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Judicial Supervision of the National Energy Board (NEB): The Federal Court of Appeal Defers to the NEB on Key Decisions

Tue, 11/11/2014 - 9:00am

By: Nigel Bankes

PDF Version:

Case Commented On: Forest Ethics Advocacy Association and Donna Sinclair v National Energy Board, 2014 FCA 245; City of Vancouver v National Energy Board, and TransMountain Pipeline ULC, Order of the Federal Court of Appeal, Docket 14-A-55 (note: link 1 page PDF here), per Justice Marc Nadon, October 16, 2014, denying leave to appeal the NEB’s scoping decision, Hearing Order OH-001-2014 (note: link 6 page PDF here), 23 July 2014.

The National Energy Board (NEB) has its plate full; so too does the Federal Court of Appeal which has been hearing both judicial review applications and leave to appeal applications in relation to a number of projects including the Northern Gateway Project (Enbridge), the Line B Reversal and Line 9 Capacity Expansion Project (Enbridge), and the TransMountain expansion Project (Kinder Morgan). Interested readers can obtain details of these projects as well as Board decisions on the NEB’s website. I provided an assessment of the state of play in the Northern Gateway applications in a comment published in the Energy Regulation Quarterly.

The term “judicial supervision” in this post is designed to encompass both the idea of judicial review and appellate review of NEB decisions by way of appeal to the Federal Court of Appeal (FCA) (with leave). The normal route for obtaining judicial supervision of the NEB is by way of appeal (with leave) but one of the most significant recent decisions we have seen in this area, the Forest Ethics and Sinclair case, came before the Court on an application for judicial review. The case is important because it establishes, at least in the circumstances of that case, that the Board did not err in ruling that it did not have to consider the larger environmental effects of a pipeline project including the contribution to climate change made by the Alberta oil sands and facilities and activities upstream and downstream from the pipeline project.

This post aims to do three things. First it explains the different ways in which a party may seek judicial supervision of an NEB decision. Second, it examines the Forest Ethics and Sinclair decision and finally it offers some brief commentary on one important practical and philosophical difference between the way in which the Federal Court of Appeal treats leave applications and the way in which it treats judicial review applications – reasons.

The Different Routes to Judicial Supervision of Board Decisions

The judicial supervision of Board decisions is governed by the terms of the National Energy Board Act, RSC 1985, c N- 7 (NEBA) and the Federal Courts Act, RSC 1985, c F-7. We can summarize the position as follows:

  1. To begin with the basics, the NEB is a “federal board, commission or other tribunal” within the meaning of the Federal Courts Act.
  1. While judicial supervision of a “federal board, commission or other tribunal” ordinarily falls to the trial division of the Federal Court, in some cases Parliament has chosen to channel judicial supervision to the Court of Appeal rather than the trial division. This is the case for the NEB. Sections 18.5 and 28 of the Federal Courts Act provide as followers:

8.5 Despite sections 18 and 18.1, if an Act of Parliament expressly provides for an appeal to the Federal Court, the Federal Court of Appeal … from a decision or an order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act. (emphasis added)

28(1) The Federal Court of Appeal has jurisdiction to hear and determine applications for judicial review made in respect of any of the following federal boards, commissions or other tribunals: …

(f) the National Energy Board established by the National Energy Board Act;

(g) the Governor in Council, when the Governor in Council makes an order under subsection 54(1) of the National Energy Board Act…

(3) If the Federal Court of Appeal has jurisdiction to hear and determine a matter, the Federal Court has no jurisdiction to entertain any proceeding in respect of that matter.

3.    Section 22 of NEBA read together with s.18.5 of the Federal Courts Act establishes that most decisions of the NEB can only be reviewed by way of appeal to the FCA on a point of law or jurisdiction with leave. Section 22 provides as follows:

22(1) An appeal lies from a decision or order of the Board to the Federal Court of Appeal on a question of law or of jurisdiction, after leave to appeal is obtained from that Court.

(1.1) An application for leave to appeal must be made within thirty days after the release of the decision or order sought to be appealed from or within such further time as a judge of that Court under special circumstances allows.

(2) No appeal lies after leave has been obtained under subsection (1) unless it is entered in the Federal Court of Appeal within sixty days from the making of the order granting leave to appeal.

(3) The Board is entitled to be heard by counsel or otherwise on the argument of an appeal.

(4) For greater certainty, for the purpose of this section, no report submitted by the Board under section 52 or 53 — or under section 29 or 30 of the Canadian Environmental Assessment Act, 2012 — and no part of any such report, is a decision or order of the Board.

4.    The Federal Court of Appeal typically does not provide reasons when it denies leave; although see Friends of Rockwood Park Inc v Emera Inc, 2007 FCA 300 offering cursory reasons: “we have not been persuaded that their proposed appeal raises an arguable question of law or jurisdiction.”

5.    Judicial review (but only direct to the FCA and not the Federal Court Trial Division: Sweetgrass First Nation v AG Canada, National Energy Board and TransCanada Keystone Pipeline GP Ltd, 2010 FC 535) may be available in a limited category of circumstances, principally because of the italicized language above in s.18.5 of the Federal Courts Act which suggests that an ordinary judicial review application may be available where an appeal is not. Such circumstances might include interlocutory applications and applications brought by persons who were not party to the decision before the Board. See for example Federation of Saskatchewan Indian Nations v Alliance Pipelines Ltd., 2003 FCA 238 and Union of Nova Scotia Indians v Maritimes and Northeast Pipelines Management Ltd, 1999 CanLII 7556. But beyond these exceptions there is no opportunity for judicial review: Standing Buffalo Dakota First Nation v AG Canada, 2008 FCA 222.

6.    Parties sometimes commence both applications for judicial review and applications for leave to appeal in respect of the same matter: Geophysical Service Incorporated v National Energy Board, 2011 FCA 360.

7.    Under the new procedure (post Jobs, Growth and Long-term Prosperity Act, SC 2012, c. 19, hereafter Jobs, Growth) for issuing a certificate of public convenience and necessity for a new pipeline, the Board issues the certificate on the direction of the federal cabinet. Section 54 of NEBA provides that the cabinet decision is amenable to judicial review (not the appeal with leave mechanism):

55(1) Judicial review by the Federal Court of Appeal with respect to any order made under subsection 54(1) is commenced by making an application for leave to the Court.

(2) The following rules govern an application under subsection (1):

(a) the application must be filed in the Registry of the Federal Court of Appeal (“the Court”) within 15 days after the day on which the order is published in the Canada Gazette;

(b) a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice; and

(c) a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance.

It is worth emphasizing that the NEB also has an internal remedy which is an application to the Board to have it review its own decision under s.21 of NEBA, which provides that:

21.(1) Subject to subsection (2), the Board may review, vary or rescind any decision or order made by it or rehear any application before deciding it.

In some cases a Court may take the view that a party should exhaust this local or domestic remedy before applying to the Court. Failure to do say may result in the Court exercising its discretion to refuse to grant the relief sought. The grounds on which a party may seek a review or rehearing are further developed in the Board’s Rules of Practice and Procedure:

44.(1) Any application for review or rehearing pursuant to subsection 21(1) of the Act shall be in writing, signed by the applicant or the applicant’s authorized representative, filed with the Board and served on all parties to the original proceeding.

(2) An application for review or rehearing shall contain

(a) a concise statement of the facts;

(b) the grounds that the applicant considers sufficient, in the case of an application for review, to raise a doubt as to the correctness of the decision or order or, in the case of an application for rehearing, to establish the requirement for a rehearing, including

(i) any error of law or of jurisdiction,

(ii) changed circumstances or new facts that have arisen since the close of the original proceeding, or

(iii) facts that were not placed in evidence in the original proceeding and that were then not discoverable by reasonable diligence;

(c) the nature of the prejudice or damage that has resulted or will result from the decision or order; and

(d) the nature of the relief sought.

The Forest Ethics and Sinclair Decision

This is a decision on a judicial review application rather than an appeal under s.22 of NEBA. The application was in respect of three interlocutory decisions. First, the Board had ruled that it would not consider the environmental and socio-economic effects associated with upstream activities, the development of the Alberta oil sands, and the downstream use of oil transported by the pipeline. The applicants contended that this decision was unreasonable. Second, the Board assessed (and rejected) the standing of the applicants to participate in the proceeding on the basis of an Application to Participate Form. Third, the applicants, and specifically Ms. Sinclair, argued that the Board had denied Sinclair her freedom of expression under the Charter by denying her standing. The Court also considered whether the applicants were in a position to raise Charter questions before the Court if such questions had not been raised before the Board; it also considered whether Forest Ethics had standing before the Court on the judicial review application.

The Standing Questions

The procedure followed by the NEB in assessing standing

The Jobs, Growth version of NEBA (s.55.2) establishes two forms of participation rights in relation to an application for a certificate of public convenience and necessity: (1) participation as of right for any person whom the Board considers to be adversely affected, and (2) participation at the discretion of the Board if, in the Board’s opinion, the proposed intervener has “relevant information or expertise”. The Board’s decisions on such matters are “conclusive”. In order to assess applications to intervene the Board required potential interveners to complete an Application to Participate Form. The Board granted some parties full intervention rights, granted some the opportunity to submit a letter of concern and denied others, including Ms. Sinclair, any opportunity to participate further.

The choice of instrument that the Board uses to assess standing is a question of procedure. The standard of review for questions of procedure is (at para 70) “correctness with some deference to the Board’s choice of procedure”. The Court gave several reasons (at para 72) for emphasizing the deference owed to the Board in relation to its choices:

… in it its process decision, the Board is entitled to a significant margin of appreciation in the circumstances of this case. Several factors support this:

•    The Board is master of its own procedure …
•    The Board has considerable experience and expertise in conducting its own hearings and determining who should not participate, who should participate, and how and to what extent. It also has considerable experience and expertise in ensuring that its hearings deal with the issues mandated by the Act in a timely and efficient way.
•    The Board’s procedural choices – in particular, the choice here to design a form and require that it be completed – are entitled to deference …
•    The Board must follow the criteria set out in section 55.2 of the Act – whether “in [its] opinion” a person is “directly affected” by the granting or refusing of the application and whether the person has “relevant information or expertise.” But these are broad terms that afford the Board a measure of latitude, and so in obtaining information from interested parties concerning these criteria, it should be also given a measure of latitude.
•    Finally…the Board’s decisions are protected by a privative clause. (Authorities omitted)

The Court went on to say (at para 76) that “Board hearings are not an open-line radio show where anyone can dial in and participate. Nor are they a drop-in center for anyone to raise anything, no matter how remote it may be to the Board’s task of regulating the construction and operation of oil and gas pipelines.” Furthermore, by amending the Act in 2012 to create two categories of participation, Parliament was signaling that procedures need to be more focused and efficient and that, as such, the Board was justified in creating procedure that requires “rigorous demonstration” (at para 77) of the capacity to make a contribution to the Board’s consideration of the matter at hand.

The decision to deny Ms. Sinclair standing

The Board’s decision to deny Ms. Sinclair standing is (at para 79) “a mix of substance and procedure”. While admitting a party to participate is ordinarily one of procedure (with a standard of review of correctness with deference to the Board’s choices) it is evident that in making its decision the Board is also considering questions of materiality and relevance i.e. issues of substance (with a standard of review of reasonableness). However (at para 82): “Regardless of how we characterize the Board’s decision, the Board deserves to be allowed a significant margin of appreciation … The Board engaged in a factual assessment, drawing upon its experience in conducting hearings of this sort and its appreciation of the type of parties that do and do not make useful contributions to its decisions. Matters such as these are within the ken of the Board, not this Court.” The Court then offered detailed reasons for finding that the Board’s decision to deny Ms. Sinclair standing was reasonable (see para 83).

The decision to deny Forest Ethics standing on the judicial review application

It appears from the Court of Appeal’s judgement that although Forest Ethics was a co-applicant in attacking the Board’s three interlocutory decisions it had had no prior involvement in the matters before the Board. It was indeed (at para 33) a classic “busybody”:

Forest Ethics asks this Court to review an administrative decision it had nothing to do with. It did not ask for any relief from the Board. It did not seek any status from the Board. It did not make any representations on any issue before the Board. In particular, it did not make any representations to the Board concerning the three interlocutory decisions.

As such, Forest Ethics was entitled neither to standing as of right nor as a public interest litigant in bringing this judicial review application.

The Charter Questions

While it followed from this last point that Forest Ethics could not raise a Charter challenge what about Ms. Sinclair? The Court held that while there would be some cases in which an applicant for judicial review would be able to raise a Charter challenge when the applicant had failed to do so before the administrative tribunal that was not this case. Instead this case was governed by the usual rule and good practice that requires that the tribunal in question be able to express its own expert and contextualized opinion as to the constitutional or Charter question that the applicant seeks to put at issue (at paras 37 – 59).

Upstream and downstream effects

The Court’s reasons for supporting the conclusion of the Board and finding its decision on (ir)relevance of upstream and downstream effects to be reasonable are long (at para 69) but worth quoting given the importance of this issue in a number of different proceedings:

•    The Board’s main responsibilities under the National Energy Board Act, supra include regulating the construction and operation of inter-provincial oil and gas pipelines (see Part III of the Act).
•    Nothing in the Act expressly requires the Board to consider larger, general issues such as climate change.
•    The Board submitted, and I accept, that in a section 58 application such as this, the Board must consider issues similar to those required by subsection 52(2) of the Act.
•    Subsection 52(2) of the Act empowers the Board to have regard to considerations that “to it” appear to be “directly related” to the pipeline and “relevant.” The words “to it,” the imprecise meaning of the words “directly,” “related” and “relevant,” the privative clause in section 23 of the Act, and the highly factual and policy nature of relevancy determinations, taken together, widen the margin of appreciation that this Court should afford the Board in its relevancy determination …
•    Further, in applying subsection 52(2) of the Act, the Board could reasonably take the view that larger, more general issues such as climate change are more likely “directly related” to the environmental effects of facilities and activities upstream and downstream from the pipeline, not the pipeline itself.
•    The Board does not regulate upstream and downstream facilities and activities. These facilities and activities require approvals from other regulators. If those facilities and activities are affecting climate change and in a manner that requires action, it is for those regulators to act or, more broadly, for Parliament to act.
•    Subsection 52(2) of the Act contains a list of matters that Parliament considered to be relevant: see paragraphs 52(2)(a) through 52(2)(d). Each of these is relatively narrow in that it focuses on the pipeline, not upstream or downstream facilities and activities. Paragraph 52(2)(e) refers to “any public interest.” It was for the Board to interpret that broad phrase. It was open to the Board to consider that the “public interest” somewhat takes its meaning from the preceding paragraphs in subsection 52(2) and the Board’s overall mandate in Part III of the Act. Thus, it was open to the Board to consider that the “public interest” mainly relates to the pipeline project itself, not to upstream or downstream facilities and activities. (In this regard, pre-Dunsmuir authorities that engaged in correctness review of the meaning of “public interest” or quashed Board decisions for failing to take into account a factor the Court considered relevant are to be regarded with caution …)

•    Parliament recently added subsection 52(2) and section 55.2 to the Act in order to empower the Board to regulate the scope of proceedings and parties before it more strictly and rigorously: Jobs, Growth and Long-term Prosperity Act, S.C. 2012, c. 19, s. 83. The Board’s decision is consistent with this objective. Consistency of a decision with statutory objectives is a badge or indicator of reasonableness ….
•    The Board’s task was a factually suffused one based on its appreciation of the evidence before it. This tends to widen the margin of appreciation this Court should afford the Board … In my view, the Board’s decision was within that margin of appreciation. (Authorities omitted)

The Importance of Reasons

The great merit of this decision is that it articulates a clear set of reasons for concluding that the Board’s decisions in relation to all three matters were either reasonable or correct (allowing deference to the Board’s choice of procedures). Indeed, the Court may have set an excellent example for the Board in demonstrating the quality of reasons that might be expected of it in showing the reasonableness of its decisions. Ms. Sinclair might not like the result (and I myself would prefer the Board to take a more expansive view of the relevance of upstream and downstream effects under s.52 of NEBA), but at least she has got a set of reasons; those reasons help establish the legitimacy of the Board’s process.

Contrast this with another recent Federal Court of Appeal decision, this time on the application for leave to appeal in City of Vancouver v NEB and TransMountain. In this case the City and other interveners in the TransMountain expansion application similarly sought to expand the Board’s review of TransMountain’s application to include both the upstream and downstream effects of this project. There are similar arguments before the Court in relation to Northern Gateway. In this case, however, the Court, per Justice Marc Nadon, summarily dismissed the application for leave to appeal, with costs and without giving reasons. I understand that this is consistent with current practice but the contrast between the two approaches is stark. The one approach fortifies the rule of law and the legitimacy of the Board’s and the Court’s process. The other approach seems to contradict the rule of law and undermine the legitimacy of the administrative process.

I am glad that the Federal Court of Appeal found a way to provide extensive reasons for declining to interfere with the Board’s decision making process in relation to Line 9. I hope that the Court will find a way to do the same (whatever the result) in the other important decisions that it will face in relation Northern Gateway, TransMountain Expansion and ultimately Energy East.

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Gross Negligence and Set-off Rights under the 2007 CAPL Operating Procedure

Fri, 11/07/2014 - 9:00am

By: Nigel Bankes

PDF Version: Gross Negligence and Set-off Rights under the 2007 CAPL Operating Procedure

Case Commented On: Bernum Petroleum Ltd v Birch Lake Energy Inc., 2014 ABQB 652; unreported transcript of reasons of Master Robertson, July 31, 2013

Bernum and Birch Lake held interests (60:40) in five sections of land (sections 3, 7, 8, 17 and 19) governed by the 2007 version of the CAPL operating procedure. Bernum was the operator. Birch Lake elected to participate in drilling two horizontal wells, the 4-3 well and the 6-19 well. The 4-3 well was a success and is still producing. The 6-19 failed and was subsequently abandoned. Birch Lake failed to meet cash calls under the authorizations for expenditure (AFEs) for the two wells; Bernum commenced an action and applied for summary judgement. Bernum also set off Birch Lake’s share of production against Birch Lake’s indebtedness.

Birch Lake defended Bernum’s application for summary judgement on the basis that Bernum had been grossly negligent in drilling the two wells. The 2007 CAPL provides that:

4.02 The Operator … will not be liable to any of the Non-Operators for any Losses and Liabilities resulting from or in any way attributable to or arising out of any act, omission or failure to act, whether negligent or otherwise, of the Operator or its Affiliates and their respective directors, officers, agents, contractors or employees in the performance of the Operator’s duties under this Agreement (including those in planning or conducting any Joint Operation), except insofar as:

(a) those Losses and Liabilities are a direct result of, or are directly attributable to the Gross Negligence or Wilful Misconduct of the Operator …;

Unlike earlier versions of the CAPL operating procedure, the 2007 version provides a definition of Gross Negligence or Wilful Misconduct:

…. any act, omission or failure to act (whether sole, joint or concurrent) by a person that was intended to cause, or was in reckless disregard of, or wanton indifference to, the harmful consequences to the safety or property of another person or to the environment which the person acting or failing to act knew (or should have known) would result from such act, omission or failure to act. However, Gross Negligence or Wilful Misconduct does not include any act, omission or failure to act insofar as it: (i) constituted mere ordinary negligence; or (ii) was done or omitted in accordance with the express instructions or approval of all Parties, insofar as the act, omission or failure to act otherwise constituting Gross Negligence or Wilful Misconduct was inherent in those instructions or that approval. (emphasis added)

Birch Lake also counterclaimed with respect to sections 7, 8 and 17. The leases on these lands had been allowed to expire in accordance with their terms but Bernum then re-leased them in its own name and for its own account. Birch Lake argued that Bernum had failed in its obligations under the CAPL to maintain the co-owners’ interest in the original leases and that the subsequent acquisition of new leases on these properties was subject to an area of mutual interest (AMI) obligation, or, that in acquiring these leases in its own name and for its own account, Bernum was in breach of a fiduciary obligation owed to Birch Lake. Bernum took the position that the AMI obligations had expired.

Master Robertson granted Bernum summary judgement on the amounts owing under the cash calls but stayed execution of that judgement for one year to allow the parties to proceed to trial on the AMI issue – apparently so as to allow Birch Lake to establish set-off. Master Robertson denied summary judgement on the AMI issue and the other issues relating to the section 7, 8 and 17 lands since while the AMI obligation on its face had expired, there was an argument that it had been extended by the conduct of the parties; and the agreement did not prescribe that any amendments had to be in writing.

Birch Lake appealed and Bernum cross appealed the stay. Both parties adduced additional evidence on the appeal.

Justice Pentelechuk agreed that Bernum was entitled to summary judgement on the cash calls with no further stay (at para 118). There was no evidentiary basis for the claims of gross negligence and in any event Birch Lake must be taken to have approved the mudding program proposed by Bernum in its AFE (see the italicized text in the definition of gross negligence, supra). The following paragraphs summarize her conclusions on these matters:

[46] The determination of each case of gross negligence or wilful misconduct is not only fact- but context-specific. The oil and gas industry is a high risk, speculative business, particularly for junior participants who often operate on precarious financial foundations. As admitted by the parties, many things can go wrong during the course of drilling, resulting in unanticipated delays and cost overruns. Often, decisions in the course of drilling must be made quickly without time for extended consultation or analysis. A well may not produce as expected or may not produce at all.

[50] There is nothing in the record to suggest the 4-3 well would have produced at a higher rate had a different mud system been employed or that the difficulties with the 16-19 well would have been avoided if different drilling operations were employed. In other words, while there is criticism aimed primarily at the mud system utilized, it begs the question whether utilization of a different mud system would have led to a different result. With the benefit of hindsight and time, it may be established that utilization of a different mud system would have been preferable in the circumstances, but Birch Lake must put its “best foot” forward now.

