Caselaw Roundup

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SCOTUS holds that a federal habeas court may not consider evidence beyond the state court record on the basis that a prisoner’s post-conviction counsel negligently failed to develop the state court record

The Second Circuit rules that Interpol is immune from suit in the United States

Enforcement of New York’s unauthorized practice of law statutes enjoined as against a non-profit organization assisting low-income New Yorkers

SCOTUS rules that the right to enforce an arbitration agreement does not require a showing of prejudice

Medical professional policyholders (not their employers who paid the policy premiums) are entitled to a cash payout when their mutual insurance company demutualizes

Details of a criminal defendant’s prior sexually assaultive behavior were properly admitted into evidence under the new CJ § 10-923

A bus operator’s injuries arose out of and in the course of her employment for the purposes of workers’ compensation when she fell and injured herself while walking back to her car at the end of her shift

Innocent downstream investors in a stranger-originated life insurance policy who are sued to recover the proceeds of the policy cannot assert certain defenses under the UCC

Broad, written informed consent for a medical procedure can be negated by an oral conversation at the time the consent is signed

Los Angeles trial court declares California law requiring publicly held corporations to have female directors on their boards unconstitutional

Elon Musk’s agreement with the SEC requiring him to get approval for his tweets about Tesla from Tesla’s in-house counsel does not violate his freedom of speech

Febreze successful in dismissing copyright suit regarding commercial jingle… for now

A plaintiff pursuing a Fourth Amendment malicious prosecution claim is not required to show that their prosecution ended with an affirmative finding of innocence

New York Court of Appeals clarifies the requirements for demonstrating causation in toxic tort cases

The crime of robbery cannot be established by non-violent threats

Candidates for Attorney General in the District of Columbia must have been employed as an attorney under D.C. Code § l-301.83(a)(5)

Sovereign immunity does not bar a failure-to-warn suit against the Washington Metropolitan Area Transit Authority

GEICO’s use of automated rules to deny or reduce payments to policyholders under personal injury protection insurance policies did not breach the insurance contract or violate applicable state law

Housing discrimination doesn’t need to be explicit to qualify as discrimination

Conservatees are similarly situated with not guilty by reason of insanity involuntary commitments for the purposes of the right against compelled testimony

In ordering a blood test pursuant to s. 48(1) of the CLA 1997 to determine the issue of paternity, the Court should consider whether it is in the best interests of the child to know their parentage

The definition of “habitually resides” from the Children’s Law Reform Act should be used to interpret the phrase in the Family Law Act, Family Law Rules, and the Divorce Act

Premature Pleadings Amendment Motions May Get Adjourned

McKinley and Tymko are Key In Safety-Related Wrongful Termination Cases

Federal Court did not err in choosing certification questions for class proceedings claiming damages for unconstitutional legislation

Employee terminated without cause after almost 40 years with the employer

School boards invoke rent abatement clause due to COVID-19 pandemic lockdowns

The Supreme Court of Canada considers the approach to an application for advance costs

$10,000,000 fine for Maple Syrup Thief

Identity of good vs quality and exclusion of the Sale of Goods act

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