Barrister Mini-Exam A - Questions and Answers

Civil Litigation

1. While vacationing abroad, sixteen-year-old Noah is struck by a car while crossing a street in Ontario. The driver is a Canadian resident. Noah returns home and his parents consult a lawyer to bring a tort claim against the driver. However, the lawyer learns that Noah’s mother, who would typically act as litigation guardian, was driving the car that had dropped Noah off at the location of the accident and may bear partial responsibility.

Given this, which of the following is the most appropriate next step to commence the action?

A) Proceed by naming Noah’s mother as litigation guardian and file the requisite affidavit pursuant to Rule 7.02, notwithstanding the potential for divided interests.

B) Initiate the action in Noah’s name alone, relying on his age and capacity to independently instruct counsel in a tort proceeding.

C) Bring a motion under Rule 7.03(9) requesting that the Office of the Children’s Lawyer be appointed as litigation guardian due to the mother’s conflict of interest.

D) Defer commencement of the claim until Noah reaches the age of majority, thereby avoiding procedural complications relating to guardianship.

Correct Answer: C

Explanation: Because Noah is a minor and his mother has a potential conflict of interest (as a party who may be partially liable), she cannot act as litigation guardian under Rule 7.02(2)(g). A proper person with no adverse interest, such as the Children’s Lawyer, should be appointed through motion under Rule 7.03(9).

2. Colin brings a motion for leave to amend his statement of defence and to add a third party. He files a notice of motion and a motion record six days before the scheduled hearing. He also fails to send a Form 37B confirmation of motion to the registrar or to opposing counsel. On the hearing date, the court refuses to hear the motion and awards costs against Colin.

What is the most accurate legal basis for the court’s decision?

A) The motion was treated as abandoned because the moving party failed to support it with sufficient affidavit material and evidence.

B) The motion could not proceed because the procedural requirements for third party service had not been fully complied with in advance.

C) The motion was deemed abandoned due to the failure to file a timely confirmation with the registrar and serve it on all parties.

D) The registrar lacked the authority to accept or process the motion materials as they did not conform to the required format under the Rules of Civil Procedure.

Correct Answer: C

Explanation: Rule 37.10.1(1) provides that a motion is deemed abandoned if the moving party fails to confirm the motion with the registrar by 2:00 p.m. five days before the hearing. If no confirmation is filed, nor an exception made under 37.10.1(4), the motion shall not be heard.

3. As part of litigation preparation, a disability insurer hires a private investigator to conduct surveillance on a claimant suspected of exaggerating injuries. The investigator records video of the claimant playing tennis at a public park over multiple days. The claimant later alleges that the insurer violated their privacy rights under PIPEDA by failing to obtain consent.

Which of the following best reflects the relevant legal framework under PIPEDA?

A) PIPEDA prohibits any collection of personal information through surveillance unless the individual provides explicit consent in advance.

B) PIPEDA permits non-consensual surveillance where the collection is necessary, proportionate, and falls within a statutory exception such as s. 7(1)(b).

C) PIPEDA does not apply to personal information obtained in public places, including surveillance conducted in outdoor recreational areas.

D) PIPEDA requires that any personal data collected without prior written consent be discarded, regardless of the surveillance purpose or method.

Correct Answer: B

Explanation: Under PIPEDA s. 7(1)(b) and s. 5(3), personal information may be collected without consent if consent would compromise accuracy or availability, and the purpose, such as investigating a breach of an agreement, is reasonable. The collection must also meet proportionality criteria as outlined in Eastmond v. CPR.

4. Martin, a litigator in Toronto, attempts personal service of a statement of claim on a defendant at their last known residential address. The defendant’s spouse opens the door and refuses to summon the defendant. Martin leaves the sealed envelope addressed to the defendant with the spouse and mails a second copy the following day. He then takes no further steps. Five days later, the defendant moves to set aside the service, claiming it was not personally received.

Was service validly effected under the Rules of Civil Procedure?

A) Yes, service was complete on the fifth day after mailing under Rule 16.03(5).

B) No, service on a family member without express consent is invalid under Rule 16.02(1)(a).

C) Yes, provided the spouse was served during a good-faith attempt at personal service.

D) No, because Rule 16.03(5) does not apply to originating process.

Correct Answer: A

Explanation: Rule 16.03(5) allows substitute service at a residence by leaving a copy with an adult household member and mailing another copy on the same or next day. Service is deemed effective five days after mailing. The spouse’s refusal does not invalidate the method if conditions are met.

5. Jacob, a small business owner in Ontario, enters into a contract with a supplier for a bulk order of specialized electronics valued at $120,000. The supplier fails to deliver the goods, resulting in significant financial loss for Jacob. He wishes to sue the supplier for breach of contract and recover damages. To keep costs low and expedite the process, Jacob considers filing the claim in Small Claims Court.

Which of the following statements is most accurate regarding where Jacob can commence his action?

A) The proceeding must be initiated in Small Claims Court, as the Superior Court lacks concurrent jurisdiction over civil claims of this nature.

B) The matter is properly brought before the Divisional Court, as claims surpassing $100,000 fall outside the original jurisdiction of the Superior Court.

C) The claim must be commenced in the Superior Court of Justice because the amount in dispute exceeds the monetary jurisdictional ceiling of $35,000 set for Small Claims Court.

D) The plaintiff may subdivide the claim into several discrete actions in Small Claims Court, provided each individual action does not exceed the statutory limit.

Correct Answer: C

Explanation: The Small Claims Court has a strict monetary jurisdiction limit of $35,000 and cannot hear matters exceeding this, even with the consent of the parties. Jacob's $120,000 claim must be brought in the Superior Court of Justice, which has inherent jurisdiction to hear any civil matter unless jurisdiction is excluded by statute.

6. Sadia, a self-represented plaintiff, issued a statement of claim against a local daycare, alleging that her child had been “mistreated, traumatized, and exposed to abusive conduct that was emotionally damaging.” The claim included the assertion that the conduct was “grossly negligent and illegal” but failed to describe the acts or omissions that constituted such misconduct. The daycare moved under Rule 21.01(1)(b) to strike the claim for disclosing no reasonable cause of action, and alternatively under Rule 25.11 to strike parts of the pleading as vague and prejudicial. Sadia argued that the claim should be liberally construed given her lack of legal training.

What is the proper outcome of the motion?

A) The motion under Rule 25.11 will succeed because the allegations are scandalous, even if the legal basis is unclear.

B) The motion under Rule 21.01(1)(b) will succeed because Sadia failed to plead material facts supporting her claim.

C) Both motions will fail because pleadings are construed generously for self-represented litigants.

D) The motion under Rule 25.11 will succeed only if the allegations include inadmissible evidence.

Correct Answer: B

Explanation: Rule 25.06(1) requires a concise statement of material facts that support the cause of action. Bald assertions of wrongdoing without factual underpinning do not meet the test. The Rule 21.01(1)(b) motion will succeed if no reasonable cause of action is disclosed, regardless of whether the plaintiff is self-represented. The issue is one of legal sufficiency, not leniency.

7. Maria, a property developer, is involved in a dispute over whether a restrictive covenant in a purchase agreement still applies to her newly acquired commercial lot. There is no factual dispute: the relevant documents are filed, and both parties agree on the facts but differ in legal interpretation. Maria’s lawyer believes an application is more efficient than commencing a full action. Opposing counsel argues the court must assess credibility and therefore an action is required.

What is the correct procedural approach for commencing this matter?

A) An action must be brought, as credibility is always a consideration in property disputes.

B) The dispute may need to be brought under the Partition Act if the relief sought pertains to shared interests in land, regardless of whether partition is formally requested.

C) A declaration relating to property rights cannot be obtained by application and must proceed by action due to the potential need for viva voce evidence.

D) An application may be commenced under Rule 14.05(3)(d), as the issue involves contract interpretation.

Correct Answer: D

Explanation: Rule 14.05(3)(d) authorizes an application where the issue involves the interpretation of a contract or other instrument. Since the facts are undisputed and credibility is not in issue, the application route is appropriate.

8. Andrea serves her affidavit of documents listing an expert report in Schedule B, claiming litigation privilege. At trial, she cross-examines the opposing expert using facts found only in that report, but she had not disclosed the contents during discovery nor provided a copy within 90 days before trial. The opposing party objects to the use of the document.

Is Andrea permitted to use the report?

A) Yes, because cross-examination for impeachment falls under Rule 30.09’s exception.

B) Yes, provided that a copy of the report is delivered to opposing counsel prior to the conclusion of final submissions at trial.

C) No, unless Andrea obtains leave of the court under Rule 53.08 to rely on the report despite her failure to disclose it earlier.

 D) No, because once trial has commenced, any attempt to waive litigation privilege is procedurally improper and barred.

Correct Answer: A

Explanation: Rule 30.09 prohibits use of a privileged document at trial unless it is disclosed 90 days before trial or used to impeach testimony. Cross-examination that contradicts prior sworn statements may invoke this exception, allowing use of the document even if privilege is maintained.

9. Noah, a plaintiff in a commercial debt action, files a statement of claim for $125,000 against EcoSys Ltd. EcoSys fails to deliver a statement of defence within the required time. Noah files proof of service and requests the registrar to note EcoSys in default. He also files a requisition requesting default judgment. However, the statement of claim includes a claim for general damages due to reputational harm, in addition to the $125,000 debt.

What is the most accurate outcome?

A) The registrar is authorized to sign default judgment for both the liquidated debt and the unliquidated portion relating to reputational harm, as no defence has been filed.

B) The registrar may sign default judgment for the debt only, and the rest must be determined by a judge.

C) The entirety of the claim, including the liquidated amount, must proceed by way of motion to a judge, as the presence of general damages precludes registrar jurisdiction.

D) The registrar will decline to sign judgment because the claim includes general damages.

Correct Answer: B

Explanation: Under Rule 19.04(1), the registrar may sign default judgment only for debt or liquidated claims. General damages (such as reputational harm) require judicial adjudication under Rule 19.05. Noah may obtain judgment for the debt through the registrar, but must seek judgment on general damages separately by motion to a judge.

10. Rachel, a litigation lawyer, initiates a civil proceeding on behalf of her client, Ms. Chen, against a former business partner. The claim is issued and served. Shortly afterward, Ms. Chen informs Rachel that she never authorized the lawsuit and was unaware it had been commenced. Rachel believed she had implied authority to start the claim, based on preliminary discussions about a potential action. The defendant brings a motion challenging the proceeding on the basis that it was commenced without proper authority.

Which of the following is the most accurate outcome?

A) The proceeding may continue because a lawyer has implied authority to commence proceedings when litigation is discussed.

B) The proceeding may be stayed or dismissed because it was commenced without the client’s explicit authority.

C) The proceeding may continue, but Rachel must seek retroactive approval from the Law Society.

D) The proceeding will be transferred to the Divisional Court to confirm the scope of the lawyer's authority.

Correct Answer: B

Explanation: Under Rule 15.02(4) of the Rules of Civil Procedure, if a proceeding is commenced without client authority, the court may stay or dismiss the proceeding. The lawyer may also be personally liable for costs and possibly for breach of warranty of authority.

11. Jacob, a plaintiff, serves an offer to settle on June 1st, proposing to accept $90,000 inclusive of interest and costs. The defendant does not accept. At trial, held in late October, Jacob is awarded $91,500, including $5,000 in pre-judgment interest. The trial judge declines to award substantial indemnity costs, holding that the offer was not materially better than the judgment.

Did the trial judge make a mistake?

