Law Times - Newsmakers

2016 Top Newsmakers

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2016 top news, newsmakers and cases 9 top cases in ompson was whether the identity of a lawyer's clients fell under solicitor-client privilege, and the Supreme Court found that it did. In Chambre des notaires, the court ad- dressed the constitutional validity of the exclusion in the Income Tax Act, fi nding that it failed to meet the test of "absolute necessity" required to abrogate the fundamental principle of justice that is solicitor-client privilege. Keenan v. Canac Kitchens Ltd. is Appeal Court of Ontario decision, handed down in February, was important for workers in non-standard em- ployment relationships. In Keenan v. Canac Kitchens Ltd., 2016, the appellate court upheld an award for two dependent contractors. In Keenan v. Canac Kitchens, 2015, the Superior Court of Justice had ruled that Marilyn and Lawrence Keenan were dependent contractors of Canac Kitchens, for whom they had worked for about 30 years. Canac asserted the Keenans were independent contractors because they were paid by invoice rather than salary and had subcontractors reporting to them. e Keenans argued to the Superior Court that they were wrongfully dismissed by Canac, and they were awarded the highest-ever dismissal-without-severance settlement for contractors in Ontario: approximately $125,000 in lieu of 26 months' notice. e appeal court stood by the Superior Court of Justice's award and found the award should not be reduced because of dependent contractor status. Labour and employment lawyer George Vassos of Lit- tler Mendelson PC in Toronto said the upholding of the 26 months' notice award was a somewhat surprising decision in light of recent rulings from other provinces that reduced awards based on the dependent contractor status. "It's the very fi rst time, notwithstanding that they are dependent contractors, that the [Ontario] Court of Appeal endorsed 26 months," said Bram Lecker of Lecker and Asso- ciates, who represented the appellants and called the ruling a vital one for a large and fragile portion of the working popu- lation. "I think it's going to cause a lot more litigation or it's going to cause a lot more of these companies to take notice." World Bank v. Wallace In striking down a subpoena of World Bank employees, the SCC eff ectively ruled that they would not have to testify in the SNC-Lavalin bribery case, and nor would the organiza- tion be required to produce documents that could aid in the defence of former executives charged in a scandal. In World Bank v. Wallace, the court heard the appeal of the World Bank, which had been subject to a production order and subpoena at trial. e defendants challenged the admis- sibility of wiretap evidence. A er the investigating RCMP offi cer's emails were lost, defence sought testimony from World Bank employees who had tipped the RCMP off to the alleged corruption around a Bangladeshi construction bid. Despite international agreements that grant the World Bank immunity from court processes, the trial judge found that the World Bank had waived its right by providing the documents to the RCMP. In a unanimous decision co-written by justices Michael Moldaver and Suzanne Côté in April, the Supreme Court set aside the production order, ruling that the World Bank's co-operation with Canadian authorities did not amount to a waiver of its immunity. e court also found clear immunity provisions under the World Bank's Articles of Agreement. Jordan v. R. e gravity and seriousness of a case cannot be used to justify unreasonable delay at trial, the SCC found in this decision rendered in July, which created a new framework for assessing whether a delay is unreasonable under the Charter. In Jordan v. R., a drug traffi cking conviction was challenged due to a 44-month delay between the charge and ultimate conviction. In a ruling written by justices Michael Moldaver, Andromache Karakatsanis and Russell Brown on behalf of a unanimous nine-judge panel, the court sided with the defendant in ruling his constitutional right to a reasonably timely trial had been violated. e court noted that the framework based on Morin v. R. had contributed to a culture of complacency, where rationalization about whether the delay caused true prejudicial harm could be used to excuse a delay. In its place, the court created a framework that sets a "presumptive ceiling" for delay of 30 months, above which the burden would fall on Crown prosecutors to prove that the delay was a result of exceptional complexity or unavoidable circum- stances.

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