In 1731 the English Parliament passed a statute that required proceedings in the courts of England to be conducted in English. The act was entitled: An Act that all Proceedings in Courts of Justice within that part of Great Britain called England, and in the Court of Exchequer in Scotland, shall be in the English Language, 1731, 4 Geo. II, c.26 (the "1731 Act"). Over 100 years later, on November 19, 1858, the 1731 Act was received into the law of the province of British Columbia and has not been modified since. It remains in force in British Columbia pursuant to the requirements of the British Columbia Law and Equity Act (1996).
In 2011, a BC French Language School Board and a Federation of Francophone parents, brought an interlocutory application to the British Columbia Supreme Court to have exhibits to affidavits written in French introduced into evidence. The applicants intended to rely on the content of the exhibits, which were prepared before the litigation was contemplated, to further their roles in the "protection and promotion of French-language education in the province". The province of British Columbia objected to the admission of the exhibits without accompanying English translations on the basis that the 1731 Act and Rule 22-3 of the BC Supreme Court Civil Rules (the "Rules") both required "court proceedings" and any "document prepared for use in the court" to be in English. The Chamber's judge denied the application. The British Columbia Court of Appeal dismissed the applicants' appeal.
In a split (4-3) decision, the Supreme Court of Canada dismissed the applicants' appeal to that court, but allowed them to recover their costs from the province throughout all proceedings.
The court's majority decision was written by Mr. Justice Wagner:
Justice Wagner held that the BC legislature had properly used its powers to regulate the language to be used in court proceedings by adopting provisions that required civil proceedings, which included exhibits to affidavits, to be in English. In doing so, the legislature ousted the inherent jurisdiction of the courts and therefore there was no residual discretion left to admit documents in other languages without an English translation.
In addition, the BC legislature had not repealed or modified the 1731 Act, nor had it implicitly modified it by "occupying the field" with subsequent legislation. To the contrary, the BC courts have repeatedly endorsed the 1731 Act and the legislature has declined to change the law on language in court proceedings.
Even if the 1731 Act did not apply, Rule 22-3 of the Rules required that exhibits attached to affidavits and filed in court be in English. The Rule therefore limits the courts inherent jurisdiction to admit documents in languages other than English.
Finally, it was not inconsistent with the Canadian Charter of Rights and Freedoms for the BC legislature to restrict the language of court proceedings to English. The Charter does not require any province other than New Brunswick to provide for court proceedings in both official language.
The dissenting judgment was written by Justice Karakatsanis:
Justice Karakatsanis found that neither the 1731 Act nor the Rules addressed the language of exhibits in court proceedings. In light of the silence of the BC legislature on the issue and pursuant to the court's inherent jurisdiction, judges could allow French language documents not prepared for use in court to be filed in evidence as exhibits where this will ensure the administration of justice according to law in a regular, orderly and effective manner. In a somewhat technical distinction, Justice Karakatsanis found that under the 1731 Act, the prohibition on foreign languages in "proceedings" no matter how broadly proceedings is defined - does not address the language of exhibits filed as evidence or prevent the tendering or acceptance of a document in a language other than English.
Similarly, the Rules do not define "evidence" or "exhibit" and do not directly address the language of the proceedings other than Rule 22-3 which refers to documents "prepared for use in the court". The exhibits at issue in the appeal were created in French long before litigation was contemplated and therefore were not prepared for use in the court.
In the absence of clear and precise statutory language addressing the language in which documents not prepared for use in court must be filed, the BC legislature had not ousted the court's inherent jurisdiction. Therefore the Supreme Court could exercise that jurisdiction to admit French documents if doing so would uphold, protect and fulfil the judicial function of administering justice.
Regards,
Blair
Monday, July 29, 2013
Monday, July 22, 2013
Supreme Court Articulates Canadian Approach to Refugee Protection Convention
Article 1F(a) of the United Nations Convention Relating to the Status of Refugees ("Refugee Convention") denies refugee protection
to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes;
Such article of the Refugee Convention is incorporated directly into Canadian law by section 98 of the Immigration and Refugee Protection Act ("Act").
In a case recently decided by the Supreme Court of Canada, the appellant, Rachidi Ekanza Ezokola, began his career with the government of the Democratic Republic of Congo ("DRC") as a financial attaché in Kinshasa. By 2007, Mr. Ezokola was leading the Permanent Mission of the DRC at the United Nations in New York. In January 2008, he resigned that post and fled to Canada. He protested that he could no longer work for the government of President Laurent Kabila, which he considered corrupt, anti-democratic and violent. He claimed that his resignation would be viewed as an act of treason by the DRC government and that the DRC's intelligence service had already harassed, intimidated, and threatened him. Mr. Ezokola sought refugee protection for himself and his family in Canada.
A confusing array of decisions resulted from Mr. Ezokola's application: the Refugee Protection Division of the Immigration and Refugee Board excluded Mr. Ezokola from the definition of refugee under the article of the Refugee Convention ("Article") and found that he was complicit in crimes against humanity committed by the DRC government; the Federal Court allowed Mr. Ezokola's application for judicial review but certified a question regarding the nature of his complicity under the Article; the Federal Court of Appeal held that a senior official in a government, such as Mr. Ezokola, could demonstrate personal and knowing participation and be complicit in the crimes of the government by remaining in his or her position without protest and continuing to offend the interest of his or her government while being aware of the crimes committed by the government. The FCA remitted the matter to a different panel of the Refugee Protection Division to apply that test to the facts of this case.
