SCC Restores Adjudicator's Award in Residential School Settlement

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. 

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. 

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”.

In 2014, J.W. brought a claim for compensation in accordance with the Independent Assessment Process (IAP), the adjudicative component of the Indian Residential Schools Settlement Agreement (2006) (“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. 

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. 

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.

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.

Justice Abella’s reasons were supported and concurred in by Chief Justice Wagner and Justice Karakatsanis.

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.  

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. 

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.

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.

 Merely because the Agreement does not contain certain terms does not mean that there is a gap waiting to be filled by judges.  

Regards,

Blair

SCC: Party Autonomy in Arbitration Trumps Access to Justice Concerns

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.

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.

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.

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. 

This finding is somewhat perplexing because Section 7(5) of the Act reads as follows:

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,

(a) the agreement deals with only some of the matters in respect of which the proceeding was commenced; and

(b) it is reasonable to separate the matters dealt with in the agreement from the other matters.

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. 

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. 

The dissenting opinion was jointly written by Justices Abella and Karakatsanis (Chief Justice Wagner and Justice Martin concurred).

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. 

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. 

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. 

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.

TELUS Communications Inc. v. Wellman 2019 SCC 19

Regards,

Blair

Failure to Immediately Disclose "Mary Carter" Agreement Will Lead to Stay of Action

The Ontario Court of Appeal recently ordered that an action be stayed (Handley Estate v. DTE Industries Limited, 2018 ONCA 324) 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 Aecon Buildings v. Stephenson Engineering Limited (“Aecon”).   

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 (“Aviva”), commenced a subrogated claim against a number of defendants including H&M Combustion Services Ltd. (“H&M”).   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. (“Kawartha Lakes”), 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.

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.   

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. 

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. 

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. (“Williamson”), 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.   

The third party action settled on the eve of the hearing and only the motion to stay brought by the Williamson proceeded.

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. 

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. 

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:  “

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.” 

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. 

Justice Brown held that the remedy for failing to immediately disclose the agreement is to stay the proceeding.  He held that:  “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”. 

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.

Regards,

Blair

Supreme Court Tosses Finding of Contempt Against Student Leader

The Supreme Court of Canada released this week its decision in a case overturning a ruling in which a court in Quebec had found a student leader guilty of contempt of court - Morasse v. Nadeau-Dubois 2016 SCC 44.

 The background goes back to the spring of 2012, when massive and sustained student protests took place in the province of Quebec over the issue of proposed increases in university tuition fees.  The increases were announced as part of the budget introduced by the provincial government.  Several student organizations which were opposed to the increases organized protests. 

 

The protests paralyzed several post-secondary institutions.  Classes at several institutions were cancelled.  Student organizations held votes declaring themselves to be “on strike”.  Picket lines were formed at several universities and CEGEPs.  Students and teachers were prevented from entering the buildings in which classes were to be held.  As a result, several injunctions were sought to resist these blockages and help ensure the continuation of the school year.

 

At the time, the defendant Gabriel Nadeau-Dubois, was the spokesperson for the Coalition large de L’Association pour une solidarite syndicaté etudiante (“CLASSE”).  CLASSE was one of the most active student organizations in Quebec.   It organized protests and picket lines in various post-secondary institutions. 

 

At the height of the protests, the plaintiff Jean-François Morasse was a student in his final year at Laval University’s Faculty of Planning, Architecture, Arts & Design.  Mr. Morasse was completing a certificate in visual arts. The Association des etudiants en arts plastiques de L’Universite Laval (“ASETAP”), the organization representing students in that program, held a strike vote and organized protests.  On February 29, 2012, picket lines were erected to block the entrance to the building where Mr. Morasse’s classes were held.  Mr. Morasse instituted civil proceedings against Laval University, ASETAP and another student organization and in April of 2012 obtained a provisional interlocutory injunction for a 10 day period.  The injunction mandated free access to the facilities in which classes for the visual arts program were held.  It also ordered all persons who were then boycotting classes to refrain from obstructing or otherwise blocking access to classes by way of intimidation or through other actions likely to have this effect.   

 

Mr. Morasse brought an application to renew the injunction after the initial 10 day period.  A judge of the Quebec Superior Court renewed the injunction through a safeguard order which was valid until September of 2012.  The judge’s order reaffirmed the prohibition to obstruct or otherwise prevent access to classes but made no specific reference to picketing generally.  Eleven days after the court renewed the injunction, in May of 2012, Mr. Nadeau-Dubois was interviewed by CBC’s French television news network after one CEGEP resumed its regular schedule of classes upon being ordered to do so by the Superior Court.  Appearing with him was Léo Bureau-Blouin, head of the Fédération etudiante collégiale du Québec, a coalition representing student unions of Quebec’s CEGEPs and private colleges.  The interview was broadcast live throughout the province.

