In a recent decision of the Supreme Court of Canada, the court unanimously affirmed the decision of the Public Service Staffing Tribunal ("Tribunal") which dismissed a federal employee's claim that he had been passed over for a promotion on the basis of "abuse of authority".
The employee was employed by Service Canada in a "Level 5" position. As part of a reorganization, the position of Regional Manager was created at a "Level 6" position. Service Canada decided to fill the Level 6 position through an internal advertised process. The employee applied to the competition but failed a mandatory examination. The employee subsequently filed a complaint with the Tribunal alleging an abuse of authority contrary to the Public Service Employment Act. The Tribunal dismissed the employee's claim because he had not established abuse of authority. The Federal Court affirmed the Tribunal's decision but the Federal Court of Appeal allowed the appeal and sent the case back to the Tribunal.
In reversing the decision of the Federal Court of Appeal and allowing the appeal, the Supreme Court held that there were four reasons to reject the Federal Court of Appeal's decision:
1. The basis of the employee's complaint was that his employer had abused its authority in choosing an advertised internal appointment process. The employee had argued that advertising the position constituted abuse of authority because the Level 6 position was not a new position but rather a reclassification of an old position. The court agreed with the Tribunal's finding that regardless of whether the position was new or old, Service Canada was entitled to advertise the position with the result that the alleged newness of the position did not give rise to an obligation to advertise the position. The Tribunal held that there was nothing in the regulations that required Service Canada to utilize a particular selection process depending on whether the position was new or reclassified. On the contrary, the regulations clearly provided that the employer had the discretion to use an advertised or a non-advertised appointment process;
2. The Federal Court of Appeal had assessed the decision of the Tribunal against a claim that the employee did not make. The employee had assumed that if he could establish that the Level 6 position was reclassified, he would be entitled to a non-advertised process. He identified the abuse of authority as the "erroneous interpretation of the facts against the employer's own reclassification guideline". On his view, if the position was reclassified, no matter what other reasons the employer might have had for preferring an advertised process, he was owed a non-advertised process. The Tribunal responded to this complaint by finding that given the broad discretion accorded to employers under the regulations, the employee was wrong to argue that he was entitled to any particular process. The Supreme Court agreed and indicated that in its view, the employee was seeking to restrict the discretion of his employer in a way that did not accord with the purpose or wording of the Act;
3. The Federal Court of Appeal's decision to send the case back to the Tribunal was based on its reading of the record that the newness of the Level 6 position was the "principal justification" for the employer's decision. The employer presented evidence before the Tribunal that its regional management board decided to advertise the position in order to have a fair, accessible and transparent process to allow more than one person to apply, especially since this was a new position at a higher level. The Tribunal made no finding as to what the employer's "principal justification" may have been. The Federal Court of Appeal erred by effectively undertaking its own assessment of the record and attributing to the employer a principal justification that the Tribunal did not find; and
4. The Supreme Court disagreed with the Federal Court of Appeal's conclusion that the Tribunal acted unreasonably by failing to give the employee the opportunity to show that there was no rational basis for the employer's position that the Level 6 position was new. There was no realistic possibility based on the record that the Tribunal could find any such rational finding of material fact in this case.
Regards,
Blair
Wednesday, November 28, 2012
Tuesday, November 27, 2012
Ontario Court ousts Toronto Mayor Rob Ford
Mr. Justice Hackland of the Ontario Superior Court of Justice has handed down his long-awaited decision in Mayor Rob Ford's conflict of interest case (Magder v. Ford). Justice Hackland found that Mr. Ford had contravened section 5 of the Municipal Conflict of Interest Act ("Act") and declared Mr. Ford's seat on Toronto City counsel vacant. Justice Hackland delivered a well reasoned judgment that is almost certain to be overturned on appeal.
The charge against Mr. Ford had been that he spoke to, and voted on, a matter on February 7, 2012, in which he allegedly had a pecuniary interest.
The case arose when, on August 12, 2010, the City of Toronto Integrity Commissioner, issued a report to Toronto city council concluding that Mr. Ford (then a member of council) had breached the city's code of conduct. The integrity commissioner found that Mr. Ford had used the city of Toronto logo, his status as a councillor and city of Toronto resources to solicit funds for a private football foundation that he had created in his name. The commissioner recommended that council take steps to require Mr. Ford to reimburse $3,150 in donations made by lobbyists and corporate donors to his foundation and to provide confirmation of such reimbursement.
At the city council meeting on August 5, 2010, the commissioner's report and recommendations were initially approved without debate. Later in the meeting, after a city councillor moved for reconsideration, the motion for reconsideration was defeated. Mr. Ford voted on that motion.
Just before the vote, another councillor alerted Mr. Ford to the fact that voting on the motion would put him in a conflict of interest. Mr. Ford ignored the warning.
Notwithstanding the adoption of the report and recommendations, Mr. Ford failed to reimburse the $3,150.
Accordingly, the commissioner brought the matter back to city council in a report dated January 30, 2012.
On the February 7, 2012 date, Mr. Ford spoke against the motion but did not vote on the matter. The effect of the motion was that counsel rescinded its adoption of the integrity commissioner's findings as to Mr. Ford's violation of the code of conduct as well as the repayment obligation.
The applicant, a Toronto voter, subsequently brought the application.
In his decision, Justice Hackland made, among others, the following findings.
The Act applies to a city of Toronto code of conduct violation. He found that section 5(1) of the Act which clearly states that where a member has "any pecuniary interest…in any matter" and is present at a meeting of council he or she is to disclose his or her interest and must neither take part in the discussion or vote on the matter. There is no authority for implying a right to be heard in the face of a statutory provision which specifically denies such a right. In any event, the right to be heard does not have anything to with providing a justification for voting on a matter (rather than speaking) which was what Mr. Ford chose to do in this case.
The judge held that the justification for the section was related to transparency of the decision making process by municipal councillors and invoked the issue of whether the voting public could be confident in the actions and decisions of those we elect to govern.
Justice Hackland also found that the sum of $3,150 was not so insignificant in nature that it did not influence Mr. Ford. While it was not a huge amount of money, Mr. Ford stated in his remarks at council:
"and if it wasn't for this foundation, these kids would not have a chance. And then to ask for me to pay it out of my own pocket personally, there is no sense to this. The money is gone, the money has been spent on football equipment.".
