Continuous wrongs
When does the tortious conduct stop? Plus cross-examining Crowns, costs against tribunals, and all the latest legal news.
Dylan Gibbs
February 27, 2025
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PRESENTED BY |  |
Good morning from Austin, Texas. No, I’m not here advocating for Canada’s sovereignty. Alberta’s US lobbying foothold is too strong for a little guy like me to disrupt. I’m just attending a newsletter media conference — hopefully coming back with ideas to improve this publication for you.
PS: If you need some perspective today — a reminder there’s a bigger world out there — there’s a new theory about the structure of the universe. Warning: in addition to making you feel small, this article might make you feel dumb.
— Dylan Gibbs
TODAY'S DOCKET |
Starting the clock
Costs against tribunals
COVID class actions
Cross-examining Crowns
AI hallucinations
Leaving X behind
STAYING CURRENT 🗞️
Recent and notable
Not everything is continuous
Huether v. Sharpe, 2025 ONCA 140
Limitation periods typically don’t start running until the wrongful conduct ends. Take the simple example of a trespasser — the limitation period would usually start running when they leave, not when they arrive.
But how far does that principle get you? Not very far, according to the Ontario Court of Appeal. It’s a great reminder about the nature of continuous wrongs — and the importance of home inspections.
What happened: A couple bought a home with a defective foundation. They blamed the municipality — arguing that the Township of McMurrich Monteith did a poor job supervising construction. But the home was built in the '80s. And the couple didn’t buy the home until 2021. Ontario’s 15-year ultimate limitation period expired before they moved in.
Despite the passage of time, the Superior Court of Justice refused to dismiss the couple’s claim — a conclusion that stemmed from an open work order. The municipality inspected the home during construction, saw defects, and ordered work to be done. But staff failed to ensure the work was actually completed and treated the work order as closed.
In the motion judge’s view, the Township’s negligence continued every day the work order remained open. And that meant the limitation period never started to run.
But the Court of Appeal disagreed: The Court said the motion judge misinterpreted what it means for wrongful conduct to be “continuous”.
Continuing causes of action are uncommon.
[A]ctionable conduct is not continuing merely because it can be rectified or because the harm it causes is either continuing or delayed.
Whether the [work order] was actually closed or was merely (mistakenly) regarded as being closed, the key point is that there was no difference in the subsequent behaviour of the Township, which regarded the file as dormant and later placed it into storage.
[This is not a situation] where there is repeating actionable conduct that mitigates concerns over stale evidence. Rather, this proceeding exemplifies the observation of the Alberta Court of Appeal … that “trying to find and test evidence about events decades old is usually roulette, not a serious exploration of the truth.”
The cost of doing procedurally unfair business?
J.T. v. British Columbia (WCAT). 2025 BCSC 246
The BC Supreme Court ordered costs against the Worker’s Compensation Appeal Tribunal. You don’t see that every day — tribunals are typically immune from paying costs even if litigants successfully overturn their decisions.
So, where did the tribunal go wrong? A worker claimed that multiple workplace incidents caused his mental illness. When the tribunal asked for a doctor’s expert opinion, it didn’t let the doctor review all the incidents. And the tribunal relied on the opinion to reject the worker’s claim, even though the doctor didn’t have all the facts.
Making things worse, the tribunal limited the worker’s evidence. And even though the worker only learned of those evidentiary limits on the day of his hearing, the tribunal forged ahead with the hearing anyway.
I find that the two identified breaches of procedural fairness are, taken together, sufficiently significant and clear to warrant an award of costs.
In my view, it is particularly important that tribunals such as WCAT, which adjudicate claims from vulnerable applicants, including applicants with mental disorders, ensure that their processes are fair in all respects.
Canada’s COVID response immune to class action
Perron v. Canada, 2025 FC 356
Plaintiffs filed a proposed class action against Canada, alleging that the government’s pandemic response caused unnecessary suffering and deaths and therefore violated the Charter. Associate Judge Trent Horne dismissed the lawsuit, saying it was doomed to fail.
[This claim] would open the door to a section 7 claim for every instance where government response and action relating to public health (and other issues) was not considered to be optimal or ideal. That is simply not the purpose of section 7, and inconsistent with the jurisprudence interpreting it.
[Plus,] the Claim does not challenge a discrete part of the pandemic response, [but] rather multiple actions and policy choices spanning decades. The Court does not have the institutional capacity to decide whether swaths of Canada’s overall pandemic response strategy was the best strategy, nor is it a legitimate matter for the Court to decide.
Cross-examining prosecutors
R. v. Swaine, 2025 ONCA 117
Crown Attorneys in Ontario appealed a criminal acquittal where the trial judge said his reasons would follow but never released them. The trial judge later emailed counsel to say that he wasn’t allowed to issue his draft reasons because one of the parties had complained about his conduct.
It turns out prosecutors had complained to the Court’s executive legal officer about the pace of the proceedings.
The Ontario Court of Appeal said defence counsel can cross-examine the trial Crowns to figure out what happened, because it might be relevant to the appeal.
