Innocence at stake
SCC lets lawyers break privilege. Plus Uber liable for driver misconduct and all the latest legal news.
Dylan Gibbs
February 12, 2026
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Who’s on the hook if a dog burns down your house? A Pennsylvania couple tried to stick Samsung with the bill after their dog jumped on their Samsung stove, turned on the burner, and started a fire.
Samsung had recalled over a million similar stoves, so the couple figured they were in good shape. But according to a judge, unfit for pets doesn't mean unfit for purpose.
— Dylan Gibbs
TODAY'S DOCKET |
Letting lawyers break privilege
Finding peers who get it
Trust account misuse
Care home liability
Busting strikes
STAYING CURRENT
Fisheries minister gets the final say
Mowi Canada v. Canada, 2026 FCA 19
The Federal Court of Appeal upheld a decision not to renew salmon farming licenses in BC's Discovery Islands. Mowi Canada argued the federal minister ignored her own department's risk assessments. But the Court said she was entitled to take a precautionary approach given the "dire" state of wild Pacific salmon — even if that meant disagreeing with internal advice.
[The Minister has] “absolute discretion”, and in exercising that discretion, she is entitled to look beyond the information and advice provided by her department. While the appellant would understandably have preferred that the Minister follow the recommendations of her department, her decision will not be unreasonable simply because she chose otherwise.
Strike busting survives Charter challenge
OPSEU v. Ontario, 2026 ONCA 74
The Ontario Court of Appeal upheld back-to-work legislation that ended a 2017 faculty strike at Ontario's 24 colleges. The Court agreed that ending the strike limited workers' freedom of association under s. 2(d) of the Charter — but found the government was justified in acting to save the academic term for hundreds of thousands of students, especially since it replaced the strike with a neutral interest arbitration process where "no outcomes were off the table."
The application judge engaged with the characteristics of the arbitration model selected and concluded that [the impact of the legislation was] mitigated by the substitution of interest arbitration for strike activity, consistent with the Supreme Court’s guidance. His findings support both his conclusion that Bill 178 was minimally impairing of the Charter right and that its effects were proportionate.
Keeping the house when you can't afford to buy it
Re: Boisvert Estate, 2026 BCSC 195
In the first case applying s. 33 of BC's Wills, Estates and Succession Act, the Court transferred full title of a home to a surviving common-law spouse who couldn't afford to buy out his late partner's children. Rather than forcing a sale or granting a traditional life estate, Justice Hardwick vested ownership in Amies and converted the children's $225,000 interest into a registrable charge against the property, effectively making them secured lenders on their own inheritance.
I am satisfied that an order vesting the Deceased's interest in the Smithers Home in the name of Mr. Amies subject to a registrable charge in favour of the Descendants strikes an appropriate balance between the interests of the parties.
FROM OUR COMMUNITY
It’s peer group meeting season at Inn Laws — a time for each of our 10 peer groups to get together and tackle practice issues. Here's the quick version of how they work.
We match members with 6–8 similarly-situated lawyers — firm owners with firm owners, associates with associates, and so on. Before each quarterly meeting, I check in with every member one-on-one. And using what I learn, I build a themed agenda tailored to the group. The meetings themselves are 90 minutes, facilitated. No presentations, no panels — just real conversations about practice with people who are in the same fight.
What I keep hearing from members is that it's the first time they've had a space where they can talk honestly about things like business development, hiring, burnout, and growth decisions with people who actually get it.
Want a curated peer group? Apply to join.
SPOTLIGHT 🔦
Lawyers need exceptions too
R. v. Fox, 2026 SCC 4
Can a lawyer charged with a crime use client communications to defend themselves — even though solicitor-client privilege belongs to the client? The Supreme Court of Canada just said yes, putting a lawyer-specific twist on the "innocence at stake" privilege exception.
Extra bonus for the criminal lawyers: this decision is a must-read for excluding evidence under section 24(2).
A bit of context: K.G. got picked up for drug trafficking and called defence lawyer Sharon Fox. Five minutes later, Fox called one of her clients, told him K.G. had been under surveillance, and said police were probably working on search warrants.
Police were tapping and recording the client's calls — including the one from Fox. They charged Fox with obstruction, alleging that she coached her client to destroy evidence.
Pre-trial, a judge ruled that Fox's client call had two distinct parts: a non-privileged portion (including the chit-chat about K.G.), followed by a privileged legal advice portion. He ruled that the Crown could use the first part as evidence of the obstruction charge, but that no one — not even Fox — could use the second part.
Fox argued this put her in an impossible position, because the second half of the call would exonerate her.
She also argued that the call stemmed from an unreasonable search and seizure, since police staff didn't respect solicitor-client privilege.
In the lower courts: The trial judge held that without access to the potentially helpful portion of the call, Fox couldn’t get a fair trial. She excluded the call as a remedy and entered an acquittal. If it had just been a matter of overstepping wiretap listeners, the trial judge would have let the evidence in.
