Recently in Canada Category

The British Columbia Human Rights Tribunal has ordered McDonald's to pay $55,000 for failing to do enough to accommodate an employee whose disabling skin condition prevented her from complying with the restaurant's hand-washing policy. Among other grounds for its decision, the tribunal cited the following:

There was no evidence of:

* the relationship between food contamination and hand-washing;...

(HRHeroBlogs/Northern Exposure, Apr. 15; Ezra Levant).

More: Commenter Bill Poser finds the decision "much more reasonable" than the reporting makes it sound and says, in particular, Northern Exposure cut off a relevant last word from its quote: "...hand-washing frequency".

We told you it was dangerous to criticize Ottawa lawyer and "human rights" commission enthusiast Richard Warman, and we were right: he's now sued four leading conservative bloggers in Canada and one website, Ezra Levant, Jonathan Kay/National Post, Kate McMillan/Small Dead Animals, Kathy Shaidle/Five Feet of Fury, and Free Dominion. Lawsuit target Ezra Levant has details, as does Michelle Malkin, not yet a target perhaps because she is American.

In related news, the Ontario Human Rights Commission has decided not to pursue a complaint against Maclean's, the country's best-known magazine, for publishing a book excerpt by well-known writer Mark Steyn. (Press release via Small Dead Animals, SteynOnline).

"A British Columbia father has sued his son's Grade 2 Montessori teacher claiming that she 'purposely and maliciously worked to damage the self-esteem' of his son over such things as failing to encourage the child's spelling, not sending home a daily homework list and, in one case, displaying an unfinished poem in the school hallway. ...Similar issues will arise in a Montreal courtroom next Tuesday, when a teacher at Westmount's prestigious Roslyn School will face the first of two lawsuits by aggrieved parents." Canada's National Post is kind enough to quote me on the U.S.-style trend (Zosia Bielski, "The new golden rule", National Post, Mar. 20).

In Nova Scotia, Astrid Margaret Literski is locked in a battle with Revenue Canada over whether she is entitled to child tax benefit checks associated with her late daughter Eveleigh. Literski is incarcerated after pleading guilty to second-degree murder for killing the girl, then 4, in 2003. The tax agency says it wants back some of the money it sent Literski because it learned after the fact that the girl was actually living with her father, her primary caretaker, at the time. (Chris Lambie, "Killer mom fights to keep child tax credit", Halifax Chronicle Herald, Mar. 1).

Reminding us once again that our neighbor to the north lacks a First Amendment-strength guarantee of free speech, and stands in very great need of one: Canada's largest non-profit Islamic body, the Canadian Islamic Congress, has launched human rights complaints against the prominent magazine Maclean's and its editor-in-chief over a book excerpt from Mark Steyn, the well-known conservative columnist. "Complaints were submitted to Human Rights Commissions in B.C. and Ontario on the grounds that 'the article subjects Canadian Muslims to hatred and contempt,' according to a CIC press release. In the release, the CIC labels Steyn's article as 'flagrantly Islamophobic.'" (Kate Lunau, "Canadian Islamic Congress launches human rights complaints against Maclean's", Maclean's, Nov. 30)(& welcome visitors from Steyn's own SteynOnline).

A hearing officer has recommended a reprimand for Boston judge and libel-suit winner Ernest B. Murphy over those "fascinatingly repellent" letters he sent to the publisher of the Boston Herald demanding a settlement of what proved a winning $2 million libel suit (Jessica Van Sack, "Public reprimand urged for Judge Murphy", Boston Herald, Nov. 21; see Sept. 28, etc.). The operators of the Irish Pub & Inn in Atlantic City, New Jersey are suing the publishers of Philly magazine over their description of the tavern as a "dive bar", and aren't buying the magazine's claim that the description was intended as complimentary. (Michael Klein, Philadelphia Inquirer "Inqlings", Nov. 18). And a New York lower court judge has declined to order Google/Blogspot to divulge the identity of "Orthomom", whom a Lawrence, N.Y. school board member had sought to sue on the theory that it was defamatory to have termed her a "bigot". (Nicole Black, Nov. 18, with links to other blog coverage).