On further appeal to a full panel of the Supreme Court of Canada, the court held that Mr. Ezokola's appeal should be allowed and the matter remitted to a new panel of the Refugee Protection Division for redetermination in accordance with the Supreme Court's reasons.
The Supreme Court held that in order to exclude a claimant from the definition of refugee by virtue of the Article, there must be serious reasons for considering that the claimant has voluntarily made a significant and knowing contribution to the organization's crime or criminal purpose. Decision makers should not over-extend the concept of complicity to capture individuals based on mere association or passive acquiesces. The court held that it was necessary to articulate the Canadian approach to bring it in line with the purpose of the Refugee Convention and the Article, the role of the Refugee Protection Division, international law, the approach to complicity under the Article taken by other parties to the Refugee Convention and fundamental criminal law principles. These sources all supported the adoption of a contribution-based test for complicity, one that requires a voluntary, knowing and significant contribution to the crime or criminal purpose of a group.
First, the Refugee Convention embodies profound concern for refugees and a commitment to assure refugees the widest possible exercise of fundamental rights and freedoms. However, it also protects the integrity of International Refugee Protection by ensuring that the authors of crimes against peace, war crimes and crimes against humanity do not exploit the system to their own advantage.
Second, unlike international criminal tribunals, the Refugee Protection Division does not determine guilt or innocence but excludes those that are not bona fide refugees at the time of their claim for refugee status. While the evidentiary standard is lower than that applicable in actual war crimes trials, it requires more than mere suspicion.
Third, in international law, the broad concept of complicity does not hold individuals liable for crimes committed by a group simply because they are associated with the group or passively acquiesce to the group's criminal purposes. Common purpose liability requires a significant contribution to a crime committed or attempted by a group acting with a common purpose and encompasses recklessness with respect to the crime or criminal purpose. However, even it does not capture individuals merely based on rank or association.
Fourth, other state parties to the Refugee Convention have approached the Article in a manner that concentrates on the actual role played by the particular person. They require evidence that the individual knowingly made a significant contribution to the group's crime or criminal purpose before excluding the person from the definition of refugee.
Fifth, and finally, a concept of complicity that leaves any room for guilt by association or passive acquiescence violates two fundamental criminal law principles: the principle that criminal liability is not attached to admissions unless an individual is under duty to act, and the principle that individuals can only be liable for their own culpable conduct.
The court held that in light of the foregoing, exclusions based on the criminal activities of the group and not on the individual's contribution to that criminal activity, must be firmly foreclosed in Canadian law. Whether an individual's conduct meets the actus reus and mens rea for complicity will depend on the facts of each case including: (i) the size and nature of the organization; (ii) the part of the organization with which the claimant was most directly concerned; (iii) the claimant's duties and activities within the organization; (iv) the claimant's position or rank in the organization; (v) the length of time the claimant was in the organization, particularly after acquiring knowledge of the groups crime or criminal purpose; and (vi) the method by which the claimant was recruited and the claimant's opportunity to leave the organization.
These factors are not necessarily exhaustive, nor will each of them be significant in every case. Their assessment will necessarily be highly contextual, the focus must always remain on the individual contribution to the crime or criminal purpose and any viable defences should be taken into account.
Regards,
Blair
to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes;
Such article of the Refugee Convention is incorporated directly into Canadian law by section 98 of the Immigration and Refugee Protection Act ("Act").
In a case recently decided by the Supreme Court of Canada, the appellant, Rachidi Ekanza Ezokola, began his career with the government of the Democratic Republic of Congo ("DRC") as a financial attaché in Kinshasa. By 2007, Mr. Ezokola was leading the Permanent Mission of the DRC at the United Nations in New York. In January 2008, he resigned that post and fled to Canada. He protested that he could no longer work for the government of President Laurent Kabila, which he considered corrupt, anti-democratic and violent. He claimed that his resignation would be viewed as an act of treason by the DRC government and that the DRC's intelligence service had already harassed, intimidated, and threatened him. Mr. Ezokola sought refugee protection for himself and his family in Canada.
A confusing array of decisions resulted from Mr. Ezokola's application: the Refugee Protection Division of the Immigration and Refugee Board excluded Mr. Ezokola from the definition of refugee under the article of the Refugee Convention ("Article") and found that he was complicit in crimes against humanity committed by the DRC government; the Federal Court allowed Mr. Ezokola's application for judicial review but certified a question regarding the nature of his complicity under the Article; the Federal Court of Appeal held that a senior official in a government, such as Mr. Ezokola, could demonstrate personal and knowing participation and be complicit in the crimes of the government by remaining in his or her position without protest and continuing to offend the interest of his or her government while being aware of the crimes committed by the government. The FCA remitted the matter to a different panel of the Refugee Protection Division to apply that test to the facts of this case.
On further appeal to a full panel of the Supreme Court of Canada, the court held that Mr. Ezokola's appeal should be allowed and the matter remitted to a new panel of the Refugee Protection Division for redetermination in accordance with the Supreme Court's reasons.
The Supreme Court held that in order to exclude a claimant from the definition of refugee by virtue of the Article, there must be serious reasons for considering that the claimant has voluntarily made a significant and knowing contribution to the organization's crime or criminal purpose. Decision makers should not over-extend the concept of complicity to capture individuals based on mere association or passive acquiesces. The court held that it was necessary to articulate the Canadian approach to bring it in line with the purpose of the Refugee Convention and the Article, the role of the Refugee Protection Division, international law, the approach to complicity under the Article taken by other parties to the Refugee Convention and fundamental criminal law principles. These sources all supported the adoption of a contribution-based test for complicity, one that requires a voluntary, knowing and significant contribution to the crime or criminal purpose of a group.
