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    • Tag: Law

    Law and Society

    Law and Society: Forever Evolving

    By: Nicolas Di Nardo

    Canadian judges are going back to school, or at least, that’s what it feels like. Judges must “understand the people they are judging” says Justice Adele Kent, head of the National Judicial Institute. That is the primary goal of “social context” education, which is cited in a federal bill now before the Senate.

    Questions about what education should be mandatory for judges about certain issues, such as gender-based violence and sexual assault law were front and center at a human trafficking conference, which had about 45 judges attend.

    Judges were shown videos of real cases, filmed with actors, with the script taken verbatim from transcripts in order to educate judges about human trafficking, domestic violence and why a victim may not leave an abusive partner, may not call the police and may have an emotional connection to their abuser.

    The conference was interactive. It involved the group, as they were required to participate by writing questions down, and even a single word to describe how they felt about what they saw when watching video segments.

    Some of these words included “horror,” “sadness,” “disillusionment” and “helpless.”

    The 45 judges were then invited to submit questions during a break in the conference, which was then discussed with a panel.

    The panel was moderated by:

    • Alberta Court of Appeal Justice Sheilah Martin
    • Alberta Court of Appeal Justice Sheila Greckol
    • U.S. judge Ann Goldstein from the International Association of Women Judges
    • Nicole Barrett, expert on law and human trafficking (University of British Columbia)

    One of the questions was – how common is the woman’s explanation for why she did not leave?

    Barrett replied:

    “She is isolated from others, she lacks financial independence, she has broken self-esteem, she has a fear of escalated violence, she has a fear of retaliation, that they will tell her family, a psychological bond with her abuser… once you start listing the reasons she doesn’t have, it becomes fairly overwhelming.”

    The second question addressed the reason why the judges were there. The question began with “until this job and judicial education, I had no way to be aware this happens to ordinary folk.”

    Ontario made this training to take place for new judges, a mandatory piece of education that took effect in March. The training for new judges in sexual assault law and social context education is monitored by the Canadian Judicial Council.

    Just like any other occupation, judges are also in need of ongoing education to be up to date. Changes in law, social context, and other advancements within our society are crucial for judges to stay on top of. Justice Martin makes a great point, “the criminal laws have changed as societies have changed,” and judges must be educated on how and why changes occurred.

    Social context education is another important part of this training. It focuses on the understanding of diverse life situations, to understand individuals being judged, through:

    • Examinations of race
    • Disability
    • Region
    • Poverty
    • Mental illness
    • Gender-based violence

    It is designed like the human trafficking seminar, and will involve academics and community groups.

    Not only must the judges change, but police, lawyers, and alternative models from the criminal justice system must do more to tackle sexual assault.

    At Devry Smith Frank LLP we have experienced lawyers in all areas of law. If you are looking for a lawyer or have general questions, please feel free to contact one of our lawyers today, or call us directly at 416-449-1400.

    “This article is intended to inform and entertain. 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 SiddiquiBlog

    New Condo Development To Be A Game Changer For Vaughan

    Given the current landscape of the Toronto real estate market, it is not surprising that people are beginning to look further out of the city for a property.

    The market in 2016 and now 2017 has caused first-time homebuyers and downsizers to be stuck with two options:

    1. Purchase a small condo to stay in Toronto
    2. Look to the outskirts of the Greater Toronto Area (GTA) for an affordable home

    Even so, if you choose one of those options over the other, it will still cost you. In March alone, detached homes in the 416 sat at an average price of $1.56 million with condos at $550,000 and the 905 at $1.1 million average for a detached home and condos at $440,000.

    If option two is where you see yourself leaning, you may be in luck. There are many condo developments popping up all over the GTA, but in a recent article by the Toronto Star, Vaughan may be the next best place to settle outside of the concrete jungle.

    An urban vibe has been set to land in Vaughan with what they are calling, Transit City. It is a 55-storey residential tower, the first residential tower to be developed in SmartREIT’s 100-acre Vaughan Metropolitan Centre. There will be a mixture of commercial and residential projects and will be located adjacent to the Viva bus terminal which will connect to the TTC’s new subway stop.

    To further develop the Vaughan Metropolitan Centre, and provide it with some downtown credibility, Bar Buca, part of the Buca brand and King Street Food Company, will be opening their first 905 location on the main floor of the building. Mitchell Goldhar of SmartREIT has said, “the Buca name is a “huge signal” that Vaughan Metropolitan Centre has downtown credibility.”

