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lawyersweekly.ca
may 22, 2015
Lawyers warn bill on fast track
could have unanticipated fallout
No patent
on privilege
in federal push
Cristin Schmitz
Ottawa expected to pass Bill S-7 before summer break
Spratt, Page 2
Furlanetto, Page 3
LABOUR & EMPLOYMENT
IMMIGRATION
BUSINESS & CAREERS
Class action
green light
Express entry Time to get
off to slow start more mindful
Employer can be liable for
employee privacy breach
Five months in, process
has missed its mark
Always available lawyers
can quickly burn out
PAGE
11
STB_LW_basebar_03_12v2_STG
PAGE 14
PAGE 20
A federal government bill that
further restricts the narrow
defence of provocation to prevent
its use in so-called “honour killing” cases is unnecessary and
counterproductive, lawyers say.
At press time, the proposed
Zero Tolerance for Barbaric Cultural Practices Act (S-7) was on a
fast track to become law. It took
barely a month to clear the Senate late last year and the committee on citizenship and immigration is expected to report the
bill back for final Commons
approval by the majority Conservatives before Parliament
rises for the summer.
Witnesses who testified in both
Houses gave mixed reviews to
measures in S-7 that would make
polygamy a new ground for denying admission to, and the right to
stay in, Canada; create new
offences and peace bonds to
address the problems of forced
and underage marriages; and
make age 16 the new national
minimum age for marriage.
However, the criminal lawyers
who appeared were united in
opposing a proposed amendment to s. 232 of the Criminal
Suzanne Costom, seen above in Toronto, is vice-chair of the Canadian Bar Association’s national criminal justice
section. She warns there will be ‘collateral consequences’ to quickly passing Bill S-7. Tim Fraser for The Lawyers Weekly
Code that would narrow the definition of provocation — the
partial defence that reduces
murder to manslaughter if the
person who committed it “did
so in the heat of passion caused
by sudden provocation.”
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passion to cool.”
S-7 would replace “wrongful act
or insult” with “conduct of the
victim that would constitute an
indictable offence under [the
Code] that is punishable by five
Cristin Schmitz
To subscribe to The Lawyers Weekly,
visit www.lawyersweekly.ca/subscribe
For more than a century, provocation has been defined as “a
wrongful act or insult” sufficient
to deprive an ordinary person of
the power of self-control “if the
accused acted on it on the sudden
and before there was time for his
A federal government proposal
to throw a cloak of secrecy over
patent and trademark agents’
confidential communications
with their clients has divided the
intellectual property bar and
surprised legal regulators.
As part of its latest omnibus
budget implementation bill, the
proposed Economic Action Plan,
2015, No. 1, the government tabled
unheralded amendments May 7
implementing a 2003 proposal by
the Intellectual Property Institute
of Canada (IPIC) to extend privacy
protection equivalent to solicitorclient privilege to confidential communications between patent and
trademark agents and their clients.
IPIC president David Schwartz
said the 1,700-member national
association of patent agents, trademark agents and IP lawyers, about
60 per cent of whom are members
of the bar, was pleased with the
proposal. Schwartz, of Smart &
Biggar/Fetherstonhaugh
in
Ottawa, said such protection has
been enacted in Australia, New
Zealand, the United Kingdom,
France and Sweden.
“The proposed regulations for the
Unified Patent Court, to be established for the European Union,
include similar protection,” he
noted by e-mail. “This legislation
2 • May 22 , 2015
THE LAWYERS WEEKLY
News
Contents
News
Lawyers warn of unanticipated
consequences
1
No patent on privilege in federal
initiative
1
Barreau plans to change
unintended workaround
3
Personal directive upheld in Nova
Scotia court
4
Battle lines drawn as TWU Ontario
case looms
5
Convicted murderer to get new
trial in Quebec
10
Quebec ‘religious institution’ wins
exemption
23
Focus
Labour & Employment
Green light for class actions
11
Riding to the rescue of collective
bargaining rights
12
A nuanced decision on
constructive dismissal
13
Immigration
Slow start to express entry
14
Deportation used to avoid
criminal trials
15
Business & Careers
‘Disembodied’ lawyers urged to
get mindful
20
Securing the gateway to
confidential information
21
21
19
16
4
CAREERS
CLASSIFIED ADS
DIGEST
NAMES IN THE NEWS
Spratt: Bill ‘simply goes too far’
and curbs options that exist now
or more years of imprisonment.”
The Canadian Bar Association
argues that the change will not
achieve the Harper government’s
stated aim of eliminating its use
in cases of women and girls killed
by male family members in the
name of honour.
“The people who are proponents of this bill say that they need
to modify the defence of provocation to make sure that it is
unavailable for honour killings — except for that it isn’t
available for honour killings, it
has never once been used successfully in an honour-killing
type of case,” said Suzanne Costom, vice-chair of the CBA’s
national criminal justice section.
Costom noted that in R v. Tran
[2010] S.C.J. No. 58, the
Supreme Court “specifically said
that the defence is not available
for honour killings” because the
concept must be interpreted in
the light of the Charter’s guarantee of equality, and cannot be
used to justify antiquated beliefs
about adultery or killings based
on honour.
The partial defence, whose origins date to the 16th-century English concept of “chance-medley”
killings that occur during sudden
and unpredictable encounters, “is
basically a nod to the fact that we
are all human, and that we all…
have a breaking point,” said Costom, of Montreal’s Shadley Battista Costom. In other words, provocation recognizes that an
otherwise law-abiding person
who snaps because of a dramatic
act on the part of the victim should
not be sentenced in the same way
as a cold-blooded murderer.
Costom acknowledged that the
criminal law can appropriately
be used to send a message
denouncing unacceptable conduct such as honour-based killings. But she added that “when
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more [and] as such, unlike the
current situation, that act could
not even potentially be invoked as
provocation if the father reacted
violently in that situation.”
That hypothetical and others
were suggested by the vicepresident of the Defence Counsel
Association of Ottawa, Michael
Spratt of Abergel Goldstein &
Partners. He told the Commons
citizenship and immigration
committee April 30 that S-7
would prevent provocation from
Continued from page 1
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Racial slurs, hate speech, mistake of fact, all of
these situations will be limited in the ability to
raise provocation. The bill simply goes too far and
is too broad in respect to provocation.
Michael Spratt
Abergel Goldstein & Partners
you address a problem that
doesn’t exist without appropriate
study and consultation, there are
collateral consequences.”
Costom said restricting provocation to occasions when the
deceased committed an indictable
offence punishable by five years or
more is likely to bar the defence in
instances where it is currently
available that have nothing to do
with honour-based killing.
“One example would be of a
father whose child was sexually
assaulted and died, or who committed suicide as a result of being a
victim of cyber-bullying,” she said.
“Imagine the father standing
weeping, grieving at his child’s
grave, and someone saying something degrading or horrible or
despicable about the girl, and spitting on the grave. The spitter would
not be committing an indictable
offence punishable by five years or
applying to a range of cases that
have historically been put before
the jury.
“Racial slurs, hate speech, mistake of fact, all of these situations will be limited in the ability to raise provocation,” he
predicted. “The bill simply goes
too far and is too broad in
respect to provocation.”
Immigration Minister Chris
Alexander told the Senate committee on human rights in
December that “the defence of
honour as a basis for provocation
has been used dozens of times in
Canada and its very existence
under our criminal law weakens
the defence that women and girls
deserve to have in their own
homes from their own relatives.”
However, the CBA noted in its
brief to the citizenship and immigration committee that trial
judges rarely permit the provoca-
tion defence to go to the jury
because often the evidence does
not establish an air of reality to
the claim that the deceased’s
actions amounted to a “wrongful
act” or “insult.”
“This initial gatekeeping
assessment [by the trial judge]
would be far more complicated
under the amended definition
of provocation proposed by Bill
S-7,” the CBA says. “It is unclear
what evidence would be
required to establish an ‘air of
reality’ to an accused’s assertion
that the deceased’s conduct
would constitute an indictable
offence for which incarceration
of five years or more could have
been imposed.”
Moreover, the “air of reality”
assessment will likely require
lengthy submissions from both
the prosecution and defence.
“Paradoxically, at this stage of a
murder trial, there will be an
inversion of roles for Crown and
defence counsel,” the CBA predicts. “The defence will effectively need to prove that the victim committed a serious
indictable offence to come within
the ambit of the amended definition of provocation. Unless in
agreement with the accused’s
assertion of provocation, the
Crown will effectively be required
to defend the deceased.”
The CBA also notes that if the
deceased engaged in such serious
conduct against the accused, the
complete defence of self-defence
is likely to be available.
“It is difficult to conceive of
circumstances where an ‘air of
reality’ would exist for the
amended definition of provocation but not for self-defence. In
other words, the proposed provocation defence would effectively
be subsumed under the selfdefence regime, and would no
longer exist as a stand-alone
defence under the Code.”
Correction
Toronto-based start-up firm
Kabuk, which provides online
content designed to help
people select a lawyer, does so
on the web from the site
law.kabukit.com. In a story
on page 4 of the May 15 issue,
a related web address used by
the firm for other purposes
was incorrectly listed.
Visit us online at:
www.lawyersweekly.ca
May 22 , 2015 •
THE LAWYERS WEEKLY
3
News
Furlanetto: Important for Canada to keep pace
Continued from page 1
will bring Canada’s IP laws into line
with international trends.
“Importantly the legislation
extends the statutory privilege to
communications between foreign
agents and their clients that would
be privileged under their domestic
law, strengthening Canada’s role
in the international IP community
in protecting IP rights globally.”
Thomas Conway, president of the
Federation of Law Societies of Canada, the national umbrella group
for the country’s 14 law societies,
said the government’s decision to
create the new statutory privilege
came as a surprise. “When asked
late last year by Industry Canada
for our views, we noted that their
own materials questioned whether
there was a compelling public
interest reason to protect communications between clients and
patent and trade mark agents,”
Conway said by e-mail. “We also
suggested that extending some
form of privilege to professionals
outside of the legal profession — that would justify departing
from the principle of openness and
Conway
full disclosure in the courts — and if
so, for which professions, is a complex matter that would require
careful study, and that pending
such study the issue ought to be
deferred.”
The FLSC has a long record of
defending against state incursions
on solicitor-client privilege, both
in court and out. The precept is
seen as a bulwark of the independence of the bar, and has attained
quasi-constitutional status and
near-absolute inviolability, primarily as a result of litigation by
the FLSC, the Canadian Bar Association and other lawyers.
“Enacting some form of statutory protection for (patent/trademark) agent-client communications would have significant
implications, not only for the patent and trademark system, but
also potentially for other professions and for the administration of
justice,” Conway said. “In our view,
in deciding whether to provide
such protection careful consideration should be given not only to
possible economic factors, but also
to these broader implications.”
In its submissions in 2004 to
Industry Canada, the FLSC said
that providing such protection was
neither necessary nor appropriate.
It has not formally considered the
issue since.
The CBA has splintered internally in recent years over whether
privilege should be extended to
confidential
communications
between patent and trademark
agents and their clients — the executive of the association’s national
IP section and its patent committee are in favour, but its trademark
committee is divided, and its ethics
and professional responsibility
committee is against.
CBA spokesperson Joelle Hamilton said the association has no
comment now on the amendments. The CBA was unable to
arrive at a consensus when consulted by Industry Canada in November 2013, when the ethics committee concluded there has been
no change in circumstances or law,
or demonstrable harm created by
the absence of a patent agent privilege, since Industry Canada’s first
consultation on the issue in 2003.
The “extension of privilege is
inconsistent with the intent that
there be full disclosure in the patent process,” the CBA wrote Industry Canada last May in explaining
its ethics committee’s position.
Out of the same consultation,
however, Angela Furlanetto, thenchair of the CBA’s national IP section wrote in May that, in the view
of her executive and the CBA’s patent committee, “confidential communications should be protected if
the elements of the privilege test
are met, irrespective of whether the
advice given on that information is
from a lawyer, or a patent or trademark agent acting within their area
of practice as permitted by law, so
long as that area is well-defined (as
is the case with lawyers).
“The practical reality is that patent and trademark agents advise
clients on issues relating to
obtaining intellectual property
rights, as well as the protection of
those rights,” Furlanetto added.
“For the client’s interests to be
served best, communications to
obtain this advice should be as
frank and as free-flowing as possible and unencumbered by concerns as to whether confidential
information should be disclosed.
“From an international standpoint it is important that Canada
keep pace with other jurisdictions
and develop in accordance with
the realities of practice. Clients
should not be subject to competitive disadvantages because communications relating to innovation and branding strategies that
would otherwise be treated as
confidential may be disclosed in
future litigation.”
Barreau plans modification
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AN
LAWYER M
A
2015-16
INE
AZ
G
The Barreau du Québec plans to
modify a recent change to its code
of ethics that might have unintentionally created a constitutionally
compliant path for members of the
Federal and Tax Courts to be
appointed to Quebec’s seats on the
Supreme Court.
Barreau spokesperson Martine
Meilleur indicated by e-mail the
regulator did not intend new article
139 of its ethics code to be a “workaround” to the top court’s ruling in
the Nadon Reference ([2014]
S.C.J. No. 21).
She pointed out that work to
revise the Code of Professional
Conduct of Lawyers began in
2010, long before the successful
court challenge launched in 2013
to Federal Court of Appeal Justice Marc Nadon’s Supreme
Court appointment.
“With regard to the drafting of
the sections of the code concerned
in this revision, it must nevertheless be emphasized again that the
political aspect was never taken
into consideration,” she stressed.
“Only principles of ethics and professional conduct were earmarked
for this considerable work.”
The Supreme Court ruled in
Nadon that the Quebec members
of the Federal and Tax Courts are
barred from appointment to the
top court’s three Quebec seats
because only current (not past)
members of the Quebec bar and
superior courts are constitutionally
eligible.
However, the Barreau arguably
neutralized the Nadon decision’s
outcome by opening up a new path
to appointment April 1, as part of
its major overhaul of its code of ethics for lawyers. At that time, the
Barreau changed the rule that
barred judges from retaining their
membership in the Quebec bar to
expressly bar only judges specifically mentioned in Quebec’s Courts
of Justice Act (i.e. Quebec’s provincial and superior courts) and Quebec municipal court judges. By
implication, Quebec appointees to
the Federal and Tax Courts since
April 1 can opt to remain members
of the Quebec Bar and thus arguably be eligible for the Supreme
Court as current members of the
Quebec bar.
But Meilleur indicated the regulator does not want that to be the
effect of art. 139. “Since we want to
avoid the interpretation that you
raised, the Barreau du Québec will
ask the Office des professions that
this article be amended to better
reflect our intention,” she said.
“One of the hypotheses considered
for this amendment would be to
drop the reference to the…Courts of
Justice Act (chapter T-16) — and to
include all the Federal judges and
justices” as judges prohibited from
Quebec bar membership.
