tag:blogger.com,1999:blog-69421226147359461732024-02-08T02:09:06.437-08:00Bowen's LawBlair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.comBlogger203125tag:blogger.com,1999:blog-6942122614735946173.post-60564465689789116952023-12-08T10:07:00.000-08:002023-12-08T10:07:52.808-08:00This Year's Louis Riel Day Celebrated the Anniversary of the Powley Case<p> </p><p class="MsoNormal"><span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">November
16<sup>th</sup> was Louis Riel Day.<span style="mso-spacerun: yes;"> </span>The
day commemorates the anniversary of Riel's execution in 1885. Riel was a
politician, a founder of the province of Manitoba and a political leader of the
Métis people. This year's Louis Reil Day also marked the 20rth anniversary of
the Supreme Court of Canada's decision in R. v. Powley (2003) SCC 43 (CanLII),
a landmark decision for Canada's Métis people.<o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;"><o:p> </o:p></span></p>
<p class="MsoNormal"><span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">In
the Powley case, Steve Powley and Roddy Powley, who were members of a Métis
community near Sault Ste. Marie, were acquitted at trial of unlawfully hunting
a moose without a hunting licence in contravention of sections of Ontario's
Game and Fish Act (the "Act"). The trial judge found that members of
the Métis community in and around Sault Ste. Marie have under section 35(1) of
the Constitution Act 1982 (the "Constitution Act") an aboriginal
right to hunt for food that the Act infringed, without justification. The
Ontario Superior Court of Justice and the Ontario Court of Appeal unanimously
upheld the acquittal. The Crown appealed those decisions to the Supreme Court
of Canada.<o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;"><o:p> </o:p></span></p>
<p class="MsoNormal"><span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">The
Supreme Court unanimously dismissed the Crown's appeal. The Court held that the
term "Métis" in section 35 of the Constitution Act does not encompass
all individuals with mixed indigenous and European heritage; rather it refers
to distinctive peoples who, in addition to their mixed ancestry, developed
their own customs and recognizable group identity separate from their
Indigenous or Inuit and European ancestors. A "Métis community" is a
group of Métis with a distinctive collective identity, living in the same
geographical area and sharing a common way of life. The purpose of section 35
is to protect practices that were historically important features of these
distinctive communities and that persist in the present day. The pre-contact
aspect of the "Van der Peet test" must be adjusted to consider
post-contact "ethnogenesis and evolution" of the Métis. A pre-control
test establishing when Europeans achieved political and legal control in an
area and focusing on the period after a particular Métis community arose and
before it came under the control of European laws and customs is necessary to
accommodate this history. <o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;"><o:p> </o:p></span></p>
<p class="MsoNormal"><span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">The
Court held that aboriginal rights are communal, grounded in the existence of a
historical and present community and exercisable by virtue of an individual's
ancestrally based membership in the present community. The aboriginal right
claimed in this case was the right to hunt for food in the area of Sault Ste.
Marie. To support a site-specific aboriginal rights claim, an identifiable
Métis community with some degree of continuity and stability must be
established through evidence of shared customs, traditions and collective
identity as well as demographic evidence. The trial judge's findings of a
historic Métis community and of a contemporary Métis community in and around
Sault Ste. Marie were supported by the record. <o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;"><o:p> </o:p></span></p>
<p class="MsoNormal"><span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">The
Court further held that the verification of a claimant's membership in the
relevant contemporary community is crucial since individuals are only entitled
to exercise Métis aboriginal rights by virtue of their ancestral connection and
current membership in a Métis community. Self-identification, ancestral
connection, and community acceptance are factors which define Métis identity
for the purpose of claiming Métis rights under section 35. Absent formal
identification, courts will have to ascertain Métis identity on a case-by-case
basis. Here, the trial judge correctly found that the respondents were members
of the Métis community that arose and still existed in and around Sault Ste.
Marie.<o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;"><o:p> </o:p></span></p>
<p class="MsoNormal"><span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">The
historical record fully supported the trial judge's findings at the period just
prior to 1850 as the appropriate date for finding effective European control in
the Sault Ste. Marie area. The evidence also supported the finding that hunting
for food is integral to the Métis way of life in Sault Ste. Marie in the period
just prior to 1850. This practice has been continuous to the present. <o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;"><o:p> </o:p></span></p>
<p class="MsoNormal"><span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">Ontario's
lack of recognition of any Métis right to hunt for food in the application of
the challenge provisions of the Act infringes the Métis' aboriginal right.
Conservation concerns did not justify the infringement. Even if the moose
population in that part of Ontario were under threat, the Métis would still be
entitled to a priority allocation to satisfy their subsistence needs. <o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;"><o:p> </o:p></span></p>
<p class="MsoNormal"><span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">Further,
the difficulty of identifying members of the Métis community should not be
exaggerated to defeat constitutional rights. In the immediate future, the
hunting rights of the Métis should track those of the Ojibway in terms of
restrictions for conservation purposes and priority allocations. In the longer
term, a combination of negation and judicial entitlement will more clearly
define the contours of the Métis right to hunt.<o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;"><o:p> </o:p></span></p>Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-90024794196819502272021-05-11T11:33:00.000-07:002021-05-11T11:33:05.574-07:00SCC says Police can't sue Crown for its Prosecution of a Case<p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: medium;"><i>Ontario (Attorney General) v. Clark</i>, 2021 SCC 18 </span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px; min-height: 17px;"><span style="font-size: medium;"><br /></span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: medium;">This Supreme Court of Canada decision was released on April 30, 2021. The Court held that Toronto police officers could not maintain an action against Crown prosecutors for “misfeasance in public office” because of the Crown’s handling of the prosecution of a case.</span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px; min-height: 17px;"><span style="font-size: medium;"><br /></span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: medium;">Background</span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px; min-height: 17px;"><span style="font-size: medium;"><br /></span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: medium;">In June 2009, three Toronto police officers arrested two suspects in connection with a complaint of armed robbery and forcible confinement. Both men were charged and were committed to stand trial. Prior to trial, one of the accused brought an application to stay the proceedings against him and to exclude the evidence of a confession he made on the day of the arrest. The accused claimed that the police had beaten him during the arrest and caused him a serious rib injury. The Assistant Crown Attorney and a senior Crown Attorney agreed that the accused’s confession would not be admissible and the charges against him were stayed. The jury trial against the other suspect proceeded and he was convicted. After his conviction, the second man filed a stay application alleging that the police officers had assaulted him as well during his arrest. Both accused testified on the stay application. The Assistant Crown Attorney did not call the officers to give evidence and conceded that the assaults had occurred. The judge accepted the evidence and reduced the second accused’s sentence.</span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px; min-height: 17px;"><span style="font-size: medium;"><br /></span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: medium;">The judge’s reasons described the assaults in detail and called the police’s conduct “police brutality”. Those findings were reported in the news media. The Special Investigations Unit (SIU) and the Toronto Police Service Professional Standards Unit (PSU) then conducted reviews of the allegations of misconduct against the officers. The SIU discontinued its proceedings when the first accused declined to participate. The PSU concluded that the alleged misconduct could not be substantiated. </span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px; min-height: 17px;"><span style="font-size: medium;"><br /></span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: medium;">The second accused appealed the judge’s decision not to stay the proceedings against him. The Court of Appeal allowed the appeal and entered a stay of proceedings noting that the Crown did not contest the evidence of the assaults. It strongly criticized the police conduct. Its findings were also reported in the media. After the appeal, the SIU reopened its investigation and concluded that the first man’s rib injury post-dated the arrest and that the allegations against the police were not substantiated by the evidence. An OPP review concluded that the PSU investigation was thorough and there was no reason to refute its conclusion. </span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px; min-height: 17px;"><span style="font-size: medium;"><br /></span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: medium;">The police sued the Attorney General for negligence and misfeasance committed by the Assistant Crown, the senior Crown, and the appeal Crown Attorneys. They sought general damages for negligence and misfeasance plus aggravated, exemplary and punitive damages. The police claimed to have suffered irreparable harm to their reputations and their credibility. The Attorney General moved to strike the claim for failing to disclose a cause of action. The motion judge struck the negligence claim but allowed the misfeasance claim to proceed and that decision was withheld on appeal. Only the decision as to the misfeasance claim was appealed to the Supreme Court of Canada.</span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px; min-height: 17px;"><span style="font-size: medium;"><br /></span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: medium;">The SCC Majority Decision</span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px; min-height: 17px;"><span style="font-size: medium;"><br /></span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: medium;">The Court, in an 8 – 1 decision (Justice Cote dissenting) held that the Attorney General’s appeal should be allowed and that the misfeasance claim should be struck. The majority decision was written by Justice Abella. The majority held that prosecutors do not owe specific legal duties to the police with respect to how they carry out a prosecution. Misfeasance cannot be used to get around this reality. Piercing the immunity of Crown prosecutors to make them accountable to police officers would put Crown prosecutors in perpetual potential conflict with their public duties of objectivity, independence and integrity in pursuit of ensuring a fair trial for the accused and maintaining public confidence in the administration of justice. </span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px; min-height: 17px;"><span style="font-size: medium;"><br /></span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: medium;">Justice Abella wrote that prosecutorial immunity advances the public interest by enabling prosecutors to make discretionary decisions in fulfillment of their profession obligations without fear of judicial or police interfering. This fulfills their quasi-judicial roles as ministers of justice. The principles underlying immunity are the prosecutor’s constitutional protected independence, the risks to objective decision-making and a concern about diverting prosecutors from their public interest duties. Exposing prosecutors to civil liability may create a chilling effect, encouraging decision-making motivated by a desire to ward off the spectre of liability and obfuscating the prosecutor’s core duties to act objectively and independently in the interests of the integrity of the system and the rights of the accused.</span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px; min-height: 17px;"><span style="font-size: medium;"><br /></span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: medium;">Allowing the police to sue the Crown for misfeasance is fundamentally incompatible with the mutually independent relationship between the police and the prosecutor. The police’s role is to investigate crime. The Crown prosecutor’s role is to assess whether a prosecution is in the public interest and if so, to carry out the production in accordance with the prosecutor’s duties to the administration of justice and the accused.</span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px; min-height: 17px;"><span style="font-size: medium;"><br /></span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: medium;">The police have a legitimate expectation and interest in their reputations not being unfairly impaired, but the solution cannot be to make prosecutors accountable to them in a way that obliterates the independence between police and prosecutors and is inconsistent with the Crown’s core public duties to the administration of justice and to the accused. </span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px; min-height: 17px;"><span style="font-size: medium;"><br /></span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: medium;">The Lone Dissenter</span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px; min-height: 17px;"><span style="font-size: medium;"><br /></span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: medium;">Justice Cote, the lone dissenting judge, held that prosecutorial immunity should not apply to claims for misfeasance in public office brought by police officers, if the officers suffered harm as a result of deliberate and unlawful conduct by prosecutors. Justice Cote held that although the protection of prosecutorial independence is constitutionally entrenched in section 7 of the Charter, the scope of prosecutorial immunity is a matter of policy. The policy concerns should not only benefit the accused persons, they should be considered in light of the particular liability threshold applicable to the tort in issue. Justice Cote embarked on a two-step analysis that she said should be used to decide whether prosecutorial immunity should be applied in a particular situation. The first step requires determining whether there are cogent policy reasons for piercing the immunity and the second steps requires determining whether the liability threshold for the tort at issue is high enough to tamp down the twin policy concerns and to safeguard prosecutorial independence. </span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px; min-height: 17px;"><span style="font-size: medium;"><br /></span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: medium;">Regards,</span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px; min-height: 17px;"><span style="font-size: medium;"><br /></span></p><p style="font-family: Helvetica; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: medium;">Blair</span></p><p style="font-family: Helvetica; font-size: 14px; font-stretch: normal; line-height: normal; margin: 0px; min-height: 17px;"><br /></p>Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-36814022592533432092019-11-29T12:28:00.000-08:002019-11-29T12:28:46.078-08:00Court of Appeal Keeps Barry and Honey Sherman's Estate Files Sealed<br />
<div class="MsoNormal">
Kevin Donovan is the Chief Investigator Reporter at the
Toronto Star.<span style="mso-spacerun: yes;"> </span>He also is the author of a
book about the unsolved murders of Toronto billionaire Barry Sherman and his
wife Honey Sherman entitled “The Billionaire Murders: The
Mysterious Deaths of Barry and Honey Sherman”. In the book, as reviewed
by Jeff Gray of The Globe and Mail, Donovan sets out to determine what actually
happened to the Shermans and who their killer might be. He explains that
on occasion, he even acted as The Toronto Star’s lawyer – even though he has no
legal training and is not a lawyer – and has attended at court to question
police to unseal such things as search warrant documents.</div>
<br />
<div class="MsoNormal">
<o:p></o:p></div>
<br />
<div class="MsoNormal">
<span style="mso-spacerun: yes;"></span>The Shermans were
murdered in their home on December 15, 2017.<span style="mso-spacerun: yes;">
</span>No one has yet been arrested and the police are still investigating.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In June 2018 lawyers for the estate trustees of Barry and
Honey Sherman's estates filed applications for certificates of appointment of
estate trustee.<span style="mso-spacerun: yes;"> </span>On the application of
the estate trustees, Justice Sean Dunphy of the Ontario Superior Court granted
initial <i>ex parte</i> protective orders sealing the applications and other documents relating to the administration of the estates.<span style="mso-spacerun: yes;"> </span>Following a contested application to open the
court files initiated by Mr. Donovan, Justice Dunphy ordered that the entire
court file be sealed and remain sealed for a period of two years, subject to
further order of the court.<o:p></o:p></div>
<div class="MsoNormal">
The court of appeal later set aside that order and ordered
that the decision to allow access to the files would take effect 10 days after being released.<span style="mso-spacerun: yes;"> </span>However, before the decision took effect, the estate trustees brought a motion
for leave to the Supreme Court of Canada.<span style="mso-spacerun: yes;"> A stay of the order to release the files was imposed. </span>Mr. Donovan brought and argued on his own, a motion before Justice van Rensburg of the Court of Appeal to have the estate
administration files unsealed pending the decision of the Supreme Court of
Canada. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<o:p></o:p></div>
<div class="MsoNormal">
In upholding the stay, Justice van Rensburg held that the
test on a motion for stay of an order of the Court of Appeal pending an
application for leave to appeal to the Supreme Court of Canada had been set out
by Chief Justice Strathy in <i style="mso-bidi-font-style: normal;">Livent v.
Deloitte & Touche</i> – i.e. (1) whether there is a serious issue to be tried (2) whether the moving party will suffer irreparable harm if the stay is not
granted and (3) whether the balance of convenience favours a stay.<span style="mso-spacerun: yes;"> </span>The factors are not to be treated as watertight
compartments and the strength of one factor may compensate for weaknesses of
another.<span style="mso-spacerun: yes;"> </span>The overarching consideration is
whether the interests of justice call for a stay.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Dunphy had held that the sealing
order was necessary to prevent a serious risk to the privacy and safety of the
trustees and beneficiaries of the two estates.<span style="mso-spacerun: yes;">
</span>Their privacy had to be weighed against the right to free expression and
public interest in open and accessible court proceedings.<span style="mso-spacerun: yes;"> </span>In addition, there was an argument that there
was a real risk of serious physical harm to the beneficiaries and trustees.<span style="mso-spacerun: yes;"> </span>Justice van Rensburg held
that the first part of the Livent test had been met.<span style="mso-spacerun: yes;">
</span>The threshold was low.<span style="mso-spacerun: yes;"> </span>There was
a serious question raised about whether public access to the files should
be denied in whole or in part for a period of time.<span style="mso-spacerun: yes;"> S</span>he held that there was arguable
merit to the proposed application for leave to appeal to the Supreme Court.<span style="mso-spacerun: yes;"> </span>The appropriate analytical framework for
restricting public access to court files involving non-litigious or
administrative matters was something that the Supreme Court of Canada had not
yet determined.<span style="mso-spacerun: yes;"> </span>In addition, an issue
was whether in the digital age, having regard to the evolving jurisprudence
concerning personal privacy, a person's privacy interest can amount to an
important public interest at the first stage.<span style="mso-spacerun: yes;">
</span>Justice van Rensburg held that the level of threshold in the first part
of the test first had been met and that the moving parties' application for
leave to the Supreme Court of Canada had some arguable merit.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
With respect to the issue of irreparable harm, Justice van
Rensburg acceded to the moving parties argument that if the stay was not kept in place, the leave question to the Supreme Court of Canada would be moot.<span style="mso-spacerun: yes;"> </span>"By disseminating potentially
constitutionally protected confidential information that might at the end of
the process continue to be protected would mean that the then horse would be
out of the barn."<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
With respect to the balance of convenience, the only inconvenient part would be delaying access to files of
administration.<span style="mso-spacerun: yes;"> </span>There was no particular
urgency for public access to the files.<span style="mso-spacerun: yes;">
</span>Justice van Rensburg held it was best to preserve the status quo until
the Supreme Court could rule on the matter. <span style="mso-spacerun: yes;"> </span>The files didn't bear themselves on the
criminal investigation so that really the only issue was whether the
public would be denied anything by continued sealing.<span style="mso-spacerun: yes;"> </span>She concluded that there simply no meaningful
part of either file that could not be disclosed after making redactions where
redactions were necessary and complete.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Regards,</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Blair</div>
<br />Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-74347806629183889462019-08-06T12:30:00.000-07:002019-08-06T12:30:47.539-07:00End of the Road for Ecuadorian Villagers in Their Fight Against Chevron?<br />
<div class="MsoNormal">
<span style="font-size: 14.0pt;">This is the case that keeps
on giving – both blog posts and reader interes - although the legal saga that has generated all of those words
may have come to an end.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Earlier this year, the
Supreme Court of Canada refused to hear an appeal from a decision of the
Ontario Court of Appeal that had dismissed all claims seeking to enforce an
Ecuadorian judgment against an indirect subsidiary of Chevron Corporation in
Ontario. The SCC’s dismissal of the Ecuadorian villagers application for leave
to appeal meant that the appeal court’s ruling that Chevron Canada is a
separate legal entity from Chevron Corp., has ended the litigation here in
Canada. Subsequently, US and Canadian media have reported that the
Ecuadorian plaintiffs have now settled their action against Chevron by agreeing
to dismiss their Ontario enforcement proceedings and to pay costs to
Chevron. The plaintiffs’ other enforcement actions have been dismissed by
courts in Brazil, Argentina and Gibraltar. Further, an international
tribunal in The Hague found that the U.S. $9.5 billion judgment that the
Ecuadorian courts had rendered against Chevron had been procured through fraud,
bribery and corruption and were based on claims that had already been settled
and released by Ecuador years earlier. As a result, the tribunal
concluded that the Ecuadorian judgment violated international public policy and
should not be recognized or enforced by the courts of other countries.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">U.S. courts had already found
that the Ecuadorian judgment against Chevron was a product of fraud and
racketeering and had prohibited the judgment from being enforced in the United
States. In addition, U.S. District Judge Lewis Kaplan ordered Chevron’s
U.S. lawyer Steven Donziger to pay Chevron $3.4 million U.S. in
attorney’s fees. Donziger told news services that his total liability in
fines add up to about U.S. $10 million.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Chevron had filed a Racketeer
Influenced Corrupt Organizations Act (“RICO”) lawsuit against Donziger and his
law firm alleging that they had engaged in multiple acts of extortion and money
laundering, wire fraud, witness tampering, bribery and obstruction of justice
to procure the Ecuadorian judgment. Justice Kaplan found in Chevron’s
favour and held Donziger in contempt for breaching the RICO judgment. The
RICO judgment prevented Donziger from profiting from his fraud by selling
interests in the Ecuadorian judgment. The court found that Donziger had
used a large portion of the U.S. $2.3 million that he had raised
personally. U.S. $1.5 million went to directly or indirectly to Donziger
or into related accounts.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Donziger told news
organizations that the costs sanction against him was based on a bogus case by
Chevron. “Chevron has used 60 law firms and 2,000 lawyers to attack me
because I helped win a landmark environmental judgment in Ecuador against the
company for dumping billions of gallons of toxic waste in indigenous and
ancestral lands.”<o:p></o:p></span></div>
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<br /></div>
<div class="MsoNormal">
<b><u><span style="font-size: 14.0pt;">A Brief History of the
Proceedings<o:p></o:p></span></u></b></div>
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<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">In 1993, a group of
Ecuadorian citizens of the Oriente Region of the Amazon river basin filed a
class action lawsuit in the U.S. Federal Court against Texaco and in 1994 a
group of Peruvian citizens living downstream from the Oriente Region also filed
a class action lawsuit against Texaco in U.S. Federal Court. Both
complaints alleged that between 1964 and 1992, Texaco’s oil operations had
polluted the rainforests and rivers in Ecuador and Peru resulting in massive
environmental damage and damage to the health of those who lived in the
region. In 2002, the U.S. Federal Court dismissed both lawsuits on forum
non-conveniens grounds holding that Ecuador was the more appropriate forum for
litigating these claims. Texaco agreed that the courts in Ecuador and/or
Peru would have jurisdiction over the plaintiffs’ claims.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">In 2003, the villagers
brought a class action lawsuit against Texaco (which had been acquired by
Chevron in 2001) in Ecuador alleging severe environmental contamination of the
land where Texaco had conducted its oil operations. The plaintiffs
alleged that this contamination had led to increased rates of cancer as well as
other serious health problems for residents of the region. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">In early 2008 an independent
expert recommended to the court that Chevron should pay between $7 and $16
billion U.S. in compensation for the pollution. In November 2008, the expert
increased his damage estimate to $27 billion U.S. In 2008 Chevron
reportedly lobbied the U.S. government to end trade preferences with Ecuador
over the lawsuit. Following allegations of judicial misconduct, the
original trial judge recused himself from the case and a new judge was
appointed. In September 2010 the plaintiffs submitted a new damages
assessment stating that the costs had risen to between $90 and $103 billion
U.S.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">In February 2011 the
Ecuadorian judge issued a ruling against Chevron in the lawsuit. Chevron
was ordered to pay U.S. $8.6 billion in damages and clean-up costs with damages
increasing to $18 billion if Chevron did not issue a public apology.
Chevron reported publicly that it believed that the ruling was illegitimate and
unenforceable and filed an appeal. In January 2012 a panel of three
judges from the Ecuadorian Provincial Court of Appeal upheld the ruling.
Chevron subsequently appealed to Ecuador’s National Court of Justice. In
October 2012 the Ecuadorian court issued an order permitting the plaintiffs to
seize about $200 million of Chevron’s assets located in that country.
However, later the Ecuadorian Supreme Court upheld the August 2012 ruling for
environmental damage but reduced the damages to $9.5 billion U.S. Chevron
further appealed to Ecuador’s National Court of Justice in the Constitutional
Court and in 2019 the court upheld the U.S. $9.5 billion judgment against the
company.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">On September 26, 2013, I
reported that Chevron had obtained a global anti-enforcement injunction against
the plaintiffs in the United States District Court in New York. However,
the US Court of Appeal, Second Circuit reversed the injunction and held that
the plaintiffs could seek to enforce the Ecuadorian judgment in any country in
the world where Chevron had assets.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">On a motion in the Ontario
Superior Court of Justice, Justice Brown (as he was then) stayed the
enforcement proceedings against the defendants, which included Chevron
Canada. That ruling was later set aside by the Ontario Court of Appeal
which held that the plaintiffs did not deserve to have their entire case fail
on the basis of an argument that had not even been made on the motion and
allowed the enforcement action against Chevron to proceed in Ontario.
