Bowen's Law

Freedom 67

2012-02-07T11:56:00.000-08:00

My colleague Priscilla Healy, pension law expert, offers the following observations about a universal concern - will I have enough money to retire when I want to retire?

We need to change our mind-set. We are going to have to work longer. Everyone who retires either voluntarily or involuntarily from the workforce and who still needs an income cannot set up in business for themselves. Jobs (paying) for those over age 60 or 65 need to be available.
Accordingly, our personal, social and workplace perspectives as to older workers are going to have to become much more positive.

Only a government with a majority and then only in the early years of its mandate could dare to
touch social benefits to seniors. That said, raising the age of eligibility for the Old Age Pension to
age 67 as proposed – or floated – may be inevitable. Clearly there will need to be a long phasing-in period, and a discussion as to the appropriate level for claw-backs. There also needs, of course, to be a discussion about Government spending priorities.

At $540.12 per month for two years, gently indexed for inflation, some or all of which may be clawedback, the loss may not seem like much to middle income earners. No problem, as long as we get enough notice. We will simply work longer, save more and/or make do with less income from our savings if we have to draw on them earlier.

We are indeed healthier and living longer. But is everyone, or at least almost everyone, really able to work longer than age 65? Forget about whether we want to. Could we even find a job? What about older, white collar workers who have lost their jobs through downsizing? Finding a comparable job in their field can be very difficult for older, white collar workers who are laid off. What about workers, both men and women, who are not physically able to work at their jobs much longer? What about people with physical and mental health issues that are not serious enough to receive disability benefits but which are impediments to employment?

There is currently a very long stretch already between involuntarily retirement, which could happen any time after age 55 or even 50, and age 65. Many Canadians do not have workplace pensions, and fewer have pensions that are not substantially reduced if they commence before age 65. The maximum CPP payment in 2012 is $986.67 per month, again gently indexed. CPP payments cannot be taken before age 60, and they are reduced by over 6% a year if taken before age 65. $540 a month can make a considerable difference if the only other income is a reduced CPP.

Financial planning? But how many people are able to save adequately for a retirement that
unexpectedly starts too early? What are older people who do still need an income and cannot get jobs to do? Set up a consulting business? Make a business out of a hobby or skill? Fine, if they have the energy and skills and can invest in start up costs. Work as a Walmart greeter or as a crossing guard? Perhaps. Drastically downsize lifestyle. Yes. Abandon recreational plans for retirement? Yes. Apply for income supplements through Gains or GIS? May or may not qualify. Apply for welfare? Probably won't qualify. Depend on adult children? An unfair generational cost shift.

The problems of the aging population were not created by the current government. Everyone needs to save for retirement. Everyone needs to recognize and provide for the possibility that they may not be able to work as long as they plan. Everyone needs to take care of their health. Depending on government programmes in the long run is risky.

There is however, good news. The boomers are beginning to retire. It will be interesting to see how society, and government programmes, adjust.

Invasion of Privacy now a tort

2012-01-20T04:43:00.001-08:00

The Ontario Court of Appeal recognized a tort of invasion of privacy called "intrusion on seclusion".

The Facts

Jones and Tsige worked at different branches of the Bank of Montreal (“BMO”). Jones maintained her primary bank account there. Jones and Tsige did not know or work with each other. However, Tsige became involved in a relationship with Jones’ former husband. For four years, Tsige used her workplace computer to access Jones’ personal BMO bank accounts at least 174 times. The information displayed included transactions details, as well as personal information such as date of birth, marital status and address. Tsige did not publish, distribute or record the information in any way.Jones became suspicious that Tsige was accessing her account and complained to BMO. When confronted by BMO, Tsige admitted that she had looked at the account.

Tsige alleged that she was involved in a financial dispute with Jone’s former husband and accessed the accounts to confirm whether he was paying child support to the appellant. Jones said this explanation was inconsistent with the timing and frequency of Tsige’s snooping. BMO disciplined Tsige by suspending her for one week without pay and denying her a bonus.

Jones commenced an action asserting that her privacy interest in her confidential banking information was “irreversibly destroyed” and claimed damages of $70,000 for invasion of privacy and breach of fiduciary duty, and punitive and exemplary damages of $20,000. The Superior Court denied her claim on the basis that Ontario has not recognized a tort of invasion of privacy. The Ontario Court of Appeal held that a right of action for "intrusion upon seclusion" exists in Ontario and awarded Jones $10,000 in damages.
The New Tort

The court adopted the definition of the tort of “intrusion upon seclusion”, from the American Restatement:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

Key Features of the Cause of Action

The key features of this cause of action are, first, that the defendant’s conduct must be intentional, which includes recklessness; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action.

Limitations on the Cause of Action
A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.

Claims for the protection of privacy may give rise to competing claims like claims for the protection of freedom of expression and freedom of the press.

Damages will be Modest

Damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum. The Court held that "damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done." The Court fixed the range at up to $20,000 but did not preclude the availability of aggravated or punitive damages.

