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Aboriginal Law Definition
Aboriginal law in Canada, in its broadest sense, is law about Aboriginal people; namely First Nations people (e.g. the Dene people or the Cree people), Inuit, people and Metis people (i.e. a distinct group of people created from the union of First Nations people and Europeans).
Much of Aboriginal law is about four important concepts: Aboriginal title, Aboriginal rights, Treaty rights, and the closely associated duty of consultation and accommodation. All of these rights are protected by s. 35 of the Constitution Act, 1982.
Aboriginal title recognizes that Aboriginal people have property rights to Canada due to occupation before assertion of European control/sovereignty. These property rights are held communally by Aboriginal nations and can only be sold to the Crown, not private parties. Title is seen commonly in areas without treaties, such as British Columbia or the Maritimes.
Aboriginal rights arise from practices, customs, and traditions integral to an Aboriginal group at the time of European contact (or effective control in the case of the Metis). Examples include the right to hunt for food or in some cases the right to harvest fish commercially. Aboriginal rights are seen across Canada.
Treaty rights arise from treaties between Aboriginal people and the Crown. It is a solemn contract and treaty promises can depend on the treaty text. The treaties in the Prairie provinces are known as “surrender” treaties as the treaty cedes land to the Crown in exchange for treaty rights such as the right to hunt for food or the creation of reserve land. Many, if not all, First Nation people dispute that they have extinguished their rights to land as asserted in the treaty.
Finally, the duty of consultation and accommodation is an obligation on the Crown (Federal or Provincial) to engage an Aboriginal group before the Crown makes a decision to do something (e.g. allow tree harvesting or allocate Crown land) that may adversely impact proven or asserted rights. This is an important obligation designed to inform the Crown decision making process by ensuring Aboriginal perspectives on Crown action are brought forward before decisions are made.
Many lawyers assist resource developers, First Nations, and the Crown on the duty of consultation as a part of the regulatory process, which is required if development is to occur. Further, many lawyers assist First Nation and the Crown in addressing title, rights, and treaty claims.
Administrative and Public Law
Administrative and Public Law Definition
The subject matter within the scope of administrative and public law is broad and diverse. Generally, “public law” refers to the areas of law that govern relationships between individuals and their governments, as well as those relationships between individuals that are of importance to society as a whole. It is an umbrella term encompassing such areas as constitutional law, competition law, professional discipline, aboriginal law, energy law, municipal law, health law, human rights law, immigration law, labour law, environmental law, information and privacy law, securities law, competition law, public inquiries, inquests, and professional regulation.
All of these fields have an administrative law component. “Administrative law” refers to the area of law that regulates the procedures and powers of administrative agencies, boards, and tribunals which exercise delegated authority in the various spheres of public law.
Administrative and public law lawyers help clients navigate the complex web of legal institutions that regulate their personal and business activities. As a starting point, this includes helping clients understand how their activities are regulated, as well as how to navigate the bureaucracy created by statutes and regulations and how to comply with legislation as well as agency, board, and tribunal policies. This may involve compliance advice, obtaining a permit or license, representing clients at regulatory hearings, and providing strategic advice to achieve business objectives.
At the enforcement stage, administrative and public lawyers represent clients being investigated by public authorities, and defend clients in hearings involving allegations of non-compliance before adjudicative tribunals as well as in courts, inquests and inquiries. Lawyers also assist clients challenging decisions or actions taken by governments, agencies, and tribunals. Where a client is dissatisfied with an expert tribunal’s decision, administrative and public lawyers may assist clients in appeals and judicial reviews of the administrative body’s decision.
Some lawyers practicing administrative and public law have general experience navigating the legal institutions by which governments impose rules, provide policy and strategic advice, or represent clients in hearings and in courts. Others have very specialized expertise in specific regulated spheres.
Advertising and Marketing Law
Advertising and Marketing Law Definition
The field of advertising law in Canada has a wide scope – it encompasses the substantive laws, both federal and provincial, that govern the content of advertising, as well as the myriad and increasingly complex commercial and transactional arrangements involved in the creation and delivery of advertising messages.
Lawyers practising in this area routinely advise their clients regarding proposed advertising claims and claims support, packaging and labelling, promotions and contests, ad agency and media contracts, advertising pre-clearance, comparative advertising, advertising disputes, mobile advertising and social media, and privacy issues, including those relating to outbound e-marketing and online behavioural advertising.
