By Jennifer Koshan
Case commented on: Barbra Schlifer Commemorative Clinic v. Canada, 2014 ONSC 5140 (CanLII)
Yesterday the University of Calgary marked the 25th National Day of Remembrance and Action on Violence Against Women with two events: the annual ceremony held by the Women’s Centre, and our own ceremony in the Faculty of Law. Our event involved strong components of both remembrance and action. We recognized the 20th anniversary of the installation of Teresa Posyniak’s beautiful and haunting sculpture “Lest We Forget” in the Faculty. The sculpture honours women who were killed by men, including Aboriginal women, sex trade workers and the 14 women of L’Ecole Polytechnique. Teresa was present to share her reflections on creating the sculpture, the progress we have made on issues of violence against women over the last 20 years, and the work we still have to do. In terms of action, we also heard from Michelle Robinson, a Yellowknife Dene woman who spoke powerfully about the ongoing colonial violence experienced by indigenous women and indigenous peoples in Canada, and of the actions that we can and must all take to respond to this violence. Dean Ian Holloway stressed the importance of hosting the sculpture in our faculty as a reminder to reflect on the meaning of justice.
That brings me to the case I wish to comment upon in this post. Three years ago, I marked the National Day of Remembrance with an ABlawg post inquiring into whether the federal government’s repeal of the long gun registry was a violation of its obligations concerning violence against women. There has now been litigation on that question, and the applicant Barbra Schlifer Commemorative Clinic was unsuccessful in arguing that the repeal violated sections 7 and 15 of the Charter (Barbra Schlifer Commemorative Clinic v. Canada, 2014 ONSC 5140 (CanLII)).
Justice E.M. Morgan of the Ontario Superior Court of Justice began his judgment by setting out the recent history of firearms regulation in Canada. Before 1995, any restrictions and penalties associated with firearms were found in the Criminal Code, RSC 1985, c C-46. The Firearms Act, 1995, SC 1995, c. 39, created “a comprehensive licensing and registration scheme for all firearms, including prohibited and restricted weapons as well as non-restricted firearms” (at para 6). It established a new registry and was enforced via measures in the Criminal Code, which created offenses for the possession of firearms without meeting licensing and registration requirements. The Supreme Court of Canada upheld the Firearms Act as a constitutional exercise of the federal government’s criminal law powers in Reference re Firearms Act (Can),  1 SCR 783, 2000 SCC 31. The Court in that case noted that when the Firearms Act was introduced, then Justice Minister Allan Rock cast the objective of the legislation as “the preservation of the safe, civilized and peaceful nature of Canada.” He also noted the social problems of “suicide, accidental shootings, and the use of guns in domestic violence, and detailed some of the shooting tragedies that had spurred public calls for gun control”, including the shootings at L’Ecole Polytechnique in 1989 (Reference re Firearms Act (Can) at para 20, citing House of Commons Debates, vol. 133, No. 154, 1st Sess., 35th Parl., February 16, 1995, at p. 9706).
In 2012, the federal government passed Bill C-19, An Act to Amend the Criminal Code and the Firearms Act, SC 2012, c 6 (the Act). The Act repealed the firearms registry and mandated the destruction of all registration records regarding non-restricted firearms. However, the Act retained the existing licensing requirements for firearms, which require all persons who wish to possess or acquire firearms to obtain a license, and continues to require all licensees to pass a firearms safety course and to comply with a number of eligibility requirements. Licensing is subject to background checks on the applicant’s criminal record and history of violent behavior, and requires notice of the application to the licensee’s current and former intimate partners. The Act also maintains existing offenses and punishments with respect to firearms, except those related to non-registration. The rationale for the amendments was articulated by then Minister of Public Safety, Vic Toews, as follows:
In essence, Bill C-19 retains licensing requirements for all gun owners, while doing away with the need for honest, law-abiding citizens to register their non-restricted rifles or shotguns, a requirement that is unfair and ineffective…
The bill before us today is about making sure that we invest in initiatives that work. It is about making sure we continue to protect the safety and security of Canadians without punishing people unnecessarily because of where they live or how they make a living.
Hon. Vic Toews, House of Commons Debates, No. 37 (October 26, 2011, at p. 2535 (cited in 2014 ONSC 5140 at para 9).
The Applicant’s first argument was that the Act violated section 7’s guarantee of the right to life, liberty and security of the person, in that it “decreased Canadians’ personal security and increased the risk of death by firearms” (at para 16). Justice Morgan noted that proof of a violation of section 7 requires a deprivation of life, liberty or security of the person that is supported by the evidence. If such a deprivation can be established, the applicant must show that it was contrary to the principles of fundamental justice. There were three difficulties with the section 7 argument for the Applicant.
First, the Court identified a “state action problem”. It is well established that laws which impose or fail to reduce the risk of serious bodily or psychological harm engage the right to security of the person (see Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII),  3 SCR 1101 and Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 (CanLII),  3 SCR 134, cited at para 19). This is true even where the underlying risk of harm is caused by non-state actors. For example, the harms of prostitution may be directly caused by third parties, but the former criminal prohibitions related to prostitution amounted to state action that “actively countered” the risk reduction measures that prostitutes could take (at para 27, citing Bedford at paras 66-67). In contrast, the absence of state action responding to the risk of serious bodily or psychological harm has not traditionally be seen to engage section 7 (see e.g. Gosselin v Quebec (Attorney General), 2002 SCC 84 (CanLII),  4 SCR 429, at para 81 per McLachlin CJ for the majority).
That is how Justice Morgan characterized this case – the repeal of the long gun registry was seen as an absence of state action. According to the Court, “[t]he upshot of the Applicant’s position is that the state is obliged to maximize life, liberty, and security of the person, and not just to refrain from depriving persons of those rights” – an obligation that the courts have “consistently rejected” (at paras 32-33). Unless there is a constitutional entitlement to the state action that is being sought – for example in the case of underinclusive legislation that excludes farm workers from the protections of freedom of association afforded to other workers (see paras 35-36 and here) – there is no positive obligation on the government to protect security of the person.
The second problem with the section 7 argument, according to the Court, was a “baseline problem.” Although the constitution is a “living tree” and the rights that it protects may expand and evolve over time, “this does not support the far more extreme claim that existing distributions should be taken as the baseline from which to decide whether there has been partisanship or neutrality” (at para 40, quoting Cass Sunstein, The Partial Constitution (Cambridge, MA: Harvard U Press, 1993) at pp. 129-130). The Applicant’s argument was seen to frame the 1995 Firearms Act as a neutral baseline, departure from which was a “partisan deviation” (at para 41). The Court noted that a similar argument had failed in Ferrel v Ontario (Attorney General) (1998), 42 OR (3d) 97 (Ont CA), an unsuccessful challenge to the repeal of employment equity legislation in Ontario.
The third difficulty with the section 7 argument was the Court’s finding of a lack of evidentiary basis for the claim. In short, it found that there was no causal link between the repeal of the registry and any increased risk of harm. There was no clear evidence that the registry had reduced the risk of violence generally or in the context of domestic violence. Rather, statistics showed that “there has been a long term, gradual decline in gun violence in Canada, including in domestic settings, regardless of the existence of the Firearms Act” (at para 52). Furthermore, there was no evidence of an increase in gun related violence after the repeal of the registry took effect in 2012. There was a significant drop in seizures of firearms in 2012, but it was difficult to say how many of those firearms were long-guns no longer covered by the registry as opposed to weapons that had been restricted all along.
Although these three problem areas resulted in a finding that there was no violation of security of the person, Justice Morgan went on to state that any such violation would have been in conformity with the principles of fundamental justice in any event. The Applicant had argued that the repeal of the registry was arbitrary, as it was “absolutely unrelated to the general public safety objective of the Firearms Act” (at para 68). Justice Morgan disagreed, noting that the objective behind the repeal was “to eliminate the portions of the Firearms Act which were determined by Parliament to be ineffective in achieving that goal” (at para 72). Nor were the effects of the repeal grossly disproportionate – the evidence indicated that any negative effects were “minimal or non-existent” (at para 73). Overall, Parliament was found to have made a policy choice that “was not flawed in any way which would implicate the fundamental justice requirement of section 7” (at para 79).
I had predicted that Ferrel and the other “state action” cases may be a stumbling block for litigation challenging the repeal of the firearms registry, but had hoped that the strong precedent in PHS Community Services Society might provide a rebuttal. PHS effectively required the federal government to maintain an exemption for Vancouver’s safe injection site (Insite) under the Controlled Drugs and Substances Act, SC 1996, c 19. However, PHS was based on a very strong evidentiary record of the harms that failing to grant the exemption would create, similar to the strong evidentiary record in Bedford of the harms of the prostitution laws. The evidence in the Barbra Schlifer case (at least the rendition of the evidence provided in the decision – see an alternate view here) did not establish the same sort of causal link, even if the repeal could be characterized as state action.
The other argument put forward by the Applicant was that the Act violated equality rights under section 15 of the Charter, as it put women “at greater risk of injury and death by firearms, especially in situations of domestic or intimate partner violence” (at para 80). The Court relied on the current incarnation of the test for discrimination set out in R v Kapp, 2008 SCC 41 (CanLII),  2 SCR 483, as modified by Quebec (Attorney General) v A, 2013 SCC 5 (CanLII),  1 SCR 61 at para 323: “the claimant’s burden … is to show that the government has made a distinction based on an enumerated or analogous ground and that the distinction’s impact on the individual or group perpetuates disadvantage.” The Court also relied on Withler v Canada (Attorney General), 2011 SCC 12 (CanLII),  1 SCR 396 for the point that section 15 requires a contextual analysis of the various interests the government was trying to balance. In this case, that meant that “one cannot examine the Act in isolation, but rather one must keep in mind the social circumstances in which it is enacted as well as the broader criminal justice and law enforcement policy environment” (at para 89).
On the question of whether there was a distinction, the Court noted that although one of the goals of the 1995 Firearms Act was to protect women against domestic violence, the Act was aimed more broadly at public safety. Similarly, the 2012 Act was said to be aimed at public safety, as it did away with the allegedly inefficient registry in an overall context of mandatory minimum sentences and tougher approaches to bail for firearms offences (see the Tackling Violet Crime Act, SC 2008, c. 6 and the Safe Streets and Communities Act, SC 2012, c. 1). The Act therefore had no discriminatory intent, and the case was characterized as one of adverse effects discrimination (at paras 93-94).
The difficulty with the adverse effects argument was similar to that for section 7 – the evidentiary record was found to fall short in establishing an increase in the risk of gun related violence post-repeal, either generally or in the case of women specifically. According to the Court, the evidence showed that the number of men killed by firearms has long “dwarfed” the number of women, and men are also more likely to die from accidents and suicides committed with firearms than women are (para 101). There was also no evidence that women faced an increased risk of domestic violence by firearms in the short period post-repeal – there was only “conjecture” (at para 102). This aligned with the evidence of an expert, Wendy Cukier, that many of the firearms used in incidents of violence against women were not registered, so the Court saw the registry as ineffectual in preventing those sorts of crimes in any event (para 104). Even though there had been positive changes in the statistics between 1995 and 2012, i.e. “a decrease in domestic altercations leading to death by firearm during the period in which the registry was in force” (at para 95), the Court indicated that this could have been the result of the government’s “tough on crime” reforms, and was probative only of a correlation but not a causal link between the registry and any reduction in gun violence.
