Friday, November 5, 2010

Ontario Proper Forum for Mexican Accident Victims

The Ontario Court of Appeal recently considered the application of the new "Van Breda" test concerning the circumstances under which an Ontario court will assume jurisdiction in an action where multiple jurisdictions are involved in a transaction or occurrence.

In Van Breda v. Village Resorts Limited (2010) 98 O.R. (3d) 721 the Ontario Court of Appeal held that if a case falls within one of the factors enumerated in Rule 17.02 of the Rules of Civil Procedure, the court should presume that there is a real and substantial connection between Ontario and a foreign defendant. The defendant may then prove that despite the existence of the one of the factors, in the particular circumstances of the case, there is no real and substantial connection with Ontario.

The Court of Appeal held that other considerations in the "jurisdiction simpliciter" analysis are no longer to be treated as independent factors, but rather as principles that bear upon the analysis, including (a) the fairness to each party of assuming or refusing to assume jurisdiction; (b) the involvement of other parties in the action; (c) the willingness to recognize and enforce an extra-provincial judgment with similar jurisdictional connections to the forum; (d) comity; and (e) the standards of enforcement in the other jurisdiction.

In Dilkas v. Red Seal Tours Inc the Court of Appeal considered the application of the Van Breda test to Ontario residents who purchased vacation packages from Sunwing in Ontario for vacations in Mexico. The plaintiffs were injured in an accident caused by a Mexican transportation company under agreement with Sunwing to transport the plaintiffs from the airport to their hotel.

The Ontario Court of Appeal upheld the decision of the trial judge and found on the Van Breda test that Ontario should assume jurisdiction. The court distinguished this case from other similar travel cases where the court held that Ontario should not assume jurisdiction because here:
(1) the vacation packages which were purchased in Ontario explicitly included ground transportation services;
(2) the ground transportation agreement between Sunwing and the transportation company was explicitly governed by Ontario law; and
(3) the transportation company entered into an indemnity agreement with Sunwing in respect of any lawsuit brought in Ontario by the injured tourists and agreed that the Ontario courts would have exclusive jurisdiction.

The court also concluded that Mexico was not the more convenient forum.

Regards,

Blair

Thursday, November 4, 2010

The Supreme Court of Canada just released 3 more appeal judgments this morning (in a single set of reasons):

FREEDOM OF THE PRESS: JOURNALIST-SOURCE PRIVLEGE; PUBLICATION BANS
Globe and Mail v. Canada (Attorney General) (December 15, 2008) (32975), (January 30, 2009) (33097), (August 26, 2008) (33114)

"These three appeals have as their origin the litigation flowing from what is known as the Sponsorship Scandal. In March 2005, the Attorney General of Canada filed a motion in the Quebec Superior Court seeking to recover the money paid by the federal government under the Sponsorship Program. The proceedings were instituted against several of the companies and individuals retained by the Program and implicated in the Scandal, including Groupe Polygone. In response, Groupe Polygone advanced a defence of prescription under the Civil Code of Quebec. As the litigation proceeded, and in support of its prescription defence, Groupe Polygone obtained orders requiring that certain persons, including several federal government employees, answer questions aimed at identifying the source of a journalist's information. Based primarily on information received from a confidential unauthorized government source, L, a Globe and Mail journalist, had written a series of articles about the Sponsorship Program, alleging the misuse and misdirection of public funds. The Globe and Mail brought a revocation motion in respect of the orders issued by the Superior Court judge, arguing that their effect would be to breach journalist?source privilege. L testified on the motion and was cross-examined by counsel for Groupe Polygone. Counsel for the Globe and Mail objected to a number of questions posed to L, on the basis that they were either irrelevant, or that his answering them would lead to a breach of journalist-source privilege. The judge refused to recognize the existence of a journalist-source privilege and the objections were dismissed. Leave to appeal was denied by the Court of Appeal ("journalist-source privilege appeal"). Rather than have its journalist answer the questions, the Globe and Mail sought to discontinue the revocation proceedings. The judge refused to allow the discontinuance, and the Quebec Court of Appeal dismissed the appeal ("discontinuance appeal"). Meanwhile, during the hearing of the discontinuance proceedings, Groupe Polygone complained about leaks dealing with the content of confidential settlement negotiations in which it was engaged with the Attorney General, the details of which were reported by L and published by the Globe and Mail. In response, and on his own motion, the Superior Court judge made an order prohibiting L from further reporting and publishing on the state of the negotiations. While the Globe and Mail objected to what it insisted was a publication ban, and one issued without the benefit of hearing from either party, the judge maintained that the order was not a publication ban, providing no further written or oral reasons for his decision. The Quebec Court of Appeal again rejected the Globe and Mail's application for leave to appeal ("publication ban appeal").

In the journalist-source privilege appeal in this Court, the Globe and Mail argued that a class-based journalist-source privilege is rooted in the Canadian Charter and the Quebec Charter. In the alternative, it contended that the common law Wigmore doctrine to establish privilege on a case-by-case basis, but modified to account for the civil law tradition, is applicable. The Globe and Mail also challenged the order prohibiting the publication of information related to the settlement negotiations, as well as the order denying the discontinuance."

The SCC (unanimously) held: the journalist-source privilege appeal is allowed and the matter remitted to the Superior Court of Quebec for consideration in accordance with the reasons for judgment; the publication ban appeal is allowed and the order prohibiting the publication of information relating to the settlement negotiations quashed; the discontinuance appeal is dismissed as moot.

Justice LeBel wrote as follows (at paragraphs 48-50, 53-55, 61-66, 96-100):

"Journalist-Source Privilege

...Nevertheless, constitutional rights under the Canadian Charter and quasi-constitutional rights under the Quebec Charter are engaged by a claim of journalist-source privilege. Some form of legal protection for the confidential relationship between journalists and their anonymous sources is required. Conflicting rights and interests arise under the Quebec Charter and must be addressed and reconciled. This case also raises important questions related to the development of human rights in Quebec. The creation of a framework to address these issues represents a legitimate and necessary exercise of the power of the court to interpret and develop the law.

In my view, a helpful analogy can be drawn between the journalist-source privilege at issue in this case, and police-informer privilege, which is also a judicially created "rule of public policy" (Bisaillon, at p. 90, citing Marks v. Beyfus (1890), 25 Q.B.D. 494 (C.A.), at p. 498). Indeed, I find that, admittedly in a very broad sense, police-informer privilege is more analogous to journalist-source privilege than is the professional secrecy contemplated by s. 9 of the Quebec Charter, although it arose in the context of criminal procedure within the common law.

Police-informer privilege, like professional secrecy and solicitor-client privilege, is a class-based privilege. In this sense, it is unlike journalist-source privilege, which is clearly a case-by-case privilege. However, it has its roots as a common law rule of public policy, aimed at facilitating the investigation of crime.



...There is therefore a basis in the laws of Quebec for a journalist-source privilege or an exemption from the general obligation to give evidence in civil cases. Despite its common law origins, the use of a Wigmore-like framework to recognize the existence of the privilege in the criminal law context, as established in National Post, is equally relevant for litigation subject to the laws of Quebec. This approach conforms both with s. 2(b) of the Canadian Charter and ss. 3 and 44 of the Quebec Charter. Indeed, I reject the submission of the intervener Canadian Civil Liberties Association that the Wigmore framework cannot differentiate between relationships that have a constitutional dimension and those that do not. It is clear that it does so already (R. v. Gruenke, [1991] 3 S.C.R. 263; National Post). This approach also accords with the law of evidence in Quebec. The C.C.Q. grants judges the authority to exclude evidence or testimony in the event of a breach of the Quebec Charter. It is not inconsistent, either in principle or in fact, to give judges the authority to exempt a journalist from testifying, when his s. 2(b) Canadian Charter and s. 3 Quebec Charter rights are found to be paramount. Indeed, I would add that art. 46 of the C.C.P., which provides for the general powers of the Superior Court, appears to provide its judges with the necessary authority to do so on a case-by-case basis:

The courts and judges have all the powers necessary for the exercise of their jurisdiction.


They may, at any time and in all matters, whether in first instance or in appeal, issue orders to safeguard the rights of the parties, for such time and on such conditions as they may determine. As well, they may, in the matters brought before them, even on their own initiative, issue injunctions or reprimands, suppress writings or declare them libellous, and make such orders as are appropriate to deal with cases for which no specific remedy is provided by law.

It is also a framework that is sufficiently flexible to take into account the variety of interests that may arise in any particular case, and those that are certain to arise in civil proceedings taking place in the common law provinces. The overarching issues raised by this appeal are of course not unique to the province of Quebec. The news media's reach is borderless. This is further support for an approach that would result in consistency across the country, while preserving the distinctive legal context under the Civil Code.