They must be familiar with not only the key legislation of general application to advertising content, such as the federal Competition Act and provincial consumer protection legislation, but also with legislation affecting certain regulated categories of products or services, such as foods, drugs, cosmetics, natural health products, tobacco products, automobiles, and financial services, among others.
Advice provided by advertising lawyers may be informed by other disciplines, such as corporate and commercial law, intellectual property law, administrative law and litigation, as lawyers practising in this area may be called upon to advise on contracts, the use of intellectual property (belonging to the advertiser or third parties) and regulatory investigations or proceedings or private actions for misleading advertising.
In the age of social media in particular, they also must be attuned to both the legal risks, and the reputational risks, associated with certain types of promotional campaigns.
A creative mindset and approach is important in this practice area, as advertising lawyers need to help their clients create and deliver advertising that respects the law while remaining compelling to consumers.
Alternative Dispute Resolution
Alternative Dispute Resolution Definition
When people think of hiring a lawyer to resolve a dispute, they often have in mind that their problem will ultimately be resolved at a trial with a judge ruling in favour of one party and against another. This understanding, perhaps reinforced through television and movies, does not represent the reality. In fact, most lawsuits settle.
For the longest time, it was not uncommon for parties to go through all the steps of litigation, from pleadings through documentary and oral discovery, only to settle, sometimes “on the courtroom steps.” Bearing this pattern in mind, many litigants have opted to pursue Alternative Dispute Resolution, or ADR, as means of achieving settlement sooner and cheaper than by going through the court process.
In this context, the parties in dispute enlist independent, unaffiliated persons to assist them to reach a resolution. This may be achieved through two different paths. Arbitration proceedings are generally adversarial in nature and the arbitrator makes a final decision, just as a judge does, but outside the court system. A private mediator assists the parties in reaching settlements through consensus and does not impose a decision.
Lawyers play an important role in ADR. They may be the decision makers in arbitrations or function as facilitators in mediations. In either case, they may have specialized knowledge in the area of law under consideration or in the industry in which the dispute arose. Sometimes, lawyers are chosen as arbitrators or mediators because of their reputations as having the ability to be fair-minded and even-handed.
Not to be overlooked is the special role the lawyers for the parties can play in ADR. It is often they who suggest alternative means of resolving disputes to their clients. They play a huge role in explaining the process to their clients beforehand, and otherwise preparing the parties. In the case of mediation, the parties should ensure their lawyers have the right experience to assist them in getting to settlement. Parties sometimes will hire experienced lawyers to act as “settlement counsel” to assist them in getting to a resolution in mediation.
Appellate Practice Definition
Appellate practice is a growing area of specialization in Canada. Appellate practice refers to having carriage of or advising on appellate work. Traditionally, trial lawyers did their own appeals. As lawyers continue to specialize, some litigators prefer not to do appeals. In addition, clients see the advantage of having appellate experts provide advice on or take carriage of appeals, particularly after unsuccessful results at trial. There is a perceived benefit to having objective, specialized practitioners assist with this work. Arguing before a trial judge or jury, and conducting examinations of witnesses, are now considered to require different skill sets than arguing, in writing or orally, an appeal. Appellate practice refers normally to appeals in the provincial courts of appeal, the Federal Court of Appeal and the Supreme Court of Canada, including leave applications. Appellate practice relates to specialization regarding a particular type of proceeding as opposed to a particular subject. Appellate advocates are experts in appellate procedure, legal writing, oral advocacy before a panel of judges, and standards of review of judge’s decisions.
Arguing an appeal involves dealing with the case based on a fixed evidentiary record. It is only in rare instances that courts of appeal will entertain fresh evidence. Appellate practice involves putting together the appeal record and drafting the written argument, or factum, for the appeal. These steps are required in order to “perfect” the appeal, or to have it ready for argument. The respondent to the appeal will then file a responding factum. Appellate counsel have to be aware of the specific timelines associated with these tasks, which can be fairly condensed. Once the appeal is perfected, it is scheduled for an oral hearing with time limits normally assigned by the Court. Counsel for the appeal then argues the appeal in front of a panel of judges, normally three for courts of appeal and seven or nine for the Supreme Court of Canada. When counsel are attempting to overturn a court of appeal’s previous precedent, it is normally necessary to request that a five judge panel hear the appeal. Motions in courts of appeal are normally heard by a single judge. The majority of appeals are unsuccessful, meaning a premium is placed on appellate counsel who can advance concise and convincing arguments based on the record that exists. Appellate practice requires strong written and oral advocacy skills.
