PRESENTED BY

Tommy Thompson found a shipwreck full of gold. Then he spent 10 years serving a contempt sentence because he wouldn't say where he put it.

But as of this month, Thompson has finally said "Ahoy" to his freedom. A judge decided that 10 years was long enough to prove Thompson wouldn't be purging his contempt.

And wouldn't you know it... a gold bar just like the ones Thompson found on the ship just went up for auction.

— Dylan Gibbs

• Seizing a Boeing

• Tracking cellphones

• Arbitration standards

• Pleading away privilege

• Fake quotes; real citations

• Saskatchewan's gun shield

STAYING CURRENT

1. Inject your legal understanding, lose your privilege
   One York Street v. 2360083 Ontario, 2026 ONCA 176

If you rely on your understanding of a contract's legal effect as part of your defence, you've waived privilege over the advice you received when you signed it. The Ontario Court of Appeal reached that conclusion in a commercial lease dispute after the tenant tried to sidestep the issue — first by falsely claiming no legal advice had been obtained, then by amending the pleading to remove the admission. Neither move worked:

2. The “wasn’t AI” defence
   Kapahi Real Estate v. Elite Real Estate Club, 2026 ONSC 1438

A lawyer filed a 62-page reply factum citing real cases with correct CanLII citations — then attached quotations that don’t appear in any of them. When the Court asked whether he’d used AI, counsel said no. Justice Myers referred the matter to the LSO:

3. Consumer protection arbitration ban doesn't cover past disputes
   Vandenbosch v. Rogers, 2026 BCCA 102

BC no longer lets companies force consumers into arbitration agreements. But what happens to disputes that arose before the ban took effect? According to the Court of Appeal, the ban applies to existing contracts — but it doesn't apply to existing disputes.

SPOTLIGHT 🔦

Arbitration's day in court

Vancouver School District No. 39 v. Kingsgate Property, 2026 BCCA 98

How tough is it to review an error of law in an arbitration decision? It depends who you ask — but BC has now gone the easy route. The BC Court of Appeal’s decision marks the third appellate decision to address this issue since 2021 — and they’re split 2:1.

A bit of context: Vancouver's school board and a mall developer have been disputing commercial rent on the same lease for decades. A 1999 arbitration panel interpreted a key lease provision to set the rent. A 2022 panel reinterpreted the same provision and arrived at a much higher figure — $9.6 million per year versus $1.65 million.

So how closely should we inspect the new panel’s decision to give the developer a do-over?

• It used to be hard to review arbitration awards for legal errors. The theory: just as courts deferred to the expertise of administrative tribunals, they should also defer to the expertise of expert arbitrators chosen by contracting parties.

• But ever since the SCC introduced a new judicial review framework in Vavilov, courts have been wondering whether new rules also apply to commercial arbitration appeals.

At the BCCA: All three justices agreed on the threshold question: Housen's appellate standards — correctness for questions of law — apply to statutory appeals from commercial arbitration awards. That is a direct departure from Sattva, which held that arbitral awards are presumptively reviewed for reasonableness.

The court's reasoning follows the logic of Vavilov: a statutory right of appeal signals legislative intent to apply appellate standards. The BCCA found no principled reason to treat the word "appeal" differently just because the decision came from an arbitrator rather than an administrative tribunal:

Since parties can opt out of appellate review entirely under BC’s commercial arbitration legislation, a deferential standard of review isn't needed to protect the goals of speed and finality.

On issue estoppel: With the standard of review relaxed, the Court was free to dive in. And dive the majority did.

The majority held that the second arbitration panel effectively interpreted the lease from scratch, used that interpretation to declare the first panel's interpretation "unworkable", and — based on that unworkability — ignored the original ruling. The majority's assessment was blunt:

Big picture: We now have three appellate decisions directly covering the standard of review for arbitration appeals. Manitoba went the Sattva route, sticking with a deferential posture in Buffalo Point. Northwest Territories went the other way in Northland Utilities. And BC has now joined the correctness camp.

The SCC left this question open in Wastech, but with intermediate appeal courts divided, we can expect this issue to land back on the top court's plate soon.

FROM OUR COMMUNITY

What’s new at Inn Laws

Here’s what’s happening in our private community for lawyers building modern and intentional practices.

One of our most recent trending threads is a discussion about AI time tracking tools. Time tracking is one of the things I miss least about private practice, so it’s been super neat hearing about the tools people are using to make it easier.

Next week, we're sitting down with Jeffery Lamont — wealth advisor who’s spent nearly three decades working with lawyers on their money. We’re doing a candid Ask Jeff Anything format so that none of our members turn into a 65-year-old partner who is stressed because they stuck their head in the sand about money their whole career.

Want to get in on the action? Apply to join.

BY THE NUMBERS 📊

118 (and growing): The tally of court and tribunal decisions affected by AI-generated hallucinations since January 2024. Courtready spun up a monitoring dashboard with all sorts of stats on the extent and source of the problem.

€890: The size of the debt that prompted Austrian bailiffs to seize an entire Boeing 737 mid-turnaround at Linz Airport. Ryanair ignored a court order requiring it to pay a passenger for a delayed flight, so bailiffs boarded the plane and marked it seized. The airline can probably expect a few more compensation claims from the passengers on board.

3: The federal Immigration Minister’s loss count against the Kumars — an Indian couple who faced repeated visa rejections while trying to visit their children in Canada. The Federal Court ordered an expedited rehearing and awarded $1,000 in costs because of the Minister’s conduct.

MAKING HEADLINES

⚕️ Ontario cut provincial funding for seven supervised consumption sites and gave them 90 days to wind down. An active — and partially successful — Charter challenge already produced a 2025 injunction keeping ten sites open; these seven are now back in the crosshairs.

🍺 Saskatchewan legalized tailgating with a new Tailgating Act that makes it the first province in Canada where fans can drink their own alcohol at a sporting event.

⚖️ The federal government proposed a new Lawful Access Act, which would give police expanded power to track people online. Among the more contentious provisions — a rule requiring telecoms to build tech that can track every user’s location, so police can seize the tracking data for investigations.

📋 Ontario wants to retroactively shield the Premier’s office from freedom of information requests. The government announced plans to exempt records from the Premier’s office, cabinet ministers, and parliamentary assistants — retroactively, potentially killing existing requests tied to the province’s Greenbelt scandal.

🔫 Saskatchewan is working around the federal gun buyback. New legislation lets gun owners register as provincial agents, allowing them to legally hold prohibited firearms until the federal government pays fair market compensation.

⚖️ The Supreme Court of Canada released its 2025 Year in Review — a special edition marking its 150th anniversary.

🍷 Canada’s food regulator has dished out $47,000 in fines since last year for misleading labels that suggest products were made in Canada. Elbows up indeed.

THINGS NOT TO DO 😤

Don’t send counsel straight to jail.

During a criminal trial, Justice Gordon Yake demanded a yes-or-no answer from defence counsel George Lebessis about a witness's attendance. Justice Yake’s frustration quickly escalated, and he soon ordered sheriffs to take Lebessis into custody. Lebessis spent 17 minutes in a cell block — emptying his pockets and surrendering his belt and phone. Alberta’s Judicial Inquiry Board recommended a 30-day suspension without pay.

PRESENTED BY

If you need a reminder about the glacial pace of Canadian litigation, look no further than the fact that a Sudbury mall recently won a case against Zellers. That's right, Zellers. The dispute was over a lease the company broke in 2004, which I've had the misfortune of realizing was before some first-year law students were born.

— Dylan Gibbs

• Judicial hallucinations?

• Drug decriminalization

• Intersectional equality

• $1.5M for a hyperlink

• Suing ChatGPT

STAYING CURRENT

1. Fixed-term contract bites a business purchaser

   FCAPEO v. Bouchard, 2026 BCCA 89

Joseph Bouchard sold his engineering firm, agreed to spend three years working for the purchaser, and signed a three-year non-compete. But the employer fired him early, and refused to pay out the entire contract. They argued Bouchard had a duty to mitigate by finding other work. But that’s not how the BC Court of Appeal saw it.

2. Good faith purchasers trump CRA’s deemed trust
   TD Canada Trust v. Canada, 2026 FCA 25

When a company doesn’t pay the taxes it’s supposed to be collecting from employees, the CRA gets a deemed trust over everything the debtor owns. But what happens if the debtor sells its property, and uses the sale proceeds to pay unsecured debts?

According to the Federal Court of Appeal, unsecured creditors who weren’t aware of the tax debt can rely on the bona fide purchaser defence and keep the money.

3. Google gets dinged over $1.5M for defamatory link
   A.B. c. Google, 2026 QCCA 157

Google refused to take down a link to a defamatory page about a Quebec businessman, citing the SCC's ruling in Crookes v. Newton that hyperlinking alone isn't "publication." But the Quebec Court of Appeal disagreed, saying that Quebec law obligates platforms to act once they know their services are being used for illicit purposes. And that meant Google's refusal to de-index after being told the content was false was an expensive misstep.

FROM OUR COMMUNITY

Mastering AI (and its implications)

The Inn Laws community has been full of AI chatter lately, which seems to be driven by two things.

First is the recent privilege ruling — where a US court said that running legal advice through tools like ChatGPT can waive privilege. Inn Laws members have been chatting about the implications in their peer groups, and sharing draft language they’re including in retainer agreements to warn clients about the risk.

Second, the tools are getting better. I try to be moderate about this stuff and shy away from the hype camp. But the improvements in AI over the past few months have marked a step change nearly as significant as ChatGPT’s debut. We’ve levelled up. And tools like Claude are now equipped with powers that feel like magic.

That’s why I’ve devoted much of my time recently to experimenting with these tools and showing Inn Laws members what’s possible for their law practices. I’m also building tools to help me run my own business — it’s win-win — but the part I’ve enjoyed the most is showing lawyers how to eliminate some of the work that drove me NUTS when I was practicing.

And their reaction has generally been surprise at how much is possible. One member, after a demo: "I'm getting stuff done, while still feeling smarter (or at least more nuanced) than the bots — for now."

Indeed. No one is replacing lawyers anytime soon. But we can sure equip them better.

If you’re looking to stay ahead of the curve and connect with other practitioners in a similar boat, our DMs are open.

SPOTLIGHT 🔦

Intersectional equality claim carries the day

Quebec v. Kanyinda, 2026 SCC 7 

What happens when a law doesn’t discriminate against an entire protected group, but effectively discriminates against a subset of that group? That’s what the SCC grappled with in its most recent decision, carving out a clear home for “intersectional” claims in the equality analysis.

A bit of context: Quebec's Reduced Contribution Regulation lists eight categories of parents eligible for subsidized daycare. Refugee claimants aren't one of them. For Bijou Kanyinda, who came to Quebec as a refugee in 2018 with three young children, that meant spending two years unable to access affordable daycare — and unable to work as a result.

Kanyinda argued the legislation violated her right to equality. The legislation applied equally to all women — and all refugees. But Kanyinda argued it was unconstitutional because of the impact on those at the intersection — women who are also refugees.

At the SCC: An eight-judge majority held that the legislation was unconstitutional — but they split across three sets of reasons. Justice Karakatsanis penned the lead judgment, holding that courts need to expressly consider intersectional equality claims. A law that appears to be neutral can still create a sex-based distinction where its effects fall disproportionately on a subgroup.

Here, women refugee claimants carry the greater share of childcare responsibilities — and the lack of affordable daycare was directly linked to their inability to work. That wasn’t the case for men.

On justification: Quebec argued the government was entitled to limit its subsidy to people with strong ties to the province. But since the government chose to subsidize international students, temporary residents, and work permit holders, that argument fell apart.

A gamut of views: Chief Justice Wagner would have gone further, recognizing refugee status as a protected ground and holding that governments can’t discriminate on that basis. Justice Rowe agreed with the outcome but took issue with the majority’s approach to intersectionality. And Justice Côté dissented, saying that the daycare rules didn’t violate the Charter’s equality guarantee (and would be justified even if they did).

Big picture: The majority decision officially incorporates intersectionality into Canadian equality law. For any benefits statute that excludes a defined class, the question is no longer just whether the exclusion maps onto a protected ground — it's whether it disproportionately burdens a subgroup defined by overlapping characteristics.

BY THE NUMBERS 📊

$3.6 billion: The final settlement in the Robinson-Superior Treaty annuities case, approved by Ontario’s Superior Court. It’s a bit shy of the $10 billion paid to First Nations under the Robinson Huron Treaty settlement in 2023, thanks to population differences and the value of the land covered by the treaty.

$20,000: The costs awarded against the Waterloo Catholic District School Board for reaching an "untenable" conclusion. The board sanctioned one of its trustees after an anonymous email alleged a conflict of interest — despite the board’s own independent investigator saying there was no basis for discipline.

$10: The maximum NSF fee banks can charge starting tomorrow, down from a typical $45–$48. The new cap, introduced through amendments to the Bank Act, applies to all federally regulated financial institutions.

MAKING HEADLINES

⚖️ OpenAI is facing a lawsuit over last month’s Tumbler Ridge shooting. Family members of a young girl still hospitalized by the tragedy allege the company knew about the shooter's plans and failed to notify police. They also allege ChatGPT unlawfully served as a de facto therapist for the shooter, who was also a minor.

📱 The federal government reversed course on TikTok. The company no longer has to wind down — but it will need to comply with new data requirements, including security gateways, enhanced protections for minors, and independent third-party monitoring.

🏠 Manitoba enacted a law giving individuals the right to request disclosure of a partner's history of domestic violence from police. Manitoba joins Alberta and Saskatchewan in adopting the disclosure regime.

💰 A law firm had to return $1.7 million to a former client. The Ontario Court of Appeal agreed with the client that a $3.5-million award secured by new counsel on appeal wasn’t covered by the original firm’s contingency agreement.

⚖️ Lawyers rallied at the Alberta legislature to protest the UCP government’s recent streak of applying the notwithstanding clause — and Premier Smith’s stated desire to “direct” judges.

⚕️ The Federal Court dismissed a judicial review challenging Canada's decision to end BC's drug decriminalization exemption early. The applicants argued the rollback violated Charter rights, but the Court said the government’s decision properly balanced competing concerns and there was no legitimate expectation that the exemption would last its full term.

🍷 Conservative MP Dan Albas introduced a bill to remove restrictions on interprovincial alcohol shipments to consumers. Canada Post currently can't deliver Canadian alcohol in six of ten provinces.

THINGS NOT TO DO 😤

Don't use AI to draft a $128-million fraud ruling

At least not without double-checking the citations.

As reported by La Presse, it sure looks like we have the first case of hallucinated case citations ending up in a judicial decision. The nearly 200-page decision includes reference to an SCC decision that doesn’t exist and a family law case cited in support of piercing the corporate veil.

The judge (understandably) hasn’t made a public statement explaining what happened, but the errors are exactly the sort of AI-driven issues we’ve been seeing from lawyers and self-reps in their submissions.

If confirmed, it would be the first instance of a judicial AI hallucination.

Be safe out there. And if you need help using AI properly, drop me a line.

PRESENTED BY

Who’s on the hook if a dog burns down your house? A Pennsylvania couple tried to stick Samsung with the bill after their dog jumped on their Samsung stove, turned on the burner, and started a fire.

Samsung had recalled over a million similar stoves, so the couple figured they were in good shape. But according to a judge, unfit for pets doesn't mean unfit for purpose.

— Dylan Gibbs

• Letting lawyers break privilege

• Finding peers who get it

• Trust account misuse

• Care home liability

• Busting strikes

STAYING CURRENT

1. Fisheries minister gets the final say
   Mowi Canada v. Canada, 2026 FCA 19

The Federal Court of Appeal upheld a decision not to renew salmon farming licenses in BC's Discovery Islands. Mowi Canada argued the federal minister ignored her own department's risk assessments. But the Court said she was entitled to take a precautionary approach given the "dire" state of wild Pacific salmon — even if that meant disagreeing with internal advice.

2. Strike busting survives Charter challenge 
   OPSEU v. Ontario, 2026 ONCA 74

The Ontario Court of Appeal upheld back-to-work legislation that ended a 2017 faculty strike at Ontario's 24 colleges. The Court agreed that ending the strike limited workers' freedom of association under s. 2(d) of the Charter — but found the government was justified in acting to save the academic term for hundreds of thousands of students, especially since it replaced the strike with a neutral interest arbitration process where "no outcomes were off the table."

3. Keeping the house when you can't afford to buy it 
   Re: Boisvert Estate, 2026 BCSC 195

In the first case applying s. 33 of BC's Wills, Estates and Succession Act, the Court transferred full title of a home to a surviving common-law spouse who couldn't afford to buy out his late partner's children. Rather than forcing a sale or granting a traditional life estate, Justice Hardwick vested ownership in Amies and converted the children's $225,000 interest into a registrable charge against the property, effectively making them secured lenders on their own inheritance.

FROM OUR COMMUNITY

It’s peer group meeting season at Inn Laws — a time for each of our 10 peer groups to get together and tackle practice issues. Here's the quick version of how they work.

We match members with 6–8 similarly-situated lawyers — firm owners with firm owners, associates with associates, and so on. Before each quarterly meeting, I check in with every member one-on-one. And using what I learn, I build a themed agenda tailored to the group. The meetings themselves are 90 minutes, facilitated. No presentations, no panels — just real conversations about practice with people who are in the same fight.

What I keep hearing from members is that it's the first time they've had a space where they can talk honestly about things like business development, hiring, burnout, and growth decisions with people who actually get it.

Want a curated peer group? Apply to join.

SPOTLIGHT 🔦

Lawyers need exceptions too

R. v. Fox, 2026 SCC 4

Can a lawyer charged with a crime use client communications to defend themselves — even though solicitor-client privilege belongs to the client? The Supreme Court of Canada just said yes, putting a lawyer-specific twist on the "innocence at stake" privilege exception.