A) No, because when interest is factored in, the judgment was not clearly less favourable than the plaintiff’s offer.

B) Yes, because the offer exceeded the trial award when interest is excluded, triggering Rule 49.10(1) cost consequences.

C) No, because Rule 49.10(1) does not apply where the numerical difference between offer and award is small or immaterial.

D) Yes, because cost consequences under Rule 49.10(1) apply regardless of whether the offer is marginally or substantially better.

Correct Answer: B

Explanation: The comparison under Rule 49.10 must assess what the judgment would have been at the time of the offer, which means excluding interest accrued after the offer. If the plaintiff’s offer exceeded that figure, then the plaintiff is entitled to substantial indemnity costs from the date of the offer unless the court orders otherwise.

12. Janice, a civil litigator, is retained by a client to commence an action against a municipal transit authority for personal injuries suffered in a bus accident. The client provides all information, and Janice prepares a statement of claim to be filed in the Superior Court of Justice. Before doing so, Janice recalls that some claims involving public entities may require advance notice. The incident occurred 13 days prior to her meeting with the client, and no notice has yet been served.

What is Janice’s most appropriate course of action?

A) Serve notice under the Municipal Act, even if the 10-day timeline has expired, and rely on the court's discretion to excuse late notice.

B) Proceed to issue the statement of claim without delay to avoid limitation issues, and serve the municipality with notice at a later time.

C) File the claim directly and dispense with notice altogether, as claims for personal injury do not require statutory notice to a municipality.

D) Hold off on issuing the claim until formal written acknowledgment of liability is received from the municipality’s legal department.

Correct Answer: A

Explanation: Under s. 44(10) of the Municipal Act, 2001, notice must be served within 10 days of the incident for personal injury claims, but late notice may be excused if the court finds that no prejudice resulted and that a reasonable explanation is provided. Janice should act promptly to mitigate risk.

13. Rita commences a civil action in Superior Court in January 2023, claiming $190,000 in unpaid invoices for construction work done on a residential property. She marks her claim as proceeding under Rule 76 and serves it properly. The defendant, a homeowner, files a statement of defence and objects to the use of the simplified procedure, stating in the pleading that the amount in dispute is “effectively higher” due to related damages and asserting that the property’s fair market value exceeds $200,000.

Rita refuses to amend or abandon her claim, arguing the simplified procedure is mandatory. At trial, judgment is granted for $185,000. The defendant seeks costs on a substantial indemnity basis, asserting the case should have proceeded under ordinary procedure.

How should the court deal with costs?

A) The defendant is entitled to substantial indemnity costs because the plaintiff failed to revise her claim after a credible objection to Rule 76 was raised in the pleadings.

B) The plaintiff is entitled to recover ordinary costs on the basis that the defendant’s procedural objection was not accompanied by a formal request for transfer.

C) The plaintiff may recover costs only if she establishes that the Rule 76 monetary and property value thresholds were met at the time of commencement, and that the simplified procedure was properly invoked.

D) The court must award full indemnity costs against the defendant as a deterrent against strategic objections to Rule 76 procedure made in bad faith.

Correct Answer: C

Explanation: Under Rule 76.13(7)–(8), if a defendant objects to Rule 76 based on property value, and the plaintiff proves the fair market value was under $200,000 at commencement, costs on a substantial indemnity basis may be awarded against the defendant. Burden is on the plaintiff.

14. Carter, sued for $500,000 in a shareholder dispute by his former business partner Olivia, files a statement of defence and also wishes to sue Olivia and their mutual accountant, who is not yet a party. He alleges they conspired to misstate financials to the tax authorities and now seeks $750,000 in damages. He includes both Olivia and the accountant as defendants to this new claim.

How should Carter proceed to properly bring this additional claim?

A) Commence a third party claim against Olivia and the accountant on the basis that they were jointly responsible for the alleged wrongdoing.

B) Issue a statement of defence with a crossclaim that names both Olivia and the accountant as jointly liable for the damages alleged.

C) Bring a counterclaim against Olivia and the accountant, as Rule 27.01(2) permits claims against the plaintiff and non-parties in one pleading.

D) File an amended defence that raises the issue of misrepresentation and seek an order to add the accountant as a defendant to the main action.

Correct Answer: C

Explanation: Rule 27.01(2) permits a defendant to bring a counterclaim against the plaintiff and any other person, including a stranger to the action, provided they are a proper party. Since Carter is defending against Olivia and wants to sue both her and the accountant, this is properly framed as a counterclaim. A crossclaim is only between codefendants.

15. Jacqueline is retained to commence an application for a certificate of appointment of estate trustee for the estate of her late uncle. At the time of death, he was temporarily staying with friends in Hamilton due to renovations at his home in Guelph. He maintained his driver’s licence, bank accounts, insurance, and voter registration in Guelph, and had expressed clear intent to return there once repairs were completed. Jacqueline prefers to file in Hamilton due to proximity and lower anticipated processing times.

Where must the application be commenced under the applicable rules?

A) In Hamilton, as that was the deceased’s last place of actual residence prior to death, even if temporary in nature.

B) In Guelph, as that was the deceased’s last fixed place of abode and remained his permanent residence at the time of death.

C) In any jurisdiction in which the deceased owned real or personal property with a sufficient connection to the estate.

D) In any court office chosen by the applicant, with authority to transfer venue later under Rule 13.1.02 if required.

Correct Answer: B

Explanation: Under section 7(1) of the Estates Act and Rule 13.1.01(1), the application must be commenced in the county or district where the deceased had a fixed place of abode at the time of death. Temporary stays, even if prolonged, do not displace an established legal residence. Filing in Hamilton is not proper unless Guelph ceases to meet the criteria of fixed abode.

Case 1

Jin, a software engineer, commenced an action in the Superior Court of Justice against his former employer, GlassKey Technologies Inc., for wrongful dismissal and unpaid bonuses. In response, GlassKey denied the allegations and counterclaimed for breach of fiduciary duty, alleging Jin misappropriated proprietary code. During documentary discovery, GlassKey produced an affidavit of documents listing several internal audit reports in Schedule B, claiming litigation privilege. The descriptions in Schedule B were identical boilerplate phrases: “Internal communications and audit documents prepared in contemplation of litigation.” Jin’s counsel objected, arguing the descriptions lacked sufficient detail to assess the privilege claim. He brought a motion for disclosure. GlassKey opposed the motion, stating that the privilege was evident and no further particulars were required. The motion judge agreed with Jin and ordered GlassKey to provide further particulars of each document in Schedule B. GlassKey is now considering appealing the order.

Questions 16 to 18 refer to Case 1

16. How should the court assess GlassKey’s use of generic Schedule B language in light of its obligation to claim privilege?

A) The Rules allow general references to classes of privileged documents if those documents were prepared after litigation was contemplated.

B) A party may withhold all particulars for privileged documents so long as it marks them “litigation privileged” in Schedule B.

C) The Rules require each privileged document to be individually listed with enough information to permit meaningful assessment of the privilege claim.

D) The validity of a privilege claim may only be challenged after trial, not during discovery.

Correct Answer: C

Explanation: Under Rule 30.03(2) and Forms 30A and 30B, a party claiming privilege must list and describe each document with sufficient specificity to allow opposing counsel and the court to assess whether the privilege is properly claimed. Boilerplate language such as “prepared in contemplation of litigation” fails to meet this requirement. Proper disclosure requires the date, nature of the document, and the role of the parties involved, without revealing the privileged content itself.

17. If GlassKey refuses to comply with the court’s disclosure order and maintains boilerplate descriptions, what procedural response is most consistent with Rule 30.06?

A) The court will automatically strike the affidavit and deem the privilege waived.

B) The matter must be deferred until trial, as courts generally avoid resolving privilege disputes at the discovery stage.

C) The court may permit cross-examination of the deponent or inspect the documents itself to assess the privilege claim.

D) The Rules require Jin to bring a contempt motion before any further remedy may be granted.

Correct Answer: C

Explanation: Rule 30.06 provides the court with several tools when privilege is improperly asserted or relevant documents are omitted. These include ordering the service of a further and better affidavit of documents, permitting cross-examination of the deponent, or conducting an in camera inspection of the documents. The court is not required to defer the issue to trial and may act to ensure compliance at the discovery stage.

18. During oral discovery, Jin’s counsel asks GlassKey’s representative to disclose key factual findings from an internal investigation conducted prior to litigation. GlassKey refuses, citing litigation privilege. What is the most accurate statement of the law?

A) GlassKey is entitled to withhold both the report and its underlying facts if they were obtained in anticipation of litigation.

B) GlassKey must disclose relevant facts even if those facts were learned through a privileged document.

C) Once litigation privilege is claimed, no discovery can proceed on the document’s contents or surrounding events.

D) Privilege entitles GlassKey to refuse all questions that relate to internal investigations.

Correct Answer: B

Explanation: Litigation privilege protects the document itself from production but does not insulate the factual information it contains from being disclosed during oral discovery. Rule 31.06 allows an examining party to obtain all relevant information, even if that information was learned from a privileged source. While GlassKey may refuse to produce the document, it must answer questions about the underlying facts unless those questions would directly reveal privileged communications or legal strategy.

Criminal Law

19. Maria is charged with sexual assault with a weapon, an indictable offence carrying a maximum penalty exceeding 14 years. She elects trial in the Superior Court of Justice and requests a preliminary inquiry. The Crown consents. However, the case involves a co-accused, Peter, who is charged only with simple assault based on the same incident. Maria and Peter were dating at the time and allegedly assaulted the complainant jointly in a domestic dispute. Peter’s charge carries a maximum sentence of less than 14 years. At the hearing, defence counsel for both accused insists that all issues be canvassed together in one preliminary inquiry because of the overlapping facts and witnesses. The justice must determine whether the preliminary inquiry can proceed on both accused jointly.

What is the correct legal outcome?

A) The preliminary inquiry may proceed jointly because both charges are factually related and arise from the same incident.

B) A single preliminary inquiry is mandatory to preserve trial fairness where accused are jointly charged.

C) The preliminary inquiry may proceed only with respect to Maria; there is no jurisdiction to conduct a preliminary inquiry on Peter’s charge because the maximum penalty is less than 14 years.

D) The preliminary inquiry must be bifurcated, and Peter’s charge must be referred back to the Ontario Court of Justice.

Correct Answer: C

Explanation: Under s. 536(4), as amended by Bill C-75, preliminary inquiries are only available for offences punishable by 14 years or more. There is no jurisdiction to conduct a preliminary inquiry for an offence with a lower maximum, even where factually related. While the evidence heard may touch on both charges, the preliminary hearing’s jurisdiction applies only to Maria’s qualifying offence. The justice has no authority to make any rulings on Peter’s count.

20. Adil is charged with assault after allegedly attacking a stranger at a train station. At his first appearance, his behaviour is erratic and he appears confused. The Crown requests a fitness assessment under s. 672.11. Defence counsel objects, saying Adil’s conduct results from recent stress and not a mental disorder. The judge notes that Adil has already disrupted proceedings twice.

What must the court be satisfied of before ordering the assessment?

A) That Adil has a documented history of psychiatric treatment or has previously been found unfit in other proceedings.

B) That both parties agree a fitness concern exists and that a joint request has been made for further psychiatric evaluation.

C) That there are reasonable grounds to believe an assessment is necessary to determine fitness.

D)That the accused is exhibiting behaviour that may endanger himself or others during the court process.

Correct Answer: C

Explanation: Under s. 672.11, the court may order a fitness assessment if it has reasonable grounds to believe that such an order is necessary. The evidentiary basis can come from the accused’s own conduct in court, even without a formal diagnosis.

