Thomas Cromwell, the most recent appointee to the Supreme Court of Canada, and a Queen's University graduate, has been busy writing judgments. The SCC released another today in the case of Fullowka v. Pinkerton's of Canada Ltd.:
In May 1992, a strike began at the Giant Mine near Yellowknife. The employees' bargaining agent, CASAW Local 4, and the mine owner, Royal, had reached a tentative agreement, but it was rejected by the Local's membership. Royal decided to continue operating the mine during the ensuing strike with replacement workers. The strike rapidly degenerated into violence. Faced with attacks on its security guards and unable to control the situation, the private security firm Royal had hired withdrew. Royal turned to Pinkerton's for security services and by the end of May, Pinkerton's had 52 guards on site.
The violence continued and escalated after Pinkerton's arrival. In mid-June, a large number of strikers rioted, damaging property and injuring security guards and replacement workers. Following the riot, Royal fired about 40 strikers, including W, and the police laid many criminal charges. Later in the same month, three strikers, including B, entered the mine through a remote entrance. While underground, they stole explosives and painted graffiti threatening replacement workers.
As the summer progressed, the atmosphere grew calmer although some trespassing, property damage and violence continued. On Royal's urging, Pinkerton's reduced its force to 20 guards. The police presence was also reduced. In late July, some strikers, including B, set an explosion which blew a hole in a satellite dish on mine property and, in early September, set a second explosion which damaged the mine's ventilation shaft plant. In the early morning hours of September 18, W evaded security, entered the mine and, while underground, planted an explosive device. When a man car carrying nine miners triggered the trip wire, they were all killed in the explosion. N was among the first on the scene and discovered the dismembered bodies of his colleagues, including a close friend. The territorial government ordered closure of the mine following the bombing. At the time of the fatal blast, CASAW Local 4 was affiliated with CASAW National which, in 1994, amalgamated with CAW National.
The miners' survivors sued Royal, Pinkerton's and the territorial government for negligently failing to prevent the murders. They also claimed against the strikers' national union, some union officials and members of CASAW Local 4 for failing to control W and for inciting him. As for N, he brought an action against the same defendants and Local 4, seeking damages for post traumatic stress disorder which he alleged resulted from his having come upon the scene of the fatal explosion. Their claims largely succeeded at trial but were dismissed by the Court of Appeal.
The SCC dismissed the appeals.
Justice Cromwell wrote on behalf of a unanimous court as follows:
"During a bitter strike at the Giant Mine in Yellowknife, N.W.T., one of the strikers, Roger Warren, evaded security and surreptitiously entered the mine. He set an explosive device which, as he intended, was detonated by a trip wire, killing nine miners. Their survivors and another worker who came upon the carnage after the explosion sued the mine owner, its security firm and the territorial government for negligently failing to prevent the murders. They also claimed against the strikers' union, some union officials and members for failing to control Mr. Warren and for inciting him. Their claims largely succeeded at trial but were dismissed on appeal to the Court of Appeal. The principal issues on the appeal to this Court are whether the security firm and the government should be liable in negligence for failing to prevent the murders and whether the unions should be responsible, directly or vicariously, for the miners' deaths. The claims involving the mine owner, its chief executive officer and one of its directors have been settled and are therefore not before us.
In my opinion, the appeals should be dismissed. Although I would find that the security firm and the government owed a duty of care, my view is that the trial judge erred when he found that they had breached that duty. With respect to the claims against the union, union officers and members, I agree with the Court of Appeal that the trial judge's findings of liability cannot be sustained. I also agree with the Court of Appeal that the claims of Mr. O'Neil (the worker who came upon the carnage) should have been dismissed.
Did Pinkerton's and the government owed a duty of care to the murdered miners to take reasonable steps to prevent Mr. Warren's intentional wrongful act and, if so, whether they breached that duty. My conclusion is that they did owe a duty of care but that they did not breach it.
Did the trial judge applied the wrong legal test for causation. In my respectful view, he did.
In respect of the claims against the union. The questions to be answered are whether a national union and its local union are separate legal entities, whether vicarious liability should be found and whether the trial judge's findings concerning incitement are sound. I conclude that the national and the local unions are separate legal entities, that vicarious liability should not have been found and the national union cannot be found to have incited Mr. Warren.
In respect of the claim against Mr. Bettger and the claim advanced by Mr. O'Neil. In my view, the claims against Mr. Bettger and by Mr. O'Neil should be dismissed."