 

After the interview, Mr. Morasse filed a motion for contempt against Mr. Nadeau-Dubois for his comments in the interview.  Mr. Morasse claimed that Mr. Nadeau-Dubois’ comments had violated a paragraph in the Superior Court’s May 2012 order relating to refraining from instructing or impeding access to classes by means of intimidation or from taking any action that could prevent or adversely affect access to the classes in question.  Mr. Nadeau-Dubois had stated during the interview that such attempts to force students back to class do not work, that a minority of students use the courts to circumvent the majorities collective decision to go on strike, and that picket lines are an entirely legitimate means to ensure respect of the vote to strike. 

 

Mr. Nadeau-Dubois was found guilty of contempt of court under an article of the Quebec Civil Code and sentenced to 120 hours of community service to be completed within six months under the supervision of a probation officer.

 

The Quebec Court of Appeal set aside the conviction and sentence and entered an acquittal. 

 

The matter was further appealed to the Supreme Court of Canada. 

 

The appeal was dismissed by the Supreme Court of Canada (6 – 3).  The majority decision was written jointly by Chief Justice McLachlin and Justice Abella.  Separate but concurring reasons were written by Justice Moldaver. 

 

Justices McLachlin and Abella held that what is at issue is whether a contempt charge brought by a private citizen against another individual, meets the strict procedural and substantive safeguards required by law to ensure that the liberty interest of those accused of contempt are fully protected.    

 

The power to find an individual guilty of contempt of court is an exceptional one.  It is an enforcement power of last resort and the only civil proceeding in Quebec that may result in a penalty of imprisonment.  Because of the potential impact on an individual’s liberty, the formalities for contempt proceedings must be strictly complied with.  The accused must be given clear, precise and unambiguous notice of a specific contempt offence and the elements required for a conviction must be proven beyond a reasonable doubt.  A conviction for contempt should only be entered where it is genuinely necessary to safeguard the administration of justice. 

 

The only allegations raised by Mr. Morasse against Mr. Nadeau-Dubois related to an alleged violation of one paragraph in an injunction order in the form of comments that Mr. Nadeau-Dubois had made in an interview.  Mr. Nadeau-Dubois was not given notice as to which specific branch of the Civil Code, if any, he was being charged under.  There was no evidence that Mr. Nadeau-Dubois had knowledge, either actual or inferred, of the order that the Superior Court had made.  Knowledge could not be imputed to Mr. Nadeau-Dubois on the basis of his comments during the interview, questions he was asked or the statements other student leader had made.  His endorsement of students picketing in general did not amount to an encouragement to use picket lines to block access to classes since the order did not prohibit picketing altogether.  Mr. Morasse’s failure to provide Mr. Nadeau-Dubois’ actual or inferred knowledge of the order was dispositive of the appeal. 

 

In his occurring reasons, Justice Moldaver held that in the television interview, Mr. Nadeau-Dubois intended to incite students at large to breach any and all court orders which enjoined the use of picket lines to block access to classes.  Had the case proceeded on that basis, his call to disobey at large would have included the injunction obtained by Mr. Morasse regardless of whether or not he had specific knowledge of it.  However, the issue at trial was whether Mr. Nadeau-Dubois breached this particular order.  The Quebec Court of Appeal had found correctly that the evidence did not support a finding that he had specific knowledge of the order that was in place and this was fatal to the finding of contempt.

 

The dissenting judges were Justices Wagner, Cote and Brown.  Justice Wagner wrote those reasons.  He held that the purpose of convictions for contempt of court, whether in a civil or criminal context is to maintain public confidence in the administration of justice and ensure the smooth functioning of the courts.  This power is exceptional and must be exercised only as a last resort.  Exercising it is nonetheless justified where a contempt conviction is necessary to protect the integrity of the justice system and ensure the systems credibility in the eyes of the public.

 

In this case, Mr. Nadeau-Dubois knew full well that the contempt charge he had to answer had been laid under two articles of the Civil Code as could be seen from statements made by Mr. Morasse’s counsel and other matters alleged by Mr. Morasse. 

 

Specific knowledge of an order is not essential for the purposes of the specific article under the Civil Code because actual personal knowledge can always be inferred from circumstantial evidence.  The inference must be reasonable given the evidence or absence of evidence, assessed logically and in the light of common sense and human experience.