This aspect of the case is in line with the findings that Jonnette Watson Hamilton and I made in our recent review of adverse effects discrimination cases – many such claims are subjected to evidentiary and causation standards that are very difficult to meet. For example, even if men are victimized by gun violence at higher rates than women, women are subjected to domestic violence at higher rates, and an overall adverse impact on the rates of women subjected to gun violence in that context should be sufficient to establish an adverse distinction created by the law. Domestic violence is gender-based violence, which has been characterized as a form of discrimination against women at the international level (see e.g. General recommendation 19 of the Committee on the Elimination of Discrimination against Women), and any state action which adversely affects rates of domestic violence should be seen in that light. However, Justice Morgan found there was “no reliable evidence that the Act has caused and/or perpetuated, or that it will cause and/or perpetuate, a distinction based on gender” (at para 109).
On the question of whether there was discrimination, Justice Morgan returned to the point that the analysis should be contextual and should consider the broader legislative context of the reforms. Here, although the government had repealed the registry and related offences, it had maintained the licensing scheme and enacted mandatory minimum sentences and tougher bail provisions for some gun related offences. According to the Court, the overall scheme is “designed to ameliorate the circumstances of women who may be subject to intimate partner violence” (at para 114), and “neither stereotypes women nor increases any disadvantage or risks which they already suffer; rather, it seeks a balance between criminal law sanctions, regulatory restrictions, and facilitation of police work that is geared toward violence reduction” (at para 115). To the extent that policy considerations were at play, these were for the government to decide upon, not the court. The Act therefore did not engage in gender discrimination.
The Court’s discrimination analysis is arguably problematic for incorporating section 1 considerations into section 15. This is a broader difficulty in section 15 jurisprudence that Jonnette Watson Hamilton and I have also critiqued (see here). Assessment of the proper balance between the rights engaged by the impugned law and the overall legislative scheme should await the reasonable limits analysis under section 1 of the Charter, where the burden is on the government to uphold its actions as demonstrably justified. Under section 15, it should be sufficient to prove discrimination by showing that a law perpetuates historic disadvantage against a protected group.
Although it was not necessary for the Court to do so, it went on to find that any violations of section 7 and 15 could have been saved under section 1 of the Charter. Justice Morgan also sided with the government at this stage. I take particular issue with two aspects of the section 1 analysis. First, the Court reviewed the objective of the Act in terms of the government’s overall approach to firearms regulation, rather than looking specifically at the rationale behind the repeal of the registry (see e.g. M v H,  2 SCR 3 at para 82). If the Court had focused on that more narrow objective, it may have been more difficult for the government to prove that it was pressing and substantial, especially based on an “efficiency” rationale. Second, under the minimal impairment stage, the Court indicated that the registry scheme was only justifiable as criminal legislation, and had to be eliminated once removed from the criminal law regime (at para 129). However, in Reference re Firearms Act (Can), the Supreme Court left open the possibility that the national concern branch of the federal government’s powers over peace, order and good government might be a basis for finding the registry constitutionally valid. The suggestion that there were no alternatives open to the government beyond a criminal registry does not comport with that decision.
The constitutional challenge in Barbra Schlifer Commemorative Clinic v. Canada was thus dismissed, and I am advised that the Applicant will not be filing an appeal. The decision is a disappointing one for advocates of gun control, but it must be noted that the Coalition for Gun Control – which includes survivors and family members of victims of the Montreal Massacre – remains active. The Coalition intervened in a constitutional challenge mounted by the Quebec government to recover the gun registry data for that province that Bill 19 required to be destroyed. The case was heard by the Supreme Court in October, and while it deals with the federalism aspects of the Act rather than Charter issues, the Court’s decision will hopefully shed further light on an area that is difficult both doctrinally and in social policy terms.
By: Martin Olszynski
PDF Version: Whose (Pipe)line is it Anyway?
Document Commented On: Quebec’s Letter to TransCanada Corp. Imposing 7 Conditions on Energy East
On November 18th, on the heels of a unanimous vote of non-confidence in the National Energy Board (NEB) by Quebec’s National Assembly, Quebec’s Environment Minister sent a letter to TransCanada outlining seven conditions that the company must meet before the province “accepts” the Quebec portion of the company’s proposed pipeline. Most of the conditions are similar to those stipulated by British Columbia with respect to Enbridge’s Northern Gateway pipeline (e.g. world class emergency and spill response plans, adequate consultation with First Nations) with three notable differences. First, while Quebec insists that the project generate economic benefits for all Quebecers, unlike British Columbia it is not asking for its “fair share” (whatever that meant). Second, because Energy East involves the repurposing of an existing natural gas pipeline, Quebec insists that there be no impact on its natural gas supply. Finally, and the focus of this post, Quebec insists on a full environmental assessment (EA) of the Quebec portion of the pipeline and the upstream greenhouse gas emissions from production outside the province – something that the NEB has consistently refused to assess in its other pipeline reviews. Last week, Ontario joined Quebec in imposing these conditions (see here for the MOU). Premier Kathleen Wynne acknowledged that “Alberta needs to move its resources across the country,” but argued that the two provinces “have to protect people in Ontario and Quebec.” In this post, I consider whether this condition is consistent with the current approach to the regulation of interprovincial pipelines.
Not All Conditions Are Created Equal
As noted by my colleague Professor Nigel Bankes in the context of Northern Gateway, the “general proposition is that a province will not be permitted to use its legislative authority or even its proprietary authority…to frustrate a work or undertaking which federal authorities…consider to be in the national interest.” The question thus becomes what kind of conditions might amount to frustration? Fortunately, we have a recent decision of the NEB, in the context of Kinder Morgan’s equally contentious Trans Mountain pipeline application, which sheds some useful light on this issue.
Briefly, Kinder Morgan has applied to the NEB for a certificate of public convenience and necessity (section 52 of the National Energy Board Act, RSC 1985 c. N-7) for the expansion of an existing pipeline from Alberta to British Columbia. This past summer, Kinder Morgan indicated that its preferred corridor had been revised and that its preferred routing was now through Burnaby Mountain. Consequently, the NEB determined that it required additional geotechnical, engineering and environmental studies to be completed before it could make its section 52 determination. Although section 73 of the NEB Act gave the company the power of entry required to carry out these studies, Kinder Morgan sought Burnaby’s consent to enter upon the relevant lands to do the work, which included borehole drilling and some site preparation (e.g. the removal of some trees and brush). Burnaby refused to give its consent. In fact, its mayor has long staked out a position of opposition to the pipeline.
After a month of failed correspondence, Kinder Morgan began its work on Burnaby Mountain, which also happens to be a conservation area. Several days into that work, its employees were issued an Order to Cease Bylaw Contravention and a bylaw notice for violations of the Burnaby Parks Regulation Bylaw 1979 (Parks Bylaw, which prohibits damage to parks) and the Burnaby Street and Traffic Bylaw 1961 (Traffic Bylaw, which amongst other things prohibits excavation work without consent). Subsequently, Kinder Morgan filed a motion, including a notice of constitutional question, seeking an order from the NEB directing the City of Burnaby to permit temporary access to the required lands.
The NEB granted the order, on both paramountcy and interjurisdictional immunity grounds. After summarizing the relevant jurisprudence with respect to paramountcy (at p 11), the NEB concluded that there was a “clear conflict” between the Parks Bylaw and Traffic Bylaw on the one hand, and paragraph 73(a) of the NEB Act on the other. With respect to the Parks Bylaw, for example:
…Section 5 [contains] a clear prohibition against cutting any tree, clearing vegetation or boring into the ground, regardless of whether minimal tree clearing is necessary where the trees would create a safety risk for the drilling work that must occur. While the Board accepts that the Parks Bylaw has an environmental purpose, the application of the bylaws and the presence of Burnaby employees in the work safety zone had the effect of frustrating the federal purpose of the NEB Act to obtain necessary information for the Board to make a recommendation under section 52… (at p 12)
The NEB made the same finding with respect to the Traffic Bylaw: dual compliance was impossible, such that the doctrine of federal paramountcy applied and the bylaws were inoperable to the extent that they prevented Kinder Morgan from carrying out the necessary work. The NEB made clear, however, that this did not mean that “a pipeline company can generally ignore provincial law or municipal bylaws. The opposite is true. Federally regulated pipelines are required, through operation of law and the imposition of conditions by the Board, to comply with a broad range of provincial laws and municipal bylaws” (at p 13).
With respect to interjurisdictional immunity (IJI), which the NEB considered in the alternative, after acknowledging that its usage “has fallen out of favor to some degree,” the NEB observed that “it is still an accepted doctrine for dealing with clashes between validly-enacted provincial and federal laws” (at p 13). The effect of the doctrine is to “read down” valid provincial laws where their application would have the effect of impairing a core competence of Parliament or a vital part of a federal undertaking. Impairment is key: provincial laws may affect a core competence of Parliament or a federal undertaking (to varying degrees), but this is not sufficient. Applying this test to the facts before it,
The Board finds that the Impugned Bylaws impair a core competence of Parliament… the routing of the interprovincial pipeline is within the core of a federal power over interprovincial pipelines. Actions taken by Burnaby with respect to enforcing the Impugned Bylaws impair the ability of the Board to consider the Project and make a recommendation regarding on the appropriate routing of the Project. The Board requires detailed information from surveys and examinations in order to make a recommendation to Governor in Council and to complete an environmental assessment. Similar to the location of aerodromes being essential to the federal government’s power over aeronautics, detailed technical information about pipeline routing is essential to the Board.
Thus, when considering Quebec’s (and Ontario’s) conditions, the following principles ought to be kept in mind. Generally speaking, provincial laws apply to federal undertakings such as pipelines. Such laws will only be vulnerable to the extent that they conflict with or frustrate the purpose of the NEB Act (paramountcy), or impair a core competence of Parliament of vital part of the federal undertaking (IJI). Another point worth keeping in mind is specific to environmental laws. As I have noted in previous posts, environmental laws are primarily procedural, not substantive, in nature. At their core they merely confer decision-making authority (e.g. to authorize activity that would otherwise be a contravention of the law), although they do seek to improve that decision-making by imposing certain “guideposts” (e.g. conducting an EA). This suggests that it will be very difficult, if not impossible, to conclude whether such environmental laws frustrate a federal law or impair a federal undertaking until an actual decision has been made.
Condition 2: Comprehensive EA including Upstream Greenhouse Gas Emissions
In its letter to TransCanada, Quebec states that an EA of the Quebec portion of the pipeline is required pursuant to para 2(j) of the Regulation respecting environmental impact assessment and review, ch. Q-2, r. 23 (“the construction…of more than 2 km of oil pipeline in a new right-of-way”). Seemingly unsure of itself, however, it also suggests that it is in TransCanada’s “interest to respect the will of Quebecers” (my translation) – not that it must. The desired result was a comprehensive assessment of those portions of the project situated in Quebec, which until yesterday included a marine terminal and storage facility at Cacouna, before Quebec’s EA agency, le Bureau d’audiences publiques sur l’environnement (BAPE). As of yesterday, however, TransCanada announced that the marine terminal plans are on hold in light of the continuing deterioration of the St. Lawrence Beluga whale population, presumably leaving just the pipeline to be assessed for the time being.