Regards,
Blair
Thursday, February 18, 2010
Wednesday, February 17, 2010
The Supreme Court of Canada Weighs in on Contract Interpretation Principles
The Supreme Court of Canada recently released an important decision (Tercon Contractors Ltd. v. British Columbia (Transportation and Highways) dealing with two issues:
1. principles of contractual interpretation; and
2. interpretation of exclusion of liability clauses.
The province of British Columbia (the "Province") issued a request for expression of interest for the design and construction of a highway. Six parties responded with submissions, including Tercon and Brentwood. A few months later, the Province informed the six respondents that it intended to design the highway itself and issued a request for proposals ("RFP") for constructing the highway. Under its terms, only the six original respondents were eligible to submit a proposal. The RFP also included an exclusion of liability clause which provided:
"Except as expressly and specifically permitted in these instructions to proponents, no proponent shall have any claim for any compensation of any kind whatsoever, as a result of participating in this RFP, and by submitting a proposal each proponent shall be deemed to have agreed that it has no claim."
Brentwood had no experience in drilling and blasting. Accordingly, it entered into a pre-bidding agreement with another construction company which was not a qualified bidder. Brentwood submitted a bid in its own name with its partner construction company listed as a "major member" of its team. Brentwood and Tercon were the two short-listed proponents and the Province selected Brentwood for the project.
Tercon sued the Province for damages. The trial judge found that the Brentwood bid was submitted by a joint venture of Brentwood and its partner and that the Province, which was aware of the situation, had breached the express provisions of the tendering contract with Tercon by considering an ineligible bid and by awarding it the work. The trial judge also held that the exclusion clause did not prevent recovery of damages to Tercon because the Province's breach was fundamental and that it was not fair or reasonable to enforce the exclusion clause in the circumstances. She held that the clause was ambiguous and resolved the ambiguity in Tercon's favour.
The British Columbia Court of Appeal set aside the decision. It held that the exclusion clause was clear and unambiguous and barred compensation for all the Province's defaults.
The Supreme Court of Canada ("SCC") allowed the appeal by a surprisingly close 5 to 4 decision. Justice Cromwell wrote for the majority.
He held that the questions for the SCC were whether Brentwood, as the successful bidder was eligible to participate in the RFP and if not, whether Tercon's claim for damages was barred by the exclusion clause. He held that the trial judge had reached the right result on both issues.
In respect of the first issue, the SCC accepted the trial judge's reasoning that the Province not only acted in a way that breached the express and implied terms of the contract by considering a bid from an ineligible bidder, it did so in a manner that was "an affront to the integrity and business efficacy of the tendering process."
Secondly, as for the exclusion clause, the SCC found that it did not protect the Province from Tercon's damage claim which arose from the Province's dealing with an ineligible party and from its breach of the implied duty of fairness to bidders. The key principle of contractual interpretation was that the words of one provision must not be read in isolation but should be considered in harmony with the rest of the contract and in light of its purposes and commercial context. Further, tendering contracts have a special commercial context which called for treating parties participating in the process fairly so that all bidders would be treated on an equal footing. It was particularly true in the context of public procurement where there was a need for transparency for the public at large.
Justice Cromwell wrote that:
"It seems to me to make even less sense to think that eligible bidders would participate in the RFP if the Province could avoid liability for ignoring an express term concerning eligibility to bid on which the entire RFP was premised and which was mandated by the statutorily approved process. "
Both the integrity and the business efficacy of the tendering process supported an interpretation that would allow the exclusion clause to operate compatibly with the eligibility limitations.
Implying an obligation to treat all bidders fairly and equally meant that clear language was necessary to exclude liability for a breach of such a basic requirement of the tendering process, particularly in the case of public procurement.
Justice Cromwell held that the clause was also ambiguous and that any ambiguity was resolved in the favour of Tercon.
Regards,
Blair
1. principles of contractual interpretation; and
2. interpretation of exclusion of liability clauses.
The province of British Columbia (the "Province") issued a request for expression of interest for the design and construction of a highway. Six parties responded with submissions, including Tercon and Brentwood. A few months later, the Province informed the six respondents that it intended to design the highway itself and issued a request for proposals ("RFP") for constructing the highway. Under its terms, only the six original respondents were eligible to submit a proposal. The RFP also included an exclusion of liability clause which provided:
"Except as expressly and specifically permitted in these instructions to proponents, no proponent shall have any claim for any compensation of any kind whatsoever, as a result of participating in this RFP, and by submitting a proposal each proponent shall be deemed to have agreed that it has no claim."
