Self-Defence in Canada – the Khill case Peter Khill Gets 8 Years for Manslaughter After the Supreme Court Ordered a New Trial Based on New Self-Defence Guidelines To the surviving family members of Jonathan Styres, the scales of justice have finally balanced. Seven years have elapsed since Peter Khill fatally shot Styres, who was seemingly attempting to steal Khill’s pickup truck parked in the driveway of his home. After three trials (including one mistrial) and several appeals, Khill was recently sentenced to 8 years in prison for manslaughter. You can read about the facts in greater detail here. At the initial trial, Khill pleaded self-defence and the jury found him not-guilty of second-degree murder. The Crown successfully appealed to the Ontario Court of Appeal (“ONCA”), who unanimously ordered a new trial. Khill appealed this decision, but in 2021, the Supreme Court of Canada (the “SCC”) upheld the ONCA’s decision while opining on the proper way to analyze self-defence. A New Regime for Self-defence in Canada Self-defence or the use of force to protect yourself against harm, is a legal concept and defence in Canada that is codified at section 34 of the Criminal Code. Under this “Defence of Person” section, the Code provides a complete defence to the actions of an accused if they are reasonable and committed while protecting themselves or another person. Parliament enacted legislation in 2013 which drastically changed the application of self-defence. The amendments primarily affected the former sections 34-37 of the Criminal Code and were designed to make the law of self-defence more easily understandable and accessible to Canadians.[i] In the Khill case, the SCC was mainly focused on the new section 34 as it directly related to accused’s claim of self-defence and whether it was reasonable. Justice Sheila Martin, writing for the majority, explained that the initial trial judge improperly instructed the jury on the requirements under the 2013 amendments, thereby invalidating the verdict.[ii] Section 34(1) (a) to (c): The Three Inquiries Justice Martin provided an analysis of the three inquiries and conditions to be met under Section 34(1) of the Criminal Code to make out the defence. She characterized the three inquiries as follows: The Catalyst – defined as “the accused’s state of mind and the perception of events that led them to act.” Their state of mind must be based on an “actual belief” which is objectively reasonable.[iii] The Motive – defined as “the accused’s personal purpose” in committing the crime. This is a subjective, not an objective, inquiry. Justice Martin summed this up in the following way: “If there is no defensive or protective purpose, the rationale for [self-defence] disappears.”[iv] The Response – the SCC emphasized that this really examines the reasonableness of the accused’s response.[v] Section 34(2)(c): The Accused’s Role in the Incident Section 34(2) of the Criminal Code provides a non-exhaustive list of factors for the court to consider when looking at whether the actions of the accused are reasonable in the circumstances under s. 34(1)(c). The key factor that was interpreted in the Khill decision was s. 34(2)(c) – “the accused’s role in the incident”. The majority defined the accused’s role as their “contribution toward something, without necessarily suggesting full responsibility or fault.”[vi] By delineating the accused’s role and the extent to which they played it, the SCC reasoned that judges and juries will be better equipped to assess the reasonableness of the response. Crucially, this role can, but does not need to, be characterized by “provocative, unlawful, and morally blameworthy conduct”. Triers of fact are to consider the accused’s contribution to the incident, then are to evaluate whether their conduct “as a matter of logic and common sense, could tend to make the accused’s act more or less reasonable in the circumstances.”[vii] Conclusion What emerged from this reasoning was that the judge in Khill’s first trial did not instruct the jury along these lines. So, the SCC used the Khill appeal as an opportunity to expound on what Parliament intended to do with the new regime, as well as what the amendments to the Criminal Code require of fact-finders. The majority then ruled in favour of a new trial at the Superior Court. The final trial ultimately resulted in a different verdict from a properly instructed jury: guilty for manslaughter. This means that the jury found Khill’s role in the incident led to an unreasonable response, thus vitiating his defence of self-defence. If you or someone you know has been charged with an offence, please contact criminal defence lawyer David Schell to discuss any questions and your options at 416 446-5096 or david.schell@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” This blog was co-authored by Summer Law Student, Rachel Weitz. [i] https://www.justice.gc.ca/eng/rp-pr/other-autre/rsddp-rlddp/index.html#:~:text=Legislative%20Objective%20and%20Overview%20of%20New%20Defences [ii] R v Khill, 2021 SCC 37 at paras 4-5. [iii] Ibid at paras 52-3. [iv] Ibid at para 59. [v] Ibid at para 74. [vi] Ibid at para 84. [vii] Ibid at para 124. By Fauzan SiddiquiBlog, Criminal LawJuly 10, 2023July 24, 2023
Feelings of Anger and Frustration are Not Compensable Mental Injuries Bothwell v London Health Sciences Centre Mental injuries can be as devastating as physical injuries to the people who experience them, but they are not as easily recognized as injuries by the courts. By law, individuals need to meet a high threshold to prove a compensable mental injury, which includes demonstrating impairment of cognitive functions or daily life. In general, this means that feelings of anger and frustration are not compensable mental injuries. To put this in context, consider the following vignette: You are driving home from work and enter an intersection when the light is green. Out of nowhere, another car comes rushing through the red light and crashes into you. You survive, but receive a concussion, several broken bones, and spinal injuries. Each of these injuries severely impact your ability to work and live your life. You also feel extreme frustration and anger that this happened to you through no fault of your own and because of another person’s reckless actions. These feelings are overwhelming. For this reason, you have become short and irritable with many family and friends and have alienated some of them. You feel as though these feelings have had as much of an impact on you as your physical injuries because of their deleterious effects. You wonder, “can I be compensated for these types of injuries?” The question of whether a person can be compensated for mental injuries together with physical injuries was addressed in the recent Ontario Court of Appeal decision Bothwell v London Health Sciences Centre.