 

The dissenting judges found that in this case a contextual analysis of Mr. Nadeau-Dubois’ words could lead to only one reasonable inference.  When considering the context of the entire interview, those words showed beyond a reasonable doubt that he knew of the existence, content and scope of the orders and that he incited students to breach them. 

 

Finally the dissenting judges held that the importance of freedom of expression and the protection of that freedom in a democratic society can never be overstated.  But one may not use the exercise of one’s freedom of expression as a pretext for inciting people to breach a court order.   

Regards,

Blair

 

Court of Appeal Upholds Substantial Indemnity Costs Award

In the dog days of summer, cases that one might otherwise ignore, suddenly cry out for attention.  One such case is Matthew Brady Self Storage Corporation v. InStorage Limited Partnership 2014 ONCA858 which deals with the exciting issue of the cost consequences of offers to settle.

 

The principals of Matthew Brady Self Storage Corporation (“Matthew Brady”) jointly purchased with the principal of InStorage Limited Partnership (“InStorage”) a vacant factory in Windsor, Ontario and converted it into a self-storage facility.  InStorage was part of a group of corporations in the business of operating self-storage facilities and had approximately 50 sites in operation at the time.  Matthew Brady was incorporated for the purpose of acquiring and converting the property for the joint venture. 

 

The plans of the joint venture partners were altered when InStorage ran into financial difficulties.  This circumstance led to further negotiations and a new arrangement whereby the principals of Matthew Brady agreed to put up the entire purchase price so that Matthew Brady would become the sole owner of the Windsor property pending completion of the project.  The parties entered into a put/call agreement under which Matthew Brady could force InStorage to purchase the property through a “put” and InStorage could force Matthew Brady to sell the property to it through a “call” beginning one year following substantial completion of the retrofit and for three years after that.  

 

The put/call agreement provided that if the parties could not agree on a purchase price, an appraiser would determine the purchase price and in the absence of a manifest error, the appraiser’s determination of “fair market value” as defined, would bind the parties.  The fair market value definition provided that the primary consideration was to be the net cash flow generated from the property.  Matthew Brady exercised the put.  It obtained an appraisal.  However, InStorage refused to accept the appraiser’s determination of the fair market value of the property, taking the position that he had made a manifest error in failing to base his conclusion about fair market value on the income approach. 

 

Matthew Brady sued.  The trial judge granted a motion by Matthew Brady to exclude the report and evidence of a second appraiser.  In the course of that ruling, the trial judge found that the original appraiser had made no manifest error in arriving at his fair market value conclusion.  The trial judge allowed Matthew Brady’s action.  InStorage appealed to the Ontario Court of Appeal.

 

The Ontario Court of Appeal (consisting of Justices Doherty, Blair and Tulloch) dismissed the appeal holding that the language of the put/call agreement did not require the appraiser to use the income approach.  Instead, he was required to give that approach “primary consideration”.  Ultimately, it was open to the appraiser to determine that the income approach was not helpful.  For the purposes of the appeal, the court assumed that the trial judge should not have made a finding that there was no manifest error in the appraisal in the course of his admissibility ruling, and that he should have given InStorage a full opportunity to address that issue.  However, that error did not result in any prejudice to InStorage, as InStorage would have been unable to establish manifest error in any event. 

 

The Court of Appeal held that the trial judge did not err in granting specific performance of the put/call agreement.  Damages are always an adequate remedy where the vendor is the plaintiff.  However, in this case the vendor was intended to be the defendant.  The parties clearly intended InStorage to be the sole owner of the property.   Matthew Brady had renovated the property to InStorage’s specifications and design criteria.  But for InStorage’s commitment to owning the property, Matthew Brady would not have acquired it and done the retrofit.  InStorage occupied, managed and operated the building since the completion of the retrofit.  The Court of Appeal found that it had done a poor job of managing the property – something that would affect its value and impede a steady sale.   The court held that in such circumstances, damages would not adequately compensate Matthew Brady for InStorage’s refusal to abide by the put/call agreement.

 

Get ready for the kicker.  At the end of the trial, the trial judge made a cost award of $415,000 plus HST in favour of Matthew Brady.  The award was made on a partial indemnity basis to a point that an offer to settle was made by Matthew Brady (and not accepted by InStorage) and on a substantial indemnity basis thereafter.  InStorage submitted that the offer to settle did not qualify as a Rule 49 offer for costs purposes because, although it had been exchanged directly between the parties, it had not been served on InStorage’s lawyers as required by the rules.  The Court of Appeal disagreed. 