More: And Eugene Volokh (Nov. 27) posts today on a disturbing case from Canada in which a lawyer involved in the shutting down of "hate speech" websites proceeded to sue for defamation -- successfully so far in the Ontario courts -- over having been called (among other things) an "enemy of free speech".

"Access Copyright has launched a $10 million lawsuit against Staples/The Business Depot for unauthorized copying by store customers. The copyright collective claims this is the largest lawsuit ever launched over copyright infringement of published works in Canada." (Michael Geist, Nov. 15)(via Fagstein).

Columnist Gary Slapper of the U.K. Times gives his nominations of odd ones from around the world. Among them is a Gilbert-and-Sullivanish 1874 proceeding in which a Winnipeg magistrate served as judge in his own case on a charge of public intoxication (Nov. 5).

Attorney Garry J. Wise has some extremely kind things to say about us at his blog (Nov. 2). Thanks!

Canada has moved toward more liberal allowance of class-action litigation in recent years; it has also, like most non-U.S. countries, chosen to retain its historic principle of "loser-pays", or "costs follow the event", fee shifting. What happens when prevailing defendants seek an award of costs against losing class plaintiffs, assuming that the individual class members cannot be reached for the purposes of assessing costs? In a bitterly fought lawsuit over unclaimed veterans' pension accounts, the federal government in Ottawa went after three class lawyers for C$4 million in costs out of their own pockets. The Ontario Court of Appeal denied its petition, but the lawyers say they feel chilled from organizing more such suits. In all, the federal government spent an estimated C$6 million in legal fees and C$10 million in other costs successfully defending the pension suit. (Randy Richmond, "Ottawa claimed denying justice", London Free Press, Sept. 20). Earlier London Free Press reports by Randy Richmond on underlying lawsuit: "One Last Battle: Dark Politics", Oct. 30, 2006; "An ugly fight for veterans' benefits", Oct. 31.

The owner of the Longhorn Custom Bodyart Studio in Oshawa says the shop's sterilizer had a screw misaligned and as a result reached only 128 degrees C instead of the required 132. The regional health department urged patrons to get checkups, which have proved reassuring, with no indication that anyone caught anything. Oshawa resident Kaleb Beaulieu has nonetheless filed an intended class action demanding $C10 million, saying that tests take a while to prove conclusively negative and that in the mean time he lives in fear. (Carola Vyhnak, "Tattoo studio faces $10M lawsuit", Toronto Star, Aug. 22; Rosalyn Solomon, "More tattoo clients sue", Toronto Sun, Aug. 23).

"The American personal-injury lawyer who caused a health scare after flying despite being infected with a potent form of tuberculosis is facing a lawsuit by three of his fellow passengers." Montreal lawyer Anlac Nguyen is demanding $C100,000 apiece on behalf of two Czech sisters who say they sat next to Andrew Speaker, and $C60,000 on behalf of a Laval, Que. man who sat farther away. Speaker recently learned that while he's carrying a serious, drug-resistant and contagious form of tuberculosis, it isn't the extremely-drug-resistant form originally suspected. (Jonathan Montpetit, Canadian Press/Toronto Star, Jul. 5). Earlier: Jun. 2.

P.S.: For those who are wondering, no, there's not the slightest indication from the story that any of the three plaintiffs caught anything from Speaker. Update Dec. 2: tests confirm that no one flying with him caught TB.

"A Canadian man who admitted shoplifting C$106 in razor blades has been awarded C$12,000 ($10,645) for injuries he suffered when he was tackled by store security guards. ... [Daniel] Baines, who represented himself, said employees of the supermarket in a Vancouver suburb used unreasonable force when he struggled during his capture." (Reuters, Apr. 20). Which suggests once again that Canada has still not "Americanized" its litigation system in any thoroughgoing way: how unlikely is it that a suit in a large American city by an injured-while-struggling thief, if successful, would result in an award as modest as $10,645? More: compare Jun. 13, 2006 (Rochester, N.Y. case).

