Western Journal of Legal Studies

Killing Ourselves: Depression as an Institutional, Workplace and Professionalism Problem

Megan Seto — Mon, 19 Nov 2012 15:45:22 PST

Lawyers are frequent and consistent “winners” of undesirable honorifics such as “most depressed workers.” However, the undercurrent of unhappiness should not be ignored or hidden away by jokes told by lawyers about lawyers. In this article, the author proposes that depression is an institutional, workplace and professionalism problem in law. In Part II of the paper, the author analyzes professional codes of conduct as they relate to depression. Part III is devoted to the science of depression. Part IV examines the role of the institution, in particular law schools, to creating and reinforcing an environment that exposes individuals to developing depression. The “business case” for why mental illness does have an impact, particularly in dollar terms, on a firm’s business, is analyzed in Part V. Lastly, Part VI is devoted to examining depression as a professionalism challenge.

Trial Level References: In Defence of a New Presumption

Michael Da Silva — Mon, 19 Nov 2012 15:45:21 PST

Social science evidence plays an increasingly important role in contentious constitutional litigation. This paper examines the competence of courts to examine these materials in spite of both time- and finance-based pressures. Rather than critique the judiciary’s ability to examine social science evidence, this article seeks to determine what judicial structure is best placed to examine these materials in contentious cases (particularly focusing on reference cases). Trial courts are determined to best address resource concerns, and are best able to handle expert evidence and social science data. Examination of three recent contentious constitutional cases confirms that they are able to weigh the latter materials well. They should thus be the court of first instance in contentious constitutional law references.

Fired Over Facebook: The Consequences of Discussing Work Online

Jared Teitel — Mon, 19 Nov 2012 15:45:20 PST

This paper examines the Canadian and American legal approaches to assessing employee’s claims of unfair discipline over allegedly egregious comments on social media, and argues that the Canadian approach is more flexible and better suited to handle these claims in the social media context. Both countries apply traditional labour law frameworks to manage employee conduct online, despite the fact that Facebook, et al, represent a novel form of communication. However, the two systems are quite different. While American triers of fact examine whether an employee’s social media communications constitute protected concerted activity, Canadian triers of fact apply the doctrine of just cause dismissal. The American framework is problematic, as it cannot always distinguish between employees who use Facebook to advance their workplace interests from those who use it for other purposes. Consequently, American employers may be forced to tolerate an employee’s social media posts, regardless of how malicious they might be.

Navigating the Fine Line of Criminal Advocacy: Using Truthful Evidence to Discredit Truthful Testimony

Jeremy Tatum — Mon, 19 Nov 2012 15:45:19 PST

In Canada, lawyers are barred from using fraudulent means to mislead a court. Lawyers are also barred from permitting a witness to be presented in a false or misleading way. However, neither Canadian law nor Canadian professional codes clarify the permissibility of challenging a Crown witness with truthful evidence when defence counsel knows that the accused is guilty. This article explores the lack of guidance across the Canadian legal profession, and then uses Canadian and American legal scholarship to identify different approaches put forward on this topic. It concludes that there should not be an absolute ban on the practice of counsel for guilty accused used truthful evidence to challenge a Crown witness. Defence counsel must ensure convictions are only obtained by sufficient reliable evidence. Defense must also help clients obtain any remedy and defence not prohibited by law. However, a contextual approach should be taken in determining if the practice is appropriate and ethical in each case. This approach would consider, for example, the circumstances of the case, intended use of the evidence, legal merit to the claim it is used in support of, harm to the respective witness, and impact on justice norms such as equality, anti-discrimination and harm reduction.

Clements v. Clements: A material contribution to the jurisprudence - The Supreme Court of Canada clarifies the law of causation

Emir Crowne et al. — Mon, 19 Nov 2012 15:45:18 PST

The recent Supreme Court of Canada decision Clements v. Clements[1] provides important guidance on the appropriate application of the material contribution test in cases of negligence. This case commentary will provide an overview of the material contribution and “but for” tests of causation, outline the Supreme Court’s reasoning in the decision, and analyze its broader implications. It is suggested that the Court has significantly clarified the law of causation, emphasizing the necessity of utilizing the new “global but for” test, while leaving room for the application of the material contribution test in (as yet to be seen) appropriate circumstances.

* Dr. Emir Crowne, BA, LLB, LLM, LLM, PhD, Associate Professor, University of Windsor, Faculty of Law, and, Omar Ha-Redeye, AAS, BHA, PGCert, JD, LLM (cand.), Partner, Fleet Street Law.
But for the exceptional editorial assistance of Lida Moazzam and the material contribution of the Law Foundation of Ontario this article could not have been produced. Both are gratefully acknowledged.

[1] Clements v Clements, 2012 SCC 32 [Clements].