 

The Court of Appeal agreed that Matthew Brady’s offer to settle had not been served on InStorage’s lawyers but that fact did not preclude an award of costs on a substantial indemnity basis.  Service of the offer on InStorage did not create any confusion or difficulty and there was no evidence that InStorage’s lawyers were unaware of the offer.  The court held that the trial judge did not err in awarding substantial indemnity costs that exceeded the multiplier in rule 1.03(1) of the Rules of Civil Procedure on the basis that InStorage’s conduct had unnecessarily prolonged the trial. 

Regards,

Blair

 

Ontario Court Summarizes Criteria for Intervening as a "Friend of the Court" in Trinity Western University case

The Ontario Divisional Court (Justice Nordheimer) recently handed down its decision concerning criteria for parties who apply to intervene in lawsuits as "friends of the court" -  Trinity Western University v. Law Society of Upper Canada 2014 ) ONSC 5541.

 

Trinity Western University (“TWU”) is a Christian university located in Langley, British Columbia.  TWU submitted a proposal to establish a law school to the British Columbia Ministry of Advanced Education and the Federation of Law Societies of Canada in June of 2012.  The new law school is planned to open in September of 2016.

 

All TWU students, faculty and staff are required annually to sign a community covenant agreement which includes a commitment to voluntarily abstain from various conduct  including “sexual intimacy that violates the sacredness of marriage between a man and a woman”. 

 

TWU sought accreditation for its law school from a number of provincial law societies.  The Law Society of Upper Canada (“LSUC”) voted against the accreditation of TWU’s proposed law school.  TWU brought an application for judicial review to the Divisional Court of Ontario.

 

Subsequently, eleven motions were made for leave to intervene in the application on behalf of 14 organization and individuals:

 

1. Canadian Counsel of Christian Charities;
2. The Christian Legal Fellowship;
3. Justice Centre for Constitutional Freedoms;
4. The Association for Reformed Political Action Canada;
5. The Evangelical Fellowship of Canada and Christian Higher Education Canada;
6. Catholic Civil Rights League and Faith and Freedom Alliance;
7. Gerard P. Charette;
8. Canadian Association of Labour Lawyers;
9. Criminal Lawyers’ Association;
10. Out On Bay Street and OUTlaws;
11.  The Advocates' Society.

 

Justice Nordheimer set out the principles upon which a court should grant intervener status. 

Rule 13.02 of the Rules of Civil Procedure provide:  “any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument”. 

He then cited two instructive cases:  Peel (Regional Municipality) v. Great Atlantic and Pacific Company of Canada Ltd., where the Chief Justice of Ontario said:  “Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the moving parties”.        

These basic principles were expanded upon as they apply to cases involving the Canadian Charter of Rights and Freedoms by the case of Bedford v. Canada (Attorney General) where the court said:  “Where the intervention is in a Charter case, usually at least one of three criteria is met by the intervener:  It has a real, substantial and identifiable interest in the subject matter of the proceedings; it has an important perspective distinct from the immediate parties; or, it is a well-recognized group with a special expertise and broadly identifiable membership base “.  

 

Having regard to both cases, Justice Nordheimer concluded that even under the principles set out in Bedford, a proposed intervener must still satisfy the basic requirement that their participation will result in them making a useful and distinct contribution not otherwise offered by the parties.  He also referred to the Supreme Court of Canada’s decision in R. v. Finta, where the Chief Justice (as she then was) stated: “The criteria under rule 18 [ now rule 57] require that the applicant establish:  (1) an interest; and (2) submissions which will be useful and different from those of the other parties”.

 

Finally, Justice Nordheimer found it helpful to mention three other principles that governed the granting of intervener status - first as a general principle, the threshold for granting intervener status in a public interest or public policy case is lower than it is for a private case; second, in Charter cases, courts recognize that it is important for the court to receive a diversity of representations reflecting the potential wide ranging impact of its decision; and, third, the fact that the proposed intervener is not indifferent to the outcome of the appeal is not a reason to deny it the right to intervene.  However, the court should take into consideration that there should be some balance between the positions to be advocated when granting intervener status, i.e. the court should not allow piling on.

 

Of the 14 proposed interveners in this case, the first 10 supported the position of TWU.  The final four supported the position of the LSUC.

 

Justice Nordheimer noted that there was some degree of overlap, albeit limited, with the positions of the interveners.   Each of the proposed interveners had a slightly different perspective on the issues raised.  

 

Justice Nordheimer held that the court process is not akin to a public consultative process where every conceivable difference of opinion or view is to be gathered and digested.  The principal focus of the court is to resolve the issues that are in dispute between the parties in accordance with the applicable legal principles but in doing so to be guided by considerations of the broader impacts that the court’s decision may have.  It is to this latter consideration that the interveners can provide assistance. 

