so uncivil such that it amounted to professional misconduct

An unexecuted will was admitted to probate after the testator cancelled her appointment to execute the will due to the COVID-19 pandemic. The unexecuted will was found to be authentic and the embodiment of the deceased’s testamentary intentions

The imputation of income under s. 19(1) of the Guidelines should be grounded in the principle of determining a fair and reasonable income based on the evidence

In the absence of some other relevant fact, it is not a breach of the duty of good faith in contractual relationships to take advantage of a reason of a termination provision in a contract, even where that reason ultimately proven invalid

A unilateral mistake or subjective misunderstanding of the contents, absent fraud or misrepresentation, should not be used to override an unambiguous written contract

A contract is formed when the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract, and the surrounding circumstances may be considered

The interpretation of standard form contracts is an exception to the usual rule of deferential appellate review; in such cases the factual matrix is less relevant. But, modified standard form contracts may attract deferential standard.

Court of Appeal does not have jurisdiction to hear a summary conviction appeal under s. 830 of the Criminal Code

“Conciseness is not merely a pious wish: it is mandated.” Court of Appeal denies request for leave to file a longer factum

There is nothing in the Ontario PBA or the Family Law Act that the precludes a continuation of shared pension payments to the deceased non-member’s estate for the balance of the member spouse’s life

Section 31 of the Marriage Act can validate marriage ceremonies performed outside of Ontario and purely religious ceremonies where the parties took no steps to obtain a licence or register the marriage

The fact that some injuries suffered in serial accidents are indivisible does not mean that every injury is indivisible

The right to renew a lease on the same terms except for rental rate does not create an enforceable obligation other than an obligation on the landlord to negotiate in good faith

A genuinely held belief opposing government rules regarding vaccination could be a political belief within the meaning of the Human Rights Code

The Alberta Court of Queen’s Bench Recognizes the Tort of Public Disclosure of Private Facts after a man shared private, intimate photos of his former wife online – ES v Shillington, 2021 ABQB 739

A bonus policy was not sufficiently unambiguous to limit an employee’s entitlement to a bonus during the notice period, even where the contract requires the employee to be “actively employed”

The majority of the Supreme Court of Canada found a comedian’s routine about a youth with a disability was not discriminatory

In a 5-4 split, the Supreme Court of Canada has upheld Ontario’s Better Local Government Act, 2018, which reduced the size of Toronto City Council shortly before the October 22, 2018 municipal election

The fact that the responsible government authorities have concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 indicates that it is in the best interest of an eligible child to be vaccinated

The BCCA awarded the wife retroactive spousal support despite a ten year delay between the parties’ separation and the adjudication of the claim of spousal support

Core policy analysis should be dealt with by a court hearing a negligence claim against a public authority when the claim falls into a category in which a duty of care has previously been established and two-stage Anns/Cooper analysis unnecessary

Federal Court of Appeal affirms finding that, based on German law, the loss of three containers stolen from a port terminal in Belgium had occurred during the road leg of a multimodal transport journey between Montreal and the Netherlands

Prospective litigation management may only occur where a litigant is engaged in persistent abusive conduct, and other litigant management steps have been unsuccessful

When a bankrupt has, without reasonable context or rational excuse or justification, defaulted egregiously in compliance with its Bankruptcy and Insolvency Act, it is sufficient cause under s.41(2) of the BIA to discharge a trustee

A court-ordered interim injunction is not an appropriate remedy to preserve the employment status quo of employees who refuse to be vaccinated against COVID-19 and who will be terminated as per their employer’s vaccination policy

Text messages discovered after employee terminated provided sufficient evidence that employer legally entitled to terminate the employee’s employment for cause

An employer’s duty to inquire arises when an employer knew or reasonably ought to have known that there was a nexus between the employee’s poor performance and a disability

A trustee in bankruptcy seeking to set aside a transaction as a transfer at undervalue under s.96(1) of the BIA, or as a fraudulent conveyance under s.2 of the Fraudulent Conveyances Act is not subject to the limitation period that the main creditor

Dismissed Income Security Advocacy Centre’s motion for to intervene in an appeal relating to the cancelation of the Basic Income Pilot Project because too involved in the factual matrix the Court would have to consider to resolve the issues on appeal

The Court is not bound to refuse to enforce a contract because it is statutorily void when such a refusal would have harsh effect and when refusal is not required to affirm the legislative policy

Promissory estoppel requires: (1) the parties were in a legal relationship at the time of the promise; (2) the promise was intended to affect the relationship and be acted on; and, (3) the other party in fact relied on the promise or assurance

Dismissal on the basis of frivolousness, vexatiousness, or abuse of process limited to the clearest cases where the abusive nature is apparent on the face of the pleading and there is basis in the pleadings to support the resort to the attenuated process

The absence of indicia of SLAPP does not preclude the application of s.137.1 of the Courts of Justice Act, RSO 1990, c C.43.

