Insurers Can Deny Coverage After a Claim Is Accepted, SCC Rules November 24, 2021 – “The Supreme Court of Canada recently clarified that an insurer with no prior knowledge of a policy breach may later deny coverage once the breach has been discovered.”
Pitblado wins at the Supreme Court November 29, 2021 – “The Supreme Court rules that an employment discrimination dispute involving a unionized worker should be settled by a labour arbitrator appointed under the collective agreement, not by a human rights adjudicator.”
Misgendering Employees Can Result In Damages Against Employers November 23, 2021 – “Two recent decisions of Human Rights Tribunals in Ontario (EN v Gallagher’s Bar and Lounge, 2021 HRTO 240) and British Columbia (Nelson v Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137) highlight the importance of employers respecting the preferred pronouns of their employees, and the potential consequences should an employer fail to show such respect.”
How Can You Contest A Blood Alcohol Test? October 14, 2021 “For years, police had to have a reasonable suspicion that a driver was under the influence before they could mandate them to take a breathalyzer test. What amounted to reasonable suspicion was variable. An officer might pull someone over if they saw them leave a bar and start driving, if their driving was erratic, or for any other number of reasons. In Manitoba, this is no longer the case: officers can administer mandatory breathalyzer tests without reasonable suspicion. That complicates one of the more common defences against DUIs.”
How Does Sandbagging Work in M&A Deals? October 7, 2021 “While both the federal and provincial governments have encouraged private sector employers to impose vaccination policies, it is not mandatory at this time. Employers are responsible for determining the appropriate balance in their workplace between health and safety considerations and the human rights and privacy interests of their employees.”
Critiquing Predictive Policing – Mikal Sokolowski “…predictive policing is considered a divisive controversial policing method, even considering the purported benefits that it offers. Although predictive policing has not been fully adopted in Canada, it has seen rapid adoption in the United States over the last ten years, which is understandable considering the benefits that predictive policing potentially offers. These benefits include predicting when, where, and who will be involved in crimes based on empirical data. Moreover, the reduction in crime rates once predictive policing has been implemented are staggering. However, there are several concerns with the adoption of predictive policing, including that it is generally operated by third parties. This reality means the police may not understand how to properly interpret the data and the data may not be subject to public scrutiny.”
New articles from the Canadian Journal of Law and Society and Criminal Law Quarterly are now available for Law Society members upon request. For a pdf copy of these, or other legal journal articles email us at library@lawsociety.mb.ca.
Canadian Journal of Law and Society
Introduction 36 No. 2 Can. J.L. & Soc’y 189 Dia Dabby, David Koussens
“This article reflects on the question of how culture and religion enter legal cases and public debates about the place of majoritarian religious symbols in diverse societies that have some democratic will to inclusion. In the context of the new diversity, the article considers how the articulation of “our culture and heritage” as a strategy for preserving “formerly” religious symbols and practices in public spaces excludes particular groups from the narrative of who “we” are as a nation. The reader is invited to consider how challenges to such symbols and practices might be articulated as a challenge to privilege and power and that a refusal to acknowledge those power relations puts the reputation of democracy and human rights at risk.”