Regards,

Blair

Lessons learned about the Hague Service Convention

2011-10-03T06:06:00.000-07:00

LESSONS I LEARNED ABOUT THE HAGUE SERVICE CONVENTION
On November 15, 1965, members of the Conference on Private International Law met in The Hague, Netherlands, and signed a multi-lateral treaty called The Convention On The Service Abroad Of Judicial And Extra-Judicial Documents In Civil Or Commercial Matters (commonly referred to as the "Hague Service Convention" or the "Convention"). Among the stated purposes of the Convention were: (a) the need to create appropriate means to ensure that one contracting state's judicial and extra-judicial documents being served abroad would be brought to the attention of the addressee of such documents located in another contracting state "in sufficient time"; and (b) to improve "mutual judicial assistance" by simplifying and expediting the procedures around the service of documents .
To many observers in 1965, these goals had to be achieved if divergent legal systems were to follow the path that international commerce had begun to pave. Prior to the enactment of the Hague Service Convention, service abroad of Ontario's judicial documents in civil cases was generally effected by means of letters rogatory. These letters are a formal request from an Ontario court to a foreign court asking that court to give formal effect to serve Ontario's judicial documents on a party located in the receiving state.
Historically, foreign states had accepted such requests from Ontario courts on the basis of the doctrine of comity. Comity is often defined as reciprocity of treatment, in other words courts in one state will recognize and give effect to the laws of a foreign state only if the same recognition is given to the home state's laws by the courts of the foreign state.
As the Supreme Court of the United States said in the 19th century case of Hilton v. Guyot:
"Comity in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and goodwill, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws."
However, comity has often been criticized for relying too heavily on judicial discretion instead of a desire to show courtesy to other states . Instead, the critics sought to propound a theory of "vested rights" where the home state did not recognize or enforce foreign law as a matter of comity, but as a matter of justice which gave effect to private rights which, in the home state's judgment, a person had duly acquired under a foreign system of law.
In practice, the recognition and enforcement of Ontario's letters rogatory by foreign states proved to be cumbersome and time-consuming. Not all foreign states gave prompt effect to requests to serve judicial documents upon parties located within their borders.
The Hague Service Convention strove for more efficient and reliable procedures to serve judicial and extra-judicial documents on foreign parties.
The members of the Hague Conference recognized that by 1965, the world was a much different place than the world in which the judges who decided Hilton v. Guyot lived. There was an increasing need to "facilitate the flow of commerce, skills and people across international borders". The world economy was becoming increasingly more integrated and it was necessary for private international law to respond.
How The Convention Is Supposed To Work
Pursuant to the provisions of the Convention, each contracting state is required to designate a Central Authority to receive requests for service coming from other contracting states.
Article 5 of the Convention provides that the Central Authority of the receiving state can either serve the document itself, arrange to have it served by an appropriate agency in accordance with the receiving state's own internal laws for the service of documents or serve the documents by the method requested by the applicant (unless that method is incompatible with its laws).
Article 5 also provides that, if the document is to be served in accordance with the receiving state's own internal laws, the Central Authority may require the document to be written in, or translated into, the official language, or one of the official languages of the receiving state.
Article 10 of the Convention provides:
Provided the state of destination does not object, the present Convention shall not interfere with:
(a) the freedom to send judicial documents, by postal channels, directly to persons abroad;
(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination; and
(c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent officials of the State of destination.
How The Convention Does Work
In a recent case, we represented an Ontario corporation which that became involved in a contractual dispute with a Mexican non-profit entity as well as that entity's two principals. The client's headquarters were located in Toronto. All of the opposing parties resided in Mexico City.
Unable to resolve the dispute through negotiation, the client commenced legal proceedings against the Mexican nationals in the Ontario Superior Court of Justice.
Service Outside Ontario
Under Ontario's Rules of Civil Procedure ("Rules"), defendants to an action commenced in Ontario may be served outside Ontario with the originating process (in the case, the originating process was a statement of claim) without leave of the court if the case falls within the types of cases enumerated in the Rules: i.e. where the proceeding against that party consisted of a claim or claims in respect of, among other things, a tort committed in Ontario; damages sustained in Ontario arising from tort, breach of contract, breach of fiduciary duty or breach of confidence wherever committed; or where the defendants are ordinarily resident or carrying on business in Ontario.
This Rule codifies, in part, the common law principle of "jurisdiction simpliciter" which allows an Ontario court to assume jurisdiction over non-resident defendants where there is a "real and substantial connection" between Ontario and such non-resident defendants.
In this case, damages had been sustained by our client in Ontario. In addition, the contract in question provided that the courts of Ontario were to have jurisdiction over legal proceedings "in respect of the contract". On that basis we believed that Ontario courts could assume jurisdiction over the Mexican defendants.
The Rules also incorporate the Hague Service Convention by reference and provide that "an originating process or other document to be served outside of Ontario in a contracting state shall be served, (a) through the Central Authority in the contracting state; or (b) in a manner that is permitted by Article 10 of the Convention and that would be permitted by the Rules if the document were to be served in Ontario.
Canada signed the convention in September of 1988 and Mexico ratified it in November of 1999.
Mexico is one of Canada's largest trading partners, a partner in NAFTA, it's third largest trading partner by share of total imports and fifth largest by share of total exports. There is a vast amount of business conducted between Canadian and Mexican entities on a daily basis. One would think that forty-five years after the Convention was enacted, it would not be difficult to effect service of an Ontario statement of claim on Mexican defendants.
Lesson No. 1: Retain The Assistance Of Lawyers In The Foreign State
Shortly after the contractual dispute arose, the client retained Mexican lawyers to negotiate with the Mexican defendants. The client's Mexican lawyers proved to be invaluable in guiding us through what was supposed to be a simple procedure. We encountered a series of rules and barriers, not imposed by the Convention but which had been established by the Mexican authorities in applying the Convention.
After the settlement negotiations between the parties had broken down, I wrote a letter to the Mexican defendants setting out the substance of our client's claim against them. I enlisted the assistance of our client's Mexican lawyers to deliver the letter on our behalf. This simple process of making a demand for payment was our first indication that suing Mexican defendants might be more formal and rule-oriented than we had anticipated.
The Mexican lawyers recommended that the client provide them with a power of attorney so that they could deliver the letter by means of a notary public. This, they explained would make the demand more formal and "serious". Accordingly, the client executed the appropriate form of power of attorney and we couriered five original copies of the demand letter to the Mexican lawyers.
No satisfactory response to the letter was received and we issued a statement of claim in Ontario against all three defendants. Accordingly, it was necessary to effect service of the statement of claim pursuant to the provisions of the Hague Service Convention.
The Mexican lawyers advised that, although Mexico was a signatory to the Convention, when that country ratified the Convention, it objected to serving judicial documents pursuant to the procedures set out in Articles 8 (Article 8 allows a contracting state to serve documents upon persons outside of its borders directly through diplomatic or consular agents. However, any state may declare that it is opposed to such service within its territory (which Mexico clearly did) unless the document is to be served upon a citizen of the originating state) and 10 of the Convention. That posed a problem for us as Article 10 had been specially incorporated into Ontario's Rules.
Article 10 of the Convention states that, provided the state of designation does not object (again which Mexico clearly did) the Convention would not interfere with such things as the freedom to send judicial documents by mail, through judicial officers or other competent persons in the state of designation.
This objection was a further indication of the "formal" approach that Mexico takes in these matters. The Mexican lawyers advised us that Mexico had designated a branch of its Ministry of Foreign Relations as its Central Authority to receive documents for service from other countries. The Ministry upon satisfying itself as to the content of the documents, would then transmit the documents to the Federal Court of Mexico in order to have them served.
The Mexican lawyers advised us that to comply with Mexican law, we would need to take the following steps to properly serve the statement of claim on the Mexican defendants:
1. complete, in duplicate, a "Request for Service Abroad of Judicial or Extra-Judicial Documents" form ("Request Form");
2. translate the Request Form and the statement of claim into Spanish using an official translator in Mexico;
3. submit the Request Form, statement of claim and translations thereof in duplicate to the Mexican Central Authority;
4. retain Mexican lawyers to pursue the client's request for service with the Mexican Central Authority and the Mexican Federal Court and grant the Mexican lawyers a second power of attorney to enable them to represent the client before the Mexican Central Authority and Federal Court. We were advised that the power of attorney would have to be notarized and "legalized" at the Mexican Consulate in Mexico City.
Lesson No. 2: If Possible, Obtain An Advance Ruling From The Receiving State's Central Authority
The client's Mexican lawyers sent the required form of power of attorney for the client's execution. The client signed and returned it. Some weeks later, the Mexican lawyers advised that the power of attorney was "invalid" because it didn't bear a "legalization" stamp from the Mexican Consulate in Toronto (something they had not advised us of before). Accordingly, the Mexican lawyers returned the power of attorney to us so that we could get it stamped by the Mexican Consulate.
The next day, the Mexican lawyers advised us that before being stamped by the Mexican Consulate, the power of attorney must first be approved by Canada's Ministry of Foreign Relations. They advised that alternatively, the client could attend at the Mexican Consulate to sign a new power of attorney in accordance with Mexican law. We took the second route and returned the power of attorney to Mexico.
A few days later, the Mexican lawyers advised us that the Request Form should not only refer to the statement of claim but also to all of the documents that were required to be served on the defendants. They indicated that these documents should include the client's certificate of status as a corporation and the power of attorney. We made all such amendments suggested by the Mexican lawyers, in triplicate (also at their suggestion). The Mexican lawyers advised that we should return the documents either through the Central Authority in Ontario or have them stamped by the Ontario Court. We opted for the first route.
After we had delivered the documents back to Mexico, the Mexican lawyers advised us that the Mexican Central Authority had determined that the documents were acceptable "in principle", but were missing the "official stamp and signature" of the Canadian Central Authority. In response, we contacted the Central Authority in Haileybury, Ontario to obtain the Central Authority's signature. Once again we returned all of the documents to the Mexican lawyers.
Several weeks later, the Mexican lawyers advised us that the Mexican Central Authority had rejected the documents again because the Request Form had not been signed by an official of the Ontario Court (although it had been signed by the Central Authority as they had requested) and the "notice to the defendants" in the statement of claim (the pre-printed preamble) did not specify whether the time for responding to the claim was to be calculated in business or calendar days.
It took some brilliant advocacy by our law clerk to persuade the Registrar of the Ontario Superior Court of Justice at Toronto to sign the Request Form, particularly after she advised him that it was the court's policy not to do so. We then sent the full set of documents back to the Central Authority in Haileybury to obtain an updated Request Form.
Lesson No. 3: Make Additional Originals Of Everything
After we received the documents from the Central Authority in Haileybury, but before we returned them to Mexico, the Mexican lawyers advised us that the Mexican Central Authority was now asking for two sets of original documents (as opposed to copies) for each of the three defendants that we wished to serve. This was a completely new requirement. Accordingly, our clerk was required to re-attend before the Superior Court Registrar and ask her sign the Request Form once again.
The Mexican lawyers advised that the request for duplicate originals was indeed new and although such a request was not a requirement of the Convention or even Mexican law, it was a requirement of the clerk at the Mexican Central Authority who was seized with reviewing our request.
Once again, we returned the full set of documents to the Mexican lawyers. They advised us that the documents were complete and that they would send them to be translated into Spanish before they filed them with the Mexican Central Authority.
Several weeks later we were informed by the Mexican lawyers that the Mexican Central Authority had once again rejected the documents because they continued to be of the view that the preprinted preamble of the statement of claim did not clearly distinguish between business days or calendar days even though we had specifically made that distinction in the request summary.
Accordingly, we resigned ourselves to going through the process once again. However, to our surprise the Mexican Ministry of Foreign Relations, on its own initiative, informed us that they had decided to accept the documents and had transmitted them to the Superior Court in Mexico City to proceed with service.
Lesson No. 4: Start Early
The Mexican defendants were served with the statement of claim approximately 10 months after it was issued. As the Rules provide that a statement of claim must be served within six months after it is issued, it was necessary to obtain an order extending the time for service.
Accordingly, I recommend that you make contact with lawyers in the foreign jurisdiction even before an Ontario claim is issued to ensure that you have a good handle on the unique requirements of the jurisdiction for service of Ontario judicial process. Doing so will save you time and inconvenience, and save your client money. It would also achieve the main goal of the authors of the Convention – by simplifying and expediting the process.

Blair W.M. Bowen – Fogler, Rubinoff LLP, Toronto, Canada

Ontario Proper Forum for Mexican Accident Victims

2010-11-05T05:34:00.000-07:00

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

Fraternal Relationship Trumps Artistic Talent

2010-09-16T09:17:00.000-07:00

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

2010-09-16T09:10:00.000-07:00

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

Supreme Court uphold's Robert Pickton's murder conviction

2010-07-30T08:47:00.000-07:00

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

Damages for Breach of Charter Rights

2010-07-29T11:07:00.000-07:00

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

Administrative Tribunals and the Canadian Charter of Rights

2010-06-18T06:22:00.000-07:00

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

Beware Limitation Period for Foreign Arbitral Awards

2010-05-27T04:57:00.000-07:00

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

No Protection of Confidential Sources for Evidence of Crimes

2010-05-19T07:02:00.001-07:00

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

2010-05-19T06:42:00.000-07:00

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

Supreme Court Orders Lawyer to Work for Free

2010-03-29T14:17:00.000-07:00

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

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

2010-02-18T08:57:00.000-08:00

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

The Supreme Court of Canada Weighs in on Contract Interpretation Principles

2010-02-17T08:39:00.000-08:00

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

NAN Grand Chief: What Treaties Mean

2010-02-05T11:30:00.000-08:00

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

US Supreme Court Green Lights Special Interest Money

2010-01-25T12:08:00.000-08:00

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

Law Society Reinstates Multiple Repeat Offender

2010-01-20T11:34:00.000-08:00

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

Defamation : "Responsible Journalism" as a defence

2010-01-04T14:31:00.000-08:00

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

Wal-Mart beats the Union

2009-12-03T09:45:00.000-08:00

Attention Wal-Mart shoppers:

In Plourde v. Wal‑Mart Canada Corp., 2009 SCC 54 the Supreme Court of Canada considered an application by an employee to be reinstated after a Walmart store had been closed ostensibly to defeat union certification.