Extra bonus for the criminal lawyers: this decision is a must-read for excluding evidence under section 24(2).

A bit of context: K.G. got picked up for drug trafficking and called defence lawyer Sharon Fox. Five minutes later, Fox called one of her clients, told him K.G. had been under surveillance, and said police were probably working on search warrants.

Police were tapping and recording the client's calls — including the one from Fox. They charged Fox with obstruction, alleging that she coached her client to destroy evidence.

Pre-trial, a judge ruled that Fox's client call had two distinct parts: a non-privileged portion (including the chit-chat about K.G.), followed by a privileged legal advice portion. He ruled that the Crown could use the first part as evidence of the obstruction charge, but that no one — not even Fox — could use the second part.

• Fox argued this put her in an impossible position, because the second half of the call would exonerate her.

• She also argued that the call stemmed from an unreasonable search and seizure, since police staff didn't respect solicitor-client privilege.

In the lower courts: The trial judge held that without access to the potentially helpful portion of the call, Fox couldn’t get a fair trial. She excluded the call as a remedy and entered an acquittal. If it had just been a matter of overstepping wiretap listeners, the trial judge would have let the evidence in.

The Saskatchewan Court of Appeal went further. The majority agreed that Fox couldn't use the innocence at stake exception and therefore couldn't get a fair trial. They also found that the way police handled the wiretap was problematic enough to throw out the evidence — regardless of Fox’s fair trial rights.

At the SCC: The Court held that the lower courts got the innocence at stake exception wrong. Lawyers can invoke the exception to rely on their clients' privileged communications — as long as there's judicial oversight, minimal impairment of the privilege, and meaningful participation by the client who holds it.

• Exempting lawyers from the usual test would actually give them preferential treatment. Case in point: the trial judge threw out the Crown's evidence without ever checking whether the privileged portion would raise a reasonable doubt — something a non-lawyer accused would never get away with.

With the exception available, it was premature to say that Fox couldn’t get a fair trial — she might still be able to access the privileged portion of the call.

But Fox secured her acquittal anyway.

Blasé wiretapping and section 24(2)

Police enlisted civilian monitors to listen to tapped calls. They were supposed to stop listening immediately if a lawyer was on the line. But that's not what happened with the call between Fox and her client.

A monitor heard Fox refer to herself as a lawyer but kept listening for almost four more minutes. The majority called that a serious s. 8 breach — not because the monitor acted in bad faith, but because of what happened after. Nobody told the monitor she'd breached privilege. No reprimand, no remedial training. The monitor even testified — with the benefit of hindsight — that she had never inadvertently listened to a call involving a lawyer.

Room for disagreement: Justice O'Bonsawin (joined by Justice Rowe) dissented on the 24(2) issue and would have ordered a new trial. The dissenters saw the breach as isolated and inadvertent, with protective systems that mostly worked. And in their view, it’s extra important to decide obstruction charges against lawyers on their merits.

Big picture: Hopefully you’re never in a position to need the innocence at stake exception crafted by this case. But if you do — it’s there.

BY THE NUMBERS 📊

56: The number of residents who died from the COVID-19 outbreak at Maples Personal Care Home in Winnipeg. Manitoba’s Court of King’s Bench recently certified a class action against the care home operator and the Winnipeg Regional Health Authority, alleging they mishandled the pandemic.

$343,335: The amount a Manitoba law firm lost after sending the wrong transit number. Taylor McCaffrey LLP is suing CIBC, arguing the bank should have matched the account name before depositing.

$780,000: The Alberta Law Foundation grant vetoed by Alberta’s Justice Minister. The grant was destined for the Alberta Civil Liberties Research Centre, which relies on the Foundation for 95% of its funding. The Minister said funds should go to "front-line legal services" — but the Research Centre says that priority wasn’t communicated and doesn't appear in the Foundation's statutory mandate. The Research Centre has applied for judicial review of the decision.

MAKING HEADLINES

💻 B.C. launched a province-wide virtual counter for court registry services — anyone can now connect with staff via Microsoft Teams instead of going to a courthouse.

🏳️‍⚧️ Ontario's Divisional Court ordered a new hearing on whether a walk-in clinic misgendered a trans patient. The Human Rights Tribunal accepted that the misgendering was inadvertent. But according to the Court, that acceptance missed the key question: did the misgendering have an adverse impact, regardless of intent?

💉 Alberta's Human Rights Tribunal reinstated a vaccine mandate complaint against CNRL, ruling that the worker’s objection — an alleged connection between COVID-19 vaccines and fetal cell lines — was tied to a specific religious tenet. That was enough to survive screening, unlike complaints citing general bodily autonomy.

⛰️ We’re still seeing ripple effects from the Cowichan Tribes decision, which held that Aboriginal title can exist on private land. A residents' association filed a constitutional challenge against BC's DRIPA legislation, arguing the Indigenous rights legislation exceeds provincial authority and transfers decision-making to unelected bodies. Separately, another First Nation is claiming Aboriginal title over privately held land, advancing similar arguments to those accepted in the Cowichan decision (which the BC government is appealing).

💰 Sanctioned Russian-born billionaire Igor Makarov is seeking $350 million from Canada at an international investment tribunal after losing two Canadian court challenges to get off the Ukraine-related sanctions list.

THINGS NOT TO DO 😤

Don't use your trust account as a crypto laundromat.

Patrick Glemaud accepted $3.3 million from victims who thought they were buying Manulife GICs — then converted the funds to Ethereum and sent them to an unverified offshore client. Now he knows that’s a quick way to get yourself disbarred.

PRESENTED BY

Is it sexual harassment to ask your coworkers about the sensations of breastfeeding and the sexual development of their children? A labour adjudicator said no — not if you come from an "open family" and are simply "attuned to the health and development of a woman's body." But the Federal Court of Appeal didn’t exactly see it the same way:

— Dylan Gibbs

• SCC on insurance endorsements and exclusions

• Psychedelic award sent back for a do-over

• Plastic toxicity survives constitutional challenge

• Murders and mistrials

• Defunding the courts

STAYING CURRENT

Recent and notable

1. Plastics listing survives constitutional challenge 
   Canada (Attorney General) v. Responsible Plastic Use Coalition, 2026 FCA 17

The Federal Court of Appeal unanimously upheld the federal government's decision to list "plastic manufactured items" as toxic under CEPA, reversing a lower court ruling that had called the designation both unreasonable and unconstitutional. Industry groups argued the listing was too broad because not all plastics are harmful. But Justice Rennie clarified that listing a substance is just an "enabling provision" — it doesn't ban anything until specific regulations follow. And when it comes to physical harm from plastic pollution? Chemistry isn't the point.

2. Psychedelic treatment needs a rethink 
   Insurance Corporation of British Columbia v. Roy-Noel, 2026 BCCA 32

A BC judge awarded damages to cover future psilocybin treatments for a woman severely injured in a collision. But given that shrooms aren’t exactly legal, the Court of Appeal saw a flaw. The treatment expense would only be reasonable "if and as prescribed" through proper Health Canada channels, but the trial judge awarded an unconditional lump sum with no mechanism to ensure legal access. The case goes back for redetermination, with the award to be discounted based on the realistic probability of obtaining lawful access.

3. Granting relief no one asked for 
   Foodies Curry & Shawarma Inc. v. Royal Paan Leasing Ltd., 2026 ONCA 26

A restaurant asset deal fell apart when the seller couldn't deliver unencumbered title. The application judge correctly dismissed the seller's claim for specific performance — but then, unprompted, awarded restitution for unjust enrichment. The problem? That remedy was never pleaded, counsel said it wasn't being sought, and the judge himself told the parties he wouldn't consider it. The Court of Appeal wasn’t having that.

SPOTLIGHT 🔦

Life & insurance — nothing is guaranteed

Emond v. Trillium Mutual Insurance, 2026 SCC 3 

What will courts make of an insurance policy that both "guarantees" the cost of rebuilding a home and excludes costs caused by zoning and construction laws? That was the $350,000 question in this case — and the SCC sided with the insurer.

A bit of context: Flooding wiped out a home on the Ottawa River in 2019. The homeowners figured they were covered, having paid extra for a "Guaranteed Rebuilding Cost" endorsement. But their policy also had a carveout: it excluded cost increases caused by zoning or construction laws. And with the home sitting in a conservation area, new construction rules added roughly $350,000 to the rebuild.

The Court had to untangle these competing provisions to decide whether "guaranteed" rebuilding costs should trump the exclusion.

At the SCC: The Court split 7–2, with Justices Karakatsanis and Côté each writing separate dissents. Justice Rowe, writing for the majority, said the policy was unambiguous — the compliance cost exclusion carries the day.

The key reasoning? The endorsement was worded as an amendment to the payment formula, not an additional grant of coverage. It modified how much the insurer would pay, not what it would pay for. And the endorsement itself stated that "in all other respects, the policy provisions and limits of liability remain unchanged." That language, Justice Rowe held, meant the compliance cost exclusion still applied.

The nullification doctrine — alive but not applicable here

What about the principle that courts won't uphold insurance exclusions that completely defeat the purpose of coverage? The majority held the bar wasn't met. The rebuilding cost endorsement still serves its core purpose: letting homeowners recover rebuilding costs that exceed the declared amount of insurance. They're just getting less than they might have expected.

The dissenters saw it differently. Justice Karakatsanis agreed that the carveout for compliance costs applied to the rebuilding endorsement, but she found ambiguity in the “increased costs” language. In her view, a plausible interpretation was to look at whether costs have “increased” since the contract was signed — and she resolved that ambiguity in favour of the homeowners.

Justice Côté took more direct aim, finding that the exception for compliance costs didn’t even apply to the rebuilding cost endorsement:

Big picture: The most legally interesting piece here is probably the nullification argument. Courts in Ontario and BC had taken competing approaches to what happens when an exclusion completely eviscerates a grant of coverage. Now we have a clear answer: nullification is always a live issue — even when the contract language is unambiguous.

FROM OUR COMMUNITY

What’s new at Inn Laws

It’s been a busy start to 2026. So far this year, we’ve hosted events on delegating like a pro, business development, and building multi-step AI workflows. We also got together in Toronto this week for our first in-person event of the year.

One moment from the delegation session that's stuck with me: our guest speaker saved up six months of salary before making her first hire. The new hire helped double revenue, so she never ended up touching the buffer. Lawyers are great at making excuses not to delegate — and making things harder on ourselves in the process. The real barriers to delegation are often psychological, not financial.

Next up: in-person events in Vancouver (Feb 24) and Calgary (Feb 25). We're opening a few spots at each to non-members — if you want to join, reply to this email.

And if you've been thinking about joining a network of lawyers who are actually building the practices they want, membership applications are open.

BY THE NUMBERS 📊

$750,000: The penalty Estée Lauder Cosmetics must pay after pleading guilty to violating CEPA by importing eyeliners containing a "forever chemical" without notifying Health Canada.

6.85 million: The number of customer email addresses Home Depot shared with Meta without getting meaningful consent. The BC Court of Appeal has now upheld certification of the resulting privacy class action, rejecting Home Depot's argument that hashing the data made it anonymous.

25 to life: The sentence for former Kamloops lawyer Rogelio "Butch" Bagabuyo, who murdered one of his clients. The client hired Bagabuyo to hide $780,000 from his wife during a divorce. Instead of turning down the unethical mandate, Bagabuyo spent the money and killed the client. His downfall? Asking someone to help carry a tote bin containing the body. That, and forgetting to throw away his handwritten murder to-do list.

MAKING HEADLINES

⚖️ Premier Danielle Smith threatened to withhold funding for new judicial positions unless the federal government gives Alberta a formal role in appointing judges. The move follows her comment that she wished she could "direct the judges" — which prompted a rare joint statement from Alberta's three Chief Justices. Federal Justice Minister Sean Fraser rejected Smith’s latest demand, saying that the federal government won’t backstop shortfalls if Alberta pulls funding — and Albertans will feel the pain.

🌍 Youth climate activists are asking the Ontario Court of Appeal to reopen a constitutional challenge aimed at Ontario’s emissions legislation. Ford’s government repealed the legislation weeks before a scheduled hearing last year, but the activists now say the Court should make a ruling anyway.

🎓 Quebec released a revised tuition policy maintaining a 33% increase for out-of-province students after a court struck down the original hike for lacking evidence it would protect French. The new justification? Fiscal responsibility — not language protection.

🔒 Alberta launched a public consultation to modernize PIPA, the province's private-sector privacy law. The survey — open until February 17 — asks about AI governance, children's data, and giving the Privacy Commissioner direct fining power.

🏛️ The SCC granted leave to appeal in a case involving a class action against Air Canada. Quebec courts ordered Air Canada to pay more than $10M in damages for charging passengers more than the advertised ticket price.

🧸 Toys "R" Us Canada is back in creditor protection — its second CCAA filing in under a decade. Fairfax Financial rescued the Canadian arm of the business through a $300 million acquisition in 2018. This time the numbers are worse: $160 million in unsecured debt, $120.9 million owed to vendors, $36 million in unredeemed gift cards, and just 22 of the chain's original ~100 stores still operating.

THINGS NOT TO DO 😤

Don't conspire with your client to fake a mistrial.

In a decision described by the presiding judge as revealing "deeply troubling" conduct, a mistrial was declared in a sexual assault trial after allegations that defence counsel actively conspired with her client to manufacture a breakdown in the solicitor-client relationship because she was unprepared.

PRESENTED BY

I just wrapped up the latest round of Inn Laws peer group meetings — quarterly sessions I facilitate for curated groups of 6–8 similarly situated lawyers.

I check in with members to see what's on their plates and what would be useful to hash out with peers. And that input shapes the agenda for our lightly facilitated group discussions.

One theme kept coming up this quarter: lawyers feeling overwhelmed and in need of support. If you're in the same boat, several members landed on hiring freelancers. More on that below.

PS: We're closing our Inn Laws founding member cohort December 31 — last chance to lock in a 35% lifetime discount. If you want peers who get it, now's the time to join.

— Dylan Gibbs

• Swearing off the King

• Freelance lawyering

• Duty to background check

• Partial stays in favour of arbitration

• Banishment, doctor pay, and methane rules

STAYING CURRENT 🗞️

Recent and notable

1. Negligent firearms licensing
   Sienna v Duckett, 2025 ONCA 867

The family of a man killed by his neighbour will have another chance to argue that the federal government is responsible. They allege Canada never should have issued the killer a firearms licence. The motion judge struck their claim, concluding that the government doesn’t owe a private law duty of care when issuing licences. But the Court of Appeal said there’s a sliver of hope. Though the government doesn't owe a duty to everyone potentially affected by the granting of a firearms licence, it might owe a duty to a specific group if it ought to know the licensee poses a risk to that group.

2. Swapping class action plaintiffs
    Prince George Airport Authority Inc v Roy, 2025 BCCA 442

Class action defendants argued that the original plaintiff in a BC class action is the only person who can apply to certify that class action. An important distinction in this case, because the original plaintiff wasn’t a BC resident and ended up getting swapped out for someone else. The Court of Appeal rejected the defendant’s overly technical argument.

3. Competing arbitration and litigation claims
   RW Tomlinson v LIUNA, Local 527, 2025 ONCA 861

A strike disrupted worksites owned by three companies. Only one was party to the union's collective agreement. All three sued. The union moved to stay proceedings in favour of arbitration. The motion judge stayed all claims, leaving non-employer companies in limbo — unable to arbitrate or proceed in court. The Court of Appeal called that a jurisdictional dead end and ordered a temporary stay instead, preserving their right to return to court once arbitration wraps up.

SPOTLIGHT 🔦

Alberta lawyers no longer committed to the King

Wirring v. Law Society of Alberta, 2025 ABCA 413

Do you need to pledge allegiance to the reigning monarch to practice law? In most jurisdictions, no. But in Alberta, the answer was yes — until this week.

A bit of context: Prabjot Singh Wirring is an amritdhari Sikh. His beliefs prohibit putting anyone — or anything — above his Creator, Akal Purakh. He applied to join the Alberta Bar after his articles, but the legislative requirement requiring him to swear “true allegiance” to the King presented a roadblock. So he applied to strike it down as a violation of his freedom of religion and equality rights.

In the lower court: The chambers judge dismissed Wirring’s application after concluding that the oath was symbolic — a commitment to Canada’s governance structure, not literal fealty to the monarch. She concluded that Wirring had no issue committing to Canada’s legal order, and therefore saw no infringement.

On appeal: The Court agreed with the chambers judge that the oath is a symbolic pledge rather than a personal promise to the King. But that didn’t solve the issue.

The chambers judge erred by concluding that Wirring's beliefs only prohibited pledging allegiance to an individual. According to the Court of Appeal, the evidence showed Wirring believed he couldn't prioritize any allegiance over his commitment to his Creator.

And in their view, that’s exactly what Alberta’s Oath of Allegiance called for. The Court saw the pledge of “true allegiance” to the King as an overriding commitment that necessarily trumps personal and religious views.

Given that the oath forced Wirring to choose between practicing law in his home province and his religious convictions, the Court found that it infringed his religious freedom.

A justified infringement? Not without evidence. The court accepted that promoting loyalty to constitutional principles is a legitimate objective. But Alberta didn’t lead any evidence to explain the need for its specific “bear true allegiance” language. Other jurisdictions have either made the oath optional or eliminated it altogether. Given the lack of justification, the Court of Appeal struck the oath requirement down.

For Wirring, the victory is a bit abstract — he got called to the Alberta bar through interprovincial mobility after first getting called in Saskatchewan. The Court of Appeal only heard the moot case because of broader public interest. But for future lawyers in a similar boat, the path to the Alberta bar just got clearer.