Formalizing Secularism as a Regime of Restrictions and Protections: The Case of Quebec (Canada) and Geneva (Switzerland) 36 No. 2 Can. J.L. & Soc’y 283 Amélie Barras
Voting on Belonging 36 No. 2 Can. J.L. & Soc’y 263 Dia Dabby , Assistant Professor, Département des sciences juridiques, UQAM, Dabby.dia@uqam.ca
Introduction 36 No. 2 Can. J.L. & Soc’y 195 Dia Dabby, David Koussens
L’État Canadien et la Reconnaissance des Droits Religieux Autochtones 36 No. 2 Can. J.L. & Soc’y 245 Claude Gélinas
La Loi sur la Laïcité de L’État et les Conditions de la Fondation Juridique D’Un Modèle Interculturel au Québec 36 No. 2 Can. J.L. & Soc’y 323 Louis-Philippe Lampron
L’Effacement de la Laïcité Libérale en France. De la Séparation du Politique et du Religieux vers la Promotion du ⪡ Vivre-Ensemble ⪢ 36 No. 2 Can. J.L. & Soc’y 303
Convergence Culturelle et Légistique: Pour un Modèle Québécois D’Intégration Distinct Consacré par une Loi-Cadre 36 No. 2 Can. J.L. & Soc’y 339 Guillaume Rousseau
Criminal Law Quarterly
No More Extensions of Criminal Law Through Injunctions? Policing Blockades 69 C.L.Q. 402 Kent W. Roach
The Objectivity of Proof Beyond a Reasonable Doubt 69 C.L.Q. 513 Gerald T.G. Seniuk
“The thesis postulated here explains how the vague standard of “proof beyond a reasonable doubt” can be understood as an objective standard of proof even though the decision isbased on a subjective feeling of certitude. In the main, the objective nature of the reasonable doubt standard of proof can only be discerned as patterns emerge over time through the decisions made by individual judges in different cases. Most guilty verdicts depend on the trier’s strong subjective feeling of certitude about the guilt of the accused, a subjective certitude that is much closer to absolute certainty than it is to a probability, but still short of absolute certainty. This subjective feeling of certitude is constrained from slipping into arbitrariness or whimsy by the legal requirements that the verdict is correct in law, is reasonable, and is supported by the evidence. However, even with those constraints, there is room for uncertainty and disagreement. What elevates the subjective feeling of certitude to the level of objective proof is the agreement of a defined group of reasonable, informed people. In other words, the objectivity of proof beyond a reasonable doubt is a socially constructed objectivity that is defined by a methodology of agreement. This methodology of agreement is similar to what sociologists refer to as an objectivation and epistemologists as objectification.”
Requiem for a Representative Jury? So Long Peremptory Challenge and Hello Expanded Judicial Stand By 69 C.L.Q. 436 Brian Manarin
Notes and Comments R. v. Griffith and R. v. Leonard : A Dangerous Assumption in Recent Right to Counsel Cases Criminal Law Quarterly 2021 69 C.L.Q. 404 Kent W. Roach
Notes and Comments Revisiting the Air of Reality Test Within the Context of the Defence of Provocation: A Case Comment on the Court of Appeal for Ontario’s Decision in R. v. Alas Criminal Law Quarterly 2021 69 C.L.Q. 411 Kent W. Roach
Jury Selection Is Not Random Selection: A Methodological Critique of R. v. Kokopenace and a Recommended Solution 69 C.L.Q. 464 Michelle I. Bertrand, David Ireland and Richard Jochelson
A full list of new issues from popular journals provided below. For a PDF copy of any of these articles, email us at library@lawsociety.mb.ca.
Journal of Parliamentary and Political Law
Crimes Against D/democracy 15 J. Parliamentary & Pol. L. 461 Gregory Tardi
Canada’s Judicial Appointment Process le Processus des Nominations à la Magistrature au Canada 15 J. Parliamentary & Pol. L. 465 Roger Bilodeau,
Is the British North America Act, 1916 Still on the Books? The Balfour Declaration, Constitutional Amendments and Statute Law Revision Acts 15 J. Parliamentary & Pol. L. 471 Thomson Irvine
“The British North America Act, 1916 was a highly significant statute in its time. Enacted in the middle of the Great War by the British Parliament at the request of the Parliament of Canada, it extended the life of the twelfth Parliament of Canada by one year, deferring the federal general election from 1916 to 1917.1 That deferral contributed to the Conscription Crisis of 1917, which shattered national unity on linguistic lines. The BNA Act, 1916 also set the precedent for s. 4(2) of the Canadian Charter of Rights and Freedoms, *472 which allows for the extension of the term of the House of Commons or a provincial legislative assembly during war, invasion or insurrection.2 The BNA Act, 1916 was a major piece of constitutional legislation.Yet the BNA Act, 1916 is not included in the list of statutes which make up the Constitution of Canada”
