Originalism as misnamed judicial legacy of the Scalia years – 1986-2016

Yesterday, in The Supreme Battle, Canadian constitutional scholar Adam Dodek described a side of the late Antonin Scalia, that few even in the legal community hardly ever saw: a U.S. Supreme Court justice willing to subject himself to honest intellectual debate among peers, even once with Canada’s former Supreme Court justice and champion of legal pragmatism, Ian Binnie. Dodek nevertheless… Read More

Judges judging judges: The Douglas Inquiry exposed its flawed process

My recent post on the conclusion of the Canadian Judicial Council (CJC) Inquiry into the Douglas Inquiry urged for a better and clearer articulation of the reasons for removal of federally-appointed judges from office.   After realizing late that a procedure in the hands of her judicial colleagues was in fact a runaway train, the former Associate Chief Justice of… Read More

A Self-Harming of Judicial Independence: The Legacy of the Inquiry into Lori Douglas

The Canadian Judicial Council Inquiry Committee regarding the Honourable Lori Douglas is now over.  The embattled Manitoba judge, whose late husband allegedly posted nude photos of her online and encouraged his former client to sleep with her, decided to settle for early retirement after the committee’s November 4, 2014, Ruling on Preliminary Motions, in which the tribunal insisted on viewing… Read More

Let’s be honest about the SCC’s new ‘fair opportunity’ doctrine in contract law

On November 13, the Supreme Court in Bhasin v. Hrynew, 2014 SCC 71 (CanLII) changed the law of contract in Canada by imposing duties of good faith and honesty on all contractual relations.  Until now, the duties have been applied to agreements in situations of power imbalance, notably insurance, employment and franchises. The plaintiff, Mr.… Read More

A day in court is a day in court, no matter your ability to pay for Access to Justice

The “blawgosphere” seems to have lit up this week with the release of Morland-Jones v. Taerk, a dispute between neighbours in the affluent Toronto, Canada, neighbourhood of Forest Hill.  Essentially, the Ontario Superior Court ruled that the case, an interlocutory injunction matter involving multiple allegations of trespass and invasion of privacy, should be dismissed because “there is no… Read More

A Very Canadian “Mexican Standoff” of an American Contest between Executive and Judicial Power

Marbury v. Madison is the considered the seminal decision in judicial review of executive and legislative action.  At least, that is what the U.S. courts have subsequently repeated.  In fact, the 1803 decision of a fledgling American high court represented a Mexican standoff between executive and judicial power in which the limits of the U.S.… Read More

Why judges’ political activism also hurts lawyers

The Law Times reported that an Ontario Superior Court Justice is facing a complaint by an oil sands advocacy group to the Canadian Judicial Council for his role in a public mock trial of environmentalist David Suzuki at the Royal Ontario Museum this past November 6.  The basis for the complaint is that the judge’s participation in… Read More

Moore v. Getahun: A ‘Glendower’ solution to stamp out manipulation of expert opinon

More often than not, referral of a legal problem to lawmakers, or to rules committees for broad consultation, is manifestly preferable to making up procedural law on the fly.  In the Ontario Superior Court decision released this week in Moore v. Getahun, 2014 ONSC 237 (CanLII), the trial judge issued an injunction against the practice of… Read More