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
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Phone: (613) 232-7171
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