Tuesday, March 26, 2013

Man can sue in Ontario for Lashes given in Qatar

Earlier this month, Master R.A. Muir, of the Ontario Superior Court of Justice, refused to stay an action commenced in Ontario by Fakhrul Islam Kazi against Qatar Airlines and others, as a result of his alleged treatment at the hands of officials in Qatar's criminal justice system. The Master found that the defendants had not met the burden of showing why the court should decline to exercise its jurisdiction and displace Ontario as the forum chosen by the plaintiff with another forum, i.e. Qatar.   

In the case (reported at Kazi v. Qatar Airlines, 2013, ONSC1370), the plaintiff boarded an Air Canada flight from Toronto to London's Heathrow airport. His ultimate destination was Dhaka, Bangladesh. However, his itinerary included a connecting flight between Heathrow to Doha, Qatar, on a flight operated by the defendant, Qatar Airlines.

During the course of the flight from London to Qatar, the plaintiff was involved in a dispute with members of the flight crew who alleged that he was smoking in a lavatory, consuming alcohol and behaving in an unruly and disruptive fashion. As a result, the flight crew notified airport security and the plaintiff was detained upon landing in Doha.

Mr. Kazi was charged with two offences under the laws of Qatar:

(a) drinking wine while being a Muslin; and

(b) disturbing the peace as a result of alcohol consumption.

Mr. Kazi was incarcerated in Qatar for almost two months. He was found guilty and sentenced to receive 40 lashes and pay a fine of approximately $550.

After returning to Canada, Mr. Kazi alleges that he suffered numerous injuries and damages as a result of his treatment while detained. He commenced a lawsuit against the defendants alleging that they had a duty to warn him of the prevailing laws of Qatar with respect to the consumption of alcohol by Muslims and that they had failed to take all reasonable steps to ensure that he was properly informed of such laws.

The defendants subsequently brought a motion seeking to stay the action on the basis that Qatar was the more appropriate forum in which to litigate the dispute.

In reviewing the law as set out by the Supreme Court of Canada's decision in Club Resorts Ltd. v. Van Breda, 2012, SCC17,  the Master concluded that Qatar was not clearly a more appropriate forum for disposing of the issues raised in the action. The Master reviewed factors such as the location of the witnesses and the expense required for them to travel to the place of trial and  the issue of the law to be applied to the claim, both of which he saw were neutral factors.  In applying the test set out in Van Breda, the Master reaffirmed that courts should use an analytical approach to establish the existence of a real and substantial connection between the case and  Ontario, and determine whether there was a similar connection to Qatar.  In this instance, the defendant had not shown that Qatar was clearly "in a better position to dispose fairly and efficiently of the litigation".

Regards,

Blair

Friday, March 8, 2013

Manitoba Metis win Land Dispute Case against Government of Canada

Today the Supreme Court of Canada ruled that the federal government had failed to act diligently in fulfilling its obligation to the Métis settlers of the Red River territory.

A legal challenge by the Manitoba Métis Federation sought recognition for the treatment of its people after the 1870 government land deal that ended in the famous Red River Rebellion lead by Louis Riel.

The decision of the court allowed an appeal from the Manitoba Court of Appeal.

After Confederation, the first government of Canada embarked on a policy aimed at bringing the western territories into Canada. However, the French-speaking, Roman Catholic Métis, who were the dominant demographic group in the Red River Settlement resisted Canada's annexation. After some negotiation with Canada, the Red River settlers agreed to become part of Canada and Canada agreed to grant 1.4 million acres of land to the Métis children and to recognize existing land holdings.  These obligations were subsequently set out in the provisions of the Manitoba Act (the "Act").

However, in the following years, the Canadian government made several mistakes, including determining who had a right to share in the land, distributing the land randomly, and underestimating the number of eligible Métis children.

The Métis sought a declaration that:

1. the Canadian government breached its fiduciary obligations owed to the Métis in implementing the Act;

2. the Canadian government failed to implement the Act in a manner consistent with the honour of the Crown; and

3. certain legislation passed by Manitoba effecting the implementation of the Act was ultra vires.