The union certified to represent the employees of Wal‑Mart in Jonquière, Quebec. The Jonquière store was the first Wal‑Mart store to be unionized in North America. After several fruitless bargaining sessions, the union filed an application under the Quebec Labour Code to establish the provisions of a first collective agreement. On February 9, 2005, the Minister of Labour referred the dispute to arbitration and notified the parties of the referral. That same day, Wal‑Mart informed the employees of its decision to close the store. On April 29, 2005, approximately 190 employees were terminated. Many proceedings were initiated by the Wal‑Mart employees or their union arising out of the store’s closure, which was presented by the union merely as a step taken by Wal‑Mart in a larger employer strategy of hindrance, intimidation and union‑busting. P filed a complaint under ss. 15 to 17 of the Labour Code claiming to have lost his employment because of his union activities and sought an order that he be reinstated in his job.

The Commission des relations du travail (“CRT”) held that P could rely on the presumption under s. 17, since he had engaged in numerous significant union activities that were concomitant with the termination of his employment. However, the CRT found that Wal‑Mart had shown the store’s closure to be genuine and permanent and that in itself, according to a long line of cases from City Buick onwards, is “good and sufficient reason” within the meaning of s. 17 to justify the dismissal. The Superior Court dismissed P’s application for judicial review and held that the CRT was correct in not requiring Wal‑Mart to prove its reasons for closing the store. The Court of Appeal dismissed P’s motion for leave to appeal.

The Supreme Court of Canada dismissed the appeal but was careful in its reasons to limit the effect of the decision to the specific procedural issue presented by the Labour Code. Specifically the court found that the reinstatement remedy which was sought by the appellant was not available where the employer had closed the premises.

The court held that the question raised by the appeal was not whether employees have a remedy against an employer who closes a workplace for anti‑union motives (they do have such a remedy under ss. 12 to 14 of the Code) but whether employees of a closed business can bring their claim within ss. 15 to 17 so as to obtain the advantage of a statutory presumption that they lost their jobs because they exercised their collective bargaining rights. Under ss. 15 to 17, the question before the tribunal relates to the reasons for the employees’ loss of jobs whereas the question that can be put in play under ss. 12 to 14 is the broader issue of why the plant was closed at all, and specifically was it closed as part of an anti‑union strategy.

A finding of an unfair labour practice under ss. 12 to 14 opens up broader redress under the general remedial provisions provided by ss. 118 and 119 of the Code for the benefit of all employees who suffered as a result of the wrongful store closure, including those who where not involved in union activity, and even for those who opposed the union.

In the earlier Place des Arts decision the SCC held that no legislation in Quebec obliged an employer to remain in business and that an employer can close a plant for “socially reprehensible considerations”. In this case the SCC held that the effect of Place des Arts was to exclude in a workplace closure situation the application of s. 17 but not to immunize an employer from any financial consequences for associated unfair labour practices. Nor did it preclude a finding that the closure itself constitutes an unfair labour practice aimed at hindering the union or the employees from exercising rights under the Code. It is open to a union or employees to bring evidence of anti‑union conduct to establish an unfair labour practice under ss. 12 to 14 of the Code.

Therefore the procedural vehicle offered by ss. 15 to 17 of the Labour Code is not available to an employee in circumstances where a workplace no longer exists. The s. 15 reinstatement remedy presupposes the existence of a place to which reinstatement is possible.

Regards,

Blair

Law firm accused of "naked cash grab"

2009-11-23T09:50:00.000-08:00

A Report from the Law Times by Tim Shufelt Publication Date: Monday, 23 November 2009

A Toronto litigation boutique possibly will be on the hook for legal costs after its conduct sparked a harsh rebuke by a Superior Court judge in a long-running trusts-and-estates saga. Polten & Hodder, along with lawyer Eric Polten, was the subject of strongly worded condemnation from Justice David Brown, who said the firm ran up “scandalous” legal costs and “attempted to perpetrate a naked cash grab” on two elderly clients. Polten, whose experience includes domestic and international family and estate law matters, also misrepresented himself to the court and was in breach of his professional duties as an officer of the court, Brown said in a judgment in Miksche Estate v. Miksche released this month. According to Sandra Schnurr, counsel for the estate trustee, the legal gossip mill is churning with news of the ruling.“It already seems to be well known. I’ve had numerous lawyers comment to me on it,” she says. On the ruling itself, Schnurr says the judge’s decision speaks for itself. “I’m satisfied but I’m not jubilant. Whenever I see a colleague at the bar being harshly criticized, it makes me uncomfortable,” she says.

In representing Johanna Miksche, a Scarborough woman who died two years ago, and her sister Ursula Lill, Polten racked up more than $1 million in legal fees that he first tried to recover from the Miksche estate and then from the older sister, who was the primary beneficiary, the ruling said.“Having been rebuffed in his effort to have the assets of one vulnerable person satisfy the scandalous costs he ran up, Mr. Polten came before me on this application attempting to poach upon the assets of another vulnerable person. From such conduct, I conclude that Mr. Polten was prepared to use any means to place his financial interests in this proceeding ahead of those of his former clients,” Brown wrote. “Such conduct merits the strongest condemnation by this court.”When reached for comment, Polten would only say that he would be appealing the decision. “The matter will be dealt with in the notice of appeal,” he says in response to questions about specific criticisms in the ruling. “I presently have no other comment.”

Miksche was 78 when she passed away in a long-term care facility in Scarborough. Her husband had died many years prior, and her only living sibling was her sister, who was then 87 and living in Germany.Miksche had previously granted powers of attorney to two friends who were also included as beneficiaries in her will.Then in 2005, Miksche’s three nephews travelled from Germany to visit their aunt in the care facility, accompanied by a member of Polten & Hodder.At that time, Miksche also granted powers of attorney to one of her nephews as well as her sister and signed a retainer for Polten & Hodder. The two groups — Miksche’s two friends on the one hand and her relatives on the other — then filed competing applications for guardianship.Before a decision could be rendered, Miksche died, prompting the parties to submit claims for costs.“The Polten and Hodder firm sought the staggering amount of $1,038,297 . . . against Johanna’s estate,” Brown wrote. Not only did the amount include a success premium but it also exceeded the value of the estate, according to the judgment.

In a separate 2007 ruling on the same matter, Superior Court Justice Nancy Spies called the arguments raised by the law firm “preposterous” and “alarming” and said the legal approach advocated by the firm exploited the elderly woman. The firm had also alleged on behalf of the nephews that Miksche’s two friends had held her as a “prisoner” in the care facility. “I do not understand how Mr. Polten even has the audacity to make this submission,” Spies wrote, adding that the submission demonstrated a “complete detachment from reality and lack of judgment.” The judge awarded the nephews costs of $35,500 but ordered them to first cover $28,000 in legal fees to Miksche’s two friends. Polten & Hodder appealed the ruling on behalf of Lill and the nephews but a few days later made an offer to settle by proposing to drop the matter in return for an agreement on how to distribute the estate to its beneficiaries. The offer, however, “radically changed the flow of estate funds to Ursula Lill,” Brown wrote, noting that all of the residual assets of the estate would be payable to the law firm in trust under the new arrangement.“And it was quite clear from the written and oral submissions made by Mr. Polten what would happen to those funds once in his trust account — there they would stay until he was able to extract from Lill payment of his ‘scandalous’ costs claim.”

Regards,

Blair

Supreme Court clarifies ad hoc fiduciary relationships

2009-11-16T06:34:00.000-08:00

In the recent case of Galambos v. Perez, P made voluntary sizeable advances of cash — some $200,000 in total — to her employer, a law firm founded by G, often without informing G beforehand. Although P was hired as the firm’s part‑time bookkeeper she effectively became the office manager, overseeing the firm’s income, expenses and accounting and had unlimited signing authority on the firm’s non‑trust bank accounts. Initially, to resolve a cash flow problem, P obtained a personal loan and deposited $40,000 into the firm’s bank account. G did not ask her to advance this money and he did not even know about the advance until several days later. G instructed P to reimburse herself with interest, instructions she did not follow other than by repaying herself $15,000. As the firm’s financial situation deteriorated, P made several more deposits of her own funds into the firm’s account and covered some firm expenses with her personal credit card. The firm, during the time she worked for it, handled the preparation and execution of new wills for P and her husband as well as two mortgage transactions. The firm did not expect to be and was not paid for these services. When the firm went into receivership and G went bankrupt P found herself an unsecured creditor and recovered nothing. P then sued G and the defunct firm for negligence, breach of contract and breach of fiduciary duty.

The trial judge dismissed P’s claims, finding that her rights were those of a creditor and nothing more. The Court of Appeal set aside that decision and granted P judgment for $200,000. The Court of Appeal concluded that there were ad hoc fiduciary duties owed to P by G and his law firm in relation to the cash advances. It held that: there was a power‑dependency relationship between P and G; it is not necessary that there be any mutual understanding that G had relinquished his self‑interest in favour of P’s for the duty to arise; P was vulnerable; and, the evidence overwhelmingly supported the conclusion that G took advantage of her trust.

The Supreme Court of Canada restored the decision of the trial judge and held that the Court of Appeal had exceeded the limits of appellate review and unduly extended the scope of fiduciary obligations. Absent an error of law or a palpable or overriding error of fact the SCC held that the trial judge’s findings of fact and conclusion that a fiduciary duty did not exist must be upheld on appeal. In this case, the Court of Appeal retried the case on the basis of the written record and substituted its view of the facts and their significance for that of the trial judge.

The SCC held that the Court of Appeal erred in three respects.

