Omar Ha-Redeye
Toronto
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Articles by Omar Ha-Redeye
Misgendering Students Can Be Professional Misconduct
In the so-called culture wars these days, there can be highly politicized debates around transgender rights and the proper use of pronouns. In Ontario, these debates are without legal basis, as gender identity and gender expression are protected grounds under the Human Rights Code. Under some misguided notion of challenging students to think critically, there are teachers who reiterate the talking points of both sides of such culture wars, but do so at their own peril.
The Milgaard Story's Importance for the Presumption of Innocence
David Milgaard is reported to have passed away this weekend at the age of 69. He spent 23 years in prison for a rape and murder he did not commit. Milgaard was convicted in 1970, and spent the ages of 16 to 39 in prison, following the discovery of a nurse’s body in the snowbank. His appeal to the Saskatchewan Court of Appeal was dismissed the following year, and the Supreme Court of Canada refused him leave to appeal.
Direct Democracy Ends up In Court
A provincial election is currently scheduled in Ontario for June 2, 2022. The process for this date is set under the Election Act, where the the Lieutenant Governor in Council proclaims a date for an election on a Wednesday. Although this date was was generally anticipated, there are often a number of legal issues that emerge prior, during and following an election.
Importance of Right to Counsel
Posted in: The Charter‘s right to counsel under s. 10(b) is an often misunderstood and confused right by many members of the public. This confusion likely emerges from unintentional analogies to the commonly cited American case Miranda v. Arizona, 86 S. Ct. 1602 (1966) in television and movies. The Court did adopt elements that mirrored Miranda rights in the early Charter case of R. v. Brydges, 1990 CanLII 123 (SCC). The Court found that s.
Beware the Boomerang Summary Judgment
We’ve all heard about the civil justice system being crisis, and we’ve heard it for decades. The so-called culture of complacency in criminal proceedings, and corresponding Charter protections in those cases, invariably means a prioritization of judicial resources in those cases. Even prior to that time, the Court has attempted to foster a cultural shift in civil proceedings through the use of summary judgment motions.
Collection of Vaccine Information Upheld as Necessary
On May 19, 2021, the Federal, Provincial and Territorial Privacy Commissioners provided an unusual and joint statement around vaccine passports, where they cautioned about the use of these measures, even when effective in addressing the harm of the pandemic, At its essence, a vaccine passport presumes that individuals will be required or requested to disclose personal health information – their vaccine/immunity status – in exchange for goods, services and/or access to certain premises or...
Deduction of CERB from Wrongful Dismissal Damages
During the pandemic, the federal government introduced several programs to provide financial assistance to those affected by economic lockdowns and business closures. The Canada Emergency Response Benefit program (CERB) provided $2,000 for an initial 4-week period, with an extension to 28-weeks for a maximum of $14,000.
Judicially Reconciling Settler Colonial Occupation
April 3 rd 2022 On April 1, 2022, Pope Francis apologized to residential school survivors, after a week of private meetings with delegations from Indigenous people in Canada, I also feel shame… sorrow and shame for the role that a number of Catholics, particularly those with educational responsibilities, have had in all these things that wounded you, and the abuses you suffered and the lack of respect shown for your identity, your culture and even your spiritual values.
Mooting in the Metaverse
If you are an aspiring litigator, one of the most enjoyable and rewarding activities you may participate in are moot competitions. The tradition of moots goes back a thousand years, to the earliest inceptions of the common law, where novices in the law would get accustomed to a grilling by more seasoned practitioners.
Electronic Signatures May be Superior in Commercial Transactions
Due to social distancing measures during the pandemic, almost all documents during this time were signed digitally, as opposed to traditional (“wet signatures”) methods. Well before the pandemic, electronic signatures have been considered legally valid. Ontario, Alberta and B.C. have had statutes in place for over two decades recognizing the validity of electronic signatures, based on the Uniform Electronic Commerce Act of Canada (“UECA”) model legislation.
Litigating Science Around COVID-19
Given the profound impact the pandemic has had on society, it’s obviously no surprise that questions around the governmental actions and other responses will continue to appear in our legal system for years. While courts have taken judicial notice that the virus exists, which is perhaps not that controversial, they have also adopted and followed in many ways governmental messaging around the pandemic.