    The goal of this development is to create an incredible city centre, as it is very much a blank slate. Construction is set to begin later in the year, or early 2018 with occupancy around 2020.

     

    “This article is intended to inform and entertain. 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 SiddiquiBlog, Real Estate

    Internet and a Breakdown of Privacy: The New Era of Sexting and The Courts’ Response

    Technology undoubtedly has great power when a superpower nation’s diplomacy can be built on 15-second tweets. A one-second decision to share, send, or post can irreversibly release data within the rest of the world’s reach. That same one second can also change a person’s life forever in a terrifying and nightmarish way.

    In Jane Doe v N.D., a couple who formerly dated in high school and had broken up continued to communicate regularly by Internet, texting, and telephone, and continued to meet up occasionally. The defendant asked the plaintiff, who were both 18 at the time, repeatedly to make a sexually explicit video of herself to send to him. She refused, but he continued to probe and send her intimate pictures and videos of himself, pressuring her to do the same. Eventually, after the defendant promised that no one else would see the video, she relented and sent him an intimate video. Later that same day, the defendant posted the video on an internet pornography website and had shown it to mutual colleagues.

    The plaintiff sued under the tort of intentional infliction of mental distress, among other causes of action. There are three elements of the tort of intentional infliction of mental distress, as set out in Prinzo v Baycrest Centre for Geriatric Care: (i) conduct that is flagrant and outrageous, (ii) conduct that is calculated to produce harm, and (iii) conduct that results in a visible and provable injury.

    Under flagrant and outrageous conduct, the court considers whether the defendant’s act constituted reckless disregard by examining whether or not mental distress or suffering would ensue from the defendant’s conduct. The court in Jane Doe v N.D. found that core examples of “flagrant or outrageous” behaviour include clear violation of promises made, and a breach of trust – a malicious purpose to cause harm or a motive of spite is not required for a finding of flagrant and outrageous conduct.

    The requirement that the conduct is calculated to produce harm is satisfied if the court finds it was clearly foreseeable that the conduct in question would cause the plaintiff profound distress. This test is met when the consequences or kind of harm are known to be substantially certain to follow.

    Finally, the third element of visible and provable injury includes both actual physical harm and also significant psychological harm, which does not require a medical expert if the court can be convinced of the plaintiff’s harm otherwise.

    In the Jane Doe v N.D. case, Justice Stinson of the Superior Court found that among others, the tort of intentional infliction of mental distress was made out. As a result, the plaintiff was awarded more than $140,000 in damages.

    However, the case did not just end there. Upon Justice Stinson’s decision, the defendant, who previously had not retained counsel, decided to retain counsel to set aside the judgment for a “do-over”. The defendant alleges that he could not afford a lawyer and that the denial of a second chance at re-litigating the case would equate to a denial of access to justice and cause serious prejudice towards him. Justice Dow of the Superior Court set aside the damages ordered by Justice Stinson in a ruling that has still not been released to the public. The plaintiff is now appealing this decision; if she is unsuccessful, she would be back at square one to re-litigate the same matters.

    For more information or any other questions regarding the tort of intentional infliction of mental distress, please contact our lawyers at https://devrylaw.ca/civil-litigation/.

     

    “This article is intended to inform and entertain. 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 SiddiquiBlog, Litigation

    Is Ontario Really the Litigation Capital of Canada?

    It is a commonly held belief that Ontario is the litigation capital of Canada. With more lawyers than any other province, a greater population and far larger economy, this idea is intuitive and easy to believe.

    However, the question remains; are individuals and corporations located in Ontario more likely to litigate than those located elsewhere? With no immediate answer at hand aside from anecdotes and conjectures, I decided to investigate.

    In order to analyze how much litigation is taking place in Canada, I looked at the number of Court decisions there are from Canlii for each province from January 1st, 2014 to December 31, 2016. I chose those years to standardize the input as some jurisdictions do not have data from prior to 2014, while others have not entered decisions for 2017 yet.  The data is imperfect as it includes some Court decisions for matters such as cost motions and other non-trial decisions, but for the most part, it provides an accurate picture of the amount of litigation taking place in Canada. This number includes both civil and criminal court cases.