[1] In Bothwell, the court clarified what is required for a compensable mental injury and whether persistent feelings of anger and frustration qualify. In essence, for a mental injury to be legally recognized as compensable, it needs to be serious and enduring, surpassing the common irritations, worries, and fears that are part of everyday life. Emotional reactions beneath this threshold — such as distress, aversion, anxiety, or agitation — are not legally recognized as compensable mental injuries. Facts of the Bothwell Case Mr. Craig Bothwell suffers from Crohn’s disease. In September 2011, Mr. Bothwell went to London Health Sciences Centre, Victoria Hospital to undergo a surgical procedure connected to his condition. Following the procedure, his doctor ordered that he be given a blood volumizer, but a nurse mistakenly administered an anticoagulant instead. As a consequence, Mr. Bothwell experienced internal bleeding and required emergency surgery. He would also undergo several more surgeries to repair further damage. In addition to his physical injuries, Mr. Bothwell felt frustrated and angry about his experience; i.e., that this serious injury happened to him through no fault of his own and because of another person’s carelessness. The Test for Compensable Mental Injuries Compensable mental injuries were first recognized in Mustapha v Culligan of Canada by the Supreme Court of Canada in 2008.[2] Here, the injury must be “serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept.”[3] In contrast, “[t]he law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury.”[4] Saadati v Moorhead reaffirmed this test and emphasized the difference between “mental injury” and “mere psychological upset.”[5] The Court laid out several factors to consider when assessing whether a claimant has demonstrated a mental injury and not simply psychological upset, including: the impairment on the claimant’s cognitive function and daily activities; the length of such impairment; the nature and effect of any treatment on the impairment; expert evidence or a psychiatric diagnosis; and any other evidence produced by the claimant which shows the presence of a mental injury on a balance of probabilities. In Saadati, Mr. Saadati was involved in five car accidents and the second caused him psychological injuries, including personality change and cognitive difficulties like slow speech. These changes led to a deterioration in Mr. Saadati’s relationship with his family and friends. As such, the Court found that these injuries constituted a “serious and prolonged disruption that transcended ordinary emotional upset or distress.”[6] Application in the Bothwell Case At trial,[7] Mr. Bothwell claimed that he experienced a number of psychological injuries in addition to worsening physical symptoms of his Crohn’s disease — including nightmares, emotional distress, anxiety, and depression. At trial, the court found that the error indeed caused Mr. Bothwell’s psychological upset and that Mr. Bothwell’s feelings of persistent anger and frustration met the standard for a compensable mental injury established by law. The Ontario Court of Appeal overturned the trial judge’s ruling. Here, the Court interpreted Saadati as laying out two steps to distinguish a mental injury from mere psychological upset: the claimant’s psychological upset; and the impairment of the claimant’s cognitive functions and daily life from that upset, the length of such impairment, and the nature and effect of any treatment sought. The Court found that the trial judge failed to consider the second element: …the trial judge failed to consider the degree of disturbance Mr. Bothwell experienced as a result of his psychological upset. That is, he failed to consider what impact Mr. Bothwell’s continuing anger and frustration had on his cognitive functions and participation in daily activities. He also failed to consider the absence of evidence that Mr. Bothwell sought treatment for those feelings. These failures caused the trial judge to fail to determine whether Mr. Bothwell’s continuing psychological upset met the requisite degree of disturbance to become a compensable mental injury.[8] The Court then examined whether Mr. Bothwell met this test and found that his evidence fell short. The Court saw no indication that Mr. Bothwell’s feelings of frustration and anger following the incident impaired his cognitive functions or daily life; i.e., he continued to work as a paramedic and participate in his family life as a husband and father. The Court also highlighted the importance of obtaining expert evidence — while the law does not require expert evidence to find a compensable mental injury, claimants run the risk of falling short of proving their evidentiary burden without it. The Court also clarified that while the gravity of the experience may be a relevant factor, the Saadati factors still must be considered and applied. As such, Mr. Bothwell’s persistent feelings of frustration and anger did not constitute a compensable mental injury. Summary and Conclusion Mental injuries can be equally, if not more, devastating than physical injuries. Moreover, unlike a wound or broken bone, mental injuries are not often readily apparent to the courts. As seen in Bothwell, there is a very high threshold that claimants must meet to prove a compensable mental injury. Even persistent feelings of anger and frustration will not meet the threshold unless claimants cannot also prove that these feelings impaired their cognitive functions or daily life and activities. Moreover, while not required, expert evidence of mental injury can be integral in establishing a valid claim. For more information regarding personal injury related topics, please contact David Heppenstall at Devry Smith Frank LLP at (416) 446-5834 or david.heppenstall@devrylaw.ca This blog was co-authored by Summer Law Student, Leslie Haddock “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] Bothwell v London Health Sciences Centre, 2023 ONCA 323 [Bothwell, ONCA]. [2] 2008 SCC 27. [3] Ibid at para 9. [4] Ibid at para 9. [5] 2017 SCC 28 at para 37 [emphasis in original]. [6] Ibid, at para 40. [7] Bothwell v London Health Sciences Centre et al, 2021 ONSC 6755. [8] Bothwell ONCA at para 34. By Fauzan SiddiquiBlog, Personal InjuryJuly 4, 2023July 5, 2023
How To Address Soaring Food Prices: Recommendations From The Competition Bureau Of Canada The Competition Bureau of Canada (the “Bureau”) is an independent federal law enforcement agency which aims to protect and promote competition for the benefit of Canadian consumers and businesses. The driving principle is that competition drives lower prices and innovation while also fueling economic growth. The Bureau is now casting a harsh light upon an industry which is integral to daily life: the grocery sector. In its recent market study report titled “Canada Needs More Grocery Competition,” the Bureau calls for increased competition.[1] This report arrives on the heels of constantly soaring grocery prices — the highest in over forty years. The Bureau’s recommendations therein may be viewed as an essential step in fostering a more robust and fair grocery marketplace. In brief, Canada’s grocery industry is dominated by three giants: Loblaws, Sobeys, and Metro. This domination makes it more challenging for new entrants or independent stores to compete on that scale. To address rising grocery prices and increase competition, the Bureau suggests that the Canadian government should create a “Grocery Innovation Strategy,” support independent and international grocers, introduce harmonized unit pricing, and limit property controls that hinder new grocery stores from opening. These measures aim to ensure more choice and affordability for Canadian consumers, although changes may take time. Dominance and Market Power in the Grocery Sector One of the primary concerns within the context of Competition Law is the accumulation and exercise of market power. In the grocery industry, dominant players may exert substantial control, influencing prices and choices available to consumers. Market dominance, as outlined in Section 79 of the Competition Act, revolves around entities having substantial or complete control of a class or species of business.