The judge held that in view of such remarks, Mr. Ford's pecuniary interest in the repayment was of significance to him.
The judge also held that the section of the Act was not contravened through inadvertence or an error in judgment. He allowed that the mandatory removal from office for contravening this section was "a very blunt instrument" and quoted Professor David Mullan, Toronto's former Integrity Commissioner, in describing it as a sledgehammer.
While this was not a case that demonstrated corruption, or pecuniary gain on behalf of Mr. Ford, Justice Hackland held that it did not occur through inadvertence because inadvertence involved "oversight in attention or carelessness". To the contrary, Mr. Ford in his cross-examination admitted that he didn't regret acting in the way he did and that he did so deliberately.
Justice Hackland held that Mr. Ford's conduct did not amount to an error in judgment because the caselaw confirms that an error in judgment must have occurred honestly and in good faith. In this context, good faith involves such considerations as whether a reasonable explanation is offered for Mr. Ford's conduct in speaking or voting on the resolution involved in his pecuniary interest. In this case, Mr. Ford has served on city council for 12 years, the last two as mayor. He acknowledged in his cross-examination that he had never read or familiarized himself with the conflict of interest rules, he never attended any briefings on conflict of interest, nor did he read the councillors' handbook which addressed the issue. The judge held that in his view, the evidence of Mr. Ford that he gave little or no consideration to whether he was lawfully entitled to speak or vote on the motion even after he was warned by Ms. Bussin that he was in conflict of interest does not constitute a good faith error in judgment.
Justice Hackland found:
"In view of the respondent's leadership role in ensuring integrity in municipal government, it is difficult to accept an error in judgment defence based essentially on a stubborn sense of entitlement (concerning his football foundation) and a dismissive and confrontational attitude to the Integrity Commissioner and the Code of Conduct. In my opinion, the respondent's actions were characterized by ignorance of the law and the lack of diligence in securing professional advice, amounting to wilful blindness. As such, I find his actions are incompatible with an error in judgment."
While well reasoned, Justice Hackland's decision does not seem to square with the recent decision of the Supreme Court of Canada in upholding the contested federal election in Etobicoke Centre. In that case there was also no allegation of fraud, corruption or illegal practices. The court held that:
"Given the complexity of administering a federal election, the tens of thousands of election workers involved, many of whom have no on-the-job experience and the short time frame for hiring and training them, it is inevitable that administrative mistakes will be made. If elections can be easily annulled on the basis of administrative errors, public confidence in the finality of and legitimacy of election results will be eroded. Only irregularities that affect the result of the election and thereby undermine the integrity of the electoral process are grounds for overturning an election."
In this case, count on Mr. Ford appealing the judgment on the basis that the court held that there is no question of fraud or corruption. He will be able to argue, (relying on the Supreme Court of Canada decision, as well as the obiter of Justice Hackland in referring to Professor Mullan citing a need for reform in the Act) that the citizens of Toronto should not be so negatively effected as to be required to spend hundreds of thousands of dollars, if not more, in a election for mayor.
Regards,
Blair
The charge against Mr. Ford had been that he spoke to, and voted on, a matter on February 7, 2012, in which he allegedly had a pecuniary interest.
The case arose when, on August 12, 2010, the City of Toronto Integrity Commissioner, issued a report to Toronto city council concluding that Mr. Ford (then a member of council) had breached the city's code of conduct. The integrity commissioner found that Mr. Ford had used the city of Toronto logo, his status as a councillor and city of Toronto resources to solicit funds for a private football foundation that he had created in his name. The commissioner recommended that council take steps to require Mr. Ford to reimburse $3,150 in donations made by lobbyists and corporate donors to his foundation and to provide confirmation of such reimbursement.
At the city council meeting on August 5, 2010, the commissioner's report and recommendations were initially approved without debate. Later in the meeting, after a city councillor moved for reconsideration, the motion for reconsideration was defeated. Mr. Ford voted on that motion.
Just before the vote, another councillor alerted Mr. Ford to the fact that voting on the motion would put him in a conflict of interest. Mr. Ford ignored the warning.
Notwithstanding the adoption of the report and recommendations, Mr. Ford failed to reimburse the $3,150.
Accordingly, the commissioner brought the matter back to city council in a report dated January 30, 2012.
On the February 7, 2012 date, Mr. Ford spoke against the motion but did not vote on the matter. The effect of the motion was that counsel rescinded its adoption of the integrity commissioner's findings as to Mr. Ford's violation of the code of conduct as well as the repayment obligation.
The applicant, a Toronto voter, subsequently brought the application.
In his decision, Justice Hackland made, among others, the following findings.
The Act applies to a city of Toronto code of conduct violation. He found that section 5(1) of the Act which clearly states that where a member has "any pecuniary interest…in any matter" and is present at a meeting of council he or she is to disclose his or her interest and must neither take part in the discussion or vote on the matter. There is no authority for implying a right to be heard in the face of a statutory provision which specifically denies such a right. In any event, the right to be heard does not have anything to with providing a justification for voting on a matter (rather than speaking) which was what Mr. Ford chose to do in this case.
The judge held that the justification for the section was related to transparency of the decision making process by municipal councillors and invoked the issue of whether the voting public could be confident in the actions and decisions of those we elect to govern.
Justice Hackland also found that the sum of $3,150 was not so insignificant in nature that it did not influence Mr. Ford. While it was not a huge amount of money, Mr. Ford stated in his remarks at council:
"and if it wasn't for this foundation, these kids would not have a chance. And then to ask for me to pay it out of my own pocket personally, there is no sense to this. The money is gone, the money has been spent on football equipment.".
The judge held that in view of such remarks, Mr. Ford's pecuniary interest in the repayment was of significance to him.
The judge also held that the section of the Act was not contravened through inadvertence or an error in judgment. He allowed that the mandatory removal from office for contravening this section was "a very blunt instrument" and quoted Professor David Mullan, Toronto's former Integrity Commissioner, in describing it as a sledgehammer.
While this was not a case that demonstrated corruption, or pecuniary gain on behalf of Mr. Ford, Justice Hackland held that it did not occur through inadvertence because inadvertence involved "oversight in attention or carelessness". To the contrary, Mr. Ford in his cross-examination admitted that he didn't regret acting in the way he did and that he did so deliberately.
