A recent decision by the New York Court of Appeals could provide another alternative to the occupy movement to rectify wrongs of the financial crisis through the court system.
See more on Slaw.
The Ontario Court of Appeal discussed the maxim of statutory interpretation expressio unius est exclusio alterius in the motor vehicle collision personal injury case of Kusnierz v. The Economical Mutual. The case dealt with interpretation of the Statutory Accidents Benefits Schedule (SABS). See further discussion on Slaw.
Kusnierz v. Economical Mutual Insurance Company
Other resources include:
The Ontario Court of Appeal released the decision today in Combined Air Mechanical Services Inc v Flesch, which reformulated the analysis for Rule 20 Summary Judgments.
The three instances where summary judgment can now be granted are:
[50] …the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?
[51] We think this “full appreciation test” provides a useful benchmark for deciding whether or not a trial is required in the interest of justice. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the “interest of justice” requires a trial.
Combined Air Mechanical Services Inc v Flesch
For more, see Simon Chester’s post on Slaw.
Altaf Nazerali, a Vancouver-based promoter and investor, applied to the Supreme Court of British Columbia and won an ex parte injunction against Mark Mitchell, Patrick Byrne, Deep Capture LLC, High Plains Investments LLC, Godaddy.com Inc., Nozone Inc., Google Inc. and Google Canada Corporation.
The injunction was unusual because it also prevented moving the domain to another server or transferring the content, and also compelled Google to remove cached versions.
Read more on Slaw.
Additional commentary on Pragmatism Refreshed, IP Practice, Gary Weiss and Deeth Williams Wall. Surrounding information available here, here and here.
A copy of the Notice of Claim, including some of the allegations of defamation, below:
The decision on the settlement agreement in Voutour v. Pfizer Canada Inc was released today.
Justice Perell held that the terms of the Settlement Agreement was in the circumstances fair, reasonable, and in the best interests of those
affected by it.
[61] The proposed settlement is within the range of reasonableness. Class Counsel, with their medical and science experts, have done considerable work and appear to have come to a fully-informed assessment of the likelihood of success and o·f the risks of failure in the litigation.
[62] The Representative Plaintiffs confront Defendants that are a fonnidable foe and the litigation and the settlement negotiations, which had the benefit of an experienced class action judge, have been contentious and hard fought and the settlement agreement appears to reflect these difficult negotiations. There is nothing to suggest any collusion Or that Class Counsel were less than resolute in seeking a settlement that they perceived as rational and fair and in the best interests of the Class Members.
[63] The settlement has the benefits of settlements generally. It provides certainty of some recovery and it avoids the delays and uncertainties of pursuing a common issues trial to be followed by individual issues trials. For some Class Memhers, the settlement will achieve an immediate success that would have been at least delayed and might never have corne, unless they had the resoluteness to prove causation at individual issues trials that would be several years away.
[64] The allocation of damage awards for the Compensable Injuries, the definition of what are Compensable Injuries, and that temporal requirement connecting the drug to the injury are within the range of reasonableness and reflects the genuine difficulties the Class Members would confront if they were pressed by contested proceedings to prove a connection between particular ailments or conditions and the usage of the drugs.
[65] Although as Mr. Moorely notes, it is a $12 million settlement of a $1.5 billion dollar claim as pleaded. The pleaded claim – as all too typically is the case – bears no rational relationship to the Defendants’ genuine exposure to liability, and the pleaded claim does not account for the genuine risks of proving liability, including the difficulties of proving a breach of a duty of care and of proving causation of harm.
[66] In the United States litigation, Pfizer Inc. settled claims on an individual basis, and the net return to an. individual claimant was $69,178. In contrast, in the case at bar, eligible claimants will receive $5,000, $25,000, or $100,000 depending on the class member providing documentary proof that he or shtl was prescribed Bextra and/or Celebrex and contemporaneously with the prescription of the drug he or she suffered from one of a list of Compensable Injuries. Thus, under the Canadian settlement, it appears that the most serious claims would receive compensation comparable to that achieved in the United States. Using the United. States litigation as some measure of what is fair and reasonable, the contrast suggests that the Canadian settlement is reasonable and fair. The proposed settlement has the advantage that for the Compensable Injuries, causation of harm is not a factor.