...Another consideration, related to the centrality of the question to the dispute, is whether the journalist is a party to the litigation, or simply an ordinary witness. For example, whether it is in the public interest to require a journalist to testify as to the identity of a confidential source will no doubt differ if the journalist is a defendant in a defamation action, for example, as opposed to a third party witness, compelled by subpoena to testify in a matter in which he or she has no personal stake in the outcome. In the former context, the identity of the source is more likely to be near the centre of the dispute between the parties. When a journalist is called as a third party witness, there is likely to be more of a question whether the source's identity is central to the dispute.

A crucial consideration in any court's determination of whether the privilege has been made out will be whether the facts, information or testimony are available by any other means. As the Court recognized in National Post, "[t]he 'alternate sources' principle has been part of Canadian law since Re Pacific Press Ltd. and The Queen (1977), 37 C.C.C. (2d) 487 (B.C.S.C.), as it has been in the U.K." (para. 66). Indeed, courts in the United Kingdom have endorsed this necessity requirement, and held that mere administrative convenience is insufficient (Secretary of State for Defence v. Guardian Newspapers Ltd., [1985] 1 A.C. 339; In re An Inquiry under the Company Securities (Insider Dealing) Act, 1985, [1988] 1 A.C. 660; Cross and Tapper on Evidence (11th ed. 2007), at p. 501).

This, of course, makes perfect sense. If relevant information is available by other means and, therefore, could be obtained without requiring a journalist to break the undertaking of confidentiality, then those avenues ought to be exhausted. The necessity requirement, like the earlier threshold requirement of relevancy, acts as a further buffer against fishing expeditions and any unnecessary interference with the work of the media. Requiring a journalist to breach a confidentiality undertaking with a source should be done only as a last resort.

Other considerations that may be relevant in a particular case include the degree of public importance of the journalist's story, and whether the story has been published and is therefore already in the public domain. This list is, of course, not comprehensive. In the end, context is critical.

In summary, to require a journalist to answer questions in a judicial proceeding that may disclose the identity of a confidential source, the requesting party must demonstrate that the questions are relevant. If the questions are irrelevant, that will end the inquiry and there will be no need to consider the issue of journalist-source privilege. However, if the questions are relevant, then the court must go on to consider the four Wigmore factors and determine whether the journalist-source privilege should be recognized in the particular case. At the crucial fourth factor, the court must balance (1) the importance of disclosure to the administration of justice against (2) the public interest in maintaining journalist-source confidentiality. This balancing must be conducted in a context-specific manner, having regard to the particular demand for disclosure at issue. It is for the party seeking to establish the privilege to demonstrate that the interest in maintaining journalist-source confidentiality outweighs the public interest in the disclosure that the law would normally require.

The relevant considerations at this stage of the analysis, when a claim to privilege is made in the context of civil proceedings, include: how central the issue is to the dispute; the stage of the proceedings; whether the journalist is a party to the proceedings; and, perhaps most importantly, whether the information is available through any other means. As discussed earlier, this list is not comprehensive.

The Publication Ban

...Even if I were convinced that the publication ban was necessary to prevent a serious risk to the administration of justice, I would not be convinced that its salutary effects outweigh its deleterious effects. The salutary effects of the ban are, primarily, a cessation of the breach of Groupe Polygone's s. 5 privacy rights and, indirectly, a breach of its right to negotiate a settlement confidentially. I say indirectly, of course, because the media are not the party responsible for the breach of confidentiality. However, I am not convinced that such a breach, in the circumstances of this case, led to a failure in the negotiations and can therefore justify a publication ban.

On the other hand, the deleterious effects of the ban are serious. The Globe and Mail received information about settlement negotiations involving, as a party, the Government of Canada, which is seeking to recover a considerable amount of taxpayer money, on the basis of an alleged fraud against a government program. There is clearly an overarching public interest in the outcome of this dispute, and barring the Globe and Mail from publishing the information that it obtained in this regard would prevent the story from coming to light. In other words, upholding de Grandpré J.'s order would be to stifle the media's exercise of their constitutionally mandated role.

While not in any way wanting to diminish the importance that this Court places on the confidentiality of settlement negotiations, I again emphasize that the confidentiality undertakings are a binding only on the parties to negotiation. The obligation does not, and cannot, extend to the media. Neither Mr. Leblanc nor the Globe and Mail did anything - illegal or otherwise - to obtain the information published in the article. Mr. Leblanc did not even have to make any requests in this regard. As discussed earlier in these reasons, I am reluctant to endorse a situation where the media or individual journalists are automatically prevented from publishing information supplied to them by a source who is in breach of his or her confidentiality obligations. This would place too onerous an obligation on the journalist to verify the legality of the source's information. It would also invite considerable interference by the courts in the workings of the media. Furthermore, such an approach ignores the fact that the breach of a legal duty on the part of a source is often the only way that important stories, in the public interest, are brought to light. Imposing a publication ban in this case would be contrary to all these interests.

As we have seen, on the factual record before us, the ban was not necessary to prevent a serious risk to the proper administration of justice. Moreover, the salutary effects of the publication ban imposed in the court below do not outweigh its deleterious effects. I would thus allow the appeal and quash the publication ban imposed by de Grandpré J.

For all these reasons, the Globe and Mail's appeal is allowed, with costs throughout, and the order prohibiting the publication of anything relating to the settlement negotiations between the parties is quashed, with costs throughout."

Click here for the full text of the judgment







Eugene Meehan, Q.C.
Chair, Supreme Court Practice Group
Lang Michener
300 - 50 O'Connor Street
Ottawa ON K1P 6L2
Phone: (613) 232-7171
Fax: (613) 231-3191
Ontario, Alberta, Yukon, NWT & Nunavut
Licenced to Practise Law in the State of Arizona, U.S.A.
emeehan@langmichener.ca
http://www.supremecourtlaw.ca




Forward to a Friend

Contact Us

Homepage


Published by Lang Michener LLP
Copyright 2008 Lang Michener. All rights reserved.

Thursday, September 16, 2010

Fraternal Relationship Trumps Artistic Talent

From Eugene Meehan-

FAMILY LAW: CHOICE OF SCHOOLS There is a publication ban on the names of the parties in this case. The dispute between the parties concerned the elementary school in which their child is to be registered in September 2010. The father, who is the Applicant, would prefer that the child begin school at a school the parties had previously agreed on orally. According to him, the school in question is one where the child would be able to develop his artistic abilities and musical talent and would be with several friends from daycare who live in the same neighbourhood as he does or who take swimming lessons with him. The mother, who is the Respondent, would prefer to send the child to the same school as his older half-brother. In her opinion, that would permit the child to grow up in the same school environment as his half-brother, thus bringing him a measure of stability. The father filed a motion for, inter alia, an order that the child be registered at the first school.

The Superior Court held that fostering the fraternal relationship between the children should be preferred to placing the child in an academic program suited to his aptitudes in which he would be with a few friends, and it accordingly authorized the mother to register the child in the school she favoured. The C.A. granted the mother's motion to dismiss the appeal on the basis that the appeal had no reasonable chance of success.F.H. v. A.-C.L. (Quebec C.A., March 22, 2010) (33715) "The application for leave to appeal...is dismissed without costs."

Regards,

Blair

Supreme Court Denies Federal Inmate Leave to Appeal

From Eugene Meehan: The Applicant was a federal penitentiary inmate and injured while carrying out supervised work in the woodworking shop. He brought a successful claim in negligence against the Respondent but was denied damages for adverse psychological or psychiatric sequela, or the declaratory relief he sought concerning conditions at the prison. The Applicant appealed and filed a memorandum of fact and law with the Federal C.A. which far exceeded the maximum length prescribed by Rule 70(4) of the Federal Courts Rules. When the Applicant did not comply with directions to file a memorandum in conformity with Rule 70(4), the Federal C.A. dismissed his appeal for failure to file a memorandum of fact and law. Muri Chilton v. Her Majesty the Queen in Right of Canada (Federal C.A., July 8, 2010) (33705) "The application for leave to appeal...is dismissed without costs."


Regards,

Blair

Friday, July 30, 2010

Supreme Court uphold's Robert Pickton's murder conviction

From Eugene Meehan's SCC lawletter:

The accused was charged with several counts of first degree murder after the police found the dismembered remains of the victims on his property. Throughout the trial, the Crown maintained that the accused had actually shot and killed the women. The defence took the position that the Crown had failed to prove that the accused was the sole perpetrator, suggesting the potential involvement of others to the exclusion of the accused. On the fourth and last day of instructions to the jury, the defence requested that the trial judge specifically instruct the jury in accordance with the respective theories of the parties. The Crown consented to the request and the trial judge instructed the jury on those counts in respect of which the evidence was clear that the victim had died of a gunshot wound that, if they found that the accused had shot the victims, they should find that the Crown has proven the identity of the killer. On the other hand, if they had a reasonable doubt about whether or not he had shot the victims, they should return a verdict of not guilty. Following a question from the jury on the sixth day of deliberations, the trial judge re-instructed the jury that they could also find that the accused was the killer if he "was otherwise an active participant" in the killings. At the conclusion of the lengthy trial, the jury returned a verdict of guilty of second degree murder on each of the counts. The accused appealed his convictions, arguing that the trial judge's retraction of the "actual shooter" instruction on the sixth day of deliberations adversely impacted on the fairness of the trial and occasioned a miscarriage of justice. The Court of Appeal, in a majority decision, rejected the accused's argument and upheld the convictions. The dissenting judge would have granted a new trial on the ground that the trial judge's failure to instruct the jury on the law of aiding and abetting and how it might apply to this case amounted to a miscarriage of justice."