That decision was later upheld by the Supreme Court of Canada. However,
going back to court, the Ontario Court of Appeal eventually determined that
Chevron Canada could not be held to answer for a judgment against Chevron
because to do so would ignore the corporate separateness of Chevron Canada as a
multi-level subsidiary of Chevron.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Patricio Salazar, one of the
lawyers for the Ecuadorian villagers, said that the Supreme Court of Canada’s
ruling left the U.S. parent company Chevron as the sole defendant and the
plaintiffs would proceed immediately to trial to force Chevron to comply with
the Ecuadorian judgment.</span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14pt;">Regards,</span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Blair<o:p></o:p></span></div>
<br />Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-72077206535731494392019-06-04T08:32:00.000-07:002019-06-04T08:32:34.067-07:00SCC Throws Out Man's Conviction Because of Police Misconduct<br />
<div class="MsoNormal">
In a 3 to 2 decision, the Supreme Court of Canada set aside
a man’s gun and drug related convictions ruling that, in light of the police’s
unlawful conduct, the admission of incriminating evidence would bring the
administration of justice into disrepute. (See R. v. Le, 2019 SCC. 34)<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Tom Le was a 20 year old Asian-Canadian man who was arrested
by police at a west-Toronto housing complex in May of 2012. The complex
was in a high crime area and the police were told by the complex’s security
guards that the backyard of the house in which the police confronted Le was “a
problem address” because of concerns about drug trafficking.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
On the night in question, Le was chatting with four young
black men in the backyard when the police showed up. The men were doing
nothing wrong. They were just talking. The backyard was small and
was enclosed by a waist-high fence. Without a warrant or consent, or
without any warning, two police officers entered the backyard and immediately
questioned the men about what was going on, who they were and whether any of
them lived there. They also required the men to produce documentary proof
of their identities. Meanwhile, a third officer patrolled the perimeter
of the property, stepped over the fence and yelled at one man to keep his hands
where the officer could see them. Another office issued the same order.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
One officer questioned Le and demanded that he produce
identification. Le responded that he did not have any with him. The
officer then asked him what was in the satchel he was carrying. At that
point, Le fled, was pursued and arrested and found to be in possession of a
firearm, drugs and cash. At his trial, Le sought to exclude this evidence
under s.24(2) of the Canadian Charter of Rights and Freedoms (“Charter”) on the
basis that the police had infringed his constitutional rights to be free from
unreasonable search and seizure (under s.8 of the Charter) and from arbitrary
detention (under s.9 of the Charter).<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The trial judge convicted Mr. Le and held that he lacked
standing to advance a s.8 claim because there was no objective reasonableness
to any expectation of privacy that he might have had as a “mere transient
guest” in the backyard. The trial judge also held that Le’s detention was
not arbitrary as the police had reasonable grounds to suspect he was
armed. A majority of the Ontario Court of Appeal agreed with the trial
judge and found that if there were any breaches, they were “technical,
inadvertent and made in good faith”.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
On appeal to the Supreme Court of Canada, the court held
that Le’s appeal should be allowed, the evidence excluded and his conviction
set aside and acquittals entered.<o:p></o:p></div>
<div class="MsoNormal">
The majority decision was co-authored by Justices Brown and
Martin with Justice Karakatsanis concurring. Justice Moldaver and Chief
Justice Wagner dissented.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The majority of the SCC held that the circumstances of the
police entry into the backyard had effected a detention that was both immediate
and arbitrary and constituted “serious misconduct”. It was precisely this
sort of police conduct that the Charter was intended to abolish. On
balance the admission of the evidence would bring the administration of justice
into disrepute.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Detention can be either physical or psychological.
Psychological detention by the police can arise in two ways: where the accused
is legally required to comply with a direction or demand by the police; or
where the accused is not under a legal obligation to comply but a reasonable
person in the accused’s position would feel obligated and conclude they were
not free to go. This detention fell under the second category.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
There were three factors that aid in the analysis.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<ol start="1" style="margin-top: 0in;" type="1">
<li class="MsoNormal" style="mso-list: l0 level1 lfo1;"><span style="mso-fareast-font-family: "Times New Roman";">The circumstances given rise to the encounter would
reasonably be perceived by an individual as supporting a finding of
detention. The conduct of the police exceeded the norms of community
policing. There was no obvious cause for any police presence in the
backyard and the police never expressly communicated to the men why they
were there. They immediately started asking questions and the height
of the backyard fence allowed full interaction without entry.<o:p></o:p></span></li>
</ol>
<div class="MsoNormal" style="margin-left: .5in;">
<br /></div>
<ol start="2" style="margin-top: 0in;" type="1">
<li class="MsoNormal" style="mso-list: l0 level1 lfo1;"><span style="mso-fareast-font-family: "Times New Roman";">The second factor - the nature of the police conduct -
supported the conclusion that tension arose as soon as the police entered
the backyard and started asking questions. When the police enter a
private residence as trespassers it colours what happens next and supports
a finding of detention. The actions and language of the police
showed that they were immediately taking control of the situation.
Coming over the fence to enter a private residence conveyed a show of
force. The reputation of a particular community or the frequency of
police contact with its residents does not in any way license police to
enter a private residence more readily or intrusively than they would in
other, more affluent communities. Here there was a tactical element
to the encounter and the mode of entry could be seen as corrosive and
intimidating by a reasonable person.<o:p></o:p></span></li>
</ol>
<div class="MsoNormal" style="margin-left: .5in;">
<br /></div>
<ol start="3" style="margin-top: 0in;" type="1">
<li class="MsoNormal" style="mso-list: l0 level1 lfo1;"><span style="mso-fareast-font-family: "Times New Roman";">Lastly, the third factor – the particular
characteristics or circumstances of the individual involved i.e. Mr. Le –
a reasonable person “imbued” with his experiences would conclude that
there was tension from the moment the officers entered the backyard and
started asking questions. Courts need to appreciate that individuals
in some communities may have different experiences and relationships with
police then others and those experiences may impact upon their reasonable
perceptions whether they are being detained. At the detention stage
the analysis takes into consideration the larger, historic and social
context of race relations between the police and various racialized
groups. Because the focus is how the combination of a racialized
context a minority status would affect the perceptions of a reasonable
person in the shoes of the accused and not on what motivated the officers
to act as they did a finding of that there had been no racial profiling
has little bearing.<o:p></o:p></span></li>
</ol>
<div class="MsoNormal" style="margin-left: .5in;">
<br /></div>
<div class="MsoNormal">
When a detention is established, the court must consider
whether the detention is arbitrary. The implied license doctrine, which
allows the police or any member of the public on legitimate business to proceed
from the street to the door of a house so as to permit convenient communication
with the occupant does not apply in this case because if communication was the
officer’s purpose, it did not require their entry onto private property.
The police had a subsidiary purpose – a speculative criminal investigation.
A suspect’s presence in a so called high crime area is not by itself a basis
for detention.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The majority held that where evidence is obtained in a
manner that infringes a charter right or freedom, s.24(2) provides that the
evidence must be excluded if it is established that, having regard to all of
the circumstances, its admission would bring the administration of justice into
disrepute. The focus is on the overall repute of the justice system
viewed in the long term by a reasonable person, informed of all relevant
circumstances and of the importance of charter rights and not on the impact of
stating misconduct upon a particular criminal trial. The more serious the
state-infringing conduct and the greater the impact on the Charter-protected interest
the stronger the case and conclusion.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Here good faith could not be ascribed to these officers’
conduct. Their own evidence made it clear that they fully understood the
limitations upon their ability to enter the backyard to investigate individuals.
This was serious police misconduct and weighed heavily in favour of a finding
that admission of the resulting evidence would bring the administration of
justice into disrepute.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In contrast, the dissenting judges found that the admission
of the evidence would not bring the administration of justice into
disrepute. The dissenters focused on the trial judge’s findings of
credibility and the finding by the trial judge that the police had a legitimate
investigatory purpose for entering the backyard. Accordingly, they held
that such findings were entitled to deference. The minority held that
considering all of the circumstances it was clear that what must be done to
maintain the good repute of the administration of justice was to admit the
evidence because, in their view, the seriousness of the Charter-infringing
conduct fell on the “low end of the spectrum”.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Regards,<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Blair<o:p></o:p></div>
<br />Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-36359367090521367562019-05-10T12:56:00.000-07:002019-05-10T12:56:16.591-07:00SCC Restores Adjudicator's Award in Residential School Settlement<div class="MsoNormal">
In a recent decision, the Supreme Court
of Canada (SCC) held that courts had the jurisdiction to supervise residential school settlement
agreements on an ongoing basis. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In the case of J.W. v. Canada (Attorney General), 2019 SCC
20, the majority of the SCC in two separate concurring reasons, and with two judges
dissenting, allowed the claimant’s appeal and reinstated an adjudicator’s
award that granted him compensation. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
When the claimant was a young boy at a residential school, a
nun touched his genitals over his clothing. He was standing in line
waiting for a shower. He was wearing what he described as a “little
apron”.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In 2014, J.W. brought a claim for compensation in accordance
with the Independent Assessment Process (IAP), the adjudicative component of
the <i>Indian Residential Schools Settlement Agreement (2006)</i>
(“Agreement”). The Agreement represents the negotiated settlement of
thousands of individual and class actions lawsuits relating to the operation of
residential schools. Nine provincial and territorial superior courts
approved the Agreement. The Agreement includes a procedure for settling
individual claims through the IAP. The IAP describes which harms are
compensable. The Agreement also includes a system of internal
reviews but contains no right of appeal to the Courts. However,
supervising judges from each province oversee the administration of the
Agreement. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
J.W. claimed compensation in accordance with the IAP
alleging that the incident with the nun constituted compensable sexual abuse
within the meaning of the IAP. J.W.’s claim was rejected by the initial
adjudicator because, despite the fact that she believed his account of what
happened, she was not satisfied that the nun had acted with a sexual purpose,
which she concluded was an essential element in order to demonstrate that the
incident was compensable. J.W. was entitled to two levels of internal
review under the terms of the Agreement. Both of those were unsuccessful.
He then brought a Request for Directions (RFD) to a supervising judge pursuant to the
Agreement. The supervising judge found errors in the adjudicator's
interpretation of the IAP and remitted J.W.’s claim for re-adjudication.
A reconsideration adjudicator allowed J.W.’s claim this time and awarded him
compensation however, before that decision was implemented, Canada appealed the
supervising judge’s decision. The Manitoba Court of Appeal found that
there was no basis upon which the supervising judge could intervene and overturned the decision. However, on appeal to the SCC, the majority of the Court, by
a 5 to 2 margin, ruled that J.W.’s appeal should be allowed and that the
reconsideration adjudicator’s award of compensation should be reinstated.
<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Abella wrote the reasons for 3 of the 5 majority
judges. She held that J.W.’s claim was precisely the type of claim that
was contemplated by the parties to the Agreement. Failure to correct the
initial adjudicator’s errors would unacceptably undermine the whole purpose of
the Agreement. Courts may intervene in relation to IAP adjudications when
exceptional circumstances are present. The parties went to significant
lengths to make the Agreement a complete code by including levels of internal
review and choosing not to include any provisions granting court access.
However, the necessity of ongoing judicial supervision was recognized when the
courts approved the Agreement. As a result, there is a “foundational
link” between judicial supervision and the Agreement. Given the goals of
the Agreement, significant and ongoing judicial supervision is necessary.
Without it, the Agreement would not have been recognized.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In J.W.’s case, the initial adjudicator’s decision was an
unauthorized modification of the IAP. She substituted the wording of the
IAP with her own and added the requirement that the nun must have had a sexual purpose which was unsupported by the IAP’s language. These additional
requirements were not agreed to by the parties. That amounted to a
failure to implement the terms of the IAP which warranted judicial
intervention.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Abella’s reasons were supported and concurred in by
Chief Justice Wagner and Justice Karakatsanis. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Separate reasons were written by Justice Cote with Justice Moldaver
concurring. Justice Cote held that while the parties do not have an
option of seeking judicial review of IAP decisions, they can file RFDs with
the supervising courts to resolve issues relating to the implementation and
administration of the Agreement after fully exhausting the internal review
mechanisms in the Agreement. The Agreement contemplates recourse to the
supervising courts in certain specific circumstances. This creates an
alternative avenue for dealing with claims that would otherwise be dealt with by IAP
adjudicators. However, it does not permit the courts to intervene in IAP
decisions. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Parties may seek judicial recourse only in cases where the
IAP adjudicator failed to apply the terms of the Agreement. The test for judicial
recourse is whether there has been a failure by the IAP adjudicator to apply
the terms of the IAP which amounts to a failure to enforce the Agreement.
<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Additionally, Justice Cote held that should circumstances arise which were not contemplated by
the parties, courts must have the power to intervene to ensure that the parties
receive the benefits of the Agreement. In this case, the supervising
judge erred in scrutinizing the initial adjudicator’s interpretation of the IAP
and substituting his own. He was only entitled to determine whether the
adjudicator had considered the correct terms. While the supervising judge
erred in his analysis, this was an exceptional case in which reconsideration was
appropriate. J.W.’s claim had given rise to a unique dilemma for which
the Agreement provided no internal recourse and which therefore required the
court to craft a remedy. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Dissenting reasons were written by Justice Brown with
Justice Rowe concurring. Justice Brown held that the Agreement was a
contract and therefore interpreting its terms required a court to discern the
parties’ intentions. The Agreement expressly precluded judicial
intervention even where the IAP had been incorrectly interpreted and
applied. It is a complete code that limits access to the courts,
preserves the finality of the IAP and respects the expertise of IAP
adjudicators. Given the finality promised by the IAP, the parties would
have seen prolonged litigation of IAP claims in the courts to be undesirable.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<o:p> </o:p><span style="font-family: inherit;">Merely because the Agreement does not contain
certain terms does not mean that there is a gap waiting to be filled by
judges. </span></div>
<div class="MsoNormal">
<span style="font-family: inherit;"><br /></span></div>
<div class="MsoNormal">
<span style="font-family: inherit;">Regards,</span></div>
<div class="MsoNormal">
<span style="font-family: inherit;"><br /></span></div>
<div class="MsoNormal">
<span style="font-family: inherit;">Blair</span></div>
Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-87621355585818043932019-04-11T14:47:00.002-07:002019-04-11T14:47:43.346-07:00Equity, Diversity, and Inclusion and the Law Society of Ontario's Bencher Election<br />
<div class="MsoNormal">
<span style="font-size: 14.0pt;">I will not be voting for any
bencher candidates that do not fully and openly support equity, inclusion and
diversity initiatives. Here’s why.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">I graduated from Queen’s
University law school in 1983. I was the only black student, and one of
only a handful of racialized (non-white) students, in my class of 150.
One day, after I’d asked a question in a lecture, a classmate to whom I’d never
spoken looked perplexed. He asked me whether I was a foreign
student. No, I’m from Kitchener, I replied. After second year of
law school, I applied for an articling position in Toronto. During
an interview, a partner of the firm said to me – “You’re black, you must come
from a poor family.” No, I’m from a pretty average, middle class family,
I replied. (My mother, although a single parent, was a psychology
professor at the University of Guelph). I didn’t get the articling
position. Several years into practice, a client who I was meeting for the
first time looked at me, surprised, and said “You didn’t sound black on
the phone.” Frankly, since the person was client I didn’t reply. I
just smiled (in a black sort of way). A couple of years ago, I was
attending a reception with judges of the Ontario Court of Justice, as a member
of The Advocates’ Society’s board of directors. I was the only racialized
lawyer in a small group. During introductions, one of the judges turned
to me (and only me) and asked, “Are you a sole practitioner?” No, I’m a
partner in a 100 lawyer law firm I replied. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">I could go on, but you get my
point. More than 35 years later, I’m still being asked the same questions
that, to some, may seem innocent, but to me are at best annoying and at worst
offensive. Whether or not they intended to so, all of these people put me
in a position where I got my back up. Suddenly, I was on the defensive,
trying to justify why I was in the place that I was, doing what I was doing and
speaking the way that I speak. These questions and statements are
examples of “unconscious bias”. They made my “lived experience” so much
different from the experience lived by for example, white, middle class law
students from Kitchener. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">In the last two weeks of
April, Ontario lawyers and paralegals will vote to elect benchers of the Law
Society of Ontario (LSO). These are the people that, over the next few
years, will decide how to tackle the important issues that are presently facing
the legal profession in our province. In my view, equity, diversity and
inclusion in the profession is one such issue. The last convocation of
benchers decided that the issue was important enough to establish a working
group to address challenges faced by racialized licensees. In 2016, the
working group released a report that recommended a number of specific
initiatives. As one of the D&I initiatives, the LSO introduced a
Statement of Principles (SOP). Pursuant to the SOP, all licensees are
required to create and abide by an individual SOP that acknowledges their
obligation to promote equality, diversity and inclusion generally, and in their
behaviour toward colleagues, employees, clients and the public. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Not surprisingly, following
the LSO’s introduction of the SOP, there ensued a vigorous debate in the
profession, including at my firm, about whether the SOP was somehow offensive
because the LSO was purporting to dictate behaviour to intelligent, educated
professionals. Comments made to me went something like this: How
dare the LSO encroach on our independence and freedom of expression with some
Orwellian principle? Isn’t it trite to say that we all believe that that
racism and discrimination are bad? We don’t need the LSO to tell us that!
<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Give me a break. Sure.
I agree that the LSO’s approach to the SOP is ham-fisted. However,
sometimes you need to be act with a fist to bring about change. In my
experience, attitudes simply don’t change with the passage of time.
People don’t magically become more enlightened. Real change happens because the
people to whom it matters, simply refuse to accept the status quo. If
attitudes change, we’ve learned that the outward manifestation of those
attitudes into meaningful action can be painstakingly slow. It has proven
to be the case in a profession that seems incredibly resistant to change.
In terms of diversity and inclusion, the legal profession has not yet
fully embraced the concept. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Racialized and other equity
seeking lawyers still face disproportionate barriers in obtaining articling
positions, and in the licensing process. They continue to be
underrepresented in proportion to Ontario’s population in legal workplaces and
at all levels of seniority. Lawyers like me are becoming impatient.
A speaker at a recent D&I seminar hosted by my firm told us that sometimes
you need to be disruptive to accelerate the pace of change. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Inclusion is an important
concept. To feel included in the profession means a sense of pride and
belonging. It means feeling that your contributions as a member of the
profession are respected and valued. At the very least, it means not
being subjected to annoying and inane comments and questions that require you
to defend and justify your membership in the profession. If the LSO
doesn’t take up that cause on behalf of its licensees, who else is going
to do it? We need to drag the profession into the 21<sup>st</sup> century,
and sometimes being disruptive is the only way to accomplish that goal.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">On an intellectual level, I
can understand why some have a problem with the SOP. On a practical
level, I can’t fathom why some bencher candidates would invest the amount of
time and energy it would take to make stopping the SOP the cornerstone of their
platforms. Whatever the reason, I will not be voting for any of them.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Regards,<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Blair<o:p></o:p></span></div>
<br />Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com1tag:blogger.com,1999:blog-6942122614735946173.post-90387112435438604252019-04-09T11:51:00.000-07:002019-04-09T11:51:13.049-07:00SCC: Party Autonomy in Arbitration Trumps Access to Justice Concerns<br />
<div class="MsoNormal">
<span style="font-size: 14.0pt;">In a 5 to 4 decision, the
Supreme Court of Canada held the concept of “party autonomy” and holding
parties to a valid arbitration agreement trumped access to justice and policy
concerns. The Court allowed an appeal from the Court of Appeal for
Ontario in which the majority ruled that part of a class action should be
stayed and should proceed by way of arbitration even where there was a
possibility of duplicating proceedings and inconsistent results. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">In this case, the plaintiff
Avraham Wellman proposed a class action for damages against TELUS
Communications Inc. (“TELUS”) on behalf of about 2 million Ontario residents
who had entered into mobile phone service contracts with TELUS during a
specified time frame. The proposed class consisted of both consumer and
business customers. Wellman alleged that TELUS had engaged in an
undisclosed practice of rounding up calls to the next minute such that
customers were overcharged and were not provided the number of minutes to which
they were entitled. TELUS’s standard terms and conditions in its service
contracts included an arbitration clause stipulating that all claims arising
out of or in relation to the contract (apart from collection of accounts) must
be determined through mediation and then arbitration. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">The arbitration clause was
invalidated by Ontario’s Consumer Protection Act to the extent that it would
otherwise prevent class members who were consumers from pursuing their claims
in court. However, it did not apply to business customers. TELUS
sought to have the class action stayed with respect to business customers,
relying on the arbitration clause. The motion judge dismissed TELUS’s
motion for a stay and certified the action. She held that Section 7(5) of
the Arbitration Act, 1991 (“Act”) grants the courts discretion to refuse a stay
where it would not be reasonable to separate the matters dealt with in the
arbitration agreement from the other matters. The motions judge held that
this discretion could be exercised to allow business customers’ claims that
were otherwise subject to the arbitration clause to participate in the class
action where it was reasonable to do so. The Ontario Court of Appeal
dismissed TELUS’s appeal. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Justice Moldaver wrote the
opinion for the majority of the SCC (Justices Gascon, Cote, Brown and Rowe
concurred). Justice Moldaver held that Section 7(5) of the Act does not
grant the court discretion to refuse to stay claims that are dealt with in an
arbitration agreement. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">This finding is somewhat
perplexing because Section 7(5) of the Act reads as follows:<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<i><span style="font-size: 14.0pt;">The court may stay the
proceeding with respect to the matters dealt with in the arbitration agreement
and allow it to continue with respect to other matters if it finds that,<o:p></o:p></span></i></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<i><span style="font-size: 14.0pt;">(a) the agreement deals
with only some of the matters in respect of which the proceeding was commenced;
and<o:p></o:p></span></i></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<i><span style="font-size: 14.0pt;">(b) it is reasonable to
separate the matters dealt with in the agreement from the other matters.<o:p></o:p></span></i></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">However, Justice Moldaver
held that in keeping with the modern approach that sees arbitration as an
autonomous, self-contained, self-sufficient process to which the parties agree
to have their disputes resolved by an arbitrator, courts should generally take
a hands off approach to matters governed by the Act. The general rule
reaffirms the concept of party autonomy and upholds the policy underlying the
Act that says that parties to a valid arbitration agreement should abide by
their agreement. Paragraph 7(5)(a) and 7(5)(b) set out two
preconditions. The first precondition is met if the agreement deals with
only some of the matters in respect of which the proceeding was
commenced. The second precondition is met if it is reasonable to separate
the matters dealt with in the agreement from the other matters. If both
preconditions are met, instead of ordering a full stay, the Court may allow the
matters that are not dealt with in the arbitration agreement to proceed in
Court and may stay the court proceeding in respect of the matters that are
dealt with in the agreement. Justice Moldaver held that policy
considerations cannot be permitted to distort the actual words of the statute,
read “harmoniously” with the scheme of the statute, its objects and the intention
of the legislature. In this case, the legislature had already spoken to
some of the concerns by shielding consumers from the potentially harsh results
of enforcing arbitration agreements through the Consumer Protection Act.
The legislature made a careful policy choice to exempt consumers and only
consumers. That choice must be respected and must not be undermined by
reading Section (7)(5) in a way that permitted courts to treat consumers and
business customers as one and the same. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Justice Moldaver held that
while there can be no doubt as to the importance of promoting access to
justice, this objective cannot, absent express direction from the legislature,
be permitted to overwhelm the other important objectives pursued by the
Act. To do so would undermine the legislature’s objective of ensuring
parties to a valid arbitration agreement abide by their agreement, reduce the
degree of certainty and predictability associated with arbitration agreements,
and weaken the concept of party autonomy in the commercial setting. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">The dissenting opinion was
jointly written by Justices Abella and Karakatsanis (Chief Justice Wagner and
Justice Martin concurred). <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">The dissenting judges held
that Section 7(5) of the Act did give courts discretion to allow the entire
proceedings to continue in court even if some parties would be otherwise
subject to an arbitration clause. A discretionary ability to grant a partial
stay logically includes the power to refuse a partial stay. They held
that the only interpretation that gives meaningful effect to the discretionary
language of Section 7(5) is one that confers on judges the ability to allow
both arbitrable and non-arbitrable dispute to proceed in court. Otherwise
the words “may stay the proceedings with respect to the matters dealt with in
the arbitration agreement” are superfluous and add nothing. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">The dissenters reasoned that
the Ontario Court of Appeal has since 2002 granted stays of proceedings that
would otherwise be subject to arbitration and for nearly a decade has permitted
otherwise arbitrable matters to be joined with class actions in the public
interest of avoiding duplicative proceedings, increasing costs and risking
inconsistent results. They held that the overall purpose of the Act was
promote access to justice because the court system can be costly and
slow. The court’s discretion to intervene was narrow to further the goals
of expedient dispute resolution. Arbitration was intended to be a means
by which parties on a relatively equally bargaining footing chose to design an
alternative dispute mechanism. However, all of TELUS’s clients, both
business and consumer, signed the same non-negotiable standard form
agreement. TELUS’s individualized arbitration clause effectively
precludes access to justice for business clients when a low-value claim does
not justify the expense. It’s mandatory nature illustrates that the
rationales of party autonomy and freedom of contract are not existent. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">By inserting the reasonable
requirement in Section 7(5)(b) of the Act the legislature clearly contemplated
that in certain circumstances, it would be unreasonable to separate matters
dealt with in the arbitration agreement from other matters. In this case,
eliminating judicial discretion effectively eliminates access to justice.
TELUS’ interpretation would result in costly and time consuming factual
inquiries on how to divide the arbitrable and non-arbitrable claims even where
the substance of both claims is identical as in this case. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Here to impose arbitration on
willing parties violates the spirit of the Act and operates as an invisible
barrier to a remedy and presumptively immunizes wrongdoing from accountability
contrary to fundamental notions of civil justice.<o:p></o:p></span></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;"><br /></span></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">TELUS Communications Inc. v. Wellman 2019 SCC 19</span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Regards,<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Blair <o:p></o:p></span></div>
<br />Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-62251739511924032122019-01-22T12:55:00.001-08:002019-01-22T12:55:23.508-08:00Ontario Judge Awards Substantial Damages to Musician for "Despicable" Deceit By Former Girlfriend<br />
<div class="MsoNormal">
<span style="font-size: 14.0pt;">I admit that I’m late to the
party in reporting on this case, but it has such an interesting and unusual
fact set that, when I read it, I thought “better late than never”. In
a recent decision, Justice David L. Corbett of the Ontario Superior Court of
Justice (Abramovitz v. Lee 2018 ONSC 3684), granted default summary judgment
and substantial damages, including punitive and aggravated damages, against the
defendant Jennifer Lee for what the judge called “her despicable
interference in Mr. Abramovitz’s career.” Lee had impersonated the
plaintiff Eric Abramovitz and frustrated a unique opportunity that Abramovitz
had to advance his career as a professional musician. She did so,
apparently because she feared that Abramovitz would move to California and end
their relationship.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">The parties met in 2013 when
they were both students at McGill University’s Schulich School of Music.