1. The conclusion that G was in a position of power and influence relative to P was at odds with the findings of fact at trial that P was not vulnerable in terms of her relationship with G. There was no evidence of any express requests for loans, which makes it illogical to conclude that P was unable to refuse requests when there were in fact none.

2. Not all power‑dependency relationships are fiduciary in nature and identifying a power‑dependency relationship does not, on its own, materially assist in deciding whether the relationship is fiduciary or not. There are no special rules for recognition of fiduciary duties in the case of power‑dependency relationships. The Court of Appeal erred when it held that, in the case of a power‑dependency relationship, a fiduciary duty may arise even in the absence of a mutual understanding that one party would act only in the interests of the other. In both per se and ad hoc fiduciary relationships, there will be some undertaking on the part of the fiduciary to act with loyalty. The Court of Appeal’s analysis went wrong when it found a fiduciary duty without finding an undertaking, express or implied, on the part of G that he would act in relation to the loans only in P’s interests, and based its conclusion that a fiduciary duty existed on P’s expectations alone.

3. The Court of Appeal appears to have accepted the proposition that a fiduciary duty may arise even though the fiduciary has no discretionary power to affect the other party’s legal or important practical interests. The nature of this discretionary power to affect the beneficiary’s legal or practical interests may, depending on the circumstances, be quite broadly defined. It may arise from power conferred by statute, agreement, from a unilateral undertaking or, in particular situations by the beneficiary’s entrusting the fiduciary with information or seeking advice in circumstances that confer a source of power. The presence of this sort of power will not necessarily on its own support the existence of an ad hoc fiduciary duty; its absence, however, negates the existence of such a duty. The findings of the trial judge that the evidence did not establish that P relinquished her decision‑making power with respect to the loans to G, and that G had no discretionary power over P’s interests that he was able to exercise unilaterally or otherwise, were fatal to P’s claim that there was an ad hoc fiduciary duty on G’s part to act solely in her interests in relation to these cash advances.

Finally, the SCC held there had been no conflict of interest. Given the limited nature of the retainers and the unusual nature of the advances G and the law firm did not breach their duty of care arising from the solicitor‑client relationship between them and P. There was no actual conflict of interest between the firm’s duties to her in connection with the limited retainers and its interest in receiving the advances and there was not any reasonable apprehension of conflict. Given the very limited nature of the retainers and the manner in which the advances were made — unsolicited and frequently without advance notice — there was no duty on the firm under negligence principles to give P advice about those advances or to insist that she obtain independent legal advice about them.

Regards,

Blair

Letters of Credit and the Bank's Duty of Good Faith

2009-11-12T07:03:00.000-08:00

In the case of Nareerux Import Co. Ltd. v. Canadian Imperial Bank of Commerce, 2009 ONCA 764 the Court of Appeal held that a Bank owes a duty of good faith to the holders of letters of credit so that the bank cannot act in a manner which would defeat the purpose of the letter of credit.

Robertson was a customer of CIBC, and financed the purchase of shrimp from Thailand Fisheries through a credit facility arranged with the Bank. Upon arrival in the United States, the shrimp were stored in large warehouses where they awaited purchase from various Sam’s Club outlets. Payment was to be made under letters of credit upon presentation to CIBC of purchase orders and receipts showing that the shrimp had been taken down by Sam’s Club.

Although Thai Fisheries had not been paid for all of the shrimp it supplied under the letters of credit, the proceeds of sale from the shrimp were used by Robertson and the Bank to reduce the Robertson line of credit that had been arranged to finance the trade transaction.

Thai Fisheries argued that CIBC and Robertson colluded to reduce Robertson’s line of credit – and therefore CIBC’s exposure – by arranging for shrimp to be sold without documentation from Sam’s Club and then relying on non-compliance with the letters of credit to refuse payments, while at the same time directing the monies received to reduce Robertson’s overdraft instead of ensuring that the monies were used to pay Thai Fisheries under the letters of credit.

CIBC argued that it did nothing improper, that it complied with the provisions of the letters of credit, which were not honoured because the requisite documentation was not presented, and that Thai Fisheries knowingly ran the risk of this eventuality when it accepted the letters of credit.

The trial judge ruled in favour of Thai Fisheries and granted judgment in its favour in the amount of $10,381,035 together with pre-judgment interest and costs. The court of Appeal dismissed the appeal.

CIBC raised one defence only: Thai Fisheries failed to comply with its obligation imposed by the special conditions in the Letters of Credit because receipts from Sam’s Club, through Robertson, were never delivered to CIBC. Since letters of credit must be strictly construed the delivery of the receipts from Sam’s Club was a pre-condition to payment. No receipts were provided for the shrimp in question, and therefore CIBC was not liable to pay.

The Court of Appeal held that CIBC was not entitled to rely upon the defence of non-compliance because:
(a) CIBC knowingly contributed to, or acquiesced in, the circumstances that undermined the prospect of strict compliance with the Letter of Credit, then used that non-compliance to justify the refusal of payment. It did so in collaboration with its customer, Robertson, in order to ensure that the proceeds of sale of the shrimp sold under the Letters of Credit were used to reduce the Bank’s exposure on the Robertson line of credit without corresponding payments being made to Thai Fisheries under the Letters of Credit. This conduct was either a direct breach of the principle of autonomy underlying letter of credit transactions or a breach of CIBC’s implied duty of good faith not to act in a manner meant to defeat or eviscerate the purpose of the Letters of Credit, On either scenario CIBC, as issuer of the Letters of Credit, was precluded from raising the defence of non-compliance.
(b) CIBC failed in its obligation to give timely notice of dishonour to Thai Fisheries when it held back on notifying the seller for more than a year that no receipts would be forthcoming and that the Letters of Credit would be cancelled. In doing so, CIBC placed Thai Fisheries in a position where it reasonably believed that the Letters of Credit would be honoured when the problems with the receipts had been resolved. Consequently, Thai Fisheries took no steps to protect itself by seeking return of the shrimp until it was too late and the shrimp had all been sold.

Regards,

Blair

Bell, Telus ordered to give subscribers credits

2009-09-21T11:26:00.000-07:00

The Supreme Court of Canada released a recent judgment that provided a much needed boost to many Canadians. The Court upheld a decision of the CRTC that required carriers such as Bell Canada to give their subscribers credits or reduce their rates.

In May of 2002, the CRTC, in the exercise of its rate-setting authority, established a formula to regulate the maximum prices to be charged for certain services offered by carriers such as Bell Canada (the "Price Caps Decision"). Under the formula established by the Price Caps Decision, any increase in the price charged for services in a given year was limited to an inflationary cap, less a productivity offset to reflect the low degree of competition in the marketplace. The CRTC ordered carriers to establish deferral accounts as separate accounting entries in their ledgers to record amounts representing the difference between the rates actually charged and those otherwise determined by the formula.

In December of 2003, Bell Canada sought approval from the CRTC to use the balance in its deferral account to expand high-speed broadband internet services in remote and rural communities. After public consultation, the CRTC decided that the deferral account should be used to improve accessibility for individuals with disabilities and for broadband expansion. Any surplus amounts were to be distributed to residential subscribers either through a one time credit or through rate reductions. This was known as the "Deferral Accounts Decision".

Bell Canada appealed the order of giving one time credits. The Consumer Association of Canada and the National Anti-Poverty Organization appealed the decision that funds be used for broadband expansion. The Federal Court of Appeal dismissed the appeals finding that the Price Caps Decision always contemplated that the use of the deferral accounts would be subject to the CRTC's directions and that the CRTC was acting within its mandate. Telus Communications Inc. joined Bell Canada in appealing this decision to the Supreme Court of Canada.

The Supreme Court unanimously dismissed the appeal. It held that the CRTC's decisions were reasonable based on Canadian telecommunications policy objectives. The CRTC did exactly what it was mandated to do under the Telecommunications Act. It had the statutory authority to set just and reasonable rates, to establish deferral accounts, and to direct the disposition of the funds in those accounts. It was obliged to do so in accordance with the telecommunications policy objectives set out in the legislation and to balance and consider a wide variety of objectives and interests. The Supreme Court held that the CRTC did so in a reasonable way, both in ordering subscriber credits and in approving the use of the funds for broadband expansion.

Regards,

Blair

Supreme Court of Canada to hear Khadr Appeal

2009-09-04T11:25:00.000-07:00

Omar Khadr, a Canadian citizen, was taken prisoner in Afghanistan when he was 15 years old and has been detained by U.S. Forces since 2002 at Guantanamo Bay, Cuba, where he is currently facing murder and other terrorism-related charges. During his detention, Mr. Khadr was given no special status as a minor. He was not allowed to communicate with anyone outside Guantanamo Bay until November 2004, when he met with legal counsel for the first time. The Canadian Government has asked, through diplomatic channels, for consular access and other assurances, but it is its policy not to request repatriation until the conclusion of the prosecution.

In 2003, Canadian officials questioned Mr. Khadr, still a minor, at Guantanamo Bay, with respect to matters connected to the charges he is now facing, and shared the product of these interviews with U.S. authorities. In 2006, after formal charges were laid against him, Mr. Khadr sought disclosure in Canada of, notably, the records of the interviews conducted at Guantanamo Bay. The S.C.C. ordered disclosure. After the information was disclosed, it became clear that when the officials interviewed Mr. Khadr, they were aware he had been subjected to a form of sleep-deprivation to make him more amenable and willing to talk.