A trial judge and the Manitoba Court of Appeal dismissed the claim of the Métis.

The Supreme Court of Canada allowed the appeal in part in finding that the government had failed to implement the land grant provisions established in 1870 in accordance with "the honour of the Crown".

The majority of the court (6 judges) held that the statutory obligations under the Act did not impose a fiduciary duty on the Canadian government. Although the Crown undertook discretionary control of the administration of the land grants, the Métis are Aboriginal and they had an interest in the land. The Act simply confirmed the continuance of different categories of land holdings in existence shortly before or at the creation of the new province of Manitoba. It did not constitute an undertaking on the part of the Crown to act as a fiduciary in settling the titles of the Métis land holders.

However, the majority found that the Métis were entitled to a declaration that the government of Canada had failed to act with diligence in implementing the land grant provision of the Act in accordance with the honour of the Crown.

The Court held that the ultimate purpose of the honour of the Crown is the reconciliation of pre-existing Aboriginal societies with the assertion of Canadian sovereignty. Where this is at stake, it requires the Crown to act honourable in its dealings with the Aboriginal peoples in question. This requirement flows from the guarantee of Aboriginal rights in the Canadian Constitution Act. The Constitution is not a mere statute; it is the very document by which the Crown asserted its sovereignty in the face of prior Aboriginal occupation. An explicit obligation to an Aboriginal group in the Constitution engages the honour of the Crown.

In the context of the implementation of a constitutional obligation to an Aboriginal people, the honour of the Crown requires that the Crown:

1. take a broad purposive approach to the interpretation of the promise; and

2. acted diligently to fulfill it.

In this case, a persistent pattern of errors and indifference substantially frustrated the purpose of a solemn promise and amount to betrayal of the Crown's duty to act honourable in fulfilling its promise.

Regards,

Blair


Thursday, March 7, 2013

Truck Stop Awarded Damages for Injury to its Business from MTO

The Supreme Court of Canada released a decision today, that reversed the decision of the Ontario Court of Appeal and confirmed the decision of the Ontario Municipal Board ("OMB") to award damages to a truck stop operation as a result of the construction of highway 417.

Antrim Truck Centre Ltd. owned property on highway 17 and operated a truck stop that included a restaurant and gas bar. In 2004, the Ontario Ministry of Transportation ("MTO") opened a new section of highway 417 running parallel to highway 17 near the truck stop's property. The construction of highway 417 significantly restricted access to the truck stop's land and it was effectively put out of business. The truck stop brought a claim for damages for injurious affection before the OMB under the Expropriations Act. The OMB awarded $58,000 for business loss and $335,000 for loss in market value of the land. The Divisional Court upheld the OMB's decision on appeal. However, the Court of Appeal set aside the OMB's decision on a number of grounds.

In allowing the appeal, the Supreme Court held that the main question to be decided was whether an interference with the private use and enjoyment of land is unreasonable when it results from construction which serves an important public purpose. The reasonableness of the interference must be determined by balancing the competing interest, as in all other cases of private nuisance. The balance is appropriately struck by answering the question of whether, in all of the circumstances, the individual claimant has shouldered a greater share of the burden of construction than it would be reasonable to expect individuals to bear without compensation. In this case, the construction caused significant and permanent loss to the truck stop.

The court held that the Expropriations Act provides a right for compensation for injurious affection if a claimant can meet three requirements:

1. the damage must result from action taken under statutory authority;

2. the action would give rise to liability but for that statutory authority; and

3. the damage must result from the construction and not the use of the works.

In this case, the only unresolved question was whether if the highway construction had been taken under statutory authority, the truck stop could have successfully sued for damages under the law of private nuisance.

The court held that nuisance consists of an interference with a claimant's occupation or enjoyment of land that is both substantial and unreasonable. Substantial means, non-trivial, amounting to more than a slight annoyance or trifling interference.

