e-Lawg : A Canadian Perspective on Intersections of Law and Technology
Updated: 19/02/2005; 8:35:22 AM.


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February 19, 2005

Another testing
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Another test
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February 18, 2005

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February 1, 2005

Electronic Data Security and Privacy: Words of Wisdom from Dan Pinnington. It was a lot easier keeping confidential material safe and secret when it only resided in your head and on paper. Now we have Internet connectivity, e-mail, databases, and electronic copies of at least every document that your office prepared.... [Jim Calloway's Law Practice Tips Blog]
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What is your firm doing to train new litigators?. Learn how other firms are addressing the training needs of new trial lawyers. [ABA Section of Litigation - Online Resources for Litigators]
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January 11, 2005

Michael Geist writes in the Toronto Star (free registration required) suggesting that Canada pursue a National Web Library strategy modelled on the Google project. Benefits to Canadian culture are cited, although the copyright issues would require some finesse.
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In W.H Stuart Mutuals Ltd. v. London Guarantee Insurance Co. the Ontario Court of Appeal held that a fidelity insurance policy covering theft by employees through electronic transfer was void for misrepresentation in the insurance application.

The insured had stated that the principals of the company signed each cheque. The company had in fact changed to a computerized cheque generating system which created a computerized facsimile of the principals signature. The Court held this was a material misrepresentation.

The Court also commented that the trial judge was in error in applying a subjective test to the issue of the insured's duty to disclose. The Court stated that there must be an objective element to the test.

The material misrepresentation voided the policy and the insured was not entitled to indemnity under the policy.

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In Mussani v. College of Physicians and Surgeons of Ontario, the Ontario Court of Appeal considered the zero tolerance policy of the Health Professionals Procedural Code. That Code requires an automatic five year suspension of the licence to practice where a health professional engages in sexual intercourse or other specified sexual activities with a patient.

A doctor, subject to such a suspension, appealed on the basis that the mandatory nature of the suspension was not constitutional, contrary to sections 7 and 12 of the Canadian Charter of Rights and Freedoms. 

"7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

The Court concluded:

"I am satisfied, therefore, that there is no constitutionally protected right to practise a profession, and that the mandatory revocation of a health professional’s certificate of registration in substance infringes an economic interest of the sort that is not protected by the Charter."

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January 10, 2005

Resources Re Brain Injuries. The Traumatic Brain Injury Blog links to a list of full text online medical journals.... [Insurance Defense Blog]
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Lawyers Alarmed by International Libel Lawsuit Trend [OJR: Copyright, Law & Ethics]
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Canadian Accounting Group Takes Oversight Fight to U.S. [AccountingWeb]
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December 19, 2004

The CBC now has 23 RSS feeds to keep you up to date on the Canadian perspective.
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December 17, 2004

The existing case management pilot project in Toronto is being scrapped.Control over cases is being returned to the litigants and their counsel. The Practice Direction can be found here.
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A unanimous Ontario Court of Appeal reversed the motion judge and the divisional court on the issue of whether a class action was the appropriate approach to address claims of former students of a native residential school. A main issue was the commonality issues:

"Nevertheless, it is my view that whether the respondents owed legal obligations to the class members that were breached by the way the respondents ran the School is a necessary and substantial part of each class member’s claim. No individual can succeed in his or her claim to recover for harm suffered because of the way the respondents ran the School without establishing these obligations and their breach. The common trial will take these claims to the point where only causation and harm remain to be established. In my view it will adjudicate a substantial part of each class member’s claim by doing so. Hence the appellants have met the commonality requirement."

The Court also concluded that the aggregate assessment of damages and punitive damages was appropriately a common issue.

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In 561895 Ontario Inc.v. Metropolitan Trust Company of Canada, the Ontario Court of Appeal recognized the courts:

“well established policy in favour of upholding and enforcing settlements agreed upon by litigants, or potential litigants, absent evidence of fraud, mistake of fact or unconscionability”.

The Court then considered the elements of fraudulent misrepresentation:

"It is common ground before this court that the elements of fraudulent misrepresentation are: (1) that the defendant made a false representation of fact; (2) that the defendant knew that the statement was false or was reckless as to its truth; (3) that the defendant made the representation with the intention that it would be acted upon by the plaintiff; (4) that the plaintiff relied upon the statement; and that the plaintiff suffered damage as a result."

The first element is satisfied where there is a failure to disclose a material fact where the party is under an obligation to disclose. As the trial judge determined that the party was under a fiduciary obligation and they had failed to disclose a material fact, the trial judge was was upheld in setting aside the release.

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In Roy v. North American Leisure Group Inc., the Ontario Court of Appeal had to consider choice of law rules.The plaintiffs had allegedly contracted an airborn virus on board a cruise ship. The operator had a choice of law clause in its contract selecting the law of England. The plaintiffs had missed the limitation period if the law of England applied.

The motion judge had determined that Canadian law applied. The Court of Appeal disagreed. Following Tolofson, the Court held that the "choice of substantive law is the law of the jurisdiction where the acitivity occurred".

In addressing the limitation period, the Court stated:

"[the] denial of the opportunity to claim damages by reason of the expiration of a limitation period does not constitute injustice sufficient to support an exception to the lex loci delicti rule."

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