Mr. Khadr asked the Canadian Government to repatriate him. He sought judicial review of the policy and decision of the Canadian Government not to seek his repatriation. The Federal Court granted the application for judicial review. The C.A. dismissed the appeal.Prime Minister of Canada, Minister of Foreign Affairs, the Director of the Canadian Security Intelligence Service and Commissioner of the Royal Canadian Mounted Police v. Omar Ahmed Khadr (F.C.A., August 14, 2009) (33289) "Granted Without Costs. The application for leave to appeal and the motion to stay the order of the Federal Court of Appeal and to expedite the hearing of the appeal are granted without costs. The appeal is to be heard on November 13, 2009, and the schedule for serving and filing the material and any application for leave to intervene shall be set by the Registrar.

Regards,

Blair

Parent Corporation Liable for Debt of Subsidiary

2009-07-21T12:45:00.000-07:00

In a recent decision (City of Guelph v. Super Blue Box Recycling Corp.) the Ontario Court of Appeal held that a parent corporation was liable to indemnify a party who entered into a contract with the subsidiary corporation even though the parent was not a party to the contract. Eastern Power Limited ("Eastern") is a company that conducts laboratory testing for a technology that transforms municipal solid waste into recyclable products. Eastern was looking for a municipal partner willing to demonstrate the new technology and where it could build a demonstration plant in order to take the technology to the next step and show that it was workable and economically viable. The City of Guelph was interested in becoming a partner because it had a wet-dry facility that could accommodate Eastern's proposed plant.

Eastern made a formal proposal to the City and after a period of negotiation, persuaded Guelph to enter into an agreement with Eastern's wholly-owned subsidiary, Super Blue Box Recycling Corp. ("Super Blue"). Super Blue held the patents for the technology in question but otherwise had no assets.

Guelph and Super Blue subsequently entered into an agreement which contained a lease granting Super Blue an interest to the site on which the facility was to be built and which set out the respective rights and obligations of Guelph and Super Blue with respect to the project. Eastern was not a party to the agreement, however its proposal to the City contained an undertaking that Eastern would indemnify Guelph against liability that may arise as a result of the pilot demonstration project.

A dispute arose between Guelph and Super Blue as to whether the automatic three year extension in the agreement was triggered in January of 2000 leading to a termination of the agreement in January of 2003. The trial judge held in favour of the City.

The Court of Appeal considered, among other things, whether Eastern would be required to indemnify the City even though Eastern was not a party to the agreement and the parties had deliberately excluded a guarantee from Eastern in the agreement. The Court of Appeal accepted the trial judge's view that Eastern was "involved in the indemnity undertaking through its involvement in a larger transaction". In effect, Eastern asked the City to accept its proposal and enter into an agreement with its subsidiary to put the proposal into effect. In exchange, Eastern held out that it would give substance to the proposal and that the City would be indemnified from all costs and liabilities associated with the project. The City accepted the proposal by entering into the agreement with Super Blue.

The Court of Appeal held that these circumstances were sufficient to create an offer, acceptance and consideration to make the undertaking to indemnify enforceable even though Eastern was not a party to the agreement.

Regards,

Blair

Hunting at night an offence despite aboriginal Treaty rights

2009-07-06T08:33:00.000-07:00

In R. v. Jacob, aboriginal defendants were hunting moose from a van on a gravel road at night. They were charged with hunting at night contrary to a provision of the Fish and Wildlife Conservation Act, 1997 ("Act") and one of them was also charged with discharging a firearm across a road contrary to another provision of the Act. The Justice of the Peace before whom the trial was heard rejected the defendants argument that they had a defence to the charges because they were exercising their right to hunt under Treaty 9 at the relevant time. They were convicted and their conviction was affirmed by the summary conviction appeal judge. They appealed their convictions further to the Ontario Court of Appeal.

The Court of Appeal dismissed their appeal and upheld the convictions on the following grounds:

The Court held that section 17(1)(e) of the Act makes it an offence to "discharge a firearm in or across the travelled portion of a right of way for public vehicular traffic". In order to establish that the land in question is a "right of way for public vehicular traffic" the Crown is not required to provide that the provincial government or someone else with legal authority has granted the public the right to use the land by way of dedication or other legal process. One of the purposes of section 17(1)(e) is to prevent members of the public who are travelling in vehicles from the dangers arising from the discharge of firearms. That purpose can best be achieved by interpreting the phrase "a right of way for public vehicular traffic" broadly so as to protect member of the public driving on all lands that are open to public use in vehicles. There is evidence in this case that the road was a roadway used by the public. Accordingly, the Court held that the defendant was properly convicted of the offence under section 17(1)(e) of the Act.

The Court further held that the aboriginal right to fish and hunt in Treaty 9 is subject to an exception for "such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes". The test for determining whether lands are "taken up" is whether the use being made of the land is visibly incompatible with the exercise of the treaty right. Whether or not land has been taken up is a question of fact and must be resolved in a case-by-case basis. Hunting on the road in question in this case was visibly incompatible with the use to which the road had been put for many years. The Court held that it was a well-established primary haul road used by both lumber company employees and the public. Roadways used by the public are incompatible with hunting. The defendants knew about the uses to which the road was put. As a result, the Court found that they were properly convicted of hunting at night.

Regards,

Blair

Denial of hearing upheld by Court of Appeal

2009-07-03T09:30:00.000-07:00

The Ontario Court of Appeal recently ruled on the issue of whether a not-for-profit professional regulatory corporation had dealt fairly with one of its members against whom a complaint had been made.

In an appeal brought by the Appraisal Institute of Canada, the entity that regulates and sets standards of practice for real estate appraisers, the Court of Appeal overturned a trial judgment that awarded damages to a member of the Institute on the basis that its discipline committee had not dealt fairly with him. In the case, a hearing of the institute's adjudicating committee determined that certain charges had been proven against the member. The committee imposed a private reprimand, ordered the member to re-do the appraisal in issue in compliance with current standards and assessed costs of $2,500 against him.

The member appealed to the Ontario Superior Court of Justice and succeeded at trial. The trial judge found that the Institute had an implied contractual obligation to treat the member fairly in conducting its discipline process. The trial judge found that the process had become fatally flawed at the investigating committee stage because the member had been denied a right to a hearing.

The Court of Appeal overturned the decision for the following reasons:

1. The implied contractual obligation of fairness must be informed by the regulation which the Institute's by-laws empower it to make governing the investigating stage of the discipline process. In other words, the regulation sets out how members can expect to be treated. In this case, the regulation provided that the investigating committee was not required to hold a hearing.

2. The investigating committee could impose no sanction or substantive consequence on the member. It could do no more than cause a hearing before the adjudicating committee. As a result, the requirements of the duty to treat the member fairly at the investigating stage were extremely minimal. The member was afforded the opportunity to know what the complaint was against him and to respond in writing about the questions the complaint raised. The Court held that fairness requires no more than that.

The Court concluded that the absence of a hearing before the investigating committee did not deprive the member of any element of procedural fairness.

Regards,

Blair

Supreme Speed

2009-06-18T10:27:00.000-07:00

Statistics show that the Supreme Court of Canada decided cases and leave to appeal applications faster last year than at any time in the past decade. However, the number of completed leave to appeal applications submitted to the Court for decision in 2008 dropped dramatically by 19% to 509.

The Court reduced the time that it took to decide leave to appeal applications to an average of 3 months, the fastest time in at least 10 years. The court also heard and decided appeals at record speed - an average total of less than 17 months between the filing and the leave to appeal application and final judgment.

The downside of these indicators is that it appears to be getting harder for litigants to have their cases heard by the Supreme Court. Over the past 10 years, the percentage of leave applications granted by the Court has fluctuated between 11% and 15%. Based on trends so far in 2009, it appears that the Court will hear about 70 appeals, well below the average of 82 appeals it heard annually in the previous decade. Expert Court watchers say that the number of interesting and important applications has not changed in any respect over the past 3 decades - what has changed is the threshold - it is much harder to get leave now than ever before.

In respect of the types of cases the Court heard in 2008, 39% were criminal, 10% were charter (civil), 7% were charter (criminal). Litigators like me should take note that commercial law cases heard by the court comprised only 6% of its docket.

As to the appeals heard by the Supreme Court of Canada by province of origin, fully 20% originated from the province of British Columbia, 17% from Quebec and 12% from the Federal Court of Appeal. Only 11% of the Court's cases originated from the province of Ontario.

Stay tuned for more news on this front.

Regards,

Blair

Limitation Act amended for Demand Promissory Notes

2009-05-27T15:15:00.000-07:00

Many in the Ontario business community were surprised when the Ontario Court of Appeal held in 2006 that the limitation period for demand promissory notes began to run as soon as the note was issued and not following a default after a demand for payment. This meant that demand notes issued after January 1, 2004 (when the basic limitation period was changed from 6 years to 2 years) became statute-barred 2 years from the date they were issued unless the debtor paid interest or principal or acknowledged the debt in writing. In those cases, the clock on the limitation period restarted after that event.

However, there were many situations, where payments of interest or principal would not be made for many years. For example, in the case of Hare v. Hare, a mother was unable to sue her son on a demand note when her statement of claim was issued more than 6 years after her son's last payment, although it was only a few months after she had demanded payment.

As a result, lawyers were forced to revise their demand notes to draft around the Court's decision. But such creative drafting did not resolve the problem that existed with notes that were already outstanding. As a result of intensive lobbying by various groups, the Ministry of the Attorney General enacted amendments to the Limitations Act which took effect on November 27, 2008.

The amendments make 2 significant changes directed at the decision in Hare. First, for demand obligations, the 2 year limitation period starts to run on "the first day on which there is a failure to perform the obligation, once a demand for the performance is made".

Second, the amendments apply "in respect of every demand obligations created on or after January 1, 2004" thus giving the amendments retroactive effect to the date that the new Act came into force. Now, until there is a default following a demand for payment, the limitation period doesn't start to run.