Big picture: Courts have rejected similar challenges to the Canadian citizenship oath. Could this decision create a new avenue of attack? Maybe, but the Court of Appeal did give some ammo to anyone trying to confine this ruling to the legal context:

FROM OUR COMMUNITY

Freeing time with freelance support

I heard from several Inn Laws members this month that they were looking for help but weren’t quite ready to commit to a full-time hire. As we workshopped that issue in some of our peer groups, others shared the value they’ve seen from freelance support.

I found one member’s approach in particular really neat. When she hires new staff, she worries more about whether they fit the team than whether they have years of experience. Then she hires freelancers to help fill some of the gaps. When a freelancer completes a file, it becomes a training resource — the next time that type of matter comes in, her staff can pull up the freelancer's work and see exactly what good looks like.

It was a timely discussion for me personally, because I recently joined Flex Legal Network. I'll be dabbling in freelance legal work to stay fresh, and to implement some ideas I have about practicing more efficiently.

If you're like some of our Inn Laws members — wanting help but not looking to hire full-time — Flex is worth considering. They offer flexible, as-needed support from vetted freelance lawyers and law clerks. Heck, if I haven't put you off with this newsletter, I might even be able to help you out myself.

MAKING HEADLINES 🗞️

💨 BC is suing JUUL to recover public health costs linked to youth vaping. The province filed a civil claim alleging the e-cigarette maker targeted youth and failed to warn about addiction risks. It's the first major test of BC's vaping cost-recovery legislation, which mirrors the playbook the province used successfully against tobacco manufacturers and is currently using against opioid manufacturers. JUUL has already settled for billions in the US over similar claims.

⚖️ The World Anti-Doping Agency says Canada’s privacy commissioner doesn’t have jurisdiction to investigate how it handles athlete data. The commissioner is investigating a complaint that alleged the Montreal-based agency shared biological samples with sports federations for sex-eligibility testing without athletes' consent. The case could clarify how far the commissioner's reach extends over international organizations headquartered in Canada.

🌿 Canada released its long-awaited methane regulations. The new rules target emissions from oil and gas operations and landfills, aiming to cut 304 megatonnes of CO₂ equivalent by 2040.

🍦 Toronto is beating the heat next year with dedicated cooling rooms. A city bylaw will require apartment buildings without AC to offer tenants a building amenity to escape the heat.

🏛️ Banishment is alive and well. A BC court renewed a ban keeping 78-year-old Stanley George Nikal, a Wet'suwet'en hereditary chief, at least 50 kilometres from his home community. Nikal was convicted of multiple sexual assaults 30 years ago, but the court found he still poses a threat — not so much because he might reoffend, but because he's vowed to force out community members who testified against him when he returns.

💰 The Canada Energy Regulator issued its largest-ever cumulative fine. Trans Mountain got dinged $196,000 for failing to monitor floodwater after a 2024 storm at its pipeline expansion near Abbotsford.

THINGS NOT TO DO 😤

Don’t make unhinged comments about opposing counsel.

An Alberta family lawyer was reprimanded and fined $5,000 for inflammatory comments about opposing counsel. In a letter to the judge, she accused another lawyer of "bad faith conduct," being "blinded by obsession," and unable to "separate her emotions from her professional obligations."

The lawyer doubled down during the Law Society complaint process, writing that opposing counsel had "a mental illness" that "impair[ed] her ability to practice law in an ethical manner," and that she had “a personal hatred for single biological mothers due to her own personal circumstances."

PRESENTED BY

Happy Friday. Is it the holidays? Is it safe to check out yet?

— Dylan Gibbs

• Hallucinations and lies

• UNDRIP packing a punch

• An Alberta hand slapping

• A big ol’ criminal law reform

• And a big break for international med students

SPOTLIGHT 🔦

A new era for UNDRIP

Gitxaala Nation v. BC (Chief Gold Commissioner), 2025 BCCA 430

Indigenous groups struck gold with this recent BC Court of Appeal decision, which gives the UN Declaration on the Rights of Indigenous Peoples real force in the province.

A bit of context: UNDRIP affirms Indigenous peoples’ rights to self-determination, land, resources, culture, and governance. It’s not a binding treaty, and most Canadian jurisdictions haven’t done anything to give it teeth. But BC is a notable exception.

The province enacted DRIPA in 2019, under which it committed to bring all provincial legislation into conformity with UNDRIP. Legislators also amended the provincial Interpretation Act to say that provincial legislation must “be construed as being consistent with [UNDRIP].”

There’s been some debate about the legal effect of those enactments. Can Indigenous groups ask courts to decide whether provincial laws conform with UNDRIP? Or are they stuck complaining to the government and asking for legislative reform?

In the lower court: The Gitxaala and Ehattesaht First Nations challenged BC's former mineral tenure regime, which let miners stake claims through an online system. No consultation was required, even if the staked claim had potential to interfere with rights claimed by Indigenous peoples.

The chambers judge accepted that the regime unlawfully sidestepped the Crown’s duty to consult, but wasn’t willing to comment on whether the regime conflicted with UNDRIP. He said BC’s commitment to align provincial law with UNDRIP “[didn’t] create justiciable rights."

On appeal: Justice Dickson, writing for the majority, said DRIPA does more than just require government action. In her view, UNDRIP has “immediate legal effect” in BC — inviting courts to decide whether individual laws are consistent with UNDRIP and exposing every BC law to potential UNDRIP challenges.

For the majority, without judicial oversight, the province’s commitment to implementing UNDRIP would be hollow.

Room for disagreement: Justice Riley agreed that DRIPA committed the province to implementing UNDRIP. But he doesn’t think courts are the bodies tasked with deciding whether specific BC laws are inconsistent. In his view, it’s up to the executive to align laws with UNDRIP through consultation and reform.

Big picture: Premier David Eby already announced that the government will amend DRIPA to clarify that courts can’t decide. It sounds like the plan is to legislate Justice Riley's dissent into law. That would kill the case before the SCC gets a chance to weigh in on the effect of DRIPA, but there’s also a similar case to look out for in the federal court system.

One final thought: Can we take a minute to appreciate the style of cause for this case? BC has a real government official called the Chief Gold Commissioner.

THINGS NOT TO DO 😤

Don’t keep digging

Phase 2 of improper AI use is upon us. The caution to “read the law you rely on” is yesterday’s news, taking a back seat to the caution that should be even more obvious: “don’t lie about it once you get caught.”

For the first time, a Canadian lawyer is facing a criminal contempt prosecution over AI-related misconduct. And hallucinations didn’t get her there — it was her cover-up.

A bit of context: Last spring, an Ontario lawyer filed a brief with fake cases generated by ChatGPT. At first she denied using AI, but she later clarified that a student drafted the brief and took responsibility for failing to review it. Justice Myers accepted that she was remorseful and decided not to proceed any further with a contempt hearing.

But then the Law Society investigated. No doubt realizing that the Law Society would actually get to the bottom of things, the lawyer sent a letter to Justice Myers admitting that she wrote the factum herself. There was no student. She made it all up "out of fear of the potential consequences and sheer embarrassment."

Now? The confession led Justice Myers to kick off fresh contempt proceedings and refer the case to the Attorney General of Ontario. He also appointed amicus to assist with the proceedings, because the lawyer wouldn’t stop confessing and apologizing (despite Justice Myers caution that she should retain counsel). In Justice Myers’s view, the lawyer didn’t seem to appreciate that she was now facing much greater jeopardy — submitting fake cases is bad, but lying to the court is much, MUCH worse.

Lessons learned?

Hopefully there's no need to stress the obvious point: don't lie to the court. But taking a step back — is legal research really a good use of AI?

Personally, I’m not convinced. Sure you can get a quick win if there’s a case on the tip of your tongue and you just can’t track it down. And there are pricey specialized tools that at least don’t muck up the research completely. But there are far better ways lawyers can apply AI to make their lives easier.

I’ve been thinking about that a lot lately, spending a good portion of my week playing around with AI, exploring legal use cases, and sharing the best bits with Inn Laws. We run a monthly tech session where I demo useful workflows and answer questions from our members.

I’m not saying joining our community is the best way to avoid ending up in a criminal contempt hearing, but I’m also not not saying that.

PS: We're closing our founding member cohort at the end of this month, so it’s the last chance to lock in a 35% discount on membership (guaranteed to founding members for life). If you want to surround yourself with innovative lawyers and work together to practice more effectively in 2026, now's the time to apply.

NOTEWORTHY NEWS 🗞️

🩺 An Ontario court blocked the province’s attempt to shut out international medical students. A new provincial policy would have limited the first round of medical residency matching (where 92% of placements are awarded) to graduates with at least two years of high school education in Ontario. Justice Koehnen granted an injunction, saying there’s a strong prima facie case that gutting residency chances for international students violates mobility and equality rights under the Charter.

💊 Saskatchewan hopped on the involuntary treatment train led by Alberta and BC. A newly tabled bill would allow for court-ordered treatment of people with severe substance use disorders.

🏠 The Federal Court recognized fresh rights on reserves. In two companion cases, Justice Favel said the Crown has a duty to provide adequate housing and clean drinking water to Indigenous peoples living on reserves.

🗳️ Alberta got a bit too cute with its referendum legislation. Passed earlier this year, the statute lets ordinary citizens kick off a referendum. The first question out the gates was separation — the only issue was that the legislation expressly prohibited referendums that would violate the Charter. After plenty of court time spent arguing about whether you can carve a province out of Canada and still comply with the Charter, Alberta amended the statute to remove the Charter compliance requirement and end the ongoing proceeding. The province even wrote to the Court, before the amended legislation passed, asking to terminate the case.

Justice Feasby didn’t endorse that approach. Instead, he published a decision concluding that separation would violate the Charter, and threw in a few choice words for the legislators:

BY THE NUMBERS 📊

The federal government tabled one of the biggest criminal law reforms in years. The Protecting Victims Act primarily targets intimate partner violence and child exploitation, with new offences for coercive control, sextortion, and distributing illicit deepfake images. It also upgrades every hate-motivated murder to first-degree (including the all too common “femicide” that crops up in intimate partner violence cases), reinstates minimum sentences struck down by the courts, and takes a shot at limiting the effect of Jordan.

Here’s a quick look by the numbers

30. The number of months that currently serves as a hard cap on prosecution time. The amendments put a significant asterisk beside that number, carving out time spent on certain pre-trial applications, requiring courts to consider alternative remedies besides throwing cases out with a stay of proceedings, and spelling out what it means for a case to be "complex" enough to warrant more time. The CCLA hates it, calling the bill an attempt to "legalize proceedings routinely running over two and a half years."

40,000+. The bill’s doozy of a word count. For those interested in the nuance that can’t be captured in an email newsletter, here’s a link to the full text.

9. The number of years it took the federal government to embrace judicial dialogue and implement a quick fix for minimum sentences. As the SCC spelled out in Lloyd, the only unconstitutional thing about mandatory minimum sentences is the “mandatory” part. Legislators can always “build a safety valve” to let judges exempt offenders from the minimum sentence in cases where it would amount to cruel and unusual punishment. Nearly a decade later, here’s that safety valve:

PRESENTED BY

I know. Seven months is a long pause in newsletter years.

If you’re one of the 313 people who signed up for this newsletter since I last pressed send — welcome. Thanks for your patience.

If you've been around longer, you might be wondering where I disappeared to (especially if we aren't connected on LinkedIn).

I mentioned in April that I was launching a new thing called Inn Laws — a community for great lawyers who know there’s much more to practicing law than what they teach you in law school.

I had every intention of writing and building all at the same time. But I quickly decided I needed to pause this newsletter to help the community find its footing.

I’m happy to report: footing found. Inn Laws has quickly become the most satisfying thing I’ve ever done. We've curated a thriving community of lawyers keen on helping each other grow. No ego. No transactional networking. Just a bunch of great people taking a more human approach to practice.

So, that’s where I’ve been. And I’ve included a quick look behind the scenes in today’s edition.

But can we get back to the legal news already? Does this guy even remember how to read a judgment?

— Dylan Gibbs

PS: why aren’t we connected on LinkedIn?

• Common sense legal standards

• Dealing with burnout

• Energy concessions

• Secularism, but more secular

• Extra-national Indigenous consultation

• (Allegedly) criminal lawyers

SPOTLIGHT 🔦

That change sure sounds material

Lundin Mining Corporation v. Markowich, 2025 SCC 3

If you’re a securities lawyer hoping to gift your corporate clients good news for the holidays, the latest Supreme Court of Canada decision will disappoint. The Court took a broad view of the “material changes” that firms need to disclose to investors, confirming that issuers can't sit on bad news.

A bit of context: Securities issuers need to disclose material facts in their regularly scheduled filings. They need to disclose material changes immediately. The question here was where to draw the line.

What happened: Lundin Mining learned that one of its mines had an unstable pit wall. The instability caused a rockslide a few days later, which forced the company to halt production and cut its annual production forecast by 20%.

Lundin didn’t rush to share the news. And when it disclosed the rockslide in a periodic update about a month later, share prices tanked. A disgruntled shareholder proposed a class action alleging that Lundin should have told investors as soon as it learned about the pit wall instability.

In the lower courts: The motion judge took a narrow approach to the concept of “material change”. Sure, there might have been a catastrophic incident, but since Lundin "continued its business and operations as a mining company," he said it wasn’t a change. And that meant the investor couldn’t even get leave to bring his lawsuit.

The Court of Appeal reversed, saying the motion judge’s approach was too restrictive.

On appeal: Justice Jamal wrote for the majority and found plenty to critique about the motion judge’s analysis. In his view, the motion judge misinterpreted just about every word in the phrase "material change in [an issuer’s] business, operations or capital”.

• The motion judge used a narrow dictionary definition of “change”

• He transformed “material change” into “super material change” by saying that changes need to be important and substantial

• And he also narrowly defined “business, operations, or capital”.

So what does material change mean?

The key question is whether there's an information imbalance between the issuer and investors. External developments – like weather, political events, and economic shifts – typically don’t qualify, because everyone has access to the same public information. Investors can assess the impact themselves. It’s a different story when there’s an internal development, which investors can’t reasonably discover on their own.

If you’re unsure, just use your common sense:

A collapsed mine? Yeah, that’s at least enough to go to trial.

Big picture: Two “material change” standards were emerging in the case law. A narrow, manager-friendly standard would have required disclosure only for important changes that cause significant disruption and perhaps even threaten to shut down an issuer’s principal business. The SCC’s decision shut that standard down in favour of the broader “change is change” standard:

Room for disagreement: Justice Côté, whose frequent dissents often favour the corporate side of the equation, would have given issuers more latitude to withhold information.

BY THE NUMBERS 📊

$130/tonne. The industrial carbon price Alberta agreed to pay in exchange for sweeping energy concessions from the federal government. Under an MOU signed last week, Ottawa killed its blockbuster Oil and Gas Emissions Cap, suspended Clean Electricity Regulations in Alberta, and promised two-year approval timelines for major projects (including a potential new pipeline).

$36 million. The settlement for survivors of abuse at two former Nova Scotia schools for deaf children.

14. The number of tribal nations in Alaska claiming that BC has a duty to consult them. The tribes applied for judicial review, saying they deserve the same consultation rights as Canadian Indigenous groups for BC mining projects that risk polluting Alaskan waterways.

A PEEK INSIDE INN LAWS

Candid discussions about burnout

Running a community for lawyers has been neat in a lot of ways. I get to facilitate conversations that were black boxes when I was practicing.

Lawyers swapping intel about compensation. Firm owners building marketing strategies together. Junior associates helping each other keep their heads above water.

But few moments highlight the payoff better than a recent community discussion about burnout. As someone who left private practice feeling pretty torched myself, the comments struck a chord.

On a disheartening note, I couldn't believe just how many Inn Laws members have experienced burnout. Something like 13 people chimed in — remarkable for a community our size.

On a heartening note, I was struck by how candid and helpful the comments were. Everything from book recommendations, to details about time off, to routines that have kept people from falling back into burnout all over again.

I suppose I shouldn't be that shocked. Giving lawyers a space to talk openly about the pressures of the profession was one of the core goals I had in mind when I created Inn Laws. But no matter how much I believed in that mission in the planning stages, it's completely different seeing it come to life.

Anyway, that's a quick look behind the scenes. I figure I owed it to you after seven months of silence.

And if any of this resonates, Inn Laws might be worth a look. We're closing our founding member cohort at the end of this month, so it’s the last chance to lock in a 35% discount on membership (guaranteed to founding members for life).

If you're curious, now's the time to apply.

MAKING HEADLINES 🗞️

🤖 The future is now. Alberta legislators are using artificial intelligence to write the first draft of the province’s forthcoming Whisky Act. They figure defining what qualifies as "Alberta whisky” is low enough stakes for a computer to take a crack at it — and humans will review the output before it gets tabled.

💉 Two founders of Vancouver's Drug User Liberation Front are mounting a constitutional challenge after being convicted of trafficking. They ran a "compassion club" that sourced heroin, cocaine, and meth from the dark web, tested the drugs for contaminants, and sold them at cost. Their challenge argues that criminalizing safer supply options violates Charter rights by forcing drug users to stick with more dangerous street drugs.

🕌 Quebec is getting even more secular. The province’s new bill would ban religious symbols in every education setting, from daycare to university, and outlaw public prayer. Just like its predecessor Bill 21 — the secularism law currently being challenged at the SCC, secularism 2.0 relies on the notwithstanding clause to pre-emptively shield it from Charter challenges.

🏳️‍⚧️ Not keen to be out-notwithstanding’d, Alberta also put the Charter override to work for the second time in less than a month. The province is using the clause to shield its three laws restricting gender-affirming care for trans youth. Advocacy groups challenging the laws say they still plan to take their arguments to court — the same strategy adopted by those challenging Quebec’s secularism law. We’ll see what the SCC has to say about it during the upcoming March appeal hearing.

