James C Morton
Intentional infliction of mental suffering requires subjective wrongdoing
Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419d The tort of intentional infliction of mental suffering has three elements. The plaintiff must prove: · The defendant’s conduct was flagrant and…
Legislative history of limited reliability and weight
Canadian National Railway Co. v.Canada (Attorney General), 2014 SCC 40: This Court has observed that, while Hansard evidence is admitted as relevant to the background and purpose of the legislation,…
A clear mediation agreement can displace common law settlement privilege
Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35: The common law settlement privilege and confidentiality in the mediation context are often conflated. They do have a common purpose:…
No duty on deceived party to uncover falsehood
Virc v. Blair, 2014 ONCA 39: The motion judge concluded that the appellant was unable to show that her application to set aside the separation agreement had a real chance…
Security certificates constitutional
Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37: Constitutionality of IRPA Scheme The impugned provisions of the IRPA scheme are constitutional. They do not violate the named person’s right…
Burden of establishing an agency relationship lies on the party alleging its existence
Boyle v. Maritime Travel Inc., 2014 NSCA 44: As the appellant points out, the burden of establishing an agency relationship lies on the party alleging its existence: Hav-A-Kar Leasing Ltd.…
Motion to extend time to be refused on merits only in clearest of cases
Wadden v. BMO Nesbitt Burns, 2014 NSCA 45: It is only in those cases where the proposed grounds of appeal are clearly without merit that it would not be in…
Late retraction of KGB statement does not justify adverse inference
R. v. Kelly, 2014 ONCA 380: Ordinarily accuseds have no obligation to disclose their defence. This principle has exceptions that would justify the drawing of an adverse inference for late…
Fact of seeking lawful result not an appropriate basis for another disposition
As every competent lawyer knows, overreaching in submissions runs the risk that the decision maker will not only ignore the submissions but will be inclined to the other side. Asking…
Imposing condition not to consume alcohol on an alcoholic
In Coombs (2004), 189 C.C.C. (3d) 397 the court held at para 8: “…Imposing an absolute prohibition on some addicts, including alcoholics, may only set them up for failure and…
Enhanced credit for pre-sentence custody
R. v. Houlder, 2014 ONCA 372: The sentencing judge had this court’s decision in R. v. Summers, 2013 ONCA 147 and concluded that there was an insufficient basis in the…
Post-offence conduct
R. v. Rodgerson, 2014 ONCA 366: Post-offence conduct is potentially circumstantial evidence of a fact in issue. Its relevance depends on whether, considered in the context of the rest of…