Justice Hackland held that Mr. Ford's conduct did not amount to an error in judgment because the caselaw confirms that an error in judgment must have occurred honestly and in good faith. In this context, good faith involves such considerations as whether a reasonable explanation is offered for Mr. Ford's conduct in speaking or voting on the resolution involved in his pecuniary interest. In this case, Mr. Ford has served on city council for 12 years, the last two as mayor. He acknowledged in his cross-examination that he had never read or familiarized himself with the conflict of interest rules, he never attended any briefings on conflict of interest, nor did he read the councillors' handbook which addressed the issue. The judge held that in his view, the evidence of Mr. Ford that he gave little or no consideration to whether he was lawfully entitled to speak or vote on the motion even after he was warned by Ms. Bussin that he was in conflict of interest does not constitute a good faith error in judgment.
Justice Hackland found:
"In view of the respondent's leadership role in ensuring integrity in municipal government, it is difficult to accept an error in judgment defence based essentially on a stubborn sense of entitlement (concerning his football foundation) and a dismissive and confrontational attitude to the Integrity Commissioner and the Code of Conduct. In my opinion, the respondent's actions were characterized by ignorance of the law and the lack of diligence in securing professional advice, amounting to wilful blindness. As such, I find his actions are incompatible with an error in judgment."
While well reasoned, Justice Hackland's decision does not seem to square with the recent decision of the Supreme Court of Canada in upholding the contested federal election in Etobicoke Centre. In that case there was also no allegation of fraud, corruption or illegal practices. The court held that:
"Given the complexity of administering a federal election, the tens of thousands of election workers involved, many of whom have no on-the-job experience and the short time frame for hiring and training them, it is inevitable that administrative mistakes will be made. If elections can be easily annulled on the basis of administrative errors, public confidence in the finality of and legitimacy of election results will be eroded. Only irregularities that affect the result of the election and thereby undermine the integrity of the electoral process are grounds for overturning an election."
In this case, count on Mr. Ford appealing the judgment on the basis that the court held that there is no question of fraud or corruption. He will be able to argue, (relying on the Supreme Court of Canada decision, as well as the obiter of Justice Hackland in referring to Professor Mullan citing a need for reform in the Act) that the citizens of Toronto should not be so negatively effected as to be required to spend hundreds of thousands of dollars, if not more, in a election for mayor.
Regards,
Blair
Friday, November 16, 2012
Message to the Law Society of Upper Canada - End Articling Now
The following is reprinted from Larry Banack's Bencher News:
The Articling Task Force issued its final report entitled "A ROAD MAP FOR THE REFORM OF LAWYER LICENSING IN ONTARIO".
The report was received by Convocation on October 25, 2012. Because of the importance of the issues the proceedings were webcast and simultaneous twitter feeds were facilitated. During the discussions (which lasted 4.5 hours) there were nearly 1100 posts and 500 tweets with 166 unique comments.
The issue is now scheduled for determination by Convocation on November 22, 2012.
The Task Force has recommended a pilot project that will provide an alternative to articling through a new Law Practice Program (LPP).
The recommendation contemplates a 5 year transitional plan which provides:
The pilot project is to begin in the 2014-2014 licensing year;
The current ten month articling program will continue;
The LPP expected to be about 8 months long, will be an alternative path for those unable or uninterested in engaging in the traditional articling program;
A "final assessment" is to be introduced to test that candidates who either articled or took the LPP have the required practice competencies before being licensed;
The two paths to licensing will be monitored, assessed, compared and a final report for Convocation's consideration is due by the end of the fifth year.
MINORITY REPORT
Four Benchers released a minority report. Their dissent should be carefully reviewed and remembered by the Profession. The minority view called for the end of articling and dismissed the two tier licensing process on the basis that it is unfair and unworkable.
UNFAIR FOR THE FOLLOWING REASONS:
A disproportionate number of person who are unable to obtain articling positions appear to be from equality-seeking groups.
The Two tier system will create two classes of lawyers with the preferred group being those who articled.
Candidates in the lengthy LPP must be able to support themselves and thereafter work for free at a co-op type placement which may require temporary relocation and possibly be of limited or no value.
The cost of the new two tiered licensing process will increase substantially, but will be payable on an equal basis by the LPP candidates who will not be receiving articling income. As well, some law firms pay those costs for their articling students.
UNWORKABLE FOR THE FOLLOWING REASONS:
The pilot project simply puts off needed change;
The Law Society has numerous prior reports and examples of past bar admission programs and evaluations that could be adapted and provided online.
The ten month articling program and eight month LPP could be replaced with a comprehensive transitional pre-licensing program of two to three months with objective, measurable standards that assess substantive legal knowledge and business, professional and ethical issues.
Newly licensed lawyers who practice on their own will be better assisted in their first years through mentoring and other regulatory oversight to ensure public protection than can ever be provided in the prolonged, uneven and uncertain articling or LPP.
Convocation was not provided with a realistic estimate of the significant costs to be incurred to administer two streams of licensing candidates instead of one.
The minority report agrees with a Law Society Committee that considered the issues 40 years ago and concluded that articling be abolished at that time. Although the Articling Task Force majority recognizes that changes are required it is not ready to accept the reality recognized long ago that articling be abolished.
THE OBVIOUS
The LPP creates a cumbersome and costly licensing requirement that will do little to enhance the competence of newly licensed lawyers and will itself amount to another bar to entry to the profession.
Everyone knows that articling has inherent limitations based on individual articling experiences. Most articles train practitioners to work in sophisticated areas of practice supported by large firms in urban centres. Articling experiences simply do not generally equip young lawyers with the skills needed to successfully and ethically maintain small firm legal practices.
The profession which has been a strong proponent for articling as evidenced by the numerous submissions made during the consultation process has simply failed to provide sufficient articling positions to meet the demand.
There is no verifiable basis upon which to assert that articling achieves for the majority of the licensees, an experience satisfying the Law Society's regulatory responsibilities.
The assessment report to Convocation is not due until the end of the 2019 licensing year. We can expect that significant time will be needed to consider whether the pilot project has been a success, should be continued, modified or if the entire road map for reform, should be scrapped and reconsidered. That process may take Convocation into the year 2020 if not beyond. The grim reality is that there will be no final decision for the next 7 or 8 years.