🏠 BC property owners are suing over the recent Cowichan decision. If you’ve somehow managed to avoid the buzz about the decision — the BC Supreme Court recognized Aboriginal title over a large swath of land and remarked that a conflict between Aboriginal title and private land ownership may require private landowners to “yield”. The proposed class action alleges federal and provincial governments misled landowners into thinking their property was secure despite unresolved Indigenous claims.

THINGS NOT TO DO 😤

Don’t aid a criminal enterprise. Toronto criminal lawyer Deepak Paradkar, who once repped the outrageous Instagram handle @cocaine_lawyer, is wrapped up in the investigation into Olympic snowboarder-turned-drug lord Ryan Wedding. US prosecutors allege Paradkar told Wedding he could dodge charges by killing a witness — shortly before the same witness ended up gunned down in Colombia.

Innocent until proven guilty and all, but don’t do any of that.

Prosecutors also released these shots of Ryan Wedding getting advice from a younger colleague:

PRESENTED BY

Ever feel like your burger looked better in the picture? A U.S. judge says it might be worth suing over.

Burger King has to face a trial over claims its Whoppers look beefier in ads than in real life. Plaintiffs say they’ve never been served a burger that spilled out of its bun (unlike the perfectly crafted creations BK uses for marketing). The company says everyone knows food stylists plump up food for advertisements, but judge Roy Altman said it’s plausible consumers might not see BK’s dreamy-looking burgers as “mere exaggeration or puffery.”

— Dylan Gibbs

• Protecting privacy beyond personal proceedings

• Family discord

• Late pleadings

• New leaders

• Cannabis marketing

• Wonderland’s fall from grace?

STAYING CURRENT 🗞️

Recent and notable

1. Protecting privacy far and wide
   Mount Pearl v. Power, 2025 NLCA 16

Can you get involved in someone else’s lawsuit to protect your privacy interests? Maybe. But there’s certainly a limit — at least according to the Newfoundland and Labrador Court of Appeal.

The City of Mount Peal placed its Chief Administrative Officer, Steve Kent, on paid leave pending a harassment investigation. City staff then saw Facebook messages popping up on Kent’s work-issued iPad. After a bit of snooping, the City used the messages as justification to fire two city council members. The fired councilors sued the City.

Kent didn’t want the Facebook messages ending up in the public record. So he intervened in the lawsuit, asking the Court to protect his privacy. The application judge sided with Kent, barring the City from using the messages as evidence.

• Even though Kent wasn’t a party to the lawsuit, the trial judge made a firm ruling that the municipality violated his privacy. The Court even went as far as to recognize the common law tort of intrusion upon seclusion (a provincial first).

But according to the Court of Appeal, the application judge’s decision was a step too far. The Court of Appeal said he should have considered less drastic options, like sealing the messages or imposing a publication ban. And he definitely shouldn’t have made a firm conclusion about Kent’s privacy interests in a lawsuit that Kent wasn’t personally involved in.

PS: Apologies to anyone who was excited about another province recognizing the common law privacy tort of intrusion upon seclusion. The Court of Appeal wasn’t happy with that aspect of the application judge’s decision either.

2. The cost of breaking family bonds
   Chung v. Chung, 2025 BCCA 136

The BC Court of Appeal said you’re more likely to get hit with punitive damages if you rip off a business partner who also happens to be your family member.

The court awarded $100,000 in punitive damages against a Vancouver man who secretly withdrew over $1.6 million from jointly owned investment properties and used the money to buy himself a house — all while concealing the transfers from his brother and co-investor, who lived overseas.

The trial judge found a breach of fiduciary duty but stopped short of awarding punitive damages, in part because the conduct had to be “understood in the family context in which it took place“.

The Court of Appeal didn’t see it the same way. The Court said the concealment went on for years, that the brother’s interest in the property had been deliberately hidden, and that family trust made the betrayal worse, not better.

3. Hold your horses, that’s a new cause of action

   Total Meter Services v. GVM Integration, 2025 ONCA 321

Here’s a case that highlights the importance of thorough drafting. The Court found that a technology company’s late-stage pleading amendment introduced a new cause of action that was out of time.

The original claim alleged that a former employee stole confidential information and, after leaving the company, used it to build competing products and solicit clients. The company later amended the claim to allege that the employee also approached one of its clients before he left the company, siphoning away a lucrative opportunity.

The company argued that it was all pretty much the same thing — using confidential information to steal clients. But the Court of Appeal said the new claim was different enough to amount to a new cause of action.

PRESENTED BY NEARME MARKETING

Show up where it matters

When someone Googles “family lawyer near me,” you don’t just compete with other firms in your city — you compete block by block.

NearMe Marketing, the legal SEO agency behind some of Canada’s top-ranking firms, built a free tool to help you see exactly where your firm stands.

Just enter your firm name and location. The map shows where you’re visible — and where you’re not.

Your next client is searching. Use NearMe’s map to make sure they find you.

BY THE NUMBERS 📊

200: The number of charges laid against a Quebec company for allegedly dumping harmful substances into fish-bearing waterways.

$9.5 million: The size of a sexual misconduct settlement negotiated between plaintiffs and the City of Leduc. The settlement resolves a class action lawsuit that alleged systemic issues in Leduc Fire Services. The lawyers involved say it’s the first Canadian class-action settlement for sexual misconduct at a municipality or fire department. And with payments ranging from $10,000 to $285,000 per plaintiff, it helps raise the damages bar for this kind of lawsuit.

30: The minimum number of days Pierre Poilievre has to wait before he’ll have a shot at returning to Parliament. According to the Parliament of Canada Act, MPs can't resign their seat until 30 days after their election result is published in the Canada Gazette (which typically takes about a month). That means Alberta MP Damien Kurek can’t step aside for Poilievre just yet. In the meantime, the Conservatives picked former party leader Andrew Scheer to hold things down as the official leader of the Opposition in the House of Commons.

$64 million: the damages Claude Paquin is claiming against Montreal and Quebec after being wrongly convicted of murder. The claim includes $6,000 for every day Paquin spent in prison and $2,400 for each day he spent on supervised release.

MAKING HEADLINES 🗞️

⚡️ Alberta is officially challenging the federal government’s proposed clean electricity regulations, calling them unconstitutional and economically damaging. The province argues the rules won’t significantly cut emissions but will drive up costs, create supply risks, and intrude on provincial jurisdiction over power generation. The case will head to the courts through a reference to the Alberta Court of Appeal.

📝 Ontario’s proposed civil justice reforms — which include scrapping oral discoveries and requiring early sworn witness statements — are drawing sharp criticism from several legal groups. The Federation of Ontario Law Societies, Ontario Trial Lawyers Association, and Canadian Defence Lawyers have all asked the province for more time to give feedback, commenting that the reforms risk access to justice, especially in the context of personal injury and insurance claims.

• Criticism aside, if you want to hear more about the rationale behind the reform push, Chief Justice Morawetz recently spoke on the CBA’s Verdicts and Voices podcast.

🤝 Trump response or power grab? Ontario and BC are each facing blowback over proposed legislation to speed up development. Ontario’s Unleashing our Economy Act and BC’s Infrastructure Projects Act both give the respective provincial governments the ability to immunize certain projects from existing regulations. Critics say they sidestep environmental protections and threaten Indigenous consultation rights, raising concerns that the provinces are prioritizing development at the expense of accountability.

Twitter tweet

💧 No one is safe from the Competition Bureau’s crackdown on drip pricing — not even Canada’s Wonderland. The Bureau filed an application with the Competition Tribunal alleging that Wonderland applies hidden fees to online purchases ranging from $0.99 to $9.99.

👨‍🏫 The Law Society of Ontario hired York University governance professor Dr. Richard LeBlanc to help reform the organization in response to its recent CEO compensation controversy.

🥬 Toronto-based cannabis brand Ghost Drops filed a Charter challenge against federal restrictions on cannabis advertising, calling them a violation of free expression. Without more expansive advertising, how can the company show off its “bold, street-inspired identity, edgy, urban aesthetics and unmistakably loud, rebellious, culture-driven branding”?

Lawyers get a bad rap for constantly hunting down rankings and prestige. Some of us sure aren’t helping.

A Brazilian judge is facing criminal charges because he decided his vanilla origin story and Brazilian-sounding name (José Eduardo Franco dos Rei) weren’t good enough. He switched things up when he enrolled in law school, telling everyone his parents were British aristocrats.

Apparently no one noticed the fraud for decades. If you ask me, it should have been a hint that Dos Reis chose the most satirical-sounding British name of all time: Edward Albert Lancelot Dodd Canterbury Caterham Wickfield.

— Dylan Gibbs

• Cheating

• Housekeeping

• Extra long ballots

• Suing the common law

• Minority language education

• Underdeveloped Charter rights

STAYING CURRENT 🗞️

Recent and notable

1. Tough break for bar exam cheaters
   Afolabi v. Law Society of Ontario, 2025 ONCA 257

If you’ve been following the Law Society of Ontario’s 2021 bar exam scandal, you know that a group of students used answer keys to cheat. You also know that the LSO cancelled the cheaters’ licensing registrations, barred them from reapplying for a year, and left open the possibility of holding good character hearings that could block them from entering the profession altogether.

The prospective lawyers found some success at Ontario’s Divisional Court, where a three-member panel held that the LSO acted unfairly. The Court said the LSO should have held oral hearings before kicking people out of the licensing process.

But that victory proved to be short-lived. The Ontario Court of Appeal overturned the decision this week, saying the Divisional Court didn’t properly differentiate between good character investigations and licensing dishonesty.

• According to the Law Society Act, most LSO decisions don’t require an oral hearing. The LSO does need to hold an oral hearing before deciding that a prospective lawyer doesn’t have good character.

• The Divisional Court said the LSO’s decision was effectively a good character decision — cancelling someone’s registration because they cheated on the bar exam sounds a lot like a concern with their character.

• But according to the Court of Appeal, the Divisional Court shouldn’t have made that leap. There’s an important distinction between licensing integrity decisions and good character investigations.

2. A failing grade for Quebec’s school board reforms
   Quebec v. QESBA, 2025 QQCA 383

The Quebec Court of Appeal recently sided with the province’s English-language school boards, delivering a win for minority language education rights.

A bit of context: Quebec’s 2020 education reforms looked a lot like a hostile takeover for English-language schools — new rules disqualified 99% of English-speaking Quebeckers from running for elected school board positions and gave the government greater control over how schools could use their funding.

The Court’s ruling: The Court of Appeal said the changes violated the Charter because section 23’s minority language protections guarantee control over spending, staffing, programming, and policy-making.

Big picture: The Court did dial back some of the lower court’s more creative conclusions. The Superior Court said governments have a duty to consult minority language groups before changing education laws. The Court of Appeal said there’s no legal basis to impose that sort of duty.

3. Housekeeping has its limits
   Ross River Dena Council v. Yukon, 2025 YKCA 4

When can courts revisit their decisions? Rarely.

After lacklustre Indigenous consultation on a Yukon mining project, the Yukon Court of Appeal ordered further discussions. Consultations have been taking place for months — which the mine operator isn’t happy about.

BMC Minerals asked the Court of Appeal to “clarify” its original decision by putting a deadline on the consultation. That didn’t go over so well.

SPOTLIGHT 🔦

Peaceful assembly finally gets its due

Hillier v. Ontario, 2025 ONCA 259

If section 2(c) of the Charter doesn’t ring any bells for you, it’s probably because courts haven’t given it much attention. But the Ontario Court of Appeal came in hot this week with two firsts. Hillier is the first appellate decision to find a COVID gathering restriction unconstitutional, and it’s the first to give the Charter’s freedom of assembly protection more than a passing nod.

A bit of context: Randy Hillier, a former Ontario MPP and outspoken pandemic critic, racked up provincial offence charges for attending outdoor protests in 2021. At the time, Ontario allowed small gatherings for weddings, funerals, and religious services. But there was no similar carveout for protests. Hillier argued that omission was unconstitutional.

Most claims challenging COVID gathering restrictions have relied on freedom of religion. And they’ve failed at several different courts. The consensus is that tailored gathering limits (with exceptions for small religious gatherings) are a reasonable limit on Charter rights.

The Court’s ruling: The Court of Appeal agreed with Hillier that limiting protests violates the right to peaceful assembly. And since Ontario’s rules served as a blanket ban — with no carveout for even the smallest of group protests — the Court said the government couldn’t rely on section 1 of the Charter to justify the violation.

• Justice Lauwers’s decision is now the go-to for understanding the scope of the Charter’s peaceful assembly protection.

And in an act of kindness to readers everywhere, Justice Lauwers set out his entire approach to section 2(c) in an organized list. So there’s no excuse not to check it out.

• The gist is that people have a protected right to gather. The government violates that right when it “discourage[s] the collective pursuit of a common purpose by restricting or prohibiting a public gathering or assembly”.

Reasonable limits: As far as justification goes, Ontario faced an uphill battle. The government’s failure to even consider a carveout for political protest proved fatal.

• The province tried to justify the violation using the unrelated carveouts for weddings and religious gatherings — which worked before the Superior Court of Justice. But the unrelated exceptions didn’t cut it for the Court of Appeal

The Court hasn’t granted a remedy yet, giving the parties time to make submissions. Justice Lauwers’s concluding remarks suggest the Court is leaning towards a tailored remedy that wouldn’t void the gathering limits altogether.

Big picture: Hillier is also doing well in the criminal law realm (where he’s representing himself). Ontario’s Superior Court of Justice recently tossed Hillier’s criminal Freedom Convoy charges because the prosecution took too long. The Crown is contesting that decision, so we’ll see if Hillier can go two for two at the Court of Appeal.

BY THE NUMBERS 📊

91: The number of candidates on the ballot in Pierre Poilievre's Ottawa riding. A group known as the Longest Ballot Committee stuffed the ballot with independent members to protest the electoral system.

$5 million: The first tranche of New Brunswick's investment in tech-savvy courts. The province’s digital transformation project includes a new case management system to integrate all three levels of court, electronic filing, and in-court upgrades like enhanced video conferencing. The province says the project will cost $32.7 million in total, spread out over 6 years.

13.4%: The percentage of BC Supreme Court trials that were bumped last year. Long chambers applications were even less likely to proceed as scheduled, with a 19.1% bump rate. The Court’s annual report attributes the problem to judicial vacancies. And even though the federal government has now filled most of those vacancies, the Court said it’s still dealing with fallout:

MAKING HEADLINES 🗞️

⌛️ Does the government have a duty to respond to common law changes? It’s a bit of a stretch, but fourteen survivors of sexual assault and intimate partner violence say yes. Their novel lawsuit alleges the federal government hasn’t done a good enough job responding to the SCC’s Jordan decision, which puts hard caps on the length of criminal trials. With courts frequently throwing out serious charges — denying victims their day in court — the plaintiffs say the situation is so bad it violates the Charter.

• On top of a request for $15 million in damages, the suit claims the government has a positive duty to make laws in response to Jordan. The claim doesn’t clarify what those laws should look like, but it seems like the plaintiffs want special deadlines for intimate partner and sexual violence offences.

🛢️ The Athabasca Chipewyan First Nation sued Alberta for renewing the province’s Mine Financial Security Program. The program forces energy operators to post security, covering potential remediation costs. But the security amounts leave something to be desired. In 2021, Alberta’s auditor general estimated the province holds only $1.5 billion in security for remediation liabilities of $31.5 billion. A University of Calgary research study says the situation is even worse — researchers estimate liabilities between $45 billion and $130 billion, with only $2 billion held in security.

• The First Nation says the government had a duty to consult before renewing what they call a grossly inadequate program.

⛄️ Immigration advocates are fighting back against the Trump administration’s strict new rules for long-stay visitors — which could be good news for Canadian snowbirds. As of Friday, people staying in the US for more than 29 days need to register with the government and carry proof of registration at all times. Non-Canadians even need to give their fingerprints. A lawsuit filed earlier this week aims to quash the policy before snowbirds are forced to make space for registration documents in their golf bags.

🥬 Nova Scotia just gave the Mi’kmaq a license to sell cannabis. The Nova Scotia Liquor Corporation used to be the province’s only authorized retailer. The government opted to allow Indigenous-owned vendors because illicit sellers were flooding Mi’kmaq communities.

• Fun fact: one illicit Mi’kmaq seller has ties to a famous Canadian legal figure. A relative of Donald Marshall Jr. (one of Canada’s most notable wrongful convictions and the man behind the R. v. Marshall treaty rights decision) got into trouble for running a dispensary.

• Loosely following in his family member’s footsteps, Darren Marshall argued the Mi’kmaq have a treaty right to sell cannabis. But a Nova Scotia judge summarily dismissed the argument because Marshall didn’t offer enough evidence.

OBITER DICTA

PRESENTED BY

If you’re not keen on celebrating Liberation Day, consider celebrating its antithesis. Senator Cory Booker set a new record for the longest speech in US Senate history, spending 25 straight hours opposing Trump policies like the Liberation Day tariffs taking effect today.

— Dylan Gibbs

• Reining in big tech’s terms

• Law firm receiverships

• Judicial misconduct

• Civil justice reform

• Sensitive images

• Bifurcation

STAYING CURRENT 🗞️

Recent and notable

1. Signing your life away to big tech?
   X Corp. v. Masjoody, 2025 BCCA 89

According to X, the platform’s terms of service apply to just about any lawsuit brought by someone with an X account. But BC’s courts don’t seem to agree.

A bit of context: Dr. Masood Masjoody sued X in BC over tweets he says are defamatory. According to X, he should have sued in California. The company relied on its terms of service, which say that any disputes related to the terms or X’s services need to be litigated in San Francisco.

The ruling: The BC Court of Appeal (agreeing with the BC Supreme Court), said X’s terms of service don’t cover Dr. Masjoody’s defamation claim.