The SCC (unanimous) dismissed the appeal.

Justice Charron wrote as follows (at pages 4-6):
"In this Court, Mr. Pickton repeats his argument that there was a miscarriage of justice and relies for support on the dissenting judgment of Donald J.A.
In my view, the majority was correct in finding that no miscarriage of justice was occasioned in this trial. There is no question that the trial judge could have instructed the jury more fully on the different modes of participation that could ground criminal liability, including the law on aiding and abetting. In hindsight and from a legalistic standpoint, it is easy to argue that he probably should have done so. However, the adequacy of the jury instructions must be assessed in the context of the evidence and the trial as a whole. There is nothing wrong, particularly in complex or lengthy trials, with the trial judge and counsel's narrowing the issues for the jury by focussing on what is actually and realistically at issue in the case, provided that, at the end of the day, the jury is given the necessary instructions to arrive at a just and proper verdict.
Realistically, this case was never about whether Mr. Pickton had a minor role in the murder of the victims. It was about whether or not he had actually killed them. Accordingly, the jury was left with instructions that required the Crown to prove that he "actively participated", and thus had a physical role, in the killings of the six women. As stated earlier, from a legalistic standpoint, these instructions did not reflect all potential modes of participation. However, by limiting the grounds of liability in this manner, the instructions were unduly favourable to the defence. Mr. Pickton argues nonetheless that there was a miscarriage of justice. His argument rests on the fact that the trial judge ultimately retracted the actual shooter instruction from the jury's consideration. In my view, this argument must fail. The actual shooter instruction was not only erroneous in law, but also on the facts of this case it was its addition to the charge which courted a miscarriage of justice. The jury was invited to acquit Mr. Pickton based on a factual doubt which at law did not necessarily exculpate him. The trial judge was therefore correct in ultimately rectifying this error by appropriately re-charging the jury.

Further, given the evidence at trial, the absence of an instruction on Mr. Pickton's liability as an aider and abettor could only have enured to his benefit. Although imperfect, the overall charge adequately conveyed to the jury the relevant legal principles as they applied to the facts of the case. I would dismiss the appeal and affirm the convictions."
In his partially concurring reasons, Justice LeBel wrote as follows (at pages 1-3):
"The primary issue in this appeal is the adequacy of jury instructions given at the end of a long and disturbing six-count murder trial which lasted almost a full year. Although we must necessarily conduct a careful review of those trial proceedings with a view to ensuring that justice is done on the particular facts of this case, it is also important that the applicable law be carefully delineated and clarified for future cases. I am reminded of the words of Doherty J.A. in R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.), at para. 19: "[D]etached and reflective appellate review of the trial process is perhaps most important in notorious, emotion-charged cases involving the least deserving accused."

The notion of "co-principal" liability, properly understood, did not arise on the evidence presented at trial, although other forms of party liability did. Even if the instruction receives a new label of "other suspects" liability, this cosmetic, rhetorical change does not dispel the error or change the reality of what happened during the trial. The re-charge whereby the trial judge instructed the jury that they could convict Mr. Pickton if they found he was the actual shooter or "was otherwise an active participant" in the killings clearly opened up party liability as an alternate route to conviction. That having been done, it was an error for the trial judge not to have left a full aiding and abetting instruction with the jury in order to set out the alternate route properly by which the jury could convict Mr. Pickton for the six murders with which he was charged. The phrases "active participation", "acting in concert", or "joint venture" do not in and of themselves adequately convey the law of party liability to a trier of fact.

With respect, I must therefore disagree with my colleague Charron J. that the trial judge's overall instructions, including the re-charge following the jury's question on the sixth day of their deliberations, can be said to have adequately conveyed the relevant legal principles as they applied to the facts of the case. She concludes that "[t]he instructions could not have led the jury into improper reasoning" (para. 34). It is indeed hazardous to speculate on the process of the jury's deliberation, but, the unusual verdict of second degree murder returned by the jury after they posed their question may well suggest that the instructions in this case were inadequate. However, as there exists on the record overwhelming evidence of Mr. Pickton's guilt, and no miscarriage of justice was occasioned by this error in the instructions, I would apply the curative proviso found in s. 686 of the Criminal Code, R.S.C. 1985, c. C-46, dismiss the appeal, and affirm the convictions."

Regards,

Blair

Thursday, July 29, 2010

Damages for Breach of Charter Rights

During a ceremony in Vancouver, the city police department received information that an unknown individual intended to throw a pie at the Prime Minister who was in attendance. Based on his appearance, police officers mistakenly identified W as the would-be pie-thrower, chased him down and handcuffed him. W, who loudly protested his detention and created a disturbance, was arrested for breach of the peace and taken to the police lockup. Upon his arrival, the corrections officers conducted a strip search.

While W was at the lockup, police officers impounded his car for the purpose of searching it once a search warrant had been obtained. The detectives subsequently determined that they did not have grounds to obtain the required search warrant or evidence to charge W for attempted assault. W was released approximately 4.5 hours after his arrest. He brought an action in tort and for breach of his rights guaranteed by the Canadian Charter of Rights and Freedoms against several parties, including the Province and the City.

With respect to the strip search and the car seizure, the trial judge held that, although the Province and the City did not act in bad faith and were not liable in tort for either incident, the Province's strip search and the City's vehicle seizure violated W's right to be free from unreasonable search and seizure under s. 8 of the Charter. The trial judge assessed damages under s. 24(1) of the Charter at $100 for the seizure of the car and $5,000 for the strip search. The Court of Appeal, in a majority decision, upheld the trial judge's ruling.

The Suprem Court of Canada allowed the appeal in part.

The Chief Justice wrote as follows, "This appeal raises the question of when damages may be awarded under s. 24(1) of the Charter, and what the amount of such damages should be. Although the Charter is 28 years old, authority on this question is sparse, inviting a comprehensive analysis of the object of damages for Charter breaches and the considerations that guide their award.

The general considerations governing what constitutes an appropriate and just remedy under s. 24(1) were set out by Iacobucci and Arbour JJ. in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3. Briefly, an appropriate and just remedy will: (1) meaningfully vindicate the rights and freedoms of the claimants; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made.

Damages for breach of a claimant's Charter rights may meet these conditions. They may meaningfully vindicate the claimant's rights and freedoms. They employ a means well-recognized within our legal framework. They are appropriate to the function and powers of a court. And, depending on the circumstances and the amount awarded, they can be fair not only to the claimant whose rights were breached, but to the state which is required to pay them. I therefore conclude that s. 24(1) is broad enough to include the remedy of damages for Charter breach. That said, granting damages under the Charter is a new endeavour, and an approach to when damages are appropriate and just should develop incrementally. Charter damages are only one remedy amongst others available under s. 24(1), and often other s. 24(1) remedies will be more responsive to the breach.

The term "damages" conveniently describes the remedy sought in this case. However, it should always be borne in mind that these are not private law damages, but the distinct remedy of constitutional damages. An action for public law damages "is not a private law action in the nature of a tort claim for which the state is vicariously liable, but [a distinct] public law action directly against the state for which the state is primarily liable". In accordance with s. 32 of the Charter, this is equally so in the Canadian constitutional context. The nature of the remedy is to require the state (or society writ large) to compensate an individual for breaches of the individual's constitutional rights. An action for public law damages - including constitutional damages - lies against the state and not against individual actors. Actions against individual actors should be pursued in accordance with existing causes of action. However, the underlying policy considerations that are engaged when awarding private law damages against state actors may be relevant when awarding public law damages directly against the state. Such considerations may be appropriately kept in mind.

The watchword of s. 24(1) is that the remedy must be "appropriate and just". This applies to the amount, or quantum, of damages awarded as much as to the initial question of whether damages are a proper remedy. Damages may be awarded to compensate the claimant for his loss, to vindicate the right or to deter future violations of the right. These objects, the presence and force of which vary from case to case, determine not only whether damages are appropriate, but also the amount of damages awarded. Generally, compensation will be the most important object, and vindication and deterrence will play supporting roles. This is all the more so because other Charter remedies may not provide compensation for the claimant's personal injury resulting from the violation of his Charter rights. However, as discussed earlier, cases may arise where vindication or deterrence play a major and even exclusive role.