In that period we will have processed about 2000 lawyers through a two tier licensing program. The profession and the public will conclude whether the tiers are equivalent or the lawyers are somehow to be distinguished because of their training experience. There also remains unanswered, serious questions raised by our Ontario Law Schools who have significant experience in the teaching of law and whether the Australian LPP experience is one we should model.
Perhaps the most astounding and egregious aspect of the Task Force report is its reliance upon a yet to be issued request for proposals. The Law Society will be seeking "interested parties" who for profit will provide the alternative pathway to licensing - the LPP. Convocation will be asked to approve the report without knowing the capacity of outside providers or the cost. There has not been any significant consideration given to outsourcing the second tier of the licensing process which somehow is to be equivalent to that of articling.
Bencher Julian Falconer has given notice of his intention to bring a motion reinstating a financial contribution by every lawyer as part of our annual dues to defray the significant increased costs to licensee applicants. Such a contribution had regularly been made by the profession up to 2011.
Perhaps an enlightened compromise can be reached to reflect the strengths of both the majority and minority reports as well as the many concerns coming from the profession.
This is undoubtedly the most important Law Society decision in years because it will impact on the recruitment and training of all future lawyers. IF we get this truly wrong we may invite questions about the profession's ability to self regulate.
The answer - End the requirement for articling.
Regards,
Blair
The Articling Task Force issued its final report entitled "A ROAD MAP FOR THE REFORM OF LAWYER LICENSING IN ONTARIO".
The report was received by Convocation on October 25, 2012. Because of the importance of the issues the proceedings were webcast and simultaneous twitter feeds were facilitated. During the discussions (which lasted 4.5 hours) there were nearly 1100 posts and 500 tweets with 166 unique comments.
The issue is now scheduled for determination by Convocation on November 22, 2012.
The Task Force has recommended a pilot project that will provide an alternative to articling through a new Law Practice Program (LPP).
The recommendation contemplates a 5 year transitional plan which provides:
The pilot project is to begin in the 2014-2014 licensing year;
The current ten month articling program will continue;
The LPP expected to be about 8 months long, will be an alternative path for those unable or uninterested in engaging in the traditional articling program;
A "final assessment" is to be introduced to test that candidates who either articled or took the LPP have the required practice competencies before being licensed;
The two paths to licensing will be monitored, assessed, compared and a final report for Convocation's consideration is due by the end of the fifth year.
MINORITY REPORT
Four Benchers released a minority report. Their dissent should be carefully reviewed and remembered by the Profession. The minority view called for the end of articling and dismissed the two tier licensing process on the basis that it is unfair and unworkable.
UNFAIR FOR THE FOLLOWING REASONS:
A disproportionate number of person who are unable to obtain articling positions appear to be from equality-seeking groups.
The Two tier system will create two classes of lawyers with the preferred group being those who articled.
Candidates in the lengthy LPP must be able to support themselves and thereafter work for free at a co-op type placement which may require temporary relocation and possibly be of limited or no value.
The cost of the new two tiered licensing process will increase substantially, but will be payable on an equal basis by the LPP candidates who will not be receiving articling income. As well, some law firms pay those costs for their articling students.
UNWORKABLE FOR THE FOLLOWING REASONS:
The pilot project simply puts off needed change;
The Law Society has numerous prior reports and examples of past bar admission programs and evaluations that could be adapted and provided online.
The ten month articling program and eight month LPP could be replaced with a comprehensive transitional pre-licensing program of two to three months with objective, measurable standards that assess substantive legal knowledge and business, professional and ethical issues.
Newly licensed lawyers who practice on their own will be better assisted in their first years through mentoring and other regulatory oversight to ensure public protection than can ever be provided in the prolonged, uneven and uncertain articling or LPP.
Convocation was not provided with a realistic estimate of the significant costs to be incurred to administer two streams of licensing candidates instead of one.
The minority report agrees with a Law Society Committee that considered the issues 40 years ago and concluded that articling be abolished at that time. Although the Articling Task Force majority recognizes that changes are required it is not ready to accept the reality recognized long ago that articling be abolished.
THE OBVIOUS
The LPP creates a cumbersome and costly licensing requirement that will do little to enhance the competence of newly licensed lawyers and will itself amount to another bar to entry to the profession.
Everyone knows that articling has inherent limitations based on individual articling experiences. Most articles train practitioners to work in sophisticated areas of practice supported by large firms in urban centres. Articling experiences simply do not generally equip young lawyers with the skills needed to successfully and ethically maintain small firm legal practices.
The profession which has been a strong proponent for articling as evidenced by the numerous submissions made during the consultation process has simply failed to provide sufficient articling positions to meet the demand.
There is no verifiable basis upon which to assert that articling achieves for the majority of the licensees, an experience satisfying the Law Society's regulatory responsibilities.
The assessment report to Convocation is not due until the end of the 2019 licensing year. We can expect that significant time will be needed to consider whether the pilot project has been a success, should be continued, modified or if the entire road map for reform, should be scrapped and reconsidered. That process may take Convocation into the year 2020 if not beyond. The grim reality is that there will be no final decision for the next 7 or 8 years.
In that period we will have processed about 2000 lawyers through a two tier licensing program. The profession and the public will conclude whether the tiers are equivalent or the lawyers are somehow to be distinguished because of their training experience. There also remains unanswered, serious questions raised by our Ontario Law Schools who have significant experience in the teaching of law and whether the Australian LPP experience is one we should model.
Perhaps the most astounding and egregious aspect of the Task Force report is its reliance upon a yet to be issued request for proposals. The Law Society will be seeking "interested parties" who for profit will provide the alternative pathway to licensing - the LPP. Convocation will be asked to approve the report without knowing the capacity of outside providers or the cost. There has not been any significant consideration given to outsourcing the second tier of the licensing process which somehow is to be equivalent to that of articling.
Bencher Julian Falconer has given notice of his intention to bring a motion reinstating a financial contribution by every lawyer as part of our annual dues to defray the significant increased costs to licensee applicants. Such a contribution had regularly been made by the profession up to 2011.
Perhaps an enlightened compromise can be reached to reflect the strengths of both the majority and minority reports as well as the many concerns coming from the profession.
This is undoubtedly the most important Law Society decision in years because it will impact on the recruitment and training of all future lawyers. IF we get this truly wrong we may invite questions about the profession's ability to self regulate.
The answer - End the requirement for articling.