The majority of appeals to provincial appeal courts are as of right, but some appeals require to leave from the Court before the appeal can proceed. Leave is required for any appeal to the Supreme Court of Canada. Leave to appeal is normally determined based on paper record, without oral argument. At the provincial level, the test for leave normally requires conflicting decisions and/or an issue of importance. At the Supreme Court of Canada, the test for leave to appeal is a matter of national importance. As a result, the majority of appeals heard by the Supreme Court of Canada involve constitutional or administrative law issues, which tend to affect all of Canada. The Supreme Court of Canada grants leave for a very small proportion of leave applications, meaning it is difficult and rare to get leave. Generally, leave to appeal is normally only granted for legal issues, not factual issues, which tend not to be of general importance and for which the standard of review is very deferential.
Asset-Based Lending Practice
Asset-Based Lending Practice Definition
Aviation Law Definition
The Aviation practice involves the provision of legal advice on all aspects of the aviation industry. This includes litigation, commercial transactions, and advice on regulatory issues to a wide variety of entities involved in the aviation industry including carriers, manufacturers, maintenance facilities, airports, government, and financial institutions.
Aviation litigation tends to be highly specialized and centred on personal injury and wrongful death actions arising from accidents under both domestic and international law, insurance, and commercial disputes. Commercial transactions involving aircraft typically raise issues of provincial, federal, and international law particularly with respect to the granting and enforcement of security interests. In the regulatory arena, counsel are typically engaged on matters pertaining to regulatory oversight and certification by Transport Canada and the Canadian Transportation Agency which has jurisdiction to deal with licencing of air service providers, accessibility, and resolution of disputes relating to certain aspects of air travel.
Banking and Finance Law
Banking and Finance Law Definition
The legal environment surrounding the provision of financial services is complex as advice can be provided to individuals or organizations that are borrowing, lending, or underwriting financial transactions. Lending is a large and important aspect of the banking and financial services practice area and may encompass offering small value loans to individuals to purchase their first home all the way up to multi-national financing or restructuring transactions.
What is required of lending agreements in such transactions will depend to a great extent on the use of the funds being advanced – whether to purchase assets, to be used for working capital, assist with corporate re-financing or re-organization, or for acquisitions. Agreements might be secured or unsecured, completed via a public or private debt instrument, or even carry a derivative component. A lender can be a private lender or an institutional government-regulated lender. Banks, insurance companies, trust companies, and pension fund managers are all examples of institutional lenders and may act alone or may act in syndicated transactions.
Lawyers in this area will need legal, business, and industry knowledge and expertise, along with strong negotiation skills. Transactions must be executed quickly, while still properly structured to minimize the risk of loss. Often, a lawyer must be able to work in tandem with counsel from other jurisdictions to properly manage cross-border transactions and a multitude of regulatory issues. Familiarity with the Bank Act as well as provincial legislation governing financial matters coupled with federal and provincial security registration and reporting requirements are essential skills.
Bet-the-Company Litigation Definition
Biotechnology Law Definition
Biotechnology Law is a rapidly growing area of law, stemming from the field of science and technology. The modern definition of “biotechnology” refers to the industrial or commercial use of recombinant DNA (e.g. genetic engineering), cell fusion, and novel bioprocessing techniques to make or modify products, improve plants or animals, or to develop useful micro-organisms, with application to pharmaceuticals and health care products, food and agriculture, and industrial processes. The legal and business environments in which biotechnology companies operate are very complex, involving various regulatory regimes, long development times, and hundreds of millions of dollars in investment. Lawyers practicing in Biotechnology Law work with their clients in a myriad of ways throughout the evolution of their business.
Biotechnology Law encompasses areas of corporate and commercial law common to other commercial enterprises, operating within the unique context of the biotechnology fields, including the legal areas of corporate, securities, financing, employment, regulatory, intellectual property, international trade, product liability, commercial litigation, competition, and mergers and acquisitions. The unique demands of the biotechnology business put a particular importance on regulatory law, intellectual property law, and commercial agreements specific to pharmaceutical or other biotechnology fields. The regulatory aspect of Biotechnology Law involves navigating the regulatory approval processes and ongoing compliance for pharmaceutical, health care, and agricultural products. Biotechnology also relies heavily on collaboration, which involves drafting comprehensive agreements for research, development, testing, and manufacturing of product candidates, along with licensing, outsourcing, and commercialization. Finally, as intellectual property is developed, it becomes integral to the success of a biotechnology company to establish and maintain ownership of it, through patent protection and trade secrets as well as robust confidentiality and contractual ownership provisions.