Privacy Around Mandate Letters
Political scientists yearn for the day when party policy has the most significant weight in democratic elections. Instead, snappy slogans and flash ideas usually are more effective at attracting the attention of the electorate. Still, when a government is elected, they are required to implement ideas through policy.
Public Interest in COVID-19 Discourse
Nothing has been more divisive or controversial in our lifetime than the COVID-19 pandemic, including the appropriate response, treatment, governmental measures, or what is in the public interest. The discussions around these issues have been robust, and have occurred with family members, friends, and especially online. On some level, these discussions are healthy, and promote better decision-making in a democracy.
Retrospective Enforcement of Non-Competition Clauses
Running a business is tough, but it’s even tougher with competition. One of the worst kinds of competition can come from a former employee. Some employers have tried to limit this risk through the use of what is called a non-competition clause, a provision in an employment agreement that bars a former employee from running a business in competition with their former employer.
A Property Manager as an Agent
The greatest strain on the justice system during the pandemic is arguably on housing claims, given the cascade effects that unemployment and financial instability has had on tenancies. Without a constitutional basis for undue delays in this area like in criminal law, some of these matters have been languishing even longer than usual. One of the long-standing debates in this area of law has been whether a property manager can act as an agent on behalf of a landlord.
Seize that Contraband Tobacco
Tobacco is a heavily regulated product. It is regulated under the Tobacco Tax Act to reduce the flow of untaxed products into the contraband market, and this is achieved through requiring a registration certificate for production and sale. The Applicant in Sobczyk v. Ontario recently asked the Divisional Court to review the decision of the Ontario Ministry of Finance to refuse to issue a registration certificate for the 2021 calendar year.
Settlement of Civil Litigation is Good
Technology has not been the panacea to delays in the court system. Ontario has announced $72 million to tackle the backlog, but even then it will likely focus on criminal proceedings, while civil cases continue to languish. In Innocon Inc. v. Daro Flooring Constructions Inc., Justice Myers of the Ontario Superior Court of Justice indicated at para 80 that motions are being scheduled at least 8 months out in late 2021. Those delays are only expected to get longer in 2022.
Careful What You Plead
The pleadings are arguably one of the most important aspects of a civil claim, setting the groundwork for a proceeding in terms of damages, establishing the relevant issues, and informing the likelihood or possibility of settlement. Sure, there are ways to amend your pleadings. But these typically cost time and money, and the ability to do so is not always guaranteed. A recent Court of Appeal for Ontario decision McLean v. Wolfson illustrates some of the problems that can emerge in pleadings.
A Motion and Proceeding That Should Never Have Happened
At the close of proceedings, especially contentious ones, parties often experience a form of buyer’s remorse, especially when they realize the discounted costs they may be entitled to, and the remainder they are still responsible for. Litigation can also be time-consuming, exhausting, and emotionally draining.
Trouble in Digital Court Paradise
December 12 th 2021 Posted in: Over a year after Ontario introduced CaseLines to civil courts, nearly all matters are using this digital case management system. But it doesn’t mean they’re using it properly. An unsuccessful partial summary judgment motion before Justice Dunphy in Basaraba v. Bridal Image Inc.
The Importance of Reasons for Judgement in Transparency
Anyone even within the vicinity of the justice system in Canada these days can easily tell that it is overwhelmed. The sheer volume of cases alone is cause for concern, and that doesn’t begin to illustrate the significant delays to everyone involved. The Court of Appeal for Ontario recently released a decision in R. v.
Court of Appeal for Ontario Introduces Case Summaries
Last week, I mentioned steps taken by the Supreme Court of Canada to make the law more accessible to the public. This includes case summaries provided by the Court, to provide an unofficial and streamlined overview of the case. The Court of Appeal for Ontario has recently adopted a similar approach in Restoule v. Canada (Attorney General), 2021 ONCA 779 (CanLII), providing its own summary of the 300 page decision on its site.
The Supreme Court Goes Graphical
The Supreme Court of Canada plays a special role in our constitutional democracy, but it’s often one that is not fully understood by the public, or even the legal profession. Over 20 years ago, Lorraine E. Weinrib stated in “The Supreme Court of Canada in the Age of Rights,” Democracy does not trump the other principles; nor is it the raison d’etre of the Constitution.