The Saskatchewan Court of Appeal went further. The majority agreed that Fox couldn't use the innocence at stake exception and therefore couldn't get a fair trial. They also found that the way police handled the wiretap was problematic enough to throw out the evidence — regardless of Fox’s fair trial rights.
At the SCC: The Court held that the lower courts got the innocence at stake exception wrong. Lawyers can invoke the exception to rely on their clients' privileged communications — as long as there's judicial oversight, minimal impairment of the privilege, and meaningful participation by the client who holds it.
Exempting lawyers from the usual test would actually give them preferential treatment. Case in point: the trial judge threw out the Crown's evidence without ever checking whether the privileged portion would raise a reasonable doubt — something a non-lawyer accused would never get away with.
With the exception available, it was premature to say that Fox couldn’t get a fair trial — she might still be able to access the privileged portion of the call.
But Fox secured her acquittal anyway.
Blasé wiretapping and section 24(2)
Police enlisted civilian monitors to listen to tapped calls. They were supposed to stop listening immediately if a lawyer was on the line. But that's not what happened with the call between Fox and her client.
A monitor heard Fox refer to herself as a lawyer but kept listening for almost four more minutes. The majority called that a serious s. 8 breach — not because the monitor acted in bad faith, but because of what happened after. Nobody told the monitor she'd breached privilege. No reprimand, no remedial training. The monitor even testified — with the benefit of hindsight — that she had never inadvertently listened to a call involving a lawyer.
[I]t should have been obvious to her that she should have stopped listening. The seriousness of this breach was then exacerbated by the failure of the police or the civilian monitoring team to take appropriate remedial action. The breach was treated with a casualness that did not match the occasion…
Room for disagreement: Justice O'Bonsawin (joined by Justice Rowe) dissented on the 24(2) issue and would have ordered a new trial. The dissenters saw the breach as isolated and inadvertent, with protective systems that mostly worked. And in their view, it’s extra important to decide obstruction charges against lawyers on their merits.
Obstruction of justice charges against lawyers threaten public trust and confidence that are essential to the administration of justice. Given that vital role lawyers play in the justice system, society has a significant interest in making sure charges which accuse lawyers of obstructing that same justice system are adjudicated on their merits.
Big picture: Hopefully you’re never in a position to need the innocence at stake exception crafted by this case. But if you do — it’s there.
BY THE NUMBERS 📊
56: The number of residents who died from the COVID-19 outbreak at Maples Personal Care Home in Winnipeg. Manitoba’s Court of King’s Bench recently certified a class action against the care home operator and the Winnipeg Regional Health Authority, alleging they mishandled the pandemic.
$343,335: The amount a Manitoba law firm lost after sending the wrong transit number. Taylor McCaffrey LLP is suing CIBC, arguing the bank should have matched the account name before depositing.
$780,000: The Alberta Law Foundation grant vetoed by Alberta’s Justice Minister. The grant was destined for the Alberta Civil Liberties Research Centre, which relies on the Foundation for 95% of its funding. The Minister said funds should go to "front-line legal services" — but the Research Centre says that priority wasn’t communicated and doesn't appear in the Foundation's statutory mandate. The Research Centre has applied for judicial review of the decision.
MAKING HEADLINES
💻 B.C. launched a province-wide virtual counter for court registry services — anyone can now connect with staff via Microsoft Teams instead of going to a courthouse.
🏳️⚧️ Ontario's Divisional Court ordered a new hearing on whether a walk-in clinic misgendered a trans patient. The Human Rights Tribunal accepted that the misgendering was inadvertent. But according to the Court, that acceptance missed the key question: did the misgendering have an adverse impact, regardless of intent?
💉 Alberta's Human Rights Tribunal reinstated a vaccine mandate complaint against CNRL, ruling that the worker’s objection — an alleged connection between COVID-19 vaccines and fetal cell lines — was tied to a specific religious tenet. That was enough to survive screening, unlike complaints citing general bodily autonomy.
⛰️ We’re still seeing ripple effects from the Cowichan Tribes decision, which held that Aboriginal title can exist on private land. A residents' association filed a constitutional challenge against BC's DRIPA legislation, arguing the Indigenous rights legislation exceeds provincial authority and transfers decision-making to unelected bodies. Separately, another First Nation is claiming Aboriginal title over privately held land, advancing similar arguments to those accepted in the Cowichan decision (which the BC government is appealing).
💰 Sanctioned Russian-born billionaire Igor Makarov is seeking $350 million from Canada at an international investment tribunal after losing two Canadian court challenges to get off the Ukraine-related sanctions list.
THINGS NOT TO DO 😤
Don't use your trust account as a crypto laundromat.
Patrick Glemaud accepted $3.3 million from victims who thought they were buying Manulife GICs — then converted the funds to Ethereum and sent them to an unverified offshore client. Now he knows that’s a quick way to get yourself disbarred.
[He] was at least reckless and/or wilfully blind to fraud. [W]e draw an adverse inference from [his] failure to respond to the police and to the Law Society.
[He also] used his trust account for purposes other than providing legal services [which by itself is improper]. The Licensee’s trust account was simply a conduit by which monies flowed from the victims to the fraudster.
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