CANA
D
I
Cristin Schmitz
OTTAWA
TOP 10
Personal Injury
BOUTIQUE
4 • May 22 , 2015
THE LAWYERS WEEKLY
News
Moves
■Brian Rose has joined Bennett
Jones as the firm’s U.S.-based
senior business advisor
practising in Canada and
Washington, D.C. in the areas
of corporate finance with an
emphasis on financial
institutions and transactions
of an international aspect.
Rose was previously at
Stikeman Elliott.
■Ron Choudhury and
Alexander Lalka have joined
the Toronto office of Miller
Thomson as partners in the tax
and corporate commercial
areas respectively. Choudhury
was formerly at Aird & Berlis,
while Lalka was at Gowlings
LLP. Also joining the Toronto
office as an associate in the
real estate group is Eric Borzi,
previously at Solmon Rothbart
Goodman. Miller Thomson also
announced the following new
lawyers: In Calgary, partner
Wayne Logan, formerly of Field
Law (sports and entertainment
law, IT, clean tech); In Montreal,
Troy McEachren, formerly at
Lapointe Rosenstein Marchand
Melançon (tax, charities, notfor-profits): and in KitchenerWaterloo, associate Amy Reier,
formerly with Bond and Browell
(corporate commercial).
■Lise Morissette has joined the
Montreal office of Borden
Ladner Gervais as a partner in
the firm’s banking and financial
services group. Morissette was
formerly at Kaufman Laramée.
■International tax lawyer Scott
Semer has joined the New York
office of Torys LLP as a partner.
Semer, an adjunct professor at
Columbia University Law
School, was former at Davies
Ward Phillips & Vineberg.
■Tax lawyer Eric Koh has joined
Toronto tax boutique Morris
Kepes Winters as an associate.
Koh was previously at Aird &
Berlis, and has a CPA
designation from the state of
New Jersey.
Publisher
Ann McDonagh
Editor In Chief
Rob Kelly
Senior Editor
Matthew Grace, LL.B.
Personal directive upheld in N.S. court
Kim Arnott
The Nova Scotia Supreme Court
has upheld an elderly and mentally
incapacitated woman’s written
wish to remain in her home, despite
her son’s argument that she would
be better off in a nursing home.
As the court’s first consideration
of Nova Scotia’s 2010 Personal Directives Act, the decision in B.M. v
K.S. [2015] N.S.J. No. 143 demonstrates the legal power of expressed
wishes in personal care directives,
say legal observers.
“This is significant because it provides a very strong statement in
support of the notion that if you set
out your wishes in your personal
directive, they will be followed,”
said Catherine Watson, a partner in
McInnes Cooper’s Halifax office
and leader of the firm’s regional
estates and trusts service group.
“It’s terrific for people to have
comfort that they will have some
control over what happens if there’s
a period of incapacity.”
In 2012, Mrs. L. signed a personal
directive appointing her son B.M.
as her delegate to make personal
and health care decisions should
she become incapacitated.
However, the document also
contained a provision stating,
“I express the wish that my delegate (in conjunction with my attorney) ensure that I am able to live in
my house for the remainder of my
life, with appropriate care
arranged, including the assistance
of a full-time caregiver to allow me
to remain in my house, no matter
what my physical or mental condition might be.”
That clause also appeared in a
power of attorney document she
signed on the same day, appointing
her lawyer and a trust company to
jointly oversee her financial affairs.
The 94-year-old, who now suffers from advanced dementia and
is unable to make personal care
decisions, lives alone in her home
with 24-hour-a-day paid caregiving assistance.
Correspondents
Kim Arnott, Toronto
Luigi Benetton, Toronto
Thomas Claridge, Toronto
Christopher Guly, Ottawa
Geoff Kirbyson, Winnipeg
Luis Millan, Montreal
Donalee Moulton, Halifax
The court heard that B.M. and
his brother wanted to move her
into a Halifax long-term care facility. They said increased mental
stimulation and proximity to them
for visiting would improve her
quality of life.
K.S., the attorney named in the
power of attorney document,
opposed that plan. Along with
being disorienting and upsetting to
Mrs. L, he argued that it ran
counter to her clearly expressed
instruction that she should be
cared for in her home.
With the current caregiving
arrangement
costing
about
$240,000 per year, the court heard
that Mrs. L.’s finances could continue to cover the cost of such care
for about two more years.
Justice Denise Boudreau found
that Mrs. L.’s expressed wish to
remain in her home, repeated in
her personal care directive and
power of attorney, was “a clear,
important and unequivocal direction” and under the Personal
Directives Act, the delegate must
follow directions.
She rejected the son’s argument
that the wording of the provision
as a “wish” did not oblige him to
abide by it, finding that the Nova
Scotia legislation appears not to
differentiate between the words
“wish” and “instruct.”
“Mrs. L. wished to remain in her
home, so long as it was possible.
As matters presently stand, it
remains possible,” ruled Justice
Boudreau. “Whether this is, or is
not, in her ‘best interests’ is not for
this court to determine. This is her
express wish and I order that this
provision of her directive be
respected by her delegate.”
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This is significant
because it provides a
very strong statement
in support of the
notion that if you set
out your wishes in
your personal directive,
they will be followed.
Catherine Watson
McInnes Cooper
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Suite 700, Markham, ON L3T 7W8
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Focus Editor
Richard Skinulis
Ottawa Bureau Chief
Cristin Schmitz
GST/HST/QST No.: R121051767
The case provides a helpful and
well-reasoned interpretation of the
Nova Scotia legislation, says Jocelyn Downie, a Dalhousie law professor specializing in health law.
“It was strong and clear, which
really helps in this arena. If you get
a sort of woolly decision, people
have to just keep litigating, but this
was a very strong, clear statement.”
While legislation that allows
people to make advanced directives
is widespread across the country,
she says more recent legislation like
the Nova Scotia law is better for
ensuring people are able to express
their intent clearly.
The value of documents that are
clearly legal and also clear in intent
was highlighted in this case, which
Downie noted was in “stark contrast” to the recent and well-publicized case of British Columbia
woman Margot Bentley.
In that case, the lack of legal
validity underlying a 1991 “living
will” has resulted in Bentley’s family
being unable to stop health care
providers from spoon-feeding the
woman, who is suffering from latestage Alzheimer’s disease.
“I think health care providers,
lawyers and the public need to
understand what is the legal
status of advance directives in
their province or territory and
how to write one that is legally
valid and clinically useful, so it
can be implemented,” she said.
“We need to do a better job
around education on all fronts.”
Downie added that the confirmation that Nova Scotia courts will
comply with expressed wishes is a
double-edged sword that needs to
be managed with care.
“Your wishes will not be displaced
by somebody else deciding that this
is not in your best interest. That
will provide enormous comfort, I
think, to many people,” she said.
“But it also points out the need for
people to very carefully think
through what they put in their
advance directives. This means you
will get what you say you want.”
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May 22 , 2015 •
THE LAWYERS WEEKLY
5
News
Battle lines drawn as TWU Ontario case nears
Cristin Schmitz
When counsel for the Law Society of Upper Canada stands up in
Ontario Divisional Court next
month to defend the benchers’
refusal to accredit Trinity Western University’s proposed law
school, he will try to differentiate
the university’s recent court victory in Nova Scotia.
Trinity Western (TWU) prevailed in January when Nova
Scotia Supreme Court Justice
Jamie Saunders set aside a 2014
decision by the Nova Scotia Barristers’ Society to bar future
TWU law graduates from that
province’s bar admission program unless the evangelical
Christian university exempted its
law students from its controversial faith-based “community
covenant” reserving sexual
intimacy to married heterosexual
couples, or rewrites the pledge so
it does not discriminate against
gays and lesbians.
In a decision under appeal by
Pratte
the NSBS, Justice Saunders held
that the Nova Scotia regulator
overstepped its mandate under
the province’s Legal Profession
Act to “uphold and protect the
public interest in the practice of
law” by telling TWU what to do
because the benchers were
offended by policies they considered to violate Nova Scotia’s
human rights law — a law that
does not apply to the Langley,
B.C.-based university.
LSUC’s lead lawyer, Guy Pratte
of Ottawa’s Borden Ladner Gervais, contends in the law society’s
factum filed with the Divisional
Court last month that Ontario’s
benchers did not make the same
alleged mistake when they voted
28—21 in April 2014 to unconditionally deny accreditation to
the nascent law school.
“Unlike the Nova Scotia Barristers’ Society, the Law Society is
not attempting to dictate the
policies of a private institution.
Rather, the Law Society’s decision is limited to the ambit of its
own jurisdiction and reflects the
Law Society’s view of what it can
and cannot do,” Pratte wrote in
the factum.
“In contrast, the NSBS took the
step of passing a resolution that
appeared to set conditions for
TWU. The Nova Scotia Supreme
Court clearly objected to this
measure — viewing it as a state
actor overreaching in attempting
to exert its power against a private institution.”
TWU’s judicial review of
LSUC’s denial of accreditation,
which opens June 1 for a four-day
hearing, includes elements
absent from its successful court
challenge in Nova Scotia.
TWU alleges, for example, that
convocation’s decision was biased
because Clayton Ruby, a nonvoting life bencher, was “allowed
by the LSUC to make inflammatory and derogatory comments
against TWU” to convocation,
even though the prominent
Toronto litigator was spearheading a court bid to overturn
the B.C. government’s decision to
approve TWU’s law school and
had also denounced TWU’s
covenant in the media.
“Others who felt strongly, or
were aligned with one side of the
issue, could only submit written
comments. Mr. Ruby, however,
could speak to the benchers,
without the right of TWU to directly reply,” argues TWU, in a
brief written by Robert Staley,
Derek Bell and Ranjan Agarwal
of Toronto’s Bennett Jones. “A
reasonable person, considering
all of the circumstances of the
case, would conclude that the
LSUC showed a reasonable
apprehension of bias in allowing
Mr. Ruby to participate as he did
and to make submissions.”
The Law Society responds in its
brief, co-authored by Pratte,
Nadia Effendi and Duncan Ault,
that it was “at all times fair to
TWU.
“While Mr. Ruby may have
made public statements prior to
the April Convocation against
accreditation, these are not sufficient to conclude that Convocation, as a policy-making body,
had a ‘closed mind,’” the LSUC
argues. “An objective and wellinformed observer, having
reviewed the transcript of Convocation, could not conclude that
Mr. Ruby’s comments at the
April 10 Convocation dictated
the result.”
Moreover, TWU was provided
Limits, Page 10
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10 • May 22 , 2015
THE LAWYERS WEEKLY
News
Convicted murderer to get new trial in Quebec
Luis Millan
A new trial has been ordered for
a 51-year old Quebec City man
convicted of first degree murder
after the Quebec Court of Appeal
held that the trial judge did not
provide sufficiently clear instructions to the jury over the reliability of a confession made in a “Mr.
Big” police sting operation.
In a case that applied the new
framework established last year
by the Supreme Court over the
admissibility of confessions made
during “Mr. Big” operations, the
Court of Appeal ruled that the
confession made by Alain Perreault during the police sting was
admissible because its probative
value outweighed its prejudicial
effects. But the appeal court
found the trial judge should have
instructed the jury on the context
in which the admission was
made, to address concerns about
the reliability and prejudice that
arise from these confessions. “Mr.
Big” operations are elaborate
stings where undercover agents
recruit suspects into fictitious
criminal enterprises to gain their
trust and extract a confession,
particularly in cold cases.
“The trial judge should have
warned the jury that they cannot
necessarily conclude that because
this individual accepted to be
part of the criminal underworld,
that you should conclude that he
was guilty of murder,” said Julien
Gregoire, a Quebec City criminal
lawyer who teaches at the Université Laval. “A jury must be able
to analyze the context in which
A jury must be able to analyze the context in
which the confession was made. This nuance is
important because — and this is a longstanding
principle in criminal law — one judges an accused
based on the facts, and not on the immoral
nature of his character.
Julien Gregoire
Criminal lawyer
the confession was made. This
nuance
is
important
because — and this is a longstanding principle in criminal
law — one judges an accused
based on the facts, and not on the
immoral nature of his character.”
Perreault was found guilty four
years ago of killing a 43-year-old
woman who disappeared during
the summer of 2003 after she
travelled to Quebec City from
Chambly, a small town near
Montreal, to meet him. While the
remains of Lyne Massicotte were
never found, Perreault was
arrested six years later after making a confession to an undercover
police officer who was posing as a
criminal in a “Mr. Big” sting.
Perreault appealed his conviction before the Quebec appeal
court in 2013, but the case went
back to the appellate court after
the SCC set tough new standards
for the admissibility of confessions obtained during the course
of “Mr. Big” sting operations. In R
v. Hart [2014] S.C.J. No. 52, the
SCC created a new common law
rule of evidence that presumes
such confessions are inadmissible unless the Crown can establish, on a balance of probabilities,
that their probative value outweighs their prejudicial effect.
The probative value of a confession is directly related to its reliability, which can be assessed by
considering the circumstances in
which the confession was made
and by examining a confession’s
inherent reliability. Confirmatory
evidence, which suggests the suspect was involved, can provide a
“powerful guarantee” of reliability, the SCC held. The SCC also
warned about abuse of process by
police in the course of “Mr. Big”
operations, emphasizing that
“misconduct that offends the
community’s sense of fair play
and decency will amount to an
abuse of process and warrant the
exclusion of the statement.” A
companion decision in R. v. Mack
[2014] S.C.J. No. 58 provides
guidance to trial judges on
adequately instructing the jury
on how to approach these confessions.
Heeding guidance from Hart,
the Quebec Court of Appeal
found that the circumstantial evidence surrounding the case
established the reliability of Perreault’s confession. Perreault’s
confession was brimming with
details — such as the fact that
Massicotte’s car was unlocked,
and the trunk was jampacked — that the police did not
reveal publicly.
“Only the assassin could have
known these facts that the police
kept secret until the arrest of the
appellant,” noted Quebec Court
of Appeal Justice France Thibault
in a unanimous ruling in Perreault c. R. [2015] J.Q. no 3389.
The appeal court held that the
probative value of the confession
outweighed its prejudicial effect
because “Mr. Big” did not coerce
Perreault into making a confession, and because the confession
itself was coherent, detailed, and
corroborated by numerous elements that established its reliability. The confession did not
amount to an abuse of process,
added the appeal court. While
the police used tricks and subterfuge to lead him to confess to the
crime, Perreault was not subjected to violent acts and he was
not in a manifest state of vulnerability, Justice Thibault said.
But in following guidance from
the Mack decision, the Quebec
Court of Appeal found that the
trial judge failed to adequately
instruct the jury when considering “Mr. Big” confessions. The
trial judge did not address the
question of the reliability of the
confession, and in fact indirectly
encouraged the jury to “a kind of
reasoning” that increased the
prejudicial effect of the confession by inviting them to take into
account what Perreault said over
the course of the elaborate sting
to evaluate his credibility.