    Province Court decisions GDP Population
    Ontario 19,249 763,276,000,000 13,983,000
    British Columbia 8,954 249,981,000,000 4,751,600
    Alberta 4,349 326,433,000,000 4,252,900
    Saskatchewan 2,235 79,415,000,000 1,150,600
    Nova Scotia 1,879 40,225,000,000 949,500
    Newfoundland 1,106 30,100,000,000 530,100
    Manitoba 1,080 65,862,000,000 1,318,100
    New Brunswick 819 33,052,000,000 756,800
    Yukon 388 2,710,000,000 37,500
    Northwest Territories 270 4,828,000,000 44,500
    Prince Edward Island 169 6,186,000,000 148,600
    Nunavut 114 2,447,000,000 37,100

     

    The numbers are hardly surprising here, the more populous and wealthy a Province is, the more court decisions there are. This is supported by the data indicating that 98.6% of the variation in court decisions per province can be explained by population differences alone.

    However, after adjusting for population size, the density of a province still provides some information on how litigious the province is. Adjusted for population size, 78% of the variation in court cases across Canada is explained by a province’s population density. The smaller provinces have slightly more court decisions per capita than larger Provinces do.

    Province Court decisions per 10,000 people
    Manitoba 8.19
    Alberta 10.23
    New Brunswick 10.82
    Prince Edward Island 11.37
    Ontario 13.77
    British Columbia 18.84
    Saskatchewan 19.42
    Nova Scotia 19.79
    Newfoundland 20.86
    Nunavut 30.73
    Northwest Territories 60.67
    Yukon 103.47

     

    I then looked to see what other factors might influence the amount of litigation taking place in a province. Aside from population size, both crime and economic activity seem to be good indicators of litigation. The more economic activity there is in a Province, the more money there is to litigate over. Similarly, the higher the crime rate in a province, the more criminal trials there should be.

    To try and discern how these variables interacted with each other, I ran a multivariate regression on the number of court decisions per province, using population size, economic data, and crime rates as the variables.

    Together, these factors explain 61% of the variation in the number of court decisions per province. Ontario and Nova Scotia have more court decisions than the model predicts, while Alberta, Manitoba and Saskatchewan have far less. This means that Ontario and Nova Scotia are slightly more litigations than their population size, economic activity and crime rates suggest, while Alberta, Manitoba and Saskatchewan have less legal activity.

    After investigating the data, it seems as if Ontario has slightly more litigation than the rest of Canada. However, the effect is minor, and the level of litigation remains similar throughout the country.

    If you are in need of any legal services or advice, please contact Devry Smith Frank LLP at 416-449-1400, or visit our website today.

     

    “This article is intended to inform and entertain. 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 SiddiquiBlog, Litigation

    Yes, You Can Film the Police. No, They Cannot Seize Your Device

    Recently, a video surfaced online of Toronto Police officers doing their job in public. As long as you are not obstructing them or interfering with their work, you have every right to record and photograph them. This video that can be seen here shows police surrounding a male on the ground in restraints, while the police proceed to taser him multiple times. A disturbing video that also may show improper police protocol as the suspect was not seen as a threat at that point in time. Toronto Police are still looking into the events and the officers involved. Granted, viewers do not know what led to this point – so there is very little to consider until the police fill in the rest of the story.

    Toronto Police did explain what led to what was seen in the video in an article released by CBC News, where they also apologized. The man seen in the video was at Seaton Homeless Shelter where he assaulted another individual, then proceeded to kick out the window of the cruiser – at which point they had to remove him from the vehicle. He continued to be violent which led to the taser until he finally settled down. They state a majority of what happened is not shown in the video. The man arrested has been charged and faces nine offences -some of which being 2 counts of assault, 3 counts of assaulting a peace officer, and one count of assault with the intent to resist arrest.

    Yes, you can film the Police. No, the cannot seize your device.

    That’s a message that both citizens and our police force should understand, as it is directed to both parties so long as the recording and photographs are done without obstructing or interfering with their job.

    Toronto Police spokesperson Mark Pugash stated in the article from The Star, that the police force has been advised that “if someone is videoing them and they are not obstructing and interfering, they have every right to film.” However, a couple of police officers in the video seem to have not gotten that message and are heard saying they will need to seize the phone, something they do not have the authority to do.

    In 2014, The Huffington Post was told “there are First Amendment protections for people photographing and recording in public”, and although it is legal to film and photograph officers, there are indeed many instances we have not been made aware of that devices have been seized.

    This morning, Toronto Police reached out to the witness and owner of the video, Waseem Khan, apologizing for their actions – but mainly the comment from the one officer of “you’re going to get AIDS.” You can access the article here. They released these tweets to reassure Mr. Khan that their force will be educated as they hope to right a wrong, all stemming from the recording of a controversial arrest.