Abramovitz was a gifted musician, and an accomplished clarinetist. He had
studied the clarinet since he was seven years old with some of Canada’s
greatest clarinet teachers. He was the winner of a number of prestigious
prizes and awards and in 2013 was named as a promising up and coming artist. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">In December of 2013
Abramovitz applied to study at the Coburn Conservatory of Music in Los Angeles,
California (“<b>Coburn</b>”). He hoped to complete the last two years of
his bachelor’s degree. Every Coburn receives a full scholarship including
tuition, room and board and a living stipend to cover meals and other
expenses. The scholarship was worth tens of thousands of dollars. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Abramovitz had applied to
study under Yehuda Gilad, an internationally renowned "clarinet pedagogue". Gilad
was recognized as one of the best clarinet teachers in the world and accepted
only two new clarinet students per year at Coburn from dozens of
applicants. Students applied from all over the world to study with
Gilad. Abramovitz had long aspired to study with Gilad and after a very
selective pre-screening process he was invited to a live audition at Coburn in
Los Angeles in February of 2014. Abramovitz and his parents flew to Los
Angeles for this audition which was conducted in front of a committee of
faculty members including Gilad. Abramovitz was told he could expect a
decision by April 1, 2014.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Meanwhile, Abramovitz and
Lee’s relationship progressed quickly. They began living together.
Abramovitz trusted Lee and let her use his laptop computer and gave her his
passwords. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Coburn got back to Abramovitz
by email on March 27, 2014. It offered Abramovitz a place to study with
Gilad on full scholarship. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Lee intercepted Coburn’s
acceptance email and responded to it, impersonating Abramovitz. She
declined Coburn's scholarship offer because Abramovitz would be “elsewhere”. Lee then
deleted the acceptance email and recomposed another email purportedly from
Gilad’s email account (which she established under her own name). The
fake Gilad email advised Abramovitz that he had not been accepted at Coburn.
Instead, the fake email from Gilad advised Abramovitz that he would not be
given a full scholarship and would have to pay substantial amounts in expenses
to attend another program at the University of Southern California and pay his
own living expenses. Lee knew that Abramovitz would not be able to afford
this alternative, fake offer.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Abramovitz was completely
fooled by this deception and stayed in Montreal and completed his music degree
at McGill. As a result, Gilad lost the two year full scholarship
opportunity to study with Gilad.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Abramovitz brought an action
against Lee in Ontario claiming damages on the basis of deceit, intrusion upon
seclusion, invasion of privacy and intentional or negligent infliction of
mental suffering. In Justice Corbett’s view, this case was primarily
about deceit – that is Lee’s impersonation of Abramovitz to send a false
rejection letter to Coburn and her impersonation of Gilad to create an email
account in his name and send a false rejection letter to Abramovitz. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Lee was personally served
with the statement of claim in Montreal. She did not file a notice of
intent to defend or statement of defence and was noted in default.
Abramovitz moved for summary judgment. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Justice Corbett held that he
was satisfied from the facts alleged in the statement of claim, which were
deemed to be true by virtue of Lee’s default, and from the supplementary
evidence filed by Abramovitz that Ontario had jurisdiction <i>simpliciter </i>because
Lee’s primary residence was in Ontario. Residence is the first
presumptive connecting factor establishing jurisdiction. Before attending
McGill, Lee had lived with her parents in Ontario. Her parents continued
to live in Ontario and Lee maintained a residence at her parents’ home while
she was away at school in Montreal. Accordingly, she was domiciled both
in Ontario and Quebec. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Justice Corbett held that the
law to be applied to the torts alleged in the statement of claim was the law of
the place where the activity occurred i.e. the civil law of Quebec.
Quebec law is a “foreign law” in Ontario and the substance of Quebec law is a
question of fact that has to be proved by evidence. However, Abramovitz
introduced no evidence of what the applicable law in Quebec was. As a
result, Justice Corbett relied on the presumption that the applicable law was,
in substance, the same as Ontario common law. The judge was satisfied
that justice could be best done by applying Ontario law under the presumption
that applies when foreign law is not proved. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Abramovitz’s damages were
extensive. They included loss of educational opportunity and loss of
income caused by redirection of his career. Justice Corbett held that his
claim for loss of reputation by being rejected by Coburn was short term and
would be addressed, at least in part, by the judgment. Under loss of
educational opportunity, Abramovitz argued that he had lost a “big break” to
study under Gilad that could have launched his career. Instead he stayed
at McGill and completed his Bachelor of Music. After that he attended a
two year graduate certificate in performance at USC and in those circumstances
eventually had a chance to study with Gilad in a certificate program not a
degree program two years later than he had hoped and not on full scholarship.
The judge was satisfied that Abramovitz had lost the value of his scholarship
with Coburn and that his career had been delayed for about two years.
(Gilad’s affidavit was filed in support of the motion for summary
judgment). The judge fixed the lost income at two years of a starting
salary with a reputable symphony orchestra. He then awarded damages for
loss of scholarship and Abramovitz’s additional educational costs. All
such losses amounted to US $334,000.00. However, Abramovitz had claimed
only $300,000.00 CAD for general damages in his statement of claim.
Considering the relevant currency exchange rate, the amount calculated by the
judge exceeded the amount claimed. However, in part because of the
default nature of the proceedings, Justice Corbett awarded Abramovitz
$300,000.00 CAD in general damages – the sum that he had claimed and the
sum for which Lee had been given notice. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Justice Corbett held that
Lee’s conduct had been despicable, was sufficiently blameworthy to merit
awards of punitive and aggravated damages. He assessed punitive damages
at $25,000.00 to address the betrayal of trust by Lee. He awarded
aggravated damages of 25,000.00 to represent the “incompensable” personal loss
suffered by Abramovitz by having a closely held personal dream snatched from
him by a person he trusted. Frankly, it is difficult to understand the
apparently artificial distinction the judge made between the two heads of
damage. Nevertheless, the fact scenario is remarkable, and if true,
worthy of sanction.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Regards,<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt;">Blair<o:p></o:p></span></div>
<br />Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-2108443161387614882018-12-12T15:48:00.001-08:002018-12-12T16:08:50.563-08:00Ontario Court of Appeal Declines to Clarify When Judges Can Impose Fines Below Statutory Minimum <br />
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">In a decision released on December 7, 2018, the Ontario
Court of Appeal missed an opportunity to provide lower courts with
guidance<span style="mso-spacerun: yes;"> </span>regarding the circumstances in
which they could depart from imposing statutory minimum fines required by
provincial regulatory statutes.<span style="mso-spacerun: yes;"> </span>Section
59(2) of the Provincial Offences Act (“POA”)<span style="mso-spacerun: yes;">
</span>gives the court discretion to impose something less than the minimum
where “exceptional circumstances” make it “unduly oppressive” or “not in the
interests of justice” to do so.<span style="mso-spacerun: yes;">
</span>However, the Court of Appeal ruled that the provincial offence regime is
better served by leaving the requirements for departure from minimum fines and
sentences intentionally vague.<span style="mso-spacerun: yes;"> </span>In fact,
the Court may have even muddied the waters by appearing to say that
“exceptional” means “unusual” and then failing to define the term unusual.<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">The case, Ontario (Environment, Conservation and Parks) v.
Henry of Pelham Inc. 2018 ONCA 999, drew attention from a number of third
parties who sought to intervene before the court of appeal to weigh in on the
meaning of exceptional circumstances.<span style="mso-spacerun: yes;">
</span>However, only the Criminal Lawyers Association was granted such leave.<span style="mso-spacerun: yes;"> </span>Many expected the court to determine the
standard to be applied in the exercise of judicial discretion to depart from
mandatory minimum sentences found in over 600 Ontario provincial offences to
which section 59(2) of the POA applied.<span style="mso-spacerun: yes;">
</span>In addition, the case would have an influence on similar cases in other
provinces where there was no jurisprudence at the appeal court level.<span style="mso-spacerun: yes;"> </span>The judge who granted leave to appeal to the
Court of Appeal, Justice Ian Nordheimer, in his endorsement noted both the
importance of having guidance from the Court of Appeal on an unclear issue and
stated that it was “essential for the due administration of justice that leave
be granted”.<span style="mso-spacerun: yes;"> </span>Justice Nordheimer held,
“It is evident that there is no clear guidance as to when the requirements of
section 59(2) are met.<span style="mso-spacerun: yes;"> </span>Indeed, from the
existing cases, it would appear that a very broad approach has been taken that
may not reflect an apparent will of the Legislature that a departure from a
minimum fine should only occur in exceptional circumstances.<span style="mso-spacerun: yes;"> </span>Consequently, some guidance from this court
respecting the minimum requirements that need to be established before section
59(2) can be invoked would be helpful.”<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">Section 59(2) of the POA provides that, “although the
provision that creates the penalty for an offence prescribes a minimum fine,
where in the opinion of the court exceptional circumstances exist so that to
impose the minimum fine would be unduly oppressive or otherwise not in the
interests of justice, the court may impose a fine that is less than the minimum
or suspend the sentence”.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">In November 2017, a resident of St. Catharines, Ontario
called the Ministry of Environment and<span style="mso-spacerun: yes;">
</span>Climate Change Pollution Hotline, claiming that one of the two ponds on
his property had turned black.<span style="mso-spacerun: yes;"> </span>Ministry
officers investigated and observed a black pond with a faint organic odor.<span style="mso-spacerun: yes;"> </span>The respondent, Henry of Pelham, a Niagara
area winery, advised the Ministry that the corporation had spread a mixture of
cattle manure and grape pomace on its lands for approximately two weeks and it
had not been incorporated into the soil because of wet weather conditions.<span style="mso-spacerun: yes;"> </span>The respondent speculated that the
manure/pomace mixture may have entered one of the creeks that emptied into the
pond through a tile drain.<span style="mso-spacerun: yes;"> </span>As soon as
Pelham became aware of this situation, it retained an environmental firm to
assess it, prepare an action plan, replace a pump for the ponds aeration system
that had not been operating for about one year, and arranged for black organic
matter to be cleaned from the entrance to the pond.<span style="mso-spacerun: yes;"> </span>These actions cost Pelham $12,000.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">At trial, the justice of the peace found that exceptional
circumstances existed, not because of the monetary implications of the case,
but because the nature of the offence and Pelham’s immediate actions in light
of the offence and therefore the statutory minimum of $25,000 should not
automatically be accepted as appropriate. <o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">On appeal to a Superior Court judge, the appeal judge agreed
that there were exceptional circumstances and concluded that a fine is “not in
the interests of justice” when it is unfair.<span style="mso-spacerun: yes;">
</span>He concluded that imposing a $25,000 fine in the circumstances would be
seen as patently unfair and that the offence was a very modest incident.<span style="mso-spacerun: yes;"> </span>He then asserted that it was not obvious that
the Crown could have proved its charge without Pelham’s guilty plea.<span style="mso-spacerun: yes;"> </span>However, he concluded that the fine should be
raised from $600 to $5,000 instead of the minimum $25,000 prescribed by the
Act.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">In short, both JP and the Superior Court judge had imposed
fairly modest fines on Pelham for a discharge into a pond that had the effect
of creating a “faint organic odor” for an unknown period of time.<span style="mso-spacerun: yes;"> </span>Both courts held that the corporation’s acts
were, essentially minimal, had no lasting effect, and took into consideration
that Pelham had pleaded guilty to the charge of “discharging or causing or
permitting the discharge of material into a water course” and had taken
remediation measures at an expense of some $12,000.<span style="mso-spacerun: yes;"> </span>They concluded that these were exceptional
circumstances that justified departing from the minimum fine of $25,000 imposed
by the Ontario Water Resources Act (“Act”).<span style="mso-spacerun: yes;">
</span><o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">The Crown appealed that decision to the Court of
Appeal.<span style="mso-spacerun: yes;"> </span>Leave to appeal was granted by
Justice Nordheimer.<span style="mso-spacerun: yes;"> </span>At issue was whether
the court should provide some guidance as to the operation of section 59(2) and
how it affects the numerous statutes, other than the Act, that provide for
provincial offences that are subject to a statutory minimum fine or
sentence.<span style="mso-spacerun: yes;"> </span>The Court of Appeal held that
regulatory offences arise in a situation different from the criminal law.<span style="mso-spacerun: yes;"> </span>They were strict liability offences where the
Crown had to prove the commission of the prohibited act beyond a reasonable
doubt and that liability followed unless the defendant could establish a
defence of due diligence on the balance of probabilities. In addition, the main
sentencing objective for regulatory offences was deterrence as opposed to
punishment.<span style="mso-spacerun: yes;"> </span>Under the Act, Pelham’s<span style="mso-spacerun: yes;"> </span>offence was one of the more serious in which
the higher range of penalties applied and that the corporation’s guilty plea
put the $25,000 minimum fine in play.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">The Court of Appeal disagreed with both lower court
decisions, but Justice Grant Huscroft, writing for the court, refused to
identify circumstances where section 59(2) of the POA would allow the court to
impose a lesser fine.<span style="mso-spacerun: yes;"> </span>Justice Huscroft
looked at the nature of minimum fines and held that they apply without regard
to the circumstances of individual offenders or circumstances surrounding the
particular offence.<span style="mso-spacerun: yes;"> </span>It was an approach
chosen to achieve deterrence by the legislature and the court’s responsibility
to apply that approach.<span style="mso-spacerun: yes;"> </span>In this case,
the prosecutor chose to prosecute under part III of the Act where the minimum
fine had to be imposed on a conviction unless relief under section 59(2) of the
POA was warranted.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">Justice Huscroft went on to find that the court’s discretion
in not applying a minimum fine was not unfettered but the difficulty was that
the criteria in 59(2) of the POA was vaguely worded, i.e. the meaning of
“exceptional”, “unduly oppressive” and “not in the interests of justice” were
evaluative and comparative concepts that have no settled court meaning and
leave room for interpretation in application.<span style="mso-spacerun: yes;">
</span>Justice Huscroft held that such vague terms must be interpreted in
context as the modern approach to statutory interpretation makes clear.<span style="mso-spacerun: yes;"> </span>Trial judges must not recognize exceptional
circumstances too readily less they become the norm.<span style="mso-spacerun: yes;"> </span>Specifically, unduly oppressive includes
financial hardship.<span style="mso-spacerun: yes;"> </span>Interests of justice
“allows consideration for broader residual considerations” and interests of justice
does not mean fairness.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">He held that the appeal judge had erred in concluding that
the circumstances of this case were exceptional and that it would not be in the
interests of justice to impose the minimum fine under the Act.<span style="mso-spacerun: yes;"> </span>The strength of the Crown’s case given the
plea of guilt was irrelevant and the minimum fine ought to have been imposed. <o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">Justice Huscroft summarized his reasoning as follows:<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">1.<span style="mso-tab-count: 1;"> </span>Section 59(2)
applies exceptionally.<span style="mso-spacerun: yes;"> </span>It will be an
“unusual case” in which the imposition of a minimum fine would be considered
“unduly oppressive” or “otherwise not in the interest of justice”. Justice
Huscroft did not elaborate what he meant by “unusual”;<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">2.<span style="mso-tab-count: 1;"> </span>Whether a
minimum fine is unduly oppressive usually will depend on consideration of
personal hardship.<span style="mso-spacerun: yes;"> </span>The bar for relief is
set very high where difficulty in paying a minimum fine is inadequate to
justify discretionary relief;<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">3.<span style="mso-tab-count: 1;"> </span>Whether a
minimum fine is otherwise “not in the interests of justice” involves
consideration of not only the interests of an individual offender but also the
interests of the community protected by the relevant public welfare
legislation; and<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">4.<span style="mso-tab-count: 1;"> </span>The discretion
under section 59(2) cannot be exercised arbitrarily.<span style="mso-spacerun: yes;"> </span>Trial judges must explain their reasons for invoking
section 59(2) and in particular must demonstrate both that circumstances are
exceptional and that it would be unduly oppressive or otherwise not in the
interests of justice to apply the minimum fine.<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">He held that in this case, the appeal judge erred in
concluding that the circumstances were exceptional and not in the interests of
justice because the appeal judge had determined that the interests of justice
means no more than fairness.<span style="mso-spacerun: yes;"> </span>Secondly,
he concluded that the appeal judge had erred in engaging in a what he called
“counterfactual” exercise by considering several factors that, in his view,
would have rendered prosecution difficult had it occurred.<span style="mso-spacerun: yes;"> </span>The judge had concluded that the facts in
this case were so minimal that they created exceptional circumstances for the
purpose of section 59(2).<span style="mso-spacerun: yes;"> </span>Justice
Huscroft held that the counterfactual analysis involved speculation on matters
that the appeal judge was not entitled to consider.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">In the result, Justice Huscroft and his fellow appeal court
Justices<span style="mso-spacerun: yes;"> </span>-Watt and Fairburn - allowed
the Crown’s appeal and imposed the minimum fine of $25,000 on Pelham.<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16.0pt;">Regards,</span></div>
<div class="MsoNormal" style="margin-bottom: 12.0pt; text-align: justify;">
<span style="font-family: "times new roman" , serif; font-size: 16pt;">Blair</span></div>
<br />Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-17828085725528553632018-11-30T11:08:00.000-08:002018-11-30T11:11:49.992-08:00Ontario Court Gives OK For Lawyer to Sue Law Society<br />
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">The
Ontario Court of Appeal is permitting lawyer Paul Robson’s action against the
Law Society of Upper Canada (now the Law Society of Ontario) (“<b>LSO</b>”) and
three of its employees for malicious prosecution and misfeasance in public
office to proceed. The appeal court’s decision overturned the decision of
Justice Patrick Monahan of the Superior Court of Justice on a motion to strike
by the LSO.<span style="mso-spacerun: yes;"> </span>Mr. Robson argued before the
court that he is a thorn in the side of the LSO and someone at the LSO wishes
to silence him.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">At
the motion brought by the LSO, Justice Monahan had struck Mr. Robson’s fresh as
amended statement of claim, without leave to amend, and dismissed his action
against the LSO and four of its employees. This was the second time that
a Superior Court judge had struck Mr. Robson’s pleading without leave to
amend. On a prior motion, Justice Firestone had struck the
plaintiff’s claim for negligence and his claims for malicious prosecution and
misfeasance in public office on the basis that Mr. Robson had failed to plead
the full particulars of his claims as required by the <i>Rules of Civil
Procedure</i> (“<b>Rules</b>”). As a result of that motion, Mr. Robson
amended his claims for malicious prosecution and misfeasance in public office
and responded to the law society’s demand for particulars. The defendants
then brought a second motion to strike which was heard by Justice
Monahan. Justice Monahan held that Mr. Robson’s pleading did not respond
to the directions set out in Justice Firestone’s prior order and that he had
failed to provide sufficient particulars of the LSO’s improper purpose or
ulterior motive necessary to ground his claims. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">On
appeal, a three judge panel of the Court of Appeal agreed with Mr. Robson that
Justice Monahan had erred in striking the bulk of his claim and allowed the
appeal with respect to the LSO and three of the four individual defendants.
<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">The
background to this case began in 2002 when Justice Lax presided over a trial on
the issue of whether Mr. Robson had acquired shares in certain companies while
he was an undischarged bankrupt. During the course of that trial, Justice
Lax made a number of factual findings against Mr. Robson including a finding that
he had attempted to conceal assets and the truth relating to such assets from
the trustee in bankruptcy. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">As
a result of the trial judge’s findings, the LSO began to investigate Mr.
Robson’s conduct in 2002 in connection with his bankruptcy proceedings.
Separately, the bankruptcy trustee brought a motion to set aside Mr. Robson’s
discharge from bankruptcy on the basis that he had obtained his discharge by
fraud. The trustee relied primarily on Justice Lax’s reasons.
Justice Campbell dismissed the trustee’s motion which was appealed to the Court
of Appeal. Justice Doherty, J.A., for the Court of Appeal, found
that while Justice Lax had made a finding of fraud, that finding was not
binding against Mr. Robson in subsequent proceedings because it was not
“necessary” to the determination of the issue before Justice Lax., i.e. namely
whether Mr. Robson had acquired the shares while an undischarged
bankrupt. Further, Justice Doherty held that since Mr. Robson did not
have notice that the trustee was seeking a determination that he acted
fraudulently and had not fully defended the action before Justice Lax, it would
be unfair to preclude him from re-litigating the issue in subsequent
proceedings. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">Seven
years later, in 2013, a LSO hearing panel held that Mr. Robson had engaged in
conduct unbecoming a licensee. The LSO relied exclusively on the findings
made by Justice Lax as to Mr. Robson’s fraudulent and dishonest conduct.<span style="mso-spacerun: yes;"> </span>Mr. Robson was disbarred. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">In
2015 a LSO appeal panel overturned the hearing panel’s finding of professional
misconduct. It held that the hearing panel had erred in law in precluding
Mr. Robson from leading evidence and from re-litigating the factual findings
made by Justice Lax because Justice Doherty’s decision in Mr. Robson’s
bankruptcy proceedings was controlling. As a result the appeal panel set
aside the disbarment. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">Mr.
Robson then brought the action for negligence, malicious prosecution and
misfeasance in public office against the LSO and four of its employees.
The Court of Appeal set out the applicable legal principles for the torts of
malicious prosecution and misfeasance. It then referred to rule 25.06(8)
of the Rules which applies where these torts are pleaded. The rule
provides: “<i>Where fraud, misrepresentation, breach of trust, malice or
intent is alleged, the pleading shall contain full particulars, but knowledge
may be alleged as a fact without pleading the circumstances for which it is to
be inferred.</i>” <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">Essentially,
Mr. Robson’s fresh as amended pleading alleged that the respondents knew that
Justice Lax’s judgment was not correct and that many of the facts that she
relied upon were inaccurate but that they deliberately acted contrary to
Justice Doherty’s decision and deliberately precluded unfavourable witnesses in
order to harass and harm him. In his oral submissions to the Court of
Appeal, but not in his pleadings, Mr. Robson says that he is a thorn in the
side of the Law Society and someone at the Law Society wishes to silence
him. The Court of Appeal concluded that the elements of both torts had
been sufficiently pleaded. The facts pleaded, if true, supported the
inference of an improper LSO purpose. If true, they also pointed to a
deliberate and dishonest wrongful abuse of the powers given to a public
officer. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">The
Court of Appeal allowed Mr. Robson’s appeal except as it related to one LSO
employee, <span style="mso-spacerun: yes;"> </span>because Mr. Robson had provided
no particulars as to her role in the LSO’s investigation and prosecution. <o:p></o:p></span><br />
<span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;"><br /></span>
<span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;">See Robson v. The Law Society of Upper Canada, 2018 ONCA 944</span><br />
<span style="font-size: 14.0pt; mso-bidi-font-size: 11.0pt;"><br /></span>
<span style="font-size: 18.6667px;">Regards,</span><br />
<span style="font-size: 18.6667px;"><br /></span>
<span style="font-size: 18.6667px;">Blair</span></div>
<div class="MsoNormal">
<br /></div>
<br />Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-68199185399495168512018-10-12T13:42:00.000-07:002018-10-12T13:42:01.297-07:00Ontario Judge Considers Systemic Anti-Black Racism As A Sentencing Principle<div class="MsoNormal">
Earlier this year, a Toronto jury found
Kevin Morris (“<b>Morris</b>”), a 26 year old black man, guilty of several
gun-related charges including possession of an unauthorized firearm, possession
of a prohibited firearm with ammunition and carrying a concealed weapon.
The jury acquitted Morris of assaulting a police officer with intent to resist
arrest. Morris was sentenced to 15 months in jail. Predictably, there was an outcry in some
media and corners of the criminal justice community that the sentence was too
lenient and “soft on crime”. On
September 11, 2018, several months after Morris’s conviction, Justice Shaun
Nakatsuru, the trial judge, released his written reasons for the sentence, including why he spared Morris from serving time in a federal penitentiary. The
reasons run twenty-one pages in length. At the end of the reasons,
Justice Nakatsuru attached as an appendix a report entitled “Expert Report on
Crime, Criminal Justice and the Experience of Black Canadians in Toronto,”
written by three social scientists. The appended report, also runs 21
pages in length, excluding another 10 pages of footnotes. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Crown objected to the admission of
this report. The Crown also objected to
the admission of a second report entitled “Social History of Kevin Morris”,
written by one of the social scientists.
The second report focussed on how systemic anti-black racism had
affected Morris’s particular circumstances and led him to be where he is
now. However, both reports were either
admitted or considered by Justice Nakatsuru on the basis that sentencing judges
should take a broader and more liberal view of materials that should be
admissible at a sentencing hearing. The judge reasoned that the goal of a
sentencing hearing is to arrive at a fit and proportionate sentence.