Brentwood had no experience in drilling and blasting. Accordingly, it entered into a pre-bidding agreement with another construction company which was not a qualified bidder. Brentwood submitted a bid in its own name with its partner construction company listed as a "major member" of its team. Brentwood and Tercon were the two short-listed proponents and the Province selected Brentwood for the project.
Tercon sued the Province for damages. The trial judge found that the Brentwood bid was submitted by a joint venture of Brentwood and its partner and that the Province, which was aware of the situation, had breached the express provisions of the tendering contract with Tercon by considering an ineligible bid and by awarding it the work. The trial judge also held that the exclusion clause did not prevent recovery of damages to Tercon because the Province's breach was fundamental and that it was not fair or reasonable to enforce the exclusion clause in the circumstances. She held that the clause was ambiguous and resolved the ambiguity in Tercon's favour.
The British Columbia Court of Appeal set aside the decision. It held that the exclusion clause was clear and unambiguous and barred compensation for all the Province's defaults.
The Supreme Court of Canada ("SCC") allowed the appeal by a surprisingly close 5 to 4 decision. Justice Cromwell wrote for the majority.
He held that the questions for the SCC were whether Brentwood, as the successful bidder was eligible to participate in the RFP and if not, whether Tercon's claim for damages was barred by the exclusion clause. He held that the trial judge had reached the right result on both issues.
In respect of the first issue, the SCC accepted the trial judge's reasoning that the Province not only acted in a way that breached the express and implied terms of the contract by considering a bid from an ineligible bidder, it did so in a manner that was "an affront to the integrity and business efficacy of the tendering process."
Secondly, as for the exclusion clause, the SCC found that it did not protect the Province from Tercon's damage claim which arose from the Province's dealing with an ineligible party and from its breach of the implied duty of fairness to bidders. The key principle of contractual interpretation was that the words of one provision must not be read in isolation but should be considered in harmony with the rest of the contract and in light of its purposes and commercial context. Further, tendering contracts have a special commercial context which called for treating parties participating in the process fairly so that all bidders would be treated on an equal footing. It was particularly true in the context of public procurement where there was a need for transparency for the public at large.
Justice Cromwell wrote that:
"It seems to me to make even less sense to think that eligible bidders would participate in the RFP if the Province could avoid liability for ignoring an express term concerning eligibility to bid on which the entire RFP was premised and which was mandated by the statutorily approved process. "
Both the integrity and the business efficacy of the tendering process supported an interpretation that would allow the exclusion clause to operate compatibly with the eligibility limitations.
Implying an obligation to treat all bidders fairly and equally meant that clear language was necessary to exclude liability for a breach of such a basic requirement of the tendering process, particularly in the case of public procurement.
Justice Cromwell held that the clause was also ambiguous and that any ambiguity was resolved in the favour of Tercon.
Regards,
Blair
Friday, February 5, 2010
NAN Grand Chief: What Treaties Mean
From a Letter by Nishnawbe Aski Nation Grand Chief Stan Beardy to the Thunder Bay, Ontario Chronicle Journal.
What treaties mean
Wednesday, February 3, 2010
I am writing in response to the anonymous letter titled Gov‘t Using Companies As Pawns To Avoid Forcing Treaty Compliance published on Jan. 23. I would like to thank that individual for making the public aware that this is a treaty issue. For First Nations, a treaty is an agreement between two sovereigns. This is recognized as common knowledge at the international level. Knowing so, the Supreme Court of Canada has determined that the Crown has a legal duty to consult. I wholeheartedly agree with the statement that the government is not complying with the treaty and that it is crucial for government to settle outstanding differences. It is truly unfortunate that the exploration and mining industry have to bear the brunt of our treaty partner‘s inability to do so. Until these outstanding differences are resolved between the First Nations and the Crown, blockades such as what is taking place in the Ring of Fire will become a common occurrence. It is plain and simple to First Nations; they are defending their constitutionally protected treaty, aboriginal and inherent rights which they believe come before any rights and interests the exploration and mining industry may have. Carts must not be put before the horse.
With respect to the misperceived notion that First Nations are contravening the treaty, I take great exception to the writer‘s interpretation of the words contained in Treaty 9. As many may not know, the manner in which the treaty making process took place in Canada was unjust. As such, First Nations take the position that in order to achieve true reconciliation, we also have to look at the context in which the treaty was signed and go beyond the words that were put before a nation of people whose mother tongue was inherently different. The discussion and resolution on the spirit and intent of the treaty has been long awaited by First Nations. For many years we have voiced the need to resolve this matter, but we have only been met by deaf and uncompromising ears. If the exploration and mining industry is ever to achieve the stability that they so naively expect to be in place without first resolving the treaty issue, then they should do their part in continuing to urge the Crown to be honourable treaty partners by living up to its spirit and intent. Recognizing that many may not truly understand what this means, NAN will be doing its part to educate.