Where the objective of compensation is engaged, the concern is to restore the claimant to the position she would have been in had the breach not been committed, as discussed above. As in a tort action, any claim for compensatory damages must be supported by evidence of the loss suffered. In some cases, the Charter breach may cause the claimant pecuniary loss. Injuries, physical and psychological, may require medical treatment, with attendant costs. Prolonged detention may result in loss of earnings. Restitutio in integrum requires compensation for such financial losses.

In other cases, like this one, the claimant's losses will be non-pecuniary. Non-pecuniary damages are harder to measure. Yet they are not by that reason to be rejected. Again, tort law provides assistance. Pain and suffering are compensable. Absent exceptional circumstances, compensation is fixed at a fairly modest conventional rate, subject to variation for the degree of suffering in the particular case. In extreme cases of catastrophic injury, a higher but still conventionally determined award is given on the basis that it serves the function purpose of providing substitute comforts and pleasures.

When we move from compensation to the objectives of vindication and deterrence, tort law is less useful. Making the appropriate determinations is an exercise in rationality and proportionality and will ultimately be guided by precedent as this important chapter of Charter jurisprudence is written by Canada's courts. That said, some initial observations may be made.
A principal guide to the determination of quantum is the seriousness of the breach, having regard to the objects of s. 24(1) damages. The seriousness of the breach must be evaluated with regard to the impact of the breach on the claimant and the seriousness of the state misconduct. Generally speaking, the more egregious the conduct and the more serious the repercussions on the claimant, the higher the award for vindication or deterrence will be.

Just as private law damages must be fair to both the plaintiff and the defendant, so s. 24(1) damages must be fair - or "appropriate and just" - to both the claimant and the state. The court must arrive at a quantum that respects this. Large awards and the consequent diversion of public funds may serve little functional purpose in terms of the claimant's needs and may be inappropriate or unjust from the public perspective. In considering what is fair to the claimant and the state, the court may take into account the public interest in good governance, the danger of deterring governments from undertaking beneficial new policies and programs, and the need to avoid diverting large sums of funds from public programs to private interests.

In assessing s. 24(1) damages, the court must focus on the breach of Charter rights as an independent wrong, worthy of compensation in its own right. At the same time, damages under s. 24(1) should not duplicate damages awarded under private law causes of action, such as tort, where compensation of personal loss is at issue. To sum up, the amount of damages must reflect what is required to functionally serve the objects of compensation serve, vindication of the right and deterrence of future breaches, insofar as they are engaged in a particular case, having regard to the impact of the breach on the claimant and the seriousness of the state conduct. The award must be appropriate and just from the perspective of the claimant and the state.
For a tribunal to grant a Charter remedy under s. 24(1), it must have the power to decide questions of law and the remedy must be one that the tribunal is authorized to grant: R. v. Conway, 2010 SCC 22. Generally, the appropriate forum for an award of damages under s. 24(1) is a court which has the power to consider Charter questions and which by statute or inherent jurisdiction has the power to award damages. Provincial criminal courts are not so empowered and thus do not have the power to award damages under s. 24(1).

As was done here, the claimant may join a s. 24(1) claim with a tort claim. It may be useful to consider the tort claim first, since if it meets the objects of Charter damages, recourse to s. 24(1) will be unnecessary. This may add useful context and facilitate the s. 24(1) analysis. This said, it is not essential that the claimant exhaust her remedies in private law before bringing a s. 24(1) claim.

(1) Damages for the Strip Search

The Charter breach significantly impacted on Mr. Ward's person and rights and the police conduct was serious. The impingement on Mr. Ward calls for compensation. Combined with the police conduct, it also engages the objects of vindication of the right and deterrence of future breaches. It follows that compensation is required in this case to functionally fulfill the objects of public law damages. Damages for the strip search of Mr. Ward are required in this case to functionally fulfill the objects of public law damages, and therefore are prima facie "appropriate and just". The state has not negated this. It follows that damages should be awarded for this breach of Mr. Ward's Charter rights. Considering all the factors, including the appropriate degree of deference to be paid to the trial judge's exercise of remedial discretion, I conclude that the trial judge's $5,000 damage award was appropriate.

(2) Damages for the Car Seizure

The trial judge found that the seizure of the car violated Mr. Ward's rights under s. 8 of the Charter. This finding is not contested and thus satisfies the first requirement. I conclude that a declaration under s. 24(1) that the vehicle seizure violated Mr. Ward's right to be free from unreasonable search and seizure under s. 8 of the Charter adequately serves the need for vindication of the right and deterrence of future improper car seizures."

See http://scc.lexum.umontreal.ca/en/2010/2010scc27/2010scc27.html for the full text of the case.

Regards,

Blair

Friday, June 18, 2010

Administrative Tribunals and the Canadian Charter of Rights

In R. v. Conway, the Supreme Court of Canada set out the test for determining when administrative tribunals can decide issues relating the Canadian Charter of Rights and Freedoms ("Charter") and grant Charter remedies.

In 1984, Conway was found not guilty by reason of insanity on a charge of sexual assault with a weapon. Subsequently he was detained in mental health facilities and diagnosed with several mental disorders. Prior to his annual review before the Ontario Review Board, Conway alleged that the mental health centre where he was detained had breached his Charter rights and sought an absolute discharge under s. 24(1) of the Charter. The Board unanimously concluded that Conway was a threat to public safety, who would, if released, quickly return to police and hospital custody. This made him an unsuitable candidate for an absolute discharge under s. 672.54(a) of the Criminal Code, which provides that an absolute discharge is unavailable to any patient who is a “significant threat to the safety of the public”. The Board therefore ordered that Conway remain in the mental heath centre. The Board concluded that it had no jurisdiction to consider Conway’s Charter claims. The Court of Appeal agreed that the Board was not a court of competent jurisdiction for the purpose of granting an absolute discharge under s. 24(1) of the Charter.

The SCC dismissed the appeal from the Court of Appeal and confirmed the principle that, with rare exceptions, administrative tribunals with the authority to apply the law, have the jurisdiction to apply the Charter to the issues that arise in the proper exercise of their statutory functions. Expert tribunals should play a primary role in determining Charter issues that fall within their specialized jurisdiction and that in exercising their statutory functions, administrative tribunals must act consistently with the Charter and its values.

The SCC described the following test for determining whether an administrative tribunal can provide a charter remedy. When a Charter remedy is sought from an administrative tribunal, the initial inquiry is whether the tribunal can grant Charter remedies generally. The answer to this question depends on whether the administrative tribunal has the jurisdiction, explicit or implied, to decide questions of law. If it does, and unless the legislature has clearly demonstrated its intent to withdraw the Charter from the tribunal’s authority, the tribunal has jurisdiction to grant Charter remedies in relation to Charter issues arising in the course of carrying out its statutory mandate. The tribunal is, in other words, a court of competent jurisdiction under s. 24(1) of the Charter.

Once its determined that the tribunal has Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought given its statutory scheme; whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations include the tribunal’s statutory mandate and function.

In this case although the SCC held that the Board was a court of competent jurisdiction for the purpose of granting remedies under s. 24(1) of the Charter it was not capable of granting the remedy requested by the appellant because of the limits on the Board's statutory authority. Resort to s. 24(1) of the Charter could not add to the Board’s capacity to either address the substance of Conway’s complaint or provide appropriate redress.

Regards,

Blair

Thursday, May 27, 2010

Beware Limitation Period for Foreign Arbitral Awards

From Eugene Meehan's Supreme Court of Canada Lawletter:

"Y Corp., a Russian corporation that develops and operates oilfields in Russia, purchased materials for its oilfield operations from R Corp., an Alberta corporation. Following a contractual dispute, Y Corp. commenced arbitration proceedings before the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation. On September 6, 2002, the arbitral tribunal ordered R Corp. to pay $952,614.43 US in damages to Y Corp. Y Corp. applied to the Alberta Court of Queen's Bench for recognition and enforcement of the award on January 27, 2006. The court dismissed the application, ruling that it was time-barred under the two-year limitation period in s. 3 of the Alberta Limitations Act. The Court of Appeal upheld the ruling."

The Supreme Court of Canada held (unanimously) that the appeal is dismissed.

Justice Rothstein wrote as follows (at pages 2, 33):

"Under international arbitration law, the matter of limitation periods is left to local procedural law of the jurisdiction where recognition and enforcement is sought. The applicable limitation period in this case must therefore be found in the limitations law of Alberta. As an arbitral award is not a judgment or a court order for the payment of money, an application for recognition and enforcement in Alberta is not eligible for the 10-year limitation period set out in s. 11 of the Limitations Act, R.S.A. 2000, c. L-12. Rather, the application is subject to the general two-year limitation period applicable to most causes of action, which is found in s. 3 of the Limitations Act.