“The appeal court noted that
while the confession was admissible the judge of first instance
should have warned the jury over
the probative value of the confession and explain to the jury that
in a ‘Mr. Big’ scenario, it could
lead to a false confession,” said
Jean-Phillipe Marcoux, a Montreal criminal lawyer. “But the
appeal court could have provided
more explicit guidance over what
instructions a trial judge should
give to the jury, especially since
Core issue, Page 22
Limits: Trinity says Law Society overstepped authority with refusal
Continued from page 5
the opportunity at the April 24,
2014 convocation to reply, in
writing and orally, to all the comments made by the benchers at
the April 10 convocation, including those of Ruby — as well as to
the written comments the regulator received, the LSUC says.
While the LSUC takes pains to
distinguish its actions from
those of its Nova Scotia counterpart, TWU contends that the
Ontario regulator similarly overstepped its Law Society Act
authority which requires it to
ensure that lawyers practising in
Ontario “meet standards of
learning, professional competence and professional conduct
that are appropriate for the legal
services they provide.”
“This application is about the
scope of the LSUC’s power to
regulate in the public interest,”
TWU argues in its brief. “The
LSUC’s jurisdiction is focused on
Staley
ensuring that lawyers are, in a
word, competent.”
The university maintains that
LSUC’s public interest jurisdiction does not extend to regulating law schools. Benchers did
not express concern that future
TWU law graduates would be
incompetent or engage in discrimination at work, or that
TWU’s proposed curriculum,
which was approved by the Federation of Law Societies, was at
issue, it said. “Rather, under the
guise of the ‘public interest’ a
majority of benchers articulated
a disagreement with the Community Covenant and expressed
a view that the promulgation of
the Community Covenant by
TWU — a body over which the
benchers have no jurisdiction to
regulate — was discriminatory.”
TWU says the effect is to impose
the Charter and human rights
legislation on TWU, a private
institution, “when neither is
applicable. The LSUC acted
without jurisdiction in doing so.”
TWU also argues that the
benchers’ denial of accreditation
is unreasonable as it infringes on
the religious freedom of the university and its students, and flies
in the face of binding authority
(Trinity Western University v.
British Columbia College of
Teachers [2001] S.C.J. No. 32).
In defending its decision, the
law society distinguishes that
2001 case on the basis that the
Supreme Court focused on
whether TWU-educated teachers, because of their compulsory
adherence to the covenant, were
likely to discriminate against gay
and lesbian students. The top
court held that the teachers’ college wrongly refused to accredit
because it produced no evidence
to back such speculation.
LSUC differentiates its refusal
to accredit TWU’s law school
because that decision was “based
on the effect of TWU’s discriminatory admissions policy that
would deny equal access” to the
legal profession.
LSUC also argues it reasonably
exercised its statutory mandate.
“Neither the Law Society Act
nor the by-laws enacted thereunder limit the Law Society’s
discretion to considering only
the proposed curriculum. To
the contrary, the Law Society
must exercise its broad discretion to accredit within its overarching statutory mandate to
regulate the legal profession in
the public interest.”
“If the Law Society is ordered to
accredit TWU,” as demanded by
the university, “it will be forced to
incorporate discriminatory law
school admissions conditions
into its licensing process,” LSUC
pleads. “The Law Society will be
compelled to do indirectly what it
cannot do directly, namely adopt
a discriminatory restriction on
who may become a lawyer.”
The Law Society contends such
“discrimination would be deeply
offensive to excluded minorities
and the public served by lawyers.”
It says the TWU covenant discriminates not only against gays
and lesbians, but also against
unmarried heterosexuals, as well
as women, who are required to
abjure abortion.
May 22 , 2015 •
THE LAWYERS WEEKLY
Focus
labour & employment
Green light for class actions
Employer can be held vicariously liable for employee privacy breach
Lance Ceaser
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ince the 2012 decision in Jones v. Tsige introduced the tort of intrusion upon seclusion,
there has been a remedy when an individual wrongfully accesses or misuses another
person’s private information. But will employers be held accountable for those privacy
breaches when they are committed by an employee?
Two recent decisions in class actions suggest that employers should take this question seriously. An employer’s vicarious responsibility for Jones-type damages was first raised in the
case of Evans v. Wilson [2014] O.J. No. 2708. Without the bank’s knowledge, one of its
employees provided the files of several hundred customers to a third party who used the information to commit identity theft and fraud. When the bank learned of the situation, the
employee was fired and the affected customers were notified. The bank compensated any
customers who suffered financial losses, and provided all affected customers with a subscription to a credit monitoring and identity theft protection service.
A group of customers commenced a class action, including (among other things) a claim
for intrusion upon seclusion. The privacy claim was premised on the bank’s vicarious liability for its employee’s privacy violation. The bank brought a motion challenging the certification of the class action, arguing that an employer could not be held vicariously liable for the
actions of a rogue employee who intentionally violated the privacy
of customer information held by the employer.
Justice Robert J. Smith reviewed the elements of the privacy tort
and considered the rationale for imposing vicarious liability on an employer.
The court cited Bazley v. Curry [1999] S.C.J. No. 35 for the principle that the plaintiff must establish that the employer’s enterprise created or enhanced the risk of
harm to the plaintiff, and that the wrongful act of the employee was “sufficiently
related to conduct authorized by the employer to justify the imposition of vicarious
liability” in order to succeed. In determining if there was sufficient connection between
the employee’s wrong and the employer’s business, the courts will consider whether the
employer afforded the opportunity for the employee to abuse his/her power, whether the act
would have advanced the employer’s objectives, any intimacy between the employer’s business
and the victim, any power conferred on the employee by the employer, and the
vulnerability of the victim to misuse of that power.
Justice Smith found that the bank afforded employees unsupervised access to
the personal and financial data of clients, and was not monitoring employees’
access to that information. While the actions of the employee did not benefit it, the bank
should have been aware that the employee had an intimate connection with confidential
information that gave him power over customers who were vulnerable to his misuse of the
information. Accordingly, the judge found that it was not plain and obvious that the claim for
vicarious liability would fail, and concluded there were no impediments to certifying the class
action. Subsequently, the Superior Court of Justice refused leave to appeal the decision to the
Divisional Court ([2014] O.J. No. 6014).
In Hopkins v. Kay [2015] O.J. No. 751, the Ontario Court of Appeal has ruled that the
scheme of the Personal Health Information Protection Act (PHIPA) does not preclude a
potential class action for breach of privacy involving personal health information (PHI) of
patients or clients. In this case, the representative plaintiffs commenced a class action lawsuit claiming “intrusion upon seclusion” after employees of the Peterborough Regional
Health Centre accessed approximately 280 patient records without authorization. The claim
Tort, Page 12
11
12
• May 22 , 2015
Focus
THE LAWYERS WEEKLY
LABOUR & EMPLOYMENT
Riding to the rescue of collective bargaining rights
Arthur Zeilikman
he Supreme Court of Canada
T
released a significant decision on the expansion and mean-
ing of freedom of association in
the labour context pursuant to
section 2(d) of the Canadian
Charter of Rights Freedoms. In a
6-1 decision, the court ruled in
favour of RCMP members’ constitutional right to representation
of their choosing and one that
would be independent of managerial control vis-à-vis the
employer. The majority held that
the right to collective bargaining
must be meaningful if it is to pass
constitutional muster.
The core issue in Mounted
Police Association of Ontario v.
Canada (Attorney General)
[2015] S.C.J. No. 1 surrounded
the constitutionality of the
scheme under which RCMP
members advocate for their
work-related interests. RCMP
members could not bargain with
their employer like most other
public employees pursuant to the
Public Service Labour Relations
Act. Instead, labour relation concerns would be channelled
through a mechanism called the
staff relations representative program (SRRP). The appellants
advancing the appeal on behalf of
RCMP members were voluntary,
private associations organized by
members and incorporated as
non-profit entities; however, the
SRRP was the only form of
employee representation recognized by management. The
CarpathianPrince / iStockphoto.com
In sum, the court
held that to freely
associate in a labour
relations context is
to have the right to
choose and rely on
independent workplace
representation without
substantial interference
from management.
Arthur Zeilikman
Zeilikman Law Professional
Corporation
SRRP’s constitution — formally
created for the promotion of
“mutually beneficial relations
between Force management and
the wider membership” — ​was
unilaterally adopted by the SRRP
and the RCMP commissioner.
The process was meant to be collaborative; however, the final
word rested with management.
In its concurring majority ruling, the court dismissed the decision of the Ontario Court of
Appeal wherein the lower court
held that it was not “effectively
impossible” for RCMP members
to meaningfully exercise their
section 2(d) right to freely associate under the prevailing scheme.
Consistent with its evolving attitude in Health Services and Support — ​Facilities Subsector Bargaining Assn. v. British Columbia
[2007] S.C.J. No. 27 and, to a
degree, in Ontario (Attorney
General) v. Fraser [2011] S.C.J.
No. 20, the court repeated that
section 2(d) of the Charter meant
to guarantee “meaningful association” in the labour relations bar-
gaining context. The court further held that such an
interpretation was to be “centered on the purpose of encouraging the individual’s self-fulfillment
and
the
collective
realization of human goals, consistent with democratic values.”
In sum, the court held that to
freely associate in a labour relations context is to have the right
to choose and rely on independent workplace representation
without substantial interference
from management.
The approach, according to
the court, had to be purposive,
and the fundamental purpose
of section 2(d) was “to protect
the individual from ‘stateenforced isolation in the pursuit of his or her ends’: Alberta
Reference, at p. 365.”
Ultimately, the court held that
section 2(d) protects three classes
of activities: “(1) the right to join
with others and form associations; (2) the right to join with
others in the pursuit of other
constitutional rights; and (3) the
right to join with others to meet
on more equal terms the power
and strength of other groups or
entities.” The court reiterated the
notion that the right is one that
guarantees a process rather than
an outcome or a particular labour
relations mechanism.
In making the above pronouncements, the court overturned its earlier decision in
Delisle v. Canada (Deputy
Attorney General) [1999] S.C.J.
No. 43 that the exclusion of
RCMP members from the
PSLRA’s predecessor legislation
(the Public Service Staff Relations Act) did not violate section
2(d) of the Charter.
In a strongly worded dissent,
Justice Marshall Rothstein
described the majority’s decision
as a “constitutional reversal”
tantamount to an imposition of
an adversarial system, a central
feature of the American Wagner
Act. Notwithstanding the majority’s qualification that section
2(d) does not articulate a particular model for collective bargaining, Justice Rothstein saw
the majority’s decision as an
imposition of a system that
would call for the resolution of
industrial disputes through confrontation and in which management would be regarded as
the “enemy of the employees.”
It is not yet clear as to what
mechanism will be set in
place — the federal government
was granted a 12-month suspension over the declaration of the
law’s invalidity. What is clear,
however, is that inequality of bargaining power between weaker
employees and management
remains axiomatic in the eyes of
the law. Commensurate with that
perspective is the notion that for
work-related negotiations and
deliberations to be effective the
process must be meaningful and,
to a significant degree, conducted
at arm’s length. This also means
that, in practical terms, collaborative schemes of dispute resolution involving industrial conflict
will have to be crafted with a view
to the parties’ oppositional stances, independence from managerial meddling and a representation of choice.
Arthur Zeilikman is a barrister and
solicitor at Zeilikman Law
Professional Corporation with offices
in Toronto and Richmond Hill, Ont.
Their practice focuses on
employment and labour law. He can
be reached at arthur@zeilikmanlaw.
com or 905-709-7438.
Tort: Courts consider vulnerability of victim
Gus Richardson is pleased to offer his services as an arbitrator and
Continued from page 11
mediator throughout the Maritimes and Ontario from his Halifax
alleged that the hospital was vicariously liable for not taking
steps to prevent the unauthorized access to PHI. The hospital
brought a motion to dismiss the
action, asserting that the plaintiffs’ rights were governed by
PHIPA, which created an
exhaustive code in relation to
PHI. The motion was dismissed,
but the hospital appealed.
At the Court of Appeal, the hospital argued that PHIPA created
a comprehensive scheme that
was intended as the sole means to
remedy privacy breaches. The
court observed that the act did
not provide for “adversarial” dispute resolution and that enforcement of orders under PHIPA still
practice, Ad+Rem ADR Services.
+ With over 20 years litigation
experience at all levels of courts in Nova Scotia and Ontario, Gus
is also a Nova Scotia Small Claims Court adjudicator. Gus brings
those skills to his practice as an arbitrator and mediator in labour,
insurance, personal injury, commercial and condominium disputes.
phone 902.422.6729
email [email protected]
www.gusrichardson.com
Visit: www.lawyersweekly.ca
involved an application to the
Superior Court. Moreover, the act
expressly permitted a complainant to pursue a claim for damages
in the courts. The court found
there was no reason to infer that
the legislature meant PHIPA to
exclusively occupy the field of
PHI protection. Importantly, the
court also found that proceedings
under PHIPA and under the
Jones tort are sufficiently different that allowing court action
would not undermine the
enforcement of the act. In the
result, the appeal was dismissed
and the matter was permitted to
proceed in the courts.
So, what do these decisions
mean for employers who are
responsible for collecting, using
and disclosing confidential customer information or PHI? These
cases highlight the importance of
establishing robust policies and
procedures to protect the personal information of third parties
(customers, clients, etc.), ensuring that employees are properly
trained and supervised, and that
physical and technological measures are in place to control and
monitor access to the information
on a need-to-know basis. Failure
to do so may expose an employer
to considerable liability.
Lance Ceaser lives and works in
London, Ont., where he practises
labour and employment law on
behalf of employers through his firm,
Ceaser Work Counsel.
May 22 , 2015 •
THE LAWYERS WEEKLY
Focus
13
LABOUR & EMPLOYMENT
A nuanced decision on constructive dismissal
Soma Ray-Ellis
v. Canac KitchIToddnensCiszkowski
[2015] O.J. No. 85, Justice
Archibald of the Ontario
Superior Court of Justice made
numerous findings that are significant in advising clients with
respect to the nuances of constructive dismissal. The decision
addressed the following issues:
extraordinary damages, frustration of contract, the limitation
period and a proportional reduction in damages for disability
benefits received by the employee.
The plaintiff in this action
brought a claim against his former employer for wrongful dismissal or, in the alternative, constructive dismissal.
The plaintiff was hired by
Canac in January 1990, marking
the beginning of an 18-year work
relationship that was not governed by a written agreement. In
2004, the plaintiff took a oneyear leave of absence due to a
heart condition. Upon returning,
he was advised of several changes to his position, including that
he would be reporting to the
credit manager, instead of directly to the chief financial officer
as before, and that he would no
longer oversee another employee,
manage a small office budget,
receive and process new contracts, or be required to attend
certain managerial meetings. His
position had become more clerical and administrative rather
than managerial, although he
retained his title of contracts
project manager.
Following his return to work,
the plaintiff was rebuked on several occasions for various issues,
such as not giving sufficient
notice of doctors’ appointments.