Grand Chief Stan Beardy Nishnawbe Aski Nation
Regards,
Blair
What treaties mean
Wednesday, February 3, 2010
I am writing in response to the anonymous letter titled Gov‘t Using Companies As Pawns To Avoid Forcing Treaty Compliance published on Jan. 23. I would like to thank that individual for making the public aware that this is a treaty issue. For First Nations, a treaty is an agreement between two sovereigns. This is recognized as common knowledge at the international level. Knowing so, the Supreme Court of Canada has determined that the Crown has a legal duty to consult. I wholeheartedly agree with the statement that the government is not complying with the treaty and that it is crucial for government to settle outstanding differences. It is truly unfortunate that the exploration and mining industry have to bear the brunt of our treaty partner‘s inability to do so. Until these outstanding differences are resolved between the First Nations and the Crown, blockades such as what is taking place in the Ring of Fire will become a common occurrence. It is plain and simple to First Nations; they are defending their constitutionally protected treaty, aboriginal and inherent rights which they believe come before any rights and interests the exploration and mining industry may have. Carts must not be put before the horse.
With respect to the misperceived notion that First Nations are contravening the treaty, I take great exception to the writer‘s interpretation of the words contained in Treaty 9. As many may not know, the manner in which the treaty making process took place in Canada was unjust. As such, First Nations take the position that in order to achieve true reconciliation, we also have to look at the context in which the treaty was signed and go beyond the words that were put before a nation of people whose mother tongue was inherently different. The discussion and resolution on the spirit and intent of the treaty has been long awaited by First Nations. For many years we have voiced the need to resolve this matter, but we have only been met by deaf and uncompromising ears. If the exploration and mining industry is ever to achieve the stability that they so naively expect to be in place without first resolving the treaty issue, then they should do their part in continuing to urge the Crown to be honourable treaty partners by living up to its spirit and intent. Recognizing that many may not truly understand what this means, NAN will be doing its part to educate.
Grand Chief Stan Beardy Nishnawbe Aski Nation
Regards,
Blair
Monday, January 25, 2010
US Supreme Court Green Lights Special Interest Money
From a report by by Lawday:
WASHINGTON – President Obama in his weekly radio address strongly criticized the decision of the US Supreme Court last Thursday that removed long-standing campaign finance limits on corporate spending. The President noted that “this decision is giving a green light to a new stampede of special interest money in our politics”. In the 5-4 ruling that divided the court along conservative and liberal lines, the court ruled that the Constitution protects the free speech rights of corporations.
Justice Anthony Kennedy writing for the majority said, “the government may regulate corporate political speech through disclaimer and disclosure requirements but it may not suppress that speech altogether”. In a sharply worded dissent Justice Paul Stevens wrote, “the Court’s ruling threatens to undermine the integrity of elected institutions across the nation.” The ruling by the Court overturned Supreme Court decisions between 2003 and 1990 that upheld federal and state limits on expenditures by corporations supporting or opposing particular candidates. In the 2008 elections almost $6 billion was spent in federal campaigns including more than $1 billion from corporations and trade associations. The ruling will likely allow unions to spend more freely in political campaigns as well. Chief Justice John Roberts in a concurring opinion wrote, “ the First Amendment protects more than just individuals on a soapbox and the lonely past pamphleteer.” Justice Anthony Kennedy who cast the swing vote wrote the majority opinion which overturned his own decision in 1990 in Austin v. Michigan Chamber of Commerce. The 175 page decision included a sharply worded 90 page dissent by Justice John Paul Stevens that blasted the legal logic of majority and questioned the grasp of the cardinal principles of the judicial process.
The President said he will immediately work with Congress to enact legislation that would overturn the decision.
Regards,
Blair
WASHINGTON – President Obama in his weekly radio address strongly criticized the decision of the US Supreme Court last Thursday that removed long-standing campaign finance limits on corporate spending. The President noted that “this decision is giving a green light to a new stampede of special interest money in our politics”. In the 5-4 ruling that divided the court along conservative and liberal lines, the court ruled that the Constitution protects the free speech rights of corporations.