[2] With control, there is a possibility of exerting that control to engage in anti-competitive behaviour and independently influence market dynamics. For example, Canada Bread, a major producer of baked goods, recently agreed to pay a $50 million fine after admitting to collusion in fixing the price of bread in Canada.[3] The company confessed that it had collaborated with competitors to raise wholesale bread prices, which affected consumer prices. The collusion involved discussions and agreements on price hikes between executives at Canada Bread and Weston Foods (Canada) Inc. This price-fixing scandal first came to light in 2015 when the Bureau commenced an investigation. The $50 million fine is the highest price-fixing fine ever imposed by a Canadian court. Opportunities for Reform The Bureau has put forward four key recommendations aimed at catalyzing competition in the grocery industry: Whole-of-government strategy: Creating a comprehensive government strategy to facilitate the emergence of new types of grocery businesses is crucial. This approach can ensure that there are fewer barriers to entry and the competitive landscape becomes more diverse. Encouraging independent and international players: Encouraging the growth of independent grocers and facilitating the entry of international players can break the stronghold of the few dominant entities. This could lead to more competitive pricing strategies and innovation in the sector. Harmonized unit pricing requirements: Introducing accessible and harmonized unit pricing requirements can empower consumers to make informed choices. This transparency could drive competitive pricing as consumers can easily compare the value of products across different retailers. Limiting property controls: Property controls can restrict new entrants by making it difficult for new grocery stores to open. Limiting these controls would lower barriers to entry and stimulate competition. These recommendations come while the federal government works to develop a code of conduct for grocers. In January of this year, Agriculture and Agri-Food Canada released a statement stating that this code would strengthen Canada’s food supply chain by promoting transparency, fairness, and predictability.[4] The statement acknowledges that the Code won’t solve all challenges in the food supply chain, but asserts that its adoption will bolster the supply chain’s resilience and earn consumer trust. Embracing Competition Rising consumer prices are connected to the lack of competition in the marketplace. The Bureau’s recommendations come at a time when Canadians are grappling with cost-of-living increases which are increasingly out of control. Implementing the Bureau’s recommendations can ensure a fair playing field in the grocery industry, which in turn can result in lower prices, increase choice, and provide better service. These recommendations may ultimately lead to a more vigilant approach against any other anti-competitive practices, including abuse of dominance or anti-competitive agreements among existing players. The Bureau commits to rigorously scrutinizing the industry, supporting the implementation of a grocery code of conduct, and revisiting the matter in three years. The Bureau is taking a sharp aim at identifying and breaking down the barriers to competition in Canada. These recommendations are a step in the right direction towards a more competitive and consumer-friendly grocery industry in Canada. [1] See: Competition Bureau Canada, Canada Needs More Grocery Competition: Competition Bureau Retail Grocery Market Study Report (Gatineau, Quebec: Competition Bureau, 27 June 2023); see also: Competition Bureau Canada, Competition Bureau makes recommendations to promote competition in Canada’s grocery industry (Gatineau, Quebec: Competition Bureau, 27 June 2023). [2] Competition Act, RSC, 1985, c C-34, s 79. [3] Pete Evans, “Canada Bread agrees to $50M fine for role in bread price-fixing scandal,” CBC News (21 June 2023). [4] See: Agriculture and Agri-Food Canada, Joint Statement on the development of Canada’s first-ever Grocery Code of Conduct (Ottawa, Ontario: Agriculture and Agri-Food Canada, 13 January 2023). By Fauzan SiddiquiBlog, UncategorizedJune 28, 2023June 28, 2023
The Rebuttable Presumption of Implied Consent In Motor Vehicle Accidents When the Vehicle Was Taken by Someone Else Under Section 192(3) of the Highway Traffic Act, when you rent a motor vehicle, you are ultimately responsible if you lend that vehicle to someone else. If the other person took it without your permission, you are not liable for that person’s negligence. But what if you did not explicitly provide permission for the other person to take the vehicle but the evidence suggests that your consent was implied? The Naghash case is crucial in widening the scope of what “implied consent” is in determining whether an owner of a motor vehicle or a person who leased a vehicle is liable for damages caused by operating the vehicle. In brief, the evidence must be able to rebut the presumption that a vehicle is in the possession of somebody other than the owner or the person leasing the vehicle with his or her consent. If a defendant is unable to rebut this presumption, he or she will be liable for any loss or damage caused by negligently operating the vehicle. Background On or about July 5, 2017, the defendant Mohammad Ganjikhany (“Mohammad”) parked his rented vehicle outside the mechanic shop and left the keys hanging on a board near the shop office.[1] The plaintiff Ali Mehraein (“Ali”), a friend of Mohammad, and the other defendant Vahid Pashahzahiri (“Vahid”) asked Mohammad if they could borrow the car that Mohammad rented.[2] Mohammad claimed that he said no.[3] Ali and Vahid drove away in the rented vehicle with Ali as the passenger.[4] A collision occurred while Vahid was driving Mohammad’s rented vehicle.[5] The issue for determination at the Ontario Superior Court of Justice was whether Ali had Mohammad’s express or implied consent to possess the vehicle at the time of the accident. If the Ontario Superior Court found that there was consent, then Mohammad would be vicariously liable for any loss or damage caused by Vahid. The Law In Ontario, the courts presume that an individual who has possession of a vehicle that is owned or leased by another person has that person’s consent to possess the vehicle. If that presumption is not refuted, then the owner of the vehicle or the person who leased the vehicle will also be liable for any loss or damage caused by any negligent operation of the vehicle.[6] Whether or not a vehicle is in the possession of some other person with the consent or implied consent of the lessee is a question of fact to be determined by the evidence of the case.