21. Tyson, a status Indian registered under the Indian Act, is charged with unlawful possession of timber under a provincial forestry statute. The timber was harvested on reserve land for use by his band council in a community construction project. His defence counsel argues that the provincial statute is inapplicable because it infringes upon constitutionally protected Aboriginal rights. The Crown contends the law is of general application and applies ex proprio vigore. The trial judge must determine whether the law is validly applicable in this case.

What is the most appropriate legal approach?

A) Determine whether the legislation can be saved as a reasonable limit under s. 1 of the Charter.

B) Use the Sparrow framework to decide if the law infringes an Aboriginal right and whether it is justified in the circumstances.

C) Determine if the law is of general application and consistent with federal legislation and Aboriginal rights.

D) Examine whether the timber regulations were validly enacted by the local band council with delegated authority.

Correct Answer: C

Explanation: Provincial laws apply to Indigenous persons either directly (ex proprio vigore) or via s. 88 of the Indian Act. However, such laws must not invade exclusive federal jurisdiction, conflict with federal law, or unjustifiably infringe Aboriginal or treaty rights. The trial judge must assess if the law meets these conditions before applying it.

22. Detectives obtain a judicial authorization to install a covert camera on a streetlight overlooking the entrance of an apartment complex suspected to be used for fentanyl trafficking. The camera captures high-resolution footage 24 hours a day for two weeks. The footage identifies multiple people attending briefly and leaving, including the accused. No warrant was sought to intercept communications or to enter the premises. At trial, defence counsel argues that the surveillance amounted to a Charter right breach.

How should the court evaluate the constitutionality of the surveillance?

A) The surveillance is valid because no entry occurred and the accused was in public view.

B) The surveillance is valid if the footage was obtained with judicial authorization and the accused was not specifically targeted.

C) The surveillance is invalid because the accused’s expectation of privacy in the area was unreasonably invaded without sufficient grounds.

D) The surveillance is invalid unless the police obtained consent from the building owner and each subject recorded.

Correct Answer: C

Explanation: Even when surveillance occurs in public or semi-public spaces, the intensity, duration, and technological enhancement of observation can trigger a reasonable expectation of privacy. In R. v. Jarvis, the Supreme Court held that targeted or prolonged observation may amount to a search requiring judicial authorization under s. 8 of the Charter.

23. Troy, a 16-year-old high school student with no prior criminal record, is apprehended by police after he and two friends are caught spray-painting graffiti on the exterior wall of a local middle school. The estimated cost of damage is under $2,000. After interviewing Troy, the officer decides not to lay charges. Instead, Troy is referred to a youth diversion program that includes an apology to the school board, participation in a restorative circle with a teacher representative, and volunteer graffiti removal work. Troy completes the program without incident and receives a letter of successful participation. Eighteen months later, he is charged with breaking and entering. The Crown, in seeking to establish a pattern of behaviour, applies to introduce Troy’s earlier graffiti incident into evidence at trial. Defence objects.

Can the earlier graffiti incident be admitted to prove prior criminal conduct?

A) Yes, because Troy admitted wrongdoing and completed a restorative sanction.

B) Yes, because the record of the diversion program was retained by police.

C) No, because extrajudicial measures are inadmissible to prove prior offending.

D) No, because Troy was under 18 and entitled to absolute privacy protection.

Correct Answer: C

Explanation: The Youth Criminal Justice Act (YCJA) bars the use of extrajudicial measures as evidence of prior offending. Section 10(4) ensures that such informal, non-court measures, like referrals to diversion or restorative justice programs, cannot be used to prove guilt or character in future proceedings. This promotes the rehabilitative intent of youth justice and protects against prejudicial inference from minor past misconduct.

24. Thomas is charged with aggravated assault following a bar fight in which the complainant sustained a fractured jaw. The Crown discloses officer notes, medical reports, and witness statements. A week before the preliminary hearing, defence counsel becomes aware of a video posted online that allegedly shows a different individual landing the punch. The video was never provided to the Crown by the police. The Crown now refuses to disclose it, stating it was never part of the original investigation. Defence seeks to compel disclosure.

What is the correct statement of the law?

A) The defence must track down the video on its own because it was never part of the police file or original disclosure package.

B) The Crown has a duty to obtain and disclose it if the material is relevant and within its control.

C) The Crown may refuse disclosure since the video is already in the public domain and was not gathered through formal channels.

D) The defence must apply under s. 278.3 because the video involves third-party content that was not initially seized by the police.

Correct Answer: B

Explanation: The Crown’s Stinchcombe obligation extends to all relevant, non-privileged information in its possession or control. If the video is relevant and the police can obtain it, the Crown must take reasonable steps to do so and disclose it accordingly.

25. Sabrina was convicted following a judge-alone trial on a charge of trafficking cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act. The evidence included undercover surveillance, intercepted communications, and testimony from a confidential informant. She was sentenced to five years’ imprisonment. Sabrina’s trial counsel filed a notice of appeal 28 days after sentencing, seeking to appeal both the conviction and the sentence. Grounds of appeal include the trial judge’s failure to properly assess the credibility of the informant and an alleged ineffective assistance of counsel regarding the decision not to call a defence witness. Sabrina has been in custody since her conviction. Her appeal has not yet been perfected due to delays in transcript preparation. She applies for bail pending appeal, arguing that her appeal is not frivolous, she poses no flight risk, and her continued detention is not justified in the circumstances.

What must the Court of Appeal consider in deciding whether to grant bail pending appeal?

A) That her detention is unconstitutional due to COVID-related delays.

B) That her appeal raises serious questions and has a strong likelihood of success on the sentence or conviction.

C) That the appeal is not frivolous, she will surrender, and detention is not in the public interest.

D) That she complied with bail before trial and has a stable employment history that supports release.

Correct Answer: C

Explanation: Under s. 679(3) of the Criminal Code, an appellate judge may release an appellant pending the determination of the appeal if three criteria are met: (1) the appeal is not frivolous; (2) the appellant will surrender into custody as required; and (3) detention is not necessary in the public interest. Factors such as prior bail compliance and employment history may support the public interest analysis, but the court must address all three statutory criteria. The merit threshold is low, the appeal need not be likely to succeed, only that it is arguable.

26. Clara, aged 17, is charged with assault causing bodily harm (a hybrid offence under s. 267(b) of the Criminal Code) arising from a schoolyard altercation in Ottawa. The Crown has not yet made an election. Clara’s defence counsel brings a motion to transfer the matter to adult court, arguing that she turns 18 next month, and the complainant’s injuries justify a more serious proceeding. The Crown insists the case must remain in youth court.

How should the court proceed?

A) The matter must remain in youth court, as Clara was under 18 at the time of the offence.

B) The case must proceed in adult court once the Crown elects to proceed by indictment.

C) The judge may transfer the matter to adult court due to the seriousness of the charge.

D) Youths charged with hybrid offences have no right to be tried in youth court.

Correct Answer: A

Explanation: The Youth Criminal Justice Act (YCJA), s. 14, grants exclusive jurisdiction to the youth court over any offence committed while the person was a young person. Age at the time of the offence is determinative, not at trial.

27. Jonathan is charged with robbery after allegedly participating in a group assault and theft in a parking garage. He has elected trial in the Superior Court of Justice with a jury. The Crown alleges that Jonathan coordinated the assault and used his car to block the complainant’s escape. Jonathan claims mistaken identity. During discussions between the parties, Crown and defence counsel disagree about the admissibility of certain surveillance footage, the qualifications of an expert witness, and whether additional voir dires will be needed. The Crown wishes to resolve these issues before empanelling the jury and proposes a judicial pretrial.

Defence counsel resists, arguing that the case is straightforward and a pretrial is unnecessary. The judge must determine whether a pretrial conference is procedurally required.

Which statement is accurate under the Criminal Code?

A) The trial may proceed to jury selection immediately because both parties have received full disclosure and are ready to proceed.

B) A judicial pretrial is mandatory because the matter will be tried by judge and jury, and the purpose is to promote efficiency and resolve outstanding legal issues.

C) The judge may waive the pretrial conference if the Crown files a notice indicating no disputes exist.

D) The matter must be transferred to a case management judge before a jury trial may proceed.

Correct Answer: B

Explanation: Under s. 625.1 of the Criminal Code, a judicial pretrial (JPT) is mandatory for all criminal proceedings where the accused is to be tried by a judge and jury. The pretrial serves to clarify issues, encourage early resolution of motions, reduce court time, and manage the conduct of complex proceedings. The requirement applies even where parties are otherwise ready, and courts will not bypass this step in jury trials.

28. Nadia is on trial for assault causing bodily harm. Her spouse, Leo, witnessed the entire incident. The Crown wishes to call Leo as a witness for the prosecution. Leo tells the prosecutor privately that he is unwilling to testify but acknowledges he has important evidence to give. The Crown issues a subpoena and seeks to compel Leo's testimony. Nadia objects, arguing that Leo cannot be forced to give evidence against her, citing marital privilege.

What is the correct outcome?

A) Leo is not permitted to testify against his spouse and may not be compelled to attend court as a witness.

B) Leo may testify for the Crown, but only if he provides written consent waiving his spousal privilege under the Evidence Act.

C) Leo is competent and compellable, but he may refuse to disclose marital communications protected under s. 4(3) of the CEA.

D) Leo can be forced to testify about all matters, including marital conversations, because privilege does not apply in violent crime cases.

Correct Answer: C

Explanation: Under s. 4(1) of the Canada Evidence Act, spouses are competent and compellable for either party. However, s. 4(3) protects marital communications made during the marriage. This privilege belongs to the spouse witness and may be waived by that spouse. Leo can be compelled to testify about what he saw, but not about confidential communications unless he waives that protection.

29. Victor is arrested without a warrant for an indictable offence not listed under s. 469. The arresting officer believes Victor will attend court and is not a threat to public safety but decides to hold him overnight "to ensure a thorough background check is completed." Victor is brought before a justice 36 hours after arrest. At the bail hearing, defence argues that the delay in bringing Victor before a justice violated his Charter rights.

How should the court address this argument?

A) The delay is justified if police officers had a legitimate investigative purpose for continued detention that related to court readiness or risk assessment.

B) The delay is acceptable if no bail hearing occurred during the weekend.

C) The delay violates Victor’s rights because he must be brought before a justice within 24 hours or as soon as possible thereafter.

 D) The delay is permitted where the accused did not affirmatively assert the right to a bail hearing or object to continued detention by police.

Correct Answer: C

Explanation: Under s. 503(1) of the Criminal Code, the police are under a mandatory duty to bring an accused before a justice within 24 hours or as soon as possible if no justice is available. A delay beyond this window without justification may violate ss. 7, 9, and 11(e) of the Charter, as established in R. v. Reilly.

30. Carla, a 34-year-old administrative assistant with no prior criminal record, is convicted of criminal harassment under s. 264(1) after a protracted campaign of obsessive behaviour toward her ex-boyfriend following the breakdown of their two-year relationship. Over a six-week period, Carla sent more than 300 text messages, left several voicemails per day, and showed up uninvited outside his apartment on three occasions and at his workplace twice. The complainant did not suffer physical harm but provided a victim impact statement describing sleep disruption, workplace embarrassment, and persistent fear. Carla was arrested without incident, ceased all communication after release, and voluntarily entered counselling. She entered a guilty plea at the earliest opportunity and has continued therapy for over three months at the time of sentencing. The Crown seeks a conditional sentence with electronic monitoring, citing the cumulative psychological harm and need for deterrence. Defence proposes a conditional discharge, emphasizing Carla’s remorse, compliance, and low risk of reoffending.