Justice Nakatsuru concluded that the more he knew about Morris and his crimes,
the better he could arrive at such a sentence. This was particularly
important when it came to tackling the problem of the disproportionate
imprisonment of black offenders.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Nakatsuru described the facts of
the case as being straight-forward. In December of 2014, four years
earlier when Morris was 22 years old, the police received a call about a home
invasion in Scarborough. As they were investigating the scene, the police
came upon four black males walking in a parking lot. The police stopped
the young men. Morris ran away. As
he was running, Morris discarded his jacket, which police eventually recovered
and found that the jacket contained a loaded revolver. Prior to trial,
Morris brought a <i>Charter</i> application to stay the charges. Justice
Nakatsuru did not stay the charges but did find some <i>Charter</i> violations that
were relevant to the sentencing. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Crown and the defence were far apart
on the appropriate sentence. The Crown asked for 4 to 4.5 years in
jail. The defence argued that the sentence should be 1 year before credit
was given for the <i>Charter</i> breaches. At the sentencing hearing,
the defence presented the two reports. The first report was written by
Professor Akwasi Owusu-Bempah, Camisha Sibblis and Professor Carl James.
They are all very qualified academics and experts in their field. Ms.
Sibblis was the primary author of the second report. As to the first
report which dealt with anti-black racism in Canadian society, Justice
Nakatsuru agreed with the Crown that an expert report was not required at the
sentencing hearing because the law has “<i>now long taken notice of these sorts
of things</i>”. Justice Nakatsuru nevertheless found the report to be so
useful that he attached it as an appendix to his reasons, noting “<i>It is
invaluable to have such a report available for every judge on every sentencing
of a black<b> </b>offender.</i>”. <b> </b>Justice Nakatsuru indicated that
he agreed with the authors’ conclusions which he set out in his reasons in
full. In part, the report concluded “<i>that the social circumstances of
Black Canadians in general, and of Black male Torontonians in particular,
should be viewed as criminogenic…</i>” and while “<i>no one individual should
be completely absolved of their own offending behaviour when it comes to
offending behaviour, the social realities that have produced or contributed to
such behaviour can be acknowledged, and serve to guide judicial decision making</i>”.
<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The second report was intended to provide
the judge with more information about Morris, the accused. The author
provided her analysis as to the impact of systemic racism on Morris’s
experience in and out of the justice system. Justice Nakatsuru admitted
the second report, but with some qualifications. The judge indicated that he used his own
independent evaluation of how systemic factors applied in Morris’s case and was
free to disagree with what the author of the report had said. While
Justice Nakatsuru found that the reports were helpful to him, he also held that
we live in a real world of limited resources, and recognized that not every
accused is going to be able to present such sentencing reports to the courts
for their assistance. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Nakatsuru held that in arriving
at a fit sentence for Morris he was aware that the sentencing principles of
general deterrence and denunciation was most important for offences such
as these. In o<i>biter</i> he held that, “<i>We have a serious problem
with gun crime. Reducing gun crime and its associated violence, is a long
game. Effective solutions take time, money and commitment. There is
no one single solution in the short term</i>.” He them commented on some
of the issues that were responsible for gun crime including addressing social
and economic inequalities and disadvantages, supporting smart and fair policing
with adequate resources, dismantling gangs and getting at the reason why young
people join them, and indicated that the problems are complex and the
answers were not easy. The criminal justice system plays an
important role not only to deter gun crime with fit sentences but to make sure
the criminal justice system demands the respect of the people who look to is for
solution. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Nakatsuru ruled that when looking
at the case in a principled manner, “broader systemic factors such as racism
and the effects of colonialis must surely have some impact upon the
application of general deterrence and denunciation". He recognized that
criminal judges have limited tools available to them to meet the objectives of
sentencing. But the law does not say that systemic and background factors
should play no role in the assessment of the seriousness of the crime and the
weight to be given to general deterrence and denunciation. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In arriving at the sentence for Morris,
Justice Nakatsuru considered a number mitigating factors
including the factors set out in the second report. In all of the
circumstances he found that a sentence of 15 months was the fit and appropriate
sentence in order to deter and denounce. After finding some <i>Charter</i>
violations, Justice Nakatsuru reduced the jail sentence to 12 months accounting
for the “dead” time that Morris had already spent in jail. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Nakatsuru recognized that some
would see the sentence as being too lenient. He responded, “<b><i>In my
opinion, we have to get past this idea of waiting for the perfect person to be
lenient. Waiting for the most benevolent soul by the standards of the
privileged and the few before we decide to extend consideration for
leniency. For we may be waiting a long time</i>.” </b><o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
see R. v. Morris, 2018 ONSC 5186</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Regards,</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Blair</div>
<br />
<div class="MsoNormal">
<br /></div>
Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-44013464466434587962018-07-25T13:12:00.000-07:002018-07-25T13:12:27.794-07:00Ontario Court Allows Increased Political Activity By Charities<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In an important decision released on July
16, 2018, Justice E.M. Morgan of the Ontario Superior Court of Justice held
that the provision of the <i>Income Tax Act</i> (“<b>ITA</b>”) which restricted
a charity’s “political activities” to a maximum of ten per cent of its
resources were unconstitutional because it offended the charity’s right of
freedom of expression contained in the Canadian Charter of Rights and Freedoms
(“<b>Charter</b>”). As a result, Justice Morgan ordered the Canada
Revenue Agency (“<b>CRA</b>”) to immediately cease interpreting and enforcing
the impugned section of the ITA in that manner. In doing so, Justice
Morgan effectively ended CRA’s “political activities” audits of Canadian
charities and opened the door for charities to engage in much more non-partisan
political activity.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In this case, (<i>Canada Without Poverty
v. AG Canada</i>, 2018 ONSC4147), CRA had threatened to revoke the charitable
status of Canada Without Poverty (“CWP”) on the basis that the charity was
offside the maximum 10 per cent rule concerning its political activities. CWP argued that the ITA’s distinction between
“<i>charitable activities</i>” and “<i>political activities</i>” was artificial
and that almost all of its work could be labelled political activity in the
sense that public advocacy for policy change was fundamental to its charitable
purpose of poverty relief. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b>ITA Prohibits “Political Activities” By Charities<o:p></o:p></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Section 149.1(6.2) of the ITA defines the
extent to which a registered charity can devote its resources to political
activities and provides that where a charity devotes substantially all of its
resources to charitable activities, it can only devote ten per cent of such
resources to political activities, provided that the political activities are “<i>ancillary
and incidental</i>” to its charitable activities and the political activities
do not include the direct or indirect support or opposition to any political
party or candidate for public office. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The CRA has the power to revoke a charity
status if it determined that the charity carried on more than the allowed ten
per cent of its activities as political activities as opposed to charitable
activities. As a matter of interpretation, the CRA divided political
activities into two general types – submissions directly to government and
public advocacy. In doing so, the CRA acknowledged that there could be
policy and advocacy components to charitable activities. In this respect,
political activities and charitable activities are not always treated as
distinct. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b>Section Violates Guarantee of Freedom of Expression <o:p></o:p></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Canada Without Poverty challenged the
overall distinction between charitable activities and political activities that
were embodied in the ITA and challenged the CRA rule of interpretation
enforcement limiting political activity to ten per cent of its resources. It argued that there was no valid distinction
between political expression and (with the exception of partisan political
involvement) and charitable activities and so the distinction in the ITA was
redundant violated the guarantee of freedom of expression under section 2(b) of
the Charter . CWP argued that the infringements could not be justified
under section 1 of the Charter. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Morgan agreed. He held that
there is no widely agreed upon definition of what is political. Certainly
there was no definition of political activities in the ITA. Virtually all
of Canada Without Poverty’s activities are communicative or expressive and in
that sense “<i>political</i>”. Justice Morgan wondered whether one could
“<i>coherently distinguish between political activities and charitable
activities or for that matter any other kind of activities</i>”. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
CWP argued that public advocacy for
policy change was fundamental to its charitable purpose of poverty
relief. Without this component its charitable activities could not
accomplish their purpose. CWP’s approach
to relieving poverty is one that strives for the full civic engagement of
people living in poverty. Its purpose is to relieve poverty by sharing
ideas with its constituency. Relying on various international studies on
poverty relief, CWP placed its resources and efforts behind civic engagement
and public dialogue with the goal of bringing about legislative policy change
for the effective relief of poverty. Justice Morgan held that while this
approach may be in keeping with contemporary activism in the field, it was out of
step with ITA and the CRA policy statement on interpretation and enforcement of
the ITA. Canada Without Poverty argued that the CRA’s ten per cent rule
should no longer be applied because there was no cogent distinction between
non-partisan political activities and charitable activities and therefore no
reason for political activities to be ancillary or incidental to charitable
activities. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Morgan found that even the
Minister of National Revenue in a consultation report agreed with many of the
positions taken by CWP. The consultation panel had recognized that a key
principle with respect to charitable activities is that public advocacy and
charitable works go hand in hand in a modern democracy and are seen as an
essential part of the democratic process. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Canada Without Poverty challenged the
sections of the ITA as infringing its right to freedom of expression.
Justice Morgan held that it would be difficult to express the importance of
freedom of expression as a Charter right any higher than the Supreme Court of
Canada has put it, “<i>fundamental – because in a free, pluralistic and
democratic society we prize a diversity of ideas and opinions for their
inherent value both to the community and to the individual</i>”.
Justice Morgan held that there was no doubt that the activity in which the
charity wished to engage, i.e. public advocacy of policy change, is within the
guarantee of freedom of expression. CWP argued that non-partisan
political advocacy is an accepted charitable activity under the ITA. The
arbitrary ceiling of ten per cent of the organization’s resources restricted
the charity’s expressive conduct. It was the ten per cent restriction
that was the target of CWP’s complaint not the status itself. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Morgan reviewed the evidence.
According to affidavit evidence adduced by CWP, its activities that could be
seen as political encompassed far more than ten per cent of its efforts and
resources. It argued that the application of the impugned sections of the
ITA imposed restrictions on all expressive activity whose goal was entirely
wrapped up with communicating to the public that a law or policy decision at
any level of government should be changed or retained for the purpose of
relieving poverty. This ten per cent restriction was fundamentally at
odds with the charity achieving its charitable purpose because virtually
everything the charity did was “political”.
The fact that a parliament allowed political activity, but the
restriction was arbitrarily limited to ten per cent, infringed the charity’s
freedom of expression rights. CWP adduced evidence that it would not be
able to function absent its charitable status.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Morgan held that as a registered
charity, Canada Without Poverty had a right to effective freedom of expression,
i.e. the ability to engage in unimpaired public policy advocacy towards its
charitable purpose. The burden imposed by the sections of the ITA and by
the policy adopted by CRA in enforcing that section runs counter to that
right. Accordingly, CWP’s right to freedom of expression under section
2(b) of the Charter was thereby infringed. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b>Prohibition Can Not Be Justified Under Section 1 of Charter<o:p></o:p></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Morgan then looked at whether the
impugned sections of the ITA could be saved because they were justifiable under
section 1 of the Charter. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Having found that the section of the ITA
violated section 2(b) of the Charter so that it burdens CWP’s pursuit of public
policy advocacy, it was necessary to turn to section 1 of the Charter.
At that point the burden shifted to the Attorney General to establish
that the infringement was reasonable and justified in a free and democratic
society. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The analysis follows the Oakes test
(Supreme Court of Canada case – <i>R. v. Oakes</i>). In full, the test
considers whether the legislative objective is pressing and substantial,
whether the means chosen by the legislature is rationally connected to the
objective, whether the legislation minimally impairs the right of free
expression, and whether it is proportional considering the deleterious and
salutary effects on the right. All these tests must be addressed in
sequence. The failure of government to pass any one of the hurdles
results in the conclusion that the infringement of the Charter is
diversified. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Morgan held that the first
question to arise under <i>Oakes</i> is whether “<i>the state’s action under
challenge has good ends</i>”. In considering the answer to that
question, Justice Morgan looked at the right that was being infringed. He
quoted former Chief Justice McLachlin in saying that, “<i>It is difficult to
image a guaranteed right more important to a democratic society than freedom of
expression…it seems that the rights enshrined in section 2(b) should therefore
only be restricted in the clearest of circumstances</i>.” <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Morgan rejected the Attorney
General’s submission that the ITA section was a permissive one, i.e. it
permitted a charitable organization to devote substantially all, rather than
all of its resources to charitable activities. He held that it was
obvious that rather than being permissive the section was prohibitive in that
while it permitted ten per cent of an organization’s resources to be devoted to
public policy advocacy, it prohibited the remaining 90 per cent of the
resources from being devoted to public policy advocacy. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Seen that way, the objective of the
section of the ITA was to limit political expression, i.e. keep it to a
small percentage of the organization’s time, effort and resources. He
held that the government had offered no rationale for the ten per cent ceiling or
not answered the question as to why parliament had not opened registered
charity status to organizations pursuing political purposes but had limited
political speech in furtherance of accepted charitable purposes. He held
that there was an artificial distinction made in the sections between
charitable activity and non-partisan political activity and that having not
established a pressing and substantial objective, the government’s case had not
passed the first hurdle of <i>Oakes</i>. Accordingly, there was no
justification for the infringement of the charity’s right to freedom of
expression under section 2(b) of the Charter. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Morgan ordered and declared that:<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<ol start="1" style="margin-top: 0in;" type="1">
<li class="MsoNormal">CRA
cease interpreting and enforcing the section of the ITA that limited ten
per cent of a charity’s resources to political activities;<o:p></o:p></li>
</ol>
<div class="MsoNormal">
<br /></div>
<ol start="2" style="margin-top: 0in;" type="1">
<li class="MsoNormal">the
phrase “charitable activities” used in the ITA be read to include
political activities without quantum limitation in furtherance of the
organization’s charitable purposes; <o:p></o:p></li>
</ol>
<div class="MsoNormal" style="margin-left: .5in;">
<br /></div>
<ol start="3" style="margin-top: 0in;" type="1">
<li class="MsoNormal">there
be a declaration that the impugned sections of the ITA are of no further
force and effect; and<o:p></o:p></li>
</ol>
<div class="MsoNormal" style="margin-left: .5in;">
<br /></div>
<ol start="4" style="margin-top: 0in;" type="1">
<li class="MsoNormal">the
exclusion from charitable activities of partisan political activities
remained in force. <o:p></o:p></li>
</ol>
<div class="MsoListParagraph">
<br /></div>
<div class="MsoNormal">
Regards,<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Blair</div>
<div class="MsoNormal">
<br /></div>
<br />
<div class="MsoNormal">
Blair<o:p></o:p></div>
Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-77139921703662696582018-07-12T14:09:00.000-07:002018-07-12T14:09:22.335-07:00Tribunal : Law Society of Ontario Failed in its Duty to Accommodate Lawyer<div class="MsoNormal">
In a recent decision of the Law Society Tribunal (“<b>Tribunal</b>”),-
<i>Law Society of Ontario v. Burtt, </i>2018 ONLSTH 63 - panelist Larry
Banack dismissed an application by the Law Society of Ontario (“<b>LSO</b>”)
seeking a finding that one of its lawyer licensees had committed
professional misconduct. Mr. Banack found that the lawyer’s alleged
misconduct, i.e. his failure to cooperate with a Law Society investigation was
the direct result of a disability and that the Law Society had not discharged
its legal obligation to accommodate the lawyer’s disability to the point of
undue hardship.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Interestingly, despite evidence that many lawyers who are
the subjects of LSO’s disciplinary proceedings are suffering from a mental
illness such as depression which can amount to a disability under the Ontario <i>Human
Rights Code</i> (the “<b>Code</b>”), Mr. Banack found that the circumstances of
this case were “highly unusual”. His findings were largely based on the
particular facts of the case, i.e. that the LSO knew that the lawyer was
suffering from a disability that resulted in him “freezing” and therefore was
unable to provide a written response to the LSO’s request for communication. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In this case, Mr. Burtt admitted that he had not responded
in writing to the LSO. However, Mr. Burtt asserted that he was not
capable of providing written responses, as demanded by the LSO, by reason of a
documented disability that caused him to “freeze” when confronted with the
investigation. The defence that was asserted by Mr. Burtt resulted from a
previous discipline proceeding in 2015. As a result of that proceeding,
the LSO with the consent of Mr. Burtt, commissioned and received two psychological
reports. Those reports were contained in the LSO’s file and both reports
concluded that Mr. Burtt was suffering from a psychological condition which
negatively affected his ability to respond to the LSO within specified time
frames. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In the previous matter, Mr. Burtt had been reprimanded and
ordered to comply with a psychiatric treatment plan which remained in effect up
until the date of the hearing before Mr. Banack. In making his finding
against the LSO, Mr. Banack relied on testimony from an LSO investigator that
not only had he not read the two psychological reports that were contained in
the LSO’s file but had only learned of them on the morning of the
hearing. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Code prohibits discrimination with respect to membership
in a trade or occupational association on specified grounds, one of which is
disability. In a previous case – <i>Law Society of Upper Canada v.
Czernik </i>(2010 ONLSHP 122) – the Tribunal held that: “<i>The Law
Society and the Tribunal are subject to the Code and must apply the duty to accommodate
where there is a proven disability at play. A failure to fulfill
professional obligations that is caused by a disability must be accommodated by
the Law Society and the Panel</i>”. The LSO was
required to accommodate Mr. Burt to the point of undue hardship. Mr.
Banack found that he was satisfied that the record before him was sufficient to
make the findings as to the scope and content of the LSO’s duty to
accommodate. Not only did Mr. Burtt tell the LSO about the prior
disciplinary proceedings and the psychological reports, the decisions were
publicly available on CanLII and it was part of his LSO file. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In addition, the information available to the LSO’s
investigators from their own observations of Mr. Burtt, his conduct and his
communications with them ought to have been enough to alert them to consider
the existence of a condition which required accommodation. Mr. Banack
found that the difference in this case, as compared to many before the
Tribunal, was that Mr. Burtt had responded to the LSO on a timely basis and as
Mr. Banack found, was to be contrasted with the ‘typical” response of the
licensees in similar circumstances which included evasion, denial, obfuscation
and disregard of professional obligations. In this unusual case, the investigators
engaged with an apparently cooperative licensee in lengthy conversations in
which he disclosed a prior proceeding and medical reports, offered promises of
cooperation and did not seek to avoid or fail to communicate with them.
He simply failed to follow through on his commitments. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
All of this should have alerted the LSO’s investigators that
the situation called for alternative thinking which by any other name amounted
to accommodation. The issue then became one of whether the accommodation
afforded by the LSO, i.e. providing additional time for Mr. Burtt to respond to
it was sufficient in the circumstances. Mr. Banack found that it was
not. He found that in the “highly unusual” circumstances of this licensee
who was known to be suffering from a disability that resulted in freezing but
engaged in protracted dialogue with the investigators, the burden was on the
investigators to at least canvass what alternative approach might have
fulfilled their objectives. In other words, that was no engagement in the
express thought process of inquiry concerning the need for or scope of
accommodation that was required. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In this case, it was impossible for Mr. Burtt to comply with
the LSO’s requirement of written cooperation. The LSO had alleged that
Mr. Burtt “<i>failed to cooperate with the Law Society investigation by failing
to provide a prompt and complete response to written requests made by the Law
Society’s investigators</i>”. Mr. Banack reviewed rule 7.1-1 of the <i>Rules
of Professional Conduct</i>, and held that a requirement to respond in writing
is not found in either the rules or the notice of application. In other
words, the LSO could have accommodated Mr. Burtt’s disability by allowing him
to respond orally to their inquiries and to attend at his office to obtain the
information that it needed. He concluded that the LSO had failed to
satisfy its onus of demonstrating what considerations, assessments and steps
were undertaken to accommodate Mr. Burtt “<i>to the point of undue hardship</i>”.
<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In dismissing the LSO’s application, Mr. Banack concluded
that Mr. Burtt’s disability was the cause of his inability and failure to
provide a written response to the investigator’s demands. Mr. Burtt did
not fail to comply with his regulatory obligations but only failed, by reason
of his disability, to comply with the manner to which compliance was
demanded. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Regards,<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<br />
<div class="MsoNormal">
Blair<span style="font-size: 14.0pt;"><o:p></o:p></span></div>
Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-90789420741048389442018-06-08T08:56:00.001-07:002018-06-08T08:56:20.196-07:00Ecuadorian Villagers Barred From Enforcing Massive Environmental Judgment Against Chevron Canada<div class="MsoNormal">
This is my ninth instalment about this case. It <span style="color: #1f497d;">probably won’t </span>be my last. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In the latest chapter of <i>Yaiguaje v. Chevron Corporation</i>,
2018 ONCA 472, the Court of Appeal for Ontario rejected arguments by the
Ecuadorian villagers who are seeking to enforce a US$9.5 billion judgment
against Chevron Corporation in Ontario. The villagers argued that the
<i>Execution Act</i> (“<b>Act</b>”) permitted execution on Chevron Canada’s
shares and assets to satisfy the Ecuadorian judgment. Secondly, they
argued that the court should pierce the corporate veil between Chevron Canada
and Chevron Corporation in order to render Chevron Canada’s shares and assets “exigible”
i.e. – subject to seizure and sale to satisfy the judgment. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justices Hourigan, Huscroft and Nordheimer heard the
case. All three justices dismissed the appeal, however, Justice
Nordheimer wrote separate reasons which may give the Ecuadorian’s a glimmer of
hope in seeking leave to appeal from this decision to the Supreme Court of
Canada. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b>Background<o:p></o:p></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
From about 1964 to 1992, Texaco Inc. drilled for and
extracted oil in the Oriente region of Ecuador which were the villagers’
traditional lands. The oil company’s activities resulted in extensive
environmental pollution. In 2001, Texaco was acquired by Chevron
Corporation. Following an eight year trial and two appeals in Ecuador,
the villagers obtained a US$9.5 billion judgment against Chevron Corporation.
They sought to enforce their judgment in the United States. However,
Chevron Corporation obtained an order in the state of New York <span style="color: #1f497d;">holding </span>that the Ecuadorian judgment had been
obtained by fraud and preventing enforcement proceedings anywhere in the United
States. As a result, the villagers sought to enforce the Ecuadorian
judgment against the assets of Chevron Canada in Ontario. After a number
of proceedings<span style="color: #1f497d;">, including a jurisdictional issue
that went </span>all the way to the Supreme Court of Canada<span style="color: #1f497d;">,</span> the matter came back to the <span style="color: #1f497d;">Superior </span>Court of <span style="color: #1f497d;">Justice
in </span>Ontario where a motion was brought for summary judgment.
Justice Hainey, the motion judge, dismissed the villagers’ claims on both of
its arguments. The villagers appealed
the decision to the Ontario Court of Appeal. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b>The Execution Act
Argument<o:p></o:p></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The villagers argued that section 18(1) of the Act allows
the sheriff to seize any interest of a judgment debtor and that Chevron
Corporation has an “indirect interest” in Chevron Canada. The villagers
submitted that because this case involves the enforcement of a foreign
judgment, the court must, for the reasons of comity, interpret the Act in an
expansive manner to facilitate the collection of the debt. Justices
Hourigan and Huscroft (the majority decision was written by Justice Hourigan)
disagreed. They held that enforcement of a foreign judgment is done in
accordance with domestic law. One cannot have one set of enforcement
rules for domestic judgments and a second far more expansive set of rules for
foreign judgments. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The majority held that the declaration that the
villagers sought, i.e. that the shares of Chevron Canada were exigible was “a
legal impossibility”. A corporation’s shares do not belong to the
corporation but to its shareholders. In fact, under the Canada <i>Business
Corporations Act</i>, corporations are prohibited from owning their own
shares. The Act, is procedural only and does not grant substantive rights
to judgment creditors. Its only function is to facilitate the collection
of judgments to enforce a judgment debtor’s existing rights. In other
words, there must be an existing legal right which permits seizure of the
assets. Chevron Canada does not hold such a right. A shareholder
(albeit indirect) of a corporation does not have a right to claim a proportionate
share of the corporation’s assets while it is ongoing. That right only
arises if and when the corporation is wound up because at that point there is
no existing entity capable of holding the assets. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Granting the order
sought by the villagers would ignore the corporate separateness of the
subsidiaries in between Chevron Corporation and Chevron Canada. In
addition, the proposed interpretation of the Act would have a significant
policy impact on how corporations carry on business in Canada. As a result,
they rejected this ground of appeal. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b>Piercing the Corporate Veil Argument<o:p></o:p></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The villagers alternatively submitted that the court had the
ability to pierce the corporate veil “when the interests of justice demanded
it”. They relied on Justice Bertha Wilson’s passage in the Supreme Court
of Canada case of <i>Kosmopoulous v. Constitution Insurance </i>(“<b>Kosmopoulous</b>”),
when she said that the corporate veil can be lifted when to enforce it would
yield a result “<i>to flagrantly opposed to justice, convenience or the interests
of the Revenue</i>”. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Court of Appeal held that Kosmopoulous was
decided thirty years ago and since that time the law has developed. In
the case of <i>Trans-America Life Insurance Co. of Canada v. Canada Life
Assurance Co.</i> (“<b>Transamerica</b>”) (decided in 1996), Justice Sharpe
held that there are only three circumstances where the court will pierce a
corporate veil: (1) when the court is construing a statute,
contract or other document; (2) when the court is satisfied that a company is a
“mere façade” concealing the true facts; and (c) when it can be established
that the company is an authorized agent of its controllers or its members,
corporate or human. The majority held that the Court of Appeal has
repeatedly rejected an independent just and equitable ground for piercing the
corporate veil in favour of the approach taken in Transamerica. The
Transamerica test is consistent with the principle reflected in the various
business corporation statutes in Canada that corporate separateness is the rule. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The majority held that it is important that the courts be rigorous in their
application of the Transamerica test because the rule is provided for in the
statute and stakeholders of corporations have a right to believe that, absent
extraordinary circumstances, they may deal with the corporation as the actual
person. It held that Transamerica effectively modified Kosmopoulous and
that the question for determination in this case is whether this court is
prepared to sacrifice certainty for the sake of expediency. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
There was no suggestion or evidence that Chevron Canada was
established or used for a fraudulent or improper purpose. The majority
rejected the argument that they should in effect “do the right thing” for the
Ecuadorian villagers because at this stage the equities of the case were far
from clear. On one hand the appellants had suffered devastating loss
through no fault of their own. On the other hand, the United States court
had found that the Ecuadorian judgment was the result of a massive fraud.