[51] Taking Birch Lake’s evidence at its highest and ignoring the evidence put forward by Bernum, Birch Lake has failed to establish that its defence of gross negligence in relation to the operation of the wells is an issue of merit requiring a trial. The record does not disclose evidence showing a conscious wrongdoing or a very marked departure from the standard expected of an operator like Bernum. Part of the problem is Birch Lake’s failure to lead evidence on industry standards by which the actions of Bernum could be compared. For example, Birch Lake points to Bernum’s choice of mud programs, and its decision to use the same program on the 16-19 well, but provides no evidence to suggest the mud system utilized was contrary to industry standards. In contrast, Bernum led evidence that the mud program utilized is the standard program used by operators in the area.

Justice Pentelechuk also agreed that it would be inappropriate to grant summary judgement with respect to any of the matters in relation to the section 7, 8 and 17 leases. The provision in the 2007 CAPL to the effect that all amendments to the agreement must be in writing did not apply to the head agreement since in the event of a conflict between CAPL 2007 and the head agreement the head agreement must prevail. The head agreement as noted above did not require that amendments to the AMI agreement must be in writing. It is possible however that the Statute of Frauds may be relevant to the question of writing (at para 74).

Justice Pentelechuk appears to have given two types of reasons for denying any extension of the stay ordered by Master Robertson. As noted above, Master Roberston seems to have granted the stay so as to allow Birch Lake to establish a right of equitable set-off. Justice Pentelechuk however drew the attention of the parties to cl.5.05B(d) of the 2007 CAPL which provides that the operator may

… maintain actions against that Non-Operator for all such unpaid amounts and interest thereon on a continuing basis, as if those payment obligations were liquidated demands payable on the date they were due to be paid, without any right of that Non-Operator to set-off or counter-claim. (emphasis added)

In her view this clause is one of a number of clauses which (at para 94) “provide an operator with expedited and enhanced remedies not available to an ordinary creditor.”

[95] These enhanced remedies reflect the high risk and high reward world of oil and gas exploration. These provisions discourage non-operators from delaying payment of their agreed upon share of operating costs because production is lower than expected.

As such, potential set-off claims (at para 104) “cannot be raised as a means to refuse or delay payment of operating costs due and owing.”

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The Virtues and Limits of the Representation of the “Man-in-trouble”: Some Reflections on Jian Ghomeshi and Legal Ethics

Mon, 11/03/2014 - 9:10am

By: Alice Woolley

PDF Version: The Virtues and Limits of the Representation of the “Man-in-trouble”: Some Reflections on Jian Ghomeshi and Legal Ethics

The scandal surrounding Jian Ghomeshi raises a myriad of legal questions across doctrinal areas: labour and employment; the jurisdiction of the court; criminal law; and legal ethics. Last week on ABlawg Joshua Sealy-Harrington wrote a post commenting on two of the criminal law questions – what is (and is not) relevant to assessing a sexual assault case, and how the presumption of innocence can co-exist with the empowerment of sexual assault victims (Jiango Unchained: A Discussion of the Narrative and Commentary Surrounding the Jian Ghomeshi Scandal).

Here I want to explore the legal ethics issues. My analysis will be necessarily tentative; we do not yet have sufficient information to characterize accurately the ethical issues that the situation presents. But even that tentative assessment provides an opportunity to reflect on the role of the lawyer representing a client in trouble, on the moral significance and importance of that representation, but also the challenges that can arise in identifying its limits.

Representing the Man-in-Trouble

Jian Ghomeshi is a “man-in-trouble”: under investigation by the police, fired from his job, disdained by much of the public. Even a few months ago, before widespread public awareness of his conduct, Ghomeshi had some serious problems; two investigative journalists were looking into his conduct, and asking him questions about allegations of sexual assault and abuse. Further, those problems had legal significance: they put his employment and his liberty at risk.

While legal ethicists have debated ferociously the moral legitimacy of the standard conception of the lawyer’s role – the lawyer’s partisanship in the pursuit of ends for which she is morally non-accountable – most acknowledge the moral importance of the lawyer’s representation of a client facing serious legal risks, even the apparently despicable and wicked client. David Luban connects that moral importance to the preservation of the client’s dignity – ensuring that her story and account of her life can be told prior to the application of the law’s judgment upon her (David Luban, “Lawyers as upholders of human dignity (when they aren’t busy assaulting it”), Legal Ethics and Human Dignity (New York: Cambridge University Press, 2007) at 65-95). David Melinkoff put it this way:

Cruelty, oppression, deception, unhappiness, worry, strain, incomprehension, frustration, bewilderment – a sorcerer’s bag of misery. These become the expected. Then the saddest of all human cries: “Who will help me?” Try God, and politics, and medicine, and a soft shoulder, sooner or later a lawyer. Too many do.

The lawyer, as lawyer, is no sweet kind loving moralizer. He assumes he is needed and that no one comes to see him to pass the time of day. He is a prober, an analyzer, a scrapper, a man with a strange devotion to his client. Beautifully strange, or so it seems to the man-in-trouble; ugly strange to the untroubled onlooker (The Conscience of a Lawyer (New York: West Books, 1973) at 270).

This is not to suggest that those of us who are not Ghomeshi’s lawyers (or judges or arbitrators charged with hearing his case) need to have a particular care or concern for his troubles. People not judging or representing Ghomeshi do not need to offer him a presumption of innocence in relation to our moral judgment of his conduct and we are entitled to believe his accusers. We may wish to be fair and dispassionate as a matter of our moral values and commitments, but that moral commitment to fairness does not require us to disregard women’s stories of violence and abuse. We may judge him as we see fit.

But Ghomeshi’s lawyers are not us. Even if they too believe his accusers, their role is to protect his legal interests and to ensure his story – his subjective account of his conduct and his life – is told in the way that he would tell it. They are there to help him, not to judge him. Without a lawyer to present his story, the application of the law to Ghomeshi would humiliate him and deprive him of his dignity:

Certain ways of treating people humiliate them; humiliating people denies their dignity. One of those humiliations consists in presuming that some individuals have no point of view worth hearing or expressing, and that is tantamount to denying the ontological heft of their point of view (David Luban, Legal Ethics and Human Dignity at 72).

Whatever he has done, Jian Ghomeshi has a point of view that he is entitled to have expressed in relation to the law’s application to him and his circumstances.

The special role of lawyers in relation to their clients is part of what separates them from a PR firm. A PR firm has a concern with the client’s interests, and may be involved in shaping and telling the client’s story. But the PR firm’s concern for the client can run out, and discovering a client has lied may cause the PR firm to withdraw – as was apparently the case with Ghomeshi and Navigator (see, “Jian Ghomeshi dumped by PR firm over lies, sources say”).

By contrast, while a lawyer could withdraw from representation if a client has been deceptive, withdrawal requires a “serious loss of confidence between the lawyer and client” and even then withdrawal is not required (Federation of Law Societies (FLS) Model Code, Rule 3.7-2). Lawyers, especially criminal defence lawyers, understand and expect that clients will find it difficult to be truthful when facing serious legal problems, and a wise lawyer makes strategy aware of the possibility that the client has not been honest. And, of course, when a lawyer does withdraw from a representation she must do so in a way that will “avoid prejudice” to the client and must certainly not breach confidentiality so as to publicly justify her withdrawal (FLS Model Code, Rule 3.7-8). It is not for the lawyer to leak to the press that their client “lied to the firm” as was apparently done by Navigator (see “Jian Ghomeshi dumped…”). Morally questionable in a PR firm, such conduct would be morally outrageous and legally actionable in a lawyer.

This observation has some broader social significance, particularly in relation to access to justice. While I am basically untroubled by the proposition that legal services be provided by non-lawyers (i.e., people not licensed to practice law) I am quite troubled by pushing legal representation outside of the type of moral relationship that lawyers have with their clients. Ensuring access to justice through allowing or encouraging non-lawyers to provide legal services may require non-lawyers to have a relationship with their clients that, in its moral qualities, matches the lawyer-client relationship. Otherwise those clients may have access to legal help, but not justice.

Limits on Representing the Man-in-Trouble

The moral quality of the lawyer-client relationship does not, though, make the limits on that relationship self-executing. That the lawyer serves an important function in relation to the protection of the client’s dignity does not grant the lawyer a license to do-whatever-it-takes-to-get-the-client-what-he wants. The lawyer is bounded at least by the limits of legality and, for legal ethicists like David Luban, by “serious moral obligation” as well (Legal Ethics and Human Dignity at 63).

In the case of Ghomeshi, two questions about the conduct of his lawyers have been raised: the decision to file the $50 million statement of claim against the CBC and the non-disclosure to the police of evidence given to them by Ghomeshi that may be evidence of a crime.

The Statement of Claim

With respect to the statement of claim, Howard Levitt wrote in The Financial Post that “Jian Ghomeshi’s $50-million lawsuit against the CBC has everything to do with strategy and PR — but nothing to do with legal entitlement,” going on to argue that the damages claimed were out of all proportion to anything that Ghomeshi could hope to recover and, in any event, the “suit will almost certainly be quickly struck down by the courts without Ghomeshi recovering a penny.” (“Jian Ghomeshi’s lawsuit is hopeless…”).

Levitt’s characterization of the statement of claim may not be accurate, but let’s assume for the moment that it is, that the lawyers filed the claiming knowing that it is without merit, and that the purpose of the suit is purely for “strategy and PR”.

If that is the case, then have the lawyers violated their ethical obligations? In particular Rule 5.1-2 of the FLS Model Code of Conduct (which exists in some form across all jurisdictions) requires lawyers not to file frivolous and vexatious claims:

When acting as an advocate, a lawyer must not

(a) abuse the process of the tribunal by instituting or prosecuting proceedings that, although legal in themselves, are clearly motivated by malice on the part of the client and are brought solely for the purpose of injuring the other party…

(e) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed or otherwise assisting in any fraud, crime or illegal conduct; …

Answering this question requires interpretation of the rule. How malicious must a proceeding be? How clear the client’s motivations? Is maliciousness assessed in light of legal merit – i.e., the more meritorious a claim the more permissible are malicious intentions in bringing it? Is any extraneous motivation malicious, or can the motivation be simply extraneous to the legal claim the proceeding makes?

For the purposes of argument here I want to assume an almost worst case scenario – that the action is being brought with little or no legal merit, and that the reasons for bringing the action are wholly extraneous to the legal claim – to discourage victims from coming forward and to create a positive public image for the plaintiff. I will also assume, though, that the statement of claim does not contain factual statements that the lawyer knows to be false, but only that it makes baseless legal allegations and that it may include factual statements that are in fact false.

And with that almost worst case scenario I want to argue that this rule ought not to preclude a lawyer from filing such a suit if his client insists upon doing so. My argument will be that this is a “hard case,” a situation where ethical principles conflict, no satisfactory answer is possible, and the “best” answer requires a lawyer to act in ethically troubling ways.

To begin, though, it must be noted that in filing such a suit the client faces serious legal risks: dismissal of the action as frivolous and vexatious, an award of solicitor-client costs against him and, in the worst case scenario, liability in an action for abuse of process. A competent and ethical lawyer must advise their client of those risks clearly and strongly. No client should proceed with such an action without understanding the legal risks that it presents.

But if the client persists in his instructions to file the suit, the lawyer faces a serious ethical dilemma. On the one hand, as was set out at the beginning, the lawyer’s most fundamental obligation to a client is ensuring that the client’s story is told before legal consequences are visited upon her. And that is the case even if the client’s story is implausible and her case legally weak. Further, inherent in the structure of the rule of law is permitting those to whom the law applies to engage with the law’s application, to argue about its requirements and to participate in its application. As Jeremy Waldron has observed, this structure of legality reflects its respect for the dignity, rationality and autonomy of those to whom it applies (“The Concept and the Rule of Law” (2008-9) 43 Ga J L Rev 1). Our legal system has ways of dealing with frivolous and vexatious claims – that is why bringing such claims poses serious risks for a client; it is not obvious that lawyers need to impose an additional barrier in respect of their own clients.

On the other hand, as noted, the lawyer is bound by the limits of legality. That you can tell a story in numbered paragraphs does not mean it creates a legally cognizable claim. Moreover, on the almost worst case scenario posited, the client’s motivations are not the pursuit of the stated legal claim; this is not a test case. Rather, the client’s motivations are the avoidance of damage to his reputation and discouraging other victims from coming forward. The law may recognize the client’s dignity, autonomy and rationality, but it is not the law to whom the client is speaking in making his legal claim. Rather, he is trying to convince the public to think better of him, and to use fear of litigation to prevent complainants from coming forward.

These countervailing concerns do not eliminate the arguments in favour of filing the statement of claim. They simply make it impossible for the lawyer to have an untroubling resolution to the problem. The lawyer files the statement of claim or he doesn’t; either choice has ethical benefits and costs associated with it.

To my mind the better choice is to file the statement of claim. The injury to the moral foundations of the lawyer-client relationship from the lawyer precluding the client’s access to court is too great, and the judicial process has safeguards to ameliorate much (although by no means all) of the harm that filing of such claims can do. Given the law’s moral attitude to those to whom it applies, a person should be preemptively denied access to the law’s processes only in extreme circumstances. But making that argument doesn’t make filing the statement of claim unproblematic. Filing the statement of claim may improperly dissuade complainants from coming forward, which is a morally troubling outcome. All this argument suggests is that filing the statement of claim is the better of two difficult choices for the lawyer in question.

As a final aside on this point, the courts seem to appreciate the difficulty for the lawyer who has a client who wishes to file a unmeritorious claim as demonstrated by their unwillingness to impose costs against lawyers who bring such claims (See Alice Woolley, Understanding Lawyers’ Ethics in Canada (Toronto: LexisNexis, 2011) at 75-81).

Disclosing Physical Evidence of a Crime

What about the evidence? According to media reports Ghomeshi and his lawyer provided the CBC with “texts, e-mails and photos of the radio host’s sexual encounters” (See: Behind the CBC’s Decision to Fire Ghomeshi). He is also reported to have provided them with “graphic videos” (See: Jian Ghomeshi showed CBC Video).

But as Professor David Tanovich immediately pointed out on Twitter, the lawyer who has physical evidence of a crime has a significant ethical problem. Lawyer-client confidentiality covers information provided by the client, including the client’s property and records. A lawyer cannot, however, conceal evidence, and the lawyer who does so risks prosecution for obstruction of justice. Such a prosecution was conducted against Ken Murray, the lawyer who concealed videotapes that evidenced the crimes of his client Paul Bernardo. Murray was acquitted, but only because the judge had a reasonable doubt as to his mens rea; there was no question that the act of concealing the video tapes constituted obstruction of justice (See: R. v Murray 2000 CanLii 22378).

A potential difference that would be salient, however, is that in the Murray case there was no doubt about the evidentiary significance of the videotapes to the charges against Bernardo, and the videotapes were overwhelmingly inculpatory. Here the evidence was likely more ambiguous; while consent does not excuse an assault causing bodily harm (See Brenda Cossman’s nice summary of the law in the Globe and Mail, here) it may be that the evidence did not indicate whether bodily harm resulted from Ghomeshi’s acts. It may also have been consistent either with consent or its absence. Further, the lawyers may have assessed that while the evidence had an inculpatory aspect – evidencing bodily harm being inflicted – that they also had an exculpatory aspect – evidencing perhaps an absence of mens rea on Ghomeshi’s part. They may also have believed that while as a matter of law consent is not a defence to bodily harm, that clear evidence of consent may be sufficient to preclude conviction in fact.

I have no idea whether Ghomeshi’s lawyers (or the lawyers for the CBC, who would also have seen the evidence) acted properly in not disclosing it to the police. But the circumstances of the case do suggest the possibility that a lawyer faced with this dilemma may have to deal with facts more complicated than those faced by Murray: where the nature of the evidence, its inculpatory or exculpatory effect, and the likelihood of conviction on the basis of that evidence, may all complicate identifying what, exactly, the lawyer is supposed to do when the client gives it to him.

Conclusion

Like many Canadians, I have spent a great deal of time reading about Ghomeshi’s situation. For the most part, my attention and concern has been on pointing out that women who do not go to the police cannot be assumed to be less credible than those who do, that the reasons for not reporting a sexual assault are significant and extraneous to the truth of the victim’s story (see, e.g., this thread). I personally believe that Ghomeshi acted wrongfully in his treatment of those women and have found defences of his conduct in the media increasingly risible (see e.g., Blatchford and Black). But at the same time, I strongly believe in the moral rightness of the lawyers who represent him. He needs them. And the moral structure of law, its insistence on respect for the dignity of those subject to it, requires that representation.

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Jiangho Unchained: A Discussion of the Narrative and Commentary Surrounding the Jian Ghomeshi Scandal

Fri, 10/31/2014 - 10:00am

By: Joshua Sealy-Harrington

PDF Version: Jiangho Unchained: A Discussion of the Narrative and Commentary Surrounding the Jian Ghomeshi Scandal

The recent scandal surrounding Jian Ghomeshi’s dismissal from the CBC, and the sexual assault allegations relating to that dismissal, have had a polarizing impact on Canadian discussion about sexual assault. First, this comment outlines the legal framework surrounding the sexual assault allegations against Mr. Ghomeshi to clarify what is relevant to the adjudication of those allegations, and what is not. Second, this comment seeks to respond to the polarizing conversation on this issue and argue for a middle ground which preserves the presumption of innocence while simultaneously demanding greater support for the victims of sexual assault.

Background

On October 26, 2014, the CBC announced that its relationship with Jian Ghomeshi – host of the popular radio show “Q” – had come to an end.

The factual background underlying this controversy (AKA World War Q, AKA Ghomeshigate) is heavily contested. Mr. Ghomeshi, in a note posted on Facebook, claims to be the victim of “a campaign of false allegations pursued by a jilted ex girlfriend and freelance writer.” Shortly thereafter, an article in the Toronto Star reported that three anonymous women say that Mr. Ghomeshi “was physically violent to them without their consent during sexual encounters or in the lead-up to sexual encounters.” Moreover, following the Toronto Star piece, many other women echoed these allegations, including actress Lucy DeCoutere, who has agreed to be identified.

In the aftermath of his dismissal, Mr. Ghomeshi filed a $55 million law suit against the CBC for breach of confidence and defamation (though, some have argued that the law suit serves ulterior motives). To date, no formal complaint or police investigation relating to the allegations against Mr. Ghomeshi has taken place.

This scandal is steeped in legal issues: employment and labour, sexual assault, privacy, and legal ethics (regarding the filing of a potentially disingenuous statement of claim). But I will limit my discussion to two discrete points: (1) how the narrative surrounding the Ghomeshi scandal illustrates the importance of distilling the relevant facts in sexual assault cases and (2) how the commentary on the Ghomeshi scandal creates a false dichotomy between supporting the presumption of innocence and empowering sexual assault victims.

(1) The Ghomeshi Narrative: Distilling the Relevant Facts in Sexual Assault Cases

The narrative surrounding Mr. Ghomeshi’s alleged assaults is a mix of relevant and irrelevant facts relating to consent. In his Facebook note, Mr. Ghomeshi discusses a “jilted ex girlfriend,” and their common interest in “adventurous forms of sex” like “BDSM” (bondage, dominance, sadism, and masochism). Effective PR, maybe, but such observations are minimally relevant to the adjudication of consent. Men can still assault their girlfriends, or wives, or ex-girlfriends. And people interested in BDSM can still experience sexual assault. Indeed, to argue that a woman must have consented to all of their rough sexual encounters because she was more likely to have consented given her interest in BSDM is expressly forbidden by the Criminal Code, RSC 1985, c C-46, s 276, which restricts reliance on evidence of a complainant’s previous sexual activity.

A significant reason for Canada’s woeful record in dealing with sexual assault prosecutions is the infiltration of irrelevant evidence into judicial reasoning. As I have written on ABlawg before, courts often impose unrealistic standards on sexual assault victims, and many of those unrealistic standards flow from irrelevant evidence that distracts from what is often the central issue at trial: consent. Did the complainant consent to the specific sexual activity in question? If not, did the accused have a reasonable but mistaken belief of that same specific consent? These are the questions that should guide the relevant legal inquiry (see R v JA, 2011 SCC 28 at paras 23-24, [2011] 2 SCR 440). Not that the complainant consented at another time. Or that the complainant must have consented because of her past relationship with the accused, or her style of dress, or how (purportedly) imprudent she was. Did she, or did she not, consent, this time. That is what matters.

The need for a proper focus on relevant facts is particularly important in sexual assault cases relating to BDSM practices because unconventional forms of sexual expression are more liable to misinterpretation by a trier of fact that is unfamiliar with them. As an added layer of complexity, the state of Canadian law is opaque in the context of BDSM. Even further, the Supreme Court has not shied away from establishing bright line rules that threaten to infringe on the meaningful expression of sexual autonomy between partners (see: Joshua Sealy-Harrington, “Tied Hands? The Doctrinal and Policy Argument for Advance Consent,” 18 Can Crim L Rev 119 (“Tied Hands”)). While convicting Mr. Ghomeshi might be easier if all BDSM were illegal, such an overbroad reach would also threaten the legitimate sexual expression of many Canadians.

Regardless, with a proper focus on consent, irrelevant facts can be cast aside. For example, Mr. Ghomeshi claims that his exes agreed to rough sex. That may or may not be true, but agreeing to rough sex, in a general sense, is not a carte blanche to disregard a partner’s contemporary and specific wishes. More specifically, in his note, Mr. Ghomeshi writes:

CBC execs confirmed that the information provided showed that there was consent. In fact, they later said to me and my team that there is no question in their minds that there has always been consent.

From a legal perspective, this nebulous “information,” which is purportedly conclusive of consent, is difficult to conceive of. Is it a series of text messages confirming specific sexual preferences? Or a desire to remain friends after the alleged assault? Neither is conclusive of consent. Worse, this type of evidence, if anything, distracts from the adjudication of consent. A woman who communicates a desire for rough sex, or any sex, is not bound to her word. She is, quite rightly, open to promising all sorts of sexual adventures and ultimately following through with none of them. Again, the focus must be on her consent at the time of the activity, not some information that purports to “prove” her subjective consent from now to eternity.