Best Interests in Childhood Vaccination
November 14 th 2021 Posted in: While the COVID-19 pandemic has led to a sharp increase in family law conflict, these disputes have recently shifted to vaccination of minors. At times, this is being attempted contrary to one or both of the parent’s wishes.
Could Capping Billables Force Work-Life Balance?
Before the pandemic, many lawyers may have longed for more flexible time, and the ability to work more from home. The past year and a half may have challenged those professed goals, especially for those who have other responsibilities or distractions in the home. Working from home does not necessarily mean more personal time, and it does not necessarily mean that there will be less work.
Injustice Created by Crown Imbalance
Although litigation is frequently characterized as adversarial, some of the realities in the criminal justice system are slightly more nuanced. Crown counsel represent the public’s interest, and not that of a victim or complainant. Obviously the public has an interest on those impacted by a crime, but Crown counsel do not directly represent those parties or those interests. In 1954, Justice Rand explained this in the Supreme Court of Canada decision, Boucher v.
When Cancel Culture is Liable in Defamation
Isolation in one’s home and glued to an electronic device, it was inevitable that people would be come more activist online. A growing trend has been where public backlash online, also known as cancelling or calling out, is used to block someone from having a platform or career. The debate around the utility of cancel culture weaves between delicate balances of expression rights and bullying concerns.
Nygard Fails in Bail Appeal
The high-profile case of fashion mogul Peter Nygård has hit another milestone, with the Supreme Court of Canada recently dismissing his appeal of the denial of a judicial interim release (bail) decision, pending his extradition request to the U.S. Nygård is charged with racketeering conspiracy, sex trafficking conspiracy, sex trafficking, transportation of a minor for prostitution, and transportation for prostitution, over 25 years. He was arrested on Dec.
Judges Need Better Computers
For all of the emphasis on technology during the pandemic, there are still some basic fundamentals that need to be addressed to bring the justice system in Canada into the 21st century. In Ontario, the provincial government has commenced a process last year to “modernize” the justice system, introducing electronic filing for over 400 court documents, a cloud-based e-hearing platform, and greater use of virtual hearings.
Text Messages can be Valid Signatures in Business Disputes
The bulk of civil litigation in business law is not conducted by what are referred to as “sophisticated parties,” described by the Court as being aware of the risks of foreign legal systems, understanding the meaning of legal terms, familiar with negotiations, able to draft clear exclusion and limitation clauses, and well-advised by counsel.
Discrimination Based on Face Mask Use in Retail Settings
Face mask mandates are now common place across Canada, which started being enshrined in law over a year ago. Many of these can be found in municipal by-laws, but they can also be found in regulations to provincial statutes. For example, Ontario’s O. Reg.
Meredith Principle Does Not Preclude Constructive Dismissal Claim
August 23 rd 2021 Posted in: Industrialization transformed western society, reorganizing economies for the purpose of manufacturing and wealth generation. These changes came with at considerable costs, some of which are only being more recently recognized, such as harm to the environment.
Appropriate Sentence for Excessive Force by Police Officer
August 15 th 2021 Posted in: It is axiomatic that nobody should be above the law, and perhaps equally accepted that law enforcement is a necessary component for ensuring adherence to the law. However, public confidence requires that police officers who use excessive force are also dealt with appropriately by the courts, and that their roles within the justice system does not result in complete immunity from prosecution.
Reasonableness of a Decision Absent Reasons
August 8 th 2021 Posted in: In 2016, Justice David Stratas of the Federal Court of Appeal took the unusual step of posting “A Plea for Doctrinal Coherence and Consistency” online, stating, Our administrative law is a never-ending construction site where one crew builds structures and then a later crew tears them down to build anew, seemingly without an overall plan… Administrative law matters.
Handling Vaccine Hesitancy in the Workplace
On Friday, right before Ontarians were entering the long weekend, the Chief Public Health Officer announced that Canada may be entering a 4th wave. The likelihood of a resurgence will largely depend on how many people are fully vaccinated. An estimated 89.7% of all new cases are occurring in eligible but unvaccinated people, even though the Prime Minister recently noted there are enough doses to vaccinate everyone in the country.