The results of this assessment will “serve to inform Quebec’s decision and in this way its position before the NEB” (my translation). The letter does not state which “decision” it is referring to, but the answer would seem to lie in sections 31.1 and 31.5 of Quebec’s Environmental Quality Act CQLR c Q-2:
31.1. No person may undertake any construction, work, activity or operation…in the cases provided for by regulation of the Government without following the environmental impact assessment and review procedure and obtaining an authorization certificate from the Government.
31.5. Where the environmental impact assessment statement is considered satisfactory by the Minister, it is submitted together with the application for authorization to the Government. The latter may issue or refuse a certificate of authorization for the realization of the project with or without amendments, and on such conditions as it may determine…
Viewed this way, it does not seem unreasonable to suggest that “Quebec’s government has had enough and has taken control of the process in the province,” and that “the proceedings before the [NEB], replete with 30,000 pages of unilingual English text, are now very secondary.” Does such a situation conflict with, or frustrate the purposes of, the NEB Act?
I don’t think it does. EA has long been understood in Canada as “simply descriptive of a process of decision-making” (Friends of the Oldman River Society v. Canada (Minister of Transport  1 SCR 3). There is no conflict between the requirements of the NEB Act and the CEQ; Trans Canada can comply with both. Doing so may seem duplicative but that is a matter of policy, not constitutional imperative. And even as a matter of policy this argument is weak in light of changes to the federal EA regime (including restrictive standing rules and a restricted definition of environmental effects) and the decision by the NEB to exclude upstream greenhouse gas emissions from its own review.
Nor does such a condition impair a core competence of Parliament or a vital part of a federal undertaking, for as old as is the understanding of EA as process so too is the recognition that jurisdiction with respect to the environment is shared between the federal and provincial governments. And while not determinative, it is worth noting that the current chair of the NEB would seem to agree that there is room for both levels of government here, having recently suggested that the NEB’s primary environmental concern is to ensure the proper construction and operation of pipelines, and that it is up to the provinces and the company to look after broader issues around climate change (as an aside, for a case where the Supreme Court of Canada seemed to adopt a broader view of the NEB’s mandate, see Quebec (Attorney General) v. Canada (National Energy Board),  1 SCR 159).
That being said, what Quebec can actually do with the results of its EA is another matter entirely. The short answer is probably not very much. It might be able to secure some modifications to the project (e.g. that certain standards or ‘best practices’ be applied during construction and operation), but if the NEB makes a positive recommendation to the federal Cabinet then outright refusal of a certificate of authorization would seem off the table (or would be rendered inapplicable). One might reasonably then ask: why go through all the trouble in the first place? The answer is rooted in the procedural nature of environmental law referred to above. With respect to EA specifically, while the process is certainly intended to improve governmental decision-making, it is also intended to enable political accountability through the full disclosure of the tradeoffs being made (see Ted Schrecker, “The Canadian Environmental Assessment Act: Tremulous Step Forward, or Retreat into Smoke and Mirrors?” (1991) 5 CELR 192). Indeed, it is the potential for political accountability that at least partially drives better decision-making.
This dynamic provides a reasonable explanation for why Alberta and Saskatchewan appear so uncomfortable with the mere idea that upstream greenhouse gas emissions be assessed, which prompted Ontario’s Energy Minister to ask what the Premier of Saskatchewan is afraid of. Presumably, it is the same thing that the current federal government is afraid of.
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By: Nigel Bankes
Decision Commented On: AUC Decision 2014-326, AltaLink Investment Management Ltd. and SNC Lavalin Transmission Ltd et al, November 28, 2014
AltaLink owns significant transmission assets in Alberta. AltaLink in turn is owned by SNC Lavalin. SNC Lavalin wanted to divest itself of these assets and found a wiling purchaser in the form of the US based Berkshire Hathaway Group. The transaction however requires the approval of federal foreign investment and competition authorities (already in place) and of the Alberta Utilities Commission (AUC).
The AUC ‘s approval is required under the terms of s.102 of the Public Utilities Act, RSA 2000, c. P-45 (PUA) which provides as follows:
Unless authorized to do so by an order of the Commission, the owner of a public utility designated under section 101(1) shall not sell or make or permit to be made on its books a transfer of any share of its capital stock to a corporation, however incorporated, if the sale or transfer, in itself or in connection with previous sales or transfers, would result in the vesting in that corporation of more than 50% of the outstanding capital stock of the owner of the public utility.
The various relevant AltaLink and SNC Lavalin corporate entities are all designated under s.101: see Public Utilities Designation Regulation, Alta. Reg. 194/2006. The AUC approved the sale subject to some limited terms and conditions. The AUC rejected many of the terms and conditions proposed by intervenors. This post discusses the scope of the AUC’s authority to review this type of transaction, the matters that the AUC considers to be relevant as part of its “no harm review” and the AUC’s treatment of some of the proposed conditions.
The scope of the AUC’s review
As noted above, the AUC’s jurisdiction over this matter arises under s.102 of the PUA but s.102 provides the AUC with no specific guidance as to the considerations that it should take into account in conducting its review (at para 56), leading the Commission to grasp for the “general guidance” offered by s.6(1)(a) of the Utilities Commission Act, SA 2007, c. A-37.2, which prescribes that every member of the Commission “shall act honestly, in good faith and in the public interest”. This, emphasized the Commission, distinguished its responsibilities from the responsibilities of a director of a corporation who owes the duty to act in good faith and in the best interest of the corporation. This was enough to launch the Commission into a soliloquy on the meaning of that multifaceted term “public interest”:
58. Public interest is a multi-faceted concept that will necessarily mean different things in different contexts. Responsibility for determining the overall public interest of Canadians is divided between the Parliament of Canada and the provincial legislatures. The provincial legislatures or Parliament may then delegate responsibility for certain public interest determinations to the lieutenant-governor in council, ministers or various agencies of the province. For example, the public interest mandate of an administrative body charged by statute with overseeing public education in Alberta would be different from one charged with overseeing the delivery of public health care in Alberta and different again from an administrative or quasi-judicial tribunal like the Commission, which is charged with regulating certain public utility matters in Alberta. …
60. It is clear from the above that the Commission does not have authority over all matters related to regulated utilities in Alberta. ….. The responsibilities of the Commission are limited to its central rate-setting and utility system integrity functions set out in its enabling legislation.
61. It is also clear that the role of the Commission in carrying out its public interest mandate is different from that of a court. Unlike a court, proceedings before the Commission are not held to resolve private disputes. The Commission has the responsibility to arrive at an outcome in the public interest in a particular proceeding, not to make a determination in favour of one or another of the private interests of the parties participating in the proceeding. (emphasis added)
This meant that many of the concerns that had been expressed to the AUC, including concerns over the sale of infrastructure assets to a foreign investor, and concerns as to possibly increased energy exports to the United States, all fell outside the AUC’s remit (at paras 64 and 67). The Commission was also careful to emphasise that it would continue to regulate AltaLink even after the sale and that therefore many of the matters that intervenors sought to have the Commission address through conditions on its approval were more appropriately dealt with through the Commission’s ongoing regulatory review of AltaLink.
The AUC’s no harm review
What then did “public interest” mean in this context given the AUC’s focus on its rate setting authority? For the AUC this meant that it should examine the proposed transaction through a “no harm” lens. The Commission elaborated on this drawing on submissions of counsel and adding some content of its own. Here is my edited version of those considerations (the first 8 factors drawn from counsel’s submissions and the latter 3 added by the Commission) (at paras 108 – 109):
In applying these considerations the Commission follows a two-step analysis: first does the transaction result in harm? And second, if the Commission identifies harm, can that identified harm be mitigated by imposing conditions? I do not propose to review the Commission’s detailed assessment of these various considerations. The Commission’s overall assessment was as follows (at para 111):
The Commission finds that customers will be at least no worse off after the transaction is completed, and that the proposed transaction satisfies the no harm test without the need to impose any additional specific conditions on the sale, apart from changes to the ring-fencing measures and Inter-Affiliate Code of Conduct to reflect the new ownership structure. Accordingly, as noted in the sections that follow, the Commission has directed AIML/AML to file an updated affidavit on the revised ring-fencing measures, and to provide, if necessary, any changes to its Inter-Affiliate Code of Conduct to reflect the new ownership structure.
As noted above, the Commission declined to impose a number of terms and conditions that some of the intervenors requested that the Commission impose. One of the more interesting discussions concerned a proposal that the Commission condition its approval on performance of the commitments that Berkshire Hathaway (BH) had already made to Industry Canada (IC) as part of IC’s foreign investment review. The Commission declined to do so (at para 291) on the basis on the basis that the Commission has no jurisdiction to compel BH to comply with its commitments to IC. Furthermore it also observed that it would be vigilant to ensure that fulfillment of commitments with respect to staffing for example would not result in staffing levels which were beyond those required to deliver appropriate levels of service (at paras 309 – 311) (a.k.a no gold plating). The Commission would monitor these matters as part of its ongoing regulation of AltaLink.
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By: Nigel Bankes
Document Commented On: Quantification Protocol for CO2 Capture and Permanent Storage in Deep Saline Aquifers, Version: DRAFT for public comment, November 2014 and associated commentary on changes made from the version released for technical review.
The Government of Alberta (GoA) continues to make progress in putting together the legal and regulatory framework for commercial scale carbon capture and storage (CCS) projects in the province. Such a legal and regulatory framework needs to address four types of issues: (1) property issues including the ownership of pore space and a scheme for leasing or disposing of rights to pore space; (2) regulatory or permitting rules for reviewing the merits of particular projects and to establish the terms and conditions under which projects might proceed; (3) liability issues; and (4) greenhouse gas (GHG) accounting issues to ensure that CCS projects are fully integrated into regulatory approaches for managing greenhouse gas emissions – in the case of Alberta this means integrating CCS projects into the Specified Gas Emitter Regulation, Alta Reg 139/2007 (SGER).