...In addition to claiming that Yugraneft's application is time-barred, Rexx has also argued that enforcement of the award should be refused on public policy grounds (Convention, art. V(2)(b)), alleging that it was tainted by fraud. In light of my conclusion regarding the applicable limitation period, there is no need to rule on this issue and I refrain from doing so."

Regards,

Blair

Wednesday, May 19, 2010

No Protection of Confidential Sources for Evidence of Crimes

From Eugene Meehan's Supreme Court of Canada Lawletter:

The National Post employed M as a journalist. M investigated whether C, then Prime Minister of Canada, was improperly involved with a loan from a federally funded bank to a hotel in C's riding which allegedly owed a debt to C's family investment company. X, a secret source, provided M with relevant information in exchange for a blanket, unconditional promise of confidentiality. In 2001, M received a sealed envelope in the mail that contained a document which appeared to be the bank's authorization of its loan to the hotel. If genuine, it could show that C had a conflict of interest in relation to the loan. M faxed copies of the document to the bank, to the Prime Minister's office, and to a lawyer for the Prime Minister. All three said that the document was a forgery. Shortly thereafter, X met M. X described receiving the document anonymously in the mail, discarding the original envelope, and passing the document on to M in the belief that it was genuine. M was satisfied that X was a reliable source who did not believe that the document was a forgery when he or she forwarded it to M. X feared that fingerprint or DNA analysis might reveal his or her identity and asked M to destroy the document and the envelope. M refused but told X that his undertaking of confidentiality would remain binding as long as he believed that X had not deliberately misled him.

The bank complained to the RCMP and an officer asked the appellants to produce the document and the envelope as physical evidence of the alleged crimes i.e. the forgery itself and the "uttering" (or putting into circulation) of the doctored bank records. They refused and M declined to identify his source.

The officer applied for a search warrant and an assistance order compelling M's editor to assist the police in locating the document and the envelope. He intended to submit them for forensic testing to determine if they carried fingerprints or other identifying markings (including DNA) which might assist in identifying the source of the document. Although the Crown informed the judge that the National Post had requested notification of the application, the hearing proceeded ex parte and a search warrant and an assistance order were issued.

The warrant and the order provided the appellants with one month before the RCMP could search the National Post's premises and included other terms intended to accommodate the needs of the National Post as a media entity. The appellants applied to quash the warrant and assistance order. The reviewing judge held that there was sufficient information to conclude the document was a forgery but that there was only a remote and speculative possibility that disclosure of the document and the envelope would advance a criminal investigation. She set aside the search warrant and the assistance order. The Court of Appeal reversed that decision and reinstated the search warrant and the assistance order. In this Court, the appellants and supporting interveners argued that the warrant and the order should be quashed because they infringe s. 2(b) or s. 8 of the Canadian Charter of Rights and Freedoms, or because the secret sources are protected by the common law of privilege."

The Supreme Court of Canada (with one judge writing partially concurring reasons, and another dissenting reasons) that the appeal is dismissed.

Justice Binnie wrote as follows (at pages 2-3):

"The public has the right to every person's evidence. That is the general rule. The question raised by this appeal is whether the appellants can exempt themselves from this obligation on the basis of a journalistic privilege rooted either in s. 2(b) of the Canadian Charter of Rights and Freedoms which guarantees freedom of expression, "including freedom of the press and other media of communication", or in the common law.

Specifically, the National Post, its editor-in-chief and one of its journalists apply to set aside a search warrant obtained from the Ontario Court of Justice authorizing the police to seize what are alleged to be forged bank records and the envelope in which the appellants received the records from secret source(s). The police believe that seizure of the physical documents is essential to proof of the forgery, and that forensic analysis may lead them directly or indirectly to the identity of the perpetrators. The appellants, for their part, seek to protect the identity of their secret source(s), who may or may not be directly implicated in the forgery. If the police are correct, therefore, the documents in the control of the National Post and its co-appellants are not merely links in the chain of criminal investigation but constitute in themselves the essential physical evidence of alleged crimes - the forgery itself and the "uttering" (or putting into circulation) of the doctored bank records in the plain brown envelope.

The courts should strive to uphold the special position of the media and protect the media's secret sources where such protection is in the public interest, but this is not the usual case of journalists seeking to avoid testifying about their secret sources. This is a physical evidence case. It involves what is reasonably believed to be a forged document. Forgery is a serious crime...I agree with the Ontario Court of Appeal (2008 ONCA 139, 89 O.R. (3d) 1) that the media claim to immunity from production of the physical evidence is not justified in the circumstances disclosed in the evidence before the court even if the end result proves to be information that may lead to the identification of the secret source(s)."

Regards,

Blair

Aboriginal Treaty Rights and the Environment

From the Eugene Meehan Supreme Court of Canada Lawletter:

The Cree and Inuit communities signed the James Bay and Northern Québec Agreement with the governments of Quebec and Canada in 1975. The Agreement established a governance scheme and created a framework that would govern many aspects of life in the territory, including the aboriginal economic and social development and the preservation of the natural environment. Under s. 22, the Agreement set out detailed and comprehensive procedures for environmental impact assessments. Whether a provincial or federal assessment will be conducted under the Agreement depends on the constitutional jurisdiction within which the project itself falls. In particular, s. 22.6.7 provides that 'a project shall not be submitted to more than one (1) impact assessment and review procedure unless such project falls within the jurisdictions of both Québec and Canada'. If the exception applies, two assessments will be required, but these assessments may be combined with the 'mutual agreement' of the parties. Section 2.5 of the Agreement also provides that the Agreement is paramount over all other laws of general application that are inconsistent with it.

A company intends to open and operate a mine in the James Bay area of Quebec in the Agreement 'Category III' lands, an area where the Agreement recognizes Quebec's right to regulate natural resource development subject to the environmental protection provisions of s. 22. In accordance with the Agreement's procedures, the proponent of the project submitted to the administrator responsible for 'matters respecting provincial jurisdiction' information concerning its proposed development. The provincial Administrator transmitted this information to the Evaluating Committee, which made a recommendation about the extent of impact assessment and review and whether or not a preliminary and/or a final impact statement should be done. Subsequently, the provincial Administrator alone decided the scope of the assessment and gave appropriate directions to the proponent. On receipt of the provincial Administrator's instructions, the proponent supplied information about the potential environmental and social impacts, which acknowledged a significant impact on fish habitat. This was transmitted by the provincial Administrator to the provincial Review Committee and was then to be transmitted to the Cree Regional Authority for their representations.

Meanwhile, federal officials who were not involved in the review process under the Agreement, concluded that the project's impact on fisheries - a matter within exclusive federal jurisdiction under s. 91(12) of the Constitution Act, 1867 - engaged s. 35(2) of the Fisheries Act and required a comprehensive study pursuant to the regulations made under the Canadian Environmental Assessment Act ('CEAA'). The federal officials informed the Cree that the study would be conducted by a review panel under the CEAA and not through the federal assessment procedure provided for in s. 22 of the Agreement. While the provincial review process of the project was still pending, the Cree commenced an action for declaratory relief in the Quebec Superior Court, which declared that only the provincial environmental assessment was applicable to the project pursuant to the Agreement. The Court of Appeal set aside that decision. The court concluded that the CEAA, in conjunction with the federal Fisheries Act, validly triggered a federal environmental assessment under the CEAA but that there were practical and operational inconsistencies between the CEAA review procedure and the one set out in the Agreement. Since the Agreement was paramount, the court held that CEAA review procedure was inapplicable, but substituted the federal review procedure in the Agreement for the one in the CEAA. The court also concluded that the project is subject as well to the provincial review procedure under s. 22 of the Agreement.

The Supreme Court of Canada held (6:3) that the appeal is dismissed, but the order of the Court of Appeal varied to provide that if the mine project is approved pursuant to the Agreement, the proponent may not proceed with the work without an authorization under s. 35(2) of the Fisheries Act, and that the issuance of any such authorization is to comply with the CEAA in accordance with its procedures, as well as the Crown's duty to consult with the Cree in relation to matters that may adversely affect their rights under the Agreement.

Justice Binnie wrote as follows (at pages 4, 25, 27-28):

"...it is necessary to approach this case on the basis of the terms the parties actually negotiated and agreed to as set out in the text of their agreement rather than on general observations and ideas which, in my respectful view, are unsupported by the text.

...Common sense as well as legal requirements suggest that the CEAA assessment will be structured to accommodate the special context of a project proposal in the James Bay Treaty territory, including the participation of the Cree. Reference has already been made to the possibility of a joint or substituted panel under ss. 40 to 45 of the CEAA. Nevertheless, the legal question before us is whether, absent such an arrangement, the federal Minister is bound to issue a s. 35(2) fisheries permit following the approval of a mining project by the Administrator (or the Quebec Cabinet) and, in my view, he is not so bound.