X also relied on another part of the contract:

But the Court saw two reasons not to let this language block Dr. Masjoody’s claim.

• The limitation only applies to third party conduct. Since Dr. Masjoody alleges that X directly defamed him by facilitating, maintaining, and even encouraging the allegedly defamatory posts, the alleged misconduct falls outside the limitation.

• And the limitation only covers liability for damages. Since Dr. Masjoody wants an order forcing X to take the posts down, the remedy also falls outside the limitation.

Big picture: This one’s a bit like the case that blew up in Disney’s face last summer — where the company argued that a man couldn’t sue over his wife’s death because he signed up for an online Disney account. If the X case is any indication, Disney made the right call backing away from that argument after facing public backlash. Judges probably wouldn’t have liked it either.

2. Courts call the shots
   Sask Power v IBEW, 2025 SKCA 33 

Just because parties agree to split up an administrative hearing doesn’t mean the courts have to play along.

In a Saskatchewan labour arbitration, the parties bifurcated the case—liability first, remedy later. After losing on liability, the employer tried to jump straight to judicial review. The Court of Appeal didn’t like that approach.

• Courts occasionally hear judicial review applications from decisions that aren’t fully wrapped up — but only in exceptional circumstances. And there’s nothing exceptional about the parties agreeing to split things up.

3. Law Society doesn’t trump secured creditors
   Easy Legal Finance v Law Society of Alberta, 2025 ABCA 112

The Law Society of Alberta put a firm into receivership after one of the firm’s employees misappropriated more than $419,000 from the firm’s trust account. But the Law Society isn’t the only one worried about the firm’s finances. The firm also owes more than $1.4 million to its senior secured lender — Easy Legal Finance.

The Law Society tried to pause the interest on Easy Legal Finance’s debt, arguing that the 18% interest rate would drain the money available to other creditors. Alberta’s Court of King’s Bench agreed with that assessment, but the Court of Appeal said the lower court incorrectly applied the “interest stops rule”.

According to the Court of Appeal, insolvency courts sometimes pause interest to ensure fairness among creditors in the same class — but secured creditors aren’t in the same class as unsecured creditors.

That means courts can’t pause the interest on a secured debt during receivership simply because it seems like a fair thing to do.

• Even if the Law Society is the party saying it’s the fair thing to do.

4. What exactly is an “intimate image”?

A.Q. v. B.T., 2025 BCCRT 398

BC’s Intimate Image Protection Act helps people get intimate images off the internet — images that depict them “engaging in a sexual act”, “nude or nearly nude”, or exposing private areas of their body. A recent case seems to put some gloss on those categories.

An anti-trans activist posted an image of a trans woman’s face photoshopped onto a male body. According to the Tribunal, the image was “relatively benign” — apart from its hateful anti-trans message.

The Tribunal still awarded damages, even though it doesn’t sound like the image depicted the things mentioned in the legislation.

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SPOTLIGHT 🔦

A potential overhaul of civil litigation in Ontario

Ontario’s Civil Rules Review just released its latest report, pitching what would likely be the most dramatic civil justice transformation Canada has ever seen. The working group’s proposal centres around an “up-front evidence” model that completely eliminates oral discovery.

The report starts from the undeniable premise that our civil justice system is broken:

Instead of tinkering around the edges, the working group went big, aiming to relieve pressure on backlogged courts and resolve cases faster. The reforms focus on discovery and motions (the biggest sources of delay).

In addition to eliminating oral discovery, the proposed changes include:

• Pre-litigation protocols for certain types of cases (like personal injury, debt collection, and disputed wills), requiring discussions and document exchanges before cases are even filed.

• Early witness statements and key documents, with tight restrictions around asking for more documents

• Mandatory judicial case conferences after the exchange of evidence

• Expanded judicial control over motions and case management

In a post-reform world, the hope is that we’ll see every new civil litigation proceeding completed within two years.

Public consultation is open until June 16. Beyond that, Ontario could see a revamped civil justice system as early as 2026.

PS: The first four pages of the report are worth reading in their entirety. They lay out a sharp, sobering indictment of Ontario’s justice system — which is just as applicable across the rest of the country.

BY THE NUMBERS 📊

17¢: The average drop in gas prices after BC axed the carbon tax this week. Regulators are keeping a close watch to make sure gas stations actually pass the carbon tax savings on to consumers.

$1.2M: the total fines for an Alberta workplace fatality (split between three companies).

7: The number of Indigenous languages soon to be featured in Manitoba’s Hansard transcripts. The province launched a pilot program to translate legislative proceedings, which kicks off this spring. They may need to invent new words to accurately capture government business.

$30M: The class action settlement approved against cannabis firm Aphria Inc. The lawsuit alleged that Aphria’s prospectus filings misrepresented two of its planned acquisitions, benefiting insiders at the expense of other shareholders.

MAKING HEADLINES 🗞️

🧑‍⚖️ Alberta is challenging a miscarriage of justice review done by former Justice Minister Arif Virani. In February, Virani ordered a new murder trial for Roy Allan Sobotiak, saying there was a reasonable basis to conclude that a miscarriage of justice likely occurred during the original prosecution. But the province says Virani’s decision is too light on details to run a new trial. They want the Federal Court to quash the decision and order more thorough reasons.

• As far as I can tell, this has never happened before — people convicted of criminal offences sometimes challenge unsuccessful miscarriage of justice reviews, but you don’t typically see provinces challenging successful ones.

🇸🇾 The Advocates’ Society is catching flak after cancelling Syrian-Canadian entrepreneur Tareq Hadhad as the keynote speaker for its upcoming end-of-term dinner in Toronto. Members took issue with some of Hadhad’s social media posts about the Middle East, so TAS cancelled his speech to avoid making anyone feel unwelcome. Several lawyers and advocacy groups have accused TAS of suppressing views, with some giving up their membership in protest.

✏️ The BC government dialled back the tariff response bill that would have given it the power to amend any law on the books without going through the legislature.

🥾 A First Nation community decided that Manitoba’s provincial court overstayed its welcome. Sioux Valley Dakota Nation held court twice a month in its mature student centre — one of many remote stops on Manitoba’s provincial court circuit. But Chief Vince Tacan says it was doing more harm than good. The small makeshift courtroom often placed victims, witnesses, and accused persons in close quarters. And Chief Tacan said a lack of security led to issues like weapons being found in the bathroom. Without the local circuit stop, residents will need to travel 50km east to Brandon.

🤖 Apple is getting sued over its AI claims. A proposed class action targets the company’s botched Apple Intelligence launch, which suggested AI features would power last year’s iPhone 16. Those features still haven’t made it to market. Last month Apple took down at least one of its advertisements and added disclaimers to other marketing materials — acknowledging that the advertised features are still under development.

Twitter tweet

PODCAST ANNOUNCEMENT 🎧

I spoke with Dean Michael Marin from the University of New Brunswick’s Faculty of Law about lawyer wellbeing recently. He’s full of practical solutions that go beyond paying lip service to the legal profession’s mental health crisis.

We talked anxiety, exercise, community, and why “your reputation is everything” might be bad advice.

You can find our chat on Youtube, Spotify, Apple Podcasts, and wherever else you like to listen.

THINGS JUDGES SHOULDN’T DO

1. No sanction for the judge who lashed out during sentencing

A National Judicial Council review panel decided not to discipline Justice François Huot, who gave a convicted murderer this piece of his mind before sentencing:

According to the review panel, the comments were improper but judges are human too.

2. Private sanction for the judge who lashed out at the younger generation

A different review panel took a slightly harsher approach to Justice Earl Wilson’s conduct. His mistake was adopting a condescending and belittling tone, directing harsh comments at the complainant in a restraining order proceeding:

The review panel decided on a “private” resolution, to remind Justice Wilson about the importance of civil communication.

3. Reprimand for Justice Bégin

You might remember Justice Alain Bégin from the harsh words the Nova Scotia Court of Appeal used when reviewing his conduct:

• “The astonishing behaviour of the trial judge in this case requires a salutary reminder of the duty of all judges privileged to hear and decide cases in court” (R. v. K.J.M.J., 2023 NSCA 84). A case where Justice Bégin called an accused a sexual deviant before the trial was finished, then tried to purge his comments from the court record.

• “This is a reasonable apprehension of bias case unlike any other” (R. v. Nevin, 2024 NSCA 64). A case where Justice Bégin was so offended by a recusal application that he called his own character witness.

Despite the strongly worded Court of Appeal decisions, a majority of the review committee for Nova Scotia’s Provincial Court judges decided not to send the complaint against Justice Bégin to a full hearing. They based their decision on:

• Judge Bégin acknowledging his conduct and showing remorse

• Strong support from Justice Bégin’s colleagues, including his Chief Justice

• The fact that Justice Bégin has been back to work for several months without any issues

• And the revelation that Justice Bégin was suffering from an undiagnosed mental health disorder at the time of his misconduct.

Instead of a full hearing, Justice Bégin agreed to a resolution that includes a reprimand and ongoing treatment.

One member of the review committee penned a strong dissent, saying that a case of this magnitude deserves a full hearing:

PRESENTED BY

It’s March 20, which means Spring has officially sprung. Good riddance to that W guy and his friend seasonal depression.

— Dylan Gibbs

• Government liability shields (redux)

• Vaccine indoctrination

• Workplace discrimination

• Henry VIII

• Cabinet shuffles

• No shows

• Descents into madness

STAYING CURRENT 🗞️

Recent and notable

1. Ontario Place development escapes judicial oversight
   Ontario Place Protectors v. Ontario, 2025 ONCA 183

Here’s another case about the limits on governments shielding themselves from litigation.

You might remember the BC Court of Appeal recently striking down legislation that went too far. The Ontario Court of Appeal has now gone the other way, saying there’s nothing wrong with the statute that fast-tracks Doug Ford’s controversial Ontario Place development.

The challenge stemmed from a law that exempts Ontario Place from regulatory approvals and bars any related litigation. Advocacy groups argued the law is unconstitutional, saying it takes too much power away from the courts.

But according to the Court of Appeal, there’s nothing wrong with the province changing the law to end litigation. The government is free to deregulate a specific project and shield itself from liability.

You’ll be disappointed if you were hoping the Court would grapple with the BC Court of Appeal's recent ruling and explain the difference. There’s no mention of the BC case despite its similarity.

To my eyes, the two cases are compatible.

• The BC Court of Appeal took issue with “deeming” legislation. Residents argued that a municipal zoning hearing was procedurally unfair. The legislation deemed the hearing validly held, which effectively directed the courts to turn a blind eye to the procedural fairness concerns.

• Ontario could have done the same thing here by saying: “Ontario Place is deemed to have met all the applicable regulatory requirements”. Instead, Ontario said the requirements simply don’t apply.

• If that feels like a nitpicky difference … that’s why they pay us the big bucks.

2. Mom gets the vaccine veto

   M.S. v. V.D., 2025 BCCA 84

The BC Court of Appeal let a mother with primary decision-making authority vaccinate her children against HPV over their father’s objections, while also upholding an order that prevents the father from even mentioning the vaccine to his children.

• As the chambers judge saw it, the father tried to indoctrinate his children with his anti-vaccine ideology, which was a good enough reason to silence him.

The father argued the chambers judge cherry-picked evidence and demonstrated bias by using the word indoctrination. But the Court of Appeal disagreed.

3. Federal discrimination suit gets tossed
   Thompson v. Canada, 2025 FC 476 

The Federal Court struck a proposed $4.5 billion class action brought by Black federal employees. The suit alleged systemic discrimination in hiring and promotions across the entire federal public service.

According to Justice Gagné, the lawsuit failed just about every requirement to certify a class action.

• The claim overlapped with other lawsuits targeting specific federal departments.

• It relied on claims that should have been advanced through labour grievance processes instead of civil lawsuits.

• And it didn’t allege that a specific government action or policy impacted the entire class of Black employees (making the claims inappropriate for a class action). Every employee alleging discrimination would have required their own unique and contextual analysis.

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BY THE NUMBERS 📊

$10: The amount Quebec restaurants will soon be able to charge customers who don’t show up for a reservation. Quebec is currently the only province where no-show fees are illegal — a law the province says hurts small businesses more than it helps consumers.

2: The number of weeks a BC woman spent in US immigration detention centres, thanks to the Trump administration’s aggressive new posture toward visa applicants.

$25,000: The potential fine for businesses that break PEI’s vape and tobacco rules.

MAKING HEADLINES 🗞️

🇺🇸 BC’s trade war legislation is kicking up dust thanks to a controversial Henry VIII clause — the sort of provision that lets the executive branch of government sidestep the legislative branch.

• A typical Henry VIII clause gives the power to amend a statute by regulation instead of legislation. They’re legal (at least, that’s what the SCC said in the fairly recent Greenhouse Gas Pollution Pricing Act Reference). But BC’s proposal is especially broad.

• If the new legislation is passed, BC’s Lieutenant Governor would be able to amend virtually any statute in the province by regulation, as long as the regulations support the economy of British Columbia and Canada, tackle interprovincial trade barriers, or respond to anticipated threats posed by a foreign jurisdiction.

• The Lieutenant governor won’t be able to change licensing requirements for natural resource development or laws dealing with Indigenous engagement, but everything else is fair game.

Given the breadth — if there was ever a test case to reconsider the legality of Henry VIII clauses, this is probably the one.

You can see the full text of the proposed legislation here. Sections 19-20 seem to be the most extreme.

👨‍💼 Say hello to Canada’s new justice minister, Gary Anandasangaree. He’s taking the reins from Arif Virani, who won’t be running in the next election. Born in Sri Lanka, Anandasangaree practiced human rights law before his political career. He’s also staying on as the Minister of Crown-Indigenous Relations and Northern Affairs — which is now combined with the justice portfolio under Prime Minister Mark Carney’s streamlined cabinet.

• Virani is going out on a high note, having cut judicial vacancies from record highs at the start of 2023 to lows we haven’t seen in ages. As of March 1, there were only 19 vacant positions for federally-appointed judges.

🇨🇦 We’re still waiting on new legislation for lost Canadians, but there’s now a stopgap measure. It’s been more than a year since Ontario’s Superior Court of Justice struck down citizenship restrictions for people born outside the country. But between filibusters, prorogation, and a new Prime Minister, the federal government has had a tough time passing legislation to fill the gap. While we wait for an election and a new legislative session, Immigration Minister Marc Miller says the government will fill the gap using discretionary citizenship grants (effectively mirroring the legislation the government planned to enact before things went sideways last fall).

THINGS NOT TO DO 😤

Don’t descend into madness.

Former Ottawa lawyer James Bowie was convicted this week of criminal harassment, extortion, and uttering threats. The Court found that he preyed on a vulnerable client, offering legal services in exchange for sexual favours. When the client went to the Law Society, Bowie resorted to threats.

Here are excerpts from the decision, as reported by the Ottawa Citizen:

OBITER DICTA

Instagram post

PRESENTED BY

Good morning from Austin, Texas. No, I’m not here advocating for Canada’s sovereignty. Alberta’s US lobbying foothold is too strong for a little guy like me to disrupt. I’m just attending a newsletter media conference — hopefully coming back with ideas to improve this publication for you.

PS: If you need some perspective today — a reminder there’s a bigger world out there — there’s a new theory about the structure of the universe. Warning: in addition to making you feel small, this article might make you feel dumb.

— Dylan Gibbs

• Starting the clock

• Costs against tribunals

• COVID class actions

• Cross-examining Crowns

• AI hallucinations

• Leaving X behind

STAYING CURRENT 🗞️

Recent and notable

1. Not everything is continuous
   Huether v. Sharpe, 2025 ONCA 140

Limitation periods typically don’t start running until the wrongful conduct ends. Take the simple example of a trespasser — the limitation period would usually start running when they leave, not when they arrive.

But how far does that principle get you? Not very far, according to the Ontario Court of Appeal. It’s a great reminder about the nature of continuous wrongs — and the importance of home inspections.

What happened: A couple bought a home with a defective foundation. They blamed the municipality — arguing that the Township of McMurrich Monteith did a poor job supervising construction. But the home was built in the '80s. And the couple didn’t buy the home until 2021. Ontario’s 15-year ultimate limitation period expired before they moved in.

Despite the passage of time, the Superior Court of Justice refused to dismiss the couple’s claim — a conclusion that stemmed from an open work order. The municipality inspected the home during construction, saw defects, and ordered work to be done. But staff failed to ensure the work was actually completed and treated the work order as closed.

• In the motion judge’s view, the Township’s negligence continued every day the work order remained open. And that meant the limitation period never started to run.

But the Court of Appeal disagreed: The Court said the motion judge misinterpreted what it means for wrongful conduct to be “continuous”.

2. The cost of doing procedurally unfair business?
   J.T. v. British Columbia (WCAT). 2025 BCSC 246

The BC Supreme Court ordered costs against the Worker’s Compensation Appeal Tribunal. You don’t see that every day — tribunals are typically immune from paying costs even if litigants successfully overturn their decisions.

So, where did the tribunal go wrong? A worker claimed that multiple workplace incidents caused his mental illness. When the tribunal asked for a doctor’s expert opinion, it didn’t let the doctor review all the incidents. And the tribunal relied on the opinion to reject the worker’s claim, even though the doctor didn’t have all the facts.

Making things worse, the tribunal limited the worker’s evidence. And even though the worker only learned of those evidentiary limits on the day of his hearing, the tribunal forged ahead with the hearing anyway.

3. Canada’s COVID response immune to class action
   Perron v. Canada, 2025 FC 356

Plaintiffs filed a proposed class action against Canada, alleging that the government’s pandemic response caused unnecessary suffering and deaths and therefore violated the Charter. Associate Judge Trent Horne dismissed the lawsuit, saying it was doomed to fail.

