You can’t have it both ways (employed and self-employed) judge rules

A helicopter maintenance engineer claimed damages for wrongful dismissal after asserting to his employer, the Canada Revenue Agency and his spouse, that he was self-employed. An adjudicator under the Canada Labour Code refused to admit into evidence affidavits filed by the engineer in spousal support proceedings where he stated he was self employed. The adjudicator ruled that [Read More]

First impressions in mediation

It seems obvious that mediators should not only be trustworthy and competent, but should also make every effort to convey those qualities. Although we all know that we shouldn’t judge by appearances, recent studies of doctors have shown that people do form opinions of competence based on dress: “Patients tell doctors very private information that sometimes they [Read More]

Active Adjudication and Bias: Epilogue

An article I wrote for on active adjudication and impartiality was published this week. Given submission deadlines, I was not able to include the most recent decision of the Ontario Court of Appeal on this issue: Martin v. Sansome, 2014 ONCA 14. This case involved the role of a trial court judge in a family law dispute. The appellant argued that [Read More]

Not following precedents: when can an adjudicator ignore the pecking order?

Adjudicators are well acquainted with their place in the justice system hierarchy. The decisions of the courts constitute binding precedents that adjudicators cannot simply ignore (unless those decisions can be distinguished). The hierarchy was colourfully captured by Master Funduk in South Side Woodwork v. R.C. Contracting, 1989 CanLII 3384 (AB QB), at paragraphs 51-53: Any legal system which [Read More]

Right to an oral hearing: update

The denial of Conrad Black’s request for an oral hearing before the Order of Canada Advisory Council has been once again upheld; this time by the Federal Court of Appeal. I wrote about this case and the right to an oral hearing earlier this year. At the Federal Court, the judge held that there was no legitimate expectation that [Read More]

Mediation advocacy and a lawyer’s ethical obligations

Osgoode is presenting a seminar on mediation advocacy in December. Rick Weiler has outlined some of the issues to be discussed and posed some interesting questions in a recent post. In this post, I will discuss the lawyer’s ethical obligations in ADR, as set out in the proposed amended Rules of Professional Conduct for the Law Society of Upper Canada that [Read More]

Lawyers and the self-represented: changing ethical obligations

The Law Society of Upper Canada has recently posted upcoming changes to the Rules of Professional Code Conduct (effective October 2014). It will now be considered unethical to appear before a court or tribunal while under the influence of drugs or alcohol (rule 5.1-2). Of more relevance are the changes to the rules for dealing with an [Read More]

Awarding of legal costs for pro bono counsel

A recent case in the Federal Court of Appeal has highlighted the criteria for awarding costs for a party represented by pro bono counsel. In this judicial review application, an Employment Insurance claimant was self represented until shortly before the hearing. Normally the costs awarded to a self-represented litigant are limited to disbursements. However, that limitation did [Read More]

Duty of Care of a Parole Officer: Update

Earlier this year I wrote about the duty of care of parole officers. The Federal Court prothonotary found there was a duty of care of parole officers and awarded $20,000 in damages to an inmate who had his parole revoked based on unreliable hearsay evidence (the parole board overturned the parole decision). The Crown has appealed successfully. [Read More]

EI and concurrent employment: FCA reinstates benefit entitlement

In a Federal Court of Appeal decision recently translated, the FCA has examined the increasingly common occurrence of claimants with multiple jobs. The claimant filed an initial claim for regular benefits effective July 18, 2010. During his Employment Insurance (EI) qualifying period (52 weeks preceding the claim), he held two part-time positions. From June 13, 2009, to [Read More]

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