 

As a result, he found that it was not necessary for seven organizations to be given intervener status in order to gain an appreciation of the right to freedom of religion and freedom of association.  Accordingly, out of the seven Christian organizations, he granted intervener status to the Christian Legal Fellowship and jointly to The Evangelical Fellowship of Canada and The Christian Higher Education Canada.

 

Justice Nordheimer granted intervener status to the Judicial Centre for Constitutional Freedoms as a non-religious organization.  It brought a different perspective to the issues. 

 

He did not grant intervener status to Mr. Charette who, as both a lawyer and an ordained Roman Catholic deacon, had concerns that appeared to be very much directed towards his own rights which were at that point hypothetical. 

 

As for the rights of gays and lesbians, he granted intervener status jointly to Out on Bay Street and OUTlaws. 

 

Finally, concerning the issue of the protection of the public and how regulator bodies should deal with accreditation decisions, Justice Nordheimer granted intervener status to The Advocates’ Society and the Criminal Lawyers' Association. 

Regards,

Blair

 

Supreme Court Says Police Wiretaps Can Be Used in Civil Proceedings

The Supreme Court of Canada has ruled that once a private communication has been "intercepted" for use in a criminal investigation, it becomes available to a party in a civil proceeding who may have a claim to it based on relevance. 

In the early summer of 2004, the Competition Bureau of Canada began an investigation (the “Octane Investigation”) into allegations of a conspiracy to fix gasoline pump prices in certain regions of Quebec.   To carry out the investigation, the Competition Bureau obtained from the Superior Court of Quebec, 7 judicial authorizations that enabled it to intercept and record more than 220,000 private communications.  These authorizations for the wiretaps were obtained under Part VI of the Criminal Code of Canada.

 

In 2008 as a result of the Octane Investigation, a series of charges were laid against a number of people alleging that they had conspired to fix pump prices in certain regions of Quebec.  In July 2010 and September 2012, other charges for the same offences were laid bringing the total number of persons charged to 54.

 

Parallel with the criminal proceedings, certain individuals and the Automobile Protection Association, instituted a class action in the Quebec Superior Court against a number of persons, including the accused, alleging that they had breached duties imposed on them under the Civil Code of Quebec and under section 36 of the Competition Act, by engaging in anti-competitive practices.  The class action was subsequently authorized by the Quebec Superior Court. 

 

In support of the class action, the plaintiffs filed a motion for disclosure of documents under the Quebec Code of Civil Procedure and requested that the Federal Director of Public Prosecutions (“DPP”) and the Competition Bureau disclose to them all the private communications/wiretaps that had been intercepted in the course of the Octane Investigation.   Shortly before the motion was heard, the plaintiffs narrowed the scope of their request limiting it to the recordings that had already been disclosed to the accused in the parallel criminal proceedings.  The accused contested the motion.

 

The motions judge granted the plaintiffs’ motion and ordered that the Competition Bureau and the DPP disclose the wiretaps, but only to the lawyers and experts participating in the class action and screen the recordings to protect the privacy of third parties who had nothing to do with the class action.  

 

The accused persons appealed to the Quebec Court of Appeal.  In two separate judgments, the Court of Appeal declined to review the merits of the motion judge’s decision.

 

The accused persons further appealed to the Supreme Court of Canada ( see Imperial Oil v. Jacques, 2014 SCC 66).  The Supreme Court, in a 6–1 decision, dismissed the appeal.  The majority of the court (decision was written by Mr. Justice LeBel) held that a party to a civil proceeding can request the disclosure of recordings of private communications intercepted by the state in the course of a criminal investigation. 

The Supreme Court held that although section 29 of the Competition Act provides for confidentiality of the Competition Bureau’s record of investigation, it does not prohibit the disclosure of private communications intercepted under Part VI of the Criminal Code.  In addition, even though section 193(1) of the Criminal Code lays down the principle that it is unlawful to disclose or use an intercepted private communication without the consent of the originator or the intended recipient of the communication, there are exceptions to this general prohibition.  For example, section 193(2)(a) provides that a disclosure is not an offence if it is made “in the course of or for the purpose of giving evidence in any civil proceedings”.  Nothing in the words of this provision justifies limiting its application to the time when evidence is being given.  The documents requested at the exploratory stage of any civil proceeding may be requested “for the purpose” of testifying at the hearing.  The Court concluded that section 193(2)(a) does not have "facilitating the fight against crime "as its sole purpose; rather its objective is to ensure that courts will have access to all information relevant to the proceedings before them.