4. Cross-examining prosecutors
   R. v. Swaine, 2025 ONCA 117

Crown Attorneys in Ontario appealed a criminal acquittal where the trial judge said his reasons would follow but never released them. The trial judge later emailed counsel to say that he wasn’t allowed to issue his draft reasons because one of the parties had complained about his conduct.

It turns out prosecutors had complained to the Court’s executive legal officer about the pace of the proceedings.

The Ontario Court of Appeal said defence counsel can cross-examine the trial Crowns to figure out what happened, because it might be relevant to the appeal.

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BY THE NUMBERS 📊

$1.72B: The size of Canada’s cows-and-plows settlement with 14 Saskatchewan First Nations. The deal gives compensation for agricultural treaty promises the government never followed through on.

$15k: The cost of AI hallucinations. A US judge handed out the sanction in yet another case of a lawyer relying on fake judicial decisions because they didn’t review their AI-generated work product.

$380,000: The cost of baselessly saying drag performers groom children. Brian Webster objected to a drag storytime event, calling the drag performers “groomers” on Facebook. Rainbow Alliance Dryden and several individual drag performers successfully sued for defamation. Justice Helen Pierce awarded each of the four plaintiffs $75,000 in general damages and $20,000 in aggravated damages.

MAKING HEADLINES 🗞️

🧑‍🎓 McCarthy Tétrault paused a recruitment initiative for Black and Indigenous students. Some firm members are worried the move is connected to the growing wave of anti-DEI efforts that have taken North America by storm. (Globe and Mail)

🪧 Amazon workers say the company is pulling out of Quebec simply to bust up a union certified last year. They filed a complaint with Quebec’s Administrative Labour Tribunal. If you’re interested in the full complaint, you can read it (in French), but the gist is something sure smells fishy about Amazon shuttering Quebec operations shortly after workers in Laval formed Canada’s first certified union of Amazon employees.

🛍️ BC is strengthening its consumer protection laws.

✈️ Surprise surprise — passengers are already suing Delta over the flight that flipped upside down in Toronto last week. A lawsuit filed in Georgia alleges that one passenger was soaked in jet fuel during the crash. He’s asking for US$200,000.

🗣️ Outcry sure seems to work in Nova Scotia. After significant pushback, the government backed away from amendments that would have allowed elected representatives to vote out the province’s Auditor General. People are also complaining about the government’s proposed amendments to access to information legislation, which would allow the government to reject “trivial, frivolous or vexatious” information requests. Premier Tim Houston said the province will likely change those plans too.

 🙅 The SCC won’t be posting on X anymore. The Court suggested that the change relates to strategic priorities, not mentioning anything about US/Canada tensions and the close connection between X owner Elon Musk and President Donald Trump. But given the timing — and the fact that the Court plans to keep posting on pretty much every other social platform — it’s hard not to see the change as politically linked. And some are concerned about the message that sends.

Twitter tweet

THINGS NOT TO DO 😤

Don’t send your clients unsolicited sexist jokes.

The Law Society of Ontario’s disciplinary tribunal found that a lawyer sexually harassed a client when he sent her eight comics and videos — the sort of stuff that might have entertained a Mad Men era boardroom. 

Here’s the joke from one of the least offensive messages:

The lawyer said he was simply sharing informational content among friends. But the hearing tribunal wasn’t buying it:

The tribunal also found that the lawyer’s inappropriate jokes eventually escalated to sexual touching. Don’t do that either.

PRESENTED BY

A few people have asked me about this newsletter’s criminal law coverage. I typically only cover criminal cases decided by the Supreme Court of Canada and the occasional appeal decision. But with enough interest, there might be room for a sister publication with a broader criminal law focus.

If criminal law is your thing:

— Dylan Gibbs

• Tim Hortons remains a crowd pleaser

• Justice Stratas remains vocal

• Vegans remain underwhelmed

• Search rankings

• DOGE envy

• Pay raises

STAYING CURRENT 🗞️

glindsay65/flickr

1. Timmies triumphs over alleged wage suppression

   Latifi v. The TDL Group, 2025 BCCA 45

The BC Court of Appeal sided with Tim Hortons, dismissing a proposed class action that alleged the coffee giant conspired with franchise owners to harm employees.

• A clause in the company’s franchise agreements prevented franchise owners from hiring each other’s workers. Employees argued that the restriction kept their wages low by preventing them from hopping around.

After a good recap on the tort of predominant purpose conspiracy, the Court of Appeal upheld the chambers judge’s ruling. According to the chambers judge, Tim’s drafted the no-hire clause to protect the money franchise owners spent on training employees — not to harm workers. And that was enough to shut the lawsuit down.

2. Mind your interventions
   Canada v. DAC Investment Holdings, 2025 FCA 37

A would-be intervener tried to raise a new issue in a Federal Court of Appeal case, leaving Justice Stratas with plenty to say about appropriate interventions.

And he didn’t stop there, throwing some not-so-subtle shade at the Supreme Court of Canada:

It sounds like Justice Stratas still thinks there’s room for improvement — even with the SCC’s stricter approach to interventions.

3. Vegan discrimination continues (for now)
Knauff v. HRTO, 2025 ONSC 786

Ontario’s Divisional Court refused to decide whether ethical veganism is a “creed” shielded from discrimination. A worker alleging dietary discrimination tried to raise the issue in a judicial review application, but the Court said the application was moot. That leaves the tribunal’s ruling in place as the last word:

There’s also a practice lesson here. The dispute was moot because the complainant settled the human rights complaint with their former employer. The parties agreed in the settlement that they could still go to court and get a ruling on the veganism issue. But courts decide whether to hear moot cases — not the parties.

SPOTLIGHT 🔦

Putting the standard in standard form

Saskatchewan Indian Gaming Authority Inc. v Pasap, 2025 SKCA 15

This recent Saskatchewan case is a great reminder that wrongful dismissal can be expensive. $1.2M expensive. But it’s also worth reading if you like more esoteric questions — like what makes a standard form contract “standard”?

What happened: The Saskatchewan Indian Gaming Authority (SIGA) wrongfully dismissed Chadwick Pasap. According to the trial judge, SIGA owed him 8 months’ notice. They didn’t give him any.

Here’s where things got tricky: Pasap suffered a major health incident four months after he was fired. Since it happened within the notice period, the Court had to decide whether SIGA was on the hook for long-term disability payments.

The trial judge sided with Pasap. SIGA appealed.

On appeal: The Court split over whether Pasap was “totally disabled” as defined in SIGA’s benefits policy. The split mostly came from Justice Barrington-Foote’s willingness to overturn the trial judge’s factual findings — which isn’t very interesting beyond this case.

What is interesting is the standard of review discussion. If the “totally disabled” language came from a standard form contract, the judges could start from scratch and decide the correct interpretation (as the SCC said in Ledcor). If not, they had to defer to the trial judge’s interpretation (as the SCC said in Sattva).

Standard form employment: Is a contract “standard form” simply because an employer uses the same agreement for multiple employees? You might expect to have a clear answer on that — since Ledcor is almost 10 years old. But the law is still murky.

Both the Supreme Court of Canada and the Ontario Court of Appeal left the issue open for future cases. And the Saskatchewan Court of Appeal majority also gave a non-answer, continuing the trend.

But Justice Barrington-Foote didn’t have the same hesitation in his dissent. He said employment agreements used across an organization are standard form and need to be interpreted correctly on appeal.

Big picture: For anyone trying to flip the interpretation of an employment agreement on appeal, you might want to keep Justice Barrington-Foote’s dissent in your back pocket. Looking for a more definitive answer? Let’s just hope the SCC lives up to Chief Justice Wagner’s aspirational goal of hearing more private law cases.

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BY THE NUMBERS 📊

GoToVan/flickr

10 years: The sentence the Crown wanted for Pat King, who was convicted for his leadership role in the Ottawa convoy protest. That’s a far cry from the three-month conditional sentence (house arrest) Justice Charles Hackland actually imposed. After accounting for time served, King’s effective sentence is around 10.5 months — not years. But please, for the sake of us Ottawans, don’t let that give you any ideas.

$2.03: Manitoba’s legally-mandated maximum price for a litre of 2% milk. According to CBC, Walmart recently priced containers at $2.88. Tsk tsk.

57%: The salary bump given to the Law Society of Ontario’s CEO, bringing her total compensation to $936,000. If only someone had asked the benchers in advance. The Law Society’s former Treasurer negotiated the raise, but no one presented it to the governing board for a vote — which at the very least is bad optics. The raise looks to some like a shady backroom deal. Former associate chief justice Dennis O’Connor is doing an independent review to figure out what happened.

MAKING HEADLINES 🗞️

🙅 Perhaps jealous of the Musk-led DOGE, the Nova Scotia government tabled a bill that would give it the power to fire the province’s Auditor General. Auditor General Kim Adair says it would stop her from doing her job.

📖 B’nai Brith Canada says the federal government needs to release the list of alleged Nazis who settled in Canada. Library and Archives Canada refused the organization’s access to information request — a decision B’nai Brith is now challenging in the Federal Court.

🦾 The Competition Bureau confirmed that it’s investigating whether landlords are using artificial intelligence to set rent prices.

🪧 Quebec tabled a bill to crack down on striking workers, letting the government end certain strikes to keep services running. Quebec Labour Minister Jean Boulet said he was inspired by the federal government terminating multiple strikes over the past year (which the feds still need to defend in court).

THINGS NOT TO DO 😤

Don’t use generic AI programs like ChatGPT and Copilot for accurate research. I know — it’s beating a dead horse at this point. But as long as people keep using AI improperly, it’s worth noting the cautionary tales.

A BC couple found out the hard way after using Microsoft’s Copilot to draft submissions in a condo dispute. BC’s Civil Resolution Tribunal said the 10 cases the couple cited appeared to be hallucinations.

It didn’t take much detective work. The couple labeled the cases “Conversation with Copilot”. None had proper citations. And it turns out the law is exactly the opposite of what Copilot presented.

The couple somewhat learned their lesson. They haven’t sworn off using AI for research, but they’ve at least vowed not to use it for serious things — like the law.

OBITER DICTA

Twitter tweet

PRESENTED BY

The best part of a Trump presidency is that every day feels like April Fools’ — is that headline real or satire?

Case in point: A Republican congressman just introduced a bill supporting Trump’s Greenland acquisition plan. There’s room for negotiation, but one thing is already certain — the proposed law mandates an official name change to Red, White, and Blueland.

Would they let us stick with “Canada” as the 51st state? TBD.

— Dylan Gibbs

• This week’s blockbuster AI lawsuit

• An expensive drafting issue

• Self-represented experts

• Paddleboarding

• Prorogation

• Mediation

SPOTLIGHT 🔦

Don’t use Westlaw to train your AI

Step aside New York Times v. Open AI. If we’re deciding whether companies can lawfully train AI models on copyrighted data, legal tech deserves to set the precedent. And that’s exactly what this week had in store.

Thomson Reuters secured a victory against ROSS Intelligence on Tuesday, which could spell trouble for other AI systems trained on a diet of copyrighted content.

What happened? ROSS Intelligence tried to build ChatGPT for legal research before ChatGPT was a household name. Ask a plain-language legal question, get back a list of cases.

But their training data came from Thomson Reuters’ Westlaw — including proprietary headnotes and case classifications.

• Using the headnotes, a team of lawyers created memos with good and bad answers to short legal questions. Some of the memos copied the headnotes word for word. And ROSS used those memos to train its AI model.

• Thomson Reuters sued ROSS in 2020, alleging copyright infringement. The litigation was so expensive it shut ROSS down, but the corporation stuck around to defend the case and prove a point.

The ruling focused on a specific batch of around 2,800 headnotes and memos. For most (around 2,400), the judge said ROSS’s memos and the Westlaw headnotes were so similar that any reasonable jury would find ROSS copied the content. More importantly, at least for AI litigation watchers, he also rejected ROSS’s fair use defence.

Unfair use: Like the Canadian concept of fair dealing, US law allows some copying of protected material — depending on the nature of the material, how it was copied, and why.

• ROSS argued its use of the headnotes was fair because it transformed the headnotes into something else. ROSS didn’t create its own headnotes — it created legal research software. The headnotes simply taught the software about the relationship between cases and rulings.

• The judge saw it differently. Since Thomson Reuters uses its headnotes to help with legal research, and ROSS used them to create a competing legal research tool, there was no transformation.

Big picture: AI litigation is all the rage, with copyright holders aiming to hold AI companies accountable for ingesting their works and impacting their livelihoods. Here at home, CanLII sued Caseway for doing roughly the same thing as ROSS.

Many of those cases will turn on fair use and fair dealing, so the ROSS decision is great news for copyright holders. But other litigants might not get the same result — even if this judge’s reasoning stands. Take NYT v. OpenAI, for example. Compared to ROSS and Thomson Reuters, it’s much harder to see NYT and OpenAI as competitors.

• I mean, feel free to ask ChatGPT for a recap of today’s events, but don’t expect the factually dubious slop you get back to replace award-winning journalism.

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BY THE NUMBERS 📊

$2,500: The cost of paddleboarding too close to orcas. One woman learned that the hard way when footage of her wildlife encounter ended up on YouTube. She said didn’t know there was as legally-mandated buffer zone, but — as they say — ignorance of the law is no excuse.

1.7%: The GDP Canada lost to increased government regulation from 2006 to 2021, according to a recent StatCan study. The booming regulatory landscape decreased business investment, pushed firms out of Canada, and stopped firms from entering.

$25 million: The missing bank account balance after (what looks like) a contract drafting blunder. The buyer in an M&A deal agreed to pay the seller a break fee if competition regulators rejected their proposed merger. At least, that was the condition discussed during the parties’ negotiations. But the contract was a bit more nuanced.

• According to the terms, the buyer would only pay the break fee if the Canadian regulator rejected the deal, or if the deal failed during the first phase of the US regulatory process.

• The US competition regulator blocked the deal, but it at least cleared the first phase of the process. As it turns out, nothing fails during the first phase — that’s not how it works.

• The trial judge awarded the break fee, using the parties’ negotiations to shape her interpretation of the contract. But the Alberta Court of Appeal called that approach erroneous.

Now the seller is stuck trying to get the $25 million from their ex-lawyers:

MAKING HEADLINES 🗞️

🧑‍⚖️ The Federal Court started hearing the prorogation challenge today and continues tomorrow. If you’re not up to speed, the applicants say the Prime Minister doesn’t have unfettered discretion to recommend prorogation. Since Trudeau’s decision to shut down government business was politically motivated, they say it wasn’t reasonably justified. The same argument succeeded in the UK during Boris Johnson’s Brexit era. If you’re interested in learning more, Paul Daly has some good blog posts about the issue. You can also live stream the Federal Court hearing by registering online.

🤝 The SCC might venture into mediation work, according to Chief Justice Richard Wagner during a recent podcast appearance. An interesting concept, but Court observers were a bit surprised by his comments on timing. Chief Justice Wagner suggested the Court could offer mediation in cases where leave to appeal is denied. Why would someone who won at every level of court want to renegotiate? The Court hasn’t offered clarification, except to say the idea is simply at the exploratory phase. They have a concept of a plan, if you will.

💊 Alberta wants the federal government to take a tougher stance on drugs or get out of the way. Premiere Danielle Smith takes issue with a 2020 directive telling prosecutors to divert drug cases away from criminal courts, and Bill C-5, which ended mandatory minimum sentences for drug offences. She said the federal government should scrap those laws or give the provinces jurisdiction over drug offences instead.

😔 Manitoba Crown prosecutors are struggling. According to a recent survey, two-thirds meet the criteria for PTSD, anxiety, or depression.

📚 Two UNB law students filed human rights complaints alleging that the school didn’t reasonably accommodate their disabilities.

THINGS NOT TO DO 😤

Don’t mix business and pleasure. The Law Society of Alberta is accusing a former Lethbridge Crown prosecutor of having an inappropriate relationship with a criminal complainant.

Don’t try to act as lawyer, party, and expert. An Ontario lawyer representing herself in a neighbour dispute tried to give expert evidence on construction vibration. The Court didn’t think she was qualified.

PRESENTED BY

It’s been a minute. And it sure is good to be back.

PS: congrats to Mandeep Singh Maan, who gets to keep his entire $2M lottery prize. The BC Supreme Court said he doesn’t have to split it with his colleagues, who (unsuccessfully) argued the winning ticket came from their recurring workplace pool.

— Dylan Gibbs

• Government litigation shields

• Mistaken payments

• Reading legislation

• Dairy substitutes

• Typo checks

STAYING CURRENT 🗞️

1. Payor beware
   Eastwood Home v Procopio 
   2025 ONCA 11

The Ontario Court of Appeal said a couple is on the hook for payments they made to a rogue project manager. They hired a company to repair fire damage. During the project, the man overseeing the project asked the couple to pay him directly. That raised some red flags, but not enough to stop the couple from paying the fraudulent manager over $95,000.

The repair company successfully argued at the Court of Appeal that the innocent homeowners need to pay again — this time to the proper party.

2. Text above all
   Quebec v. DPJ du CISSS A
   2024 SCC 43 

In case you missed it, the Supreme Court of Canada’s last case of 2024 focused on statutory interpretation.

A bit of context: When people or institutions violate the rights of a vulnerable child, the Youth Division of the Court of Quebec has the power to correct “the situation”. But the Youth Protection Act leaves “the situation” undefined.

Why it matters: For those practicing Quebec child protection law — the Youth Division doesn’t have the power to make broad remedial orders with no connection to the wronged child (like ordering every child protection worker in the province to take additional training).

And for those concerned our modern approach to statutory interpretation gives courts too much freedom to twist legislative wording — Chief Justice Wagner’s unanimous judgment seems to take a more text-focused approach:

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DECISION SPOTLIGHT 🔦

How far can governments go to shut down litigation?