Regards,
Blair
Wednesday, October 31, 2012
Supreme Court upholds results of contested election
The Supreme Court of Canda recently handed down its decision in Ted Opitz et al. v. Borys Wrzesnewskyj et al. It upheld the results of a closely-decided federal election that was contested by the loser on the basis of administrative "irregularities". The Court refused to disenfranchise voters on that basis. Here are exerpts from the decision.
“O was the successful candidate in the electoral district of Etobicoke Centre for the 41st Canadian federal election, with a plurality of 26 votes. The runner‑up, W, applied to have the election annulled, on the basis that there were “irregularities. . . that affected the result of the election” (s. 524(1)(b) of the Canada Elections Act (the “Act”)). The Ontario Superior Court of Justice granted the application, finding that 79 votes amounted to such irregularities and that, since this number exceeded the plurality of 26 votes, the election could not stand. O appealed to the Supreme Court of Canada as of right, and W cross‑appealed (s. 532(1) of the Act). The Chief Electoral Officer and the returning officer for Etobicoke Centre also brought a motion for directions, seeking to adduce fresh evidence, pursuant to s. 62(3) of the Supreme Court Act. ”
The S.C.C. held (4:3) the appeal is allowed, the cross-appeal dismissed, the motion to adduce fresh evidence also dismissed.
Justice Rothstein and Moldaver wrote as follows in joint reasons (at paragraphs 1-2, 44-50, 74-75):
“A candidate who lost in a close federal election attempts to set aside the result of that election. We are asked to disqualify the votes of several Canadian citizens based on administrative mistakes, notwithstanding evidence that those citizens were in fact entitled to vote. We decline the invitation to do so. The Canadian Charter of Rights and Freedoms and the Canada Elections Act, S.C. 2000, c. 9 (“Act”), have the clear and historic purposes of enfranchising Canadian citizens, such that they may express their democratic preference, and of protecting the integrity of our electoral process. Following these objectives and the wording of the Act, we reject the candidate’s attempt to disenfranchise entitled voters and so undermine public confidence in the electoral process.
At issue in this appeal are the principles to be applied when a federal election is challenged on the basis of “irregularities”. We are dealing here with a challenge based on administrative errors. There is no allegation of any fraud, corruption or illegal practices. Nor is there any suggestion of wrongdoing by any candidate or political party. Given the complexity of administering a federal election, the tens of thousands of election workers involved, many of whom have no on-the-job experience, and the short time frame for hiring and training them, it is inevitable that administrative mistakes will be made. If elections can be easily annulled on the basis of administrative errors, public confidence in the finality and legitimacy of election results will be eroded. Only irregularities that affect the result of the election and thereby undermine the integrity of the electoral process are grounds for overturning an election.
Central to the issue before us is how willing a court should be to reject a vote because of statutory non-compliance. Although there are safeguards in place to prevent abuse, the Act accepts some uncertainty in the conduct of elections, since in theory, more onerous and accurate methods of identification and record-keeping could be adopted. The balance struck by the Act reflects the fact that our electoral system must balance several interrelated and sometimes conflicting values. Those values include certainty, accuracy, fairness, accessibility, voter anonymity, promptness, finality, legitimacy, efficiency and cost. But the central value is the Charter-protected right to vote.
Our system strives to treat candidates and voters fairly, both in the conduct of elections and in the resolution of election failures. As we have discussed, the Act seeks to enfranchise all entitled persons, including those without paper documentation, and to encourage them to come forward to vote on election day, regardless of prior enumeration. The system strives to achieve accessibility for all voters, making special provision for those without identification to vote by vouching. Election officials are unable to determine with absolute accuracy who is entitled to vote. Poll clerks do not take fingerprints to establish identity. A voter can establish Canadian citizenship verbally, by oath. The goal of accessibility can only be achieved if we are prepared to accept some degree of uncertainty that all who voted were entitled to do so.
The practical realities of election administration are such that imperfections in the conduct of elections are inevitable. As recognized in Camsell v. Rabesca, [1987] N.W.T.R. 186 (S.C.), it is clear that “in every election, a fortiori those in urban ridings, with large numbers of polls, irregularities will virtually always occur in one form or another” (p. 198). A federal election is only possible with the work of tens of thousands of Canadians who are hired across the country for a period of a few days or, in many cases, a single 14-hour day. These workers perform many detailed tasks under difficult conditions. They are required to apply multiple rules in a setting that is unfamiliar. Because elections are not everyday occurrences, it is difficult to see how workers could get practical, on-the-job experience.
The provision for contesting elections in Part 20 of the Act serves to restore accuracy and reliability where it has been compromised. However, tension exists between allowing an application to contest an election on the basis of irregularities and the need for a prompt, final resolution of election outcomes. The Act provides, in s. 525(3):
(3) An application shall be dealt with without delay and in a summary way.
It should be remembered that annulling an election would disenfranchise not only those persons whose votes were disqualified, but every elector who voted in the riding. That voters will have the opportunity to vote in a by-election is not a perfect answer, as Professor Steven F. Huefner writes:
. . . a new election can never be run on a clean slate, but will always be colored by the perceived outcome of the election it superseded. New elections may also be an inconvenience for the voters, and almost certainly will mean that a different set of voters, with different information, will be deciding the election. Moreover, there can be no guarantee that the new election will itself be free from additional problems, including fraud. In the long term, rerunning elections might lead to disillusionment or apathy, even if in the short term they excite interest in the particular contest. Frequent new elections also would undercut democratic stability by calling into question the security and efficiency of the voting mechanics.
Permitting elections to be lightly overturned would also increase the “margin of litigation”. The phrase “margin of litigation” describes an election outcome close enough to draw post-election legal action: Huefner, at pp. 266-67.
The current system of election administration in Canada is not designed to achieve perfection, but to come as close to the ideal of enfranchising all entitled voters as possible. Since the system and the Act are not designed for certainty alone, courts cannot demand perfect certainty. Rather, courts must be concerned with the integrity of the electoral system. This overarching concern informs our interpretation of the phrase “irregularities . . . that affected the result”.
The following approach should be followed in determining whether there were “irregularities . . . that affected the result of the election”: An applicant must prove that a procedural safeguard designed to establish an elector’s entitlement to vote was not respected. This is an “irregularity”. An applicant must then demonstrate that the irregularity “affected the result” of the election because an individual voted who was not entitled to do so. In determining whether the result was affected, an application judge may consider any evidence in the record capable of establishing that the person was in fact entitled to vote despite the irregularity, or that the person was not in fact entitled to vote.