What is the most appropriate sentencing outcome?

A) A conditional discharge with counselling and a restraining order.

B) A suspended sentence with probation and strict no-contact terms.

C) A conditional sentence with curfew, house arrest, and mandatory therapy.

D) A fine and peace bond because the behaviour did not involve violence.

Correct Answer: C

Explanation: Despite Carla’s lack of prior record, genuine remorse, and demonstrated rehabilitation, the seriousness of her conduct, involving repeated unwanted contact and psychological harm to the victim, requires a more significant response than a discharge or suspended sentence. A conditional sentence allows for denunciation and deterrence while facilitating continued therapy and rehabilitation under structured community supervision. The case does not rise to the level of requiring incarceration, but also does not support the leniency of a discharge.

31. Atif is charged with aggravated assault and elects trial in the Superior Court of Justice. The Crown discloses several pieces of physical evidence, including a blood-stained hoodie seized at the scene. Atif’s lawyer wants to test the hoodie for DNA through an independent expert and seeks an order under s. 605 of the Criminal Code. The Crown refuses informal release, and the defence files a formal motion. The trial is scheduled in 3 weeks. The defence serves affidavits from counsel and the expert describing the nature and duration of testing, its relevance to the defence, and measures to preserve the exhibit.

What must the court be satisfied of before granting the motion?

A) That the proposed testing can be completed within the available court schedule and will not delay the commencement of trial.

B) That there is an air of reality to the contention that the examination is likely to support a defence.

C) That both the Crown and defence agree to the testing and that the absence of testing would result in trial unfairness.

D) That the expert can complete testing before disclosure obligations are triggered.

Correct Answer: B

Explanation: A s. 605 application will be granted where there is an air of reality to the contention that the exhibit testing is likely to support a defence. The defence must file affidavits showing the relevance, significance, and safeguards for testing.

Case 2

Farhan is charged with aggravated assault and sexual assault with a weapon after an incident at a nightclub in Toronto. He elects trial in the Superior Court of Justice and requests a preliminary inquiry, which is available due to the severity of the charges. At the preliminary hearing, the Crown seeks to introduce a recorded statement by the complainant under s. 540(7) of the Criminal Code, arguing the witness is too traumatized to testify in full. Farhan’s counsel objects, asserting that he needs a full cross-examination to assess credibility. The justice permits admission of the recorded statement but limits cross-examination to avoid re-traumatizing the complainant. Later, Farhan’s counsel files a pre-trial application under s. 24(2) of the Charter to exclude the recorded statement at trial, arguing the limitations imposed violated his client’s right to make full answer and defence.

Questions 32 to 34 refer to Case 2

32. How should the justice have approached the Crown’s request to introduce the complainant’s recorded statement at the preliminary inquiry?

A) A recorded statement may be admitted only if the complainant is unavailable or refuses to testify.

B) The justice must determine whether the evidence is credible and trustworthy and whether proper notice has been provided to the defence.

C) Admission is automatic for any prior consistent statement of a complainant in a sexual assault proceeding.

D) Recorded statements are admissible only if the defence consents and the Crown waives privilege.

Correct Answer: B

Explanation: Under s. 540(7) of the Criminal Code, a justice may admit otherwise inadmissible evidence such as a recorded statement at a preliminary inquiry if it is “credible and trustworthy” and proper notice has been given. The justice must be satisfied that the evidence meets this standard. Admission is not automatic nor limited to cases where the witness is absent. The defence must have an opportunity to challenge the reliability and use of such evidence.

33. In limiting Farhan’s counsel’s cross-examination of the complainant at the preliminary inquiry, which of the following legal principles was most relevant?

A) Although s. 540(1)(a) guarantees the accused a full cross-examination, the justice may limit it where doing so promotes trial efficiency and protects vulnerable witnesses.

B) A justice may only restrict cross-examination on consent of both parties.

C) Cross-examination at a preliminary hearing must be full and detailed, but it can be curtailed where it becomes abusive, repetitive, or contrary to the administration of justice.

D) The complainant has an absolute right not to be cross-examined under s. 540(1)(a) if traumatized.

Correct Answer: C

Explanation: Section 540(1)(a) provides that the accused or their counsel has the right to a full and detailed cross-examination at a preliminary inquiry. However, s. 537(1.1) authorizes the presiding justice to make rulings to curtail cross-examinations that are abusive, unduly repetitive, or inconsistent with the proper administration of justice. This balances the accused’s rights with the need to protect vulnerable witnesses.

34. In deciding whether to exclude the recorded statement at trial under s. 24(2) of the Charter, which factor would the trial judge most likely find decisive?

A) The recorded statement was admitted pursuant to s. 540(7) at the preliminary inquiry, and the statutory basis for admission governs its admissibility at trial unless the defence establishes a procedural breach.

B) The failure to conduct a voir dire at the preliminary hearing renders the statement presumptively inadmissible unless cured by the Crown at trial.

C) Any unjustified restriction on the accused’s ability to cross-examine the complainant at the preliminary inquiry may constitute a Charter breach serious enough to warrant exclusion of the evidence.

D) Because preliminary inquiries are not conducted by a court of competent jurisdiction, any evidence introduced at that stage must be excluded unless reintroduced through viva voce testimony.

Correct Answer: C

Explanation: Under s. 24(2) of the Charter, the trial judge must determine whether the admission of the impugned evidence would bring the administration of justice into disrepute. If the accused’s right to make full answer and defence was significantly impaired by unjustified limits on cross-examination at the preliminary inquiry, the use of that evidence at trial may violate principles of fundamental justice under ss. 7 and 11(d) of the Charter. The fact that the evidence was admitted under s. 540(7) does not preclude Charter scrutiny at trial. The court will consider the seriousness of the breach, its impact on trial fairness, and the broader repute of the justice system.

 

Family Law

35. Thomas and Julia divorced in 2020. Their 16-year-old daughter, Fiona, resides full-time with Julia. Thomas is employed full-time and earns $85,000 annually. Julia applies for child support based on the Federal Child Support Guidelines, requesting the Table amount and a contribution toward Fiona’s tutoring and therapy costs. Thomas argues that his parenting role should reduce his child support, citing the time he spends with Fiona every other weekend and on statutory holidays.

How will the court likely assess Thomas’s obligation under the Guidelines?

A) The Table amount does not apply where the payor has any parenting time.

B) The court will apply a 50% reduction for shared access.

C) The Table amount will apply because Fiona resides primarily with Julia.

D) The court will require Julia to prove financial need before ordering support.

Correct Answer: C

Explanation: Under s. 3 of the Guidelines, where a child resides with one parent for more than 60% of the time, the other parent must pay the full Table amount. The fact that Thomas has parenting time on alternate weekends and holidays does not meet the shared parenting threshold (40%) under s. 9. The court will apply the Table amount and may also consider s. 7 expenses.

36. Denise finalized her divorce in 2022. The separation agreement, negotiated through counsel, requires her former spouse, Aaron, to pay her $2,000 per month in support. The agreement, however, refers only to “support obligations” without specifying whether the payments are for spousal or child support. No allocation clause is included, and there is no reference to the Income Tax Act. Aaron has been deducting the full amount from his income as spousal support. Denise, acting on the same assumption, reported the full amount as taxable income in 2022. When she is reassessed by the CRA in 2023, the agency removes the amount from her taxable income and denies Aaron’s deduction.

Why did the CRA disallow both parties’ tax treatment of the support?

A) Because Aaron failed to apply for a deduction certificate and remit tax from each monthly payment.

B) Because the agreement failed to allocate the support between spousal and child amounts, resulting in the full amount being deemed child support.

C) Because the payments were made informally and not enforced through the Family Responsibility Office or a registered support order.

D) Because Denise did not attach the required CRA documentation confirming her consent to claim the support as taxable income.

Correct Answer: B

Explanation: Under the Income Tax Act (s. 56.1(4)), if a support agreement or court order provides for both spousal and child support but does not allocate specific amounts to each, then the entire payment is deemed to be child support. This means the recipient cannot include it as income, and the payor cannot deduct it. The CRA requires clear, unambiguous allocation for spousal support to be taxed and deducted. Vague or blanket terms such as “support” are insufficient. This rule reflects a policy choice to prevent misuse of tax benefits through ambiguous drafting and to prioritize the needs of children by treating such payments as non-taxable.

37. Trina and Chris are in a long-term, unmarried relationship. They plan to cohabit next month and wish to clarify their financial rights in case of separation. Trina wants to protect her condo, which she bought independently, and ensure that any support obligations are clearly addressed. Chris agrees and suggests they sign a cohabitation agreement. They draft a document that includes parenting time for Trina’s child from a previous relationship and sign it in front of a mutual friend, who acts as a witness.

What is the legal status of this cohabitation agreement?

A) It is invalid because parenting time was excluded.

B) It is valid in form but unenforceable with respect to parenting time.

C) It is invalid because they are not yet cohabiting.

D) It is enforceable in all respects.

Correct Answer: B

Explanation: Under s. 53 of the Family Law Act (FLA), cohabitation agreements may deal with property and support but not with parenting time or decision-making responsibility. A cohabitation agreement may be made before or during cohabitation, and is valid if in writing, signed, and witnessed. This agreement meets the formal validity requirements, but any provision attempting to restrict parenting time would be unenforceable.

38. Samantha and Jordan married in Ontario in 2014 and separated in January 2022. Samantha continued living in Ontario while Jordan moved to Alberta in mid-2022. In May 2023, Jordan initiated divorce proceedings in Alberta, seeking only a divorce and no corollary relief. In June 2023, Samantha commenced a parallel application in Ontario seeking a divorce and spousal support. Upon learning of the parallel proceedings, both courts were notified. Samantha argues that because her application includes corollary relief and Jordan’s does not, Ontario should have jurisdiction.

Which court has jurisdiction to proceed with the divorce under the Divorce Act?

A) Ontario, because the relief sought includes spousal support, which Alberta has not been asked to determine.

B) Either province may hear the case if both parties consent to transfer or consolidation of proceedings.

C) Alberta, because it is the first jurisdiction where a valid proceeding was commenced and has not been discontinued.

D) Neither province has jurisdiction unless both spouses meet the residency requirements in the same province for at least one year.

Correct Answer: C

Explanation: Section 3(2) of the Divorce Act provides that where divorce proceedings are commenced in more than one court, the court where the first proceeding was started and not discontinued has jurisdiction to the exclusion of the other. The inclusion of corollary relief in a subsequent filing does not alter this rule.

39. Chloe and Marcus are undergoing a high-conflict separation. They have two young children and several unresolved parenting issues. Their lawyers suggest mediation and assist in selecting a qualified family mediator. At the first meeting, the mediator emphasizes that her role is not to impose a decision but to assist the parties in identifying common interests and crafting a voluntary resolution. During one session, Marcus becomes frustrated and accuses the mediator of favouring Chloe by challenging his proposals more rigorously. Chloe later asks whether the mediator has the authority to decide their parenting plan if they reach an impasse.

What is the correct understanding of the mediator’s role?

A) The mediator may impose a final parenting arrangement if the parties are unable to resolve their differences after multiple sessions.

B) The mediator facilitates discussion but does not make binding decisions or offer legal advice.

C) The mediator may render binding decisions if both parties expressly authorize her to do so during the mediation process.

D) The mediator may provide legal opinions and also function as an assessor to guide parenting arrangements.