...In my view, the vanadium mine cannot lawfully proceed without a fisheries permit. The proponent is unable to obtain, and the federal Minister is unable to issue, a s. 35(2) fisheries permit without compliance with the CEAA. The contention of the Quebec Attorney General that the Treaty requires the federal Minister to issue the s. 35(2) fisheries permit as a result of the province-led review panel regardless of the federal Minister's independent assessment of potential damage to fish habitat should be rejected.

It is only after final approval by the Treaty bodies that it can be said that "the proposed development is approved in accordance with the provisions of this Section", which is the condition precedent to the proponent's obligations under s. 22.7.1 to "obtai[n] where applicable the necessary authorization or permits from responsible Government Departments and Services". There is thus no conflict. The need for a post-Treaty approval fisheries permit is made mandatory by the Treaty itself ("shall" obtain). In the case of fisheries, it is federal law, not the Treaty, that governs when such a permit may be granted as well as its terms and conditions.

I agree with the observation expressed by my colleagues LeBel and Deschamps JJ. that "[i]t would hardly be reasonable to believe that the parties intended that one of them might sign the Agreement one day and withdraw its signature the next day, week or year in respect of a key part of their contract" (para. 58). This sentiment is true so far as it goes, but in my view, with respect, it has no application to the dispute at issue in this appeal. I would dismiss the appeal but vary the order of the Quebec Court of Appeal to provide that if the vanadium mine project is approved pursuant to the Treaty, the proponent may not proceed with the work without authorization under s. 35(2) of the Fisheries Act, and that the issuance of any such authorization is to comply with the Canadian Environmental Assessment Act in accordance with its procedures, as well as the Crown's duty to consult with the First Nations in relation to matters that may adversely affect their Treaty rights."

Regards,

Blair

Monday, March 29, 2010

Supreme Court Orders Lawyer to Work for Free

C, a criminal defence lawyer employed by Yukon Legal Aid, represented an accused charged with sexual offences against a young child. Prior to the preliminary inquiry, Legal Aid informed the accused that failure to update his financial information would result in the suspension of his legal aid funding. The accused failed to respond to the request and Legal Aid informed him that C was no longer authorized to represent him. C brought an application to the Territorial Court of Yukon to withdraw as counsel of record solely because of the suspended funding. However, C indicated that she was willing to represent the accused if funding were reinstated. The Territorial Court refused her application. The Supreme Court of the Yukon Territory dismissed C's application for an order in the nature of certiorari seeking to quash the Territorial Court's order, holding that the Territorial Court did not exceed its jurisdiction. The Court of Appeal allowed C's appeal on the basis that the Territorial Court had no discretion to refuse C's application to withdraw.

The Supreme Court of Canada held (unanimously) allowed the appeal.

Justice Rothstein wrote as follows:

"What is the role of a court when defence counsel, in a criminal matter, wishes to withdraw because of non-payment of legal fees? Does a court have the authority to require counsel to continue to represent the accused? In my opinion, a court does have this authority, though it must be exercised sparingly, and only when necessary to prevent serious harm to the administration of justice.

An accused has an unfettered right to discharge his or her legal counsel at any time and for any reason. A court may not interfere with this decision and cannot force counsel upon an unwilling accused. Counsel, on the other hand, does not have an unfettered right to withdraw. The fiduciary nature of the solicitor-client relationship means that counsel is constrained in his or her ability to withdraw from a case once he or she has chosen to represent an accused...This appeal raises the issue of whether a court's jurisdiction to control its own process imposes a further constraint on counsel's ability to withdraw.

I conclude that a court does have the authority to refuse criminal defence counsel's request to withdraw for non-payment of legal fees. Applications regarding withdrawal or removal of counsel, whether for non-payment of fees, conflict of interest or otherwise, are the types of matters that fall within the necessarily implied authority of a court to control the conduct of legal proceedings before it.

The more contentious issue in this appeal is whether a criminal court may exercise its inherent or necessarily implied jurisdiction to control its own process by overseeing lawyer withdrawal.
The reasons in favour of courts exercising this jurisdiction are numerous. An accused, who becomes unable to pay his lawyer, may be prejudiced if he is abandoned by counsel in the midst of criminal proceedings. Proceedings may need to be adjourned to allow the accused to obtain new counsel. This delay may prejudice the accused, who is stigmatized by the unresolved criminal charges and who may be in custody awaiting trial. It may also prejudice the Crown's case. Additional delay also affects complainants, witnesses and jurors involved in the matter, and society's interest in the expedient administration of justice. Where these types of interests are engaged, they may outweigh counsel's interest in withdrawing from a matter in which he or she is not being paid.

Ordering counsel to work for free is not a decision that should be made lightly. Though criminal defence counsel may be in the best position to assess the financial risk in taking on a client, only in the most serious circumstances should counsel alone be required to bear this financial burden. In general, access to justice should not fall solely on the shoulders of the criminal defence bar and, in particular, legal aid lawyers. Refusing to allow counsel to withdraw should truly be a remedy of last resort and should only be relied upon where it is necessary to prevent serious harm to the administration of justice.

The court's exercise of discretion to decide counsel's application for withdrawal should be guided by the following principles.

If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal. In this situation, there is no need for the court to enquire into counsel's reasons for seeking to withdraw or require counsel to continue to act.

Assuming that timing is an issue, the court is entitled to enquire further. Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason (e.g. workload of counsel) if solicitor-client privilege is not engaged. Counsel seeking to withdraw for ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused. Counsel may cite "ethical reasons" as the reason for withdrawal if, for example, the accused is requesting that counsel act in violation of his or her professional obligations...If the real reason for withdrawal is non-payment of legal fees, then counsel cannot represent to the court that he or she seeks to withdraw for "ethical reasons". However, in either the case of ethical reasons or non-payment of fees, the court must accept counsel's answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege.

If withdrawal is sought for an ethical reason, then the court must grant withdrawal. Where an ethical issue has arisen in the relationship, counsel may be required to withdraw in order to comply with his or her professional obligations. It would be inappropriate for a court to require counsel to continue to act when to do so would put him or her in violation of professional responsibilities.

If withdrawal is sought because of non-payment of legal fees, the court may exercise its discretion to refuse counsel's request. The court's order refusing counsel's request to withdraw may be enforced by the court's contempt power. In exercising its discretion on the withdrawal request, the court should consider the following non-exhaustive list of factors:
a) whether it is feasible for the accused to represent himself or herself;
b) other means of obtaining representation;
c) impact on the accused from delay in proceedings, particularly if the accused is in custody;
d) conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;
e) impact on the Crown and any co-accused;
f) impact on complainants, witnesses and jurors;
g) fairness to defence counsel, including consideration of the expected length and complexity of the proceedings; and
h) the history of the proceedings, e.g. if the accused has changed lawyers repeatedly.

As these factors are all independent of the solicitor-client relationship, there is no risk of violating solicitor-client privilege when engaging in this analysis. On the basis of these factors, the court must determine whether allowing withdrawal would cause serious harm to the administration of justice. If the answer is yes, withdrawal may be refused."

Regards,

Blair

Thursday, February 18, 2010

Supreme Court of Canada rejects claims by Giant Mine Widows and Orphans

Thomas Cromwell, the most recent appointee to the Supreme Court of Canada, and a Queen's University graduate, has been busy writing judgments. The SCC released another today in the case of Fullowka v. Pinkerton's of Canada Ltd.:

In May 1992, a strike began at the Giant Mine near Yellowknife. The employees' bargaining agent, CASAW Local 4, and the mine owner, Royal, had reached a tentative agreement, but it was rejected by the Local's membership. Royal decided to continue operating the mine during the ensuing strike with replacement workers. The strike rapidly degenerated into violence. Faced with attacks on its security guards and unable to control the situation, the private security firm Royal had hired withdrew. Royal turned to Pinkerton's for security services and by the end of May, Pinkerton's had 52 guards on site.

The violence continued and escalated after Pinkerton's arrival. In mid-June, a large number of strikers rioted, damaging property and injuring security guards and replacement workers. Following the riot, Royal fired about 40 strikers, including W, and the police laid many criminal charges. Later in the same month, three strikers, including B, entered the mine through a remote entrance. While underground, they stole explosives and painted graffiti threatening replacement workers.

As the summer progressed, the atmosphere grew calmer although some trespassing, property damage and violence continued. On Royal's urging, Pinkerton's reduced its force to 20 guards. The police presence was also reduced. In late July, some strikers, including B, set an explosion which blew a hole in a satellite dish on mine property and, in early September, set a second explosion which damaged the mine's ventilation shaft plant. In the early morning hours of September 18, W evaded security, entered the mine and, while underground, planted an explosive device. When a man car carrying nine miners triggered the trip wire, they were all killed in the explosion. N was among the first on the scene and discovered the dismembered bodies of his colleagues, including a close friend. The territorial government ordered closure of the mine following the bombing. At the time of the fatal blast, CASAW Local 4 was affiliated with CASAW National which, in 1994, amalgamated with CAW National.