First, the Refugee Convention embodies profound concern for refugees and a commitment to assure refugees the widest possible exercise of fundamental rights and freedoms. However, it also protects the integrity of International Refugee Protection by ensuring that the authors of crimes against peace, war crimes and crimes against humanity do not exploit the system to their own advantage.
Second, unlike international criminal tribunals, the Refugee Protection Division does not determine guilt or innocence but excludes those that are not bona fide refugees at the time of their claim for refugee status. While the evidentiary standard is lower than that applicable in actual war crimes trials, it requires more than mere suspicion.
Third, in international law, the broad concept of complicity does not hold individuals liable for crimes committed by a group simply because they are associated with the group or passively acquiesce to the group's criminal purposes. Common purpose liability requires a significant contribution to a crime committed or attempted by a group acting with a common purpose and encompasses recklessness with respect to the crime or criminal purpose. However, even it does not capture individuals merely based on rank or association.
Fourth, other state parties to the Refugee Convention have approached the Article in a manner that concentrates on the actual role played by the particular person. They require evidence that the individual knowingly made a significant contribution to the group's crime or criminal purpose before excluding the person from the definition of refugee.
Fifth, and finally, a concept of complicity that leaves any room for guilt by association or passive acquiescence violates two fundamental criminal law principles: the principle that criminal liability is not attached to admissions unless an individual is under duty to act, and the principle that individuals can only be liable for their own culpable conduct.
The court held that in light of the foregoing, exclusions based on the criminal activities of the group and not on the individual's contribution to that criminal activity, must be firmly foreclosed in Canadian law. Whether an individual's conduct meets the actus reus and mens rea for complicity will depend on the facts of each case including: (i) the size and nature of the organization; (ii) the part of the organization with which the claimant was most directly concerned; (iii) the claimant's duties and activities within the organization; (iv) the claimant's position or rank in the organization; (v) the length of time the claimant was in the organization, particularly after acquiring knowledge of the groups crime or criminal purpose; and (vi) the method by which the claimant was recruited and the claimant's opportunity to leave the organization.
These factors are not necessarily exhaustive, nor will each of them be significant in every case. Their assessment will necessarily be highly contextual, the focus must always remain on the individual contribution to the crime or criminal purpose and any viable defences should be taken into account.
Regards,
Blair
Thursday, July 18, 2013
Court Rules That Bikers Can Operate Strip Joints
The Ontario Court of Appeal recently considered whether being a member of a motorcycle club that is recognized as a criminal organization, is sufficient to disentitle a person from holding a liquor licence in Ontario.
Robert Barletta is a
"full patch" member of the Hells Angels. He is a founding member of the
London, Ontario chapter of the Hells Angels and was its President for at least 5
years. Mr. Barletta has no record of criminal convictions or infractions of the
Liquor Licence Act ("Act"). Since 2001 he has owned and operated a well known strip joint in London called Famous Flesh Gordon's and
has done so since 2001.
In 2010, the
Registrar of the Alcohol and Gaming Commission of Ontario
("Commission") applied to the Board of the Commission to revoke
Mr. Barletta's liquor licence for Flesh Gordon's. The sole issue before the
Board was whether Mr. Barletta's membership in the Hells Angels was in itself
sufficient to strip him of the privilege of holding a liquor licence. The Hells Angels meet the definition of a "criminal organization" under the Criminal Code.
The Board concluded
that membership in the biker gang was not enough to revoke Mr. Barletta's liquor licence. The Divisional Court dismissed the Registrar's appeal from the
Board's decision. The Registrar appealed to the Court of Appeal.
The Court of Appeal
allowed the Registrar's appeal and referred the application back to the Board to be dealt
with in accordance with its reasons.
There were 3 issues
before the Court of Appeal.
First Issue
- Did the Board Apply the Proper Standard of Proof?
The standard of
proof provided by the Act is that of "reasonable grounds for belief":
The Act provided that an applicant is entitled to be issued a liquor licence unless his past or present conduct affords reasonable grounds for belief that he will not carry on business in accordance with the law and with honesty and integrity.
"Reasonable grounds for belief" is a
lower standard of proof than "balance of probabilities". The Supreme Court
of Canada has held the reasonable grounds to believe" standard requires something
more than mere suspicion, but less than the standard applicable in civil matters
of proof on the balance of probabilities. In essence, reasonable grounds will
exist where there is an objective basis for the belief which is based
on compelling and credible information.
The Court of Appeal
held that there was no doubt that the Board had applied a higher standard of
proof than the Act called for. Requiring proof on the balance of probabilities,
rather than on reasonable grounds to believe, was an error of law. Moreover,
it was an error on a question of law of general importance to the legal system,
one which is outside the area of expertise of the Board as an administrative
decision maker. Accordingly, the Board's choice of standard proof cannot
attract any deference by the Court of Appeal.
Second Issue
- Did the Board Apply the Test Called for by the
Act?
The Act provides
that an applicant is entitled to be issued a liquor license except if "the past
or present conduct of the person affords reasonable grounds for belief that the
applicant will not carry on business in accordance with the law and with
integrity and honesty."
The Court of Appeal
found that the Board had misconstrued this test by limiting its examination of
Mr. Barletta's conduct to his conduct in operating Flesh Gordon's. The Court of Appeal held
that there was no such limiting language in the Act. The words of the
Act are not limited to conduct in operating a strip joint or in any other
way. In addition, there was no requirement that Mr. Barletta must have engaged in
past criminal activity. The Court of Appeal held that past conduct that was not
criminal could also provide necessary grounds for belief. Finally, the Court of
Appeal held that the Board can look beyond Mr. Barletta's past or present
observation of the regulatory laws for his strip joint. The requirement that he
carry on business in the future in accordance with law and with integrity and
honesty is not limited to complying with the regulatory laws applicable to
licenced establishments.