[7] If a vehicle is in the possession of a person with the owner’s consent, the owner is liable regardless of whether the person operating the vehicle has the owner’s consent.[8] An owner cannot avoid liability simply because the operator breached conditions or restrictions placed upon him or her.[9] Implied consent requires a determination of whether the circumstances would demonstrate that the operator of the vehicle was in possession of the vehicle at the time of the accident with the owner’s implied consent.[10] Ontario Superior Court Decision The Ontario Superior Court found that Mohammad’s position that he did not provide either express or implied consent to Vahid and Ali to use the vehicle was untenable given the factual circumstances of surrounding the incident.[11] Justice McCarthy noted that Mohammad and Ali had been friends for several years, Ali was a frequent visitor in the shop, Mohammad knew of Ali’s criminal history which included stealing cars, and the keys to the vehicle were kept in a conspicuous location that would have been well-known to someone with familiarity with the shop.[12] Justice McCarthy also found Mohammad’s evidence highly problematic as Mohammad was unable to explain how Ali would have known the existence, make, and model of a leased vehicle that Mohammad had in his possession for a mere couple of days.[13] Justice McCarthy provided that the only reasonable inference to draw was that Mohammad provided a specific description of the vehicle sufficient to identify it in the parking lot because he had consented to his friend’s request to make use of it.[14] Lastly, Mohammad had assumed that Ali had taken the vehicle when he noted that it was missing from the parking lot.[15] Justice McCarthy noted that Ali did not report the vehicle to the police as he assumed that Ali would return the vehicle and did not report the missing vehicle to his wife because he did not want to upset her.[16] Justice McCarthy further rejected Mohammad’s evidence to the court that he refused the request made by Ali and Vahid to use his vehicle.[17] If Mohammad truly did not intend to have Ali and Vahid to use his vehicle, Mohammad would have taken steps to prevent them from possessing the vehicle including safeguarding his keys or take steps to facilitate the vehicle’s return including contacting the police.[18] As such, Justice McCarthy found that the evidence was inadequate to discharge the onus to prove on a balance of probabilities that express or implied consent was not provided.[19] Analysis and Conclusion The Ontario Superior Court makes it clear that the evidence must be able to rebut the presumption that a vehicle is in the possession of somebody other than the owner or the person leasing the vehicle with his or her consent. If a defendant is unable to rebut this presumption, he or she will be liable for any loss or damage caused by negligently operating the vehicle. The courts will determine whether a vehicle is in the possession of some other person with the consent or implied consent of the owner of the vehicle or the person leasing the vehicle based on the circumstances and evidence of the case. In doing so, the courts have broadened the concept of implied consent to include interpreting the parties’ relationships, past conduct, inconsistencies, and reasonable expectations to determine whether implied consent was given. This blog was co-authored by student-at-law, Abby Leung This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs. [1] 2023 ONSC 609 at para 6 [Naghash]. [2] Ibid. [3] Ibid. [4] Ibid. [5] Ibid. [6] Highway Traffic Act, R.S.O. 1990, c. H.8 s.192(3). [7] Argante v. Munro, 2014 ONSC 3626 at para 27. [8] Henwood v. Coburn, 2007 ONCA 882 at para 14. [9] Parkinson v. MacDonnell, 1995 CarswellOnt 1402 at para 52. [10] Sparks v. Cushnie et al., 2021 ONSC 213 at para 10. [11] Naghash, supra note 1 at para 14. [12] Ibid at para 15. [13] Ibid at para 16. [14] Ibid. [15] Ibid at para 17. [16] Ibid at para 20. [17] Ibid at para 19. [18] Ibid at paras 17 and 21. [19] Ibid at para 23. By Fauzan SiddiquiBlog, Personal InjuryJune 26, 2023June 21, 2023
Office of the Privacy Commissioner of Canada launches an investigation into ChatGPT: What does it mean for the Legal Profession? ChatGPT (Generative Pre-trained Transformer) is an artificial intelligence language model or deep machine learning model (also known as a “chatbot”) created by OpenAI. It is designed to understand natural language and generate human-like responses. It assists its users by answering their questions, providing information, and engaging in human-like conversation with them on a wide variety of topics. Since it’s release in November 2022, ChatGPT is now one of the fastest growing user applications in the world. Over one hundred million users are using ChatGPT to generate code, draft papers, and generate detailed and articulate answers based on their prompts. Some use ChatGPT for legal purposes. Indeed, ChatGPT has the potential to transform the legal profession, from researching complex legal questions to drafting legal documents such as employment contracts and wills — reducing work which used to take hours to seconds. In April 2023, the Office of the Privacy Commissioner of Canada announced that it was launching an investigation into ChatGPT: “AI technology and its effects on privacy is a priority for my Office,” Privacy Commissioner Philippe Dufresne says. “We need to keep up with – and stay ahead of – fast-moving technological advances, and that is one of my key focus areas as Commissioner.” The investigation into OpenAI, the operator of ChatGPT, was launched in response to a complaint alleging the collection, use and disclosure of personal information without consent. What does the introduction of ChatGPT mean for the legal profession, and what are the risks? Benefits and Drawbacks ChatGPT is a powerful tool which allows lawyers to experiment with generating legal documents and provide succinct answers for complex inquiries. A significant proportion of lawyers’ work takes the form of writing letters, briefs, pleadings, responses, transactional documents, and so forth. Through its AI-powered technology, ChatGPT can be used to streamline these time-consuming tasks, allow lawyers to quickly digest complex information, and analyze documents quickly by accurately identifying key documents and evidence. By providing these tools, ChatGPT can be beneficial for freeing up more time for lawyers to focus on their cases. But are the documents legally sound? Are the answers even correct? In brief, ChatGPT cannot be entirely trusted. While ChatGPT can create quick answers for legal questions and inquiries, ChatGPT cannot be trusted to truly comprehend complex legal concepts or jurisprudence. This serious limitation can lead to inaccurate or incomplete advice which presents a risk for both legal practitioners and to their clients. In June 2023, an embarrassed lawyer from New York asked the court not to sanction him after he made arguments based upon multiple entirely imaginary legal precedents based on a conversation with ChatGPT. The case citations generated by ChatGPT which the lawyer wrote into his brief were entirely made up. These examples of fictitious case history stated