Murray Gottheil

Another recent but quietly announced quality-of-life change for Supreme Court of Canada practice is that the SCC now wants all printed copies of documents to be double-sided. This used to only apply to books of authorities and condensed books. Pros: saving trees & physical storage space. Cons: having to add physical number tabs to a double-sided document can be a nightmare. This marks the end of an era of requiring documents with "printed pages facing up on the left", which was probably the weirdest thing the SCC required. I believe it was so it was easier to write on the blank backside of a page if it was on the right. https://lnkd.in/eFnB-SCp

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The Chief Justice of the Federal Court in Fang v. Canada [2024 FC 671] held that failure to provide an opportunity to respond to the extrinsic evidence does not "always" give rise to procedural fairness concerns. The jurisprudence has two approaches: 1. Novel and Significant Approach: Procedural fairness concerns would not arise unless the evidence is "novel and significant” – i.e. it could not have been reasonably anticipated and affected the disposition of the case. 2. Contextual Approach: This includes a consideration of the decision and the possible impact of the evidence on the decision. Paras reiterated below: [8] The consideration of extrinsic evidence does not always give rise to procedural fairness concerns where the person in question is not provided with an opportunity to respond. Under one line of this Court’s jurisprudence, procedural fairness concerns would not arise unless the evidence is "novel and significant,” in the sense that it could not have been reasonably anticipated and affected the disposition of the case. Under a second line of the Court’s jurisprudence, the Court has adopted a more contextual approach that includes a consideration of the decision and the possible impact of the evidence on the decision: Harripersaud v Canada (Citizenship and Immigration), 2022 FC 1368, at paras 50-63. [9] Under either approach, the Officer did not err by considering the 2011 article without providing Mr. Fang with an opportunity to respond. [10] This is because the critical information contained in the passage reproduced at paragraph 6 above was available in the national documentation package (“NDP”). Specifically, one of the documents in the NDP states: “As long as one still holds Chinese citizenship, s/he can easily reactivate the hukou in the original place after returning.” (See the quote spanning pages 224 and 225 of the CTR.) Accordingly, Mr. Fang ought to have been well aware of this information when he stated that his hukou had long since disappeared and/or expired, and that he would thereby encounter significant hardship upon his return to China. [11] Although the information referenced by the Officer in the passage quoted above was significant in the context of the Decision as a whole, there was nothing “novel” about it, because it was publicly available in the NDP. [12] This was also important context for the purposes of the contextual approach. [13] Accordingly, under either the “novel and significant” approach, or the “contextual” approach, the Officer did not err in considering the 2011 document discussed above. [Link to judgment in comments]

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Here's a couple of our favourite weekly licensing questions that we helped our clients navigate last week: #NPPE Q. Topic IV.1 - Common Law (based on past case precedents and created by judges) is applicable to all provinces except Quebec where Civil Law is followed. The Civil Law does not deal with federal matters like defence, patent and criminal law and the common law is applicable. Can you clarify if Common Law covers Criminal Law? Is Common Law also called as Public Law? A. The common law system applies in most of Canada, but criminal law is federal legislation that supersedes the common law. The common law is not synonymous with "public law" - it is a specific legal system, while public law is a broader category that includes criminal law. #NPPE Q. Topic IV.9 - What is the difference between holdback and payment bonds? I understand that both mechanisms aim to protect unpaid persons/groups. A. A holdback is a portion of the contract price that the owner withholds until the project is completed and all financial obligations are fulfilled. It acts as a form of security to ensure that subcontractors, suppliers, and other parties involved in the project are paid for their work and materials. The holdback is typically a percentage of the total contract price and is released once all payments have been made. On the other hand, a payment bond is a type of surety bond that guarantees payment to subcontractors, suppliers, and other parties in the event that the contractor fails to fulfill their payment obligations. It is a form of insurance that provides financial protection to those who are owed money for their work or materials. If the contractor defaults on payment, the unpaid parties can make a claim against the payment bond to recover the amount owed to them. Need help with a licensing step? Visit us at practiceppeexams.ca