The key elements of the province’s framework to date (with links to previous posts on the topic), are as follows:
This post describes how the QP fits within the overall regulatory scheme described and offers some brief comments on the QP from a legal perspective – the QP is an 80 page technical document and I lack the expertise to critique it from anything other than a legal perspective. A Quantification Protocol is an essential part of qualifying a project for offset credits under Alberta’s SGERs. The SGERs require regulated facilities (i.e. facilities emitting more than 100,000 tonnes CO2e/ year) to meet emissions intensity reduction targets set against a three year historic baseline. A regulated facility may achieve compliance in one of four ways: (1) by meeting its efficiency targets, (2) by paying the $15 per tonne levy to the Climate Change and Emissions Management Fund, (3) by applying emissions performance credits (EPCs) (generated by a regulated facility that beats its own target) or (4) by applying offset credits from a qualifying offset project. A qualifying offset project is a project that reduces emissions over a business as usual (BAU) baseline from a project at a non-regulated facility and in accordance with an approved QP. There is considerable technical guidance available from the GoA in the form of Technical Guidance for Offset Protocol Developers and Technical Guidance for Offset Project Developers. A list of approved QPs is available here. Once registered, an offset project will ordinarily generate credits for eight years with a possible extension of five years. It is assumed that a CCS Offset project will generate credits for a longer period and the Summary of Comments for the Draft QP advises that the Technical Guidance for Project Developers will likely be amended to provide that CCS Offset projects will have a crediting period of 25 years. The purpose of a QP is to establish a methodology for quantifying the net emission reductions associated with the project activity. In Alberta a QP also authoritatively establishes “additionality” which is an assessment that a project which proceeds on the basis of the Protocol would not have proceeded but for the incremental carbon financing provided through the offset scheme. In some cases a QP may be withdrawn where the technology or the process on which the QP is based simply becomes BAU – because it simply makes economic (or other) sense to adopt that process or technology, or it becomes required by law. A relevant example in Alberta is acid gas disposal (AGD) which used to be the subject of an Alberta QP. The QP has now been withdrawn on the basis that AGD (which involves the capture and re-injection of acid gases from sour gas processing into underground formations rather than flaring the residue (thereby producing sulphur oxides and other emissions) or scrubbing it (and producing elemental sulphur) is actually BAU. Comments on the Protocol The Protocol applies (at 6) to CCS deep saline projects for which a proponent will have both a sequestration lease and a scheme approval under the OGCA. The Protocol does not apply to emissions sequestered through a CO2 miscible flood enhanced oil recovery (EOR) project. There is a separate Protocol dealing with CCS/EOR projects although that Protocol has been “flagged” for some time – meaning that it can only be used with special permission. For a report considering the differences in the legal treatment of CCS deep saline and CCS/EOR see here. The Protocol envisages that it might also be used for projects that capture GHGs at a facility or facilities and then transport the captured gases for injection at a number of different projects only some of which might be disposal projects and others might be EOR projects. In such a circumstance it might be necessary to prorate captured emissions across these projects, with some presumably being credited under this Protocol and others credited, if at all, under an EOR Protocol. I noted above that the SGER was amended in 2011 to provide for double crediting for Quest. Thus the regulation provides offset credits for the sequestration of CO2 and also provides offset credits for the capture of CO2 at an upgrading facility provided that the CO2 is also sequestered. As a result the Protocol can be used to quantify both sets of credits. Double crediting undermines the integrity of Alberta’s offset system and one wonders why the province decided to make carbon financing available in this manner rather than simply adjusting the other sources of financial support available for Quest. But that is a broader issue which goes far beyond the details of this QP. The QP contains the “disclaimer” that all QPs are subject to regular review but offers the assurance that such a review “will not impact the credit duration stream (sic) of projects that have been initiated under previous versions of the protocol. Any updates to protocols … will apply at the end of the first credit duration period for applicable project extensions.” This is a standard clause included in most QPs. It clearly makes sense in the context of the normal crediting period associated with offset projects (8 + 5). Thus a conventional offset project would have to re-qualify at the end of the 8 year term on the basis of the revised QP. In the case of CCS projects however the application of this clause will ensure that a qualifying project such as Shell’s Quest project will be grandparented or “stabilized” for twenty five years (assuming that is the crediting period agreed upon). This may well be appropriate given the capital costs associated with CCS projects and the reality that CCS projects, unlike EOR projects or methane capture projects, do not provide any revenue stream. Shell and others will require some certainty as to the manner in which credits will be quantified over something like the life of the project. But it does mean, for example, that even if CCS were in the future to be required by law for a project that is registered under this Protocol (and is therefore BAU), the project would still continue to generate offset credits. This is actually consistent with s.7(1.1)(c) and s.7(1.2)(c) of the SGERs, which contemplate sequestration and capture crediting provided that “the sequestration\capture of the specified gas must not be required by law at the time sequestration\capture of specified gas is initiated”. (emphasis added) All of that said, it does seem a little strange that something as important as the crediting period for an offset project is provided for in the Technical Guidance documents rather than in the regulations. This is simply one example of how these issues are negotiated between government and industry without any opportunity for public participation. The SGER is anything but transparent in its application. The CCS Saline Protocol is generally structured in the same manner as other Alberta Protocols. Thus it endeavours to describe the project condition (i.e. a project involving capture, transportation and storage) and then identifies all possible project sources of CO2 emissions and any possible sinks. Having done so, Table 5 identifies whether a proponent should be required to quantify (measure/estimate) these sources or sinks. A common reason given for not requiring quantification (e.g. the emissions associated with construction activities or decommissioning activities) is that such emissions are one-off and are negligible in the context of the entire project and that their exclusion is “consistent with Alberta practice”. In providing comments on an earlier draft of this QP I suggested that it would be nice to know if this was consistent with international practice as well as Alberta’s practice. The current version of the QP has not changed in this regard. Is this important? I think that it is important to the extent that Alberta is interested in maintaining market access for oilsands production. Premier Prentice indicated through the throne speech that market access remains a critical issue for his government (hardly a surprise) and thus it becomes important to reassure others that Alberta’s offset scheme is as stringent in ensuring ‘environmental integrity’ as are other offset schemes. One way to do that is to offer the assurance that Alberta’s offset protocols are at least as stringent as the offset protocols of, say, the Clean Development Mechanism. The Protocol distinguishes between the monitoring that is required for quantification and verification purposes under the Protocol (project monitoring) and the monitoring that is required to provide assurance that the injected CO2 remains sequestered (referred to in the Protocol as MMV (monitoring, measurement and verification) of containment) and that there are “no emissions to surface”. The latter as the QP points out is actually the responsibility of the Alberta Energy Regulator (AER) under the terms of the OGCA and the AER Directives and of the Minister of Energy under the terms of the MMA and Sequestration Regulations. Consequently it is not clear to me why the Protocol needs to address this second type of monitoring at all except to the extent that if MMV of containment identifies a leak to surface such an event would inter alia trigger a reassessment of offset credits as discussed in the next few paragraphs. Finally, the QP contains (at 69) a statement about “liability”. It observes that liability for “sequestered carbon” rests with “the project developer” until a closure certificate is issued. In fact, as the rules are currently written, “climate CO2 liability”, whatever we mean by that, is not a liability that is assumed by the Crown when the closure certificate is issued. It is true that the RFA recommended that this liability should be assumed by the Crown but this recommendation has yet to be implemented. The QP hints at this since it acknowledges that the GoA is “developing policy guidelines on climate CO2 liability for the post closure period and will update the regulations and protocol, as required.” But this may easier said than done because of the lack of clarity about what we mean by the term “climate CO2 liability” or equivalent terms. In general there is no liability for CO2 emissions. The only people who carry a CO2 liability are the owners of (persons responsible for) regulated facilities under the SGER and then only for any emissions that they release in excess of their emissions intensity based targets. The owner/operator of a CCS saline project will never have any liability as the person responsible for a regulated facility because a saline project will never be regulated facility. So how might CO2 liability arise in the first place? The only liability we can possibly be talking about is the potential liability that a person responsible for a regulated facility (i.e. not the sequestration project) might have if that person has used offset credits generated under this Protocol to achieve compliance and it subsequently transpires that some of the sequestered CO2 on which those credits were based has leaked into the atmosphere. In sum, the liability is a liability of the “person responsible” for the regulated facility that has used CCS offset credits to meet its obligations and not a liability of the operator of the CCS injection facility. While in some cases this may be the same person, the offsets may also have been sold on the carbon market. I think that this interpretation is confirmed by s.26 of the SGER, which provides as follows:
26(1) The director may issue an order to the person responsible for a facility requiring the person responsible to take the measures specified in the order to minimize or remedy the effects of the facility releasing specified gases into the environment in amounts in excess of those within the net emissions intensity limit for the facility where
(a) a compliance report indicates that the net emissions intensity limit for the facility has not been met,
(b) the director determines that the calculation of the net emissions intensity of the facility was incorrect or was based on inaccurate, incorrect or false information and that the net emissions intensity limit for the facility was exceeded, or
(c) the value for the emission offsets that was used to calculate the net emissions intensity of the facility for a year is no longer valid because some or all of the tonnes of specified gases which the emissions offsets represented as not being released into the environment have subsequently been released.
(2) An order under subsection (1) may require the person responsible to take the following measures:
(a) obtain emission offsets or emission performance credits;
(b) make contributions to the Fund;
(c) any other measures that the director considers advisable. (emphasis added)
The issue is also addressed in the Technical Guidance for Completing Specified Gas Compliance Reports, version 7.0, January 2014 under the heading of “Offset Credit Error Correction”. That Guidance also warns (at 36) that “Corrective actions between buyers and sellers of offset credits are determined through contractual arrangements between the two parties and are outside the scope of the Regulation.” All of this suggests that the problem of “CO2 liability” is a general problem and not something specific to this Protocol. Indeed, to the extent that I have checked, no other Alberta Protocols contain a section on “Liability”. Perhaps then this section might simply be removed from this Protocol. To the extent that Alberta wishes to assume CO2 liability post closure certificate as well as other forms of liability it may do so – but by means of an amendment to the Mines and Minerals Act.
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By: John-Paul Boyd
Lawyers practicing in jurisdictions with multiple trial courts and no unified family court will be aware of the challenges facing litigants without counsel. First there’s choosing the right law, because of the overlapping federal and provincial legislative jurisdiction in family law matters. Then there’s choosing the right court, because of the trial courts’ simultaneous but asymmetric subject matter jurisdiction. And then there’s the question of the courts’ relative degrees of complexity, expense and accessibility, and the extent to which corollary social and legal support services are or are not embedded in the court process.
One obvious solution might lie in amalgamating the trial courts to provide litigants with one court, with easy to understand rules and processes that are proportionate to the nature of the dispute and specific to family law, that is integrated with the relevant social services. This is more or less the approach taken in parts of Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Ontario and Saskatchewan, where there is a single court for the resolution of family law disputes, but it seems to be off the menu in Alberta and British Columbia for reasons that escape me.
The unified family court concept is not a new one. British Columbia initiated a short-lived project in 1974, Manitoba, Ontario and Saskatchewan each launched pilot projects in 1977, and a committee of the Alberta Law Society recommended the establishment of a unified family court in that province in 1968. In fact, the 35th anniversary of the Hamilton Family Court, the first unified family court in Ontario, was celebrated just two years ago.
In essence, unified family courts recognize the special nature of family matters as a distinct area of the civil law and are meant to provide litigants with one-stop shopping, avoid a piecemeal approach to a family’s legal issues, and reduce the likelihood of duplication, delay and harassment through a multiplicity of proceedings. Ideally, a unified family court would have:
Such a court should improve access to family justice and related social services, and produce outcomes that are better tailored to the needs of the users of the system and their children.
Makes sense, doesn’t it? Here’s the rationale for a unified family court given in Alberta in 1976 by a special committee composed of the province’s Chief Justice, judges from the superior and provincial courts, with representatives from the Law Society of Alberta and what was then known as the Department of the Attorney General:
Family law deals with the problems of husbands and wives arising from the breakdown of marriages. It deals with problems of the protection and support of children arising from the breakdown or lack of family relationships, and the problems arising from the unlawful conduct of children and juveniles. These are among the most numerous and the most serious and important problems with which society must deal, and it is imperative that society provide strong courts and efficient social services in order to deal with them.