Regards,

Blair

Freelance Writers Settle for Big Bucks

2009-05-26T12:19:00.000-07:00

CTVglobemedia Inc., Thompson Reuters Canada and The Gale Group have recently agreed to pay an $11 million settlement in a class-action lawsuit commenced in 1996 by freelance writer Heather Robinson. The case originated with Robinson, who disputed the fact that the Globe & Mail newspaper had included articles she submitted to the Globe's print edition into electronic databases without paying her what she felt was paid proper compensation for doing so.

Robinson, a founding member of the Professional Writers Association of Canada, submitted articles to the Globe for the newspapers print edition that were then included in three electronic data bases: InfoGlobe Online; an electronic version of the Canadian Periodical Index; as well as in a CD ROM that contained a years' worth of several Canadian newspapers. Robertson filed the class action lawsuit over the unauthorized reproduction of her work as well as that of thousands of other freelance writers.

In 2006, the Supreme Court of Canada ruled that newspapers and magazines do not have the right to transfer articles from their print editions into electronic databases without the consent of the writers, ruling that the databases resulted in "a different product that infringes" the creator's copyright. However, the Court did make an allowance for CD ROMs that present articles in the same overall look of the printed newspapers or magazines.

The Supreme Court of Canada held, in a 5 - 4 decision, that newspaper publishers are not entitled to republish freelance articles acquired for publication in their newspapers in electronic databases without compensating the authors and obtaining their consent. Newspaper publishers have a copyright in their newspapers pursuant to the Copyright Act to "reproduce the work or any substantial part thereof in any material form whatever". The court held that a substantial part of a newspaper may consist only of the original selection so long as the "essence" of the newspaper is preserved. In online databases, the originality of the freelance articles is reproduced but the originality of the newspaper is not. The resulting collective work is of a different nature than the original newspaper.

By contrast, the Court held that CD ROMs, which were essentially a compendium of daily newspaper editions, remained faithful to the essence of the original work - (that line could be a direct quote from Colonel Jack Ripper in Dr. Strangelove).

Regards,

Blair

Letters of Intent may be Binding Contracts

2009-05-07T13:47:00.000-07:00

The Ontario Court of Appeal has awarded a spurned purchaser of a business damages equivalent to his loss of financial benefit for the first seven months in which he would have operated the business. In doing so, the Court increased the trial judge's award by four months.

In the case of Wallace v. Allen, the parties after some weeks of negotiation, entered into a "letter of intent" for the purchase by Mr. Wallace of four companies owned by Mr. Allen and his wife. During the next few months, Mr. Wallace began to attend at the business premises daily with a view to learning the business, getting to know the customers and staff of the business and doing everything necessary to provide a smooth transition of the ownership of the business from Mr. Allen.

The parties signed a letter of intent which read in part:

It is also agreed by the parties that there will be much legal work to be done upon acceptance by both sides and that the wording of this agreement may alter somewhat...

This letter of intent must be reduced into a binding agreement of purchase and sale by the parties within the next 40 days.

Within weeks of signing the letter of intent, Mr. and Mrs. Allen held a special employee meeting where Mr. Allen announced his retirement and the fact that he had sold his company and that the deal was "solid". Mr. Allen introduced Mr. Wallace to his employees, customers and business contacts as the "new owner" of the business. However, on the morning that the transaction was set to close, Mr. and Mrs. Allen refused to complete the transaction.

The trial judge fixed Mr. Wallace's damages at $240,000.00 representing his loss of financial benefit for the first three months of operation of the business. The trial judge found that Mr. Wallace had mitigated his damages by purchasing another business, although his evidence was that he had ample resources to fund both deals.

On appeal, the Ontario Court of Appeal increased Mr. Wallace's damage award to seven months. The Court found that the clauses referred to in the letter of intent contemplated and expressed an intention on the part of the parties to be bound by its terms which were to be incorporated into a more formal document.

The parties used the language of contract - they used terms such as "it is agreed" and "upon acceptance" and "this agreement" which indicated an intention to be bound upon the signing of the letter of intent.

In addition, the conduct of the parties after signing the letter of intent clearly demonstrated that they considered themselves legally bound to its terms . For several months, the parties conducted themselves as though they had a deal and the parties showed up at the lawyer's office prepared to sign the share purchase agreement.

The Court rejected Mr. Wallace's claim for specific performance of the share purchase agreement. It held that while the company itself may be unique in what it does (the argument can be made that every business is unique) Mr. Wall,ace's acquisition of the business was not - he acquired business for a living. In any event, it was nearly four years after the deal was scheduled to close and that delay in time made damages a more appropriate remedy.

In awarding seven months damages, the Court found that three months was simply not enough time for a business person to search out and find another opportunity, negotiate a new agreement of purchase and sale and close that transaction.

Regards,

Blair

Do we have a Privacy Interest in our Garbage?

2009-04-27T16:30:00.000-07:00

Residents of Toronto are familiar with the debate that can be generated by garbage, but not necessarily this kind of debate. In a case recently decided, the Supreme Court of Canada held that it was lawful for the police to use evidence of criminal activity taken from the contents of a person's garbage to obtain a warrant to seize the person's house and garage. As a result of the search, the police uncovered evidence that the defendant was operating an ecstasy lab in his home. He was subsequently convicted of several criminal offences.

The defendant appealed his conviction on the basis that by taking the garbage bags from his property, the police breached his right, guaranteed by section 8 of the Canadian Charter of Rights and Freedoms, to be free from unreasonable search and seizure. The Supreme Court of Canada dismissed the defendant's appeal and upheld his conviction. The Court's reasoning was as follows.

Mr. Justice Ian Binnie, writing for the majority of the Court, commented that labels are sometimes misleading. To describe something as "garbage" tends to presuppose the point in issue, namely whether the homeowner had any continuing privacy interest in what he had thrown out. The Court concluded that it is possible that the homeowner might have no further interest in physical possession of the garbage but a very strong interest in keeping private the information contained in the garbage. The question was whether he dealt with the garbage in such a way as to forfeit any reasonable expectation of keeping its contents confidential.

The Court concluded that this is an objective test to be determined considering the following factors:

1. The subject matter of the alleged search - Justice Binnie held that the subject matter is not simply garbage. He observed that residential waste includes an enormous amount of personal information about what is going on in our homes. The Court agreed with counsel for the Canadian Civil Liberties Association that a garbage bag may more accurately be described as a bag of "information" whose contents paint a fairly accurate and complete picture of a householder's activities and lifestyle. According to the Supreme Court, many of us may not wish to disclose those things to the public generally or to the police in particular. As a result, it concluded that the defendant had a continuing direct interest in the "information" that was in his garbage.

2. Concealing illegal objects - The Court held that the issue ought to be framed in terms of privacy of the area or thing being searched and the potential impact of the search on the person being searched, and not in terms of the nature or the identity of the concealed items. The seized garbage bags contained a lot of personal items other than drug making paraphernalia. Accordingly, the physical search was not confined to evidence of criminal activity, but to other activity as well.

3. Subjective expectation of privacy - The Court held that this is not a high hurdle - obviously, subjectively the defendant expected that the contents of the garbage bags would remain private.

4. Objective expectation of privacy - The Court held that the defendant had no objective expectation of privacy because the garbage was put out for collection in a customary location, it was at or near the property line, there was no manifestation of any continuing assertion of privacy or control (such as a locked receptacle) and the police took the bags to search for information as part of a continuing criminal investigation. However, it held that apart from the key issue of abandonment, the circumstances favoured the defendant.

5. The place where the search occurred - The essence of the defendant's complaint was the intrusion by the police into activities taking place inside his home rather than the fact that the police invaded the air space at the foot of his garden by reaching across the lot line for the bags. Accordingly, the Court concluded that the implication of focusing privacy protection is on people not places. But because the garbage at the property line was accessible to passers by, the Court found that the physical intrusion by the police was relatively peripheral.

6. Whether the subject matter of the search was in public view - The garbage bags were in plain view, but their contents were not.

7. Whether the subject matter of the search had been abandoned - Clearly the defendant intended to abandon his proprietary interest in the physical objects themselves. The question is whether he had a reasonable and continuing privacy interest in the information which the contents revealed to the police.

8. Whether the information was already in the hands of third parties - The Court held that it was not necessary to defer a finding of abandonment until the garbage had been picked up by garbage collectors because this step did not depend on any act of the defendant and would add little in the way of protection.

9. Was the police conduct intrusive in relation to the privacy interest - Given that the act of abandonment occurred prior to the police gathering the garbage bags there was no privacy interest in existence at the time of the police intervention which therefore did not constitute an intrusion into an existing privacy interest.

The Court found that having regard to all of these factors, that the defendant had abandoned his privacy interest in the contents of the garbage bag when he placed them at his property line for collection. The taking of the bags did not constitute a search and seizure within the scope of section 8 of the Charter and the evidence found by the police was admissible.