If it is established that there were “irregularities . . . that affected the result of the election”, a court may annul the election. In exercising this discretion, if a court is satisfied that, because of the rejection of certain votes, the winner is in doubt, it would be unreasonable for the court not to annul the election. For the purposes of this application, the “magic number” test will be used to make that determination."
Regards,
Blair
Tuesday, October 9, 2012
No Duty to Mitigate Where Notice Period Fixed
In Bowes v. Goss Power Products Ltd., a unanimous panel of five judges of the Ontario Court of Appeal confirmed that an employee has no duty to mitigate damages (unless the employment agreement stipulates such obligation) when the employment agreement fixes the notice period or termination pay in lieu of notice.
In this case, the employee signed an employment agreement for the position of executive vice president of sales and marketing for the employer. The agreement fixed his entitlement to six months’ notice or pay in lieu of notice if the employee’s employment was terminated. The agreement was silent on mitigation.
On April 13, 2011, the employer terminated the employee’s employment without cause and advised that he was entitled to salary continuance for the contractually fixed six month period. Shortly after termination, the employee secured a new job with an equivalent salary. The employer took the position that the employee had mitigated his damages and was only entitled to receive the minimum statutory entitlement under the Employment Standards Act. The employee disagreed and commenced an application in the Ontario Superior Court of Justice seeking a declaration that he was entitled to the full six months base salary in accordance with the agreement and that such payment was not subject to a duty to mitigate.
The applications judge held that simply because the parties agreed on the period of reasonable notice did not mean that the obligation to mitigate is ousted by agreement.
The Court of Appeal allowed the appeal. The Court held that by contracting for a fixed sum of termination/severance pay, the parties displaced the common law regime thereby contracting out of the Bardal “reasonable notice” approach or damages in lieu of notice.
The Court of Appeal gave the following reasons to support its conclusion:
a) the duty to mitigate is not applicable if the damages are either liquidated or a contractual sum;
b) It would be unfair to permit an employer to opt for certainty by specifying a fixed amount of damages and then allow the employer to later seek to obtain a lower amount at the expense of the employee by raising an issue of mitigation that was not mentioned in the employment agreement;
c) It is counter-intuitive for the parties to contract for certainty and finality, and yet leave mitigation as a live issue with the uncertainty, risk and litigation that would ensue as a consequence; and
d) A broad release in an employment agreement demonstrates an intention to avoid resort to the courts, confirms a desire for finality, and bolsters a finding that the parties intended that mitigation would not be required unless the agreement expressly stipulates to the contrary.
Bowes v. Goss Power Products Ltd., 2012 ONCA 425
Regards,
Blair
In this case, the employee signed an employment agreement for the position of executive vice president of sales and marketing for the employer. The agreement fixed his entitlement to six months’ notice or pay in lieu of notice if the employee’s employment was terminated. The agreement was silent on mitigation.
On April 13, 2011, the employer terminated the employee’s employment without cause and advised that he was entitled to salary continuance for the contractually fixed six month period. Shortly after termination, the employee secured a new job with an equivalent salary. The employer took the position that the employee had mitigated his damages and was only entitled to receive the minimum statutory entitlement under the Employment Standards Act. The employee disagreed and commenced an application in the Ontario Superior Court of Justice seeking a declaration that he was entitled to the full six months base salary in accordance with the agreement and that such payment was not subject to a duty to mitigate.
The applications judge held that simply because the parties agreed on the period of reasonable notice did not mean that the obligation to mitigate is ousted by agreement.
The Court of Appeal allowed the appeal. The Court held that by contracting for a fixed sum of termination/severance pay, the parties displaced the common law regime thereby contracting out of the Bardal “reasonable notice” approach or damages in lieu of notice.
The Court of Appeal gave the following reasons to support its conclusion:
a) the duty to mitigate is not applicable if the damages are either liquidated or a contractual sum;
b) It would be unfair to permit an employer to opt for certainty by specifying a fixed amount of damages and then allow the employer to later seek to obtain a lower amount at the expense of the employee by raising an issue of mitigation that was not mentioned in the employment agreement;
c) It is counter-intuitive for the parties to contract for certainty and finality, and yet leave mitigation as a live issue with the uncertainty, risk and litigation that would ensue as a consequence; and
d) A broad release in an employment agreement demonstrates an intention to avoid resort to the courts, confirms a desire for finality, and bolsters a finding that the parties intended that mitigation would not be required unless the agreement expressly stipulates to the contrary.
Bowes v. Goss Power Products Ltd., 2012 ONCA 425
Regards,
Blair
Wednesday, October 3, 2012
Sex Workers Challenge Criminalilty of Prostitution
In a recent Supreme Court of Canada decision - Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society (B.C.C.A. October 12, 2010)(33981), an organization called
A Society whose objects include improving conditions for female sex workers in the Downtown Eastside of Vancouver and K, who worked as such for 30 years, launched a Charter challenge to the prostitution provisions of the Criminal Code. The chambers judge found that they should not be granted either public or private interest standing to pursue their challenge; the British Columbia Court of Appeal, however, granted them both public interest standing.”
The SCC (unanimously) dismissed the appeal.
Justice Cromwell wrote as follows (at paragraphs 1-3, 42, 51):
“This appeal is concerned with the law of public interest standing in constitutional cases. The law of standing answers the question of who is entitled to bring a case to court for a decision. Of course it would be intolerable if everyone had standing to sue for everything, no matter how limited a personal stake they had in the matter. Limitations on standing are necessary in order to ensure that courts do not become hopelessly overburdened with marginal or redundant cases, to screen out the mere “busybody” litigant, to ensure that courts have the benefit of contending points of view of those most directly affected and to ensure that courts play their proper role within our democratic system of government: Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, at p. 631. The traditional approach was to limit standing to persons whose private rights were at stake or who were specially affected by the issue. In public law cases, however, Canadian courts have relaxed these limitations on standing and have taken a flexible, discretionary approach to public interest standing, guided by the purposes which underlie the traditional limitations.
In exercising their discretion with respect to standing, the courts weigh three factors in light of these underlying purposes and of the particular circumstances. The courts consider whether the case raises a serious justiciable issue, whether the party bringing the action has a real stake or a genuine interest in its outcome and whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court: Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, at p. 253. The courts exercise this discretion to grant or refuse standing in a “liberal and generous manner” (p. 253).