Correct Answer: B

Explanation: A mediator is a neutral facilitator who assists parties in reaching a voluntary agreement. The mediator has no authority to impose outcomes or provide legal advice, and cannot act as an assessor or decision-maker. The mediator's role is to help parties identify interests and generate settlement options, but ultimate decision-making authority remains with the parties.

40. Elaine and David divorced after a 15-year marriage. During the marriage, Elaine stayed home to raise their children while David pursued his career and built a successful accounting firm. At the time of divorce, David was earning $225,000 annually, while Elaine was unemployed and had no recent work history. Elaine applies for spousal support under the Divorce Act, and David objects, arguing that Elaine should become self-sufficient as quickly as possible.

Which is most accurate with respect to the court’s analysis of Elaine’s entitlement to spousal support?

A) Spousal support must be denied if the recipient spouse fails to pursue job opportunities within a reasonable time.

B) Spousal support is intended to redress economic disadvantages and promote self-sufficiency where reasonable.

C) Spousal support applies only to short-term marriages.

D) Spousal misconduct may disentitle a party from receiving ongoing financial support following a breakdown of the marriage.

Correct Answer: B

Explanation: The court applies the compensatory and needs-based models under s. 15.2 of the Divorce Act. Elaine’s economic disadvantage and role in the family during the marriage are critical. Courts do not impose unrealistic expectations of immediate self-sufficiency but instead promote fairness and economic redress, consistent with Bracklow v. Bracklow.

41. Derrick was ordered to pay both child and spousal support following his divorce. The order was automatically registered with the Family Responsibility Office (FRO). Several months later, Derrick and his ex-spouse agree informally that she will withdraw from FRO enforcement because Derrick wants to make payments directly. They jointly sign a notice of withdrawal and file it with the FRO. After a year, Derrick falls into arrears. His ex-spouse now wants to opt back into FRO enforcement and pursue collection of the missed payments.

Can she return to FRO enforcement and enforce the arrears that accrued during the withdrawal period?

A) No, any support arrears that built up during the withdrawal are considered waived and cannot be enforced later.

B) Only future payments may be enforced after opting back in, not those missed during the opt-out period.

C) Yes, legislative amendments now permit enforcement of arrears even if they accrued during a withdrawal period.

D) Yes, but only if Derrick provides written confirmation that he agrees to retroactive enforcement.

Correct Answer: C

Explanation: The FRO enforces all support orders registered with it. A recipient may opt out by joint consent and later opt back in unilaterally. Although prior case law once held that arrears during the opt-out period could not be enforced, this has been overturned by legislative amendment. The recipient may now pursue all unpaid support through the FRO even if the default occurred during a withdrawal.

42. Danielle and Martin recently separated. Their six-year-old daughter, Ava, lives primarily with Martin, while Danielle has parenting time every other weekend. Martin makes all medical and school-related decisions. Danielle now seeks joint decision-making responsibility, arguing that she has always been involved in Ava’s life and wants to co-parent equally. Martin opposes the request, stating that communication between them is poor, and that they disagree on nearly every major issue.

What principle will the court most likely apply when determining whether joint decision-making is appropriate?

A) That both parents have equal legal rights to participate in major parenting decisions unless a court directs otherwise.

B) That joint decision-making should not be imposed where parents cannot cooperate.

C) That parenting time arrangements automatically determine how major decisions are shared.

D) That a parent’s past behaviour in the relationship determines who should make final decisions for the child.

Correct Answer: B

Explanation: Courts apply the best interests of the child test and will not typically impose joint decision-making where there is ongoing conflict or a demonstrated inability to cooperate. As noted in cases like Kaplanis v. Kaplanis, imposing joint decision-making where parents cannot collaborate may increase hostility and is not in the child’s best interests.

43. A school social worker notices that nine-year-old Aiden frequently arrives at school hungry, unbathed, and without appropriate clothing for the weather. After several months of concerns and two failed attempts at contacting the parents, the social worker calls the local CAS to report suspected neglect. Upon investigation, the CAS finds that the home is in poor condition, Aiden has missed several medical appointments, and he is regularly left home alone at night. The caseworker immediately apprehends Aiden without a warrant and places him in a foster home. The CAS does not bring the matter before the court until six days after apprehension. Aiden’s parents file an objection, arguing that the society acted unlawfully by delaying court involvement.

What procedural requirement governs this situation?

A) The CAS must initiate legal proceedings within 10 days of apprehension, with the timeline extended if holidays fall within that period.

B) The CAS is entitled to delay court proceedings for up to 7 days if a weekend intervenes.

C) The CAS must bring the matter before the court within 5 days of apprehension.

D) There is no statutory time limit, but the court may grant procedural fairness on a case-by-case basis.

Correct Answer: C

Explanation: Under s. 88 of the Child, Youth and Family Services Act (CYFSA) and Rule 33 of the Family Law Rules, a society that apprehends a child without a warrant must bring the matter before the court within five days of apprehension. This is a strict rule designed to limit the duration of non-judicial state custody and ensure that removal from a family is subject to prompt judicial oversight. The CAS in this case failed to meet the deadline, and the delay may result in the child being returned or other procedural consequences.

44. Nicole and Jason are separating after a 12-year marriage. Nicole files an application in the Ontario Superior Court of Justice seeking child support, spousal support, and equalization of net family property. She attaches a Form 13.1 financial statement listing income, assets, and liabilities. However, she does not include copies of her income tax returns or Notices of Assessment for the past three years. The court clerk accepts her filing and schedules a case conference. At the conference, Jason’s lawyer objects and argues that the court should not have accepted the incomplete financial statement.

What does Rule 13 of the Family Law Rules require in this situation?

A) The application is valid as long as Form 13.1 is filed, and the missing income documents can be addressed at the case conference.

B) The court clerk must reject a financial statement that does not include income proof for the last three taxation years or CRA printouts.

C) The judge has discretion to waive the requirement for income proof if the parties agree.

D) The financial statement is acceptable because the assets were fully listed.

Correct Answer: B

Explanation: Rule 13(7) mandates that no financial statement shall be accepted for filing unless it includes the following: (a) proof of the party’s current income, and (b) copies of the party’s Notices of Assessment or Reassessment for the past three taxation years, or a printout of the CRA income and deduction summary if notices are unavailable. The rule is strict and aims to prevent strategic delay and concealment. The clerk’s acceptance of the deficient materials was improper, and Nicole’s failure to file complete income documentation may delay proceedings or result in cost consequences.

45. Jordan and Priya were married in 2016 and separated in April 2023. Prior to marriage, Jordan owned a downtown Toronto condo valued at $500,000 with a mortgage of $400,000. The parties moved into the condo immediately after the wedding and lived there together throughout their seven-year marriage. By the time of separation, the condo had increased in value to $950,000 and the mortgage had been fully paid off using joint income. Jordan claims that the $100,000 in equity he brought into the marriage should be deducted from his net family property for equalization purposes. Priya disputes this, arguing that the condo was their matrimonial home.

How will the property be treated for equalization purposes under Ontario law?

A) Jordan is entitled to subtract the $100,000 he owned in equity on the date of marriage, regardless of the home’s later use.

B) Jordan receives a deduction equal to his mortgage payments made before marriage.

C) Jordan is not entitled to any date-of-marriage deduction because the property became the matrimonial home.

D) Jordan can only claim a deduction for pre-marriage contributions if Priya agrees in writing or waives her rights to the property.

Correct Answer: C

Explanation: Under s. 4(1) of the Family Law Act, while most property owned at the date of marriage is deductible from a spouse’s net family property, this does not apply to a matrimonial home. If a property brought into the marriage is the matrimonial home on the date of separation (valuation date), then no deduction for the pre-marriage equity is permitted. Because Jordan’s condo was the couple’s matrimonial home throughout the marriage, he cannot claim any deduction for the $100,000 premarital equity.

46. Melissa tells her lawyer that she has endured years of verbal and physical abuse by her spouse, including episodes of forced confinement and financial control. She is now ready to separate but is unsure about the risks involved. The lawyer conducts a preliminary intake interview and begins asking specific, targeted questions to understand the pattern of abuse. Melissa hesitates to provide details, downplays the severity, and admits she never called the police.

What should the lawyer do to properly assess the situation?

A) Respect the client’s silence and proceed only with the facts already disclosed.

B) Delay further questions until formal proceedings have begun and court protections are in place.

C) Use detailed questioning and possibly screening tools to assess risk and support needs, recognizing that victims may minimize abuse.

D) Recommend counselling and pause legal action until the client is emotionally ready to engage.

Correct Answer: C

Explanation: Victims of abuse often minimize or normalize the violence due to fear, shame, or long-term exposure. Lawyers must use specific, careful questioning and may employ screening tools to assess immediate and potential risks. This process builds trust and helps determine appropriate legal action, including safety planning and emergency relief.

47. Karen and Julie were in a relationship for 14 years. They never lived together full-time, maintaining separate homes in Toronto and Oakville. However, they vacationed together, shared financial resources, had sexual exclusivity, and presented publicly as a couple. They frequently stayed together at cottages and a jointly owned Florida condo. Upon separation, Karen claims spousal support under the Family Law Act, and Julie disputes the claim on the basis that they never shared a permanent residence.

How will the court likely assess whether the parties were cohabiting for the purpose of a support claim?

A) The court will deny support unless the parties maintained a single primary household for a continuous period.

B) The court will assess the totality of the relationship, and shared residence is not determinative.

C) The court will deny support if the parties maintained independent living arrangements during weekdays.

D) The court will consider the claim under the Divorce Act instead of the Family Law Act due to their shared ownership of a secondary property.

Correct Answer: B

Explanation: In Climans v. Latner, the Ontario Court of Appeal confirmed that cohabitation does not require shared residence. The court applies the Molodowich factors, examining shelter, sexual behavior, services, social and societal presentation, support, and children. A holistic analysis determines whether a conjugal relationship exists under the FLA.

48. Monica is a newly retained family lawyer working in a solo practice. Late one afternoon, she receives a voicemail from a woman in distress who states she has just separated from her spouse, who allegedly removed the children from their school and refuses to disclose their whereabouts. The woman urgently asks for legal advice and pleads with Monica to call her back immediately. Monica has never met the caller before, and no formal retainer has been signed. She considers whether she can offer immediate legal direction over the phone to assist the woman in the moment.

What is the most appropriate step Monica should take in response to this situation?

A) Return the call and provide general information about family law rights and remedies to help calm the caller.

B) Document the caller’s message and provide initial guidance based on the facts shared, noting that a retainer has not yet been finalized.

C) Politely decline to provide legal advice over the phone and arrange a consultation.

D) Refer the caller to another lawyer in her professional network who may be available to act urgently on short notice.

Correct Answer: C

Explanation: Before giving legal advice, a lawyer must conduct a conflict check, formally retain the client, and ensure they have sufficient information and documentation. Providing legal advice over the phone without a retainer risks breaching ethical rules, creating liability, and acting on incomplete facts. Monica should advise the caller that she cannot give legal advice until a consultation is arranged and proper intake procedures are completed.

Case 3

Malik and Brianna lived together in a conjugal relationship for over eight years but never legally married. They resided in Ontario and jointly raised Brianna’s son, Tyler, who was five when Malik moved in. Malik frequently referred to Tyler as his own and covered most of the household expenses. After their separation, Brianna applied for child support under the Family Law Act. Malik denied any legal responsibility, arguing he was never Tyler’s parent in law. Meanwhile, Brianna’s ex-husband, the biological father of her daughter from an earlier marriage, applied to retroactively reduce his child support based on financial hardship and claimed Brianna failed to disclose her income increase. Separately, Malik brought a cross-application to have himself declared free of any future financial obligation to Tyler.