Considering the whole premise of the Crown appeal – that the acquittal should be set aside because of an insufficiency of reasons – it cannot be said that the conduct of the prosecuting Crown, which the trial judge believes triggered this state of affairs, would be irrelevant... To the contrary, its relevance seems obvious on its face, particularly given the applicant’s current allegation that [the absence of reasons is the Crown’s fault].
[T]here is a reasonable possibility that cross-examining both Crowns could assist on the motion to adduce fresh evidence and that the fresh evidence may well be received on appeal.
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BY THE NUMBERS 📊
$1.72B: The size of Canada’s cows-and-plows settlement with 14 Saskatchewan First Nations. The deal gives compensation for agricultural treaty promises the government never followed through on.
$15k: The cost of AI hallucinations. A US judge handed out the sanction in yet another case of a lawyer relying on fake judicial decisions because they didn’t review their AI-generated work product.
It is one thing to use AI to assist with initial research, and even non-legal AI programs may provide a helpful 30,000-foot view. It is an entirely different thing, however, to rely on the output of a generative AI program without verifying the current treatment or validity—or, indeed, the very existence—of the case presented. Confirming a case is good law is a basic, routine matter and something to be expected from a practicing attorney.
While [$5000 per document containing fake cases] is at the higher end of the sanctions that have previously been imposed for similar conduct, Mr. Ramirez's professed ignorance of the propensity of the AI tools he was using to "hallucinate" citations is evidence that those lesser sanctions have been insufficient to deter the conduct.
[I am not suggesting] AI is inherently bad or that its use by lawyers should be forbidden. [I have] long been a very vocal advocate for the use of technology in the legal profession. Nevertheless, much like a chainsaw or other useful by potentially dangerous tools, one must understand the tools they are using and use those tools with caution.
$380,000: The cost of baselessly saying drag performers groom children. Brian Webster objected to a drag storytime event, calling the drag performers “groomers” on Facebook. Rainbow Alliance Dryden and several individual drag performers successfully sued for defamation. Justice Helen Pierce awarded each of the four plaintiffs $75,000 in general damages and $20,000 in aggravated damages.
The defendant intended to smear the reputations of the individual plaintiffs and [Rainbow Alliance Dryden] with the message that they used their drag queen/king persona and activities to groom children for sexual abuse. There could hardly be a more damning message than that, spread across the Internet.
MAKING HEADLINES 🗞️
🧑🎓 McCarthy Tétrault paused a recruitment initiative for Black and Indigenous students. Some firm members are worried the move is connected to the growing wave of anti-DEI efforts that have taken North America by storm. (Globe and Mail)
🪧 Amazon workers say the company is pulling out of Quebec simply to bust up a union certified last year. They filed a complaint with Quebec’s Administrative Labour Tribunal. If you’re interested in the full complaint, you can read it (in French), but the gist is something sure smells fishy about Amazon shuttering Quebec operations shortly after workers in Laval formed Canada’s first certified union of Amazon employees.
🛍️ BC is strengthening its consumer protection laws.
✈️ Surprise surprise — passengers are already suing Delta over the flight that flipped upside down in Toronto last week. A lawsuit filed in Georgia alleges that one passenger was soaked in jet fuel during the crash. He’s asking for US$200,000.
🗣️ Outcry sure seems to work in Nova Scotia. After significant pushback, the government backed away from amendments that would have allowed elected representatives to vote out the province’s Auditor General. People are also complaining about the government’s proposed amendments to access to information legislation, which would allow the government to reject “trivial, frivolous or vexatious” information requests. Premier Tim Houston said the province will likely change those plans too.
🙅 The SCC won’t be posting on X anymore. The Court suggested that the change relates to strategic priorities, not mentioning anything about US/Canada tensions and the close connection between X owner Elon Musk and President Donald Trump. But given the timing — and the fact that the Court plans to keep posting on pretty much every other social platform — it’s hard not to see the change as politically linked. And some are concerned about the message that sends.
In my respectful view this broadcast by the Supreme Court of Canada was neither necessary nor appropriate. Given its timing (many recent Musk-led political changes; currently a large petition to revoke Musk’s 🇨🇦citizenship) public trust in an independent judiciary will be eroded.
— Lion Advocacy (@LionAdvocacy)
2:11 PM • Feb 26, 2025
THINGS NOT TO DO 😤
Don’t send your clients unsolicited sexist jokes.
The Law Society of Ontario’s disciplinary tribunal found that a lawyer sexually harassed a client when he sent her eight comics and videos — the sort of stuff that might have entertained a Mad Men era boardroom.
Here’s the joke from one of the least offensive messages:
Woman: “Honey, before we got married, you used to give me gifts and expensive jewelry.”
Man: “Yes... So?”
Woman: “How come you don’t do it anymore?”
Man: “Have you seen a fisherman give worms to the fish after catching it?
The lawyer said he was simply sharing informational content among friends. But the hearing tribunal wasn’t buying it:
We find that a reasonable person would view the WhatsApp messages to be sexist and sexually offensive. Mr. Chima’s argument that they were in some way inspirational or educational is objectively absurd.
The tribunal also found that the lawyer’s inappropriate jokes eventually escalated to sexual touching. Don’t do that either.
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