Third Issue
- Was Revocation the Only Reasonable Conclusion that the Board Could Have
Reached?
The Court of Appeal held that
revocation of the licence for Flesh Gordon's was not the only possible result of the application. There was no doubt that the evidence about
the Hells Angels as a criminal organization however, it was a fact that while he
was a member, Mr. Barletta had apparently acted lawfully, with honesty and
integrity and operated the strip joint properly for almost 10 years.
Accordingly, the court held that the proper remedy in the appeal was to remit the Registrar's
application to revoke Mr. Barletta's license back to the Board for reconsideration in
accordance with the court's reasons.
Regards,
Blair
Friday, July 12, 2013
Law Firm Gets Knuckles Rapped For Acting Against Client
McKercher LLP
("McKercher"), a Saskatchewan law firm, was acting for Canadian
National Railway Company ("CN") on several matters when,
without CN's consent or knowledge, it accepted a retainer to act for the
plaintiff in a $1.75 billion class action against CN. CN first learned that
McKercher was acting against it in the class action when it was served with the
statement of claim. McKercher hastily terminated all retainers that the firm
had with CN, except for one which CN terminated. CN applied to the Saskatchewan
Court of Queen's Bench to remove McKercher as the lawyers of record in the class
action due to the apparent conflict of interest. The motion judge granted the
application and disqualified McKercher. The Saskatchewan Court of Appeal
overturned the motion judge's order.
On appeal to the
Supreme Court of Canada, the court allowed the appeal and ordered that the case
be remitted back to the Court of Queen's Bench for determination of an
appropriate remedy.
The Supreme Court,
in a unanimous decision, with reasons by Chief Justice McLachlin, held
that
a lawyer's duty
of loyalty to a client has three "salient
dimensions": a duty to
avoid conflicting interests; a duty of
commitment to the client's cause; and a duty of
candour.
The duty to avoid
conflicts is mainly concerned with protecting a former or current client's
confidential information and with ensuring the effective representation of a
current client.
The duty of
commitment provides that, subject to law society rules, a lawyer should not summarily drop a client simply to avoid conflicts of
interest.
The duty of candour
requires the lawyer to disclose any factors relevant to his ability to provide
effective representation to the client. A lawyer should advise an existing
client before accepting a retainer that will require him to act against the
client.
In the case of
R. v. Neil, the Supreme Court of Canada held that the
general "bright line rule" is that a lawyer (and a law firm) may not
concurrently represent clients adverse in interest without first obtaining
their consent. The rule cannot be rebutted or otherwise attenuated and it
applies to concurrent representation in both related and unrelated
matters.
However, the rule is
limited in scope. It applies only where the immediate interest of clients are
directly adverse in the matters on which the lawyer is acting and it applies
only to legal interests, as opposed to commercial or strategic interests. It
cannot be raised tactically. It does not apply in circumstances where it is
unreasonable for a client to expect that a law firm will not act against it in
unrelated matters.
In this case,
McKercher's conduct fell squarely within the scope of the bright line rule. CN
did not tactically abuse the bright line rule. It was reasonable in the
circumstances for CN to have expected that McKercher would not concurrently
represent a party suing it for $1.75 billion. McKercher's failure to obtain
CN's consent before accepting the class action retainer breached the bright line
rule. McKercher's termination of its retainers with CN breached its duty of
commitment. McKercher's failure to advise CN of its intention to represent the
class breached its duty of candour. However, McKercher possessed no relevant
confidential information that could be used to prejudice CN in the class action
proceedings.
Justice McLachlin
held that disqualification of a law firm may be required to avoid the risk of
improper use of confidential information, to avoid the risk of impaired
representation, or to maintain the repute of the administration of justice. In
this case, the only concern that would warrant disqualification is the
protection of the repute of the administration of justice.
While a breach of
the bright line rule normally attracts the remedy of disqualification, factors
that may militate against it must be considered. These factors
include:
1. behaviour
disentitling the complaining party from seeking disqualification of counsel,
such as delay in bringing the motion;
2. significant
prejudice to the new client's interest in retaining its counsel of choice, and
that party's ability to retain new counsel; and
3. the fact that
the law firm accepted the conflicting retainer in good faith, reasonably
believing that the concurrent representation fell beyond the scope of the bright
line rule or applicable law society rules.
Justice McLachlin
held that as the motion judge did not have the benefit of the Supreme Court's
reasons, the matter should be remitted to that judge for re-determination of the
appropriate remedy.
Regards,
Blair
Tuesday, July 2, 2013
Ontario Court of Appeal Slams Law Association for Racial Profiling
The Ontario Court of Appeal has an error-correcting function and in the recent case of Pieters and Noble v. Peel Law Association and Firth (2013 ONCA 396)] the court corrected several errors made by a three-judge panel of the Divisional Court. The Court of Appeal restored the finding of a Vice-Chair of the Ontario Human Rights Tribunal which found that the librarian employed by the Law Association at the Brampton court house had racially profiled three black lawyers by stopping them in the lounge of the court house and asking that they produce identification to prove that they were lawyers.
In this case, Mr. Pieters, Mr. Noble and an articling law student were involved in a case at the Brampton court house. They were not gowned. There are all black. During a break in the case, the three men went to the lawyers' lounge operated by the Peel Law Association with some other lawyers who were involved in the case. According to the Law Association's policy, only lawyers and law students are permitted to use the lounge, robing room and library at the court house and signs are posted to that effect.
