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Yearly Archives: 2016

Court Slashes Lawyer’s Contingency Fee in Favour of Minor Plaintiff

In Batalla v. St. Michael’s Hospital,  the plaintiffs alleged that the physician and nurses who delivered the minor plaintiff did so negligently and caused the minor plaintiff to suffer severe brain damage. He was born with very limited cognitive functioning, impaired motor skills and visual impairments. The parties settled the matter following a mediation in April 2014 for the all-inclusive sum of $6,625,000. Pursuant to Rule 7 ...

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The Need for Doctrine: Scalian Originalism and Canadian Purposivism

A legal lion passed away recently. One might argue that the death of Justice Antonin Scalia means much more for the American legal audience than the Canadian one. After all, Scalia’s death tossed the Supreme Court of the United States into the centre of an already contentious election season and brought to the forefront the divisively partisan tendencies of the ...

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Ghomeshi Verdict Vindicates the Rule of Law

This morning, Justice William Horkins of the Ontario Court of Justice acquitted Jian Ghomeshi of four charges of sexual assault and a fifth charge of choking. Social media immediately erupted in a firestorm of #believethevictims and #believeallsurvivors. Many insults were also directed toward the judge, who, by all accounts, behaved impeccably during the trial. Indeed, he made an evidentiary ruling near the ...

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Permanent Problems

The law’s ideals and problems have not changed too much in 400 years I have only now read Francis Bacon’s essay “Of Judicature.” Bacon seems not to enjoy anything like the reputation of his rival Coke, in the law schools anyway ― I suspect that they haven’t heard much of Coke in the science faculties, where Bacon is regarded as ...

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Substantially Incontestable: Discriminatory Wills and the Future of the Public Policy Exception

Should racist wills be void on public policy grounds? This issue has arisen in a number of cases over the last couple of years, most recently in Spence v. BMO Trust Company  [“Spence“]. In that case, the deceased disinherited his daughter and the daughter alleged that her disinheritance was motivated by racial animus. The Ontario Court of Appeal upheld the ...

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State Regulation or Markets?

On Monday, March 21, 2016, the Runnymede Society will host a debate at the University of Toronto Faculty of Law. The title of the debate is: The Legitimacy of the Welfare State: Governments in Pursuit of the Public Good. Bruce Pardy, Professor of Law at Queen’s University Faculty of Law, will debate Jason MacLean, Assistant Professor of Law at Bora Laskin ...

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Rebalancing the Sexual Assault Pendulum

The Ghomeshi trial has exposed a reality of the criminal justice system which is the bane of every criminal defence lawyer’s existence. In most ‘domestics’ — as allegations of sexual or physical assault between family members or romantic partners are called in the system—the current modus operandi of police and Crown prosecutors is “zero tolerance.” This means, practically, that police ...

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Promoting the Runnymede Society

Yesterday, the National Post ran an op-ed piece co-authored by Asher Honickman, Marni Soupcoff (Executive Director of the Canadian Constitution Foundation) and Joanna Baron (Director of the Runnymede Society). The article, “Safeguarding the Rule of Law”, speaks to the importance of constitutionalism and the rule of law in Canada and some recent decisions at the Supreme Court that call into ...

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Galati v. Harper: The Rule of Law is not an “Empty Vessel”

The Federal Court of Appeal’s February 8, 2016 decision in Galati v. Harper is notable for several reasons. First, it notes that fundamental legal rules surrounding costs are not jettisoned in the constitutional context. Second, it recognizes that the constitutional guarantee of the “rule of law”, though seemingly broad in the abstract, has a defined meaning and cannot be used ...

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Reviving Originalism in Canada

Originalism posits that the content of a constitution is determined partly by the intentions and purposes of its founders and the understandings of the founding generation. This essay calls for the (re)introduction of originalism, which has an important place in American politics, legal academia, and courts,1 into Canadian constitutional law. First, I explain the importance of the methodology of constitutional ...

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