Regardless of whether your company is a biotechnology start-up in the initial stages of development, or in late-stage development or commercialization, to succeed, you need a legal partner with a working knowledge of all major areas of corporate and commercial law, along with firsthand experience representing clients in the biotechnology fields. Whether it is helping you with establishing the corporation, raising money in public and private markets, effectively structuring the transactions, navigating the regulatory web, or protecting your intellectual property, your legal counsel should provide you with the cross-disciplinary insight and practical legal advice you need to realize your business objectives.
Cannabis Law Definition
Charities/Non-Profit Law Definition
Class Action Litigation
Class Action Litigation Definition
Canadian class action activity has been steadily on the rise for the past few years and this trend is expected to continue in years to come. Unlike in the United States, the Canadian class action landscape features a low bar for the certification (or authorization) of a class action and our courts do not apply a rigorous scrutiny standard at that stage.
In most Canadian provinces, the certification process for a proposed class action involves a similar test that uses the following criteria: (a) the statement of claim discloses a reasonable cause of action (i.e. one not plainly and obviously doomed to fail), (b) there is an identifiable class of two or more persons, (c) the claim raises common issues (the questions of law common to the class must predominate over questions affecting individual members), (d) a class proceeding is the preferable procedure for the resolution of the common issues (it supersedes other available methods to resolve the issue in dispute); and (e) the representative plaintiff will fairly and adequately represent the class.
Unlike in other Canadian provinces, Quebec’s class action screening phase is referred to as the “authorization” rather than “certification” stage. The authorization of a class action in Quebec is subject to meeting the following criteria: (a) the class members’ claims raise identical, similar or related questions of law or fact (common issues need not predominate), (b) the facts alleged seem to justify the conclusions sought, (c) it is difficult for the class members to join in the same suit or appoint a representative to act on their behalf, and (d) the representative plaintiff is in a position to adequately represent the class.
Once a class action is certified or authorized, the merits of the case will be assessed in a trial of the common issues, as in any other conventional lawsuit.
Each Canadian province provides for rights of appeal at the various stages of a class action and various regimes for the filing of evidence, preliminary motions, discoveries, and other procedural steps.
Class action lawyers must have a thorough understanding of the intricacies of class action proceedings and keep abreast of developments in this constantly changing area of the law. Clients facing a proposed class action should seek out firms and attorneys with recognized class action expertise, in addition to knowledge and experience regarding the substance of the claim.
Commercial Leasing Law
Commercial Leasing Law Definition
The practice of commercial leasing law involves acting for a commercial party in a contractual agreement (known as a lease) where one party (known as the landlord) grants an estate in real property to the other party (known as the tenant). During the term of the lease, a tenant is entitled to use and possess the premises on an exclusive basis in return for the payment of rent to the landlord. Provided that the tenant complies with its obligations under the lease, the tenant will be entitled to the undisturbed use and enjoyment of the premises (otherwise known as the covenant of quiet enjoyment). Examples of commercial leases include office, retail, and industrial tenancies. It is common for parties to initiate their negotiations by entering into an offer to lease which outlines the basic business terms of the lease, including the location and size of the premises, the duration of the lease (known as the term), the rent payable by the tenant (which can include basic/minimum rent, additional rent, and percentage rent), and any special provisions relating to the tenancy, including work to be performed by the landlord, free rent periods, fixturing periods, options to renew the lease or extend the term and restrictive covenants. After the offer to lease, the landlord will typically propose the form of lease to be used in the circumstances. Commercial tenants should be cautioned that the landlord’s form of lease can sometimes contain onerous provisions which they should attempt to negotiate to suit their business needs. Once executed, commercial leases are governed by their terms and conditions, the common law, and, to the extent applicable in the relevant jurisdiction, statutes and regulations.