Where activity is carried out by a public authority for the greater public good ( like MTO), the court held the focus of the balancing exercise is on whether the interference is such that it would be unreasonable in all of the circumstances to require the claimant to suffer it without compensation. The focus in nuisance is on whether the interference suffered by the claimant is unreasonable, not on whether the nature of the defendant's conduct is unreasonable, although that is not an irrelevant consideration.

The Supreme Court held that the Court of Appeal erred in finding that the OMB's application of the law of nuisance to the facts was unreasonable. In fact, it was reasonable for the board to conclude that in all of the circumstances, the truck stop should not be expected to endure permanent interference with the use of its land that caused significant diminution in the land's market value in order to serve the greater public good.

Regards,

Blair



Monday, March 4, 2013

Hate Speech Law Upheld by Supreme Court

In a 6 - 0 decision, the Supreme Court of Canada upheld a ruling by the Saskatchewan Human Rights Commission ("Commission") finding that anti-gay flyers that had been distributed by William Whatcott, contravened section 14 of the Saskatchewan Human Rights Code ("Code") and constituted "hate speech". However, the court also found that the words  "ridicules, belittles or otherwise affronts the dignity of" contained in part of the hate speech provisions of the Code, were not rationally connected to legislative purpose of the addressing systemic discrimination of protected groups, nor tailored to minimally impair freedom of religion and should be struck from the Code.

Whatcott is a born-again Christian and an anti-gay activist living in Saskatchewan.  Whatcott published and distributed four flyers which the Commission found promoted hatred against individuals on the basis of their sexual orientation. Two of the flyers were entitled "Keep Homosexuality Out Of Saskatoon's Public Schools!" and "Sodomites In Our Public Schools". The other two flyers were identical to one another and contained a reprint of a page of a classified ad to which Whatcott added handwritten comments, "Men Seeking Boys".

After a hearing, the Commission held that the fliers were publications that contravened section 14 of the Code because they exposed persons to hatred and ridicule on the basis of their sexual orientation. The Commission also held that section 14 of the Code was a reasonable restriction on Whatcott's rights to freedom of religion and expression guaranteed by sections 2(a) and 2(b) of the Charter of Rights and Freedoms.

On an appeal from Saskatchewan Court of Appeal, the Supreme Court of Canada held that:

1.  First, courts must apply hate speech prohibitions objectively and ask whether a reasonable person, aware of the context and circumstances would view the expression as exposing the protected group to hatred;

2.  Second, the term "hatred" must be interpreted as being restricted to those extreme manifestations of the emotion described by the words "detestation" and "vilification"; and

3.  Third, tribunals must focus their analysis on the effect of the expression at issue, namely whether it is likely to expose the targeted person or group to hatred by others. The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objects to reduce or eliminate discrimination.

In upholding the ruling, the Supreme Court acknowledged that while the prohibition against hate speech in the Code infringes the freedom of expression guaranteed under section 2(b) of the Charter, the objective of the hate speech prohibition is "pressing and substantial". Hate speech is an effort to marginalize individuals based on their membership in a group and can have a societal impact. Hate speech lays the ground work for later, broad attacks on vulnerable groups.

The court also found that the section of the Code was proportionate to its objective. It only prohibited public communication of hate speech, did not restrict hateful expression in private communications between individuals.

However, the court struck down the words, "ridicules, belittles or otherwise affronts the dignity of" in the section of the Code and found that they were not rationally connected to the legislative purpose of addressing systemic discrimination of protected groups and unjustifiably infringed on freedom of expression.

On balance, the court found that the benefits of the suppression of hate speech and its harmful effects outweigh the detrimental effect of restricting expression which by its nature does little to promote the values underlying freedom of expression.

Accordingly, the court concluded that the first two flyers constituted hate speech and that it was not unreasonable for the Commission to conclude that the content of the flyers were more likely than not to expose homosexuals to hatred.

With respect to the second two flyers, the court held that it was not reasonable to find that it would expose persons of same sex orientation to detestation and vilification. The handwritten expressions, while offensive, did not demonstrate the hatred required by the publication.

Regards,

Blair