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💻 Webinar Alert: Navigating Law 25 Compliance in Quebec Join us for an essential webinar on Law 25 Compliance: What Companies Doing Business in Quebec Need to Know. This session is crucial for understanding the latest changes brought by Bill 64 (Law 25) and how they impact the protection of personal information in both public and private sectors. 🗓️ Date: Wednesday, June 7, 2024 ⏰ Time: 2:45 PM ET 🌐 Location: Virtual via Zoom (Link provided a day before the event) 💼 Cost: Free ⭐ PDP Points: Members earn 10 points for attending the event. Our expert speaker, Maître Tracy Gokhool, will guide you through your new roles and responsibilities, the necessary policies and protocols, how to handle personal information incidents, and the consequences of non-compliance with Quebec’s new privacy laws. __________________________________________ Webinar Overview: Bill 64, known as Law 25, revises the legal framework surrounding personal information management. During this session, we will delve into the specific changes, including your new responsibilities related to the collection, use, and disclosure of personal data. Learn about essential policies, the protocols your business must implement, how to handle data incidents, and the consequences of non-compliance with these revised privacy laws. About the Speaker: Our esteemed speaker, Maître Tracy Gokhool, is a senior litigation lawyer specializing in commercial disputes and civil litigation at Charness, Charness & Charness LLP. Since her call to the bar in 2019, Maître Gokhool has represented clients across all levels of Quebec's courts, including the Court of Appeal. As the firm's Privacy Officer, she expertly manages compliance with privacy laws, ensuring rigorous protection of client information and adherence to the highest ethical standards. __________________________________________ 🔗 Register Now to secure your spot and ensure your business stays compliant with the latest legal requirements. Registration Closes on Thursday, June 6, 2024 For details and registration: https://lnkd.in/gbKj67-J Don't miss this opportunity to gain vital insights and stay ahead in the rapidly evolving field of privacy law. #CIC #Law25 #PrivacyCompliance #QuebecBusiness #CreditInstitute #CICWebinar #DataProtection #LegalUpdate

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Read our update on this landmark decision by the Supreme Court of Canada.

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If a sealing order or publication ban is granted by a tribunal, does that order apply on appeal or judicial review before the courts? The answer given by the Divisional Court in Law Society of Ontario v AA is no. https://lnkd.in/gR2DGqZW The decision is a helpful reminder that once a matter is appealed to the courts from an administrative tribunal, you cannot simply rely on the fact that a sealing order or publication ban was made during the administrative proceedings. You need to seek the same order before the courts. The court also gave helpful guidance on how proceedings ought to be initiated where a party knows a sealing order or publication ban may be sought: [16]     I commend the Law Society for its careful approach. It would have been inappropriate for the Law Society to file a Notice (or any other publicly available document) with AA’s full legal name or the names of the other parties protected by the anonymization order below before giving AA an opportunity to bring a motion for an order protecting their identities in this court. Despite my ruling that the anonymization order below does not apply to the proceedings in this court and that a court order is required, appellants/applicants who know the respondent will want to bring a motion for an anonymization order or a sealing order should not take procedural steps that will render such a motion moot. There are other ways to achieve the same objective. For example, the Law Society could have requested a case conference before filing its Notice to get the Court’s directions. If the Law Society had drafted the Notice with AA’s legal name, it could have sought an interim order sealing pending the hearing of the anonymization order. Whatever procedure is adopted, it must protect the interests of those who are required to bring an anonymization motion until that motion can be heard.

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The Globe & Mail just published a piece called: "No kids? Here's how to handle estate planning" -- https://lnkd.in/eP4whZzG -- It's a good, quick read. Kinless Canadians (no spouse, no kids) make up almost 1 out of 3 Canadian households. 🏠 🧔 Kinless Canadians have unique situations and wishes. This makes their estate planning less cookie-cutter and more challenging. For that reason, Honor Lay (of RBC Family Office Services) and I wrote a two-parter on this topic: Part 1: General Planning Considerations -- https://lnkd.in/evhi8Hkj Part 2: Special Estate Planning Issues -- https://lnkd.in/eKhRfUPR Some topics that Honor and I cover that The Globe doesn't: 💲 Managing the costs of bespoke planning 👩‍🏫 Preparing executors and attorneys 👶 Leaving assets to minors like nieces and nephews 🎁 How to avoid charitable gifts from going sideways 🐈 Planning for pets #estateplanning #estateplanningcanada #giftplanning #giftplanningcanada

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Our June newsletter is out. This month I discuss the benefits of mediation, 5 steps to rebuild your financial foundation, what rising expenses have done to Canada’s divorce rate and much more. https://lnkd.in/epKrFhEe #divorcelawyer #divorce #familylawyer #familylaw