The court held that what they were really being asked to do was to assist the
villagers in doing an end-run around the United States courts by breaking with
well-established jurisprudence where there is no principled basis to do
so. They dismissed the appeal on that ground as well.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b>Justice Nordheimer’s
Dissent<o:p></o:p></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Nordheimer agreed with the result reached by his
colleagues. He also agreed with their analysis of the case in respect of
the Act. However, Justice Nordheimer did not agree with the analysis of
the majority judges concerning whether to pierce Chevron Canada’s corporate
veil. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
He held that Transamerica, the case that the majority had
heavily relied upon, could be distinguished on the facts. Transamerica dealt with imposing liability on
a party whereas in this situation, the issue concerned enforcing a judgment
debt. In the latter situation, liability has already been
established. The proceeding has moved past the hurdle of finding
liability to a stage that concerns the remedies that are available to enforce a
valid judgment. In Justice Nordheimer’s view, Transamerica could not
simply be lifted out of the liability context and dropped into and applied to
the judgment enforcement context. In fact, Justice Nordheimer held that it
would be very difficult to conceive of a factual situation where the Transamerica
test could be met, that is where the corporate structure would be found to have
been used as a shield for fraudulent or improper conduct solely in the context
of enforcing a judgment. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Nordheimer also disagreed with his colleagues’
reading of the Kosmopoulous case and found that he could see situations where
the court would be willing to lift the corporate veil in the interest of third
parties who would otherwise suffer as a result of that choice. He found
that the Ecuadorian villagers might well fall into that category were it not
for the findings of the United States courts respecting the fraudulent manner
in which the judgment had been obtained. In <i>Downtown Eatery (1993)
Ltd. v. Ontario</i> (“<i>Downtown Eatery</i>”), a 2001 decision of the Court of
Appeal, the court pierced the corporate veil despite expressly finding that
neither the corporate structure or the reorganization leaving the judgment
debtor corporation without assets was fraudulent. It did so because the
reorganization created an injustice. Justice Nordheimer held that
Downtown Eatery was arguably more relevant than Transamerica because it
post-dated Transamerica and was involved in enforcement of a judgment debt as
opposed to finding of liability. <o:p></o:p></div>
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<br /></div>
<br />
<div class="MsoNormal">
Finally, the majority’s finding that Chevron Canada was not
an asset of Chevron Corporation was one that Justice Nordheimer found was “<i>completely
detached from real-world realities</i>”. He found that it was crystal
clear that Chevron Canada was an asset of Chevron Corporation as that term is
understood in common business parlance. All of Chevron Canada’s shares
are owned by Chevron Corporation (albeit indirectly) and it is ultimately
controlled for all practical purposes by Chevron Corporation. He held
that the question was not whether the court was prepared to sacrifice certainty
for the sake of expediency, it was whether the court was prepared to recognize
that there may be situations where equity would demand a departure from the strict
application of corporate separateness principle in the context of
enforceability of a valid judgment whether foreign or domestic. However,
he found that the United States court’s finding that the Ecuadorian judgment
was obtained by fraud put the apparently valid foreign judgment in question. Canadian courts have not yet been called upon
to make their own determination of the validity of the judgment. Absent
such a finding, even on Justice Nordheimer’s approach, the judgment could not
be enforced. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Regards,</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Blair</div>
Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-44778298125572043382018-05-18T07:43:00.001-07:002018-05-18T07:43:38.720-07:00SCC - Careless Garage Not Liable For Injury to Teenager<div class="MsoNormal">
<i>Rankin (Rankin’s Garage & Sales) v. J.J.</i> 2018 SCC
19 (Rankin)<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Supreme Court of Canada recently held (7-2) that the
owners of a commercial garage did not owe a duty of care to a boy who was
seriously injured after he and a friend stole a car from the garage even though
the garage was negligent in allowing the car to be stolen.<o:p></o:p></div>
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<br /></div>
<div class="MsoNormal">
In the summer of 2006, in the village of Paisley, Ontario,
the plaintiff J (who was then 15 years old) and his friend C (then 16 years
old) were at C’s mother’s house. The boys drank alcohol, some of which
was provided by C’s mother, and smoked marijuana. <o:p></o:p></div>
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<br /></div>
<div class="MsoNormal">
After midnight, the boys left the house intending to steal
valuables from unlocked cars. Eventually, they made their way to Rankin’s
Garage & Sales, a business located near Paisley’s main intersection.
The garage property was not secured and the boys began checking for unlocked
cars. C found an unlocked Toyota Camry parked behind the garage.
The keys were in the car’s ashtray. Although he did not have a driver’s
license and had never driven on the road before, C decided to steal the car so
he could go and pick up a friend in nearby Walkerton, Ontario. C told J
to get in, which he did. C drove the car out of the garage and headed towards
Walkerton. On the highway, the car crashed and J suffered a catastrophic
brain injury. <o:p></o:p></div>
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<br /></div>
<div class="MsoNormal">
Through his litigation guardian, J sued Rankin’s Garage, his
friend, C and C’s mother for negligence. The issue on appeal to the
Supreme Court was whether Rankin’s Garage owed J a duty of care. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Karakatsanis wrote a majority decision for seven
justices of the court. Justice Brown wrote a dissenting decision (with
Justice Gascon concurring). <o:p></o:p></div>
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<br /></div>
<div class="MsoNormal">
The majority held that the case could be resolved based on a
straightforward application of existing tort law principles. It held that
J did not provide sufficient evidence to support that Rankin’s Garage owed him
a duty of care.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Because there is no clear guidance in Canadian case law on
whether a business like the garage owes a duty of care to someone who was
injured following the theft of a vehicle, the Supreme Court conducted an <i>Anns/Cooper</i>
analysis. That analysis provides that to establish a duty of care, there
must be a relationship of proximity in which the failure to take reasonable
care might foreseeably cause loss or harm to the plaintiff. Once
foreseeability and proximity are established, a <i>prima facie</i> duty of care
is made out. The question is an objective one, and properly focused, is
whether foreseeability was present prior to the accident and not with the aid
of 20/20 hindsight. <o:p></o:p></div>
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<br /></div>
<div class="MsoNormal">
The court held that although the results of this case were
tragic, physical injury to J was only foreseeable when there is something in
the facts to suggest that there is not only a risk of theft of the car, but
also a risk that the stolen car might be operated in a dangerous manner.
The risk of theft in general does not automatically include the risk of theft
by minors. The court found that in this case there was insufficient
evidence to suggest that minors would frequent the premises at night or be
involved in joyriding or theft. Rankin’s Garage, as a commercial garage,
did not have a positive duty to guard against the risk of theft by
minors. The fact that J was a minor does not automatically create an
obligation for the company to act. <o:p></o:p></div>
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<br /></div>
<div class="MsoNormal">
The court held that J had not met the burden of establishing
a prima facie duty of care because reasonable foreseeability could not be
established on the factual record of the case. A business will only owe a
duty to someone who is injured following the theft of a vehicle when in addition
to theft the unsafe operation of the stolen vehicle was reasonably
foreseeable. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The dissenting judges held a view that many may believe was
more logical. They held that the concept of “reasonable foreseeability”
represents a low threshold and is usually quite easy to overcome. A
plaintiff must merely provide evidence to persuade the court that the risk of
the type of damage that occurred was reasonably foreseeable to the class of the
plaintiff that was damaged. In this case, both the trial judge and the
Ontario Court of Appeal held that it was reasonably foreseeable that an
individual such as J could suffer physical injury as a consequence of Rankin’s
Garage’s negligence in failing to properly lock, secure and store
vehicles. Justices Brown and Gascon concluded that the majority of the
court had conceded that the risk of theft was reasonably foreseeable but, in
order to hold the garage owner responsible, would have required additional
evidence that theft would have occurred at the hands of a minor in order to
find that physical injury to J was foreseeable. The dissenting judges
held that minors are no less likely to steal cars than any other
individual. In order to establish a duty of care, J was not required to
show that the characteristics of the particular thief or the way in which the
injury occurred were foreseeable. Imposition of a duty of care was
conditioned only upon J showing that physical injury to him was reasonably
foreseeable under any circumstances flowing from Rankin’s Garage’s negligence.
<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Regards,<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<br />
<div class="MsoNormal">
Blair<o:p></o:p></div>
Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-74340656081683261292018-05-04T12:29:00.001-07:002018-05-04T12:29:20.432-07:00SCC Rules That Provinces Can't Restrict or Limit Interprovincial Flow of Goods <div class="MsoNormal">
<i><br /></i></div>
<div class="MsoNormal">
<i><br /></i></div>
<div class="MsoNormal">
The Supreme Court of Canada recently released its judgment in<i> R. v. Comeau</i>, 2018 SCC 15. The decision confirmed that the Province of New Brunswick has the power to enact laws which prevent its residents from bringing large quantities of cheap alcohol into the province from Quebec. <o:p></o:p> The Court held that the primary purpose of the New Brunswick regulatory scheme is not to restrict trade across a provincial boundary but to enable public supervision of the production, movement, sale and use of alcohol within New Brunswick. However, more importantly, the Court held that the Constitution Act, prohibited laws whose primary purpose was to restrict or limit the free flow of goods across the country.</div>
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The judgment was delivered by the court.<o:p></o:p></div>
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The court began by giving a history lesson. It noted that when Canada was formed in 1867, the <i>British North America Act</i>, 1867 (UK) (“<b>BNA</b>”), united individual British colonies into the new country. Prior to this, each colony had its own power to
impose tariffs at its borders. Part VIII of the BNA, now called the <i>Constitution
Act</i>, 1867 (“<b>Constitution</b> <b>Act</b>”), contains provisions for
transferring this power to levy tariffs to the federal government.
Section 121, at the heart of Part VIII, was at
issue in this appeal: “<i>All Articles of the Growth Produce or
Manufacture of any one of the Provinces s<b>hall, from and after the Union, be
admitted free into each of the other Provinces</b></i><b>”. </b><o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The respondent, Gerard Comeau, contended that section 121 is
essentially a free-trade provision. In his view, that section ensured that no barriers could be
erected to impede the passage of goods across provincial boundaries.
However, the appellant, The Province of New Brunswick, argued that section 121
was intended only to take away the power to impose tariffs or tariff-like
charges at provincial boundaries. The trial judge agreed with Mr.
Comeau. The matter eventually came before the Supreme Court of Canada which posed the question this way: “<i>What does it mean for articles to be
“admitted free” as provided for in section 121?</i>” <o:p></o:p></div>
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<br /></div>
<div class="MsoNormal">
The Supreme Court mused: if to be “admitted free” is understood as a constitutional
guarantee of free trade, the potential reach of section 121 is vast. Agricultural
supply management schemes, public health-driven prohibitions, environmental
controls and comparable regulatory measures that incidentally impede the
passage of goods crossing provincial borders may be invalid. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The dispute arose out of Mr. Comeau’s assertion that section
121 of the Constitution Act, prevents the province of New Brunswick from
legislating that New Brunswick residents cannot stock alcohol from another
province. The applicable section of the <i>Liquor Control Act</i> of New
Brunswick (“<b>NB Liquor Act</b>”), provides that: “<i>Except as provided
by this Act or the regulations, no person, within the Province, by himself, his
clerk, employee, servant or agent shall… (b) have or keep liquor,
not purchased from the Corporation</i>”. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The facts of the case are straight forward. Mr. Comeau
was a resident of the Tracadie-Sheila region on the Acadian Peninsula in
northeastern New Brunswick. He drove to Campbellton, in the northwest of
the province, crossed the Restigouche River and entered Quebec. He did
what many Canadians who live close to cheaper alcohol prices across provincial
boundaries do. He visited three different liquor stores and stocked
up. However, the Campbellton RCMP had become concerned with the frequency
by which New Brunswick residents were sourcing large quantities of alcohol in
Quebec in contravention of the law. The RCMP started monitoring New
Brunswick visitors who commonly frequented liquor stores on the Quebec side of
the border. Mr. Comeau was one of these visitors. <o:p></o:p></div>
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<br /></div>
<div class="MsoNormal">
Returning from Quebec to New Brunswick, Mr. Comeau was
stopped by the RCMP and charged under the section 134(b) of the NB Liquor Act that
prohibited buying alcohol outside the province. He was charged under and fined $240 plus administrative fees. </div>
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<br /></div>
<div class="MsoNormal">
At trial, the New Brunswick provincial court agreed with Mr.
Comeau that the NB Liquor Act infringed section 121 of the Constitution
Act. The trial judge found section 134(b) to be of no force and effect
against Mr. Comeau and dismissed the charge. In doing so, the trial judge
found that a 1921 Alberta Court of Appeal decision was wrongly decided and should not be
applied. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
However, the Supreme Court of Canada disagreed. It
held that section 134(b) of the NB Liquor Act does not infringe section 121 of
the Constitution Act. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The court held that common law courts are bound by
authoritative precedent. Subject to extraordinary exceptions, a lower
court, such as the New Brunswick trial court, must apply the decisions of higher courts to the facts before it.
For a binding precedent from a higher court to be cast aside, the new evidence
must fundamentally shift how judges understand the legal question in
issue. This high threshold was not met in this case. The trial
judge relied on evidence presented by a historian who he accepted as an expert.
The trial judge accepted the expert’s description of the drafters’ motivations
for including section 121 in the Constitution Act and how those motivations
drive how section 121 is to be interpreted. The SCC held that reliance on the
expert’s opinion was erroneous. A trial judge should not depart from
precedent on the basis of such opinion evidence because it abdicates the judge’s
primary responsibility to determine the applicable law.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The court then considered how section 121 should be interpreted. It held that the moderate approach to statutory
interpretation provides a guide for determining how “admitted free” in section
121 should be interpreted. The text of the provision must be read in conjunction with the context and purpose of the statute. Constitutional texts must be interpreted in a broad and purposive manner and in
a manner that is sensitive to evolving circumstances. Applying this
framework to section 121, the text, historical context, legislative context and
underlying constitutional principles support a
flexible purpose of section 121, one that respects an appropriate balance
between federal and provincial powers. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Court held that the phrase “admitted free” is ambiguous and falls to be
interpreted on the basis of historical, legislative and constitutional
context. In order to achieve economic union, the drafters of the
constitution agreed that the individual provinces needed to relinquish their
tariff powers. The historical context supports the view that section 121
prohibits imposition of charges on goods crossing provincial boundaries, i.e.
tariffs and tariff-like measures. However, the evidence does
not suggest that the provinces would lose their power to legislate under
section 92 of the Constitution Act for the benefit of their constituents even
if that might have impact on inter-provincial trade. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Supreme Court held that the legislative context of section
121 indicates that it was part of a scheme that enabled shifting of customs,
excise and similar levies from the former colonies to the “Dominion”, it should
be interpreted as applying to measures that increase the price of goods when
they cross the provincial border, and should not be read so expansively that it
would impinge on legislative powers under sections 91 and 92 of the
Constitution Act. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The purpose of section 121 is to prohibit laws that in
essence restrict or limit the free flow of goods across the country.
Second, laws that pose only incidental effects on trade as part of broader
regulatory trade schemes not aimed at impeding trade do not have the purpose of
restricting inter-provincial trade and do not violate section 121.
Therefore, section 121 does not catch burdens on goods crossing provincial
borders that are merely incidental effects of a law or scheme aimed at some
other purpose. </div>
<div class="MsoNormal">
<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
A claimant alleging that a law violates section 121 must
establish that the law in essence and purpose restricts trade across a provincial
border. The claimant must establish that the law imposes an
additional burden on goods by virtue of them coming in from outside the
province and, restriction of cross-border trade must be the primary purpose of
the law thereby excluding laws enacted for other purposes. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<br />
<div class="MsoNormal">
In this case, section 134(b) of the NB Liquor Act impedes
liquor purchases originating outside of New Brunswick. In essence, it
functions like a tariff even though it may have other purely internal
effects. However, the text and effects are aligned and suggest that the
primary purpose of section 134(b) is not to impede trade but rather to restrict
access to any non-corporation liquor, not just liquor brought in from another
province. The scheme serves New Brunswick’s choice to control the supply use of liquor
within the province. The primary purpose of section 134(b) is to prohibit
holding excessive quantities of liquor from supplies not managed by the
province. While one effect of that section is to impede inter-provincial
trade this effect is only incidental in light of the objective of the
provincial scheme in general. Therefore, while section 134(b) in essence
impedes cross-border trade, this is not its primary purpose. The court
held that as a result, section 134(b) does not infringe section 121 of the
Constitution Act. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Regards,</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Blair</div>
Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-43181804451209412292018-04-10T11:18:00.001-07:002018-04-10T11:18:27.166-07:00Failure to Immediately Disclose "Mary Carter" Agreement Will Lead to Stay of Action<div class="MsoNormal">
The Ontario Court of Appeal recently ordered that an action be stayed <b>(</b><i><b>Handley
Estate v. DTE Industries Limited, 2018 ONCA 324</b>) </i>on the basis that certain parties had failed
to comply with their obligation to immediately disclose a “Mary Carter”
agreement. The Court held that by originally denying the motion for a
stay, the motion judge had erred in principle by failing to apply the remedy
for non-disclosure of these types of agreements as specified in a previous Court of Appeal decision called <i>Aecon Buildings v. Stephenson
Engineering Limited</i> (“<b>Aecon</b>”). <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In the case, Helen Handley discovered in 2004 that the outdoor oil tank
that she had purchased for her home had leaked and had discharged several
hundred litres of fuel oil into the soil. In 2009, Ms. Handley’s insurer,
Aviva Insurance Company of Canada (“<b>Aviva</b>”), commenced a subrogated
claim against a number of defendants including H&M Combustion Services Ltd.
(“<b>H&M</b>”). H&M had been dissolved in 2007. Aviva
was aware of that fact and pleaded it in the statement of claim. Aviva did
not name as defendants in the action one of the oil tank vendors, Kawartha
Lakes HVAC Inc. (“<b>Kawartha Lakes</b>”), and its corporate successors.
By the time Aviva decided to sue Kawartha Lakes, the limitation period
for the main action had expired. Aviva decided to explore asking H&M to initiate a
third party claim against Kawartha Lakes.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In 2011, counsel for Aviva and H&M negotiated a
litigation agreement. Under the agreement, H&M would defend the
main action and commence a third party claim against Kawartha Lakes and its
successors. Aviva would contribute $5,000 to cover H&M’s costs of
prosecuting the third party claim through examinations for discoveries and
H&M’s principal would revive H&M should that be necessary to prosecute
the third party claim. Aviva and H&M agreed that all
communications between counsel would be subject to common interest
privilege. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
At the time, neither Aviva nor H&M disclosed the
litigation agreement (Mary Carter agreement) to the other parties. Such
disclosure did not take place until the fall of 2016 when Aviva and H&M
concluded a further litigation agreement. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In the 2016 Mary Carter agreement, H&M assigned all its
rights to Aviva in the action including the rights to receive all proceeds from
the third party action. Aviva agreed to indemnify H&M and its
principal against all costs and damages that might be awarded against
H&M. Aviva would assume responsibility for defending H&M and
prosecuting its third party claim. Aviva assumed responsibility for all
legal costs and disbursements incurred by H&M’s counsel but reserved the
right to appoint its own counsel. The Court of Appeal held that as a
result of the 2016 Mary Carter agreement for all intents and purposes Aviva
stepped into the litigation shoes of H&M. <o:p></o:p></div>
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<br /></div>
<div class="MsoNormal">
As a result of certain steps taken in the litigation, the 2016 litigation agreement first became known to the other parties but the 2011
litigation agreement did not. Finally, both litigation agreements were disclosed. Geo, Williamson Fuels Ltd. (“<b>Williamson</b>”), a defendant and the third parties moved for an order staying the action on
the basis that the failure to disclose the Mary Carter agreements immediately
had effected the “litigation landscape” contrary to the principles set down by
the Court of Appeal in Aecon. </div>
<div class="MsoNormal">
<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The third party action settled on the eve of the hearing and
only the motion to stay brought by the Williamson proceeded.<o:p></o:p></div>
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<br /></div>
<div class="MsoNormal">
The motion judge agreed that the litigation agreements had
not been disclosed contrary to the principles of Aecon, but refused Williamson’s
request for a stay by distinguishing Aecon. He held that Aecon did not
stand for the proposition that the claims against all parties should be
“automatically” stayed. He held that Williamson had suffered no prejudice from the
delayed disclosure of the agreement because as a supplier of the oil in the
tank and not the tank, Williamson was unaffected by the third party claim. There was no reason for Williamson to spend any money litigating the third
party claim because H&M had been dissolved. <o:p></o:p></div>
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<br /></div>
<div class="MsoNormal">
On appeal the parties did not dispute the motion
judge’s finding that both litigation agreements should have been disclosed
immediately because they changed the adversarial relationship between Aviva and
H&M. The dispute centered on the appropriate remedy for such failure. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The appeal was heard by Justices Hoy, Simmons and
Brown. Justice Brown wrote the reasons for the court. He held that since 1993, the law in Ontario has
been clear that a Mary Carter type agreement must be disclosed to the court and to
the other parties to the law suit as soon as the agreement is made. The
rationale for immediate disclosure is as follows: “<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal" style="margin-left: .5in;">
<i>The existence of a Mary Carter
agreement significantly alters the relationship among the parties to the
litigation. For that reason the agreement must be disclosed to the
parties and to the court as soon as it is made. The non-contracting
defendants must be advised immediately because the agreement may well have an
impact on the strategy and line of cross-examination to be pursued and the
evidence to be led by them. In addition, they must be able to properly
assess the steps being taken from that point forward by the plaintiff and the
contracting defendants. Procedural fairness requires immediate
disclosure. In addition, the court must be informed immediately so that
it can properly fulfill its role in controlling its process in the interest of
fairness and justice to all parties.” <o:p></o:p></i></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In Aecon the Court of Appeal held that while it is open to
the parties to enter into such agreements, the obligation upon entering into
them is to immediately inform all other parties to the litigation as well as
the court. The reason for this is obvious. Such agreements change
entirely the legal landscape of the litigation. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Brown held that the remedy for failing to
immediately disclose the agreement is to stay the proceeding. He held
that: <b>“<i>The only remedy to redress the wrong of what amounts to an abuse
of process is to stay the claim asserted by the defaulting non-disclosure party
because sound policy reasons support such an approach – only be imposing
consequences of the most serious nature on the defaulting party is the court
able to enforce and control its own process and ensure that justice is done
between and among the parties. To permit the litigation to proceed
without disclosure of such agreements renders the process a sham and amounts to
a failure of justice</i>”. </b><o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<br />
<div class="MsoNormal">
For those reasons, Justice Brown held that the motion judge
had misdirected himself regarding the principles in Aecon. He erred by
failing to apply Aecon’s remedy of staying the claim of the party that did not
disclose the litigation agreement and amounted to an error of law.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Regards,</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Blair</div>
Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-36730183485047160172018-03-21T12:13:00.000-07:002018-03-21T12:13:48.250-07:00Living In Splendid Isolation - Lessons Learned Enforcing an Ontario Judgment in Mexico<div align="center" class="MsoNormal" style="text-align: center;">
<b>Living in Splendid Isolation: Ten
Lessons Learned <br />
Enforcing an Ontario Judgment in Mexico <o:p></o:p></b></div>
<div align="center" class="MsoNormal" style="text-align: center;">
<b>Blair Bowen<br />
Fogler, Rubinoff LLP, Toronto<o:p></o:p></b></div>
<div class="FRHeading1">
Introduction <o:p></o:p></div>
<div class="MsoNormal">
This article presents a cautionary tale for any person who
wishes to take legal proceedings against an individual or company resident in
Mexico. <o:p></o:p></div>
<div class="MsoNormal">
More than 25 years ago, the Supreme Court of Canada's
decision in <i>Morguard Investments Ltd. v.