Communications Law Definition
Competition / Antitrust Law
Competition / Antitrust Law Definition
Broadly speaking, the purpose of Canadian competition law is to provide consumers with competitive prices and product choices. The Competition Act is Canada's principal competition legislation. It is a federal statute that applies throughout the country to all sectors of the economy, with very limited exceptions. The Competition Act is administered by the Competition Bureau, a branch of the federal Department of Industry. The Competition Act contains criminal prohibitions against certain types of activities while other categories of conduct are subject to civil review at the Competition Tribunal or before the courts. Sanctions range from fines to imprisonment to orders prohibiting or prescribing certain conduct.
Competition lawyers in Canada typically provide advice to clients in the following key areas:
- Merger Transactions: The Competition Act requires that transactions over a certain size be notified to the Competition Bureau. The Bureau has the authority to review both notifiable and non-notifiable transactions to determine if they are likely to substantially prevent or lessen competition. Clients will retain competition counsel to advise on these issues. Competition counsel also will provide advice on transaction-related matters such as deal structure and purchase agreement provisions.
- Agreements Among Competitors: The Competition Act makes it a criminal offence for competitors to enter into certain types of agreements (e.g., price fixing and bid-rigging). Other agreements may be subject to civil review if their effect is to substantially prevent or lessen competition. Counsel will be called upon by clients to assess whether proposed collaborations with competitors could be subject to criminal or civil review under these provisions.
- Abuse of Dominance: Parties that "control" a market are prohibited from abusing their "dominance" in such as way as to substantially prevent or lessen competition. Parties that may hold a "dominant" position in a market will retain counsel to advise whether practices such as exclusive arrangements and loyalty rebates could be an issue.
Construction Law Definition
Construction law involves the regulation of the rights and obligations of parties at various phases of a construction project. Construction lawyers will negotiate and prepare project documentation such as tendering documents, construction contracts and subcontracts (including infrastructure and public-private partnership contracts), and material and equipment supply contracts.
Another aspect of construction law involves negotiation and documentation of project finance. Legal assistance may also be required in procuring labour and material or performance bonds from sureties and with issues arising when such bonds are utilized to complete the project. When property owners or contractors become insolvent, construction lawyers can assist in resolving the priority disputes that arise between lenders, government agencies, employees, and general creditors. A construction lawyer may also assist in review of various insurance policies such as builders’ risk/course of construction, wrap-up, and general liability policies and issues arising between construction parties and insurers if disputes arise.
Construction litigators are involved when disputes arise either through or after the construction process. During the tender process, there may be disputes regarding the bid process. During or after construction, there may be disputes about work that is part of or extra to the contract, costs associated with a delay in the construction, quality issues, and damage to the actual project. These issues may be resolved through mediation, arbitration, or trial. Construction law also involves the lien process whereby a legal charge is registered against the land to secure unpaid work or materials.
Corporate and Commercial Litigation
Corporate and Commercial Litigation Definition
Commercial litigation is a very broad practice area encompassing all disputes potentially arising in a business context. Consequently, practitioners in this area must have wide-ranging knowledge of both the business world and the myriad legal issues that can arise in that arena.
Commercial disputes may take on various forms, from breach of contract to shareholder disputes. Every litigious situation gives rise to a wide variety of remedies and recourses, such as an action for damages, a motion for an injunction, or a seizure before judgment. Furthermore, depending on their nature, such disputes can fall under the jurisdiction of several courts, each with its own set of rules.
In this challenging environment, commercial litigators must be able to assess the strengths and weaknesses of each situation and gauge their potential impact. Thorough knowledge of the commercial and operational issues at play will allow the practitioner to propose an appropriate litigation or ADR strategy, perhaps even a business solution.
Commercial litigation has evolved considerably over the years due to several factors, such as the near-universal adoption of information technology by businesses, and the increased complexity of commercial disputes. Add to that a slowing Canadian economy, and it is clear that commercial litigators must be prepared for war but open to peace.
Corporate Governance Practice
Corporate Governance Practice Definition
Corporate Law Definition
Corporate law deals with the formation, governance, and operations of corporations and how shareholders, directors, employees, creditors, and other stakeholders interact with a corporation and one another. Corporate law includes the laws governing the incorporation, dissolution, and registration of corporations; Canadian corporations may be formed under federal or provincial laws that govern and permit the formation and registration of corporations within their respective jurisdictions. Corporate lawyers are expected to be familiar with all of the issues a corporation and its stakeholders are likely to face, providing strategic advice on business transactions such as acquisitions and dispositions, corporate finance, joint ventures and partnerships, plans of arrangement and amalgamations, management buyouts, and reorganizations.