Questions 49 to 51 refer to Case 3

49. In assessing whether Malik owes a duty of child support to Tyler under Ontario law, which finding would most directly establish liability?

A) Malik contributed financially to Tyler’s upbringing and maintained an ongoing emotional bond even after the relationship ended.

B) Malik showed a settled intention to treat Tyler as part of his family throughout the cohabitation, regardless of legal parentage.

C) Malik provided day-to-day care for Tyler during vacations, holidays, and weekends when Brianna was unavailable.

D) Malik made voluntary payments toward Tyler’s school fees and gifts, but never acted as a legal guardian or signed any official parental documents.

Correct Answer: B

Explanation: Under the Family Law Act, an adult who cohabits with a parent for at least three years and shows a settled intention to treat a child as a member of their family may be found liable for child support. This is a fact-driven inquiry, assessed objectively through consistent parental conduct during the relationship. Formal guardianship or continued contact post-separation is not required to establish liability. The fact that Malik held himself out as a parent and assumed financial and emotional responsibility over time satisfies the statutory threshold.

50. In deciding whether to grant Brianna’s ex-husband a retroactive reduction of child support, which factors will the court weigh?

A) Whether the original child support amount was calculated using outdated income and does not reflect the current table amount.

B) Whether Brianna’s recent increase in income materially changed the financial balance between the parties and reduced her need for support.

C) Whether the payor gave effective notice of the intended variation and can show a credible change in financial circumstances that would have affected the original order.

D) Whether the delay in applying for the reduction was justifiable, and the retroactive adjustment would not create undue hardship for the child or recipient.

Correct Answer: D

Explanation: Courts determining retroactive variation of child support under the Divorce Act or Family Law Act apply the factors in D.B.S. v. S.R.G., including the reason for the delay, the payor’s conduct, the child’s circumstances, and any hardship. 

51. How is the court most likely to respond to Malik’s argument that he has no support obligation because he and Brianna were never married?

A) The argument is valid, as the Family Law Act only permits child support claims against biological or adoptive parents, not common law spouses.

B) The fact that Malik was not married to Brianna is not determinative; his parental conduct and duration of cohabitation may still ground a child support obligation.

C) The absence of legal marriage eliminates support obligations under provincial law, but may allow for a claim in equity if enrichment can be shown.

D) Liability under the Child Support Guidelines applies only to married spouses or those with legal guardianship rights at the time of the application.

Correct Answer: B

Explanation: The Family Law Act applies equally to married and unmarried partners where child support is concerned, provided the applicant can prove the respondent stood in the place of a parent. Courts will examine whether the adult lived with the child’s parent in a conjugal relationship for at least three years and treated the child as a member of their family. The focus is on conduct and relationship dynamics, not on legal status or guardianship. Marriage is not required for a support obligation to arise under provincial law.

 

Public Law

52. Amira appears before a professional discipline tribunal that interprets a provision of its enabling statute in a way that contradicts a clear line of Court of Appeal decisions. Although the tribunal explains its reasoning, it neither acknowledges nor engages with the prior case law. Amira’s counsel seeks judicial review, arguing that the tribunal’s decision is legally inconsistent and undermines uniform application of the law.

What standard of review will the court most likely apply under the Vavilov framework?

A) Reasonableness, because tribunals are entitled to deference when interpreting their enabling legislation, provided they offer transparent reasons.

B) Reasonableness, unless the decision demonstrates procedural unfairness or suggests the tribunal acted in bad faith or with bias.

C) Correctness, because the tribunal’s interpretation conflicts with binding appellate authority, raising a question of legal consistency.

D) Correctness, but only if the provision being interpreted engages constitutional principles or falls outside the tribunal’s statutory expertise.

Correct Answer: B

Explanation: Under Vavilov, courts apply reasonableness when an administrative decision conflicts with binding precedent from higher courts. Tribunals have policy expertise that allows them to depart from established appellate rulings, as long as it is seen as reasonable on review.

53. Daniel, an environmental activist, files numerous access to information requests with multiple Ontario ministries under the Freedom of Information and Protection of Privacy Act (FIPPA), seeking records related to industrial pollution permits. One ministry responds by designating Daniel as a “frivolous or vexatious” requester under s. 10(1)(b), refusing to process further requests unless he obtains prior permission. Daniel challenges this designation at the Information and Privacy Commissioner (IPC) of Ontario, claiming he was never notified of the proposed designation or given a chance to respond.

What standard will the IPC apply in reviewing the ministry’s decision?

A) Whether Daniel’s requests were primarily driven by political or advocacy-related goals inconsistent with the statute’s intended use.

B) Whether Daniel was given an opportunity to respond and whether the ministry showed a pattern of abusive conduct under s. 10(1)(b).

C) Whether the number of requests exceeded the numerical limit for active file processing as prescribed by regulation.

D) Whether Daniel had filed duplicate or substantially similar requests across multiple ministries within a defined time window.

Correct Answer: B

Explanation: Under s. 10(1)(b) of Ontario’s FIPPA, institutions may refuse to process requests that are frivolous or vexatious, but the IPC has set a high bar. The ministry must establish a pattern of conduct that amounts to an abuse of the access process, such as repetitiveness, excessive volume, or evidence of intent to harass. Procedural fairness also requires that the requester be informed of the proposed designation and be given an opportunity to respond before the designation is finalized. A failure to meet either the evidentiary or procedural threshold will likely result in the IPC overturning the ministry’s designation.

54. A public interest law group files a Charter challenge to a new provincial law that restricts access to safe injection sites. The government brings a motion to strike, arguing that the application raises no live controversy and that the applicants lack standing because they are not users of such sites. The applicants respond that their claim raises a serious issue and that they serve vulnerable populations who are directly affected by the law.

How will the court assess whether the applicants have standing to pursue the claim?

A) Standing is available only to individuals directly impacted by the law, such as those who rely personally on the restricted services.

B) Public interest organizations must generally bring constitutional claims alongside a co-applicant with private or direct standing.

C) The applicants may be granted public interest standing if the claim raises a serious issue and they have a genuine interest and reasonable means of bringing it forward.

D) Constitutional litigation does not require a live controversy if the case engages matters of general public concern.

Correct Answer: C

Explanation: The Downtown Eastside test from Canada (AG) v. Downtown Eastside Sex Workers allows public interest standing where: (1) the claim raises a serious justiciable issue, (2) the applicant has a genuine interest in the issue, and (3) the litigation is a reasonable and effective way to bring the issue before the court. The test is flexible, especially in cases involving vulnerable or marginalized populations, and the court will examine whether practical barriers prevent directly affected individuals from litigating.

55. A federal tribunal established to regulate telecommunications issues a decision declaring a provincial licensing scheme to be invalid, citing federal paramountcy and division of powers principles. Its enabling statute contains a privative clause stating that its decisions are “final and binding and not subject to review.” A telecommunications company adversely affected by the decision brings an application for judicial review, asserting that the tribunal had no authority to decide constitutional matters.

What standard of review applies in this case?

A) Reasonableness, since tribunals are presumed to be owed deference in matters within their legislative mandate unless expressly excluded.

B) Unreviewable, because the presence of a strong privative clause shields the tribunal’s decision from judicial interference.

C) Correctness, because constitutional questions require uniform and authoritative judicial answers.

D) Hybrid deference, where the court reviews legal questions with some deference but retains ultimate oversight on constitutional issues.

Correct Answer: C

Explanation: Although Vavilov establishes reasonableness as the default standard of review, correctness applies to constitutional questions, including division of powers issues. Courts must independently assess such matters to ensure consistency in the interpretation and application of the Constitution across Canada. The presence of a privative clause does not prevent judicial oversight in this context. In this case, the tribunal’s attempt to rule on a constitutional division of powers question engages an exception to deference, and the court will substitute its own view of the law if the tribunal’s conclusion is incorrect.

56. Under a new housing safety statute, provincial inspectors are empowered to enter residential units without notice to verify compliance with fire code standards. Inspectors enter Malik’s apartment while he is at work, take photographs, and leave behind a notice of inspection. Malik files a Charter application, alleging the inspection violated his s. 8 rights against unreasonable search and seizure. The province argues the entry was authorized by statute and conducted as part of a routine regulatory inspection, not a criminal investigation.

What is the likely outcome under s. 8 of the Charter?

A) The inspection was reasonable because it was part of a legislatively authorized administrative process unrelated to enforcement of criminal law.

B) The statutory authority for regulatory entry removes the need for prior judicial oversight, making the search constitutionally valid.

C) The home is entitled to a high expectation of privacy, and warrantless regulatory entry is presumptively unreasonable unless justified by clear statutory safeguards or exigent circumstances.

D) The inspector’s good faith belief that entry was allowed is sufficient to render the search reasonable.

Correct Answer: C

Explanation: Section 8 of the Charter protects against unreasonable search and seizure, with the greatest expectation of privacy in the home. Even in regulatory contexts, courts have held that warrantless entry into a private residence is presumptively unconstitutional, unless supported by strong justifications such as urgency, consent, or judicial authorization. In Hunter v. Southam and subsequent cases, the Supreme Court has made clear that statutory authorization alone does not override Charter rights. Malik’s apartment, as a private dwelling, attracts full s. 8 protection, and the inspection likely constituted an unreasonable search.

57. A provincial government asserts legislative authority to regulate moose hunting on unceded territory claimed by the Algonquin Nation, arguing that provincial laws of general application apply equally to all residents. The Nation argues that moose hunting is central to their culture and livelihood and that the new limits will make subsistence hunting impossible. The legislation does not mention Aboriginal rights and applies identically to Indigenous and non-Indigenous persons.

How will the court analyze the applicability of provincial law in the face of a s. 35 claim?

A) Provincial laws that apply equally to all residents are constitutionally valid unless found to be intentionally discriminatory.

B) Under the Sparrow framework, the court will assess whether the legislation infringes an existing Aboriginal right and, if so, whether the Crown can justify the infringement.

C) Section 35 automatically nullifies provincial laws.

D) A claim under s. 35 cannot proceed until the Nation has proven full Aboriginal title over the affected territory.

Correct Answer: B

Explanation: S. 35 rights are not absolute and may be subject to valid legislative limits, but only if the Sparrow justification test is satisfied. Even laws of general application can infringe Aboriginal rights if they significantly interfere with a constitutionally protected practice. The Crown must show that the infringement serves a compelling and substantial objective (e.g., conservation) and that the means are minimally impairing, respectful of the honour of the Crown, and based on consultation. Courts assess impact, not just intent.

58. Sophia receives a decision from a provincial licensing tribunal that revokes her professional certification. The tribunal had received new written submissions from the opposing party two days before the final hearing, which were not disclosed to Sophia or her counsel. When the adjudicator issued the decision, it relied heavily on the late submissions. Sophia’s lawyer files a request for reconsideration but is denied. She now considers seeking judicial review of the decision.

What is the most appropriate legal basis for challenging the tribunal’s decision on judicial review?

A) The tribunal failed to comply with its statutory reporting obligation by not filing the decision and supporting materials with the Minister.

B) A tribunal may rely on new written submissions where the content supports its final conclusions and no new facts are introduced.

C) In professional discipline matters, an inquisitorial process is preferred and permits receipt of evidence without full party disclosure.

D) The tribunal breached procedural fairness by relying on undisclosed submissions, denying Sophia the opportunity to respond.