Even a video recording of ostensibly consensual sex would be inconclusive. Actual testimony from a complainant is so often critical in sexual assault cases because consent turns on the complainant’s subjective interests, which documentary evidence would struggle to fully establish (R v Ewanchuk, [1999] 1 SCR 330 at para 48). For example, a victim could actively participate in sexual activity out of fear that denying her partner will result in a worse fate than suffering a sexual assault (see e.g. R v Sansregret, [1985] 1 SCR 570). Indeed, one of the more recent victims to share her story states that she performed oral sex on Mr. Ghomeshi to escape his hotel room after he was overly forceful with her. With that in mind, a video recording of such a victim performing ostensibly consensual oral sex would not prove consent at all.

Admittedly, a video recording could more readily support an argument of mistaken belief in consent regarding that specific encounter, in so far as mistaken belief in consent turns on the accused’s reasonable interpretation of the complainant’s communication of consent, a partially objective assessment (Tied Hands, at 123). But still, evidence of reasonable steps taken to ascertain consent to all sexual activities is required (Criminal Code, s 273.2), and evidence of consensual sexual encounters does not preclude the occurrence of other non-consensual sexual encounters. To hold otherwise would make it impossible for complainants to ever pursue charges against ongoing intimate partners (though, in any event, such partners continue to struggle with pursuing their claims in court). Surely Mr. Ghomeshi’s information is not a little black box of DVDs documenting every sexual encounter he has ever participated in. Accordingly, to claim he has conclusive proof that he never sexually assaulted anyone seems far-fetched.

In sum, the treatment of sexual assault would vastly improve if our courts more consistently limited their analysis to the legally relevant facts before them (see especially Lucinda Vandervort, “Sexual Consent as Voluntary Agreement: Tales of ‘Seduction’ or Questions of Law?” (2013) 16 NCLR 143). While it may sound trite to argue that courts should focus on relevant facts, this has been a significant struggle in sexual assault jurisprudence, and it appears to be a problem in the narrative surrounding the Ghomeshi scandal as well.

(2) The Ghomeshi Commentary: Reconciling the Presumption of Innocence with Greater Support for Sexual Assault Victims

The national discourse following the Ghomeshi scandal has been polarized. On one extreme, some #teamjian supporters (a friend of mine aptly observed that the likening of sexual assault allegations to a sporting competition is, to put things lightly, offside) are certain that the charismatic Jian Ghomeshi could never have committed sexual assault and decry the anonymity of his accusers. On the other extreme, some opponents of Jian Ghomeshi speak with certainty that the allegations against him are true and consider the presumption of innocence to be a mere buzz phrase of rape apologists. In my view, neither position is sound. Rather, cases as public as the Ghomeshi scandal test our collective resolve to both preserve the presumption of innocence while simultaneously empowering the victims of sexual assault to seek justice. Though these two goals may seem at tension, they can meaningfully co-exist.

First off, let me be very clear about what I mean by the presumption of innocence. Or rather, what I do not mean. Presuming innocence, in law, does not mean presuming innocence, in fact. Statistically speaking, women are extremely unlikely to falsely report a sexual assault. As a consequence, when a sexual assault allegation is made (or 8, for that matter) standing by the presumption of innocence does not mean turning a blind eye to those allegations. It does mean, however, demanding due process from our justice system. Due process is just as important for the victims of sexual assault as it is for the accused. If the over 100,000 likes on Jian Ghomeshi’s Facebook note mean anything, they illustrate how the court of public opinion can be just as damaging to the victims of sexual assault as it can to the accused.

The meaningful coexistence between the presumption of innocence and empowering the victims of sexual assault is best illustrated by definition. The presumption of innocence holds that, in a legal setting, the onus rests upon the Crown to prove the guilt of the accused beyond a reasonable doubt (R v Lifchus, [1997] 3 SCR 320 at para 13). In other words, the legal burden that must be met for the powerful force of the state to be exercised against individual citizens is a high one – and for good reason. In a free society, a high bar should be set before fundamental freedoms are stripped from citizens. That same bar, however, need not apply to our personal judgments. It also, similarly, need not apply in the employment law context, in which private parties are permitted to make employment decisions pursuant to contract and without reference to the presumption of innocence.

Therein lies where the presumption of innocence coexists with empowering victims of sexual assault. There is nothing inconsistent with holding the state to a different standard than we do ourselves. Indeed, the application of the Charter as a limit on state conduct directly reflects how we, as a society, place the state under stricter scrutiny. Every day we reach important personal conclusions based on limited evidence and are happy to apply a standard of proof lower than beyond a reasonable doubt. That said, it is also legitimate to reserve our judgments in criminal matters. The presumption of innocence has an important rationale behind it which carries weight outside the realm of the courts. While false allegations of sexual assault are extremely rare, relying on that statistic to presume guilt in all sexual assault cases places an immense stigma on everyone accused of sexual assault – even those who are truly innocent.

Armed with the knowledge that supporting victims does not deteriorate the presumption of innocence, the need for greater support of sexual assault victims becomes painfully clear. There are myriad reasons that prevent victims from speaking out about their assaults. From shame, to fear, to the genuine belief that nothing productive will come from the allegation. These pressures are intense, and while I could never fault a victim for not going public with their experience, we must support victims to speak out and combat the incredible injustice of sexual crimes going unpunished. Indeed, no matter what side you take in the Ghomeshi scandal, it is hard to deny how it has shone a spotlight on the need to confront and actively invest in amplifying the voices of sexual assault victims.

Conclusion

The scandal surrounding Jian Ghomeshi highlights two significant struggles in the Canadian treatment of sexual assault. First, our courts need to focus on consent in the adjudication of sexual assault, and that focus must be reinforced through clearly articulated legal tests that orient judges towards truth and away from myths of ideal victims. Second, our society needs to recognize that we do not have to choose between presuming the innocence of the accused and empowering victims of sexual assault. Rather, they are both important and promote a balance in our society that preserves justice in all its forms.

While we must continue to demand proof beyond a reasonable doubt from the Crown, we must stop demanding too much from the victims of sexual assault. Whether or not Jian Ghomeshi committed the crimes he is accused of, let’s hope that the courageous women coming forward in the past week can blaze a trail for the many silenced voices that remain unheard.

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The Uncertain Status of the Doctrine of Interjurisdictional Immunity on Reserve Lands

Tue, 10/28/2014 - 10:00am

By: Nigel Bankes and Jennifer Koshan

PDF Version: The Uncertain Status of the Doctrine of Interjurisdictional Immunity on Reserve Lands

Case Commented On: Sechelt Indian Band v. British Columbia (Manufactured Home Park Tenancy Act, Dispute Resolution Officer), 2013 BCCA 262, application for leave to appeal dismissed with costs, October 23, 2014

The Supreme Court of Canada has passed up the opportunity to clarify the application of the doctrine of interjurisdictional immunity (IJI) to reserve lands following its decisions in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 and Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (Keewatin) in June 2014 by denying leave to appeal in the Sechelt Indian Band case. It is unusual to comment on a decision to deny leave since such decisions are never supported by reasons and the Court has warned that we cannot infer much about the status of an appellate decision on which leave was denied for the very good reason that there may be all sorts of considerations that might lead the Court to deny leave in any particular case. We are commenting on the leave issue in this case because in our view by missing the opportunity to clarify the scope of Tsilhqot’in and Keewatin the Court has left outstanding uncertainty as to the scope of these decisions that it could usefully have resolved. We also include a postscript referring to a recent decision out of Saskatchewan that seems to extend Tsilhqot’in to render IJI inapplicable to provincial limitations legislation applying to reserve lands.

The Significance of the Court of Appeal’s decision in Sechelt Indian Band

The Court of Appeal’s decision in Sechelt was significant because it demonstrated that IJI was still alive and well in relation to the lands reserved head of s.91(24) following the efforts of the Supreme Court of Canada in a series of cases including Canadian Western Bank v Alberta, 2007 SCC 22 and British Columbia (Attorney General) v Lafarge Canada Inc, 2007 SCC 23 to limit the application of the IJI doctrine. In doing so the case also confirmed that there was a core area within which Canada and the First Nation had the exclusive right to make laws that affected social and economic life on reserve; provincial laws of general application were inapplicable to the extent that they impaired this core. The provincial law of general application at issue in Sechelt was the Manufactured Home Park Tenancy Act, SBC 2002, c.77. This Act creates a Residential Tenancy Board (RTB) and empowers that Board to attempt to resolve disputes between landlords and tenants. The dispute arose in this case because the Sechelt Indian Band had significantly increased the rent on long term leases on Sechelt lands, presumably with a view to bringing them into line with market based rates (whatever that might mean on such lands; see Musqueam Indian Band v Glass, [2000] 2 SCR 633). The Band was operating under the terms of self-government legislation, the Sechelt Indian Band Self-Government Act, SC 1986, c.27, which inter alia provided (s.31) that Sechelt lands, although now held in fee simple (s.23(1)), were still considered to be lands reserved for Indians within the meaning of s.91(24). The Manufactured Home Park Tenancy Act was held to be inapplicable to the Sechelt lands under the IJI doctrine.

Sechelt Indian Band and Tsilhqot’in

Prior to Tsilhqot’in we don’t think that the Sechelt Indian Band decision would have been especially controversial. There was certainly ample support for this line of reasoning in the case law going back to Surrey v Peace Arch Ent. Ltd (1970), 74 WWR 380 (BCCA) and Derrickson v Derrickson, [1986] 1 SCR 295. But the Tsilhqot’in decision must at least raise questions about this line of authority, as we suggested in our post on the implications of that decision for the “lands reserved” aspect of s.91(24). Much will depend on whether it is possible to distinguish the aboriginal title situations from the Indian reserve situation (although we must acknowledge that the Sechelt lands have a unique juridical status in Canadian aboriginal law). In order to assess this issue we first examine the reasons the Court gives for not applying IJI to aboriginal title lands in Tsilhqot’in.

In Tsilhqot’in the Court’s IJI analysis evidently turned on the question of whether aboriginal rights and title were part of the core content of the federal head of power:

[133]  The reasoning accepted by the trial judge is essentially as follows. Aboriginal rights fall at the core of federal jurisdiction under s. 91(24) of the Constitution Act, 1867.  Interjurisdictional immunity applies to matters at the core of s. 91(24).  Therefore, provincial governments are constitutionally prohibited from legislating in a way that limits Aboriginal rights.  This reasoning leads to a number of difficulties.

[134]  The critical aspect of this reasoning is the proposition that Aboriginal rights fall at the core of federal regulatory jurisdiction under s. 91(24) of the Constitution Act, 1867 (emphasis added).

While the bulk of authority (some as the Court pointed out at para 135, obiter dicta, just as are its own remarks on the issue in Tsilhqot’in) certainly favoured the view that aboriginal and treaty rights were part of the core of s 91(24) jurisdiction (see Delgamuukw v British Columbia, [1997] 3 SCR 1010 and R v Morris, [2006] 2 SCR 915), the Court found (at para 138) that “the ambiguous state of the jurisprudence has created unpredictability”. The Court proposed to resolve this unpredictability by ruling (at para 140) that IJI had no role to play with respect to constitutionally protected aboriginal rights and title and inferentially therefore (given “the critical aspect of this reasoning”) must have ruled that aboriginal rights and title cannot be part of the core content of s.91(24). The Court offered several reasons for its conclusions.

First, it suggested that IJI is unnecessary where a party is relying on constitutionally protected rights since the province would still have to justify its legislation to the extent that the legislation impaired the right. Remarkably enough the Court considered that IJI is not appropriate where, as was the case in Tsilhqot’in (at para 144) “the problem …. is not competing provincial and federal powers, but rather tension between the right of the Aboriginal title holders to use their land as they choose and the province which seeks to regulate it, like all other land in the province.” Why is it so obvious that IJI should be inapplicable with respect to such a fundamental question?

Second, the Court considered that the application of IJI to aboriginal rights would (at para 145) cause “serious practical difficulties”. There would, said the Court (at para 146), be “dueling tests” directed at the same question, namely how far can a province go in regulating s.35 rights? But why are these dueling tests? If a provincial statute is held to be inapplicable that is the end of the matter. Alternatively if the law is held to be applicable it must be on the basis that it does not impair the core content of a federal head of power. If such content includes aboriginal and treaty rights and title and such law is still held to be applicable it is hard to imagine that there is an infringement of s.35 that requires engagement with the justifiable infringement analysis. Where is the duel?

Equally challenging apparently was the risk (at para 147) of a legislative vacuum and the thought that IJI is an old fashioned doctrine “at odds with modern reality” which may thwart cooperation between the “two (sic) levels of government” (at para 148). But is not the opposite also possible? Automatic applicability encourages provincial government unilateralism; inapplicability (without incorporation under section 88 of the Indian Act) might actually require and therefore foster cooperation and collaboration between First Nations and provincial governments.

Finally, said the Court in Tsilhqot’in (at para 148), were the IJI doctrine to apply the courts would apparently need to scrutinize federal legislation to ensure that it did not impair the core of the province’s power to manage the forests. So now the Court has confirmed (en passant) that IJI also applies to federal legislation, a question that it left open in Canada (Attorney General) v. PHS Community Services Society, [2011] 3 SCR 134, 2011 SCC 44. In any event, given all of these “difficulties” the Court preferred the carefully calibrated s.35 justifiable infringement test (at para 150) over the “blanket inapplicability” of IJI and ruled (at para 151):

… the doctrine of interjurisdictional immunity should not be applied in cases where lands are held under Aboriginal title.  Rather, the s. 35 Sparrow approach should govern.  Provincial laws of general application, including the Forest Act, should apply unless they are unreasonable, impose a hardship or deny the title holders their preferred means of exercising their rights, and such restrictions cannot be justified.

As we pointed out in our earlier comment, this is calibration and uncertainty at the expense of a bright line and certainty.

In Keewatin the Court made it clear that IJI no longer applies to treaty rights (at para 53), presumably (given “the critical aspect of this reasoning”, although the Court does not say so) on the basis that such rights can no longer be considered to be part of the core content of s.91(24).

All of this of course begs the question of just what is left, if anything, at the core of s.91(24)? It may be argued that while IJI does not apply to aboriginal rights, aboriginal title or treaty rights it must still apply to reserves, which must still be part of the core. But does that follow? Indian reserves and aboriginal title are both categories of “lands reserved” – St. Catherine’s Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46 and Delgamuukw – and the Court’s reliance on Guerin v The Queen, [1984] 2 SCR 335 (at para 12 in Tsilhqot’in) suggests that it doesn’t see much conceptual difference between the two. It may further be argued that Tsilhqot’in only applies to make IJI inapplicable in those cases where a party relies on s.35 of the Constitution Act, 1982. That may indeed be all that the Court has decided in Tsilhqot’in, but why should some forms of “lands reserved” attract the protection of “blanket inapplicability” while others do not? Furthermore, it may be difficult to classify some forms of argument as they apply to reserves. Take the example of limitations legislation; such legislation may be characterized as having the effect of extinguishing an aboriginal or a treaty right or as inapplicable as interfering with the core content of s.91(24).

At the end of the day, the next appellate court (or BC trial court) will be left with the question of which line of authority to follow: the ratio of the BCCA decision in Sechelt (binding on lower courts in that province) or the obiter dicta (see paras 98 & 99) of the Supreme Court in Tsilhqot’in. The Court could have helped us all (as well as the tenants in Sechelt) by granting leave in this case to allow these issues to be resolved now – thus saving the judicial time and lawyers’ fees that will be incurred when this litigation is inevitably re-run in some form.

Postscript

Shortly after we had completed a draft of this comment our colleague Professor Watson Hamilton drew our attention to the decision of Justice RS Smith of the Saskatchewan Court of Queen’s Bench in Peter Ballantyne Cree Nation v Canada (Attorney General), 2014 SKQB 327. One of the issues in that case concerned the applicability of provincial limitations legislation to causes of action involving reserve lands. Rather than re-writing our comment to take account of this decision we thought that we would simply reproduce the relevant sections here as a postscript to the comment and leave it to our readers to judge just how clear the law is in this area in light of Tsilhqot’in.

b) Do provincial limitation periods apply?

 [104] The plaintiffs submit several arguments as to why provincial limitations legislation should not apply.

(i) Interjurisdictional Immunity

[105] The doctrine of interjurisdictional immunity holds that insofar as legislation enacted by one level of government pursuant to their sphere of jurisdiction under ss. 91 or 92 of the Constitution Act, 1982, (sic) acts to impair the basic, unassailable core of power possessed by another level of government, it should be rendered inoperable (sic).

[106] The plaintiffs submit that provincial limitations legislation cannot apply so as to negatively affect possession of reserve lands or damages claimed as a result of interference with possession. They argue that possession of reserve lands lies at the core of s. 91(24) which assigns the federal government exclusive legislative power over “Indians, and Lands reserved for the Indians”. Thus, provincial limitations legislation should be rendered inoperable (sic) insofar as they (sic) impair this right.

[107] At the time of submissions, the parties did not have the benefit of the Supreme Court’s ruling in Tsilhqot’in Nation v British Columbia, 2014 SCC 44 (CanLII), [2014] 7 WWR 633 [Tsilhqot’in]. I am of the view that this decision is directly relevant to the matter at hand and greatly narrows the application of interjurisdictional immunity in the context of claims of infringement of Aboriginal rights.

[108] In Tsilhqot’in the court stressed the limits of interjurisdictional immunity, confirming that the doctrine should be applied with restraint so as not to thwart cooperative federalism between the federal and provincial governments: [The Court quoted at para 149].

[109] The court also further elaborated that interjurisdictional immunity is not an appropriate analysis to determine whether provincial legislation of general application infringes Aboriginal rights: [The Court quoted at paras 140 – 144].

[110] The problem here, as in Tsilhqot’in, is not competing provincial and federal powers wherein interjurisdictional immunity would be invoked to carve out areas of exclusive jurisdiction. Rather the issue is in regard to the tension between the claim of a violation of a federally protected right and claim for damages, and the province which seeks to regulate recovery of damages through imposition of limitation periods.

[111] This court is bound by this proclamation by the Supreme Court and the plaintiff is precluded from claiming interjurisdictional immunity by virtue of impairment of Aboriginal or treaty rights. These rights, as included under s. 35 have been deemed not to be at the “core” of federal power over “Indians” and “Lands reserved for Indians” in s. 91(24) of the Canadian Charter of Rights and Freedoms [the Charter] (sic).

[112] There was much correspondence from the parties to the court following the release of Tsilhqot’in. The plaintiffs made much out of the distinction that the lands held in Tsilhqot’in were under Aboriginal title and the lands held in this case are reserve lands. They argue that it is not open to this court to infer that Tsilhqot’in overrules such previous cases such as Derrickson v Derrickson, 1986 CanLII 56 (SCC), [1986] 1 SCR 285, which expressly held that the right of possession for land held under a reserve is at the core of s. 91(24) and triggers interjurisdictional immunity.

[113] I would respond to this by first referring the plaintiffs to paras. 135-138 of Tsilhqot’in wherein the court acknowledges that there is inconsistency among prior cases on whether certain s. 35 rights fall under the core of federal power. Such a statement surely acknowledges that there is bound to be some previous cases which are at odds with the ruling.

[114] Secondly, I would refer the plaintiffs to para. 150 [omitted] ….

In Delgamuukw v British Columbia, 1997 CanLII 302 (SCC), [1997] 3 SCR 1010, the court held that Aboriginal title lands and lands set aside for Indian occupation, such as reserves, are both “Lands reserved for the Indians” pursuant to s. 35 of the Constitution Act (sic). The court continued in Delgamuukw at para. 178:

…The core of Indianness encompasses the whole range of aboriginal rights that are protected by s. 35(1). Those rights include rights in relation to land; that part of the core derives from s. 91(24)’s reference to “Lands reserved for the Indians”.

[115] I conclude that the courts have not drawn a distinction between Aboriginal title lands and Aboriginal reserve land when determining whether these rights are protected under s. 35. Clearly, it would be an error for me to do so now.

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The Charter Issue(s) in Ernst: Awaiting Another Day

Mon, 10/27/2014 - 10:00am

By: Jennifer Koshan

PDF Version: The Charter Issue(s) in Ernst: Awaiting Another Day

Case Commented On: Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285

My colleagues Martin Olszynski and Shaun Fluker have posted comments on the Alberta Court of Appeal decision in Ernst here and here. In addition to the regulatory negligence claim against the Energy Resources Conservation Board (ERCB) and Alberta Environment they cover in their posts, Ernst brought a claim against the ERCB for breach of the Charter. More specifically, she alleged that the ERCB violated her freedom of expression under section 2(d) of the Charter by “punishing her for criticizing the ERCB in public and to the media, and … because she was prohibited and restrained in her communication with the ERCB” (2013 ABQB 537 at para 39). In response to the ERCB’s application to strike the statement of claim, Chief Justice Wittman found that the Charter claim, although novel, was not doomed to fail and should not be struck. However, section 43 of the Energy Resources Conservation Act, RSA 2000, c. E-10 (ERCA) barred Ernst’s Charter claim against the ERCB (2013 ABQB 537 at paras 42, 82-88). Although the ERCB did not appeal the finding that the pleadings disclosed an arguable claim for a breach of the Charter, the Court of Appeal upheld Wittman CJ’s finding that section 43 of the ERCA barred any Charter claim by Ernst.

ABQB and ABCA Decisions

At both levels of court, Ernst argued that section 43 of the ERCA could not bar a Charter claim as a matter of constitutional law. Wittman CJ canvassed the case law, and found that while such statutory bars could not preclude declarations regarding the constitutionality of statutes or government action, they could bar actions for personal remedies. Because Ernst was seeking a personal remedy of $50,000 damages against the ERCB, section 43 barred her claim against it (2013 ABQB 537 at para 88). Of note was the fact that Ernst had not sought to challenge the constitutionality of section 43 of the ERCA itself; notice of constitutional question had not been given to the Attorneys General of Alberta and Canada, as required by section 24 of the Judicature Act, RSA 2000, c J-2 (2013 ABQB 537 at para 89).