In this case, the respondents the Downtown Eastside Sex Workers United Against Violence Society, whose objects include improving working conditions for female sex workers, and Ms. Kiselbach, have launched a broad constitutional challenge to the prostitution provisions of the Criminal Code, R.S.C. 1985, c. C-46. The British Columbia Court of Appeal found that they should be granted public interest standing to pursue this challenge; the Attorney General of Canada appeals. The appeal raises one main question: whether the three factors which courts are to consider in deciding the standing issue are to be treated as a rigid checklist or as considerations to be taken into account and weighed in exercising judicial discretion in a way that serves the underlying purposes of the law of standing. In my view, the latter approach is the right one. Applying it here, my view is that the Society and Ms. Kiselbach should be granted public interest standing.
It may be helpful to give some examples of the types of interrelated matters that courts may find useful to take into account... This list, of course, is not exhaustive but illustrative.
• The court should consider the plaintiff’s capacity to bring forward a claim. In doing so, it should examine amongst other things, the plaintiff’s resources, expertise and whether the issue will be presented in a sufficiently concrete and well-developed factual setting.
• The court should consider whether the case is of public interest in the sense that it transcends the interests of those most directly affected by the challenged law or action. Courts should take into account that one of the ideas which animates public interest litigation is that it may provide access to justice for disadvantaged persons in society whose legal rights are affected. Of course, this should not be equated with a licence to grant standing to whoever decides to set themselves up as the representative of the poor or marginalized.
• The court should turn its mind to whether there are realistic alternative means which would favour a more efficient and effective use of judicial resources and would present a context more suitable for adversarial determination. Courts should take a practical and pragmatic approach. The existence of other potential plaintiffs, particularly those who would have standing as of right, is relevant, but the practical prospects of their bringing the matter to court at all or by equally or more reasonable and effective means should be considered in light of the practical realities, not theoretical possibilities. Where there are other actual plaintiffs in the sense that other proceedings in relation to the matter are under way, the court should assess from a practical perspective what, if anything, is to be gained by having parallel proceedings and whether the other proceedings will resolve the issues in an equally or more reasonable and effective manner. In doing so, the court should consider not only the particular legal issues or issues raised, but whether the plaintiff brings any particularly useful or distinctive perspective to the resolution of those issues.
• The potential impact of the proceedings on the rights of others who are equally or more directly affected should be taken into account. Indeed, courts should pay special attention where private and public interests may come into conflict. As was noted in Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, at p. 1093, the court should consider, for example, whether “the failure of a diffuse challenge could prejudice subsequent challenges to the impugned rules by parties with specific and factually established complaints”. The converse is also true. If those with a more direct and personal stake in the matter have deliberately refrained from suing, this may argue against exercising discretion in favour of standing.”
Regards,
Blair
A Society whose objects include improving conditions for female sex workers in the Downtown Eastside of Vancouver and K, who worked as such for 30 years, launched a Charter challenge to the prostitution provisions of the Criminal Code. The chambers judge found that they should not be granted either public or private interest standing to pursue their challenge; the British Columbia Court of Appeal, however, granted them both public interest standing.”
The SCC (unanimously) dismissed the appeal.
Justice Cromwell wrote as follows (at paragraphs 1-3, 42, 51):
“This appeal is concerned with the law of public interest standing in constitutional cases. The law of standing answers the question of who is entitled to bring a case to court for a decision. Of course it would be intolerable if everyone had standing to sue for everything, no matter how limited a personal stake they had in the matter. Limitations on standing are necessary in order to ensure that courts do not become hopelessly overburdened with marginal or redundant cases, to screen out the mere “busybody” litigant, to ensure that courts have the benefit of contending points of view of those most directly affected and to ensure that courts play their proper role within our democratic system of government: Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, at p. 631. The traditional approach was to limit standing to persons whose private rights were at stake or who were specially affected by the issue. In public law cases, however, Canadian courts have relaxed these limitations on standing and have taken a flexible, discretionary approach to public interest standing, guided by the purposes which underlie the traditional limitations.
In exercising their discretion with respect to standing, the courts weigh three factors in light of these underlying purposes and of the particular circumstances. The courts consider whether the case raises a serious justiciable issue, whether the party bringing the action has a real stake or a genuine interest in its outcome and whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court: Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, at p. 253. The courts exercise this discretion to grant or refuse standing in a “liberal and generous manner” (p. 253).
In this case, the respondents the Downtown Eastside Sex Workers United Against Violence Society, whose objects include improving working conditions for female sex workers, and Ms. Kiselbach, have launched a broad constitutional challenge to the prostitution provisions of the Criminal Code, R.S.C. 1985, c. C-46. The British Columbia Court of Appeal found that they should be granted public interest standing to pursue this challenge; the Attorney General of Canada appeals. The appeal raises one main question: whether the three factors which courts are to consider in deciding the standing issue are to be treated as a rigid checklist or as considerations to be taken into account and weighed in exercising judicial discretion in a way that serves the underlying purposes of the law of standing. In my view, the latter approach is the right one. Applying it here, my view is that the Society and Ms. Kiselbach should be granted public interest standing.
It may be helpful to give some examples of the types of interrelated matters that courts may find useful to take into account... This list, of course, is not exhaustive but illustrative.
• The court should consider the plaintiff’s capacity to bring forward a claim. In doing so, it should examine amongst other things, the plaintiff’s resources, expertise and whether the issue will be presented in a sufficiently concrete and well-developed factual setting.
• The court should consider whether the case is of public interest in the sense that it transcends the interests of those most directly affected by the challenged law or action. Courts should take into account that one of the ideas which animates public interest litigation is that it may provide access to justice for disadvantaged persons in society whose legal rights are affected. Of course, this should not be equated with a licence to grant standing to whoever decides to set themselves up as the representative of the poor or marginalized.
