The Lawyers Weekly - May 22, 2015 - University of Calgary Faculty
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Modules now available: • Business Law • Commercial Law • Corporate Law • In-House Counsel • Insolvency and Restructuring • Intellectual Property and Technology • Wills, Trusts and Estates Call 1-800-416-5354 to get a free trial or visit www.lexisnexis.ca/practice-advisor Totallegaljobs.ca Your one-stop destination to advance your legal career in Canada. www.totallegaljobs.ca Vol. 35, No. 3 @TotalLegalJobs 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.” 3/15/12 4:24 PM Page 1 The title insurer that puts you front row, centre Putting the legal community front and centre has made us the #1 choice with Canadian lawyers/notaries for over a decade. Stewart Title does not support programs that reduce or eliminate the lawyer’s/notary’s role in real estate transactions. We keep real estate transactions where they belong – in your office! 1-888-667-5151 or www.stewart.ca PUBLICATIONS MAIL AGREEMENT NO. 40065517 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 Riches, McKenzie & heRbeRt llp PATENTS, TRADE MARKS, COPYRIGHT, LITIGATION BARRISTERS & SOLICITORS - PATENT & TRADE MARK AGENTS Paul Herbert, b.Sc., PHm., r.PH, ll.b., J.D., PH.D. Dan HitcHcock, b.eng. (elec. eng.), ll.b. Jeff PervanaS, b.a.Sc. (eng. Sci.), ll.b. micHael Yun, b.Sc. (biocHem), J.D. Steven cHeng, b.a.Sc. (elec. eng.), J.D. brant latHam, b.a.Sc. b.Sc. (cHem. eng.), ll.b. garY m. traviS, b.Sc. (geol.), ll.b. micHael aDamS, b.eng. (mecH. eng.), b.Sc., ll.b. tHomaS mcconnell, b.Sc. (biol.), J.D. TRADE MARK AGENT marta tanDori cHeng 2 BLOOR ST. EAST, SuITE 1800 TORONTO, ONTARIO M4W 3J5 ESTABLISHED 1887 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 TELEPHONE: (416) 961-5000 FAx: (416) 961-5081 E-MAIL: [email protected] 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 We see the lives behind our laws. With over 40 years of litigation experience, Oatley Vigmond knows personal injury law. We’ve argued hundreds of cases, secured record settlements and have helped shape Canadian law. Yet for all our success in the courtroom, we have never lost sight of the fact that people come first. We are dedicated to serving clients across Ontario. Contact us at 1.888.662.2481 or oatleyvigmond.com. 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.” HOW TO REACH US ADVERTISING Tel: (905) 479—2665 Fax: (905) 479— 3758 Toll-free: 1—800—668—6481 Email: [email protected] Advertising Sales Jim Grice (905) 415—5807 Ritu Harjai (905) 415—5804 Valery Salo (905) 415—5881 Main Office Advertising Traffic Co-ordinator Jackie D’Souza (905) 415—5801 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 123 Commerce Valley Drive East Suite 700, Markham, ON L3T 7W8 Ottawa Bureau c/o Parliamentary Press Gallery Rm 350—N, Centre Block Parliament Hill, Ottawa, ON K1A 0A6 Tel: (613) 820—2794 Fax: (613) 995—5795 Circulation Controller Scott Welsh (905) 479—2665, ext. 324 Print Subscription Rates Website 1 year (48 issues): $305, plus tax 2 years (96 issues): $520, plus tax 1 year U.S./international: $420 1 year student: $70, plus tax Individual copies: $12, plus tax Production Co-ordinator Pauline Poulin www.lawyersweekly.ca Digital Subscription rates Member, Ontario Press Council Art / Production Designer Sara Hollander 2 Carlton Street, Suite 1706, Toronto, ON (416) 340—1981; Fax: (416) 340—8724 1 year (48 issues): $275, plus tax 2 years (96 issues): $470, plus tax 1 year U.S./international: $375 1 year student: $60, plus tax 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.” Postal Information: Please forward all postal returns to: Circulation Controller, The Lawyers Weekly, 123 Commerce Valley Drive East, Suite 700, Markham, ON L3T 7W8. Return postage guaranteed. ISSN 0830-0151. Publications Mail Sales Agreement Number: 40065517. COPYRIGHT/TRADEMARK The Lawyers Weekly is published on Fridays, 48 times a year, by LexisNexis Canada Inc., 123 Commerce Valley Drive East, Suite 700, Markham, ON L3T 7W8. All rights reserved. No part of this publication may be reproduced in any material form (including photocopying or storing it in any medium by electronic means and whether or not transiently or incidentally to some other use of this publication) without the written permission of the copyright owner, except in accordance with the provisions of the Copyright Act. The Lawyers Weekly is a registered trademark of LexisNexis Canada Inc. 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 Expert Witness Directory FORENSIC INVESTIGATORS LIFE & HEALTH INSURANCE LITIGATION Need professionals who can see the forest for the trees? 