A major scandal has erupted in Ontario in recent weeks following reports that some lottery retailers have for years been cheating their customers out of winning tickets, instead cashing in the tickets themselves. Now the law firm of McPhadden, Samac, Merner & Barry has filed a would-be class action lawsuit on behalf of all persons who bought lottery tickets since 1975, charging that the lottery failed to exercise its responsibility to prevent cheating, and demanding C$1.1 billion including C$100 million in punitive damages.

Perhaps the most interesting question raised by the legal action is: assuming a remedy cannot be had against the rogue retailers, what is a suitable remedy against the allegedly negligent lottery authorities? According to CTV, the law firm has proposed to hold a "free lottery", or, perhaps more precisely, a lottery that would compensate for past unfairness by enabling Ontarians to buy a ticket which would be eligible for a payoff above the usual. (Those who could prove they had played the lottery in the past would be entitled to one free ticket.) ("Class-action suit launched against lotto agency", Mar. 28).

Details of the proposed "remedial" lottery are hazy in the CTV account, but a couple of practical difficulties immediately come to mind. Start with the assumption that a "remedial" pot would be fixed at a certain lump sum intended to punish the province for its past negligence -- let's say C$100 million -- and that such a sum greatly exceeds a typical lottery pot. Since there is no upper limit to the number of tickets that purchasers could buy in pursuit of the extra-large pot, the province might in fact wind up making money on its penitential lottery, even taking into account the obligation to dispense a certain number of free single tickets to persons who could bring in the paperwork to show they were past lottery players. Alternatively, assume that the province undertakes to run a one-time penitential lottery with a higher payout than usual -- say, 95 percent rather than the usual 40 or 60 percent or whatever. Again it's possible that by stoking player interest in a much-publicized "good-odds" lottery, the authorities will come out ahead (perhaps having hooked many novices into buying their first lottery tickets).

The practical difficulties if the province is so rash as to promise a lottery with a payout of, say, 110 percent of the money put in, will be left as an exercise to the reader.

Updating our Apr. 26, 2005 entry, from Canada: "A Windsor, Ont., man lost out on a $341,775 court judgment yesterday, when the Ontario Court of Appeal ruled that a bottling company should not have been held liable for triggering a phobia of flies that altered his personality and killed his sex life." No one in the Mustapha family consumed the fly, or any of the water that had come into contact with it, but Waddah (Martin) Mustapha said the unsettling sight had precipitated a disabling psychological aversion. The Ontario court -- applying Canada's costs-follow-the-event principle -- assessed $30,000 in costs against Mustapha. (Kirk Makin, "Appeal court rules against man haunted by fly in water bottle", Globe and Mail, Dec. 16; opinion in Mustapha and Culligan of Canada (PDF)).

Canada: " Accusations of age discrimination are being lobbed at the University of Ottawa by 10-year-old twins who were registered in a course before being expelled in the fall. Sebastien and Douglas Foster filed complaints with the Ontario Human Rights Commission on the basis of age discrimination after the school deregistered them from the Science in Society course they had been attending." The university said it had mistakenly allowed the youngsters to enroll in contravention of a policy requiring students to possess a high school degree or equivalent, and that it had offered to refund their tuition. The students had enrolled in an already controversial course informally known as the "Activism Course", with the approval of its instructor, Prof. Denis Rancourt; asked by a reporter why he sought to study at the university, young Sebastien said he's learned about 'the Afghanistan war that's going on and about how many animals are being killed for food and a lot of things.'" (Laura Czejak and Dave Pizer, "Twins, 10, cry foul over U of O expulsion", Ottawa Sun, Jan. 30).

Such a grand idea from an anti-smoking campaigner up North: "Children should be able to sue their parents for exposing them to harmful second-hand cigarette smoke, an Alberta doctor says." Dr. Larry Bryan, who worked on a provincial commission that planned out anti-tobacco measures, "says banning puffing in cars or homes would be very difficult to enforce. But he believes the message would come across loud and clear if smokers were held legally responsible for their actions through exposure-related lawsuits. "(Michelle Mark, "Let kids sue parents", Edmonton Sun, Feb. 4).