The Committee is concerned that the numerous and varied problems affecting families are not being satisfactorily dealt with under the present divided court structure. The fragmented jurisdiction makes improvement very difficult. The Committee is convinced that the time has come when important changes and solutions can be implemented only if a Family Court is created with original exclusive jurisdiction over the entire field of matters affecting the family.
And yet here’s how one commentator, lawyer and academic Michelle Christopher, described the state of the family justice system and the rationale for a unified family court in 2004:
Access to justice has long been a concern to the public, particularly in family law disputes, where parties lack the deep pockets to provide funds to sustain the type of prolonged and costly litigation that is common in corporate and commercial law contexts. … [It] has been argued that family law litigants are at a distinct disadvantage in trying to proceed without legal counsel, because the jurisdiction for family law problems is not limited to one level of court, or in Calgary, even to one court building! The public has long complained, and with good reason, that it is difficult to know whether their matters will be heard in Provincial Court or in the Court of Queen’s Bench. …
The public is not expected to be entirely conversant with issues of legislative jurisdiction, which require federal matters such as divorce to be heard in the first instance in the Court of Queen’s Bench. The Provincial Court of Alberta has jurisdiction to hear all matters of “purely local and provincial concern,” including child welfare and domestic relations (non-divorce, guardianship, custody and access) matters relating to the children of unmarried or never-married parents, or separated parents who are not yet divorcing, except if the proceedings are to establish paternity, in which case the Court of Queen’s Bench has jurisdiction. If you are a grandparent seeking access to your grandchild, your matter will be heard in the Provincial Court. In the case of child support, matters are also heard in the Court of Queen’s Bench, unless you are bringing an application for the reciprocal enforcement of a child support order from another province, in which case you will be heard in the Provincial Court, and so on. You get the picture. Except that it’s totally confusing to members of the public, and does affect access to justice.
Sadly, the complexity of the family justice system has a direct impact on the ability of litigants to proceed without counsel. In a 2014 survey of 167 judges and family law lawyers conducted by the Canadian Research Institute for Law and the Family and two prominent academics, all Alberta respondents said that special challenges always or usually arise because of unrepresented litigants’ unfamiliarity with the rules of court and the law of evidence, and 96.9% said that challenges always or usually arise because of litigants’ unfamiliarity with court processes.
You can read about how these issues compound the other challenges faced by litigants without counsel elsewhere on my blog.
Interestingly enough, although unified family courts are far from perfect, they do in fact generate the results expected of them. According to a 2006 report prepared by the Institute and Nicholas Bala for the federal Department of Justice, most family law lawyers practicing in regions with unified family courts said that they have simplified court procedures, provide easy access to family justice services and produce outcomes tailored to individual needs. What they’re less good at is providing a speedy resolution to family law disputes. This is what the 164 lawyers surveyed said about four key performance benchmarks:
There are, of course, two main difficulties with implementing a unified family court in Alberta and British Columbia. First, both the provincial governments and the federal government need to cooperate with each other to set up the new court and address the jurisdictional issues arising from the merger of a court with statutory jurisdiction and a court with inherent jurisdiction. Second, it can’t cost too much. None of the governments in question are going to be keen about spending money on a family law court even though the national divorce rate is 40.7% and 21.5% of Canadian children live in lone-parent families. Neither problem is, in my view, insurmountable.
In 1978, the Alberta Law Reform Institute published two papers that address the constitutional issues and continues to be relevant, a paper expressing legal opinions on the question of jurisdiction (PDF) and a paper laying out the structure of a proposed unified family court (PDF). In the jurisdiction paper, one of the authors concludes that the provincial Governors General may grant limited appointments to provincial judges to enable them to undertake the functions of federally-appointed judge; this, however, carries with it the concern that the federal government would be responsible for their salaries which is, presumably, a non-starter. In the proposal paper, the authors discuss the possibility of the federal government giving provincial judges special limited warrants to exercise some of the powers of a federal judge.
This second idea may be the better solution, as it would preserve the expertise of the provincial court judges who already are partial specialists in family law matters, incorporate them as members of a new court with their federally-appointed peers, and leave their salaries paid by the provincial government. In the current atmosphere of fiscal restraint, I cannot imagine either level of government being asked to commit significant new resources, much less absorb the burden of a boatload of judges currently paid by the other!
Both of the ALRI papers need to be read to get a thorough handle on the constitutional issues. I note, however, the provisions of s. 25 of the Divorce Act, RSC 1985, c 3 (2nd Supp), which allow the provinces to “make rules applicable to any proceedings” under the act, including rules:
(a) regulating the practice and procedure in the court …
(e) prescribing and regulating the duties of officers of the court …
(g) prescribing and regulating any other matter considered expedient to attain the ends of justice and carry into effect the purposes and provisions of this Act.
These provisions were introduced with the 1985 Act and seem to me to extend an authority to the provincial governments that was not available when ALRI’s reports were published in 1978 and may offer further options.
Back to the cost issue for one moment. I strongly suspect that a unified family court will ultimately save more money than what is expended under the current system, even with the costs of an expanded court administration which incorporates a broader range of dispute resolution options and social services added in. If a unified family court promotes the rational, reasonable settlement of family law disputes, it will reduce the number of files headed to trial and the resulting savings over the existing litigation-focussed system will be significant.
At the end of the day, report after report has commented on the barriers that inhibit access to justice, and prominent among them is the labyrinthine complexity of a judicial system involving two courts with concurrent but incongruent jurisdiction, with different rules, processes and forms. This barrier assumes a new significance in light of the ever-increasing numbers of litigants involved in civil court proceedings without counsel, numbers which represent anywhere from 50% to 80% of the court docket depending on the jurisdiction you’re looking at. A simpler, more streamlined process, with a new and heightened emphasis on integrated social services, managed by a bench of specialist judges, may not be the only or the best answer for family law litigants, but it’s a concept that has proven to work elsewhere and surely deserves to be considered.
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By: Jennifer Koshan and Jonnette Watson Hamilton
We recently posted a paper on SSRN that is forthcoming in the Review of Constitutional Studies, dealing with the Supreme Court of Canada’s approach to adverse effects discrimination under section 15(1) of the Charter. Adverse effects discrimination occurs when laws that are neutral on their face have a disproportionate and negative impact on members of a group identified by a prohibited ground of discrimination. Although the Court has recognized adverse effects discrimination as key to the Charter’s guarantee of substantive equality, it has decided only 8 such cases out of a total of 66 section 15(1) decisions released since 1989, none since 2009. Only 2 of the 8 claims were successful (see Appendix I in our paper). Our analysis shows several obstacles for adverse effects discrimination claims, including burdensome evidentiary and causation requirements, courts’ acceptance of government arguments about the “neutrality” of policy choices, narrow focusing on prejudice and stereotyping as the only harms of discrimination, and failing to “see” adverse effects discrimination, often because of the size or relative vulnerability of the group making the claim.
In light of the very small number of successful adverse effects claims and the problems in the case law, it is interesting to note that in October 2014 the Supreme Court heard 2 section 15(1) appeals involving adverse effects discrimination: Carter v Canada (Attorney General) and Taypotat v Taypotat, 2012 FC 1036, 2013 FCA 192; leave to appeal to SCC granted 2013 CanLII 83791 (SCC). This post will focus on Carter, a challenge to the ban on assisted suicide under the Criminal Code, RSC 1985, c C-46, and the adverse effects discrimination arguments the Supreme Court is considering in that case. We acknowledge that the Court is far more likely to decide Carter on section 7 grounds—much of the Court’s focus during oral arguments was on whether the ban violates the rights to life and security of the person in ways that are arbitrary, overbroad or grossly disproportionate, contrary to the principles of fundamental justice (see Webcast of the Carter Hearing, October 15, 2014). Nevertheless, Carter raises important equality issues as well.
Many ABlawg readers will know that Carter is the second challenge to the assisted suicide provisions of the Criminal Code. The first challenge was dismissed 5:4 in Rodriguez v British Columbia,  3 SCR 519. Rodriguez included an adverse effects discrimination claim under section 15(1), which was denied by the majority on the basis that, even if there was a violation of equality rights, it would be saved by section 1 of the Charter (at para 185). In contrast, a dissenting judgment by then Chief Justice Lamer (Cory J concurring) found that although the assisted suicide prohibition was neutral on its face, it prevented the choice of suicide, open to other Canadians, by terminally ill persons with disabilities that made them physically unable to end their lives unassisted (at para 48). This amounted to adverse effects discrimination on the basis of disability for those two judges. Justices L’Heureux-Dubé and McLachlin (as she then was), in a separate dissenting judgment, found that the prohibition on assisted suicide violated the right to security of the person under section 7 of the Charter. As for section 15, they stated that “this is not at base a case about discrimination … and … to treat it as such may deflect the equality jurisprudence from the true focus of s. 15 — ‘to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society’” (at para 196). Their judgment reflects the difficulty that courts sometimes have seeing adverse effects discrimination.
In Carter, the new challenge to the constitutionality of the prohibition against assisted suicide was successful before Justice Lynn Smith of the British Columbia Supreme Court (BCSC) under sections 7 and 15(1) of the Charter (2012 BCSC 886). However, a majority of the Court of Appeal overturned her decision, finding that she should have dismissed the claim because of the precedent of Rodriguez (2013 BCCA 435). The Supreme Court is re-considering Rodriguez substantively, so it is useful to consider the parties’ arguments at the BCSC and Justice Smith’s reasons under section 15(1) in some depth.
The section 15(1) claim in Carter was that the criminal prohibition against assisted suicide had an adverse impact on the terminally ill who are materially physically disabled. Under the first step of the current test for discrimination from R v Kapp, 2008 SCC 41,  2 SCR 483 and Withler v Canada (Attorney General), 2011 SCC 12,  1 SCR 396, Justice Smith considered whether the law created a distinction based on a prohibited ground of discrimination. She found that this step was satisfied because the law, in effect, drew a distinction based on physical disability. Justice Smith rejected the federal and BC governments’ argument that since everyone is precluded from committing suicide with assistance, there was no distinction, indicating that this argument “ignores the adverse impact/unintended effects discrimination analysis central to the substantive equality approach” (at para 1073). In addition, she noted that “[i]t is not necessary for every member of a disadvantaged group to be affected the same way in order to establish that the law creates a distinction based upon an enumerated or analogous ground” (at para 1074).
The governments also argued that the claim should fail at the first step of the test because some people who desire assisted suicide are motivated by lack of will, rather than disability. The governments suggested that the physically disabled could still commit suicide by refusing food or drink. This argument could be seen as going to causation because it implies that it is not the law that creates the adverse impact but rather the choices made by some of the claimants. Justice Smith dismissed this argument, saying that “there are means of suicide available to non-disabled persons that are much less onerous than self-imposed starvation and dehydration, and it is only physically disabled persons who are restricted to that single, difficult course of action” (at para 1076).
