Mixed Deck — All LSO BARRISTER Topics Flashcards

What are the rules regarding lawyer advertising and marketing in Ontario?

Answer: Lawyers may market their services but must ensure all communications are truthful, accurate, and not misleading; they cannot make claims of superiority that cannot be verified, guarantee outcomes, or create unjustified expectations

Ontario permits lawyer advertising subject to professional standards. Key rules include: communications must be truthful, accurate, and verifiable; no claims of quality or superiority unless independently verified; no guarantee of results; no creation of unjustified expectations; no exploitation of vulnerable persons; testimonials are permitted but must be genuine and not misleading. The LSO monitors advertising compliance and can take disciplinary action for misleading marketing.

In Ontario, what does the term 'holdback' mean in the context of construction liens?

Answer: A statutory 10% of amounts payable to contractors held back by the owner as a lien fund

Under the Construction Act (Ontario), an owner must hold back 10% of the value of work done as a lien fund available to unpaid contractors and subcontractors.

In Ontario, what is a 'mortgage discharge statement' and when is it obtained?

Answer: A statement from the lender stating the amount required to pay off the mortgage, obtained before closing

A discharge statement (payout statement) confirms the exact amount required to fully pay off and discharge an existing mortgage, necessary to clear title on closing.

Under the Divorce Act (Canada), what is the primary consideration in determining custody and access arrangements?

Answer: The best interests of the child

Section 16(1) of the Divorce Act directs courts to make parenting orders based only on the best interests of the child.

What is the duty of 'civility' in legal practice and what are the consequences of incivility?

Answer: The Rules of Professional Conduct require lawyers to treat all persons involved in the legal process with courtesy, civility, and good faith; incivility can result in costs awards, disciplinary proceedings, and judicial sanctions

Civility is a professional obligation, not merely good manners. The Rules require lawyers to be courteous, civil, and act in good faith with all persons in the legal process — including opposing counsel, parties, witnesses, court staff, and the judiciary. Incivility can result in: costs sanctions from the court, complaints to the LSO, disciplinary proceedings, and damage to the lawyer's reputation. Several Ontario decisions have imposed costs for uncivil conduct.

What is 'judicial review' of government action in Ontario, and under what statute is it sought?

Answer: It is an application to the Ontario Divisional Court under the Judicial Review Procedure Act to challenge the legality, reasonableness, or procedural fairness of administrative decisions and statutory powers

In Ontario, judicial review is typically brought in the Divisional Court under the Judicial Review Procedure Act (JRPA). It allows courts to review the legality, reasonableness, and procedural fairness of decisions made by administrative tribunals, government officials, and other bodies exercising statutory powers. The standard of review (following Vavilov) is presumptively reasonableness, with correctness in limited circumstances. Remedies include certiorari, mandamus, prohibition, and declaration.

What is the role of the Ontario Information and Privacy Commissioner (IPC)?

Answer: An independent officer overseeing compliance with FIPPA, MFIPPA, and PHIPA, resolving access to information appeals, investigating privacy breaches, and issuing binding orders on access and privacy matters

The IPC oversees three statutes: FIPPA (provincial government), MFIPPA (municipalities), and PHIPA (personal health information). Key functions include: resolving access to information appeals (through mediation or binding order), investigating privacy breach complaints, reviewing government compliance, issuing guidance and best practices, and conducting own-initiative investigations. IPC orders are binding and can be enforced in court. The Commissioner is appointed by the Legislature.

What is the 'Statutory Powers Procedure Act' (SPPA) and how does it affect Ontario tribunals?

Answer: It sets minimum procedural requirements for Ontario tribunals exercising statutory powers of decision, including rules about hearings, evidence, notice, disclosure, and the right to counsel, while allowing tribunals to adopt additional procedures

The SPPA establishes baseline procedural requirements for Ontario tribunals that exercise 'statutory powers of decision' — the power to decide the rights, privileges, or interests of a party. It covers: notice requirements, hearing procedures (oral, written, or electronic), evidence rules, the right to counsel or representative, adjournment powers, and reasons for decisions. Individual tribunal enabling statutes may supplement these minimum requirements.

What is the purpose and scope of Ontario's 'Accessibility for Ontarians with Disabilities Act' (AODA)?

Answer: It aims to achieve a fully accessible Ontario by 2025 through mandatory accessibility standards in five areas: customer service, information and communications, employment, transportation, and design of public spaces

The AODA sets a goal of full accessibility by 2025 through five mandatory accessibility standards: (1) customer service; (2) information and communications; (3) employment; (4) transportation; and (5) design of public spaces. It applies to all Ontario organizations (public and private sector, with phased implementation by organization size). Non-compliance can result in significant penalties. The Accessibility Standards Advisory Council advises the government on standard development.

In Ontario, what is a 'survey' and why is it important in a real estate transaction?

Answer: A document showing the boundaries, dimensions, and location of structures on a property, used to confirm the property being purchased matches the title description

An up-to-date survey by an Ontario Land Surveyor confirms the legal boundaries of the property and reveals any encroachments, easements, or structures that may affect title or use.

In Ontario, what is the impact of 'mandatory minimum sentences' and what constitutional challenges have they faced?