Kitsilano Coalition v. BC
2024 BCCA 423

In several recent high-profile cases, provincial governments have enacted legislation to shield themselves from liability. And those with potential claims aren’t happy about it. Case in point: a contentious Vancouver rezoning bylaw.

A bit of context: Residents opposed a development in Kitsilano that included a big chunk of low-income housing. Vancouver’s City Council agreed to move forward with the project anyway, after holding a public hearing mandated by BC legislation.

The residents planned to challenge the hearing in court. But when they applied for judicial review, the province adopted legislation that effectively wiped the litigation out.

Governments have been getting pretty comfortable with this sort of thing.

BC ended litigation over the City of Surrey’s police force using similar legislation. Ontario exempted its contentious Ontario Place development from environmental approvals and blocked any litigation standing in the way. And similarly, when Ontario pulled land out of its protected Greenbelt only to put it back after a scandal broke out, the province vetoed any potential lawsuits. That legislation even went as far as to call out and nullify one specific claim.

So, is that legal?

No. At least according to the BC Court of Appeal’s recent decision on the Vancouver zoning bylaw.

The Court held that it’s perfectly acceptable for governments to change the law underlying a dispute in a way that changes the outcome. But they can’t directly eliminate a lawsuit or tell the court what decision to make. The BC government went offside when it “deemed” the rezoning hearing validly held.

Big picture: The Ontario Place development is headed to the Ontario Court of Appeal on this same issue, so we’ll see if Ontario follows suit. Given how common these sorts of provisions are — and what could be a murky distinction between governments changing the law and directing an outcome — I wouldn’t be surprised if this issue ends up at the SCC.

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MAKING HEADLINES

📖 The CBA has a good read on the legislation affected by Prime Minister Justin Trudeau proroguing Parliament. Given the current state of affairs, there’s a decent chance the legislative work done on several big pieces of legislation goes to waste.

💧 Drip pricing litigation keeps coming — this time against Indigo Park. A BC class action alleges the company added hidden fees when customers paid for parking electronically. 

👩‍💼 Former Alberta premier Rachel Notley is returning to practice. She’s joining Southern Butler Price, a western firm focused on labour and employment. 

☕️ There’s a class action against Big Coffee for allegedly price gouging non-dairy substitutes. A group of consumers say Starbucks, Tim Hortons and Second Cup charged extra for drinks with replacements like soy, almond, and oat milk. And (according to the claim) the prices were so exorbitant that they violated Quebec’s Consumer Protection Act and Civil Code. This paragraph from the application to authorize the class action sums it up:

THINGS NOT TO DO 😤

Don’t circulate draft judgments for error checking.

A Tax Court judge circulated their judgment to the parties before making a formal pronouncement, asking for input on minor wording issues. The Court warned the parties it wasn’t an invitation to reargue the case, but the taxpayer couldn’t resist. And when the Court refused to hear further submissions, the taxpayer appealed.

The Federal Court of Appeal sided with the lower court, but the panel didn’t exactly recommend the error-checking practice to other judges.

PRESENTED BY

The Supreme Court released two decisions last week — a rare occurrence for an institution recently accused of turning passive. Let’s get right into it.

— Dylan Gibbs

• The duty to reasonably negotiate renewal terms

• Canadian provinces vs. the opioid crisis

• Impact Assessment Part II - return of Premier Smith

• Quebec docs could face big fines for leaving

• Throwing water at lawyers instead of shade

• Secret romances

DECISION SPOTLIGHT 🔦

The risks of driving a hard bargain

Quebec v. Pekuakamiulnuatsh Takuhikan, 2024 SCC 39

It’s been a blockbuster year for Indigenous law at the Supreme Court. The first half of last week’s doubleheader marks 2024’s fifth major decision in the area.

But this one isn’t just about Indigenous law. The Court’s comments on good faith are worth a read for civil litigators everywhere (especially those in Quebec).

A bit of context: Canada, Quebec, and a band council representing the Pekuakamiulnuatsh First Nation contracted to give the First Nation its own culturally sensitive police force. The agreement isn’t a treaty, just a regular old contract. And the terms are pretty favourable to Canada and Quebec.

• Canada and Quebec pay a fixed amount each year.

• If the police force doesn’t end up needing all of the funding, Canada and Quebec get to apply the excess to future years. But if the police force needs more money, the band council has to pay the deficit itself.

• And the funding depends on budget approvals. Canada and Quebec can simply walk away from the agreement if legislators don’t authorize each year’s spend.

That setup made for an underfunded police force. Officers weren’t even trained to use radar guns or breathalyzers.

But Canada and Quebec met the band council’s repeated requests for more funding with a consistent refrain: “Sorry, we don’t have the budget.” The parties renewed the agreement several times, but (for the most part) the funding stayed the same.

• The way Canada and Quebec saw it, if the agreement wasn’t giving the band council the quality of service it wanted, it could go back to provincial policing instead.

The Court of Appeal said the governments should have done more — by digging in their heels, they breached both their private law duty to perform the agreement in good faith and their public law duty to act honourably when dealing with Indigenous peoples.

At the SCC: For the first time, the Court said the Crown may be held to a higher standard when it contracts with Indigenous parties (even if the contract isn’t a treaty). The honour of the Crown doesn’t apply to every contract with an Indigenous counterparty — but it may apply to contracts premised on the special relationship between the Crown and Indigenous peoples.

Contracts that recognize an Indigenous right to self-government (like the policing agreement in this case) definitely fit the bill. But others might too.

Hardline renewal negotiations won’t cut it

The majority (led by Justice Kasirer) also agreed with the band council that the governments’ conduct fell short of what the law requires. Like the Court of Appeal, the Supreme Court found a breach of good faith. And since the honour of the Crown is a more onerous standard than good faith — there was a breach there too.

The whole purpose of the agreement was to establish a viable police service. It was a long-term commitment. So when Canada and Quebec realized it was underfunded, they had a duty to meaningfully negotiate. It wasn’t acceptable to take a firm “take it or leave it” position without considering the band council’s interests.

The Court’s good faith analysis was based on the concepts in Quebec’s Civil Code, but with the Supreme Court using civil law concepts as “inspiration” for common law good faith, it’s worth keeping this decision in mind whether you practice in Quebec or not.

What did the Court do about the breach? No one knows what would have happened if the governments had sat down to negotiate. But the majority didn’t let that stand in the way of awarding damages. Justice Kasirer fashioned a remedy based on “reconciliatory justice” — which effectively lets the Court award whatever it thinks is necessary to restore the Crown’s honour.

And that left Canada and Quebec on the hook for all of the funding deficits incurred by the band council between 2013 and 2017. The band council might not have done that well in negotiations, but covering the entire shortfall served to patch up the Crown’s dishonourable approach to the agreement.

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HEARSAY ROUNDUP 🗞️

🌳 Alberta wants to strike down the Impact Assessment Act (again). The federal government amended the statute after Alberta’s successful constitutional challenge last year. But the province says the amended legislation still lets the feds intrude into provincial jurisdiction by putting local projects through a lengthy environmental approval process.

🦾 They’re a bit late to the party, but Canadian publishers don’t plan on getting left behind. A group of media outlets including CBC, Postmedia, and the Globe and Mail sued ChatGPT creator OpenAI. What happens when you train generative AI on copyrighted content? Unjust enrichment, according to the publishers.

🤳 Quebec enacted a new law targeting the unlawful sharing of intimate images. Victims now have a quicker procedure to stop images from spreading (similar to the BC legislation that took effect earlier this year).

🧑‍⚕️ Quebec also tabled its legislation forcing doctors to stay in the province after graduating from a local med school. The proposed rule would fine new doctors up to $200,000 per day if they don’t work in the province’s public healthcare system for at least five years.

💬 The federal government has now agreed to split up its controversial online harms legislation. The parts dealing with hate speech (which have attracted the most criticism) will be debated separately so that the parts geared towards keeping kids safe online have an easier time making it through the House of Commons.

🏳️‍⚧️ Alberta’s trio of laws regulating transgender issues passed through the provincial legislature, setting the stage for 2SLGBTQ+ advocacy groups to challenge them in court.

DECISION SPOTLIGHT 🔦

Sky’s the limit for the provincial litigation gang

Sanis Health v. BC, 2024 SCC 40

The second of the SCC’s two latest decisions involves the opioid crisis. The Court had to decide whether BC can advance a class action lawsuit on behalf of other provinces. The defendants — companies connected to opioid marketing and potentially on the hook for damages — sure hoped the answer was no. But eight of nine judges went the other way. 

A bit of context: With the Opioid Damages and Health Care Costs Recovery Act, BC gave itself the power to recover healthcare costs flowing from the opioid epidemic. It’s similar to the statues used to get a settlement out of Big Tobacco. But the opioid legislation goes even further. Instead of each province filing separate lawsuits at home, BC gave itself the power to bring a class action lawsuit where the class consists of other provinces.

So what? The defendants argued the provinces don’t have the authority to drag other provinces into a lawsuit. Their strongest argument relied on the opt-out mechanism that backs class action proceedings. 

• Typically, the outcome of a class action binds anyone who meets the class definition. Class members can’t bring their own lawsuit unless they first opt out of the class.

• It’s no different for BC’s new multi-Crown class action. Other provinces can’t launch their own lawsuit unless they opt out of BC’s. And according to the opioid companies, that means BC is (unconstitutionally) forcing other provinces to act.

At the SCC: Justice Karakatsanis wrote the majority judgment. She characterized BC’s legislation as a straightforward procedural mechanism dealing strictly with the administration of justice in BC. She said it doesn’t affect the substantive rights of other provinces, since they’re free to opt out.

Room for disagreement: According to Justice Côté, there’s a big difference between opting in and opting out — while opting in might be a choice, requiring provinces to opt out forces them to act.

• This was one of the core arguments raised by the appellants, so it’s a bit surprising to see the majority pen a 109-paragraph judgment without addressing the distinction at all.

THINGS NOT TO DO 😤

• Don’t throw water in court. 

• Don’t hide potential conflicts

During a sexual assault trial in BC, the prosecuting Crown Attorney dated a paralegal working for the defence. And it’s not like the paralegal was just one of several working for a large firm — she attended the trial, took notes, and actively participated in the accused’s defence.

The defence lawyer knew about the relationship, but the accused didn’t find out until after a jury convicted him. The revelation led to a mistrial.

That’s all for today. Govern yourself accordingly. If someone sent you this email, subscribe here. Want to advertise in Hearsay? Get in touch.

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Hit reply and say hello — I’d love to hear from you!

— Dylan

PRESENTED BY

Beware the never-ending sale this Black Friday. The Gap and Old Navy are getting sued in a proposed BC class action because they allegedly offer their sale prices far too often. According to the suit, if you’re not getting 40% off you’re overpaying. The Competition Bureau is investigating whether Leon’s and The Brick are using similar tactics to sell their mattresses and furniture.

May your holidays be merry and your shopping truly discounted.

— Dylan Gibbs

• Aboriginal title vs. private interests

• Informed medical procedures

• Repeat arbitration customers

• SCC on human trafficking

• Improvident bargains

• Hallucination recaps

• Trust in the courts

STAYING CURRENT 🗞️

1. Ejecting private landowners with Aboriginal title?
   Wolastoqey Nations v. NB, 2024 NBKB 203

Justice Gregory made waves in New Brunswick with her comments on the effect of Aboriginal title on land owned by private parties. The Wolastoqey Nations are claiming title to more than half of New Brunswick. They sued the federal government, the provincial government, and several corporate landowners.

• The corporations applied to remove themselves from the lawsuit, arguing that — even if the Aboriginal title claim is successful — it won’t affect their property rights.

• They relied on the Chippewas of Sarnia, where the Ontario Court of Appeal refused to enforce Aboriginal title against private landowners based on equitable considerations.

Justice Gregory agreed to let the corporations out of the lawsuit, but not without commenting on the potential impact of a successful Aboriginal title claim.

Her comments included plenty of wiggle room. But the suggestion that a successful Aboriginal title claim might force the Crown to expropriate land from private parties is significant:

2. Supreme Court weighs in on human trafficking

   R. v. T.J.F., 2024 SCC 38

The Supreme Court of Canada’s latest decision looks at the offence of human trafficking, which all nine judges gave a broad reading. The main takeaway? Evidence of an abusive relationship can be used to establish that an accused influenced or directed a victim to exploit them. The relationship context isn’t bad character evidence, because it serves to prove the elements of human trafficking.

Justices Cote and Rowe split from the majority because they would have upheld the acquittal entered by the trial judge. In their view, even though the trial judge didn’t properly deal with the abusive relationship between the accused and the complainant, there was no reason to overturn his finding that the complainant lacked credibility.

3. Informed consent to medical procedures

   Smartt v. Brar, 2024 ABCA 372

The Alberta Court of Appeal weighed in on the test to prove a medical malpractice claim based on a lack of informed consent.

Some courts have suggested plaintiffs need to testify to explain what they would have done differently if they were fully informed about a medical procedure. But that’s not the law in Alberta.

In this case, the doctor performed a forceps-assisted delivery on an expecting mother without explaining the risks or giving her a chance to opt for a c-section. The court had enough evidence to conclude that the plaintiff mother would have chosen the c-section, even though she didn’t state that expressly in her evidence.

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DECISION SPOTLIGHT 🔦

Too buddy-buddy with your arbitrator?

Aroma Franchise Company v. Aroma Espresso, 2024 ONCA 839

Here’s an important one for anyone involved in arbitrations.

If an arbitrator accepts more work from one of the lawyers involved in an ongoing arbitration, do they need to tell the other side? According to the Ontario Court of Appeal, simply working on two files with the same lawyer doesn’t give an appearance of bias — so arbitrators can keep that fact to themselves.

A bit of context: Two parties appointed an arbitrator to resolve their franchise dispute. Partway through, counsel for one of the parties gave the arbitrator repeat work — a different case for a different client covering different issues. No one mentioned the new mandate to the opposing party in the franchise dispute.

• When the opposing party discovered the situation (after the arbitrator issued his final decision), they applied to set aside the arbitration award. They argued the lack of disclosure created a reasonable apprehension of bias.

• The application judge accepted the argument and overturned the award — mainly because the parties had discussed the arbitrator’s appointment in advance. Emails between counsel showed they specifically chose an arbitrator they weren’t connected to. For the application judge, that made subsequent mandates an issue worth disclosing.

The Court of Appeal said the parties’ private discussion about their preferred arbitrator wasn’t relevant to the arbitrator’s disclosure obligation, because the test is objective. The arbitrator couldn’t account for preferences he didn’t know about.

Under the objective test, arbitrators just need to disclose circumstances that would give a fair-minded and informed observer justifiable doubts about the arbitrator’s impartiality. And there’s no reason to doubt an arbitrator’s impartiality simply because they accept more than one appointment from the same lawyer.

• Multiple mandates only become an issue if the circumstances go further. Like an arbitrator being appointed four or more times by the same law firm in three years. Or an arbitrator working on disputes with overlapping parties and issues.

• The Court was dealing with Ontario’s International Commercial Arbitration Act, but it seems like the same rationale would apply under most domestic arbitration statutes.

Practice tip: If you’re concerned about your arbitrator working on other matters with opposing counsel — you should probably let them know in advance.

BY THE NUMBERS

24: The number of North American lawyers and litigants who have relied on fake decisions dreamt up by generative AI. Well, it’s at least that many. US law professor Heidi Brown recapped the cases of which she’s aware and explained how courts have handled them.

18: The number of new Crown prosecutors Newfoundland and Labrador plans to hire following warnings about recent shortages. The new positions are part of a $24 million investment to improve access to justice and strengthen public trust.

9%: The proportion of surveyed Canadians who correctly identified the three Supreme Court of Canada justices hiding in a list of six names. A recent Angus Reid survey of 1,600 participants gives some insight into public confidence in the courts and awareness of how they operate. Most respondents think the SCC makes mostly impartial decisions — so we at least have that going for us.

0: Alberta’s target for at-fault motor vehicle lawsuits. Sources say the government is committed to a no-fault model and will soon introduce legislation to make the change.

THINGS NOT TO DO 😤

Don’t forfeit your client’s property.
Preston v. Cervus Equipment, 2024 ONCA 804

This recent employment case delivered bad news to an employee that might trickle down to their lawyer — a good reminder to read your settlement agreements carefully.

The employee sued for wrongful dismissal and eventually settled for around $100,000. He was only ever suing for his salary and bonus. But despite the narrow focus of the lawsuit, he signed a settlement agreement in which he agreed to forfeit shares the company had already awarded him (worth $75,949.81).

That made the settlement pretty much worthless.

The employee argued the settlement was never meant to capture matters outside the scope of the lawsuit. And the application judge agreed. But the Court of Appeal said the settlement was clear.

The Court wasn’t prepared to overturn the agreement simply because it was a bad bargain. And here’s the word of warning — the Court hinted that the employee should think about suing the lawyer who let him sign the settlement.

PRESENTED BY

The day of reckoning is here. Someone is finally taking Chipotle to court over skimpy burritos.

The restaurant chain recently promised a return to generous portions after admitting 10% of its locations held back ingredients. That ticked off shareholders, who say Chipotle concealed the extent of Skimpgate before tanking the stock by promising to make things right.

Chipotle’s not the only one under fire either. There’s also a proposed class action against Subway for serving sandwiches with less meat than depicted in advertisements.

Welcome to the war on shrinkflation.

— Dylan Gibbs

PS: Consider checking out today’s sponsor, LexSelect. Their new tech takes the struggle out of copying and pasting from PDF files. I wish I had it when I was litigating — it’s already saved me plenty of headaches drafting this newsletter.