Where a declaration of constitutional invalidity is suspended, the unconstitutional law can still ground a conviction for acts that took place during the period of suspension

The Ontario Court of Appeal upheld the dismissal of a negligence claim against GlaxoSmithKline alleging that their H1N1 vaccine, Arepanrix, was responsible for the death of a young girl

Justice Ricchetti ordered that a civil jury trial proceed virtually over objections from defence counsel. In this case, a motor vehicle accident case was at risk of not being heard in 2022 due to court delays stemming from COVID-19 restrictions

The Alberta Court of Queen’s Bench ruled that a mother was at liberty to vaccinate her two children against COVID-19 over the objections of their father

An Ontario Judge cautioned that parties who fail to upload motion records that are well-organized and contain hyperlinks to evidence and Caselines page numbers may have their motions dismissed

Tax Court of Canada dismissed a Charter challenge to the Adoption Tax Credit and ruled that surrogacy fees cannot be claimed as a tax credit under this program — Foley v. The Queen, 2021 TCC 92

Divisional Court finds Ottawa City Council exhibited bias in its role as adjudicator when reviewing and acting on the report of the Integrity Commissioner with respect to the investigation into complaints filed against an Ottawa City Councillor

Terms may be implied in a contract: (1) based on custom or usage; (2) as the legal incidents of a particular class or kind of contract; or (3) “to give business efficacy to a contract or as otherwise meeting the ‘officious bystander’ test

The Manitoba Public Insurance Corporation Act, CCSM c P215 creates a scheme of insurance under which the MPI is subject to the duty of good faith in administering the personal injury claim of an uninsured automobile interest

The equitable doctrine of unjust enrichment cannot be a remedial source in a case of ordinary wrongful dismissal

Granted two medical cannabis growers an interlocutory injunction, preventing their township from enforcing a zoning by-law and interim control by-law pending the final determination of the underlying Charter challenge to the by-laws

Insurance adjusters may owe a duty of care to insureds, the breach of which can rise to individual liability in tort

In the division of property jurisdictions (including Newfoundland and Labrador) a non-bankrupt spouse’s property claim is not “provable in bankruptcy” and is neither stayed nor discharged on bankruptcy

Cabinet privilege

Working for Workers Act does not void non-compete agreements entered into prior to 25 October 2021

Mandatory vaccination policy requiring unvaccinated unionized employees to be placed on unpaid leaves of absence pending a final determination of their employment status upheld as reasonable

The “slip rule” cannot be used to vary a portion of a Corollary Relief Order dealing with division of property

Absent a misdirection in law or on the facts, an appellate court will not intervene in a discretionary decision of a professional regulatory regarding penalty unless the decision on penalty is so wrong as to amount to an injustice

Applications to enjoin the operation of apparently validly enacted legislation present specific challenges. Only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed

The Saskatchewan Court of Appeal found that the Hearing Committee of the Law Society of Saskatchewan erred in finding the lawyer guilty of conduct unbecoming a lawyer

The British Columbia Court of Appeal found that the trial judge erred in ordering the lower-income spouse to pay lump sum spousal support, without considering the Spousal Support Advisory Guidelines or providing discernable reasons for the order

Ontario Court of Appeal rules that an insurer is unable to rely on contested allegations of misrepresentation by the insured to escape its duty to defend

The Ontario Superior Court of Justice recognizes the tort of family violence

Alberta Court of Appeal dismissed an appeal for failure to properly assess the worker’s medical records and recommended the Commission establish a panel to address the medical issues

One can appeal to ONCA, with leave, from a Div Ct. order. A notice of motion for leave to appeal must be served within 15 days after the making of the order sought to be appealed.