 

The Supreme Court held that the Quebec Civil Code of Procedure empowers a judge to order disclosure of documents relating to the issues between the parties that are in possession of a third party.  Judges have great discretion, but should generally favour disclosure.  Nevertheless, the judge must deny a request for disclosure if immunity from disclosure is either provided for in legislation or established by the courts.  Judges must remain sensitive to the duty to protect a person’s privacy.  However, the scope of the protection of the right of the innocent to privacy must always be assessed in light of the various interests at stake.

 

The majority of the Court reasoned that judges have great discretion to control the process of disclosing evidence at the exploratory stage of proceedings and to set conditions for and limits on disclosure.  Where the request of documents results from a criminal investigation, the judge must also consider the impact of disclosure on the efficient conduct of the criminal proceedings and on the right of the accused to a fair trial.

 

Here, the Supreme Court found that the motion judge’s order was consistent with those principles and there was no factual or legal impediment to disclosure of the documents.  The requested evidence was relevant.  Further, the scope of the disclosure order was limited so as to protect the right to privacy of all those whose communications were intercepted.  The disclosure would not hinder the efficient conduct of the criminal proceedings or violate the rights of the parties still facing charges to a fair trial. 

Regards,

Blair

 

The Value of Oaths -Telling the Truth for the Sake of the Truth

A few years into my litigation practice, a partner in the Toronto law firm where I worked asked me to conduct a trial for the brother-in-law of his legal assistant.  The brother-in-law, John, was an independent contractor whose contract had been terminated by a large corporation.  John sued the company, claiming that he was an employee rather than an independent contractor and thus was entitled to receive reasonable notice of the termination of his contract. 

At trial, John testified about the details of his relationship with the company.  After the briefest of deliberations, the judge gave oral reasons dismissing John's claim.  Looking down, disapprovingly at John, the judge said, "I find John's testimony to be quite phantasmagorical".

John looked at me, puzzled. 

"Blair," John asked, "What does that mean?" 

"It means that he doesn't believe you John," I answered.

John seemed relieved.  "Okay." was all he said.

In fact, I hadn't believed John either.  Although he had been under oath, John had not told the truth.  As a young lawyer, I quickly came to realize that taking an oath, or making an affirmation to tell the truth, did not always mean that a witness would do so.  I had discovered that witnesses would sometimes "bend" the truth to suit their purposes. 

I discussed the matter with a friend, a former associate who had left the firm to pursue a career in criminal law.  As circumstance would have it, my friend was writing an article on the subject of perjury.  "If I was the other lawyer," my friend said, "I would have charged John with perjury."  This time I was the one who was puzzled.  I knew that witnesses sometimes lied under oath.  In fact, as I gained more experience, I came to expect that someone involved in a proceeding – a party, a witness, perhaps even my own client, would lie under oath.  Despite that, very few people are prosecuted for perjury. I wondered if there was a connection. 

The Origins Of Oaths

If witnesses so casually ignore the importance of swearing an oath, why is it still a requirement in our judicial system?  As one judge put it, "Oaths and their substitutes are designed to emphasize the importance of telling the truth for religious or moral reasons – telling the truth for the sake of the truth."[1]  The difficulty appeared to be, is that people who have a motive to lie, will also lie under oath.  They might not necessarily tell the truth for the sake of the truth but they will certainly lie for the sake of their case. 

The challenge is that, in our adversarial system, oral testimony is the principal item of judicial evidence.  Such testimony is the statement of a witness in court which is offered as evidence of the truth of that which is stated.[2]  For many reasons, testimony was regarded as more reliable if it was supported by an oath. 

Oath-taking has a long history in judicial proceedings going back at least as far as 400 CE.  Twelfth century English courts held their judicial proceedings in the open air and upon the most significant hill in the area.  A local man of power and authority, such as the sheriff, would preside over the court but the largest local land owners were bound by custom to attend and be the "doomsmen" (judgment-men) of the court.  The sheriff took care of the procedures of the court and pronounced the overall sentence but the doomsmen were the participants who found the appropriate "doom" to fit the facts.  If the two litigants contradicted each other in fact, there was no capacity for holding a cross-examination and judging the worth of a witness statement.  In these circumstances, recourse would be to the supernatural to prove "by God" that one or the other was correct.  This proof took three forms:  (1) oaths and oath-helpers,  (2) ordeal; and  (3) trial by battle.[3] 

The Oath As A "Self-Curse"