Regards,

Blair

Pension Reform in the Ontario Budget

2009-04-03T12:20:00.001-07:00

My pension law partner, Priscilla Healy reports:

The Ontario budget promises some welcome flexibility for both pension plan members and employers, although at the expense of benefit security on retirement.
Pension plan members who have transferred their pension monies into LIFs or LRIFs will be able to immediately withdraw 50 % of their locked-in monies from these accounts, an increase from 25%., effective January 1, 2010. There will also be a temporary waiver of fees for unlocking those accounts on the grounds of financial hardship, effective for applications made on or after April 1, 2009. However, without amendments to the tax rules, once monies are withdrawn, there will be no ability to replenish those accounts on a tax deferred basis.
Employers will welcome the ability to extend solvency payments over ten years instead of the current five year requirement, starting with valuation reports on or after September 30, 2008. The new ability to consolidate existing solvency payment schedules and to defer new going concern and solvency special payments for one year will also help temporarily cash-strapped employers.
The ten year extension of solvency payments may be illusory for any but jointly governed plans, because it will not be available if more than one-third of the aggregate of plan members object. It is not clear why retirees or deferred vested plan members would not object to a reduction in the security of their pensions. Employers may have to depend upon the inertia of retirees and deferred vested plan members preventing a flood of objections, or upon the concern of retirees or those close to retirement as to the possible insolvency of the employer which could leave them with no retiree medical benefits.
On the flip side, to protect member security the budget proposes restrictions on employer contribution holidays for fiscal years ending in 2010 to 2012.
There are a number of other budget proposals arising from the November, 2008 Report of the Expert Commission on Pensions, and there is reference to the passage of Bill 133 that simplifies pension splitting on marriage breakdown. The intent is also expressed to adopt a new multi-jurisdictional agreement that will simplify the administration of registered pension plans with members in more than one jurisdiction.
This is the first time since the abortive Bill 198 in 2002 that an Ontario government has attempted significant reforms of the Pension Benefits Act.

Regards,

Blair

Bank Liability for Forged Cheques

2009-04-03T12:05:00.000-07:00

My insolvency law partner John Varley reports:

Companies victimized by forgery routinely get no support from their bankers, unless they have reported the discrepancy within the usual 30-day "monthly statement objection" period. A recent court decision may cause banks to reassess that stance, depending on the language used in the relevant account operating agreement.

In a recent case before a judge of the Ontario Superior Court of Justice, an office manager forged $186,488 of cheques and the employer company sued to recover that amount after the bank cleared all those cheques and debited the company's account.

The Court held that the bank was strictly liable for honouring the forged cheques, and that no defence was available to it. The bank's honouring of the cheques was not a mere "error, omission or irregularity", but a violation of section 48 of the Bills of Exchange Act. If (as is the case with language used by other bank agreement forms) the account agreement in this case had been more broadly worded, or had specifically mentioned forgeries, a defence would have existed, but none was available here.

Nor did the mutual negligence (of both the bank and the company) resolve the matter. The Court held that the company owed the bank no duty (at the level of due care that would have detected the forgeries) to examine the monthly bank statements and report discrepancies within the 30-day notification period stipulated by the account operating contract. Nor did it owe the bank any duty to maintain internal accounting controls to minimize or prevent forgery losses.

Regards,

Blair

Women in Private Legal Practice

2009-04-03T09:33:00.001-07:00

The Law Society of Upper Canada, the body that regulates lawyers and paralegals in Ontario, has introduced an initiative called "The Justicia Project" designed to support the retention and advancement of women lawyers in private practice. The initiative is the first of its kind in Canada and is a 3 year pilot project involving a group of law firms who have committed to sharing best practices and adopting programs to support women lawyers within their firms. The participants in the project have pledged to recognize the value of women lawyers in their firms and the importance of "balance, flexibility, mentorship, leadership and strong business management practices and skills".

More than half of lawyers called to the bar in Ontario are women. As a result, the law firms see the project as a practical way to structure their environments to attract and retain the best law students and lawyers.

More than 50 medium and large law firms have pledged to support The Justicia Project (including my firm Fogler, Rubinoff LLP). Each firm has committed to participate in the project for 3 years, from 2009 to 2011. All participants have signed written commitments to achieve goals in the following core areas:
- maternity and parental leave policies and flexible work arrangements;
- networking and business development;
- mentoring and leadership skills development for women; and
- monitoring progress.

More information is available about The Justicia Project and other initiatives to retain and advance women in private practice on the Law Society's website.

Regards,

Blair

Social Networking Profiles May Not Be Private

2009-03-27T11:22:00.000-07:00

For all of those who warn their teenagers to be careful and prudent about the content that they post on their Facebook sites, a recent decision of an Ontario Superior Court judge underscored that advice in the context of civil litigation. The judge ordered a plaintiff in a personal injury lawsuit to be cross-examined on the nature of the content that he had posted on his Facebook profile, even though he had marked his profile as "private" and had restricted access to his Facebook pages only to his Facebook "friends".

In the case, the plaintiff alleged that he was injured in a car accident as a result of the defendant's negligent driving. He claimed damages as a result of what he alleged to be his loss of enjoyment of life and claimed that the accident had caused limitations to his personal life.

When the plaintiff was examined for discovery in the action, the defendant's lawyer did not ask him any questions about whether he maintained an active Facebook profile. Several months later, during the course of a psychiatric evaluation by the defendant's doctors, the plaintiff disclosed that he had "a lot" of friends on Facebook. However, his publicly available Facebook profile showed only his name and picture. He had restricted access to his site only to his Facebook friends. As a result, the defence made a motion to the court for an order requiring the plaintiff to preserve and produce all information on his Facebook profile.

The motion was made before a Master of the Ontario court who held that, while the Facebook profile pages were "documents" since they contained data and information that could be produced by him, the defence had produced no evidence that any information on the Facebook profile was relevant to the issues in the action. The Master held that the request for production of the Facebook productions was clearly a fishing expedition. The Master concluded that it would be speculative to infer from the various applications available to a Facebook user what content might exist on a specific Facebook site. He was not prepared to conclude that one head shot of the plaintiff was indicative of what else might be on his site.

The defendant appealed the decision to a judge of the Superior Court of Justice. The judge hearing the appeal stated, correctly, that it is now beyond any controversy that relevant documents, including photographs that are posted on a Facebook profile are producible in the course of litigation. In fact, a previous case in Ontario held that one can infer from the nature of the Facebook service, the likely existence of photographs on a party's private profile.

Ontario's Rules of Civil Procedure impose an obligation on a party's lawyer to certify that he has explained to his or her client what kinds of documents are likely to be relevant to the allegations in the lawsuit and therefore must be produced to the other side. Given the pervasive use of Facebook and other social networking sites and the large volume of photographs typically posted on such sites, the courts have held that it is now incumbent on the lawyer to explain to the client in appropriate cases that documents posted on the party's personal profile may be relevant to allegations made in the lawsuit.

If, in addition to a publicly-accessible profile, a party maintains a private profile viewable only by the party's friends, Ontario courts have held that it is reasonable to infer from the presence of content on the party's public profile that similar content likely exists on the private profile. A court can then order the production of relevant postings on the private profile.

In this case, the court went even further. It held that where a party maintains only a private Facebook profile, and his public page posts nothing other than information about his identity, the court can still infer from the social networking purpose of Facebook and the applications it offers to users such as the posting of photographs, that the users intend to take advantage of Facebook's applications and make their personal information available to others. Accordingly, the court disagreed with the Master that the defendant's request was a fishing expedition. It held that the plaintiff exercised control over his social networking information site to which he allowed access to designated friends and therefore it was reasonable to infer that his Facebook site likely contained content relevant to the issue of how he was able to lead his life since the car accident. Accordingly, such content was relevant to his claim for damages.

Even though the defence did not ask the plaintiff any questions about his Facebook profile on his examination for discovery, the court held that fairness dictates that a party who discovers a Facebook profile should have an opportunity to test whether or not the profile contains content relevant to the issues in the lawsuit. The court held that the defendant should be permitted to cross-examine the plaintiff on a supplementary affidavit of documents that the plaintiff had served in order to learn whether any of the content on his Facebook profile was relevant.

Regards,

Blair

Access to Justice

2009-03-17T07:14:00.000-07:00

The Ontario government appears committed to reforming the civil justice system, albeit in a minor way, in order to increase access to justice for the people of Ontario. The government's proposed reforms are also designed to make the civil court system easier to use and to resolve disputes quicker.

For example, the province is increasing the monetary limit of the Small Claims Court from $10,000.00 to $25,000.00 effective January 1, 2010. This change, while needed, is not bold enough. The monetary jurisdiction of Small Claims Court should be at least $50,000.00. Very few cases involving lawyers can resolved through litigation for legal fees that would less than such an increased limit.

In addition, the reforms promise 25 significant changes to Ontario's Rules of Civil Procedure, including raising the monetary limit for Simplified Procedure cases from $50,000.00 to $100,000.00 effective January 1, 2010, reducing pretrial costs and delays and by limiting examinations for discovery to one day unless the parties or the court decide that more time is needed.

The Civil courts will now also be subject to the general principle of proportionality. This means that the time and expense devoted to any case must reflect the amount in dispute and the importance of the issues at stake in the proceeding.

These reforms are a response to the Osborne Report.

In June of 2006, the Attorney General for Ontario asked the Honourable Mr. Justice Coulter A. Osborne, a former judge of the Ontario Superior Court of Justice, to review potential areas of reform and make recommendations in order to make the civil justice system more accessible and affordable. Justice Osborne presented his report in November of 2007.

The report contains some 81 findings and recommendations relating to such matters as judicial resources, small claims court, simplified procedure, civil juries, the discovery process, case management and trial scheduling. It also reviewed such matters as the need for civility and ethical behaviour in the legal profession and the use of technology in the civil justice system.