The miners' survivors sued Royal, Pinkerton's and the territorial government for negligently failing to prevent the murders. They also claimed against the strikers' national union, some union officials and members of CASAW Local 4 for failing to control W and for inciting him. As for N, he brought an action against the same defendants and Local 4, seeking damages for post traumatic stress disorder which he alleged resulted from his having come upon the scene of the fatal explosion. Their claims largely succeeded at trial but were dismissed by the Court of Appeal.

The SCC dismissed the appeals.

Justice Cromwell wrote on behalf of a unanimous court as follows:

"During a bitter strike at the Giant Mine in Yellowknife, N.W.T., one of the strikers, Roger Warren, evaded security and surreptitiously entered the mine. He set an explosive device which, as he intended, was detonated by a trip wire, killing nine miners. Their survivors and another worker who came upon the carnage after the explosion sued the mine owner, its security firm and the territorial government for negligently failing to prevent the murders. They also claimed against the strikers' union, some union officials and members for failing to control Mr. Warren and for inciting him. Their claims largely succeeded at trial but were dismissed on appeal to the Court of Appeal. The principal issues on the appeal to this Court are whether the security firm and the government should be liable in negligence for failing to prevent the murders and whether the unions should be responsible, directly or vicariously, for the miners' deaths. The claims involving the mine owner, its chief executive officer and one of its directors have been settled and are therefore not before us.

In my opinion, the appeals should be dismissed. Although I would find that the security firm and the government owed a duty of care, my view is that the trial judge erred when he found that they had breached that duty. With respect to the claims against the union, union officers and members, I agree with the Court of Appeal that the trial judge's findings of liability cannot be sustained. I also agree with the Court of Appeal that the claims of Mr. O'Neil (the worker who came upon the carnage) should have been dismissed.

Did Pinkerton's and the government owed a duty of care to the murdered miners to take reasonable steps to prevent Mr. Warren's intentional wrongful act and, if so, whether they breached that duty. My conclusion is that they did owe a duty of care but that they did not breach it.

Did the trial judge applied the wrong legal test for causation. In my respectful view, he did.

In respect of the claims against the union. The questions to be answered are whether a national union and its local union are separate legal entities, whether vicarious liability should be found and whether the trial judge's findings concerning incitement are sound. I conclude that the national and the local unions are separate legal entities, that vicarious liability should not have been found and the national union cannot be found to have incited Mr. Warren.

In respect of the claim against Mr. Bettger and the claim advanced by Mr. O'Neil. In my view, the claims against Mr. Bettger and by Mr. O'Neil should be dismissed."

Regards,

Blair

Wednesday, February 17, 2010

The Supreme Court of Canada Weighs in on Contract Interpretation Principles

The Supreme Court of Canada recently released an important decision (Tercon Contractors Ltd. v. British Columbia (Transportation and Highways) dealing with two issues:
1. principles of contractual interpretation; and
2. interpretation of exclusion of liability clauses.

The province of British Columbia (the "Province") issued a request for expression of interest for the design and construction of a highway. Six parties responded with submissions, including Tercon and Brentwood. A few months later, the Province informed the six respondents that it intended to design the highway itself and issued a request for proposals ("RFP") for constructing the highway. Under its terms, only the six original respondents were eligible to submit a proposal. The RFP also included an exclusion of liability clause which provided:
"Except as expressly and specifically permitted in these instructions to proponents, no proponent shall have any claim for any compensation of any kind whatsoever, as a result of participating in this RFP, and by submitting a proposal each proponent shall be deemed to have agreed that it has no claim."

Brentwood had no experience in drilling and blasting. Accordingly, it entered into a pre-bidding agreement with another construction company which was not a qualified bidder. Brentwood submitted a bid in its own name with its partner construction company listed as a "major member" of its team. Brentwood and Tercon were the two short-listed proponents and the Province selected Brentwood for the project.

Tercon sued the Province for damages. The trial judge found that the Brentwood bid was submitted by a joint venture of Brentwood and its partner and that the Province, which was aware of the situation, had breached the express provisions of the tendering contract with Tercon by considering an ineligible bid and by awarding it the work. The trial judge also held that the exclusion clause did not prevent recovery of damages to Tercon because the Province's breach was fundamental and that it was not fair or reasonable to enforce the exclusion clause in the circumstances. She held that the clause was ambiguous and resolved the ambiguity in Tercon's favour.

The British Columbia Court of Appeal set aside the decision. It held that the exclusion clause was clear and unambiguous and barred compensation for all the Province's defaults.

The Supreme Court of Canada ("SCC") allowed the appeal by a surprisingly close 5 to 4 decision. Justice Cromwell wrote for the majority.

He held that the questions for the SCC were whether Brentwood, as the successful bidder was eligible to participate in the RFP and if not, whether Tercon's claim for damages was barred by the exclusion clause. He held that the trial judge had reached the right result on both issues.

In respect of the first issue, the SCC accepted the trial judge's reasoning that the Province not only acted in a way that breached the express and implied terms of the contract by considering a bid from an ineligible bidder, it did so in a manner that was "an affront to the integrity and business efficacy of the tendering process."

Secondly, as for the exclusion clause, the SCC found that it did not protect the Province from Tercon's damage claim which arose from the Province's dealing with an ineligible party and from its breach of the implied duty of fairness to bidders. The key principle of contractual interpretation was that the words of one provision must not be read in isolation but should be considered in harmony with the rest of the contract and in light of its purposes and commercial context. Further, tendering contracts have a special commercial context which called for treating parties participating in the process fairly so that all bidders would be treated on an equal footing. It was particularly true in the context of public procurement where there was a need for transparency for the public at large.

Justice Cromwell wrote that:
"It seems to me to make even less sense to think that eligible bidders would participate in the RFP if the Province could avoid liability for ignoring an express term concerning eligibility to bid on which the entire RFP was premised and which was mandated by the statutorily approved process. "

Both the integrity and the business efficacy of the tendering process supported an interpretation that would allow the exclusion clause to operate compatibly with the eligibility limitations.
Implying an obligation to treat all bidders fairly and equally meant that clear language was necessary to exclude liability for a breach of such a basic requirement of the tendering process, particularly in the case of public procurement.

Justice Cromwell held that the clause was also ambiguous and that any ambiguity was resolved in the favour of Tercon.

Regards,

Blair

Friday, February 5, 2010

NAN Grand Chief: What Treaties Mean

From a Letter by Nishnawbe Aski Nation Grand Chief Stan Beardy to the Thunder Bay, Ontario Chronicle Journal.

What treaties mean
Wednesday, February 3, 2010

I am writing in response to the anonymous letter titled Gov‘t Using Companies As Pawns To Avoid Forcing Treaty Compliance published on Jan. 23. I would like to thank that individual for making the public aware that this is a treaty issue. For First Nations, a treaty is an agreement between two sovereigns. This is recognized as common knowledge at the international level. Knowing so, the Supreme Court of Canada has determined that the Crown has a legal duty to consult. I wholeheartedly agree with the statement that the government is not complying with the treaty and that it is crucial for government to settle outstanding differences. It is truly unfortunate that the exploration and mining industry have to bear the brunt of our treaty partner‘s inability to do so. Until these outstanding differences are resolved between the First Nations and the Crown, blockades such as what is taking place in the Ring of Fire will become a common occurrence. It is plain and simple to First Nations; they are defending their constitutionally protected treaty, aboriginal and inherent rights which they believe come before any rights and interests the exploration and mining industry may have. Carts must not be put before the horse.

With respect to the misperceived notion that First Nations are contravening the treaty, I take great exception to the writer‘s interpretation of the words contained in Treaty 9. As many may not know, the manner in which the treaty making process took place in Canada was unjust. As such, First Nations take the position that in order to achieve true reconciliation, we also have to look at the context in which the treaty was signed and go beyond the words that were put before a nation of people whose mother tongue was inherently different. The discussion and resolution on the spirit and intent of the treaty has been long awaited by First Nations. For many years we have voiced the need to resolve this matter, but we have only been met by deaf and uncompromising ears. If the exploration and mining industry is ever to achieve the stability that they so naively expect to be in place without first resolving the treaty issue, then they should do their part in continuing to urge the Crown to be honourable treaty partners by living up to its spirit and intent. Recognizing that many may not truly understand what this means, NAN will be doing its part to educate.