Answer: Mandatory minimum sentences have been challenged under section 12 of the Charter (cruel and unusual punishment) and several have been struck down when they result in grossly disproportionate sentences in reasonably foreseeable cases

Several mandatory minimum sentences have been struck down under section 12 of the Charter. The SCC test (R v Nur, 2015) asks whether the minimum sentence would be grossly disproportionate in reasonably foreseeable cases — not just the case before the court. Struck-down minimums include some firearm offences (R v Nur) and sexual offences (R v Lloyd). The debate continues between Parliament's desire for denunciation and the judiciary's protection of proportionality.

What is 'solicitor-client privilege' and how does it differ from 'litigation privilege' in Ontario?

Answer: Solicitor-client privilege protects confidential communications between lawyer and client for the purpose of seeking or giving legal advice (permanent), while litigation privilege protects documents and communications prepared for the dominant purpose of litigation (ends when litigation concludes)

Solicitor-client privilege is a substantive right (near-absolute protection) covering confidential communications between lawyer and client for legal advice. It is permanent and survives the relationship's end and the client's death. Litigation privilege protects documents and communications created for the dominant purpose of existing or contemplated litigation. It is temporary — it ends when the litigation concludes. Both are fundamental to the administration of justice but serve different purposes.

What is the 'Mohan test' for the admissibility of expert evidence in Canadian courts?

Answer: The expert evidence must meet four criteria: relevance, necessity (beyond the knowledge of the trier of fact), absence of an exclusionary rule, and proper qualification of the expert — plus the cost-benefit analysis from White Burgess regarding impartiality and bias

R v Mohan (1994) established four criteria: (1) relevance to an issue in the case; (2) necessity — the evidence must be necessary to assist the trier of fact because it is beyond ordinary knowledge and experience; (3) no exclusionary rule bars its admission; (4) the witness is properly qualified by education, training, or experience. White Burgess (2015) added a threshold requirement of impartiality — the expert must be willing and able to fulfill their duty to the court to provide fair, objective, and non-partisan evidence.

Under Ontario law, what is the principle of 'mitigation' of damages?

Answer: An innocent party must take reasonable steps to minimize their losses after a breach

A plaintiff who has suffered a breach of contract has a duty to mitigate by taking reasonable steps to reduce their loss; failure to mitigate reduces the damages recoverable.

What is the 'duty to accommodate' under Ontario human rights law, and what is its limit?

Answer: Employers, service providers, and housing providers must accommodate individuals protected under the Code to the point of 'undue hardship,' considering cost, health and safety, and other relevant factors

The duty to accommodate requires responding to the needs of individuals protected under the Code (including disability, religion, family status, pregnancy, etc.) up to the point of undue hardship. Undue hardship is assessed based on: cost (quantifiable, related to the specific accommodation), health and safety risks, and other factors relevant to the specific context. The accommodation must be meaningful and respect the individual's dignity. Both the employer and employee share responsibility for the accommodation process.

What is the 'KGB statement' and when can prior inconsistent statements be admitted for their truth in Canadian criminal law?

Answer: Following R v B(KGB), a prior inconsistent statement can be admitted for its truth if it was made under oath or solemn affirmation, was video or audio recorded, and the opposing party has an opportunity to cross-examine the witness at trial

R v B(KGB) (1993) created an exception allowing prior inconsistent statements to be admitted for their truth (not just to impeach credibility) when three conditions of reliability are met: (1) the statement was made under oath, solemn affirmation, or solemn declaration; (2) the statement was videotaped in its entirety; (3) the opposing party has a full opportunity to cross-examine the witness at trial. These conditions provide adequate substitutes for the safeguards of in-court testimony.

Under section 11(b) of the Charter, what are the presumptive ceilings for unreasonable delay established in R v Jordan (2016)?

Answer: 18 months for cases in provincial court and 30 months for cases in superior court (or after a preliminary inquiry)

R v Jordan (2016) established a new framework for section 11(b). Delay exceeding 18 months from charge to actual or anticipated end of trial in provincial court, or 30 months in superior court, is presumptively unreasonable. The Crown can rebut this presumption by showing exceptional circumstances. Below the ceiling, the defence must demonstrate the delay is markedly departed from reasonable.

Which of the following correctly describes the defence of volenti non fit injuria in a negligence claim?

Answer: The plaintiff voluntarily assumed both the physical risk of harm and the legal risk by agreeing to waive any claim against the defendant

Volenti requires proof that the plaintiff voluntarily assumed both the physical risk and the legal risk — that is, that they agreed to relieve the defendant of liability for negligence, which is a high bar.

What is a 'title search' in Ontario real estate transactions used to determine?

Answer: Whether the vendor has good and marketable title free from undisclosed encumbrances

A title search examines the registered title and encumbrances to ensure the vendor can convey good title free from mortgages, liens, and other charges not disclosed in the agreement.

Under the LSO Rules, what does 'acting with integrity' mean for an Ontario lawyer?

Answer: Conducting oneself in a manner that maintains the dignity of the profession, including honesty, trustworthiness, and respect for the rule of law

Integrity requires lawyers to be honest, trustworthy, and to uphold the rule of law and the proper administration of justice in all professional dealings.