Following Australian lead to innovation in family law
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Google is Subject to PIPEDA in Canada
July 18 th 2021 Posted in: The Internet, it is proverbially thought, lives forever. That is, until jurisdictions around the world started to develop the “right to be forgotten.” In 2017, a complaint was made to the Privacy Commissioner of Canada that Google violates the Personal Information Protection and Electronic Documents Act (PIPEDA), by displaying links to news articles with personal and sensitive information about him.
Bad Faith Abounds at Landlord Tenants Tribunal
Over 6 months after many landlords in Ontario claimed that some tenants were using the pandemic as an excuse to pay rent, it’s becoming increasingly clear that many landlords themselves are using these circumstances to violate the Residential Tenancies Act, 2006. The Landlord Tenant Board (LTB) has been described as “chaos,” as early as late 2020, and the circumstances since that time have not improved.
Calculations of the Pandemic Limitations in Ontario
When the COVID-19 pandemic first hit Ontario, the provincial government made a special order on March 20, 2020 under s. 7.1(2) of the Emergency Management and Civil Protection Act, creating a suspension of limitations under O. Reg. 73/20, Limitation periods Period of time, steps in a proceeding This suspension of limitations continued until Sept. 14, 2020, which was approximately 6 months.
Defining Aboriginal Peoples of Canada to Include Non-Canadians
While Canada wrestles with the mounting tolls of historic deaths at residential schools, many are reconsidering how to celebrate Canada Day on July 1, 2021. There are calls for an independent probe, and even for criminal charges to be laid. The upside is that this might be Canada’s moment of reconciliation, with unprecedented interest in the Truth and Reconciliation Commission. Accepting the realities of this past may be the first steps to creating a better future.
Representation Orders in Small Claims
In Ontario, Small Claims Court’s monetary jurisdiction increased from $25,000 to $35,000 on Jan. 1, 2020. This has allows far more claims to be heard in this venue, with its streamlined processes and less procedural delays. Even prior to the pandemic, the Small Claims Court handled more than half of all of Ontario’s civil disputes.
Notwithstanding in Ontario, Yet Again
Nearly three years ago, I wrote here that the use of s. 33 in Ontario constituted “UnChartered waters.” Given the successful appeal in that case, the use of the clause ultimately wasn’t necessary. However, I was fortunate to appear as an intervener before the Court to note that the potential use of the notwithstanding clause would presumably appear in circumstances that were pressing and substantial, and asked the Court to carefully scrutinize any such rationale as a result.
LinkedIn is Not Facebook
You’ll see it every few weeks on LinkedIn. Somebody somewhere is complaining that LinkedIn is not Facebook.
How Open is an Open Court Online?
In 2015, Shauna Hall-Coates wrote in the Dalhousie Journal of Legal Studies, Walk into any courtroom today, critics venture, and it will look stunningly similar to those of the past; the judge will be sitting behind the bench, the jury in its box, and the witness on the stand.1 As everyone settles into his or her place selected by centuries of ritual and status quo, the courtroom may even appear as a sanctuary from the trappings of digital technology, so doggedly pursued outside its walls.
Making the most of mediation, economically
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National | CBA National - The Power of Perspectives
Law Access to justice It finally happened. Some of us in the Canadian legal profession had predicted the collapse of a major law firm. It’s not something we wanted to see, but, based on the restructuring in the international legal markets, many of us considered it to be inevitable. BY Omar Ha-Redeye 8 Sep 2014 In 2012, Dewey & LeBoeuf, an international U.S. law firm which employed more than 2,500 people, filed for bankruptcy.
Lawyers getting up to speed on machine learning
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France prohibits case analysis using deep learning - The Lawyer's Daily
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Stop endless debate on SOP at law society Convocation | Omar Ha-Redeye
Most lawyers in Canada don’t know or care much about what Convocation is. Effectively, it is the business meeting of the elected benchers of the law society, where decisions are made about the governance of the legal profession. This body is of profound significance, central to the self-regulation and autonomy of the legal industry. This independence is itself related to the independence of the bar, and more indirectly, the judiciary and justice system as a whole.
Blockchain and smart contracts: Hype or opportunity? - The Lawyer's Daily
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