The Court of Appeal noted that there was no appeal on the question of notice (at para 9), but the Minister of Justice and Solicitor General of Alberta intervened to reiterate the point that since Ernst had not filed notice of a constitutional challenge to section 43 of the ERCA, that issue should not be considered. Ernst framed her argument as follows: section 24 of the Charter entitles Charter claimants to a remedy that is “appropriate and just in the circumstances” upon the finding of a Charter breach, and since section 52 of the Constitution Act, 1982 provides that “any law that is inconsistent with the Constitution is of no force and effect”, any limits on the remedies available under section 24 are of no force and effect (at para 24). The Minister of Justice contended that this was a new argument on appeal, on which it had not been given the opportunity to call evidence (at para 7).

The Court of Appeal did not deal explicitly with whether Ernst was entitled to raise the constitutionality of section 43, but cast its judgment in terms of the “constitutional legitimacy” of that provision. It rejected Ernst’s argument as to the effect of section 43 on Charter remedies, finding that “The law has always recognized that to be “appropriate and just”, remedies must be measured, limited, and principled” (at para 25). For example, case law has recognized that statutes of limitation can apply to constitutional claims, as can appeal periods, leave and notice requirements. According to the Court of Appeal, “It cannot be suggested that those sorts of limits on remedies are unconstitutional” (at para 26).

With respect to a claim for Charter damages more specifically, the Court referred (at para 29) to Vancouver (City) v Ward, 2010 SCC 27 (CanLII), [2010] 2 SCR 28 at para 20, for the proposition that “moving from a Charter breach to a monetary damages remedy is not automatic or formalistic, but requires a careful analysis of whether that remedy is legitimate within the framework of a constitutional democracy…” The Court also cited the Mackin principle, according to which “the state must be afforded some immunity from liability in damages resulting from the conduct of certain functions that only the state can perform” (Mackin v New Brunswick (Minister of Finance), 2002 SCC 13 (CanLII), [2002] 1 SCR 405, cited in Ward at para 40). Although Makin referred to immunity in the context of legislative and policy-making functions, the Court of Appeal used the case to conclude that “Protecting administrative tribunals and their members from liability for damages is constitutionally legitimate” (at para 29).

The Court gave a number of other reasons why section 43 of the ERCA was not “constitutionally illegitimate” (at para 30):

  • such provisions are general in nature, and not targeted at Charter claims or specific litigants (citing Alexis v Toronto Police Service Board, 2009 ONCA 847 (CanLII) at paras. 19-21);
  • provisions which immunize decision makers from liability “are not so uncommon or unusual in free and democratic societies as to render them constitutionally unreasonable” (citing a number of cases immunizing administrative tribunal members from personal liability for their decisions);
  • limits on remedies such as section 43 “do not offend the rule of law, so long as there remain some effective avenues of redress”, such as judicial review;
  • section 52 of the Constitution Act, 1982 has not “swept away” well established common law remedial barriers (citing Islamic Republic of Iran v Kazemi, 2012 QCCA 1449 (CanLII) at paras 118 to 120, subsequently upheld by the Supreme Court in Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62).

Overall, the Court found that Wittman, CJ had not erred in holding that section 43 barred Ernst’s Charter claim, just as it had barred her claim in negligence.

Commentary

There are two ways to read the Court of Appeal decision in this case. It may be that the Court believed that Ernst’s failure to meet the procedural requirement to give notice to government of a constitutional challenge to section 43 of the ERCA was fatal. However, the Court used the language of “constitutional legitimacy” throughout its reasons on section 43, suggesting that it might have been pronouncing on the constitutionality of the section in spite of the failure to give notice. I am inclined to read this case in the former sense, i.e. as not having actually decided the constitutionality of section 43. This would be in keeping with the usual consequence of the failure to give notice, which was not appealed here. Furthermore, the Court did not undertake the usual steps in a constitutional analysis, i.e. by reviewing whether section 43 breached any of Ernst’s Charter rights, and if so, whether it could be upheld as a reasonable limit on those rights under section 1 of the Charter.

By way of contrast, in Kazemi the Supreme Court assessed whether the State Immunity Act, RSC 1985, c S-18 (SIA), which limited civil redress in Canada against foreign states, even for acts of torture, violated section 7 of the Charter. A majority of the Court found that the SIA might engage the right to security of the person under section 7 by “impeding the healing of Canadian victims of torture or their family members” (at para 143). However, the SIA did not violate the principles of fundamental justice under section 7, as there was no international consensus that article 14 of the Convention Against Torture, which requires state parties to provide means for redress, was fundamental to the operation of the international legal system (at para 147).

Assuming that I am correct in my reading of the case, the Court of Appeal’s references to the “constitutional (il)legitimacy” of section 43 are unfortunate in producing a lack of clarity as to the Court’s intent. The Court’s decision should not be taken as a definitive assessment of the constitutionality of that section, nor that of its successor, section 27 of the Responsible Energy Development Act, SA 2012, c R-17.3. That issue awaits another day, and sadly for Ernst, that day will not come in her case, even though her Charter claim against the ERCB was arguable.

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How lawyers resolve family law disputes

Fri, 10/24/2014 - 10:00am

By: John-Paul Boyd

PDF Version: How lawyers resolve family law disputes

This past July I was able to sample the views of 167 lawyers and judges attending the Federation of Law Societies of Canada‘s National Family Law Program in Whistler, British Columbia through a survey designed and implemented by two prominent academics and the Canadian Research Institute for Law and the Family. The survey asked questions about participants’ views on shared parenting and shared custody, litigants without counsel, and dispute resolution.

In the course of digesting the resulting data for a report, I noticed something very interesting about the information we’d collected on dispute resolution. We had asked lawyers to tell us the percentage of their family law cases which are ultimately resolved by: arrangements made by the parties themselves; negotiation involving lawyers; mediation; collaborative settlement processes; arbitration; through court with the assistance of a judge at an interim hearing or a judicial conference; or, through court at trial. Here’s what the numbers told us:

As you can see, the lion’s share of cases are resolved through negotiation, primarily negotiation involving lawyers. (If you click on the image, you’ll get a larger, clearer version of this chart.) By region, lawyers reported that their family law cases were settled through lawyer-involved negotiation as follows:

  • North (Northwest Territories, Yukon): 23.3%
  • British Columbia: 41.1%
  • Prairies (Alberta, Manitoba, Saskatchewan): 37.4%
  • Ontario: 38.7%
  • Maritimes (New Brunswick, Newfoundland and Labrador, Nova Scotia): 50.6%

The rate of resolution by negotiation in the Maritimes is astonishing at more than half of lawyers’ files. British Columbia sits in second place with two out of five files resolved through negotiation, followed closely by Ontario.

Mediation is popular in British Columbia and Ontario, but less so in the north, the prairies and the Maritimes, perhaps because of smaller populations or a smaller number of trained mediators:

  • North: 10.0%
  • British Columbia: 25.5%
  • Prairies: 17.9%
  • Ontario: 24.8%
  • Maritimes: 10.0%

I was surprised to see relatively low rates of resolution through collaborative settlement processes, as it seemed to me that collaborative processes are more widely used in British Columbia and Alberta, but I wasn’t terribly surprised to see the low rate of resolution through arbitration. Arbitration has been widely accepted by the Ontario family law bar, and is becoming more accepted in British Columbia as a result of its new family law legislation; in other provinces arbitration isn’t used at all.

The relatively high rate of settlement through pretrial court processes, however, reflects my own experience as a family law lawyer. Quite often litigation is commenced not because a trial is anticipated but in order to deal with urgent problems, compel document disclosure, signal a party’s sincerity and commitment to a particular position, or move settlement discussions along. Judicial settlement processes, such as Judicial Case Conferences and Settlement Conferences in British Columbia or Judicial Dispute Resolution hearings in Alberta, are extraordinarily effective ways of getting past the stumbling blocks to settlement. Quite often the judge’s considered opinion of the likely outcome or of the merit of a party’s case is enough to modify unreasonable positions and encourage settlement.

By region, lawyers reported that their family law cases were settled by pretrial court processes involving a judge as follows:

  • North: 33.0%
  • British Columbia: 25.8%
  • Prairies: 21.1%
  • Ontario: 28.2%
  • Maritimes: 21.6%

Finally, the rates of resolution by trial, which I, and I believe most lawyers, view as an option of last resort, were wonderfully low. The rate of resolution by trial was higher than resolution by arbitration but about the same as resolution through collaborative processes, and only a fraction of the rates of resolution by lawyer-involved negotiation and pretrial conferences. By region, lawyers reported that their family law cases were settled at trial as follows:

  • North: 4.4%
  • British Columbia: 10.0%
  • Prairies: 5.4%
  • Ontario: 7.6%
  • Maritimes: 5.9%

Here British Columbia is a surprising outlier with a rate of resolution by trial significantly higher than everywhere else except perhaps Ontario, which had the next highest rate of resolution by trial. However, bearing in mind that the people who need to hire a lawyer to deal with their family law dispute generally have fairly complex and sometimes intractable problems, an overall rate of resolution by trial of 10.0% and 7.6% isn’t bad. Breaking things out by province, however, Alberta had the lowest rate of resolution by trial at 3.8% (what an incredibly low number; that’s less than 1 in 25 of lawyers’ family law files!) and Saskatchewan the highest at 12.9%.

These numbers are very reassuring. They suggest that family law lawyers emphasize dispute resolution processes other than trial in their practices, and tend to resolve their files primarily through lawyer-involved negotiation, judicial conferences and mediation. The relatively low rates of resolution through collaborative processes are explained, I think, by the facts that collaborative practice is well established in some provinces but is still developing in others and that not all family law disputes are amenable to this sort of intensive, dialogue-based process. The low rates of resolution through arbitration are explained by the different legislative treatment of non-commercial arbitration across Canada and the legal cultures that have developed as a result. In Ontario, arbitration is widely accepted and entrenched in family justice; in British Columbia, however, arbitration has just moved onto the scene as a result of its new family law legislation.

From an access to justice perspective, these numbers suggest that people are better able to afford counsel to manage their cases from start to finish as so few cases wind up being resolved through costly trials. However, you have to be able to afford counsel to begin with to enjoy the luxury of resolution other than by trial, and, as we know from research previously published by the Institute, settlement short of trial is significantly less likely in cases where one or more parties are without counsel than if all parties are represented by counsel.

At the end of the day, these data reflect very well on lawyers’ approach to their clients’ cases. However, clients must still be able to afford the services of counsel or they will, more likely than not, face the trial counsel would have helped them avoid.

A note about the data

The greatest number of responses to this question was received from Alberta (about 28 on average), British Columbia (about 38) and Ontario (about 13); all other provinces and territories yielded 10 or fewer responses. As a result, I have lumped the data together by region in an effort to produce more meaningful numbers, giving responses as follows:

  • North: range of 5 to 6 respondents
  • British Columbia: range 35 to 41
  • Prairies: range 35 to 44
  • Ontario: range 11 to 15
  • Maritimes: range 13 to 16

The survey received no responses from judges and lawyers practicing in Nunavut or Prince Edward Island. A small number of responses were received from Quebec practitioners; I have excluded these responses on the ground that Quebec’s civil law system is not readily comparable with the common law system used throughout the rest of Canada.

This post originally appeared on Access to Justice in Canada.

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Access vs Privacy: A Mounting Rivalry

Wed, 10/22/2014 - 10:00am

By: Ronaliz Veron

PDF Version: Access vs Privacy: A Mounting Rivalry

Case Commented On: Covenant Health v Alberta (Information and Privacy Commissioner), 2014 ABQB 562

Covenant Health v Alberta, 2014 ABQB 562, addresses a difficult power struggle that can develop between government facilities responsible for caring for the elderly, and the family members who question that care. It also examines the conflicting interests that arise when a public health body is asked to disclose records that contain patient data and non-patient information. In navigating the interaction between the Health Information Act, RSA 2000, c H-5 and the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (Freedom of Information Act), Judge Wakeling’s reasons reveal a mounting rivalry between the right to access personal information and the right to privacy. In the end, the Court, after engaging in a balancing exercise, clearly chose to favour privacy rights over access rights.

Facts

Shauna McHarg’s parents are residents of the Edmonton General Continuing Care Centre, which is operated by Covenant Health. Ms. McHarg visited them regularly. However, Covenant Health imposed certain conditions on her visitation rights due to her alleged interference with her parents’ care. Employees of Covenant Health concluded that some of her acts (such as supplementing her parents’ nutritional and fluid intake, attempting to change their medications, and interfering with staff access to the residents’ room) put her parents’ health at risk. The imposed conditions limited her visitations hours, permitted and prohibited certain activities during her visit, and specified the names of Covenant Health representatives with whom she could discuss her parents’ care (at para 3).

In an attempt to challenge the visitation limitations imposed by Covenant Health, Ms. McHarg filed with Covenant Health an access request under s 7(1) of the Freedom of Information Act. She requested access to information relating to “everything and anything that Covenant Health has a record of, relating to me” from November 1, 2009 to April 30, 2011 (at para 5). In response to this request, Covenant Health released to Ms. McHarg parts of its records which were considered responsive to her request and were required by the Health Information Act and the Freedom of Information Act (at para 5). It deleted certain information from some records and disclosed an edited version to Ms. McHarg.

Ms. McHarg filed a complaint under the Freedom of Information Act questioning the lawfulness of Covenant Health’s disclosure and specifically, the information that was withheld. An adjudicator, who was the delegate of the Information and Privacy Commissioner ruled that, (1) the Health Information Act did not apply to any parts of the records that Covenant Health disclosed; and (2) the non-disclosure of certain parts of the records was not justified under the provisions of the Freedom of Information Act. As such, the adjudicator ordered Covenant Health to perform a new search for additional producible records (at para 6). Covenant Health applied for judicial review of this decision.

Issues at Judicial Review

Judge Wakeling was asked to consider three issues:

  • Were Covenant Health’s records referring to Ms. McHarg properly considered to be her parents’ health information (and therefore protected by the disclosure principles of the Health Information Act)? If so, should Covenant Health refuse to disclose this health information? If not, would the disclosure be an unreasonable invasion of her parents’ (or their agent’s) personal privacy pursuant to the Freedom of Information Act?
  • Was some of the information in Covenant Health’s records properly considered “advice, consultations, or deliberations involving officers or employees of a public body”, within the meaning s 24(1)(a) and (b) of the Freedom of Information Act? If so, was Covenant Health’s decision not to disclose this information to Ms. McHarg a lawful exercise of its discretion under s 24(1)?
  • Had Covenant Health properly discharged its duty under s 10(1) of the Freedom of Information Act given that s 10(1) requires a public body to make every reasonable effort to respond to an access request in an open, accurate, and complete manner (at paras 8-13)?

Decision

Issue 1

On the first issue, Justice Wakeling ruled that Covenant Health properly withheld some records that referred to Ms. McHarg because they were properly considered the health information of her parents. Specifically, her parents’ patient charts, files, and a clinical review of appropriate care were all properly withheld. The Court emphasized that “health information” includes “any other information about an individual that is collected when a health service is provided to the individual” (at para 66). Through the use of hypothetical scenarios, the Court further clarified that this phrase includes:

…information about the mental or physical health of others that relate to the physical and mental health of an individual or a health service provided to an individual and is collected when a health service is provided to an individual … (at para 78).

In addition, information about one person may, in certain circumstances, constitute health information of another person. Under s 4(1)(u) of the Freedom of Information Act, personal information, which is health information under the Health Information Act, is considered health information for all purposes (at para 79).

Two questions were considered to examine whether the information about Ms. McHarg constituted health information under the Health Information Act. First, did the information pertain to or could it directly affect the physical and mental health of her parents or a health service provided to them? If so, was this information obtained when Covenant Health provided a health service to her parents? (at para 80).

Both these questions were answered in the affirmative. The information about Ms. McHarg’s conduct had an effect on the physical and mental health of her parents and on the health services they need. Covenant Health concluded that some of Ms. McHarg’s actions (such as feeding them in an unsafe manner and interfering with the provision of health services to them) put her parents’ wellbeing at risk. Limitations on Ms. McHarg’s visitation privileges were put in place to guarantee the proper care for her parents (at para 85).

In this case, Ms. McHarg’s personal information was also the health information of her parents. This brought the disputed information under the protection of s 11(2) of the Health Information Act.

A subset of the remaining information not disclosed to Ms. McHarg included personal information of her parents’ agent under the Personal Directives Act, RSA 2000, c P-6. Disclosing this information would have contravened s 17(1) of the Freedom of Information Act. While the Court recognized that the agent’s decisions affected her parents, it held that the agent is a separate legal entity whose privacy interests require protection (at para 117).

Issue 2

Ms. McHarg also contested Covenant Health’s decision to withhold part of a memorandum from a Covenant Health Vice-President to the Chief Executive Officer and the Board Chair. The disputed passages contain proposed strategies for future dealings with Ms. McHarg and inquiries with regard to sending copies of Covenant Health’s response to Ms. McHarg’s letter to other members of the organization. The Court had to determine if this constituted “advice, consultations, or deliberations” within the meaning of s 24 of the Freedom of Information Act. After quoting dictionary meanings of “consultation” and “deliberation,” the Court was satisfied that it fell within the ambit of a “consultation” (at paras 136-144). The same conclusion was reached with regard to an email between the resident manager and a registered social worker with whom Ms. McHarg has regular communications (at paras 145-147).

Having decided that s 24 applied, Judge Wakeling next had to consider whether Covenant Health lawfully exercised its discretion to refuse to disclose the information. The Court concluded that Covenant Health properly considered Ms. McHarg’s right of access along with the effect of the disclosure on Covenant Health’s future decision-making capacity. The Freedom of Information Act requires a public body to act in good faith, to demonstrate a firm understanding of the competing interests and relevant facts, and to make a reasonable decision. Ms. McHarg was told why her visitation rights were limited. Her interests would not be furthered by being given information about the consultations and deliberations of Covenant Health employees. The Court concluded that the factors supporting non-disclosure outweighed any interests Ms. McHarg has in gaining access to the undisclosed information (at paras 149-153).

Issue 3

With regard to the third issue, the Court held that Covenant Health discharged its duty to make every reasonable effort to assist Ms. McHarg in her access request. Covenant Health released information that was responsive to her request, and it properly withheld certain health and third-party information in compliance with the Health Information Act and the Freedom of Information Act.

Commentary

This case demonstrates the increasing conflict between access and privacy. Open access and protection of privacy appear to be mutually exclusive concepts that are on two opposite sides of the spectrum. When access ascends, privacy seems to wane. In this case, the Court attempted to balance a person’s right to access her own information with the privacy rights of others. In the process of finding the appropriate balance between the two interests, more difficult questions arise. First, do provisions such as s 4(1)(u) of the Freedom of Information Act indicate a legal regime that favours privacy over access? Should protection of “health information” always be a reasonable limitation on a person’s access rights? Is there a danger that certain access requests will be disguised under the name “health information” to justify non-disclosure?

Another issue from an administrative standpoint merits attention. In particular, the Court did not clearly indicate the standard of review it used in its analysis. After quoting Dunsmuir v New Brunswick, [2008] 1 SCR 190 on the difference between the correctness and reasonableness standards, the Court went on to assess the “reasonableness of the adjudicator’s decision” (at para 66). In effect, however, the Court seemed to apply the correctness standard in substituting its own decision for the adjudicator’s. No deference was given to the adjudicator’s ruling, and the decision ultimately hinged on whether one favoured access rights over privacy rights (or vice versa). While the adjudicator’s decision favoured access, the Court clearly favoured privacy. This raises the question of who, as between the Information and Privacy Commissioner and the Court, should be the proper authority performing the balancing exercise?

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Disagreement in the Court of Appeal about the Wisdom of Judicial Economy

Tue, 10/21/2014 - 10:00am

By: Jonnette Watson Hamilton

PDF Version: Disagreement in the Court of Appeal about the Wisdom of Judicial Economy

Cases Considered: Calgary Jewish Academy v Condominium Plan 9110544, 2014 ABCA 279

In this judgement, the Court of Appeal reversed the decision of Justice Adele Kent in Calgary Jewish Academy v Condominium Plan 9110544, 2013 ABQB 134, where she had found the Academy’s lease of a portion of the Condominium Corporation’s land invalid. The Court of Appeal decision is of interest because of the different approaches taken by Justices Clifton O’Brien and Alan Macleod on the one hand, and Justice Brian O’Ferrall in a concurring opinion on the other, and what those different approaches might say about the wisdom of judicial or decisional economy. The case also illustrates (yet again) that no good deed goes unpunished.

The Calgary Jewish Academy, the plaintiff in this matter, and the condominium complex, the defendant, are neighbours on land adjacent to Glenmore Trail. The Academy has operated a school on their land since 1958. In 1978, the City of Calgary made changes to Glenmore Trail that cut off emergency access to the school. Fortunately, the City owned the land adjacent to the school and leased a portion of it to the Academy for use as a parking lot and for emergency access. The lease—the first lease—was for 10 years, and the Academy had an option to renew for a further period of 10 years on the same terms and conditions. The rent was one dollar per year. A caveat claiming an interest in land pursuant to the lease was filed against the City’s land.

In 1989 the city sold the land adjacent to the school to a developer, Statesman. In 1990 Statesman and the Calgary Jewish Academy entered into a new lease—the second lease—on the same terms and conditions as the Academy had with the City. Caveats protecting that second lease were filed against the titles to each of the 16 condominium units.

Shortly afterwards, Statesman asked the Academy to enter into yet another new lease that would be registered against the common property and on the Condominium Plan, rather than against the titles to the individual units. Agreeing to this request when there was nothing in it for them except their reputation as a good neighbour was the Academy’s good deed that would be punished (although in the end, after expending many resources, their punishment was overruled).

The new lease—the third lease—was between the Academy and the Condominium Corporation, whose only board member was Garth Mann, the president of Statesman. A unanimous owners resolution was signed by Mann on April 10, 1991 and Mann provided a letter certifying that the lease was approved by a unanimous resolution of the Condominium Corporation. On April 16 the Court of Queen’s Bench granted an order allowing the third lease to be registered against the Condominium Additional Plan Sheet. The Academy’s caveat protecting its second lease was discharged.