He demonstrated a pattern of
insolent and insubordinate
behaviour. The plaintiff testified
that he felt his supervisor, Poonawalla, was abusive towards
him. On Jan. 11, 2006, the plaintiff left work as he was feeling ill
and never returned. Starting in
November of 2007, the plaintiff
made several requests to be
MarkSwallow / iStockphoto.com
[Justice Archibald ruled
in obiter that] posttermination evidence
may only be used so
long as it relates to the
employee’s disability
at the time of dismissal
and that a long-term
disability benefits plan
may indeed postpone
the time of frustration.
Soma Ray-Ellis
Himelfarb Proszanski
reinstated to his former position
against the advice and opinion of
his doctors. Canac did not accept
his requests and, on May 29,
2008, delivered a termination
letter to the plaintiff as the com-
pany was in the midst of shutting
down its operations.
In hearing this case, Justice
Archibald found the plaintiff was
constructively dismissed and
reasonable notice was determined to be 18 months for the
plaintiff who was a mid-level
manager in his mid-50s earning
an annual salary of $53,248.
Additionally, the plaintiff sought
damages for the tort of intentional infliction of mental
suffering and for the bad-faith
manner of dismissal, along with
punitive damages, but they were
not awarded by the court.
Justice Archibald found the
plaintiff had been constructively
dismissed because he was subjected to several unilateral and
significant changes to his position on his return to work,
amounting to a demotion. The
argument that he was constructively dismissed as a result of a
poisonous work environment was
not accepted. The court found
that although Poonawalla had
created a culture of surveillance
by requesting that employees
report on each other, the plaintiff
was not the target of this behaviour and the corrective actions
directed at the plaintiff were not
unreasonable or persecutorial.
Justice Archibald noted that
the plaintiff never accepted or
acquiesced to the changes in his
position, and for almost 10
months repeatedly asked for an
explanation Additionally, the
plaintiff ’s insubordinate and
insolent behaviour was a reflection of his refusal to accept the
changes imposed upon him.
In its defence, Canac raised the
issue of frustration of contract,
submitting that the contract of
employment was frustrated as a
result of the plaintiff ’s disability
for which he began receiving
benefits subsequent to his last
day of work in 2006. Therefore
he was not entitled to reasonable
notice of termination or pay in
lieu thereof. Canac sought to rely
on post-termination evidence of
the plaintiff ’s disability. The
plaintiff argued against the use of
such evidence and submitted that
the existence of a long-term disability benefits plan effectively
postpones the time of frustration.
Justice Archibald held the
doctrine of frustration to be neither relevant nor applicable in
the circumstances as the plaintiff ’s disability commenced subsequent to the date of his constructive dismissal. He did,
however, address the arguments
of the parties in obiter, providing that post-termination evidence may only be used so long
as it relates to the employee’s
disability at the time of dismissal and that a long-term disability benefits plan may indeed
postpone the time of frustration.
Canac sought to receive a
reduction in damages for disability benefits. Justice Archibald
considered Contreras v. Canac
Kitchens [2010] O.J. No. 528. In
that case the court reasoned that
absent an express provision in
the employment contract barring
double recovery, the court can
reasonably infer that an employment agreement allows an
employee to retain disability payments in the event of a wrongful
dismissal when the employee has
contributed to the benefits plan.
Justice Archibald found that
Canac was not entitled to such a
reduction in damages as both the
plaintiff and Canac had contributed to the benefits plan.
He addressed the issue of limitation period and found, as conceded by both parties, the plaintiff ’s claim for constructive
dismissal as of April 2005 was
not statute-barred. The limitation period does not begin to run
from the commencement of the
employer’s actions which amount
to constructive dismissal, but
rather from the time the employee
recognizes he or she is being constructively dismissed.
Soma Ray-Ellis is a partner and chair
of Himelfarb Proszanski’s
employment & labour group. This
article was written with the
assistance of Caleigh Caplan.
We Practise At the
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14
• May 22 , 2015
THE LAWYERS WEEKLY
immigration
mipan / iStockphoto.com
Focus
Slow start to express entry
Evelyn Ackah
T
he promise of the new express-entry permanent residence (PR) program,
launched on Jan. 1, was that it would be a “faster and more effective way for
Canada to welcome skilled immigrants,” to quote the government news
release. Express entry is an online application system that determines eligibility
of workers based on a calculation of points, and was expected to be flexible, efficient and responsive to changing immigration priorities as set by the Canadian
government. But after the first five months it’s clear the new PR process has
missed the mark on all three of its goals. Worse, the new program has created
some unintended consequences.
First, the application system is restrictive and leaves little room for discretion.
With only an e-mail address for inquiries, no one is available to talk to throughout the process.
Second, it reduces the independence of PR applicants. They must wait for an “invitation to apply” (ITA) along with tens of thousands of other applicants, based on a
points threshold set by the government which can change week to week.
Third, the program also seems to miss the mark by assigning 600 additional points
to those who have labour market impact assessments (LMIA) or provincial nomination certificates under the provincial nominee program (PNP). This could result in
applicants who have less experience or education being chosen for PR status ahead
of more experienced or senior executive skilled professionals. This unfairly penalizes
foreign workers who entered Canada under NAFTA or by intra-company transfer
and who don’t have an LMIA.
Express entry is based on a comprehensive ranking system of factors such as age,
education, language ability (English and French), Canadian work experience and
skills transferability that assigns points to a maximum of 1200. Canadian Immigration and Citizenship can determine the point score they require in order to accept an
application and issue an ITA for PR.
When the program was initially launched, the criteria was nearly 900 points of out
1200, meaning that only those with LMIAs or PNP certificates would be selected. It
has become increasingly challenging to obtain LMIAs or PNP nominations.
Since launching, the selection points required have been reduced significantly and
most recently was set at 453 points, as the government realized very few people
would qualify for PR without having an LMIA or PNP certificate. The first three
months of the year negatively affected those without LMIAs or PNP certificates and
the government has made further adjustments by reducing the selection criteria by
almost 400 points in order to increase the number of qualified applicants.
During the past five years, Canada has accepted about 250,000 PRs. Since Jan. 1,
about 10,000 applicants have received an ITA. However, many of them will not have
Skilled, Page 15
May 22 , 2015 •
THE LAWYERS WEEKLY
Focus
15
IMMIGRATION
Deportation used to avoid criminal trials
Nikolay Chsherbinin
ational security is one of the
N
key objectives of Canadian
immigration legislation. This
objective is given effect by preventing the entry of applicants
with criminal records, as well as
removing individuals from Canada for deportable offences.
Immigration law has become
adjunct to criminal law and it is
increasingly being used as a law
enforcement tool to permanently
remove offenders from our
shores. Non-citizens who are
alleged to have been engaged in
organized criminality or terrorism may be found to be inadmissible to Canada without being
charged with criminal offences.
This application of immigration
law in high-stake accusations is
troubling, because it proceeds on
a reductionist understanding of
crime and punishment theory, as
well a much lower standard of
proof and rules of evidence
which can include hearsay.
In the wake of the events of
September 11, 2001, immigration law has been employed as
an integral part of the ongoing
terrorist and organized criminality investigations. A case in
point is the recent arrest of
Jahanzeb Malik, a permanent
resident who is alleged to have
been plotting a terrorist attack
against the U.S. consulate in
Toronto. Despite this serious
allegation, the government chose
to prosecute Mr. Malik under
the inadmissibility provisions of
the Immigration and Refugee
Protection Act (IRPA) and not to
charge him criminally.
The dichotomy between the
terrorism-related accusations
and refusal to charge an accused
criminally might perplex those
benjaminec / iStockphoto.com
It appears naive to assume that deporting
terrorists without criminal persecution and
incarceration enhances our safety. Deportations
merely re-allocate the problem without creating
greater long-term safety, since terrorist activities
may be run from abroad.
Nikolay Chsherbinin
Chsherbinin Litigation
unfamiliar with the workings of
the IRPA. When evidence against
the accused is not as cogent to
succeed in the criminal law
forum, the Crown will be reluctant to lay charges. However, the
IRPA clothes the Canada Borders
Services Agency with powers that
permit it to attempt to rid Canada of the alleged terrorist by
proceeding via immigration law,
where the evidentiary standard
of proof is that of reasonable
grounds to believe. This standard
requires something more than
mere suspicion, but less than the
standard applicable in civil matters of proof on the balance of
probabilities, and much less than
proof beyond reasonable doubt
that applies in criminal law proceedings. In the context of organized criminality, the government
may elect to proceed with the
immigration prosecution in order
to remove the violators despite
the fact that the criminal charges
against them were either dropped
or disposed of in their favour.
It appears naive to assume that
deporting terrorists without
criminal persecution and incarceration enhances our safety.
Deportations merely re-allocate
the problem without creating
greater long-term safety, since
terrorist activities may be run
from abroad. Moreover, in cases
where terrorists are being
removed to the countries in
which they are able to operate
more freely, deportation, arguably, defeats the IRPA’s key
objective set out in section 3(1)
(h): maintaining the security of
Canadian society. The current
efforts of deporting terrorists
create a false sense of security,
but provide the platform for
advocating for further border
security initiatives.
Last Dec. 12, Bill C-4, A Second
Act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and
other measures, received royal
assent. It contains key amendments to the Canadian immigration scheme that will introduce
the “expression of interest” system in Canada. It is a two-stage
active immigration process where
applicants would be required to
first submit an online form
through the Citizenship and
Immigration Canada’s website,
which it would then evaluate
against certain criteria. The CBSA
also hopes to soon implement a
“board/no board” policy which
would allow entry decisions to be
made before an individual was
allowed to depart for Canada.
The current focus on increased
scrutiny at points of entry and
heightened removal through the
IRPA prosecutions is designed to
enhance national security, or at
least its perception. While
enhanced border controls may
reduce the number of criminals
entering, they surely cannot prevent offences committed by noncitizens who do not become
involved in terrorist or criminal
activities until after they are lawfully admitted to live in Canada,
or preclude native-born or natur-
alized citizens from engaging in
terrorism. For example, in June
2006, 18 Canadian-born Muslims were arrested and charged
with planning a series of terrorist
attacks against selected Canadian
targets, including the Canadian
Parliament buildings and the
Prime Minister.
This argument demonstrates
that our immigration laws are
both too powerful and not powerful enough to provide us with
security. As with any great power,
exemplified in the context of
immigration prosecutions by the
right to detain (with or without
warrant) and deport non-citizens, there should be greater
accountability or it could become
subject to easy abuse.
When it comes to an individual’s involvement in organized
crime, an old adage — “tell me
who your friends are and I will
tell you who you are” — takes on a
literal meaning, because a person’s mere association with individuals who are believed to have
been engaged in activity that is
part of a pattern of planned and
organized criminal activity may,
in certain circumstances, suffice
to be found inadmissible to Canada and be deported.
Consequences flowing from
the finding of inadmissibility on
the grounds of organized criminality or security are harsh,
including elimination of the
statutory right to appeal removal
orders, suspension or termination of a claim for refugee protection, and, inter alia, removal
of an opportunity to seek discretionary relief from the deportation order itself.
Nikolay Chsherbinin is an employment lawyer at Chsherbinin Litigation and author of The Law of
Inducement in Canadian Employment Law. He can be reached at 416907-2587, [email protected] or nclaw.ca.
We want to hear from you!
Send us your verdict:
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Skilled: Restrictions, tech glitches mar new permanent residence program
Continued from page 14
their applications advanced successfully to PR because they only
have 60 days to provide all the
required documentation, including proof of medicals, police
checks, work experience, travel
history and financial ability. Certain countries may not be able to
provide police certificates within
such a short period of time, and
wait times to obtain medical
exams by designated panel physicians have increased.
In the past, it was possible to
request an extension to gather
the necessary documentation.
However, the express-entry system removes the human element
completely and extensions are no
longer permitted. Applicants who
cannot complete their applications in 60 days will lose their
ITA and return to the expressentry pool to wait to be ranked
and selected all over again.
There are also major technological problems. For example,
information sometimes has to be
entered several times before it will
be accepted. The portal will only
allow you to be logged into the system for a short period of time, at
which point it will kick you out.
Because the application process is
all online, it is challenging to review
your application to ensure accuracy, which raises issues of potential
misrepresentation. Five months
after launch, these technological
bugs have yet to be fixed and no
comprehensive user manual exists
for reference purposes.
Although the idea of an expressentry system for PR sounds great,
it has clearly failed to launch successfully and fulfil expectations.
One can only hope these problems
will be resolved quickly so that
immigration lawyers can get back
to practising law and not fighting
with technology and tight timelines. It will be interesting to see
how express entry is working a
year after implementation and if
the government meets its annual
target of welcoming 250,000 PRs
to Canada, or if applicants will
become frustrated and choose to
immigrate elsewhere.
Evelyn Ackah, founder and managing
lawyer of Ackah Business
Immigration Law. She advises clients
on bringing workers with needed
talent and skills to Canada, including
permanent residence and NAFTA
professional work permits. She can
be reached at [email protected]
or (403) 452-9515, ext. 100.
16
• May 22 , 2015
THE LAWYERS WEEKLY
Digest
Aboriginal Law
Aboriginal lands
Types - Reserve lands - Aboriginal title
lands - Aboriginal right lands - Practice
and procedure - Pleadings - Appeals
and judicial review
Appeal by the plaintiffs, the
Nechako Nations, from an
order striking their notice of
civil claim and dismissing their
action against the defendant,
Rio Tinto Alcan. Cross-appeal
by the defendant from dismissal
of its application for summary
judgment. The underlying
action alleged that the defendant’s hydroelectric dam operations impacted the plaintiffs’
Aboriginal title and rights,
breached their riparian rights
and caused a private and public
nuisance. They sought injunctive relief, or alternatively,
damages. The defendant sought
summary dismissal on the basis
of a defence of statutory authority stemming from a government agreement and water
licences granted pursuant to
the 1949 Industrial Development Act, and settlement agreements reached with the province in 1987 and 1997 in respect
of water flow release and electricity supply. Alternatively, the
defendant sought an order
striking the notice of civil claim
on the basis it did not disclose a
reasonable cause of action. The
chambers judge dismissed the
application for summary judgment, finding a genuine issue
for trial on the existence of
practical feasible alternatives to
the defendant’s impugned conduct. The chambers judge
granted the application to
strike the notice of civil claim
on the basis that a claim against
the defendant based on
unproven Aboriginal title and
rights claims had no reasonable
chance of success. The parties
each appealed.
HELD: Appeal allowed in part
and cross-appeal dismissed. It
was not plain and obvious,
assuming the facts pleaded to
be true, that the notice of civil
claim disclosed no reasonable
cause of action in respect of the
claims of private nuisance, public nuisance and interference
with riparian rights, to the
extent they were based on
Aboriginal title and rights. The
chambers judge erred in holding that no reasonable causes of
action existed until Aboriginal
title and other Aboriginal rights
were proven or accepted by the
Crown. It was well-established
in the jurisprudence and the
Constitution that Aboriginal
title and rights existed prior to
such declaration or recognition.