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SMith the hon. DonalD j. taliano brian h. Wheatley, Q.C. IGO OR ELL LYN QC, CS, FCIArb. Steering you to cAlMer wAterS Me ember, ICC Can nada Arb bitration Comm mittee Dire ector, CIArb. To oronto Pa ast President, OBA O 40 0 years’ experie ence Robby Bernstein BCom LLB BCL (Oxon) FCIArb Barrister and Solicitor Mediator and Arbitrator 416.595.2491 ielly yn@ellynlaw w.com T. 416.365.37 700 ww ww.ellynlaw.com www.bernsteinlaw.ca Les services s d’arbittrage et méd diation sont égallement disp ponibles en fran nçais. [email protected] CHOOSE FROM CANADA’S TOP MEDIATORS AND ARBITRATORS COE ADR MANAGEMENT Appointments Marjorie Coe Tel: 416 363 2977 [email protected] Cell: 416 805 8555 CHOOSE FROM CANADA’S TOP MEDIATORS AND ARBITRATORS RU DOL PH Mediation & Arbitration Services Inc. Fellow of The International Academy of Mediators Sheppard Ave. West, Suite | Toronto, Ontario, | T . . | F . . | E [email protected] From conflict to closure. 617-7 King Street East Toronto, Ontario M3C 3C5 Toll Free: 1 844 547 2977 Fax: 416 703 4597 www.coeadrmanagement.com Are you a mediator, arbitrator or ADR expert? With a 15-year background in civil litigation, employment law, and human rights law, I come to every client’s table with flexibility, respect, and the resolve to close cases — quickly and effectively. Edward T. McDermott Norman May, Q.C Ted has over 35 years mediation and arbitration experience, with particular expertise in labour and employment law. As a mediator Ted has achieved very effective results and has a high settlement rate. is a mediator and arbitrator specializing in corporate, commercial, real estate, employment and landlord/tenant matters. He has taught at Osgoode Hall, University of Toronto and McGill law schools and is currently a senior partner at Fogler, Rubinoff LLP. adrchambers.com 416.362.8555 adrchambers.com 416.362.8555 Appearing weekly in J. Jay Rudolph Ontario Reports and The Lawyers Weekly Wishes to thank you as he celebrates 20 years Over 240,000 issues distributed each month as a Mediator 40 Sheppard Ave. W, Suite 700 Toronto, ON M2N 6K9 (t) 416-222-8787 (f) 416-222-5532 [email protected] CIVIL LITIGATION, EMPLOYMENT & HUMAN RIGHTS DISPUTES Kumail Karimjee 416.238.1267 KarimjeeResolutions.com Jim Grice [email protected] 905-415-5807 1-800-668-6481, Ext. 807 Ritu Harjai [email protected] 905-415-5804 1-800-668-6481, Ext. 804 To Toadvertise, advertise,please pleasecontact: contact: Jim Jim Grice Grice •• Tel: Tel: (905) (905) 415-5807 415-5807 •• [email protected] [email protected] or or Ritu Ritu Harjai Harjai •• Tel: Tel: (905) (905) 415-5804 415-5804 ••[email protected] [email protected] ____ Spe Paul M. Iacono, Q.C. Peter R. Braund Hon. Harvey Spiegel, Q.C. Helen L. Walt Alternative Dispute Resolution Directory Charles A. Harnick, Q.C May 22 , 2015 • 9 We can help You find the Douglas F. Cutbush Margaret K. Rees Tony Baker Fred Sampliner Richard D. McLean, Q.C PHILIP ANISMAN B.A., LL.B., LL.M., J.S.D. MEDIATION AND ARBITRATION • • • • • • David L. Smith, C.A. Mediator & Arbitrator David L. Smith, C.A. Direct Damage and Shareholder and Partnership Disputes Dealer and Adviser/Client Disputes Shareholder Oppression Corporate Governance Investment and Securities law Securities Regulatory Matters Philip Anisman Barrister & Solicitor 1704-80 Richmond Street West Toronto, Ontario M5H 2A4 Telephone: 416-363-4200 Facsimile: 416-363-6200 Email: [email protected] Please call our ADR Coordinator or book online. (416) 866-2400 130 Adelaide Street West, Suite 701 Toronto, Ontario, M5H 2K4 Fax: (416) 866-2403 Email: [email protected] Web: www.yorkstreet.ca JULIA AN POLIIKA Real Estate Franchising Q.C., J.D., F.C.I.Arrb. Mediaator, Arbitrattor, Refferee, Neutraal Condominium Construction Over 35 years litigation experience involving a broad spectrum of civil disputes Personal Injury, Insurance, Commercial, Employment, Estates, Sports, Sexual Abuse Walsh McLuskie Doyle Suite 2200, 181 University Ave., Toronto, ON M5H 3M7 A true resolutionary With over 40 years of experience in complex commercial disputes across Canada, Tom Heintzman gets to the heart of the arbitration and mediation: quickly, clearly and fairly. Thomas G. Heintzman O.C., Q.C., FCIArb T: 416-598-2140 F: 416-598-5466 [email protected] Providing mediation and other dispute resolution services for over 10 years Jeffrey Musson Commercial Leasing JAMES E. DOYLE Mediator Cindy Winer Business Interruption Insurance Claim Disputes, Accounting Practice Disputes EXPERIENCE: ent ● 16 years ass a case manageme master with 8 years specializingg in construction lien references ● 30 years ass a litigator at all le evels of court usands of motions in civil & ● Heard thou construction lien actions d over 400 construcction lien ● Conducted references, in nvolving over 2,000 0 claims for lien, through to settlement or trial Wolfgang Kaufmann [email protected] 416-597-3952 Mediation & Arbitration FEES BASED D UPON THE PR RINCIPLE OF PR ROPORTIONALITTY Contact: (4116) 617‐4802 jpolika@p polikamedarb..com www.po olikamedarb.com Resolving Corporate Commercial, Financial, Investment, Insurance and Construction Disputes H E I N T Z M A N A D R Click here for Wolfgang’s biography or Visit our website www.dv-law.com A R B I T R AT I O N P L A C E | B AY A D E L A I D E C E N T R E 416.848.0203 | HEINTZMANADR.COM To advertise, please contact: Jim Grice • Tel: (905) 415-5807 • [email protected] or Ritu Harjai • Tel: (905) 415-5804 • [email protected] John Beaucage 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 S