Step two of the Kapp / Withler test focuses on “whether the distinction perpetuates disadvantage or prejudice, or stereotypes people in a way that does not correspond to their actual characteristics or circumstances”, which requires “consideration of the actual impact of the law” (at paras 1080, 1081). The claimants argued that that the assisted suicide provisions perpetuated disadvantage, because “those with grievous illnesses suffering from physical disabilities are disadvantaged and … the law disadvantages them further” (at para 1087). They also argued that the law stereotyped them by implying that physically disabled persons “lack sufficient autonomy or agency to make such momentous decisions” (at para 1088).
The governments argued that the law should be seen as a “neutral and rationally defensible policy choice,” relying on the Supreme Court’s decision in Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37,  2 SCR 567 (for posts on that decision see here and here). This argument was dismissed by Justice Smith, who noted that Hutterian Brethren “included no discussion of adverse impact discrimination” and concluded that “[i]t would be mistaken … to read the … decision as a repudiation of the adverse impact analysis approved in the long line of cases I have referred to…” (at para 1093).
Under step two of the Kapp / Withler test, Justice Smith considered the contextual factors relevant to whether discrimination perpetuates prejudice or stereotyping. The most contentious factors were, first, the correspondence between the grounds of discrimination and the actual need, capacity, or circumstances of the claimants and, second, ameliorative purpose.
On the correspondence factor, the governments argued that the ban on assisted suicide was in line with the actual needs and circumstances of persons with physical disabilities, who faced “heightened risk” of being persuaded to ask for assistance in dying “in an ‘ableist’ society” (at paras 1115, 1118 and 1128). The claimants replied that to treat all persons with physical disabilities as vulnerable would deny their autonomy to make fundamental decisions about death, a denial amounting to paternalistic stereotyping (at para 1122). Justice Smith agreed with the claimants, concluding that the assisted suicide prohibition had the effect of depriving non-vulnerable people “of the agency that they would have if they were not physically disabled” (at para 1130). She also dismissed the governments’ argument that the law was not discriminatory because it had an ameliorative purpose, noting that this factor is only relevant where “the person or group excluded from ameliorative laws or activities is more advantaged in a relative sense,” which was not the case here (at para 1140).
Justice Smith’s overall conclusion was that the ban on assisted suicide “perpetuates and worsens a disadvantage experienced by persons with disabilities” and therefore violates section 15(1) of the Charter (at para 1161). The law failed the minimal impairment stage of the section 1 analysis because “a less drastic means of achieving the objective of preventing vulnerable persons from being induced to commit suicide at times of weakness would be to keep the general prohibition in place but allow for a stringently limited, carefully monitored system of exceptions” (at para 1243). Justice Smith granted the claimants a declaration that the provisions banning assisted suicide were of no force and effect “to the extent that they prohibit physician-assisted suicide by a medical practitioner in the context of a physician-patient relationship” (at para 1393).
In our opinion, Justice Smith’s judgment in Carter appropriately rejects the government arguments that rely on claims of neutrality, rigid analysis of distinctions and grounds, and adherence to narrow understandings of discrimination.
Carter (SCC hearing)
As noted above, one of Justice Smith’s findings at trial was that “[i]t is not necessary for every member of a disadvantaged group to be affected the same way in order to establish that the law creates a distinction based upon an enumerated or analogous ground” (at para 1074). This point is well accepted in section 15 cases. In Carter, there was a lot of debate about the composition of the relevant group in the Supreme Court of Canada’s hearing of oral arguments. Joe Arvay, counsel for the Appellants, indicated that while his clients’ section 15(1) claim applied only to terminally ill persons who were physically unable to commit suicide, their section 7 claim encompassed the larger group of persons desiring physician assistance to commit suicide even if they were not physically unable to take their lives (see Webcast of the Carter Hearing). The Appellants indicated that they preferred the claim to be decided under section 7 for this reason and, in fact, did not prioritize their section 15(1) arguments at the oral hearing, relying on their factum for those submissions when the clock ran out.
The Attorney General of Canada and some interveners raised questions about whether the claimants and others in their position constituted a vulnerable group as compared to persons with disabilities who might be taken advantage of if an exemption to the criminal law was created (see Factum of the Attorney General of Canada at para 137; Factum of the Intervener Council of Canadians with Disabilities and the Canadian Association for Community Living at para 20). Nevertheless, Canada conceded that the law created a distinction for the purposes of section 15(1) (Factum of the Attorney General of Canada at para 125). As a result, it is not surprising that the government did not maintain its “neutral policy choice” argument at the Supreme Court (although that argument was put forward by the Euthanasia Prevention Coalition in its intervention).
As we have indicated, causation problems are also common in adverse effects discrimination cases. The Attorney General of Canada did not maintain its causation argument at the Supreme Court level in Carter either but the Euthanasia Prevention Coalition did contend in its factum (at para 19) that the assisted suicide prohibition “is not the cause of any adverse treatment of people with disabilities.” A response to this argument can be found in the Supreme Court’s decision in Canada (Attorney General) v. Bedford,  3 SCR 1101, 2013 SCC 72, where the Court held that a challenge to the prostitution provisions of the Criminal Code could not be defended on the basis that the laws were not the sole cause of the harms related to prostitution. Bedford confirms that Charter claimants are only required to show a sufficient causal connection between government action and the harms they suffered (at para 75). This kind of connection is clearly present in Carter.
Although many adverse effects claims involve unintentional discrimination, it is important to recognize that Carter is a claim of intentional adverse effects discrimination. Canada has maintained the prohibition against assisted suicide in spite of the evidence and argument in Rodriguez that the law has a disproportionate and potentially discriminatory impact on some terminally ill persons with physical disabilities. It is the intentional nature of the government’s actions in ignoring the impact of the assisted suicide law that makes it possible to argue stereotyping in this case, even though stereotyping is usually difficult to prove in adverse effects discrimination claims. Whether the law engaged in stereotyping was a major focus of the parties’ and interveners’ arguments at the Supreme Court, with debate focusing on whether the government made inappropriate assumptions about the vulnerability of the relevant group. For the Appellants and some interveners, the blanket prohibition against assisted suicide stereotyped persons with disabilities as “incapable of demonstrating rationality and autonomy” (Factum of the Appellants at para 124) as well as “patronizing and infantilizing” them (Factum of the Intervener Dying with Dignity at para 15). For the Attorney General of Canada and other interveners, the law appropriately took the vulnerability of persons with disabilities into account and had an “ameliorative purpose” (Factum of the AG Canada at paras 135,137; Factum of the Euthanasia Prevention Coalition at paras 23-24).
The decision in Carter on whether the law is discriminatory may turn on whether there is evidence of stereotyping, but the Court’s recent section 15(1) decision in Quebec (Attorney General) v A, 2013 SCC 5,  1 SCR 61 allows it to focus on disadvantage more broadly (see our comments on that case here). If it takes this broader approach, it should not be difficult for the Court to find that the assisted suicide prohibition perpetuates the disadvantage experienced by some persons with disabilities.
Carter also raises the question of whether the category of adverse effects discrimination should be retained under section 15(1) of the Charter. The existence of a distinction between direct and adverse effects discrimination has been called into question under human rights legislation (see British Columbia (Public Service Employee Relations Commission) v BCGSEU,  3 SCR 3 at paras 27-30). This issue is a live one, as one of the interveners in Carter maintained that “this is not at base a case about discrimination” (Factum of the Council of Canadians with Disabilities and the Canadian Association for Community Living at para 21). We agree with those commentators who argue that retaining the category of adverse effects discrimination is important to the courts’ ability to recognize systemic discrimination (see e.g. Dianne Pothier, “Tackling Disability Discrimination at Work: Toward a Systemic Approach” (2010) 4 McGill J L & Health 17; Colleen Sheppard, “Of Forest Fires and Systemic Discrimination: A Review of British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U.” (2000-2001) 46 McGill L J 533). The fact that in Rodriguez only two judges found the assisted suicide prohibition violated section 15(1) suggests that the adverse effects category is a useful lens for determining whether a law has discriminatory effects.
Given the issues arising under adverse effects discrimination cases, and the strong connection between adverse effects discrimination and substantive equality, we hope that the Supreme Court will take the opportunity to decide Carter under section 15(1) of the Charter, rather than deciding the case solely on the basis of section 7.
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Case commented on: Harry Daniels et al. v. Her Majesty the Queen as represented by The Minister of Indian Affairs and Northern Development et al, 2013 FC 6, varied 2014 FCA 101; leave granted November 20, 2014 (SCC) (35945)
Yesterday the Supreme Court of Canada (Chief Justice McLachlin and Justices Cromwell and Wagner) agreed to hear Daniels, a case that raises the issue of whether Métis and non-status Indians fall within the scope of federal powers under section 91(24) of the Constitution Act 1867. For an ABlawg comment on the Federal Court and Federal Court of Appeal decisions, see here.
The panel’s decision reads as follows:
The motion of the intervener Métis National Council for an extension of time to serve and file a response to the application for leave to appeal and for leave to file a response to the application for leave to cross-appeal is granted. The application for leave to appeal is granted with costs in any event of the cause. The application for leave to cross-appeal is granted. A party having intervened in the Federal Court of Appeal and wishing to intervene before this Court shall seek leave to intervene.
Here is a summary of the case from the SCC website:
Constitutional law — Division of powers — Aboriginal law — Métis — Trial court issuing declaration that Métis and non-status Indians are “Indians” pursuant to s. 91(24) of the Constitution Act, 1867 — Court of appeal varying declaration so as to exclude non-status Indians from scope of declaration — Whether Métis and non-status Indians are “Indians” pursuant to s. 91(24) so that the federal government has jurisdiction to make laws with respect to those peoples — Whether court of appeal erred in varying terms of declaration — Whether court of appeal erred in declining to grant additional declarations sought by applicants — Constitution Act, 1867, s. 91(24)
In 1999, the applicants instituted proceedings in Federal Court in order to resolve a long-standing issue as to which of Canada or the provinces has jurisdiction over the Métis and non-status Indian peoples. Specifically, they sought to obtain a determination that the federal government has constitutional jurisdiction pursuant to s. 91(24) of the Constitution Act, 1867 over Métis and nonstatus Indians. In Federal Court, they sought the following declarations:
(a) that Métis and non-status Indians are “Indians” within the meaning of the expression “Indians and lands reserved for Indians” in s 91(24) of the Constitution Act, 1867;
(b) that the Queen (in right of Canada) owes a fiduciary duty to Métis and non-status Indians as Aboriginal people; and
(c) that the Métis and non-status Indian peoples of Canada have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples.
By: Nigel Bankes
Bill Commented On: Bill 1: Respecting Property Rights Act
The good news about Bill 1 for those with communitarian views is that Bill 1 does not change the law of Alberta one iota. The bad news about Bill 1 for those of a more libertarian persuasion is that Bill 1 does not change the law of Alberta one iota.
Here is the entire text of Bill 1 from its bizarre preambular provisions to its single operative clause:
WHEREAS private ownership of land is a fundamental element of Parliamentary democracy in Alberta;
WHEREAS the Alberta Bill of Rights recognizes and declares the right of the individual to the enjoyment of property and the right not to be deprived thereof except by due process of law;
WHEREAS the Government is committed to consulting with Albertans on legislation that impacts private property ownership;
WHEREAS the Land Assembly Project Area Act was enacted by the Legislature in 2009 and was amended in 2011 but has not been proclaimed in force; and
WHEREAS the repeal of the Land Assembly Project Area Act reaffirms the government’s commitment to respect individual property rights;
THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:
Land Assembly Project Area Act Repeal
This post addresses two questions. First, how is it that despite all the pomp and circumstance surrounding the introduction of this Bill, legally, it changes nothing? And second, why, at least in the opinion of this author, is that a good thing?
