Advocates for the Rule of Law

Last week’s unusual Ontario Court of Appeal decision in Welsh v Ontario made headlines as the Court quashed an order that $1.5 Million dollars be paid to a charity. The facts of the case make the result a bitter pill to swallow. But despite this result, and the unusual statutory and factual matrix in which the case emerged, the decision ...

Section 33 of the Canadian Charter of Rights and Freedoms – better known as the “notwithstanding clause” – is one of the most controversial parts of the Canadian constitution. Despite being an integral part of the formation of the Charter, commentators such as Andrew Coyne have suggested that the provision is “dead letter” or “taboo”. But on Monday, Saskatchewan Premier ...

Many of Donald Trump’s actions during his first weeks as President have understandably unsettled much of the world. However, there are already hopeful signs that they will be resisted by some combination of public protest, the courts, and/or, at the very least, his successor. So the recent nomination of 49-year old Court of Appeals Judge Neil Gorsuch to the United ...

The United States presidential election of 2016 will be analyzed for decades if not centuries. Most of that analysis will concentrate on the two candidates, and their respective campaigns and supporters. But as far I am concerned, one of the greatest tragedies of the election was entirely attributable to the Republican-controlled Senate. I am speaking, of course, of the Chamber’s ...

The Supreme Court of Canada’s freshly released Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. provides welcome clarification to contract law generally and insurance law specifically. By holding that appellate courts are to review interpretation of “standard form” contracts on a correctness standard, the court protects the rule of law. The decision should also promote access to civil justice. Background ...

This summer saw a sharply divided Supreme Court of Canada on many points. The case of Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 illustrated this perhaps better than any other, with the Court issuing four separate opinions. Many issues are raised in the case, from whether certain non-unionized federally regulated employees can be dismissed without cause to the number ...

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 ...

In December, I questioned the common thought that lawyers, scholars and judges who promote judicial restraint and the rule of law should be called “conservative”. I cited Justice Grant Huscroft of the Ontario Court of Appeal simply applying accepted common law principles to lead to what appeared to be a “progressive” result in the employment law case of Michela v. ...

Lawyers, scholars and judges who promote judicial restraint and the rule of law are frequently called “conservative.” Justice Grant Huscroft of the Ontario Court of Appeal is often cited as an example of a judge whose judicial philosophy is a thinly veiled guise for his conservative predispositions. But is this really the case? In his recent decision in Michela v. ...

Tuesday’s Ontario Court of Appeal decision in R. v. Goebel properly disposed of a claim that raised an important issue, but was deeply flawed from a legal perspective. Justice Epstein’s reasons helpfully noted that s. 7 of the Charter does not include property rights, and an infringement of the right to “security of the person” requires a real connection to ...