Correct Answer: D

Explanation: A fundamental requirement of procedural fairness is that a party be allowed to know and respond to the case against them. If a tribunal receives submissions or evidence without disclosure to the opposing party and then relies on that material in reaching its decision, it breaches this principle. The failure to give Sophia an opportunity to review and respond to the late documents tainted the proceeding. Judicial review is the appropriate remedy, and the court would likely find that the hearing was procedurally unfair and the decision invalid.

59. Parliament enacts the National Agricultural Sustainability Act, which sets nationwide soil management standards for all farms exceeding 50 hectares. The Act applies regardless of provincial farming regulations. Saskatchewan challenges the law, arguing that agriculture is a provincial matter under s. 92(13) (property and civil rights) and s. 95 (agriculture). The federal government defends the law under its residual power to legislate for the peace, order, and good government (POGG) of Canada.

What test will the court apply to determine the law’s validity, and what is the likely outcome?

A) The double aspect doctrine will govern because agriculture is a shared head of power, and the law will be struck down for intruding on provincial autonomy.

B) The ancillary powers doctrine will be applied to assess whether the federal law is necessarily linked to another valid federal scheme.

C) The pith and substance doctrine will apply, and the law may be upheld under POGG if the issue is of national concern.

D) The paramountcy doctrine will be used to resolve the conflict, favouring the federal law where inconsistency with provincial standards exists.

Correct Answer: C

Explanation: The court will use the pith and substance doctrine to assess the law’s dominant purpose and effect. Although agriculture is a shared jurisdiction under s. 95, the national concern branch of the POGG power allows Parliament to regulate matters that transcend provincial boundaries and require uniform national treatment. If the court finds that soil degradation is a matter of national concern (due to environmental or food security risks), the law may be upheld as intra vires federal jurisdiction.

60. The federal government passes a statute permitting the public health minister to detain individuals exposed to contagious diseases without a warrant. Jordan is detained for 14 days without judicial oversight after contact with a sick traveller. He brings a Charter claim under s. 9 (arbitrary detention) and s. 7 (liberty and fundamental justice), arguing that the detention lacks procedural safeguards. The government argues that the public health risk justifies the measure and that judicial review is available afterwards.

How will the court likely analyze the measure under the Charter?

A) The court will evaluate whether the detention is arbitrary under s. 9 and whether it complies with the principles of fundamental justice under s. 7.

B) The court will accept the limitation on liberty as justified by the broader legislative purpose of protecting public health during a time-sensitive outbreak.

C) The court will treat the matter as non-justiciable and defer to legislative and executive branches on public health responses.

D) The court will assess the medical basis of the detention but will not apply Charter scrutiny to time-limited public health measures.

Correct Answer: A

Explanation: The court will assess s. 9 to determine if the detention was arbitrary, meaning that it was unreasonable, capricious, or lacking lawful authority. Under s. 7, the court will examine whether the deprivation of liberty is in accordance with the principles of fundamental justice, such as procedural fairness and proportionality. Even in emergency contexts, Charter rights apply, and any infringements must be demonstrably justified under s. 1. Judicial review and notice requirements are crucial in determining compliance.

61. A tribunal dealing with licensing for security guards issues a blanket policy refusing to consider applications from individuals with any criminal history, regardless of the nature or age of the offence. A former applicant challenges the policy after being denied a license for a conviction from 25 years ago. The tribunal did not consider his individual circumstances, relying solely on its policy.

What is the legal flaw in the tribunal’s approach?

A) The tribunal relied on a policy that was not formally approved by the responsible Minister under its enabling statute.

B) The applicant was denied a statutory right to appeal the refusal of his license application to a higher decision-making body.

C) The tribunal fettered its discretion by applying a rigid policy without considering individual facts.

D) The tribunal failed to comply with the sentencing and pardon provisions outlined in the Criminal Code.

Correct Answer: C

Explanation: Tribunals must exercise their discretion individually and contextually. A rigid, blanket policy that does not allow for case-by-case assessment is a form of fettering discretion, which is unlawful. Even where internal policies guide decision-making, they must not replace the statutory obligation to consider each case on its own merits.

62. A municipal bylaw passed under provincial authority requires all political posters to be pre-approved by a city committee before being displayed in public spaces. A federal political party challenges the bylaw, alleging that it violates federal jurisdiction over elections and national democratic discourse. The city argues that the bylaw is content-neutral and meant to regulate litter and aesthetics.

Which constitutional principle will the court consider most heavily in reviewing the bylaw?

A) Whether the structure and role of municipal councils are addressed explicitly in the Constitution Act, 1867 or later amendments.

B) Whether the regulation serves a valid purpose related to local governance such as environmental design or community cleanliness.

C) Whether the bylaw remains within the scope of municipal authority and is drafted with precision under the enabling provincial statute.

D) Whether the bylaw impairs the federal power over elections or infringes freedom of expression under the Charter.

Correct Answer: D

Explanation: The court will consider both division of powers and Charter implications. Political expression is protected under s. 2(b) of the Charter, and the regulation of federal elections is exclusively within Parliament’s jurisdiction under s. 91(1). A municipal bylaw that impairs these rights may be struck down either for violating federal competence or as an unjustified limit under the Charter, depending on its effect and justification.

Case 4

The Government of Canada passes the Digital Safety and Integrity Act (the Act), which prohibits the operation of any online platform in Canada that does not comply with prescribed federal content moderation standards. These include mandatory filtering of misinformation and algorithmic transparency requirements. The Act creates a federal agency empowered to investigate, fine, and shut down non-compliant platforms, even if those platforms are provincially incorporated and operate solely within one province. The Ontario-based platform Natter files a constitutional application challenging the Act. Natter argues that Parliament lacks jurisdiction, as the Act intrudes on provincial powers over civil rights, and also alleges a breach of freedom of expression under s. 2(b) of the Charter. The Attorney General of Canada submits that the law is valid under the criminal law power and the national concern branch of POGG, and any infringement of expression is justified under s. 1.

Questions 63 to 65 refer to Case 4

63. How should the court determine whether Parliament had constitutional authority to enact the Act?

A) The court should assess the law’s primary effects and apply the principle of double aspect if both orders of government could legislate.

B) The analysis starts by identifying the law’s pith and substance, then classifies it under an enumerated federal power.

C) The court must determine if the federal government had exclusive jurisdiction due to its overarching criminal law mandate.

D) Since the subject matter is new, the national concern test should be used to justify exclusive federal jurisdiction.

Correct Answer: B

Explanation: The correct framework is a pith and substance analysis: the court first identifies the law’s dominant purpose and legal effects, and then classifies the matter under a head of power. Only if the law's true purpose falls within a federal power (e.g., s. 91(27) or POGG) will it be upheld. Other doctrines like double aspect or national concern may assist classification, but they follow the foundational pith and substance inquiry.

64. If the court finds that the Act infringes freedom of expression under s. 2(b) of the Charter, what must the Attorney General of Canada demonstrate to justify the infringement under s. 1?

A) That the objective is pressing and substantial, and the law impairs rights no more than necessary.

B) That the Charter’s guarantee of expression doesn’t extend to digital platforms operated for commercial gain.

C) That there is a federal head of power supporting the legislation and the overall purpose is aligned with public safety.

D) That most democratic countries have similar regulatory laws, so the limitation is consistent with international standards.

Correct Answer: A

Explanation: Under the Oakes test, the government must establish that the law pursues a pressing and substantial objective, and that the measures are proportionate, including minimal impairment of the right. Merely asserting jurisdiction or international consensus is insufficient to satisfy this burden. The analysis is rights-focused and must be evidence-based.

65. What kind of evidence would best support Natter’s s. 2(b) Charter claim?

A) Prior Supreme Court decisions invalidating laws that regulated online content.

B) Hansard excerpts and ministerial statements indicating that the government aimed to reduce “toxic narratives” and “misinformation,” which could reveal an improper 

C) Affidavit evidence from multiple Natter users describing how they reduced their participation on the platform after enforcement began, citing fears of misinterpretation 

D) Empirical data and expert analysis showing that the Act chills lawful expression and suppresses legitimate debate.

Correct Answer: D

Explanation: To prove a Charter breach under s. 2(b), the claimant must provide adjudicative and legislative facts demonstrating the real-world impact of the law on protected expression. Expert reports and social science evidence showing chilling effects or self-censorship are particularly persuasive. Judicial precedent and political statements may help, but without supporting data, they are not sufficient.

Professional Responsibility

66. Andrea, a junior litigator, enters into a referral arrangement with a senior sole practitioner. She agrees to refer all personal injury matters to him in exchange for 20% of the legal fees collected on each case. Over time, the arrangement results in dozens of cases and significant referral fees. However, Andrea never discloses the referral fees to clients, nor does she use the Law Society’s referral agreement form. One client later learns about the arrangement after their matter settles and files a complaint. Andrea responds that the clients were never negatively impacted and that the fee did not increase their overall costs.

What is Andrea’s key professional failing?

A) She failed to formally register the referral arrangement with the Law Society as a best practice.

B) She accepted a referral fee that may exceed reasonable market expectations for such arrangements.

C) She failed to disclose the referral arrangement to the client using the prescribed agreement.

D) She did not report the referral income to the Canada Revenue Agency in accordance with business tax obligations.

Correct Answer: C

Explanation: Under Rule 3.6-6.1 and its commentary, referral fees must be disclosed in writing using the Law Society’s prescribed referral agreement, and the client must be fully informed. Andrea’s failure to do so breaches the fiduciary obligation of transparency, even if the client was not overcharged.

67. Yusuf is asked by a local community organization to provide legal assistance in challenging a municipal by-law. They ask him to prepare a demand letter and explain that they will handle the rest themselves due to limited resources. Yusuf agrees and sends a letter on the organization’s behalf but makes no further inquiries. A month later, the group contacts him again, demanding that he appear at a city council meeting to speak on their behalf. Yusuf refuses, saying he was only retained for the demand letter.

What could Yusuf have done to avoid this confusion?

A) Declined the engagement to eliminate the risk of misunderstanding about his responsibilities.

B) Clearly defined the scope of the limited retainer in writing.

C) Insisted on full-service representation before agreeing to assist with the matter.

D) Advised the client that all further communications would be managed by him personally.

Correct Answer: B

Explanation: Limited scope retainers are permitted, but the lawyer must clearly define in writing the nature and limits of the legal services being provided. This ensures the client understands exactly what the lawyer will and will not do, and prevents any assumption of continuing or broader representation that was never intended.

68. Elaine, a real estate lawyer in a remote community, is the only practitioner within a 100-kilometre radius. She is asked to act for both the buyer and seller in a straightforward title transfer between siblings. She discloses the potential conflict and obtains verbal agreement from both clients. On the closing day, a disagreement arises over whether a credit for repairs was included in the sale price.

What is Elaine required to do now?

A) Attempt to resolve the disagreement based on her notes and communications with both parties, maintaining her joint representation.

B) Continue acting for the buyer and refer the seller to another lawyer, as the buyer retained her first.

C) Withdraw from acting for both parties and recommend they retain separate counsel.

D) Contact the Law Society for instructions before taking any steps to end the retainer.

Correct Answer: C

Explanation: Even where a joint retainer is permitted due to geographical limitations, if a contentious issue arises that cannot be resolved, the lawyer must withdraw from acting for either client under Rule 3.4-9. The conflict prevents continued representation.

69. Ana, a tribunal lawyer, is examining a witness called by her own client during the main hearing. After the morning session, Ana asks the witness to clarify some points for the afternoon, including how to respond to expected cross-examination questions. The opposing party objects, alleging that Ana improperly coached the witness during the break. Ana argues that as the witness’s lawyer, she has the right to ensure the testimony is accurate.