[67] Based on Class Counsel’s estimates, the settlement fund should be adequate to pay the eligible claimants without any reduction.
[68] I appreciate that the proposed settlement docs not provide compensation for all injuries that occurred to users of Bextra and Celebrex. However, the identification of compensable injuries is rational and reflects the considerable litigation risks that other types of injury could not be proven to have a link to Bextra or Ce1ebrex usage. Similarly, the effective date of injuries occurring before thc end of 2005 is rational and retlective of a genuine and serious litigation risk.
Omar Ha-Redeye at the B.C. Court of Appeal during the Insite hearing
The Supreme Court of Canada released its decision today on the Insite clinic in Canada (Attorney General) v. PHS Community Services,
[148] The infringement at stake is serious; it threatens the health, indeed the lives, of the claimants and others like them. The grave consequences that might result from a lapse in the current constitutional exemption for Insite cannot be ignored. These claimants would be cast back into the application process they have tried and failed at, and made to await the Minister’s decision based on a reconsideration of the same facts. Litigation might break out anew. A bare declaration is not an acceptable remedy in this case.
[149] Nor is the granting of a permanent constitutional exemption appropriate where the remedy is for a state action, not a law. In any event, such exemptions are to be avoided: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96. Moreover, the Minister should not be precluded from withdrawing an exemption to Insite should changed circumstances at Insite so require. The flexibility contemplated by s. 56 of the CDSA would be lost.
[150] In the special circumstances of this case, an order in the nature of mandamus is warranted. I would therefore order the Minister to grant an exemption to Insite under s. 56 of the CDSA forthwith. (This of course would not affect the Minister’s power to withdraw the exemption should the operation of Insite change such that the exemption would no longer be appropriate.) On the trial judge’s findings of fact, the only constitutional response to the application for a s. 56 exemption was to grant it. The Minister is bound to exercise his discretion under s. 56 in accordance with the Charter. On the facts as found here, there can be only one response: to grant the exemption. There is therefore nothing to be gained (and much to be risked) in sending the matter back to the Minister for reconsideration.
[151] This does not fetter the Minister’s discretion with respect to future applications for exemptions, whether for other premises, or for Insite. As always, the Minister must exercise that discretion within the constraints imposed by the law and the Charter.
[152] The dual purposes of the CDSA — public health and public safety — provide some guidance for the Minister. Where the Minister is considering an application for an exemption for a supervised injection facility, he or she will aim to strike the appropriate balance between achieving the public health and public safety goals. Where, as here, the evidence indicates that a supervised injection site will decrease the risk of death and disease, and there is little or no evidence that it will have a negative impact on public safety, the Minister should generally grant an exemption.
[153] The CDSA grants the Minister discretion in determining whether to grant exemptions. That discretion must be exercised in accordance with the Charter. This requires the Minister to consider whether denying an exemption would cause deprivations of life and security of the person that are not in accordance with the principles of fundamental justice. The factors considered in making the decision on an exemption must include evidence, if any, on the impact of such a facility on crime rates, the local conditions indicating a need for such a supervised injection site, the regulatory structure in place to support the facility, the resources available to support its maintenance, and expressions of community support or opposition.
Canada (Attorney General) v. PHS Community Services
Liberal Minute Special Report #1 – Insite by JasonLamarche
The Supreme Court of Canada released its decision in Ontario (Attorney General) v. Fraser, overturning the Ontario Court of Appeal.
See more on Slaw.
Third Circuit Court of Appeals decision in Abu-Jamal v. Secretary PA Dept Corr, No. 01-9014.
Mumia Abu Jamal v. Secretary, Pennsylvania Department of Corrections, 2011
Michael Watts, Roger Gillott and Sarah Harrison of Osler, Hoskin & Harcourt LLP warned hospitals of reputational risks to hospitals under freedom of information requests from a new law, to be enacted at the start of 2012.
But they came under scrutiny themselves after a Facebook page brought attention to their advice.
See more on Slaw.
Law is Cool Slaw Canadian Health Law