The timing of the third lease and its registration was crucial to the defendant’s argument. Statesman began selling units in March of 1991. Francis became a purchaser of a unit under an agreement for sale in March 1991 and she took possession of the property on April 8. Smith became a purchaser of a different unit under an agreement for sale in January 1991. Any equitable interests they had as purchasers under agreements for sale therefore predated the April 10 unanimous owners resolution and the order to register the third lease.

Justice Kent held that the granting of the third lease was ultra vires the Condominium Corporation because not all of those with an interest in the property—i.e., Francis and Smith with their equitable interests as purchasers under agreements for sale—had approved its execution as required by section 40(2) of the Condominium Property Act, RSA 1980 c C-22 (now section 49 of the Condominium Property Act, RSA 2000, c C-22). Justice Kent held that, because the formalities of the Condominium Property Act were not complied with, the lease was ultra vires the Condominium Corporation. The lease was, in her words, a “nothing” (at para 19).

No member of the Court of Appeal that heard the appeal agreed with Justice Kent. Justices O’Brien and Macleod overturned her decision on narrow grounds that were also based on section 40 of the Condominium Property Act. Justice O’Ferrall relied upon much broader principles of law.

The majority in the Court of Appeal focused on the certificate presented under section 40(4) of the Condominium Property Act, which requires that a certificate under the seal of the corporation stating that the unanimous resolution was properly passed, the lease conforms with the terms of it, and all necessary consents have been given must accompany a lease in order for the registrar to register. Section 40(5) then states that such a certificate is conclusive proof of the facts stated in it. The majority noted (at para 6) that the phrase “conclusive proof” is used in statutes to create an irrebuttable presumption that requires a factfinder to reach a certain conclusion. As a result, the defendant could not challenge the lease based on any of the formalities included in the certificate. Thus, the majority disposed of the appeal in nine short paragraphs.

Justice O’Ferrall’s judgement, concurring in the result, is much longer, although, to be fair, half of his 66 paragraph judgment is given over to a recitation of the facts and the judgement below. While concurring completely with the majority’s reasons (at para 47), Justice O’Ferrall notes that this dispute could have been decided “by applying the fundamental principle of our Torrens system of land titles, namely that purchasers of real property subject to prior dispositions validly made take title subject to those dispositions” (at para 47, citing section 62 of the Land Titles Act, RSA 2000, c L-4). That fundamental principle is, of course, indefeasibility. Justice O’Ferrall also noted that the Court of Appeal has previously held that statutory exceptions to indefeasibility should be interpreted strictly because indefeasibility anchors the Torrens system (at para 49, citing Petro-Canada Inc v Shaganappi Village Shopping Centre Limited, 1990 ABCA 261 (CanLII), (1991), 109 AR 237 (CA)).

How does the indefeasibility principle apply in this case? That’s where things get tricky. Section 60(1) of the Land Titles Act essentially says that the registered owner of land holds it subject to the encumbrances, liens, estates and interests that are endorsed on the certificate of title. The problem here was that the third lease was only registered against the common property by being endorsed on the Condominium Additional Plan Sheet on April 17, 1991, well after Francis and Smith had acquired their interest in the land. The certificate of title that they saw before and at the time of their purchase was for the land on which the condominiums were being built, a certificate of title that showed caveats for both the first and second leases.

That set of facts led Justice O’Ferrall to apply the indefeasibility principle—and not specific provisions of the Land Titles Act—less than straight-forwardly. According to Justice O’Ferrall, compliance with section 40 of the Condominium Property Act was not necessary because the Academy’s lease with the Condominium Corporation was “merely the substitution of a new party to a prior disposition, a novation, so to speak” (at para 52). Therefore, section 40 of the Condominium Property Act was not engaged (at para 60). Section 40 only applied to leases of the common property by the Condominium Corporation and, according to Justice O’Ferrall’s reasoning, no lease was granted by the Condominium Corporation. Why not? Because all that the Condominium Corporation owned or could own was the reversion (at para 55). On this point, Justice O’Ferrall’s reasoning is reminiscent of the common law’s nemo dat doctrine, i.e., that no one can give what they do not have.

This reasoning emphasizes the first lease. Because that portion of the common property required for the Academy’s parking lot and emergency access had been leased to the Academy long before the Condominium Corporation or its developer had taken title to the property and a caveat claiming an interest under the first lease was noted on the certificate of title shown to the condominium unit owners (at para 54), no lease was granted by the Condominium Corporation. Justice O’Ferrall found that the purchasers Francis and Smith had notice that some of the lands on which the condominium was being built were leased to the Academy. The caveat of the first lease and the purchasers’ notice of it affecting part of the land the condominium was being built on made the third lease binding on the purchasers. The indefeasibility appears to belong to the Academy’s leasehold estate, regardless of which lease was filed or registered against whichever title to what became the common property and regardless of who appeared to be granting the leasehold estate to the Academy.

Justice O’Ferrall did go on to state that, even if section 40 had to be complied with, it had been. The only parties with a registered interest in the common property at the time the unanimous resolution was passed were Statesman, the owner of all the units, and the Academy (at para 67). The parties with unregistered interests in the common property—Smith and Francis—had either agreed titles might be subject to a lease in favour of the Academy or had notice of the lease and had not acted in time to rescind the agreement (at para 68). Presumably the idea here was that persons with equitable interests in land are affected by notice of a pre-existing interest regardless of which lease was in effect at the relevant time.

It is interesting how each of the judges appear to accept that Francis and Smith, the purchasers of the condominium units, had an interest in land as purchasers under agreements for sale for which the remedy of specific performance would be available. While such status used to automatically result in the acquisition of an interest in land that could support a caveat, it has not done so for quite some time. Today, thanks to Semelhago v. Paramadevan, [1996] 2 SCR 415, 1996 CanLII 209 (SCC) and 1244034 Alberta Ltd. v. Walton International Group Inc. (2007), 422 AR 189, 2008 ABCA 53 (CanLII), there is a test to be applied and met before a purchaser has an interest in land. See the Alberta Law Reform Institute’s Final Report No. 97 on Contracts for the Sale and Purchase of Land: Purchasers Remedies for a summary of the change in the law and the problems it has caused purchasers.

The majority judgement—that subsections 40(4) and (5) of the Condominium Property Act meant what they said (at para 8)—is not only economical in the number of paragraphs and words that it uses, but it is also a good example of judicial economy. The concurring judgement of Justice O’Ferrall is not only longer, but its application of the general principle of indefeasibility seems to rely on common law and equitable principles not found in the Land Titles Act. It seems to be based on fairness, something the Land Titles Act is not noted for promoting (see, most famously, the dissenting judgment of Rinfret J in CPR v Turta, [1954] SCR 427, 1954 CanLII 58 (SCC) at 429-430).

Judicial economyis the phrase that is used to describe the idea of deciding the case on narrow grounds. It is a sort of judicial minimalism, or judicial restraint, i.e., saying no more than necessary to justify an outcome; see Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Harvard University Press, 2001) at 3-4. According to Professor Sunstein (at 4-5), judicial economy has at least three advantageous. First, it reduces the burdens of judicial decisions, especially on multi-member courts. Second, and more importantly, it ensures that fundamental errors are made less frequently and are less damaging. Third, it reduces the risks of unanticipated bad consequences as a result of intervening in a complex system. The second and third reasons seem apropos to this case.

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Ernst v Alberta (Energy Resources Conservation Board): The gatekeeper is alive and well

Mon, 10/20/2014 - 10:45am

By: Shaun Fluker

PDF Version: Ernst v Alberta (Energy Resources Conservation Board): The gatekeeper is alive and well

Cases Considered: Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285

This comment adds to the earlier post by Martin Olszynski (here) on the Ernst litigation against Alberta Environment, the Alberta Energy Regulator/Energy Resources Conservation Board (AER/ERCB) and Encana Corporation concerning allegations of groundwater contamination from hydraulic fracturing. Readers interested in more details on the substance of the litigation will find it here. My focus in this comment is on whether the Alberta Court of Appeal has correctly applied the law on a motion to strike under Rule 3.68 of the Alberta Rules of Court, Alta Reg 124/2010 (the Rules). I argue the Court of Appeal has erred by applying the test too restrictively.

Simply put, Ernst alleges that Alberta Environment and the AER/ERCB owe her a duty of care and are negligent by failing to meet that duty. This is a question of regulatory negligence, and the parameters of the law on this question have been summarized by Professor Olszynski. The AER/ERCB applied to the Court to strike Ernst’s claim for failing to disclose a reasonable cause of action, and for summary judgment. In the first instance, Chief Justice Wittman granted the request to strike back in September 2013 (Ernst v Encana Corporation, 2013 ABQB 537).

The legal issue here is whether the AER/ERCB has met the test to strike under rule 3.68 of the Rules. The rule provides, in part, that the Court may strike any part of a claim where the pleading discloses no reasonable cause of action. It is this particular aspect of rule 3.68 that is at issue here. The AER/ERCB seeks to have the allegations of regulatory negligence struck (as well as a Charter argument) on the basis that it owes no private duty of care to Ernst and that the AER/ERCB is immune from liability for any acts done in the circumstances by reason of the statutory provisions of section 43 in the Energy Resources Conservation Act, RSA 2000, c E-10 (now repealed but in force at the relevant time). The onus or burden of proof lies on the AER/ERCB to establish that Ernst has failed to disclose a reasonable cause of action against it.

Rule 3.68 (and its predecessor) has attracted its share of commentary from Alberta courts over the years, no doubt in part because the consequences of its application can be severe. Judge Fradsham provides a good summary of the case law in his Annotated Rules of Court (Carswell, 2012) at pages 171 to 199. The overall sense of the jurisprudence – the guiding rules if you like – is that the test to be met by an applicant in a motion to strike for want of a cause of action is high, onerous and stringent. A court hearing a motion to strike should read the impugned pleadings generously and exercise caution. A claim should not be struck unless it is hopeless. Only those actions where are certain to fail should be struck. Pleadings should not be struck unless it is beyond a reasonable doubt that the plaintiff cannot succeed. The motion to strike is not the appropriate venue to decide difficult or novel questions of law.

In Ernst the Court of Appeal does not cite any of these Alberta cases, but rather points to the 2011 Supreme Court of Canada decision in R v Imperial Tobacco Canada Limited, 2011 SCC 42, where at paras 17 to 26 the Supreme Court sets out the test to be met for a motion to strike claims for the failure to disclose a reasonable cause of action. Surprisingly in Ernst the Court of Appeal only cites paragraphs 19 to 21 from Imperial Tobacco. I say surprisingly because the Supreme Court lays out the test in paragraph 17 of Imperial Tobacco:

This Court has reiterated the test on many occasions.  A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: Odhavji Estate v. Woodhouse, 2003 SCC 69 (CanLII), [2003] 3 S.C.R. 263, at para. 15; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 980.  Another way of putting the test is that the claim has no reasonable prospect of success.  Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial: see, generally, Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 (CanLII), [2007] 3 S.C.R. 83; Odhavji Estate; Hunt; Attorney General of Canada v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735.

At paragraph 14 in the Ernst decision, the Court of Appeal recites paragraphs 19 to 21 of Imperial Tobacco which read more like the underlying policy to me than the actual test. More problematically I think, the Court goes from these policy considerations to declaring that the test to strike a claim for failing to disclose a reasonable cause of action under rule 3.68 has evolved from its earlier iterations (at para 15) to now being “whether there is any reasonable prospect that the claim will succeed, erring on the side of generosity in permitting novel claims to proceed” (at para 14).

The Court of Appeal seems to rely on Imperial Tobacco to suggest the test to strike has evolved and that it is no longer helpful to ask whether it is beyond a reasonable doubt that the plaintiff cannot succeed, that perhaps the test is not as onerous and stringent as it used to be. I don’t read paragraphs 17 to 26 in Imperial Tobacco to have changed the law on this point, and certainly not in any substantive way.

It seems to me the Court of Appeal did not require the AER/ERCB to meet a high and onerous test, and thus has erred in its application of the law under rule 3.68. There would appear to be a number of arguable points in the Ernst claim – regulatory negligence under the common law being one of them. The Court may be skeptical about the claim, but that is not a lawful basis upon which to strike it. With respect, I think both Alberta courts which have heard this application have focused too much attention on the merits of the Ernst claim rather than on whether the AER/ERCB has satisfied the test to strike under rule 3.68.

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Ernst v Alberta (Energy Resources Conservation Board): The gatekeeper is alive and well

Mon, 10/20/2014 - 10:00am

By: Shaun Fluker

PDF Version: Ernst v Alberta (Energy Resources Conservation Board): The gatekeeper is alive and well

Cases Considered: Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285

This comment adds to the earlier post by Martin Olszynski (here) on the Ernst litigation against Alberta Environment, the Alberta Energy Regulator/Energy Resources Conservation Board (AER/ERCB) and Encana Corporation concerning allegations of groundwater contamination from hydraulic fracturing. Readers interested in more details on the substance of the litigation will find it here. My focus in this comment is on whether the Alberta Court of Appeal has correctly applied the law on a motion to strike under Rule 3.68 of the Alberta Rules of Court, Alta Reg 124/2010 (the Rules). I argue the Court of Appeal has erred by applying the test too restrictively.

Simply put, Ernst alleges that Alberta Environment and the AER/ERCB owe her a duty of care and are negligent by failing to meet that duty. This is a question of regulatory negligence, and the parameters of the law on this question have been summarized by Professor Olszynski. The AER/ERCB applied to the Court to strike Ernst’s claim for failing to disclose a reasonable cause of action, and for summary judgment. In the first instance, Chief Justice Wittman granted the request to strike back in September 2013 (Ernst v Encana Corporation, 2013 ABQB 537).

The legal issue here is whether the AER/ERCB has met the test to strike under rule 3.68 of the Rules. The rule provides, in part, that the Court may strike any part of a claim where the pleading discloses no reasonable cause of action. It is this particular aspect of rule 3.68 that is at issue here. The AER/ERCB seeks to have the allegations of regulatory negligence struck (as well as a Charter argument) on the basis that it owes no private duty of care to Ernst and that the AER/ERCB is immune from liability for any acts done in the circumstances by reason of the statutory provisions of section 43 in the Energy Resources Conservation Act, RSA 2000, c E-10 (now repealed but in force at the relevant time). The onus or burden of proof lies on the AER/ERCB to establish that Ernst has failed to disclose a reasonable cause of action against it.

Rule 3.68 (and its predecessor) has attracted its share of commentary from Alberta courts over the years, no doubt in part because the consequences of its application can be severe. Judge Fradsham provides a good summary of the case law in his Annotated Rules of Court (Carswell, 2012) at pages 171 to 199. The overall sense of the jurisprudence – the guiding rules if you like – is that the test to be met by an applicant in a motion to strike for want of a cause of action is high, onerous and stringent. A court hearing a motion to strike should read the impugned pleadings generously and exercise caution. A claim should not be struck unless it is hopeless. Only those actions where are certain to fail should be struck. Pleadings should not be struck unless it is beyond a reasonable doubt that the plaintiff cannot succeed. The motion to strike is not the appropriate venue to decide difficult or novel questions of law.

In Ernst the Court of Appeal does not cite any of these Alberta cases, but rather points to the 2011 Supreme Court of Canada decision in R v Imperial Tobacco Canada Limited, 2011 SCC 42, where at paras 17 to 26 the Supreme Court sets out the test to be met for a motion to strike claims for the failure to disclose a reasonable cause of action. Surprisingly in Ernst the Court of Appeal only cites paragraphs 19 to 21 from Imperial Tobacco. I say surprisingly because the Supreme Court lays out the test in paragraph 17 of Imperial Tobacco:

This Court has reiterated the test on many occasions.  A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: Odhavji Estate v. Woodhouse, 2003 SCC 69 (CanLII), [2003] 3 S.C.R. 263, at para. 15; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 980.  Another way of putting the test is that the claim has no reasonable prospect of success.  Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial: see, generally, Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 (CanLII), [2007] 3 S.C.R. 83; Odhavji Estate; Hunt; Attorney General of Canada v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735.

At paragraph 14 in the Ernst decision, the Court of Appeal recites paragraphs 19 to 21 of Imperial Tobacco which read more like the underlying policy to me than the actual test. More problematically I think, the Court goes from these policy considerations to declaring that the test to strike a claim for failing to disclose a reasonable cause of action under rule 3.68 has evolved from its earlier iterations (at para 15) to now being “whether there is any reasonable prospect that the claim will succeed, erring on the side of generosity in permitting novel claims to proceed” (at para 14).

The Court of Appeal seems to rely on Imperial Tobacco to suggest the test to strike has evolved and that it is no longer helpful to ask whether it is beyond a reasonable doubt that the plaintiff cannot succeed, that perhaps the test is not as onerous and stringent as it used to be. I don’t read paragraphs 17 to 26 in Imperial Tobacco to have changed the law on this point, and certainly not in any substantive way.

It seems to me the Court of Appeal did not require the AER/ERCB to meet a high and onerous test, and thus has erred in its application of the law under rule 3.68. There would appear to be a number of arguable points in the Ernst claim – regulatory negligence under the common law being one of them. The Court may be skeptical about the claim, but that is not a lawful basis upon which to strike it. With respect, I think both Alberta courts which have heard this application have focused too much attention on the merits of the Ernst claim rather than on whether the AER/ERCB has satisfied the test to strike under rule 3.68.

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The Debate over the Charter’s Reach Continues: A Question Regarding Free Expression at Airports

Fri, 10/17/2014 - 10:00am

By: Sarah Burton

PDF Version: The Debate over the Charter’s Reach Continues: A Question Regarding Free Expression at Airports

Cases Considered: The Calgary Airport Authority v Canadian Centre for Bio-Ethical Reform, 2014 ABQB 493

In The Calgary Airport Authority v Canadian Centre for Bio-Ethical Reform, 2014 ABQB 493 (“CAA v CCBR”), Chief Justice Wittmann granted an interim injunction prohibiting an anti-abortion group from protesting at the Calgary International Airport. Separate and apart from the polarizing subject-matter, this case is interesting because it raises some basic Charter questions that stubbornly refuse to be settled. Despite raising interesting questions regarding the reach of the Charter to quasi-governmental entities and the meaning of public property, the Court did not provide any answers at this stage. Given the nature of an interim injunction application, Chief Justice Wittmann was only asked to determine if the matters raised “serious issues to be tried” – a decision he had little difficulty making. Even without final answers though, this decision still merits attention. Not only are the issues themselves thought-provoking, the parties clearly viewed the application as one of massive importance, and accordingly prepared forceful arguments. At the very least, Chief Justice Wittman’s direction that the matter move expeditiously via case management signals that the Court will be providing a substantive answer to these questions in the not-too-distant future.

Facts

On three dates between 2011 and 2013, members of the anti-abortion group Canadian Centre for Bio-Ethical Reform (“CCBR”) staged protests in the Calgary Airport’s arrival and departure areas. The demonstrations featured approximately 10 members of CCBR, some of whom were holding large graphic signs of aborted foetuses. The demonstrators attempted to hand out pro-life literature and to engage passersby in conversations about abortion (at para 22). The Calgary Airport Authority (“the CAA”) received various complaints about the demonstrations (at para 23).

  • The first demonstration resulted in the protesters being relocated to facilitate pedestrian traffic. However, the CCBR protesters would not move to the area designated by the CAA (at para 24).
  • During the second demonstration, the CAA issued the protesters tickets under the Trespass to Premises Act, RSA 2000, c T-7 (“TPA”). The Calgary Policy then issued summons for contravening the TPA. The CCBR protesters were acquitted at trial (see R v Booyink, 2013 ABPC 185 (blogged about here)). Judge Fradsham relied on an exception in the TPA to conclude that the protesters, who were acting on legal advice, “acted under a fair and reasonable supposition that [they] had a right to do the act complained of” (TPA, 8). Alternatively, drawing on case law regarding freedom of expression in other Canadian airports, Judge Fradsham concluded that CCBR’s actions were protected by s. 2(b) of the Charter, and that the infringement was not justified by s. 1.
  • At the third demonstration, CCBR refused to leave the Airport when the CAA asked them to do so. The Calgary Police were called, but advised the CAA that they could not remove the demonstrators without a court order, unless the activities were violent or threatened violence.

After the third event, the CAA moved forward with an action seeking, inter alia, a permanent and interlocutory injunction banning CCBR protests on their premises. Soon after, the CAA brought an interlocutory injunction application pending final resolution of the action.

The Decision

Chief Justice Wittman granted the CAA’s application after applying the well-known three-part test for an interim injunction, as articulated in RJR MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311. I have outlined the salient points raised under each stage of the test below.

  1. Is there a serious issue to be tried?

The CAA satisfied Chief Justice Wittman that there was a serious issue to be tried, namely the correct characterization of CCBR’s conduct (a trespass or a constitutional exercise of free expression). In challenging this finding, the CCBR launched several interesting but ultimately unsuccessful arguments.

First, it argued that the issue was res judicata in light of Judge Fradsham’s acquittal in Booyink. As outlined above, Booyink was a prosecution under the TPA resulting from the second of the three CCBR protests. This argument passed the first two stages of the issue estoppel test – the issue determined was fundamental to the prior proceeding, and that proceeding was final. Ultimately, Chief Justice Wittman rejected the argument because it failed to meet the final hurdle – neither the CAA nor CCBR (nor their privies) were the same in both actions (at para 63). He noted, however that while not binding, Judge Fradsham’s “thorough analysis and findings [in Booyink] may be persuasive authority for this Court” (at para 64).

Second, CCBR argued that its actions were shielded by the Charter because s. 2(b) protects the right to expression on all public, government-owned property whether or not the CAA is “government”. Chief Justice Wittman rejected CCBR’s claim that this raised no serious issue. To do so, he drew on the recent (and somewhat controversial) decision of R v SA, 2014 ABCA 191 (ABlawg post forthcoming; see here and here for posts on earlier decisions in SA). Specifically, the ABCA held in R v SA that while government property is “public”, this does not create an automatic entitlement to unlimited access and protection under the Charter (SA at paras 91-97). Public ownership does not necessarily equate to public rights of use (CAA v CCBR at para 74). Therefore, CCBR’s entitlement to Charter protection while on government property raised a serious issue.