De Savoye<a href="file:///K:/bbowen/WPData/BWMB/Articles/ARTICLE%20-%20Mexico%20-%20Living%20in%20Spendid%20Isolation.docx#_ftn1" name="_ftnref1" title=""><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-ansi-language: EN-CA; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;">[1]</span></b></span><!--[endif]--></span></a></i>,
represented a sea change in the way Canadian courts recognized and enforced foreign
judgments. The "foreign" aspect
of <i>Morguard</i> involved British Columbia
plaintiffs seeking to enforce an Alberta judgment. Writing for the court, Justice La Forest rejected
the centuries' old principles regarding recognizing and enforcing foreign
judgments which were anchored in the concept of territoriality. He held that modern states like Canada should
no longer live in "splendid isolation" from the rest of the world and
should give effect to judgments made in other countries. In arriving at its conclusion, the court relied
heavily upon the concept of comity which had been adopted by the Supreme Court
of the United States. It held that
comity would "impel sovereigns to mutual intercourse". <o:p></o:p></div>
<div class="MsoNormal">
These lofty ideals were written just four years before
commerce between Canada and Mexico was facilitated by the North American Free
Trade Agreement ("<b>NAFTA</b>").
NAFTA sought to reduce, and in some
instances, eliminate barriers to trade and commerce between Canada, Mexico and
the United States. Indeed, after NAFTA,
trade between Canada and Mexico increased substantially and Mexico is now one
of Canada's largest business partners and export destinations. <o:p></o:p></div>
<div class="MsoNormal">
More recently however, a case in which I was involved, drove
home the very unsettling point that the Supreme Court's vision of greater ease
in enforcing foreign judgments between trading partners has not been fully
embraced by Mexico. You will learn from
reading this offering that Mexico and its judicial system still exist in a
state of "splendid isolation" when it comes to recognizing and
enforcing judgments from Canada. <o:p></o:p></div>
<div class="FRHeading1">
A "Garden Variety" Breach Of Contract Case<o:p></o:p></div>
<div class="MsoNormal">
Several years ago, I was retained by an Ontario company to
sue defendants who resided in Mexico<a href="file:///K:/bbowen/WPData/BWMB/Articles/ARTICLE%20-%20Mexico%20-%20Living%20in%20Spendid%20Isolation.docx#_ftn2" name="_ftnref2" title=""><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-ansi-language: EN-CA; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;">[2]</span></span><!--[endif]--></span></a>. The client was a producer of live
entertainment and theatre and was owed a substantial sum of money as a result
of a failed business deal with a Mexican promoter. The Mexican promoter had persuaded our client
to allow a touring dance company to deliver several performances in Mexican venues,
without first paying our client for the performances or without providing
adequate security for payment. After
several broken promises, our client soon determined that the promoter had no
intention of honouring his contractual obligations. <o:p></o:p></div>
<div class="MsoNormal">
At first review, this seemed like a straight-forward
"garden variety" breach of contract case, the only wrinkle being the
non-resident defendants. After receiving
no response to its demands for payment, the client needed to make a
decision. Should it sue the Mexican
promoter in Mexico or in Ontario? The
client's Mexican lawyers advised that so long as an Ontario court would take
jurisdiction over the Mexican promoter and the other proposed defendants – the promoter's
wife and his "theatre arts" company, a Mexican court would recognize
and enforce a judgment obtained from the proceedings. This advice seemed promising and we commenced
the action in the Ontario Superior Court of Justice. <o:p></o:p></div>
<div class="MsoNormal">
<b>Lesson Number 1 <o:p></o:p></b></div>
<div class="MsoNormal">
<b>Before commencing
proceedings in Ontario against Mexican defendants, obtain advice from Mexican
lawyers describing in detail the process involved for recognizing and enforcing
an Ontario judgment in Mexico and the defences that may be raised by Mexican
defendants in resisting recognition and enforcement. </b><span style="font-size: 14.0pt;"><o:p></o:p></span></div>
<div class="FRHeading1">
Doing Justice Formally<o:p></o:p></div>
<div class="MsoNormal">
The defendants could be served with the statement of claim
outside of Ontario without a court order because Ontario had <i>jurisdiction simpliciter</i>. A substantial connection existed between
Ontario and the cause of action for many reasons: the contract was made in Ontario; a breach of the contract had been committed in
Ontario; damage was sustained by our
client in Ontario arising out of the defendants' breach of contract; and, the
contract provided that the courts of Ontario had jurisdiction to resolve a
dispute arising out of the contract. <o:p></o:p></div>
<div class="MsoNormal">
Canada and Mexico are both signatories to the Hague
Convention on the service abroad of judicial and extra-judicial documents in
civil or commercial matters (the "<b>Convention</b>"). Normally, we would be able to serve the
statement of claim on the Mexican defendants by any means legally provided for
service of an originating document in Mexico.
However, the client's Mexican lawyers warned that when Mexico ratified
the Convention, it opposed the use of the simplest methods of serving a foreign
statement of claim. Instead, it had designated
a branch of its Foreign Ministry as the only competent authority to receive originating
documents from another country. <o:p></o:p></div>
<div class="MsoNormal">
<b>Lesson Number 2<o:p></o:p></b></div>
<div class="MsoNormal">
<b>Mexican courts
require foreign court and other inbound documents to be certified or
authenticated. This generally means
having all documents originally signed by the issuing authority, i.e. judge,
clerk or other authority, and attesting that the documents are true and correct
copies of the originals.</b><span style="font-size: 14.0pt;"> </span><o:p></o:p></div>
<div class="MsoNormal">
Mexico, as we were just beginning to learn, is a jurisdiction
that does justice very formally. We
learned that Mexican courts required formalistic procedures for often the
simplest administrative steps. At the
advice of the Mexican lawyers, we followed a multi-step process to ensure that
service of the statement of claim was properly effected on the Mexican
defendants. Such steps included
translating our request for service and the statement of claim into Spanish,
providing the Mexican lawyers with a power of attorney from our client which
needed to be notarized by us and then "legalized" at the Canadian
consulate in Mexico City and then transmitting all documents in duplicate to
the Mexican Foreign Ministry. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b>Lesson Number 3<o:p></o:p></b></div>
<div class="MsoNormal">
<b>Once authenticated, Mexican
courts require that all inbound documents be "legalized". The process of legalization can be done by
obtaining another document from the Mexican Consulate in Ontario called an
"a<i>postille</i>" which will be
attached to the documents in question.
The apostille gives Ontario documents full binding effect in
Mexico. </b><span style="font-size: 14.0pt;"> </span><o:p></o:p></div>
<div class="MsoNormal">
The Mexican lawyers told us that we needed the Mexican
Consulate in Toronto to apply a "legalization" stamp on the documents. We were also told that since our client was a
foreign company, it would have to submit an original certificate of status showing
it was in good standing, its articles of incorporation, an original copy of the
company's by-laws and articles which included the powers vested in the board of
directors authorizing the lawsuit, an original copy of the minutes of the
relevant meeting of the board with the full names of all the directors and
their official titles, an original copy of the minutes of the meeting of the
board respecting the election of the present board of directors, an original
copy of the minutes of the meeting of the board where it was resolved to confer
the power of attorney. <o:p></o:p></div>
<div class="MsoNormal">
All of this was necessary to serve the statement of claim on
the defendants. <o:p></o:p></div>
<div class="MsoNormal">
<b>Lesson Number 4<o:p></o:p></b></div>
<div class="MsoNormal">
<b>Utilize the services
of Global Affairs Canada where possible.
Global Affairs Canada is the federal government agency that manages
Canada's diplomatic and consular relations.
It offers to authenticate a variety of documents so that they will be
accepted for use abroad. </b><o:p></o:p></div>
<div class="MsoNormal">
We had two options available to us, (1) the client could
present the notarized power of attorney to Global Affairs Canada. We needed Global Affairs Canada to apply an
authentication stamp on the documents and then submit it to the Mexican
Consulate to be legalized; or (2) the client's president could attend at the
Mexican Consulate in Toronto to execute a power of attorney according to
Mexican law. If he chose this option, he
would have to present all of the corporate documents referred to above. Needless to say, we chose the former
option. <o:p></o:p></div>
<div class="MsoNormal">
The Mexican lawyers also advised that in addition to serving
the statement of claim, it was customary to serve the plaintiff's certificate
of status, articles of amendment, if any, and the power of attorney. While the defendants would not require those
documents in order to file a defence, we were advised that to be on the safe
side and to avoid the possibility of a technical defence being raised, we
should serve all of such documents with the statement of claim.<o:p></o:p></div>
<div class="MsoNormal">
Having received that advice, we completed a request for
service pursuant to the Convention together with a notice summarizing the
nature of the documents that were to be served on the defendants. Since Mexico had objected to "other
means of service" under the Convention, we needed to deliver the documents
to Mexico using the Central Authority for Canada in Haileybury, Ontario ("<b>Haileybury</b>"). <o:p></o:p></div>
<div class="MsoNormal">
Haileybury sent the documents to the client's Mexican
lawyers. The lawyers told us that the
documents were "acceptable in principle" but were missing an official
stamp and signature of the Canadian "requesting authority". It was essential to the Mexican Foreign
Ministry that Haileybury officially stamp the documents so that it could process
our request for service in Mexico. The
Mexican lawyers sent the documents back to Haileybury. Haileybury stamped the documents and sent them
back to the Mexican lawyers who then attempted to file the documents for
service with the Mexican Foreign Ministry.
<o:p></o:p></div>
<div class="MsoNormal">
<b>Lesson Number 5<o:p></o:p></b></div>
<div class="MsoNormal">
<b>Ensure that all
documents are translated by a certified translator. According to Mexico's Federal Code of Civil
Procedure ("FCCP"), all documents pertaining to an action in Mexico
must be translated into Spanish. I recommend
that the translation work is performed by a certified translator appointed by
the court where you intend to enforce the judgment and that such work is
monitored by legal counsel in Mexico.</b><span style="font-size: 14.0pt;"> </span><o:p></o:p></div>
<div class="MsoNormal">
After a month of waiting, we were informed that the Foreign Ministry
had again returned the documents to the Mexican lawyers because of "technical
deficiencies". The issue appeared
to be that the Mexican court wanted an Ontario court to sign the request for
service of the documents. Upon
attendance at the registrar's office, our law clerk was informed by the Registrar
of the Superior Court that he would not sign such a request. Haileybury also advised that they would not
sign the request. However, after some
persuasion by our law clerk, the Registrar relented and signed the request for
service. To make them look more formal
and official, our law clerk put a red paper seal on the documents. <o:p></o:p></div>
<div class="MsoNormal">
<b>Lesson Number 6<o:p></o:p></b></div>
<div class="MsoNormal">
<b>Follow all
instructions from Mexican courts completely, even the instructions that appear
to be arbitrary.</b><span style="font-size: 14.0pt;"> </span><o:p></o:p></div>
<div class="MsoNormal">
We intended to send the documents back to Haileybury for
re-stamping. Before doing so, we noticed
that the documents that had been returned from Mexico included new instructions
in Spanish. The Mexican court was now requesting
two sets of originally signed documents instead of one. We were told by the Mexican lawyers that the
request for duplicate originals was new and was a criterion of an individual
officer at the Foreign Ministry. It was
not a requirement under the Convention or a requirement of Mexican law. It was simply a requirement of the person
dealing with the matter in Mexico. We
were told that we would have to comply with the request in order to have the
documents accepted. <o:p></o:p></div>
<div class="MsoNormal">
Once we had sent the duplicate documents back to Mexico via
Haileybury, the Mexican lawyers told us that the Foreign Ministry still refused
to accept them because the preamble in the statement of claim did not specify
whether the days required to respond to the claim were calendar days or
business days. The Foreign Ministry
wanted the Ontario Court to issue a "resolution" to confirm that the
days referred to in the preamble were calendar days. Just as we were attempting to determine how
we could obtain such a resolution from the Ontario Court, we were surprised by
the Mexican lawyers who told us that the Foreign Ministry had relented. The Mexican lawyers had met with the Director
of the Foreign Ministry and persuaded her that she did not require the Ontario
court to explain its preprinted form by resolution after all. Apparently they felt they had tormented us
long enough. <o:p></o:p></div>
<div class="MsoNormal">
Several months after we were first retained, two of the
three defendants (the promoter and his company) were finally served with the
statement of claim. Service on the third
defendant (the promoter's wife) was pending because the judge that received the
request asked for extra copies of the documents even though the Convention did
not require that these extra copies be provided. <o:p></o:p></div>
<div class="FRHeading1">
No Cakewalk In Ontario Either <o:p></o:p></div>
<div class="MsoNormal">
The Mexican defendants subsequently attorned to the
jurisdiction of the Ontario Court and defended the action. We hoped that the action would now proceed expeditiously. We were naive. <o:p></o:p></div>
<div class="MsoNormal">
It quickly became apparent that the Mexican defendants would
not willingly participate in the action or take any step towards furthering or
resolving the proceeding unless ordered to do so by the court. As a result, we were required to initiate or
threaten a number of useless interlocutory motions for, among other things, (a)
requiring the defendants to deliver their affidavits of documents; (b)
requiring the defendants to attend for discovery (in the end, it was much
quicker and cost-effective to examine the defendants in Mexico City rather than
to pay for the cost of their attendance in Ontario and wait for travel visas to
be issued). At the time, Citizenship and
Immigration Canada had just imposed a travel visa requirement on all Mexican
nationals; (c) requiring the defendants to deliver answers to the undertakings
given on their examinations for discovery; and (d) exempting the action from
mediation. <o:p></o:p></div>
<div class="FRHeading1">
Settling (Apparently) On The Eve Of Trial<o:p></o:p></div>
<div class="MsoNormal">
We set the matter down for trial and obtained a trial date. On the eve of trial, we heard from the trial
coordinator in Toronto. Her office had
overbooked trials and that there were no judges available to hear our
trial. We were on standby until
Wednesday of the trial week. Faced with
having to actually purchase plane tickets to come to Toronto for the trial, the
defendants became serious in their settlement negotiations. The trial coordinator further delayed the
start of the trial advising that the matter would need to be put over from spring to
the fall of that year. Our client,
wanting to end the matter instructed us to accept the last offer to settle that
the defendants had served. <o:p></o:p></div>
<div class="MsoNormal">
Once the action had been settled, it became abundantly clear
that the Mexican defendants had no intention of paying any part of the
settlement amount, just as they had originally no intention of paying my client
the amount owed under the contract. The
opposing lawyer attempted to reassure me that my client's rights were protected
because the terms of the settlement which provided that my client could obtain
consent judgment for a much higher amount if the defendants defaulted in paying
any part of the settlement. Eventually
communication with the other lawyer ceased.
We were required to bring a motion to enforce the terms of the
settlement. <o:p></o:p></div>
<div class="FRHeading1">
Appealing From An Unopposed Judgment<o:p></o:p></div>
<div class="MsoNormal">
We scheduled a motion for judgment based on the accepted
offer to settle, which the Mexican defendants did not oppose. <o:p></o:p></div>
<div class="MsoNormal">
Three weeks later, the defendants' lawyers served their
clients' notice of appeal from the unopposed judgment. Because the defendants had not opposed the motion
for judgment, it was beyond me as to what their grounds for appeal might be. <o:p></o:p></div>
<div class="MsoNormal">
We received a notice of change of lawyer in the appeal
proceedings. However, just before the
holiday season that year, the new lawyers for the defendants served a notice abandoning
the appeal.<o:p></o:p></div>
<div class="MsoNormal">
Once the appeal had been abandoned we set about, again,
speaking with Mexican lawyers to understand the procedure involved in having
the judgment recognized and enforced against the defendants in Mexico. As we were in the midst of doing so, we were
contacted by a third Ontario law firm advising that they had been retained by
the defendants to bring a motion to set aside or vary the judgment on the
grounds that it had been obtained by mistake.
<o:p></o:p></div>
<div class="MsoNormal">
Not surprisingly, our client was losing its resolve. The defendants had put up numerous road
blocks to prevent our client from seeing a penny of the amount it was owed. Our client was willing to substantially compromise
its judgment in order to move on with its business. We began negotiating settlement with this
third firm of lawyers. But in the end, the
defendants' threat to move to amend or vary the judgment simply faded
away. <o:p></o:p></div>
<div class="FRHeading1">
Enforcing The Judgment – Part 1 – Obtaining "Novel"
Letters Of Request<o:p></o:p></div>
<div class="MsoNormal">
The client's Mexican lawyers told us something that had
become obvious – the Mexican legal system was very formalistic and rigid in its
requirements, particularly when it dealt with any parties or procedures outside
of Mexico.<o:p></o:p></div>
<div class="MsoNormal">
<b>Homologación<o:p></o:p></b></div>
<div class="MsoNormal">
The process involved for recognizing and enforcing a foreign
judgment in Mexico is called "<i>h</i><i><span lang="ES-MX">omologación"</span></i>. It is a procedure that involves both local
and federal rules of procedure. This
happens within a Mexican civil law system that relies heavily on strict and
full compliance with all formalities. We
were told at this late stage that it would have been wise to have considered
all requirements and formalities for <i><span lang="ES-MX">homologación</span></i><span lang="ES-MX"> </span>before we commenced the proceedings in
Ontario to make sure that all requirements and formalities would be strictly
complied with. (See Lesson 1)<o:p></o:p></div>
<div class="MsoNormal">
<b>Lesson Number 7<o:p></o:p></b></div>
<div class="MsoNormal">
<b>Obtain letters of
request in Ontario which ask the Mexican court to recognize and enforce the
judgment. The letters of request should stress
the principle of comity. Under the FCCP
Mexican courts will not enforce a foreign judgment if it is proven that the
issuing court would not enforce a Mexican judgment under similar
circumstances. It is advisable that all
letters of request include a short statement acknowledging that "under
similar circumstances, this court would recognize and enforce a judgment coming
from the requested court".</b><span style="font-size: 14.0pt;"> </span><o:p></o:p></div>
<div class="MsoNormal">
The first such formality was that we were required to obtain
from the Ontario court, a letter of request, signed by both a judge and the
registrar of the Ontario court asking the Mexican court to recognize and enforce
the judgment. <o:p></o:p></div>
<div class="MsoNormal">
We could find only one Canadian case in British Columbia, <i>First Majestic Silver Corp.<a href="file:///K:/bbowen/WPData/BWMB/Articles/ARTICLE%20-%20Mexico%20-%20Living%20in%20Spendid%20Isolation.docx#_ftn3" name="_ftnref3" title=""><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><b><span style="font-family: "Times New Roman",serif; font-size: 12.0pt; mso-ansi-language: EN-CA; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;">[3]</span></b></span><!--[endif]--></span></a></i>,
in which such a request had been granted. The plaintiff in that case was seeking to
enforce a British Columbia judgment, in you guessed it, Mexico. In that case, the court held that Canada's
Superior Courts possess an inherent jurisdiction to request international
judicial assistance to enforce a domestic judgment. The case also suggested that the Mexican
court's requirement that the Ontario court must request its assistance before
it will take steps to recognize and enforce the judgment could be fulfilled on
the basis of comity. Under the common
law, Ontario regularly enforced judgments from Mexico by way of an action on
the judgment. The principles of "comity,
order and fairness" dictated an expectation that judgments of Ontario
would be recognized and enforced by the Mexican courts. <o:p></o:p></div>
<div class="MsoNormal">
I made a motion before a judge of the Superior Court of
Justice and asked her to sign letters of request that I had drafted. She refused to do so. The judge told me that she had never signed
such a document and indicated that she would "feel better" if we obtained
an affidavit from a Mexican lawyer setting out the requirements of the Mexican
court. Accordingly, we drafted a short
affidavit for our client's Mexican lawyer to sign and went back to court. <o:p></o:p></div>
<div class="MsoNormal">
My second court appearance took place on the Friday before
the Victoria Day holiday long weekend. I
attended before another judge of the Ontario Superior Court of Justice. Our motion was unopposed. Having read my factum, the judge advised at
the opening of court that he would hear my matter last. Late in the afternoon, after all of the other
motions had been dealt with, the judge told me that he did not oppose, in
principle, the relief that I was seeking but had some difficulties with the
language of the draft letter of request that gave the Mexican court the power
to, among other things, fine and arrest the judgment debtors. He told me that he would be "<i>more comfortable</i>" with language
that reflected the enforcement powers contained in Ontario's <i>Rules of Civil Procedure</i>. He asked me to revise the draft letter of
request and email it to him for approval before I appeared before him
again. Approximately one week later, after
appearing before the judge in chambers, and explaining the changes made to the
draft letter, I received the signed order and letter of request. This I considered to be a small victory. <o:p></o:p></div>
<div class="FRHeading1">
Enforcing The Judgment In Mexico – Part 2 – Doing Justice
Very Formally<o:p></o:p></div>
<div class="MsoNormal">
The Mexican lawyers intended to take the letters of request
to the Mexican court to initiate proceedings to enforce the Ontario
judgment. In order to do so, we needed to
send them an original or certified copy of the contract on which the action was
based, an original or certified copy of the judgment, the letter of request and
a power of attorney from our clients. We
also were advised that all documents should be authenticated, translated into
Spanish, and legalized by the Mexican consulate in Toronto and then sent to
them in Mexico City. <o:p></o:p></div>
<div class="MsoNormal">
We then sent the notarial copies of the documents to Global
Affairs Canada and asked them to authenticate them. We received the authenticated documents back from
Global Affairs Canada within a couple of weeks.
We then sent all documents to the Mexican lawyers for the necessary
translation and submission to the court in Mexico. <o:p></o:p></div>
<div class="MsoNormal">
The Mexican lawyers arranged to have the document translated
into Spanish. In addition, they made
inquiries of the Office of Public Records in Mexico City to ascertain the
status of the real properties owned by the defendants. Once they had done so, and received the translated
documents they were ready to file. By
that time, the courts in Mexico were on the November 1<sup>st</sup> "Dia
de Muertos" (day of the dead) break and nothing was functioning. <o:p></o:p></div>
<div class="MsoNormal">
The Mexican court acknowledged receipt of the client's
documents in or about the middle of November.
The next step would be to serve the judgment debtors. We were advised the service might take a few
days to a week after which the defendants would have 9 working days to present
evidence, pleas and arguments as to why the judgment should not be recognized
and enforced in Mexico. The Mexican
lawyers advised that the main defence to recognizing and enforcing a foreign
judgment was to argue that the judgment was not final but Mexican judgment
debtors would use every available defence to avoid execution on the judgment as
a delay tactic. <o:p></o:p></div>
<div class="MsoNormal">
<b>Lesson Number 8<o:p></o:p></b></div>
<div class="MsoNormal">
<b>Ensure that letters
of request include a statement that the judgment is final and <i>res judicata</i>. The FCCP requires that the judgment to be
enforced is final and <i>res judicata</i> in
the sense that there is no legal recourse pending or available to the defendant
in Ontario. It is advisable that a
statement to that effect is contained in the letters of request. </b><o:p></o:p></div>
<div class="MsoNormal">
After a few weeks of waiting, the Mexican lawyers advised
that the defendants had not yet delivered a defence because they had not been
notified of the judgment. Apparently the
judge who was reviewing the documents could not determine whether the judgment
emanated from an action involving real property or a personal action involving
a payment of money. The Mexican lawyers
also advised "<i>surprisingly and
absurdly, the judge also requests us to demonstrate that the judgment presented
before him is firm and res judicata</i>".
They advised that they were appealing this decision because the letters of
request clearly stated the judgment was <i>res
judicata</i>. <o:p></o:p></div>
<div class="MsoNormal">
The matter was then presented to an appeal judge of the
Mexican court who advised that he had to study and analyze the matter before
issuing a ruling. The Mexican lawyer
advised us, "<i>please let me remind
you that Mexican justice is not swift at all, quite the opposite</i>". He advised that the matter would not be
wrapped up before the end of the year and then the courts would be on their
year-end break for the holidays and the new year. <o:p></o:p></div>
<div class="MsoNormal">
<b>Lesson Number 9<o:p></o:p></b></div>
<div class="MsoNormal">
<b>Ensure that the
letter of request specifies that the judgment was a result of an action <i>in personam</i> and not an action <i>in rem</i>. </b><span style="font-size: 14.0pt;"> </span><o:p></o:p></div>
<div class="MsoNormal">
By the end of January, the client's Mexican lawyers had
still not heard from the appeals judge.