confidently by ChatGPT are examples of an artificial intelligence “hallucinations.” Given this serious risk of inaccurate or entirely imaginary information, lawyers and legal professionals would be strongly cautioned to review and double check the work which ChatGPT produces. The answers and documents which ChatGPT generates will sound confident and human-like, but they are prone to error and may be pure nonsense. With time and more training, it is expected that ChatGPT will provide more comprehensive and accurate answers. But, it is also expected that ChatGPT will generate a lot of drivel. Ethical Concerns ChatGPT also raises ethical questions arising from using artificial intelligence to resolve client concerns. Under the Rules of Professional Conduct, lawyers have an obligation to provide competent legal services and to abide by ethical considerations including security, client privacy, and privilege through the transmission of data between the firm and ChatGPT. Lawyers and legal professionals who dutifully provide ChatGPT with as much facts and context as possible, may be revealing and sharing confidential and privileged information and disseminating it to the servers hosting the ChatGPT model. While communication with these servers typically takes place over the internet using secure connections and protocols, data security and privacy of sensitive information cannot be guaranteed. However, a lawyer also has the obligation to provide efficient services. Therefore, there is a question regarding how to balance as to what extent lawyers can utilize ChatGPT to provide efficient legal services. While adopting legal technologies can assist with streamlining tasks and improving performance, it is also critical for lawyers to assess and implement technology responsibly in order to meet ethical obligations and to protect client interests. ChatGPT and Access to Justice The use of ChatGPT has also raised questions on the use of technology in improving access to justice within the Canadian legal system. ChatGPT may one day be effective in providing general legal information that can assist with directing users towards resources to learn more about their legal claims. ChatGPT’s ability to summarize complex legal topics and generate legal work products could assist numerous Canadians who are otherwise unable to access traditional legal services by providing answers for people to resolve their legal issues. However, relying on ChatGPT for legal information poses risks as it may provide outdated or incorrect advice, and lacks the specialized expertise and judgment that a qualified legal professional can offer. The widespread and ready access to ChatGPT presents a risk that users will receive inaccurate answers as well as documents that are not based on a solid legal grounds. Future and Conclusion The demand for artificial intelligence tools such as ChatGPT is clear. These tools allow users to streamline legal processes, provide greater access to legal information, and may one day be able to provide correct answers to complex legal questions. However, there is a danger that both legal professionals and their clients in using ChatGPT without considering the accuracy and ethical considerations associated with ChatGPT. It is crucial to approach using ChatGPT with caution and to ensure that legal advice provided by both legal professionals and ChatGPT is good and to a professional standard. The outcome of the investigation by the Office of the Privacy Commissioner will undoubtedly reveal additional risks and possible mitigations for the use of ChatGPT in the legal profession, but there will likely be more investigations to come. ChatGPT highlights the promise of artificial intelligence, and ushers in a new era to assist both lawyers and their clients in accessing, creating, and generating legal information to benefit the legal system. This blog was co-authored by student-at-law, Abby Leung. It was specifically not co-authored by ChatGPT. This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs. By Fauzan SiddiquiAdministration and Technology, BlogJune 21, 2023June 21, 2023
New Construction Law Case Tells Us That We Cannot Combine Breach of Trust Claims with Construction Lien Actions Amendments to the Construction Lien Act in 2017, now called the Construction Act (the “Act”), have left construction litigators confused as to whether they could combine breach of trust claims with construction lien actions. Recently, the appeal case of Devlan Construction Ltd. v. SRK Woodworking Inc. (“SRK Woodworking”) at the Ontario Superior Court of Justice clarified that breach of trust claims cannot be joined with construction lien actions.[1] Section 50(2) of the previous Construction Lien Act expressly provided that “[a] trust claim shall not be joined with a lien claim but may be brought in any court of competent jurisdiction.”[2] In the new Act, however, that section was removed altogether. The exclusion of the express provision in the new Act made it unclear whether it became acceptable to join breach of trust claims together with construction lien actions. “The issue on appeal, however, is not a question of the wisest policy choice to be made,”[3] said Justice Corbett. “The question is: what do the Act and the Regulations provide?”[4] While it may seem convenient and more cost-efficient to combine breach of trust and construction lien claims to be tried in court at the same time, there are long-standing reasons as to why those two claims were traditionally separated and continue to be separated. Lien proceedings are meant to be fast; there are consequences to stalling the construction process for a long period of time. Trust proceedings, on the other hand, are longer and more complex by nature and therefore present a problem when combined with construction lien actions. In Damasio Drywall v. 2444825 Ontario Limited, Associate Justice Wiebe found that “[i]f the Legislature intended to allow trust claims to be joined with lien claims, it should have stated so explicitly, given this mandate and the nature and complexity of a trust claim. It did not.”[5] The Associate Justice subsequently upheld his finding in the case of 6628842 Canada Inc. v. Topyurek.[6] Before the recent SRK Woodworking appeal, however, Justice Harper disagreed and overruled those two prior decisions altogether. Justice Corbett considered a couple of factors to support his decision in SRK Woodworking. One factor is that the Act “neither permits nor prohibits joinder of claims in a construction lien proceeding.”[7] Furthermore, the Act allows a litigant to rely on the Rules of Civil Procedure where it does not address procedural matters.[8] Importantly, however, the Rules of Civil Procedure do not apply when deciding which types of claims can be brought together under the Act. Justice Corbett found that when “reading the Act as a whole, one can infer an intention on the part of the legislature to leave the issue of joinder to be addressed in the Regulations.”[9] Justice Corbett considered the effect of a new Regulation which became effective under the Act in 2019 which provides that “[a] plaintiff may, in an action, join a lien claim and a claim for breach of a contract or subcontract.”[10] Considering the Regulation specifically provides for the type of joinder that is permitted under the Act, it is implied that other joinder of claims, such as joining a breach of trust claim with a construction lien action, are not permitted. If you have any questions about construction law in general, please contact Christopher Statham at 416-446-5839 or christopher.statham@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” This blog was co-authored by Law Student, Sanaz Sakhapour. [1] Devlan Construction Ltd. v SRK Woodworking Inc., 2023 ONSC 3035 (CanLII). [2] Ibid at para 7. [3] Ibid at para 15. [4] Ibid. [5] Damasio Drywall Inc. v. 2444825 Ontario Limited, 2021 ONSC 8398 (CanLII) at para 8. [6] 6628842 Canada Inc. v. Topyurek, 2022 ONSC 253 (CanLII). [7] Supra note 1 at para 16. [8] R.R.O. 1990, Reg. 194. [9] Supra note 1 at para 23. [10] O. Reg. 302/18, s. 3(2). By Fauzan SiddiquiBlog, Construction LawJune 14, 2023June 25, 2023