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Last night, the House voted to provide an exclusive tax benefit to the celebration of Christmas, which infringes on the Charter rights of many Canadians in a manner that is clearly unjustified in a free and democratic society. The "Tax Break for All Canadians Act" will, among other things, temporarily make buying "a Christmas tree, or a similar decorative tree, whether natural or artificial" free of GST/HST. On its own, this does not engage the Charter. It is essentially uncontroversial. Instead, the infringement is caused by the omission of similar tax relief on the purchase of comparable goods that are central to the celebration of major holidays of groups in Canada other than Christmas. While providing a tax benefit to many Canadians, a tax burden will be retained on others based on ethnic origin or religion. This will be accomplished not only by narrowing the scope of relief to Christmas trees. But also by designing the window for the relief to bypass certain major non-Christian holidays. The effect is substantive inequality. The government has failed to offer any rationale for this form of discrimination. Yet it will disturb the impressive, decades-long efforts towards ensuring the GST/HST rules, in particular, are crafted with precision to avoid preferential treatment of goods or services of specific ethnic or religious groups. It will also require employees of the Canada Revenue Agency, and potentially also lawyers at the Department of Justice, to administer and enforce a program that infringes their rights personally. This is a difficult time for many folks. Reliance on food bank in the GTA, for instance, is record-breaking. Many Canadians are suffering from acute trauma and hardship for many reasons. These needs question whether any efforts to address an issue of tax inequality can be validated. At the same time, this is plausibly within our control. A message must be sent that it cannot stand. Parliament should be compelled to address it - if necessary, by the initiation of a Charter challenge. If you have expertise in this area and want to assist, please call me at 416-864-1072.

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Divorce is a significant and challenging life event, but understanding the process can make it less intimidating. In Alberta, the legal framework for divorce is guided by the federal Divorce Act and provincial laws, that attempt to ensure a fair process for all parties involved. Let’s outline the basic steps below: 1. Determine Eligibility: One spouse must have lived in Alberta for at least one year before filing. 2. Gather Necessary Documents: You’ll need the original marriage certificate, financial documents, and any relevant agreements (for example, a prenuptial agreement). 3. File a Statement of Claim for Divorce: This document, filed at the Court of King’s Bench of Alberta, initiates the divorce process. It outlines the grounds for divorce and any claims regarding children, support, and property. 4. Serve the Statement of Claim: The other spouse must be formally served with the Statement of Claim. This can be done through a Process Server or another adult not involved in the case. An Affidavit of Service must be filed to prove the other spouse was served. 5. Respond to the Claim: The responding spouse has 20 days (if in Alberta), one month (if in another province), or two months (if outside Canada) to respond with a Statement of Defence or a Counterclaim. 6. Negotiate and Settle: If both parties agree on all terms, they can draft a Separation Agreement covering issues like child custody, support, and property division. This can be made into a Consent Order by the Court. 7. Attend Court (if necessary): If there are contested issues, the case may go to court for a judge to decide. Both parties will present evidence and arguments. 8. Obtain the Divorce Judgment: Once all issues are resolved, the judge will issue a Divorce Judgment. After 31 days, the Divorce Certificate can be requested, finalizing the divorce. Just take it one step at a time! Check out our website for the full blog post in the comments, as well as some ways in which we can help everything go smoothly for you.

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Areas of law I am horrible at: wills & estates. Edit: my Partner Colin Sullivan is actually really good at it. #teamwork

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Terrific presentation today for the Canadian Bar Association, BC Branch's Young Lawyers Section by fellow benchers Kevin Westell and Thomas L. Spraggs on ethical obligations for young lawyers. It can be a real challenge for new calls, in particular those operating in solo and small firm environments, to grapple with multiple steep learning curves on the substantive practice and procedure side, the business side, and the ethics and compliance side of practice. Some key takeaways for those that weren't able to attend today: 1. Ethics DNE morals. What is right or wrong to you may not accord with the Code of Conduct or rules. While a strong moral and ethical code is important from a personal development perspective, we have both permissive and obligatory ethical rules which are in place irrespective of our personal views. 2. Ethics is also a practice. Our education is light coming into practice. Something I mention during all of my articling student interviews is to bookmark the code, rules, ADMA, practice advisors and bencher pages on the LSBC website. Ethical issues are contextual and fact driven, and we should be vigilant and curious in each new circumstance as we grow our ethical understanding and practices. 3. Get advice from a practice advisor, another lawyer or a bencher and record the advice and your deliberations. In the unlikely event you find yourself in a practice standards or discipline process, being able to establish that you identified an ethical issue, consulted with one or more third parties on the issue confidentially, recorded the results of those discussions and recorded your own deliberations and determinations will be helpful in navigating the same. 4. Approach all ethical issues with an abundance of caution. Ethical issues are often where the rubber meets the road on your reputation and professional risk. Just like driving, respect the rules of the road and other drivers, and keep your speed safe. If you ever have ethical concerns, I'm just a phone call away. As are the terrific practice advisors and benchers at the Law Society of British Columbia. Thanks for the great seminar and for sharing your insights, guidance and expertise gentlemen!