Justice Anthony Kennedy writing for the majority said, “the government may regulate corporate political speech through disclaimer and disclosure requirements but it may not suppress that speech altogether”. In a sharply worded dissent Justice Paul Stevens wrote, “the Court’s ruling threatens to undermine the integrity of elected institutions across the nation.” The ruling by the Court overturned Supreme Court decisions between 2003 and 1990 that upheld federal and state limits on expenditures by corporations supporting or opposing particular candidates. In the 2008 elections almost $6 billion was spent in federal campaigns including more than $1 billion from corporations and trade associations. The ruling will likely allow unions to spend more freely in political campaigns as well. Chief Justice John Roberts in a concurring opinion wrote, “ the First Amendment protects more than just individuals on a soapbox and the lonely past pamphleteer.” Justice Anthony Kennedy who cast the swing vote wrote the majority opinion which overturned his own decision in 1990 in Austin v. Michigan Chamber of Commerce. The 175 page decision included a sharply worded 90 page dissent by Justice John Paul Stevens that blasted the legal logic of majority and questioned the grasp of the cardinal principles of the judicial process.
The President said he will immediately work with Congress to enact legislation that would overturn the decision.
Regards,
Blair
Wednesday, January 20, 2010
Law Society Reinstates Multiple Repeat Offender
A Law Society of Upper Canada disciplinary panel reinstated Yaroslav Mikitchook’s licence last week after hearing evidence of psychological issues that include self-defeating personality disorder. At a hearing last week, Yaroslav Mikitchook convinced the LSUC to terminate the indefinite licence suspension imposed on him after his seventh finding of professional misconduct.“We understand he has been seeing a psychiatrist approximately twice a week, and it is our understanding that will continue,” said panel chair Paul Schabas. The panel relied on psychological reports indicating that Mikitchook suffers from obsessive-compulsive disorder as well as self-defeating personality disorder, also known as masochistic personality disorder. “They concluded Mr. Mikitchook made the errors he did for psychological reasons,” Schabas said. Counsel for the law society and the hearing panel agreed that Mikitchook’s progress in therapy represented a material change of circumstances. Mikitchook’s lawyer, David Cousins, said his client had attended approximately 140 therapy sessions. “The picture has changed for him to the point where he is now ready to return to practice,” Cousins said.
Last January, the law society deemed Mikitchook had once again engaged in professional misconduct, the seventh such finding since the early 1990s. Among the allegations, the panel heard evidence he had delayed issuing a statement of claim for a client’s 1999 auto accident until 2004. He also failed to issue a statement of claim for the same client in a separate 2005 collision. When the client terminated the retainer, Mikitchook failed to pass the file on to his new lawyer or respond to repeated correspondence, the ruling said. When a complaint against Mikitchook was filed, he neglected to respond to the LSUC. He then failed to show up for his disciplinary hearing, instead choosing to go on a holiday with his wife, documents show. Counsel for the law society argued last year the lawyer was “ungovernable,” constituted an “unacceptable risk to the public,” and should be disbarred.
At last week’s hearing, the panel heard evidence of Mikitchook’s lengthy disciplinary history. In 1992 and twice in 1994, the LSUC found him to have engaged in professional misconduct for failing to communicate with and misleading clients and failing to respond to the law society. His penalties escalated from reprimands and fines to a six-month suspension in 1994. In 1997, the law society ruled he had misappropriated funds in trust, a breach later shown to be due to bookkeeping inadequacies. As a result, he received a three-month suspension. The LSUC then suspended him for the third time in 2001 for professional misconduct in breaching a Convocation order. Similar complaints against Mikitchook on behalf of clients led to further misconduct proceedings in 2008.
The lawyer then submitted psychiatric evidence to the panel indicating he had two underlying personality disorders that drove him to behaviour that undermined his own career. “The self-defeating personality disorder causes people to be involved in self-sabotage,” said a law society ruling. Two psychiatrists conducted interviews and tests with the lawyer and submitted they didn’t feel he was ungovernable but rather that he lacks the normal ability to deal with complaints about his professional conduct. “He becomes paralyzed and is unable to respond in a normal way, leading to escalation,” the ruling said. In response, Mikitchook received another three-month suspension, after which the law society prohibited him from practising law except under the supervision of another licensed lawyer for five years. It also ordered him to engage in a course of therapy. However, Mikitchook then apparently ignored a subsequent notice of application related to the most recent misconduct proceedings and missed his panel hearing.