Firth, the librarian, approached the three men aggressively and asked them to produce identification to prove that they were lawyers. She did not ask to see the identification of anyone else in the lounge. No one else in the lounge was black. The lawyers brought an application to the Tribunal alleging, in essence, racial profiling. The Vice-Chair of the Tribunal found the rights of the men had been infringed and awarded each $2,000 for injury to his dignity.
The Divisional Court allowed the Law Association's application for judicial review and quashed the decision of the Tribunal.
In a well-reasoned decision, Justice Juriansz, writing for the appeal court (Justices Cronk and Pepall concurring), saw what was largely obvious to most of us who have been following the case, overturned the decision of the Divisional Court and reinstated the decision of the Vice-Chair.
In reaching its decision, the Justice Jurianzl found that the Divisional Court had erred in finding that there needed to be a "causal nexus" between a prohibited ground of discrimination and the disadvantage suffered by a complainant. Such a requirement elevated the test for discrimination beyond what the law requires and seemed to run counter to the evolution of human rights jurisprudence which focuses on the discriminatory effects of the conduct rather than on intention and direct cause.
Secondly, Justice Jurianz found that the Divisional Court had erred in confusing the distinction between burden of proof and "evidential burden". In this case, the evidential (or evidentiary) burden works as follows. The onus lies on the complainant to establish discrimination on the balance of probabilities and if the complainant does that, the evidentiary burden shifts to the respondent. Once the evidentiary burden has shifted, the respondent faces the tactical choice of explaining his conduct or risking being found guilty. As in medical malpractice cases, where "the physician is usually in a better position to know the cause of an injury than the patient", in discrimination cases, the question of whether a prohibited ground was a factor in adverse treatment, is a difficult one for the complainant. Respondents are uniquely positioned to know why they asked a person for identification. In these cases, the outcome depends on the respondent's state of mind which cannot be directly observed and must always be inferred from circumstantial evidence. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.
The shifting of the evidential burden does not put the respondents in the position of having to prove a negative, as the Divisional Court held. The Court of Appeal held that rather it puts them in the position of having to call affirmative evidence on matters they know much better than anyone else - namely, why they made a particular decision or took a particular action.
Thirdly, the court rejected the respondents' argument that the Tribunal erred by analyzing the evidence in a compartmentalized fashion. The court held that it would leave to tribunals how they structured their analysis of the evidence. The only thing that matters is that "at the end of the day" the tribunal must take into consideration all the evidence.
Fourthly, the court held that the Divisional Court erred by finding that the Vice-Chair had disregarded evidence. The Vice-Chair had considered the fact that the appellants had been seated near the door to the library, which was not even raised by the librarian as a reason for her conduct, (although the Divisional Court inexplicably held that it could have been the reason why she questioned only the black lawyers). As to moving furniture, the Vice-Chair observed that the librarian never said a reason she questioned the appellants was because of a concern that they may have been the persons who rearranged the furniture.
At the time of the incident, the Law Association's librarian had falsely claimed that the reason she singled the appellants out was that she knew that everyone else in the lounge were lawyers. This statement was false. It turned out that some people were attending the lounge for the first time and therefore the librarian could not have known them. In addition, others in the lounge were in fact, not lawyers. The Court of Appeal held that the Vice-Chair was entitled to place great weight on the false explanation given at the time and the librarian's inability to articulate any other reason for questioning the appellants.
Finally, the court held that no great unfairness resulted from the Vice-Chair's referring to social science. The reference did not effect his disposition of the main issue of the case, i.e. whether the appellants' race and colour were factors in their selection for questioning.
The Court of Appeal held that the evidence relied upon by the Vice-Chair provided ample basis to support the inference that the appellants race and colour were factors in the librarian's questioning of them.
Regards,
Blair
In this case, Mr. Pieters, Mr. Noble and an articling law student were involved in a case at the Brampton court house. They were not gowned. There are all black. During a break in the case, the three men went to the lawyers' lounge operated by the Peel Law Association with some other lawyers who were involved in the case. According to the Law Association's policy, only lawyers and law students are permitted to use the lounge, robing room and library at the court house and signs are posted to that effect.
Firth, the librarian, approached the three men aggressively and asked them to produce identification to prove that they were lawyers. She did not ask to see the identification of anyone else in the lounge. No one else in the lounge was black. The lawyers brought an application to the Tribunal alleging, in essence, racial profiling. The Vice-Chair of the Tribunal found the rights of the men had been infringed and awarded each $2,000 for injury to his dignity.
The Divisional Court allowed the Law Association's application for judicial review and quashed the decision of the Tribunal.
In a well-reasoned decision, Justice Juriansz, writing for the appeal court (Justices Cronk and Pepall concurring), saw what was largely obvious to most of us who have been following the case, overturned the decision of the Divisional Court and reinstated the decision of the Vice-Chair.
In reaching its decision, the Justice Jurianzl found that the Divisional Court had erred in finding that there needed to be a "causal nexus" between a prohibited ground of discrimination and the disadvantage suffered by a complainant. Such a requirement elevated the test for discrimination beyond what the law requires and seemed to run counter to the evolution of human rights jurisprudence which focuses on the discriminatory effects of the conduct rather than on intention and direct cause.