Lastly, CCBR argued that the Charter protected their protest because the CAA was either government itself, or if not, was performing a government activity. This argument raised an entire body of case law dedicated to the application of the Charter to entities that fall on a spectrum of government control, authority, or functions. While the CCBR emphasized the government mandate, objectives, and activities of the CAA, the CAA countered with affidavit evidence painstakingly outlining its relationship with (and emphasizing its independence from) the federal government. Chief Justice Wittman declined to wade into the debate, but held that the Charter application issue raised a serious issue to be tried (at para 87).

If the Charter indeed applied, Chief Justice Wittman held that application of s. 2(b) raised a serious issue to be tried (at para 88).

  1. If the injunction is not granted, will the plaintiff suffer irreparable harm?

Chief Justice Wittman accepted the CAA’s evidence of irreparable harm. The CAA argued, among other things, that CCBR’s actions disrupted passenger flow, created safety risks, interfered with its ability to fulfill its mandate and contractual obligations, and negatively impacted its reputation (at paras 91, 92). CCBR attempted to undercut these arguments by emphasizing that core Airport functions (including safe air travel, Airport services, systems and operations) were not disturbed. The Court accepted that irreparable harm can occur despite the maintenance of these core functions (at para 94).

  1. Who does the balance of convenience favour?

Chief Justice Wittman was asked to balance the CAA’s right to govern use of its property with the right of demonstrators to express their views (at para 99). Ultimately, the balance of convenience favoured the CAA. While emphasizing that the content of CCBR’s message did not impact his decision, Chief Justice Wittman was guided by the fact that it would be able to express its views through other means until the case was finally determined.

As a condition to granting the application, Chief Justice Wittman ordered that the litigation proceed to trial or other resolution “with reasonable dispatch” (at para 100). To this end, he appointed a case management judge to oversee the action, and invited CCBR to apply to vary this injunction if the CAA failed to proceed with its case at a reasonable pace.

Discussion: What is the Future of Freedom of Expression in Canadian Airports?

From an academic perspective, this decision is intriguing, but nonetheless unsatisfying – one cannot help but notice that none of the important questions raised in it were answered. Of course, this is entirely appropriate for an interim injunction application, where it would be incorrect to move any further than determining that the facts and law raise “serious issues to be tried”. Thus, while inconclusive, interested parties will have to wait for another day to see how the Court finally determines this contentious dispute. In the meantime however, it is possible to use what is known about the case, the Booyink decision, and s. 2(b) jurisprudence to make some predictions about what this final determination will bring. My thoughts on this are outlined below.

A. The CAA Faces an Uphill Battle that it is not Subject to the Charter

As the CAA has undoubtedly realized by now, banning unwanted demonstrators from the Airport is a substantially more difficult task than it originally seemed. The CAA may go about its daily functions as a private landlord, but an inextricable link between air transport and government control complicates its relationship with the Canadian public. To clarify this area, the CAA has chosen to focus on ousting the Charter’s application entirely. While this is a wise strategy, it is undoubtedly an uphill battle. In order to successfully argue that they are not subject to the Charter, the CAA will either have to cleverly distinguish or completely overturn some forceful existing precedents.

To explain, the CAA’s most daunting challenge will be distinguishing the Supreme Court of Canada decision Committee for the Commonwealth of Canada v Canada, [1991] 1 SCR 139, 1991 CanLII 119 (SCC) [Commonwealth]. Commonwealth held that freedom of expression protected a political group’s freedom to hand out pamphlets in a Montreal airport terminal. Should the Charter apply, the CAA will have a very difficult time distinguishing this on-point, detailed, and impassioned precedent on the breadth of freedom of expression in airports.

However, the Court in Commonwealth basically assumed the Charter applied to the airport because it was government property – it failed to undertake any detailed analysis on this point. Thus, by challenging the Charter’s application, the CAA may be able to circumvent Commonwealth entirely by relying on more recent case law about the application of the Charter to quasi-government entities and distinguishing the now-defunct assumption that all activity on government property is protected by the Charter.

While this is an interesting strategy, it remains a precarious argument. The last 20 years of case law on Charter application is broad and emphasizes that the Charter cannot simply be ousted through the government delegating its duties to non-government agencies (see, for example Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624, 1997 CanLII 327 (SCC), at para 42; Pridgen v University of Calgary, 2012 ABCA 139 at paras 78 – 98).

What’s more, in order to succeed the CAA will have to confront Judge Fradsham’s extensive and thorough discussion on this issue (and the case law) in Booyink. Judge Fradsham plainly concluded that the Charter applied to the CAA because the CAA was either government itself, or even if not, it carried out a government function (Booyink at paras 109, 114). While the CAA dodged a bullet when it successfully argued that its case was not res judicata in light of Booyink, it cannot expect to entirely avoid Judge Fradsham’s findings. Even Chief Justice Wittman stated that Judge Fradsham’s “thorough analysis and findings [in Booyink] may be persuasive authority for this Court” (at para 64).

As such, if the CAA is going to succeed in arguing that the Charter does not apply to its actions, it must compel the Court of Queen’s Bench to reach a different conclusion than Judge Fradsham when he was faced with the same question on largely overlapping facts. This will be no small feat, as Courts are loathe to reach inconsistent conclusions out of respect for the administration of justice.

B. If the Charter Applies, the CCBR will Likely Succeed in Establishing a s. 2(b) Breach

There is little doubt that, should the Charter apply, the CCBR will be able to establish a s. 2(b) Charter breach. CCBR’s protests are a non-violent attempt to convey meaning with clear expressive content, bringing it prima facie within s. 2(b)’s protections.

Furthermore, it is unlikely that the location of this expression will remove that prima facie protection. While most people would not traditionally associate an airport as an arena where public expression is fostered, Commonwealth likened airport terminals to “modern boulevards, extensions of Main Street” in firmly establishing that “the non-security zones within airport terminals…are properly regarded as public arenas” (Commonwealth at pp. 205, 206).

The Supreme Court’s more recent discussion regarding freedom of expression on public buses also suggests that CCBR would easily establish a s. 2(b) infringement. CCBR seeks freedom from undue state interference, not the creation of a sphere for their expression; the expressive activity in question does not impede the primary function of airports; and the expressive activity does not undermine the values underlying freedom of expression (see Greater Vancouver Transportation Authority v Canadian Federation of Students, 2009 SCC 31 at paras 29, 35, 42 – 46).

C. The CAA Must Mount a Forceful Argument on Section 1

In Booyink, Judge Fradsham had little time for the Crown’s attempt at a s. 1 justification, finding no evidence that the CAA’s actions were related to a pressing and substantial objective (Booyink at para 142). He noted that the CAA’s actions were most likely aimed at controlling the content (rather than the consequences) of the defendant’s expression, as there was no evidence that the defendants were harassing passers-by or obstructing traffic (Booyink at para 142, 143).

In the present case, the CAA has wisely heeded Judge Fradsham’s words. They have not surprisingly submitted affidavit evidence stating that the CCBR protesters were, among other things, harassing people, obstructing traffic, creating safety risks, and preventing the CAA from fulfilling its mandate. Whether this evidence will convince the Court of Queen’s Bench remains to be seen, but it clearly demonstrates that the CAA is ready to go to battle justifying its actions in a s. 1 analysis. Given the risks inherent in its Charter application and s. 2(b) arguments, this is a wise choice.

Presuming that the CAA’s evidence establishes a pressing and substantial objective, the debate will turn to proportionality and an examination of the CAA’s various attempts to relocate and ultimately remove the protesters. If its evidence regarding harassment and passenger obstruction is accepted, the CAA will likely succeed in arguing a rational connection between its actions and the protection of passengers from harassment, traffic hindrances and (perhaps) general safety.

If, as Judge Fradsham suggested, the CAA’s actions sought to control the content of CCBR’s messaging, a Court will closely examine whether those actions were minimally impairing. The answer to that question (as well as the proportionality inquiry) will likely depend on an examination of the exact location of the relocation zone the CAA initially proposed. If it was a “reasonable” relocation zone, the CCBR’s refusal to cooperate may help the CAA justify its ultimate resort to trespass legislation. Conversely, if the attempted relocation zone was unfair or unreasonable, the CAA will have a difficult time demonstrating that its later decision to charge the protesters with trespassing was proportional and minimally impairing.

Conclusion

This case, and ones like it, tests the limits on free expression in Canada and the reach of the Charter to entities that are not clearly public or private. Given the parties involved and their respective interests at stake, settlement appears unlikely in this case. Thankfully, Chief Justice Wittman directed that the matter proceed expeditiously via case management so answers to the serious issues raised in this application will be provided in the near future.

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Revisiting Regulatory Negligence: The Ernst Fracking Litigation

Wed, 10/15/2014 - 10:00am

By: Martin Olszynski

PDF Version: Revisiting Regulatory Negligence: The Ernst Fracking Litigation

Cases Considered: Ernst v. Alberta (Energy Resources Conservation Board), 2014 ABCA 285

On September 15, 2014, the Alberta Court of Appeal released its decision in Ernst v. Alberta (Energy Resources Conservation Board). Ms. Ernst owns land near Rosebud, Alberta, and is suing EnCana Corporation, the ERCB (now the Alberta Energy Regulator) and Alberta Environment (now Alberta Environment and Sustainable Resources Development) for negligence in relation to the alleged contamination of her groundwater as a result of EnCana’s hydraulic fracturing (fracking) activities in the area. The ERCB (but not Alberta Environment – a point further discussed below) applied to have the action against it struck. The case management judge, Chief Justice Wittmann, agreed that this particular negligence claim was not supported in law: he found that the ERCB owed no private law duty of care to Ms. Ernst and that, in any event, any claim was barred by s 43 of the ERCB’s enabling legislation (see Ernst v. EnCana Corporation, 2013 ABQB 537). The Alberta Court of Appeal (Justices Côté, Watson and Slatter, writing as “The Court”) dismissed Ms. Ernst’s appeal. This post considers the regulatory negligence aspects of both the Queen’s Bench and Court of Appeal decisions.

Canadian Negligence Law in a Nutshell

Under Canadian tort law, a plaintiff has to prove five elements in order to establish negligence: (1) that the defendant owed the plaintiff a duty of care; (2) that the defendant breached the applicable standard of care; (3) that the plaintiff suffered damages; (4) that these damages were the result of the defendant’s breach (causation); and (5) that the resulting damages are not too remote.

The Ernst decisions are concerned only with the first and most challenging element (especially in the context of an action for regulatory negligence): whether the ERCB owed Ms. Ernst a duty of care. The applicable test is the Anns/Cooper test, which the Supreme Court of Canada described in Cooper v. Hobbart, 2001 SCC 79 as follows:

[30] …At the first stage of the Anns test, two questions arise:  (1) was the harm that occurred the reasonably foreseeable consequence of the defendant’s act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here?  The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant.  These factors include questions of policy, in the broad sense of that word.  If foreseeability and proximity are established at the first stage, a prima facie duty of care arises.  At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care. [emphasis in original]

With respect to proximity, the Supreme Court has stated that this “may involve looking at expectations, representations, reliance, and the property or other interests involved” (Cooper at para 34). In the specific context of regulatory negligence, the Supreme Court has recently distinguished between two situations: (1) where the alleged duty of care is said to arise explicitly or by implication from the statutory scheme (which the Court admits will be rare); and (2) where the duty arises from interactions between the claimant and the regulatory authority (most relevant here) (see R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42). In all cases, the driving determination is whether “it is just and fair having regard to that relationship [between plaintiff and defendant] to impose a duty of care in law upon the defendant” (Cooper at para 34).

As for the second, “residual policy considerations stage,” the Supreme Court in Hill v. Hamilton?Wentworth Regional Police Services Board, 2007 SCC 41 made clear that “even if a potential conflict could be posited, that would not automatically negate the prima facie duty of care… A prima facie duty of care will be negated only when the conflict, considered together with other relevant policy considerations, gives rise to a real potential for negative policy consequences…  a duty of care in tort law should not be denied on speculative grounds” (at para 43).

The Ernst Decisions

Perhaps the most striking aspect of both decisions is how much space is devoted to an issue that is technically obiter. The analysis of the ERCB’s duty of care seems unnecessary in light of both courts’ conclusion that any claim against the ERCB was barred by s 43 of the Energy Resources Conservation Act, RSA 2000, c. E-10 in any event (since repealed and replaced with s 27 of the Responsible Energy Development Act, SA 2012, c. R-17.3).

There are, of course, numerous good reasons why a court might choose to address all of the issues in a case such as this one, not least of which is the fact that there is another regulator – Alberta Environment – being sued for negligence here, one which has not applied to have the action against it struck. Perhaps Chief Justice Wittmann and the Court of Appeal wanted to make clearer to counsel the framework within which the action against Alberta Environment will be assessed and give some sense of their predisposition to such actions. Along these lines, it is reasonable to suggest that the Court of Appeal’s decision to state explicitly that which was not at issue before it, including “whether the pleading against the defendant Alberta could be struck as being frivolous or vexatious” (Ernst v. Alberta at para 9), reflects judicial scepticism.

As for the duty of care analysis, although the outcome is the same in both decisions the analysis is actually quite different. Chief Justice Wittmann begins and ends his analysis at the first stage of the Anns/Cooper test, which as noted is concerned with foreseeability of harm and proximity. Situating Ms. Ernst’s relationship with the ERCB as more like that between the unsuccessful investors and the Registrar of Mortgage Brokers in Cooper than the miners to whom government inspectors were held to owe a duty in Fullowka v Pinkerton’s of Canada Limited, 2010 SCC 5 (CanLII), the Chief Justice concluded that there was “no sufficient proximity to ground a private duty. Nor was there a relationship established between Ernst and the ERCB outside the statutory regime which created a private duty” (Ernst v. EnCana at para 28). It was thus “unnecessary to determine whether the harm to Ernst was foreseeable. It [was] also unnecessary to consider the second part of the Anns test, that is, whether there would be any policy reason, assuming proximity, to [not] impose a private duty” (ibid, at para 29).

The Court of Appeal, for its part, seemed to jump immediately to the second, “residual policy considerations” stage, laying out a series of reasons reflected in the jurisprudence as to why any prima facie duty of care owed by regulators is usually negated. These include the difficulty of distinguishing between policy and operational decisions (the former being immune from liability), the potential for conflict between private and public duties, and indeterminacy problems (Ernst v. Alberta at para 17). In the Court of Appeal’s view, many of these considerations were relevant to the case at bar:

[18]  Forcing the Board to consider the extent to which it must balance the interests of specific individuals while attempting to regulate in the overall public interest would be unworkable in fact and bad policy in law. Recognizing any such private duty would distract the Board from its general duty to protect the public, as well as its duty to deal fairly with participants in the regulated industry. Any such individualized duty of care would plainly involve indeterminate liability, and would undermine the Board’s ability to effectively address the general public obligations placed on it under its controlling legislative scheme.

Bearing in mind the teaching from Hill, one might have expected the following paragraphs to elaborate on these otherwise fairly generic concerns. The Court of Appeal, however, switched gears entirely and simply concluded that Chief Justice Wittmann “correctly applied the test for determining whether the Board owed a private law duty of care to the appellant” (Ernst v. Alberta at para 19). This conclusion is jarring because, as noted, the Chief Justice did not even engage the second stage. Rather, he focused on proximity and, adopting what could be called the “spectrum” approach applied by Justice Cromwell in Fullowka, concluded that the interactions between Ms. Ernst and the ERCB were more like those of the unsuccessful plaintiffs in Cooper than those of the miners in Fullowka. The Court of Appeal actually dismissed Fullowka as an “anomaly” (Ernst v. Alberta at para 16), which if anything suggests that they didn’t agree with the Chief Justice’s approach at all.

Discussion

As noted by Professor Feldthusen, “[d]ecoding the law governing the negligence liability of statutory public authorities in Canada has always been a challenge” (see “Simplifying Canadian Negligence Actions Against Public Authorities – or Maybe Not” (2012) Tort L Rev 176 at 176). Indeed, Professor Feldthusen suggests that it may be time to revisit the basis upon which liability for regulatory negligence will be founded (ibid at 184). Certainly, recent events like the Lac Megantic disaster and the Mount Polley spill do point to something rotten within the regulatory state (University of Ottawa Professor Jennifer Quaid provides a compelling explanation here) to which the common law could potentially respond.

The Ernst case may or may not be the right one for such a discussion. At the very least, however, it bears recalling that the Supreme Court’s decision in Cooper is valued first and foremost for bringing some much needed transparency to the duty of care analysis. It would be preferable, then, for the courts to apply the Anns/Cooper test in a predictable, sequential manner – something that both the Chief Justice and the Court of Appeal failed to do here.

As noted above, the first step is to determine foreseeability of harm. Contrary to the Court of Appeal’s assertion (Ernst v. Alberta at para 16), this is actually something that most regulatory negligence plaintiffs have very little difficulty establishing (see e.g. Cooper at para 42, Hill at para 32, Imperial Tobacco at para 57). It is precisely because foreseeability represents a relatively low bar that finding a prima facie duty of care requires both foreseeability and proximity. As in Cooper, then, it seems reasonably foreseeable that Ms. Ernst would suffer some harm if the ERCB were negligent in carrying out its duties, especially with respect to compliance and enforcement.

With respect to proximity and the second situation through which a duty of care may arise (Imperial Tobacco, above), the “spectrum of regulatory relationships” approach applied by Justice Cromwell in Fullowka and adopted by Chief Justice Wittmann may be a good place to start, but it also has the potential to mask important distinctions. For example, although there were differences in the relationship and interactions between the plaintiffs and the relevant public authorities in Cooper and Hill (where police officers were held to owe a duty of care to their suspects), a fair reading of Hill suggests that an equally important factor was the very significant personal interest (i.e. liberty) at stake (see Hill at paras 34 – 38). Arguably, Ms. Ernst’s interest in the safety of her water supply is more like the interest in Hill than in Cooper – which was a case for pure economic loss – where “[p]roximity and foreseeability are heightened concerns” (Imperial Tobacco at para 42). Chief Justice Wittmann himself seems to recognize that further analysis is required when he states that a private duty cannot arise simply because an individual communicates with a regulator (Ernst v. EnCana at para 28).

Turning to the second, “residual policy considerations” stage, it is not obvious to me how owing a private law duty to those individuals particularly vulnerable or susceptible to a regulator’s negligence would be unworkable or create indeterminacy problems. Generally speaking, regulators like the ERCB and Alberta Environment are not monolithic entities – they have branches or sectors that carry out specific functions, including a compliance and enforcement branch. When this branch is engaged, the problem of indeterminacy would seem to be largely resolved: compliance activities are concerned with specific incidents at discrete locations. The Supreme Court’s approach in Hill, which affirmed the existence of a tort of negligent investigation but also recognized the role of the standard of care in mediating the spectre of liability (see paras 54, 58 and 67 – 73) seems perfectly suited for such situations. At the very least, however, counsel for the defendant should have to explain – and the courts should set out in their reasons – the overarching policy considerations that justify negating any prima facie duty of care in the specific instance before them.

The Court of Appeal is certainly correct that there are a number of reasons why a duty of care is not generally placed on a regulator (Ernst v. Alberta at para 17), but it is equally true that sometimes it is, and that regulatory negligence is a recognized tort in Canada.

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Divergence at the Court of Appeal on What Amounts to Unreasonable Decision-making

Thu, 10/09/2014 - 10:00am

By: Shaun Fluker

PDF Version: Divergence at the Court of Appeal on What Amounts to Unreasonable Decision-making

Cases Considered: Hunter v College of Physicians & Surgeons of Alberta, 2014 ABCA 262

In this judgment the Court of Appeal reviews a disciplinary decision made by the College of Physicians & Surgeons of Alberta against one of its physician members. I think the judgment is noteworthy to a broader audience of administrative law scholars and practitioners because of the stark contrast in how the majority and the dissent apply the reasonableness standard to review the College’s decision. The majority judgment written by Justice Slatter and Madam Justice Veldhuis dismisses the appeal by the physician using only 6 paragraphs of reasons to conclude the disciplinary decision is reasonable. The dissenting opinion written by Justice O’Ferrall concludes the College’s decision is unreasonable and in doing so probes much further into the impugned regulatory process and the record in this case. There would appear to be a divergence of views at the Court of Appeal in how to apply the reasonableness standard in judicial review.

The governing legislation here is the Health Professions Act, RSA 2000, c H-7 and the decision in question is a disciplinary decision issued by the Council of the College under sections 87 to 89 of the Act. The physician was found guilty by the Council of ‘unprofessional conduct’ as defined in section 1(1)(pp) of the Act for contravening the College’s Standards of Practice by terminating a physician-patient relationship to pursue a personal relationship with the patient. The physician appealed this finding to the Court of Appeal under the statutory appeal provisions set out in section 90 of the Act, arguing that the personal relationship in question was not of the predatory or exploitive sort contemplated by the prohibition in the Standards of Practice and that entering the relationship did not amount to professional misconduct.

The majority of the Court dismisses this application by observing that judicial deference is owed to disciplinary decisions made by self-regulatory professional tribunals and concludes the Council’s finding of unprofessional conduct in this case was an available outcome given the facts and the law in question (at para 3). In short, the majority concluded there was no reviewable error of law or unreasonable exercise in discretion by the Council.

Justice O’Ferrall agrees that the applicable standard of review here is reasonableness, but he approaches this case from a very different perspective than the majority. Justice O’Ferrall’s reasons include a description of the governing legislative framework, noting in particular (at paras 20 to 24) the relation between the Standards of Practice and the Act as well as making the point that the Council enacts the Standards of Practice under statutory authority. He also provides a detailed description of the facts as determined in the disciplinary hearing process, including a summary of how the relationship between the physician and the patient developed over the years (at paras 25-39). Justice O’Ferrall parts ways with the majority starting at para 58, where he probes into the reasoning provided by the College in its disciplinary decision and undertakes a contextual interpretation of what is meant by ‘personal relationship’ in the Standards of Practice. This investigation leads him to conclude the College erred in its interpretation and application of the Standards of Practice in this case – there was no evidence to conclude the personal relationship here was predatory or exploitive (at para 75). Justice O’Ferrall also notes that the disciplinary proceeding was commenced by an anonymous complainant who refused to be interviewed by the College and moreover that there was no evidence to support a finding that the conduct in question would harm the integrity of the medical profession (at paras 76-77).