The Promise of R. v. Sharma: An Opportunity to Constitutionalize the Principle of Restraint as a Principle of Fundamental Justice 15 J. Parliamentary & Pol. L. 505 Michael A. Crystal
The Justiciability of the Right to Free Basic Education Conundrum in Nigeria, South Africa and India: From Obstacle to Miracle 15 J. Parliamentary & Pol. L. 525 Emmanuel Olugbenga Akingbehin
The Antagonistic Style of Judicial Review in Bangladesh: A Good Candidate for the Dialogic Model? 15 J. Parliamentary & Pol. L. 549 M. Jashim Ali Chowdhury
Viruses and Votes: Elections During COVID-1915 J. Parliamentary & Pol. L. 575 Matthew LeBlanc
The Canadian Approach to Inmate Voting Rights 15 J. Parliamentary & Pol. L. 585 Kimvy Ngo
(Mis)Direct Democracy: Social Constraints and Legal Solutions for Referenda Concerning Electoral Reform in Canada 15 J. Parliamentary & Pol. L. 595 Kassandra Neranjan
The “Democratic Deficit” of the European Union: Fact or Fiction? 15 J. Parliamentary & Pol. L. 607 Liam Brunton
Can a Senator Be Suspended without Pay? The Duffy Case 15 J. Parliamentary & Pol. L. 623 B. Thomas Hall
Canadian Refugee Lawyers Association (CARL) v. Canada: Legal Challenge to COVID-19 Direct Back Policy for Refugee Claimants 15 J. Parliamentary & Pol. L. 637 Arghavan Gerami, Stéfanie Morris
Notable Case Law Concerning Legislative Bodies and Their Members 15 J. Parliamentary & Pol. L. 645 Melanie J. Mortensen
Book Reviews
Review of: Law, Rights, and Discourse: The Legal Philosophy of Robert Alexy by George Pavlakos, ed. (Portland, Ore.: Hart Publishing, 2007) 15 J. Parliamentary & Pol. L. 663 Megan Ma
Review of: Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms by Hamish Stewart (Toronto: Irwin Law, 2020) 15 J. Parliamentary & Pol. L. 671 Michael A. Crystal , Peter Ketcheson
Intellectual Property Journal
The Perplexities of Patent Prosecution History: Procedure over Principle? 33 I.P.J. 225 David Vaver
Assessing Trademark Distinctiveness: Comment on Section 32(1)(b) of the Trademarks Act 33 I.P.J. 241 Daniel R. Bereskin, C.M., Q.C.
AI and Patents: Finding Harmony between Protection of Intellectual Property Rights and Innovation 33 I.P.J. 253 Anna Morrish
Assessing the Governance of Wearable Technology in the Changing Privacy RegulatoryFramework 33 I.P.J. 279 Summer Lewis
The Right to Be Forgotten in Canada 33 I.P.J. 303 Elif Babaoglu “Even though a vast majority of Canadians currently express that they are concerned with losing control of their personal information, Canadian law does not provide individuals with a right to be forgotten to remedy this issue. Accordingly, Canadian data protection laws should be reformulated to encompass and implement a law similar to the right to be forgotten to provide data subjects with more robust protections for their fundamental rights and freedoms.”
Insolvency Institute of Canada Articles
This is an Intervention: Reflections on the Interventions Brought by the Insolvency Institute of Canada between 2013-2020 I.I.C. Art. Vol. 10-15
Is Canada a Beacon of Co-operation in International Insolvency Proceedings? Recent Developments Under Part IV of the CCAA (Articles) I.I.C. Art. Vol. 10-7
Guiding Principles for Distressed M&A Transactions: Choosing the Right Path and the Future of POAs and RVOs I.I.C. Art. Vol. 10-5
Reverse Vesting Transactions: An Innovative Solution to Restructure Insolvent Cannabis Companies I.I.C. Art. Vol. 10-10
The Use of Pierringer Releases in CCAA Restructuring Plans: A Bicycle for a Fish? I.I.C. Art. Vol. 10-13
”Come a Little Bit Closer”: Convergence and its Limits in Canadian Restructuring Law I.I.C. Art. Vol. 10-1
The Art of Marshalling: The Good, the Bad, and the Potential I.I.C. Art. Vol. 10-11 “The equitable doctrine of marshalling is seldom in the forefront of judicial discussion and appears infrequently in case law; however when it is raised, it gives reason for pause. Marshalling recently came to the writers’ notice as being worthy of closer attention as a result of the Manitoba Court of Appeal’s decision in Wolfe et al. v. Taylor. The Manitoba Court of Appeal’s decision to decline to apply the doctrine was based primarily on the “single common debtor rule.” The appeal court’s refusal to give effect to the doctrine of marshalling forms the impetus for this paper, which re-examines the numerous and technical rules governing the applicability of the doctrine, and how the doctrine has not been applied flexibly. The authors then advocate for a more flexible approach to be taken (“it’s time to start”), and explore how marshalling may be used within an insolvency proceeding to achieve the desired flexibility.”