    This incident was so significant that it gained the attention of the Toronto Police Association and even the Mayor of Toronto, who found the footage ‘disconcerting’ and trusts the Toronto Police to review the matter internally.

    This is a prime example of higher authority taking advantage of their position in society, possessing the ability to overpower regular citizens, who may or may not know what rights they do have. Fortunately for Mr. Khan, he knew that what he was doing was perfectly legal, as he did have the right to record the officers in public and was not interfering with their job.

    If you feel that you have had your rights violated, please contact our Human Rights lawyer Marty Rabinovitch. If you have any other legal issues, please contact one of our many 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 situation and needs.”

    By Fauzan SiddiquiBlog, Criminal Law

    Leaning on Liens for Payment

    Construction and renovation work can sometimes involve multi-layered contractual relationships between the various players in a construction project, where there are numerous complex areas of consideration. An owner or developer may hire a general contractor, who will then contract with subcontractors for various jobs such as carpentry, plumbing, and electrical work. In the same way, subcontractors may hire sub-subcontractors, those sub-subcontractors may hire sub-sub-sub contractors, and so on. This is often referred to as the “construction pyramid”. The pyramid dictates not only who works for whom, but also who pays whom: the owner pays the general contractor, who then pays its subcontractors, and who in turn pays the sub-subcontractors, all the way down to the bottom.

    One of the purposes of the construction lien is to ensure that the general contractor and any subcontractors down the pyramid are remunerated for the services and materials that they have supplied towards improvement, as stated in a recent discussion regarding proposed changes to the Construction Lien Act. Thus, a lien secures the payment that is due to the general contractor and subcontractors. A lien is one means of enforcement provided under the Construction Lien Act that allows a contractor the ability to potentially take steps to sell the property and gives the contractor and subcontractors priority over certain creditors who may have claims against the owner of the property.

    As soon as a contractor begins providing services or materials to improvement, it has a lien for the value of services or materials actually supplied to the improvement. However, that lien will expire unless certain steps are taken: (1) the lien must be “preserved”; and (2) the must then lien is “perfected”.

    To preserve a lien, a contractor must register it on the title to the property where the work was done. To perfect the lien requires the contractor to commence an action and register a certificate of action on the title to the property. There are strict deadlines for the preservation and perfection of liens, typically triggered by either the date of last supply or the publication of a certificate of substantial performance, although the complete framework for the timing of preservation and perfection of liens is somewhat complicated and depends on when the work was actually performed. Once a lien has been perfected, the action by which it was perfected must be set down for trial within two years of having been commenced otherwise the lien will expire (although the legal action itself may continue).

    For more information or any other questions regarding construction liens, please contact our construction lawyers.

     

    “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 SiddiquiBlog, Real Estate

    Time of Essence Clause in Real Estate Transactions

    Remember that time when you made a reservation for a restaurant but later forgot about it or changed your mind right before? And then you breathed a sigh of relief knowing the restaurant will never know who you are and you will not have to pay a fine for going back on your word.

    Although a rather large leap, the same cannot be said for real estate transactions. Almost invariably in Canada, a contract of sale for a piece of real estate property will expressly provide that time is of the essence. So if you change your mind about purchasing the property or cannot attain suitable funding in time for the closing date, for instance, you may be liable for damages and have the contract come to an end.

    However, there are several important things to note:

    You cannot rely on the clause unless you have demonstrated that you are ready, willing, and able to complete the agreement. In other words, if both parties are not ready to close on a real estate transaction, neither party can immediately rely on the clause to bring an action for specific performance, damages, or termination of the contract. Similarly, you must proceed diligently to fulfil your obligations, and not act in bad faith by interfering with the other party’s ability to fulfil their responsibilities.

    Further, a clause providing for the time of essence in a contract of sale can be negated largely in three different ways:

    1. Waiver: If one party in a contract takes action that makes it clear that the strict contractual provisions will not be enforced. For instance, if both parties agree to extend the closing date by two days then there is a waiver.
    2. Election: When one party breaches the contract and for instance does not have the requisite financing completed on the closing date, the other party could agree to extend the closing date.
    3. Bad faith: As discussed earlier, if the transaction fails to close because of one party’s lack of action or bad faith, that party cannot rely on the time of essence clause.

    So just remember – take more care and time in entering into an agreement to purchase real estate than you would for where will you have dinner tonight.

    For more information or any other questions regarding real estate transactions, please contact our real estate lawyers.

     

    “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 SiddiquiBlog, Real Estate