Death to discovery
Ontario's earth shattering reform proposals. Plus the latest in Canadian legal news.
Dylan Gibbs
April 02, 2025
 |
PRESENTED BY |  |
If you’re not keen on celebrating Liberation Day, consider celebrating its antithesis. Senator Cory Booker set a new record for the longest speech in US Senate history, spending 25 straight hours opposing Trump policies like the Liberation Day tariffs taking effect today.
— Dylan Gibbs
TODAY'S DOCKET |
Reining in big tech’s terms
Law firm receiverships
Judicial misconduct
Civil justice reform
Sensitive images
Bifurcation
STAYING CURRENT 🗞️
Recent and notable
Signing your life away to big tech?
X Corp. v. Masjoody, 2025 BCCA 89
According to X, the platform’s terms of service apply to just about any lawsuit brought by someone with an X account. But BC’s courts don’t seem to agree.
A bit of context: Dr. Masood Masjoody sued X in BC over tweets he says are defamatory. According to X, he should have sued in California. The company relied on its terms of service, which say that any disputes related to the terms or X’s services need to be litigated in San Francisco.
The ruling: The BC Court of Appeal (agreeing with the BC Supreme Court), said X’s terms of service don’t cover Dr. Masjoody’s defamation claim.
Dr. Masjoody’s claim is not a complaint about what content he has been exposed to on X. It is, rather, a complaint about what the general public can read about him on X, and the impact of that content on his reputation and security. That does not arise from his use of or access to X’s services as a member so as to fall within the contract.
X also relied on another part of the contract:
[X is not liable for damages or intangible losses resulting from] any conduct or content of any third party … including without limitation, any defamatory, offensive, or illegal conduct of other users or third parties.
But the Court saw two reasons not to let this language block Dr. Masjoody’s claim.
The limitation only applies to third party conduct. Since Dr. Masjoody alleges that X directly defamed him by facilitating, maintaining, and even encouraging the allegedly defamatory posts, the alleged misconduct falls outside the limitation.
And the limitation only covers liability for damages. Since Dr. Masjoody wants an order forcing X to take the posts down, the remedy also falls outside the limitation.
Big picture: This one’s a bit like the case that blew up in Disney’s face last summer — where the company argued that a man couldn’t sue over his wife’s death because he signed up for an online Disney account. If the X case is any indication, Disney made the right call backing away from that argument after facing public backlash. Judges probably wouldn’t have liked it either.
Courts call the shots
Sask Power v IBEW, 2025 SKCA 33
Just because parties agree to split up an administrative hearing doesn’t mean the courts have to play along.
In a Saskatchewan labour arbitration, the parties bifurcated the case—liability first, remedy later. After losing on liability, the employer tried to jump straight to judicial review. The Court of Appeal didn’t like that approach.
Courts occasionally hear judicial review applications from decisions that aren’t fully wrapped up — but only in exceptional circumstances. And there’s nothing exceptional about the parties agreeing to split things up.
[E]ven where parties agree to bifurcate proceedings between the liability and remedy phases of an arbitration, that fact alone is not dispositive of whether judicial review should proceed before the conclusion of the arbitration. Nor are courts bound by a prior agreement between the parties to have judicial review proceed at an early stage. Courts retain supervisory powers over prerogative relief and must remain focussed on whether the matter at hand gives rise to an exceptional circumstance.
Law Society doesn’t trump secured creditors
Easy Legal Finance v Law Society of Alberta, 2025 ABCA 112
The Law Society of Alberta put a firm into receivership after one of the firm’s employees misappropriated more than $419,000 from the firm’s trust account. But the Law Society isn’t the only one worried about the firm’s finances. The firm also owes more than $1.4 million to its senior secured lender — Easy Legal Finance.
The Law Society tried to pause the interest on Easy Legal Finance’s debt, arguing that the 18% interest rate would drain the money available to other creditors. Alberta’s Court of King’s Bench agreed with that assessment, but the Court of Appeal said the lower court incorrectly applied the “interest stops rule”.
According to the Court of Appeal, insolvency courts sometimes pause interest to ensure fairness among creditors in the same class — but secured creditors aren’t in the same class as unsecured creditors.
That means courts can’t pause the interest on a secured debt during receivership simply because it seems like a fair thing to do.
Even if the Law Society is the party saying it’s the fair thing to do.
“The [Law Society] has pointed to no case in which the interest stops rule has been applied to a secured creditor’s claim to avoid ‘skewing of equity’ to the secured creditor, whether in the context of an insolvency or otherwise.”
What exactly is an “intimate image”?
A.Q. v. B.T., 2025 BCCRT 398
BC’s Intimate Image Protection Act helps people get intimate images off the internet — images that depict them “engaging in a sexual act”, “nude or nearly nude”, or exposing private areas of their body. A recent case seems to put some gloss on those categories.
An anti-trans activist posted an image of a trans woman’s face photoshopped onto a male body. According to the Tribunal, the image was “relatively benign” — apart from its hateful anti-trans message.