Measuring Up: Improving Analysis of Outcomes in CCAA Cases I.I.C. Art. Vol. 10-8
Creditor Protection and Litigation Funding Arrangements in the Wake of Bluberi I.I.C. Art. Vol. 10-4
The Cost of Doing Business: Issues Regarding Priority for Environmental Reclamation Costs and Lessons from the Yukon Zinc Receivership I.I.C. Art. Vol. 10-12
How Safe is the Harbour: Eligible Financial Contracts and the Bellatrix CCAA Proceedings I.I.C. Art. Vol. 10-6
The Use of Third-Party Releases in Canadian Restructuring Proceedings I.I.C. Art. Vol. 10-14
Where’s the Plan? The Declining Role of CCAA Plans in the Canadian Restructuring Landscape, and When They Still May be Needed I.I.C. Art. Vol. 10-16
Consent is Key: Constituting Pledges of Cash in Québec I.I.C. Art. Vol. 10-2
Recent Developments in CBCA Plans of Arrangement — Finding the Balance Between a Facilitative and a Functional Process I.I.C. Art. Vol. 10-9
Court Officers as Litigants, or What Happens When Restructuring Professionals Step into the Ring I.I.C. Art. Vol. 10-3
Education and Law Journal
Classrooms in Crisis: Workplace Violence and Harassment Experienced by Educators in Ontario 30 Educ. & L.J. 149 Jennifer Del Riccio
In the Crosshairs: The Precarious Status of Academic Freedom in the United States and Australia 30 Educ. & L.J. 197 Paul Babie, Charles J. Russo
The Status of Youth under the Civil Code of Quebec 30 Educ. & L.J. 173 Ned Lecic, Marvin A. Zuker
Remote Learning During the COVID-19 Pandemic and the Interpretation of Collective Agreements 30 Educ. & L.J. 219 Natasha Abraham
Reaffirming Deference to Joint Submissions on Penalty 30 Educ. & L.J. 225 Parmbir Gill
Good Intentions Are Not Good Enough: Sexual Misconduct Policies Do Not Guarantee Reasonable Outcomes for Students 30 Educ. & L.J. 231 Emily Home “Since 2016, post-secondary institutions in Ontario have been required to have a sexual violence policy that outlines how they address complaints and incidents of sexual violence. However, the legislature has not dictated the contents of that policy, merely that a policy must exist. There have been numerous high-profile news stories across the country that demonstrate many universities are still struggling with the balance to be struck between protecting students from sexual misconduct, punishing students who engage in sexual misconduct, and maintaining procedural fairness and integrity. Doe v. the University of Windsor is another demonstration of the fact that the mere existence of a sexual violence policy is not sufficient to guarantee a reasonable outcome. Universities must ensure that investigators and decision-makers are trained in handling such matters, in order to avoid unreasonable outcomes such as the one addressed by the Divisional Court in this case.”
Canadian Criminal Law Review
The Reasonableness of Regulatory Searches: Saying Goodbye to the Criminal-Regulatory Binary 26 Can. Crim. L. Rev. 77 Steven Penney
The Rule of Law: The Role of the Various Participants in a National Security Context 26 Can. Crim. L. Rev. 29 George G. Dolhai
Fault, Causation and Absolute Liability in Criminal Code s. 320.14 26 Can. Crim. L. Rev. 1 Ami Kotler “As a matter of legal theory, however, the amendments raise difficult questions about the status of liability. As the law has recognized for many years, driving covers a continuum of risky behaviours, some of which are allowed, some of which are appropriately covered by regulatory offences and some of which are truly criminal. Any of these can cause a collision that results in death or bodily harm. By failing to connect the accused’s driving to his or her intoxication, do the new sections allow absolute liability–that is, liability in the absence of fault concerning the death/bodily harm element of the offence? If not, what is the fault component attached to that element? What is its threshold? These may prove hard questions to answer, particularly where an accused causes death or bodily harm while driving unremarkably notwithstanding his or her impairment.”