The order striking the portion
of the claim based on breach of
riparian rights, to the extent
that those rights are alleged to
arise from an interest in reserve
lands, was correct, as such
rights were previously vested in
the Province by statute. The
right of exclusive possession of
the reserve lands was otherwise
sufficient to found a claim in
private nuisance. The chambers
judge did not err in rejecting
the defendant’s application for
summary judgment on the basis
of statutory authority, as the
discovery and trial processes
were required to determine
whether the alleged nuisance
was the inevitable result of
what was authorized by the
statutory authority.
Saik’uz First Nation v. Rio Tinto
Alcan Inc., [2015] B.C.J. No. 694,
British Columbia Court of Appeal,
M.E. Saunders, D.F. Tysoe and E.A.
Bennett JJ.A., April 15, 2015. Digest
No. 3503-001
Civil Litigation
Civil procedure
Parties - Class actions - Procedure Stay of action due to parallel
proceeding - Disposition without trial Dismissal of action - Abuse of process
Appeal by the defendant telecommunication companies from
dismissal of their motion to stay
two class action claims. In 2004,
the plaintiffs sued the defendants in relation to wireless
phone system access fees. The
action was one of nine virtually
identical actions filed in nine
different provinces by the same
plaintiff represented by the
same law firm. No steps were
taken to advance the litigation
in Nova Scotia from 2004 until
amendment to the statements of
claim in 2014. Counsel had indicated it intended to seek certification of a national class action
in Saskatchewan that would
include the Nova Scotia plaintiffs. In 2007, a national class
action was certified in Saskatchewan, but the order excluded
customers with arbitration
clauses and limited the claim to
contractual unjust enrichment.
Meanwhile, related proceedings
were advanced in other provinces to varying extents. Counsel
subsequently formed the view
that Nova Scotia was now a preferred jurisdiction to advance
the national class action due to
amendments to class proceeding legislation in Saskatchewan
enacting an opt-out scheme,
and a judicial ruling refusing to
convert the Saskatchewan
action accordingly. The defendants moved for a permanent stay
of proceedings in Nova Scotia
on the basis of an abuse of process. The motion judge found no
presumptive abuse arose from
filing multiple similar class
actions in different jurisdictions. The defendants appealed.
HELD: Appeal allowed. It was
well established that multiple
actions in multiple jurisdictions involving the same subject matter fell within the doctrine of abuse of process.
Similarly, commencing an
action for the purpose of securing carriage was an abuse of
process. In the class action context, the justification for commencing actions in more than
one jurisdiction did not preclude review for abuse of process. The motion judge failed to
conduct any analysis as to
whether the actions in Nova
Scotia amounted to an abuse of
process. It was clear from the
outset that there was no intention to advance the Nova Scotia
action based on the stated
intent to pursue national certification in Saskatchewan.
Commencing multiple class
actions and then allowing
inordinate delay was not a permissible tactic. The distinction
between opt-in and opt-out
class action schemes was a neutral consideration that did not
preclude a proper abuse of process analysis. The matter had
proceeded in Saskatchewan
where conversion to opt-out
certification was refused. The
plaintiffs now sought to obtain
the relief refused in Saskatchewan. Re-litigation in Nova
Scotia would constitute an
extraordinary abuse of process
and undermine the proper
administration of justice. Nova
Scotia residents had the ability
to join the Saskatchewan action
if they desired. The Nova Scotia
action was permanently and
unconditionally stayed.
BCE Inc. v. Gillis, [2015] N.S.J. No.
139, Nova Scotia Court of Appeal, P.
Bryson, J.E. Scanlan and C.A. Bourgeois JJ.A., April 9, 2015. Digest No.
3503-002
distressed child. In July 2011,
the plaintiff sued the Fredericton Exhibition, where the ride
was located, and the operator of
the ride, Maritime Midways. In
November 2011, the plaintiff
filed another action against
G&G Carnival, the owner of the
ride. The actions were consolidated by consent of the parties.
The plaintiff claimed $30,000,
the maximum damages for a
Rule 80 action. In 2013, the
plaintiff filed a motion seeking
to convert the actions into Rule
79 or ordinary procedure
actions on the basis that his
damages significantly exceeded
$30,000. The judge dismissed
the motion on the basis the
plaintiff abandoned his claim
for damages beyond $30,000
by commencing actions under
Rule 80, and knew or ought to
have known his damages
exceeded that threshold before
he commenced his Rule 80
claims. The plaintiff appealed.
HELD: Appeal allowed. The
plaintiff was not precluded from
an order converting his action
into a Rule 79 or ordinary action
simply because he initially
reduced his claim to commence
an action under Rule 80. The
motion judge failed to provide
sufficient reasons for refusing the
motion, as there was no analysis
of the interests of justice or potential prejudice to the respondents.
The underlying purpose of Rule
80 was to provide an expeditious
procedure and facilitate access to
justice. It was counterintuitive to
punish a litigant for not having
correctly divined their losses from
the outset of the process. The
motion judge’s order refusing the
relief sought was clearly wrong.
Based on the plaintiff ’s evidence
of his losses and the absence of
potential prejudice to the
respondents, the consolidated
action was ordered to proceed in
accordance with the rules applicable to an ordinary action.
Contracts - Choice of law - No law
specified by parties - Jurisdiction with
most substantial connection
HELD: Appeal and cross-appeal
dismissed. The motion judge did
not err in finding that Ontario law
applied to the breach of contract
claim. The judge did not err in
characterizing the nature of the
contract as one of design, delivery
and installation rather than for sale
and installation. The parties’ agreed
statement of facts amply supported
the judge’s characterization, as the
ordering of components and design
of the system was all done in
Ontario. Similarly, the judge did
not err in concluding that most of
the contract was performed in
Ontario given that Ontario was
where the system was designed.
The agreed facts stated that the
only work performed in Alberta by
anyone other than Lilydale was
boiler work performed by a third
party. The judge was entitled to
find that the fact of delivery in
Alberta did not overcome the other
indicia in favour of Ontario. The
judge was justified in finding that
the parties’ respective domiciles
and residences were neutral. The
overall conclusion that the closest
and most real connection to the
contract was Ontario was reasonable. There was no error in awarding Lilydale its costs on the motion.
Appeal by the defendant Meyn
companies from a finding that the
parties’ contract was governed by
Ontario law. The plaintiff, Lilydale
Cooperative, was an Alberta com-
Lilydale Cooperative Ltd. v. Meyn
Canada Inc., [2015] O.J. No. 2049,
Ontario Court of Appeal, J.I. Laskin,
E.A. Cronk and P.S. Rouleau JJ.A.,
April 22, 2015. Digest No. 3503-004
Leger v. Fredericton Exhibition Ltd.,
[2015] N.B.J. No. 79, New Brunswick
Court of Appeal, M.E.L. Larlee, K.A.
Quigg and B.V. Green JJ.A., April 9,
2015. Digest No. 3503-003
Civil procedure
Conflict Of Laws
Trials - Simplified procedure actions Monetary limit - Motions
Conflicts by legal area
Appeal by the plaintiff, Leger,
from refusal to convert a consolidated Rule 80 small claims
action into a Rule 79 or ordinary action. In September 2009,
the plaintiff broke his ankle
when he entered a children’s
amusement ride to rescue his
pany that operated a poultry processing plant in Edmonton. Meyn
was a multi-national enterprise,
incorporated in Canada, and operating in Ontario. In 1993, Lilydale
purchased a fryer and oven system
from Meyn for its Edmonton plant.
In January 2006, Lilydale sued
Meyn in Ontario seeking damages
for negligence and breach of contract in connection with a fire that
occurred in January 2004. Lilydale
alleged that the fryer and oven system was defective and caused the
fire. The parties brought a motion
by special case on agreed facts to
determine the applicable law to the
tort and breach of contract claims.
The parties agreed that Lilydale’s
cause of action arose no later than
August 1994. If Alberta law applied,
the action was statute-barred. The
motion judge found that Alberta
law applied to the tort claim.
Lilydale did not appeal that finding. The motion judge determined
that Ontario law applied to the
breach of contract claim. The parties’ agreement was silent as to
choice of law. The motion judge
found that Ontario had the closest
and most real connection to the
contract. Meyn appealed the decision and costs award. EMK, the
respondent in a cross-claim by
Meyn, filed a cross-appeal supporting Meyn’s position and raising
additional grounds.
May 22 , 2015 •
THE LAWYERS WEEKLY
17
Digest
Constitutional
Law
Canadian Charter of
Rights and Freedoms
Minority language education rights
Appeal by the Association des
parents de l’école Rose-desvents from judgments of the
British Columbia Court of
Appeal setting aside an order
striking certain paragraphs of
the pleadings filed by the British Columbia Minister of Education and the Attorney General for the province and setting
aside the declaration relating to
educational services made
available to students at the
Rose-des-vents (RDV) school.
RDV was one of the few publicly-funded French-language
elementary schools in Vancouver. It was becoming gradually
overcrowded as a result of an
increase in its enrollment. By
contrast, the English-language
schools in RDV’s catchment
area were larger and had better
physical facilities. Parents of
children enrolled at RDV filed a
petition seeking a declaration
that their minority language
education rights under s. 23 of
the Canadian Charter of Rights
and Freedoms (Charter) had
been breached. They argued
that the RDV school facilities
were not equivalent to those of
the English-language schools in
the area. They named as
respondents the Minister of
Education, the Attorney General of British Columbia and
the Conseil scolaire francophone de la Colombie-Britannique (CSF), but sought to
avoid the question of assigning
responsibility for the alleged
inadequacies during the first
stage of the proceedings. Justice Willcock decided to phase
the proceedings in light of the
declaratory nature of the relief
sought by the parents. He
struck certain parts of the Province’s pleadings on the grounds
that they were not relevant to
the first phase of proceedings.
Justice Willcock found a lack of
equivalence between the school
facilities afforded to the RDV
students and the facilities available to majority language students in the same area. He also
found that the school’s facilities
were inadequate, and that the
long travel times of many students were not offset by
superior facilities or programs.
He concluded that the facilities
were inadequate to meet the
standard
of
equivalence
required by s. 23 of the Charter
but did not assign responsibility for the failure to meet the
constitutional standard. A declaration was issued in favour of
the parents. The Court of
Appeal allowed the appeal
brought by the Minister of Edu-
cation and the Attorney General of British Columbia. It
found that certain paragraphs
struck by the judge should not
have been struck, as they were
not clearly irrelevant to the first
phase of proceedings. It also set
aside Justice Willcock’s declaration and ordered that the petition be remitted to the Supreme
Court of British Columbia.
HELD: Appeal allowed. The declaration was reinstated. Section
23 of the Charter guaranteed
minority language rights holders the right to have their children educated in English or
French. Once it was determined
that the number of minority
language children mandated
the highest level of services, s.
23 required that the quality of
services be substantively equivalent to that offered to the majority language students. When
assessing the equivalence of services, the focus was to be placed
on the substantive equivalence
of the educational experience.
If, on balance, the experience
was equivalent, the requirements of s. 23 were met. The
programs offered at RDV were
not so superior as to offset its
inadequate facilities, overcrowding and long travel times.
The disparity between the minority and majority language
schools was such as to limit
enrolment and contribute to
assimilation. Issues of costs and
practicalities were also to be
considered in determining
where a minority language community fell on the sliding scale
of rights guaranteed under s.
23. Where the community was
entitled to the highest level of
educational services, on an
equal footing with the majority
language community, costs and
practicalities were not relevant
to a determination of whether
the rights holders were receiving the services to which they
were entitled. At the end of the
first phase of the proceedings,
Justice Willcock issued a declaration that the rights holders
in the designated area were not
being provided the minority
language educational facilities
guaranteed to them by s. 23.
The judge’s declaration in this
case constituted a limited, or
prima facie, declaration of a
breach of s. 23. In these circumstances, where the children of s.
23 rights holders were entitled
to an educational experience
equivalent to that of majority
language children, there was no
difference between a finding of
a lack of equivalence and a finding that the rights holders had
not received the services to
which they were entitled. In
effect, unless the absence of
equivalence could be justified
under s. 1, it was a violation of
the claimants’ Charter rights.
The procedures adopted by the
judge in managing the proceed-
ings were not procedurally
unfair. Justice Willcock phased
the proceedings in light of the
limited nature of the RDV parents’ requested relief, taking
into consideration the efficient
use of judicial resources and the
special nature of s. 23. Determining responsibility for the
breach was left for a subsequent
phase of proceedings, if necessary. It was open to the judge to
strike the portions of the Province’s pleadings that were not
relevant to the first-phase
inquiry into equivalence. Limiting the evidence that could be
adduced according to the phasing of proceedings was not
unfair to the parties. The appeal
was allowed and the judge’s
declaration was reinstated. The
matter was remitted to the
Supreme Court of British Columbia for the next phase of the
petition, if necessary. The special costs award granted by the
judge on the basis that the RDV
parents and the CSF were successful public interest litigants
was also restored.
Association des parents de l’école
Rose-des-vents v. British Columbia
(Education), [2015] S.C.J. No. 21,
Supreme Court of Canada, McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis, Wagner and
Gascon JJ., April 24, 2015. Digest No.
3503-005
Criminal Law
Compelling appearance,
detention and release
Judicial interim release or bail - Release
or detention after trial or pending
appeal - Bail
Application by Omar Khadr for
bail pending an appeal in the
United States. The applicant
was a former detainee at the
military prison at Guantanamo
Bay. In 2010, he pled guilty to
five offences under the Military
Commissions Act, murder,
attempted murder, conspiracy,
supporting terrorism, and
espionage, and was sentenced
to eight years’ imprisonment.
In 2012, the applicant was
transferred to Canada pursuant
to the International Transfer of
Offenders Act (ITOA). The
applicant waived his rights to
appeal the conviction and sentence as part of a pre-trial
agreement. However, the applicant had an appeal pending
before the Court of Military
Commission Review in Virginia. There was unchallenged
expert evidence that the appeal
was not barred by the applicant’s waiver, and had a strong
possibility of success. It was
unlikely that the appeal and
any further appeals would be
determined prior to the applicant’s statutory release date.
The applicant sought bail pending his appeal by way of habeas
corpus, or pursuant to s. 24 of
the Charter. He submitted that
refusal of bail would render his
appeal nugatory. The Crown
opposed bail on the basis that
the applicant’s release was contrary to Canada’s international
treaty obligation to enforce the
applicant’s sentence and was
barred under the ITOA. The
Crown submitted that the
applicant did not establish a
Charter right to bail pending
his appeal.