What is Ana permitted to do under the Rules?

A) She may speak freely with the witness outside court unless cross-examination has formally commenced.

B) She may discuss any topics that assist the client, provided she does not encourage dishonesty.

C) She may not discuss any issues covered or anticipated during examination, unless permitted by the tribunal.

D) She may rely on her own discretion regarding contact, so long as the tribunal has not imposed a communication ban.

Correct Answer: C

Explanation: Under Rule 5.4-2, lawyers are restricted in what they may discuss with their own witnesses once testimony has commenced. Communications during breaks must not involve evidence covered or to be covered in examination. Coaching or rehearsing testimony during a proceeding is prohibited.

70. Trina, a lawyer representing a youth client under the YCJA, notices during meetings that the client appears confused, gives contradictory answers, and struggles with abstract legal concepts. Trina suspects a cognitive disability may be affecting the client’s ability to provide clear instructions, but she proceeds with a negotiated guilty plea without further inquiry or accommodations. After sentencing, the client expresses confusion and insists he didn’t understand the implications of the plea.

Which professional duty did Trina most likely breach?

A) She failed to advocate vigorously for a more lenient sentence given the client’s age and vulnerability.

B) She failed to assess and adapt her communication style for a client with potential diminished capacity.

C) She failed to recommend the use of a diversion program prior to entering a plea agreement.

D) She failed to alert the court to relevant client vulnerabilities by disclosing confidential information in the interest of justice.

Correct Answer: B

Explanation: Competent client communication includes recognizing when cognitive or developmental issues may affect a client’s understanding. Trina had a duty to adapt her approach, seek expert input if needed, and ensure that the client was capable of giving informed instructions under Rule 3.2-9 and Rule 3.1-2.

71. Priya, a criminal defence lawyer, concludes a representation after the client accepts a plea deal. She does not send any formal confirmation that the file is closed, nor does she return the client’s original documents. Months later, the client asks for clarification about an appeal and is surprised to learn Priya is no longer representing him. He files a complaint, alleging he was abandoned without notice.

What is Priya’s most significant failure?

A) She failed to file a formal notice of withdrawal with the court upon conclusion of the matter.

B) She failed to provide a disengagement letter and return client property.

C) She should have advised the client to plead not guilty.

D) She failed to obtain court permission to close the file.

Correct Answer: B

Explanation: Lawyers must clearly confirm in writing when a matter is complete and the retainer is terminated. A disengagement letter should summarize the outcome, confirm any future steps, and arrange for the return of client documents to avoid confusion or complaints.

72. Jonas represents a father in a child protection matter involving allegations of neglect. He is approached by the father’s brother, who seeks separate legal advice about potential guardianship if the father loses custody. Jonas considers taking on the brother’s case since they are aligned. However, he is unsure whether doing so would create any issues.

What must Jonas do before agreeing?

A) Accept the retainer without further analysis since the parties currently share the same overall objective.

B) Act only if the brother agrees to proceed under a joint representation agreement with the father.

C) Decline representation outright, as guardianship matters are inherently adversarial and preclude shared counsel.

D) Evaluate whether a conflict could arise and ensure both parties give informed consent.

Correct Answer: D

Explanation: Although the brother and father appear to have aligned goals, their interests may later diverge. Under Rule 3.4-1, the lawyer must assess whether a substantial risk of material impairment exists and obtain informed consent before acting for both parties.

73. Ronald is retained as duty counsel in a bail hearing for an accused charged with domestic assault. While reviewing the disclosure minutes before the hearing, Ronald discovers that his client has an outstanding warrant in another jurisdiction. The client instructs him not to disclose the warrant, fearing it will affect the bail decision. Ronald is unsure whether he is obligated to say anything.

What is the best course of action for Ronald?

A) He must not mislead the court and has a duty to make full disclosure of material facts.

B) He may refrain from disclosure, as the outstanding warrant arises in a different jurisdiction and is not directly related to the current charge.

C) He should seek to disclose the information in a confidential discussion with the Crown, avoiding mention in open court.

D) He may rely on the client’s assurance that the warrant will be addressed and proceed without alerting the court.

Correct Answer: A

Explanation: Duty counsel are officers of the court and must not assist in misleading the court. Ronald’s duty under Rule 5.1-2 includes candour and honesty, particularly in proceedings affecting liberty such as bail.

74. Emma, a junior lawyer at a small civil firm, is leaving to start her own practice. She has conduct of six active files. Her managing partner instructs her not to contact the clients and says the firm will handle reassignment. Emma is concerned that the clients are unaware of her departure and may wish to follow her to her new practice.

What is the most appropriate course of action?

A) Take the files with her and notify each client of her new firm once she has relocated.

B) Cooperate with the firm to ensure clients receive timely notice and have the opportunity to choose their legal representation.

C) Send a general announcement to all firm clients advising them of her departure and inviting them to transfer their files.

D) Contact the court or relevant administrative body to request formal reassignment of files to her new practice.

Correct Answer: B

Explanation: Under Rules 3.7-7A and 3.7-7B, clients must be informed when their lawyer is departing and given the opportunity to decide whether to stay with the firm or retain the departing lawyer. Emma and the firm must work cooperatively to ensure transparency and protect client autonomy.

75. During a public inquiry into government corruption, Leah represents a whistleblower who previously worked in a senior public service role. The media contacts Leah for comment, and she agrees to speak “off the record,” confirming that her client “was the main informant.” The client later denies authorizing the disclosure and files a complaint. Leah argues that the information was bound to come out anyway through testimony.

Which principle did Leah most clearly violate?

A) Duty of candour to the media in ensuring public communication is transparent and accurate.

B) Duty to advance the client’s interests zealously in all legal and reputational matters.

C) Obligation to promote transparency and accountability in public institutions.t.

D) Duty of confidentiality, which continues regardless of context.

Correct Answer: D

Explanation: Lawyers must maintain confidentiality at all times unless express client authorization is provided or disclosure is legally required. Rule 3.3-1 applies even in high-profile or political matters, and Leah’s decision to speak with the media without consent was a clear breach.

76. Jared, a criminal defence lawyer, is representing a young Black man charged with assault. During trial preparation, Jared tells his client to “dress well and avoid looking angry” in court, saying it will help counter “the stereotypes.” The client becomes visibly upset and asks Jared to explain the comment, but Jared brushes it off, insisting he's "just trying to help." When the trial ends, the client files a complaint with the Law Society, asserting that Jared’s remarks were racially offensive and demonstrated a lack of understanding of his lived experience. Jared is surprised and insists he was just giving practical advice.

What is the most accurate assessment of Jared’s conduct?

A) Jared provided reasonable courtroom advice aimed at credibility, consistent with his duty to advocate effectively.

B) Because Jared’s intention was to help, his comments cannot be viewed as discriminatory under professional standards.

C) Jared met his ethical obligations by being candid about courtroom realities and was not required to explain further.

D) Jared’s comments may reflect unconscious bias and a failure of cultural competence.

Correct Answer: D

Explanation: Lawyers must be aware of how implicit bias and unconscious assumptions can affect the lawyer-client relationship. Even well-meaning remarks may reinforce harmful stereotypes or alienate clients. Jared’s failure to understand the impact of his comments demonstrates a lapse in cultural competence and may contravene Rules 2.1-1 and 6.3.

77. Hassan, a defence lawyer, speaks to the spouse of an accused individual while waiting outside the courtroom. The spouse begins to ask procedural questions about the trial, and Hassan offers some general answers. Later, he realizes that the spouse is a potential Crown witness and the subject of a non-contact condition.

What should've Hassan done or not done?

A) He should not have engaged with any individual in the vicinity of the courtroom unless formally introduced.

B) He should not have communicated with a represented individuals on a matter without consent.

C) He should have delegated all communication with opposing witnesses to a licensed paralegal.

D) He should have advised the spouse to contact Crown counsel for any questions relating to the trial process.

Correct Answer: B

Explanation: Under Rule 7.2-6, lawyers must not communicate with a represented party without the consent of that party’s lawyer. Even informal or well-intentioned conversations may breach this rule when they concern matters in dispute.

Case 5

Claire is a sole practitioner in Mississauga who recently hired Jordan, a former paralegal whose licence was revoked two years ago due to misuse of client trust funds. Claire employs Jordan as a file clerk to assist with scanning documents, closing inactive matters, and sorting internal notes. She did not inform the Law Society of his employment, believing that Jordan had no client contact and did not provide legal advice. Occasionally, Claire asks Jordan to draft basic file correspondence for her review, and once sent him to speak with a process server about a court filing. Later, Claire is retained by the defendant in a new civil suit involving a woman named Priya. During the intake conflict check, Jordan mentions that Priya was previously a client of his when he was licensed. Claire does not open a conflict file, does not notify Priya, and proceeds with the retainer. Months later, Priya learns of the conflict and files a complaint with the Law Society. The Law Society launches a dual investigation into Claire’s employment of Jordan and her conflict-checking procedures.

Questions 78 to 80 refer to Case 5

78. Which of the following best describes Claire’s ethical breach in employing Jordan?

A) She failed to register Jordan with the Law Society Tribunal, which is required before employing any disbarred or suspended licensee in a legal support role.

B) The only issue is that Claire failed to clearly label Jordan’s correspondence drafts as “not reviewed,” which misled others into believing he was a licensee.

C) No breach occurred, as Jordan’s tasks were administrative and he did not hold himself out as authorized to practise law.

D) Claire was obligated to seek express Tribunal approval before hiring Jordan, regardless of his duties, because his license had been revoked.

Correct Answer: D

Explanation: Lawyers are strictly prohibited from employing a former licensee whose licence has been revoked or suspended without prior approval from the Law Society Tribunal. This requirement applies even if the individual performs only clerical or back-office duties. Claire’s belief that Jordan’s limited tasks exempted her from this requirement was mistaken, and the failure to obtain approval constitutes a serious breach of her professional obligations.

79. What was Claire’s most significant failure regarding the conflict of interest involving Priya?

A) She did not inform the Law Society that a former client had reappeared in an adverse matter.

B) She failed to take steps to avoid using confidential information that Jordan may have acquired during his prior representation of Priya.

C) She allowed Jordan to access active litigation files, which is prohibited even for clerical staff.

D) She failed to document the retainer in writing, which is mandatory when adverse parties are previously known to staff.

Correct Answer: B

Explanation: A lawyer must not act in a matter where there is a significant risk that confidential information from a former client could be used to that client’s disadvantage. This principle applies to situations where a former licensee employed at the firm may possess such information. Claire had a duty to assess the risk and either properly screen Jordan or decline the retainer altogether. Proceeding without safeguards exposed Priya’s confidential information and breached the lawyer’s duties to both parties.

80. From a practice management perspective, what is the clearest flaw in Claire’s procedures?

A) Claire failed to maintain a record of her correspondence with the process server, which would have supported her position during the investigation.

B) Her conflicts checking system was inadequate, as it failed to flag prior adverse relationships involving non-licensee staff.

C) She did not keep daily time dockets, which is required to ensure file-level accountability.

D) Her supervision policy lacked a documented contingency plan, which the Law Society now requires for all sole practitioners.

Correct Answer: B

Explanation: An effective conflict-checking system must account for prior client relationships and potential confidentiality issues involving all firm members, including support staff and former licensees. Claire’s system failed to capture Jordan’s prior relationship with Priya and did not prompt appropriate follow-up. This oversight illustrates a serious breakdown in her internal processes and represents a key failure in practice management.