A letter from the lawyer’s psychiatrist described that oversight as “another example of his pattern of automatically turning a blind eye to situations he experiences as unpleasant rather than addressing them head on.” Dr. Norman Doidge, a psychiatrist who submitted a report to the panel, indicated Mikitchook was driven to do too much in his practice. “A core psychological conflict for Mr. Mikitchook leads him to repeatedly overextend himself to clients, without retainers, working many hours for free, and becoming inevitably overwhelmed and fed up,” Doidge wrote. “At times, he cuts off work on a file without having attended to the necessary communication with the client to maintain a healthy lawyer-client alliance.” As a result, a disciplinary panel suspended Mikitchook indefinitely until he could provide medical evidence that he is able to practise law. It also ordered him to engage in ongoing therapy and practise only under a plan of supervision for five years once the suspension ended.
In Doidge’s most recent report to the panel, he and two other psychiatrists agreed that Mikitchook is ready to return to the practice of law under supervision and is highly unlikely to run into further problems with clients and the governing body. The report indicated the lawyer would not be inclined to “put his head in the sand” and concluded “it would be psychiatrically beneficial for him to resume practice and contribute to the community with his legal skills. ”Counsel for the law society didn’t oppose the motion to terminate the suspension. “He’s shown insight into his difficulties,” Janice Duggan said. The panel accepted the motion. Cousins indicated his client has kept up with continuing legal education programs over the course of his suspension and has the support staff in place to return to his practice. As well, Mikitchook’s previous mentor has agreed to help implement a plan of supervision, he said.
Regards,
Blair
Monday, January 4, 2010
Defamation : "Responsible Journalism" as a defence
The Supreme Court of Canada recently released two decisions which will have a major impact on defamation cases.
In Quan v. Cusson (Nov. 9, 2006)(32420) Dec. 22, 09 C was an Ontario police constable who, shortly after the events of September 11, 2001 and without permission from his employer, traveled to New York City to assist with the search and rescue effort at Ground Zero. A newspaper published articles alleging that C had misrepresented himself to the authorities in New York and possibly interfered with the rescue operation. C brought a libel action against the newspaper and the reporters.
In Grant v. Torstar Corp. (Nov. 28, 2008)(32932) Dec. 22, 09 G and his company brought a libel action against a newspaper and reporter after an article was published concerning a proposed private golf course development on G’s lakefront estate. The story aired the views of local residents who were critical of the development’s environmental impact and suspicious that G was exercising political influence behind the scenes to secure government approval for the new golf course. The article quoted a neighbour who said that “everyone thinks it’s a done deal” because of G’s influence. The reporter, an experienced journalist, attempted to verify the allegations in the article, including asking G for comment, which G chose not to provide
In both cases the SCC decided that there is a "responsible journalism" defence in Ontario, including for bloggers, and ordered that there be a new trial.
The "responsible journalism" defence has been adopted by the English courts and gives greater scope to freedom of expression. The defence allows publishers to escape liability if they can establish that they acted responsibly in attempting to verify information on a matter of public interest. The SCC found that this defence represents a reasonable and proportionate response to the need to protect reputation while sustaining the public exchange of information.
This change to the law creates a new defence and leaves the traditional defence of qualified privilege intact. To be protected by the defence of responsible communication the publication must be on a matter of public interest and the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.
Where the defence is raised the trial judge first decides whether the publication is on a matter of public interest and if so, the jury then decides whether the standard of responsibility has been met.
In determining whether a publication is on a matter of public interest, the judge must consider the subject matter of the publication as a whole. To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public, or a segment of the public, has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached. Public interest is not confined to publications on government and political matters, nor is it necessary that the plaintiff be a “public figure”.
The following factors may aid the jury in determining whether a defamatory communication on a matter of public interest was responsibly made: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth; and (h) any other relevant circumstances.
Here are the links to the decisions:
http://scc.lexum.umontreal.ca/en/2009/2009scc62/2009scc62.html
http://scc.lexum.umontreal.ca/en/2009/2009scc61/2009scc61.html
Regards,
Blair
In Quan v. Cusson (Nov. 9, 2006)(32420) Dec. 22, 09 C was an Ontario police constable who, shortly after the events of September 11, 2001 and without permission from his employer, traveled to New York City to assist with the search and rescue effort at Ground Zero. A newspaper published articles alleging that C had misrepresented himself to the authorities in New York and possibly interfered with the rescue operation. C brought a libel action against the newspaper and the reporters.