Criminal Defence Definition
Federal, Provincial, and Municipal governments each have authority in areas that may result in charges being laid. Federal powers govern the most commonly prosecuted offences. The Criminal Code of Canada and the Controlled Drugs and Substances Act are pieces of legislation passed by Canadian parliament. Criminal Code offences are usually prosecuted by the Provincial Department of Justice. The Code encompasses many types of crime including murder, sexual assault, robbery, impaired driving, theft, fraud, and the various rules applicable to admissibility of the evidence in such a prosecution. Drug charges fall under the jurisdiction of the Federal Department of Justice which has its own prosecutorial staff. The nature of the search or the process to conduct a search is often the subject of drug trials.
Prosecutions may be summary proceedings, meaning that the process will take place in the Provincial Court and for which the majority of offences have a maximum of six months incarceration upon conviction or indictable offences for which the maximum can be as high as a life sentence. The decision as to whether an offence is proceeded upon one way or the other is dictated by statute or at the election of the crown prosecutor. Indictable offences may be tried in provincial court, or in Queen's Bench (Superior Court) before a judge alone or before a judge and jury. This choice is made by the person charged in conjunction with counsel.
Many offences now have minimum sentences. This means that a judge is, upon a guilty plea or conviction, required by law to send a person to jail. Other offences may have a broad scope of possible sentences varying from probation to jail, conditional sentences to conditional discharges. Convictions may result in ancillary orders such as weapons prohibitions, or mandatory placement on the child abuse or sexual offenders registries. A criminal record can prevent bonding or entry into the United States or other countries. The length of incarceration may result in removal from Canada for individuals who do not possess Canadian Citizenship.
Provincial offences are tried in the provincial court system and are often regulatory in nature. High fines, jail, restrictions on practice in a trade, driving privileges, seizures of goods, professional licensing, trade, and property issues are just some sentences and areas effected by provincial legislation.
Municipal offences often deal with city or town regulation and the scope of such offences is tightly regulated based upon the powers given to a municipality by provincial legislation.
The Charter or Rights and Freedoms is the paramount protection for individuals in Canada. Many charges require an analysis of rights granted under the Charter to determine if a breach of has occurred in any of a number of areas including: whether a statement given to a police officer or other person in authority is admissible, was there a proper search and seizure, is the result of the breath test admissible or should it be excluded, was right to counsel given and facilitated. Virtually any evidence collected by police I may be subject to Charter scrutiny.
Criminal law in Canada has become a complex and comprehensive field. It requires a vast knowledge of the interplay between a host of pieces of legislation. A qualified experienced lawyer is critical to representation. Cases often require immediate action on the part of an attorney either to prevent charges from being laid or to begin the defense process in an effort to preserve evidence or defenses. Laying the groundwork early, interviewing witnesses, access to the use of an array of experts are tools a capable counsel will impart at the onset of a case.
Choice of counsel is integral. The ability to analyze, to advocate, negotiate, communicate, and focus on the issues are part of a looter's skill set. The ability to cross examine is fundamental, not all lawyers are the same. Capable experienced counsel can make the difference between conviction and acquittal.
Defamation and Media Law
Defamation and Media Law Definition
Defamation and Media Law involves two separate, but related, areas of practice. Most important is defamation law, which is a cause of action designed to protect and vindicate a person’s reputation. There are two types of defamation, libel, which is written, and slander, which is spoken. In common-law Canada, defamation is governed by long-established common law principles, but there is provincial legislation in most of the provinces, such as the Ontario Libel and Slander Act, that also governs some aspects of defamation law. Canada is generally considered a “plaintiff-friendly” defamation jurisdiction as it is easier for plaintiffs to establish defamation compared to jurisdictions such as the United States. However, damage awards for defamation tend to be relatively small in Canada compared to other jurisdictions. Defamation is considered a fairly technical area of practice that has more strict pleading rules than other causes of action.