What Do I Need to Consider Before Buying the Property Right Next Door? Are you interested in purchasing the property right next to yours? What about the empty lot bordering your cottage property that is up for sale? Property owners often consider purchasing an abutting property for a variety of reasons. An abutting parcel of land is one that shares at least one border with a landowner’s existing parcel of land. Reasons for purchasing an abutting parcel of land might include expanding the property that the landowner already lives on, family members who wish to own their homes next to each other, and farmers who want to grow their agricultural business by purchasing abutting parcels of farmland. Although buying an abutting parcel of land may be beneficial, there are important legal factors to consider. Those factors briefly explained below could save the landowner considerable expense. Who will be the registered owner(s) of the abutting lands? Beware of the risk of merger It is important to consider the registered ownership of the abutting properties. Although there are exceptions, the general rule is that if the same party owns abutting parcels of land, those parcels merge and cannot be sold or mortgaged separately. If the owner wishes to sell or mortgage one of the merged parcels, the land must be legally severed by way of a severance application to the local municipality. It is both a lengthy and expensive process to receive a consent to sever land to form a separate parcel of land all over again. Once the land is officially severed by the municipality, it can be sold or resold without worrying about another approval process unless a future owner chooses to merge the lands again. Why do I need permission to sever my land? The municipalities in Ontario want to make sure that their communities are protected and properly organized. Likewise, the municipalities must conduct planning reviews and approvals to ensure that future severed lands conform with their individual and established planning frameworks, that there would be no conflicts with the planning goals of the local community, and that neighbours would not be adversely affected. Multiple severed lands at the discretion of individual landowners can have many consequences for a community, such as affecting the natural environment where frequent small lots can impede proper sewage disposal systems, and increasing municipal services such as garbage collection, snow plowing and school busing for children. What can I do to avoid merging my properties? A real estate lawyer can help you to find the right configuration to ownership on title for a particular property in order to avoid an automatic merger with an abutting parcel that the buyer already owns. One example of a method to avoid an automatic merger is if one spouse owns a property and they want to purchase the property next door, they could have the other spouse own some percentage of the new property or become registered owners on title together, as joint tenants, where both spouses have equal rights and obligations to the property. What happens if one of the joint tenants of a property dies, and the remaining owner is the owner of both abutting properties? The death of a joint tenant will no longer result in an automatic merger of abutting parcels owned by the surviving owner. Amendments to address this situation were made to Ontario’s Planning Act in 2022. As a result, the surviving owner will be able to deal with each parcel separately without having to seek approval from the municipality. Purchase the property next door with confidence with the help of one of our highly experienced real estate lawyers at Devry Smith Frank LLP. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” This blog was co-authored by law student Sanaz Sakhapour. By Fauzan SiddiquiBlog, Real EstateJune 9, 2023July 6, 2023
My Partner Took the House, the Kids, and Half of My Money – Can I At Least Keep the Dog? To many of us, pets are more than just animals; they provide companionship, unconditional love and affection, and become part of the family. In 2022, 60% of Canadian households owned at least one dog or cat. This number grew following the COVID-19 pandemic; one-third of pet owners have brought a pet into their home since the beginning of the pandemic. As the number of pet owners increases, so does the number of ‘pet custody’ disputes. These disputes have extended beyond the realm of dogs to include cats, reptiles, horses, and even pigs. People have even reported staying in a relationship solely to maintain access to a shared pet. These disputes leave many asking: who gets custody of your pets when your pets outlast your relationship? As many of us consider our pets to be as important as our children, we might assume that the answer lies in our pet’s best interests. The rightful owner should be the one with the bigger yard, who has the most time to spend with your pet, and who your pet is most attached to. Unfortunately, this is generally not the case in Ontario – however, recent decisions and legislative amendments hint that this could be changing. The Traditional Approach to Pet Custody The traditional approach to pet custody is that there is no pet “custody”. Animals have historically been considered chattel, or personal property, in the eyes of the law. The relevant legal test to determine ownership was who owned the animal and the adjudicator did not examine what was, or was not, in the animal’s best interests.[1] We’ve addressed this issue in two of our previous blogs on the topic of pet custody from 2017 and 2019. Courts have explicitly discounted the possibility of joint custody orders for pets as a waste of judicial resources and a source of additional stress, heartache, and wasted time and money for parties.[2] While this approach is straightforward and relatively easy for the courts to apply, it inevitably leaves one party vindicated, one heartbroken, and the best interests of the animal wholly unconsidered. But again, change may be coming. A ‘Contemporary’ Approach? Coates v Dickson, a recent Ontario Superior Court decision, adopted a ‘contemporary’ approach to dog ownership which examines the relationship between the dog and the parties claiming ownership. It states that the court must consider the following factors, including: whether the animal was owned by one of the parties prior to the relationship; an express or implied agreement in relation to ownership, either before or after the animal was acquired; the nature of the relationship between the parties when the animal was acquired; who purchased and/or raised the animal; who exercised care and control over the animal; who cared for the animal the majority of the time; who paid for the animal’s basic needs; whether the animal was a gift to one of the parties; what happened to the animal after the relationship between the parties ended; and any other indications of ownership or evidence of agreements relating to ownership.