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Case Commentary

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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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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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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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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Justice Miller’s First Major Decision May Surprise His Critics

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. ...

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Misreading Carter v. Canada

In its report released in December, the Provincial-Territorial Expert Advisory Group On Physician-Assisted Dying recommends that assisted suicide and euthanasia be publicly funded and available for the non-terminally ill, the mentally ill, and for minors. Their Report says that its recommendations “were developed in response to the Supreme Court’s decision in Carter.” The Report claims, inaccurately, that the Court “did ...

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“Clear and Definitive”: The Offence of Bestiality and the Rules of Statutory Interpretation

Last month, the Supreme Court of Canada heard oral arguments in the case R. v. D.L.W.  The issue for appeal is not exactly garden variety. The Supreme Court has been asked to determine whether the offence of “bestiality” in the Criminal Code requires penetration.   Background The facts are not in dispute and are disturbing to say the least. The accused respondent ...

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A “Progressive” Result from the Rule of Law

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. ...

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Judicial Restraint Lives to Fight Another Day

If laws are supposed to be legislated by the legislature, and interpreted by the judiciary, what happens when the judiciary is of the view that the legislature is dropping the ball? This philosophical conundrum was implicitly considered by two different levels of court in Ontario, with different results. In Ernst & Young Inc. v. Chartis Insurance Co. of Canada, [2014] ...

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The Hard Truth – “the contract said what it said”

MacQuarrie v. National Bank Life Insurance Company is a noteworthy decision for those interested in the “textualist” debate – namely, whether words reduced to writing, whether it be in the form of a policy of insurance, a statute, a commercial contract, or otherwise – should be interpreted according to their plain and ordinary meaning. In MacQuarrie, an insured sought payment ...

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