Secondly, Justice Jurianz found that the Divisional Court had erred in confusing the distinction between burden of proof and "evidential burden". In this case, the evidential (or evidentiary) burden works as follows. The onus lies on the complainant to establish discrimination on the balance of probabilities and if the complainant does that, the evidentiary burden shifts to the respondent. Once the evidentiary burden has shifted, the respondent faces the tactical choice of explaining his conduct or risking being found guilty. As in medical malpractice cases, where "the physician is usually in a better position to know the cause of an injury than the patient", in discrimination cases, the question of whether a prohibited ground was a factor in adverse treatment, is a difficult one for the complainant. Respondents are uniquely positioned to know why they asked a person for identification. In these cases, the outcome depends on the respondent's state of mind which cannot be directly observed and must always be inferred from circumstantial evidence. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.
The shifting of the evidential burden does not put the respondents in the position of having to prove a negative, as the Divisional Court held. The Court of Appeal held that rather it puts them in the position of having to call affirmative evidence on matters they know much better than anyone else - namely, why they made a particular decision or took a particular action.
Thirdly, the court rejected the respondents' argument that the Tribunal erred by analyzing the evidence in a compartmentalized fashion. The court held that it would leave to tribunals how they structured their analysis of the evidence. The only thing that matters is that "at the end of the day" the tribunal must take into consideration all the evidence.
Fourthly, the court held that the Divisional Court erred by finding that the Vice-Chair had disregarded evidence. The Vice-Chair had considered the fact that the appellants had been seated near the door to the library, which was not even raised by the librarian as a reason for her conduct, (although the Divisional Court inexplicably held that it could have been the reason why she questioned only the black lawyers). As to moving furniture, the Vice-Chair observed that the librarian never said a reason she questioned the appellants was because of a concern that they may have been the persons who rearranged the furniture.
At the time of the incident, the Law Association's librarian had falsely claimed that the reason she singled the appellants out was that she knew that everyone else in the lounge were lawyers. This statement was false. It turned out that some people were attending the lounge for the first time and therefore the librarian could not have known them. In addition, others in the lounge were in fact, not lawyers. The Court of Appeal held that the Vice-Chair was entitled to place great weight on the false explanation given at the time and the librarian's inability to articulate any other reason for questioning the appellants.
Finally, the court held that no great unfairness resulted from the Vice-Chair's referring to social science. The reference did not effect his disposition of the main issue of the case, i.e. whether the appellants' race and colour were factors in their selection for questioning.
The Court of Appeal held that the evidence relied upon by the Vice-Chair provided ample basis to support the inference that the appellants race and colour were factors in the librarian's questioning of them.
Regards,
Blair
Wednesday, June 26, 2013
Settlement Privilege - Supreme Court Clarifies use of Pierringer Agreements
The Supreme Court of Canada recently clarified the law with respect to the extent of disclosure that must be made in settling multi-party litigation.
In the case of Sable Offshore Energy Inc. v. Ameron International Corp. (2013 S.C.C. 37), the court unanimously held that the settling defendants in a "Pierringer Agreement" did not need to disclose the amounts that they had settled for the non-settling defendants.
In this case, Sable undertook an ocean project and built several offshore structures and onshore gas processing facilities in Nova Scotia. A number of defendants, including Ameron, supplied Sable with paint for parts of the Sable structures. Sable brought three law suits against Ameron and 12 other defendants, alleging that the paint failed to prevent corrosion.
Sable subsequently entered into three Pierringer Agreements with some of the defendants. A Pierringer Agreement allows one or more defendants in a multi-party proceeding to settle with the plaintiff and withdraw from the litigation, leaving the remaining defendants responsible only for the loss they actually caused. As part of the agreements, Sable agreed to amend its statement of claim against the non-settling defendants to pursue them only for their share of liability. All the relevant evidence in the possession of the settling defendants would, in accordance with the agreements, be given to the plaintiff and be discoverable by the non-settling defendants.
Ameron and another defendant, Amercoat Canada, did not settle. All the terms of the Pierringer Agreements were disclosed to Ameron and Amercoat except the amounts that had been agreed upon. The settlement agreements were approved by the court. Ameron brought an application for disclosure of the settlement amounts paid under the Pierringer Agreements. Sable took the position that the amounts were subject to settlement privilege. The application judge agreed. However, the Nova Scotia Court of Appeal overturned that decision and ordered that the amounts be disclosed.
The Supreme Court of Canada unanimously allowed Sable's appeal and ordered that it need not disclose the settlement amounts to Ameron and Amercoat, the non-settling defendants.
Justice Abella, writing for the court, held that the settlement amounts were covered by settlement privilege.
Justice Abella further held - Settlement privilege promotes settlements. Parties will be more likely to settle if they have confidence from the outset that their negotiations will not be disclosed. Settlement privilege covers settlement negotiations whether or not a settlement is reached. Since the negotiated amount is a key component of the "content of successful negotiations", reflecting the omissions, offers and compromises made in the course of negotiations, it too was protected by the privilege.
Justice Abella held that there are, inevitably, exceptions to the privilege. To come within those exceptions a defendant must show that on balance "a competing public interest outweighs the public interest in encouraging settlement". For example, those countervailing interests have been found to include allegations of misrepresentation, fraud or undue influence as well as preventing a plaintiff from being overcompensated.
In this case, the settlements negotiated, i.e. Pierringer Agreements, were developed in the United States to address obstacles in settling complex multi-party litigation. Under a Pierringer Agreement, the plaintiff's claim was only extinguished against those defendants with whom it settled; the claims against the non-settling defendants continued. The settling defendants were assured that they could not be subject to a contribution claim from the non-settling defendants who would be accountable only for their share of liability at trial.
