Mental fraud

Here we are — the final weekend of summer. One last chance to use planetary positioning as an excuse to avoid work. The fall equinox is the 22nd this year, so don’t let any of those “every year it’s the 21st” truthers talk you out of having fun.

For me, morning mental health jogs turned into a full-blown addiction this summer, so I’ll be spending the equinox running my first 10K race.

— Dylan Gibbs

• Suing for the financial harm of shoddy goods

• Suing for non-financial harm of fraud

• Getting paid after going under

• Defending the wrong clients

• Issuing strike notices

• Activist journalism

STAYING CURRENT 🗞️

1. Shoddy goods

   Kane v. FCA US LLC, 2024 SKCA 86

   Evans v. General Motors, 2024 SKCA 87

The Saskatchewan Court of Appeal tossed two class action lawsuits targeting defective vehicles. The plaintiffs sued for defects that didn’t pose an imminent danger (like leaky coolant and defective fuel tanks), which won’t cut it for a negligence claim.

For anyone interested in expensive but non-life-threatening product defects, Justice Tholl’s reasons have a good primer on pure economic loss.

2. Strike notices
   ILWU Canada v. BCMEA, 2024 FCA 142

The Federal Court of Appeal said unions may need to issue multiple strike notices during a single ongoing labour conflict. One strike notice is good enough if employees pause a strike and head back out. But if they give the employer the impression that their strike pause is a strike stop — they’ll need another notice.

3. Journalism?
   Rebel News v Canada, 2024 FC 1468

According to the Federal Court, the CRA reasonably concluded Rebel News is not a journalism organization. The Court accepted Rebel’s argument that activist journalism is still journalism. But Rebel typically covers a single perspective and reproduces content from other sources — which doesn’t merit preferential tax treatment.

DECISION SPOTLIGHT 🔦

Lies + emotional distress = liability?

Bevan v. Husak, 2024 BCCA 323

Most people associate fraud with money. Embezzlement. Grandparent scams. Overpriced bags of chips that are 80% air. But what about lies that cause mental anguish without denting your wallet? Can you sue for those?

According to the BC Court of Appeal, yes you can.

A bit of context: A mother sued a man she says tricked her into leaving her teenage daughter for a sleepover. Here’s what she alleges:

• The defendant acted like the parent of another teenager, saying he would supervise the two young women overnight.

• The mother couldn’t find her daughter the next day. When she eventually turned up, the daughter explained that the sleepover was a ruse for a night filled with drinking and sexual abuse.

• As a result, the mother suffered insomnia, anxiety, and depression.

The mother sued the defendant for fraudulent misrepresentation. But since her claim didn’t have a financial component, the application judge said it was hopeless.

The Court of Appeal saw it differently: Fraud cases usually involve lost money. But courts have also sided with plaintiffs claiming emotional injuries. Like the plaintiff who said their spouse tricked them into a sham marriage. Or the plaintiff who said a journalist posed as a maid to invade his privacy.

According to the Court of Appeal, since there’s no rule tying fraud claims to cash, the mother at least deserves a trial.

Fraud aside, the mother might also have a viable negligence claim. It would be novel, but the Court said the defendant arguably signed up for a duty of care when he held himself out as a responsible parent. And he arguably should have foreseen that his actions would traumatize the mother.

HEARSAY ROUNDUP

💸 Minden Gross is still trying to collect. The now-defunct firm is going after former clients for millions in unpaid fees. The firm chalks the uncollected revenue up to stubborn clients (who don’t want to pay a firm that no longer operates) and unhelpful partners (who don’t want to collect from clients after bringing them to a new firm). But the firm’s invoicing practices don’t seem to be helping much either.

• As the Globe and Mail reports, some Minden Gross partners routinely waited over a year to charge clients for work. And if you want to tick off clients, late billing is right up there with time entries like: “2.5hrs — Attending to email”.

• Former partners say the invoicing issue was so bad it contributed to the firm’s downfall. The firm reportedly pinched its cash flow by paying partners for hours billed but not collected.

🧑‍⚕️ BC is forcing treatment on people with concurrent addictions and mental health disorders. The plan is to expand the involuntary treatment powers that already exist in the Mental Health Act. But the government won’t elaborate on the specifics until after the provincial election. All we know for now is that the province is adding mental health units to correctional facilities, secure housing facilities, and hospitals across the province.

• If re-elected, Premier David Eby’s government will “clarify” how healthcare professionals can use the Mental Health Act to ensure unwilling patients get necessary care.

• How do the opposing BC Conservatives feel about this issue? Same same, but stronger. Party leader John Rustad said he’ll back his involuntary care legislation with the notwithstanding clause.

🥾 Manitoba NDP gave Mark Wasyliw the boot. The governing party said they removed Wasyliw from their caucus because his business partner represented Peter Nygard. But the NDP probably would have been better off just saying that elected officials shouldn’t run a criminal defence practice in their spare time (which people have long criticized Wasyliw for). Punishing lawyers for representing unsavoury causes is a great way to tick off other lawyers.

This situation reminded me of Queen City Pride’s decision to ban MLT Aikins from its parade earlier this year. The organization took issue with MLT fighting to uphold Saskatchewan’s gender identity policies.

It’s not quite the same, but I’m curious where you land:

THINGS NOT TO DO 😤

The Law Society of Alberta recently found former Alberta Justice Minister Jonathan Denis guilty of misconduct. Where’d he go wrong? As a private lawyer, he acted for opposing parties in a lawsuit and (in a different dispute) threatened regulatory proceedings as leverage.

Two takeaways for you. If a father sends you information about his daughter’s car accident and you agree to represent her — don’t turn around and sue them both after you learn the passenger has a stronger claim. And don’t send demand letters that look like this one:

As a reminder, you also shouldn’t call a 14-year-old girl a “sexually mature young woman”. The Law Society of Ontario’s hearing tribunal called that misconduct back in March. And now we know the punishment — a reprimand.

But don’t expect such a light touch for similar conduct the next time. The tribunal somewhat reluctantly accepted a joint submission:

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