The Tribunal still awarded damages, even though it doesn’t sound like the image depicted the things mentioned in the legislation.
The image BT shared had a clear purpose of depicting AQ as a man by altering an image to show AQ’s head on a masculine body.
The harm associated with sharing the image does not come from anything particularly explicit or graphic in it. Rather, the image is harmful because it dehumanizes AQ and denies her gender identity. I accept AQ’s evidence that the image was hurtful, embarrassing, offensive, and distressing. I find that it is an offence to her dignity. BT also disseminated it publicly within an online context around other anti-trans messaging. I find that AQ is entitled to compensation under the IIPA for this harm.
PRESENTED BY NEARME MARKETING
From overlooked to overbooked: using website changes to double revenue
Phone not ringing? Watching files go to firms with higher Google rankings?
That was the reality for a criminal lawyer in BC — relying primarily on legal aid work and the odd referral.
Then he called Joe Ashta.
Joe built him a website, ran a targeted SEO campaign, and got him to the top of Google.
The result? More visibility, double the revenue, and enough work to hire a team. Now his calendar is booked solid for the next 18 months.
Joe gets lawyers where it matters most: to the top of Google, ahead of the competition, and in front of high-value clients.
SPOTLIGHT 🔦
A potential overhaul of civil litigation in Ontario
Ontario’s Civil Rules Review just released its latest report, pitching what would likely be the most dramatic civil justice transformation Canada has ever seen. The working group’s proposal centres around an “up-front evidence” model that completely eliminates oral discovery.
The report starts from the undeniable premise that our civil justice system is broken:
The status quo is not an option. The current system is not working. Minor adjustments will not lead to the meaningful improvements required to ensure our civil justice system survives and thrives.
Instead of tinkering around the edges, the working group went big, aiming to relieve pressure on backlogged courts and resolve cases faster. The reforms focus on discovery and motions (the biggest sources of delay).
In addition to eliminating oral discovery, the proposed changes include:
Pre-litigation protocols for certain types of cases (like personal injury, debt collection, and disputed wills), requiring discussions and document exchanges before cases are even filed.
Early witness statements and key documents, with tight restrictions around asking for more documents
Mandatory judicial case conferences after the exchange of evidence
Expanded judicial control over motions and case management
In a post-reform world, the hope is that we’ll see every new civil litigation proceeding completed within two years.
Public consultation is open until June 16. Beyond that, Ontario could see a revamped civil justice system as early as 2026.
PS: The first four pages of the report are worth reading in their entirety. They lay out a sharp, sobering indictment of Ontario’s justice system — which is just as applicable across the rest of the country.
While our complex web of existing rules is based on the belief that extensive rules make the process fairer, the reality is that many litigants struggle to understand the process, making it seem no fairer to those who matter most. [W]hat litigants ultimately understand about our current process model are its practical effects: namely, costs and delays, neither of which seems fair and both of which give rise to frustration with and cynicism about the civil justice system.
Reform is not just long overdue—it demands sweeping, comprehensive changes to the way we litigate civil claims in this province.
BY THE NUMBERS 📊
17¢: The average drop in gas prices after BC axed the carbon tax this week. Regulators are keeping a close watch to make sure gas stations actually pass the carbon tax savings on to consumers.
$1.2M: the total fines for an Alberta workplace fatality (split between three companies).
7: The number of Indigenous languages soon to be featured in Manitoba’s Hansard transcripts. The province launched a pilot program to translate legislative proceedings, which kicks off this spring. They may need to invent new words to accurately capture government business.
$30M: The class action settlement approved against cannabis firm Aphria Inc. The lawsuit alleged that Aphria’s prospectus filings misrepresented two of its planned acquisitions, benefiting insiders at the expense of other shareholders.
MAKING HEADLINES 🗞️
🧑⚖️ Alberta is challenging a miscarriage of justice review done by former Justice Minister Arif Virani. In February, Virani ordered a new murder trial for Roy Allan Sobotiak, saying there was a reasonable basis to conclude that a miscarriage of justice likely occurred during the original prosecution. But the province says Virani’s decision is too light on details to run a new trial. They want the Federal Court to quash the decision and order more thorough reasons.
As far as I can tell, this has never happened before — people convicted of criminal offences sometimes challenge unsuccessful miscarriage of justice reviews, but you don’t typically see provinces challenging successful ones.
🇸🇾 The Advocates’ Society is catching flak after cancelling Syrian-Canadian entrepreneur Tareq Hadhad as the keynote speaker for its upcoming end-of-term dinner in Toronto. Members took issue with some of Hadhad’s social media posts about the Middle East, so TAS cancelled his speech to avoid making anyone feel unwelcome. Several lawyers and advocacy groups have accused TAS of suppressing views, with some giving up their membership in protest.
✏️ The BC government dialled back the tariff response bill that would have given it the power to amend any law on the books without going through the legislature.