In Canada, the courts have included additional protections for non-settling defendants such as requiring that they be given access to the settling defendants evidence. In addition, the agreements in this case specified that their non-financial terms would be disclosed to the court and the non-settling defendants.
The non-settling defendants received all the non-financial terms of the Pierringer Agreements. They have access to all the relevant documents and other evidence that was in the settling defendants possession. They have also the assurance that they would not be held liable for more than their share of damages. In addition, Sable agreed that at the end of the trial, once liability had been determined, it would disclose to the trial judge the amounts it settled for.
As a result, should the non-settling defendants establish a right to set-off in this case, their liability for damages would be adjusted downwards if necessary to avoid over-compensating the plaintiff. With all those protections in place, Justice Abella did not see how knowledge of the settlement amounts would materially effect the ability of the non-settling defendants to know and present their case.
She held that a proper analysis of the claim for an exception to settlement privilege does not simply ask whether the non-settling defendants derived some tactical advantage from disclosure, but whether the reason for disclosure outweighs the policy in favour of promoting settlement. She found that there was little harm in denying disclosure of the settlement amounts in this case.
Regards,
Blair
In the case of Sable Offshore Energy Inc. v. Ameron International Corp. (2013 S.C.C. 37), the court unanimously held that the settling defendants in a "Pierringer Agreement" did not need to disclose the amounts that they had settled for the non-settling defendants.
In this case, Sable undertook an ocean project and built several offshore structures and onshore gas processing facilities in Nova Scotia. A number of defendants, including Ameron, supplied Sable with paint for parts of the Sable structures. Sable brought three law suits against Ameron and 12 other defendants, alleging that the paint failed to prevent corrosion.
Sable subsequently entered into three Pierringer Agreements with some of the defendants. A Pierringer Agreement allows one or more defendants in a multi-party proceeding to settle with the plaintiff and withdraw from the litigation, leaving the remaining defendants responsible only for the loss they actually caused. As part of the agreements, Sable agreed to amend its statement of claim against the non-settling defendants to pursue them only for their share of liability. All the relevant evidence in the possession of the settling defendants would, in accordance with the agreements, be given to the plaintiff and be discoverable by the non-settling defendants.
Ameron and another defendant, Amercoat Canada, did not settle. All the terms of the Pierringer Agreements were disclosed to Ameron and Amercoat except the amounts that had been agreed upon. The settlement agreements were approved by the court. Ameron brought an application for disclosure of the settlement amounts paid under the Pierringer Agreements. Sable took the position that the amounts were subject to settlement privilege. The application judge agreed. However, the Nova Scotia Court of Appeal overturned that decision and ordered that the amounts be disclosed.
The Supreme Court of Canada unanimously allowed Sable's appeal and ordered that it need not disclose the settlement amounts to Ameron and Amercoat, the non-settling defendants.
Justice Abella, writing for the court, held that the settlement amounts were covered by settlement privilege.
Justice Abella further held - Settlement privilege promotes settlements. Parties will be more likely to settle if they have confidence from the outset that their negotiations will not be disclosed. Settlement privilege covers settlement negotiations whether or not a settlement is reached. Since the negotiated amount is a key component of the "content of successful negotiations", reflecting the omissions, offers and compromises made in the course of negotiations, it too was protected by the privilege.
Justice Abella held that there are, inevitably, exceptions to the privilege. To come within those exceptions a defendant must show that on balance "a competing public interest outweighs the public interest in encouraging settlement". For example, those countervailing interests have been found to include allegations of misrepresentation, fraud or undue influence as well as preventing a plaintiff from being overcompensated.
In this case, the settlements negotiated, i.e. Pierringer Agreements, were developed in the United States to address obstacles in settling complex multi-party litigation. Under a Pierringer Agreement, the plaintiff's claim was only extinguished against those defendants with whom it settled; the claims against the non-settling defendants continued. The settling defendants were assured that they could not be subject to a contribution claim from the non-settling defendants who would be accountable only for their share of liability at trial.
In Canada, the courts have included additional protections for non-settling defendants such as requiring that they be given access to the settling defendants evidence. In addition, the agreements in this case specified that their non-financial terms would be disclosed to the court and the non-settling defendants.
The non-settling defendants received all the non-financial terms of the Pierringer Agreements. They have access to all the relevant documents and other evidence that was in the settling defendants possession. They have also the assurance that they would not be held liable for more than their share of damages. In addition, Sable agreed that at the end of the trial, once liability had been determined, it would disclose to the trial judge the amounts it settled for.
As a result, should the non-settling defendants establish a right to set-off in this case, their liability for damages would be adjusted downwards if necessary to avoid over-compensating the plaintiff. With all those protections in place, Justice Abella did not see how knowledge of the settlement amounts would materially effect the ability of the non-settling defendants to know and present their case.
She held that a proper analysis of the claim for an exception to settlement privilege does not simply ask whether the non-settling defendants derived some tactical advantage from disclosure, but whether the reason for disclosure outweighs the policy in favour of promoting settlement. She found that there was little harm in denying disclosure of the settlement amounts in this case.
Regards,
Blair
Tuesday, June 25, 2013
Express or Implied, Hearsay is Hearsay
Christopher Baldree was a small time drug dealer in Cornwall, Ontario. One night in May of 2006, Baldree and three other people were smoking marijuana in his apartment. The Cornwall police, responding to a suspected break-in, knocked on the door. Baldree inexplicably allowed them to come into the apartment where the police found an open safe containing cocaine, a large cardboard box containing a Ziploc bag of marijuana, as well as the joints that Baldree and his friends had been smoking. The police arrested Baldree and his companions and seized a mobile telephone and some cash.