Finally, at the end of February, we received an answer but it was not
one that we expected or desired. The
judge who had reviewed the materials, ruled that he could not accept the claim
because the materials had not demonstrated that the Ontario judgment was final
and the materials that were submitted to him did not show that they were in
respect of personal rights rather than rights <i>in rem</i>. When the client's
Mexican lawyers submitted the appeal, they argued that the letters rogatory
stated quite clearly that the judgment was final and was in respect of a
contract between parties as opposed to real property situated in Ontario. <o:p></o:p></div>
<div class="MsoNormal">
The appeal judge upheld the ruling of the lower court and
added that all documents would have to be sent back to Toronto to be
"legalized" by the Mexican consulate.
<o:p></o:p></div>
<div class="MsoNormal">
<b>Lesson Number 10<o:p></o:p></b></div>
<div class="MsoNormal">
<b>Be patient. This is perhaps the most important lesson.</b>
<o:p></o:p></div>
<div class="MsoNormal">
The Mexican lawyers apologized to us saying that the delay
was due to circumstances beyond their control and as a result of the
"peculiar ways" of the Mexican judicial system. They presented two options:<o:p></o:p></div>
<div class="FRGenIndL1">
<!--[if !supportLists]-->1.<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal;">
</span><!--[endif]-->To appeal to an even higher court in Mexico and ask for
both decisions to be overturned. That
outcome was uncertain and could take a few months with no guarantee of it going
our client's way; or<o:p></o:p></div>
<div class="FRGenIndL1">
<!--[if !supportLists]-->2.<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal;">
</span><!--[endif]-->To file the documents afresh. The Mexican lawyers indicated that that was
the best way to proceed. The client
agreed.<o:p></o:p></div>
<div class="MsoNormal">
Accordingly, we sent the original contract between our
client and the Mexican promoter to the Mexican lawyers to translate into
Spanish to present to the judge to show that the judgment originated from an
action <i>in personam</i> as opposed to an action <i>in rem</i>. In addition, the
Mexican lawyers sent back all of the original documents that they had presented
to the Mexican court so that we could take them to the Mexican consulate in
Toronto to have them legalized. (See
Lesson 3) <o:p></o:p></div>
<div class="MsoNormal">
Once the documents had been duly stamped by the Mexican
Consulate, we sent them back to the Mexican lawyers. The defendants presented the documents to the
Mexican judge. This time, the judge
could not determine whether the judgment had emanated from a civil action or an
arbitration, thus necessitating an appearance before him of the Mexican lawyers
to explain. Finally, at the end of
August, the Mexican lawyers advised that the Mexican defendants had been served
with the enforcement documents. That
gave them 9 working days to file their answer with the court. A month later, when updating us as to the status
of the proceeding, the Mexican lawyer commented, "as you might be aware by
now, legal proceedings in Mexico tend to be slow and complicated". He then advised that they had been first
informed unofficially and then officially, that the judge in charge of the case
had declined jurisdiction on the grounds that the case was the matter of a
local court and not of a federal court.
Accordingly, he intended to send our client's file to a local court,
i.e. with jurisdiction in Mexico City only.
The Mexican lawyers advised that they strongly disagreed with that view
and were already preparing an appeal to keep the matter in Mexican Federal
Court. <o:p></o:p></div>
<div class="MsoNormal">
The Mexican lawyers scheduled an appeal before a judge of the
Federal Court. On the date of the
appointment, they were told the judge was not available. As a result, they left their written argument
with the judge's administrative assistant.
They were advised that the matter would go to "study and
resolution" but they were not advised how long it would take. <o:p></o:p></div>
<div class="MsoNormal">
Recently a Mexican appeal court ruled that our client's
enforcement proceedings should be dealt with by the local court in Mexico City
rather than by the Mexican Federal Court.
Although the client's Mexican lawyers disagreed with the ruling, in
order to save time and expense, they conceded that the matter should be dealt
with locally. It was now a matter for
the Federal Court to transfer the complete file to the Mexico City court, which,
we were told, would take some time. <o:p></o:p></div>
<div class="MsoNormal">
<b>Summary Of Lessons
Learned<o:p></o:p></b></div>
<div class="MsoNormal">
<b>Lesson Number 1 - </b>Before
commencing proceedings in Ontario against Mexican defendants, obtain advice
from Mexican lawyers describing in detail the process involved for recognizing
and enforcing an Ontario judgment in Mexico and the defences that may be raised
by Mexican defendants in resisting recognition and enforcement. <span style="font-size: 14.0pt;"><o:p></o:p></span></div>
<div class="MsoNormal">
<b>Lesson Number 2 - </b>Mexican
courts require foreign court and other inbound documents to be certified or
authenticated. This generally means
having all documents originally signed by the issuing authority, i.e. judge,
clerk or other authority, and certifying or attesting that the documents are
true and correct copies of the originals.<span style="font-size: 14.0pt;"> </span><o:p></o:p></div>
<div class="MsoNormal">
<b>Lesson Number 3 - </b>Once
authenticated, Mexican courts require that all inbound documents be
"legalized". The process of
legalization can be done by obtaining another document from the Mexican
Consulate in Ontario called an "a<i>postille</i>"
which will be attached to the documents in question. The apostille gives Ontario documents full
binding effect in Mexico. <span style="font-size: 14.0pt;"> </span><o:p></o:p></div>
<div class="MsoNormal">
<b>Lesson Number 4 - </b>Utilize
the services of Global Affairs Canada where possible. Global Affairs Canada is the federal
government agency that manages Canada's diplomatic and consular relations. It offers to authenticate a variety of
documents so that they will be accepted for use abroad. <o:p></o:p></div>
<div class="MsoNormal">
<b>Lesson Number 5 - </b>Ensure
that all documents are translated by a certified translator. According to Mexico's Federal Code of Civil
Procedure ("FCCP"), all documents pertaining to an action in Mexico
must be translated into Spanish. I
recommend that the translation work is performed by a certified translator
appointed by the court where you intend to enforce the judgment and that such
work is monitored by legal counsel in Mexico.<span style="font-size: 14.0pt;"> </span><o:p></o:p></div>
<div class="MsoNormal">
<b>Lesson Number 6 - </b>Follow
all instructions from Mexican courts completely, even the instructions that
appear to be arbitrary.<span style="font-size: 14.0pt;"> </span><o:p></o:p></div>
<div class="MsoNormal">
<b>Lesson Number 7 - </b>Obtain
letters of request in Ontario which ask the Mexican court to recognize and enforce
the judgment. The letters of request
should stress the principle of comity.
Under the FCCP Mexican courts will not enforce a foreign judgment if it
is proven that the issuing court would not enforce a Mexican judgment under
similar circumstances. It is advisable
that all letters of request include a short statement acknowledging that
"under similar circumstances, this court would recognize and enforce a
judgment coming from the requested court".<span style="font-size: 14.0pt;"> </span><o:p></o:p></div>
<div class="MsoNormal">
<b>Lesson Number 8 - </b>Ensure
that letters of request include a statement that the judgment is final and <i>res judicata</i>. The FCCP requires that the judgment to be
enforced is final and <i>res judicata</i> in
the sense that there is no legal recourse pending or available to the defendant
in Ontario. It is advisable that a
statement to that effect is contained in the letters of request. <o:p></o:p></div>
<div class="MsoNormal">
<b>Lesson Number 9 - </b>Ensure
that the letter of request specifies that the judgment was a result of an
action <i>in</i> <i>personam</i> and not an action <i>in
rem</i>. <span style="font-size: 14.0pt;"> </span><o:p></o:p></div>
<div class="MsoNormal">
<b>Lesson Number 10 - </b>Be
patient. This is perhaps the most
important lesson. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Blair Bowen<br />
Fogler, Rubinoff LLP, Toronto<br />
<a href="mailto:bbowen@foglers.com">bbowen@foglers.com</a><o:p></o:p></div>
<br />
<div>
<!--[if !supportFootnotes]--><br clear="all" />
<hr align="left" size="1" width="33%" />
<!--[endif]-->
<div id="ftn1">
<div class="MsoFootnoteText">
<a href="file:///K:/bbowen/WPData/BWMB/Articles/ARTICLE%20-%20Mexico%20-%20Living%20in%20Spendid%20Isolation.docx#_ftnref1" name="_ftn1" title=""><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span style="font-family: "Times New Roman",serif; font-size: 10.0pt; mso-ansi-language: EN-CA; mso-bidi-font-family: "Courier New"; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;">[1]</span></span><!--[endif]--></span></a>
<i>[1990] 3 SCR 1077 <o:p></o:p></i></div>
<div class="MsoFootnoteText">
<br /></div>
</div>
<div id="ftn2">
<div class="MsoFootnoteText">
<a href="file:///K:/bbowen/WPData/BWMB/Articles/ARTICLE%20-%20Mexico%20-%20Living%20in%20Spendid%20Isolation.docx#_ftnref2" name="_ftn2" title=""><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span style="font-family: "Times New Roman",serif; font-size: 10.0pt; mso-ansi-language: EN-CA; mso-bidi-font-family: "Courier New"; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;">[2]</span></span><!--[endif]--></span></a>
This saga began in 2008. It is not yet complete.<o:p></o:p></div>
</div>
<div id="ftn3">
<div class="MsoFootnoteText">
<a href="file:///K:/bbowen/WPData/BWMB/Articles/ARTICLE%20-%20Mexico%20-%20Living%20in%20Spendid%20Isolation.docx#_ftnref3" name="_ftn3" title=""><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span style="font-family: "Times New Roman",serif; font-size: 10.0pt; mso-ansi-language: EN-CA; mso-bidi-font-family: "Courier New"; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;">[3]</span></span><!--[endif]--></span></a>
<i>2015 BCSC1517</i><o:p></o:p></div>
</div>
</div>
Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-9991640520621418422018-02-02T13:16:00.000-08:002018-02-02T13:18:01.096-08:00SCC Provides Guidance On When Costs Should Be Awarded Against Lawyers Personally<div class="MsoNormal">
In a decision that was unsettling to many lawyers – <i>Quebec (DCPP) v. Jodoin [2017]
1 SCR 478</i> – the Supreme Court of Canada upheld a lower court’s decision to
award costs against a lawyer personally in a criminal proceeding. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In April 2013, a criminal lawyer Jodoin, was representing ten clients charged with impaired driving, and other
charges. There were twelve cases and they were jointly scheduled for a hearing
in the Court of Quebec on a motion for disclosure of evidence. On the morning of the
hearing, Jodoin had the office of the Superior Court stamp a series of motions
for writs of prohibition in which he challenged the jurisdiction of the judge
who was to preside over the hearing, alleging bias on the judge’s part.
As an experienced criminal lawyer, Jodoin knew that the filing
of such motions would result in the immediate postponement of the hearing until the
Superior Court had ruled on them.</div>
<div class="MsoNormal">
<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
However, the same morning before the motions were served,
the parties learned that another judge would be presiding over the hearing
instead. As the hearing began, the Crown stated that it would call an
expert witness. Jodoin objected on the ground that he had not received
the notice required under the <i>Criminal Code</i> and requested an
adjournment. Instead, the judge heard the parties on the issue and
decided to authorize an examination of the expert after the lunch break.
During the break, Jodoin chose instead to prepare a new series of motions
for writs of prohibition, this time challenging the second judge’s jurisdiction
and again alleging bias on the part of the judge. After service of the
motions, the judge had no choice but to suspend the hearing. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Crown attorney believing that the sole purpose of the
motions was to obtain an adjournment, objected, and told Jodoin that he
intended to seek an award of costs against him personally for delay and abuse
of process. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In the Superior Court, a judge found that Jodoin's motions were
unfounded and frivolous in that they were of questionable legal value for an
experienced lawyer such as Jodoin. On the issue of costs against Jodoin
personally, he concluded that Jodoin’s conduct satisfied the applicable criteria
and ordered that he pay costs of $3,000 or $250 per case. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Court of Appeal affirmed the Superior Courts judgment on
the dispositions of the motions but allowed Jodoin’s appeal to set aside the
award of costs against him personally. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Supreme Court of Canada (on a 7 – 2 majority) allowed
the Crown’s appeal and restored the award of costs against Jodoin. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The majority decision was delivered by Justice Gascon.
The majority found that the courts have the power to maintain respect for their
authority. A court has an inherent power to control abuse and to prevent
the use of procedure in a way that would be manifestly unfair to a party to the
litigation before it would bring the administration of justice into
disrepute. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The awarding of costs against lawyers personally flows from
the right and the duty of the courts to supervise the conduct of the lawyers
who appear before them and sometimes penalize conduct of such a nature as to
frustrate or interfere with the administration of justice. This power can
be exercised in criminal cases, which means it can be exercised against defence
lawyers. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The threshold for exercising the court’s discretion to award
costs against a lawyer personally is high. It can be justified only in
exceptional circumstances where the lawyer’s acts have seriously undermined the
authority of the courts or seriously interfered with the administration of
justice. This high threshold is met where the court has before it an
unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious
abuse of the judicial system by the lawyer or dishonest or malicious conduct on
the lawyer’s part that is deliberate. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
There are two important “guideposts” that apply to the
exercise of this discretion. The first relates to the specific context of
criminal proceedings. The courts must show a certain flexibility towards
the actions of defence lawyers, whose role is not comparable in every respect
to that of a lawyer in a civil case. Costs against a lawyer personally
must not be to discourage the lawyer from defending his or her client’s rights
or interest and the client’s right to make a full answer in defence.
Secondly, the guidepost requires a court to confine itself to the facts of the
case and to refrain from indirectly putting the lawyer's disciplinary record or
his or her career on trial. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Before imposing the sanction, the lawyer must be given prior
notice of the allegations against him and the possible consequences. The
lawyer should have an opportunity to make separate submissions on the issue and
to adduce an relevant evidence. The applicable standard of proof is the
balance of probabilities. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In this case, the majority found that the circumstances were
exceptional. It found that Jodoin’s conduct was “particularly reprehensible”.
His conduct was motivated by a desire to have the hearing postponed rather than
by a sincere belief that the judges targeted by his motions were hostile.
He thus used the motions for a purely dilatory purpose with the sole objective
of obstructing the orderly conduct of the judicial process in a calculated
manner. It was therefore reasonable for the court to conclude that
he acted in bad faith and in a way that amounted to an abuse of process thereby
seriously interfering with the administration of justice. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Two justices (Justices Abella and Côté) dissented. They
held that costs awards against a lawyer personally are exceptional and, in
particular in the criminal context, such orders could have a chilling effect on
criminal defence counsel’s ability to properly defend their client.
Accordingly, they should be only issued in the most exceptional circumstances
and the Crown should be very hesitant about pursuing them. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The dissenting judges held that in this case, it appears
that Jodoin’s conduct was not unique and that he was being punished as a
warning to other lawyers engaged in similar tactics. The desire to make
an example of his behaviour does not justify straying from the legal
requirement that his conduct should be rare and exceptional before costs are
awarded against him personally. In addition, it was arguable that this
tactic of trying to delay the hearing to obtain more time to cross-examine the
expert, was a strategic one. The Crown had not provided Jodoin with the requisite
notice for the expert report and the presiding judge only granted him a brief
one over the lunch break and mistakenly said that Jodoin had already
cross-examined the Crown’s expert when that was not the case. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Given the facts emphasized by the dissenting judges, it is apparent that criminal defence lawyers will now need to take a hard look at the perceived bona fides of strategies they may use to assist them to prepare their clients' cases.</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Regards,</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Blair</div>
<br />
<div class="MsoNormal">
<br /></div>
Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-88532037989728581542018-01-30T13:34:00.001-08:002018-01-30T13:34:03.170-08:00Top Court Orders Transportation Agency to Consider Obese Passenger Complaint<div class="MsoNormal">
Delta Airlines Inc. v. Gábor Lukács (2018 SCC 2) This decision of the Supreme Court of Canada was released on January 19, 2018.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Dr. Gábor Lukács filed a complaint with the Canadian
Transportation Agency (“<b>Agency</b>”) alleging that Delta Airlines Inc. (“<b>Delta</b>”) had applied discriminatory practices governing the carriage of obese persons.
The Agency dismissed the complaint on the basis that Dr. Lukács failed to meet
the tests for private interest standing and public interest standing as
developed by and for courts of civil jurisdiction. The question was whether the Agency’s decision was reasonable. Chief Justice McLachlin
(Justices Wagner, Gascon, Cote, Brown and Rowe, concurring) concluded that it
was not and remitted the matter to the Agency to reconsider whether to hear the
complaint. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<b>Facts<o:p></o:p></b></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Dr. Lukács’ complaint alleged discrimination on behalf of
Delta’s obese passengers with respect to the air transportation
regulations. In support of his complaint, he attached an email from Delta
in response to a passenger's negative experience of sitting next to another
passenger who “required additional space”. In the email Delta apologized
and explained: “<i>Sometimes we ask the passenger to move to a location
in the plane where there is more space. If the flight is full we may ask
the passenger to take a later flight. We recommend that large passengers
purchase additional seats so they can avoid being asked to rebook and so we can
guarantee comfort for all.</i>” <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
On September 5, 2014, the Agency issued a letter decision in
response to the complaint. It stated: “<i>It is not clear to the
Agency that on the basis of his position, Dr. Lukács has an interest in
Delta’s practices governing the carriage of obese persons. As such, his
standing in this matter is in question.</i>” The Agency called for submissions
on the standing question.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In its ultimate decision, the Agency denied Dr. Lukács’
standing and dismissed the complaint. It applied the tests for private
interest standing and public interest standing as they have been developed by
and for civil courts. It found Dr. Lukács lacked private interest
standing because he was not himself obese and so could not claim to be “<i>aggrieved</i>”
or “a<i>ffected</i>” or have some other “<i>sufficient interest</i>”. It
then determined that he lacked public interest standing because his complaint
did not challenge the constitutionality of legislation or the illegal exercise
of administrative authority. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Federal Court of Appeal allowed Dr. Lukács’
appeal. It held that a strict application of the law of standing as
applied in the courts was inconsistent with the Agency’s enabling
legislation. Moreover, it was contrary to the Agency’s objective to
refuse to examine a complaint based solely on whether a complainant had been
directly affected or had public interest standing. The Federal Court of
Appeal directed the matter be returned to the Agency to determine otherwise
than on the basis of standing. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Supreme Court of Canada held as
follows.</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The standard of review to be
applied in this case is reasonableness. Where an administrative body
interprets its own statute and is required to exercise discretion under it, it
is presumptively entitled to deference. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
However, in this case the Agency
did not reasonably exercise its discretion to dismiss Dr. Lukács’ complaint.
A decision is reasonable if it is justifiable, transparent, and
intelligible and falls within a range of possible, acceptable outcomes.
The Agency’s decision that Dr. Lukács lacked standing does not satisfy these
requirements for two reasons:<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal; text-indent: -0.25in;"> </span></div>
<div class="MsoNormal">
<span style="text-indent: -0.25in;"><br /></span></div>
<div class="MsoNormal">
<span style="text-indent: -0.25in;">First, the Agency presumed public
interest standing is available and then applied a test that can never be
met. Any valid complaint against an air carrier would impugn the terms
and conditions established by a private company. Such a complaint can
never, by its very nature, be a challenge to the constitutionality of
legislation or the illegality of administrative action. This is not what
parliament intended when they conferred a broad discretion on the Agency to
decide whether to hear complaints. The Agency did not maintain a flexible
approach to the question and in doing so unreasonably fettered its discretion.</span><span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal; text-indent: -0.25in;"> </span></div>
<div class="MsoNormal">
<span style="text-indent: -0.25in;"><br /></span></div>
<div class="MsoNormal">
<span style="text-indent: -0.25in;">Second, the total denial of public
interest standing is inconsistent with a reasonable interpretation of the
Agency’s legislative scheme. Applying the test for private and public
interest standing in the way the Agency did would preclude any public interest
or representative group from ever having standing before the agency regardless
of the content of its complaint. In effect, only a person who was in
herself targeted by the impugned policy could bring a complaint. This is
contrary to the scheme of the act. Parliament has granted the Agency
broad remedial authority and to allow the Agency to act to correct
discriminatory terms and conditions before passengers actually experience
harm. To refuse a complaint based solely on the identity bringing it
prevents the Agency from hearing potentially highly relevant complaints and
hinders it ability to fill the statutory schemes objective.</span><i style="text-indent: -0.25in;"> </i></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Justice Abella, writing for the dissenting judges (Justices
Moldaver and Karakatsanis) held that there was no basis for interfering because
the Agency’s mandate gave the Agency wide discretion in terms of power to
process and resolve complaints. The standing rules exist to enable a
court or tribunal to economize and prioritize its resources. Tribunals
are not required to follow the same procedures the courts use. Here the
decision to deny Dr. Lukács’ complaint was reasonable in the
circumstances. He brought a complaint on no underlying facts, no
representative claimants and no argument. His complaint was purely
theoretical and his interest in the issue was academic. Accordingly, the
proposed suit did not constitute an effective and reasonable means of bringing
the issue before the Agency. It was therefore unnecessary to remit the
matter back to the Agency. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Regards,</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Blair</div>
<br />
<div class="MsoNormal">
<br /></div>
Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-4889546801610036242018-01-05T09:14:00.000-08:002018-01-05T09:14:14.810-08:00Supreme Court of Canada Extends Human Rights Protection from Employment Discrimination to Co-Workers<div class="MsoNormal">
In <i>British Columbia Human Rights Tribunal v. Schrenk 2017
SCC62</i>, a majority of the Supreme Court of Canada found that the <i>British
Columbia Human Rights Code’s</i> (“<b>Code</b>”) prohibition against
discrimination “regarding employment” prohibits discrimination against
employees even where the discriminatory conduct was carried out by a co-worker
and not the employer. The court held that the Code applies whenever the
discrimination has a “sufficient nexus” with employment. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In this case the complainant Sheikhzadeh-Mashgoul (the
“<b>Complainant</b>”) filed a complaint with the British Columbia Human Rights
Tribunal (“<b>Tribunal</b>”) against the respondent Schrenk (the “<b>Respondent</b>”)
alleging employment discrimination based on religion, place of origin and
sexual orientation. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Complainant worked for an engineering company as a civil
engineer on a road improvement project. The engineering company had
certain supervisory powers over employees of a construction company, the
primary contractor on the project. The construction company employed the
Respondent as a site foreman and superintendent. When the Respondent made
racist and homophobic statements to the Complainant, he was initially removed
from the site but when the harassment continued, the construction company
terminated his employment. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Complainant immigrated to Canada from Iran and
identified as Muslim. When the Respondent learned of the Complainant’s
origin and religion he made jokes about being blown up by a suicide bomb,
called the Complainant a “fucking Muslim piece of shit”, and asked him whether
he was going to call his gay friend. After the Complainant complained
the Respondent persisted and shouted “go back to your mosque where you came
from”. Such behaviour resulted in the Respondent being removed from the
work site. However, subsequently he sent unsolicited emails to the
Complainant in which he made derogatory insinuations about his sexual
orientation. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Respondent brought an application to dismiss the
complaint in which he argued that his alleged conduct was not discrimination
“regarding employment” and was consequently beyond the jurisdiction of the
Tribunal. The Respondent’s argument was simple: he was not in a
position of economic authority over the Complainant. He was neither the
Complainant’s employer nor his superior in the workplace. His conduct,
however egregious, could not be considered discrimination “regarding
employment” within the meaning of the Code. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Tribunal held that it had jurisdiction to deal with the
complaint and denied the Respondent’s application to dismiss the complaint.
The British Columbia Supreme Court dismissed the Respondent’s application for
judicial review, but the Court of Appeal allowed his appeal and found that the
Tribunal had erred in law by concluding that it had jurisdiction over the
complaint. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
A 6 – 3 majority of the Supreme Court (Moldaver,
Karakatsanis, Wagner, Gascon, Rowe and Abella) disagreed with the Court of
Appeal and allowed the appeal (Justice Moldaver wrote the majority decision
with a separate concurring decision written by Justice Abella). Justices
McLachlin, Cote and Brown dissented. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The majority held as follows. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The case involved the interpretation of the meaning of the
words “employment” and “person” in the Code. Reading the Code in
line with the modern principle of statutory interpretation and the particular
rules that apply to the interpretation of human rights legislation the
prohibition against discrimination against employees prohibits discrimination
whenever that discrimination has a sufficient nexus with the employment context.
This may include discrimination by their co-workers even when those co-workers
have a different employer. The discrimination in the case had
sufficient nexus to the Complainant’s employment because the Respondent was
integral to the Complainant’s workplace, the impugned conduct had occurred in
the Complainant’s workplace and the Complainant’s work environment was
negatively affected. This contextual interpretation furthers the
purposes of the Code by recognizing how employee vulnerability stems not only
from economic subordination to their employers but also from being a captive
audience to other perpetrators of discrimination such as a harassing
co-worker. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In separate reasons, Justice Abella found that the analysis
requires that the meaning of employment discrimination be considered in a way
that is consistent with the Supreme Court’s well settled human rights
principles and not just the particular words of the Code. Applying these
principles leads to the conclusion that an employee is protected from
discrimination related to or associated with his or her employment, whether or
not he or she occupies a position of authority. As a result, the Tribunal
had jurisdiction to hear the complaint.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The dissenting three judges held that the prohibition against
workplace discrimination in the relevant section of the Code applied only to
employer-employee or similar relationships and authorized claims against those
responsible for ensuring that workplaces are free of discrimination. If
the section were interpreted to allow claims against anyone in the workplace
most of the next section which provides a separate protection against
discrimination by unions and associates would be redundant. The Code
required the Complainant to focus on the employer, i.e. the people responsible
for maintaining a discrimination free workplace. Where the employer fails
to intervene or prevent or correct discrimination the section is engaged.