[3] This ‘contemporary approach’ incorporates elements of the traditional property-based approach, including evidence of ownership and who initially paid for the animal. However, in holding that “[o]wnership of a dog is an investment that goes beyond the mere purchase price,”[4] the court included non-property based factors, including who raised the animal, exercised care and control over them, and who was their primary caregiver. In this case, the court held that the two dogs in question were jointly owned by the former spouses and gave one to each spouse.[5] While this is far from a shared parenting time agreement, unless we’re operating under the law from The Parent Trap, it is a step towards a legal conception of pets as more than chattel. Legislative Changes in British Columbia In March 2023, amendments were proposed to British Columbia’s Family Law Act in an attempt to clarify the law on pets following the breakdown of relationships. If accepted, these changes would require the courts to consider each person’s ability and willingness to care for the animal, the relationship any children of the relationship have with the animal, and any risk of family violence or cruelty posed to the animal. Proponents of these amendments point to changing values in society surrounding pet ownership towards considering pets as family members and not property. There are currently no similar provisions in Ontario’s Family Law Act; however, if these amendments come into force in British Columbia, similar changes to family legislation throughout Canada could follow. In the Meantime, What Can I Do to Maintain Custody of My Pet? Under the current legislative regime, what can you do to ensure that you maintain custody of your pet if your relationship ends? Here are several things that can help: Keep detailed records of: who paid for your pet or their adoption fees; any unofficial agreement as to the ownership of your pet in case of a break-up; who pays for your pet on a daily basis, including food, veterinarian visits, grooming, and other basic needs; who is the primary caregiver of your pet; whether you brought your pet into the relationship or acquired them during the relationship with your partner; and whether your pet was a gift from one partner to the other. Make sure that you are listed on official paperwork as an owner of your pet, such as veterinarian records, adoption applications, and pet insurance policies. If you have or plan to get a cohabitation agreement or marriage contract, you can include a provision about who gets to keep your pet if the relationship ends. Refer to our previous blog on the legal avenues you can take to pursue custody of your pet, including commencing court proceedings or participating in arbitration. If uncertain, you can always consult with a family lawyer to discuss your options. If you have more questions about your family law matter, please visit our website or contact Katelyn Bell from Devry Smith Frank LLP at 416-446-5837 or katelyn.bell@devrylaw.ca. This blog was co-authored by Law Student, Leslie Haddock. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] Baker v Harmina, 2018 NLCA 15 at para 12. [2] Ibid at paras 23-26. [3] Coates v Dickson, 2021 ONSC 992 at para 8. This approach has been adopted in subsequent Ontario decisions. For an example, see Duboff v Simpson, 2021 ONSC 4970 at paras 18-19. [4] Ibid at para 17. [5] Ibid at paras 19-20. By Fauzan SiddiquiBlog, Family LawMay 30, 2023August 24, 2023
I Want My Partner to Sign a Marriage Contract – How Can I Make Sure This Will Stand Up in Court? Marriage evokes thoughts of fairy tale romance, soulmates, and lifelong commitment and devotion to your partner. So, it can be awkward when you have to ask the love of your life to sign an agreement anticipating the end of your relationship. A marriage contract is a legal document signed by both spouses which defines how your family property will be divided and what support will be provided to you, your spouse, and your children following divorce or the death of a spouse. Although marriage contracts are criticized as being unromantic and uncomfortable, they are far from impractical. Even when the court system was paralyzed by COVID-19 in 2020, there were over 42,000 divorces granted in Canada. As with our previous discussion about the benefits of cohabitation agreements for common-law partners, there are many benefits to having a marriage contract. Marriage contracts provide for increased certainty, flexibility, and customization within the current legislative regime; for the protection of your assets; and helps to prevent lengthy, bitter, and expensive court battles. However, there are several limitations and restrictions when it comes to enforcing these contracts. This leaves many people wondering at the end of their relationship: is my marriage contract actually enforceable? Here are five things to consider: When Do I Have to Sign a Marriage Contract? Although the name implies that you must be married, you do not have to wait until marriage to sign a marriage contract. Marriage contracts are available to married couples and couples who intend to marry; however, for the latter, the contract does not come into effect until the date of marriage. Likewise, you are free to sign a marriage contract even years after marriage. If you are in a common law relationship and already have a cohabitation agreement, then that agreement will be deemed to be a marriage contract if you marry your common law partner. What are the Requirements for a Marriage Contract? There are strict procedural guidelines that must be followed for a marriage contract to be enforceable. The document must be in writing, signed by the couple, and witnessed. This means that oral marriage contracts are not valid in Ontario. What Can Be Included in my Marriage Contract? Marriage contracts can include terms related to the ownership in or division of property, support obligations, the education and moral training of the your children, and any other matter related to the settlement of the yours and your partner’s affairs. However, as a previous blog of ours discussed, several matters cannot be included in a marriage contract, including: decision-making responsibility and parenting time for children; and provisions which limit your rights regarding possession of the matrimonial home. Can my Marriage Contract Be Set Aside by the Courts? In Canada, courts tend to favour the validity of marriage contracts and strive to “respect private arrangements that spouses make for the division of their property on the breakdown of their relationship.”