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Passive resistance alone is not a crime.

In Whatcott v. The Queen, the Saskatchewan Court of Queen’s Bench set aside the conviction of a man charged with resisting a peace officer engaged in the lawful execution of his duty by refusing to accompany the officer after being placed under arrest, contrary to section 129(1) of the Criminal Code. When a police officer told the Accused that he under arrest, he remarked that he would not go and sat on the sidewalk and crossed his legs and his arms. The police officer and his colleague then picked the Accused up and carried him to the police car. The police carried the Accused eight to ten feet and then he got into the police car on his own. The Court began its decision by noting the Accused was charged with resisting a peace officer in the execution of his duty and not obstructing a peace officer in the execution of his duty. The Court went on to hold that “passive resistance does not constitute resisting arrest. The situation is not similar to . . . where the accused actively resisted arrest by locking his toes under the seat in front of him and hanging on to the armrest in an effort to prevent his removal. There was no evidence of any active resistance by [the Accused]. It was not a situation where his conduct required maximum effort from the peace officers in order to effect the arrest.” Read More...

When is shouting a disturbance?

In Whatcott v. The Queen, the Saskatchewan Court of Queen’s Bench set aside the conviction of a man charged with causing a disturbance in or near a public place by shouting, contrary to section 175(1)(a)(i) of the Criminal Code. The Accused was holding an abortion protest at a busy intersection. He was holding a sign and yelling and shouting at passers-by on the street and at the cars going by on the street. Some of the people were shouting back. The Court held that “the disturbance contemplated by s.175(1)(a) is something more than mere emotional upset. There must be an externally manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public.” The Court went on to hold “the purpose is not to control expression, in and of itself. The legislation is not aimed at the content of expression, but rather the physical result of the expression or activity, and then only in a public place.” It said “the interference with the ordinary and customary conduct in or near the public place may consist in something as small as being distracted from one’s work. But it must be present and it must be externally manifested. In accordance with the principle of legality, the disturbance must be one which may reasonably have been foreseen in the particular circumstances of time and place.” The Court found there was no such disturbance. It did not interfere with the use of the premises by the public, it did not create a traffic hazard and it did not prevent the movement of pedestrians or traffic. Read More...

Supreme Court of Canada clarifies law on specific performance and mitigation.

This decision has significant implications on a purchaser's duty to mitigate its losses when a transaction fails due to the vendor's breach, particularly when the purchaser is a single purpose corporation. Read More...

Koskie presents seminar on Wills and Estates.

will
Koskie presents seminar on Wills and Estates. Read More...

Rules for enforcing parking bylaws.

Step one under The Summary Offence Procedures Amendment Act, 2005 calls for parking offences to be enforced by leaving a ticket on a vehicle. This gives the person with the ticket the opportunity to pay the amount shown on the ticket and avoid prosecution for the parking offence. The parking summons is the second step in enforcement of parking offences. The police can serve the summons by mail. The legislation provides that where a person does not respond in any way to a summons, a default conviction can occur. A person convicted by default can apply for a hearing within thirty days of becoming aware of the conviction. This provides an opportunity for a person charged to have a hearing in the event the person was not able to respond to the summons due to unusual circumstances. A municipality can register a lien against a vehicle owned by the person with an outstanding parking fine. The legislation provides for notice to the person and sets out the priority scheme applicable to the lien. The provisions state that before a person can be incarcerated for an outstanding parking fine, a notice advising the person that she or he may be arrested and held in custody must be personally served on the person with outstanding parking fines, the notice must advise the person that she or he has thirty days, from the date of service, to appear in court to request a hearing to explain their failure to respond to the summons and the vehicle owner has, without reasonable excuse, failed to pay the fine or discharge it through the fine option program.
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Vicarious liability for assaults upon residential school victims.

In Blackwater v. Plint, the Supreme Court of Canada dealt with the issues of liability concerning sexual assaults committed by a dormitory supervisor upon aboriginal children taken from their families and sent to residential schools operated by the Canadian Government and United Church. Read More...

An Open Letter to the Bully

Knock it off. Read More...

Supreme Court of Canada clarifies law of causation in negligence actions

In Clements v. Clements, the Supreme Court of Canada summarized the present state of the law in Canada as follows:

  1. As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.
  2. Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.
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Whistleblower Protection

Supreme Court broadened whistleblower protection. Read More...

Judge rules employee's statement, "I'm out of here," was not sufficient basis for employer to conclude that he had resigned.

In Balogun v. Deloitte & Touche, LLP, a British Columbia judge has ruled an employee's remark to the effect that "I'm out of here" at the end of a performance review meeting that had not gone to his satisfaction was too ambiguous for the employer to conclude that he had resigned. Finding instead that the employer subsequently ended the employment relationship by delivering a Record of Employment, the judge held that the employer was obliged to pay the employee two months' salary in lieu of reasonable notice of termination. Read More...

Judge awards damages to executive who quit following demotion.

In Chalifour v. IBM Canada Limited, a Quebec Superior Court judge has awarded two years' pay in lieu of notice to an executive who was constructively dismissed when his new boss unilaterally demoted him to a substantially inferior position while he was undergoing treatment for cancer. In awarding substantial damages, the judge found that IBM's perception of the employee's state of health, despite any medical evidence to support it, was part of a deliberate decision to impose on him a job that was "an affront to his dignity and his reputation." Read More...

"Modest" job search constituted reasonable attempt to mitigate given industry downturn

Upholding an employee's action for wrongful dismissal when his position was eliminated following an economic downturn in the heavy machine industry, an Ontario judge in Day v. JCB Excavators Ltd. has ruled that the employee's non-lucrative self-employment and lackluster attempts to seek new employment were nonetheless reasonable attempts at mitigation because a more diligent search for new employment would likely have proven unsuccessful. Read More...

Employee's refusal to accept new position with company amounted to resignation

In Gillis v. Sobeys Group Inc., the Nova Scotia Supreme Court has ruled that an employee resigned and was not constructively dismissed when she declined an alternative position offered by the employer after it eliminated her position. Read More...

Courts recognize new right to sue for invasion of privacy

In Jones v. Tsige, the Ontario Court of Appeal has recognized the invasion of an individual's privacy as a new common law tort – that is, a civil wrong for which the victim can seek compensation in court – which it calls "intrusion upon seclusion." Read More...

Challenging Municipal By-Laws

In Catalyst Paper Corp. v. North Cowichan (District), the Supreme Court of Canada considered a challenge to a by-law by considering whether it was reasonable having regard to process and whether it falls within a range of possible reasonable outcomes. Read More...

Arbitrators have wide leeway in applying legal doctrines

In Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, the Supreme Court granted an appeal from the Manitoba Court of Appeal, determining that an arbitral award applying common law or equitable remedies deserves deference, and should be reviewed on a standard of reasonableness rather than correctness. Read More...