Bill 1 does not change the law of Alberta one iota
When it comes to changes in the law, the only thing that matters is the operative clauses of the statute. Preambles are nice. They help establish context for the legislation. They may be influential in the interpretation of the operative clauses of the statute if there is ambiguity. But the only thing that matters is the operative clauses themselves and all that s.1 of this statute does is to repeal an un-proclaimed statute of the province of Alberta. There is nothing ambiguous about this provision. This statute is finished the day it enters into force. All that it does is repeal another Act that was never part of the law of Alberta. An un-proclaimed statute has no legal significance; until proclaimed it is nothing more than a declaration writ in water.
It’s a good thing that Bill 1 does not change the law of Alberta one iota
Why is this a good thing? In my opinion this is a good thing because the property rights of individual Albertans, rural and urban, are already adequately protected by the common law and the statutes of Alberta. We don’t need more protection. As the preamble to Bill 1 itself acknowledges, the Alberta Bill of Rights recognizes and declares the right of the individual to the enjoyment of property and the right not to be deprived thereof except by due process of law. The Executive branch has no prerogative power to take the property of any person and there is a presumption that the legislature does not intend to take the property of any person without the payment of compensation. The original version of the Alberta Land Stewardship Act, SA 2009, c. A-26.8 (ALSA) provided in s.37 that an owner should have a right to compensation where a regional plan prescribes a conservation directive which is designed to “permanently protect, conserve, manage and enhance environmental, natural scenic, esthetic or agricultural values.” ALSA was subsequently amended (SA 2011, c.19. adding s.19.1) to open the door to additional possible claims to compensation where a regional plan “might diminish or abrogate” a person’s property interests. I have criticized that amendment (see Regulatory Chill) but the point for present purposes is that we have, over the last few years, already provided additional grounds for compensating landowners whose interests may be affected by government action, and in particular government action to protect environmental values. There is little, if any, reason for thinking that as a society we need to go further.
It is important that individuals who, as a result of government action, suffer disproportionately in the interests of the community should not bear that loss alone; they should be entitled to compensation. But that does not mean that every trivial interference with the enjoyment of our property or every diminution in property value attributable to a government decision is compensable. Why? Because we live in a society. We are not atomistic individuals. We live as part of a community. Property (and its value as Henry George, Progress and Poverty, reminded us) is a social construct, a product of community and society and not just individual effort and investment. If we compensated every trivial interference and very diminution in property value attributable to a government decision we would never build anything for community. Consider the following examples:
I think that all will agree that B, C, and D deserve compensation and indeed they will get compensation under provincial law. But generally E, F, G, and H will not have a claim to compensation. The impairment in property values that they suffer is simply a part of the price of living in a community and in a society. Consider if we were to try and compensate E, F, G and H – the cost of doing so (the transaction costs) including the cost to get the finely granulated compensation award right for owners whether they lived 10 metres, 100 metres or 500 metres from the new road (or school or hospital) would eat up the efficiency gains (the societal benefit) of constructing the utility or facility in the first place. For an important effort to work out a theory of when we should (and in some case should not) compensate, see (albeit in the US constitutional context) Frank Michelman’s classic article, “Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law” (1967) 80 Harvard Law Review 1165.
And finally, consider this example:
In my view J does not deserve compensation. J never had the right to develop his property in a way that destroyed ecosystem values or destroyed fish habitat; and yet recent federal and provincial laws both give J at least some claim to compensation: see ALSA, s.19.1 & 37 and Species at Risk Act, SC 2002, c.29, s.64.
I, for one, am glad that this Bill does not further fuel expectations that every limitation on an owner’s use of property, or every diminution in value attributable to government action, should give rise to a right to compensation.
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By: Alice Woolley
PDF Version: Trinity Western… Again
I can’t stop thinking about the law society decisions on Trinity Western University (TWU). Part of the reason for that is the complexity and difficulty of the substantive issue raised by TWU’s proposed law school: the proper resolution of an irreducible conflict between equality rights and freedom of religion (I discuss that here). But as I spent the last few weeks teaching administrative law procedural fairness, I realized that the other thing bothering me about the law society decisions is the process used to reach them.
As far as I can tell, each law society that has independently considered TWU’s application for accreditation (or is likely to; Alberta delegated its decision to the Federation of Law Societies) has proceeded by way of a quasi-legislative process: TWU and other interested parties make submissions to a meeting of benchers, who then debate the question and vote. In April British Columbia benchers voted 20-6 against a motion barring TWU graduates from admission – a decision the benchers reversed in October following a referendum of its members. In Ontario benchers voted 28-21, with one abstention, to reject TWU’s application for accreditation (its process is discussed here). In Nova Scotia benchers voted 10-9 to make accreditation conditional on TWU withdrawing the community covenant which precludes LGBT students from attending.
New Brunswick had a vote of it membership, with 137-30 members voting in favour of a resolution directing the Law Society of New Brunswick not to accredit TWU. As noted, British Columbia has also made a decision based on a vote of its members.
The result of these decisions is that in some provinces we have a majority of elected benchers, or law society members, who do not think TWU ought to be accredited. What we do not have is any clear articulation of the reasons for those decisions, or their basis in law or fact.
That absence of articulated reasons is understandable and reasonable for an administrative body making a quasi-legislative decision. Such decisions involve matters of policy, and decide “polycentric” questions dependent on the balancing and resolution of a variety of competing factors. They are directed at no person in particular but rather at broader problems affecting people (or groups of people) in general. Such decisions do not properly require an evidentiary hearing before an impartial decision-maker who issues reasons; indeed, that sort of process would be inappropriate – it would be obtaining the wrong sorts of information and asking the wrong sorts of questions to determine public policy and to balance multiple concerns in the way that legislatures do.
But the decision on whether to accredit TWU is not a legislative or quasi-legislative decision. It is a decision directed at a specific party and determining the legal meaning and effect of that party’s conduct. It is at its heart adjudicative. A decision that TWU ought not to be accredited involves this sort of reasoning process:
That type of decision – identifying the applicable legal standard, specifying the meaning of that standard and applying it to a particular case – is what judges do, not what legislatures do. It ought, therefore, to be made in accordance with the kind of process appropriate for judicial or quasi-judicial decision-makers: a hearing before a relatively (this being administrative law) impartial decision-maker who issues reasons explaining its decision.
It may be that for statutory reasons law societies felt compelled to use the type of process that they did. TWU may also have acquiesced in it. Law societies may additionally have been relying to some extent on the Federation of Law Societies’ earlier more adjudicative process.
A more adjudicative process at the law societies rejecting TWU’s application would, however, have had considerable advantages. If nothing else, it would have clarified exactly what definition of discrimination the law societies are using, and the way in which TWU contravenes it. That, in turn, would have clarified the substantive issues before the court on judicial review and allowed the court to determine whether that definition is reasonable (or correct, if that is the applicable standard) and within the legislative authority of the law society to apply. The court could consider, as it ought to do when giving deferential judicial review, whether the reasons offered by the law societies are transparent, justifiable and intelligible.
Instead, a court considering TWU’s application for judicial review will have nothing to go on other than the submissions made by parties to the law societies and to the court; a transcript of a debate; the question asked and the tally of the resulting vote. And in the case of New Brunswick and British Columbia, a vote of the membership is all that it will have. That means that even if it ostensibly applies a deferential standard, the court will end up having to essentially make its own decision on the record and the law. What choice will it have? There are no reasons for it to defer to, no decision for it to assess as justifiable, transparent and intelligible.
I have been quite critical of the law societies’ assumption of the jurisdiction and authority to define the appropriate balance between equality rights and freedom of religion, suggesting that human rights tribunals or legislatures are more appropriate institutions to make that assessment. However, had the law societies in fact taken on the task of articulating their jurisdiction over law school discrimination, had defined what constitutes discrimination at a law school and explained why TWU’s conduct is discriminatory, and had done so with relative impartiality and after a full evidentiary hearing, my concerns would be considerably ameliorated. Even if I did not agree with the result, I would understand and respect the authority of the law societies to reach it.
Instead the debate over TWU can only focus on the result, rather than on the reasons that underlie it. And I retain an uneasy feeling that law society benchers and members have decided based on their intuitions and perceptions about what discrimination is and looks like, rather than on the fair and impartial application of a legal standard to a set of facts. Everyone here – TWU’s supporters and its opponents – deserves better than that. And the proper functioning of our legal system requires it.
An earlier version of this post appeared on Slaw.
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By: Shaun Fluker
Case Commented On: Ernst v Alberta Environment, 2014 ABQB 672
This short comment adds to the recent posts on ABlawg by Professor Martin Olszynski (here and here) and myself (here) on the Ernst litigation against Alberta Environment, the Alberta Energy Regulator (AER) 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 how Chief Justice Neil Wittmann applies the law on a motion to strike under Rule 3.68 and for summary judgment under Rule 7.3 of the Alberta Rules of Court, Alta Reg 124/2010 (the Rules) to dismiss Alberta’s application. I also ask how we reconcile this decision from the motion to strike initiated by the AER/ERCB and the decision by Alberta courts to grant that application.
Recall that Ernst alleges that Alberta Environment and the AER owe her a duty of care and were negligent by failing to meet that duty. The AER successfully applied to have the Ernst proceedings struck for failing to disclose a reasonable cause of action (Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285 (Ernst II)). Ernst has applied to the Supreme Court of Canada for leave to appeal this Court of Appeal decision (See here).
I provided some commentary on the legal test to strike under rule 3.68 of the Rules in my October 2014 post on Ernst (here). The Chief Justice summarizes the law in this decision in paragraphs 24 to 30, and he concludes the test requires the Court to read Ernst’s claim against Alberta Environment generously, taking the alleged facts as true, and to decipher whether there is any reasonable prospect that the claim will succeed (at para 30). This reading of the test to strike aligns with how the Court of Appeal explains it in Ernst II (at para 14). The Chief Justice dismisses Alberta’s application, holding there is a reasonable prospect of success for Ernst against Alberta Environment on regulatory negligence as summarized by Professor Olszynski in his November 14 post.
The Chief Justice also dismisses Alberta’s application for summary judgment under rule 7.3 of the Rules on the basis Alberta failed to establish there is no merit to the Ernst claim. One issue here was that Alberta did not file affidavit evidence in support if its application for summary judgment, relying solely on legal argument. The rule itself states “[t]he application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met.” What constitutes ‘other evidence’ is somewhat uncertain in the case law. The Chief Justice canvasses the cases placed before him in this case (at paras 72 – 81), and concludes:
Rule 7.3(2) requires affidavit or other evidence addressing the factual grounds. In order to succeed on an application for summary judgment, the court must have sufficient facts when taken with the record to determine if the test for summary judgment has been met. I agree with Ernst that Alberta’s failure to file an affidavit and the absence of “other evidence” as required under Rule 7.3(2) is fatal to its application for summary judgment in the context of this application. (at para 81)
The Chief Justice goes on to find that even notwithstanding this issue of evidence, Alberta failed to meet the legal test for summary judgment. The motion to strike a claim and an application for summary judgment are very similar. Indeed arguments advanced by an applicant are likely to be very similar or identical in both cases. The Chief Justice does highlight one important distinction between a motion to strike a claim and for summary judgment, and that is in relation to their legal effect as to the dispute between the parties. A summary judgment determines the dispute between the parties, whereas a successful motion to strike by the defendant does not preclude a fresh claim by the plaintiff against the defendant subject to applicable limitation rules (at para 84).