Book Reviews
A Guide to Mental Disorder Law in Canadian Criminal Justice (Michael Davies, Anita Szigeti, Meaghan McMahon and Jill R. Presser, LexisNexis: 2020) 26 Can. Crim. L. Rev. 109
Meaghan McMahon and Jill R. Presser, LexisNexis: 2020) 26 Can. Crim. L. Rev. 109 Justice Patrice F. Band
Oxford: Hart Publishing: 2018. Pp. xxxv, 275) Canadian Criminal Law Review 26 Can. Crim. L. Rev. 117 Barry Sullivan
Detention of Terrorism Suspects: Political Discourse and Fragmented Practices (Maureen Duffy, Oxford: Hart Publishing: 2018. Pp. xxxv, 275) 26 Can. Crim. L. Rev. 117 Barry Sullivan
Canada-United States Law Journal
Welcome & Opening Of The 2020 Cusli Symposium 145 Can.-U.S. L.J. 1Stephen J. Petras, Jr., The Honorable James J. Blanchard, Chios Carmody, Speakers
Keynote Presentation–Harmful Algal Blooms In The Great Lakes Basin: A Binational Sub-Federal Approach? 145 Can.-U.S. L.J. 5Dr. Kathryn Bryk Friedman, Dr. Irena F. Creed, Speakers
Government Regulatory Panel 145 Can.-U.S. L.J. 13Stephen J. Petras, Jr., Katrina Kessler, Karen Stainbrook, Dr. Madeline Magee, Michael Alexander, Chitra Gowda, Tricia Mitchell, Dr. Lucinda Johnson, Moderator, Speakers
Academic & Ngo Panel 145 Can.-U.S. L.J. 30Stephen J. Petras, Jr., Todd Brennan, Dr. Diane Dupont, Howard Learner, Moderator, Speakers
Question & Answer Period 145 Can.-U.S. L.J. 40Stephen J. Petras, Jr., Moderator
Conclusion By The Authors 145 Can.-U.S. L.J. 48Dr. Kathryn Bryk Friedman, Dr. Irena F. Creed, Speakers
Canada-U.S. Law Institute Special Webinar On The 2020 U.S. Election–The 2020 U.S. Election: Implications For Canada 145 Can.-U.S. L.J. 52Dr. Christopher Sands, Chios Carmody, Speakers
Welcome & Opening Of The 2020 Cusli Experts’ Meeting 145 Can.-U.S. L.J. 71Stephen J. Petras, Jr., Dr. Christopher Sands, The Honorable Jane Harman, Speakers
Keynote Address–The United States And Canada: Outlook For Bilateral Relations In 2021 145 Can.-U.S. L.J. 75Ambassador Kirsten Hillman, The Honorable Jane Harman, Moderator
Panel Discussion–Predictions For The Bilateral Relationship 145 Can.-U.S. L.J. 81Diane Francis, Lauren Gardner, Alexander Panetta, Moderator, Speakers
Copyright Tariffs Are Not Mandatory, Says Supreme Court of Canada Aug 16 “Copyright users will welcome this decision while copyright collectives may find that it complicates copyright enforcement. Since board-approved tariffs are not mandatory for non-licensees, copyright collectives might need to rethink their strategy. Going forward, copyright collectives may require creators to assign or provide exclusive licenses to their works or, it may lead to creators dealing with users and pursuing infringement directly. The SCC’s decision also offered guidance on how courts could analyze fair dealing in the context of educational institutions.”
Healthy Hire MB Program: Applications Open, Eligibility Expanded July 30 “On June 24, 2021, the Province of Manitoba announced the Healthy Hire Manitoba Program (the “Program”), a new wage subsidy program that will reimburse local employers outside of the public sector who hire or rehire vaccinated employees.”
Canadian Tax Acts Across the Nation Adapt to Online Transactions July 6 “The extension of Manitoba’s sales tax proposes to be in force as of December 1, 2021, making it the last province to target online sellers with provincial sales taxes. The proposed changes suggest that Manitoba believes it will collect over $8 million per year by extending provincial sales taxes to streaming services, online marketplaces and online accommodation platforms.”
The Right to Disconnect July 21 “The Canadian Government has noticed the lines have been blurred between being “at work” and “not at work”. Consequently, it has established the Right to Disconnect Advisory Committee, which began in October 2020 to hold a series of meetings with stakeholders, including the Canadian public, in order to obtain further information surrounding the right to disconnect and consider the logistics of such legislation.”
The Overcriminalization of COVID-19 – Sarah Sharp “COVID-19 poses a serious risk of being misunderstood in the way HIV was when it was first discovered. Information on COVID-19 changes almost daily and new information is constantly being uncovered. As of right now, there are a ton of unknowns about the virus, which means that the justice system risks over-criminalizing COVID-19 due to a lack of knowledge of the realistic risks involved. The justice system should be careful to consider what medical evidence is available, and also be flexible to acknowledge and apply any new scientific discoveries about COVID-19.”
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