Certainly it is not unusual for a dissent to significantly part ways with the majority in an appellate decision, and there is little doubt that consensus in how to administer substantive judicial review remains elusive for the Canadian judiciary despite pronouncements by the Supreme Court of Canada back in 2008 that Dunsmuir v New Brunswick, 2008 SCC 9 was a game-changer and would help to alleviate these difficulties. The troublesome application of the reasonableness standard, in particular, has attracted some scholarly attention – Professor Paul Daly has an article on point forthcoming in the Alberta Law Review (see here).

My initial reaction here was that Justice O’Ferrall is far too intrusive in his review of the College’s disciplinary decision to be consistent with the deferential reasonableness standard of review. And indeed there is very little sense of deference in his reasoning. But on reflection and giving closer consideration to the governing legislative framework, I wonder if perhaps his dissent is the more appropriate approach and outcome for this case. We shouldn’t overlook the fact that the Act provides a physician with the ability to appeal disciplinary decisions to the Court of Appeal without the need to seek leave of the Court, and that the substance of the appeal is not limited to questions of law or jurisdiction (section 90). In the conduct of the appeal, the Court is entitled to make findings of fact based on the record and may quash, confirm or vary the impugned College decision (section 92). These are unusual provisions for a statutory appeal to the Court of Appeal, and on reflection they provide pause for thought on whether the very deferential and brief majority decision in this case is consistent with the role contemplated for the Court by the legislature. Justice O’Ferrall makes reference to these provisions at para 51 but he also cites the earlier Court of Appeal decision in Sussman v College of Alberta Psychologists, 2010 ABCA 300 for authority that the reasonableness standard of review should normally apply in these cases despite the legislative provisions that allow for an intrusive review.

I will conclude this comment by simply suggesting that such widely divergent approaches towards applying the reasonableness standard is not terribly helpful for scholars and practitioners in administrative law charged with either having to advise their clients or instruct their students on what it means to apply the reasonableness standard of review.

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Sentencing in an Unusual Domestic Violence Case

Fri, 10/03/2014 - 10:00am

By: Jennifer Koshan

PDF Version: Sentencing in an Unusual Domestic Violence Case

Cases Considered: R v Hernandez, 2014 ABCA 311

The most recent edition of Eugene Meehan’s Supreme Advocacy newsletter lists R v Hernandez, 2014 ABCA 311, as the Court of Appeal case of the week nation-wide. The case involves a Crown sentence appeal in the domestic violence context. Sadly, domestic violence cases are not uncommon, so what is so remarkable about this case?

First, it involves a female perpetrator. As annual Statistics Canada reports on family violence show, domestic violence is a gendered crime. In the most recent Stats Can report, 80% of all domestic complaints made to police in 2011 were made by women, a number which is consistent over time. At the international level, gender-based violence has been recognized as a form of discrimination against women in documents such as General Recommendation No. 19 to the Convention on the Elimination of All Forms of Discrimination Against Women. But in this case, Luisa Amelia Hernandez was the accused, and the complainant was her former common-law husband.

Second, the case involves unusual facts and charges. Hernandez pled guilty to two offences: intent to cause death or bodily harm through the setting of a trap, and assault with a weapon, to wit, an insulin-filled hypodermic syringe. According to the facts laid out by the Court of Appeal, the complainant served Hernandez with an eviction notice following their separation and refused her request to loan her $1000. The next evening, Hernandez entered the complainant’s home and “set a trap” by pouring oil and placing insulin-filled syringes on the floor. When arriving home, the complainant slipped on the oil but did not fall; if he had, “he likely would have been pricked by an uncapped, exposed needle.” Hernandez then confronted the complainant, again asking him for money, and when he refused she stabbed him in the back of the neck with syringe filled with insulin that she, a nurse, had stolen from her employer. Hernandez told the complainant that the syringe contained insulin and Hepatitis C, and while the latter was not true, it took some time for the complainant to determine that. Hernandez also tried to block the complainant from calling the police. He was eventually taken to the hospital, where he was kept overnight for observation as his blood sugar levels were extremely low (at paras 2-3).

The offence of setting a trap with intent to cause bodily harm is set out in section 247(1) of the Criminal Code, RSC 1985, c C-46. It is one of the more uncommon offence provisions in the Code, and has been subject to little judicial commentary. The only decision I was able to find involving a similar offence – that of knowingly permitting a trap to remain in place on one’s property for the purpose of committing another indictable offence under section 247(3) – is R. v. Legge, 2011 CanLII 5561 (NL PC). In this case, the Newfoundland and Labrador Provincial Court considered a scenario where the accused owned property where numerous marijuana plants were growing, and were surrounded by 100 feet of line connected to fish hooks, with barbed fish hooks attached to branches within the perimeter. A hand written sign close to the plants warned people in very colourful language that if they were caught stealing, their throats would be slit. The Court discussed the history of the “trapping” provisions of the Criminal Code, which have been in place since the time of the first Code in 1892. In rather archaic language, the original provision was aimed at “man-traps”, and did not extend to “any gin or trap usually set or placed with the intent of destroying vermin or noxious animals” (Legge at para 15). (I had to look up the definition of “gin”, which is a trap used for catching animals (as well as a beverage made with juniper berries and a card game)).

In Legge, the Court indicated that it had not been able to find any reported decisions interpreting this provision or its successors, and ascertained the elements of the offence through the process of statutory interpretation (at para 20). Under section 247(1), the Crown must prove that a trap was set, that the accused intended to cause death or bodily harm by doing so, and that the nature of the trap made it likely to cause such harm, even though proof of actual harm is not necessary (at para 21). Different elements are in place for section 247(3), and without getting into the details, the Crown proved all of those beyond a reasonable doubt in Legge.

Hernandez pled guilty to setting a trap, so there was no discussion of the elements of the crime, but they are still important for understanding the gravity of the offence. The penalty for contravening section 247(1) is a maximum of 5 years incarceration, or 10 years if bodily harm is actually caused.

Assault with a weapon is certainly a more common offence, though the particular weapon used in this case was unusual, as were the circumstances in which Hernandez obtained it. Under section 267 of the Criminal Code, this offence has a maximum of ten years or 18 months imprisonment, depending on whether the Crown proceeds by indictment or summarily.

The sentencing judge in Hernandez, Judge L.G. Anderson, imposed a sentence of 6 months incarceration on each offence, to be served concurrently. The Crown appealed on the basis that this sentence was demonstrably unfit. The Albert Court of Appeal agreed with the Crown’s submissions, and increased the sentence to 18 months imprisonment concurrent on each count.

In a decision written by Justice Ellen Picard (Justices Barbara Lea Veldhuis and Russell Brown concurring), the Court noted the principle that appellate courts should be deferential to sentencing courts, interfering only where the original sentence was demonstrably unfit. This high burden will be met where the sentencing judge made an error in principle, failed to consider or underemphasized a relevant factor. As required by section 718.1 of the Criminal Code, the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (at para 5).

One problem with the original sentence, according to the Court of Appeal, was that Judge Anderson failed to give adequate weight to the gravity of the offence, which can be measured by the risks created by the offender’s conduct and their level of responsibility. In this case, it was not only the contents of the needle that caused potential harm to the complainant, but also the serious risks inherent in receiving a “random, aggressive stab” to the back of the neck, near the spine. As a nurse, the accused would have known these risks. And these risks materialized into harms, given the complainant’s low blood sugar levels and his mental stress associated with fear of having contracted Hepatitis C (at paras 7-9). The sentencing judge also gave insufficient weight to the offender’s level of responsibility, in particular the facts that she planned the offence (with a trap and a backup plan if it failed), and stole from her employer to execute her plan. The Court called Hernandez’s conduct “premeditated, cruel, and vindictive”, with her motive elevating her moral culpability (at para 12). She did not have a criminal record, and was given credit for her guilty plea, though the Court questioned whether she was in fact remorseful (at para 13).

The other difficulty with the original sentence noted by the Court of Appeal was that it failed to give adequate weight to the principles of denunciation and deterrence. Domestic violence offences involve a breach of trust, which make specific and general deterrence and denunciation “paramount considerations” (at para 14). Though the Court of Appeal did not cite it, this principle is codified in section 718.2(a)(ii) of the Criminal Code, which stipulates that “evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner” is an aggravating factor for sentencing purposes. Although Judge Anderson recognized that a breach of trust is aggravating, he found that this case did not involve “a vulnerable victim trapped in a dependent relationship.” The Court of Appeal indicated that this characterization was an error based on stereotyping, which improperly diminished the responsibility of the accused (at para 15). The sentencing judge also failed to account for the breach of trust Hernandez committed in using her professional skills and connections to injure her former partner, and placed too much weight on her prospects for rehabilitation.

These difficulties collectively resulted in a sentence that was demonstrably unfit, and as noted, the term of incarceration was increased to 18 months, with credit for time served.

Interestingly, in its list of leave to appeal decisions rendered this week, Supreme Advocacy notes another spousal assault case involving a female accused. In R. v. Kim, 2013 ONSC 4333, the accused’s conviction for assaulting her husband and her 12-month conditional discharge were upheld by the Ontario Supreme Court, sitting as a summary conviction appeal court.  Her applications for leave to appeal to the Court of Appeal and Supreme Court of Canada were dismissed. Two cases do not a trend make, and as argued here, the Hernandez case in particular is quite unusual – which is likely why it was Meehan’s appellate case of the week.

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A ‘Victimless’ Crime Just Lost its Perpetrators

Fri, 09/26/2014 - 10:00am

By: Bryce Tingle

PDF Version: A ‘Victimless’ Crime Just Lost its Perpetrators

Case commented on: Walton v. Alberta (Securities Commission), 2014 ABCA 273

In Walton v. Alberta (Securities Commission), 2014 ABCA 273 (the “Eveready” decision), the Alberta Court of Appeal has just decided the most important insider trading case in recent memory. It may also be the last insider trading case for a long time.

Here is how insider trading happens: a business person in possession of inside information is chatting with friends or family members. Someone asks him how his company is doing and he replies along the lines that, “I can’t really tell you what is going on, but it might be a really good idea to buy some stock in the next month or so.” Maybe he isn’t that discrete. Maybe he actually says, on the golf course or over lunch, “listen, there is a pretty good chance we’re going to be acquired in the next month or two, you might think about grabbing some stock.”

Why does he do this? Well, he might feel responsible: he can help a less well-off family member without giving them something that feels like charity. But it could also be showing-off, doing a favour, of just making himself feel big. We are a species that likes being liked, that likes having people feel grateful to us, and disclosing inside information advances these objects.

It doesn’t hurt that the victims in insider trading are difficult to see. The seller’s decision was freely made; the trade presumably was in its interests. Perhaps the seller decided to sell because she needed the money right away. In any event, the counterparties to an insider trade usually remain forever anonymous. Some corporate law scholars debate whether insider trading should even be against the law, given that it sends valuable pricing signals to the market.

For all of these reasons there is a considerable amount of insider trading in Canada’s markets. One recent study that looked at 1,859 merger and acquisition (M&A) deals in Canada and the U.S. found evidence that roughly 25% of all transactions were accompanied by abnormal trading in the options market during the run-up to the deal announcement. The odds of the trading abnormalities they identified arising by chance were “three in a trillion.” Another study found aberrant trading patterns in the shares of target companies in 41% of deals in the U.S. and 63% in Canada. (America’s superior performance may be due to the fact that America has the strictest insider trading laws in the world, affords a private cause of action against individuals that engage in the practice and seems to have higher rates of prosecutorial success. It also doesn’t hurt that, unlike Canada, American insiders regularly go to jail for increasingly long periods of time.)

The impact of insider trading is material. In testimony to Congress one American scholar noted that, “beginning about 12 days before takeovers or a merger, roughly 30 to 50 percent of the premium that is going to be ultimately paid… is already reflected in the stock’s price…” A 2009 study found that only 49% of leaked deals complete, compared with 72% of non-leaked transactions. Leaked deals also took 70% longer to complete.

Most of us feel that insider trading should be against the law, if only because it doesn’t seem fair for someone to be trading with a massive informational advantage. As well, the best evidence is that vigorous enforcement of insider trading laws significantly reduces the cost of equity for all firms in a market. Unfortunately, insider-trading cases are notoriously difficult to prosecute. Unless one of the parties confesses and turns evidence against the others, or the insider trading is sufficiently organized and consistent that law enforcement authorities can mount a long-term investigation with wiretaps and microphones, there is never any direct evidence.

The instances of alleged insider trading that reach triers of fact are almost always, therefore, decided on the basis of circumstantial evidence: a suspicious trade was made, there is some connection between the buyer of the stock and an insider, there is some reason for the insider to have disclosed the information to the person making the trade. The significance of the Alberta Court of Appeal’s decision in Eveready is that it sets the standards for making this circumstantial case so high that it is difficult to imagine it being met.

The facts in Eveready are typical of insider trading cases. An insider, Holtby, is accused of tipping a wide circle of associates during the run-up to an acquisition of his company, Eveready Inc. His investment advisor admitted to the Commission that he had been tipped and entered into a settlement agreement. Everyone else issued denials and provided alternative explanations for their unusual purchases of Eveready shares. Nearly all of them were found guilty by the Alberta Securities Commission, but let off by the Court of Appeal.

How they got off:

1. A statute that presents challenges – The “insider trading” offense under the Securities Act, RSA 2000, c S-4 (the “Act”) provides in s. 147(2) that someone in a “special relationship” to an issuer commits an offense if she trades. This “special relationship” includes anyone who has learned material, non-public information from someone they know to be an insider (even if this information is communicated second-hand). There can thus be a chain of people in a special relationship connecting an accused to the original insider, like a felonious version of the children’s game “telephone”.

Of course, if no material fact is disclosed, or if the accused didn’t know the information came from an insider, there is no crime. An insider can be prosecuted for “encouraging” others to trade in securities (s. 147(3.1)), but the recipient of this encouragement does not offend the Act if she trades. Thus, the enforcement staff of the Securities Commission must, from circumstantial evidence, prove the trade followed the communication of information by an insider and also prove that the information contained material non-disclosed facts and was not just a vague encouragement to purchase stock. This is difficult to do without wiretaps or email.

The best circumstantial evidence a prosecutor has – the timing of the conversation relative to the trade – is thus nearly valueless. As the Court of Appeal says (at para 29), “even if a certain trading pattern might be consistent with ‘tipping’, it might equally be consistent with merely having been ‘encouraged’.”

2. A high standard of proof – The Court in Eveready articulates the appropriate standard of proof for these cases as being very high: “given the serious consequences of a finding of culpability, clear and cogent evidence should be expected before any particular inference is drawn” (at para 29). In practice, this obviously makes any case based on circumstantial evidence very difficult prove. Inferring “knowledge of a material fact, merely because of opportunity and general motive, is weak” (at para 33).

This high standard of proof is displayed in a variety of ways throughout the decision. One accused is a “bare acquaintance” of Holtby; the Court doesn’t believe Holtby would therefore bother to tip him (at para 69). There was an atmosphere of “cautious optimism” about the stock at the time an accused made his trades – that is sufficient explanation for them (at para 72). Holtby’s brother made a big investment in Eveready shares ahead of the acquisition, but he had recently inherited some money and why wouldn’t he have invested in his brother’s company? His investment could have been a “fortuitous coincidence” (at para 101). His brother’s close friend also made an unprecedented acquisition of Eveready stock, but there is no evidence he received inside information or knew Holtby was an insider of Eveready (at para 97). Holtby’s accountants made a series of equally fortuitous trades ahead of the announcement, but their trades didn’t happen immediately after the relevant conversations with Holtby (at para 135), and they had other explanations to do with tax planning (at para 138).

None of this is to say the Court of Appeal is wrong either in its articulation of the “clear and cogent” standard of proof or its application to the facts in Eveready; it is to say that it is better to be a fortuitous trader than to be employed in prosecuting them.

3. A narrow view of the purpose of penalties – All the evidence cited earlier in this post suggests that a significant amount of insider trading occurs in Canada. A casual review of the enforcement records of the securities commissions suggests that little of it is discovered and prosecuted. Worse, Eveready shows that successfully prosecuting it is extremely challenging.

In these circumstances securities commissions have only one tried and tested tool: large penalties. The lower the chances of something occurring, the greater the penalties must be to act as a deterrent. (Lotteries are predicated on this kind of logic: people will buy even very remote chances to win a prize, provided the prize is very large.) The Court in Eveready found the Securities Commission’s awards against Holtby and the others too high: “The resulting penalty [$1,750,000] is very severe and one can argue that it extends well beyond what the public interest might require” (at para 160). The matter of sanctions was remanded back to the Commission for reconsideration – though with the strong implied suggestion they be reduced significantly.

What are the take-away lessons of Eveready? First, the Securities Commission should focus its enforcement activities somewhere else. Unless someone admits wrongdoing the chances of success are too low to justify much expenditure on insider trading cases. Second, the best advice for someone accused of wrongdoing is to deny it. Third, if we are serious about keeping insider trading a crime, we will have to rethink our enforcement practices.

Why focus on enforcement practices rather than our legislative provisions? The United States is the most effective jurisdiction in the world at prosecuting insider trading. When scaled for the relative size of our markets, the U.S. prosecutes 20 times the number of trading violations that we do. They also impose penalties 17 times greater than ours. But their insider laws, which have an element of scienter mostly absent from ours, set a higher standard for prosecutors. The difference in prosecutorial success seems most likely, therefore, to be a function of the additional tools afforded prosecutors of white-collar crime in America. These would need to be the subject of another post, but there is a reason they haven’t evolved in Canada.

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Tweeter or Twitter? Teaching a Federation Approved Legal Ethics Course

Wed, 09/24/2014 - 10:00am

By: Alice Woolley

PDF Version: Tweeter or Twitter? Teaching a Federation Approved Legal Ethics Course

This summer I again provided the Federation of Law Societies with the syllabus for my legal ethics course. The Federation requested the syllabus for, presumably, the purpose of verifying that the University of Calgary’s course complies with the Ethics and Professionalism Competency as set out in Table B of the Federation’s Implementation Report for the Approved Law Degree. As it did the past two summers fulfilling the Federation’s request left me feeling both uneasy and uncertain.

Uncertain because I am not sure what the Federation wants to do with the syllabus. Are they simply ascertaining that it is a stand-alone course on professional responsibility? Is this just something to let them demonstrate that they really are reviewing those programs they approve? Or are they going to review it more substantively to see if it addresses the broad variety of topics set out in Table B (noted below and here)? Will they tell me if they do not think I am teaching the right topics? Will they go beyond the syllabus to see what I am actually teaching in various areas? And – ultimately – is the status of our degree as approved at stake as a result of what my syllabus contains? How much freedom do I still have?

My guess is that, right now, the Federation’s review is more of the former kind – simply doing enough to ensure that the approval process has some substance to it. But in my experience (which includes a few years working in regulatory law) regulatory powers tend to get exercised sooner or later. Further, what is the legitimacy in the approval process if it doesn’t have some rigour to it? If the Federation is approving our degree as meeting their competencies, and it has stated that that approval requires a review of the content of a stand-alone ethics course, then does an approval process which does not provide that review mean anything?

And uneasy for a variety of reasons, not least of which is that I can say with confidence that there is no way that my syllabus conforms with Table B. That competency requires that an applicant have “demonstrated an awareness and understanding of the ethical dimensions of the practice of law in Canada and an ability to identify and address ethical dilemmas in a legal context.” The Table further specifies that an applicant must know 1) the law governing lawyers in relation to when ethical issues arise; fiduciary duties, conflicts of interest, administration of justice, confidentiality and privilege, professionalism and the administration of justice; 2) the nature and scope of the lawyer’s duties; 3) the range of responses to unethical conduct and professional incompetence; 4) different models concerning the role of lawyers. They must additionally have the skills for identifying and making “reasoned decisions about ethical problems” and to think critically about ethical issues.

I do cover many of these topics, but I certainly don’t cover all of them. I mention fiduciary duties in passing. While I think I could argue that I cover the administration of justice, I do so more indirectly than directly. Access to justice is always listed in my syllabus, I also always run out of time before I get to it. Sound pedagogy favours depth over breadth; it is better for students to really understand one concept than to have minimal understanding of many. If anything, my syllabus already contains too much material to engage with students in the right way, so its coverage of the Table B topics is likely to go down, not up.

Further, even with respect to the topics that my syllabus does cover, there is no way that a student who has completed my course actually has the knowledge and skills the competency contemplates. How could they? It is a 36 hour course. Coming into it students know little about the area. While I am increasingly incorporating practice problems and analysis into the course, I do not think that any purely academic setting gives students the skills necessary to “identify and make informed and reasoned decisions about ethical problems in practice”. And those students who pass the course with a C or C- can hardly be said to have demonstrated a really sound knowledge of the area. They deserve their passing grades, but I wouldn’t overstate what they know. I hope that my students are better off after my course than they were before it, but that’s as far as I’d go.

Most importantly, while I recognize the Federation’s legitimate concern with the education we provide to law society applicants, having that concern extend to reviewing the content and delivery of specific courses seems fundamentally wrong. Law schools and law school classes, including required courses in legal ethics and professional responsibility, are places for intellectual inquiry and critical thought. The ability to explore new ideas, to criticize existing practices, to question accepted wisdom is at the heart of what universities provide. While I would be unlikely to do so, in my view a professor could cut conflicts of interest from her curriculum while still providing an outstanding course on legal ethics. The resources for learning about conflicts are easily accessible, and are almost certain to be well covered in the bar course and examination, allowing other more foundational questions about the role of lawyers in society to be more richly explored. That may not be my course, but I think it could be a terrific and important one.

If the university legal ethics course loses the freedom of intellectual inquiry, if all it is is a delivery service for the Federation, then in what way is that a university course? And in what way is the professor who teaches it still a professor enjoying the freedom of academic inquiry and practice?