The Chief Justice canvasses recent articulations of the law on summary judgment at paragraphs 86-92. Simply put, the applicant for summary judgment must establish there is no genuine issue for trial (See Hryniak v Mauldin, 2014 SCC 7 at paras 47-49). Alberta failed to establish this here.
So how do we reconcile granting the AER its application to strike the Ernst claim as disclosing no reasonable cause of action and refusing the same application by Alberta Environment here? The obvious explanation is that the applicable legislation and the facts are different in the two cases, and thus applying the test to strike produces different outcomes. That is the explanation provided by the Chief Justice.
In his November 14 post, Professor Olszynski comments on how the Chief Justice describes the different roles for Alberta Environment and the AER with respect to Ernst. Professor Olszynski observes the key factual difference for Alberta courts in this litigation seems to be that there is an arguable case against Alberta Environment because it ‘puts boots to the ground’ and likewise there is no arguable case against the AER because it does not ‘put boots to the ground’. Like Professor Olszynski, I question that distinction here.
In my view, these decisions arguably suggest that Alberta Environment has a more direct role than the AER in regulating how an energy company explores for and recovers oil and gas resources to ensure such activity is performed in a safe and environmentally responsible manner. This message couldn’t be farther from reality, and it is an understatement to say this message sends a distorted view of how the energy industry has been regulated in Alberta. These agencies traditionally shared responsibility in some respects, but ultimately it has been the AER who determines how resource exploration and recovery takes place. This is even more certain now as the AER becomes the single regulator overseeing the recovery and development of energy resources in Alberta (For an accessible description of this AER authority see the Alberta Energy Regulator Brochure here).
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By: Martin Olszynski
Case Commented On: Ernst v EnCana Corporation, 2014 ABQB 672
This post follows up on a previous one regarding Ms. Ernst’s lawsuit against EnCana, the Energy Resources Conservation Board (ERCB, now the AER) and Alberta Environment for the alleged contamination of her groundwater as a result of EnCana’s hydraulic fracturing activity (fracking) near Rosebud, Alberta. My first post considered the ERCB’s application to have the action against it struck, with respect to which it was successful (see 2013 ABQB 537 (Ernst I), affirmed 2014 ABCA 285 (Ernst II)). On November 7, 2014, Chief Justice Wittmann released the most recent decision (Ernst III) in what is shaping up to be the legal saga of the decade. Like the ERCB before it, Alberta Environment sought to have the regulatory negligence action against it struck on the basis that it owed Ms. Ernst no private law “duty of care” and that, in any event, it enjoyed statutory immunity. In the alternative, Alberta sought summary judgment in its favor. In contrast to his earlier decision agreeing to strike the action against the ERCB, the Chief Justice dismissed both applications.
In my previous post, I noted some inconsistencies between Ernst I and II with respect to the duty of care analysis and suggested that courts should strive to apply the applicable test (the Anns test) in a predictable and sequential manner, the Supreme Court of Canada’s decision in Cooper v Hobbart, 2001 SCC 79 (still the authority for the content of that test in Canada) being valued first and foremost for bringing some much needed transparency to the exercise. In this respect, the Chief Justice’s most recent decision is exemplary. In this post, I highlight those aspects of the decision that help to explain the different result in this case, as well as those that in my view address some of the concerns I expressed in my previous post.
The Chief Justice began his analysis by reference to his earlier decision (at para 34), which itself relied heavily on the Supreme Court of Canada’s decision in Fullowka v Pinkerton’s of Canada Limited, 2010 SCC 5 (CanLII). The Chief Justice went further, however, tracing the historical roots of what is now known as the two-part Anns test (at para 35; see my previous post for a description of the test) and providing some additional guidance from both Cooper and its companion case, Edwards v Law Society of Upper Canada, 2001 SCC 80 (at paras 36 – 37).
The first question to consider was whether the asserted duty fell within, or was closely analogous to, a category of relationships where a duty had already been recognized. Counsel for Ms. Ernst invoked those cases dealing with negligent investigation (Hill v Hamilton Wentworth Regional Police Services Board, 2007 SCC 41) and negligent inspection (Kamloops v Nielsen, 1984 CanLII 21 (SCC)) but the Chief Justice considered such a category “overly broad,” noting that much of the analysis depends on the specific statutory provisions in play (at para 39). This meant that the two-part Anns test had to be applied.
The Chief Justice then proceeded to cite at length from Cooper and Kamloops, the latter case providing guidance on the distinction between government policy decisions, which are not subject to tort liability, and operational ones, which can be (at paras 41 – 45). Continuing with the spectrum approach to proximity that he first applied in Ernst I, the Chief Justice then set out a list of cases where a duty of care between a public authority or regulator and a plaintiff had been alleged, beginning with those where no proximity was found to those where it was found (at para 46).
Applying this framework to Ms. Ernst’s allegations against Alberta Environment, the Chief Justice was satisfied that a prima facie, or first-stage, duty of care could be established. The difference between the ERCB and Alberta Environment was explained at para 50:
 The ERCB and Alberta had different roles with respect to Ernst. Her allegations against the ERCB, which have been struck, related to the ERCB’s administration of its regulatory regime and its communications with her. Ernst’s allegations against Alberta include complaints about how it administered its regulatory regime, as well as allegations of a negligent investigation and inadequate response to her complaints about contamination of her well water. These allegations concern direct contact between Alberta and Ernst, and assert specific representations were made to Ernst. These facts, if proven at trial, could establish a sufficiently proximate relationship between Ernst and Alberta Environment. Further, if the allegations that her well water and the Rosebud aquifer have been contaminated as a result of hydraulic fracturing [are proven], Ernst could establish foreseeable harm. [emphasis added]
Having found that a prima facie duty was at least arguable, the Chief Justice turned to the second, “residual policy considerations” stage. Counsel for Alberta Environment appear to have borrowed directly from the Court of Appeal’s decision in Ernst II, arguing that “a private duty of care in this case would conflict with the public interest” in the relevant statutes (here the Environmental Protection and Enhancement Act, RSA 2000, c E-12 (EPEA) and the Water Act, RSA 2000, c W-3), and also that it “would expose Alberta to indeterminate liability” (at para 52).
The Chief Justice disagreed. Turning first to the issue of indeterminacy, he agreed with counsel for Ms. Ernst that her claim involved a specific incident with respect to a specific well. Furthermore, in a passage which I discuss further below, the finding of a duty of care “does not necessarily lead to liability – there must be a breach of that duty and the breach must cause the damage complained of” (at para 54). As for any conflict between public and private duties, Chief Justice Wittmann also agreed that “it is difficult at the pleadings stage to fully evaluate the policy concerns identified by Alberta without evidence and before a statement of defense has been filed” (citing Haskett v Trans Union of Canada Inc (2003) 63 OR (3d) 577 at para 55).
This left the statutory immunity argument. Alberta Environment relied on section 220 of the EPEA and section 157 of the Water Act. Counsel for Ms. Ernst argued that these were inapplicable in light of the pleadings that Alberta Environment had acted in bad faith (these provisions explicitly limit immunity to acts or omissions taken in good faith). Although the Chief Justice acknowledged that this argument had some merit, the more determinative factor – and the key difference between the statutory immunity provisions relied upon by the ERCB and Alberta Environment – was that the immunity clause with respect to the former explicitly contemplated the regulator as an entity (“the Board or a member of the Board…”) whereas the immunity provisions under the Water Act and the EPEA did not (referring only to “persons” in various capacities; see paras 62 – 71).
For all of these reasons, the Chief Justice concluded that the claim against Alberta Environment should not be struck. He also awarded Ms. Ernst her costs at triple the column she received back in September 2013 when the action against the ERCB was first struck:
 Ernst was wholly successful in responding to this Application. Further, although the roles played by the ERCB and Alberta in this matter are alleged to be very different, Alberta sought, in this Application, to rely on the same successful arguments made by the ERCB in the September 2013 Decision. These arguments could have been raised as part of Alberta’s first application, but were not. Ernst was put to the time and expense of two applications, not one. As I indicated in paragraph 23 above, whether this Application could have been brought previously is an issue for consideration in determining costs.
As stated at the outset, this decision would seem to set a new standard for the transparent and thoughtful analysis of the duty of care. Substantively, and beginning with the first stage of the Anns test, I do have some concerns about the potential implications of an analysis that seems to hinge on whether a regulator or other agency puts actual boots on the ground (the key factual difference between the ERCB and Alberta Environment). As the Chief Justice observed in Ernst I, a private duty cannot arise simply because an individual communicates with a regulator (at para 28); the flip side of this is that a duty of care should not be avoidable simply by refusing to show up. In my view, there are other relevant factors that can support or negate a conclusion of sufficient proximity. For instance, it seems relevant that in Alberta landowners cannot refuse oil and gas activities on their lands and are therefore entirely dependent on the regulators to ensure that such activities are conducted in a safe and environmentally sound manner.
With respect to the second stage, the Chief Justice was right to not blindly accept Alberta Environment’s arguments about potential conflict between private and public duties and indeterminacy. As I noted in my previous post, the Supreme Court has been clear that the “residual policy consideration” stage is not the place for speculation and generalizations (see e.g. Hill). The Chief Justice was also correct, in my view, to remind government counsel that finding a duty of care is not dispositive of the negligence action – a plaintiff must still prove that the defendant breached the applicable standard of care and that this breach caused the plaintiff’s damage. This is a complete response to those who argue that such litigation imposes undue hardship on government regulators.
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By: Nigel Bankes
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:
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.
By: Nigel Bankes
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:
 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.
 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.
 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.”
 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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By: Alice Woolley
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.
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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By: Joshua Sealy-Harrington
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.
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,  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,  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,  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,  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.
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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By: Nigel Bankes and Jennifer Koshan
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,  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,  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:
 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.
 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,  3 SCR 1010 and R v Morris,  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,  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,  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.
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?
 The plaintiffs submit several arguments as to why provincial limitations legislation should not apply.
(i) Interjurisdictional Immunity
 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).
 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.
 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),  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.
 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].
 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].
 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.
 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).
 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),  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.
 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.
 Secondly, I would refer the plaintiffs to para. 150 [omitted] ….
In Delgamuukw v British Columbia, 1997 CanLII 302 (SCC),  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”.
 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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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),  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),  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):
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.
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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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:
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:
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:
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:
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:
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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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.
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:
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).
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).
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.
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,  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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By: Jonnette Watson Hamilton
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,  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,  SCR 427, 1954 CanLII 58 (SCC) at 429-430).
“Judicial economy” is 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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