The following are, in our opinion, some interesting decisions from 2024, though fair to say that there are many more out there. Though we acknowledge that those from other provinces may have limited applicability here, they are interesting nonetheless. As sometimes they are a signal as to where things are headed everywhere.
To paraphrase the Court, the passage of time on its own can be sufficient to show prejudice that will support dismissal of an action for delay rather than simply being a rebuttable presumption of prejudice.
Following Vavilov, a right of appeal does not preclude an individual from seeking judicial review for questions not dealt with in the appeal. Where a statutory right of appeal is limited to questions of law, judicial review is available for questions of fact or mixed fact and law.
This case demonstrates why, with the advent of AI (though we would argue this was always true), it is important to read all decisions being relied upon by the parties. The Court in Zhang awarded costs against counsel personally following their inadvertent reliance on two hallucinated cases made up entirely by ChatGPT. As to why we think it is always important to read cases being relied upon, how can you distinguish a decision from your matter if you do not read that decision?
The Court provided guidance on establishing privilege when non-lawyers are involved in the solicitor client relationship. For example, there is no such thing as accountant-client privilege. Thus, if privilege is disputed, unless it is apparent on the face of the document, evidence will be needed to establish the privilege claim. Accordingly, when using non-lawyers on a matter, their identity should be clearly set out in the retainer letter that establishes the solicitor-client relationship.
Interpretation of a release in the employment dismissal context. In the case, the settlement agreement did not specifically mention the vested stock units so the employee sued to recover their value. In overturing the trial decision awarding damages, the Court concluded that
…the words of the Settlement Documents should be given their ordinary meaning, which included a release of any payments to be made under the Plan…Clearly the payment of the settlement funds was intended to cover, among other things, all claims and entitlements owed or accrued pursuant to any contract, including Mr. Preston’s employment contract and the Plan. It is evident looking at the Settlement Documents that they were intended to be final and bring an end to the parties’ relationship and obligations.
In Giacchetta the Court held that it is an error of law for an arbitrator to not consider all the evidence filed and not provide sufficient reasons for an award. In Sound, the Court set aside an award due to the arbitrator’s failure to provide adequate reasons as a breach of natural justice.
An employee terminated for failing to comply with a new company policy may be disentitled to common law damages if the doctrine of frustration applies. In this case, the doctrine applied because the changes to the employment circumstances were beyond the employer’s control.
The question of what is meaningful consent under PIPEDA is determined based on what the customer understands. There is a difference between contractual consent and meaningful consent. Meaningful consent under PIPEDA is based on a reasonable person’s understanding of the nature, use and consequences of the disclosure.
There is a reasonable expectation of privacy in an IP address because it is a link between the user and their online activity. If Section 8 of the Charter protects online privacy then that protection extends to a person’s IP address thus entities that store this data should do so in a manner that maintains that protection.
In Achter, the buyer signed a contract to purchase grain in wet ink and texted a photo of it to the seller. The seller responded with text containing a thumbs up emoji. The seller later refused to deliver the product and argued that he did not sign the contract. The Court held that the contract was valid, the thumbs up emoji in a text message satisfying the signature requirement under Saskatchewan’s Sale of Goods Act. The entirety of the contract showed a mutual intent to enter it. the Court stating:
…a person may sign a note or memorandum of a contract for the sale of goods by affixing or associating a name or other mark of agreement on or with a document for a purpose and in a way that identifies its maker and signifies an intention to contract, with the expectation that the act of so doing will authenticate the document as being binding upon them…
Though this is a case under the Sale of Goods Act, does it leave as an open question whether, as lawyers, if someone, such as a self represented litigant, sends you a proposal by text or email, could a response of a thumbs up emoji up be taken as acceptance?
- One more decision – but it is from this year
As a bonus, a recent decision in a wills case that talks more to the state, costs and personal outcomes of litigation today. From Estate of Joan R. McAteer, deceased, 2025 ONSC 1197:
[12] It may be that at the end of the day, the court completely agrees with respondents and finds that the entire process or elements of it were unnecessary or even abusive. The fact that another beneficiary has already passed away before receiving the funds his parents wanted him to have is a sad reflection of the ongoing dispute. If it turns out that there is no substance to the applicant’s allegations, I would expect the respondents to ask the court to penalize him in costs to keep others affected by this litigation as close to whole as possible.
[13] But indemnity for legal costs will not heal lost time or injured feelings. It is up to the respondents to assess whether the non-monetary costs of the proceeding are a greater detriment to them than the monetary costs of settling. A judge cannot know or fix the emotional impact of a family dispute. Only the parties can assess whether it is better to pay some money to end the case rather than suffering the non-monetary costs and harm of continuing to litigate. Parties can criticize the legal system for being slow and expensive. But if they are unwilling to pay or take what the other side offers to settle, then they are deciding that the non-monetary costs and harm does not outweigh the priority they put on the money. This is not a criticism of anyone’s position. It is a simple recognition of the cost-benefit analysis that every civil litigant undergoes. Every case can settle. If you don’t want to pay or take what is offered by the other side, that is a choice to prefer incurring the systemic cost, delay, and non-monetary harms of the ongoing proceeding.