HELD: Application allowed. The
right to seek bail pending appeal
was a principle of fundamental
justice guaranteed by s. 7 of the
Charter. The ITOA was not
clearly inconsistent with that
right, as an application for bail
pending appeal related to a
release that was an aspect of
continued enforcement of a
sentence subject to Canadian
law. In addition, there was no
basis for rejecting habeas corpus jurisdiction, as there was no
alternative procedure available
to the applicant. The applicant’s
waiver agreement did not bar
the applicant from pursuing his
Charter right to bail pending
appeal. The merits of the applicant’s appeal were not frivolous
given unchallenged expert evidence regarding his legal position. No issue was taken with
the fact that the applicant would
surrender himself into custody.
Balancing the merits of the
appeal and the public confidence in the administration of
justice, in the context of the
seriousness of the offences,
favoured the applicant’s release.
The risk to public safety was not
sufficient to detain the applicant in the public interest in a
manner that could render his
appeal irrelevant. Further submissions were scheduled to
determine the appropriate
terms of release.
Khadr v. Bowden Institution (Warden), [2015] A.J. No. 432, Alberta
Court of Queen’s Bench, J.M. Ross J.,
April 24, 2015. Digest No. 3503-006
Procedure
Opening and closing statements by
counsel - Trial judge’s duties - Charge
or directions - Trials - Mistrial
Appeal by the accused, Khairi,
from a conviction and sentence
for second degree murder. The
accused admitted that he
stabbed and killed his wife. Two
knives were used in the attack.
The fatal wound sliced through
the wife’s neck to her spine. She
was also stabbed five times in
the torso. There was evidence
the accused had been abusive
and that his wife told him she
would take the children and
leave. The accused contended
that he lacked the requisite
intent for murder due to mental
health issues. Alternatively, he
claimed that the stabbing was
caused by the wife’s provocation
through words and conduct. The
accused was convicted by a judge
sitting with a jury and sentenced
to life imprisonment without eligibility for parole for 15 years.
The accused appealed the conviction on the basis the trial
judge erred in failing to grant a
mistrial following the Crown’s
inflammatory opening, failed to
give proper instructions to the
jury regarding the Crown’s opening and the principle of reasonable doubt, misstated the expert
evidence, and failed to properly
relate the evidence to the defence
of provocation. The accused
appealed the sentence on the
basis that the parole ineligibility
period was excessive.
HELD: Appeal dismissed. The
Crown’s opening statement was
improper, as it was inflammatory, argumentative and lengthy.
However, the trial judge did not
err in exercising discretion
against granting a mistrial. Any
prejudice caused by the opening
statement
was
properly
addressed through the instructions to the jury. The trial judge
did not err in answering jury
questions regarding the application of the WD instructions
regarding reasonable doubt.
The charge sufficiently explained
the presumption of innocence,
burden of proof, and requirement of proof beyond a reasonable doubt in the context of the
practical operation of the WD
principles. The trial judge did
not err in recounting the expert
evidence of the accused’s mental
state. The trial judge reviewed
all of the relevant evidence and
was not required to repeat his
review related to provocation.
The charge regarding provocation did not display any error in
structure or content. With
respect to sentence, the trial
judge did not overemphasize
aggravating factors or underemphasize mitigating factors in
arriving at a 15-year period of
parole ineligibility. The sentence
was not unreasonable or outside
of the applicable range. Sentence: Life imprisonment;
15-year parole ineligibility.
R. v. Khairi, [2015] O.J. No. 2054,
Ontario Court of Appeal, G.R.
Strathy C.J.O., D.H. Doherty and E.E.
Gillese JJ.A., April 22, 2015. Digest
No. 3503-007
Review boards
Duties and powers - Hearings Orders - Dispositions - Appeals and
judicial review
Appeal by Osawe from a disposition by the Ontario Review
Board. From November 2010
onward, the appellant was
detained at the Centre for
18
• May 22 , 2015
THE LAWYERS WEEKLY
Digest
Addiction and Mental Health.
The appellant was found not
criminally responsible for an
assault causing bodily harm on
account of mental disorder. He
was diagnosed with schizophrenia, anti-social personality
traits, and borderline-mild
mental retardation. The appellant had a documented history
of substance abuse. His present
disposition granted unaccompanied hospital and grounds
privileges,
unaccompanied
entry into the community, and
the possibility of supervised
accommodation within the
community, all subject to the
hospital’s permission. At an
annual review in 2014, the parties put forward a joint submission for continuation of the
appellant’s current disposition.
The Board rejected the joint
submission, citing a sexual
assault charge from 2013
involving another patient that
was judicially stayed when the
complainant refused to testify.
The
Board’s
disposition
required accompanied hospital
and grounds privileges, accompanied entry into the community, and eliminated the possibility of community living. The
appellant submitted that the
Board’s rejection of the joint
submission without a prior
opportunity to lead further evidence and make further submissions was procedurally
unfair. The Crown submitted
that the duty of procedural fairness did not require the Board
to give notice it might reject the
joint submission, and that sufficient notice was given through
questions posed by the Board.
Sentencing
Criminal Code offences - Aggravated
sexual assault - Robbery - Break and
enter a dwelling-house - Particular
sanctions - Imprisonment - Young
persons - Adult sentences
Appeal by a young person, Anderson, from an adult sentence
imposed for break, enter and robbery, and aggravated sexual
assault. The appellant was three
months shy of his 18th birthday
at the time of the offences. He
entered a ground level apartment. The occupant called her
husband. The appellant overpowered the occupant by punching her repeatedly. The occupant
gave the appellant money and
begged him not to hurt her. The
appellant proceeded to remove
the occupant’s clothes and force
sexual intercourse. He fled upon
the arrival of the occupant’s husband and was arrested in the
vicinity. One day prior to the incident, the appellant broke into
another nearby apartment and
stole a large amount of money,
electronic
equipment
and
woman’s undergarments. The
Crown obtained an order for the
appellant to be sentenced as an
adult. The judge imposed a sentence of ten years’ imprisonment.
The sentence was comprised of
three years for the break, enter
and robbery and seven years’
consecutive for the sexual
assault, less 773 days credit for
773 days already served. The
appellant submitted that the
judge erred in imposing an adult
sentence and that the sentence
imposed was excessive.
HELD:
Appeal
allowed.
Although the Board was
entitled to reject the joint submission, it had an obligation
under the Criminal Code and at
common law to give the appellant a fair hearing. The content
of the Board’s duty of procedural fairness required it to give
the appellant notice that it was
considering rejection of the
joint submission to impose a
more restrictive disposition.
The Board also had a corollary
duty to give the appellant and
the other parties an opportunity to lead further evidence or
make further submissions to
address the Board’s concerns.
Although the Board could fulfill
its duty to give notice in different ways, including via questions at the hearing, it did not
give adequate notice in this
case and therefore breached its
duty of procedural fairness. The
Board’s disposition was set
aside and a new hearing was
ordered.
HELD: Appeal allowed in part.
There was no basis for interference
with the decision to impose an
adult sentence. The sentencing
judge conducted a considered
assessment of the relevant factors
for imposition of an adult sentence,
including the need for extensive
programming and counseling, the
appellant’s rehabilitation and
reintegration prospects, and systemic and personal considerations
related to the appellant’s aboriginal
background bearing on his culpability and moral blameworthiness.
The judge did not err in concluding
that the maximum youth sentence
was insufficient to achieve accountability. However, the sentence
imposed was excessive, as the
judge’s unexplained use of a 15-year
starting point tainted his reasoning. There was no jurisprudence in
which a youthful offender received
a 10-year sentence for similar
offences. The sentence was reduced
to concurrent terms of eight years’
imprisonment, with credit for
time served on an enhanced basis.
Sentence: four years and ten
months’ imprisonment.
Osawe (Re), [2015] O.J. No. 2050,
Ontario Court of Appeal, J.I. Laskin,
K.M. van Rensburg and M.L. Benotto
JJ.A., April 22, 2015. Digest No.
3503-008
R. v. Anderson, [2015] M.J. No. 84,
Manitoba Court of Appeal, R.J.F.
Chartier C.J.M., M.M. Monnin and
D.M. Cameron JJ.A., April 2, 2015.
Digest No. 3503-009
Family Law
not substantially contribute to
her expenses supported the
judge’s refusal to vary quantum.
Maintenance and support
Spousal support - Considerations Compensatory support - Effect of
parties’ subsequent relationships Leaving labour market for family
responsibilities
Appeal by the husband from an
order refusing cancellation or
variation of his spousal support
obligation. The parties married
in 1989 and separated in August
2007. Their children were born
in 1989 and 1992. The husband,
age 54, worked as a railway
training instructor. The wife,
age 58, worked as an administrative assistant. In 2011, a final
divorce order was issued by
consent and provided for
monthly spousal support of
$1,800 payable by the husband.
The award was based on threeyear average incomes of
$119,000 for the husband and
$47,850 for the wife. The husband sought cancelation or
variation of his support obligation retroactive to July 2013
based on the wife’s new relationship and increase in
income, and his reduction in
earnings. The application judge
found that the wife’s new common-law relationship did not
constitute a material change in
circumstances, as the relationship had commenced at the
time of the consent order and
future cohabitation was foreseeable. The judge found that
the extant order included compensatory and non-compensatory elements, and that the
wife’s entitlement to support
was likely indefinite given the
duration and traditional nature
of the marriage and the disparities in the parties’ incomes.
The judge refused any reduction in quantum. The husband
appealed.
HELD: Appeal dismissed. The
judge correctly found that the
wife’s future cohabitation was
reasonably foreseeable at the
time of the 2011 order given her
disclosure of the relationship in
her affidavit. In any event, the
spousal support order was primarily compensatory given the
wife’s traditional role in the
marriage. It was well-established that a compensatory
spousal support order should be
ongoing until economic consequences of the marriage were
redressed, even where interim
self-sufficiency was achieved by
the payee. Re-partnering in a
new relationship did not alter
the economic disadvantage
incurred by the wife through
assumption of family obligations in the marriage, or the corresponding economic advantage
conferred on the husband. With
respect to the non-compensatory component, the evidence
that the wife’s new partner did
Morigeau v. Moorey, [2015] B.C.J.
No. 734, British Columbia Court of
Appeal, P.A. Kirkpatrick, N.J. Garson and D.C. Harris JJ.A., April 20,
2015. Digest No. 3503-010
Government Law
Armed forces
Military law - Military administrative
law - Grievances - Appeals and
judicial review
Appeal by Moodie from a judicial review decision affirming
dismissal of his Canadian
Forces grievance. The appellant
served in the Canadian Forces
between 1995 and 2005. In
2003, the appellant was deemed
a training failure by the
Progress Review Board for his
inability to complete the performance objectives of an
infantry school combat training
course. In particular, the appellant failed the objective of conducting a reconnaissance patrol
after four attempts. He also had
difficulty with conducting
defensive
operations
and
instructing personnel. The
appellant submitted complaints
regarding his failure to the
Chief of the Defence Staff. He
contended he was subjected to
different assessment than other
students, was harassed, and
should have received a pass in
respect of the performance
obligations. The redress of
grievance was denied. The Federal Court upheld the denial as
reasonable. Moodie appealed.
He submitted the Federal Court
judge erred in finding that
there was no procedural unfairness, and that the substance of
his grievance was appropriately
addressed.
HELD: Appeal dismissed. The
Federal Court properly found that
the appellant was not denied procedural fairness with respect to
the terms of reference of the investigation into his complaints, the
timing of the investigation decision, disclosure of evidence, his
inability to collect witness statements, and delay. The conclusion
that a change in the appellant’s
grade from a pass to a fail was a
clerical error was reasonably open
on the evidence. The decision not
to further investigate the error
was reasonable given the conclusion that the appellant had in fact
failed the performance objective.
The conclusion that there was
inadequate evidence to support
the allegation of harassment was
reasonably available on the evidence. The Federal Court did not
err in assessing the substantive
reasonableness of the refusal of
the appellant’s grievance.
Moodie v. Canada (Attorney General), [2015] F.C.J. No. 398, Federal
Court of Appeal, Ryer, Webb and
Near JJ.A., April 7, 2015. Digest No.
3503-011
Human Rights
Law
Discrimination
Prohibited grounds - Mental or
physical disability - Context Workplace discrimination - Job
evaluation - Termination
Appeal by Joshi from a judicial
review judgment affirming dismissal of his human rights
complaint. The appellant suffered from an unspecified and
undiagnosed back condition
that rendered him unable to lift
heavy objects. He responded to
an advertisement by Canadian
Imperial Bank of Commerce
(CIBC) seeking applications
from disabled individuals to
participate in a six-week preemployment training program.
He completed the program and
was offered full-time employment as a financial analyst following completion of a temporary contract. He was dismissed
from his employment three
years later for inadequate work
performance. The appellant
alleged he was discriminated
against on the basis of his disability. The Commission found
that the evidence did not establish the CIBC failed to provide
the appellant with an employment opportunity or had otherwise terminated or treated him
in an adverse differential manner due to his disability. The
Commission dismissed the
complaint. The appellant
sought judicial review. The
Federal Court judge found that
the Commission treated the
appellant fairly, investigated
his complaint thoroughly, and
that the dismissal of his complaint was reasonable. Joshi
appealed to the Federal Court
of Appeal.
HELD: Appeal dismissed. The
Federal Court judge correctly
chose the applicable standards
of review of correctness for
matters of procedural fairness,
bias, and the sufficiency of the
Commission’s investigation,
and reasonableness for the
Commission’s decision as a
whole. The Commissioner
adopted the investigator’s conclusion that the evidence was
insufficient to establish that
CIBC’s conduct was motivated
by the appellant’s disability or
perceived disability. The investigator’s conclusion was supported by a thorough and
cogent report, described in
detail by the Federal Court
judge. The Commission’s deci-
May 22 , 2015 •
THE LAWYERS WEEKLY
19
Digest
sion was supported by the record and was reasonable. No
procedural unfairness was
established. The appellant’s
allegation of bias was completely devoid of merit.
Joshi v. Canadian Imperial Bank of
Commerce, [2015] F.C.J. No. 454,
Federal Court of Appeal, Ryer, Near
and Rennie JJ.A., April 14, 2015.
Digest No. 3503-012
Intellectual
Property Law
Patents
Registration - Procedure - Appeals
Appeals by the Viiv entities and
Glaxo from a Federal Court
judgment affirming that the
753 Patent was ineligible for
listing against KIVEXA. The
appellants marketed KIVEXA,
an anti-retroviral fixed-dose
combination drug that contained two medicinal ingredients: abacavir hemisulfate and
lamivudine. A Notice of Compliance was issued for KIVEXA
in 2005. The 753 Patent issued
in 2007 expressly claimed
abacavir hemisulfate. In 2007,
the Minister added the 753 Patent to the register against
KIVEXA. The respondents,
Teva and Apotex, each served a
Notice of Allegation filing a
new drug submission using
KIVEXA as the Canadian reference product. The appellants
commenced prohibition proceedings against the respondents. In response, the respondents brought motions alleging
the 753 Patent was not eligible
for listing against KIVEXA.