Meanwhile, regulation creeps forward on other fronts: "Texas will join a handful of states that prohibit foster parents from smoking in front of children in their homes and cars when a new state rule takes effect January first. Under rules passed this year, foster parents can't smoke in their homes if they have foster children living there. They also can't smoke while driving if children are in the car. Other states with similar smoking laws include Vermont, Washington and Maine." Roy Block, president of the Texas Foster Family Association, says rules of this sort discourage Texas families from stepping forward to offer themselves as foster parents; most states do not exactly enjoy a surfeit of applicants well-qualified on other grounds ("Texas To Prohibit Foster Parent Smoking", AP/WOAI, Dec. 4).

• In "State of the Economy" speech, Bush says litigation and regulation harm U.S. financial competitiveness, praises enactment of Class Action Fairness Act [Reuters; his remarks]


• How many California legislators does it take to ban the conventional lightbulb in favor of those odd-looking compact fluorescents? [Reuters, Postrel, McArdle first and second posts]


• Levi's, no longer a juggernaut in the jeans world, keeps lawyers busy suing competitors whose pocket design is allegedly too similar [NYTimes]


• Clinics in some parts of Sweden won't let women request a female gynecologist, saying it discriminates against male GYNs [UPI, Salon]


• Is the new Congress open to litigation reform? Choose from among dueling headlines [Childs]


• Anti-SLAPP motion filed against Santa Barbara newspaper owner McCaw [SB Ind't via Romenesko]


• Uncritical look at Holocaust-reparations suits against French national railway [Phila. Inquirer]


• Deep pockets dept.: court rules mfr. had duty to warn about asbestos in other companies' products, though its own product contained none [Ted at Point of Law]


• Lawyering up for expected business-bashing oversight hearings on Capitol Hill [Plumer, The New Republic]


• "King of vexatious litigants" in Ontario restrained after 73 filings in 10 years, though he says he did quite well at winning the actions [Globe and Mail, Giacalone's self-help law blog]


• Sen. Schumer can't seem to catch a break from WSJ editorialists [me at PoL]


• South Carolina gynecological nurse misses case of Rocky Mountain spotted fever -- that'll be $2.45 million, please [Greenville News via KevinMD]


• Five years ago on Overlawyered: we passed the milestone of one million pages served. By now, though our primitive stats make it hard to know for sure, the cumulative figure probably exceeds ten million. Thanks for your support!

Jerome Almon, who owns the Detroit rap music label Murdercap, has sued Canadian officials demanding $900,000,000 over alleged hassles in his attempts to cross the border. Almon, whose musical oeuvre includes works entitled On Ya Neez Bitch and How Stella Got My Backhand, says that although his police record contains arrests only and not convictions, Canadian border control personnel have delayed his entry to the country on dozens of occasions, sometimes for hours. He is representing himself in the suit. ("Detroit rapper sues over alleged Canadian border hassles", CBC, Jan. 17; Paul Egan, "Detroit record label head alleges harassment against border officials", Detroit News, Jan. 18; P2Pnet).

These roundups aren't so hard to do once you get the hang of them:

• Boutrous on suit against "recovered-memory" doubter Loftus [W$J]. Earlier: here, here.


• Yet another expose of the "scrumptiousness epidemic" [Beato/Reason]


• OK to challenge jurors based on occupation, Calif. appeals court rules [Egelko/SF Chronicle]


• UK: "Murderer and his fraudster wife are given £20,000 legal aid to fight for an IVF baby" [Daily Mail]


• Truce, seemingly, between class-actioneers Bernstein Litowitz and Milberg Weiss [Koppel/WSJ Law Blog]


• Behind one of the biggest med-mal awards in Canadian history, a question of whether risk of bearing twins was warned of [KevinMD]


• Judge Patel grants class-action status to Costco gender-bias suit [Lattman/WSJ law blog]