<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<br />
<div class="MsoNormal">
Importantly in this case, the court expanded human rights
code protection against employment discrimination to encompass discrimination
outside of the confines of the traditional employer-employee relationship. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Regards,</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Blair</div>
Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-10616559013997207522017-12-19T11:50:00.000-08:002017-12-19T11:50:53.305-08:00Supreme Court of Canada Orders Estate Trustee to Exercise Discretion to Benefit Beneficiary<div class="MsoNormal">
The Supreme Court of Canada released its decision in <i>Cowper-Smith
v. Morgan, 2017 SCC 61</i>, on December 14, 2017 relating to siblings disputing the entitlement to
their mother’s estate. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
As early as 1992,
Elizabeth and Arthur Cowper-Smith of Victoria, BC, had made it clear that after
their deaths, their property would be divided equally among their three
children, Gloria, Max and Nathan. Shortly before he died in 1992, Arthur
explained such intention to his children to avoid family
discord. However, after their father’s death, the children became estranged
from each other. Gloria first fell out with Nathan. She wrote him
letters demanding that he not raise his voice in her mother’s home or entertain
“gay males”. When he went on an overseas trip, Gloria changed the locks
to the family home although Nathan’s belongings were still inside. He
broke in but Gloria had the police escort him out. Nathan eventually
moved to Edmonton.</div>
<div class="MsoNormal">
<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Gloria fell out with Max next. After his father’s
death, Max struggled with financial difficulties and his mental health
deteriorated. He turned to alcohol and drugs. His marriage fell
apart. Max moved to England. In 2005, Gloria made it clear to Max that their mother could no
longer live on her own. They began to discuss options for their mother’s
care. Max eventually agreed to give up his life in England and move back
to Victoria to care for their mother in the family home. He only did so
after Gloria agreed that Max would be reimbursed for various expenses, have the
use of their mother’s car and most importantly be able to live in the house
permanently and eventually acquire Gloria’s one-third interest in the house.
That arrangement worked until 2009, when Gloria began to back away from her
promises. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In 2001, when Gloria kicked Nathan out of the property, her
mother’s estate planning changed dramatically. Elizabeth transferred
title to the property and all of her investments into joint ownership with
Gloria. Pursuant to a “declaration of trust” Gloria would hold her
interest in the house and the investments as bare trustee with Elizabeth as the
sole beneficiary and Gloria would be entitled absolutely to both the property
and the investments upon her mother’s death. Elizabeth also executed a
new will which appointed Gloria as executor and revoked all previous
wills. Elizabeth revoked this will in 2002 and executed another
will, her last. In this last will, she again named Gloria as executor but
this time provided that her estate would be divided equally between her three
children. However, the trust declaration and Gloria’s joint ownership of
the property and the investments, if valid, would have assured that Elizabeth’s
estate would be virtually devoid of assets. Those things were not
changed. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Nathan discovered Gloria’s joint ownership of the house in
2005. Gloria assured him that the arrangement was to simplify the
administration of their mother’s estate and that he and Max would still each
receive a 1/3 share. She gave Max the same assurance 4 years later when
he learned that Gloria’s name was on title. Gloria changed her position
after their mother’s death when a trust declaration entitling Gloria to
Elizabeth’s assets came to light and Gloria announced her plans to
put the house, in which Max was still living, on the market.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Max and Nathan sought an order to set aside the trust declaration
as a product of Gloria’s undue influence over their mother and declaring that
Gloria held the property and the investments in trust for Elizabeth’s estate to
be divided equally between the three children in accordance with Elizabeth’s
most recent will. They also claimed on the basis of proprietary estoppel,
that Max was entitled to purchase Gloria’s one-third interest in the property.
The brothers succeeded at trial where the trial judge found that
Gloria had not rebutted the presumptions of undue influence and resulting
trust, and declared that the property belonged to Elizabeth’s estate. The
British Columbia Court of Appeal unanimous upheld the trial judge’s conclusion
with respect to undue influence and resulting trust, but split on proprietary estoppel.
The majority held that since Gloria owned no interest in the property at the
time that she made assurances to Max, proprietary estoppel could not arise.
Max appealed on the issue of proprietary estoppel. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Supreme Court of Canada allowed Max’s appeal. The
majority decision was written by Chief Justice McLachlin, in
one of her last decisions as Chief Justice of the Court, Justices Abella, Moldaver,
Karakatsanis, Wagner, Gascon and Rowe concurred. Justices Brown and Cote
wrote separate reasons, concurring in the result but dissenting with respect to
the remedy. The Court held that the trial judge did not err in concluding that
proprietary estoppel operates to enforce Gloria’s promise. Since ownership at
the time the representation or assurance was relied on is not a requirement of
proprietary estoppel, the fact that Gloria did not have an interest in the
property at the time Max relied on her promise did not negate Gloria’s
obligation to keep her promise. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
To establish propriety estoppel, the claimant must establish
three things: <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoListParagraph" style="mso-list: l0 level1 lfo1; text-indent: -.25in;">
<!--[if !supportLists]-->1.<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal;"> </span><!--[endif]-->a
representation or assurance that the claimant expects to enjoy some right or
benefit over property; <o:p></o:p></div>
<div class="MsoListParagraph" style="mso-list: l0 level1 lfo1; text-indent: -.25in;">
<!--[if !supportLists]-->2.<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal;"> </span><!--[endif]-->the
claimant must rely on that expectation by doing or refraining from doing
something and his reliance must be reasonable in all of the circumstances; and <o:p></o:p></div>
<div class="MsoListParagraph" style="mso-list: l0 level1 lfo1; text-indent: -.25in;">
<!--[if !supportLists]-->3.<span style="font-size: 7pt; font-stretch: normal; font-variant-numeric: normal; line-height: normal;"> </span><!--[endif]-->the
claimant must suffer a detriment as a result of his reasonable reliance such
that it would be unfair or unjust for the party who made the representation or
assurance to go back on her word and insist on her strict legal rights. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In such circumstances, proprietary estoppel attaches to the
interest that the claimant has in the property and protects the equity by
making the representation or assurance binding. It is not necessary that
the party responsible for the expectation own an interest in the property at
the time of the claimant’s reliance. When that party has or acquires
sufficient interest in the property, proprietary estoppel will attached to that
interest and protect the equity.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Whether a claimant’s reliance is reasonable in the
circumstances, is a question of mixed fact and law. A trial judge’s
determination of that point is, absent, palpable and overriding error, entitled
to deference. However, a claimant who establishes the need for
proprietary estoppel is entitled only to the minimum relief necessary to
satisfy the equity in his favour and cannot obtain more than he expected.
There must be a proportionality between the remedy and detriment. <o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<br />
<div class="MsoNormal">
The majority held that in this case, both Max and Gloria had
clearly understood for well over a decade that Elizabeth’s estate, including
the family home, would be divided equally between the three children upon her
death. It was thus sufficiently certain that Gloria would inherit a
one-third interest in the property for her assurance to be taken seriously as
one on which Max could rely. There was no basis on which to overturn the
trial judge’s conclusion that Max’s reliance was reasonable. An equity
arose in Max’s favour when he reasonably relied to his detriment on the
expectation that he would be able to acquire Gloria’s one-third interest in the
family home. That equity could not have been protected by proprietary
estoppel at the time it arose because Gloria did not own an interest in the
property. However, proprietary estoppel attached to Gloria’s interest as
soon as she obtained it from the estate. <br />
<br />
Gloria as executor could be
ordered to transfer a one third interest in the property to each of the estate
beneficiaries so that her promise to Max could be fulfilled. Such a
distribution of shares in the property was not contrary to Elizabeth’s
intent and the court had the power to direct Gloria to exercise her
discretion as executor in a certain manner. With respect to remedy, the minimum
necessary to satisfy the equity in Max’s favour was an order entitling him to
purchase Gloria’s interest in the family home at it fair market value as at the
approximate date on which he would reasonably have expected to do so in the
first place.<o:p></o:p><br />
<br />
Regards,<br />
<br />
Blair</div>
Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-17272067956639774402017-11-02T14:41:00.001-07:002017-11-02T14:41:53.262-07:00Court Of Appeal Vacates Its Security for Costs Order in Ecuadorian Litigation against Chevron
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">When I last reported on this case <i>Yaiguaje v. Chevron
Corporation 2017 ONCA 827</i>, less than a month ago, I reported that Justice
Gloria J. Epstein of the Ontario Court of Appeal had ordered that the
Ecuadorian plaintiffs post security for costs of more than $942,000 in order to continue
with an appeal from a summary judgment order dismissing their against Chevron
Canada. In a decision released on October 31, 2017, a three judge panel
of the Ontario Court of Appeal unanimously reversed Justice Epstein’s decision
and vacated her order. The panel (Justices
Hoy, Cronk and Hourigan) held that the unique factual circumstances of this
case compelled the conclusion that the interests of justice required that no
order for security for costs be made. Unlike their colleague, Justice
Epstein, the panel concluded that the motion for security for costs was simply
a tactical move made by Chevron to end the litigation. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">The panel agreed that under rules of civil procedure, the
court may make an order for security for costs where it is “just” to do
so. It held that the rule, as written, was permissive not mandatory
and that even where the requirements of the rule have been met, a motion judge
has discretion to refuse to make the order. The panel held that the
overarching principle to be applied in all of the circumstances is the justness
of the order sought. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Because Justice Epstein’s decision was discretionary, it
should be afforded deference. However, an error in principle is one of
the bases on which the court may interfere with a discretionary order. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">The panel held that in deciding motions for security for
costs, judges are obliged to first consider the specific provisions of the
rules governing such motions and then effectively take a step back and consider
the justness of the order sought in all the circumstances of the case, with the
interests of justice at the forefront. They held that Justice Epstein had
failed to take into account the second part of that analysis and that failure
constituted an error in principle. It therefore fell to the appeal panel
to conduct the necessary analysis of the justness of the order. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">In concluding that no order for security for costs should be
made in this case, the panel considered the following:</span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<ol style="direction: ltr; list-style-type: lower-alpha;">
<li style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal;"><div style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal; margin-bottom: 0pt; margin-top: 0in; mso-list: l0 level1 lfo1;">
the Ecuadorian plaintiffs were seeking to
enforce a judgment in which they have no direct economic interest. Funds
collected on the judgment will be paid into a trust and net funds are to be
used for environmental rehabilitation or health care purposes in Ecuador.
In essence, this is public interest litigation; </div>
</li>
<li style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal;"><div style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal; margin-bottom: 0pt; margin-top: 0in; mso-list: l0 level1 lfo1;">
although there is no direct evidence of
impecuniosity before Justice Epstein, the panel held that it would be highly
impractical to obtain this evidence from the representative plaintiffs, let
alone the 30,000 people who would indirectly benefit from the enforcement of
the judgment. The court found “there can be no doubt that the
environmental devastation to the appellants’ lands has severely hampered their
ability to earn a livelihood” and that if they accept the findings that underlie
the Ecuadorian judgment, Texaco Inc. contributed to the appellants’ misfortune;</div>
</li>
<li style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal;"><div style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal; margin-bottom: 0pt; margin-top: 0in; mso-list: l0 level1 lfo1;">
in contrast, Chevron Corporation and Chevron
Canada have annual gross revenues in the billions of dollars. It is
difficult to believe that either of these two corporations require protection
for costs awards that could amount to a miniscule fraction of their annual
revenues;</div>
</li>
<li style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal;"><div style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal; margin-bottom: 0pt; margin-top: 0in; mso-list: l0 level1 lfo1;">
there should be no bright line rule that a
litigant must establish that litigation funding is unavailable to successfully
resist a motion in an appeal for security for costs. In this case counsel
for the appellants advised the court that he was operating under a contingency
arrangement and there was evidence that Chevron Corporation has sued some of
the appellants’ former third party funders and the funders withdrew their
financial support;</div>
</li>
<li style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal;"><div style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal; margin-bottom: 0pt; margin-top: 0in; mso-list: l0 level1 lfo1;">
it can’t be said that this case is wholly devoid
of merit;</div>
</li>
<li style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal;"><div style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal; margin-bottom: 0pt; margin-top: 0in; mso-list: l0 level1 lfo1;">
there is no doubt the legal arguments asserted
by the appellants are innovative and untested but that does not foreclose the
possibility that one or more of them may eventually prevail; and</div>
</li>
<li style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal;"><div style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal; margin-bottom: 0pt; margin-top: 0in; mso-list: l0 level1 lfo1;">
the history of the litigation which has been
ongoing for almost 25 years makes it clear that Chevron has and will employ all
available means to resist enforcement of the judgment. This reality makes
it difficult to accept that the motion for security for costs is anything more
than a measure intended to bring an end to the litigation. </div>
<div style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal; margin-bottom: 0pt; margin-top: 0in;">
</div>
<div style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal; margin-bottom: 0pt; margin-top: 0in;">
For all of those reasons, the court set aside Justice
Epstein’s order and denied Chevron’s motion to require the Ecuadorian
plaintiffs to post security for costs on the appeal. </div>
</li>
</ol>
<div style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal; margin-bottom: 0pt; margin-top: 0in;">
<br /></div>
<div style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal; margin-bottom: 0pt; margin-top: 0in;">
Regards,</div>
<div style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal; margin-bottom: 0pt; margin-top: 0in;">
<br /></div>
<div style="color: black; font-family: "Calibri",sans-serif; font-size: 11pt; font-style: normal; font-weight: normal; margin-bottom: 0pt; margin-top: 0in;">
Blair</div>
Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com0tag:blogger.com,1999:blog-6942122614735946173.post-15836966714404457292017-11-01T09:37:00.001-07:002017-11-01T09:37:19.749-07:00UK Court Says Dishonesty Not An Essential Element of Cheating
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">In a judgment given on October 25, 2017, five justices of
the Supreme Court of the United Kingdom held unanimously that dishonesty was
not an essential element of the civil tort of cheating. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">In <i>Ivey v. Genting Casinos (UK) Ltd t/a
Crockfords [2016] UKSC 67</i>, the Supreme Court upheld the decision of Mr.
Justice Mitting of the Queen’s Bench Division of the High Court of
Justice. Lord Hughes wrote the decision for the court (Lord Neuberger,
Lady Hale, Lord Kerr and Lord Thomas all agreed). </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">The facts giving rise to this case are
unique. The claimant is Phillip Ivey, an American professional
gambler. Mr. Ivey widely acknowledged to be one of the world’s best poker
players. He also plays blackjack, craps, roulette and baccarat. At
issue in this case is a variant of baccarat known as Punto Banco. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<b><span style="font-family: Calibri;">How to Play Punto Banco</span></b></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">The facts of this case are not in dispute. Punto Banco is not a game of skill. It is played with
eight decks of cards, 416 cards in total, which are dealt from a shoe - face
down by a croupier. The croupier deals cards in a sequence from which no
deviation is permitted to two positions on the table in front of her marked
“player” (the Punto) and “banker” (the Banco), hence the name of the
game. The croupier deals one card to player, one to banker; a second card
to player and a second to banker. In some circumstances, she must deal
one further card either to player or to banker or to both. The basic object
of the game is to achieve, on one of the two positions, a combination of two or
three cards which when added together is nearer to nine in total than the
combination on the other position. Aces to nine count at face value, ten
to king inclusive count as zero. Any pair or trio of cards adding up to
more than ten, requires ten to be deducted before the total count, thus four
plus five equals nine but six plus five (which equals eleven) equals only one
in the game. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">The gambler (or "punter" as they are known in the UK) bets
before any card is dealt and can bet on player or banker. It is possible
to bet on a tie. The house edge in Punto Banco is 1.24% if player wins
and 1.06% if banker wins.</span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Before play begins, the cards are cut to eliminate a proportion
of the shoe from those to be played. Traditionally, seven cards out of the
416 in the shoe were cut, but some casinos routinely eliminate more.</span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<b><span style="font-family: Calibri;">Edge-Sorting</span></b></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">On August 20 and 21, 2012, Mr. Ivey played fifteen shoes of
Punto Banco at Crockfords Club in London. He was aided by another
professional gambler, Cheung Yin Sun (“Ms. Sun”). Mr. Ivey won just over ₤7.7
million. There is no dispute that he used a technique known as
edge-sorting to achieve that win. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">A deck of playing cards is manufactured in order to
present a uniform appearance on the back of the card. The backs of some
cards are, however, not exactly uniform. In casino games in which the
orientation of the back of the card may matter, the casino attempts to use
cards in which the backs and the edges are indistinguishable.
Edge-sorting is possible when the manufacturing process causes tiny differences
to appear on the edges of the cards so that for example the edge of one long
side is marginally different from the edge of another long side. In some cases the
machine which cuts the card leaves very slight differences or patterns which
are visible on long edges of the cards. Manufacturers assert that this is
not a defect but is within a contractually specified tolerance of 0.3
millimetres. Before a card is dealt from the shoe, it sits face down at
the bottom of the shoe displaying one of its two long edges. It is
possible for a sharp-eyed person sitting close to the shoe (like Mr. Ivey), to
see which long edge it is. The information thus gained is only useful to
the gambler if he knows or has a good idea of what card it is. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Cards with a face value of seven, eight and nine are high
value cards. If the gambler knows that when the first card is dealt whether
it is a seven, eight or nine, always to player, is a seven, eight or nine, he
will know it is more likely than not, that the player will win. If it is
not one of those three cards, he will know that it is more likely than not that
the banker will win. Such knowledge will give the gambler a long-term
edge of about 6.5% over the house. Three conditions must occur before the
gambler can gain that knowledge: (1) the same shoe of cards must be
used more than once; (2) cards with a face value of seven, eight or nine must
be turned through 180 degrees by comparison with all other cards; and (3) when
reshuffled no part of the shoe must be rotated. Step two is the process
known as edge-sorting. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">If the casino realizes that the seven, eight and nine cards
are being turned, it will take simple steps to avoid giving the gambler an
advantage. It is therefore essential for edge-sorting to work that the
croupier does not realize that the seven, eight or nine cards have been
deferentially sorted. Two people can rotate the cards – the gambler or
the croupier. If the gambler touches the cards, most casinos, including
Crockfords, will not permit that shoe to be reused. Therefore, for
edge-sorting to work at Crockfords, it is essential that the croupier is persuaded
to rotate the relevant cards without her realizing why she is being asked to do
so. Casinos routinely play on quirky and superstitious behaviour by
gamblers. It is in the casinos’ interest that gamblers should believe
that a lucky charm or practice will improve their chance of winning.
Consequently, a wide variety of requests by gamblers, particularly those
willing to wager large sums, like Mr. Ivey, are accommodated by casinos. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<b><span style="font-family: Calibri;">Ivey’s Gambit</span></b></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">All of the games of Punto Banco that Mr. Ivey and Ms. Sun
played were captured on CCTV, contemporaneously with audio recording. The
moment they persuaded the croupier, Kathy Yau, to rotate the cards was as 9:00
p.m. on August 20, 2012. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Mr. Ivey began the Punto Banco game by betting modestly by
his standards – between ₤4,000 to ₤75,000 per bet. He was losing.
At 8:56 p.m. he requested a new shoe of cards. At 8:57 p.m., Mr. Ivey
asked the senior croupier overseeing the game, “<i>If I win, can I say I want
the same cards again?</i>”, to which the senior croupier replied yes “<i>because
he was not bending them</i>”. Mr. Ivey had avoided touching the
cards from either the first or second shoe onwards. At that point,
Justice Mitting describes in detail the video proceedings at the Punto Banco
table captured by the CCTV. Mr. Ivey and Ms. Sun persuaded the croupier
to cut only seven cards from the end of the shoe. Ms. Sun persuaded the
croupier to turn the cards in a particular way in order to “change her
luck”. They then persuaded the croupier to keep the same shoe because
they had won with that shoe. The cards were reshuffled by a machine but
the croupier did not rotate them before they were shuffled. Mr. Ivey
increased his betting so that the average stake was never less than
₤149,000. By the end of the game he had won just over ₤7.7 million.
He was provided with a receipt for that amount and told it would be wired to
him.</span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<b><span style="font-family: Calibri;">Crockfords’ Investigation</span></b></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Crockfords’ practice when any large win by a gambler occurs
is to conduct an investigation to determine how it happened. Its
investigation determined that Mr. Ivey had been edge-sorting, which he later
freely admitted. Accordingly, Crockfords did not pay Mr. Ivey his
winnings but refunded him his stake of ₤1 million. Mr. Ivey sued
Crockfords for his winnings.</span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<b><span style="font-family: Calibri;">Trial Decision</span></b></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">The casino
denied liability on, among other grounds, that there was in implied term that
Mr. Ivey would not cheat and that term had been broken. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Justice Mitting held that if Mr. Ivey had cheated then he
would not be entitled to recover his winnings. He also found that in the
UK there was a “<i>complete dearth of authority on cheating at common law, at
least in the civil context".</i> In addition, there was a dispute among
gaming experts as to whether edge-sorting does or does not amount to cheating.
Experts were called by both parties. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Mr. Ivey described what he and Ms. Sun did as “<i>legitimate
gamesmanship</i>”. While the trial judge was not satisfied that the
edge-sorting amounted to deception of such a kind as to vitiate the gaming
contract, he held that it was deception nonetheless. Mr. Ivey and Ms. Sun succeeded
in persuading the casino staff not to depart from their usual practice of
humouring high stakes gamblers by acceding to a request which in their view did
not affect the outcome of the game. But it did. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">The fact that Mr. Ivey did not see himself as cheating was
not determinative of the issue. The trial judge held that what he did
amounted to cheating because: (1) he gave himself an advantage
throughout the play of the sixth and subsequent shoes by knowing or having a
good idea whether the first card was or was not a seven, eight or nine;
(2) he did so by using the croupier as his innocent agent by turning the
seven, eight and nine cards differentially; and (3) he did so in circumstances
in which he knew that she and her superiors did not realize the consequence of
what she had done at his instigation. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Accordingly, the judge found that Mr. Ivey had converted a
game of essentially pure chance into a game in which his knowledge was greater
than that of the croupier and greater than that which he would reasonably have
expected it to be. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Accordingly, the judge found that conduct that amounted
to cheating for the purposes of civil law and it was immaterial that the casino
could have protected itself against the cheating by simple measures. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<b><span style="font-family: Calibri;">The Appeal</span></b></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Mr. Ivey appealed this decision to the Supreme Court.
The court dismissed his appeal and agreed with the trial judge. In doing
so, it held that it was necessary to determine whether cheating necessarily
involves dishonesty. It held that the answer was no. Mr. Ivey had
argued that he had not been dishonest, he had just simply engaged in “<i>advantage
play</i>”. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">The court rejected that argument. It held that
cheating's essentials normally involve a deliberate act designed to gain an
advantage in the play which is objectively improper given the nature,
parameters and rules of the game. The Court of Appeal agreed with the
trial judge’s conclusions that Mr. Ivey’s action amounted to cheating. It held that it is an essential element of Punto Banco that the game is one
of pure chance, with the cards delivered entirely at random and unknowable by
the gamblers or the house. The court held that what Mr. Ivey did was "to
stage a carefully planned and executed sting". The key factor was
arranging of the several packs of cards in the shoe differentially sorted so
that Mr. Ivey would not know whether the next card was a high or low value
one. However, he had gained the knowledge through the unwitting but
directed actions of the croupier, tricking her into thinking that what she did
was irrelevant. The court found that what Mr. Ivey did was much more than observe the
cards. He took positive steps to fix the deck. That conduct, in a
game which depends on random delivery of unknown cards constituted
cheating. While it was cleaver and skillful and must have involved what
the court referred to as “<i>remarkably sharp eyes</i>”, it cannot alter that
truth. </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">After a detailed review of the law, the court held that the
facts of the case did not arise to the legal element of dishonesty.
However, it was incorrect to suggest that the trial judge’s findings that Mr.
Ivey was truthful when he said that he did not regard what he did as cheating
amounted to a finding that his behaviour was honest. It was not. It
was a finding that he was, in that respect, truthful. A dishonest person
may sometimes be truthful about his dishonest opinions. The court held
that the better conclusion was that Mr. Ivey’s conduct was, contrary to his own
opinion, cheating and was, contrary to his own opinion also dishonest. </span></div>
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"><br /></span></div>
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">However, the court also held that dishonesty was not an essential element of the civil tort of cheating in the sense that there was no requirement that a defendant must appreciate that his conduct was dishonest.</span></div>
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"><br /></span></div>
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Regards,</span></div>
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"><br /></span></div>
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Blair</span></div>
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"><br /></span></div>
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"><br /></span></div>
<br />
<div style="margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> </span></div>
Blair Bowenhttp://www.blogger.com/profile/02500575311908539684noreply@blogger.com1