The Prothonotary allowed the
motions, finding that the 753
Patent lacked sufficient product
specificity for listing against
KIVEXA. The Federal Court
upheld the decision, citing the
Gilead decision for the proposition that a patent claim for one
medicinal ingredient could not
support a listing where the
underlying Notice of Compliance was for a combination of
two or more medicinal ingredients, as was the case here. The
appellants appealed to the Federal Court of Appeal.
HELD: Appeals dismissed. Both
the Prothonotary and the Federal Court judge correctly concluded that Gilead was applicable to the predicate case. In
Gilead, the Federal Court of
Appeal found that para. 4(2)(a)
of the Patented Medicines
(Notice of Compliance) Regulations set an exacting threshold
of specificity between what was
claimed in the patent and what
had been approved in the
Notice of Compliance. A patent
that did not explicitly claim all
of the medicinal ingredients
contained in the drug for which
the Notice of Compliance was
issued, as was the case here,
could not be listed against that
drug. The Federal Court judge
dealt extensively with the policy
arguments advanced by the
appellants and the Minister
and rejected the submission
that they in any way affected
the applicability of the conclusion reached in Gilead. The
Court of Appeal agreed with
that analysis. The possibility of
future amendment of the Regulations was not a basis upon
which to distinguish Gilead.
VIIV Healthcare ULC v. Teva Canada
Ltd., [2015] F.C.J. No. 455, Federal
Court of Appeal, Ryer, Near and Rennie JJ.A., April 15, 2015. Digest No.
3503-013
Professional
Responsibility
Self-governing
professions
Duties - Interests of client - Professions
- Legal - Barristers and solicitors
Application by the Monitor of a
class action settlement agreement for an order banning the
Bronstein law firm from further
participation in the claims process and for costs. Bronstein
represented over 1,400 individuals making claims under the
Independent Assessment Process (IAP) established pursuant
to the Indian Residential
Schools Settlement Agreement.
The Monitor was appointed to
oversee the implementation of
the settlement and brought several requests for directions
regarding Brownstein’s conduct.
A 2013 consent order required
Bronstein to facilitate an investigation by the Monitor into the
firm’s relationship with Johnny,
an individual employed by the
firm to assist clients in filling
forms to facilitate the processing of claims. Johnny also provided spiritual advice to clients.
Allegations arose suggesting
Johnny harassed clients and
took a portion of their settlement funds. Johnny was barred
from further participation in the
IAP and Bronstein was required
to submit its IAP practice for
review and retain a Practice
Advisor. The Monitor completed
its investigation and sought an
order banning Bronstein from
further participation in the IAP
and requiring him to pay the
costs of the investigation.
HELD: Application dismissed.
Bronstein’s conduct fell below the
standard expected of legal professional representing clients under
the settlement agreement and the
IAP. Bronstein failed to adequately
screen and supervise Johnny, and
failed to appropriately investigate
clients’ complaints of Johnny’s conduct. However, the conduct at issue
did not justify removal of Bronstein
and his firm, which would cause
disruption to over 150 clients with
outstanding IAP claims. Bronstein
demonstrated capability of revising
its practice to reach acceptable
standards. Bronstein was permitted to continue to participate in the
IAP under the continued supervision of its Practice Advisor with
the Court updated on progress on a
quarterly basis. Bronstein was
liable for the reasonable costs of the
Monitor’s investigation as a necessary corollary of the court’s supervision of the implementation of the
settlement agreement. The court
outlined the process for calculation
of special costs and for addressing
any claims by Bronstein’s clients
against the firm and Johnny.
Fontaine v. Canada (Attorney General), [2015] B.C.J. No. 870, British
Columbia Supreme Court, B.J.
Brown J., May 1, 2015. Digest No.
3503-014
Tort Law
Invasion of privacy
Breach of confidence - Personal
information
Appeal by the plaintiff, Grant,
from an order striking portions of
her statement of claim against
the defendants, the Winnipeg
Regional Health Authority
(WRHA) and additional individuals. The plaintiff was the sister
of Sinclair and the administrator
of his estate. Sinclair, age 45 at
the time of his passing, was an
Aboriginal male confined to a
wheelchair as a double amputee.
He was cognitively impaired and
had speech difficulties. He had
chronic illnesses that included a
seizure disorder, a kidney ailment
and a bladder disorder. In 2008,
Sinclair passed away in a hospital
emergency waiting room from a
bladder infection after 34 hours
without medical attention. Had
Sinclair received timely attention, his condition would not
have caused his death. The plaintiff ’s claim included allegations
that the WRHA breached the
accused’s ss. 7, 12 and 15 Charter
rights in a manner that contributed to his death. The plaintiff
brought the Charter claim in her
capacity as the administrator of
Sinclair’s estate. In addition, the
plaintiff sued the WRHA and
various hospital officials on her
own behalf alleging misuse of
Sinclair’s personal medical information during statements to the
media after his death. The
defendants applied to strike the
claims for lack of standing and
failure to disclose a cause of
action. The motion judge found
the plaintiff lacked the standing
to advance the Charter claim, as
death extinguished the right to
seek redress for a Charter breach.
In addition, the motion judge
found that a third party was
unable to sue in negligence for
the deliberate release of another
individual’s personal information. The plaintiff appealed.
HELD: Appeal allowed. The
motion judge erred in interpreting the jurisprudence related
to the Charter claim and failed
to properly consider societal
interests related to the vindication of Charter rights and deterrence of state actors. Although
the plaintiff ’s claim was novel
and complex, it should not be
struck due to lack of standing.
The factual matrix underlying
the Charter claim was common
to the plaintiff ’s negligence
claim. The plaintiff should have
been granted public interest
standing to pursue the serious
constitutional issue of whether
redress for a Charter violation
ended on death, even when the
violation allegedly contributed
to the death. Fairness required
referral of the matter to the
Court of Queen’s Bench to determine whether the facts supported a reasonable cause of
action. With respect to the claim
for negligent disclosure, the
emerging jurisprudence supported claims for breach of confidence or intrusion upon seclusion. The issue of whether the
plaintiff was a family member in
sufficient proximity in a tort
context to advance a claim in her
own right remained an open
question. It was inappropriate to
dismiss the plaintiff ’s novel
claim at the present stage of the
proceeding. The matter was
referred back to the Court of
Queen’s Bench with leave for the
plaintiff to amend the pleadings
to reflect a cause of action based
upon a breach of confidence or
intrusion upon seclusion.
Grant v. Winnipeg Regional Health
Authority, [2015] M.J. No. 116,
Manitoba Court of Appeal, M.M.
Monnin, D.M. Cameron and C.J.
Mainella JJ.A., May 4, 2015. Digest
No. 3503-015
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• MAY 22 , 2015
THE LAWYERS WEEKLY
IPGGUTENBERGUKLTD / ISTOCKPHOTO.COM
Business & Careers
‘Disembodied’ lawyers urged to get mindful
Wired world, job demands lead to stress, burnout
GRANT CAMERON
T
he trials and tribulations of the job and a feeling
of always being tethered to work via technology
and digital devices have left many lawyers in a
“detached state,” according to Elizabeth Griffin, an
international human rights lawyer and fellow at the
University of Essex Human Rights Centre in the U.K.
Many are “emotionally fragmented” because they
spend too much time on their smartphones and don’t
take proper care of their physical and mental wellbeing, she told The Lawyers Weekly.
“Lawyers have to look after the whole body and
encourage a feeling of wholeness or they’re no good
to anybody. It’s not easy to do when we’re on a deadline or we’re on a case but the consequences on the
body can be huge in terms of stress and burnout and
inability to deal with issues,” said Griffin, who added
that lawyers must think long and hard about their
personal well-being and look after the body and mind
so they don’t become disembodied.
“We have this problem in modern society where the
body has become viewed as something that just carries the brain around. But our bodies, and our minds,
were built for more than just switching on an iPad or
getting up in the morning and going to work and just
sitting in front of a computer,” she said.
Griffin was in Toronto recently to speak at a conference on “Law and the Curated Body” organized by
York University’s Osgoode Hall Law School and the
School of Arts, Media, Performance and Design. The
three-day event featured academics and practitioners
from various fields and from around the world speaking on modern-day issues affecting the human body.
Griffin spoke about mindfulness, lawyer self-care and
ethics and the importance of lawyers embodying
Vasudhaiva Kutumbakam, a Sanskrit term that generally means the world is one family.
Griffin, a registered yoga instructor, advanced level
kite-surfer, and lecturer at the University of Pretoria,
South Africa, has two decades of experience working
as a human rights lawyer in war zones for the United
Nations and non-governmental organizations in Croatia, Bosnia and Afghanistan.
She said the mind, body and spirit of lawyers is
being torn apart as they stare at their iPhones and
Blackberries and lead busy lives, and they typically
forget to act and move mindfully. The result, she said,
is that lawyers are often stressed out, detached and
lose a unified sense of themselves.
“We’re becoming, as human beings, disembodied,”
she said.
Faisal Bhabha, assistant professor at Osgoode Hall
who helped organize the conference, said lawyers
often have higher incidences of stress because of job
demands and the need to find the right balance with
their personal lives.
He said Griffin’s message is important because lawyers who don’t take care of their mental health will
get burned out. Lawyers need to find new ways of
approaching their careers and harmonizing their
professional and personal lives, he said.
“Mindfulness enables us to be more aware of our
own inner workings and our own state of mind, and
it can give us a window into being sensitive towards
those of our clients as well,” he said.
Bhabha, a practising lawyer who previously sat as
vice-chair of the Human Rights Tribunal of Ontario,
said that tapping into ancient Indian philosophy and
gaining the ability to explore one’s consciousness and
be more mindful in one’s body can help lawyers deal
with stress.
Griffin took up yoga in 2001 as a means of recovering from trauma triggered by two decades of working in war zones and investigating human rights
violations, war crimes and genocide. The work was
emotionally draining and yoga helped her return to
a more wholistic mindset, she said.
While she believes yoga is a practice that can help
lawyers become more mindful and also improve
their health, they could just as well participate in any
type of activity that promotes body movement, she
said.
“I don’t want to force yoga on people, but there’s a
growing body of lawyers who are seeing that there
needs to be a balance in life. When the balance is not
struck, we become off-centre and fragmented as
human beings and it’s going to have a negative consequence on how we perform our duties as lawyers.”
Griffin said she is passionate about lawyers embracing Vasudhaiva Kutumbakam. The concept of
Vasudhaiva Kutumbakam originates from Hitopadesha, a collection of Sanskrit fables in prose and verse.
Embracing the practice might help lawyers unify
their own individual being, she said, and, in turn,
foster a greater sense of unity among the global
family.
She said lawyers around the world need to think of
themselves as one family because a decision made in
one country could have repercussions in another.
The world has become smaller and, since the end of
the Second World War, there has been a massive
expansion in international human rights law and
“codification” in treaty law, she noted.
“States are starting to say, ‘Yes, what happens to
people in other far off places is our concern also.’
There’s more of an awareness about what’s happenTask, Page 21
MAY 22 , 2015 •
THE LAWYERS WEEKLY
21
Business & Careers
Securing the gateway to confidential information
Luigi Benetton
Hi-Tech
hones, tablets and notebook computP
ers help lawyers be more productive,
since they connect to the law firm net-
work when the lawyer is out of the office.
They also represent an information security risk because they connect to the law
firm network while the device is out of the
office. Compromise the device, compromise the network it connects to and compromise the data on that network.
That’s why law firms need policies that
govern mobile device usage and must find
ways to help staff comply with those policies.
Drafting a mobile device policy is a complex practice. Dominic Jaar hasn’t seen a
policy yet that covers all the bases.
“You need the right people around the
table,” says Jaar, partner and national
leader in information management and
e-discovery for KPMG. “Most of the policies we see are either totally legal-oriented
or a pure IT approach.”
Mobile device policy can cover a wide
range of topics, including:
 Required authentication (e.g. password
usage) and other security controls;
 Ability to install software;
 Ability to download files to devices;
 Device encryption;
 Taking devices to other countries;
 Proper usage of mobile devices as Wi-Fi
hotspots;
 Proper usage of location-based services;
 Reimbursement of fees paid for usage of
personal devices for business.
Using his background in computer engineering and influenced by his work with
technology clients, James Kosa wrote his
firm’s mobile device policy.
“A big part of my job is security, so I err on
the side of security,” says Kosa, who practises information technology and intellectual property law. Perfect security via policy
“might not be worthwhile,” says the Deeth
Williams Wall partner whose 25-lawyer
firm handles requests case by case.
“It isn’t yes or no, it’s a question of whether
we can secure the device,” he says, adding
that overly controlled devices might lead
to people “boycotting” them and using
other, unauthorized (and potentially
unsecure) devices to access the network.
(Everybody in his firm opts for a BlackBerry on the job, though many carry
other devices for personal use.)
Chuck Rothman has helped draft mobile
device policies for clients and for his own
company. To his eyes, the policies are mostly
similar. Differences occur in details like
what types of devices are authorized (e.g.
BlackBerry, iPhone, Android, Windows)
and whether staff can use the camera.
“A manufacturing company demanded
the camera be disabled on phones to prevent industrial espionage,” recalls Rothman, director of e-discovery services for
e-discovery and information governance
law firm Wortzmans.
Third-party applications could also pose
problems. Ensuring staff only obtain apps
from “authorized” app stores might mitigate
potential risks. “That’s the theory, anyway,”
Rothman quips.
Many policies are geared to phones, tablets, and sometimes notebooks. They rarely
account for newer technologies like “wearables” (e.g. Google Glass and various “smartwatches” à la Galaxy Gear, Pebble and Apple
Watch) that may contain data independently of other devices. And thanks to the
blistering pace of technology innovation, it’s
a safe bet devices few people know about
may soon burst into law offices.
For these and other reasons, Rothman
advises firms review their policies annually
to ensure they’re up to date.
Ready for more policy wrinkles? Consider
the bring-your-own-device (BYOD) trend
where companies allow staff to access their
networks and data using personal devices.
The benefits can outweigh the costs for
“non-risk” businesses, including cost savings to the company and allowing staff to
use their preferred tools for work.
Jaar believes that any organization in a
“risk” business should provide all work
devices. Unsurprisingly, he considers the
practice of law a “risk” business and advocates firms acquire full control over the
devices employees use on the job.
“Even pushing e-mail through a personal
device means you have a personal device that
contains confidential information,” he says.
Task: Challenge is to stay focused
Continued from page 20
ing to other human beings in other continents.
“It’s not just hippie stuff about, ‘Oh,
let’s all hold hands and have a global village,” said Griffin. “It’s just another way
of saying the world is one family.”
By embracing the spirit of Vasudhaiva
Kutumbakam, lawyers will be more compassionate and never lose sight of the
consequences of their actions.
Human rights lawyers, in particular,
might benefit from adopting the concept, she said, because they’re often
involved in strategic litigation and trying
to challenge or establish new laws.