k om o.c ot h p uu ko ko / oc iSt 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 CUTTING EDGE You are a corporate counsel, a lawyer who does not practice employment and labour law, or a member of a firm which has been conflicted out or does not have an office in Ontario. You have an important matter which requires representation you will be confident with. Kuretzky Vassos Henderson LLP is widely recognized as one of Canada’s leading employment and labour law boutiques. We practise at the cutting edge assisting a wide spectrum of clients ranging from major corporate employers through to individual plaintiffs. Our practice includes employment contracts, wrongful dismissal, collective bargaining, labour board applications, arbitrations, adjudications, employment standards, health & safety, human rights and ADR. To discuss what we can do for you or your client, call Kuretzky Vassos Henderson LLP at (416) 865-0504. KURETZKY VASSOS HENDERSON LLP NEXT WEEK IN FOCUS: Family Law Civil Litigation Suite 1404, Yonge Richmond Centre, 151 Yonge Street, Toronto, Ontario, M5C 2W7 Telephone (416) 865-0504 Facsimile (416) 865-9567 www.kuretzkyvassos.com 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: [email protected] 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 Classifieds INVESTIGATIONS OFFICE SPACE AVAIABLE POSITIONS AVAILABLE MISSING HEIRS Cogan & Associates Inc. International probate research, locators of missing heirs. 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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. As an independent Of¿cer of the Legislature, the Ontario Ombudsman sees his role as “humanizing government”. In 2013-2014, his of¿ce handled some 27,000 complaints from the public about provincial government problems, through early resolution and investigation. From increased newborn screening to enhanced security of Ontario’s lotteries to access to cancer drugs, the Ombudsman’s work has resulted in positive systemic change bene¿tting millions of Ontarians. INVESTIGATOR (1 Year Contract Position) The investigation team investigates complex issues across a broad range of areas. As part of this team, you will lead some investigative ¿les and work as a team member on others. You will be accountable for investigations from inception to completion. That includes identifying issues, interviewing witnesses and gathering and analyzing information, as well as writing clear and comprehensive reports. Your work will lead directly to the development of the Ombudsman’s recommendations. This opportunity will appeal to investigators who have experience dealing with multi-faceted issues in an administrative /oversight investigation context and are keen to belong to a world-class investigation team. Successful candidates will have the following: • University degree (such as law, psychology, political science, public administration) with a minimum of 2 years experience in investigations and/ or administrative oversight • Recent experience (within last 3 years) working in an oversight function • Demonstrated experience in developing and executing investigation plans • Well-developed research and analytical skills • Experience preparing well-written, detailed reports • Working knowledge of provincial government organizations, boards and agencies, as well as knowledge of the Ombudsman Act • Proven ability to interview individuals at all organizational levels, as well as strong interpersonal skills, including the ability to manage and defuse emotionally-charged situations • Committed to the application of administrative fairness and takes pride in the quality of work produced This is a unique opportunity to join a dynamic, exciting work environment and be part of a world-renowned of¿ce with a team of top public sector professionals. Note: This is a unionized position Forward your application through our webportal at https://ombudsman.on.ca/About-Us/Careers/Current-Opportunities.aspx. Accommodation will be provided in accordance with the Ontario Human Rights Code. All applications must be received by 5:00 pm on June 5, 2015. Please Note: We thank all applicants for their interest. Only applicants selected for an interview will be contacted. Moving expenses will not be paid. 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. CAREERS Toronto Community Housing Corporation (“TCHC”) Junior Legal Counsel – Litigation – Permanent Position TCHC is the largest social housing provider in Canada. We are seeking Junior Legal Counsel – Litigation to join our Legal Services Division. Requirements: 0-4 year call, L1 license, Membership in good standing with the Law Society of Upper Canada, relevant legal experience at a reputable law firm or in-house legal department. Assets: legal experience in residential landlord and tenant matters, appellate litigation, insurance defence. See TCHC’s website at http://www.torontohousing.ca/careers for the complete posting. Please apply directly to [email protected] by June 5, 2015. 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. We want to hear from you! 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