In Grant v. Torstar Corp. (Nov. 28, 2008)(32932) Dec. 22, 09 G and his company brought a libel action against a newspaper and reporter after an article was published concerning a proposed private golf course development on G’s lakefront estate. The story aired the views of local residents who were critical of the development’s environmental impact and suspicious that G was exercising political influence behind the scenes to secure government approval for the new golf course. The article quoted a neighbour who said that “everyone thinks it’s a done deal” because of G’s influence. The reporter, an experienced journalist, attempted to verify the allegations in the article, including asking G for comment, which G chose not to provide
In both cases the SCC decided that there is a "responsible journalism" defence in Ontario, including for bloggers, and ordered that there be a new trial.
The "responsible journalism" defence has been adopted by the English courts and gives greater scope to freedom of expression. The defence allows publishers to escape liability if they can establish that they acted responsibly in attempting to verify information on a matter of public interest. The SCC found that this defence represents a reasonable and proportionate response to the need to protect reputation while sustaining the public exchange of information.
This change to the law creates a new defence and leaves the traditional defence of qualified privilege intact. To be protected by the defence of responsible communication the publication must be on a matter of public interest and the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.
Where the defence is raised the trial judge first decides whether the publication is on a matter of public interest and if so, the jury then decides whether the standard of responsibility has been met.
In determining whether a publication is on a matter of public interest, the judge must consider the subject matter of the publication as a whole. To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public, or a segment of the public, has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached. Public interest is not confined to publications on government and political matters, nor is it necessary that the plaintiff be a “public figure”.
The following factors may aid the jury in determining whether a defamatory communication on a matter of public interest was responsibly made: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth; and (h) any other relevant circumstances.
Here are the links to the decisions:
http://scc.lexum.umontreal.ca/en/2009/2009scc62/2009scc62.html
http://scc.lexum.umontreal.ca/en/2009/2009scc61/2009scc61.html
Regards,
Blair
Thursday, December 3, 2009
Wal-Mart beats the Union
Attention Wal-Mart shoppers:
In Plourde v. Wal‑Mart Canada Corp., 2009 SCC 54 the Supreme Court of Canada considered an application by an employee to be reinstated after a Walmart store had been closed ostensibly to defeat union certification.
The union certified to represent the employees of Wal‑Mart in Jonquière, Quebec. The Jonquière store was the first Wal‑Mart store to be unionized in North America. After several fruitless bargaining sessions, the union filed an application under the Quebec Labour Code to establish the provisions of a first collective agreement. On February 9, 2005, the Minister of Labour referred the dispute to arbitration and notified the parties of the referral. That same day, Wal‑Mart informed the employees of its decision to close the store. On April 29, 2005, approximately 190 employees were terminated. Many proceedings were initiated by the Wal‑Mart employees or their union arising out of the store’s closure, which was presented by the union merely as a step taken by Wal‑Mart in a larger employer strategy of hindrance, intimidation and union‑busting. P filed a complaint under ss. 15 to 17 of the Labour Code claiming to have lost his employment because of his union activities and sought an order that he be reinstated in his job.
The Commission des relations du travail (“CRT”) held that P could rely on the presumption under s. 17, since he had engaged in numerous significant union activities that were concomitant with the termination of his employment. However, the CRT found that Wal‑Mart had shown the store’s closure to be genuine and permanent and that in itself, according to a long line of cases from City Buick onwards, is “good and sufficient reason” within the meaning of s. 17 to justify the dismissal. The Superior Court dismissed P’s application for judicial review and held that the CRT was correct in not requiring Wal‑Mart to prove its reasons for closing the store. The Court of Appeal dismissed P’s motion for leave to appeal.
The Supreme Court of Canada dismissed the appeal but was careful in its reasons to limit the effect of the decision to the specific procedural issue presented by the Labour Code. Specifically the court found that the reinstatement remedy which was sought by the appellant was not available where the employer had closed the premises.
The court held that the question raised by the appeal was not whether employees have a remedy against an employer who closes a workplace for anti‑union motives (they do have such a remedy under ss. 12 to 14 of the Code) but whether employees of a closed business can bring their claim within ss. 15 to 17 so as to obtain the advantage of a statutory presumption that they lost their jobs because they exercised their collective bargaining rights. Under ss. 15 to 17, the question before the tribunal relates to the reasons for the employees’ loss of jobs whereas the question that can be put in play under ss. 12 to 14 is the broader issue of why the plant was closed at all, and specifically was it closed as part of an anti‑union strategy.
A finding of an unfair labour practice under ss. 12 to 14 opens up broader redress under the general remedial provisions provided by ss. 118 and 119 of the Code for the benefit of all employees who suffered as a result of the wrongful store closure, including those who where not involved in union activity, and even for those who opposed the union.