Sometimes they get so wrapped up in
the litigation process that they lose sight
of who they’re representing, said Griffin.
“I’ve seen that so many times in my
work. Lawyers have to remember that
they should be serving human beings,
not setting legal precedents.”
While it’s not intentional, they focus
too much on righting a legal wrong and
lose track of the people who have been
harmed, said Griffin.
“What can happen is that we don’t act
in the best interests of those that we’re
trying to serve.”
Carefully chosen technologies can help
firms make compliance easier for lawyers.
For instance, the firm should be able to connect devices to a mobile device management (MDM) platform. From an MDM, IT
staff can do things like remotely track missing devices, wipe a device’s memory, push
operating system or application updates to
devices, and keep people from violating
mobile device policy.
“You need the same capabilities on mobile
devices that you have always had on PCs,”
Jaar says.
He also prefers devices that enable separate work and personal spaces. This entails
the separation of business from personal
e-mail, browsing, documents and other
data.
“If an employee leaves, you can wipe
corporate data from the employee’s personal device without touching personal
information,” Rothman adds. “BlackBerry has already implemented this in
the operating system and I think Apple
and Android will do the same thing.”
Should a device be lost, the employee can
ask IT to wipe the entire device.
All data traffic to and from a law firm’s
servers passes through the same gateway, so
security there can be strengthened.
“We monitor traffic through the firewall
and only allow authorized traffic in,” Kosa
says, noting that the firm has “whitelisted”
(i.e. authorized) applications like GoToMeeting and certain desktop sharing tools.
Tools like MDMs and firewalls don’t supplant the need for employee training. Staff
rarely understand mobile device policies
since they frequently aren’t taught why they
matter or how to follow them. “Even if you
have the perfect policy, if it only sits on the
Intranet, you may as well have no policy,”
Jaar says.
Since third-party apps are easy to install
and can cause issues, Jaar suggests teaching
staff how to search app terms and conditions for keywords like download, upload,
confidential, personal, privacy, private, mining, analytics, sell and transfer.
Reading text in areas where these keywords appear can help lawyers avoid giving
developers the right to do things like upload
all contacts on a phone to developer servers
or look at a device’s contents.
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22
• May 22 , 2015
THE LAWYERS WEEKLY
News
‘Significant prejudice’ results in stay at Appeal Court
Michael Benedict
The Alberta Court of Appeal has taken
the unusual step of upholding a stay for a
man charged with a serious offence, even
though the delay in bringing the matter
to trial fell within acceptable Supreme
Court guidelines.
In R. v. MacPherson [2015] A.J. No. 397,
the accused in two bank robberies had
been in custody for more than 20 months,
some 16 of which were the result of institutional delay, when the trial judge stayed
the charges.
“Sometimes, people fall into the trap of
thinking a breach occurs only when the
delay is outside the range established by
the Supreme Court,” said Toronto criminal
appeals lawyer Jonathan Dawe of Dawe
Dineen. “While the Supreme Court more
than two decades ago said the delay could
be less than its guidelines [14 months to 18
months], people tend to forget that.”
The Alberta high court’s decision is a
clear reminder that the timeline is only
one factor to be considered in a stay
application. The guidelines “were never
intended to function as a rigid mathematical or administrative formula,” the court
said in a decision from Justices Ronald
Berger, Barbara Lea Veldhuis and Russell
Brown. “Considerations of prejudice
influence the application of guidelines,
and the period of acceptable institutional
delay may be shorter if the accused is in
custody or otherwise experiencing substantial prejudice.”
In this case, the court agreed that MacPherson’s Charter 11(b) right to be tried
“within a reasonable time” was breached
because of the delay.
“The period of institutional delay was
unreasonable in these particular circumstances. Mr. MacPherson acted throughout in a manner consistent with a desire
for an early trial date,” the court ruled.
“As a presumptively innocent man
detained in pretrial custody throughout
16 months of institutional delay, he suffered significant prejudice.”
When MacPherson elected trial by judge
alone in November 2012, a preliminary
inquiry date was set for the following
October, 11 months away. Then, after being
denied bail in June 2013, he waived his
right to a preliminary and a trial date was
set for March 2014 when his stay application was granted.
Calgary criminal lawyer Lisa Silver says
the high court decision is also significant
This is an interesting
time for 11(b) because the
appellate courts are going in
different directions.
Jill Presser
Presser Barristers
because it shows that actual prejudice
exists when an accused is in custody for an
extended period.
“It requires no other evidence,” Silver
said.
Indeed, the court found MacPherson
“suffered significant prejudice due to the
severe restrictions on his liberty interests
while he was in pretrial custody…The fact
Mr. MacPherson spent a significant
amount of time in custody is enough to
support the trial judge’s finding of actual
prejudice.”
Silver, an adjunct professor of law at the
University of Calgary, added that the decision achieves an appropriate balance
between society’s right to bring an accused
to trial and the accused’s right to be treated
“fairly and humanely.
“While there is a strong societal interest
in having serious charges such as these
tried on their merits, there is also societal
interest in ensuring that accused persons
do not spend unreasonably lengthy periods
of time in pretrial custody,” the court ruled.
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The situation is getting worse
and worse. Any day of the
week, one can walk into an
Ontario court and see cases
stayed.
Jonathan Rosenthal
Criminal lawyer
Toronto criminal lawyer Jill Presser of
Presser Barristers said MacPherson is part
of the broader debate as to whether courts
should take an expansive or narrow view
of delays. Presser noted that the Supreme
Court this fall will tackle the issue when it
hears two appeals that take opposite
approaches to inferred prejudice.
“This is an interesting time for 11(b)
because the appellate courts are going in
different directions,” said Presser, an
adjunct professor at the University of
Toronto Faculty of Law.
MacPherson’s appeal lawyer, Dane
Bullerwell of Pringle Chivers Sparks Teskey in Edmonton, said his client’s case
highlights the lack of adequate resources
in Alberta’s judicial system.
“It did not take brilliant advocacy on
my part for this 11(b) argument,” Bullerwell said. “Neither the accused nor the
Crown caused the delay.”
He added: “Normally, in-custody cases
are made a priority. But every so often
there will be a case like this and, unfortunately, one has to resort to a blunt remedy.”
The Chief Justice of Alberta’s Court of
Queen Bench has spoken publicly about
the dramatic need for more judges in his
province. In speeches and newspaper
interviews, Justice Neil Wittmann has
made the point that the number of
Queen’s Bench justices has remained the
same since 1996 while Alberta’s population has grown by more than 25 per cent
and its criminal cases have increased by
35 per cent.
Ontario also suffers from a lack of resources, according to various authorities
including Toronto criminal lawyer Jonathan Rosenthal, who predicts there will be
more cases like MacPherson.
“The situation is getting worse and
worse,” he said. “Any day of the week, one
can walk into an Ontario court and see
cases stayed.”
For Rosenthal and others, the solution
is simple.
“The justice system is grossly underfunded,” he said. “It’s the easiest criminal
justice problem to fix — just write a
cheque.”
Rosenthal added that the federal government is exacerbating the problem
with its tough-on-crime mandatory
minimum sentences.
“If you take away plea bargaining,
accuseds are more willing to take their
chances in court,” he said. “More trials
mean more delays. You can’t be tough on
crime and then plead a lack of resources.”
Rosenthal invoked R. v. Morin [1992]
S.C.J. No. 25, the case that set the standard for analyzing the Charter’s right to
trial within a reasonable time. In that decision, Justice John Sopinka wrote: “While
account must be taken of the fact that the
state does not have unlimited funds and
other government programs compete for
the available resources, this consideration
cannot be used to render s. 11 (b) meaningless…The government has a constitutional
obligation to commit sufficient resources
to prevent unreasonable delay which distinguishes this obligation from many
others that compete for funds with the
administration of justice.”
Core issue: At crux are instructions
Continued from page 10
there is a risk that this kind of case will
take place again in the future.”
The appeal court ruling also raises further questions, pointed out Stéphane
Beaudoin, a Quebec City criminal lawyer
who is representing Perreault. Now that
a new trial was ordered, how much
weight will be given to Perreault’s confession given that the appellate court
held that “many elements of the circumstantial evidence established the reliability of the confession?” wondered Beaudoin. Beaudoin argues that since there
will be a new trial before another judge
and a new jury, the issue of whether Per-
reault’s confession should be admissible
should again be re-examined.
“I believe there will be another debate
over that question,” said Beaudoin. “The
Crown will certainly state that the appeal
court pronounced itself very clearly on the
issue. But I believe the trial judge will not
be beholden to the appeal court’s interpretation of the facts. I believe that a judge
who is presiding over a new trial will have
the same powers as any other judge who
hears a case for the first time. I think that
the trial judge will have to re-examine the
question of the admissibility of the confession that was given in the context of a Mr.
Big operation.”
May 22 , 2015 •
THE LAWYERS WEEKLY
23
News
Quebec ‘religious institution’ wins exemption
Luis Millan
A Muslim non-profit organization that sought religious institution status in order to obtain
an exemption from paying
municipal and school property
taxes has won its case, after the
Quebec Superior Court overturned a ruling by Quebec’s
administrative tribunal.
In a ruling that reversed a
recent trend by Quebec adjudicators who interpreted the
notion of religious institutions
narrowly and restrictively, Quebec Superior Court Justice
Carol Cohen held that it should
instead benefit from a broad
and liberal interpretation.
While the expression religious
institution is not defined by
Quebec law, Justice Cohen
heeded guidance from Quebec
jurisprudence as well as the
recent Supreme Court of Canada’s ruling in Loyola High
School v. Quebec (Attorney General) [2015] S.C.J. No. 12, and
held that that a religious institution exists when an organized
group of persons establish or
create an organization to facilitate the pursuit and realization
of its goals and objectives for
religious purposes.
“The Fondation resembles
very much Loyola High School,
a non-profit corporation that is
involved in private education,
the only difference being the
Muslim faith of its founders,”
said Justice Cohen in Fondation Internationale Azzahra
inc. c. Cour du Québec [2015]
J.Q. no 2744.
Much is at stake. Under Quebec’s Act respecting municipal
taxation, religious institutions
are exempt from paying municipal or school property taxes.
About 3,800 religious institutions in Quebec, including 1,132
in Montreal, were exempted
from paying $92 million in
municipal and school property
taxes in 2014. But the Quebec
government has been clamping
down in recent years on organizations that allegedly abuse
their status as religious institutions to avoid paying municipal
and school property taxes, and
has launched legal proceedings
against them before the Quebec
Administrative Tribunal.
“This is an important ruling
because the appreciation of
what constitutes a religious
institution and religious activities was increasingly being
interpreted in a more limited
and restrictive fashion by
adjudicators and the courts,”
said Sébastien Dorion, a Montreal lawyer with Dunton Rainville who successfully pleaded
the case. “This ruling sets the
record straight and restores the
Juanmonino / iStockphoto.com
broad and liberal interpretation that existed before the new
restrictive interpretation began
to take hold.”
The case deals with Fondation
Internationale Azzahra, a
Montreal charitable and Islamic
religious foundation established in 1989. It owns and
operates a mosque, a Muslim
cemetery and Islamic schools,
and conducts charitable, philanthropic, community and cultural activities. The property
paying municipal and school
property taxes on the school
because it deemed it to be part
of a religious institution.
But the Quebec Ministry of
Municipal Affairs, Regions and
the Occupation of Territory
(MAMROT) contested the two
exemptions and brought the
matter before the Tribunal
administratif du Québec (TAQ).
In November 2011 the adjudicators ruled in favour of MAMROT and held the Fondation
fact that the Fondation was
already granted the status of a
religious institution for its
other properties that housed
the mosque and the cemetery.
The financial consequences of
the TAQ ruling were enormous.
If the ruling was upheld, the
Fondation faced a tax bill running into the hundreds of thousands of dollars in back taxes,
said Dorion. An exemption
would spare it from paying
municipal and school taxes that
This ruling sets the record straight and restores
the broad and liberal interpretation that existed
before the new restrictive interpretation began to
take hold.
Sébastien Dorion
Dunton Rainville
that houses its mosque and
cemetery were exempted from
paying municipal and school
property taxes because it was
granted the status of a religious
institution. In 2008, the Fondation acquired another property in Montreal that housed a
high school, and it was granted
a licence to teach by the Quebec
Ministry of Education. In 2009,
Montreal issued two certificates
exempting the Fondation from
should not qualify as a religious
institution under the act.
Rather, the TAQ held the Fondation should be classified as a
cultural and community organization because its letters patent and promotional materials
do not describe it as a religious
institution and because its
stated aim was above all charitable, philanthropic, and community-based. Oddly, the TAQ
ruling made no reference to the
range between $75,000 and
$100,000 annually.
Justice Cohen overturned the
TAQ decision, and held that the
adjudicator’s decision was
“incomprehensible
and
unreasonable,” particularly since
the Fondation was already certified as being a religious institution for its other properties.
“If the interpretation of the
TAQ and MAMROT is correct,
then all religious institutions
will have to abstain from doing
too much charitable, philanthropic or educational activities, in order not to lose its
qualification as a religious
institution” under the act, noted
Justice Cohen. “Such a conclusion would be the equivalent of
an amendment to the Act and
would require a definition of
what is too much of these activities, a definition and limitation
that is nowhere to be found in
the Act.”
Justice Cohen also pointed
out that under article 2 of the
Quebec Religious Corporations
Act, religious activities and
charity, teaching, and education are not mutually exclusive.
On the contrary, the Religious
Corporations Act “suggests”
that charity, teaching and education are part of the objectives
of religious corporations, added
Justice Cohen.
“The ruling is lucid,” said
Daniel Bouchard, managing
partner of Lavery, de Billy’s
Quebec City office and an
expert in municipal law. “If one
thinks about it, it would be
counterproductive for a society
at large (if the TAQ decision
was upheld). We’d be asking
religious institutions who want
to continue to benefit from the
exemption to conduct the least
charitable work possible. That
would be a misinterpretation of
the act.”
The ruling does not create
new law, pointed out Guillaume
Rousseau, a law professor at the
Université de Sherbrooke.
Instead, it reverts back to jurisprudence that existed before
the TAQ began issuing a strict
interpretation of what constitutes a religious institution.
“Justice Cohen is ensuring
that the TAQ decision does not
evolve into jurisprudence that
favours a strict and restrictive
interpretation of religious institutions,” said Rousseau, a municipal law expert. “She clarified
the notion of religious institution and goes back to the jurisprudence that existed before
rather than making it evolve in
the way the TAQ decision would
have.”
Dorion has another client
facing a similar plight as the
Fondation. In Academie Beth
Esther inc. c. Montreal (Ville),
the TAQ in March turned down
the organization’s application
to be certified as a religious
institution because it was “too
involved in education,” said
Dorion. He said he intends to
use Justice Cohen’s decision to
appeal the TAQ decision.
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