BARE BONES BRIEFS | Advocates’ Society releases final report on future of advocacy | Scrotum sanctions: OCA upholds $150,000 punitives award against employer | SCC to decide whether receivers can disclaim arbitration agreements | OCA: Municipality owes no duty of care to developer | FC: “Budway” weed infringes “Subway” sandwich | Best law firm webinars and bulletins

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By Julius Melnitzer | June 14, 2021

Modern Advocacy Task Force releases final report

The Advocates’ Society Modern Advocacy Task Force has just released its final report, The Right to be Heard: The Future of Advocacy in Canada.

The report identifies four overarching principles: the open court principle, the imperative of access to justice, the integrity of the court process, and the principle of proportionality. The principles are the foundation of a model framework suitable for adaptation into court rules or practice directions. Other recommendations deal with the expansion of technology and a review of the justice system’s requirements, including funding and resource allocation.

“This report is a must read for lawyers who want to work to maintain and improve upon our system of justice for
the people of Canada.” said Guy J. Pratte, President of The Advocates’ Society. in a press release. “It is a valuable resource for judges who must make decisions every day and who are looking for ways to protect our system while increasing its efficiency. It contains important recommendations, and cautions, for politicians and those within government who are responsible for supporting the justice system.”

OCA upholds punitives award for contributorily negligent “horseplaying” employee

On a dare, Daniel Enyon climbed a 14-foot-high chain hoist while employed by Simplicity Air Ltd. On his way down, he caught his crotch on a hook that pierced his scrotum. The attending supervisor laughed at Enyon, refused to look at the injury and disregarded Enyon’s request for an ambulance. Considerable delay ensued before the supervisor drove Enyon to the hospital. During the incidents, two managers advised Enyon to say that the accident happened at home.

Ontario’s Workplace Safety and Insurance Board denied Enyon benefits because the accident did not occur in the course of employment. So Enyon sued. The jury reduced its $84,000 general and special damages award by 75 percent for Enyon’s contributory negligence. But the jury also assessed $150,000 in punitive damages, citing the company’s “serious lack of proper safety training, documentation, as well as creating a culture within the company whereby employees failed to place adequate importance on best safety practices”.

The Ontario Court of Appeal (OCA) upheld the award, ruling that it should not be reduced by Enyon’s contributory negligence:

The focus of the award of punitive damages was on the appellant’s misconduct in the context of the surrounding circumstances, and not on the circumstances leading to the respondent’s injury. This is however entirely proper. Punitive damages are awarded to sanction a defendant’s misconduct, and not to compensate a plaintiff . . . The punitive damages award should not be reduced by contributory negligence In awarding punitive damages. The jury was instructed to consider the supervisors’ conduct after the accident. The respondent’s contributory negligence leading to the accident was properly not part of the determination of whether punitive damages were warranted. There is no basis for reducing the punitive damages award based on contributory negligence.

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The Supreme Court of Canada (SCC) has granted leave to appeal from the British Columbia Court of Appeal’s decision in Peace River Hydro Partners v. Petrowest Corporation. The key issue is when and to what extent arbitration agreements can be disclaimed in a receivership context.

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During a rezoning process, the City of Ottawa failed to advise Charlesfort Developments Limited that an easement adjacent to the company’s development site contained an old water main whose condition was unknown but which played a critical role in the municipal water supply. Charlesfort had believed the easement hosted a trunk sewer. But When the water main was discovered during the site approval process, it forced the developer to redesign the project at considerable cost. Charlesfort sued for negligent misrepresentation and won a $4.5 million judgment at trial.

The Court of Appeal overturned the judgement, holding that the City owed Charlesfort no duty of care. The trial judge had erred in finding that, by accepting the zoning application, the City implicitly undertook to tell Charlesfort about the existence and nature of the water main. The City’s duty in the zoning process was to the pubic, not Charlesfort’s economic interests:

Charlesfort essentially submits that the purpose of any undertaking by the City included assessing the viability of the condominium project and protecting Charlesfort’s economic interests in being able to build the project as planned. I disagree. The scope and purpose of the City’s undertaking to process Charlesfort’s rezoning application was limited to fulfilling its statutory duty and acting in the public interest in doing so, for a number of reasons.

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In what may be a surprise to potheads, the Federal Court has ruled that there is ” a reasonable likelihood” that consumers will confuse certain marks belonging to the sandwich chain “SUBWAY” with the following trademark registered by a “cannabis & wellness store”:

The BUDWAY trademark used by the respondents strongly resembles [ SUBWAY’s marks]. Mark. In each case, the word element of the mark is similar, with the similarities in letters and pronunciation between SUBWAY and BUDWAY being self-evident. The fact that “budway” is not itself a word means that it would tend to be read in a manner to connote the common word “subway.” In context, the connotation would be with Subway’s SUBWAY-branded restaurants in particular. The similarity between the marks, and the associative connotation with Subway’s restaurants, is further enhanced by the respondents’ use of the same logo elements that appear in the [SUBWAY marks], namely the colour differentiation between the first three and last three letters, and the arrow design motif. The use of green colouring and an oval background is a further point of similarity . . . The differences between the marks, including the two different letters and the addition of more arrows, do not serve to materially undermine the resemblance, particularly to a casual consumer.

The Court did not embark on a comparison of the marked (excuse the pun) difference in sensation that consumers would undoubtedly experience on consumption of the stores’ products. Nor did the court comment on whether those heading to pot stores would be more confused than SUBWAY patrons.

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Julius Melnitzer is a Toronto-based legal affairs writer, ghostwriter, writing coach and media trainer. Readers can reach him at [email protected] or

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