Highlights of the Osborne Report are:

unrepresented litigants - improving information resources for unrepresented civil litigants; encouraging lawyers to commit to more legal services on a pro bono basis; creating a self-help centre at Toronto's Superior Court of Justice to be staffed by a full-time facilitator and a part-time lawyer; revisiting the review for civil legal aid in the province;

discovery - amending the Rules of Civil Procedure to provide that each party have up to a maximum of one day (7 hours) to examine parties adverse in interest; encouraging parties to voluntarily answer questions at an examination for discovery that are objected to on the basis of relevance and to encourage the court to consider making appropriate costs awards on refusals motions; encouraging parties to consider, and to the extent reasonable, apply the E-Discovery guidelines and The Sedona Canada Principles and in particular the requirement to meet and confirm regarding identification, preservation and production of electronically stored information;

litigation management - ordering that a case be subject to case management if appropriate; allowing telephone or in-person case conferences or a simplified process for motions to be made in writing with or without affidavits;

motion and trial scheduling - eliminating the requirement of personal attendance at assignment court and permitting trial dates to be set by use of a form jointly submitted by the parties; the use of teleconference hearings or internet for fixing tentative trial dates; the use of 9:00 a.m. or 9:30 a.m. chamber hearings to deal with ex parte scheduling, consent or other motions that need less than 10 minutes; the use of more specific time slots for the hearing of motions, i.e. morning or afternoon motions to reduce wasted waiting time in court; greater use of teleconferencing for short motions.

The Report's findings and recommendations can be found on-line on the website of the Ontario Ministry of the Attorney General.

Regards,

Blair

Departing Employees owe duties to Employers

2009-03-10T07:59:00.000-07:00

The Supreme Court of Canada has sent a strong message to a group of employees who orchestrated their departure from their employer, resulting in serious harm to the employer's economic interests.

A recent decision released by the Court involved RBC Dominion Securities and Merrill Lynch Canada, competitors in the investment brokerage business. In a move coordinated by RBC's branch manager, virtually all of the investment advisers at RBC left their jobs and went to work for Merrill Lynch. As a result of the departure, only two very junior investment advisors , who Merrill Lynch had not sought to recruit, and two administrative staff members remained at the RBC branch. The employees gave RBC no advance notice and in the weeks preceding their departure they copied RBC's client records and transferred them to Merrill Lynch. The Court found that RBC's office was effectively hollowed out and all but collapsed.

In a 6 to 1 ruling, the Supreme Court restored a trial award of $225,000 against Merrill Lynch, and its manager which were held jointly and severally liable for inducing the breach of the employees' contracts and for unfair competition, as well as $250,000 in punitive damages against Merrill Lynch. The Merrill Lynch manager was individually found liable for punitive damages in the sum of $10,000.

The court awarded $40,000 total damages to RBC against its former employees for failing to give RBC adequate notice of their departure as well as punitive damages of $5,000 each. It awarded over $1.4 million against the former RBC branch manager who had orchestrated the operation for breaching his duty of good faith and $5,000 in punitive damages. The damage award represented five years of lost profits for RBC.

The Court found that damages arising in respect of a breach of contract should arise either naturally, or as reasonably contemplated by both parties at the time they made the contract. In organizing the mass exit, RBC's manager breached his contractual duty of good faith, as an implied term of his employment contract was the retention of RBC employees who were under his supervision. The damages for that breach were the amount of loss it caused to RBC.

Generally individual employees who terminated employment are not prevented from competing with the employer during the notice period. The employer is confined to damages for failure to give reasonable notice. However, a departing employee might be liable for specific wrongs, such as improper use of confidential information during the notice period.

This case is an important one for employees who are concerned about whether they may really be found liable for damages for failing to provide reasonable notice of their departure and the fiduciary obligations of managerial employees and employers who consider hiring employees away from their competitors.

Regards,

Blair

Be wary of Foreign Abitrations

2009-03-09T12:07:00.000-07:00

The Ontario Court of Appeal recently upheld the decision of a lower court judge who refused to permit an Ontario company to back out of arbitration proceedings in Russia even though the President of the Russian company had allegedly threatened to kill an executive of the Ontario company. As a result of the alleged threats, the Ontario company's executive was unwilling to travel to Moscow, as were its witnesses.

In the case of Donaldson International Livestock Ltd. v. Znamensky Selekcionno - Gibridny Center LLC, the Court held that by the time the case came before it, the issue of whether the death threats constituted cause to back out of the arbitration agreement in the commercial contract between the two parties was moot because the arbitration had already been held. In doing so, the Court held that the time to have a trial of the issue concerning the death threats was when the parties were before the motion judge. The case was argued on the basis of a paper record and the motion judge found that it fell short of establishing that the threats were made.

In this case, the Ontario company, a producer of pure-bred pigs, had entered into a contract to sell pigs to the Russian company. The contract contained an arbitration clause which included that any dispute, controversy or claim, which arose out of or was connected to the contract would be settled by the International Commercial Arbitration Court. The contract was governed by and construed in accordance with the law of the Russian Federation; the place of arbitration was agreed to be Moscow, Russia, the language to be used in the arbitral proceedings would be Russian; and the law of the contract would be the law of the Russian Federation.

A dispute arose about the health of the pigs that were sold to the Russian company. One morning at about 5:00 a.m. the Ontario company's executive was awakened by a telephone call from the Russian executive. The Russian executive spoke in Russian, and one of his colleagues was on the line acting as an interpreter.

The Ontario executive alleges that the discussions became increasingly hostile and that the Russian executive shouted twice: "What happens to people that cross me" followed by "I will kill you".

The Ontario company commenced an action in Ontario seeking an injunction prohibiting the Russian company from proceeding with the arbitration in Moscow and declaring that the arbitration clause in the contract was null and void because of the Russian company's "misconduct". By the time the motion was heard, the Russian company had obtained an award in Russia. The Ontario company argued that the arbitral award should not be recognized or enforced in Ontario because of the Russian company's misconduct and that damages for tort of intimidation were outside of the scope of the arbitration agreement.

However, the motion judge denied the injunction and granted the Russian company a stay of the Ontario action.

The Court of Appeal held that the arbitration clause was extremely broad. It included any dispute, controversy or claim, which may arise out of or in connection with the contract. Given the direction that courts have been taking in respect of approach to arbitration clauses, the clause was broad enough to conclude virtually all of the claims advanced in the Ontario action. The fact that one of the claims was against a no-party to the agreement, i.e. the individual who made the alleged threat, was not sufficient to oust the jurisdiction of the arbitration tribunal in Moscow when the entire focus of the action related to issues arising out of the contractual relationship between the parties. Accordingly, the Court refused to interfere with the motion judge's decision to stay the Ontario action.

Accordingly, the lesson here is that at the point of negotiating an agreement with a foreign trading partner, a Canadian company must give careful thought about agreeing to arbitrate a dispute in a foreign country and language using foreign laws.

Regards,

Blair

Employers must be clear in restrictive covenants

2009-03-04T09:17:00.000-08:00

The Supreme Court of Canada has held that employers should not draft overly broad restrictive covenants in the hope that a court will sever any part of it that is unreasonable or "rewrite" the covenant to what the courts may consider reasonable. The Court held that doing this would change the risks assumed by the parties and unduly increase the risk that an employee will be forced to abide by an unreasonable covenant. The Court held that restrictive covenants contained in employment contracts should be scrutinized more carefully than restrictive covenants in the sale of a business because there is often an imbalance in power between employers and employees and because the sale of a business often involves a payment for goodwill, whereas no similar payment is made to an employee who leaves his or her employment.

In the recent case of Shafron v. KRG Insurance Brokers, the Court held that a restrictive covenant prohibiting an employee of an insurance brokerage firm from working within "the Metropolitan City of Vancouver" was unenforceable because the term "Metropolitan City of Vancouver" was uncertain and ambiguous.

There was nothing contained in the evidence of the case that demonstrated a mutual understanding of the parties at the time they entered into the employment contract as to what geographic area the restrictive covenant covered. Accordingly, it was inappropriate for the British Columbia Court of Appeal to rewrite the covenant.

The Court held that restrictive covenants generally are restraints of trade and therefore contrary to public policy. Freedom to contract, however, requires an exception for reasonable restrictive covenants. Normally, the reasonableness of a covenant will be determined by its geographic and temporal scope as well as the extent of the activities sought to be prohibited. Reasonableness cannot be determined if a covenant is ambiguous in the sense that what is prohibited is not clear as to activity, time or geography.

The court held that an ambiguous restrictive covenant is by definition on its face unreasonable and unenforceable. The onus is on the party seeking to enforce the covenant to show that it is reasonable. A party seeking to enforce an ambiguous covenant will be unable to demonstrate reasonableness.

If you have any questions, please don't hesitate to email me.

Regards,

Blair

Standard of Proof in Civil Cases

2009-03-03T08:47:00.000-08:00

There has been a debate for some time among lawyers and judges in Canada as to whether there is a standard of "enhanced proof" required for civil claims involving acts of fraud or what some describe as acts of "morale turpitude".

The Supreme Court of Canada recently put this debate to rest and held that there is one standard of proof required for all civil matters - i.e. proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.

In the case of F.H. v. McDougall, 2008 SCC 53, the Court held:

It is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegation or consequences. However, these considerations do not change the standard of proof.

In contrast to criminal cases where the standard of proof is proof beyond a reasonable doubt, in civil cases there is no presumption of innocence. The Supreme Court acknowledged that there may be serious consequences to a finding of liability in a civil case that continue past the end of the case. However, it concluded that a civil case does not involve the government's power to penalize or take away the liberty of the individual.

The Court reasoned that the only practical way in which to reach a factual conclusion in a civil case is to decide whether it is more likely not that the event occurred. To suggest that depending upon the seriousness of the allegations, the evidence in a civil case must be scrutinized with greater care, implies that in less serious cases the evidence need not be scrutinized with such care. As a result, the Court found that it is inappropriate to say that there are legally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case. There is only one legal rule and that is in all cases, evidence must be scrutinized with care by the trial judge.

Regards,

Blair