Thus, the practice of administering an oath in judicial proceedings was rooted in the ancient concept of judicium dei, or divine judgment.  These forms of proof have been traced to a pre-religious, pre-animistic period of history where supernatural beings were unknown and people were believed to possess magical powers which could be invoked through an uttered curse.  In this form, the oath was a traditional self-curse which could be used as security for a promise.  A sworn witness who remained unharmed after testifying was presumed to have been adjudged by God to have spoken the truth.[4]

The Origin Of The Affirmation

An affirmation is a solemn declaration allowed to those who conscientiously object to taking an oath.  An affirmation has the same legal effect as an oath but is usually taken to avoid the religious implications of an oath.  The right to give an affirmation has existed in English law since the Quakers Act, 1695.  It has its origins in the refusal of Quakers to swear any oath, which would otherwise have barred them from holding many public positions.  Quakers believe in speaking the truth at all times, and so the act of only swearing to truth in court, rather than in everyday life, would have implied double standards.[5] 

The Oath In Civil Law Jurisdictions

The practice of administering oaths in judicial proceedings appears to be almost universal.  However, there are at least three systems of law which do not make use of oaths or affirmations namely, Chinese law, Slavic law and Swiss law.  In each of these jurisdictions, the absence of the oath is attributable in part to the absence of any ancient tradition of swearing oaths as a means of proof in itself. 

In Chinese law, the special significance of giving testimony is drawn to the witness's attention by utilizing the same method which is used in private law to emphasize the binding force of an agreement – the written form.  A Chinese witness is usually required to sign a bond or recognisance as to the veracity of his statements, either before or after giving evidence.  Before signing, he is instructed as to the obligations it entails and the punishment imposed for false testimony.  A witness who refuses to sign without good reason is also liable to a small fine.

In Switzerland, a trend towards abandonment towards the oath has also been accelerated by legislation – the Federal Law of Criminal Procedure has reduced the status of an exceptional measure.  The Federal Law of Civil Procedure, makes no mention of oaths at all, merely instructing the judge to admonish the witness as to his duty to tell the truth and as to the penalty of false testimony under the Penal Code.^[6] 

The present day take on Oaths – “ a lingering relic of primordial superstition and primitive mumbo jumbo"

Today, the rationale for swearing an oath to tell the truth is somewhat different:

The historic rationale was that the fear of divine retribution would focus one's mind and heart on telling the truth.  Today in our secular, modern, multi-cultural Canadian society, the fear of divine retribution may seem a quaint anachronism, if not a complete irrelevance.  The law however still recognizes the importance of an oath even if it is not directly tied to a belief in spiritual retribution.  Even in the absence of some religious significance, the solemnity of taking an oath still increases the witness' perception of the importance of telling the truth.[7]  

The present day purpose of oath-taking is to “bind the conscience” of the witness to tell the truth.^[8]  This purpose assumes, of course, that the witness has a conscience.  What about criminals and other notorious liars?  What use is it to administer an oath or an affirmation to a witness who has no (or little) conscience?

In 1993, the Supreme Court of Canada commented on the efficacy of oaths.  The Court was concerned about admitting into evidence, for the truth of their content, prior, unsworn statements that three witnesses had made to the police.  At issue were the "traditional hearsay dangers" including the absence of an oath or solemn affirmation when the statements were made.  The witnesses in the case were described thusly by the trial judge:

…those three witnesses were obviously and deliberately untruthful in their sworn evidence before me with respect to material matters.  Their account of how this fight occurred is not only at odds with the evidence of Steven Wright, Sean Dowling and in my opinion, Ruth Kazan (two independent witnesses), it is at odds with common sense.

…In my opinion, each of these three witnesses lied to me with respect to having lied to the police about what the accused said to them.  I have no doubt that their recantations are false.  That is that I have no doubt that on this point they were telling the police the truth as they knew it about what the accused said.  That finding is not necessarily the same as a finding that the accused made the admissions, but it is tantamount to that finding.[9]

Under the principled exception to the hearsay rule, prior inconsistent statements could be admissible if they met the governing principles of reliability and necessity.  The court held that there should be sufficient circumstantial guarantees of liability to allow a jury to make use of the statement, i.e. if the statement is made under oath, solemn affirmation or solemn declaration following an explicit warning to the witness as to the existence of severe criminal sanctions for the making of a false statement.  That way, the witness would be clearly made aware of the gravity of the situation and his duty to tell the truth.  The court held that while the oath will not motivate all witnesses to tell the truth, its administration may serve to impress on more honest witnesses the seriousness and significance of their statements, especially where they incriminate another person in a criminal investigation. 