[1] However, even if a marriage contract is in proper form and contains no prima facie invalid terms as discussed in the previous section, courts may exercise their discretion to set it aside. Courts can set aside any provisions which they consider to not be in the best interests of any of your children or which are unreasonable in regards to the Child Support Guidelines or otherwise in relation to the support of a child. Section 56(4) of the Family Law Act also lays out specific circumstances in which courts can set aside a marriage contract or a provision within it: if a party to the contract failed to make full and accurate financial disclosure in regard to significant assets, or debts and other liabilities; if a party to the contract did not understand the nature or consequences of the contract; and if there are any other grounds present to justify setting aside a contract under general contract law, including unconscionability, duress, undue influence, fraud, or misrepresentation. However, this section is not a “get-out-jail-free” card for people trying to invalidate their marriage contract. This section does not apply if you signed the agreement while knowing your partner’s financial disclosure was inadequate. Courts will generally also refuse to set aside contracts if you simply failed to seek legal advice and if you failed to use due diligence in seeking disclosure. The Ontario Court of Appeal set out a two-stage test to determine whether part or all of a marriage contract can be set aside in Le Van v Le Van. The applicant must meet the following conditions: Have any of the circumstances set out in section 56(4) of the Family Law Act (as set out above) been engaged? Is it appropriate for the court to exercise discretion to set aside some or all of the agreement?[2] If this test is met, then the court can intervene to declare some, or all, of your marriage contract unenforceable. As these applications come down to the discretion of the courts, it can be difficult to predict how challenges will play out. To make your marriage contract as strong as possible, it is best to avoid engaging the above circumstances altogether. For your part, you and your partner should be honest when disclosing your financial situation and seek independent legal advice before signing. What Happens if my Marriage Contract is Unenforceable? If you and your partner divorce or if one of you dies and you do not have a valid and enforceable marriage contract, then the default rules under the Family Law Act apply. If you are uncertain about whether your marriage contract is enforceable or want to ensure that your marriage contract is enforceable, it is always good practice to consult with a family lawyer. If you have more questions about your family law matter, please visit our website or contact John P. Schuman from Devry Smith Frank LLP at 416-446-5080 or john.schuman@devrylaw.ca. This blog was co-authored by Law Student, Leslie Haddock. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] Hartshorne v Hartshorne, 2004 SCC 22 at para 9. [2] Le Van v Le Van, 2008 ONCA 338 (CanLII) at para 51. By Fauzan SiddiquiBlog, Family LawMay 26, 2023June 10, 2023
Provincial Nominee Program: How it Works and Who can Apply The Provincial Nominee Program (“PNP”) allows foreign nationals to immigrate to Canada through provincial or territorial selection in partnership with Immigration, Refugees and Citizenship Canada (IRCC). Each province and territory mandate their own nomination streams through requirements tailored to address the province’s economic and labour needs. Quebec and Nunavut do not participate in the Provincial Nominee Program. Quebec has the authority to establish its own selection criteria for economic immigration. Depending on the applicable stream, applicants may use Express Entry or the non-Express Entry process. Applicants will also need to complete an immigration medical examination and submit police clearance certificates among other requirements. Under the non-Express Entry Stream, applicants who meet the eligibility requirements may apply to the province or territory for nomination. For the Express Entry Stream, applicants may apply to the province or territory for nomination. If selected, applicants will indicate the nomination in the Express Entry profile. Alternatively, an applicant may select provinces and territories of interest in the Express Entry profile, and a province or territory may send a corresponding “notification of interest” to the applicant. In addition to the requirements under the Provincial Nominee Program, Express Entry candidates must meet the minimum criteria for Express Entry including eligibility for the federal government’s Express Entry immigration programs. Provincial or Territorial Nomination: Ontario The Ontario Immigrant Nominee Program (OINP) operates nine different streams for candidates under its program. To qualify under OINP, applicants must register an expression of interest and receive an invitation to apply. Candidates may apply if they meet the eligibility requirements under the following: Foreign Worker Stream: Designed for applicants who are skilled foreign workers with a job offer in Ontario. International Student Stream: Designed for applicants who are recent graduates with a job offer in Ontario. In-Demand Skills Stream: Designed for applicants in an in-demand occupation with a job offer in Ontario. If an applicant has a Masters or PhD degree from an Ontario university, the applicant can apply for the following streams: Masters Graduate Stream: Designed for applicants who have obtained a masters degree from an Ontario university. PhD Graduate Stream: Designed for applicants who have obtained a PhD degree from an Ontario university. If an applicant has the skills and experience that an Ontario employer requires, the applicant can submit an application through the federal government’s Express Entry program: Human Capital Priorities Stream: Designed for applicants who have the required skilled work experience, education, and language abilities. Skilled Trades Stream: Designed for applicants with Ontario work experience in an eligible skilled trade. French-Speaking Skilled Worker Stream: Designed for French-speaking applicants with strong English language abilities. If an applicant is a foreign entrepreneur and wishes to establish a new business or grow an existing business in the province, the applicant may apply to the Entrepreneur Stream. To qualify, applicants must register an expression of interest and receive an invitation to apply. The OINP is a designated referral partner under Canada’s Global Skills Strategy. Conclusion The PNP program allows skilled workers to establish permanent residence in Canada through the various economic pathways that Canada’s provinces and territories have to offer. While PNP programs may be suitable for skilled workers with the required skills and work experience for a particular stream, Canada also offers other programs that allow foreign nationals to immigrate to Canada based upon other considerations such as family reunification. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. For more information about immigration and your specific circumstances, please contact a lawyer in the Immigration Law Group. This blog was co-authored by student-at-law, Abby Leung By Fauzan SiddiquiBlog, ImmigrationMay 19, 2023August 10, 2023