I don’t dismiss the weight of the standard response – if we want our graduates to enjoy the privilege of bar admission, then we need to give them what the Federation thinks they ought to have. It is the privileges and qualifications law societies offer that ensure applicants want to attend our school. In my view the Federation and law societies do have a legitimate interest in the education we provide.

But at the same time, if the Federation wants its applicants to have a university education, an academic course in legal ethics, then they also need to recognize that universities have certain essential characteristics without which they cease to provide the legitimacy and intellectual authority that the law societies want their lawyers to enjoy by virtue of their LLB or JD degrees. Dictation of the content of an ethics course eliminates those characteristics; the education in that course may be something, but it is not university education. And the person who provides it is a source of information, but she is not a professor.

This post originally appeared on Slaw.

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Learnings from the Demographic Data on Litigants Without Counsel

Mon, 09/22/2014 - 10:00am

By: John-Paul Boyd

PDF Version: Learnings from the Demographic Data on Litigants Without Counsel

The demographic information on litigants without counsel available to date reveals a number of interesting patterns: most litigants appear to be 40 years old and older, and people in that age range are involved in litigation at rates far higher than those in younger age groups; although most litigants have lower incomes, a significant number have incomes around or exceeding the average income; and, litigants’ often high incomes match their educational achievements, which often exceed the average. All of this information strikes me as potentially useful when designing services and reforming processes for litigants without counsel.

In her 2013 report Identifying and Meeting the Needs of Self-represented Litigants, Julie Macfarlane obtained demographic data from 230 litigants without counsel in Alberta, British Columbia and Ontario. The Nova Scotia Department of Justice surveyed 58 litigants without counsel for its 2004 report Self-represented Litigants in Nova Scotia. For their 2005 report BC Supreme Court Self-help Information Centre Initial Evaluation Report, John Malcolmson and Gayla Reid surveyed about three hundred of the centre’s users.

Age 

In Alberta, British Columbia and Ontario, litigants without counsel belong disproportionately to the 40 plus age group. In Nova Scotia, the 35 to 44 year old age group is disproportionately represented among litigants without counsel:

  • In the Macfarlane report, 45% of the litigants surveyed were 50 and older. 32% were age 40 to 50 and 14% were age 30 to 40.
  • In the Malcolmson and Reid report, 27% were 50 and older. 41% were age 40 to 49 and 25% were age 30 to 39.
  • In the Nova Scotia report, 13% were age 55 and older. 19% were age 45 to 54 and 45% were age 35 to 44.

Here’s a chart comparing the percentage of litigants without counsel in each age group with Statistics Canada census data from 2006 and 2011 on the percentage of the general population in each age group.

(I could only find the 2006 data in mid-decade age cohorts, and it’s a bit difficult to compare the findings in the Malcolmson and Reid report with the census data as a result).

Income

Although the lion’s share of litigants without counsel have incomes that are lower than average, the studies to date show that a significant number have incomes that are toward the middle and high ranges:

  • In the Macfarlane report, 40% of the litigants surveyed earned less than $30,000 per year. 17% earned $30,000 to $50,000, and a whopping 31% earned $50,000 or more.
  • In the Malcolmson and Reid report, 61% earned $24,000 or less per year. 22% earned between $24,000 and $36,000, and 16.7% earned in $36,000 or more.
  • In the Nova Scotia report, 60% earned $29,999 or less per year. 28% earned $30,000 to $59,999 and 10% were had incomes in excess of $60,000.
  • In An Evaluation of Alberta’s Parenting After Separation Seminars, a 1999 report by the Canadian Research Institute for Law and the Family, 1,180 participants were surveyed. 40% earned less than $33,754 per year in 2014 dollars. 31% earned between $33,755 and $60,757, and 29% earned more than $60,758 per year.

Here’s a chart, from Statistics Canada’s Table 202-0407, Income of Individuals by Sex, Age Group and Income Source, showing the average income by age group in 2011 dollars for: Alberta, British Columbia and Ontario combined; Alberta; British Columbia; and Nova Scotia.

(Note that the average incomes will likely vary between urban, rural and remote communities.)

Educational attainment

The reports also suggest that litigants without counsel tend to have taken more schooling than most Canadians:

  • In the Macfarlane report, 73% of the litigants surveyed earned had attended college or university. 16% had completed or partially completed high school.
  • In the Malcolmson and Reid report, 65% had attended college or university. 35% had completed or partially completed high school.
  • In the Nova Scotia report, 71% had attended college or university. 29% had completed or partially completed high school.
  • In the Canadian Research Institute study, 47% had attended college or university.  52% had completed or partially completed high school.
  • A survey of a small number of litigants for the 2009 Calgary Judicial District report of the Alberta Legal Services Mapping Project found that 50% had attended college or university and that 30% had completed or partially completed high school.

According to Statistics Canada’s 2011 Education in Canada: Attainment, Field of Study and Location of Study report, 64% of Canadians have a post-secondary qualification of some nature, 23% have graduated high school and 13% have neither. Here’s a chart from the 2011 census showing the educational attainments of people age 25 and over for: Alberta; British Columbia; Ontario; and Nova Scotia.

(Note that this data shows only completed diplomas, certificates and degrees, and thus excludes people who took a year or two of post-secondary education before leaving school. Note also that the average level of educational attainment will likely vary between urban, rural and remote communities.)

A few preliminary conclusions and a few tentative suggestions

The reports’ findings on age are interesting. First, according to the Statistics Canada data, Canadians’ peak earning years are between 45 and 55. This is probably helpful for people involved in a court proceeding, as the bubble of litigants noted by the Macfarlane and Malcolmson and Reid reports falls right in the midst of this age group. However, given that the reports also show that the significant majority of litigants without counsel are unrepresented because they can’t afford to hire a lawyer, it seems that these particular litigants cannot afford to retain counsel even at their peak earning years.

Second, the data on age suggests that some adjustments may be required on the part of public legal education groups, who may want to retool their publications to accommodate the declining visual acuity of their prime markets in their web and print offering. Further, as the baby boomers work their way through Statistics Canada’s age groups, other issues are foreseeable such as an increased need for public health services relating to competency, the redesign of courthouses to accommodate increasing numbers of people with lower levels of mobility, and an increase in the number of elderly Canadians living in poverty as divorces split fixed incomes. The nice people at CARP will tell you that the impact of divorce on seniors can be disastrous, particularly for women.

The reports’ findings on income also suggest the need to increase the income threshold for the provision of legal aid. To recap, 40% of the litigants in the Macfarlane report earned less than $30,000 per year, 61% in the Malcolmson and Reid report earned less than $24,000 per year, and 60% in the Nova Scotia report earned less than $29,999 per year. However, according to Canadian Lawyer magazine’s 2014 survey of legal fees:

  • the average contested divorce costs $10,406, or as much as $39,522;
  • the average two-day trial costs $12,769, or as much as $27,591; and,
  • the average five-day trial costs $26,591, or as much as $59,700.

Clearly lawyers are unaffordable for the majority of litigants without counsel. Nevertheless, the data also suggests that litigants can afford at least some services, and that litigants with mid to high incomes can afford even more. It seems to me that this data argues powerfully for both increasing eligibility for legal aid, so that fewer litigants are left without counsel, and lawyers to consider the unbundling of legal services, providing services at a flat rate or on a barter basis, and exploring other creative approaches to paid legal services than the billable hour. I’ve written about the adverse effect of the billable hour model of legal services elsewhere.

Further, given the vicious spiral that self-representation can lead to, which I’ve also written about previously, one wonders whether increasing the legal aid limits to provide more people with lawyers would in fact increase the rate of settlement, reduce the number of trials and result in a net savings to the justice system as whole. Just a thought.

Finally, the data on educational attainment makes me wonder what has happened to all of the people with high school diplomas or less. The national Action Committee on Access to Justice in Civil and Family Matters notes in its final report that only about 6.5% of legal problems ever make it to court, but it is unlikely in the extreme that so many of the people with high school diplomas or less are bundled into the 93.5% who manage to resolve their legal issues outside of court, especially when we know that for people with low incomes, legal issues tend not come one at a time but cluster and multiply into other areas of the law. Are these people simply never entering the formal justice system and abandoning their rights and entitlements? It seems to me that the providers of public legal assistance services need to examine their client population and ask how to better engage people with lower levels of educational attainment.

This post originally appeared on Access to Justice in Canada.

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Federal Court of Appeal Reviews CEAA “Justification” Determination for Lower Churchill Falls

Fri, 09/19/2014 - 7:48am

By: Martin Olszynski

Case commented on: Council of the Innu of Ekuanitshit v. Canada (Attorney General), 2014 FCA 189 (CanLII)

At least three times in the course of the past year, an environmental assessment (EA) panel convened under the Canadian Environmental Assessment Act 2012, SC 2012, c 19 (CEAA, 2012) has concluded that a project is likely to result in significant adverse environmental effects: Shell’s Jackpine Mine Expansion, Taseko’s New Prosperity Mine, and Enbridge’s Northern Gateway Pipeline.  In the case of both Jackpine and Northern Gateway, the federal Cabinet determined that these effects were “justified in the circumstances,” but not so for New Prosperity. In none of these instances, however, did the relevant “Decision Statement” pursuant to section 54 of CEAA, 2012 contain any explanation or reasons for Cabinet’s decision. The Federal Court of Appeal’s recent decision in Council of the Innu suggests that this approach is wrong. This litigation involved the Lower Churchill Hydroelectric Project proposed by Nalcor in Newfoundland. This project was reviewed under the previous CEAA regime but the relevant provisions are virtually unchanged. Like the three EAs referred to above, the panel concluded that the project was likely to result in significant adverse environmental effects. Unlike the three projects referred to above, however, the government did provide a detailed explanation for its determination that the significant adverse environmental effects were justified in the circumstances. The Council challenged this determination (the Council also challenged the sufficiency of Aboriginal consultation; this post focuses only on the justification issue). 

The Council’s primary argument was that the project as proposed and assessed involved two plants, a larger Gull Island plant and a smaller Muskrat Falls plant, but that at the time of Cabinet’s decision-making a construction date for the Gull Island plant had yet to be confirmed, such that it was unreasonable for Cabinet to rely on the benefits of both plants when making its decision about justification. The Federal Court of Appeal ultimately disagreed (see para 58), but not without first setting out a framework for reviewing a “justified in the circumstances” determination. Beginning with the standard of review, the Court endorsed the trial judge’s approach:

[40] …the Court will only intervene with the [Governor in Council’s] and Responsible Ministers’ decisions under subsections 37(1.1) and 37(1) if it finds that: 1) the CEAA statutory process was not properly followed before the section 37 decisions were made; 2) the GIC or Responsible Ministers’ decisions were taken without regard for the purpose of the CEAA; or 3) the GIC or Responsible Ministers’ decisions had no reasonable basis in fact; which is tantamount to an absence of good faith.

The vast majority of CEAA litigation has focused on the first criterion, with applicants alleging various deficiencies with the EA process. In fact, to the best of my knowledge the Council of Innu decision is the first to challenge the legality of the GiC’s decision directly. And while the parameters of review here (the second and third criteria above) are deferential to be sure, it is equally clear that they require something by way of explanation.  Otherwise, it is simply impossible to carry out what the Court of Appeal stated was its duty (at para 44): “a reviewing court must ensure that the exercise of power delegated by Parliament remains within the bounds established by the statutory scheme” (essentially the same approach I argued for here). Turning to the GiC order with respect to Lower Churchill, the Court noted (at para 53) that Cabinet “determined, after consulting the Joint Review Panel Report as well as several government studies, that [translation] ‘the significant energy, economic, socio-economic and environmental benefits outweigh the negative environmental impacts of the Project identified in the Panel’s Report.’” The Court then addressed the Council’s argument with respect to the Gull Island Plant in a passage that suggests that, notwithstanding its subjective and policy-laden nature, the justification determination must be able to withstand at least some scrutiny:

[54] I share the appellant’s view that the abandonment of the Gull Island plant, if this were proven to be true, would raise serious questions about the validity of the environmental assessment and the impugned decisions. The Project authorized by the Governor in Council and responsible authorities following the balancing exercise imposed by section 37 of the CEAA included the Muskrat Falls plant as well as the Gull Island plant… If Nalcor were to forego construction of the larger of the two plants assessed (Gull Island), or if there was an unreasonable delay in its construction, the balancing exercise carried out for one of the Report’s findings would be necessarily compromised.

As noted above, the Court of Appeal ultimately concluded that the Council failed to prove that the Gull Island plant had been abandoned or that it had been unreasonably delayed (at para 57), but the above framework and its application to this case leave little doubt that the federal government’s current practice with respect to justification is insufficient.

Nor would it seem sufficient for the government to simply rely on the justification occasionally provided by panels as in the case of Jackpine, which was a joint review panel with the Alberta Energy Regulator and which concluded that that project was in the public interest, or Northern Gateway. As a starting point and consistent with the Federal Court’s recent decision in Greenpeace Canada v Canada (Attorney General), 2014 FC 463 (CanLII), such panels lack democratic legitimacy.  Another reason, and something that I have noted before, is that there often exists a yawning gap between panel recommendations and the conditions that the government ultimately imposes on proponents (see e.g. the recommendations with respect to a Traditional Land Use (TLU) management framework under the Lower Athabasca Regional Plan in the context of Shell’s Jackpine project). Practically, this means that there is often a real difference between the “balance” reached by panels and that struck by the government.

Judicial Dissent over Priorities in Civil Justice: Queue-Jumping and the Commercial List

Tue, 09/16/2014 - 10:00am

By: Sarah Burton

PDF Version: Judicial Dissent over Priorities in Civil Justice: Queue-Jumping and the Commercial List

Cases Considered: Lustre Studio Inc. v West Edmonton Mall Property Inc, 2014 ABQB 525

In Lustre Studio Inc. v West Edmonton Mall Property Inc, 2014 ABQB 525, the Honourable Mr. Justice B.R. Burrows provided a candid window into judicial frustrations with access to justice in Alberta.  In pointed words, he expressed dissatisfaction with the courts’ willingness to prioritize and accommodate commercial cases through mechanisms unavailable in family and non-commercial matters. While Justice Burrows clearly criticizes this preferential treatment, he also expresses resignation in quelling the tide. This decision implicitly questions the priorities of our justice system and the preference given to commercial matters over non-commercial cases, even when they urgently require the court’s attention. Practically speaking, Justice Burrows may be correct in stating that expanded accommodations for commercial cases are here to stay. If so, this innovative project should be harnessed to create equally effective mechanisms for family and other non-commercial cases.

Facts

On August 22, 2014, Justice Burrows was completing a week on Edmonton Chambers Duty (sitting in Family, Regular and Special Chambers). Many of the matters he heard in Family and Regular Chambers were complicated and required a Special Chambers hearing. Unsurprisingly, however, there was a significant queue for Special Chambers dates stretching until the winter and/or spring of 2015.

That same day, Justice Burrows received a request from counsel for Lustre Studio Inc. (“Lustre”) to have an interim injunction application heard as part of the Commercial/Duty Justice Initiative at a full day hearing on September 12, 2014. The injunction revolved around a commercial lease dispute between Lustre and its landlord West Edmonton Mall Property Inc. (“West Ed”), wherein West Ed invoked a lease provision requiring Lustre to relocate by January 16, 2015, which Lustre sought to avoid.

Lustre’s effort to have its case heard in September 2014 (rather than early 2015) is permitted by the Commercial/Duty Justice Initiative (the “Commercial List”). The Commercial List is a 2010 initiative of the Court of Queen’s Bench (Notice to the Profession #2010-08) that creates a separate queue for commercial cases to access specialized judges on an expedited basis. Practically speaking, if a case falls within the Commercial List mandate, it can be heard by a judge from the Commercial Practice Group within weeks, not months. While it began as a Calgary/Edmonton project to accommodate bankruptcy, insolvency and related matters, the Commercial List was expanded in a Notice to the Profession issued by the Chief Justice and Associate Chief Justice of the ABQB (NP#2014-04) in April 2014 to include non-bankruptcy commercial matters such as:

  • Mareva Injunctions;
  • Anton Pillar Orders;
  • Third-Party Production (Norwich) Orders;
  • Remedies under Business Corporations or Securities legislation; and
  • Other matters permitted by a Commercial Duty Judge sitting in Commercial Appearance Court or a Co-Chair of the Commercial Practice Group or her designate (at paras 5, 6).

Counsel for Lustre relied on the last of these headings.  In its letter to Justice Burrows, Lustre did not allege that its matter was urgent, as urgency is not a requirement of the expanded Commercial List initiative (at para 8).

Reasons

Justice Burrows granted Lustre’s request (at para 12). The expanded Commercial List initiative did not provide guidance for his exercise of discretion. Since it fit within the mandate and nothing else was scheduled on that day, he had no reason to refuse the request.

Justice Burrows explained, however, that he was granting the request despite his fundamental disagreement with the expanded Commercial List initiative. While it is uncharacteristic for a judge to highlight his disagreement with a law, Justice Burrows was compelled to make this comment because the law in question was a judicial policy implemented by the Alberta judiciary. As such, he wished to make his personal disagreement with this law crystal clear. In his words:

[15] … My oath requires me to apply the law even when I am of the view that the law is not what it should be. This is a situation where I am obliged to apply “law” with which I fundamentally disagree.

[16] Ordinarily, it would not be relevant or even appropriate for a judge to point out where he does not agree with the law he is obliged to apply.  In my view that is not the case where, as here, the judge is a member of the policy setting body which adopted the law in question and might otherwise be thought to have agreed with the law as adopted.

Justice Burrows’ objection was not based in opposition to Lustre’s argument, injunction applications, lease disputes, or commercial matters generally. Rather, he was motivated by the inequity of dedicating scarce judicial resources to prioritize commercial matters over family and non-commercial civil actions. The Commercial List plainly prioritizes non-urgent commercial cases over urgent family and non-commercial civil matters. Thus, while bound to apply the law, Justice Burrows expressed his palpable distaste for it. He concluded:

[17] The Court clearly requires a triage system to deal with matters which have an element of urgency.  In this Court there is no formal triage system.  A family and non-commercial civil litigant who feels their matter requires priority judicial attention can do little more than hope that a judge will agree and make some ad hoc arrangement for the early hearing of the application.  As noted, pursuant to the Notice to the Profession, commercial business matters are simply given automatic priority assuming there is free time on the schedule of the commercial duty judge.  In Edmonton at least, such free time occurs frequently.

[18] I have on several occasions made my view on this subject known to my colleagues.  I have been unable to prevent the adoption of this Notice to the Profession.  I record here that, though I am bound to apply it, I believe it institutes an extremely ill-advised policy.

Commentary

The Priority of Commercial List

Commercial litigators in Calgary and Edmonton often praise the efficiency, specialization, and practicality of the Commercial List. As a former commercial litigator, I have some familiarity with the Commercial List where matters are often undeniably urgent and the stakes are high. The Commercial List itself is not inherently bad, nor does it impede access to justice. It is an intelligent response to a problem facing commercial litigants who need to access the courts on time sensitive matters. The Commercial List has undeniably advanced access to justice for many commercial parties who (for example) face immediate and irreparable harm from a creditor-induced bankruptcy application, or a permanent injunction that could destroy a business and put many people out of work.

The problem with the Commercial List arises from its inequity in relation to non-commercial cases. While certain commercial litigants are able to access a formal queue-jumping system, as Justice Burrows stated “[a] family and non-commercial civil litigant who feels their matter requires priority judicial attention can do little more than hope that a judge will agree and make some ad hoc arrangement for the early hearing of the application” (at para 17).

As matters stand, the expanded Commercial List effectively creates a two-tiered system whereby non-urgent commercial matters are blatantly prioritized over urgent family and non-commercial civil cases. This distinction is unfounded and unacceptable.

I would not, however, suggest that we abolish the Commercial List to rebalance the current inequity. It is an example of a positive and practically based solution to the problem of accessing courts.  Therefore, instead of attacking the program, we ought to use it as an example. The same innovative thinking used to develop the Commercial List (and the resources needed to implement it) would be well-utilized developing a similar program for family and non-commercial litigants in urgent cases. This would rebalance the current inequity while promoting innovative solutions to make courts more accessible.

The Emergence of a Trend?

On a concluding note, the timing of Justice Burrows’ comments also merits discussion. Earlier this month, I blogged on R v Smart, 2014 ABPC 175, where the Honourable Assistant Chief Judge Anderson stayed proceedings against three accused persons who could not afford counsel, but did not qualify for Legal Aid. Like Lustre, Smart contained considerable commentary on the barriers to justice faced by parties who fail to fit within a particular initiative (in that case, Legal Aid). While couched in different terms, both decisions expressed frustration with the justice system’s failure to adequately serve the people who use it.

Strikingly, despite their stated views on increasing access to justice, in both cases the adjudicators ultimately sacrificed civil and family law matters in favor of cases with a greater priority. In Lustre, Justice Burrows was ultimately required to accommodate the applicant’s request to the detriment of non-commercial civil and family law cases. In Smart, Judge Anderson leveraged the constitutional priority given to criminal cases to demand that the accused persons be appointed Legal Aid counsel. As discussed in my earlier blog, this decision will likely come at the expense of civil and family litigants seeking Legal Aid.

Lustre and Smart were released approximately two weeks apart. It is likely premature to label two cases a “trend”, but they are consistent with recent reports on access to civil justice, and this recent judicial commentary does provide an invaluable perspective on how barriers to justice are directly encountered and perceived in the courtroom. These decisions also highlight the fact that barriers to justice are often systemic. In their decisions, Judge Anderson and Justice Burrows both clearly wanted to increase access to justice. Their decisions, however, were ultimately compelled by the application of a triage system that prioritizes some cases over others. Unfortunately, when there aren’t enough resources to go around, family and non-commercial civil matters are continually left in the cold. Clearly, this inequity cannot be remedied on a case-by-case basis in the courtroom. Policies and (before that) perspectives on the importance of civil justice must change if we want to level the playing field.

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