Grand Chief Stan Beardy Nishnawbe Aski Nation

Regards,

Blair

Monday, January 25, 2010

US Supreme Court Green Lights Special Interest Money

From a report by by Lawday:

WASHINGTON – President Obama in his weekly radio address strongly criticized the decision of the US Supreme Court last Thursday that removed long-standing campaign finance limits on corporate spending. The President noted that “this decision is giving a green light to a new stampede of special interest money in our politics”. In the 5-4 ruling that divided the court along conservative and liberal lines, the court ruled that the Constitution protects the free speech rights of corporations.

Justice Anthony Kennedy writing for the majority said, “the government may regulate corporate political speech through disclaimer and disclosure requirements but it may not suppress that speech altogether”. In a sharply worded dissent Justice Paul Stevens wrote, “the Court’s ruling threatens to undermine the integrity of elected institutions across the nation.” The ruling by the Court overturned Supreme Court decisions between 2003 and 1990 that upheld federal and state limits on expenditures by corporations supporting or opposing particular candidates. In the 2008 elections almost $6 billion was spent in federal campaigns including more than $1 billion from corporations and trade associations. The ruling will likely allow unions to spend more freely in political campaigns as well. Chief Justice John Roberts in a concurring opinion wrote, “ the First Amendment protects more than just individuals on a soapbox and the lonely past pamphleteer.” Justice Anthony Kennedy who cast the swing vote wrote the majority opinion which overturned his own decision in 1990 in Austin v. Michigan Chamber of Commerce. The 175 page decision included a sharply worded 90 page dissent by Justice John Paul Stevens that blasted the legal logic of majority and questioned the grasp of the cardinal principles of the judicial process.

The President said he will immediately work with Congress to enact legislation that would overturn the decision.

Regards,

Blair

Wednesday, January 20, 2010

Law Society Reinstates Multiple Repeat Offender


A Law Society of Upper Canada disciplinary panel reinstated Yaroslav Mikitchook’s licence last week after hearing evidence of psychological issues that include self-defeating personality disorder. At a hearing last week, Yaroslav Mikitchook convinced the LSUC to terminate the indefinite licence suspension imposed on him after his seventh finding of professional misconduct.“We understand he has been seeing a psychiatrist approximately twice a week, and it is our understanding that will continue,” said panel chair Paul Schabas. The panel relied on psychological reports indicating that Mikitchook suffers from obsessive-compulsive disorder as well as self-defeating personality disorder, also known as masochistic personality disorder. “They concluded Mr. Mikitchook made the errors he did for psychological reasons,” Schabas said. Counsel for the law society and the hearing panel agreed that Mikitchook’s progress in therapy represented a material change of circumstances. Mikitchook’s lawyer, David Cousins, said his client had attended approximately 140 therapy sessions. “The picture has changed for him to the point where he is now ready to return to practice,” Cousins said.

Last January, the law society deemed Mikitchook had once again engaged in professional misconduct, the seventh such finding since the early 1990s. Among the allegations, the panel heard evidence he had delayed issuing a statement of claim for a client’s 1999 auto accident until 2004. He also failed to issue a statement of claim for the same client in a separate 2005 collision. When the client terminated the retainer, Mikitchook failed to pass the file on to his new lawyer or respond to repeated correspondence, the ruling said. When a complaint against Mikitchook was filed, he neglected to respond to the LSUC. He then failed to show up for his disciplinary hearing, instead choosing to go on a holiday with his wife, documents show. Counsel for the law society argued last year the lawyer was “ungovernable,” constituted an “unacceptable risk to the public,” and should be disbarred.

At last week’s hearing, the panel heard evidence of Mikitchook’s lengthy disciplinary history. In 1992 and twice in 1994, the LSUC found him to have engaged in professional misconduct for failing to communicate with and misleading clients and failing to respond to the law society. His penalties escalated from reprimands and fines to a six-month suspension in 1994. In 1997, the law society ruled he had misappropriated funds in trust, a breach later shown to be due to bookkeeping inadequacies. As a result, he received a three-month suspension. The LSUC then suspended him for the third time in 2001 for professional misconduct in breaching a Convocation order. Similar complaints against Mikitchook on behalf of clients led to further misconduct proceedings in 2008.

The lawyer then submitted psychiatric evidence to the panel indicating he had two underlying personality disorders that drove him to behaviour that undermined his own career. “The self-defeating personality disorder causes people to be involved in self-sabotage,” said a law society ruling. Two psychiatrists conducted interviews and tests with the lawyer and submitted they didn’t feel he was ungovernable but rather that he lacks the normal ability to deal with complaints about his professional conduct. “He becomes paralyzed and is unable to respond in a normal way, leading to escalation,” the ruling said. In response, Mikitchook received another three-month suspension, after which the law society prohibited him from practising law except under the supervision of another licensed lawyer for five years. It also ordered him to engage in a course of therapy. However, Mikitchook then apparently ignored a subsequent notice of application related to the most recent misconduct proceedings and missed his panel hearing.

A letter from the lawyer’s psychiatrist described that oversight as “another example of his pattern of automatically turning a blind eye to situations he experiences as unpleasant rather than addressing them head on.” Dr. Norman Doidge, a psychiatrist who submitted a report to the panel, indicated Mikitchook was driven to do too much in his practice. “A core psychological conflict for Mr. Mikitchook leads him to repeatedly overextend himself to clients, without retainers, working many hours for free, and becoming inevitably overwhelmed and fed up,” Doidge wrote. “At times, he cuts off work on a file without having attended to the necessary communication with the client to maintain a healthy lawyer-client alliance.” As a result, a disciplinary panel suspended Mikitchook indefinitely until he could provide medical evidence that he is able to practise law. It also ordered him to engage in ongoing therapy and practise only under a plan of supervision for five years once the suspension ended.

In Doidge’s most recent report to the panel, he and two other psychiatrists agreed that Mikitchook is ready to return to the practice of law under supervision and is highly unlikely to run into further problems with clients and the governing body. The report indicated the lawyer would not be inclined to “put his head in the sand” and concluded “it would be psychiatrically beneficial for him to resume practice and contribute to the community with his legal skills. ”Counsel for the law society didn’t oppose the motion to terminate the suspension. “He’s shown insight into his difficulties,” Janice Duggan said. The panel accepted the motion. Cousins indicated his client has kept up with continuing legal education programs over the course of his suspension and has the support staff in place to return to his practice. As well, Mikitchook’s previous mentor has agreed to help implement a plan of supervision, he said.

Regards,

Blair

Monday, January 4, 2010

Defamation : "Responsible Journalism" as a defence

The Supreme Court of Canada recently released two decisions which will have a major impact on defamation cases.

In Quan v. Cusson (Nov. 9, 2006)(32420) Dec. 22, 09 C was an Ontario police constable who, shortly after the events of September 11, 2001 and without permission from his employer, traveled to New York City to assist with the search and rescue effort at Ground Zero. A newspaper published articles alleging that C had misrepresented himself to the authorities in New York and possibly interfered with the rescue operation. C brought a libel action against the newspaper and the reporters.

In Grant v. Torstar Corp. (Nov. 28, 2008)(32932) Dec. 22, 09 G and his company brought a libel action against a newspaper and reporter after an article was published concerning a proposed private golf course development on G’s lakefront estate. The story aired the views of local residents who were critical of the development’s environmental impact and suspicious that G was exercising political influence behind the scenes to secure government approval for the new golf course. The article quoted a neighbour who said that “everyone thinks it’s a done deal” because of G’s influence. The reporter, an experienced journalist, attempted to verify the allegations in the article, including asking G for comment, which G chose not to provide
In both cases the SCC decided that there is a "responsible journalism" defence in Ontario, including for bloggers, and ordered that there be a new trial.

The "responsible journalism" defence has been adopted by the English courts and gives greater scope to freedom of expression. The defence allows publishers to escape liability if they can establish that they acted responsibly in attempting to verify information on a matter of public interest. The SCC found that this defence represents a reasonable and proportionate response to the need to protect reputation while sustaining the public exchange of information.
This change to the law creates a new defence and leaves the traditional defence of qualified privilege intact. To be protected by the defence of responsible communication the publication must be on a matter of public interest and the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.

Where the defence is raised the trial judge first decides whether the publication is on a matter of public interest and if so, the jury then decides whether the standard of responsibility has been met.

In determining whether a publication is on a matter of public interest, the judge must consider the subject matter of the publication as a whole. To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public, or a segment of the public, has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached. Public interest is not confined to publications on government and political matters, nor is it necessary that the plaintiff be a “public figure”.

The following factors may aid the jury in determining whether a defamatory communication on a matter of public interest was responsibly made: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth; and (h) any other relevant circumstances.

Here are the links to the decisions:
http://scc.lexum.umontreal.ca/en/2009/2009scc62/2009scc62.html
http://scc.lexum.umontreal.ca/en/2009/2009scc61/2009scc61.html

Regards,

Blair