In the earlier Place des Arts decision the SCC held that no legislation in Quebec obliged an employer to remain in business and that an employer can close a plant for “socially reprehensible considerations”. In this case the SCC held that the effect of Place des Arts was to exclude in a workplace closure situation the application of s. 17 but not to immunize an employer from any financial consequences for associated unfair labour practices. Nor did it preclude a finding that the closure itself constitutes an unfair labour practice aimed at hindering the union or the employees from exercising rights under the Code. It is open to a union or employees to bring evidence of anti‑union conduct to establish an unfair labour practice under ss. 12 to 14 of the Code.
Therefore the procedural vehicle offered by ss. 15 to 17 of the Labour Code is not available to an employee in circumstances where a workplace no longer exists. The s. 15 reinstatement remedy presupposes the existence of a place to which reinstatement is possible.
Regards,
Blair
In Plourde v. Wal‑Mart Canada Corp., 2009 SCC 54 the Supreme Court of Canada considered an application by an employee to be reinstated after a Walmart store had been closed ostensibly to defeat union certification.
The union certified to represent the employees of Wal‑Mart in Jonquière, Quebec. The Jonquière store was the first Wal‑Mart store to be unionized in North America. After several fruitless bargaining sessions, the union filed an application under the Quebec Labour Code to establish the provisions of a first collective agreement. On February 9, 2005, the Minister of Labour referred the dispute to arbitration and notified the parties of the referral. That same day, Wal‑Mart informed the employees of its decision to close the store. On April 29, 2005, approximately 190 employees were terminated. Many proceedings were initiated by the Wal‑Mart employees or their union arising out of the store’s closure, which was presented by the union merely as a step taken by Wal‑Mart in a larger employer strategy of hindrance, intimidation and union‑busting. P filed a complaint under ss. 15 to 17 of the Labour Code claiming to have lost his employment because of his union activities and sought an order that he be reinstated in his job.
The Commission des relations du travail (“CRT”) held that P could rely on the presumption under s. 17, since he had engaged in numerous significant union activities that were concomitant with the termination of his employment. However, the CRT found that Wal‑Mart had shown the store’s closure to be genuine and permanent and that in itself, according to a long line of cases from City Buick onwards, is “good and sufficient reason” within the meaning of s. 17 to justify the dismissal. The Superior Court dismissed P’s application for judicial review and held that the CRT was correct in not requiring Wal‑Mart to prove its reasons for closing the store. The Court of Appeal dismissed P’s motion for leave to appeal.
The Supreme Court of Canada dismissed the appeal but was careful in its reasons to limit the effect of the decision to the specific procedural issue presented by the Labour Code. Specifically the court found that the reinstatement remedy which was sought by the appellant was not available where the employer had closed the premises.
The court held that the question raised by the appeal was not whether employees have a remedy against an employer who closes a workplace for anti‑union motives (they do have such a remedy under ss. 12 to 14 of the Code) but whether employees of a closed business can bring their claim within ss. 15 to 17 so as to obtain the advantage of a statutory presumption that they lost their jobs because they exercised their collective bargaining rights. Under ss. 15 to 17, the question before the tribunal relates to the reasons for the employees’ loss of jobs whereas the question that can be put in play under ss. 12 to 14 is the broader issue of why the plant was closed at all, and specifically was it closed as part of an anti‑union strategy.
A finding of an unfair labour practice under ss. 12 to 14 opens up broader redress under the general remedial provisions provided by ss. 118 and 119 of the Code for the benefit of all employees who suffered as a result of the wrongful store closure, including those who where not involved in union activity, and even for those who opposed the union.
In the earlier Place des Arts decision the SCC held that no legislation in Quebec obliged an employer to remain in business and that an employer can close a plant for “socially reprehensible considerations”. In this case the SCC held that the effect of Place des Arts was to exclude in a workplace closure situation the application of s. 17 but not to immunize an employer from any financial consequences for associated unfair labour practices. Nor did it preclude a finding that the closure itself constitutes an unfair labour practice aimed at hindering the union or the employees from exercising rights under the Code. It is open to a union or employees to bring evidence of anti‑union conduct to establish an unfair labour practice under ss. 12 to 14 of the Code.
Therefore the procedural vehicle offered by ss. 15 to 17 of the Labour Code is not available to an employee in circumstances where a workplace no longer exists. The s. 15 reinstatement remedy presupposes the existence of a place to which reinstatement is possible.
Regards,
Blair
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