In order to succeed in an action for defamation, the plaintiff must prove: that the words in question would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; the words referred to the plaintiff; and the words were communicated to at least one other person than the plaintiff. Falsity and damages are presumed. The defendant has the onus of establishing a defence to the defamation claim, such as truth or justification, absolute privilege, qualified privilege, or fair comment. Absolute privilege refers to occasions when individuals have absolute immunity from defamation claims, such as statements made in the legislature or in court. Qualified privilege refers to a person acting under a legal, moral, or social duty to communicate the impugned information to a person who has a corresponding duty or interest in receiving the communication, such as a regulatory body. Fair comment applies when words are expressions of opinion on a matter of public interest. Journalists have an additional defence, responsible communication, relating to fair and responsible reports on issues of public interest. Other than truth, malice, or ill-will can defeat these defences.
Before or after trial, plaintiffs can seek injunctions to have defamatory material removed from publication or posting. Such injunctions can be quite broad, including providing that that the defendant cannot publish anything about the plaintiff by any means. Interlocutory injunctive relief for defamation, because of its interference with freedom of expression, is considered an extraordinary remedy and is only granted in the clearest of cases. Once the defendant has been found liable for defamation, injunctive relief is more easily obtained if the plaintiff can show the defendant will continue to publish defamatory statements or where there is a real possibility the plaintiff will not receive compensation.
The proliferation of electronic communication has introduced new issues into the law of defamation. One of the most important is the question of when Canadian courts can take jurisdiction over defamation claims where the defendant is located in another jurisdiction. Recent decisions from the Supreme Court of Canada have determined that it is sufficient that defamatory material is read or downloaded in Canada. There is no requirement that the communication be substantially published in Canada. Therefore, Canadian courts take a liberal approach to defamation jurisdiction. However, a plaintiff’s damages may be affected by the decision to commence an action in a jurisdiction where a relatively small number of people read or downloaded the publication.
Regarding the media, in most provinces, there are strict notice requirements and shorter limitation period when dealing with defamation actions against media defendants. There are still questions about the scope of the application of these statutory requirements to non-traditional media and electronic publications. Media law also refers to non-defamation related issues involving the media, such as the protection of sources and public access to and reporting on the court system, particularly publication bans. Publication bans create a conflict between freedom of expression and the right of an accused to a fair trial and are consequently the subject of much litigation in high profile cases.
Derivatives Law Definition
Director and Officer Liability Practice
Director and Officer Liability Practice Definition
The practice area of Director and Officer Liability focuses on the liabilities of directors and officers arising out of their duties and responsibilities as directors and officers of business corporations and non-profit organizations. Much of modern society’s activities are carried out by such corporate entities, and as they act through their directors and officers, it is not surprising that there is a broad range of sources of liability for directors and officers when acting in their respective capacities for these corporations.
The Canada Business Corporations Act and analogous provincial and foreign statutes establish regimes under which the duties and responsibilities of directors and officers are defined, and liabilities are imposed for failure to act in accordance with those duties and applicable standards. In addition, a large number of other statutes in fields as diverse as securities, tax, labour, and environment also impose specific liabilities on directors and officers in order to ensure compliance by corporations with the provisions of those statutes.
Over the past 10 to 15 years, in the post-Enron era of Sarbanes-Oxley type legislation, higher standards of behaviour have been imposed on directors and officers by various legislative and regulatory bodies, such as securities exchanges, and the standards imposed on corporations and their various representatives and officials, including directors and officers, have heightened the requirements for corporate disclosure, and in doing so, dramatically increased the potential for liability of those individuals in situations where there is failure to comply with these heightened standards.
In addition, further criminal and penal sanctions have been introduced to discourage, for example, attempts to involve the corporation in corrupt business practices or fraudulent behaviour, whether domestically or abroad, such as those provided for in the recent amendments to the Canadian Corruption of Foreign Public Officials Act, and analogous legislation elsewhere.
Both the statutes and the case law relating to directors and officers liability establish parameters and limitations on the liability of directors, as well as defences such as due diligence and the Business Judgement Rule, which provides a measure of protection to directors and officers when making business decisions in the course of fulfilling their duties.
This area of practice necessarily cuts across other practice areas, such as securities law, corporate governance, insurance law, bankruptcy law, labour law, criminal and white collar litigation, as well as class action proceedings, as they relate to the liabilities of directors and officers in those areas.
Moreover, as the corporate statutes also provide generally for indemnification and in some instances insurance of directors and officers, the practice area generally also encompasses questions relating to the application of directors’ and officers’ liability insurance, and the interplay between the concepts of liability, indemnity, and insurance.
These practice areas are open for nominations but are not yet included in our publications.
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