However, the Court warned it is also clear that the sanction for lying under oath must be one that is a real threat to the witness.  Therein lies the challenge. 

Why are not more witnesses prosecuted for lying under oath?  Primarily for the simple reason that our courts and criminal justice system are presently overburdened and would possibly be under deluge if all witnesses who lied under oath were prosecuted. 

Some commentators have discounted the significance of the oath as a means of ensuring reliability for a statement".  A New Zealand commentator who had written that the oath is "no more than a lingering relic of primordial superstition and primitive mumbo jumbo".[10]  

The Future Of Oaths

Recently, in England, the Magistrates' Association, which represents magistrates in England and Wales, debated a motion to ask witnesses to promise to "very sincerely tell the truth" ( reminiscent of a Munchkins’ line in the Wizard of Oz ) but voted against the plan.  One magistrate's alternative oath would be to include an acknowledgement of the duty to tell the truth as follows:  "I understand that if I fail to do so, I will be committing an offence for which I will be punished and may be sent to prison."[11] 

Law reform commissions in various jurisdictions have considered the utility of oaths and affirmations.  The Canadian Task Force on Uniform Rules of Evidence has argued that the principles that apply to the competence of children should also apply to adults who take the oath:

The rationale of these cases is that in our modern secular age a witness need not profess a religious belief either in God or in future rewards and punishments.  (Children may not have formed religious beliefs)  The object of the law in requiring an oath is to get at the truth by obtaining a hold on the conscience of the witness.  [12]

Punishing Lying Under Oath

That motion was opposed by others who said that the way you stamp out lying under oath is to punish people who do so, not to get rid of the religious oath.[13]  So what of the threat of prosecution for perjury?

For a false statement made under oath to be considered perjury, it must be in regard to a material fact in the case.  Therefore, not all lying under oath will be considered perjury.  To be convicted of perjury, the prosecution must prove that the lying was intentional and that the witness intended to misrepresented the truth. 

Statistics in the United States show that perjury prosecutions are extremely rare, arising from both civil and criminal proceedings.  In 1996, the US Sentencing Commission indicated that in federal cases, only 86 of 42,436 convicted criminal defendants were found guilty of perjury, encouraging perjury or bribing a witness.[14] 

Prosecutors have had difficulty convicting some of the world's most notorious alleged liars.  For example, former baseball player, Roger Clemens, was acquitted in 2012 of, among other charges, two counts of perjury and three counts of making false statements when he testified at a deposition and a nationally televised hearing before the US Congress in 2008.  The charges centered on his repeated denials that he had used steroids and human growth hormone during his baseball career.  A seven year investigation into the major league baseball's homerun record holder, Barry Bonds, yielded a guilty verdict on one count of obstruction of justice in San Francisco, with the jury deadlocked on whether Bonds had lied to a grand jury when he denied knowingly taking performance enhancing drugs.[15] 

And perhaps the most notorious liar of all, Lance Armstrong, who lied for years as to whether he used performance enhancing drugs in winning his seven Tour de France titles, escaped prosecution for perjury because prosecutors conceded that Armstrong's intentional lying under oath was "probably too old".[16]  

As a result, realistically it is only the threat of prosecution, as unlikely a possibility that such a threat presents, that will serve as a deterrent to lying under oath.  Until prosecutors turn that threat into something that is less than hollow, an oath or affirmation will continue to rely on the moral conscience of the witness to tell the truth for the sake of the truth. 

Regards,

Blair

---

[1] Pomerance, J. in R. v. Carter and Dodd, 2012 ONSC 286, para. 16

[2] Cross on Evidence, 6^th Ed., Butterworth & Co. Ltd., at page 37

[3] English Legal History, wordpress.com April 28, 2013

[4] The Law Reform Commission - Ireland, Report on Oaths and Affirmation - 1990

[5] Wikipedia – Affirmation in Law

[6] The Law Reform Commission Report on Oaths and Affirmation, Ireland, 1990

[7] R. v. Nitsiza, 2001 NWTSC 34 at para. 8

[8] Ian McKenzie, The Truth, The Whole Truth and Nothing but the Truth, Slaw, March 5, 2012

[9] R. v. B (K.G.) 1993 1 SCR 740

[10] McKenzie, supra, footnote 8

[11] Robert Pigott BBC News, October 19, 2013

[12] Canadian Task Force on Uniform Rules of Evidence

[13] Pigott, supra, footnote 11

[14] Criminal Law Attorney – Criminal Law Lawyers Nationwide!!

[15] Joseph White, Associated Press Sports Writer, published The Toronto Star, June 18, 2012

[16] Mail Online, January 22, 2013