At the police station, Baldree's mobile phone rang. The arresting officer answered it. At trial, the police officer described the conversation he had with the caller:
A male voice on the other end of the phone advised that he was at a particular address, that he was a friend of Megan and asked for Chris. The police officer answered, Chris who? The caller answered "Baldree" and asked for one ounce of weed. The officer asked the caller how much Chris usually charged him. The caller answered $150. The officer took down the caller's address and said that he would deliver it.
Baldree's lawyer objected to this testimony on the ground that it was inadmissible hearsay. The trial judge disagreed and found that the evidence was "non-hearsay". He convicted Baldree for trafficking in drugs.
At the Ontario Court of Appeal, two of the three judges on the panel allowed Baldree's appeal and ordered a new trial. One judge found that the officer's evidence was hearsay. Another judge found that he could not decide whether or not the evidence was hearsay but that it did not matter because the evidence failed on both an assessment of its necessity and reliability and on weighing its probative value against its prejudicial effect. The third judge found that the evidence was admissible as non-hearsay.
The Supreme Court of Canada unanimously dismissed the Crown's appeal and ordered a new trial.
Eight of the nine judges found that the evidence of the police officer was hearsay. The majority ruling held that the defining features of hearsay are:
1. the fact that the statement is adduced to prove the truth of its contents; and
2. the absence of a contemporaneous opportunity to cross-examine the declarant.
The Court held that hearsay evidence is presumptively inadmissible as a matter of law. The issue in this case was whether this exclusionary rule applied to "express" hearsay only or to "implied" hearsay as well. The court found that an implied assertion intended for the truth of its contents (i.e. that Baldree was a drug dealer) is no different with respect to the hearsay rule than an explicit assertion to the same effect. The principled reasons for their presumptive inadmissibility apply equally to both.
If the hearsay evidence does not fall under a hearsay exception, it may still be admitted if, pursuant to the principled analysis, sufficient indicia of reliability and necessity are established on a voir dire. In this case, no traditional exception applied and the evidence did not hold up to a principled analysis. This was a single drug purchase call of uncertain reliability. The police did not make an effort to find and interview the caller or to call him as a witness - where the assertion imputed to him could have been evaluated by the trial judge or jury in light of cross-examination, and the benefit of observing his demeanour.
Justice Moldaver, the last of the nine judges, concurred with the other eight justices in the result but wrote his own reasons. He found that the evidence of the drug purchase call was hearsay because it was introduced to prove that Baldree was in fact a drug dealer. Justice Moldaver wrote that in such cases, the real concern under the principled approach is reliability and it should be the focus of the inquiry. Reliability is founded on society's interest in getting at the truth. Justice Moldaver found that the evidence was not reliable. If the evidence is not reliable, it should be excluded.
Regards,
Blair
At the police station, Baldree's mobile phone rang. The arresting officer answered it. At trial, the police officer described the conversation he had with the caller:
A male voice on the other end of the phone advised that he was at a particular address, that he was a friend of Megan and asked for Chris. The police officer answered, Chris who? The caller answered "Baldree" and asked for one ounce of weed. The officer asked the caller how much Chris usually charged him. The caller answered $150. The officer took down the caller's address and said that he would deliver it.
Baldree's lawyer objected to this testimony on the ground that it was inadmissible hearsay. The trial judge disagreed and found that the evidence was "non-hearsay". He convicted Baldree for trafficking in drugs.
At the Ontario Court of Appeal, two of the three judges on the panel allowed Baldree's appeal and ordered a new trial. One judge found that the officer's evidence was hearsay. Another judge found that he could not decide whether or not the evidence was hearsay but that it did not matter because the evidence failed on both an assessment of its necessity and reliability and on weighing its probative value against its prejudicial effect. The third judge found that the evidence was admissible as non-hearsay.
The Supreme Court of Canada unanimously dismissed the Crown's appeal and ordered a new trial.
Eight of the nine judges found that the evidence of the police officer was hearsay. The majority ruling held that the defining features of hearsay are:
1. the fact that the statement is adduced to prove the truth of its contents; and
2. the absence of a contemporaneous opportunity to cross-examine the declarant.
The Court held that hearsay evidence is presumptively inadmissible as a matter of law. The issue in this case was whether this exclusionary rule applied to "express" hearsay only or to "implied" hearsay as well. The court found that an implied assertion intended for the truth of its contents (i.e. that Baldree was a drug dealer) is no different with respect to the hearsay rule than an explicit assertion to the same effect. The principled reasons for their presumptive inadmissibility apply equally to both.
If the hearsay evidence does not fall under a hearsay exception, it may still be admitted if, pursuant to the principled analysis, sufficient indicia of reliability and necessity are established on a voir dire. In this case, no traditional exception applied and the evidence did not hold up to a principled analysis. This was a single drug purchase call of uncertain reliability. The police did not make an effort to find and interview the caller or to call him as a witness - where the assertion imputed to him could have been evaluated by the trial judge or jury in light of cross-examination, and the benefit of observing his demeanour.
Justice Moldaver, the last of the nine judges, concurred with the other eight justices in the result but wrote his own reasons. He found that the evidence of the drug purchase call was hearsay because it was introduced to prove that Baldree was in fact a drug dealer. Justice Moldaver wrote that in such cases, the real concern under the principled approach is reliability and it should be the focus of the inquiry. Reliability is founded on society's interest in getting at the truth. Justice Moldaver found that the evidence was not reliable. If the evidence is not reliable, it should be excluded.
Regards,
Blair
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