Section 688(3) of the Municipal Government Act specifically contemplates the Court hearing from persons affected by an application for permission to appeal a Subdivision Appeal Board decision

The Court of Appeal found that the application judge did not err in determining that the limitation period on the clause did not start to run until one of the parties communicated that there would be no negotiations to try to resolve the issue

British Columbia Court of Appeal allowed an appeal and cross-appeal by consent after hearing the appeal where there was no indication of impropriety or concern that allowing the appeal by consent would bring the administration of justice into disrepute

A director’s resignation does not have to be signed in order to be effective under the Ontario Business Corporations Act. There must be evidence that the corporation received a written resignation confirming that the director has resigned

The administrator of an estate of a separated and deceased spouse may commence a claim for the division of family property and family debt after the spouse’s de The property interest crystallizes on separation and does not abate on death

The Ontario Superior Court of Justice articulates the industry best practice for an occupier for snow removal. Specifically, an occupier should (1) pre-salt the relevant area; or (2) salt during or immediately after plowing

Section 17 of the Crown Liability and Proceedings Act, 2019, SO 2019 c 7, Sched 17 has been declared unconstitutional and declared of no force and effect by the Superior Court of Justice

The New York City COVID-19 landlord-tenant Guaranty Law rendering personal guaranties of commercial lease obligations unenforceable may be constitutional

Court declines to award attorneys’ fees incurred on a motion for fees when the parties did not seek an out of court resolution on fees prior to bringing the motion for attorneys’ fees

The extension of the limitation period for child victims of sexual abuse under the Child Victims Act (“CVA”) is constitutional and does not violate the Due Process Clause

A physician’s continuous prescribing of prescription medication does not constitute continuous treatment; limitation periods are not tolled by a physician refilling a previously prescribed medication

The act of registering a business in New York in compliance with the Business Corporation Law does not constitute consent to the exercise of general jurisdiction by New York courts

The doctrine of equitable apportionment applies to underground interstate aquifers; thus, states have an equal right to make reasonable use of a shared water resource

The settlement agreement in a lengthy class-action lawsuit between NYC and visitors to NYC jails regarding strip searches and body cavity searches is approved by courts

The New York City Department of Education’s COVID-19 vaccine mandate is not unconstitutional on its face, but the religious accommodation procedures of the mandate are likely unconstitutional and therefore warrant injunctive relief

Court refuses to dismiss NYC nanny’s allegations that her former employers defamed her, tortiously interfered with her contract, and intentionally inflicted emotional distress by posting about her in two New York City community Facebook groups

Merchant plaintiffs that do not accept American Express credit cards do not have antitrust standing to argue that American Express’s anti-steering rules harm them by encouraging competing credit card providers to increase their merchant fees

The Saving Statue (CPLR § 205(a)), which allows actions to be filed outside of the limitation period in some cases, does not operate as a chain and does not permit successive re-filings

Business closures due to New York State Executive Orders as a result of COVID-19 do not constitute “direct physical loss” or “physical damage” to property under business property insurance policies

Nuptial signatory must acknowledge signature with the party’s signing of the agreement in order for the agreement to be valid. But, a technically defective acknowledgment may be made enforceable by proof of the occurrence of the events

An allegation based in contract cannot support a third-party claim for contribution

An attorney’s failure to supervise a dishonest employee does not amount to personal dishonesty

The United States Supreme Court stayed OSHA’s COVID–19 Vaccination and Testing: Emergency Temporary Standard, 86 Fed. Reg. 61402

Medicare beneficiaries have a right to administrative review of their medical reclassification as outpatients

The Second Circuit Court of Appeals confirms what everyone already knew – El Chapo is in fact a drug lord

A jury’s finding that a physician met the standard of care when he prescribed oral contraceptives to a woman with a history of strokes was upheld

In order for a child sexual abuse plaintiff to proceed anonymously under the Child Victims Act, the plaintiffs must provide specific evidence as to why each plaintiff should be entitled to proceed anonymously

A certificate of registration that contains inaccurate information is valid under the Copyright Act if the copyright holder was not aware of the legal error that rendered its application inaccurate

The CIA may keep information about its former detention and interrogation program from the public

The statute of limitations for medical malpractice actions is tolled when a patient continuously obtains treatment for a medical condition

A defendant can be served at the address on their driver’s license even if they no longer live there

Red light camera tickets do not need to be notarized in order to establish prima facie liability

The failure to report an increased federal tax assessment to the California Franchise Tax Board results in a tax debt that is not dischargeable in bankruptcy

Exemptions from independent contractor status for writers and photographers, which make those professions more likely to be classified as employees, do not implicate the First Amendment or violate the Equal Protection Clause

California Assembly Bill 32, signed by Governor Newsom in 2019, which phases out all private detention facilities within the state, is preempted by federal law and violates the intergovernmental immunity doctrine

Retailers’ insurance claims for lost income following California’s Stay-at-Home order properly denied

The only proper venue for a civil harassment claim that does not involve allegations of physical abuse is the county of the defendant’s residence