• Challenging subordinate legislation

• The SCC’s translation response

• Lacklustre generative AI tools

• Shell’s climate litigation win

• Direct social media bans

• Indirect travel bans

DECISION SPOTLIGHT 🔦

Still an uphill battle to challenge regulations

Auer v. Auer, 2024 SCC 36
TransAlta v. Alberta, 2024 SCC 37

Lawmakers delegate all sorts of legislative powers. Municipal bylaws. Professional codes of conduct. Regulations. How should courts decide whether those subordinate rules are legal?

The Supreme Court’s most recent decisions clear up an appellate split over the proper test. And the Court’s high bar seems like it will keep the number of successful challenges low.

A bit of context: The Supreme Court carved out special treatment for regulations in Katz, saying courts should only interfere in “egregious” cases. Litigants could only strike down regulations completely unrelated to their enabling statute’s purpose. And it wasn’t much easier to strike down other types of subordinate legislation either:

Then came Vavilov.

Under the Court’s new “comprehensive approach” to admin law standards of review, administrative decisions usually just need to be reasonable. That made the unique hyper-deference applied to subordinate legislation seem out of place. And the apparent conflict split appellate courts.

The Alberta Court of Appeal applied Vavilov to most subordinate legislation — but not to regulations (where Katz was still king). The Federal Court of Appeal applied Vavilov full stop.

The Court’s decision: In unanimous reasons written by Justice Côté, the Supreme Court went with Vavilov across the board. Litigants no longer need to show that subordinate legislation is “completely unrelated” to its enabling statute’s purpose.

Here are the key takeaways:

• Vavilov is the starting point. Courts will typically ask whether a reasonable interpretation of the enabling statute authorizes the subordinate legislation under attack.

• Some cases have less margin for error (like when subordinate legislation is arguably unconstitutional). Administrators creating subordinate legislation need to get those interpretive questions correct.

• There’s no room to question the policy behind the subordinate legislation — courts shouldn’t be asking whether it’s necessary, wise, or effective.

What’s the process for interpreting the enabling statute? That’s where it looks like Katz has nine lives — the decision’s core principles still “inform the analysis”.

• Courts will presume subordinate legislation is valid, stacking the deck in favour of keeping the legislation in place.

• And they’ll read the enabling statute broadly, giving administrators latitude to interpret their authority.

According to Justice Côté, that’s no different than the approach to every other type of administrative decision.

But, if that’s the case, you might ask why the Court would even bother mentioning the principles from Katz. Using special principles for subordinate legislation sure makes it seem like there’s a higher bar.

How did the test play out in practice?

The SCC dealt with two appeals. Both came up short.

The appellant in Auer challenged the federal government’s Child Support Guidelines. Since the Divorce Act only authorizes child support rules premised on each spouse’s relative ability to pay, he argued the current rules should divide contributions equally between spouses.

Here’s how the Court saw it:

In TransAlta, a property tax rule singled certain power companies out for differential treatment, prohibiting them from claiming depreciation on their coal-fired facilities. The province had already paid the companies to move away from coal, so allowing depreciation would have let them double-dip.

The power companies argued the rule was unlawful — because subordinate legislation can’t discriminate unless its enabling statute says so.

The Court disagreed:

Looking ahead: The test didn’t seem to impact the two cases before the SCC, but things could play out differently in a couple of big cases coming down the pipes.

• In the plastics case, Justice Furlanetto struck down federal environmental regulations that unreasonably classified all manufactured plastic items as toxic. Canada appealed that decision to the Federal Court of Appeal, where a “broad and purposive” interpretation of the regulation-making power may or may not yield the same result.

• Alberta’s recently launched carbon tax challenge targets federal regulations that create an exemption for home heating oil. Part of the argument is that the regulations are unconstitutional. And Justice Côté’s reasons set the courts up to review that issue for correctness (good news for Alberta):

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BY THE NUMBERS

0: The number of pre-1970 decisions currently hosted on the SCC’s website. In response to the official languages commissioner ruling that everything on the Court’s website needs to be translated, the Court pulled older cases off the web. Don’t worry, you can still find them on CanLII. The Court will start translating its most “historically and jurisprudentially significant pre-1970 decisions” when it celebrates its 150th anniversary next year.

17: The proposed minimum age for TikTokers in Australia. The government is considering the world’s first national ban on social media, which would apply to anyone 16 or under (even if they have parental consent).

60%: The proportion of recent medical graduates who stay in Quebec to work after their studies. That’s too low for Premier François Legault’s government — which might force graduates to stick around using the notwithstanding clause. The potential legislation would require recent medical grads to pay back the cost of their training if they leave the province. Still unclear: whether Legault knows the notwithstanding clause doesn’t apply to the Charter’s mobility rights.

HEARSAY ROUNDUP

🚢 The federal government squashed another strike by forcing the parties to arbitration, ending the work stoppages at ports in BC and Montreal. Like the rail workers affected by a similar decision this summer, the affected union plans to challenge the government’s decision in court.

🤕 Tribunal Watch Ontario says the province’s Human Rights Tribunal is dysfunctional, calling it a “nightmare for people who seek redress”.

🫴 Quebec officially cracked down on tip culture in its new suite of consumer protection measures. If businesses suggest a percentage-based tip to customers, they can’t apply that percentage on top of taxes — the tip must be calculated on pre-tax amounts.

🛢️ Shell successfully appealed the landmark Dutch ruling that would have forced the oil giant to reduce its emissions 40% below 2016 levels. The Court accepted that EU citizens have the right to be free from dangerous climate change, but said it’s up to legislators to set exact targets for reducing emissions — not the courts.

🤖 UBC Professor Benjamin Perrin wasn’t impressed by LexisNexis’s new generative AI tool.

THINGS NOT TO DO 😤

Don’t be unreasonable. Justice Branch had strong words for a pair of time-wasting family litigants. And before you ask — no, the parties weren’t self-represented.

OBITER DICTA

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Civil liability for sexual assault. Criminal liability for fraud. Second-time President of the United States of America. This week’s reminder to never give up on your dreams.

— Dylan Gibbs

• Suing the Supreme Court of Canada

• Making preliminary inquiries

• Helping Ottawa mooters

• Capping emissions

• Stirring blockades

• Fighting chatbots

STAYING CURRENT 🗞️

1. When does political speech go too far?

   R v Pawlowski, 2024 ABCA 342

Encouraging an uprising comes with consequences (at least for those without presidential immunity). The tough part is figuring out the line between political speech and counselling a criminal offence — a task for Canadian courts now sorting through the mess of 2022’s COVID protests.

The Alberta Court of Appeal recently warned that it’s important not to criminalize legitimate political speech:

But the Court’s caution didn’t help Artur Pawlowski, who gave an impassioned speech near the Coutts border blockade in 2022. The Court upheld his conviction for counselling mischief, since he travelled to Coutts for his speech, told protestors to hold the line, and acknowledged he might be arrested for his actions.

2. Getting exclusive with your jurisdiction clauses

Yegre EB Ltd. v. Seguin, 2024 BCCA 365

This one’s a good reminder from the BC Court of Appeal about drafting forum selection clauses carefully.

A plaintiff sued in BC. The defendant tried to dismiss the lawsuit, arguing that Alberta courts had exclusive jurisdiction. But the parties’ contract didn’t exactly use the word “exclusive”:

According to the Court of Appeal, that sort of language — at least on its own — is more like an open relationship than a marriage.

3. Putting a cap on emissions

The federal government soft-launched the regulations that will cap oil and gas emissions. The draft regulations would limit emissions to roughly 35% below 2019 levels, starting in 2030. Industry participants will need to offset emissions exceeding that mark by earning or purchasing credits. Even with the help of credits, though, polluters can only exceed the cap by 20%.

• The government won’t be releasing the final regulations until next year. In the meantime, there’s a consultation process to solicit feedback.

• Alberta’s feedback? “See you in court.” Premier Danielle Smith accused Federal Environment Minister’ Steven Guilbeault of having “a deranged vendetta against Alberta”. Expect the province to launch a constitutional challenge when the regulations take effect.

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SCC SPOTLIGHT 🔦

R. v. Archambault, 2024 SCC 35

The SCC’s Friday decision deals with the Criminal Code’s amended eligibility for preliminary inquiries. Given the fairly niche issue, a heavily divided Court and some sharp words for Parliament might be more memorable than the result.

A bit of context: Preliminary inquiries give people charged with indictable offences a chance to test the Crown’s case before trial. Only offences with a maximum sentence of at least 14 years qualify — a limiting measure introduced in 2019 to speed up criminal proceedings.

• The problem is that Parliament didn’t explain whether the new rule applies to offences pre-dating the 2019 amendments.

At the SCC: The Court split into four sets of reasons, making it tough to sort out the prevailing view. But if you Venn diagram the judgments, here’s how things shook out:

• Everyone agreed that preliminary inquiries give the accused a substantive benefit that legislators can’t take away without clear language.

• Most judges said that the amendments took away rights that hadn’t already vested.

• Six judges said accused persons generally don’t have a vested right to a preliminary inquiry until they appear in court (at the earliest) — which means the new rule applies to most people who didn’t request a preliminary hearing before the changes took effect.

• But these accused did have a vested right to a preliminary inquiry — because they appeared in court before the amendments took effect and deferred their election.

Extra credit: The Court also covered (in obiter) what it means to be charged with an offence punishable by at least 14 years in prison. Five judges agreed that an offence is only eligible for a preliminary inquiry if the accused actually faces the maximum sentence of 14 years.

• In the two cases on appeal, the accused were charged with offences that had 10-year maximum sentences when they were committed. Since the Charter gives the accused the benefit of the lesser punishment, they wouldn’t have been entitled to a preliminary inquiry if the majority had applied the new rule.

Big picture: By now, the new rule applies to every case in the system — leaving us with 304 paragraphs mostly about a moot issue. One of the biggest takeaways is that Parliament needs to do a better job explaining its amendments:

Next up from the Supreme Court

Tomorrow the Court is ruling on two administrative law cases with big potential. The appeals cover the approach to reviewing subordinate legislation (like regulations). Regulations have attracted extra deference in the past, but Vavilov may have opened the door for courts to take a closer look.

Whatever the result, Hearsay will have you covered with details next week. In the meantime, you can check out this past issue for a primer.

Twitter tweet

HEARSAY ROUNDUP

🟧 People around the country are mourning the loss of Murray Sinclair, the former judge and senator who led the Truth and Reconciliation Commission. He passed away on Monday at the age of 73.

🤖 CanLII sued Caseway AI — a company that admittedly scraped CanLII’s data to train a subscription-based AI chatbot. Alistair Vigier (one of the company’s co-founders) said Caseway isn’t doing anything wrong because scraping CanLII’s data doesn’t harm the non-profit.

• You might know Vigier from his other venture, Clearway Law, which also scraped data and ticked some people off.

🧑‍⚕️ The BC Supreme Court granted an injunction to stop a woman’s medically assisted death, based on evidence that she suffered from mental illness but not a physical condition.

• The case adds fuel to the concern that some doctors are granting MAiD requests that don’t meet legislated criteria.

• Although other cases have held that courts can’t review a doctor’s MAiD assessment, Justice Coval wasn’t convinced.

⛺️ A group of Ontario mayors want the province to clear homeless encampments using the notwithstanding clause. Their request responds to recent court cases holding that municipalities can only clear encampments if they have enough shelter space. Doug Ford told mayors to make a written demand for the notwithstanding clause if they want something done — and several mayors followed through.

💬 Droits collectifs Quebec sued the SCC for not translating pre-1970 decisions into both official languages. If you haven’t been following, the Supreme Court is resisting translating the more than 6,000 decisions it issued before the Official Languages Act took effect in 1969. Chief Justice Wagner went as far as to say that the older decisions don’t have much value and don’t get cited — which seems a bit contradictory:

Sure, this chart is a bit over-inclusive. It includes passing references like this one:

But the Court clearly still cites its old decisions regularly. And that seems like a pretty compelling reason not to discount them.

THINGS NOT TO DO 😤

Don’t ignore formatting rules.

Justice Sharma of Ontario’s Superior Court of Justice almost hit a lawyer with cost consequences over a brief that wasn’t double-spaced. He ultimately decided he didn’t have the authority to penalize the lawyer for poor formatting, but he sure gave it some thought. He even went as far as to recommend a change to permit sanctions in similar cases:

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PRESENTED BY

Even if you’re not excited about the prospect of AI replacing legal work, hopefully you can at least celebrate its other groundbreaking achievements.

Osmo (billed as the company giving computers a sense of smell) announced a breakthrough yesterday. They managed to digitize scent — reproducing the smell of a fresh plum after scanning it into a computer. Osmo uses AI models to spot patterns in air composition, giving your favourite smells a unique (and reproducible) signature.

Get ready to take your perfume game to the next level.

Twitter tweet

— Dylan Gibbs

• Canada’s freest province

• Advance MAiD requests

• AI guidelines for judges

• Abortion disclosures

• Carbon tax fights

• Bail reform

SPOTLIGHT 🔦

Alberta unveils its four-point freedom plan

Alberta tabled proposed changes to its provincial Bill of Rights this week. The amendments rest on four pillars: vaccines, property, guns, and speech.

But if you’re looking for changes that might make a difference, your attention should be on the first two.

The right to anti-vax

Under the updated law, every Albertan can control their medical decisions. Well, almost every Albertan — there’s a carveout for anyone likely to cause “substantial harm” to themselves or others.

The carveout leaves room for mandatory addictions treatment. Through the Compassionate Intervention Act planned for next year, the government wants to force certain people with addictions into treatment. And unlimited autonomy over medical decisions would have gotten in the way.

But for anyone worried the harm exception might also force people into getting vaccinated, don’t fret — the amendments cover vaccines expressly.

And the right to refuse vaccines doesn’t come with any caveats.

Harmful or not — Albertans can Just Say No to vaccines.

Twitter tweet

At least, within reasonable limits: The updated legislation includes an equivalent to section 1 of the Charter (which it didn’t have before). So, like all of the freedoms enshrined in Alberta’s Bill of Rights, the vaccine protections will be subject to reasonable limits.

That’s a fairly big “but”, since plenty of courts dealing with COVID restrictions have upheld them as justified and reasonable government policies (like the Newfoundland and Labrador travel ban case that’ll soon be heard at the SCC).

Opening the constructive expropriation floodgates?

The province’s new private property protections might be the most interesting change of all. Even though Premier Smith calls this one a “reaffirmation” of existing rights, it looks like Alberta is completely overhauling the definition of constructive expropriation.

As a refresher, the common law test for constructive expropriation has two parts. We deem the government to have taken someone’s property if the property owner loses (all reasonable uses of their property) and the state gains (an interest in, or flowing from, the property).

If the state prevents an owner from using their property but doesn’t get anything in return, there’s no expropriation. And that frees governments up to limit the use of property without forking over cash to every affected property owner.

But Alberta’s new amendments use a simpler definition. A property owner can establish expropriation by showing they were “deprived of all reasonable uses of [their] property”. Bye-bye to half of the test.

That’s a big difference. And you don’t need to take my word for it. Here’s what the Alberta Court of Appeal recently had to say about modifying the common law test:

Maybe those are the exact consequences the government has in mind with this change. Alberta won that case — so they probably know what they’re doing? But if that’s the case, “reaffirmation” of existing rights isn’t the best descriptor.

What else does the legislation do?

Not much. The other two pillars — guns and speech — are more theatre than substance. Albertans will have the right to legally own guns (like everyone else). And their provincial right to freedom of speech will be upgraded to “speech and expression”.

If you’re interested in the bill’s full text, you can check it out here.

PRESENTED BY LEXSELECT

Reformatting every single quote from a PDF?

Lawyers don’t fight their toughest battles in court. They fight them on computers, against PDF documents that turn every copied quote into a mess of random line breaks and broken formatting.

Every minute spent fighting with PDFs is a minute stolen from what truly matters — your clients and your cases. And that’s why a seasoned litigator helped build LexSelect.

With LexSelect, you can copy and paste from PDFs with perfect formatting. It can even add a citation for you.

No more random line breaks. No more mistakes. No more frustration.

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HEARSAY ROUNDUP

🤔 Ontario pitched a wild approach to bail reform that includes outlawing bail for certain offences (like intimate partner violence). Setting aside the presumption of innocence for a second — where the heck would we put everyone?

🧑‍⚕️ The federal government isn’t challenging Quebec’s bespoke approach to MAiD, which lets people make advance requests for assisted death. As of today, Quebec patients can note their wishes in advance and have doctors follow through (even if they lose capacity). Federal law prohibits advance designations — requiring consent immediately before assisted death takes place — but the government won’t be taking Quebec to court over its modified approach.

🛢️ There’s now a direct challenge to the federal government’s carbon tax home heating oil exemption. Unlike Saskatchewan’s roundabout challenge premised on withholding carbon tax payments, Alberta is challenging the federal policy through judicial review in the Federal Court.

🤰 The federal government wants charities providing reproductive health services to disclose their stance on giving out abortion information. New legislation tabled by the government addresses the risk that women will be pushed away from services simply because they attended a clinic that refuses to explain all the options. Crisis pregnancy centres that don’t comply would lose their charitable status.

🤖 The Canadian Judicial Council released guidelines for the use of AI by judges. The guidelines are high-level, with a fair bit of fluff, but worth a skim. The focus is on knowledge, training, and appropriate use — there’s no ban on judges using generative AI.

THINGS NOT TO DO 😤

Don’t steal from clients. And if you do, don’t disobey the court.

Justice Chalmers of Ontario’s Superior Court of Justice sentenced two lawyers to jail last week for contempt of court. The lawyers are already under an interim practice suspension — wrapped up in allegations they stole more than $6.5 million from clients. The contempt ruling comes from their refusal to explain what happened to the money. They’ll each spend 30 days in custody unless they spill the beans and purge their contempt.

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