• The court should turn its mind to whether there are realistic alternative means which would favour a more efficient and effective use of judicial resources and would present a context more suitable for adversarial determination. Courts should take a practical and pragmatic approach. The existence of other potential plaintiffs, particularly those who would have standing as of right, is relevant, but the practical prospects of their bringing the matter to court at all or by equally or more reasonable and effective means should be considered in light of the practical realities, not theoretical possibilities. Where there are other actual plaintiffs in the sense that other proceedings in relation to the matter are under way, the court should assess from a practical perspective what, if anything, is to be gained by having parallel proceedings and whether the other proceedings will resolve the issues in an equally or more reasonable and effective manner. In doing so, the court should consider not only the particular legal issues or issues raised, but whether the plaintiff brings any particularly useful or distinctive perspective to the resolution of those issues.
• The potential impact of the proceedings on the rights of others who are equally or more directly affected should be taken into account. Indeed, courts should pay special attention where private and public interests may come into conflict. As was noted in Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, at p. 1093, the court should consider, for example, whether “the failure of a diffuse challenge could prejudice subsequent challenges to the impugned rules by parties with specific and factually established complaints”. The converse is also true. If those with a more direct and personal stake in the matter have deliberately refrained from suing, this may argue against exercising discretion in favour of standing.”
Regards,
Blair
Tuesday, October 2, 2012
Supreme Court of Canada on harmful effects of Cyberbullying
Here is a synopsis of a recent decision of the Supreme Court of Canada on cyberbullying:
A 15‑year old girl found out that someone had posted a fake Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her. The picture was accompanied by unflattering commentary about the girl’s appearance along with sexually explicit references. Through her father as guardian, the girl brought an application for an order requiring the Internet provider to disclose the identity of the person(s) who used the IP address to publish the profile so that she could identify potential defendants for an action in defamation. As part of her application, she asked for permission to anonymously seek the identity of the creator of the profile and for a publication ban on the content of the profile. Two media groups opposed the request for anonymity and the ban. The Supreme Court of Nova Scotia granted the request that the Internet provider disclose the information about the publisher of the profile, but denied the request for anonymity and the publication ban because there was insufficient evidence of specific harm to the girl. The judge stayed that part of his order requiring the Internet provider to disclose the publisher’s identity until either a successful appeal allowed the girl to proceed anonymously or until she filed a draft order which used her own and her father’s real names. The Court of Appeal upheld the decision primarily on the ground that the girl had not discharged the onus of showing that there was evidence of harm to her which justified restricting access to the media.
Held: The appeal should be allowed in part.
The critical importance of the open court principle and a free press has been tenaciously embedded in the jurisprudence. In this case, however, there are interests that are sufficiently compelling to justify restricting such access: privacy and the protection of children from cyberbullying.
Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law and results in the protection of young people’s privacy rights based on age, not the sensitivity of the particular child. In an application involving cyberbullying, there is no need for a child to demonstrate that he or she personally conforms to this legal paradigm. The law attributes the heightened vulnerability based on chronology, not temperament.
While evidence of a direct, harmful consequence to an individual applicant is relevant, courts may also conclude that there is objectively discernable harm. It is logical to infer that children can suffer harm through cyberbullying, given the psychological toxicity of the phenomenon. Since children are entitled to protect themselves from bullying, cyber or otherwise, there is inevitable harm to them — and to the administration of justice — if they decline to take steps to protect themselves because of the risk of further harm from public disclosure. Since common sense and the evidence show that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and since the right to protection will disappear for most children without the further protection of anonymity, the girl’s anonymous legal pursuit of the identity of her cyberbully should be allowed.
In Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, prohibiting identity disclosure was found to represent only minimal harm to press freedom. The serious harm in failing to protect young victims of bullying through anonymity, as a result, outweighs this minimal harm. But once the girl’s identity is protected through her right to proceed anonymously, there is little justification for a publication ban on the non‑identifying content of the profile. If the non‑identifying information is made public, there is no harmful impact on the girl since the information cannot be connected to her. The public’s right to open courts –and press freedom – therefore prevail with respect to the non‑identifying Facebook content.
Regards,
Blair
A 15‑year old girl found out that someone had posted a fake Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her. The picture was accompanied by unflattering commentary about the girl’s appearance along with sexually explicit references. Through her father as guardian, the girl brought an application for an order requiring the Internet provider to disclose the identity of the person(s) who used the IP address to publish the profile so that she could identify potential defendants for an action in defamation. As part of her application, she asked for permission to anonymously seek the identity of the creator of the profile and for a publication ban on the content of the profile. Two media groups opposed the request for anonymity and the ban. The Supreme Court of Nova Scotia granted the request that the Internet provider disclose the information about the publisher of the profile, but denied the request for anonymity and the publication ban because there was insufficient evidence of specific harm to the girl. The judge stayed that part of his order requiring the Internet provider to disclose the publisher’s identity until either a successful appeal allowed the girl to proceed anonymously or until she filed a draft order which used her own and her father’s real names. The Court of Appeal upheld the decision primarily on the ground that the girl had not discharged the onus of showing that there was evidence of harm to her which justified restricting access to the media.
Held: The appeal should be allowed in part.
The critical importance of the open court principle and a free press has been tenaciously embedded in the jurisprudence. In this case, however, there are interests that are sufficiently compelling to justify restricting such access: privacy and the protection of children from cyberbullying.
Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law and results in the protection of young people’s privacy rights based on age, not the sensitivity of the particular child. In an application involving cyberbullying, there is no need for a child to demonstrate that he or she personally conforms to this legal paradigm. The law attributes the heightened vulnerability based on chronology, not temperament.
While evidence of a direct, harmful consequence to an individual applicant is relevant, courts may also conclude that there is objectively discernable harm. It is logical to infer that children can suffer harm through cyberbullying, given the psychological toxicity of the phenomenon. Since children are entitled to protect themselves from bullying, cyber or otherwise, there is inevitable harm to them — and to the administration of justice — if they decline to take steps to protect themselves because of the risk of further harm from public disclosure. Since common sense and the evidence show that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and since the right to protection will disappear for most children without the further protection of anonymity, the girl’s anonymous legal pursuit of the identity of her cyberbully should be allowed.
In Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, prohibiting identity disclosure was found to represent only minimal harm to press freedom. The serious harm in failing to protect young victims of bullying through anonymity, as a result, outweighs this minimal harm. But once the girl’s identity is protected through her right to proceed anonymously, there is little justification for a publication ban on the non‑identifying content of the profile. If the non‑identifying information is made public, there is no harmful impact on the girl since the information cannot be connected to her. The public’s right to open courts –and press freedom – therefore prevail with respect to the non‑identifying Facebook content.
Regards,
Blair
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