🥾 A First Nation community decided that Manitoba’s provincial court overstayed its welcome. Sioux Valley Dakota Nation held court twice a month in its mature student centre — one of many remote stops on Manitoba’s provincial court circuit. But Chief Vince Tacan says it was doing more harm than good. The small makeshift courtroom often placed victims, witnesses, and accused persons in close quarters. And Chief Tacan said a lack of security led to issues like weapons being found in the bathroom. Without the local circuit stop, residents will need to travel 50km east to Brandon.
🤖 Apple is getting sued over its AI claims. A proposed class action targets the company’s botched Apple Intelligence launch, which suggested AI features would power last year’s iPhone 16. Those features still haven’t made it to market. Last month Apple took down at least one of its advertisements and added disclaimers to other marketing materials — acknowledging that the advertised features are still under development.
Apple ran this iPhone 16 ad in September 2024 showing off the new AI Siri that understands personal context.
It's now March 2025 and they just delayed the feature until sometime within the next year.
AI Siri is now an iPhone 17 feature that Apple promised for iPhone 16.
— Sam Kohl (@iupdate)
8:02 PM • Mar 7, 2025
PODCAST ANNOUNCEMENT 🎧
I spoke with Dean Michael Marin from the University of New Brunswick’s Faculty of Law about lawyer wellbeing recently. He’s full of practical solutions that go beyond paying lip service to the legal profession’s mental health crisis.
We talked anxiety, exercise, community, and why “your reputation is everything” might be bad advice.
You can find our chat on Youtube, Spotify, Apple Podcasts, and wherever else you like to listen.
THINGS JUDGES SHOULDN’T DO
No sanction for the judge who lashed out during sentencing
A National Judicial Council review panel decided not to discipline Justice François Huot, who gave a convicted murderer this piece of his mind before sentencing:
I would have been surprised if you had apologized because, in my assessment, you are spineless, cowardly, craven. You have spent 22 years of your life living free and waking up every morning as if nothing had happened. How were you able to look at yourself in the mirror every morning while Guylaine lay six feet underground because of your moral, your sexual depravity and your killer instinct?
Eight thousand two hundred and two (8202) days of unjustified freedom between your crime and your arrest by officers of the Sûreté du Québec. How did you live, Grenon? How could you dare look at her family? How do you dare look at me? I feel only disgust and contempt for your actions on April 28, 2000. You are completely devoid of morality, you are sexually depraved, a murderer, you make me sick.
According to the review panel, the comments were improper but judges are human too.
The Ethical Principles for Judges represent an ideal, offering advice rather than prescribing a code of conduct. After all, judges are human and subject to the same emotional reactions as anyone else, particularly in difficult circumstances.
[I]t is important to recognize that emotions can run high in the courtroom and that judges must retain some degree of freedom to express themselves without being held to an impossible standard of weighing every word.
Private sanction for the judge who lashed out at the younger generation
A different review panel took a slightly harsher approach to Justice Earl Wilson’s conduct. His mistake was adopting a condescending and belittling tone, directing harsh comments at the complainant in a restraining order proceeding:
I can’t get over your generation.
You must have more time on your hands than the rest of us do.
Do something creative, work, read, study something, make something of yourself.
The review panel decided on a “private” resolution, to remind Justice Wilson about the importance of civil communication.
Reprimand for Justice Bégin
You might remember Justice Alain Bégin from the harsh words the Nova Scotia Court of Appeal used when reviewing his conduct:
“The astonishing behaviour of the trial judge in this case requires a salutary reminder of the duty of all judges privileged to hear and decide cases in court” (R. v. K.J.M.J., 2023 NSCA 84). A case where Justice Bégin called an accused a sexual deviant before the trial was finished, then tried to purge his comments from the court record.
“This is a reasonable apprehension of bias case unlike any other” (R. v. Nevin, 2024 NSCA 64). A case where Justice Bégin was so offended by a recusal application that he called his own character witness.
Despite the strongly worded Court of Appeal decisions, a majority of the review committee for Nova Scotia’s Provincial Court judges decided not to send the complaint against Justice Bégin to a full hearing. They based their decision on:
Judge Bégin acknowledging his conduct and showing remorse
Strong support from Justice Bégin’s colleagues, including his Chief Justice
The fact that Justice Bégin has been back to work for several months without any issues
And the revelation that Justice Bégin was suffering from an undiagnosed mental health disorder at the time of his misconduct.
Instead of a full hearing, Justice Bégin agreed to a resolution that includes a reprimand and ongoing treatment.
One member of the review committee penned a strong dissent, saying that a case of this magnitude deserves a full hearing:
[T]he conduct rises to a level which could render the judge incapable of performing the duties of his office on the basis that allowing him to continue in his role would undermine the confidence of the reasonable, dispassionate, and informed public in the justice system. The complaints should be referred to a Hearing Panel to determine whether such a serious sanction is necessary.
[I]t would be more appropriate for a Hearing Panel to determine whether or not Judge Bégin’s medical condition mitigates his conduct. This would require a more rigorous examination of the medical evidence, including the relationship between his medical condition and the specific conduct at issue, and a proper consideration of the intersection between judicial wellness and the public interest.
Reply