Privacy and the Canadian Media: Developing the New Tort of "Intrusion Upon Seclusion" with Charter Values

Jared A. Mackey — Thu, 19 Jul 2012 13:22:43 PDT

With the recent recognition of the new tort of "intrusion upon seclusion", Canadian privacy law has experienced a fundamental and modernizing shift. In Jones v Tsige, the Ontario Court of Appeal held that a person is liable for an invasion of privacy, if "he or she intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns [...] if the invasion would be highly offensive to a reasonable person." This new tort has the potential to dramatically impact society, media, and our core conceptions of individual privacy. In this paper, I engage the perspective of the Canadian media to analyze this legal shift against the competing Charter values of freedom of expression, free press, and individual privacy. I argue that in order to achieve a proper balance in this context, Canadian courts should be guided by the recent defamation law analysis from the Supreme Court of Canada in Grant v Torstar Corp. To this end, I propose a two-stage framework for principled application of the tort and suggest that in the media context, Canadian courts should recognize a principled defence of "Responsible Newsgathering on Matters of Public Interest.” This analysis only begins the debate. The introduction of this tort should encourage immediate discussion of how to best foster its growth with Charter values.

Family Status Accommodation: The Road to an Amalgamated Approach

Melody Jahanzadeh — Thu, 19 Jul 2012 13:22:39 PDT

The duty to accommodate family status has garnered significant attention in recent years due to the changing nature of familial obligations. Courts, tribunals and arbitrators alike have struggled with how to define the concept of family status accommodation, resulting in two conflicting tests. The uneven application of these tests has led to a variance in case law regarding how broadly family status accommodation should be interpreted. This paper will begin by examining the evolution of the duty to accommodate in labour law. The two tests that have divided the Canadian jurisprudence and the subsequent problems that arise from each test will then be examined. This paper will then analyze recent cases that have attempted to combine the two approaches to create a new amalgamated approach. It is proposed that this amalgamated test is the proper test for family status accommodation, as it strikes the appropriate balance between the various competing interests and will not unduly favour the employer or the employee in future family status claims.

Short-Term Emergency Lending: Examining Usury Law in the United States and Canada

Jesse Bellam et al. — Thu, 19 Jul 2012 13:22:34 PDT

We have chosen to discuss the regulatory framework surrounding the "payday lending" industry in North America and ultimately propose that further consumer protection and usury laws are necessary. In particular, we suggest that existing regulatory frameworks do not adequately safeguard low-income consumers who often rely on the alternative consumer credit market as their sole means of credit making them particularly susceptible to usurious lending practices. We believe this to be a particularly timely issue that has, of yet, received limited scholarly coverage adopting an international approach.

The Rules of Professional Conduct: A Conflicting Guide for Counsel in Child Custody and Access Proceedings

Jennifer L. Hiatt — Thu, 19 Jan 2012 18:54:29 PST

The Rules of Professional Conduct [Rules] of the Law Society of Upper Canada outline the professional and ethical obligations of all members of the legal profession in the province of Ontario. Lawyers are required to turn to these Rules when faced with ethical and professional dilemmas in their everyday practice. However, the acrimonious nature of family law often makes the application of these rules impractical. This article examines the vague and conflicting guidance the Rules provide to family law lawyers faced with ethical dilemmas in child custody and access proceedings. It is proposed that past disciplinary proceedings of other lawyers actually provide the most concrete and clear guidance for family lawyers faced with difficult ethical dilemmas. This state of affairs is problematic, as disciplinary proceedings are not meant to be a forum for teaching ethical standards. The proceedings were created as a method for reprimanding lawyers who deliberately violate the Rules. To alleviate this problem, it is proposed that the Rules should include a hierarchical ordering so that family law lawyers are not faced with conflicting advice when resolving their ethical dilemmas.

Protecting Your Personality Rights in Canada: A Matter of Property or Privacy?

Amy M. Conroy — Thu, 19 Jan 2012 18:54:28 PST

This paper explores the protection of personality rights in Canada in two ways: first, by attempting to clarify the Canadian law on personality rights. The extent to which personality rights are protected across Canada is unclear, and the legal situation varies across the various Canadian jurisdictions. The second part of this paper focuses on explaining the theoretical basis for protecting personality rights. As will be seen by looking at the statutes, court judgments, and surrounding literature, there are mixed views about whether personality rights are rooted in principles of privacy, or whether they are of a proprietary nature. The theoretical foundation through which personality rights are protected will have a practical effect on some of the elements of their protection. Thus, this paper emphasized that in jurisdictions where personality rights have not been adequately addressed, the court or legislature will need to be clear on the theory to which they subscribe in order to determine the approach that will be taken in protecting these rights.

Niqab vs. Quebec: Negotiating Minority Rights within Quebec Identity

Nafay Choudhury — Thu, 19 Jan 2012 18:54:26 PST

Quebec recently proposed legislation (Bill 94) that would require all individuals to reveal their face when seeking a government service. The proposed legislation particularly targets Muslim women who don the niqab. Underlying the present debate is an artificial dichotomy – a tension between a society’s interest in defining a common sense of citizenship and minority claims that seem inconsistent with the will of the majority. A Charter challenge – even if successful – would not fully address this underlying tension. In this paper, I argue that the heart of the present controversy relates to the need for a clear conception of Quebec identity. By considering the historical, social, ethnic, geographic and intrinsic significance of the French language, I argue that the French language, not secularism, is the key element of Quebec identity and facilitates a common sense of citizenship in Quebec. If a minority claim is capable of fitting within this conception of Quebec identity, then it poses no threat to Quebec citizenship, and thus, there should be no reason to exclude the claim – in this case the claim to wear the niqab when seeking a government service – from Quebec society.

Editors' Note

Lisa Di Valentino et al. — Thu, 19 Jan 2012 18:54:25 PST