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What is law the around the disclosure of records for speed measurement devices in BC? The rules of disclosure for these records would depend on which disclosure regime the Court deems to apply. These can be the law of disclosure under the Crown’s obligation to disclose, or the common law rules. In cases dealing with radar evidence, the leading case is from the BC Supreme Court in R v Khadikin, [1999] BCJ No 2575. In that case, the Court stated there must be: Evidence that the officer was a qualified radar operator; Evidence that he was operating a radar unit; and Evidence that the unit was tested and found to be working correctly. Case law in BC suggests that (maintenance, service, and calibration records are considered disclosure relevant to the accuracy of the speed measuring device. These items affect the Crown being able to establish evidence that the unit was tested and found to be working correctly. https://lnkd.in/gXVs6aPh

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𝐇𝐨𝐰 𝐖𝐢𝐥𝐥 𝐃𝐞𝐜𝐫𝐢𝐦𝐢𝐧𝐚𝐥𝐢𝐳𝐢𝐧𝐠 𝐋𝐚𝐭𝐞 𝐓𝐃𝐒 𝐏𝐚𝐲𝐦𝐞𝐧𝐭𝐬 𝐈𝐦𝐩𝐚𝐜𝐭 𝐁𝐮𝐬𝐢𝐧𝐞𝐬𝐬𝐞𝐬? Today's budget introduces a significant change: decriminalizing late payment of TDS if paid before the TDS statement filing deadline. This long-standing request being granted sends a positive signal to the business community, easing compliance burdens and fostering a more supportive environment. How do you think this will benefit businesses? Share your thoughts! #Budget2024 #TDS #BusinessCompliance #PositiveChange

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Welcome to Spin Legal on August 21st, 2024, with Angela Browne and Peter Giblett. Tonight our topic is: the origins of the Paralegal movement in Ontario #legal #ontario

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Clients want to know that you are fighting with them in the trenches, given what is at stake. #longtermdisability #personalinjury #personalinjurylawyer #torontolawyer #personalinjuryattorney #personalinjuryattorneys #personalinjurylawfirm #torontolawfirm #torontolawfirms #TADLaw

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So you want to be a social media influencer? Well just like any other business, there are legal requirements that apply, with one of them being you have to be careful criticizing other companies online. In a recent decision, the BC Supreme Court awarded a beauty company $350,000 in damages after a YouTuber made a series of defamatory videos about the company and their products. In awarding such a large damages award, the Court sought to compensate the plaintiffs, denounce the defendant’s conduct and deter other social media personalities from seeking to profit by saying increasingly scandalous things online. Key takeaways Companies that are defamed online by social media influencers and commentators may be eligible for large damages awards and injunctive relief. Factors that courts will consider when assessing damages for defamation include: the nature and seriousness of the defamation; the mode and extant of publication; the impact on the plaintiff; the defendant’s conduct through to the end of the trial; and whether the defendant has apologized. If the defendant’s defamatory comments are motivated by malice, additional aggravated damages may be awarded. Finally, punitive damages may be awarded where the court believes it is necessary to deter similar defamatory statements in the future. With the large damages award in this case, the Court expressly sought to deter social media influencers from making defamatory comments in order to get more followers and increase their profits. The Court also highlighted that, compared to other forms of defamation, internet defamation is much wider in scope and has more potential to damage the reputations of individuals and companies.[19] Companies whose reputation has been damaged by defamatory online comments may be able to rely on this decision to seek significant damages awards, restore their reputation and deter future defamers. My Dentons colleagues Morgan Camley, Andrew Mollard and Ivy Yang have prepared an analysis of this case to help influencers navigate this issue in Canada. Analysis here: https://lnkd.in/gXRestxx

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When it comes to new taxes on residential real estate, BC and Ontario are essentially on the same page - but with a twist. In particular, both provinces have vacancy taxes. These generally apply to owners of second or partially occupied homes. But their tax models are different: essentially, provincial vs. municipal authority. This means there’s a different impact on specific communities. Ontario established a Provincial Policy Framework. Effectively, it expanded the authority for many municipalities to impose their own local vacancy tax. This has been done in Toronto, Ottawa, Hamilton and Windsor. The tax administration, which can be costly, is the responsibility of the participating city council. But, on the flip side, it banks the revenue. https://lnkd.in/d6NjTXTK London, as the most recent example, seems to be rejecting the idea within its boundaries after a cost-benefit analysis. https://lnkd.in/dywYkQSY. BC, in contrast, has a far more centralized approach. The province administers its speculation and vacancy tax, and collects the revenue. Local governments generally have no say on whether the province might choose to expand the geographic scope of the tax to include their communities. The exception is Vancouver, which was empowered to impose its empty homes tax before this approach was solidified. The province has since refused to grant a similar power to other municipalities. https://lnkd.in/dH_GHGPE (The federal government, for its part, complicated this picture by imposing an equivalent tax, known as the underused housing tax. It applies nationally but only burdens foreign owners.) This perhaps subtle distinction between Ontario and BC can be an important dynamic for folks in the industry, and their tax advisors, to be aware of, especially in smaller markets that depend more on recreational occupancies.

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